MICHIGAN EX REL WAYNE CTY. PROSECUTING ATTORNEY v. Duck

511 N.W.2d 907, 203 Mich. App. 250

• Court: Michigan Court of Appeals
• Decided: January 18, 1994
• Docket: Docket 134045, 136610
• Status: Published

Opinions

Sawyer, J.

This action arises out of the Wayne County Prosecutor’s complaint to have defendants’ establishment declared a nuisance under MCL 600.3801; MSA 27A.3801 and the premises padlocked. Although the trial court found that some of the activities at the Dizzy Duck constituted a nuisance, it declined the prosecutor’s request to padlock the premises. Instead, the trial court enjoined those activities that it found to constitute a nuisance. The prosecutor now appeals and defendants cross appeal.¹

"Dizzy Duck” is an assumed name registered by defendant Greenfield Eight Restaurant Company, Inc. Defendant Boyce J. Maxwell is the incorporator, president, resident agent, and owner-operator. The Dizzy Duck is a small establishment located in Detroit, where patrons pay an entrance fee for admission, which offers adult entertainment, such as nude dancing.

Six police officers gave testimony concerning an undercover investigation and subsequent raid on the Dizzy Duck. Four employees of the Dizzy Duck also testified; three of them were dancers and were granted immunity. There were four activities that were investigated: nude dancing, "lap dancing,” the "Fantasy Room,” and assignation for prostitution.

Concerning the nude dancing, there was a stage area for individual and group female nude dancing. There was also a plexiglass shower enclosure on stage for "shower dances” where patrons would pay extra to see a dancer shower.

For a fee of $20 for one song, or $30 for two songs, the female employees would perform a "lap dance” for a customer. During these lap dances a dancer would straddle a customer’s legs and move herself about the customer’s legs and groin area while holding onto either the customer or a pair of handles mounted on the wall. Although some touching of dancers by patrons was observed, an employee hired for security testified that it was a rule that customers were not supposed to "get too friendly” with their hands during lap dances.

The women also solicited to take the men back to the Fantasy Room, which was in a more secluded area of the building. For a fee upwards of $65, customers would be placed in a room opposite one of the dancers, where they could see each other through a plexiglass partition. The women would then dance and sometimes masturbate, while the men watched. The women encouraged the men to masturbate along with them while in the Fantasy Room. Evidence technicians found sperm in samples taken from the fantasy room walls and plexiglass partition.

There was also testimony by the police officers that while on the premises the dancers would solicit for acts of prostitution to occur off the premises. One of the dancers also testified that solicitation for prostitution occurred at the Dizzy Duck and she had done so herself. She explained that if the dancers paid their manager enough money, they "could get away with anything,” including leaving with a customer. Another employee who was hired for security testified that the rules of the Dizzy Duck prohibited prostitution or solicitation for prostitution. However, there was some evidence that the owner knew about his dancers’ soliciting for prostitution because at least one of the dancers made complaints to him about different treatment in letting certain women leave with customers.

The trial court found that lap dancing and assignation for prostitution were occurring at the Dizzy Duck, and that they were abatable nuisances under MCL 600.3801 et seq.; MSA 27A.3801 et seq. The trial court entered an order to this effect on September 26, 1990, which ordered the lap dancing and assignation abated. The order also provided for periodic reasonable inspections of the Dizzy Duck by Detroit police officers to ensure compliance. Then, on November 2, 1990, the prosecutor moved that the trial court find defendants in contempt because the lap dancing was continuing at the Dizzy Duck. The trial court denied the contempt motion. However, the trial court went on to clarify its earlier order by including the following language in the prohibition against lap dancing: "and where the main purpose of contact is for masturbation of the male penis.” The trial court entered an amended order including the above language.

On appeal, the prosecutor essentially advances two arguments: that the trial court was too narrow in its conclusion of what activities constituted a nuisance under the statute and that the trial court should have closed the Dizzy Duck rather than merely enjoining those activities that constitute a nuisance. We disagree with both those propositions.

We turn first to the question of what conduct is abatable under the statute. MCL 600.3801; MSA 27A.3801 declares as nuisances, inter alia, buildings used "for the purpose of lewdness, assignation or prostitution.” The trial court found that two activities at the Dizzy Duck come within the statute: soliciting acts of prostitution and lap dancing where "the main purpose of contact is for masturbation of the male penis.” The prosecutor argues that all lap dancing, the nude dancing in general, and the Fantasy Room activities are all abatable conduct under the statute. Indeed, the prosecutor seems to suggest that any conduct "designed to commercialize sex” is abatable under the statute. Like the trial court, we disagree.

The question whether nude dancing is abatable is easily answered: it is not. The Supreme Court considered the applicability of the nuisance statute to adult movie theaters in State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), concluding that it did not. The Court reached the conclusion that the abatement statute applies only to houses of prostitution:

We are in accord with decisions applying these abatement statutes only to houses of prostitution. The meaning of the words "lewdness, assignation or prostitution” is clear in light of the history and purpose of these statutes and that meaning cannot properly be expanded by judicial construction. [Id. at 250.]

We see no meaningful basis to distinguish between live entertainment and film. As Diversiñed makes clear, the focus is not on whether the entertainment may be judged to be obscene, but whether it constitutes prostitution or related activities. Nude dancing, where there is no contact between the dancer and the customer, simply does not constitute prostitution or a related activity of lewdness or assignation.² Accordingly, like the adult films at issue in Diversified, nude dancing is not abatable under the statute. See also State ex rel Saginaw Prosecuting Attorney v Bobenal Investments, Inc, 111 Mich App 16; 314 NW2d 512 (1981) (live nude dancing not abatable as lewd under the statute).

However, the issue whether lap dancing and the Fantasy Room activities constitute prostitution or lewdness may not be disposed of quite as easily. The nuisance abatement statute does not define the meaning of either "prostitution” or "lewdness.” The prosecutor urges us to accept a very broad definition of those terms. We do not.

The Random House College Dictionary, Revised Edition (1984), defines "prostitution” as "the act or practice of engaging in sexual intercourse for money.” Similarly, Black’s Law Dictionary (5th ed), defines "prostitution” as "performing an act of sexual intercourse for hire, or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire.” Corpus Juris Secundum defines it as "the practice of a female offering her body to an indiscriminate intercourse with men,” usually for hire. 73 CJS, Prostitution and Related Offenses, § 2, p 250.

This Court did give a somewhat broader definition of prostitution in State ex rel Macomb Co Prosecuting Attorney v Mesk, 123 Mich App 111; 333 NW2d 184 (1983), concluding that prostitution included "manual stimulation of another person for the payment of money.” Id. at 118. In reaching that conclusion, the Mesk Court relied upon a decision of the North Carolina Court of Appeals in State ex rel Gilchrist v Hurley, 48 NC App 433, 443; 269 SE2d 646 (1980), which defined prostitution to include "vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person’s genitals, pubic area, buttocks or breasts.” The decision in Mesk notwithstanding, we view that as an overly broad definition of prostitution. Rather, we think the commonly accepted definition is that which was intended: the performance of sexual intercourse for hire.³

However, our inquiry does not end there. The nuisance abatement statute addresses not just prostitution, but lewdness as well. This definition is somewhat more difficult to reach. As noted in Diversified, supra at 250, n 13, the term "lewdness” has generally been viewed as being broader than the term "prostitution.” Nevertheless, as the Supreme Court made clear in both Diversified and in State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455, 466; 280 NW2d 810 (1979), the term "lewdness” must be defined in a manner that is consistent with the rule of noscitur a sociis.4 Thus, while "lewdness” may have a broader meaning than "prostitution,” its definition is nevertheless limited by reference to the definition of "prostitution.” See also State ex rel Wayne Co Prosecuting Attorney v Bennis, 200 Mich App 670; 504 NW2d 731 (1993).

In determining the meaning of "lewdness,” we note the direction in Levenburg, supra at 464-465, that each of the terms used, lewdness, prostitution, and assignation, be given its own distinct meaning in order to effectuate the Legislature’s intent. Accordingly, we conclude that "lewdness” must cover a broader range of acts than just sexual intercourse, though, as pointed out in Diversified, Levenburg, and Bennis, it must be an act for hire.

In determining exactly what acts come within the meaning of "lewdness,” we are again guided by the rule of noscitur a sociis. "Lewdness” must be defined by reference to "prostitution” and the fact that the focus of the nuisance abatement statute is to abate prostitution and not all conduct that may be considered to offend the public morals. See Levenburg, supra, and Diversified, supra. That is, it cannot mean any generally lewd act performed for hire. In Diversified, the patrons presumably paid a fee to watch the movie at issue. Thus, the focus of Diversified was not on the "for hire” or commercial aspect of the conduct, but upon the nature of the act involved. Furthermore, this conduct must be of the same general class of activities associated with prostitution. See Diversified, supra at 250, n 13. Indeed, as the trial court noted, an unduly broad definition of lewdness will bring within the statute conduct the Legislature simply did not intend to be covered.⁵_

In this respect, we believe that the trial court arrived at a reasonable conclusion in the case at bar with respect to the lap dancing: it constituted "lewdness” only if it was done for the purpose of masturbation. Prostitution involves sexual intercourse, which The Random House College Dictionary, Revised Edition (1984), defines as "genital contact, esp. the insertion of the penis into the vagina followed by ejaculation; coitus; copulation.” Accordingly, in order to define "lewdness” in conjunction with "prostitution,” we conclude that "lewdness,” as used in the nuisance abatement statute, refers to those sexual acts of a nature similar to sexual intercourse: anal intercourse, fellatio, cunnilingus, and masturbation performed on another where done for hire.

With the above definition of lewdness in mind, we can conclude that the trial court reached the correct result in addressing the lap dancing. Lap dancing itself does not constitute lewdness unless it is done for the purpose of masturbation.⁶ The trial court did enjoin any lap dancing "where the main purpose of contact is for masturbation of the male penis.” The trial court properly ascertained what aspects of the lap dancing constituted an abatable nuisance.

This leaves the issue of the Fantasy Room. Although masturbation apparently did occur within the Fantasy Room, it was not performed on the customer by the dancers. Rather, it was performed by the customer on himself while watching a dancer. Thus, there was no masturbation performed for hire. Accordingly, it does not come within the definition of lewdness set forth above. In terms of the conduct of the dancer in the Fantasy Room, that conduct does not materially differ from the nude dancing that was performed on stage and that, as discussed above, is not abatable under the statute.⁷

For the above reasons, we conclude that the trial court correctly determined what aspects of the activities at the Dizzy Duck constituted "lewdness, assignation or prostitution” under the statute and were thus abatable. There remains, however, the prosecutor’s argument that the trial court should have padlocked the Dizzy Duck rather than merely enjoining the nuisance. It is within the discretion of the circuit court to choose a remedy less drastic than padlocking the building, such as enjoining the activities that constitute a nuisance. People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 576; 17 NW2d 756 (1945); People ex rel Attorney General v Holschuh, 235 Mich 272, 274-277; 209 NW 158 (1926).

We have no dispute with the trial court’s exercise of its discretion in this case. The trial court chose to enjoin the nuisance rather than closing the establishment, noting as follows:

Given the nature of other legal activities, no matter what the Court or others personal beliefs as to their moral conduct, the assignation and the lap dancing would be unlawful conduct, does not seem so pervasive to the Court nor is the Court persuaded at this point that those cannot be prevented with an order short of one, [sic] padlocking the Dizzy Duck.

We agree with the trial court. As noted above, the focus of the nuisance abatement statute is to close bordellos. While abatable activity occurred on the premises of the Dizzy Duck, it is not a bordello. Where, as here, the abatable activities only constitute a portion of the conduct and the business can continue to operate with the abatable conduct enjoined, it is eminently reasonable for the trial court to limit its remedy in the first instance to merely enjoining the prohibited conduct rather than closing the establishment. If the prohibited activity persists despite the injunction, the trial court can certainly reconsider the issue and padlock the premises as the only effective means of abating the nuisance. However, as long as defendants are willing to obey the injunction, we see no reason to require the premises to be padlocked. Certainly, the trial court did not abuse its discretion in choosing to try the less restrictive remedy first.

Finally, we wish to briefly comment on a point raised by the dissent. Contrary to the dissent’s suggestion, our efforts here are not an "attempt to fashion a new definition of prostitution and lewdness not heretofore recognized in Michigan.” Post at 276. Rather, we seek only to define those terms properly in light of both the statutes and the constitutional restrictions enunciated in the precedents of both this Court and the Supreme Court. Our goal is not new definitions, but merely to clarify the existing ones. Further, we believe our dissenting colleague is unnecessarily concerned that our opinion elevates the burden of proof in the enforcement of prostitution, or impedes enforcement of the abatement statute. Rather, if we have been even partially successful in clarifying the scope of the statute, enforcement should be made more efficient because it will be clearer to bench, bar, and the law enforcement community exactly what activity is properly considered within the purview of the statute. Expansion of the abatement statute, as proposed by the dissent, is best left to the Legislature.

Affirmed. Defendants may tax costs.

Holbrook, Jr., P.J., concurred.

1 Although defendants did cross appeal, they did not file a separate brief on cross appeal, nor do they seek modification of the trial court’s order. Their brief on appeal does, however, to some extent argue that the trial court’s order is overly broad.

2 The meaning of the terms "lewdness” and "assignation” as used in the statute will be discussed in more detail infra.

3 This does not mean, of course, that the Legislature could not choose to define prostitution more broadly. Rather, in the absence of a statutory definition, we use the accepted "dictionary” definition of the word. See People v Troncoso, 187 Mich App 567, 573; 468 NW2d 287 (1991). In fact, we note that the criminal prostitution statutes refer to both "prostitution” and "lewdness.” See MCL 750.448 et seq.; MSA 28.703 et seq. This reflects that the Legislature was cognizant of the narrow meaning of the word "prostitution” and it therefore included "lewdness” to give coverage to sexual acts done for hire other than just sexual intercourse.

4 Black’s Law Dictionary (5th ed), p 956, defines this to mean:

It is known from its associates. The meaning of a word is or may be known from the accompanying words. Under the doctrine of "noscitur a sociis,” the meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it.

See also Levenburg, supra at 466-467, n 8.

5 The trial court commented on the fact that ordinary dancing may involve some contact between the genital areas, albeit the participants are clothed. Of course, this would not come within the scope of the statute because the "for hire” aspect is missing. However, it does point to the problem. What, for example, is to be said of the old-fashioned kissing booth at the county fair? A broad definition of sexual activity could be said to encompass kissing. Would payment therefore constitute an abatable nuisance under the statute? We don’t think that is the sort of conduct envisioned to come under the provisions of the statute. Clearly, there must be some limitation to the scope of the term "lewdness.”

6 Random House defines "masturbation” as "the stimulation or manipulation of one’s own or another’s genitals to achieve orgasm.”

7 For that matter, the conduct of a customer in the Fantasy Room does not materially differ from that of a patron of a movie theater who chooses to masturbate while watching a movie in the theater.