People v. A Business or Businesses Located At 2896 West 64th Avenue, Unincorporated Adams County

937 P.2d 873, 20 Colo. J. 1367, 1996 Colo. App. LEXIS 275, 1996 WL 544179
CourtColorado Court of Appeals
DecidedSeptember 26, 1996
DocketNo. 95CA0690
StatusPublished
Cited by3 cases

This text of 937 P.2d 873 (People v. A Business or Businesses Located At 2896 West 64th Avenue, Unincorporated Adams County) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. A Business or Businesses Located At 2896 West 64th Avenue, Unincorporated Adams County, 937 P.2d 873, 20 Colo. J. 1367, 1996 Colo. App. LEXIS 275, 1996 WL 544179 (Colo. Ct. App. 1996).

Opinion

Opinion by

Judge ROY.

Defendants, Hide-A-Way-Spa, Coexco, Inc., Louis Francisco, and Lewiseo Enterprises, Inc., appeal the judgment of the trial court finding that defendants were operating a public nuisance. We affirm.

The facts of this case are substantially undisputed. In the 1980s, Kathleen Francisco, wife of defendant Louis Francisco, through Coexco, Inc. (Coexco), began operating Hide-A-Way Spa (Hide-A-Way) in Adams County. Hide-A-Way provides whirlpool baths in which female attendants accompany male patrons.

When prospective patrons enter Hide-AWay, the attendants, normally clad in lingerie, offer the patrons a “menu” of services. The menu describes Hide-A-Way as “DENVER’S FIRST NUDE SPA.” The menu lists services, including, as pertinent here, whirlpools and a bubble bath in the company of the attendant at a cost of $100 per hour.

After a patron makes a selection from the menu, an attendant escorts the patron to a private room which has a whirlpool bath and a massage table. After entering the private room, the patron pays the fee, and both the patron and the attendant completely disrobe and take a whirlpool bath together. Attendants may also apply powder to the patron using their fingertips and the massage table. Attendants caution patrons that there can be no genital touching, sexual activity, or massages. There is no allegation that attendants provided any sexual services to patrons.

[875]*875The attendants are independent contractors who lease the rooms. The attendants retain 40% of the fee and pay Hide-A-Way 60% of the fee. Hide-A-Way, under its current owners, has never had a license to operate a massage parlor. Hide-A-Way operates 24 hours a day, seven days a week, 364 days a year.

This case has a long procedural history involving both civil and criminal actions against the former and current owners and operators of Hide-A-Way. As pertinent here, the court joined defendants Francisco and Lewisco, Inc. (Lewiseo) in November 1991 because they took over the operation of Hide-A-Way in July 1991.

In a second amended complaint the district attorney alleged, inter alia, eight violations of Adams County Ordinance No. 1 (Ordinance No. 1), which contained a definition of “nude entertainment,” including partial dress; limited “nude entertainment” to 4 p.m. to midnight, Monday through Saturday and prohibited it on Sundays; and prohibited “nude entertainment” performed by persons under 21.

The complaint alleged that the violations were continuous and, therefore, constituted a public nuisance. Hide-A-Way generally denied these allegations and later alleged that Ordinance No. 1 was unconstitutional on its face because it was vague.

Before trial, defendants filed a motion to exclude some evidence related to violations of Ordinance No. 1 alleging that sheriffs deputies had illegally seized the evidence. The evidence had been previously suppressed in a criminal proceeding. The court reserved ruling on the motion until trial, and ultimately failed to rule, because it was unclear what evidence had been previously suppressed.

Following trial, the court granted a permanent injunction against Francisco and Lewis-co as the owners and operators of Hide-AWay based on violations of Ordinance No. 1 and dismissed all of the other claims advanced by the district attorney. This appeal followed.

Initially, we note that our supreme court has held that Ordinance No. 1 does not violate the First Amendment. 7250 Corp. v. Board of County Commissioners, 799 P.2d 917 (Colo.1990).

I.

Hide-A-Way first contends that Ordinance No. 1 exceeds the authority granted Adams County by the General Assembly because the enabling statute, § 30-15-401(l)(L)(I), C.R.S. (1986 RepLVol. 12A), authorizes the regulation of complete nudity, not partial nudity. However, because the trial court found, with ample support in the record, that the attendants at Hide-A-Way were completely nude, we need not address this issue.

II.

Hide-A-Way next contends that Ordinance No. 1 is unconstitutionally, vague because it does not define the term “entertainment.” We disagree.

Statutes and ordinances are presumed to be constitutional. A party attacking a statute on constitutional grounds assumes the burden of proving the unconstitutionality beyond a reasonable doubt. Price v. City of Lakewood, 818 P.2d 763 (Colo.1991).

In discussing the constitutionality of ordinances, our supreme court has stated:

An ordinance or code provision Violates due process requirements when it contains language so vague that it fails to provide fair notice of what conduct is prohibited or fails to provide law enforcement authorities with sufficiently definite standards for [its] non-arbitrary, nondiscriminatory enforcement.’ ... The obverse of this rule is that a provision ‘is not void for vagueness if it fairly describes the conduct forbidden, and persons of common intelligence can readily understand its meaning and application.’ ... A high degree of exactitude in draftsmanship, however, is not required for an ordinance to pass due process scrutiny.

Price v. City of Lakewood, supra, 818 P.2d at 766.

An ordinance must be sufficiently general to address the essential problem under varied circumstances. The fact that the challenged term has broad meaning and [876]*876lacks a specific definition in the ordinance does not equate to the provision being unconstitutional beyond a reasonable doubt.

In the absence of a specific definition, a word will be given its commonly accepted definition. Price v. City of Lakewood, supra. To determine a word’s common usage, a court may refer to a standard dictionary. Eckley v. Colorado Real Estate Commission, 752 P.2d 68 (Colo.1988).

Because Hide-A-Way does not cite us to specific provisions of either the United States or Colorado Constitutions, we will limit our inquiry to a denial of due process under the Fourteenth Amendment. See Price v. City of Lakewood, supra; People v. Boff, 766 P.2d 646 (Colo.1988).

Ordinance No. 1, as pertinent here, provides:

These regulations shall apply to any establishment open to the public in which persons appear in a state of nudity for the purpose of entertaining the patrons of such establishment, hereinafter referred to as ‘Nude Entertainment Establishments.’

The ordinance does not define “entertainment,” “entertaining,” or “Nude Entertainment Establishment.”

According to Webster’s Third New International Dictionary 757, the term “entertainment” means, among other things, “the act of entertaining: as ... the act of diverting, amusing, or causing someone’s time to pass agreeably.” See People v. Kukkanen, 248 Cal.App.2d Supp. 899, 56 Cal.Rptr. 620 (1967) (topless waitresses constitute live entertainment).

Under the circumstances of this case, we conclude that the ordinance provides fair notice of the prohibited conduct.

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937 P.2d 873, 20 Colo. J. 1367, 1996 Colo. App. LEXIS 275, 1996 WL 544179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-a-business-or-businesses-located-at-2896-west-64th-avenue-coloctapp-1996.