STATE Ex Rel WAYNE COUNTY PROSECUTING ATTORNEY v. BENNIS

504 N.W.2d 731, 200 Mich. App. 670

• Court: Michigan Court of Appeals
• Decided: July 19, 1993
• Docket: Docket 132568
• Status: Published

Opinions

Murphy, J.

Defendants appeal from a judgment of the circuit court declaring their 1977 Pontiac automobile to be a nuisance and abating the nuisance, thereby terminating their interest in the automobile. We reverse.

Defendant John Bennis was convicted of gross indecency, MCL 750.338b; MSA 28.570(2), following an incident in which police officers observed Mr. Bennis engaging in a sexual act with a woman in defendants’ 1977 Pontiac. Plaintiff then filed this action, alleging that Mr. Bennis used defendants’ car for the purpose of lewdness, assignation, or prostitution, in violation of MCL 600.3801; MSA 27A.3801, and that the car was therefore a nuisance subject to abatement pursuant to MCL 600.3825; MSA 27A.3825. The circuit court declared the car to be a nuisance and abated the nuisance, terminating defendants’ interest in the automobile.

Defendants first contend that they were entitled to summary disposition pursuant to MCR 2.116(C) (8) because plaintiff failed to demonstrate that defendant Tina Bennis had knowledge that her husband, defendant John Bennis, was using the vehicle, which they jointly owned, for purposes of lewdness, assignation, or prostitution. We agree that the prosecution was obligated to demonstrate that defendants knew of the use of the vehicle as a nuisance before the nuisance could be ordered abated.

The statutes relating to public nuisance provide for declaring certain property to be a nuisance where "lewdness, assignation or prostitution or gambling” takes place on that property. MCL 600.3801; MSA 27A.3801 provides, in pertinent part:

Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, ... is declared a nuisance, . . . and all . . . nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance.

MCL 600.3805; MSA 27A.3805 authorizes prosecuting attorneys, among others, to bring an action for equitable relief to abate a nuisance. MCL 600.3825; MSA 27A.3825 provides for the issuance of an order of abatement and sale of property found to be a nuisance, including vehicles.

MCL 600.3815(2); MSA 27A.3815(2) provides that "proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required.” The Michigan Supreme Court, however, has held that, regardless of this statutory language, proof of knowledge is required for abatement. In People v Schoonmaker, 241 Mich 177, 181; 216 NW 456 (1927), our Supreme Court stated:

Defendants did not maintain a nuisance unless they permitted such illegal use of the premises; that is, consented to it or acquiesced, and whether they did so was a question of fact, not established by efforts to prevent misuse of the premises but only by some evidence disclosing permissive use.

. . . That transgressions may happen is possible, but remain offenses of the wrongdoer unless tolerated by the occupant to the extent of permissive use of the premises for such purpose or indifference thereto. The statute does not deprive one person of the use of his property by reason of the illegal acts of another, unless the owner’s use bears a participating relation to the violation.

In subsequent decisions, the Supreme Court has held that the statute obviates the need for proof of knowledge, and apparently has ignored Schoonmaker, as noted by this Court in State ex rel Oakland Co Prosecutor v Motorama Motel Corp, 105 Mich App 224, 228; 307 NW2d 349 (1981). See People ex rel Wayne Prosecuting Attorney v Bitonti, 306 Mich 115, 119; 10 NW2d 329 (plurality) (1943); People ex rel Wayne Prosecuting Attorney v Tate, 306 Mich 667, 669; 11 NW2d 282 (1943); State ex rel Attorney General v Robinson, 250 Mich 99, 103; 229 NW 403 (1930). The Schoonmaker view has recently received support, however, in State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455, 462, n 1; 280 NW2d 810 (1979), in which our Supreme Court stated in dicta: "However, we acknowledge that a judgment for abatement in a prosecution of this nature cannot be rendered without a finding of knowledge of the accosting and soliciting on the part of the owners or operators of the place found to be a nuisance and their acquiescence in those activities.”

Considering that Schoonmaker has never been expressly overruled, and in light of the comment in Levenburg, we follow the Schoonmaker analysis, as this Court did in Motorama, supra, and State ex rel Wayne Prosecuting Attorney v Weitzman, 21 Mich App 705, 710-711; 176 NW2d 463 (1970). We therefore hold that the prosecutor was required to prove that defendants knew that their vehicle was being used for a purpose set forth in MCL 600.3801; MSA 27A.3801. We further hold that the record in this case does not support a finding that Mrs. Bennis knew that the vehicle was being used for such purpose.

Defendants next contend that the claimed nuisance could not be abated because only one incident of lewdness, assignation, or prostitution was alleged before the trial court, and that this is insufficient to demonstrate a nuisance. We agree. In Motorama, the plaintiff alleged that, on one occasion, a police officer was accosted and solicited by an unknown female at a bar and that she then took the officer across the street to the defendant’s hotel. The trial court granted the defendant summary disposition, holding in part that the one instance of lewdness and assignation alleged by the plaintiff was insufficient to support a claim of nuisance. This Court affirmed, holding that a single alleged incident is insufficient to create a nuisance unless circumstances are such that a reasonable inference can be drawn that the conduct was habitual. Id., 229-230; see also Bitonti, supra, 119-120 (Justice Chandler). The facts in Motorama were insufficient to permit such an inference, even though the affidavit of the police officer in question stated that there had been numerous arrests of females in that area for solicitation at the bar across from the defendant’s hotel. Id., 226, 229-230.

The Motorama approach best effectuates the purpose of the statute. The abatement statute was enacted to subject houses of prostitution to abatement as nuisances. State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, 396 Mich 244, 246-250; 240 NW2d 460 (1976). The purpose of the act has also been described as eliminating the use of property in connection with gambling, prostitution, and the illicit sale of liquor. People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 575; 17 NW2d 756 (1945); State ex rel Oakland Prosecuting Attorney v Ginell, 159 Mich App 679, ; 407 NW2d 59 (1987). The statute is not intended to regulate the morality of individuals, or to prevent incidents of immorality in, for example, hotels that are otherwise respectable establishments. See Diversified Theatrical Corp, supra, 247.

As in Motorama, we hold that a single incident is insufficient to establish a nuisance. Further, the circumstances of this case do not permit a reasonable inference that the conduct was habitual. In this case, the prosecution hás alleged only a single incident to support the contention that defendants’ car was a nuisance. While the prosecution discusses at length the reputation and record of Kathy Palarchio, the woman found in the car with Mr. Bennis, this does not establish that defendants’ car was used on more than that occasion for lewdness, assignation, or prostitution. Similarly, testimony was presented that Mr. Bennis was seen on more than one occasion driving in that area and talking to women. Not only does this observed conduct not prove that defendant was involved in lewdness, assignation, or prostitution, there was no evidence to establish that this conduct, if it occurred, took place in the vehicle in question. In fact, defendants allegedly purchased the car only three weeks before the incident that gave rise to this action.

The dissent in this case states that the mobile nature of a vehicle, as compared to real property, justifies finding the vehicle to be a nuisance upon proof of only one incident of prohibited conduct. The dissent reasons that to require proof that the vehicle was used on more than one occasion for a purpose proscribed by the statute would thwart the purpose of the public nuisance statute. While the prohibited conduct would indeed have to be observed on more than one occasion, that is the very nature of a nuisance. Motorama, supra, 229-230. In fact, if conduct happens so rarely that authorities investigating the situation are unable to observe a recurrence of the conduct, we would hesitate to find a nuisance. Just as one incident of prostitution does not create a brothel out of a family hotel, neither does one isolated incident of prohibited conduct in a vehicle necessarily make the vehicle a nuisance.

Defendants further contend that the prosecution failed to demonstrate that an act of lewdness, assignation, or prostitution occurred in the car and that the abatement provisions are therefore inapplicable. We agree. After the incident in question, Mr. Bennis apparently was charged with one count of gross indecency, MCL 750.338b; MSA 28.570C2).¹ The record indicates that Mr. Bennis was found in the car in an area apparently known for prostitution and was engaged in sexual activity with a woman previously arrested for prostitution. Defendant was only charged with gross indecency, however, presumably because there was no proof that the activities in which Mr. Bennis and Ms. Palarchio were engaged involved the payment of money.

Our Supreme Court in Levenburg noted that while assignation is generally defined as an appointment for a meeting, especially between lovers, the term as used in the abatement act is limited to the making of an appointment for purposes of prostitution. Levenburg, supra, 465-466. Similarly, while lewdness may be defined more broadly in the common sense of the word, in the abatement act the term is confined to acts of prostitution. See Diversified Theatrical Corp, supra, 246-250. This construction of the terms is sensible, considering that the purpose of the statute is to eliminate repeated prostitution in a specific location. Thus, while Mr. Bennis’ conduct in his car may have been lewd or may have been an assignation in a general sense, there is no demonstration that the conduct was that which is prohibited by the statute, absent proof that the sexual activity was in exchange for money.²

Reversed.

Marilyn Kelly, J., concurred.

1 The complaint alleges that Mr. Bennis was charged with "indecent and immoral conduct.” The complaint further alleges that "the observed conduct is a violation of MCLA 750.449a, engaging the services of a prostitute and MCLA 750.338b, gross indecency between male and female.” The prosecution agrees in its brief on appeal, however, that defendant John Bennis was charged only with gross indecency, and further admits that there is no evidence that Mr. Bennis paid or intended to pay Ms. Palarchio.

2 Nor is Mr. Bennis’ conduct included within the nuisance statute merely because his conduct can be equated with gross indecency, and was therefore arguably disorderly. See Diversified Theatrical Corp, supra, 246, 250; State ex rel Oakland Prosecuting Attorney v Alray Northcrest Plaza, 146 Mich App 595, 602-604; 381 NW2d 731 (1985).