People ex rel. Arcara v. Cloud Books, Inc.

• Decision Date: 12 April 1984
• Citation: 101 A.D.2d 163,475 N.Y.S.2d 173
• Parties: PEOPLE of the State of New York ex rel Richard J. ARCARA, District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., d/b/a Village Book and News Store, Appellant, Charles A. Ottaviano, Blanche Dudley and All Other Persons Unknown Claiming any Ownership, Right, Title or Interest in the Property Affected by this Action, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 173

475 N.Y.S.2d 173

101 A.D.2d 163

PEOPLE of the State of New York ex rel Richard J. ARCARA, District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., d/b/a Village Book and News Store, Appellant, Charles A. Ottaviano, Blanche Dudley and All Other Persons

Unknown Claiming any Ownership, Right, Title or

Interest in the Property Affected by

this Action, Defendants.

Supreme Court, Appellate Division,

Fourth Department.

April 12, 1984.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Paul Cambria, Buffalo, of counsel), for appellant.

Richard J. Arcara, Dist. Atty., Buffalo (John DeFranks, Asst. Dist. Atty., Buffalo, of counsel), for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, GREEN and MOULE, JJ.

MOULE, Justice.

The question presented on this appeal is whether title II of article 23 of the Public Health Law may be applicable to enjoin a nuisance occurring on a premises used as a bookstore.

Defendant Cloud Books, Inc. operates a bookstore, The Village Books and News, located on Delaware Avenue in the Village of Kenmore. ¹ It sells books, magazines and novelties of a sexually frank nature and maintains coin-operated movie machines which show explicit sexual material. An investigation concerning activities occurring on the premises was undertaken by the Erie County District Attorney in September 1982. This investigation was conducted by an Erie County Sheriff who, while working undercover, visited the bookstore several times between September 13 and October 1, 1982. During this period of time, the undercover officer witnessed numerous lewd and illegal acts committed by unidentified patrons of the premises. In an affidavit describing these acts, the officer stated that he had brought them to the attention of store employees but had been told by the employees that they were not concerned with such action.

Subsequently, the District Attorney brought suit on behalf of the People alleging the foregoing acts and setting forth two causes of action: to abate a nuisance under common law and to enjoin the maintenance of a nuisance in violation of title II of article 23 of the Public Health Law. The ultimate relief sought under both causes of action is a permanent injunction against illicit conduct occurring on the premises. Additionally, under the statutory cause of action, plaintiff seeks closure of the premises for a period of one year and the seizure and sale of all furniture and fixtures used therein (Public Health Law, §§ 2320, et seq). ² In its verified answer, defendant, through both its attorney and corporate president, specifically denied each factual allegation regarding the alleged sexual activity and asserted that, even if proven, those acts were not sanctioned or otherwise countenanced by defendant or its employees. Further, defendant stated in its answer that its employees were required to maintain a strictly enforced policy of disallowing any such activity on the premises.

Defendant then moved for partial summary judgment on the statutory cause of action, arguing that the statute was totally inapplicable to a bookstore and, alternatively, that the mandatory closure provisions of the statute would unconstitutionally impinge upon the bookstore's protected first amendment activities. Special Term, 119 Misc.2d 505, 465 N.Y.S.2d 633, rejected both of defendant's arguments against the potential applicability of the statute and denied its motion. ³

Defendant raises two contentions on this appeal: (1) that title II of article 23 of the Public Health Law is inapplicable to its premises; and (2) that the mandatory closure provisions of title II of article 23 of the Public Health Law ( § 2329) impermissibly infringe upon its first amendment freedoms.

The question presented by the first contention is whether title II of article 23 of the Public Health Law, entitled "Houses of Prostitution: Injunction and Abatement", may be applicable to a bookstore. Section 2320 of the Public Health Law defines the scope of this title:

1. Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, or prostitution is guilty of maintaining a nuisance.

2. The building, erection, or place, or the ground itself, in or upon which any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance, are hereby declared to be a nuisance and shall be enjoined and abated as hereafter provided.

Defendant argues that the statute is inapplicable to a bookstore since it is not a "place used for the purpose of lewdness, assignation, or prostitution." Defendant further maintains that, because the statute is entitled "Houses of Prostitution", it may only be employed against houses of prostitution. These arguments are without merit.

Defendant's argument that the statute does not apply to a bookstore because it is not a "place used for the purpose of lewdness, assignation, or prostitution" presupposes that the primary use of the subject premises must be connected with the stated illegal activities. No such limitation is, however, provided by the express language of the statute. A premises may have multiple purposes and, if one of those is the promotion of "lewdness, assignation, or prostitution", it will run afoul of section 2320 of the Public Health Law. This interpretation is supported by a consistent reading of the statute's two subdivisions. While subdivision one refers to persons "guilty of maintaining a nuisance", subdivision two goes on to provide that the building or ground "upon which any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists" (emphasis added) constitutes a nuisance. If the statute were intended to apply exclusively to houses of prostitution, it is inconceivable that the Legislature would have given such a broad definition to the term "nuisance". As for the title of the act, it is fundamental that the substance of a statute is to be determined by its provisions and not by its title (Squadrito v. Griebsch, 1 N.Y.2d 471, 154 N.Y.S.2d 37, 136 N.E.2d 504; see, also, McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 13).

While there is little precedent in New York ⁴ for applying the Public Health Law to premises other than a house of prostitution (People ex rel. Lemon v. Elmore, 256 N.Y. 489, 177 N.E. 14; People ex rel. Rudd v. Rizzo, 146 Misc. 675, 262 N.Y.S. 635), similar statutes in three other states have been broadly construed to be applicable to various premises other than houses of prostitution. In State ex rel. Carroll v. Gatter, 43 Wash.2d 153, 160 (260 P.2d 360), the Supreme Court of Washington discussed the general applicability of its red light abatement statute: ⁵

The statute is not directed to the abatement of commercial eroticism--that is governed by the criminal statutes. It is directed to the abatement of premises which, by reason of sufficient happenings therein, have absorbed and taken the character of the acts committed, and have in fact become houses of lewdness, assignation, or prostitution.

But the operator of such premises cannot escape the force of the abatement statute by calling the premises a "hotel," "apartment," "club," or giving it any name which purports to identify it as a place of lawful and legitimate business; nor can certain immunity be gained by showing mathematically that the principal business of the establishment is legitimate. That fact is one to be considered by the court in reaching its ultimate finding, but is not necessarily, of itself, sufficient to be conclusive. The legitimate and the illegitimate activities occurring on the premises may be so intermingled that the lesser activity is predominant and controls the determination that the premises are, or are not, houses of lewdness, assignation or prostitution.

While the premises involved in the Washington case was a hotel which was alleged to have been used for prostitution, the Court's analysis unequivocally implies that the statute could be applied to any premises where a sufficient degree of illegitimate activity transpires.

In State ex rel. Wayne County Prosecuting Attorney v. Levenburg, 406 Mich. 455, 280 N.W.2d 810), the Supreme Court of Michigan held that proof of numerous instances of accosting and soliciting for purposes of prostitution at a bar was sufficient to sustain a finding that the bar constituted a nuisance under Michigan's abatement act ⁶ and was, hence, subject to abatement. Finally, in People ex rel. Van De Kamp v. American Art Enterprises, Inc., 75 Cal.App.3d 523, 142 Cal.Rptr. 338, the Court of Appeals, Second District, applied the California Red Light Abatement Law ⁷ to a premises used for the storage and distribution of certain publications (see, also, People v. Mitchell, 64 Cal.App.3d 336, 134 Cal.Rptr. 358, where the same court found the California act applicable to enjoin lewd acts of theater patrons).

The question of whether any given premises, including defendant's bookstore, is subject to title II of article 23 of the Public Health Law is necessarily a question of fact. Resolution of this question will depend upon the degree of illicit activity which plaintiff can prove occurred at the store. In addressing the People's burden of proof under the Washington statute, the court in State ex rel. Carroll v. Gatter, 43 Wash.2d 153, supra, 160, 260 P.2d 360, stated:

To sustain the application of the act, it must be shown to the satisfaction of the court, by a preponderance of the evidence, that the premises were being used as a house of lewdness, assignation, or prostitution as that term is generally understood. The "use" of the premises of which the statute speaks, requires more than a showing that sporadic acts of prostitution occurred therein.

We believe that...