City of St. Louis v. Varahi

• Decision Date: 28 February 2001
• Citation: 39 S.W.3d 531
• Parties: (Mo.App. E.D. 2001) City of St. Louis, Plaintiff/Respondent v. Varahi, Inc., Defendant/Appellant. ED77802 0
• Court: Missouri Court of Appeals

39 S.W.3d 531 (Mo.App. E.D. 2001)

City of St. Louis, Plaintiff/Respondent v. Varahi, Inc., Defendant/Appellant.

ED77802

Missouri Court of Appeals Eastern District

02/28/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker, Jr.

Counsel for Appellant: Leonard J. Frankel

Counsel for Respondent: Ronald D. Kwentus, Jr.

Opinion Summary: The City of St. Louis sought to hold defendant hotel owner liable for the public nuisance of solicitation of prostitution in the neighborhood around the hotel which was shown by 32 arrests, most of which were prostitution-related and which the City maintained was caused by the hotel's operation as a house of prostitution. The trial court entered a judgment in which it found the hotel to be a public nuisance and granted injunctive relief.

Division Five holds: (1) Even if defendant knew of the prostitution solicitation on the street, the evidence must show that defendant's acts were "the proximate and efficient cause of the creation of a public nuisance." State ex rel. Chicago, B & Q. R. Co. v. Woolfolk, 269 Mo. 389, 190 S.W. 877, 879 (banc 1916). "No court of equity can enjoin any transaction, however violative of the criminal law on the part of the defendant, which does not bear such a causal relation to the public nuisance averred in the petition." Id.

(2) The uncontroverted evidence at trial was that of the 32 arrests alleged to evidence the nuisance, only three had any connection to the hotel. There was no evidence that the prostitutes were agents or employees of the hotel or that the hotel controlled them in any way. The evidence of three arrests inside the hotel over a five-year period, the hotel's three-hour rental policy, and the reputation of the hotel as a place frequented by prostitutes does not support a reasonable inference that the hotel's three-hour rental policy set in motion a chain of events which caused prostitutes to solicit on the streets of the neighborhood.

(3) The trial court's finding of a nuisance per se because defendant maintained a house of prostitution does not support the judgment because this was not the nuisance alleged and criminal conduct will not sustain liability for a public nuisance unless it caused the nuisance.

Kathianne Knaup Crane, Judge

Opinion modified by Court's own motion on March 6, 2001. This substitution does not constitute a new opinion.

Defendant hotel owner appeals from a judgment finding the hotel to be a public nuisance and ordering it to post its daily rate, rent rooms for 24 hours or more at no less than its posted rate, require all guests to complete a registration form to which they apply their thumbprints, and have its registration office accessible only from the interior of the building. We reverse for the reason that the City did not adduce evidence that would support a reasonable inference that defendant's acts were the proximate cause of the alleged nuisance.

Defendant Varahi, Inc., is a Missouri corporation that owns the Mansion Motel (the hotel), a ten-room hotel located at 4915 Bulwer Avenue in the City of St. Louis (the City). City police began an investigation of prostitution in and around the hotel in December, 1995.

On November 30, 1998, the City filed a petition in equity to enjoin defendant from continuing, maintaining, or supporting any activities that constitute a public nuisance and to obtain other relief, including the closing and sale of the hotel. In its petition it alleged that "between the years 1995 through 1998 there has been more than 32 arrests for [sic] made as a direct result of activities proposed or occurring at the said property for various violations of State and municipal criminal statutes and ordinances, including assault, peace disturbance, possession of controlled substances, and prostitution." It further alleged that this criminal activity threatened the health, welfare and safety of the public and that defendant knew or should have known of the activities alleged, which constituted a public nuisance.

At trial the City called four police officers and defendant's owner. Police records from January 1, 1994, through April 22, 1999, showed that, during this period, there were three arrests inside the hotel. During this same period there were 29 other arrests in the 4900 block of Bulwer. At least 17 of them were for prostitution in which police officers picked up women in the Bulwer street area and took them to a location, other than to the hotel, where they agreed to a sexual act and were arrested. None of these arrests involved the use of or even mention of the hotel.

Of the three arrests inside the hotel, the first occurred on December 26, 1995. A woman flagged down a police officer on either Bulwer Avenue or a side street. She suggested going down to the river to have sex in the car. When the officer disagreed with this suggestion, she suggested going to the hotel. They did and she was arrested after they entered a room at the hotel. On January 2, 1996 the Metropolitan Police Department notified defendant's owner that the hotel was being used as a house of prostitution, and if the illegal activity continued, warrants may be sought charging him with allowing the premises to be used for prostitution in violation of a city ordinance. The second arrest inside the hotel occurred on October 15, 1997. A woman motioned to a police officer at Broadway and Talcott, a block and a half from defendant's hotel. They discussed sexual activity for money, she asked him if he had a place to go, and, when he said he did not want to use the car, she suggested going to the hotel. After they entered a hotel room, the woman was arrested for prostitution. On October 31, 1997 city police sent a letter to defendant almost identical to the January 2, 1996 letter. A third arrest occurred inside the hotel on April 3, 1998. The only evidence about this arrest is that a city detective testified that he came in to "take down" the subject after another detective "made the case."

The officers testified that the hotel had a reputation as a place that promoted prostitution, the area was a high prostitution area, and the 4900 block of Bulwer had a reputation for prostitution, street drugs, rapes and robberies. On cross-examination the police officers testified that the hotel is located in a primarily industrial area and is the only building standing on its side of the street in its block. Defendant's owner testified to the hotel's registration procedure, its outside registration window, and its policy of renting rooms in three-hour segments at a rate of $12 for three hours.

After the trial, the court entered judgment in the City's favor. In its Amended Memorandum Order and Judgment, it found that defendant had knowingly allowed its property to become a haven for prostitutes and knowingly operated its hotel in a manner conducive to prostitution activity. The court found that the circumstantial evidence of defendants' method of operation, combined with prostitutes found in and near the hotel on a regular basis convinced it that defendant was operating a house of prostitution, constituting a nuisance as a matter of law. However, because the court found that the hotel was not operated solely for the purpose of prostitution, it tailored its remedy to enjoin defendant from operating the hotel except on the following conditions:

(1) The actual daily rate for the renting of rooms shall be posted prominently within five (5) feet of the registration desk;

(2) no room shall be rented for a period of time less than twenty-four (24) hours or for less than the posted minimum rental;

(3) no person shall be admitted to any room on the premises unless such person shall complete a registration form stating the person's name and permanent residence address and applying a legible impression of his or her thumbprint; and

(4) no motel registration office or window shall be maintained so as to be accessible without physically entering the motel building.

Defendant appeals. We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

For its first point, which we find dispositive, defendant contends that the trial court erred in entering an injunction against it because no substantial evidence supported the judgment. Defendant argues that no connection was shown between its hotel and the alleged public nuisance. Defendant asserts that, because only three prostitution arrests were made inside the hotel in a five-year period, the evidence did not support a conclusion that a wrongful act of the hotel caused the prostitution nuisance in the neighborhood. The City responds that the required causal connection was met because the trial court found that defendant had knowledge of the nuisance as a result of the manner in which it operated its hotel and that a causal connection can be established if a defendant had reasonable anticipation of the harm and failed to exercise reasonable care to avert the harm, citing Kelly v. Boys Club of St. Louis, 588 S.W.2d 254, 257 (Mo. App. 1979).

Before addressing the issues raised by this point, it is important to understand the legal and factual parameters of the nuisance the City sought to enjoin. In the first place, this lawsuit was brought to abate a "public nuisance."

"A public or common nuisance is an offense against the public order and economy of the state, by unlawfully doing any act or by omitting to perform any duty which the common good, public decency, or morals, or the public right to life, health, and the use of property requires, and which at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons, even though the extent of the...