Com. ex rel. Preate v. Danny's New Adam & Eve Bookstore
| Decision Date | 29 April 1993 |
| Citation | 155 Pa.Cmwlth. 281,625 A.2d 119 |
| Parties | COMMONWEALTH ex rel. Ernest PREATE, Jr., Attorney General of the Commonwealth of Pennsylvania v. DANNY'S NEW ADAM & EVE BOOKSTORE and Daily Planet News, Inc., Owner of the Fictitious Name Danny's New Adam & Eve Bookstore and Operator of Said Bookstore and Thomas J. Bregatta and Helena Bregatta, his wife, Owners of the premises at which Danny's New Adam & Eve Bookstore operates its business, Appellants. COMMONWEALTH ex rel. Ernest D. PREATE, Jr., Attorney General of the Commonwealth of Pennsylvania v. BOOK BIN EAST and Gersley Kieserman, Newton Kieserman and Stanley Kieserman, Co-Partners, owners of the premises at which Book Bin East operates its business, Appellants. |
| Court | Pennsylvania Commonwealth Court |
Joel E. Oshtry, for appellants.
John O.J. Shellenberger, Chief Deputy Atty. Gen., Chief of Eastern Region, for appellees.
Before PALLADINO and FRIEDMAN, JJ., and NARICK, Senior Judge.
Danny's New Adam & Eve Bookstore and the Book Bin East (Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County granting a preliminary injunction to the Pennsylvania Attorney General's Office (Appellee). We sustain the grant of preliminary injunction.
Appellants' establishments are adult bookstores located in Philadelphia. Both establishments sell video tapes, books and magazines, sexual in nature. Both stores also contain video viewing booths equipped with coin-operated video monitors upon which patrons can view sexually-oriented videos. Each video viewing booth adjoins the booth next to it with a common wall between the booths. Agents, conducting an investigation for the Appellee, discovered that a number of the booths had a three-by-five inch hole located between the booths that allowed patrons to have sexual activity with persons in the adjacent booth.
Additionally, the Book Bin East contained a floor designated as the "California Couch Dancing" area where two rooms are divided by a glass wall. Appellee's agent observed a woman through the glass, as she performed lewd strip-tease dancing. The agent was also offered sex for money.
On July 29, 1992, Appellee filed complaints in equity which sought to abate the use of Appellants' premises as a nuisance pursuant to Section 1 of the Uses of Property Act, Act of June 23, 1931, P.L. 1178, 68 P.S. § 467. Appellee further filed petitions for temporary injunctions (temporary restraining orders) and preliminary injunctions, enjoining the operations of video viewing booths and the "California Couch Dancing area." The Philadelphia County Court of Common Pleas granted the temporary injunctions and scheduled a hearing pursuant to Pa.R.C.P. No. 1531. The trial court held a two-day hearing, limited to the issue of whether the temporary injunctions should become preliminary injunctions, pending a hearing on the merits. On September 3, 1992, the trial court granted the preliminary injunctions, reasoning in part:
The citizens of the Commonwealth of Pennsylvania will suffer irreparable harm if defendants continue to maintain video viewing booths and areas utilized "California Couch Dancing" where sexual activity has taken place which could lead to the spread of Human Immunodeficiency Virus (HIV) which may result in the fatal illness known as "Acquired Immune Deficiency Syndrome" (AIDS). 1
The trial judge did not close the other areas of the Appellants' establishments.
On appeal to this Court, Appellants argue that the trial court erred in holding the establishments were "nuisances" because the (1) threat of the spread of AIDS through the alleged sexual activity occurring at their establishments is speculative; and (2) the Uses of Property Act is archaic. Therefore, Appellants assert that the grant of the preliminary injunction directly contravenes their freedom of speech protected by the First Amendment. 2
Our scope of review from a grant of preliminary injunction is limited. We may not review the merits of the case, but only determine whether any apparently reasonable grounds support the trial court's determination. Novak v. Commonwealth, 514 Pa. 190, 523 A.2d 318 (1987). We may only interfere with the trial court's order if no grounds exist to support the injunction or the rule of law relied upon was erroneous or misapplied. Williams v. Children's Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984).
The courts consider the following standards when granting a preliminary injunction: (1) is the injunction necessary to prevent immediate and irreparable harm not compensable in damages; (2) would greater harm result from denying the injunction than from granting it; (3) is the Plaintiff's right to relief clear; and (4) will the status quo be restored if the injunction is granted. Norwood A. McDaniel Agency v. Foster, 117 Pa.Commonwealth Ct. 227, 543 A.2d 155 (1988).
The trial court implied that the threatened spread of HIV required issuance of the preliminary injunction to prevent immediate and irreparable harm and because no adequate remedy at law exists.
In Muehlieb v. City of Philadelphia, 133 Pa.Commonwealth Ct. 133, 574 A.2d 1208 (1990), this court adopted the Restatement (Second) of Torts definition of a public nuisance as "an unreasonable interference with a right common to the general public." Id. at 140, 574 A.2d at 1211, quoting Restatement (Second) of Torts § 821B. One set of circumstances which support a conclusion that an interference with a public right is unreasonable is whether the conduct in question poses a significant threat to the public health. Id. Among other health and scientific groups, the Advisory Health Board of the Pennsylvania Department of Health has declared AIDS to be a communicable disease. 28 Pa.Code § 27.2.
Competent evidence exists in the record to support the trial court's conclusion that sexual conduct, occurring on the Appellants' premises, could lead to the spread of HIV which may result in AIDS. Expert witnesses for both the Appellants and the Appellee testified to this fact. In addition, Ralph Taylor, a patron of Appellants' establishments, testified that he was infected with HIV and that he had, on several occasions, engaged in intercourse in the Appellants' establishments. It is well-settled that even a lawful business may be enjoined from operation if it is shown that, under the particular circumstance, its operation constitutes a public nuisance. Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976).
The testimony of Taylor and Appellee's agents and expert witnesses also supports a conclusion that greater harm would have resulted from denying the injunction. The threat to public health was ongoing.
Further, the Uses of Property Act (Act) gave Appellee a clear right to relief. In its conclusions of law, the trial court relied upon Section 1 of the Act, 68 P.S. § 467, which states: "Any building or part of building used for the purpose of fornication, lewdness, assignation and/or prostitution is declared to be a common nuisance...." The Pennsylvania Supreme Court has specifically reaffirmed the constitutionality of the Act and has held that conduct described in Section 1 includes any illicit sexual conduct. Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). Appellee's agents witnessed first-hand illicit sexual activity, occurring in Appellants' establishments which was clearly proscribed in MacDonald. Under Section 3 of the Act, 68 P.S. § 470, the Commonwealth through the Attorney General may bring an action to enjoin a nuisance as defined in Section 1 of the Act.
Concerning Appellants' argument that the trial court's reliance upon the Act violated their First Amendment rights, we find this argument meritless. The Superior Court held the Act applicable to adult bookstores in Commonwealth ex rel. Lewis v. Allouwill Realty Corp., 330 Pa.Superior Ct. 32, 478 A.2d 1334 (1984). 3
In Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), the United States Supreme Court held that statutes such as the Act do not offend the First Amendment. In Arcara, a bookstore was closed pursuant to a section of the New York Public Health Law which defined places of prostitution, lewdness and assignation, as public health nuisances. The Court held that the closure statute did not single out bookstores or others engaged in First Amendment protected activities. The closure statute was directed at unlawful conduct (i.e. illicit sexual activity) which had nothing to do with books or other expressive activity, protected under the First Amendment. Further, the Court held that the sexual activity carried on in a bookstore manifests no element of protected expression. "First Amendment values may not be invoked merely by linking the words 'sex' and 'books'." 478 U.S. at 705, 106 S.Ct. at 3176.
Like the New York Public Health Law, in Arcara, Pennsylvania's Act does not single out bookstores for the imposition of its burden. The Act is aimed at any building used for illicit or illegal sexual conduct. That the Appellants' buildings were coincidentally adult bookstores does not excuse the unlawful sexual activity occurring on their premises.
The preliminary injunction here is narrow in scope and aimed at stopping the sexual activity occurring in the video viewing booths and the "California Couch Dancing" area of Appellants' establishments. The status quo is restored, as Appellants' establishments return to being utilized for what is assumed to be their original purpose, as adult bookstores, where Appellants are free to continue selling books, magazines and videos, thereby exercising their First Amendment rights.
Accordingly, we affirm the trial court's grant of preliminary injunction pending a full hearing on the merits.
ORDERAND NOW, this 29th day of April, 1993, the order of the Court of Common...
To continue reading
Request your trial
-
City of Philadelphia v. Beretta U.S.A., Corp.
...on a premises which could lead to the spread of the human immunodeficiency virus (HIV), see Commonwealth ex rel. Preate v. Danny's New Adam & Eve Bookstore, 155 Pa.Cmwlth. 281, 625 A.2d 119 (1993); and the keeping of twenty purebred huskies on a residential street, see Muehlieb v. City of P......
-
In re Juul Labs, Inc., Mktg., Sales Practices, & Prods. Liab. Litig.
...causes ‘any annoyance to the community or harm to public health.’ ") (citation omitted); Com. ex rel. Preate v. Danny's New Adam & Eve Bookstore , 155 Pa. Cmwlth. 281, 285, 625 A.2d 119 (1993) ("One set of circumstances which support a conclusion that an interference with a public right is ......
-
Time Square Books, Inc. v. City of Rochester
...62 Ohio Misc.2d 792, 611 N.E.2d 1016; Commonwealth ex rel. Preate v. Danny's New Adam & Eve Bookstore, 155 Pa.Commw. [223 A.D.2d 274] 281, 625 A.2d 119; Martinez v. State of Texas, 744 S.W.2d 224 [Tex.App.]; Adult Entertainment Ctr. v. Pierce County, 57 Wash.App. 435, 788 P.2d 1102, review ......
-
In re Condemnation by Urban Redevelopment
...Id. at 705 n2, 106 S.Ct. at 3177 n2, 92 L.Ed.2d at 577 n2. This Court applied Arcara in Commonwealth ex rel. Preate v. Danny's New Adam & Eve Bookstore, 155 Pa.Cmwlth. 281, 625 A.2d 119 (1993), which upheld an injunction against video booth and dance area uses of adult stores that were used......