Com. v. United Food Corp.

Citation374 N.E.2d 1331,374 Mass. 765
Decision Date11 April 1978
CourtUnited States State Supreme Judicial Court of Massachusetts

Morris M. Goldings, Kenneth H. Tatarian, Boston, for defendant.

Timothy P. O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The defendant United Food Corporation (United) operates a business under the name of the Two O'Clock Lounge in a so called adult entertainment area on Washington Street in Boston. United leases premises in which there are three stages on which nude dancing is performed. The premises are owned by each of two other defendants below, who are not appellants. The district attorney for Suffolk County commenced this civil proceeding under G.L. c. 139, §§ 4-13, 19-20, seeking relief against the maintenance of a nuisance, based on an allegation that the premises were used for prostitution.

A judge heard the case in the Superior Court without a jury, concluded that acts of prostitution had occurred on the premises, ruled that the premises were a nuisance within the meaning of G.L. c. 139, § 4, and entered a judgment permanently enjoining the defendants from directly or indirectly maintaining the nuisance on the premises. He further directed the sheriff "forthwith to take possession of these premises and sell the furniture, fixtures, musical instruments and moveable property used in maintaining the nuisance in the manner provided by G.L. c. 139, § 9." 1 The judgment was stayed, on certain conditions, pending United's appeal. We granted the Commonwealth's request for direct appellate review.

United raises a variety of challenges to the judgment. We reject those contentions which challenge the finding that a nuisance (use of the premises for acts of prostitution) existed on the premises, and we uphold the judgment in so far as it enjoins United from maintaining the nuisance. We conclude, however, that the statutory directions that a defendant's movable personal property must be seized and sold and that the premises must be conditionally closed for one year contain a punitive element which is constitutionally improper in an equitable proceeding to abate a nuisance.

1. United contends that the finding that the premises were used for prostitution is unsupported, arguing that neither (a) the solicitation of sexual acts for hire, as opposed to the acts themselves, nor (b) the solicitation of sexual acts other than coitus constitutes prostitution. As a corollary to this contention, United argues that, in its reference to prostitution, the statute is unconstitutionally vague in violation of Federal and State requirements of due process of law. In our recent opinion, in Commonwealth v. King, --- Mass. ---, --- - --- a, 372 N.E.2d 196 (1977), we rejected a claim that the word "prostitution" was unconstitutionally vague and concluded that the indiscriminate solicitation of any sexual act for hire was embraced within the term. We adhere to our recent views, which fully dispose of these aspects of United's appeal. See Commonwealth v. Bucaulis, --- Mass.App. ---, --- - --- b, 373 N.E.2d 221 (1978).

2. United objects to the admission of evidence concerning the reputation of the Two O'Clock Lounge. Section 9 of G.L. c. 139 provides that "(f)or the purpose of proving the existence of the nuisance the general reputation of the place shall be admissible as evidence." Although the general reputation of a place as one where acts of prostitution occur is not itself the offending nuisance, the fact that an establishment has such a general reputation or has quite a different reputation the statute should be treated as evenhanded is one element which may be considered in determining whether a nuisance exists. Chase v. Proprietors of Revere House, 232 Mass. 88, 95, 122 N.E. 162 (1919). 2

In order to assess United's claim that evidence of its general reputation was inadmissible, we must consider the testimony of four witnesses. Edward McNelley, a police officer formerly assigned to the vice control unit of the Boston police department, testified that for two and one-half years from July, 1974, he visited the Two O'Clock Lounge almost every day. When the witness was asked whether he became aware of the general reputation of the premises known as the Two O'Clock Lounge, United objected to a lack of foundation for the question. McNelley then testified that he based his knowledge of the reputation of the Two O'Clock Lounge on his observation of incidents there; on the reputation of employees at the lounge; and on conversations with employees, patrons, undercover police officers, and people who work in and around the adult entertainment area on Washington Street. Over objection, McNelley was permitted to testify that he knew the general reputation of the Two O'Clock Lounge and that its general reputation was that a person could go there and "for a specific price buy a female who would perform certain sexual acts for this individual on the premises."

A detective, who for two years had been assigned to the vice control unit of the Boston police department, testified that he knew of the general reputation of the Two O'Clock Lounge and that he based his knowledge on such contacts in the "combat zone" as conversations with other police officers, with patrons of the lounge, and with people who were knowledgeable from either personal experiences or hearsay. Over objection, he testified that the lounge's general reputation is that it is a place where one can purchase sex for money. Two former patrons of the lounge testified to its general reputation. One, who based his knowledge on "hearsay from people, college friends, and general impression," testified over objection that the lounge had a reputation as a place where "you could have sex with a woman." The other testified, again over objection, that from friends he knew the reputation of the lounge as a place where one could "(g)et what you want as far as sex goes."

United's objections to the admission of this evidence were not well founded. We have already rejected the claim that prostitution is limited to coitus. Thus, testimony concerning the reputation of the lounge as a place where sexual activities were available for a price was material to the issue whether the lounge was used for acts of prostitution.

We agree that evidence of specific events, statements, or opinions may not be used to prove reputation (see Commonwealth v. Belton, 352 Mass. 263, 269, 225 N.E.2d 53, cert. denied, 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153 (1967); F. W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506, 105 N.E. 378 (1914); Commonwealth v. Manning, 2 Mass.App. 838, 839, 311 N.E.2d 92 (1974), rev'd on other grounds, 367 Mass. 605,327 N.E.2d 715 (1975)), but the admitted evidence was not of this kind. The sources for this evidence were numerous and general. The fact that each of the witnesses had direct or indirect knowledge of the performance of specific sexual acts on the premises did not contaminate his testimony as to the lounge's reputation. Nor was testimony as to the present reputation of the lounge rendered inadmissible because a witness's knowledge of the lounge's reputation was of long standing.

The testimony of the police officers was admissible even though cooperating in litigation of this character may be one object of their employment in the vice control unit. Their possible bias went to the weight, not to the admissibility, of their testimony. Their knowledge of the general reputation of the Two O'Clock Lounge was not the product of investigations conducted for the purpose of obtaining such evidence. We have upheld the exclusion of reputation evidence obtained as a result of inquiry by a person not a member of the community. Commonwealth v. Baxter, 267 Mass. 591, 593, 166 N.E. 742 (1929); Commonwealth v. Hunt, 243 Mass. 286, 287, 137 N.E. 268 (1922). See 3 J. Wigmore, Evidence § 692 (Chadbourn rev.1970). The police officers made no special investigations, and were members of the community in which the lounge's reputation would be known.

There was nothing improper in one officer's basing his testimony of the reputation of the lounge in part on his knowledge of the professional proclivities of certain employees of the lounge. The law has long recognized that the reputation for chastity of persons who frequent certain establishments is admissible to prove that the establishment was used for prostitution. Commonwealth v. Rivers, 307 Mass. 225, 226, 29 N.E.2d 683 (1940); Commonwealth v. Kimball, 7 Gray 328, 330 (1856). That evidence was admissible directly to prove the nuisance and was appropriate support for a witness's knowledge of the general reputation of the lounge.

We find no fatal distinction between asking, as the plaintiff did, "Do you know the general reputation" of the lounge and asking, "Have you heard the general reputation of the lounge?" The latter seems preferable (Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948)), but we have not been critical of the former (Commonwealth v. Belton, 352 Mass. 263, 269, 225 N.E.2d 53 (1967); Wetherbee v. Norris, 103 Mass. 565, 566-567 (1870)).

We note, in conclusion, that the general reputation evidence may not have been crucial to the judge's finding of a nuisance because he found alternatively, without reliance on this evidence, that a nuisance existed. However, the admissibility of this evidence bears on United's argument, to which we next turn, that the evidence did not warrant the finding of a nuisance.

3. United challenges the judge's conclusion that the Two O'Clock Lounge constitutes a building used for prostitution and is a nuisance within the meaning of G.L. c. 139, § 4. Because, as we have noted earlier, prostitution includes the offering of any sexual acts for hire, the judge's finding that acts of prostitution occurred...

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