Marsland v. Pang, 9614

• Decision Date: 16 April 1985
• Docket Number: No. 9614,9614
• Citation: 701 P.2d 175,5 Haw.App. 463
• Parties: Charles F. MARSLAND, Jr., in his official capacity as Prosecuting Attorney, City and County of Honolulu, State of Hawaii, Plaintiff-Appellant, v. Albert PANG, Thomas Key, Estrelio Pablo, also known as James Ramos and "Iliong," Alfred Abihai, Andrew Marras, William Silva, also known as "Bolo," Momi Florendo, Mae Galinato, Raymond Yamashita, Geraldine Sanchez, and Harold Viela, Defendants-Appellees, and John Does 1-25, and Jane Does 1-25, Defendants.
• Court: Hawaii Court of Appeals

Page 175

701 P.2d 175

5 Haw.App. 463

Charles F. MARSLAND, Jr., in his official capacity as

Prosecuting Attorney, City and County of Honolulu, State of Hawaii, Plaintiff-Appellant, v. Albert PANG, Thomas Key, Estrelio Pablo, also known as James

Ramos and "Iliong," Alfred Abihai, Andrew Marras, William

Silva, also known as "Bolo," Momi Florendo, Mae Galinato,

Raymond Yamashita, Geraldine Sanchez, and Harold Viela,

Defendants-Appellees,

and

John Does 1-25, and Jane Does 1-25, Defendants.

No. 9614.

Intermediate Court of Appeals of Hawai'i.

April 16, 1985.

As Amended May 15, 1985.

Syllabus by the Court

1. The powers and functions of the prosecuting attorney for the City and County of Honolulu are limited by the Revised Charter of the City and County of Honolulu (Charter) to the prosecution of criminal offenses. The prosecuting attorney is not authorized by law to bring a civil action to abate a nuisance.

2. The person authorized to represent the City and County of Honolulu in legal matters is the corporation counsel.

3. Where a statute or ordinance authorizes an abatement action to be brought by a specific official of the State or City and County in his official capacity or on behalf of the State or City and County of Honolulu, the action must be instituted in the name of that official or the State or City and County.

4. Under Rule 17(a) failure to name the real party in interest in a complaint is not grounds for dismissal, but leave must be granted to allow for ratification by or joinder or substitution of the real party in interest.

5. [5 Haw.App. 464] In appraising the sufficiency of the complaint under Rule 12(b)(6), HRCP, well-pleaded allegations of fact are taken as admitted and the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

6. In weighing the allegations of the complaint as against a motion to dismiss, the court is not required to accept conclusory allegations on the legal effect of the events alleged.

7. A Rule 12(c) motion serves much the same purpose as a Rule 12(b)(6) motion, except that it is made after the pleadings are closed.

8. Under Rule 8(a)(1), HRCP, the complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory or contain allegations from which an inference fairly may be drawn that evidence on those material points will be introduced at trial.

9. At common law courts of equity were without authority or jurisdiction to enjoin criminal acts solely on the basis of their criminality. However, where equity would otherwise have jurisdiction to enjoin certain conduct, the fact that the legislature has made such conduct a crime does not affect that jurisdiction.

10. The historical basis of equity jurisdiction to grant injunctions is the protection of property rights. This principle has been expanded to allow issuance of an injunction, where there are other appropriate circumstances besides injury to a property right. Absent these appropriate circumstances, equity courts nonetheless have authority to enjoin acts constituting a nuisance.

11. A nuisance is defined as that which unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage; anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or physical occupation uncomfortable; and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.

12. A nuisance, to be a public nuisance, must be in a public place, or where the public frequently congregate, or where members of the public are likely to come within the range of its influence; for, if the act or use of property be in a remote and unfrequented locality, it will not, unless malum in se, be a public nuisance. If the nuisance affects a place where the public has a legal right to go, and where the members thereof frequently congregate, or where they are likely to come within its influence, it is a public nuisance.

13. [5 Haw.App. 465] It is not the province of the courts of equity to ordain for themselves the power to abate criminal acts by declaring their repetition or continuance a public nuisance where the legislature has not done so and where the acts do not in fact constitute a public nuisance. Absent a statute or valid ordinance declaring activities in violation of general concepts of public policy to be a nuisance or subject to abatement, equity courts are without jurisdiction to enjoin such activity.

14. To warrant an injunction where the activity is also a crime, there must be proof of what the law denominates a nuisance as distinguished from a mere crime.

15. Since the repeal in 1972 of the Common Nuisance Statute, specifically Hawaii

Revised Statutes (HRS) § 727-14 (1968), Suit to Abate, this jurisdiction has been without a general statutory authority for abatement of the statutory nuisances described therein. Nonetheless, the circuit courts, in equity, may enjoin such activities upon a showing that they in fact do constitute a nuisance

16. Where the complaint alleges that food was being sold at retail on property zoned for agricultural use, that is a sufficient allegation of a zoning violation that may be enjoined under § 21-1.6(d) of the Comprehensive Zoning Code (CZC) of the City and County of Honolulu.

17. Where a complaint alleges a City and County Building Code violation, but the building code does not provide for abatement of the alleged violation by injunction, a court of equity is without jurisdiction to entertain the action and the action is properly dismissed.

18. Under § 16-1.1(4), Revised Ordinances of Honolulu (ROH) (Cum.Supp.1982), the "Building Official" may only bring an action for abatement of an "unsafe building" but before doing so, he must make a finding that the buildings are unsafe, give notice thereof and an order to abate to the owner, and post a [5 Haw.App. 466] notice to that effect on the property. The complaint for injunction is deficient and properly dismissed if it fails to allege that such actions were taken.

19. Neither HRS chapter 321 nor Public Health Regulations, chapter 1A, Food Service and Food Establishment Sanitation Code provide for abatement when food is served without a permit. The penalty provided is criminal in nature.

20. HRS chapter 322 (1976 and Supp.1984) authorizes injunctions against nuisances found by the department of health, but the complaint therefor must allege that the department of health gave notice to the violator to abate the nuisance. Where the complaint does not make such allegation, it is deficient and properly dismissed.

21. HRS §§ 712-1270 to -1280 authorizes abatement, as nuisances, of places of prostitution and displaying indecent matter. Places where gambling and drug offenses may occur are not declared to be nuisances therein. The clear implication of the enactment is that the latter offenses were not intended by the legislature to be covered by that nuisance abatement statute.

22. HRS 603-23 (1976) is a specific grant of power to the circuit courts. It does not confer authorization upon any of the public officers therein enumerated to seek an injunction.

23. Courts should not find that the common law has been superseded in the area mentioned by a statute where it does not appear that such was the legislative purpose.

24. [5 Haw.App. 467] In all cases of statutory construction, the rule in this jurisdiction is that the primary duty of the courts is to ascertain and implement the legislative intent of the statute, and the courts are not limited to the words of the statute.

25. Superseding the common law in the area of nuisance abatement was not the legislative purpose of HRS § 603-23 and the statute is merely declaratory of the common law rule that, where there is a jurisdictional basis for equity to act to protect the private or public rights of our citizens from irreparable harm, the mere fact that the act complained of may also be subject to criminal penalties will not oust that jurisdiction.

26. In the absence of a statute declaring it to be a nuisance, the keeping of a gambling house can only be abated on the complaint of the properly authorized official if it in fact is a nuisance.

27. A public nuisance is created where an act or series of acts produce a common injury or are subversive of public order, decency, or morals, or constitute an obstruction of public rights, or affect the rights enjoyed by citizens, notwithstanding the number, as part of the public. A public right is one common to all members of the general public, and is collective in nature. In determining whether acts or conduct constitute a public nuisance, the location and surroundings are important and are to

be considered with the other circumstances of the case

28. In an action to abate a public nuisance that is also a crime, the statutorily authorized public official is required to allege and prove facts constituting a public nuisance independent of the criminal nature of the activity being conducted. Thus, he or she must allege and prove that where conducted the activities constitute a public nuisance.

Shirley Smith, Deputy Pros. Atty., Dept. of Pros. Atty., Honolulu, for plaintiff-appellant.

Anson O. Rego, Waianae, for defendants-appellees.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

On February 15, 1983, the prosecutor filed a complaint ¹ to enjoin eleven persons from engaging in various criminal activities at eight specified places in the City and County of Honolulu, and for other relief. The lower court dismissed the complaint and the [5 Haw.App. 468] prosecutor appealed. ² We hold that the lower court erred in dismissing that count of the complaint relating to an alleged zoning code violation, but was correct in...