Michigan ex rel. Wayne County Prosecutor v. Dizzy Duck

• Decision Date: 25 July 1995
• Docket Number: Nos. 98804,98805,s. 98804
• Citation: 449 Mich. 353,535 N.W.2d 178
• Parties: MICHIGAN ex rel. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. DIZZY DUCK, Boyce J. Maxwell and Greenfield Eight Restaurant Company, Inc., Defendants-Appellees.
• Court: Michigan Supreme Court

Page 178

535 N.W.2d 178

449 Mich. 353

MICHIGAN ex rel. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. DIZZY DUCK, Boyce J. Maxwell and Greenfield Eight Restaurant

Company, Inc., Defendants-Appellees.

Nos. 98804, 98805.

Supreme Court of Michigan.

July 25, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Andrea Solak, Chief, Sp. Operations, and Larry L. Roberts, Asst. Pros. Atty., for plaintiff.

Carl L. Rubin, for defendants.

Opinion

PER CURIAM.

The Wayne County Prosecuting Attorney sought to have the defendants' business establishment padlocked as a nuisance. Instead, the circuit court issued only an injunction against certain activities. The Court of Appeals affirmed. We vacate the judgments of the circuit court and the Court of Appeals and remand the case to the circuit court for reconsideration.

I

The Court of Appeals provided this account of the facts:

"Dizzy Duck" is an assumed name registered by defendant Greenfield Eight Restaurant Company, Inc. Defendant Boyce J. Maxwell is the incorporator, president, resident agent, and owner-operator. The Dizzy Duck is a small establishment located in Detroit, where patrons pay an entrance fee for admission, which offers adult entertainment, such as nude dancing.

Six police officers gave testimony concerning an undercover investigation and subsequent raid on the Dizzy Duck. Four employees of the Dizzy Duck also testified; three of them were dancers and were granted immunity. There were four activities that were investigated: nude dancing, "lap dancing," the "Fantasy Room," and assignation for prostitution.

Concerning the nude dancing, there was a stage area for individual and group female nude dancing. There was also a plexiglass shower enclosure on stage for "shower dances" where patrons would pay extra to see a dancer shower.

For a fee of $20 for one song, or $30 for two songs, the female employees would perform a "lap dance" for a customer. During these lap dances a dancer would straddle a customer's legs and move herself about the customer's legs and groin area while holding onto either the customer or a pair of handles mounted on the wall. Although some touching of dancers by patrons was observed, an employee hired for security testified that it was a rule that customers were not supposed to "get too friendly" with their hands during lap dances. ¹

The women also solicited to take the men back to the Fantasy Room, which was in a more secluded area of the building. For a fee upwards of $65, customers would be placed in a room opposite one of the dancers, where they could see each other through a plexiglass partition. The women would then dance and sometimes masturbate, while the men watched. The women encouraged the men to masturbate along with them while in the Fantasy Room. ² Evidence technicians found sperm in samples taken from the fantasy room walls and plexiglass partition.

There was also testimony by the police officers that while on the premises the dancers would solicit for acts of prostitution to occur off the premises. One of the dancers also testified that solicitation for prostitution occurred at the Dizzy Duck and she had done so herself. She explained that if the dancers paid their manager enough money, they "could get away with anything," including leaving with a customer. Another employee who was hired for security testified that the rules of the Dizzy Duck prohibited prostitution or solicitation for prostitution. However, there was some evidence that the owner knew about his dancers' soliciting for prostitution because at least one of the dancers made complaints to him about different treatment in letting certain women leave with customers. [State v. Dizzy Duck, 203 Mich.App. 250, 253-255, 511 N.W.2d 907 (1994).]

In light of this evidence, the prosecutor filed a civil action, asking the circuit court to padlock the Dizzy Duck on the ground that it was a nuisance under M.C.L. § 600.3801; M.S.A. § 27A.3801. ³

Following an evidentiary hearing, the circuit court denied the defendants' motion for directed verdict. Later, the court made a finding that assignation had occurred at the Dizzy Duck, and that it was an abatable nuisance. The court also found that lap dancing, when it involved contact between the groin areas of the employee and the customer (even when those areas are clothed) was an abatable nuisance.

However, the circuit court concluded that these activities were not "so pervasive" that it was necessary to padlock the Dizzy Duck. Instead, the court entered an order in which it enjoined:

1. Assignation, or the solicitation for acts of prostitution;

2. Lap dancing, where there is significant direct contact through clothing or otherwise of the female genital area and the male groin area.

Following additional proceedings on the issue whether the defendants were in contempt of that order, the circuit court entered an amended order that enjoined:

1. Assignation, or the solicitation for acts of prostitution;

2. Lap dancing, where there is significant direct contact through clothing or otherwise of the female genital area and the male groin area, and where the main purpose of contact is for masturbation of the male penis. [Emphasis supplied.]

The prosecutor appealed both orders, arguing that the trial court should have defined the nuisance more broadly, and should have padlocked the Dizzy Duck rather than merely enjoining certain activities. The defendants cross appealed, essentially arguing that the circuit court's order was too broad.

Over a vigorous dissent, the Court of Appeals affirmed the orders of the circuit court.

The prosecutor has applied to this Court for leave to appeal.

II

In its opinion, the Court of Appeals considered the meaning of the statutory phrase "lewdness, assignation or prostitution." It appears that all three panel members agreed both that "assignation" means solicitation of acts of prostitution, ⁴ and that assignation was taking place on the premises.

The majority and the dissent were in wide disagreement, however, regarding the meaning of the words "prostitution" and "lewdness." The majority held that prostitution is limited to "the performance of sexual intercourse for hire," meaning penile-vaginal penetration. 203 Mich.App. at 258, 260, 511 N.W.2d 907. Lewdness was defined by the majority as "those sexual acts of a nature similar to sexual intercourse: anal intercourse, fellatio, cunnilingus, and masturbation performed on another where done for hire." 203 Mich.App. at 260, 511 N.W.2d 907.

Thus, the majority "easily" concluded that nude dancing is not prostitution or lewdness. 203 Mich.App. at 257, 511 N.W.2d 907. The majority further held that lap dancing is not prostitution and "does not constitute lewdness unless it is done for the purpose of masturbation." 203 Mich.App. at 260, 511 N.W.2d 907. The fantasy-room activities were said not to be lewdness, since the masturbation "was performed by the customer on himself while watching a dancer. Thus, there was no masturbation performed for hire." 203 Mich.App. at 260, 511 N.W.2d 907.

Regarding whether it was necessary to padlock the Dizzy Duck, the majority said that, "[w]hile abatable activity occurred on the premises of the Dizzy Duck, it is not a bordello." The majority thus found it "eminently reasonable for the trial court to limit its remedy in the first instance to merely enjoining the prohibited conduct rather than closing the establishment." 203 Mich.App. at 261-262, 511 N.W.2d 907.

The dissenting opinion in the Court of Appeals disagreed with the majority's limited definitions of both prostitution and lewdness. The dissent proposed a broad definition of prostitution, stating that "[i]n my view, prostitution is the conduct of all persons, male or female, who engage in sexual activity as a business." 203 Mich.App. at 265, 511 N.W.2d 907. The dissent found it "quite probable that the Legislature that adopted the red light abatement act in 1915 meant the term 'lewdness' to describe that activities of a male involved with a female prostitute," id. at 272, 511 N.W.2d 907, but also cited approvingly more general dictionary definitions of lewdness, id. at 272-273, 511 N.W.2d 907, as grounds for disagreement with the majority's limitation on the reach of that term.

Of more importance to the disposition of the present case, the dissent disagreed with the majority's effort to articulate distinct meanings for the terms "prostitution" and "lewdness," id. at 266, 511 N.W.2d 907, fearing that doing so in the present civil action could impose unforeseen and unwarranted complications in the criminal arena:

[T]he majority's effort to distinguish acts of prostitution from acts of lewdness could result in the unnecessary elevation of the burden of proof in the context of the criminal enforcement of prostitution offenses. Under current practice, the prosecutor need not prove the exact nature of the sexual activities purchased. The majority's construction will permit an objection for failure to allege whether an act of prostitution or an act of lewdness has been committed, and may require further specificity in proof.

We do not need to draw a bright line distinction between the terms "prostitution" and "lewdness" in order to resolve this case. Our former cases have never done so. The terms "prostitution" and "lewdness" certainly historically have had overlapping elements and will continue to do so.

In light of its analysis of the definitions of prostitution and lewdness, as well as the overlap in the reach of those terms, the dissent found that the lap dancing, some of the nude dancing, and the fantasy room activities at the Dizzy Duck were either prostitution or lewdness. The dissent opined that all the lap dancing constituted the performance of an unlawful sexual act for hire and thus fell within a broad definition of prostitution, as well as being lewd conduct. The dissent found the...