People ex rel. Arcara v. Cloud Books, Inc.

• Decision Date: 13 June 1985
• Citation: 480 N.E.2d 1089,491 N.Y.S.2d 307,65 N.Y.2d 324
• Parties: , 480 N.E.2d 1089, 54 USLW 2018 The PEOPLE of the State of New York ex rel. Richard J. ARCARA, as District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., Doing Business as Village Book and News Store, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 307

491 N.Y.S.2d 307

65 N.Y.2d 324, 480 N.E.2d 1089, 54 USLW 2018

The PEOPLE of the State of New York ex rel. Richard J ARCARA, as District Attorney of Erie County, Respondent, v. CLOUD BOOKS, INC., Doing Business as Village Book and News Store, Appellant, et al., Defendants.

Court of Appeals of New York.

June 13, 1985.

Paul J. Cambria, Jr., and Mary Good, Buffalo, for appellant.

Richard J. Arcara, Dist. Atty., Buffalo (John J. DeFranks, Louis A. Haremski and Jo W. Faber, Buffalo, of counsel), respondent pro se.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Plaintiff, the District Attorney of Erie County, has brought this action under Public Health Law, article 23, title II to permanently enjoin any conduct constituting lewdness, assignation or prostitution at a bookstore operated by defendant, Cloud Books, Inc., and to obtain an order of abatement which would close the premises for one year. The issues on this appeal are whether the statute under which the District Attorney proceeds applies to the type of business run by Cloud Books, and if so, whether the mandatory closure provision of the statute, on these facts, would be an impermissible prior restraint.

I.

Defendant, Cloud Books, Inc., operates a bookstore, The Village Books and News, on premises which it leases in the Village of Kenmore. ¹ The store sells books and magazines of a sexually frank nature and contains several coin-operated movie machines showing sexually explicit material. There are no specific allegations in this action that any of these items are obscene.

In September 1982, as part of an investigation initiated by the Erie County District Attorney, a deputy sheriff, working undercover, made several visits to the bookstore. In an affidavit recounting his visits, the officer specified various lewd and illegal acts he had witnessed. Based on this information, the District Attorney commenced the present action on behalf of the People seeking to enjoin the illicit conduct and to close the premises. The verified complaint alleges that the deputy sheriff observed sexual activity by patrons of the store, including four acts of masturbation and one act of fellatio, and was himself solicited for sexual conduct for a fee by persons on the premises on several occasions. The District Attorney also alleges that defendant was aware of these activities and permitted them to occur as long as the persons involved also spent some money on the books, magazines or movie machines in the store.

The complaint sets forth two causes of action. The first cause of action, sounding in common-law nuisance, was dismissed by Special Term and is not at issue on this appeal. The second cause of action is based on Public Health Law, article 23, title II, entitled "Houses of Prostitution: Injunction and Abatement". Title II allows a District Attorney to bring an action to permanent enjoin conduct constituting a nuisance, as defined in Public Health Law § 2320, which provides:

"1. Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, or prostitution is guilty of maintaining a nuisance.

"2. The building, erection, or place, or the ground itself, in or upon which any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance, are hereby declared to be a nuisance and shall be enjoined and abated as hereafter provided."

Sections 2321-2328 set forth the procedure to be followed for the trial of an action for a permanent injunction, the scope of such an injunction, and the penalties for violating it. Section 2329 provides that where a nuisance, as defined in section 2320, is established, the final judgment must include an order of abatement, which "shall direct" the removal and sale of all fixtures or movable property used in conducting the nuisance and "shall direct the effectual closing of the [premises] against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released as hereinafter provided." Section 2332 provides that a court may cancel an order of abatement if the owner of the premises pays all the costs of the proceeding and files a bond for the full value of the property.

The complaint alleges that defendant has been "maintaining, using and occupying" the premises in question as well as the "furniture, fixtures and personal property contained therein" "for the purpose of lewdness, assignation and prostitution". The relief sought includes the permanent injunction and order of abatement provided for by statute. ²

Defendant moved for partial summary judgment on the statutory cause of action, arguing that title II was intended to cover only houses of prostitution, and thus was inapplicable to a store selling books and magazines, and that the relief requested, in particular the order of abatement, would in any event constitute a prior restraint prohibited by the First Amendment to the United States Constitution and N.Y. Constitution, article I, § 8. Though defendant's verified answer denies the allegations of sexual activity in the bookstore and states that even if any such activity did occur, it was not authorized or condoned by its employees, for purposes of this motion it admits the truth of these allegations.

Special Term denied the defendant's motion for summary judgment, holding that title II could apply to a bookstore if there was a factual finding that the premises were "used for the purpose of lewdness, assignation, or prostitution", and that none of the relief requested would work an impermissible prior restraint. The Appellate Division affirmed, holding that the statute could be applied whenever the plaintiff established "a consistent pattern of conduct sufficient to prove that the premises are being employed for a proscribed use" (101 A.D.2d 163, 168, 475 N.Y.S.2d 173), and rejecting defendant's constitutional argument. ³ That court then granted defendant' motion for leave to appeal to us, and, pursuant to CPLR 5713, certified the following questions:

"(1) Whether Title II, Article 23 of Public Health Law is applicable to enjoin nuisance occurring on premises other than a house of prostitution?

"(2) Do statute's mandatory closure provisions constitute an impermissible prior restraint?" ⁴

II.

The first version of what is now title II was enacted in 1914 as Public Health Law article 17-A, and was entitled "Suppression of Certain Nuisances" (L.1914, ch. 365, § 1). The 1914 statute provided for only injunctive relief, and was aimed at any building in which "assignation or prostitution" was conducted. In 1927, the Legislature, apparently not content with the effectiveness of the 1914 statute, repealed that version and enacted a statute (tit. 17-A) which covered any building used for "lewdness, assignation or prostitution" and provided for an order of abatement (see, L.1927, ch. 670). The present version of title II is essentially a reenactment of the 1927 statute, and there has been no change with respect to its applicability (see, L.1953, ch. 879). New York was not alone in passing a "nuisance abatement" statute in the early 20th century, as statutes virtually identical to the 1927 act were enacted in numerous States, all modeled after a 1909 Iowa law (see generally, State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 246-250, 240 N.W.2d 460, 461-462).

Defendant's first argument with respect to the scope of title II is that it applies only to places which are houses of prostitution, as that term is commonly known. Defendant bases this argument on the title of title II ("Houses of Prostitution: Injunction and Abatement") and the titles of the individual sections ("Houses of Prostitution * * * "), on parts of the legislative history of the 1927 act which reveal a concern for such places, and on language in several decisions from other States suggesting this limited scope. None of these contentions is persuasive. While the title of a statute might in some cases aid in its interpretation, it is the language of the actual statutory provisions which determines the meaning of the act. (See, e.g., Squadrito v. Griebsch, 1 N.Y.2d 471, 475, 154 N.Y.S.2d 37, 136 N.E.2d 504.) Here, section 2320, by its terms, covers any building used for the purpose of lewdness, assignation or prostitution as well as a building in which any such conduct occurs, and is thus unambiguously broader in reach than its title would suggest. ⁵

Defendant's reliance on the legislative history of the 1927 act is unavailing. While it is clear that the Legislature intended that the statute could be utilized to shut down houses of prostitution, there is no indication that it intended that its application be restricted to that function. Rather, at the time of concern about the spread of "red light districts" and "commercialized vice," the Legislature in 1927, as noted above, actually broadened the reach of the statute. Thus, there is no legislative intent which would override the plain meaning of section 2320. While decisions from other States interpreting virtually identical statutory provisions are instructive, the weight of such authority does not support defendant's argument. In most of the cases on which defendant relies (see, State ex rel. Clemens v. Toneca, Inc., 265 N.W.2d 909 [Iowa]; State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 240 N.W.2d 460, supra; State ex rel. English v. Fanning, 97 Neb. 224, 149 N.W. 413; State ex rel. Carroll v. Gatter, 43 Wash.2d 153, 260 P.2d 360), the courts held only that the nuisance abatement statute did not apply either because none of the acts cited by the plaintiffs was within the conduct proscribed by the statute or because there had been no evidence to show that the...