State ex rel. Cahalan v. Weitzman

• Decision Date: 06 February 1970
• Docket Number: No. 1,Docket No. 7381,1
• Citation: 176 N.W.2d 463,21 Mich.App. 705
• Parties: STATE of Michigan, ex rel. William L. CAHALAN, Prosecuting Attorney for Wayne County, Plaintiff-Appellee, v. Harry WEITZMAN and Edward N. Lee, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 463

176 N.W.2d 463

21 Mich.App. 705

STATE of Michigan, ex rel. William L. CAHALAN, Prosecuting Attorney for Wayne County, Plaintiff-Appellee, v. Harry WEITZMAN and Edward N. Lee, Defendants-Appellants.

Docket No. 7381.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Abba I. Friedman, Hyman, Gurwin, Nachman, Friedman & Weingarden, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Dominick R. Carnovale, Chief, Appellate Div., Wayne County, Jay Nolan and Angelo A. Pentolino, Asst. Pros. Attys., Wayne County, Detroit, for plaintiff-appellee.

Before FITZGERALD, P.J., and V. J. BRENNAN and McGREGOR, JJ.

McGREGOR, Judge.

Defendant Weitzman is the owner and operator of the Roxy bar on Woodward Avenue, immediately north of the downtown area in Detroit; defendant Lee is the lessor of the premises. On March 18, 1969, plaintiff filed a complaint in Wayne county circuit court, alleging that the premises were used for the purposes of lewdness, assignation and prostitution, and that the premises were used by prostitutes. ¹ Plaintiff requested a permanent injunction to abate the alleged nuisance and further requested that the bar be padlocked shut for one year.

Defendant Weitzman answered, among other things, that neither he nor his employees permitted or condoned the activities described in the complaint. There was no attempted showing to the contrary by the plaintiff.

At a hearing on May 1, 1969, plaintiff's proof consisted of the testimony of two Detroit police officers, both of whom testified that they had visited the bar and had been solicited by female patrons of the bar. One of the officers testified that he was approached by a male patron of the bar who offered to arrange a meeting with a woman. Both officers also testified that the bar had a reputation as a place to pick up prostitutes, but there was no showing that the defendant owners or their employees had any knowledge of the specific acts alleged or any similar acts. One police officer testified that the whole area was permeated with prostitutes and 'Murphy men', that in a number of other nearby bars the same condition prevails, and that the area in general is a kind of slum.

The court found the bar to be a statutory nuisance and ordered it to be padlocked shut for 6 months, permitting its re-opening after 6 months upon posting of a $10,000 bond, conditioned upon not permitting or suffering the premises to be used for prostitution or by prostitutes. Defendants and any subsequent owner or lessee were also perpetually enjoined from allowing the above acts to take place. From this adverse ruling, defendant Weitzman appeals.

We note at the outset that this action is one based in equity, and on appeal, we hear the case de novo. Our Michigan Supreme Court said, in People ex rel. Allegan Prosecuting Attorney v. Harding (1955), 343 Mich. 41, 72 N.W.2d 33, that when an appellate court reviews a chancery case de novo on the record, it has a duty to reach an independent conclusion, aided but not controlled by the conclusions of the trial judge, who had the advantage of seeing and hearing the witnesses.

Our analysis begins with a review of the apparently undisputed evidence presented at trial. In this case, the court notes that the complaint, alleging this establishment a nuisance, was filed on March 18, 1969; evidence is presented concerning the period of thirty days immediately prior to the filing of the complaint, regarding only one act involving lewdness, assignation, or prostitution. (In order to acquire jurisdiction under the statute, at least one act is necessary to have occurred within 30 days prior to the filing of the complaint.) Although we are not precluded from considering other acts occurring prior to this crucial 30-day period, those prior acts cannot be considered as persuasive in our deliberations as those occurring within the statutory period. The Michigan Supreme Court, when contemplating an action to close an entire apartment house for alleged prostitution, but presented with evidence which showed only one apartment being involved in prostitution within this 30-day period, said:

'Two purposes appear, one saving jurisdiction, in case of voluntary abatement during suit, and the other authorizing restraint, even in case of voluntary abatement within thirty days before suit. Under the statute continuity of nuisance necessarily relates to the place of its existence and a nuisance at one place, within thirty days of suit, does not give jurisdiction to impose restraint upon legitimate use of other places in which no nuisance existed within thirty days of suit.' State ex rel. Attorney General v. Robinson (1930), 250 Mich. 99, 102, 229 N.W. 403, 404.

We must not ascertain the exact number of illegal acts which must occur to constitute a nuisance, but only suggest that if, in fact, proof of knowledge is unnecessary, then the amount and number of violations obviously has a participating effect upon the equitable determination of the matter.

A cocktail lounge is not a nuisance, per se; neither is it denounced by statute. Although the plaintiff alleges that this place was used for the purposes of lewdness, assignation, and/or prostitution, these allegations cannot change the basic character of this establishment. The Roxy Bar is not a house of prostitution in the customary sense, but a duly licensed place to sell liquor. In this instance, the complained-of acts involved what is known as accosting and soliciting. These acts were conducted in a covert and clandestine manner, detection of which was extremely difficult if not...