State ex rel. Haas v. Club Recreation and Pleasure

• Decision Date: 20 August 1979
• Docket Number: No. A,A
• Citation: 599 P.2d 1194,41 Or.App. 557
• Parties: The STATE of Oregon ex rel. Harl HAAS, District Attorney for Multnomah County, State of Oregon, Respondent, v. CLUB RECREATION AND PLEASURE, an Oregon nonprofit Corporation, Swan Management Co., an Oregon Corporation, and John R. Tidyman, Appellants. 7802-02280; CA 11302.
• Court: Oregon Court of Appeals

Page 1194

599 P.2d 1194

41 Or.App. 557

The STATE of Oregon ex rel. Harl HAAS, District Attorney for

Multnomah County, State of Oregon, Respondent, v. CLUB RECREATION AND PLEASURE, an Oregon nonprofit

Corporation, Swan Management Co., an Oregon

Corporation, and John R. Tidyman, Appellants.

No. A 7802-02280; CA 11302.

Court of Appeals of Oregon.

Argued and Submitted March 19, 1979.

Decided Aug. 20, 1979.

Marvin S. Nepom, Portland, argued the cause and filed the briefs for appellants.

Frederick Lenzser, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Harl Haas, Multnomah County Dist. Atty., Portland.

Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.

ROBERTS, Judge.

Defendants appeal from an order and decree of the trial court finding that they had maintained a nuisance by establishing, maintaining, using and occupying certain premises for lewdness, assignation and prostitution. Suit was brought by the state pursuant to ORS 465.110 through 465.180 which provide for the abatement of certain nuisances. Defendants raise many challenges to the statutory abatement scheme, several of which merit our discussion here, and challenge the sufficiency of the evidence as to one of the trial court's findings of fact. We affirm.

Defendant Club Recreation and Pleasure operated the subject business which was known as the "Pleasure Palace." Defendant Tidyman purchased the real property involved in this suit by a 1972 contract of sale. On September 7, 1977 he assigned his interest in the subject property to defendant Swan Management Company for $10. The assignment was not recorded.

For membership and program fees, the Pleasure Palace offered programs of nude dancing, reading and saunas to its customers. In September of 1977, after a Portland Police Bureau vice officer had seen a full page magazine advertisement for the Pleasure Palace depicting explicit sexual contact, an undercover police officer visited the establishment. After paying the membership and program fees, he contracted with an individual employe for the performance of a sex act in exchange for money. This scenario was repeated by other police officers on several different dates; in each case the employe was arrested.

The state brought suit to have the premises declared a nuisance and the nuisance enjoined pursuant to ORS 465.110 and 465.120 which provide:

"Whoever establishes or maintains any place used for the purpose of lewdness, assignation or prostitution or any other immoral act, or a place where pregnancies are terminated in violation of ORS 435.415, 435.425 and 435.455 is guilty of maintaining a nuisance. The place where such lewdness, assignation or termination of pregnancies is conducted or carried on and the contents of such premises are declared a nuisance and shall be enjoined and abated as provided in ORS 465.120 to 465.180." ORS 465.110.

"Whenever a nuisance exists under ORS 465.110, the district attorney shall or any taxpayer of the county may maintain a suit in equity in the name of the state to perpetually enjoin such nuisance, the persons conducting or maintaining the same, and the owner, lessee or agent of the building or ground upon which the nuisance exists." ORS 465.120.

Defendants filed a demurrer raising, Inter alia, a variety of constitutional challenges to the civil nuisance abatement statutes. The demurrer was overruled. After a trial to the court, the trial judge held that defendant Club Recreation and Pleasure had established, maintained, used and occupied the premises for lewdness, assignation and prostitution, that defendant Swan Management Company was lessee of the premises, that defendant Tidyman owned the premises, and that the activities complained of constituted a public nuisance. The land and the buildings were ordered "permanently enjoined as a place in or on which to conduct" the nuisance complained of and each of the defendants was permanently enjoined and restrained from conducting, maintaining, using or occupying, or permitting the use or occupancy of the premises or any premises in Multnomah County for prostitution. ¹ The building was ordered closed for any use for one year and the contents and movable property in the building were ordered removed and sold. ORS 465.150. ²

I

Citing Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977), defendants first contend that although ORS 465.110 is a civil statute, its purpose and effect is to control criminal activities and impose criminal sanctions without providing constitutional safeguards afforded criminal defendants such as the rights to a jury trial and to have guilt proved beyond a reasonable doubt. Defendants point out that maintaining a place of prostitution is punishable as a crime, ORS 167.012, ³ and argue that by using the civil statute, the state is denying the defendants the rights they would have had if prosecuted under the criminal statute.

In Brown the Supreme Court was called upon to decide whether the legislature had successfully decriminalized the first offense of driving under the influence of intoxicants by calling it a "traffic infraction" rather than a "traffic crime." The court in Brown noted that the offense involved arrest, detention, a possible fine of up to $1000 and entry of conviction upon the defendant's driving record, as well as collateral consequences such as suspension of the driver's license, imprisonment for non-payment of the fine and elevation of any subsequent DUII charge within five years to a traffic crime.

In the abatement proceeding before us there is no possibility of incarceration. The Brown court noted that this factor alone would not decide whether or not a proceeding was criminal or civil in nature, but stressed its importance among the factors to be examined.

The abatement scheme does not provide for a fine, ⁴ nor does it require anything to be entered on a criminal record. At most, a defendant will pay the costs for the sale and removal of personal property used in conducting the nuisance, ORS 465.150(c)(3), or, if he chooses and the judge is satisfied as to his good faith, he will secure a bond allowing him to keep the premises open during the year they would have been closed upon condition that the nuisance not be reinstated. ORS 465.180. ⁵

The Court of Appeals of Tennessee in analyzing a similar statute concluded

"The statute imposes no penalty upon the owner, nor does it act retrospectively, its whole purpose is prospective, having for its sole object and aim, the prevention, by injunction, of a continuation of the illegal use of the property. * * *" State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 86 (WD Tenn.App.1975).

The Court of Appeals of New York came to a like conclusion in examining its statute which, like ours, provides for closing the premises for all purposes for one year unless a bond is posted.

" * * * The provision that the court shall direct the effectual closing of the building for a year is not a forfeiture nor a penalty. It is imposed not because the owner of the premises has committed an offense, but because under his ownership a nuisance has been created by a person suffered to occupy the premises. It constitutes an appropriate means of definitely and completely ending the nuisance. Its character is established by the provision that, if the owner, by filing a bond in the value of the property, gives assurance that 'he will immediately abate said nuisance and prevent the same from being established, or kept therein within a period of one year' (§ 343-v), the court may, when satisfied of the good faith of the owner, cancel the order of abatement." People ex rel. Lemon v. Elmore, 256 N.Y. 489, 177 N.E. 14, 16 (1931).

We similarly conclude that rather than circumventing the criminal statute, the civil abatement statute serves an entirely different purpose, I. e. that of providing prospective equitable relief from continuation of the nuisance. See Annot., 75 A.L.R. 1298 (1931).

II

Defendants next contend that the abatement proceedings authorized by ORS chapter 465 are confiscatory in nature and as such amount to a taking of defendants' property without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. ORS 465.150 (See n. 1) provides that if existence of a nuisance is established, an abatement order shall be entered as part of the judgment and shall direct that the premises be closed for all purposes for one year, unless sooner released, and that personal property used in maintaining the nuisance be sold.

The owner of the real or personal property can seek cancellation of the order upon a showing "that with reasonable care and diligence he could not have known of the illegal use." ORS 465.155. Even where the owner was aware of the illegal conduct, he can request that the property be released to him upon the payment of costs and the filing of a bond to secure that the nuisance not be reinstated. ORS 465.180. Where personal property is sold, the proceeds, less costs, are recoverable by the owner. ORS 465.170.

While the owner may be temporarily deprived of the use of the real property and will permanently lose the use of personal property used for conducting the nuisance, the state has a valid interest in prohibiting the illegal use of property and the above-listed safeguards prevent the deprivation from amounting to an unconstitutional taking. Accord, People ex rel. Difinis v. Futia, 65 Ill.App.3d 1027, 22 Ill.Dec. 955, 383 N.E.2d 763 (1978); The People v. Smith, 275 Ill. 256, 114 N.E. 31 (1916); Pompano Horse Club et al. v. State of Florida, 93 Fla. 415, 111 So. 801, 807, 52 A.L.R. 51 (1927).

III

Defendants further contend that ORS 465.155 unconstitutionally shifts the burden of proof to the defendant. ORS 465.155 provides that the owner of any real or personal property closed or restrained by an abatement order pursuant to ORS 465.150 may

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