State ex rel. Macomb County Prosecuting Attorney v. Mesk

• Decision Date: 06 May 1983
• Docket Number: Docket No. 57712
• Citation: 333 N.W.2d 184,123 Mich.App. 111
• Parties: STATE ex rel., MACOMB COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. H.C. MESK, believed to be known as Helen C. Mesk, and S.M.R. Corporation d/b/a Gordon Studios, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 184

333 N.W.2d 184

123 Mich.App. 111

STATE ex rel., MACOMB COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. H.C. MESK, believed to be known as Helen C. Mesk, and S.M.R Corporation d/b/a Gordon Studios, Defendants-Appellants.

Docket No. 57712.

Court of Appeals of Michigan.

Submitted Oct. 6, 1982.

Decided Feb. 9, 1983.

Rehearing Denied March 16, 1983.

Released for Publication May 6, 1983.

George N. Parris, Pros. Atty., and Thomas Landoy, William A. Harding, and Michael F. Macherzak, Asst. Pros. Atty., for plaintiff-appellee.

Gregory Fisher Lord, Southfield, and Robert H. Roether, Bloomfield Hills, for defendants-appellants.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.

DANHOF, Chief Judge.

Plaintiff commenced this action on March 24, 1980, and alleged that the Art Studio located on Van Dyke Road in the City of Warren was a nuisance pursuant to M.C.L. Sec. 600.3801; M.S.A. Sec. 27A.3801, in that it was being used "for the purpose of assignation or prostitution, or, for the use of prostitutes". After a bench trial which was commenced on December 16, 1980, the trial court entered an order enjoining defendants from operating the premises for those purposes and ordered the building closed for a period of one year. Defendants appeal as of right.

The Art Studio was a massage parlor operated by Art Studios, Inc., which leased the building from defendant S.M.R. Corporation. S.M.R. leased the building from Michigan Diversified Business Services, Inc., which in turn leased it from defendant H.C. Mesk, the owner of the property. The complaint alleged that on February 27, 1980, the Art Studio was visited by an undercover police officer who was employed by the Warren Police Department. After requesting a massage and selecting a "model", the officer was led to a room where he was instructed to disrobe and lie on the massage table. The model, who was nude from the waist up, was questioned by the officer concerning the availability of sexual services. She responded by stating that she would engage in fellatio or perform manual stimulation for the payment of a specified sum. After the officer paid the woman the agreed upon amount, and after she began preparations to perform the sexual act, the officer identified himself as a police officer and placed her under arrest.

At trial, over defense counsel's objections, plaintiff was permitted to introduce evidence concerning similar incidents which took place at the Art Studio between different undercover police officers and other models on July 25, 1980, November 11, 1980, and November 29, 1980. ¹

On appeal, defendants make numerous assignments of error, none of which require reversal. Defendants first claim that the Legislature's failure to define the term "prostitution" violates due process in that it failed to put them on notice that the performance of manual stimulation for the payment of money is prohibited by the statute. The public nuisance abatement statute, M.C.L. Sec. 600.3801; M.S.A. Sec. 27A.3801 provides:

"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, storing, possessing, transporting, sale, keeping for sale, giving away, bartering, furnishing or otherwise disposing of any narcotic and/or hypnotic drug as defined by law or of any vinous, malt, brewed, fermented, spiritous or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is hereby declared a nuisance and the furniture, fixtures and contents of any such building, vehicle, boat, aircraft, or place and all such intoxicating liquors therein are also declared a nuisance, and all such narcotic and/or hypnotic drugs and nuisances shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employe who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance."

In order to satisfy due process requirements with respect to vagueness, a penal statute must give a person of average intelligence fair notice that his conduct is forbidden. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953). Although it does not appear that the term prostitution, as used in the statute, has heretofore been defined by a panel of this Court, we have little difficulty in concluding that the complained-of acts are included within the proscriptions of the statute and that defendants were afforded fair notice of the same.

In State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 240 N.W.2d 460 (1976), the Supreme Court ruled that motion picture theaters which show obscene films may not be enjoined under the abatement statute. In the opinion, the Court stated that the meaning of the terms lewdness, assignation and prostitution, as used in the abatement statute, "is clear". See also Morgan v. Detroit, 389 F.Supp. 922, 929 (E.D.Mich., 1975); Detroit v. Recorder's Court Judge, 104 Mich.App. 214, 235, 304 N.W.2d 829 (1981). Although the Court did not expressly define the terms, it noted that its decision was in accord with the decisions of other jurisdictions which involved similar legislation and it quoted from an Illinois Court of Appeals decision, Chicago v. Geraci, 30 Ill.App.3d 699, 703, 332 N.E.2d 487 (1975), wherein the Court defined the terms as follows:

" 'However, we find no confusion in the meaning of these terms. Although traditionally the term "lewdness" is viewed as being broader than and including the term "prostitution," ( People v Lackaye, 348 Ill App 542; 109 NE2d 390 [1952]; opinion adopted by Illinois Supreme Court, 1 Ill 2d 618; 116 NE2d 359 [1953].) such terms refer to the same general class of activities which are normally associated with houses of prostitution (or whatever such establishments may be called). They are intended to designate and prohibit sex acts of whatever nature which are performed for money.' (Emphasis supplied.)' " 396 Mich. 250, fn. 13, 240 N.W.2d 460.

In a subsequent decision, the Illinois Supreme Court, in construing an abatement act similar to ours, rejected a claim by defendant that the term "prostitution" did not include acts involving manual stimulation:

"The defendants contend that in order to be considered a violation of the ordinance, and therefore a public nuisance, their conduct must constitute an act of 'prostitution.' They argue, too, that the city council, in enacting the ordinance, intended that 'prostitution' be defined, as in the Criminal Code of 1963 (Ill Rev Stat 1975, ch 38, par 11-14), to include only acts of sexual intercourse and deviate sexual conduct. We do not agree that such a narrow definition of 'prostitution' was intended by the city council; nor is such an interpretation constitutionally required.

"The activities of a house of prostitution involve commercial sexual acts of every sort. Clearly, a masturbatory massage parlor is engaged in commercial acts of sexual gratification involving the sex organs of one person and the hand of another." Chicago v. Cecola, 75 Ill.2d 423, 427-428, 389 N.E.2d 526 (1979).

In State ex rel. Gilchrist v. Hurley, 48 N.C.App. 433, 443, 269 S.E.2d 646 (1980), a North Carolina Appellate Court stated the following in rejecting defendant's claim that North Carolina's red light abatement act was unconstitutionally vague:

"[R]eference to the criminal code--i.e., NCGS Sec. 14-203--is not required to understand what the term 'prostitution' means or, in our opinion, what conduct is encompassed within its meaning. We are not inadvertent--and we doubt that few are--to the activity's common, if not accurate, reputation as 'the world's oldest profession.' The term is precise on its face and gives fair notice of what is forbidden. Accord, Morgan v. Detroit, 389 F.Supp. 922 (E.D.Mich., 1975). We decline defendants' invitation to interpret the term so narrowly as to exclude the conduct charged in this record. We hold that prostitution plainly includes the offering or receiving of the body, in return for a fee, for acts of vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person's genitals, pubic area, buttocks or breasts. We hasten to add that our cataloguing of these acts of sexual behavior is not intended to exclude other acts of sexual conduct offered or received for pay." But see contra, State ex rel. Clemens v. Toneca, Inc, 265 N.W.2d 909 (Iowa, 1978).

Although we find it unnecessary to decide whether the term prostitution, as used in our abatement statute, should be defined as broadly as the term was defined by the North Carolina Court, we are convinced that the term does include manual stimulation of another person for the payment of money and that persons of average intelligence were provided with fair notice that the statute proscribed such conduct.

Defendant next complains that the activity involved was consensual activity between adults and that the proscriptions contained in the abatement statute constitute an unwarranted invasion into their constitutionally protected right of privacy.

Although the right of privacy is not expressly provided for in the United States Constitution, such a right has been recognized as arising out of the Fourteenth Amendment's ² concept of personal liberty. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Although the limits of this right have never been expressly defined, it is clear that the right extends to the right of persons to make certain decisions concerning marriage, procreation and child rearing. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Loving v....