State ex rel. Wayne County Prosecuting Attorney v. Dizzy Duck
| Decision Date | 18 January 1994 |
| Docket Number | Docket Nos. 134045,136610 |
| Citation | 511 N.W.2d 907,203 Mich.App. 250 |
| Parties | STATE of Michigan ex rel., WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellant, Cross-Appellee, v. DIZZY DUCK, Boyce J. Maxwell, and Greenfield Eight Restaurant Company, Inc., Defendants-Appellees, Cross-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
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.
Rubin & Rubin by Carl L. Rubin, Southfield, for defendants.
Before HOLBROOK, P.J., and SAWYER and CORRIGAN, JJ.
This action arises out of the Wayne County Prosecutor's complaint to have defendants' establishment declared a nuisance under M.C.L. § 600.3801; M.S.A. § 27A.3801 and the premises padlocked. Although the trial court found that some of the activities at the Dizzy Duck constituted a nuisance, it declined the prosecutor's request to padlock the premises. Instead, the trial court enjoined those activities that it found to constitute a nuisance. The prosecutor now appeals and defendants cross appeal. 1
"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.
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. 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.
The trial court found that lap dancing and assignation for prostitution were occurring at the Dizzy Duck, and that they were abatable nuisances under M.C.L. § 600.3801 et seq.; M.S.A. § 27A.3801 et seq. The trial court entered an order to this effect on September 26, 1990, which ordered the lap dancing and assignation abated. The order also provided for periodic reasonable inspections of the Dizzy Duck by Detroit police officers to ensure compliance. Then, on November 2, 1990, the prosecutor moved that the trial court find defendants in contempt because the lap dancing was continuing at the Dizzy Duck. The trial court denied the contempt motion. However, the trial court went on to clarify its earlier order by including the following language in the prohibition against lap dancing: "and where the main purpose of contact is for masturbation of the male penis." The trial court entered an amended order including the above language.
On appeal, the prosecutor essentially advances two arguments: that the trial court was too narrow in its conclusion of what activities constituted a nuisance under the statute and that the trial court should have closed the Dizzy Duck rather than merely enjoining those activities that constitute a nuisance. We disagree with both those propositions.
We turn first to the question of what conduct is abatable under the statute. M.C.L. § 600.3801; M.S.A. § 27A.3801 declares as nuisances, inter alia, buildings used "for the purpose of lewdness, assignation or prostitution." The trial court found that two activities at the Dizzy Duck come within the statute: soliciting acts of prostitution and lap dancing where "the main purpose of contact is for masturbation of the male penis." The prosecutor argues that all lap dancing, the nude dancing in general, and the Fantasy Room activities are all abatable conduct under the statute. Indeed, the prosecutor seems to suggest that any conduct "designed to commercialize sex" is abatable under the statute. Like the trial court, we disagree.
The question whether nude dancing is abatable is easily answered: it is not. The Supreme Court considered the applicability of the nuisance statute to adult movie theaters in State ex rel. Wayne Co. Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 240 N.W.2d 460 (1976), concluding that it did not. The Court reached the conclusion that the abatement statute applies only to houses of prostitution:
We are in accord with decisions applying these abatement statutes only to houses of prostitution. The meaning of the words "lewdness, assignation or prostitution" is clear in light of the history and purpose of these statutes and that meaning cannot properly be expanded by judicial construction. [Id. at 250, 240 N.W.2d 460.]
We see no meaningful basis to distinguish between live entertainment and film. As Diversified makes clear, the focus is not on whether the entertainment may be judged to be obscene, but whether it constitutes prostitution or related activities. Nude dancing, where there is no contact between the dancer and the customer, simply does not constitute prostitution or a related activity of lewdness or assignation. 2 Accordingly, like the adult films at issue in Diversified, nude dancing is not abatable under the statute. See also State ex rel. Saginaw Prosecuting Attorney v. Bobenal Investments, Inc., 111 Mich.App. 16, 314 N.W.2d 512 (1981) ().
However, the issue whether lap dancing and the Fantasy Room activities constitute prostitution or lewdness may not be disposed of quite as easily. The nuisance abatement statute does not define the meaning of either "prostitution" or "lewdness." The prosecutor urges us to accept a very broad definition of those terms. We do not.
The Random House College Dictionary, Revised Edition (1984), defines "prostitution" as "the act or practice of engaging in sexual intercourse for money." Similarly, Black's Law Dictionary (5th ed.), defines "prostitution" as "performing an act of sexual intercourse for hire, or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire." Corpus Juris Secundum defines it as "the practice of a female offering her body to an indiscriminate intercourse with men," usually for hire. 73 C.J.S., Prostitution and Related Offenses, § 2, p. 250.
This Court did give a somewhat broader definition of prostitution in State ex rel. Macomb Co. Prosecuting Attorney v. Mesk, 123 Mich.App. 111, 333 N.W.2d 184 (1983), concluding that prostitution included "manual stimulation of another person for the payment of money." Id. at 118, 333 N.W.2d 184. In reaching that conclusion, the Mesk Court relied upon a decision of the North Carolina Court of Appeals in State ex rel. Gilchrist v. Hurley, 48 N.C.App. 433, 443, 269 S.E.2d 646 (1980), which defined prostitution to include "vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person's genitals, pubic area, buttocks or breasts." The decision in Mesk notwithstanding, we view that as an overly broad definition of prostitution. Rather, we think the commonly accepted definition is that which was intended: the performance of sexual intercourse for hire. 3
However, our inquiry does not end there. The nuisance abatement statute addresses not just prostitution, but lewdness as well. This definition is somewhat more difficult to reach. As noted in Diversified, supra, 396 Mich. at 250, n. 13, 240 N.W.2d 460, the term "lewdness" has generally been viewed as being broader than the term "prostitution." Nevertheless, as the Supreme Court made clear in both Diversified and in State ex rel. Wayne Co. Prosecuting Attorney v. Levenburg, 406 Mich. 455, 466, 280 N.W.2d 810 (1979), the term "lewdness" must be defined in a manner that is consistent with the rule of noscitur a sociis. 4 Thus,...
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