State v. B Bar Enterprises, Inc.

• Decision Date: 28 July 1982
• Docket Number: No. 15847,15847
• Citation: 133 Ariz. 99,649 P.2d 978
• Parties: STATE of Arizona, Plaintiff-Appellee, v. B BAR ENTERPRISES, INC., an Arizona corporation; Bobby D. Buckner, husband of June Buckner, dealing with his sole and separate property; and Gerolf D. Becker and Paulette C. Becker, husband and wife, Defendants-Appellants.
• Court: Arizona Supreme Court

Page 978

649 P.2d 978

133 Ariz. 99

STATE of Arizona, Plaintiff-Appellee, v. B BAR ENTERPRISES, INC., an Arizona corporation; Bobby D. Buckner, husband of June Buckner, dealing with his sole and separate property; and Gerolf D. Becker and Paulette C. Becker, husband and wife, Defendants-Appellants.

No. 15847.

Supreme Court of Arizona, In Banc.

July 28, 1982.

Charles F. Hyder, Former Maricopa County Atty., Thomas E. Collins, Maricopa County Atty., Philip Messinger, Deputy County Atty., Phoenix, for plaintiff-appellee

Steven H. Schneider, Phoenix, for defendants-appellants.

GORDON, Vice Chief Justice:

This case arose under A.R.S. §§ 12-801 et seq., the Bawdy House Abatement Act. Appellants challenge the constitutionality of that act. Taking jurisdiction under Ariz.Const.Art. 6, § 5(3) and Ariz.R.Civ.App.P. 19(e), we affirm the trial court's denial of appellants' motion to dismiss.

Appellants operated "massage parlors" in Maricopa County. Customers would pay a woman working at the parlor for a massage. The woman would tell the customer that most of the fee would go to the parlor operator and that she worked primarily for "tips." After a brief massage, the woman would ask if there was anything else she could do. If the customer replied affirmatively, a negotiation would ensue over what specific sexual act the woman would perform for what price. When the customer "tipped" the woman the agreed-upon price, she would perform the sexual act.

A.R.S. § 12-802 declares that every building used as a place of prostitution, assignation, or lewdness is a nuisance which shall be abated pursuant to the Bawdy House Abatement Act. ¹ The county attorney, pursuant to the authority of A.R.S. § 12-803, filed a civil complaint alleging Following the county attorney's reply and oral argument, the trial court denied appellants' motion. Thereafter, the parties entered into a stipulation enjoining the use of the subject buildings for prostitution but reserving appellants' right to appeal the constitutionality of the Bawdy House Abatement Act. We consider each challenge below.

that appellants' massage parlors were buildings being used for the purpose of prostitution. Appellants answered and moved to dismiss the complaint on the ground that the act is unconstitutional. Appellants alleged that the act unconstitutionally invaded their right to privacy and denied them procedural and substantive due process.

RIGHT TO PRIVACY

Appellants first claim that all citizens, including prostitutes, possess a fundamental right to sexual privacy. ² They argue that to infringe on this right, the state must show that the challenged statutes are necessary to promote a compelling state interest.

The right to sexual privacy "exists within the context of the intimate sexual relations between consenting adults in private." State v. Bateman, 113 Ariz. 107, 110, 547 P.2d 6, 9 (emphasis added), cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1976). The sexual acts in the instant case did not occur in private. The massage parlors were open to the public and were outside the zone of the sexual privacy right. Compare Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (the right to privacy prevents the government from intruding on a person's possession in the home of obscene materials for use solely within the home) with Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (the government may prohibit the use of obscene materials in a public building even if they are seen only by consenting adults who voluntarily pay admission to an enclosed theatre). Appellants' acts were not private; rather, they were public and subject to the state's regulation in this particular case regardless of the existence vel non of a compelling state interest.

PROCEDURAL DUE PROCESS

The Fourteenth Amendment to the United States Constitution provides that no state may "deprive any person of life, liberty, or property, without due process of law." Appellants claim that the Bawdy House Abatement Act deprives them of procedural due process by allowing: (1) the closing of alleged nuisances before the owners are given notice and an opportunity to be heard; and (2) the use of reputation evidence to prove a nuisance.

A.R.S. § 12-804 allows the trial court to issue a temporary restraining order enjoining the operation of a bawdy house if the county attorney's complaint or affidavit demonstrates the existence of a nuisance to the court's satisfaction. Although not stated in A.R.S. § 12-804, such a restraining order is subject to Ariz.R.Civ.P. 65(d), which, inter alia, permits restraining orders issued ex parte to exist only for a short time and requires expeditious hearings after notice to both parties.

In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the United States Supreme Court held that the Florida and Pennsylvania replevin statutes violated the procedural due process right to notice and a hearing before depriving a person of possessions. In Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court noted that Fuentes dealt with a situation where repossession of goods was permitted without notice or hearing, on the basis of bare conclusionary claims, and without judicial authorization. The Mitchell Court held that Louisiana's sequestration statute did not violate procedural due process as interpreted in Fuentes because the Louisiana ex parte order could issue only after a court was convinced that relief clearly appeared proper from the specific facts alleged and the defendant was entitled to an expeditious hearing.

The temporary restraining order authorized by A.R.S. § 12-804 and Ariz.R.Civ.P. 65(d) is controlled by Mitchell rather than Fuentes. A nuisance under the statute must be shown from facts alleged in the complaint or affidavit, only a court can issue the temporary restraining order, the order is of limited duration, and the restrained party can obtain an expeditious hearing. ³ Neither A.R.S. § 12-804 nor Ariz.R.Civ.P. 65(d) is inconsistent with due process. ⁴

Appellants also argue that A.R.S. § 12-805(B) is unconstitutional. The statute states that "evidence of the general reputation of the building or place (that is the subject of the abatement action) shall be admissible for the purpose of proving existence of the nuisance." Appellants argue that the statute contravenes due process because it would allow proof of the entire case against them to be based solely on reputation evidence.

A.R.S. § 12-805(B) is silent as to the evidentiary weight to be given to the building's reputation. The statute provides only that the building's reputation is admissible to prove that the building is a nuisance. This Court has never held that evidence of the building's reputation alone is sufficient to prove a nuisance, and we need not reach that issue here (although we have serious reservations about the constitutionality of a case proved by only reputation evidence). No trial took place in the instant case because appellants entered into a stipulation to abate operation of the massage parlors. There is no suggestion in the record that the reputation of the parlors would have been the sole evidence admitted to prove that appellants' buildings were being used as places of prostitution. On the record before us, A.R.S. § 12-805(B) does not operate to deny appellants procedural due process.

SUBSTANTIVE DUE PROCESS

Appellants also attack the Bawdy House Abatement Act on substantive due process grounds. They argue that A.R.S. § 12-802 is overbroad because its proscription of buildings where "acts of lewdness" occur could apply to all sexual activity and to private homes. If read this broadly, the statute could be used to declare a private home a nuisance merely because the married couple living there engaged in procreation.

Appellants impliedly admit that the facts of the instant case do not fit within the scenario described above. ⁵ Rather, they contend that the potential overbreadth of the statute has a "chilling" effect on their First Amendment right to sexual privacy.

If appellants' First Amendment rights were involved, they might have standing to raise the overbreadth argument. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). But as discussed above, no First Amendment privacy right of appellants is infringed by the Bawdy House Abatement Act.

The United States Supreme Court has said, "The First Amendment overbreadth doctrine * * * represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court." Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810, 833 (1977). Because appellants have no First Amendment right at issue, they fall within the rule that "(o)ne whose conduct falls within the 'hardcore' of a statute may not complain because of the possibility of imprecision in the application of the statute at its periphery." State v. Duran, 118 Ariz. 239, 244, 575 P.2d 1265, 1270 (App.1978). As the state argues, appellants lack standing to raise their overbreadth argument.

Appellants also argue that the act is vague. They reason that the action could not be based on acts of prostitution because prostitution denotes illegal sexual conduct and prostitution itself is not illegal in the parts of Maricopa County where appellants' massage parlors are located. ⁶ They contend, then, that the suit could be based only on acts of lewdness, and lewdness is an unconstitutionally vague term.

Appellants' reasoning is unpersuasive. Prostitution is the performance of sexual intercourse for a fee. The term does not denote illegal sexual conduct, although the act is often prohibited by state or local government. Furthermore, even if the acts of lewdness were at issue, lewdness as used in ...