State v. Guillory

• Decision Date: 30 November 1976
• Docket Number: No. 5671,5671
• Citation: 339 So.2d 970
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Carl W. GUILLORY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 970

339 So.2d 970

STATE of Louisiana, Plaintiff-Appellee, v. Carl W. GUILLORY et al., Defendants-Appellants.

No. 5671.

Court of Appeal of Louisiana, Third Circuit.

Nov. 30, 1976.

Rehearing Denied Dec. 15, 1976.

Writs Refused Jan. 5, Feb. 11, 1977.

Gravel, Roy & Burnes, J. Michael Small, Alexandria, for defendants-appellants.

Edwin O. Ware, III, Alexandria, for plaintiff-appellee.

Before HOOD, DOMENGEAUX and GUIDRY, JJ.

HOOD, Judge.

Rapides Parish seeks an injunction and an order of abatement under LSA-R.S. 13:4711, et seq., prohibiting defendants from carrying on and conducting prostitution on certain premises in the parishes of Rapides and Avoyelles. The suit was instituted against Carl W. Guillory, Linda Fuselier Guillory and Larry Melton Fuselier. It was dismissed as to Linda Fuselier Guillory and as to Larry Melton Fuselier, leaving Carl W. Guillory as the sole defendant.

Judgment was rendered by the trial judge decreeing that a permanent injunction issue against defendant Guillory, enjoining and prohibiting him from carrying on and conducting prostitution in buildings or structures located on two tracts of land in Rapides Parish and on one tract in Avoyelles Parish. The judgment also decrees that an order of abatement issue directing the effectual closing of the buildings and structures located on the above tracts of land for a period of one year, unless sooner released by the court, and ordering the sheriff to padlock those buildings and structures. Defendant Guillory appealed.

Several issues are presented, the principal one being whether LSA-R.S. 13:4711, et seq., is so vague and indefinite that it violates the due process clauses of the Louisiana and United States Constitutions, and thus is unconstitutional, void and unenforceable.

Defendant owns and operates the Tradewinds Motel, in Rapides Parish, and the Watergate Lounge, in Avoyelles Parish. The evidence establishes that he was actively engaged in conducting the business of prostitution at both of those locations at the time this suit was filed.

This suit was instituted on June 15, 1976, under the provisions of LSA-R.S. 13:4711, et seq. Plaintiff seeks a judgment enjoining defendant from carrying on and conducting prostitution on the above premises, and an order of abatement directing the effectual closing of the buildings and structures in which those activities were being conducted.

Defendant Guillory resisted the suit, contending primarily that LSA-R.S. 13:4711, et seq., is void and unconstitutional, in that its provisions are so vague and indefinite that 'they do not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement.' He contends that the cited statute violates the due process clauses of the Fourteenth Amendment of the United States Constitution, and Article I, Section 2, of the Louisiana Constitution of 1974.

LSA-R.S. 13:4711 provides, in part, that:

'Maintenance of a nuisance is to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.'

LSA-R.S. 13:4712 and 4713 give the parish the right to institute suit for the type of relief which is being sought here. LSA-R.S. 13:4715 provides:

'If it is established in an action under the provisions of R.S. 13:4711 through 13:4713 that maintenance of a nuisance exists and that the owner of the building, land, structure or other place knew of its existence but did not institute and proceed with the legal action necessary to enjoin maintenance of the nuisance, an order of abatement may be entered as part of the judgment rendered in the case. The order of abatement shall direct the effectual closing of the building, land, structure or other place for the period of one year, unless sooner released.'

The above sections of the Revised Statutes were amended by Act 277 of 1974, apparently to remove objections which were pointed out in Gulf States Theaters of La., Inc. v. Richardson, 287 So.2d 480 (La.1973).

In Parish of St. Landry ex rel. Goudeau v. Veillon, 308 So.2d 830 (La.App. 3 Cir. 1975), the above sections of the Revised Statutes, as amended were attached on the ground that they violated the due process clauses of the state and federal constitutions, and we held that those sections were valid and constitutional. The arguments presented in the instant suit, however, were not made in Veillon.

In Connick v. Lucky Pierre's, 331 So.2d 431 (La.1976), the district attorney of Orleans Parish filed a petition for an injunction and an order of abatement, under LSA-R.S. 13:4711, et seq ., against the owners, lessees, sub-lessees, a bartender, and the sub-lessee business operator of Lucky Pierre's Lounge. He alleged that Lucky Pierre's was 'a place in which assignation, prostitutions and solicitation, is practiced, initiated, solicited for and permitted to exist as a practice,' and that the 'defendants have maintained this nuisance or knowingly permitted it to exist without instituting legal proceedings to enjoin it.' The action was dismissed against the owner, and that eliminated plaintiff's demand for an order of abatement. According to our understanding of the action, plaintiff sought only injunctive relief against the remaining defendants. He did not contend that they were conducting prostitution but merely that they were permitting the maintenance of that nuisance to exist. The defendants filed an exception of no cause of action, arguing that LSA-R.S. 13:4711, et seq., is unconstitutionally vague. Our Supreme Court held that the exception had been properly sustained by the trial court, stating:

'. . . we conclude that the phrase 'without instituting and proceeding with the legal action necessary to enjoin . . .' is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La.R.S. 13:4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.'

Defendant in the instant suit contends that the Supreme Court in Lucky Pierre's decreed the cited statute to be unconstitutional for all purposes. Plaintiff contends that the court did not intend to invalidate the entire statute, but that instead it invalidated only those provisions which authorize injunctive or abatement relief against those who Are not actively carrying on or conducting prostitution, but who Are knowingly permitting prostitution to be conducted on the premises. Plaintiff points out that the action in Lucky Pierre's was directly solely against defendants who were not conducting prostitution, and that the only ground assigned by the Supreme Court for invalidating the statute was that it did not describe in sufficiently definite terms the type of 'legal action' which a person not actively conducting that nuisance must institute in order to escape the injunctive or abatement relief provided in the statute.

We agree with plaintiff that the phrase, 'without instituting and proceeding with the legal action necessary to enjoin,' as used in the first paragraph of LSA-R.S. 13:4711, applies only to defendants who are...