Opinion
Docket No. 90531.
Decided April 22, 1987. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for plaintiff.
Taylor Rubin, P.C. (by Stephen M. Taylor), for defendant.
Plaintiff brought this action against Dominic Ginell, doing business as The Front Page News Center, under the Michigan public nuisance abatement statute, MCL 600.3801; MSA 27A.3801. Defendant brought a motion to dismiss based on this Court's decision in State ex rel Oakland Prosecuting Attorney v Alray Northcrest Plaza, 146 Mich. App. 595; 381 N.W.2d 731 (1985), lv den 424 Mich. 896 (1986). The trial court subsequently granted defendant's motion and dismissed the case. Plaintiff appeals as of right. We affirm.
This case arose out of an ongoing investigation of The Front Page News Center by Oakland County investigators. The Front Page News Center operates as an adult book and video store and has individual viewing booths where patrons can view adult video entertainment.
Plaintiff argues that the operation of this business was in violation of MCL 600.3801; MSA 27A.3801, the public nuisance abatement statute, which provides in relevant part:
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 . . . is hereby declared a nuisance . . . Any person, or his servant, agent or employee 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.
Plaintiff's first claim is that its complaint was sufficient to sustain this action under the public nuisance abatement statute based on the allegations in the complaint of prostitution-related activities occurring on the premises. Therefore, plaintiff claims that the trial court erred in dismissing the case.
Plaintiff's claim is without merit. Nowhere in plaintiff's first amended complaint does plaintiff claim that prostitution, perpetrated by either males or females, took place on the premises. The complaint merely asserts that the premises are visited by "disorderly persons who gather and engage in indecent or obscene conduct and/or who engage in acts of gross indecency and/or who solicit or accost others to do lewd or immoral acts .. . ." Plaintiff's investigators related how they were invited to engage in sexual activity by male patrons of defendant's establishment; however, these invitations were for consensual activity and not for sex in exchange for monetary compensation.
"[T]he public nuisance statute was designed to eliminate the use of property for or in connection with prostitution, gambling and the illicit possession or transfer of intoxicants, not to eliminate obscenity." State ex rel Oakland Prosecutor v Alray, supra, pp 602-603. See also, People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich. 570, 575; 17 N.W.2d 756 (1945); State ex rel Saginaw Prosecuting Attorney v Bobenal Investments, Inc, 111 Mich. App. 16; 314 N.W.2d 512 (1981), lv den 414 Mich. 951 (1982), and State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich. 455; 280 N.W.2d 810 (1979).
Since plaintiff has failed to allege that The Front Page News Center was used by persons engaging in activities related to prostitution, gambling or intoxicants, consistent with Alray, plaintiff has failed to state a claim.
Next plaintiff invites this panel of the Court of Appeals to reach a conclusion inconsistent with this Court's conclusion in Alray on the definition of disorderly persons, as that term is used in the public nuisance abatement statute. We decline. As stated in Alray, the interpretation of the phrase "disorderly persons" offered by plaintiff would lead to absurd results inconsistent with the aforementioned purposes of the public nuisance abatement statute. "If places used for purposes of obscene conduct are to be subject to abatement as public nuisances, it is the Legislature's function to enact or expand such provisions, taking care that they pass constitutional muster." Alray, supra, p 603, n 7. As of this decision, the Legislature has not taken action to expand the public nuisance abatement statute to include obscene conduct.
Affirmed.