STATE Ex Rel WAYNE COUNTY PROSECUTING ATTORNEY v. BERNSTEIN

57 Mich. App. 204 (1974) 226 N.W.2d 56

STATE ex rel WAYNE COUNTY PROSECUTING ATTORNEY
v.
BERNSTEIN

Docket No. 18603.

Michigan Court of Appeals.

Decided December 5, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney and Rheo C. Marchand, Assistant Prosecuting Attorney, for the people.

Bruce R. Saperstein, for defendant.

Before: DANHOF, P.J., and BRONSON and O'HARA,^[*] JJ.

Leave to appeal granted, 393 Mich. 793.

DANHOF, P.J.

Defendant Irving Bernstein is the operator, and, with his wife, the owner of the Vernor Bar, located in the City of Detroit. A complaint was filed under what is commonly called the "padlock statute", MCLA 600.3801 et seq.; MSA 27A.3801 et seq., alleging that the bar was being "used as a meeting place for prostitutes who solicit in and upon said premises". The complaint sought to have the Vernor Bar declared a public nuisance and to have the nuisance abated through issuance of a permanent injunction and an order closing the bar for one year.

Testimony of 10 Detroit police officers established that many prostitutes frequented the bar to solicit their customers. The officers testified to numerous arrests for accosting and soliciting, and to the general reputation of the Vernor Bar as a place where the services of a prostitute can easily be obtained. The defendant testified in substance that he was concerned about the activities that went on in his bar, and that he had done everything he possibly could to prevent these activities, but that he had been unable to effectively discourage them.

The lower court concluded that the Vernor Bar was a public nuisance as defined in the statute, and the defendant was permanently enjoined from maintaining it or any other building "for the purpose of lewdness, assignation or prostitution". The order further provided for the closing of the bar for a period of one year, subject to a petition by the defendant at the expiration of two months to reopen upon the satisfaction of certain stated conditions. From this order, defendant appeals. We affirm.

Defendant initially argues that the padlock law, MCLA 600.3801 et seq.; MSA 27A.3801 et seq. is unconstitutional as a denial of due process because it provides that proof of the defendant's knowledge of the existence of the nuisance is not required. A similar argument was made before this Court in State ex rel Wayne Prosecuting Attorney v Weitzman, 21 Mich. App. 705, 710-711; 176 NW2d 463 (1970), which discussed the Supreme Court's decision in People v Schoonmaker, 241 Mich. 177; 216 N.W. 456 (1927), and concluded that the statutory provision obviating proof of knowledge was "objectionable". In the present case, it is abundantly clear from the defendant's own testimony that he knew that prostitutes were accosting and soliciting in his bar over a period of years. Defendant cannot complain that the statute eliminates the requirement that proof of the knowledge of the nuisance be presented because his actual knowledge has, in fact, been proven. As a consequence, defendant cannot attack the constitutionality of this provision of the statute because it does not apply to him. People v Asta, 343 Mich. 507, 515; 72 NW2d 282 (1955). "One cannot attack a statute on the ground that its application denies constitutional protection to others." Department of Public Health v Tompkins, 34 Mich. App. 114, 119; 190 NW2d 796, 798 (1971), and United States v Lippman, 492 F2d 314, 317 (CA 6, 1974), both citing United States v Raines, 362 U.S. 17; 80 S. Ct. 519; 4 L. Ed. 2d 524 (1960).

Defendant's next issue continues the constitutional assault on the statute, but from another angle. He contends that the act is unconstitutional because it is an unreasonable exercise of the police power in that it punishes him by destroying his business even though he did everything he possibly could to eliminate the nuisance, and because its application in this case will have no significant impact upon the problem of prostitution.

Defendant's statement of the issue reflects a misapprehension of the nature and purpose of the padlock law. The theoretical basis for the closing of the defendant's bar is the protection of the public from a set of circumstances which have been found to constitute a nuisance. Speaking of the predecessor of the current nuisance abatement statute which is in all significant particulars identical to the present law, the Supreme Court in People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich. 570, 575; 17 NW2d 756 (1945), stated "The purpose of Act No. 389, Pub. Acts 1925, is to eliminate effectively, by statutory procedure, the use of property, real or personal, in connection with gambling, prostitution, and illicit sale of liquor, et cetera". The padlock law is designed to facilitate the elimination of certain situations which have been found to interfere with a substantial community interest. The statute and the procedures initiated under it in the present case were not instituted to punish the defendant nor to bring an end to prostitution. The statute has been utilized to eliminate a nuisance by closing the defendant's bar. In so doing, the statute has effectively achieved a legitimate legislative purpose and is, therefore, a reasonable exercise of the police power.

While it may be that defendant had done everything he possibly could to stop prostitutes from operating out of his establishment, this does not preclude application of the padlock law. The fact remains that defendant has not been successful; ample evidence was presented to demonstrate that these activities persisted. The nuisance abatement procedures were implemented not because of any wrong doing on the part of the defendant, but because the nuisance continued to exist. A general discussion of the concepts of nuisance as it relates to fault appears in Buckeye Union Fire Insurance Co v Michigan, 383 Mich. 630, 636; 178 NW2d 476, 480 (1970), in which it was stated:

"Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care * * *, but may still exist as a dangerous, offensive, or hazardous condition even with the best of care."

Similarly, the "amount of the investment" in the building and the loss to the owner caused by its padlocking are not "particularly" relevant to the question of whether or not there exists a nuisance requiring abatement under the statute. People ex rel Allegan Prosecuting Attorney v Harding, 343 Mich. 41, 47-48; 72 NW2d 33 (1955).

The argument that the high cost to the defendant outweighs the advantage to the public brought about by closing his bar should be addressed to the Legislature. This Court's inquiry ends when it determines, as it does here, that there is a reasonable relation between the remedy adopted, padlocking defendant's bar, and a proper public purpose, to eliminate the nuisance created by the activities of prostitutes in that bar. Borman's Inc v Liquor Control Commission, 37 Mich. App. 738, 752-753; 195 NW2d 316 (1972), lv den. Also see Grocers Dairy Co v Department of Agriculture Director, 377 Mich. 71; 138 NW2d 767 (1966).

The remaining issue advances defendant's contention that the statute is an unconstitutional infringement of the rights of prostitutes because it requires the bar owner to eject any known prostitute from his establishment thereby punishing the prostitute for "a state of being". Defendant is unable to cite any authority in support of this contention, and a reading of the plain language of the statute refutes it. Prostitutes are not prevented from using bars or any other public buildings as long as they do not do so for purposes related to prostitution.

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.