JADS, INC v DETROIT PEOPLE v MANOLAKAS PEOPLE v LARUE
Docket Nos. 12072, 12087, 12182
Court of Appeals of Michigan
Decided July 3, 1972
41 MICH APP 693
Under the doctrine of ejusdem generis a cabaret is not a “public place” as that term is used in an ordinance that gives specific examples made up of “streets, lanes, alleys, markets“, and which prohibits indecent exposure in “public places“.
2. STATUTES-CRIMINAL LAW.
In an ordinance prohibiting immoral dancing in cabarets which defines a cabaret as a place where the patrons are provided with entertainment or space for dancing, the word “dancing” refers to the conduct of patrons and the word “entertainment” refers to the conduct of employees.
CONCURRENCE BY BORRADAILE, J.
3. STATUTES-NOTICE OF CONDUCT.
The United States Supreme Court opinion of February 24, 1972, requires that an ordinance give a person of ordinаry intelligence fair notice that his contemplated conduct is forbidden, thereby discouraging arbitrary and erratic arrests and convictions.
Appeal from Wayne, Joseph G. Rashid, J. Submitted Division 1 May 8, 1972, at Detroit. (Docket Nоs. 12072, 12087, 12182.) Decided July 3, 1972.
REFERENCES FOR POINTS IN HEADNOTES
[1] 50 Am Jur 2d, Lewdness, Indecency, and Obscenity §§ 16-18.
50 Am Jur, Statutes § 249.
Criminal offense predicated upon indecent exposure, 94 ALR2d 1353.
[2] 4 Am Jur 2d, Amusements and Exhibitions § 23.
[3] 16 Am Jur 2d, Constitutional Law § 552.
Tyra Lee LaRue was convicted of indecent exposure and Theodore Manolakas was convicted of permitting immoral dancing in his establishment. Both convictions were in Traffic and Ordinance Division of Recorder‘s Court of Detroit. Convictions affirmed by the circuit court. Defendants appeal by leave granted. Reversed. (Docket Nos. 12182, 12087.)
Ivan E. Barris and Cаrl P. Ranno, for Jads, Inc., Theodore Manolakas, and Tyra Lee La Rue.
Michael M. Glusac, Corporation Counsel, and Thomas H. Gallagher and William P. Doran, Assistants Corporation Counsel, for the city of Detroit.
Before: DANHOF, P. J., and LEVIN and BORRADAILE,* JJ.
LEVIN, J. In these consolidated cases we hold that “topless go-go dancing” does not violate City of Detroit ordinances.
On May 14, 1969, defendant LaRue was performing her final dance of the night. She stripped off
A policе officer, who was present during the entire performance, issued a ticket to LaRue when she removed her bandaids. She was charged, in the terms of the ordinance, with “indecent exposure of * * * her person in the streets, lanes, alleys, markets or public places of the city“.1 Defendant Manolakas, too, received a ticket-in his case for “permit[ting] any immoral, vulgar, suggestive, improper or freak dancing” in his establishment.2
Both defendants appeared in traffic court, where they were found guilty by a jury‘s verdict. Their convictions were affirmed by the circuit court.
Following the convictions of LaRue and Manolakas, plaintiff Jads brought an action for a declaratory judgment alleging that it operates an establishment featuring “topless go-go dancing“, and that if such entertainment is prohibited its business will suffer serious economic injury. Jads seeks a judgment declaring that the ordinаnces relied on by the city do not apply to “topless go-go dancing” or that they are unconstitutional. The circuit judge held against Jads’ claims.
A number of constitutional infirmities in the ordinances are urged upon us. We arе told that our decision will have important ramifications on
LaRue was convicted of indecently exposing herself “in the streets, lanes, alleys, markets or public places of the city“. The Sip ‘n Chat Bar is not a “public place” within the meaning of the ordinance. Two principles are applicable:
-The first is that рenal statutes are to be strictly construed in favor of the defendant;4 legislation declaring behavior criminal ought to be so “plain and unambiguous that he who runs’ may read, and understand whether his conduct is in violation of its prоvisions“. People v. Ellis, 204 Mich 157, 161 (1918).
-The second is the doctrine of ejusdem generis. “Literally, that phrase means ‘of the same kind or species.’ It is a well known maxim of construction, sometimes called Lord Tenterden‘s Rule, to aid in ascertaining the meaning of a statute or other written instrument, and, under the maxim, where an enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms.”5
Without in any way attempting to define the exact
The city‘s argument is based on language employed by the Michigan Supreme Court in People v. Kratz, 230 Mich 334, 339 (1925). The statute in that case prohibited “open, indecent or obscene exposure” of the person. The issue before the Supreme Court was the meaning of the word “open“. Indeed, the Court specifically noted: “The statute makes no reference to place, either public or private“. This precedent is not instructive on the issue now presented.
Defendant Manolakas was convicted of violating the city ordinance (see fn 2) providing that no operator of a cabaret shall permit “any immoral, vulgar, suggestive, improper or freak dancing“. The inapplicability of this ordinance becomes apparent upon an examination of the entire article dealing with cabarets.7
Cabarets are defined as:
“Any place wherein food and any type of alcoholic beverage is sold or given away on the premises and the operator thereof holds a yearly license from the state to sell such beverages by the glass and where the patrons are provided with entertainment or space for dancing.” (Emphasis supplied.)
Detroit City Code, § 5-4-1 .
Apart from consistency of language, a contrary holding would lead to an incongruous result. We are persuaded that the Detroit Common Council did not single out dancing from all other forms of
We intimate no opinion on the questions whether LaRue could have been properly charged under the state indecent-exposure statute, which contains no “public рlace” limitation,9 or whether the Detroit Common Council might constitutionally adopt an ordinance regulating or prohibiting “topless go-go dancing“.
The convictions of LaRue and Manolakas are reversed. On remand a declaratory judgment shall be entered granting Jads a judgment declaring that the ordinances in question do not prohibit topless go-go dancing.
Reversed; and remanded as to Jads for further proceedings consistent with this оpinion.
DANHOF, P. J., concurred.
BORRADAILE, J. (concurring). I concur in the result because under the language of Papachristou v Jacksonville, 405 US 156; 92 S Ct 839; 31 L Ed 2d 110 (1972), it does not appear that
LEVIN, J.
* Former circuit judge, sitting on the Court of Appeals by assignment pursuant to