*1
v
ATTORNEY
PROSECUTING
ex rel WAYNE COUNTY
STATE
BENNIS
17, 1992,
Decided
at Detroit.
December
No. 132568. Submitted
Docket
sought.
19, 1993,
appeal
July
a.m. Leave £o
at 9:45
Counly
Wayne
Michigan,
£he
the relation of
on
The Stale
Wayne
broughl
Prosecuting Attorney,
in the
Circuit
an action
pursuant
to MCL
against
B. Bennis
C. and Tina
Court
John
alleged
seq.
seq.;
27A.3801 et
to abate
et
MSA
600.3801
by
jointly
owned
of an automobile
nuisance in the form
alleged
had been
plaintiff
the automobile
The
Bennises.
prostitution by
assignation,
for the
used
wife,
by
than his
as evidenced
and a woman other
John Bennis
police
gross indecency
offi-
after
for
John Bennis’
engage
in the
in a sexual act
him and the woman
cers observed
Talbot, J.,
court,
entered an order
Michael J.
automobile.
appealed.
requested. The Bennises
of abatement as
Appeals
held:
The Court
27A.3815(2),
600.3815(2);
Notwithstanding
MSA
1.
MCL
of the
provides
proof
of the existence
which
any
them is not
defendants or
on the
of the
abatement,
required
proof
has been
such
Schoonmaker,
People
beginning
Supreme
Court
(1927),
Co Prosecut-
late as State ex rel
Mich 177
and as
(1979). Accordingly,
Levenburg,
ing Attorney
ACLU Fund the defendants. Marilyn Murphy P.J., and Jansen, Before: Kelly, JJ. op Opinion the Court judgment appeal from J. Defendants Murphy, declaring Pontiac their circuit court
of the automobile sance, abating nui- to be a nuisance terminating thereby interest their We reverse. automobile. gross convicted Bennis was
Defendant John 28.570(2), indecency, ing follow- 750.338b; MSA MCL police officers observed in which an incident engaging act with a woman in a sexual Mr. Bennis in defendants’ this dants’ car for then filed Plaintiff
1977 Pontiac. alleging Bennis used defen- action, that Mr. prostitution, 600.3801; MSA of MCL violation or 27A.3801, nui- therefore a the car was pursuant subject to abatement sance court de- 27A.3825. The circuit 600.3825; MSA the in the a nuisance and abated the car to be clared terminating nuisance, defendants’ interest automobile. *3 they entitled contend that were Defendants first 2.116(C) disposition pursuant summary to MCR
to (8) plaintiff to demonstrate failed because knowledge that her Bennis had defendant Tina using Bennis, husband, defendant John purposes they jointly owned, of vehicle, for which agree or We obligated demonstrate to that the that defendants knew of nuisance before a the use of the vehicle as could be ordered the nuisance abated. provide relating public to nuisance
The statutes declaring property to a nuisance certain be for where assignation or
"lewdness, or property. place gambling” MCL on that takes pertinent provides, 600.3801; MSA 27A.3801 part: aircraft, vehicle, boat, place building, or
Any State v Bennis Opinion of Court or assignation of used for prostitution the use of kept gambling, by, or or used or persons, disorderly other prostitutes or nuisance, nui- . . . . . . and all ... is declared provided in and abated as enjoined shall be sances this act Any provided in the court rules. and as servant, agent, employee his or person or her conducts, owns, leases, any or maintains who building, vehicle, any of place used for guilty is acts this section purposes or set forth nuisance. of a prose- 600.3805; 27A.3805 authorizes
MCL MSA others, bring an action attorneys, among cuting MCL a nuisance. relief to abate equitable 600.3825; MSA for the issuance provides 27A.3825 property of of an order abatement sale nuisance, including vehicles. found be 27A.3815(2) 600.3815(2); provides nui- knowledge existence "proof any of the defendants sance on Supreme them, required.” Michigan not is however, that, of this Court, regardless has held language, proof statutory Schoonmaker, In People for abatement. 181; (1927), Supreme our NW stated: Court unless did maintain Defendants not premises; illegal use of the
they permitted such is, acquiesced, whether it or consented to fact, established question was a they did so but prevent premises misuse of the efforts to disclosing use. permissive only by some evidence *4 may possible, transgressions happen is . . . That wrongdoer unless toler- the remain offenses of but permissive the extent of occupant by ated use of indiffer- premises such deprive one does The statute ence thereto. App 670 674 200 Mich Opinion op the Court property by reason of person of the use of his another, use unless the owner’s illegal acts of violation. participating relation to the bears a decisions, has Court subsequent Supreme In need for statute obviates the held that Schoon- ignored and has knowledge, apparently maker, in State ex rel as noted this Court Corp, Prosecutor v Motorama Motel Oakland Co (1981). 224, 228; 349 See App 105 Mich 307 NW2d Bi- Prosecuting v People Wayne Attorney ex rel tonti, 329 119; (plurality) 306 Mich 10 NW2d Prosecuting Attorney ex rel People Wayne (1943); Tate, 306 Mich 667, 669; (1943); 11 282 v NW2d Robinson, 250 General v Attorney State ex rel (1930). The Schoon- 99, 103; 229 NW maker view support, has received how- recently Prosecuting Attor- Wayne in State ex rel Co ever, Levenburg, 455, 462, 1; n ney 406 Mich (1979), Supreme in which our Court NW2d "However, acknowledge we that a stated dicta: in a of this judgment for abatement cannot be rendered without nature soliciting on the accosting of the found operators place of the owners or their in those acquiescence to be a nuisance activities.”
Considering that Schoonmaker has never been
overruled,
light
and in
of the comment
expressly
Levenburg,
Schoonmaker
analy-
we follow
Motorama,
supra,
sis,
did in
as this Court
Prosecuting Attorney
ex rel
Weitz-
State
man, 705, 710-711;
176 NW2d
(1970).
prosecutor
We therefore hold
their
prove
that defendants knew
forth in
being
used
set
vehicle
600.3801;
27A.3801. We further
hold
in this case does not
the record
*5
675
v Bennis
State
Opinion of the Court
vehicle
Mrs.
knew that
the
that
Bennis
being
purpose.
used for
was
such
nui-
next
the claimed
Defendants
contend
only one inci-
could not be abated because
sance
prostitution
dent
alleged
court,
this is
before the trial
agree.
We
to demonstrate
nuisance.
insufficient
alleged
plaintiff
Motorama,
that, on one
In
occasion,
the
police
solicited
was accosted and
officer
that she then
unknown
at
bar and
female
to
defendant’s
the officer
the street
the
took
across
granted the
sum-
The trial court
defendant
hotel.
disposition, holding
mary
the one
assignation alleged by
of lewdness and
instance
plaintiff
a claim of
was insufficient
holding
affirmed,
that a sin-
nuisance. This Court
gle alleged
a nui-
incident
insufficient to create
are
that a reason-
unless circumstances
such
sance
able
inference can
drawn that the conduct
be
supra,
Id.,
Bitonti,
119-
229-230;
also
see
habitual.
(Justice Chandler).
The
in Motorama
120
facts
permit
inference,
such an
even
insufficient to
were
question
though
police officer in
the affidavit of the
there
arrests of
stated that
had been numerous
in that
for solicitation at
bar
females
area
Id., 226, 229-230.
from the
hotel.
across
defendant’s
approach
Motorama
best effectuates
The
The
statute was
of the statute.
abatement
subject
to abate
houses
enacted
ment
cutor
Wayne
rel
Co Prose
as
State ex
nuisances.
Corp,
244,
396 Mich
v Diversified Theatrical
(1976).
246-250; 240
NW2d
eliminating
as
the use
has also been described
act
prostitu
gambling,
property connection
of
tion,
liquor. People ex rel
illicit sale
Prosecuting Attorney
570,
Sill,
(1945); State
rel Oakland
575;
for assignation, prostitution. Similarly, presented Mr. was seen that Bennis driving in on more than one occasion that area talking only this to women. Not does observed prove in conduct not lewdness, that defendant was involved assignation, prostitution, there was no conduct, if it oc- evidence to establish that curred, this question. place in In took in the vehicle purchased only allegedly fact, defendants the car gave that to three weeks before the incident rise action. this in that
The dissent this case states mobile compared property, vehicle, real nature of a as to upon justifies finding the vehicle to be a nuisance prohibited proof only conduct. one incident of require proof that that The dissent reasons was used on more than one occasion a vehicle proscribed by the statute would thwart public nuisance statute. While the the
prohibited indeed have to be conduct would occasion, that on more than one observed supra, very Motorama, 229- nature of a nuisance. State v Bennis op Opinion the Court fact, that happens rarely if 230. In conduct so are unable investigating situation authorities conduct, we would a recurrence to observe find a Just as incident nuisance. one hesitate out of does not create brothel prostitution hotel, incident of neither does one isolated family make necessarily in a vehicle conduct prohibited the vehicle a nuisance. contend that
Defendants further to demonstrate act failed in the car and occurred inap- are provisions the abatement therefore question, in agree. We After incident plicable. charged one count Mr. with apparently Bennis 28.570C2).1 750.338b; gross indecency, that Mr. was found The record indicates Bennis prostitu- in an apparently the car area known activity in sexual with engaged tion and was Defen- arrested for previously woman how- gross indecency, only charged dant was ever, there was no presumably because Mr. Bennis and Ms. Palar- the activities which *7 engaged payment money. chio were involved Levenburg that in noted Supreme Court Our ap- defined as an assignation generally while is lov- meeting, for a between pointment especially ers, in the act is the term as used abatement pur- making appointment limited to the of an Levenburg, supra, 465-466. prostitution. poses more may while lewdness be defined Similarly, word, in the in the common sense broadly act to acts the term confined abatement 1 alleges charged complaint "indecent that Mr. Bennis was with The alleges complaint that "the immoral conduct.” The further and 750.449a, engaging the is a of MCLA conduct violation observed services of a male and however, 750.338b, gross indecency prostitute between MCLA appeal, agrees on female.” in its brief only gross charged with that defendant John Bennis was indecency, that Mr. further that there is no evidence admits pay paid or intended Ms. Palarchio. Bennis Corp, Theatrical su Diversified See pra, the terms is construction of 246-250. This considering the stat sensible, spe prostitution repeated in a ute is to eliminate Thus, Mr. Bennis’ conduct cific location. while may may have been his car have been lewd assignation general sense, there is no demon in a prohib the conduct was that which is stration that by ited activity statute, the sexual absent exchange money.2 Reversed.
Marilyn Kelly, J., concurred. (dissenting). respectfully I I dissent. P.J. Jansen, judgment 16, 1988, would affirm the November declaring by entered Circuit Court nui- automobile to be a defendants’ Pontiac terminating in the auto- their interest sance mobile. erred in
Defendants contend that the trial court disposition denying summary their motion for 2.116(C)(8). brought pursuant Specifically, to MCR argue plaintiffs complaint failed defendants to allege than one isolated instance of use of more purposes the 1977 automobile for allege and failed to acquiescence knowledge of, to, or in the consent alleged disagree. by nuisance Tina Bennis. summary disposition on a
A motion for
based
upon
relief can
failure to state a claim
which
be
plead-
granted
to the
is to be tested
reference
well-pleaded
allega-
ings alone, and all
material
tions must
taken as true. State ex rel Oakland
be
statute
Nor is Mr. Bennis’ conduct included within
merely
equated
gross indecency, and
because his conduct can be
Corp,
arguably disorderly.
Theatrical
was therefore
supra,
See Diversified
*8
Prosecuting Attorney
250;
Alray
v
State ex rel Oakland
(1985).
Plaza,
595, 602-604;
App
146 Mich
Defendants maintain that allege insufficient it failed to was Tina Bennis had because knowledge of, to, consented acquiesced in the her use automobile majority husband to create a nuisance. The held obligated that "the to demon- that defendants knew of the use of the strate vehicle as a nuisance before the nuisance could be added.) (Emphasis disagree. I ordered abated.” disputed
It
title
the 1977
is
indicated that Tina Bennis and John
automobile
600.3815(2);
Bennis were its owners. MCL
27A.3815(2) specifically
unambiguously pro-
"[p]roof
knowledge
of
vides that
of
of the existence
part
any
the nuisance on the
the defendants or
required.”
expressly
them,
of
obviates the
is not
The statute
necessity
knowledge
on the
of defen-
existence
dants.
v
the nuisance
People
Wayne Prosecuting Attorney
ex rel
Bitonti,
115, 119,
329
121;
306 Mich
10 NW2d
(1943);
Attorney
Robinson,
State ex rel
General v
(1930).
99, 103;
250 Mich
229
403
But see
NW
People Schoonmaker,
177;
241 Mich
noted
supra.
required
Schoonmaker,
How-
for abatement.
subsequent
recognize
of
ever,
that
decisions
I also
Supreme
statute,
the
have held that
Court
the
27A.3815(2),
600.3815(2);
obviates the
knowledge.
proof
Bitonti, Robinson,
for
need
of
Prosecuting
People
supra.
also
ex rel
See
Attorney
Tate,
667, 669;
Because of characteristics particular mobility, I mobile, its would opinion Bitonti, of Justice follow the Bushnell supra. Bitonti, In the Court held "that only of violation of the stat- one isolated instance p Id., 122. I sufficient.” am convinced that ute was proper interpretation given to be this is public is used nuisance statute when vehicle assignation, prostitu- lewdness, specifically provides any The tion. statute assigna- used for the vehicle tion, or is declared a nuisance. MCL 600.3801; MSA does 27A.3801. statute purposes require protracted use of the vehicle for prostitution, and in a this, such as where the automobile is used as case indispensable part statutory violation, State v Bennis would hold that a incident is sufficient to sustain of nuisance.
I am mindful that cases such as Motorama Corp, supra, Motel have held that a "nuisance repeated continuing involves the notion of con- upon proof duct should not be based single isolated incident unless the facts surround- ing permit the incident the reasonable inference prohibited conduct was habitual in na- pp Id., However, ture.” 229-230. Motorama Motel Corp police involved a officer who was accosted *10 by solicited a female at the Last Chance Bar and and was then taken across the street to the defen- p Id., motel the female. 225. dant’s affidavit indicated that the motel was The officer’s
only p used for purpose single Id., that on a occasion. 230. Given the and inherent obvious differences be- building stationary tween a or fixed or structure opinion my vehicle, it and a mobile that finding public better-reasoned rule allows a of single nuisance on the basis of a instance of con- involving purpose duct the use of a vehicle for prostitution. lewdness, A of or build- ing may subject or fixed structure be to continuous purpose determining surveillance for premises continuously repeat- whether are edly being purpose assig- used for the nation, However, when a vehicle is any purposes used for in set forth MCL 600.3801; 27A.3801, the authorities would being have to determine that used on a continuous or the same car was repeated pur- basis for poses proscribed by the statute. Because of the mobility surely nearly vehicle, of a this would be impossible. majority purpose notes,
As the of the statute property in is to eliminate the use of connection gambling, prostitution, and the illicit sale of App 670 200 Mich Prosecuting Attorney liquor. People ex rel (1945); Sill, 575; 17 NW2d Prosecuting Attorney Gi- State ex rel Oakland nell, 679, 681-682; 407 NW2d (1987). require plaintiff prove to that the same To pur- for vehicle was used on numerous occasions poses proscribed by the statute would thwart public nuisance statute. argued also that the trial court
Defendants finding public nuisance that a existed erred that Ben- evidence failed show John where the engaged than one nis proscribed more isolated instance argue further that
conduct. Defendants presented to that there no evidence establish performing paid Bennis the sexual Palarchio act that the conduct between Bennis Palarchio was consensual. my opinion stated, I it is
As have
when
assig-
used for the
vehicle is
nation,
prostitution,
instance of
conduct
the vehicle
will
public
pursuant
constitutes a
Additionally, 600.3801; MSA 27A.3801.
am con-
presented to
vinced that sufficient evidence was
the Bennises’
establish
vehicle
used
*11
prostitu-
the
tion.
Prosecuting Attorney
In
rel
Co
State ex Macomb
(1983),
App
Mesk,
111;
v
123 Mich
However, meaning in the we find no confusion Although traditionally term these terms. being than and "lewdness” is viewed as broader . including "prostitution,” . . such terms term general the same class of activities which refer to are (or normally associated with houses of called). may whatever such establishments be designate prohibit They are intended to sex performed which are acts money. whatever nature omitted; emphasis in Diversified [Citation Corp, Theatrical n 13.] apparently majority states John Bennis only charged gross one inde- count 28.570(2), "presumably cency, 750.338b; MCL MSA there was no the activities because engaged Mr. Palarchio which Bennis and Ms. were exchange payment.” However, a review of plaintiffs complaint reveals that Bennis and Pa- charged larchio were arrested and with indecent engaging specifically, conduct, and immoral services 28.704(1), prostitute, 750.449a; of a MCL MSA gross indecency male and between 28.570(2). persons, 750.338b; female Testimony 3, 1988, indicated that on March driving home from in the John Bennis was work stopped car 1977 Pontiac automobile. Bennis Eight Sheffield, Mile and at the corner of where standing. young woman, Palarchio, At stopped being vehicle, time Bennis his he was police officers observed two Detroit who were squad. working undercover for the vice stopped vehicle, the officers Before Bennis his "flagging” in an effort to Palarchio cars observed stopped get stop. vehicle, Bennis his them When passenger’s en- to the side and Palarchio walked *12 by Jansen, P.J. Dissent street, made down Bennis drove tered the car. parked, head- the car’s turned off U-turn, and a lights. approximately parked followed, and The officers lengths Officer 1977 Pontiac. car behind three Anthony in the heads he saw two
testified right a male side and car, head on the a female Immediately the officers after the left. head on parked disappeared head vehicle, the female their The officers of the car. side toward the driver’s approached Palarchio and observed the vehicle performing fellatio on Bennis. an act of Anthony a known it was testified
Officer working prosti- as a had been fact that Palarchio many on times before had been arrested tute. She soliciting, accosting charges indecent and disorderly conduct, conduct. Palarchio obscene "flagging” vehicles arrested had also been stop. attempt get to them the evidence was sufficient find that would used his vehi- that John Bennis assignation, for the cle properly prostitution. infer trial court could presented Bennis, John the evidence from all engaged occupying Pontiac, the 1977 while of Palarchio for services Clearly, pMesk, 117. fellatio. an act of includes Additionally, in order- court did not err the trial extinguishing ing of the nuisance abatement co-owner, proprietary interest of the innocent 600.3815(2); above, noted Tina Bennis. As 27A.3815(2) requirement obviated MSA proof of the existence
of a defendant’s Robinson, Weaver, Tate, Bitonti, nuisance. supra. to show knowl- Plaintiff was edge Tina Bennis. on State v Bennis *13 judgment would affirm the the trial court declaring Pontiac defendants’ 1977 automobile to in terminating be a their interest the automobile.