Petition — Club Recreation & Pleasure v. Oregon ex rel. Haas

5} MAR 3 4999 i

IN THE SUPREME COURT OF THE a an JR, cure |

October Term, 1979

No. G9O- 1354

CLUB RECREATION AND PLEASURE,

an Oregon non-profit corporation;

SWAN MANAGEMENT CO., an Oregon

corporation; and JOHN R. TIDYMAN,

Petitioners,

Vi.

THE STATE OF OREGON, ex rel HARL

HAAS, District Attorney for

Multnomah County, State of Oregon,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of the

State of Oregon

MARVIN S. NEPOM

J. BRADFORD SHILEY

610 SW Alder Street

Portland, OR 97205

Attorneys for

Petitioners

INDEX

Opinions Below ie «6s = © 2

Jurisdiction oe ee eee 2

Questions Presented for Review. . 3

Constitutional Provisions and

weatutes Involved... ..«.e e 4

ce ae 7

Reasons for Granting the Writ .. 13

Conclusion ee Ee ae 19

TABLE OF CASES

Cased Cited

Dombrowski v. Pfister, 380 U.S.

Ee 18

Doran v. Salem Inn, Inc., 422

Ne sn 6 re L3- 1i8

Elfbrandt v. Russell, 384 U.S.

. ee 18

Griswold v. Conn., 381 U.S. 479

RE Rn a 13

Huffman v. Pursue, Ltd., 420

ome Meee Seeeee os. lhl, Aa

Lovisi v. Slayton, 363 F Supp

Duma Wee Meeeer Gs. 5g kt tl lw a

Speiser v. Randall, 357 U.S.

a ee 12

was (2998) 2s 5

ii

State ex rel Risco v. Biggs,

196 Or 413, 255 P2G.i055 (1953). .

Western Atlantic Railroad v.

Henderson, 279 U.S. 639 (1929) ..

TABLE OF STATUTES

ORS Chapter 65 : ee ee ee

ORS 465.110 ....

Gee Geeciae ss ss se eS YS

Gee Meevaee. sk «(8 Ss ae SS 8

ORS 465.155 . «© «ee ceves

CONSTITUTIONAL

US Constitution, Amendment I .

US Constitution, Amendment V .

US Constitution, Amendment XIV

wo ©

- + 6, 7,

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

CLUB RECREATION AND PLEASURE,

an Oregon non-profit corporation;

SWAN MANAGEMENT CO., an Oregon

corporation; and JOHN R. TIDYMAN,

Petitioners,

Vv.

THE STATE OF OREGON, ex rel HARL

HAAS, District Attorney for

Multnomah County, State of Oregon,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of the

State of Oregon

Petitioners pray that a writ of certiorari

issue to review the judgment of the State of

Oregon Court of Appeals entered in the above

case December 4, 1979.

OPINIONS BELOW

The Circuit Court of the County of

Multnomah, State of Oregon, issued findings

of facts and conclusions of law which were

not published. The opinion of the Court of

Appeals of the State of Oregon is officially

reported at 41 Or App 557, and unofficially

at 599 P2d 1194 and is set forth in the

appendix. The Supreme Court of the State

of Oregon denial of review is officially re-

ported at 288 Or 113.

JURISDICTION

The judgment of the Court of

Appeals for the State of Oregon was made and

entered on August 20, 1979, the Supreme

Court of the State of Oregon denied review

on November 20, 1979; and, the judgment and

mandate affirming the decision below was

entered on November 28, 1979 and amended on

December 4, 1979. The jurisdiction of this

court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

In a suit under ORS 465.110, the

District Attorney for Multnomah County,

Oregon, acting for the state, brought a

Civil suit to have a business offering nude

dance and reading programs declared a nui-

sance. Defendants were enjoined from con-

ducting, maintaining, using, occupying or

permitting any premises in the county for

prostitution; the personal property and

fixtures of the building were sold; and,

any use of the building was enjoined for

one year. Running a house of prostitution

is also punishable under the criminal law

as a felony. The questions presented are:

1. Whether defendants’ Fourteenth

Amendment due process rights were violated

in any or all of the following ways:

‘a. Whether defendants were

denied the right to a jury trial;

b. Whether defendants were

denied the right to have their guilt proved

by the standard, "beyond a reasonable doubt";

c. Whether the burden of proof

was wrongly shifted to the defendants;

d. Whether defendants' property

was taken without just compensation;

. e. Whether the ambiguous and

vague working of the statute deprived

defendants of adequate notice.

2. Whether defendants and club

members and employees were deprived of their

First Amendment right of free association

and their constitutional right of privacy.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The First Amendment, United

States Constitution.

2. The Fifth Amendment, United

States Constitution.

3. The Fourteenth Amendment,

United States Constitution.

4. Oregon Revised Statutes,

§465.110 which provides:

"Places used for prostitution

OT NT OT ET

or unlawful abortions declared

a nuisance; abatement. Whoever

establishes or maintains any

place used for the purpose of

lewdness, assignation or pros-

titution or any other immoral

act, or a place where pregnancies

are terminated in violation of

ORS 435.415, 435.425 and 435.455

is guilty of maintaining a nui-

Sance. The place where such

lewdness, assignation or ter-

mination of pregnancies is con-

ducted or carried on and the con-

tents of such premises are de-

clared a nuisance and shall be

enjoined and abated as provided

in ORS 465.120 to 465.180."

5. Oregon Revised Statutes,

§465.120, which provides:

"Suit to enjoin nuisance. When-

ever a nuisance exists under ORS

465.110, the district attorney

shall or any taxpayer of the

county may maintain a suit in

equity in the name of the state

to perpetually enjoin such nui-

sance, the persons conducting or

maintaining the same, and the owner,

lessee or agent of the building

Or ground upon which the nuisance

exists."

6. Oregon Revised Statutes,

§465.150, which provides:

"Order of abatement; closure;

sale of contents; entering pro-

hibited. (1) If the existence

of the nuisance is established

in a suit under ORS 465.120, an

order of abatement shall be

entered as a part of the judgment

in the case. This order shall

direct:

(a) Removal from the building or

place of all fixtures, furniture,

instruments, appliances, medicines,

drugs, contents or movable property

used in conducting the nuisance.

(b) Sale of tne property removed

in the manner provided for the sale

of chattels under execution.

(c) The effectual closing of the

building or place against its use

for any purpose, and so keeping it

closed for a period of one year,

unless sooner released.

(2) No person shall break and enter

or use a building, erection or place

so directed to be closed.

(3) For removing and selling the

movable property, the officer shall

be entitled to charge and receive

the same fees as he would for exe-

cution. For closing the premises

and keeping them closed a reason-

able sum shall be allowed by the

courts."

7. Oregon Revised Statutes,

§465.155, which provides:

"Appearance by owner of closed

property for relief from closure

order. The owner of any real or

personal property so closed or re-

strained, or to be closed or re-

strained, may appear at any time be-

between the filing of the complaint

and the trial and show cause why the

court should cancel or refrain from

issuing any decree or orders as

against him. Such owner, in order

to obtain such relief, must prove to

the satisfaction of the court that

he is the lawful owner of said

property and, further, that with

reasonable care and diligence he

could not have known of the illegal

use of his property.

. STATEMENT

The District Attorney for Multnomah

County, Oregon, acting for the state, brought

a civil suit to have a nuisance declared and

to have injunctions issued. Defendants filed

a demurrer raising the constitutional issues

for which review is currently sought. The

trial court overruled the demurrer.

The evidence at trial indicated that

for membership and program fees, defendant

Club Recreation and Pleasure, operating as

the Pleasure Palace, offered nude dancing,

reading, and saunas to its customer-members.

On several occasions police vice officers

visited the club, bought memberships, and

contracted with club employees in private

| ;

to perform a sex act for money. Each time

the employee was arrested for prostitution.

Evidence of common fame of the premises as a

house of prostitution was allowed. The club

made it clear upon hiring of all its em-

ployees that prostitution was illegal and

not allowed.

The trial court did not grant the

defendants a jury trial, and did not apply

the standard of proof required in a

criminal case, even though the activities

complained of were punishable as a felony,

and historically the offense of maintaining

a house of prostitution is a malum in se

crime, involving moral turpitude. State

ex rel Risco v. Biggs, 198 Or 413, 255 P2d

1055 (1953). No evidence regarding the

knowledge of the lessee or owner of the

premises was required, since ORS 465.155

provides that the owner of the property

has the burden of proof to show that with

reasonable care and diligence he could not

have known of the illegal use of the

premises, in order to be relieved from the

injunction and the loss of use of the

property.

The trial court found that defendant

Club Recreation and Pleasure had established,

maintained, used and occupied the premises

for lewdness, assignation, and prostitution,

that defendant Swan Management Company was

lessee of the premises, and defendant Tidy-

man owned the premises, and that the

activities complained of, i.e. the prostitu-

tion activities of several ex-employees of

the club, constituted a public nuisance.

The defendants, land, and building were

ordered “permanently enjoined and restrained

from conducting, maintaining, using, occupy-

ing or permitting the use or occupancy of

the premises or any premises in Multnomah

County for prostitution". The building was

ordered closed for any use for one year and

the personal property and fixtures of the

building were sold. The injunction was

issued in spite of the fact that defendants

did not have adequate notice that ORS 465.

110 might apply to them, since the terms

“lewdness" and "assignation" are not

susceptible of certain meaning and uncon-

stitutionally vague and the term "prostitu-

tion" is not included in the second sentence

of ORS 465.110 which specifies which acts,

specifically lewdness, assignation, and the

termination of pregnancies, may be enjoined.

The Oregon Court of Appeals affirmed

the trial court. The court of Appeals con-

Cluded that Oregon Revised Statutes Chapter

465 was not a criminal statute because the

statute did not impose a sentence of incar-

ceration, a fine, or the entry of a criminal

record; yet, the statute is confiscatory,

imposing economic loss instead of a direct

fine by closure of the buidling and business

for a period of one year and the forced sale

by governmental authorities of personal

property. Defendants' freedom of associa-

tion is also infringed by the injunction,

and the defendants are subject to arrest, im-

prisonment and fine for an extremely broad,

almost unlimited range of activities. There

are broad and extensive criminal type sanc-

tions imposed by the injunctions issued by

Oregon Revised Statute Chapter 465 which

attempts to regulate criminal activities, and

for which there exists a felony statute for

the same complained of activities.

The Court of Appeals decided the

statute was not ambiguous and vague by re-

‘writing ORS 465.110 to include the word

"prostitution" in the second sentence, and

by finding that the terms "assignation" and

“lewdness" were not indefinite and vague

because they could be located in Webster's

Dictionary and Black's Law Dictionary, re-

spectively.

The Court of Appeals decided the

process did not unconstitutionally shift

the burden of proof because plaintiff needs

to prove the existence of the nuisance; in

fact, the owner and lessee have the burden

of showing they, with reasonable care and

12

diligence, could not have known of the

illegal use of the property in order to be

free from the .oss of the premises for one

year. The Court of Appeals did not discuss

Western & Atlantic Railroad v. Henderson, 279

U.S. 639 (1929) and Speiser v. Randall, 357

U.S. 513 (1958).

The Court of Appeals held that the

property was not taken without just compen-

Sation because the property owner could

petition for the release of the property

after the filing of a bond, and because the

proceeds of the judicial sale of the person-

al property are paid to the owner after de-

duction for costs, even though this amounts

to a. substantial taking.

The Court of Appeals did not con-

Sider defendants' contentions that the

abatement procedures of Oregon Revised

Statutes Chapter 465 deprive members and

employees of defendant club of their First

Amendment rights of free expression and con-

stitutional rights of privacy, and the land-

13

holder's freedom of expression and associa-

tion restrained by the shifting of the bur-

den of proof. See Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975); Lovisi v. Slayton, 363

F Supp 620, 626 (1973), applying Griswold v.

Conn., 381 U.S. 479 (1965); and Doran v.

Salem Inn, Inc., 422 U.S. 922 (1975).

The Oregon Supreme Court denied

review.

REASONS FOR GRANTING THE WRIT

1. The defendants' rights in this

case have been denied by the state's label-

ing of an enforcement proceeding to prevent

acts of prostitution as a civil rather than

a criminal proceeding. As the result of

this "civil" proceeding, defendants are re-

quired to affirmatively avoid "conducting,

maintaining, using, or occupying or in any

way permitting the use or occupancy of said

premises or any other premises in Multnomah

County for prostitution". Defendants also

lose the economic enjoyment of this busi-

ness ana property tor one year. Under this

14

statutory scheme, the District Attorney for

the County is able to deprive defendants of

rights and to effectively impose a fine upon

the defendants equal to the value of the loss

of their property. By proceeding with the

Civil suit, defendants are denied a right to

a jury trial and a requirement of proof of

criminal acts by the standard "beyond a

reasonable doubt". The lessee and owner of

the property are held responsible merely upon

proof of their ownership of the property, the

shifting of the burden of proof is uncon-

stitutionally unfair. "The man who knows

that he must bring forth proof and persuade

another of the lawfulness of his conduct

necessarily must steer far wider of the un-

lawful zone than if the state must bear these

burdens." Speiser v. Randall, 375 U.S. 513

526 (1958). The wording of the statute also

does not give adequate notice that the prosti-

tution activities may be enjoined; defendants

were denied their rights to adequate notice

nor coulda ctiiey adeyuately defend against the

15

charges because of the ambiguous and vague

wording of the statute. In total, defen-

dants' due process rights are manifestly

ignored by the proceedings utilized in this

case.

The denial of rights in this case

makes a travesty of the rights afforded a

pereon in court by the Fourteenth Amendment

before a party's liberty and associational

freedom will be infringed and property is

taken. There is no justification for

placing the burden of proof of a person to

show that he has not participated ina

criminal act and no reason the state should

be able to circumvent procedural rights

afforded defendants accused of the crime of

operating or maintaining a house of prosti-

tution simply by labelling the deprivative

proceeding a civil suit.

The obvious purpose and design of

the statute is to control criminal activity.

The practical effect of the statute is to

16

permit law enforcement authorities who can-

not prove that the owners and management of

a business are directing prostitution

activity or aiding and abetting in those

activities, to effectively "punish" the

owners and management by depriving them of

the premises and personal property of their

business and limits their liberty rights

through a summary civil procedure which de-

nies effective constitutional safeguards.

The statute denies the defendants

the right to jury trial and permits their

"conviction" for maintaining a place for

"“lewdness" and "assignation" where the

“public interest and good morals require

its (the place) prompt abatement ***" and

does not require a clearly defined criminal

act. In addition, the statutory scheme

permits evidence such as "common fame" upon

which closure can be based.

This last factor permitted the

state to bring in two neighbors who testi-

17

fied that they have no idea what goes on

in the premises and have never been there

themselves; but, their neighbors have told

them that it is a "whorehouse". With that

evidence, this statutory scheme permits the

state to close for the period of one year a

building of an owner who the state has not

proven has knowledge of the activities of

the house and in fact the house or premises

May not even be used for those activities

which are prohibited.

This type of conduct on the part

of the state is terrifying and flies in

the face of nearly every constitutional

safeguard of this system.

2. Enjoining and closing Club

Recreation and Pleasure deprives members

of the club their rights of free associa-

tion and their rights to privacy. Even if

/some condnct related t» the club was per-

missably subject to reyulation, less re-

strictive means could be employed in this

action than t»r* overbrced and vague

18

statutes being challenged. Elfbrandt v.

Russell, 384 U.S. 11 (1966). Club's employees'

right to protected symbolic, non verbal speech

is also protected by the First Amendment.

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).

Defendant Club has standing to raise

the rights of its employees and members; when

Statutes purport to regulate free expression,

the court will permit alleged violators whose

activity could have been regulated under a

narrowly-drawn statute to raise the potential

impact of the statute on third parties.

Dombrowski v. Pfister, 380 U.S. 479 (1965);

Note, "Standing to Assert Constitutional Jus

Tertii", 88 Harvard Law Review 423 (1974-5).

The state's summary proceedings infringe upon

protected association and speech rights;

there is no state interest in regulating all

the activity of the Club, which operated on

private property and in private property and

in privete; any interest the state might have

in regu] ating some activity could be pro-

tected by a less restrictive means than the

19

summary procedures employed here.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this petition

for a writ of certiorari should be granted.

ae Loe mitted,

S. NEPOM and

J. BRADFORD SHILEY

Attorneys for

Petitioners

610 SW Alder Street

Portland, OR 97205

(503) 223-1137

aa Ts

Te

App-1

IN THE COURT OF APPEALS OF THE STATE OF OREGON

The State of Oregon ex rel Harl 15 1973

Haas, District Attorney for RUG +

Multnomeh County, State of Oregon,

Respondent,

No. A 7802-02280

Vv. CA 11302

Club Recreation and Pleasure, an Oregon

nonprofit corporation; Swan Management

Co., an Oregon corporation; and John R.

Tidyman,

Appellants.

kkk KKaRKRE

Appeal from Circuit Court, Multnomah County.

Richard J. Burke, Judge.

Argued and submitted March 19, 1979.

Marvin S. Nepom, Portland, argued the cause and filed

the briefs for appellants.

Frederick Lenzser, Deputy District Attorney, Portland,

argued the cause for respondent. With him on

the brief was Harl Haas, Multnomah County

District Attorney, Portland.

Before Schwab, Chief Judge, and Tanzer, Richardson

and Roberts, Judges.

ROBERTS, J.

Affirmed. —

FILED AUGUST 20, 1979.

i |

YY WO BR AD RD we we we we lll

So FB Pa 2 += 2 3 & S&S 42 2 BB wa @

App-2

ROBER1S, J.

Defendants appeal from an order and decree of the trial

court finding that they had maintained a nuisance by

establishing, maintaining, using and occupying certain premises

for lewdness, assignation and prostitution. Suit was brought

by the state pursuant to CRS 465.110 through 465.130 which

provide for the abatement of certain nuisances. Defendants raise

many challenges to the statutory abatement scheme, several of

which merit our discussion here, and challenge the sufficiency

of the evidence as to one of the trial court's findings et tect.

We affirm.

Defendant Club Pecreation and Pleasure operated the

subject business which was known as the “Pleasure Palace.”

Defendant Tidyman purchased the real property involved in this

suit by a 1972 contract of ead: On September 7, 1977 he

assigned his interest in the subject property to defendant Swan

Management Company for $10. The assignment wes not reccrded.

| For membership and program fees, the Pleasure Palace

offered programs of nude dancing, reading and saunas to its

customers. In September of 1977, after a Portland Police Bureau

vice officer had seen a full page magazine advertisement for

the Pleasure Palace depicting explicit sexual contact, an

undercover police officer visited the establishment. After

baying the membership and program fees, he cortracted with an

>

ol oOlUNCUClCUCUO UW

10

VW

12

13

14

15

16

17

18

19

20

21

22

23

24

App-3

individual emplove for the performance of a sex act in exchange

for money. This scenario was repeated by other police officers

on several different dates; in each case the employe was

arrested.

The state peought suit to have the oremises declared

2 nuisance and the nuisence enjoined oursuant to OPS 465.110

and 465.120 which wrovide:

"Whoever establishes or maintains any place used

for the purpose of lewdness, assignation or

. prostitution or any other immoral act, or a place where

pregnancies are terminated in violation of ORS 435.415,

435.425 and 435.455 is guilty of maintaining a

nuisance. The place where such lewdness, assignation

or termination of preqnancies is conducted or carried

on and the contents of such premises are declared a

nuisance and shall be enjoined and abated as vorovided

in CRE 465.120 to 465.180." ORS 465.110.

"Whenever a nuisance exists under ORS 465.110,

the district attorney shall or any taxpayer of the

county may maintain a suit in equity in the name of

the state to perpetually enjoin such nuisance, the

persons conducting or maintaining: the same, and the

owner, lessee or agent of the building or ground upon

which the nuisance exists." ORS 465.120.

Defendants filed a demurrer raising, inter alia, a

variety of constitutional challenges to the civil nuisance

abatement statutes. The demurrer was overruled. After a trial

to the court, the trial judge held that defendant Club Recreation

and Pleasure had established, maintained, used and occupied the

premises for lewdness, assignation and orostitution, that

defendant Swan Management Company was lessee of the premises,

ee ee)

24

¥

that defendant T‘dyman owned the premises, and that the

activities complained of constituted a public nuisance. The

land and the buildings were ordered “permanently enjoined as a

place in or on which to conduct" the nuisance complained of and

each of the defendants was permanently enjoined and restrained

from conducting, maintzining, using or occupying, or permittina

the use or occupancy of the premises Or any vDremises in Multnomah

County for prostitution. The building was ordered closed for

any use for one year and the contents and movable property in

the building were ordered removed and sold. ORS 465.150.

T

Citing Brown v. Multnomah County Dist. Ct., 280

Or 95, 570 P2d S52 (1977), defendants first contend that although

ORS 465.110 is a civil statute, its purpose and effect is to

control criminal activities and impose criminal sanctions without

providing constitutional safeguards afforded criminal defendants

such as the rights to a jury trial and to have guilt proved

beyond a reasonable doubt. Defendants point out that maintaining

@ place of prostitution is punishable as a crime, ORS 167.012,2

and argue that by using the civil statute, the state is denying

the defendants the rights they would have had if prosecuted under

the criminal statute.

In Brown the Supreme Court was called upon to decide

whether the legislature had successfully decriminalized the first

App-5

offense of drivirj under the influence of intoxicants by calling

it a "traffic infraction" rather than a “traffic crime." The

court in Brown noted that the offense involved arrest, detention,

a possible fine of up to $1000 and entry of conviction upon the

defendant's driving record, as well as collateral consequences

such as suspension of the driver's license, imprisonment for

non-payment of the fine and elevation of any subsequent DUII

charge within five years to a traffic crime.

In the abatement proceeding before us there is no

possibility of incarceration. The Brown court noted that this

factor alone would not decide whether or not a proceeding was

criminal or civil in nature, but stressed its impvortance emong

the factors- to be examined.

The abatement scheme does not provide for a fine,‘ noc

does it require anything to be entered on a criminal record.

At most, a defendant will pay the costs for the sale and removal

of personal property used in conducting the nuisance, ORS

465.150(c)(3) or, if he chooses and the judge is satisfied as

to his good faith, he will secure a bond allowing him to keep

the premises open during the year they would have been closed

upon condition that the nuisance not be reinstated. ORS

465.180.”

The Court of Appeals of Tennessee in analyzing a

~

Similar statute concluded

App-6 App-7

°e © * The provision that the court shall direct

the effectual closing of the building for a year is

Defendants next contend that the abatement proceedinas

«eterna deeb -«

"The statute imposes no penalty upon the owner, 1 authorized by ORS chapter 465 are confiscatory in nature and

nor does it act retrospectivel its whole purpose ;

is prospective, hauesien Sak oe ai object oper al 2 as such amount to a taking of defendants' property without

the prevention, by injunction, of a continuation of R

the illegal use of the property. * * *" State Ex 3 compensation in violation of the Fifth and Fourteenth Amendments

Rel. Webster v. Daugherty, 530 SW2d 81, 86 (WD Tenn ;

App 1975). £7 4 to the United States Constitution. ORS 465.150 (seen 1)

The Court of Acpeals of New York came to a like 5 provides that if existence of a nuisance is established, an

conclusion in examining its statute which, like ours, provides 6 abatement order shall be entered as part of the judgment and

for closing the premises for all purposes for one year unless 7 shall direct that the premises be closed for all purposes for

a bond is posted. 8 One year, unless sooner released, and that personal property

9

used in maintaining the nuisance be sold.

not a forfeiture nor a penalty. It is imposed not 10 The owner of the real or personal property can seek

because the owner of the oremises has committed an 11 : : ‘. .

offense, but because under his ownership a nuisance cancellation of the order upon a showing “that with reasonable

has been created by a person suffered to occupy the eae : -

premises. It constitutes an aporopriate means of 12 care and diligence he could not have known of the illegal use.

definitely and completely ending the nuisance. Its e

character is established by the provision thet, if 13 ORS 465.155. Even where the owner was aware of the illegal

the owner, by filing a bond in the value of the 14 4 1 3 hi

property, gives assurance that ‘he will immediately conduct, he can request that the property be re easec to him

abate said nuisance and prevent the same from being ; cag

established, or kept therein within a veriod of one 15 upon the payment of costs and the filing of a bond to secure

year’ (§ 343-v), the court may, when satisfied of the ; ,

good faith of the owner, cancel the order of 16 that the nuisance not be reinstated. ORS 465.180. Where

abatement.” Peovle ex rel Lemon v. Elmore, 256 NY 17 .

489, 177 NE 14. le (1521). personal property is sold, the proceeds, less costs, are

We similarly conclude that rather than circumventing 18 recoverable by the owner. ORS 465.170. :

c < ; F P

the criminal statute, the civil abatement statute serves an 9 While the owner may be temporarily deprived of the

entirely different purpose, i.e. that of providing prospective 20. use of the real property and will permanently lose the use of

equitable relief from continuation of the nuisance. See Annot., 4) personal property used for conducting the nuisance, the state

75 ALR 1298 (1931). 22 has a valid interest in prohibiting the illegal use of property

II 23 and the above-listed safeguards prevent the deprivation from

24 amounting to an unconstitutional taking. Accord, Peovle ex rel

wo wn

>

App-8

Difinis v. Putia, 65 Ill App 3d 1027, 383 NE2d 763 (1978); The

Peovle v. Smrth, 275 Ill 256, 114 NE 31 (1916); Pompano Horse

Crub et al., v. State of Plorida, 93 Fla 415, 111 So 801, 807,

92 ALR 51 (1927).

IiIt

Defendants further contend that ORS 465.155

unconstitutionally shifts the burden of proof to the defendant.

ORS 465.155 provides that the owner of any real or personal

property closed or restrained by an abatement order pursuant

to ORS 465.150 may

ee 8 @ appear at any time between the filing of

the complaint and the trial and show cause why the

court should cancel or refrain from issuing any decree

Or orders as against him. Such owner, in order to

obtain such relief, must prove to the satisfaction

of the court that he is the Yawful owner of said

property and, further, that with reasonable care ena

Giligence he could not have known of the ritecalt use

ot his Droperty.” (Emphasis supplied.)

places the burden of proof on the

ORS 465.130°

Plaintiff by requiring a showing in the complaint or by affidavit

that a nuisance exists. There is no requirement that the

plaintiff prove knowledge on the part of the owner in order ‘to

show that an abatable nuisance exists. ORS 465.155 makes

available to the defendant an affirmative defense at any stage

of the proceedings prior to trial by which he may show that he

had no knowledge of the nuisance and in this way avoid those

parts of the abatement order which would be personal to

App-9

him, i.e., the selling of personal property or the order that

he may not use real property for anv purpose for a year.

Defendant has the burden of going forward with the evidence as

to this affirmative defense; the burden of proof as to

establishing the existence of the nuisance is not affected.’

IV

Defendants next contend that ORS 465.110 does not

permit the application of the abatement scheme to places

maintained for prostitution.

ORS 465.110 states in relevant part:

“Whoever * * * maintains any place used for the

purpose of lewdness, assignation or prostitution or

any other immorai act, or @ place “where preqnencres

are terminatea * * * is guilty of meintaining a

nuisance. The place where such lewdness, assicqnation

or termination of pregnancies is conducted or carried

On and the contents of such premises are declared a

nuisance and shall be enjoined and abated as provided

in ORS 465. 120 to 465.180.”

Defendants contend that the legislature specifically

excluded the word “prostitution” from the second sentence of

the statute and did not intend the abatement procedures to apoly

to prostitution. .

In Lane County v. Herntz Const. Co. et at, 228 Or 152,

364 P2d 627 (1961), the Supreme Court stated:

"The insertion of words inadvertently omitted

Or the alteration of the language of a statute by a

court 1S a power always cautiously exe-cised and never

employed unless it can be clearly seen that to do so

is necessary to effectuate the legislative intent.

se 3". e208 Ce at i160.

App-10

In this case to construe the statute as urged by the

defendants would lead to an absurd result. We do not believe

it was the legislative intent to carefully name those activities

which constitute nuisances and then provide a remedy for only

some,

We, therefore, view the omission of the word

“prostitution” from the second sentence as an oversight and hold

that the abatement proceedings are intended to apply to places

used for prostitution.

Vv

Defendant further contends that the words “lewdness"

and "assignation" have no definite meaning and are void for

vagueness under the due process clause of the Fourteenth

Amendment to the United States Constitution. In construing the

Statute, we look to the natural and obvious meaning of the

words. State ex rel Nitsen v. Hemstreet, 7 Or App 474, 478,

491 P2d 1185 (1971). Lewdness is defined as "gross indecency

sO notorious as to tend to corrupt the community's morals.”

Black's Law Dictionary 1052 (rev 4th ed 1968). An assignation

is "an appointment of time and place for a meeting especially

for illicit sexual relations." Webster's Third New International

Dictionary, 132 (1976). We find that these terms are not

unconstitutionally vague.® Accord, State ex rel. Webster v.

Daucherty, supra; Henstey v. City of Norfolk, 216 Va 369, 216

App-11

9

SE2d 735 (1975).

VI

Finally, defendants claim that there was insufficient

evidence to prove that defendant Tidyman was owner of the

property and that, even if he were the owner, there was

insufficient evidence to show that he knew of the lewdness,

asSignation and prostitution on the premises.

We agree with the trial court that defendants hed not,

by the unrecorded assignment to defendant Swan Management for

a sum of $10, given up ownership of the subject property.

As to defendants' second contention, nowhere in the

Statutory scheme is actual knowledge on the part of the owner

required in order to prove existence of and to abate the

nuisance. ORS 465.110 provides that a place used for

prostitution is a nuisance per se. "Common fame" of the premises

as a house of prostitution is all that is required to establish

the existence of the nuisance. ORS 465.140. ORS 465.120

provides for permanently enjoining the owner from maintaining

the nuisance and ORS 465.150 provides for closing the building

for one year for any purpose. Neither statute requires the owner

to have knowledge of the prohibited activity in order for the

court to order abatement. Instead, as discussed above, the owner

may raise his lack of knowledge as an affirmative defense in

order to avoid those parts of the abatement order which would

=j6-

be personal to him.

App-12

Defendants did not do so.

ORS 465.155.

We conclude that the trial court acted correctly

in issuing the abatement order.

Affirmed.

«tte

—

App-13

POOTNOTES

While the trial court's findings of fact state that the premises

were used for lewdness, assignation and prostitution, the

abatement order names only prostitution in its statement of the

use to be enjoined.

ORS 465.150 provides:

"(l1) If the existence of the nuisance is”

established in a suit under ORS 465.120, an order of

abatement shall be entered as a part of the judgment

in the case. This order shall direct:

"(a) Removal from the building or place of all

fixtures, furniture, instruments, appliances,

medicines, drugs, contents or movable property used

in conducting the nuisance.

"(b) Sale of the property removed in the manner

provided for the sale of chattels under execution.

"“(c) The effectual closing of the building or

place against its use for any purpose, and so keeping

it closed for a period of one year, unless sooner

released.

"(2) No person shall break and enter or use a

building, erection or place so directed to be closed. c

"(3) For removing and selling the movable

property, the officer shall be entitled to charge and

receive the same fees as he would for levying upon

and selling like property for execution. For closing

the premises and keeping them closed a reasonable sum

shall be allowed by the courts.”

«} Se

Nn Oo WG

Oo @®

10

1

12

13

14

15

16

17

18

19

20

21

22

23

24

App-14

ORS 167.012 provides:

"(1) A person commits the crime of promoting

prostitution if, with intent to promote prostitution,

he knowingly:

“(a) Owns, controls, manages, Supervises or

otherwise maintains a place of prostitution or a

Drostitution enterprise; or

"(b) Induces or causes a person to engage in

prostitution or to remain in a place of prostitution;

or

"(c) Receives or agrees to receive money or other

property, other than as a prostitute being compensated

for personally rendered prostitution services, voursuant

to an agreement or understanding that the money or

other property is derived from a prostitution activity;

or

"(d) Engages in any conduct that institutes,

aids or facilitates an act or enterprise of

prostitution.

"(2) Promoting prostitution is a Class C felony.

(Emphasis supplied.)

4

Defendants point to the fact that violation of any injunction

granted under the abatement statutes is a contempt of court and

‘

subjects the violator to a fine of up to $1000 or imprisonment

of up to six months (ORS 465.160 and 465.990) as indictative

of the punitive intent of the abatement scheme. However, these

possible punishments are for contempt of court and not for

Maintaining the nuisance.

They,

therefore,

are not factors to

be considered in weighing the possible punitive intent of the

abatement procedure.

ih Oe

Ebo iLS e> St eB

In this case no preliminary injunction was issued.

App-15

ORS 465.180 provides:

"If the owner or lessee of the premises appears

and pays ali costs of the proceeding, and files a bond

with sureties to be approved by the clerk in such sum

as the court may deem necessary, not to exceed the

full value of the property to be ascertained by the

courc, or in vacation, by the clerk of the court,

conditioned that he will immediately abate said

nuisance and orevent the same from being established

or kept therein within a period of one year thereafter,

the court, oc in vacation, the judge, may, if satisfied

of his good faith, order that the premises which have

been closed under the order of abatement be delivered

to the owner or lessee and that said order of abatement

be canceled so far as it may relate to said property.

If the bond is given and costs therein are paid before

judament and order of abatement, the suit shall be

thereby abated as to said building and owner only."

ORS 465.130 provides in relevant part:

"(1) No preliminary injunction or restraining

order shall issue without notice, but when such order

is prayed for in the complaint and it appears from

the facts shown by affidavits or by the complaint that

a mulsance exists and tha the public interest and good

morals require its prompt abatement, the court or judge

thereof shall make an order fixing the time for the

hearing of such application not less than three nor

more than five days after service of notice on the

defendant. Upon such hearing the court shall inquire ,

into and dispose of the matter and for that purpose

May receive evidence in the form of affidavits, oral

Or documentary testimony.

"(2) If it appears to the satisfaction of the

court that such nuisance exists and that public morals

anc good order require that it be promptly abated,

the court shall issue the preliminary injunction as

prayed for."

The trial

@-L4-

Apo-16

judge, upon agre-ment of the attorneys, heard all of the evidence

in the case and then issued a final judgment and abatement order,

rather than holding a separate hearing on a preliminary

injunction.

-

We note that this issue is not, in any event, of constitutional

proportion since the United States Supreme Court has held that

"Outside the criminal law area, where special concerns attend,

the locus of the burden of persuasion is normally not an issue

of federal constitutional moment." Lavine v.- Matne, 424 US 577,

47 L Ed 2d 249, 256, 96 S Ct 1010 (1976).

8

We have previously held that the term “lewd" is not

unconstitutionally vague as used in ORS 472.180(5). Palm

Gardens, Inc. v. OLCC, 15 Or App 20, 31, 514 P2d 888 (1973).

That statute reads in relevant part:

‘

""'The commission may cancel or suspend any license

granted if it finds:

""(5) That the licensee maintains a noisy, lewd,

disorderly or insanitary establishment or has been

supolying impure or otherwise deleterious beverages

oc teod.**

9

Defendants also challenge certain language in ORS 465.130

«f hu

App-17

(see n 5) as unconstitutionally vague, as well as claiming that

that statute violates due process requirements because it does

not require a finding of “irreparable injury" before allowing

a preliminary injunction to issue. We decline to reach these

challenges because no preliminary injunction was issued in this

case (see n 5).

~16~