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04/11/78 COMMONWEALTH v. UNITED FOOD CORPORATION

April 11, 1978

COMMONWEALTH
v.
UNITED FOOD CORPORATION



Suffolk. Civil action commenced in the Superior Court on January 28, 1977. The case was heard by Flynn, J., a District Court Judge sitting under statutory authority. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Prostitution, Maintaining premises for. Evidence, Reputation, Failure to produce witness, Admissions and confessions. Jurisdiction, Civil, Criminal acts. Contempt. Constitutional Law, Trial by jury, Contempt proceeding. District Attorney.

The opinion of the court was delivered by: Wilkins

The word "prostitution" as used in G. L. c. 139, § 4, is not unconstitutionally vague and includes within its meaning the indiscriminate solicitation of any sexual act for hire. [767]

In a civil proceeding under G. L. c. 139, §§ 4-13, 19-20, seeking relief against the maintenance of a nuisance, based on an allegation that the premises were used for prostitution, there was no error in the admission under § 9 of certain evidence as to the reputation of the premises as a place where sexual activities were available for a price. [767-770]

Evidence in a civil proceeding under G. L. c. 139, §§ 4-13, 19-20, warranted a finding that the defendant's premises were used for prostitution and, therefore, constituted a nuisance within the meaning of § 4. [770-773]

Where the Legislature has provided that a particular use of property constitutes a public nuisance, an injunction against the future maintenance of the nuisance may properly be entered without a jury trial and without proof that the conduct constituting a nuisance caused actual harm to public or private interests. [773-779]

The mandatory judgment provisions of G. L. c. 139, § 9, are unconstitutional under art. 12 of the Massachusetts Declaration of Rights in that they may result in the confiscation of property to punish the commission of a crime without a jury trial. [779-781]

In a civil proceeding under G. L. c. 139, §§ 4-13, 19-20, the Judge did not abuse his discretion in declining to order a district attorney to testify concerning his purpose in commencing the proceeding. [782-783]

The defendant United Food Corporation (United) operates a business under the name of the Two O'Clock Lounge in a so called adult entertainment area on Washington Street in Boston. United leases premises in which there are three stages on which nude dancing is performed. The premises are owned by each of two other defendants below, who are not appellants. The district attorney for Suffolk County commenced this civil proceeding under G. L. c. 139, §§ 4-13, 19-20, seeking relief against the maintenance of a nuisance, based on an allegation that the premises were used for prostitution.

A Judge heard the case in the Superior Court without a jury, concluded that acts of prostitution had occurred on the premises, ruled that the premises were a nuisance within the meaning of G. L. c. 139, § 4, and entered a judgment permanently enjoining the defendants from directly or indirectly maintaining the nuisance on the premises. He further directed the sheriff "forthwith to take possession of these premises and sell the furniture, fixtures, musical instruments and moveable property used in maintaining the nuisance in the manner provided by G.L. c. 139, § 9." *fn1 The judgment was stayed, on certain conditions, pending United's appeal. We granted the Commonwealth's request for direct appellate review.

United raises a variety of challenges to the judgment. We reject those contentions which challenge the finding that a nuisance (use of the premises for acts of prostitution) existed on the premises, and we uphold the judgment in so far as it enjoins United from maintaining the nuisance. We conclude, however, that the statutory directions that a defendant's movable personal property must be seized and sold and that the premises must be conditionally closed for one year contain a punitive element which is constitutionally improper in an equitable proceeding to abate a nuisance.

1. United contends that the finding that the premises were used for prostitution is unsupported, arguing that neither (a) the solicitation of sexual acts for hire, as opposed to the acts themselves, nor (b) the solicitation of sexual acts other than coitus constitutes prostitution. As a corollary to this contention, United argues that, in its reference to prostitution, the statute is unconstitutionally vague in violation of Federal and State requirements of due process of law. In our recent opinion in Commonwealth v. King, ante 5, 12-13 (1977), we rejected a claim that the word "prostitution" was unconstitutionally vague and concluded that the indiscriminate solicitation of any sexual act for hire was embraced ...


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