APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 18, 1975.
Defendants appeal from a preliminary injunction enjoining them from operating the "Gaisha Bath House." They contend that the amended complaint fails to allege conduct which constitutes a public nuisance; improperly seeks to enjoin criminal conduct; and fails to allege facts sufficient to support an injunction. They further contend that the injunction lacks specificity.
On January 8, 1975, plaintiff filed a verified amended complaint seeking to enjoin defendants from operating their business and alleging that defendants operate the "Gaisha Bath House" at 4816 N. Western Avenue in Chicago; that they purport to furnish baths there but in fact provide "blatantly sexual genital stimulation"; that on July 18, 1974, Police Sergeant Henry Kramer went to the "Gaisha Bath House" and after paying $25 "was taken into a small room in the premises where a completely nude female offered to and did in fact fondle and stroke his penis"; that similar conduct occurred at the "Gaisha Bath House" on August 19, 1974, August 27, 1974, October 18, 1974, October 25, 1974, and December 27, 1974; that employees of the "Gaisha Bath House" have been arrested on at least six separate occasions for violating section 192-1 of the Municipal Code of Chicago (Chicago, Ill., Mun. Code, ch. 192, par. 1); that plaintiff has no adequate remedy at law since such arrests have had no effect and such blatantly sexual conduct continues despite the irreparable injury being suffered by the citizens of Chicago; and that such conduct "is deleterious and a menace to the health, safety, or general welfare of the community and constitutes a public nuisance." Plaintiff also filed a verified motion for a temporary restraining order. The complaint and the motion were verified by Chicago Police Officer Jerry P. Leahy who on oath stated that "he has knowledge of the statements and allegations in the foregoing complaint and that such allegations are true in substance and in fact." The trial court entered a temporary restraining order, to expire on January 18, 1974, enjoining defendants "from operating [the `Gaisha Bath House'] where illegal, lewd and blatantly sexual genital stimulation is occurring."
On January 17, 1975, defendants filed a motion to strike and dismiss the amended complaint and a motion to vacate and set aside the temporary restraining order raising substantially the same issues raised on appeal.
On the same day, plaintiff filed a verified motion for a preliminary injunction based upon the amended complaint and defendants renewed their objections.
After hearing arguments of counsel, the trial court denied defendants' motions and ordered them to answer the amended complaint. The court also entered a preliminary injunction holding that "the blatantly sexual conduct purported to be baths that is occurring at the premises located at 4816 N. Western Avenue, Chicago, Illinois, constitutes a public nuisance" and enjoined defendants during the pendency of the proceedings "from operating this purported bath house at 4816 N. Western Avenue, Chicago, Illinois, where illegal, lewd, and blatantly sexual genital stimulation is occurring." Defendants appeal from the entry of the preliminary injunction.
In the instant case, defendants did not file an answer to the amended complaint. Therefore, no evidentiary hearing was required. (See Centennial Laundry Co. v. West Side Organization, 34 Ill.2d 257, 215 N.E.2d 443.) Instead, they filed a motion to strike and dismiss. Accordingly, the well-pleaded factual allegations of the amended complaint must be taken as true. (H.K.H. Development Corp. v. Metropolitan Sanitary District, 47 Ill. App.2d 46, 196 N.E.2d 494; Dunne v. County of Rock Island, 273 Ill. 53, 112 N.E. 342.) Thus, we are presented only with questions of law.
Defendants contend that plaintiff's amended complaint failed to allege conduct constituting a public nuisance. Their contention may be summarized as follows: (1) The legislature must define a public nuisance. (2) Since the legislature has not defined masturbatory massage parlors *fn1 to be public nuisances, masturbatory massage parlors are not public nuisances.
• 1 Defendants' initial proposition is erroneous. Notwithstanding contrary dicta in the case of People v. Goldman, 7 Ill. App.3d 253, 287 N.E.2d 177, the legislature need not define a public nuisance. A public nuisance is a separate and distinct civil cause of action under the common law, unrelated to legislative enactments. People ex rel. Dyer v. Clark, 268 Ill. 156, 108 N.E. 994.
Moreover, defendants' argument is based upon their assumption that their conduct is not "prostitution" under the laws of nuisance. They rely solely upon the definition of "prostitution" under the Criminal Code which defines the term to mean acts of "sexual intercourse"' or "deviate sexual conduct" for money. (Ill. Rev. Stat. 1973, ch. 38, par. 11-14.) "Deviate sexual conduct," for purposes of the Criminal Code, "means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another." (Ill. Rev. Stat. 1973, ch. 38, par. 11-2.) Thus, by omission, "prostitution," under the Criminal Codes, does not expressly include the type of commercial conduct involved in the instant case acts of sexual gratification involving the sex organs of one person and the hand of another.
However, defendants' reliance upon the definition of "prostitution" under the Criminal Code is misplaced. They have ignored section 1-4 of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 1-4) which specifically provides:
"This code does not bar, suspend, or otherwise affect any * * * other remedy authorized by law to be * * * enforced in a civil action, for any conduct ...