APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 19, 1978.
Defendants, Salvatore Cecola, Juan Cruz, John Spadeas, Jeffrey C. Weiss, and Norman McCray, doing business as the Harem Leisure Spa, their agents and employees, and other unknown owners, appeal from the entry of a permanent injunction which found that because illegal, lewd, and blatantly sexual genital stimulation was occurring at the Harem Leisure Spa, the spa was a public nuisance. The defendants were perpetually enjoined from operating their business at 839 North LaSalle, Chicago, Illinois, their business address. The trial court granted a stay on its order, pending this appeal.
The issues presented for review are (1) whether the Harem Leisure Spa was a public nuisance and (2) did the city allege an inadequate remedy at law to entitle it to equitable relief.
On February 20, 1975, the City of Chicago filed a complaint against the defendants, alleging that the defendants provided blatantly sexual genital stimulation at the Harem Leisure Spa, located at 839 North LaSalle, Chicago, Illinois. The complaint further alleged that on six separate dates arrests were made at the spa for violations of section 11-14(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 11-14(a)(2)) and section 192-1 of the Municipal Code of Chicago (Chicago, Ill., Mun. Code, ch. 192, par. 1). Specific incidents of sexual genital stimulation were set forth in the complaint as follows: (1) That on September 3, 1974, a female employee at the spa agreed to engage in oral copulation with an undercover police officer for $45 and (2) that on September 9, October 25, December 1, December 7, and December 15, 1974, a female employee fondled undercover police officers' genitals for $15 on each occasion. It was further alleged that the described conduct was deleterious and a menace to the health, safety or general welfare of the community, and constitututed a public nuisance. Finally, the city asserted that it had no adequate remedy at law as the numerous arrests had no effect in eliminating the illegal activity.
The defendants filed an answer contending that sexual genital stimulation provided at the spa was permitted by law and denied that the arrests were valid or proper. The defendants further denied that the conduct was a nuisance, that such conduct was causing irreparable injury to the citizens and residents of the city of Chicago, and that the city had an adequate remedy at law.
The defendants asserted four affirmative defenses: (1) That the Municipal Code of Chicago regarding public nuisances (Chicago, Ill. Mun. Code, ch. 192, par. 1) violates the due process clause of the fourteenth amendment to the United States Constitution and the due process clause of the Illinois Constitution, article I, section 2, insofar as the ordinance is so vague that a reasonable person could not be expected to conform his conduct to the requirements of the law; (2) because the plaintiff failed to inform the circuit court of the pendency of a Federal case challenging the constitutionality of the ordinance, plaintiff came into court without clean hands; (3) that the activity on the spa premises was permitted by law and could not be the basis for a determination that the business of the spa was a public nuisance and (4) because the city took 6 months from the opening of defendants' business before filing its complaint, plaintiff is guilty of laches.
The parties stipulated that there was one act of prostitution on the premises for which a female employee was convicted, and that on the dates alleged in the complaint female employees of the spa did fondle and stroke the genitals of members of the Chicago Police Department in private cubicles for money. No testimony was received that any person outside the premises was affected or annoyed by the activities conducted at the spa.
The trial court found the sexual activities at the Harem Leisure Spa to be a public nuisance and enjoined the defendants from operating the business where illegal, lewd, and blatantly sexual genital stimulation was occurring. This appeal followed.
Defendants contend that since no testimony was received into evidence showing that anyone outside the premises was affected or annoyed by the conduct inside the spa, the city has failed to establish that a public nuisance in fact existed. They further assert that there is no statute in Illinois nor an ordinance in the city of Chicago which declares that a place where manual fondling of genitals occurs is a nuisance. By their assertions, defendants intimate that section 192-1 of the Municipal Code of the City of Chicago (Chicago, Ill., Mun. Code, ch. 192, par. 1) and section 1 of the Illinois public nuisances act (Ill. Rev. Stat. 1973, ch. 100 1/2, par. 1) are so vague that both violate the due process clauses of the United States and Illinois constitutions.
The city argues that the trial court properly used its discretion in determining that there was sufficient evidence to find the Harem Leisure Spa was a public nuisance, as the activity occurring therein was deleterious to the health, safety, morals, or general welfare of the community. It further asserts that City of Chicago v. Geraci (1975), 30 Ill. App.3d 699, 332 N.E.2d 487 is controlling.
1-3 Nuisances are classified as either public or private. A nuisance is public when it is dangerous or injurious to the general public; a private nuisance is one that affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public. (People ex rel. Carey v. Route 53 Drive-In (1976), 45 Ill. App.3d 81, 84, 358 N.E.2d 1298, 1300; Edelman Bros., Inc. v. Baikoff (1934), 277 Ill. App. 432, 441-42.) Public nuisances may be classified as nuisances per se and nuisances in fact. Nuisances per se are those activities which are inherently nuisances under any circumstances, and nuisances in fact are those activities which although not inherently nuisances, become so due to the manner in which they are carried out. (See City of Pana v. Central Washed Coal Co. (1913), 260 Ill. 111, 102 N.E. 992; Symposium: The Law of Nuisances in Illinois, 43 Chi.-Kent L. Rev. 173, 182 (1966); 58 Am.Jur.2d Nuisances §§ 12, 13 (1971).) Generally, no act, erection, or use of property which is lawful or authorized by competent authority can be a nuisance per se, nor is property which may be and ordinarily is used for a lawful purpose a nuisance per se. (58 Am.Jur.2d Nuisances § 13 (1971).) Finally, it appears that public nuisances per se are defined either by common law or by legislative enactment. Compare People ex rel. Dyer v. Clark (1915), 268 Ill. 156, 108 N.E. 994, with People v. Goldman (1972), 7 Ill. App.3d 253, 287 N.E.2d 177.
In order to determine whether the Harem Leisure Spa is a public nuisance, we must resolve two questions: (1) Has the City Council enacted an ordinance declaring masturbatory massage parlors a public nuisance, and, if so, will such ordinance withstand constitutional attack, and (2) were masturbatory massage parlors public nuisances at common law? Before resolving these questions, it should be noted that in City of Chicago v. Geraci (1975), 30 Ill. App.3d 699, 704, 332 N.E.2d 487, 492, the Illinois Appellate Court, First District, held that the Illinois public nuisances act (Ill. Rev. Stat. 1973, ch. 100 1/2, par. 1) and section 192-1 of the Municipal Code of Chicago were applicable to masturbatory massage parlors. Although there was some discussion about the vagueness of the words employed in the statute and ordinance, it is not clear from the text of the case whether the defendants attacked these laws as being unconstitutional or whether the court sufficiently resolved the question of the constitutionality of the statute and ordinance. Next, it should be noted that the Illinois public nuisances act was attacked on constitutional grounds in People ex rel. Hanrahan v. La Salle National Bank (1976), 38 Ill. App.3d 461, 348 N.E.2d 220, but the issue was not resolved because the appellants in that case failed to appeal the order granting the permanent injunction. Because question one above has not been resolved, we will attempt to do so now. See Jamaica Inn, Inc. v. Daley (1977), 53 Ill. App.3d 257, 264, 368 N.E.2d 589, 594.
Because this action was brought pursuant to section 192-1 of the Municipal Code of Chicago, we will direct our attention to this section and not to the Illinois public nuisances act. Section ...