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People Ex Rel. Difanis v. Futia

OPINION FILED DECEMBER 5, 1978.

THE PEOPLE EX REL. THOMAS J. DIFANIS, STATE'S ATTORNEY OF CHAMPAIGN COUNTY, PLAINTIFF-APPELLEE,

v.

LEONARD FUTIA ET AL., D/B/A TENDER TOUCH LEISURE SPA, DEFENDANTS. — (ROBERT L. MCINTOSH ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Robert McIntosh and Roy McIntosh appeal from the order of the trial court finding described premises to be a public nuisance under the provisions of "An Act regarding places used for purposes of lewdness, assignation, or prostitution * * *" (Ill. Rev. Stat. 1975, ch. 100 1/2, pars. 1 through 11 inclusive), and enjoining them from maintaining the use of such property as a nuisance, enjoining the use of the building for any purpose for the period of one year, and ordering the sheriff to remove and sell the furnishings which the court shall determine had been used for purposes of prostitution.

The trial court granted a stay of the order pending appeal upon the filing of a bond and permitting a use of the premises to be approved by the court.

The action was originally filed against Roy McIntosh, Leonard Futia, and Frank Futia, doing business as Tender Touch Leisure Spa. The public records disclose that Roy McIntosh is the holder of legal title to the real estate. The testimony is that he holds title for the benefit of his brother, Robert, who asserts all beneficial interest in the property. Following the entry of a preliminary injunction on November 18, 1977, Robert McIntosh filed the petition to intervene as holder of the beneficial title on November 28, 1977. He was permitted to so intervene and hereafter will be referred to as the defendant, McIntosh.

The record shows arrests for prostitution made on the premises on June 17, 1977, July 30 and November 17, 1977. The testimony establishes that patrons were admitted through a locked door upon the payment of a fee or admission in the sum of $25. One undercover officer was told by the individual who received the fee and opened the door that such fee entitled the patron to a room, a girl, and to a massage, and that the fee was $35 for a girl and a private room. The manager, as well as one or more of the girls, advised that the latter worked for tips and received no part of the admission fee. McIntosh testified to the same effect.

Upon admission, patrons went to a small waiting room and chose a girl from amongst those present, or those who came into the room. Two of the rooms used were equipped with massage tables and three were furnished with beds. The testimony of several witnesses is to the effect that while administering the massage the girls wore no clothes, or very thin negligees. The massage was given while the patrons were naked.

Defendant urges that the sanction of injunction is not justified for the reasons: (1) That the prostitution in June and July occurred while he was lessor of the premises and that it is not alleged or shown that he had knowledge of the prostitution; (2) that one act of prostitution occurring after he resumed control is insufficient to charge that the premises were a nuisance as a house of prostitution; and (3) that upon learning of the arrests for prostitution he made a good faith effort to prevent the nuisance.

Robert McIntosh testified that he leased the premises to Leonard Futia effective June 9, 1976, and that upon learning of the arrests for prostitution on the premises terminated the lease on August 12, 1977. He further testified that he had lived on the premises described as a one-story frame building since August 12, and that he had forbidden the women employees to engage in prostitution and had told them that he would prosecute any of them who did so. He testified that he employed all of the women who worked on the premises, but that he did not pay them any wages.

The record does not necessarily support the proposition that McIntosh was an innocent landlord, wholly disassociated from the operation of the Tender Touch. The record shows that McIntosh and Leonard Futia received a warranty deed dated September 19, 1975, as tenants in common of the premises. This deed was recorded on May 3, 1977. By quit claim deed dated and acknowledged on June 9, 1976, and recorded on December 8, 1976, Leonard Futia conveyed to Roy McIntosh. By quit claim deed dated October 14, 1976, acknowledged December 14, 1976, and recorded June 6, 1977, Robert McIntosh conveyed to Roy McIntosh.

The record contains an agreement between Futia and McIntosh dated June 9, 1977, which recites that "they have until recently conducted a business on the aforesaid real estate under the name of Tender Touch * * *" but that they have decided to terminate and sever their business relationship. McIntosh agreed to lease the premises for $400 per month for a period of one year and assigned his right in the business to Futia. The agreement also recites that McIntosh assigns all personal property to Futia, and Futia assigned all rights in the fixtures to McIntosh. This agreement also recites that McIntosh opened a massage parlor under the name of Pleasure Island in Champaign and Futia waives all claim to any interest in that business and to the profits, funds, or property of Tender Touch which had been transferred to Pleasure Island.

The series of transactions supplies substantial evidence that McIntosh was aware of the nature and quality of the business of operating a massage parlor. Despite the terms of the purported agreement whereby the furnishings were assigned to Futia, there is testimony that in November 1977, the furnishings on the premises appeared to be the same as those observed upon the occasion of the arrests in June and July.

Upon the issue of want of knowledge of the acts of prostitution, the trial court noted that in addition to the fact that McIntosh lived upon the premises from August to November, the method of operation remained the same as during the period of the alleged lease to Futia, i.e., patrons were admitted through a locked door upon a payment of the same fee, were advised that the girls worked for tips and that the women were described as masseuses while naked, or in transparent negligee.

Section 5 of "An Act regarding places used for purposes of lewdness, assignation, or prostitution * * *" (Ill. Rev. Stat. 1977, ch. 100 1/2, par. 5) provides, in part:

"No injunction may issue against an owner, nor may an order be entered requiring that any building or apartment, or any place be closed or kept closed, if it appears that such owner and his agent have ...


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