A-3263234
Decided by Board April 1, 1948
House of prostitution, found managing — House of assignation distinguished — Deportation charge under section 19, Immigration Act of February 5, 1917, as amended — Evidence — Convictions in violation of section 1196 and section 1179 of the Compiled Ordinances of the City of Tampa, Fla. (1947) — Testimony.
An alien convicted in 1947 for unlawfully accompanying another person to a room in his hotel for immoral purposes, and also a short while later for maintaining a disorderly house for the purpose of prostitution, in violation respecitively of section 1196 and section 1179 of the Compiled Ordinances of the city of Tampa, Fla., will not be found subject to deportation under section 19 of the Immigration Act of February 5, 1917, as amended, on the ground he was found managing a house of prostitution, since the evidence adduced merely shows the hotel was utilized as a place of assignation on the occasion in question, and the evidence of record cannot be considered reliable, probative, and substantial upon which to rest a clear and convincing finding that the hotel in question is a house of prostitution.
CHARGE:
Warrant: Act of 1917 — Found managing a house of prostitution.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the Acting Commissioner of December 17, 1947, directing appellant's deportation to Canada.
There is no issue on the question of alienage. The sole issue is with reference to whether there is substantial evidence to support the charge. The warrant of arrest in this proceeding, which issued July 1, 1947, charges that the appellant, after his entry into the United States, has been found managing a house of prostitution.
The appellant, a native and citizen of Canada, age 37, was admitted to the United States at Beecher Falls, Vt., on April 18, 1938, for permanent residence. He was first admitted for permanent residence September 8, 1925, and returned to Canada in 1934. He last entered at Beecher Falls, Vt., during August 1946, following a visit to Canada of 1 day.
Appellant is the sole owner of the Venetian Hotel located in Tampa, Fla., which he acquired on March 6, 1947. The hotel consists of 21 rooms.
On June 22, 1947, appellant was arrested at Tampa, Fla., and charged with unlawfully accompanying another person on that date to a room in said hotel for immoral purposes, in violation of section 1196 of the Compiled Ordinances of the City of Tampa, Fla. He pleaded not guilty, but was found guilty and fined $100.
This ordnance is not part of the record.
On June 29, 1947, appellant was again arrested and charged with maintaining a disorderly house for the purpose of prostitution, known as the Venetian Hotel, in violation of section 1179 of the Compiled Ordinances of the city of Tampa, Fla. He pleaded not guilty, but was found guilty and again fined $100.
This ordinance is not part of the record.
Appellant testified that on June 29, 1947, his hotel was raided and that he, four women and two other men were taken into custody; that they were F---- F----, D---- G----, R---- J----, Sergeant W----, and two others whom he did not recall. He stated all these persons were registered guests at the hotel and that he had no knowledge that prostitution was being conducted at the hotel. In explaining what occurred prior to said arrest, appellant testified:
Q. Prior to your arrest on the night of June 29, 1947, please explain in full just exactly what took place in your hotel.
A. On Thursday night, G.C. W---- rented a room for a week at $7. He registered as Mr. and Mrs. G.C. W----. On Sunday night he invited another soldier into his room. I was out of the hotel. They had trouble in the room, making noise, so the girl who took my place called the police. In a little while they came and got the two soldiers and the girl in room 30. The girl taking my place called up and told me that Mr. B---- wanted to see me. I took my book and went down to the police station. He wasn't there. When I went back to the hotel, about half way up the stairs, a policeman called me back. They took me down to the police station. A half-hour afterward they came back, arrested the girl who was taking my place, arrested another girl in her bedroom by herself, and the third one in her bedroom, lying on the bed, by herself.
Q. What was the name of the girl who called the police?
A. R---- J----.
Q. You have stated that Sergeant G.C. W---- had registered at the hotel the Thursday before; is that correct?
A. Yes.
Q. Had he registered at this hotel prior to that?
A. Yes; I think so.
Q. Did you talk with him on Thursday when he registered?
A. I don't believe I did.
Q. Did you talk with him at any time while he was a guest at your hotel?
A. Yes, I did.
Q. Did you know the girl whom he registered as his wife?
A. No.
* * * * * * *
Q. G----, this girl who called the police, R---- J----, was a tenant of yours. Is that correct?
A. Yes.
Q. Is it not true also that you were out of the hotel when the police came and when she called them?
A. Yes.
Q. Now is it not true that when you left the hotel, as you had on previous occasions, leaving her in charge, you told her that if there was any disturbance to call the police?
A. Yes.
Q. Is it not true that you told her that if she had any difficulty with the tenants to call the police?
A. I told D---- that. She always took my place.
Q. Is it not true that these three girls who were arrested by the city police as being in a house of prostitution were tenants of yours, each having rented and occupied a separate room of her own?
A. Yes.
Q. Is it not true that they were found "not guilty" in court?
A. Yes.
Q. Is it not also true that Sergeant W---- registered with a woman and represented her to be his wife and he put that on the register?
A. Yes.
Q. The certain woman here at this hotel who was found guilty of engaging in prostitution or an immoral act, whatever the specific charge was-did you know her?
A. No.
Q. Did you know that she was in Sergeant W----'s room?
A. No; I didn't know it, because I had been gone.
Q. Did you know that she was in any soldier's room, or any man's room?
A. No.
Q. Have you ever rented rooms to men and women who were not husband and wife?
A. Not if I know it.
Q. Have you rented rooms to them for the purpose of committing an immoral act?
A. I never rent a room to a man and woman if I knew they weren't married.
Q. Were not the facts that were raised in police court under which you were convicted-first, the testimony of R---- J---- did she not testify that she called the police because two soldiers were drunk and running up and down the hall?
A. Yes.
Q. Did she not also testify in police court that she had lived there for several months and to her knowledge this was not a house of prostitution?
A. Yes.
Q. The girl whose name you don't remember-who came into your hotel-wasn't evidence submitted in police court that you did not know this girl?
A. I had never seen that girl before.
Q. And you heard no conversation between her and Sergeant W---- or any other soldier?
A. I thought this girl was Mrs. W----.
Q. And that you did not know anything about this other soldier except that he was a friend of Sergeant W---- and had come to visit him?
A. I didn't know he was up there. The girl was at the desk. I was gone.
Q. While you were gone, you left D---- G---- in charge?
A. Yes.
Q. D---- was also arrested?
A. Yes.
Q. She was also found "not guilty"?
A. Yes.
Q. Is it not true that the facts on which you were found guilty in police court were that this girl whose name you did not know was in a room with Sergeant W---- and another soldier?
A. I don't understand.
Q. Was it not true that the facts on which you were convicted were that the girl whom you did not know, who was represented by Sergeant W---- as being his wife, was the girl who was in the room with Sergeant W---- and the other soldier when the police came?
A. Yes.
Q. And you had no knowledge of her being up there and no knowledge of the fact that they were not married?
A. No.
Q. Was not that the testimony of you, and also the testimony of the three girls who were arrested and acquitted?
A. Yes.
Q. Is it not true that the police testified that the only immoral act that they observed was that this girl was in the room with these two soldiers and all other girls were in their rooms and there were no other men there except these two soldiers?
A. Yes.
Q. Was it not true that the police testified that you were not there?
A. Yes.
In addition to the two convictions referred to previously, the Government brought forward six witnesses — J---- C. W----, Jr., H---- E---- P----, H---- E. S----, J---- C---- P----, I---- P----, and R---- B----.
W---- testified that he was a member of the United States Army at that time and married; that he visited said hotel on three occasions, registering as J.C. W---- on two occasions and as J.C. W---- and wife on the other; that it was on such other occasion that he was arrested at the hotel on June 29, 1947; that he personally was not aware of any misconduct at the hotel other than his own and that of the women which he himself brought to the hotel. One of the women in question, R---- B----, testified she was arrested with W---- at the hotel; that she met him at a place called the Saratoga Bar and Sgt. W---- invited her to his room in the hotel for a drink and not intercourse, although that later took place. She denied being a prostitute, but admitted being promiscuous on occasions but not for pay.
H---- E---- P----, not an admitted prostitute, but described by the Presiding Inspector as a person of "immoral class", and I---- P----, an admitted prostitute, testified that they had resided at the hotel. The former testified that she took men to the hotel for sexual intercourse; the latter, that appellant would not permit her to bring men to the hotel for purposes of prostitution.
H---- E. S----, and J---- C---- P----, both members of the vice squad, city police of Tampa, Fla., testified as to the arrests made on June 22 and June 29, 1947, previously referred to. Each stated that the hotel was known as a house of prostitution. The testimony of S----, in our opinion, lends strong support to the alleged "frame-up" of appellant by one of the girls whose clothes appellant withheld for nonpayment of rent. The substance of his testimony concerned the two arrests described. P----'s testimony was somewhat similar. The Presiding Inspector indicated their testimony was for the purpose of showing the reputation of said hotel. P----'s understanding as to the difference between a house of prostitution and house of assignation is not too clear; he admitted, however, that as a rule, the girls involved worked outside the hotel so far as "picking up" prospects is concerned and he further admitted that aside from the two incidents which resulted in appellant's arrest, he had occasion to go to the hotel only once previously, concerning a complaint from an unknown source, when he arrested a man and woman occupying the same room in said hotel. Even as to this latter incident, his testimony was not too clear or affirmative, that is, whether it occurred before or after appellant purchased the hotel.
Appellant, of course, denied that the hotel is a house of prostitution or that he permits such practice there. C---- C---- (not a resident of the hotel) testified he overheard a plan between V---- W---- and a girl named I---- which would result in appellant's arrest, because she had some rent difficulty with him. V---- W---- denied any misconduct or that she had ever been a prostitute. H---- B. B----, a soldier who was with W---- on the occasion of the arrest on June 29, 1947, denied any indecent acts took place and stated that in his opinion the hotel had a good reputation. This same opinion was expressed by K---- S----, who resided in the hotel during that period, and by others, namely, E---- M---- C---- and R---- W---- P----.
A house of assignation is where parties meet for the purpose of debauchery, though no prostitutes live there ( Reg v. Pierson, 1 Salk, 382, 4 Anne; People v. Rowland, 1 Wheeler, C.C. 286, 1823; People v. Hulett, 39 N.Y.S.R. 646, 15 N.Y. Supp. 630, 1891). On the other hand, a bawdy house or house of ill fame is a house kept for the receipt of persons who choose to resort to it for the purpose of illicit sexual intercourse. Again, it is a house where women prostitute themselves by offering their bodies to indiscriminate intercourse with men ( People v. Ture, 235 Ill. App. 349); a house where women prostitute themselves or to which persons resort for the purpose of prostitution and lewdness ( People v. Ryberg, 122 N.E. 545, 287, Ill., 195); a house resorted to for the purpose of prostitution ( McAlister v. Clark, 33 Conn. 91); a house of ill fame or prostitution may be a tent, a flat-boat with a cabin on it, a room in a dwelling house, or a room of a steamship, or a single room; in short, the term "house" is used in a generic sense ( State v. Power, 36 Conn. 77; Killman v. State, 2 Tex. App. 222, 28 Am. Rept. 432; State v. Garity, 146 N.H. 61; State v. Smith, 15 R.I. 24, 22 Atl. 1119).
A single act of lewdness by defendant will not make it a house of prostitution ( People v. Castro, 75 Mich. 127); nor is it a crime to let rooms to prostitutes for quiet and decent occupation, or to permit a house to be visited by disreputable people for proper and innocent purposes ( State v. Smith, 15 R.I. 24).
In many cases in proceedings of the nature here involved, that is, "found managing a house of prostitution", such charge has been found sustained, but in each the evidence abundantly established that the hotel or other place kept women there who hired out their bodies for indiscriminate intercourse for pay, with the knowledge of the operator, or where the circumstances left no doubt that the operator was aware that activities of that nature were being conducted therein ( Inoye v. Carr, 98 F. (2d) 46; Ranieri v. Smith, 49 F. (2d) 537; Svarney v. United States, 7 F. (2d) 515; Meier v. Lebaris, 23 F. (2d) 187; Gambroulis v. Nash, 12 F. (2d) 49).
Thus, at most the hotel in question was used as a house of assignation on occasions. There is no evidence that it was a house of prostitution as required by the statute. There is no evidence that appellant permitted the hotel to be used for such purpose, or that he maintained the hotel for such purpose. Such evidence as we have cannot be considered reliable, probative, and substantial upon which to rest a clear and convincing finding that the hotel in question is a house of prostitution ( Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938); U.S. ex rel. Rodriguez v. Karnuth, 2 F. Supp. 665 (1933)). For example, the Presiding Inspector concluded his discussion of the evidence, in part, in this manner:
Even if all the testimony of all the witnesses for the Government and for the respondent is denied value as evidence, the irrefutable facts remain that respondent was arrested and convicted on June 29, 1947, charged with keeping a disorderly house for the purpose of prostitution, and that he did not appeal this conviction, although he pleaded "not guilty."
That conviction, however, standing alone, does not afford basis for supporting the charge, since the evidence adduced clearly shows that the hotel was utilized as a house or a place of assignation on the occasion in question, and not prostitution, as required by the statute ( U.S. ex rel. Wlodinger v. Reimer, 103 F. (2d) 435). The conviction was had in a minor court and there is no independent evidence connecting the appellant with managing a house of prostitution ( Matter of G----, 56041/599 (Apr. 23, 1942)).
Since the evidence does not establish that appellant maintained prostitutes in a hotel for such purpose, or that such practice was permitted there with his knowledge, proceedings will be canceled.
Order: It is ordered that the appeal be sustained and that the outstanding warrant and order of deportation, and delivery bond, be canceled.