MOSE BAR & ZODIAC ROOM, INC t/a Westside Bar & Lounge v. JERRY FISCHER, in his official capacity as Director, Division of Alcoholic Beverage Control Department of Law and Public Safety an agency of the State of New Jersey and THE MUNICIPAL BOA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4561-07T34561-07T3

MOSE BAR & ZODIAC ROOM, INC.,

t/a Westside Bar & Lounge,

Plaintiff-Appellant,

v.

JERRY FISCHER, in his official

capacity as Director, Division of

Alcoholic Beverage Control,

Department of Law and Public Safety,

an agency of the State of New Jersey,

and THE MUNICIPAL BOARD OF ALCOHOLIC

BEVERAGE CONTROL OF THE CITY OF

ATLANTIC CITY, NEW JERSEY, an agency

of the City of Atlantic City,

New Jersey, a municipal body,

Defendants-Respondents.

_______________________________________

 

Argued May 27, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Mercer County, Docket No. C-113-07.

Daniel A. Silver (Silver & Silver LLP) of the Connecticut bar, admitted pro hac vice, argued the cause for appellant (Holtzman & McClain, P.C., and Mr. Silver, attorneys; Stephen D. Holtzman and Mr. Silver, on the brief).

Lorinda Lasus, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Lasus, on the brief).

Jasinski and Williams, attorneys for respondent City of Atlantic City Municipal Board of Alcohol Control, join in the brief of respondent Jerry Fischer.

PER CURIAM

Plaintiff Mose Bar & Zodiac Room, Inc., t/a Westside Bar & Lounge, appeals from the April 25, 2008 order that granted summary judgment in favor of defendant Jerry Fischer, Director of the Division of Alcoholic Beverage Control of New Jersey (Division), and denied its cross-motion for summary judgment. We affirm.

The New Jersey Legislature has delegated authority over the manufacture, sale and distribution of alcoholic beverages in the State to the Division, and has authorized its Director to enforce the Alcoholic Beverage Control Act (Act), N.J.S.A. 33:1-1 to -97. N.J.S.A. 33:1-3. One of the Act's purposes in regulating alcoholic beverages is to protect the health, safety and welfare of the State's citizens. N.J.S.A. 33:1-3.1b(1). N.J.S.A. 33:1-39 authorizes the Director to "make such general rules and regulations . . . as may be necessary for the proper regulation and control of the manufacture, sale and distribution of alcoholic beverages . . . ." Pursuant to that authority, the Division adopted N.J.A.C. 13:2-23.6(a), which provides, in pertinent part, that "[n]o licensee shall engage in or allow, permit or suffer on or about the licensed premises: [1] Any lewdness or immoral activity . . . ." The Director and the municipal issuing authority have joint jurisdiction to suspend or revoke an alcoholic beverage license for violation of that regulation. N.J.S.A. 33:1-31g.

Plaintiff operates a bar and lounge at 501 North Arkansas Avenue, Atlantic City, and holds a plenary retail consumption license issued by defendant Municipal Board of Alcoholic Beverage Control of the City of Atlantic City (Municipal Board). Plaintiff currently offers entertainment to its patrons by playing music and allowing its customers to dance. Plaintiff desires to expand the form of entertainment offered to its customers by

the presentation of constitutionally protected, "go-go girl" dance performances which contain, as an integral component, other communicative characteristics, and an emphasis on human sexuality. These performances include individual simulated sexually explicit movements (self-touching, caressing or fondling of their breasts). . . The female performers at the [p]laintiff's business establishment present sexually expressive dance routines in which their breasts are covered by bathing suit tops.

On November 2, 2007, believing that the dancers' performances might violate N.J.A.C. 13:2-23.6(a)(1), plaintiff filed an action in the Chancery Division, Atlantic County, seeking an order declaring the regulation null and void, and temporary and permanent restraints prohibiting the Director and Municipal Board from enforcing the regulation against plaintiff or those similarly situated. Specifically, plaintiff alleged that the regulation violated its "rights of free speech, press and expression as guaranteed by Article I, Paragraph 6 of the New Jersey Constitution, both on its face and as applied to the [p]laintiff" in that the regulation as applied to "a licensed premises is overly broad and by its very existence will inhibit free expression by restricting speech, both of the [p]laintiff and of third parties not before the [c]ourt [(Count One)]." Additionally, plaintiff claimed that the regulation violates the due process clause of the New Jersey Constitution in that it is void for vagueness and violates the New Jersey Civil Rights Act. N.J.S.A. 10:6-1 to -2. On November 13, 2007, the trial court entered an order denying plaintiff's application for a temporary restraint and transferring venue to Mercer County.

On transfer of venue, the parties filed cross-motions for summary judgment. Plaintiff argued against enforcement of the regulation, contending that its right to offer the dance performances is protected by the First Amendment of the United States Constitution and by Article I, Paragraph 6 of the New Jersey Constitution; the prohibition of any "lewdness or other immoral activity" is overbroad and in violation of the New Jersey Civil Rights Act and the New Jersey Constitution; and the regulation violated its right to due process of law because it is unconstitutionally vague. The trial court heard argument on the motions on March 11, 2008. On April 25, 2008, Judge Sypek entered an order supported by a forty-one page written opinion, granting the Director's motion and denying plaintiff's motion. It is from this order that plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in: 1) "applying an intermediate level of scrutiny when strict scrutiny analysis was required for plaintiff's challenge to N.J.A.C. 13:2-23.6"; 2) applying "G. & J.K. Enterprises[, Inc. v. Div. of Alcoholic Beverage Control, 205 N.J. Super. 77 (App. Div. 1985)] to plaintiff's overbreadth claim"; and 3) "rejecting plaintiff's claim that [the regulation] is unconstitutionally vague." We have considered plaintiff's arguments in light of the record and applicable law and affirm substantially for the reasons expressed by Judge Sypek in her thoughtful, oral decision of April 25, 2008. R. 2:11-3(e)(1)(A).

Affirmed.

 

On June 26, 2008, after plaintiff filed its notice of appeal, the trial court entered an order entering default against the Municipal Board for failing to file an answer to the complaint. Because plaintiff did not proceed to a final judgment against the Municipal Board, the order appealed from is interlocutory, that is, it is not final as to all parties and all issues. R. 2:2-3(a). However, because the legal positions of the Director and the Municipal Board are the same, and the matter has been fully briefed, in the interest of judicial economy, we grant leave to appeal nunc pro tunc.

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A-4561-07T3

June 16, 2009