Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
Experience has firmly established that taverns where wine, men, women, and song centralize should be conducted with circumspect respectability. Such is a reasonable and justifiable demand of our social and moral welfare intelligently to be recognized by our licensed tavern proprietors in the maintenance and continuation of their individualized privilege and concession. Broadly stated, the present appeal is addressed to the propriety of the disciplinary action occasioned by an alleged infraction of that obligation.
A plenary retail consumption license was issued to the appellant by the Municipal Board of Alcoholic Beverage Control of the City of Newark which privilege was utilized at
a night club conducted by the appellant at Nos. 88-94 Halstead Street.
On November 30, 1949 the then Director of the State A.B.C. caused a warning to be dispatched to appellant, excerpts from which are here quoted:
Agents of this Division report that recently, while making undercover checks at your tavern, they witnessed a team of two men billed and introduced as the 'McFadden Boys, Bill & Tom' perform with music, songs and 'side remarks' for the entertainment of your patrons. While the music and songs, so called popular numbers, appear to have been kept to the scripts, many of the 'side remarks' were questionable and highly suggestive. They went well beyond any humor and bordered dangerously close to be classified as 'smutty,' and as such possibly to be deemed to constitute lewdness and immoral activities on the licensed premises.
However, you are specifically warned that you must clean up the entertainment at your licensed premises. Should any future violation of like character be found at your tavern, warranting proceedings, the present warning may well be taken into account in determining proper penalty.
Please let us have, immediately and without fail, a letter signed personally by your president or vice-president acknowledging receipt of this warning and giving your pledge of future compliance with all the liquor laws and regulations."
The president of the licensee acknowledged the receipt of the Director's communication and promptly replied:
"I am President of McFaddens Lounge Inc. and one of the McFadden Brothers on whom the agents reported. My brother Bill and I have been entertaining in and around Essex County for the past fifteen years and have never been aware that our brand of humor was offensive to anyone. On the contrary, through our long experience in show business, we feel that our entertainment is good clean fun for everyone.
However, if any of the material we had been doing was construed by your agents as bordering on being classified as 'smutty' and as such placing our license in jeopardy, rest assured that it can be dispensed with immediately without in any way impairing the entertainment value of the act."
Both the warning and the responsive assurance seem to have lost their potentiality in the ...