Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[49 NJSuper Page 300] Olympic, Inc., holder of a plenary retail consumption license, appeals from the conclusions and order of the Division of Alcoholic Beverage Control adjudging it guilty of violating Rule 5 of State Regulation No. 20 and suspending its license for a period of 30 days. This license had some three years before been suspended for 32
days, upon a plea of guilty, for violating curfew and permitting female employees to drink at the expense of male patrons.
The report filed by the hearer fairly summarizes the testimony, and it was concurred in and its conclusions adopted by the Division Director after considering the entire record, the memoranda of counsel, the report itself and the exceptions thereto filed on behalf of the licensee. There is no claim that the basic factual findings of the report lack testimonial support. The basic question, as posed by appellant, is whether the evidence presented established the violation charged.
Rule 5 of State Regulation No. 20 provides:
"No licensee shall allow, permit or suffer in or upon the licensed premises any lewdness, immoral activity or foul, filthy or obscene language or conduct, or any brawl, act of violence, disturbance or unnecessary noise; nor shall any licensee allow, permit or suffer the licensed place of business to be conducted in such manner as to become a nuisance."
The specific charge leveled against appellant was that
"On January 11, 12, 13, 18, 19, February 6, 16 and 17, 1957, you allowed, permitted and suffered your licensed place of business to be conducted in such manner as to become a nuisance, in that you made offers to procure females for patrons for the purpose of prostitution and for acts of perverted sexual relations, introduced females to patrons for such purposes and otherwise conducted your licensed place of business in a manner offensive to common decency and public morals; in violation of Rule 5 of State Regulation No. 20."
On the evenings of January 11, 12 and 18, and February 6 and 16 the licensed premises were visited by three ABC agents, who will hereafter be designated as F, N and M, to investigate alleged complaints of prostitution. They arrived at 10 or 10:30 P.M. and stayed until 1:30 A.M. or later. On January 11 they were served by bartender Morris of whom they inquired concerning three girls sitting at the bar nearby. He told them he knew the girls, and that two of them, Diane and Honey, were "sure bang." This information was accompanied by a gesture of the right arm
and fist descriptive of intercourse. He volunteered the further information that Phil, the other bartender, had gone out with Diane and she had asked him to engage in intercourse. To this he added that Honey engaged in acts of perversion. All of this intelligence was transmitted in typical gutter language. Morris asked F if he wanted to meet the girls and the agent said "Sure. Should we buy them a drink?" Morris had Phil serve the girls drinks and later suggested that the agents ask them to dance. Before they could do so Honey was called upon to sing three songs, and after doing so made a telephone call, rejoined her girl friends and left the premises. Agent N asked Morris how much the girls charged and he said "Oh, nothing. You just buy them a few drinks." N then inquired whether they would be in the following night and Morris said they might. As the agents prepared to leave, N told Morris that if the girls came in the following night he should "hold them here for us," to which Morris replied "Don't worry about it. If they don't come, I know of two others who are sure," again making the obscene gesture with his arm and fist.
The agents appeared late on the evening of January 12 and were served by Phil, the second bartender. Sitting nearby were two women, Anne and Renee. Agent F asked Morris about the three girls of the previous evening and was told they had not come in. In answer to a question put by agent M as to whether Anne and Renee engaged in sexual intercourse, Morris said, "Yes, sure." The agents then had Phil serve the girls drinks; the girls joined them, and the men danced with them. Agent F asked the girls if they would go out with them, but they refused and left the tavern at 2 A.M. Morris remarked: "I can't understand it. That Anne I know is a sure --" (making the arm and fist gesture), "but the other girl I don't know too much about her."
On the third visit, January 18, F asked Morris if there was "Anything doing tonight?" and he replied it was too early. Agent N then ...