Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
Murphy's Tavern, Inc. appeals from an order of the Director of the Division of Alcoholic Beverage Control suspending its retail consumption license for a period of 60 days on the grounds of violation of Rule 5 of State Regulation No. 20, providing that:
"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."
Appellant, whose establishment is located on Mulberry Street in Newark, was charged in two separate proceedings. The first charge alleged that on October 24, 30 and November 8, 1959 the defendant permitted its licensed premises to become a nuisance in that it "allowed, permitted and suffered thereon persons, males impersonating females, who appeared to be homosexuals," and "allowed, permitted and suffered such persons to frequent and congregate in and upon" the licensed premises, and otherwise conducted the licensed place of business "in a manner offensive to common decency and public morals." The second set of charges was directed towards activities on May 6, 13 and 14, 1960, and asserted that defendant had permitted male persons on the licensed premises "to engage and participate in foul, filthy and obscene conduct and to solicit and make overtures for and arrangements with other male persons * * * for acts of perverted sexual relations"; the substance of the initial charge was also repeated in order to cover the dates in May 1960.
The hearing officer concluded that the Division had established appellant's guilt as to all charges by a fair preponderance of the evidence. The Director concurred in and adopted the findings and conclusions of the hearer. This appeal is predicated solely on the contention that the proofs adduced in the two proceedings do not justify the inference of violation of the regulation as set forth in the charges. It is claimed that all that was demonstrated by the testimony was that persons with effeminate characteristics may have frequented the premises, and that this in itself does not constitute grounds for license suspension.
The initial hearing covered charges directed to activity upon the licensed premises in October and November of 1959. Investigator R., an agent for the New Jersey Division of Alcoholic Beverage Control, testified that he visited Murphy's Tavern on all three of the dates mentioned in the charge. He described the premises as consisting of one small barroom, about 20 x 25 feet in size. On his October 24
visit, he noted about 40 patrons in the place, seated at the bar and milling around. Approximately 20 of the customers attracted his attention because of "their feminine actions and mannerisms, the manner in which they conducted themselves." More specifically, "* * * they would speak to the male seated with them, they would roll their eyes at each other and simulate a kiss now and then, like you would peck a kiss at a person, and occasionally they would put their arm around each other and feel different parts of the body * * *." He added, "We could definitely smell the odor of perfume on the premises."
On his second visit, on October 30, agent R. again singled out about 15 to 20 of the 40 to 45 males on the premises as displaying marked feminine characteristics. On one occasion he observed one male say to another, "'I thought you were going home with me tonight,' and they would grab each other's private parts and simulate kissing each other." Agent R. also witnessed an argument between two male patrons in which obscenities were freely exchanged; he testified that the bartender did not move to halt the dispute. On November 8 the same agent again visited the premises, which were filled to capacity with about 75 to 80 males and one couple. He observed about 20 to 25 of the males "grabbing each other as they would pass going to the men's room * * * they would grab each other's buttocks or each other's private parts * * * they acted as though they were like a man and wife would act. They helped each other drinking and put their arms around one another, and we observed two directly opposite us that had eyebrow pencil on." Later that evening, agent R. had a conversation with bartender Joseph Yeachshino; the investigator, still unrevealed, said, "The kids must have really been dressed up for Halloween," and Yeachshino replied, "if you were new in town and came in here for the first time that night, you would have had a ball with all the [obscenity] in here."
At about 1:50 A.M., as bartender Carmine Lubertazzi began to extinguish the lights in the tavern and as "three of these apparent homosexuals passed him [on their way out] they grabbed him by his private parts, at which time he pulled away * * * laughing and joking with them * * * on one occasion one of the apparent homosexuals kissed Mr. Lubertazzi on the cheek as he left." Several minutes later, agent R. and agent S., who was with him, identified themselves to the bartenders. Lubertazzi was asked whether it was normal for patrons to grab him by his private parts as they left the premises, and he allegedly replied, "That's nothing * * * you could see that in any straight bar too." Agent S asked Lubertazzi if he would kiss him, the agent, also, and the bartender replied, "Sure, if you were my cousin."
Direct examination of agent S. was waived upon the stipulation that he had accompanied agent R. on the three dates mentioned and that his testimony would be entirely corroborative. On cross-examination, he was asked what made him think any of the patrons were homosexuals; he replied, "When you see a man put his arm around another man and rest his head on his shoulder, and another man while he's doing that is rotating his hand on a man's buttocks or ...