[102 NJSuper Page 77] On August 3, 1943 the governing body of the City of Bayonne adopted an amendment to its Alcoholic Beverage Control Ordinance providing:
"Section 14. No alcoholic or other beverage or food shall be served to any female except at a table where such female shall be seated. No female shall be permitted to stand or sit at a public bar at any time; nor shall minors be permitted to enter or remain in any room in which a bar is located unless the minor is accompanied by his or her own parent or guardian. This section shall not prohibit the sale of alcoholic beverages for consumption off the licensed premises to a female over twenty-one years of age, provided she shall leave the licensed premises immediately upon consummation of such sale."
Plaintiffs Gallagher, a tavern owner and licensee of the City of Bayonne, and Ann Gunsiorowski, a taxpayer of the City, bring this action seeking a declaratory judgment invalidating that ordinance. See N.J.S. 2 A:16-50, et seq.; State v. Baird, 50 N.J. 376 (1967). Plaintiffs contend that the above quoted amendment is invalid because it is not reasonably related to the police power, and contravenes the provisions of Art. I, § V of the New Jersey Constitution.
In seeking to uphold the ordinance, defendant City maintains that it is designed to avoid claimed social evils which result from the mingling of men and women at bars. Apparently, the amendment was brought about during World War II because of the large number of naval personnel concentrated in the Bayonne area at that time, and some unfortunate experiences which occurred in taverns and bars involving males and females during that period. In addition, the City contends that under the decision of the Appellate Division in Eskridge v. Division of Alcoholic Beverage Control, 30 N.J. Super. 472, 476 (1954), the validity of ordinances such as that under examination here are unquestionably valid.
Plaintiffs concede the existence of Eskridge and its holding to the effect that "Ordinances which forbid the serving of liquor to women except when seated at tables do not violate any constitutional right of either the licensee or the women * * *," but argue that the case is no longer controlling in view of the more recent decision of our Supreme Court in
One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 50 N.J. 329 (1967).
Unquestionably, the Appellate Division in Eskridge did sustain the validity of an ordinance similar to the one before this court, despite the fact that the opinion of the court stated that "The sole question is whether a U-shaped counter at which women are served with alcoholic beverages is a 'bar' within the meaning of the ordinance."
In One Eleven Wines & Liquors, the Supreme Court had before it several license suspension proceedings which had sustained charges made by the Division of Alcoholic Beverage Control against plaintiffs for permitting apparent homosexuals to congregate in their bars. In 1930 the State Commissioner of Alcoholic Beverage Control had adopted Rule 4 which prohibited female impersonators from congregating in public licensed premises. In 1936 the commissioner amended Rule 5 which had been previously adopted by him to include an express prohibition of lewdness and immoral activities on licensed premises. Again, in 1950 Rule 5 was revised to include an express prohibition of "foul, filthy, indecent or obscene language or conduct." During the years prior to 1954, the Division (formerly Department) instituted proceedings under Rule 4 on the basis of evidence that apparent homosexuals had been permitted to congregate in licensed premises. Since 1954 the Division has instituted proceedings involving such charges under Rule 5. The Supreme Court, through Mr. Justice Jacobs, unanimously reversed the license suspensions which had been affirmed by the Appellate Division, holding that the Division was not justified in disciplining licensees solely because apparent homosexuals were permitted to congregate at bars, absent a clear showing of individual acts alleged to be violative of the provisions of Rule 5 aimed at lewdness and immoral conduct within the licensed premises. In the course of its opinion the Court noted:
"When in the 1930's the Department of Alcoholic Beverage Control first took its severe position, it acted on the assumption that the mere congregation of apparent homosexuals had to be outlawed to
achieve effective control. It of course had no experience to support the assumption but it took the prohibitory course as the safer one for the then fledgling system. At the time, the interests of the patrons in question were given little consideration and were in any event overwhelmed by the then highly felt transitional need for sweeping restraint. Now, in the 1960's, the transitional need as such is long past and it is entirely appropriate that full sweep be given to current understandings and concepts. Under them it seems clear that, so long as the division can deal effectively with the matter through lesser regulations which do not impair the rights of well behaved apparent homosexuals to patronize and meet in licensed premises, it should do so. Such ...