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Paterson Tavern & Grill Owners Ass''n Inc. v. Borough of Hawthorne

Decided: February 6, 1970.

PATERSON TAVERN & GRILL OWNERS ASS'N, INC., A NONPROFIT CORPORATION OF NEW JERSEY ET AL., PLAINTIFFS-APPELLANTS,
v.
THE BOROUGH OF HAWTHORNE, A MUNICIPAL CORPORATION ET AL., DEFENDANTS-RESPONDENTS



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

Plaintiff appeals from the "whole" of the final judgment entered in the Law Division on June 24, 1969, whereby it was adjudged that ordinance No. 1137 of the Borough of Hawthorne is valid, with the exception of the word "improper" in section 1 thereof, which word was held to be vague and invalid.

But for that single-word exception, plaintiff's motion for summary judgment was denied and defendants' cross-motion for summary judgment was granted. There is no cross-appeal by defendants.

Ordinance No. 1137 was adopted on November 6, 1968. It is entitled: "An ordinance concerning employment of females on alcoholic beverage licensed premises, and further concerning indecent performances on such premises." It contains ten sections, but our concern is with only the first six which proscribe specified activities and conduct in or on licensed premises. Section 7 fixes the penalty for each day's violation at not more than $200. Section 8 provides for severability so that a declaration of invalidity of any provision shall not affect the remaining separable provisions. Section 9 repeals inconsistent provisions in other ordinances to the extent of their inconsistency. Section 10 provides that the ordinance shall take effect immediately upon final passage and publication according to law.

The legal standing of Paterson Tavern & Grill Owners' Association, a nonprofit corporation of New Jersey, to

challenge the validity of this Hawthorne ordinance has not been raised on this appeal by defendants. We refrain from raising that issue, sua sponte , because coplaintiff Harry Shortway, trading as Shortway's Barn, is a licensed tavern owner conducting his place of business in Hawthorne. He therefore is affected by its provisions and has standing.

I

Section 1 of the ordinance prohibits the employment of any person "to perform dancing or other entertainment in or upon the licensed premises * * * in a lewd, licentious, lascivious or improper manner." With the vague word "improper" correctly stricken therefrom by the trial court, we agree that the remainder of the prohibition is valid.

Plaintiffs argue that the words "lewd, licentious, lascivious" are too vague and "catch-all," thus failing to comport with due process because they do not sufficiently establish adequate guidelines for one to follow in determining what he may or may not do.

Our Supreme Court found no infirmity in the use of the word "lewd," without any further definition of the term in N.J.S.A. 2A:115-1; nor with "lascivious" in N.J.S.A. 2A:115-4. See Adams Newark Theatre Co. v. City of Newark , 22 N.J. 472 (1956). That case is dispositive of plaintiffs' contention as to this aspect, so far as this subordinate appellate tribunal is concerned. As to the word "licentious," the rule of sui generis controls its meaning, appearing as it does between "lewd" and "lascivious" in the phraseology employed.

II

Section 2 prohibits a licensee from allowing any person to appear upon the licensed premises "in any act, scene, sketch, or other ...


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