Lewis, Matthews and Mintz. The opinion of the court was delivered by Mintz, J.A.D.
Defendant appeals from an order of the Division of Alcoholic Beverage Control suspending defendant's plenary retail consumption license for 30 days.
The following specific charge was preferred against defendant:
On January 14 and 15, 1969, you allowed, permitted and suffered lewdness and immoral activity in and upon your licensed premises, viz., in that you allowed, permitted and suffered female persons to perform on your licensed premises for the entertainment of your customers and patrons in a lewd, indecent and immoral manner; in violation of Rule 5 of State Regulation No. 20.
Rule 5 of State Regulation 20 provides that:
No licensee shall engage in or allow, permit or suffer in or upon the licensed premises any lewdness, immoral activity or foul, filthy, indecent or obscene language or conduct, or any brawl, out of violence, disturbance or unnecessary noise; nor shall any licensee allow, permit or suffer the licensed place of business to be conducted in such a manner as to become a nuisance.
Concededly, on the stated dates entertainment was supplied at defendant's premises, on January 14 by two go-go dancers and on January 15 by one such dancer, wearing transparent bibs and pasties covering only the nipples on their breasts.
Defendant argues that "lewdness and immoral activity" is to be determined in accordance with the criteria set forth in N.J.S.A. 2A:115-1.1, the statute dealing with obscenity, which incorporates the First Amendment right as defined by the United States Supreme Court. Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), rehearing den. 355 U.S. 852, 78 S. Ct. 8, 2 L. Ed. 2d 60 (1957); A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass. , 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966).
A license to sell intoxicating liquor is not a contract nor is it a property right. Rather, it is a temporary permit or privilege to pursue an occupation which is otherwise illegal. Since it is a business attended with danger to the community, it may be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. Mazza v. Cavicchia , 15 N.J. 498, 505 (1954).
We are not here concerned with the censorship of a book, nor with the alleged obscenity of a theatrical performance. "Our immediate interest and attention is confined to the disciplinary action taken against the licensee of a public tavern, whose privileges may lawfully be tightly restricted to limit to the utmost the evils of the trade." McFadden's Lounge, Inc. v. Div. of Alcoholic Bev. Control , 33 N.J. Super. 61, 68 (App. Div. 1954). Lewdness or immorality
for the purpose of alcoholic beverage control may be determinable on a distinctly narrower basis than for purposes of regulation of commercial entertainment generally. Davis v. New Town Tavern , 37 N.J. Super. 376, 378 (App. Div. 1955); Jeanne's Enterprises, Inc. v. New Jersey, ...