Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.
[116 NJSuper Page 207] Licensee appeals from a 50-day suspension of its license based upon possession of contraceptives and obscene literature on its premises.
The licensee was charged:
1. On August 27, 1969, you allowed, permitted and suffered in and upon your licensed premises and had in your possession obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures; in violation of Rule 17 of State Regulation No. 20.
2. On August 27, 1969, you possessed prophylactics against venereal disease and contraceptives and contraceptive devices, in and upon your licensed premises; in violation of Rule 9 of State Regulation No. 20.
Rule 17 of State Regulation 20 provides:
No licensee shall allow, permit or suffer in or upon the licensed premises or have in his possession or distribute or cause to be distributed any obscene, indecent, filthy, lewd, lascivious or disgusting recording, printing, writing, picture or other matter.
Rule 9 of State Regulation 20 provides:
No licensee, except bona fide pharmacies to the extent that they may be duly authorized by law, shall sell, distribute or possess, or allow, permit or suffer the sale or distribution, or the possession for the purpose of sales or distribution of any prophylactic against venereal disease or any contraceptive or contraceptive device, either chemical or mechanical, or possess, allow, permit or suffer any mechanical device for such sale or distribution, in or upon the licensed premises or any other premises used in connection therewith.
On August 27, 1969, shortly after 3 P.M., an agent of ABC with three law enforcement officers entered the licensed premises on a specific assignment to investigate an allegation that there was stolen liquor on the premises. No stolen liquor was found. At the conclusion of the search for the stolen liquor, the agent inspected a small office area. In a filing cabinet he found three books entitled Photographic Manual of Sexual Intercourse, Oral Love and Variations in Love Making. From a safe he seized a partially used tube of Ortho vaginal jelly, an Ortho diaphragm and three male
contraceptives. In a center drawer of the desk he found and seized three catalogs: a 48-page color catalog entitled "Adult Catalog"; a 4-page color catalog bearing the legend "Save 25%", and a 24-page color catalog entitled "Breathtaking Full Color Adult Catalog." Licensee admitted that all of the items seized were his except the diaphragm and jelly which he asserted were his wife's.
The Director concluded that the three books did not come within the proscription of Rule 17 of State Regulation 20 and found the licensee not guilty as to those items. As to the catalogs he found that they were pornographic, "portraying nude persons in sexually suggestive poses and positions of a smutty nature, geared to appeal to the passions of the viewer, and they therefore are obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures within the meaning of of Rule 17 of State Regulation No. 20." He did not consider it a defense that the materials were merely retained after being received in the mail without solicitation. He ruled that the Division did not have to prove that a licensee possessed such ...