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CHERBONNIE v. KUGLER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


June 5, 1973

Linda CHERBONNIE et al., Plaintiffs,
v.
George KUGLER, Individually and in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. Leslie SAFAR et al., Plaintiffs, v. George KUGLER, Individually and in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. STARSHOCK, INC., a New Jersey corporation, t/a "Lido", 7980 South Crescent Blvd., Pennsauken, New Jersey, Plaintiffs, v. Robert E. BOWER, Individually and as Director, Division of Alcoholic Beverage Control, New Jersey Department of Law and Public Safety, et al., Defendants

The opinion of the court was delivered by: COHEN

Cohen, District Judge.

Do the Indecency and Obscenity Statutes of New Jersey and the regulations of the New Jersey Division of Alcoholic Beverage Control (ABC), which allegedly proscribe the increasingly popular, but controversial form of barroom entertainment, "topless" dancing, infringe upon the constitutional rights of the plaintiffs? This is the issue plaintiffs seek to have resolved by this three-judge court.

Challenged is the constitutionality of the New Jersey Lewdness or Indecency Statute, N.J.S.A. 2A:115-1; *fn1" the Statute prohibiting the occupation or use of one's premises for the purpose of lewdness, N.J.S.A. 2A:133-2(b); *fn2" and Rule 5 of Regulation 20 *fn3" of the ABC, interdicting "lewdness and immoral activity" at licensed establishments which serve alcoholic beverages.

 Jurisdiction is conferred by the provisions of 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. §§ 1331(a), 1343(2) and (4), 2201, 2202, 2281 and 2284.

 Plaintiffs in these three consolidated actions are the waitresses and employees of the Club Lido, Pennsauken, New Jersey (Civil No. 49-73); its operators and performers (Civil No. 50-73); and the corporate owner, stockholder, managers, entertainers and a patron (Civil No. 51-73).

 The defendants are the New Jersey Attorney General, George F. Kugler; the Camden County Prosecutor, Thomas J. Shusted and his assistants; the Director of the ABC, Robert E. Bower; and other law enforcement and ABC personnel as agents of the above officials.

 Plaintiffs contend that the statutes and regulation under attack facially violate the first and fourteenth amendments to the Federal Constitution in that the proscriptions therein infringe on their freedom of expression and, alternatively, are void for vagueness, with respect to the activity of "topless" dancing *fn4" conducted for the entertainment of patrons of the Club Lido. Plaintiffs have moved for summary judgment pursuant to Fed. R. Civ. P. 56(a) seeking declaratory, injunctive and monetary relief.

 Contra the contentions raised by plaintiffs, all defendants, in addition to asserting that the pertinent statutes and regulation are facially constitutional, move to dismiss the complaints on the basis of abstention. Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Defendants also urge that this Court should refrain from interfering with the pending state criminal prosecution, under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). There have been, however, allegations of official lawlessness and bad faith harassment which, if proved, would place this case within the exceptions to Younger, thereby permitting injunctive relief. With the view we take of the case, resolution of this issue is unnecessary.

 In determining whether the abstention doctrine should be applied, the United States Supreme Court has held that a federal court should not abstain if the state statute is "clear and unambiguous in all material respects," Harman v. Forssenius, 380 U.S. 528, 535, 85 S. Ct. 1177, 1182, 14 L. Ed. 2d 50 (1965), and if the statute is not susceptible to a saving constitutional construction, Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967).

 Additionally, the defendants Director Bower and other ABC personnel contend that the instant case is singularly appropriate for the application of the abstention doctrine, inasmuch as Rule 5 of ABC Regulation 20 has never been challenged in the New Jersey Courts as being void for vagueness; further, that unless the regulation is facially unconstitutional which is denied, the state courts should initially be afforded an opportunity to construe and interpret the regulation in a manner which might eliminate the need to reach the constitutional issue. See e.g., Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Meridian v. Southern Bell T. & T. Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562 (1959); and C'est Bon, Inc. v. North Carolina State Bd. of Alcoholic Control, 331 F. Supp. 82 (W.D.N.C. 1971).

 For ABC Rule 5 or the statutes challenged here to withstand constitutional scrutiny, they must not be "in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888 (1939). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1971). Uncertainty cannot exist either with respect to the scope of the acts encompassed by the statute, or with regard to the substantive standards to be applied to the conduct. Winters v. New York, 333 U.S. 507, 515-516, 68 S. Ct. 665, 92 L. Ed. 840 (1948).

 Statutes containing language similar to that of the administrative rule and legislative enactments hereinunder consideration have been upheld by the Supreme Court against challenges that they were void for vagueness. Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958, 16 L. Ed. 2d 56 (1966); Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). In so doing, however, the Court required that the following constitutional standard for judging lewdness or obscenity be applied to the statute for it to be upheld:

 

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to sexual matters; and (c) the material is utterly without redeeming social value. Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S. Ct. 975, 977, 16 L. Ed. 2d 1 (1967).

 In Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D.N.J. 1972), a three-judge court case, the constitutionality of the New Jersey Obscenity Statute, N.J.S.A. 2A:115-1.1, was challenged. Responding to defendant's assertion that the court abstain, Judge Garth stated at p. 48, "abstention would be proper only if the statute under attack were susceptible to a construction that avoided or modified the constitutional question." The court concluded that no such construction of the Obscenity Statute was possible *fn5" since, in 1971, the New Jersey Legislature amended the enactment to eliminate the "redeeming social value" element from the constitutional test of obscenity.

 The Lewdness Statute, N.J.S.A. 2A:115-1, involved herein, has no such amendment eliminating the "redeeming social value" test. Indeed, there is neither a definition of lewdness in the statute nor a definitive construction by the state courts establishing a constitutional standard for determining what constitutes a lewd act consistent with the first and fourteenth amendments. As mentioned above, the Supreme Court has concluded in Mishkin v. New York, supra at 506-507, 86 S. Ct. 958, and Roth v. United States, supra at 492, 77 S. Ct. 1304 that application of the three-pronged constitutional standard for obscenity would give a statute sufficient clarity to withstand a void for vagueness challenge. It is unclear, however, whether the New Jersey Courts would apply this standard, or that which is contained in the New Jersey Obscenity Statute. *fn6"

 The application of this first amendment standard to establishments licensed by the state to serve alcoholic beverages is no longer necessary in light of California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972). Pursuant to the twenty-first amendment to the Federal Constitution the states have broad discretion in their exercise of control over the manner and circumstances under which liquor may be dispensed. This is true even with regard to certain activities which, in another environment, might be protected by the first amendment.

 Significantly, LaRue is distinguishable from the instant case. In LaRue, the Supreme Court concluded that the California liquor regulation was constitutional under the twenty-first amendment. The regulation there under consideration was drafted with great specificity. *fn7" On the other hand, New Jersey ABC Rule 5, as well as the challenged statutes, prohibits "lewdness" and "immoral activity." No definition of, or constitutional standard for, these terms is present either in the ABC Regulations or in the New Jersey Statutes. Accordingly, we hold that this lack of precision, when considered with the broad scope of regulation permitted in establishments that sell alcoholic beverages under LaRue, makes the present case particularly appropriate for the application of the abstention doctrine so that state authorities may be afforded an opportunity *fn8" to construe Rule 5 consistent with notions of due process and to the fullest extent permissible under the twenty-first amendment. See C'est Bon, Inc. v. North Carolina State Bd. of Alcoholic Control, supra.

 Moreover, inasmuch as a constitutional interpretation of the Lewdness Statute may be possible, and since there are presently pending in the State Superior Court a number of criminal cases in which the statutes herein involved are being challenged on a constitutional basis, the state courts should be afforded the initial opportunity to so interpret them. Consequently, we abstain.

 Jurisdiction over this case will be retained, but all proceedings in this court will be stayed pending the determination of the actions presently in the New Jersey State Courts and before the ABC, or until all efforts to obtain such a determination have been exhausted. American Trial Lawyers Ass'n., New Jersey Branch, et al. v. New Jersey Supreme Court, 409 U.S. 467, 93 S. Ct. 627, 34 L. Ed. 2d 651 (1973).

 An appropriate order in conformity with the views herein expressed may be submitted.


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