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Expo Inc. v. City of Passaic

Decided: April 6, 1977.

EXPO, INC., A CORPORATION OF THE STATE OF NEW JERSEY, T/A THE TOP TOMATO, PLAINTIFF,
v.
CITY OF PASSAIC ET AL, DEFENDANT



Conn, J.d.c., temporarily assigned.

Conn

[149 NJSuper Page 418] In this proceeding in lieu of prerogative writs brought by the operator of a go-go dancing establishment in Passaic, New Jersey, against the city and various officials, a host of issues have developed.

Most have been disposed of by determinations from the bench; several require a more detailed exposition. These include the viability of a local obscenity ordinance and whether local action in closing down plaintiff's business prior to hearing is immune from attack.

Plaintiff, trading as Top Tomato, operates what is commonly known as a "juice bar." It has no liquor license and thus is limited to the sale of nonalcoholic beverages. There is an admission charge which entitles patrons to view groups of girls performing on a small stage.

The suit was commenced by order to show cause dated December 17, 1976. Plaintiff requested a temporary restraining order against defendant municipality preventing it from interfering with the operation of its business. Defendant had previously closed the establishment by revoking its Certificate of occupancy. Plaintiff sought a judgment for damages, a permanent injunction and a declaration that certain municipal ordinances were ultra vires and void.

A temporary restraining order was granted by the court on January 12, 1977 allowing plaintiff to reopen. A municipal court hearing on the revocation of the certificate of occupancy without a prior hearing and whether the conduct at plaintiff's establishment was obscene was ordered to proceed. This court retained jurisdiction on the constitutionality and preemption issues involving the municipal ordinance and the damage claim.

As a result of a finding of guilt of obscenity at the municipal level, the plaintiff appealed and the city moved to lift the restraints.

The city's application was denied but a limiting order was entered, specifying prohibited conduct. That latter proceeding brought home to the court the difficulty of fact-finding with regard to "live" performances. To stage a performance for the court would be futile. Certainly the performances would be geared to the ambiance of the courtroom. The taking of testimony afforded scant hope that the true picture of the performances would shine through. An unannounced

trip to Top Tomato by the court would have caused no end of problems. The court thus followed a procedure used by federal District Court Judge Mitchell Cohen in Starshock v. Shusted , 370 F. Supp. 506 (D.N.J. 1974), rev'd 493 F.2d 1401 (3 Cir. 1974): law clerks were assigned to view, unannounced, the plaintiff performances as well as performances at nearby go-go shows in liquor dispensing establishments. (One of plaintiff's contentions was that Passaic had dozens of go-go shows in taverns that were identical in content to plaintiff's but were free from city interference. Plaintiff claimed selective prosecution.) Affidavits of the law clerks visits were submitted to opposing counsel before the appeal, thus obviating the problem that arose in Starshock, supra.

The court heard the municipal appeal on the record below and concluded the performances were obscene.

A detailing of the various plaintiff performances as indicated in the transcript of the municipal court proceedings and the law clerk affidavits is unnecessary. Suffice it to say that the combination of scant attire (pasties, G-strings, shoes), the proximity of performers to the patrons sitting at the end of the stage, and the various gyrations and wiggling of the girls in prone or "horizontal" positions on or next to the stage floor -- amounts to nothing less than the purposeful and lewd exhibition of genitalia and the simulation of sexual acts. As stated in Starshock v. Shusted, supra (also a nonliquor selling go-go cabaret) it is clearly the exploitation of human sexuality for commercial purposes. The court is also satisfied that the performances appeal to the prurient interest and are without a modicum, a scintilla, of any serious artistic value.

By comparison, the go-go performances at Passaic liquor establishments are purity personified. The girls dance in halter tops and bikini-type bottoms; they are separated from the patrons on a separate stage inside the bar area. Their dancing is all ...


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