On appeal from the Superior Court, Law Division, Monmouth County.
Michels, Pressler and Trautwein.
Defendant Elizabeth Buckley was convicted by the Belmar Municipal Court of a violation of that provision of the borough ordinance prohibiting indecent exposure. On her appeal to the Superior Court, Law Division, the conviction was reversed without consideration of the merits, on the ground that the subject matter of the ordinance was preempted by statute. The borough appeals. We reverse.
The municipal prosecution was based on the fact that defendant had sunbathed on a public beach wearing only the bottom
portion of a bikini bathing suit. According to the borough's proofs at trial, she was observed by the complaining witness, a Belmar police officer, lying on her back, clad only in the bikini bottom and surrounded by a three-sided wind screen which afforded visibility of the enclosed area from at least one direction. It was his further testimony that upon defendant's becoming aware of his approach, she covered her chest with a straw hat. Defendant testified that she sunbathed in that manner because of the unsightly marks on her skin which would be caused by the bikini top as she tanned and because the bikini top was in any event uncomfortable. She kept the straw hat at hand to cover herself in the event a person approached towards the open side of the wind screen to whom she might be visible.
The municipal court judge, rejecting defendant's arguments that the subject matter of the ordinance was preempted and that the ordinance itself was unconstitutionally vague, found her guilty on these facts of a violation of Belmar Ordinance 5-1.2, which, in its then form, read as follows:
Indecent Exposure It shall be unlawful for any person to appear or travel on any street, avenue, highway, road, boardwalk, beach, beach front or waterway located in the Borough of Belmar, or to appear in any public place, store, or business in said borough in a state of nudity or in an indecent or lewd dress or garment, or to make any indecent or unnecessary exposure of his or her person.
On her appeal to the Law Division, defendant again raised her legal objections to the prosecution. The trial judge did not consider the merits of the conviction. Nor did he address the vagueness argument. He did, however, agree with the preemption claim and acquitted on that basis.*fn1 We are satisfied that he erred in so doing.
The preemption contention is based on N.J.S.A. 2C:14-4, which classifies the disorderly persons offense of lewdness as a sexual offense and defines it as follows:
A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed. "Lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.
The question is simply whether by this enactment the Legislature intended to preclude a municipality from prohibiting public nudity of a character which does not rise to the level of lewdness as therein defined but which it nevertheless regards as ...