The opinion of the court was delivered by: Simandle, District Judge.
This motion addresses the important issue of whether it is
appropriate for this federal court to subject a state criminal
statute to pre-enforcement review upon the ground that the
statute's existence is alleged to have a tendency to chill the
plaintiffs' exercise of First Amendment rights in connection with
the operation of their adult entertainment business. In this
case, plaintiffs, New Hope Books, Inc. ("New Hope") and 705
Crescent Corporation ("705 Crescent"), an adult entertainment
store and its landlord, respectively, challenge the
constitutionality of various New Jersey statutes which regulate
the adult entertainment business. Plaintiffs were charged with
violating N.J.S.A. 2C:34-1, which prohibits engaging in
prostitution, promoting prostitution, and compelling
others to engage in prostitution, and N.J.S.A. 2C:33-12, which
prohibits knowingly maintaining a house of prostitution or a
premises where obscene material, as defined in N.J.S.A. 2C:34-2,
is exhibited. Pursuant to a plea bargain between the county
prosecutors and New Hope and 705 Crescent, all state indictments
have been dismissed. Nonetheless, before this Court is
plaintiffs' six-count Second Amended Complaint, in which they
seek declaratory relief holding unconstitutional the above
statutes, as well as N.J.S.A. 2C:33-12.1(b), which allows a court
to shut down a nuisance as defined above for one year, and
N.J.S.A. 2C:33-12.2(b), which includes in the definition of a
nuisance a sexually oriented business which offers enclosures
that facilitate sexual activity by patrons.
Defendant, John J. Farmer, Jr., Attorney General of New Jersey,
sought judgment on the pleadings as to plaintiffs' challenge to
N.J.S.A. 2C:33-12, 2C:33-12.1(b), 2C:34-1, and 2C:34-2, arguing
that this Court should abstain under the abstention doctrine from
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). Defendant additionally filed a motion for dismissal of
the complaint, or for a partial stay and partial dismissal, on
the counts for which he does not seek a Younger abstention. In
a December 22, 1999 Opinion and Order, this Court denied the
motion for judgment on the pleadings. Additionally, the Court
dismissed Count Six of the Second Amended Complaint by agreement
of the parties. As this Court explained, the following remained
to be decided: whether plaintiffs have standing to raise a
preenforcement challenge to the constitutionality of N.J.S.A.
2C:33-12.2(b), whether the Court should exercise Pullman
abstention, and whether, if the plaintiffs have standing and this
Court chooses not to abstain, N.J.S.A. 2C:33-12.2(b) is
unconstitutionally vague on its face.*fn1 This Court promised
that a forthcoming Opinion would take up these issues and
scheduled oral argument for January 28, 2000 upon these issues.
As explained below, however, this Court has now reviewed the
parties' papers on the motion to dismiss or for a partial stay
and partial dismissal and has determined that plaintiffs'
challenge of N.J.S.A. 2C:33-12.2(b) is not ripe. Accordingly,
defendant's motion to dismiss will be granted, and those aspects
of Counts One through Five which are based on N.J.S.A.
2C:33-12.2(b) will be dismissed.
The facts of this case are set out in detail in this Court's
December 22, 1999 Opinion, and they need not be repeated here.
What follows is a description of only those facts relevant to the
ripeness of the challenge to N.J.S.A. 2C:33-12.2(b). These facts
Following a February 6, 1997 raid of the subject premises, on
May 5, 1997, the Camden County Prosecutor's Office instituted
civil forfeiture proceedings in the Superior Court of New Jersey
against certain funds seized during the raid. On May 15, 1997,
Lee A. Solomon, the Acting Camden County Prosecutor, sent a
letter to "ALL POLICE CHIEFS" in which he explained that an
injunction against the enforcement of N.J.S.A. 2C:33-12.2(b) had
been issued in August of 1995, but that "[i]n February, 1997, the
New Jersey Superior Court, Appellate Division vacated the
injunction and declared that N.J.S.A. 2C:33-12.2 is
constitutional. Be advised that the statute may now be enforced."
(Pls.' Br. Ex. B.) The decision to which the
letter referred was Chez Sez VIII v. Poritz,
297 N.J. Super. 331, 688 A.2d 119 (App. Div.), cert. denied, 149 N.J. 409,
694 A.2d 194 (1997), which was issued on February 7, 1997, one day
after the raid. The remainder of the letter went on to explain,
in layman's terms, the Appellate Division's interpretation of the
statute, which was that
sexual activity is facilitated when "booths" or other
places in a sexually oriented business are so
constructed as to "preclude visibility" from public
areas of the business. It appears that it is the
Court's opinion that "sexual activity" is more likely
to occur, and therefore "facilitated", where a booth
has an opaque screen or a door which affords privacy
or anonymity to the booth's occupant. It further
appears, then, that sexually oriented businesses with
booths so equipped are in violation of the statute.
Months later, on December 17, 1997, the Camden County grand
jury indicted plaintiffs under N.J.S.A. 2C:34-1 and 2C:33-12.
Plaintiffs were not charged with violating N.J.S.A.
On April 21, 1998, Brian E. Mulholland, Assistant Prosecutor of
Camden County, sent a letter to all owners/operators of sexually
oriented businesses which said the following;
New Jersey Statute 2C:33-12.2, a copy of which is
enclosed, makes it a nuisance as well as a crime of
the fourth degree to own or operate a "sexually
oriented business" which offers for public use
booths, screens, enclosures or other devices which
facilitate sexual activity by patrons. The term
"sexually oriented business" is defined in the
In Chez Sez VIII, Inc., et al. v. New Jersey,
A1729-95T3, a New Jersey appeals court found that
N.J.S. 2C:33-12.2 is not violative of the United
States Constitution and also provided guidance in
interpreting the statute. According to the appellate
court, sexual activity is "facilitated" when booths
or other places in a sexually oriented business are
so positioned or constructed as to "preclude
visibility" from public areas of the business.
N.J.S. 2C:33-12.1, a copy of which is also
enclosed, provides that a building whose owner has
been convicted of maintaining a nuisance may be
closed by the Court for a period not to exceed one
year. The purpose of this letter is to formally
notify you that a "sexually oriented business" may be
operating on premises owned by you, ...