Before Judges Petrella, Conley and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Union County.
In September 1995, defendants began operating a sexually oriented business, known as "Hott 22," in a commercial zone in Union Township. The main activity of this establishment was the public presentation of nude female dancing.
Complaints were soon filed against the defendants charging that the exhibition of nude dancing violated sections 84-11 and 84-12 of the Township's sexually oriented business ordinance. *fn1
Section 84-11 prohibits the operation of a sexually oriented business within one thousand feet of a variety of institutions and within five hundred feet of a residential zone.
Section 84-12 requires a buffer in these terms:
Every sexually oriented business shall be surrounded by a perimeter buffer of at least fifty (50) feet in width, consisting of plantings to the satisfaction of the Municipal Planning Board. This subsection shall not apply to a sexually oriented business already lawfully operating on the effective date of this Article.
Additional complaints charged defendants with operating the business without having obtained a municipal amusement and entertainment license under Chapter 93 of the local code.
The complaints alleged violations occurring on September 11, 13, 14, 19, and 20, 1995. The offense dates are significant because the Legislature enacted N.J.S.A. 2C:34-6 and -7 effective September 15, 1995. *fn2 Those sections of the Criminal Code are essentially the same as the Township's sexually oriented business ordinance with the critical exception that violations of the Code are crimes of the fourth degree. In fact, the ordinance, adopted in 1993, was based on the then pending bill that eventually became N.J.S.A. 2C:34-6 and -7.
In the municipal court, the charges involving the sexually oriented business ordinance were resolved by negotiated guilty pleas. The license charges were tried on a stipulated statement of facts and defendants were found guilty. The court imposed $14,000 in fines and $540 in costs on defendant Russo and $3,500 in fines and $150 in costs on defendant Ott. By agreement with the State, defendants preserved their right to test the validity of the ordinances on appeal, their primary contention being that the imposition of criminal penalties under the ordinances violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution.
Defendants appealed to the Law Division for a trial de novo. Initially, that court remanded the case to the municipal court for a hearing to develop facts bearing on the constitutionality of the ordinances. As a result, in large part by stipulation of the parties, these relevant facts were established.
There are 5,265 acres within the Township. The commercially zoned land available for sexually oriented businesses is 32.1 acres, or .52% of the total land area. The fifty-foot buffer requirement of section 84-12 would "effectively eliminate a large portion of the . . . available area." At least four sexually oriented businesses established before the sexually oriented business ordinance was enacted are operated in the commercial zone unaffected by the ordinance, which has only prospective effect.
The ordinance was adopted in response to a massive public outcry against one such business located near a residential zone. However, the governing body did not consider any evidential material regarding the secondary effects of such businesses on the public welfare.
The primary entertainment provided by Hott 22, nude female dancing, falls within the ordinance's definition of a sexually oriented business. Defendants did not apply for a municipal entertainment license, claiming, in part, that their activity was covered by a prior license issued to them at the same location when they were presenting a different form of entertainment under the business name "Cactus Club."
The Law Division judge acquitted defendants of violating section 84-11 on the theory that it was preempted by N.J.S.A. 2C:34-7a but found them guilty of violating section 84-12 and the licensing ordinance. *fn3 We reverse the convictions under the licensing ordinance but affirm defendants' guilt under section 84-12.
The licensing ordinance, section 93-1(B), provides the following, in relevant part:
It shall be unlawful to maintain, operate or conduct in the Township . . . any facility where patrons are entertained by persons who pose, exercise, dance or expose themselves for compensation without first presenting an application and receiving a license to operate the respective business and paying the fee hereinafter prescribed for such license.
Enforcement of that section is addressed in three other sections of the municipal code. Section 93-3(A) requires the Chief of Police to investigate the applicant's "moral character." Section 93-3(B) provides that if the Chief finds the applicant's "moral character . . . unsatisfactory," he shall "endorse on such application his . . . disapproval thereof and his reasons for same. . . ." Section 93-3(C)(2) provides that if the Chief disapproves the application, the governing body is required to reject the license.
The Law Division sustained defendants' convictions under the licensing ordinance because they had not applied for the license. But when, as here, freedom of expression is involved, a [d]efendant can challenge the permit system even though he did not apply for, nor was denied, a permit." State v. Schad, 160 N.J. 156, 179 (1999) (citing City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755, 108 S. Ct. 2138, 2143, 100 L. Ed.2d 771 (1988)).
The problem with these ordinances is that they give the Chief of Police unfettered discretion.
The governing principles were set forth in State v. Schad, supra:
An ordinance that imposes a permit requirement in order to engage in communicative conduct is permissible if it includes "narrow, objective and definite standards to guide the licensing authority." The granting of a permit, however, cannot be based on the uncontrolled will of an official. Unbridled discretion granted by a statute or ordinance renders it unconstitutional even if applied in a constitutional manner. [Ibid. (citations omitted).]
In Borough of Collingswood v. Ringgold, 66 N.J. 350 (1975), appeal dismissed by Ringgold v. Borough of Collingswood, 426 U.S. 901, 96 S. Ct. 2220, 48 L. Ed.2d 826 (1976), a similar ordinance was invalidated because it did "not mandate denial for certain particularized egregious conduct nor furnish any clue as to what standards the Chief [of Police] may bring to bear on the issue of when to deny or when to grant a permit in the face of a conviction or reported unethical business practices." Id. at 367.
Therefore, we reverse defendants' convictions under the licensing ordinance and turn to the subject of the buffer zone.
In considering the violations of the buffer zone established by section 84-12, a distinction must be drawn between those offenses occurring before and after the effective date of N.J.S.A. 2C:34-6 and - 7. *fn4 Although we will consider first the pre-statute offenses, references to the statute and cases addressing its validity are helpful in ...