On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 46-10-99.
Before Judges Newman, Braithwaite and Wells.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Arlene Vogt, appeals from her conviction of "nudity in a public place" in violation of Lower Township Ordinance 3-2.6 in its Municipal Court. Arlene was again convicted upon her de novo appeal to the Law Division, Atlantic County, pursuant to R. 3:23-1. She was sentenced to pay a fine of $500 of which $450 was suspended, together with $30 in costs. The conduct for which Vogt was convicted consisted essentially of appearing topless on a public bathing beach known as Higbee Beach in Lower Township, Cape May County.
We note that Arlene Vogt's appeal to the Law Division was consolidated with that of her husband, William Vogt, who was convicted for conduct in violation of the Fish & Game Laws, which occurred on another part of Higbee Beach. Both appeals were argued together, both in the Law Division and here. Our opinion in William's case, which involves issues not implicated in Arlene's appeal, will be handed down separately. Ordinance 3-2.6, upon which Arlene was convicted, states:
Indecent or Nude 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 Township of Lower, 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.
The evidence introduced before the municipal judge was neither complicated nor in dispute. The State's only witness at the municipal court trial was the arresting officer, Officer Martin Biersbach. According to his testimony, on August 7, 1999, at about 4:10 p.m., he was walking with binoculars on Higbee Beach, trying to find nude people to charge with violating the public-nudity ordinance. Through his binoculars he spotted what appeared to be two men in bathing suits, but as he approached he saw that one was a woman, defendant Arlene; the man with her was her husband, William. Also in the area was "a camera man from a news channel." Seeing that Arlene was not wearing a top, Biersbach asked her for identification; after she identified herself, he advised her that she was in violation of the public-nudity ordinance. She asked for a summons because "she wanted to address it in court." He gave her a summons citing the number of the ordinance and describing the offense as "Nudity in Public Place." He did not cite William. Arlene was on the state-owned portion of Higbee Beach; in the companion appeal, William appeared nude on the federally owned portion.
Arlene chose not to testify. On her behalf William testified that when his wife was cited by Biersbach, she insisted that she was not "nude" because she was wearing a bathing suit bottom. William had been sunbathing nude on Higbee Beach since 1979. As the beach was well known as a destination for nudists, no one was ever alarmed at seeing nudity there. William examined pictures of men's breasts introduced into evidence by Arlene, opining that some men's breasts were larger than women's breasts. William admitted that Arlene was topless at the time and that she was aware of the ordinance. William professed that, in his opinion, the ordinance was vague.
When asked by the judge if she had anything to say before sentencing, Arlene responded: "It's my first offense, so I would ask that you be lenient, and it was done as a test case simply to try to get nudity back at Higbee's Beach, or at least a portion of it. And the police department was informed of the action I was going to take that day."
Because to some extent we plow old ground in this case, we pause briefly to set forth the historical and legal context in which the issues arise. Both the Municipal Judge and the Law Division relied extensively on this history in considering the issues raised by Vogt. Higbee Beach has historically been the situs of public nude sunbathing. In Tri-State Metro Naturists v. Lower Tp., 219 N.J. Super. 103, 107-108 (Law Div. 1987), Judge Gibson described the beach:
The site of the nude sunbathing is a portion of a state-owned wildlife preserve known as Higbee Beach. Higbee Beach consists of approximately 200 acres of generally undeveloped land bordering on Delaware Bay along the southerly most tip of Cape May County. That property was purchased by the State of New Jersey in 1978, following which a Management Plan was adopted by the Department of Environmental Protection and implemented through the Division of Fish, Game and Wildlife. The Management Plan reflects the "growing number of outdoor enthusiasts" that visit the area and the "increasing popularity with such tourists as a free beach and place of quiet solitude." Pursuant to N.J.S.A. 13:8A-25 regulations were promulgated covering a wide variety of subjects, the primary purpose of which was to preserve wildlife but which included the management of human conduct as well, including recreational activities. N.J.A.C. 7:25-2.20. The recreational activity covered by the regulations is extensive and includes birdwatching, picnicking and bathing. No prohibition exists, however, with respect to nude bathing or sunbathing. See N.J.A.C. 7:25-2.9.
[T]he area can clearly be labeled as secluded. There is only one road that leads into Higbee Beach and the area is not easily accessible through neighboring property. It is not a place that one would stumble upon by accident. On the other hand, it is clearly open to the public and is used by a large number of people. The fact that it is remote and secluded, therefore, does not mean that it is private or out of public view.
Prior to Tri-State, we had decided a case which challenged the right of another township to limit nude bathing. In Borough of Belmar v. Buckley, 187 N.J. Super. 107 (App. Div. 1982) the proscriptive language of the ordinance in question was identical to that in this case. The defendant was convicted on evidence that she was sunbathing on a public beach while wearing only the bottom of her bikini. On appeal to the Law Division, the court acquitted her on the ground that enforcement of the ordinance was preempted by the State lewdness statute. We reversed on the preemptive ground and remanded for a trial de novo on the merits. Id. at 112- 13.Although the trial court had not reached the defendant's vagueness argument, we chose to dispose of it:
[W]e are satisfied that the ordinance in this respect met constitutional muster since it gave a person of ordinary intelligence fair notice of the nature of the prohibited conduct. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L. Ed. 2d 110 (1972); State v. Monteleone, 36 N.J. 93, 99 (1961).
The meaning of portions of the ordinance may be debatable. Nevertheless, we have no doubt that the proscription against "indecent or unnecessary exposure" of the person would unmistakably apprize persons of ordinary intelligence that topless sunbathing on a public beach in the summertime by a female adult lying on her back is prohibited. We recognize that that might not be so in other societies having different mores and customs, but the import and applicability of the prohibition to the conduct here in this societal context is beyond reasonable debate. [Ibid. (footnote omitted).]
We observed that, pending the appeal, Belmar amended the ordinance to add a sentence defining "state of nudity" to include, among other things, complete exposure of the female breasts. Id. at 112 n.3. We commented:
While the amendment is obviously more exact and explicit than the ordinance pursuant to which defendant was convicted, the question is not whether the original ordinance could have been more precisely phrased but only whether it was adequately phrased to give reasonable notice of the nature of the prohibited conduct. [Ibid.]
In Tri-State, an organization of nudists sued to invalidate the same ordinance as involved here which was adopted in 1986 by Lower Township to ban nude sunbathing. The suit was prompted by the fact that several of the plaintiff's ...