On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-6133-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
In this civil rights action filed pursuant to 42 U.S.C.A. § 1983, plaintiff Studio 45 Discotheque Inc. (Studio 45), contends that Union City, the City's construction official Martin Martinetti, its zoning official David Spatz, and several members of the City's police department, violated plaintiff's rights in connection with the enforcement of a City ordinance and the forced temporary closure of plaintiff's establishment. Plaintiff appeals from a series of trial court orders, dismissing its complaint against all defendants on summary judgment and awarding defendants counsel fees.*fn2 We affirm the dismissal of the complaint, but reverse the award of counsel fees.
We begin by addressing the issue of mootness. Plaintiff is challenging the constitutionality of a City ordinance regulating establishments with alcoholic beverage licenses (liquor licenses). In August 2002, plaintiff's liquor license was suspended, after plaintiff's owner was found to have illicitly installed a hidden video camera in the ladies' room of the Studio 45 bar and discotheque. Plaintiff's liquor license was eventually revoked on December 22, 2004. We affirmed the license revocation on appeal. Studio 45 Discotheque, Inc. v. Union City, Docket No. A-2673-04 (App. Div. Dec. 5, 2005).
Based on the license revocation, the trial judge hearing the parties' summary judgment motions*fn3 held that Studio 45 did not have standing to challenge the constitutionality of the ordinance, because plaintiff was no longer licensed and therefore no longer subject to the ordinance. We agree that for purposes of future enforcement of the ordinance, plaintiff lacks standing. However, plaintiff is also seeking damages based on past enforcement of the ordinance by the Union City police and other City officials. See Monell v. Dep't of Soc. Service, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978). For purposes of that claim, plaintiff has standing to pursue its challenge to the constitutionality of the ordinance. Hence, we will address that claim.*fn4
Plaintiff's complaint challenged the validity, on its face and as applied, of a City ordinance limiting the hours during which licensed establishments were permitted to serve alcoholic beverages, and governing their hours of operation. The ordinance, Union City, N.J. Alcoholic Beverage Control Ordinance § 10-4.1 (2002), "Hours of Sale," subsection (a), provides:
No alcoholic beverages shall be sold, delivered to any consumer or served to or consumed in any licensed premises on any day between the hours of 2:00 AM and 7:00 AM . . . except that any licensee having both an alcoholic beverage license and a restaurant license for the same premises, and any hotel or club licensee shall have the privilege of remaining open during the aforesaid prohibited hours for the purpose of carrying on their usual activities, except the sale of alcoholic beverages.
The ordinance was adopted under the authority of the Alcoholic Beverage Control Act (ABC Act), N.J.S.A. 33:1-40:
The governing board or body of each municipality may, as regards said municipality, by ordinance or resolution, limit the hours between which the sale of alcoholic beverages at retail may be made, . . . and, . . ., regulate the conduct of any business licensed to sell alcoholic beverages at retail and the nature and condition of the premises upon which any such business is to be conducted.
Pursuant to subsection 10-2 of the Union City Code, words and phrases used in Chapter 10 are defined as they are in the ABC Act and regulations. The ABC Act defines "restaurant" as [a]n establishment regularly and principally used for the purpose of providing meals to the public, having an adequate kitchen and dining room equipped for the preparing, cooking and serving of food for its customers and in which no other business, except such as is incidental to such establishment, is conducted. [N.J.S.A. 33:1-1(t)(emphasis added).]
Consequently, under the statutory definition, an establishment that primarily operates as a discotheque or a dance hall, but which happens to have a municipal restaurant license, would not qualify as a "restaurant." Likewise, the term "club" is not defined in the ABC regulations as a "dance club" or "nightclub," as the term might be informally understood, but as a private membership organization. Pursuant to N.J.A.C. 13:2-8.1, a "club" is an organization, corporation or association controlled by and consisting of 60 or more persons, of legal drinking age, operating solely for benevolent, charitable, fraternal, social, religious, recreational, athletic or similar purposes and not for private gain.
A club licensee may only sell alcoholic beverages to "a bona fide member of the club or a bona fide guest of such member." N.J.A.C. 13:2-8.8(a); N.J.S.A. 33:1-12. Plaintiff is not a ...