On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeals Nos. 004-03-10 and 004-08-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-5527-09T4) November 15, 2011 and Submitted (A-5748-09T1) November 15, 2011
Before Judges Yannotti and Espinosa.
Defendants Bo Liu (Liu) and Cai Hong Yue (Yue) appeal from judgments entered by the Law Division on June 18, 2010, finding them guilty of violating the City of Garfield's Ordinance § 64-3(A)(1). We consolidate the appeals for purpose of our decision and affirm.
In September 2008, the Garfield Police Department (GPD) investigated a complaint that persons working at the River Spa, a so-called "massage therapy business," were offering to perform sexual acts in exchange for money. On November 18, 2008, a detective from the GPD made an appointment for a massage. The detective reported that, during the massage, a female masseuse, who was subsequently identified as Yue, offered to perform a sex act in exchange for money.
Back-up units entered the premises and arrested Liu and Yue. While the police were engaged in a search of the premises, a male patron arrived. The patron gave a statement to the detectives admitting that he had received a "hand release" from masseuses in exchange for money. He said that he had visited the spa nine times and received massages by three different masseuses. The individual said that on each visit, he had received a "hand release" from one of the masseuses.
Liu was charged with violating Ordinance § 64-3(A)(1), which makes it unlawful for a person to operate an establishment as a massage parlor, where physical contact with the recipient of the service results "in sexual conduct." Liu also was charged with failing to obtain a certificate of occupancy (CO), in violation of Garfield's Ordinance § 3:41-61, and operating an illegal massage parlor, in violation of Ordinance § 64-3. Yue was charged with engaging in prostitution, in violation of N.J.S.A. 2C:34-1.
Liu filed a motion in the municipal court to dismiss the charges on the ground that Ordinance § 64-3(A)(1) is unconstitutionally vague and overbroad because it did not define the term "sexual conduct." Yue joined in the motion, although she had not been charged under the ordinance. The municipal court judge denied the motion.
Liu entered a conditional plea of guilty to violating Ordinance § 64-3(A)(1), reserving her right to challenge on appeal the judge's ruling on the constitutionality of the ordinance. The other charges against her were dismissed. The State agreed to amend the prostitution charge, and Yue also entered a conditional plea of guilty to violating Ordinance § 64-3(A)(1), reserving her right to challenge on appeal the judge's ruling on the constitutionality of the ordinance.
Liu and Yue then provided the court with factual bases for their pleas. Yue admitted that she had provided sexual conduct to a customer of the massage parlor. She also admitted that on November 18, 2008, as part of a massage, she masturbated the penis of a customer with her hand.
Liu admitted that she was the operator of the River Spa on November 18, 2008. She said that she did not know whether such sexual conduct or sexual acts had occurred on November 18, 2008, but she acknowledged that "those acts" had occurred in her business.
The municipal court accepted defendants' pleas. The court found Liu guilty of violating Ordinance § 64-3(A)(1). The court imposed a $1,000 fine and required Liu to pay court costs of $33. In addition, the court found Yue guilty of violating the ordinance, imposed a $500 fine and required her to pay court costs of $33.
Defendants thereafter sought de novo review by the Law Division. Defendants again argued that that Ordinance § 64-3(A)(1) was unconstitutionally vague and overbroad. The trial court considered the appeals on June 18, 2010, and placed its decision on the record. The court rejected ...