January 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BO LIU, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CAI HONG YUE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendants' constitutional challenges to the ordinance and its application to them.
The court found Liu guilty of violating the ordinance, imposed a $1,000 fine, and required her to pay the municipal court costs of $33. The court also found Yue guilty of violating the ordinance. It imposed a $500 fine and required her to pay the municipal court costs of $33. The court entered orders dated June 18, 2010, memorializing its decision. Thereafter, defendants filed notices of appeal. On August 16, 2010, the trial court filed with this court a written amplification of its oral decision of June 18, 2010, pursuant to Rule 2:5-1(b).
On appeal, defendants raise the following arguments for our consideration:
THE LAW DIVISION JUDGE ERRED IN FINDING DEFENDANT GUILTY OF VIOLATING GARFIELD CITY ORDINANCE § 64-3(A)(1) SINCE THE ORDINANCE IN QUESTION IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION AS THE ORDINANCE DOES NOT DEFINE "SEXUAL CONDUCT"
POINT II THE COMPLAINT MUST BE DISMISSED WITH PREJUDICE SINCE THE ORDINANCE IN QUESTION IS
UNCONSTITUTIONALLY VAGUE AS APPLIED TO THE DEFENDANTS AND VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND ARTICLE I, PARAGRAPH  OF THE NEW JERSEY CONSTITUTION AS THE ORDINANCE DOES NOT DEFINE "SEXUAL CONDUCT"
POINT III THE COMPLAINT MUST BE DISMISSED SINCE THE ORDINANCE IN QUESTION IS UNCONSTITUTIONALLY OVERBROAD AND VIOLATES THE FIRST AMENDMENT, THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION AS THE ORDINANCE DOES NOT DEFINE "SEXUAL CONDUCT"
We have carefully considered these arguments in light of the record and the relevant legal principles. We conclude that defendants' arguments are entirely without merit.
We accordingly affirm the Law Division's judgments of June 18, 2010, substantially for the reasons stated by the trial court in its decision from the bench, as amplified in the statement of reasons filed with the court on August 16, 2010. R. 2:11-3(e)(2). We add the following brief comments.
Defendants argue that Garfield's Ordinance § 64-3(A)(1) is unconstitutionally vague on its face and as applied to them because it failed to define the term "sexual conduct." They argue that the ordinance fails to give masseuses and operators of massage parlors sufficient notice as to the "exact actions" which are proscribed. We do not agree.
The vagueness doctrine "'is essentially a procedural due process concept grounded in notions of fair play.'" State v. Lee, 96 N.J. 156, 165 (1984) (quoting State v. Lashinsky, 81 N.J. 1, 17 (1979)). The doctrine requires that "'laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227 (1972)).
However, "'statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.'" Parker v. Levy, 417 U.S. 733, 757, 94 S. Ct. 2547, 2562, 41 L. Ed. 2d 439, 458 (1974) (quoting United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561, 565 (1963)). Furthermore, "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Id. at 756, 94 S. Ct. at 2562, 41 L. Ed. 2d at 458.
Here, Liu admitted in her plea colloquy that she operated the massage parlor in Garfield, at which sexual conduct or acts occurred. Moreover, Yue acknowledged in her plea colloquy that she had masturbated a male customer of the establishment. The trial court correctly found that "manual arousal" clearly constitutes "sexual conduct" under the Ordinance and therefore Ordinance § 64-3(A)(1) is not unconstitutionally vague. Moreover, because defendants admitted to engaging in conduct to which the Ordinance clearly applies, they may not challenge the Ordinance on the grounds that it is unconstitutionally vague on its face or as applied to them.
Our decision in State v. Wright, 235 N.J. Super. 97 (App. Div. 1989), supports this conclusion. The defendant in Wright was the owner of a business, which she maintained as an adult bookstore and at which she offered live entertainment. Id. at 100. An investigator went to the establishment, exchanged a $10 bill for five one-dollar bills and coins and was directed to a booth, where he picked up a phone and spoke with a woman. Ibid. She said that for $40, they could take off their clothes in another room and "feel and touch each other . . . ." Ibid. The woman offered to sit on the investigator's lap and masturbate him. Ibid.
The defendant in Wright pled guilty to maintaining a house of prostitution. Id. at 99. She appealed her conviction and argued that the relevant statutes were unconstitutionally vague and overbroad because the term "prostitution" was defined as soliciting or engaging in "sexual activity." Id. at 101. We rejected this argument, stating that where a female employee offers to remove her clothing, sit on the lap of a male customer and masturbate him to orgasm in exchange for a fee, such conduct constitutes sexual activity. The phrase "sexual activity," whatever the outer limits of its definition, would clearly and uniformly be recognized by a reasonable reader to include manual arousal of the sexual organ of one person by another. [Id. at 102.]
The same conclusion applies here. Whatever the limits of the definition of the term "sexual conduct," it clearly encompasses the conduct engaged in by defendants.
Defendants' argument that Ordinance § 64-3(A)(1) is overbroad also is without merit. They contend that the ordinance is unlawful because it proscribes what defendants contend is the constitutional right to be naked in a public establishment. The trial court correctly found no merit in this argument.
The overbreadth doctrine rests on substantive due process principles, and requires the court to consider not whether the meaning of the law is unclear, but whether it extends too far. Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983). "The evil of an overbroad law is that in proscribing constitutionally protected activity, it may reach farther than is permitted or necessary to fulfill the state's interests." Ibid. The doctrine may be invoked when a statute or ordinance impinges on rights protected by the First Amendment. Lee, supra, 96 N.J. at 165.
Suffice it to say, this case does not involve the exercise of any constitutionally protected rights. The ordinance does not prohibit a "nude customer from obtaining a massage," as defendants claim. Moreover, as we said in Wright, "[s]exual activity for money is not protected by a constitutional right to privacy nor is it protected under a State-granted right to privacy." 235 N.J. Super. at 104. The same may be said for massages, where the "physical contact with the recipient of such service" results "in sexual conduct."
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