N.J. high court OKs new tactic against strip clubs

Monday, January 23, 2012

The New Jersey Supreme Court has ruled that towns can restrict sexually oriented businesses by arguing that such establishments are available in New York.

The ruling has potentially broad significance in adult-business litigation on the issue of alternative locations for such businesses.

The dispute arose in in Sayreville in November 2007, when 35 Club L.L.C. began operating XXXV Gentlemen’s Club, which featured nude dancing. The Borough of Sayreville filed a lawsuit in state court, asking a court to close the business because it violated a state law that prohibiting adult businesses from operating with 1,000 feet of a public park or residential neighborhood.

The business conceded that under the law the club was located too close to a park or residences, but argued that the restriction could not constitutionally be applied to it because the borough failed to provide “adequate alternative channels of communication.”

In this area of First Amendment law, cities and municipalities cannot ban adult businesses but they can zone and license them on the basis of what’s called the secondary-effects doctrine. That is, the government can regulate sexual expression not because of its purported offensiveness, but because the businesses allegedly cause harmful secondary effects, such as decreased property values and increased crime.

However, city zoning laws – even if based on secondary effects – must provide adult-business owners with enough locations to operate or they effectively deny them a reasonable opportunity to do business. So the issue in much secondary-effects litigation concerns how many other available sites there are for a business like XXXV Gentleman’s Club to locate.

A New Jersey trial court ruled for Sayreville, crediting the borough’s expert witness who said there were enough available locations for the club to operate – including much space in nearby Staten Island, N.Y. The trial court wrote that Staten Island was “no different than any other site in the market area … except for a bridge and a toll.”

However, a New Jersey intermediate appellate court reversed the trial court, finding that it had erred in allowing sites in a different state to be considered as alternative locations.

On further appeal, the New Jersey Supreme Court ruled 5-1 on Jan. 19 in Borough of Sayreville v. 35 Club, L.L.C. that the trial court had reasonably held that Sayreville could note possible sites in Staten Island as alternatives.

“Although a record in which the only alternative avenues, or the great majority of alternative avenues, are outside of New Jersey would never be sufficient to withstand an as-applied challenge, a trial court is not required to ignore the existence of such alternatives,” Justice Helen E. Hoens wrote in her majority opinion.

Justice Barry T. Albin dissented, writing: “Today, this Court becomes the first in the nation to suggest that a state can geographically restrict constitutionally permissive expression within its borders, in part, by offering a neighboring state as an alternative forum.”  Albin said that “New Jersey cannot under the federal or state constitution restrict the location of sexually oriented expression without providing that expression a safe haven somewhere within this State’s borders.”

The majority’s decision could lead to an increase in litigation over available sites and inspire other municipalities to crack down on adult businesses by claiming that they could move to other states.

The Associated Press contributed to this report.

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