McFadden's Lounge v. Division of Alcoholic Beverage Control, Dept. of Law and Public Safety

• Decision Date: 12 November 1954
• Docket Number: No. A--307,A--307
• Citation: 33 N.J.Super. 61,109 A.2d 444
• Parties: McFADDEN'S LOUNGE, Inc., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF LAW AND PUBLIC SAFETY, State of New Jersey, Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 61

33 N.J.Super. 61

109 A.2d 444

McFADDEN'S LOUNGE, Inc., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF LAW AND PUBLIC SAFETY, State of New Jersey, Respondent.

No. A--307.

Superior Court of New Jersey Appellate Division.

Argued Nov. 1, 1954.

Decided Nov. 12, 1954.

Harry Kay, Newark, argued the cause for appellant.

Samuel B. Helfand, Deputy Atty. Gen., argued the cause for respondent (Grover C. Richman, Jr., Atty. Gen.).

Before Judges CLAPP, JAYNE, and Francis.

The opinion of the court was delivered by

JAYNE, J.A.D.

Experience has firmly established that taverns where wine, men, women, and song centralize should be conducted with circumspect respectability. Such is a reasonable and justifiable demand of our social and moral welfare intelligently to be recognized by our licence tavern proprietors in the maintenance and continuation of their individualized privilege and concession. Broadly stated, the present appeal is addressed to the propriety of the disciplinary action occasioned by an alleged infraction of that obligation.

A plenary retail consumption license was issued to the appellant by the Municipal Board of Alcoholic Beverage Control of the City of Newark which privilege was utilized at a night club conducted by the appellant at Nos. 88--94 Halstead Street

On November 30, 1949 the then Director of the State A.B.C. caused a warning to be dispatched to appellant, excerpts from which are here quoted:

'Gentlemen:

'Agents of this Division report that recently, while making undercover checks at your tavern, they witnessed a team of two men billed and introduced as the 'McFadden Boys, Bill & Tom' perform with music, songs and 'side remarks' for the entertainment of your patrons. While the music and songs, so called popular numbers, appear to have been kept to the scripts, many of the 'side remarks' were questionable and highly suggestive. They went well beyond any humor and bordered dangerously close to be classified as 'smutty,' and as such possibly to be deemed to constitute lewdness and immoral activities on the licensed premises.

'However, you are specifically warned that you must clean up the entertainment at your licensed premises. Should any future violation of like character be found at your tavern, warranting proceedings, the present warning may well be taken into account in determining proper penalty.

'Please let us have, immediately and without fail, a letter signed personally by your president or vice-president acknowledging receipt of this warning and giving your pledge of future compliance with all the liquor laws regulations.'

The president of the licensee acknowledged the receipt of the Director's communication and promptly replied:

'I am President of McFaddens Lounge Inc. and one of the McFadden Brothers on whom the agents reported. My brother Bill and I have been entertaining in and around Essex County for the past fifteen years and have never been award that our brand of humor was offensive to anyone. On the contrary, through our long experience in show business, we feel that our entertainment is good clean fun for everyone.

'However, if any of the material we had been doing was construed by your agents as bordering on being classified as 'smutty' and as such placing our license in jeopardy, rest assured that it can be dispensed with immediately without in any way impairing the entertainment value of the act.'

Both the warning and the responsive assurance seem to have lost their potentiality in the passage of time, for on September 2, 1953 the following accusation was made against the appellant by the Director of the Division of Alcoholic Beverage Control:

'On Friday night, August 21, 1953 and early Saturday morning, August 22, 1953 and on Friday night, August 28, 1953 and early Saturday morning, August 29, 1953, you allowed, permitted and suffered lewdness and immoral activity in and upon your licensed premises, in that male entertainers sang songs, recited stories and uttered words and phrases having lewd, lascivious, indecent, filthy, disgusting and suggestive import and meaning; in violation of Rule 5 of State Regulations No. 20.'

The portion of Rule 5 of State Regulation No. 20 of present pertinency reads:

'No licensee shall allow, permit or suffer in or upon the licensed premises any lewdness, immoral activity, or foul, filthy or obscene language or conduct, * * *.'

The promulgation of the foregoing rule by the Division of A.B.C. has been judicially regarded to be within the orbit of the authority conferred upon the administrative agency by N.J.S.A. 33:1--39, as amended. In re Schneider, 12 N.J.Super. 449, 79 A.2d 865 (App.Div.1951); Greenbrier, Inc., v. Hock, 14 N.J.Super. 39, 81 A.2d 398 (App.Div.1951), certification denied, 7 N.J. 581, 83 A.2d 380 (1951); In re Larsen, 17 N.J.Super. 564, 86 A.2d 430 (App.Div.1952); In re 17 Club, Inc., 26 N.J.Super. 43, 97 A.2d 171 (App.Div.1953).

Following a hearing the then Director of the Division concluded that the present appellant had disobeyed the designated rule and ordered the suspension of the license for a period of 25 days from February 9, 1954 to March 6, 1954. Compliance with the order has been deferred until the determination of the present appeal.

It is not inappropriate briefly to insert here the information that pending this appeal the decision of the Supreme Court in Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954) was rendered, and although this appeal was retained, the proceedings under review were remanded to the Division of the A.B.C. to be further pursued in conformity with the decision in the Mazza case. Such was done, and the present Director of the Division arrived at the same conclusion as that of his predecessor and likewise ordered the suspension of the appellant's license for a period of 25 days. We have no reason to doubt that he devoted his eye and mind to the transcription of the evidence adduced at the prior hearing. The former procedural criticisms were evidently erased.

The appellant's surviving and predominant criticism of the Director's decision is that the application of Rule 5 to the factual circumstances constitutes an arbitrary abridgment of the constitutional rights of the implicated parties to the freedom of speech.

As an initial premise it is acknowledged that the paraphrased lyrics of the songs and the stories as reported were actually delivered on the designated occasions by the entertainers at the tavern with the knowledge and acquiescence of the officers of the licensee and were composed or selected and communicated for the titillatory amusement and entertainment of the patrons, and not for any purpose of academic indoctrination.

Manifestly the jollity and merriment sought to be diffused by the songs and stories inhered, it is supposed, in their implied suggestiveness of illicit sexual relations. It requires only ordinary frankness to state that the compositions exemplify a crude and smutty exercise in semantics--decent words procreating indecent ideas, decorous language utilized to impart indecorous concepts.

The propriety of such deliverances is perhaps basically estimated in view of the time, place, the appropriate conventional standards, and the object, purpose, and effect of their theme. True, fashions in both language and dress have changed over the passing years in the field of entertainment in their contemporaneous and conformable accommodation to the mental and visual breadth and tempo of modern life. The spicy exhibition apparently tickles the box office. Endeavors to moderate or to resist the elevation of the rapturous and erotic flavor of such entertainments commonly encounter the solemnity of constitutional objections.

Certainly no less than a ton of literature is reasonably available on the subject of freedom of speech and its transilient censorship. Today redundancy in the further discussion of the...