832 Corp. v. Gloucester Tp., Civ. 04-1140(JEI).

Citation404 F.Supp.2d 614
Decision Date12 December 2005
Docket NumberNo. Civ. 04-1140(JEI).,Civ. 04-1140(JEI).
Parties832 CORPORATION, INC., 225 Corporation, Inc., and The John Adams Club, Inc., Plaintiffs, v. GLOUCESTER TOWNSHIP, Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

Sirkin, Pinales & Schwartz LLP, By: H. Louis Sirkin, Jennifer M. Kinsley, Candace C. Crouse, Cincinnati, Ohio, for Plaintiffs.

Everett Jones, Camden, New Jersey, for Plaintiffs.

Parker McCay, P.A., By: John C. Gillespie, Elizabeth M. Garcia, Marlton, New Jersey, for Defendant.

OPINION

IRENAS, Senior District Judge:

Plaintiffs 832 Corporation, Inc., 225 Corporation, Inc., and the John Adams Club, Inc. ("Plaintiffs"), brought the instant action challenging the constitutionality of Gloucester Township ("Township") Ordinance O-99-04 ("Ordinance"), which regulates adult businesses. Presently before the Court are the cross-motions of Plaintiffs and the Township for summary judgment.

I.
A. Gloucester Township Ordinance O-99-04

The Township adopted the Ordinance on February 22, 1999. The Ordinance created a comprehensive licensing scheme to regulate "adult-use establishments" within the Township's borders. The Township specified that its purpose in enacting the regulations was to address the "adverse secondary effect" such businesses have on the community. (§ 24.1.) The Ordinance enumerates various secondary effects including "depreciation of property values, deterioration of neighborhoods, increase in incidences of crime, increase in blight, increases in vacancy rates of residential and commercial areas and increases in litter, noise and the interference with property owner's enjoyment of their property located in the vicinity of Adult Use Establishments." (Id.)

The Ordinance requires all adult use establishments to obtain operating licenses issued by the Township, pay a license fee and abide by certain restrictions on the location of the business, operating hours, advertising and signage, interior lighting and construction, and inspection of the premises. Adult use establishments are defined as adult book, novelty or video stores, adult arcades, adult entertainment cabarets, adult motels, adult motion picture theaters, and adult theaters. (§ 24.2.) Given the extent and length of the Ordinance, the Court will not replicate it here but will quote from the Ordinance where relevant in discussing the parties' claims.

Of particular relevance here is the Ordinance's definition of an adult entertainment cabaret, which the Township maintains is applicable to Plaintiffs' business. When the Ordinance was adopted, such a business was defined as:

A nightclub, bar, restaurant or similar commercial establishment which features:

1. Persons who appear in a state of nudity

2. Live performances which are characterized by exposure of specified anatomical areas1 or specified sexual activity2

3. Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(§ 24.2.) On April 23, 2001, in the midst of the events related to the instant matter, the Township amended this definition to specify that it includes any such establishment which "features or permits" the listed activities. Gloucester Township Ordinance 0-01-11. The amendment also added a fourth category to the list, encompassing "[a]ctivities by persons which are characterized by exposure of specified anatomical areas or specified sexual activities." Id.

The Ordinance also includes sections regarding the definitions of the relevant terms, licenses required and duties of applicants, issuance of licenses, license fee, location of adult use establishments, development standards and use regulations for such businesses, inspections of adult use establishments, the suspension, revocation and transfer of licenses, and enforcement of the ordinance. A June 9, 2003, amendment to the Ordinance added a provision to the section on the licenses required and duties of the applicant.

B. Plaintiffs' license application and business

On September 5, 2000, Plaintiff 225 Corporation filed an application for a Mercantile License3 with the Township to operate an establishment at 834 Black Horse Pike in a building that had previously housed the nightclub Club Fiji. (Def.Br.Ex. D.) The application lists the name of the business as "225 Corporation, Inc. d/b/a The New Club Fiji" and describes the type of business as "restaurant (catered) NIGHTCLUB." (Id.)(Emphasis in original.) Alvin Pearis is listed as the sole owner of 225 Corporation. (Id.) Plaintiff 832 Corporation, Inc., is listed as the owner of 834 Black Horse Pike. (Id.) Plaintiff John Adams Club, Inc., is not listed on the application.

Assistant Municipal Township Clerk Ann Quintavalle sent a letter to Pearis on September 18, 2000, asking for a "more definitive answer from you as to the type of establishment you will be operating." (Def.Br.Ex. F.) At some point in September, 2000, Quintavalle also provided a copy of the Ordinance to Nancy Hart-Esposito Esq., counsel to 225 Corporation. (Quintavalle Cert. ¶ 4, Def. Br. Ex. E.) Quintavalle stated in an affidavit that she provided Hart-Esposito with the Ordinance because "[Hart-Esposito] was unable to describe the type of establishment that would be installed at the Club Fiji." (Id.) Quintavalle also stated that Hart-Esposito had "implied" that the New Club Fiji "may be used for adult purposes." (Id.)

In an October 9, 2000, letter to Quintavalle, Pearis wrote that "[i]t is my intent to have a food and beverage facility that is open to the general public." (Def.Br.Ex. G.) Pearis further stated that food would be prepared off-site and brought to the New Club Fiji for retail sale, but he had not yet determined whether he would secure a liquor license for the business. (Id.)

Pearis and various Township officials exchanged several letters, and a meeting was held between Hart-Esposito, the Township Solicitor and other Township officials on November 22, 2000. (Def.Br.Ex. H.) This correspondence culminated in a December 19, 2000, letter from Pearis to Bernie Shepherd, a Township official, in which he "amend[ed] and clarif[ied]" the description of his business in the original license application:

1. It is my intent to have a non-alcoholic nightclub that serves food and beverages prepared off premises. I have not ruled out the possibility of obtaining a liquor license and food license in the future.

2. There will be either a disc jockey or live music with a designated dance floor, the same as Club Fiji used.

3. The tables and chairs will be set around the dance floor and existing bar area, but will not be in a fixed location and will be movable by patrons and staff the same as they were for Club Fiji.

4. I will use the existing lighting in place that was used by the previous nightclubs, Club Fiji and Omar's, at the location.4

(Id.) Pearis further stated that "[t]his facility will be operated the same as a nightclub that does serve alcoholic beverages." (Id.) He also stated that he would rent the facility to individuals for "weddings, birthday parties, dances, fundraisers, holiday celebrations and the like." (Id.)

On February 23, 2001, the Township issued a Mercantile License to 225 Corporation, operating under the trade name "The New Club Fiji," for a "non alcoholic nightclub-food & beverages prepared & supplied off premises." (Def.Br.Ex. I.) Shortly thereafter, the Township Police Department received information that the New Club Fiji was operating as an adult use establishment, and began an investigation in April, 2001. (Def.Br. at 6, Smith Cert., Def. Br. Ex. K.) The Police Department discovered an advertisement on the website "Swingersusa" for parties at Plaintiffs' establishment. (Def. Br. at 7, Def. Br. Ex. J.)

On April 7, 2001, Tracey Holmes, a Township police officer, and two investigators from the Camden County Prosecutor's Office ("CCPO") attempted to gain admittance to Plaintiffs' establishment but were denied access because they were not on the guest list. (Holmes Cert., Def. Br. Ex. L.) Holmes, Fawn Landay and Robert Ferris, CCPO investigators, were admitted to the club on April 14, 2001, as they had placed their names on the guest list by sending an email to the website.5 (Id.) They did not pay an entrance fee. (Landay Cert., Def. Br. Ex. M.)

During the April 14, 2001, visit, Holmes, Landay and Ferris toured the club. (Holmes Cert., Landay Cert.) The woman giving the tour referenced certain rooms where guests could have sex, and showed them rooms with mattresses on the floor. (Id.) They also observed a woman exposing her breasts, a couple fondling each other's genitalia and several patrons engaging in sexual intercourse. (Id.)

On April 21, 2001, Holmes, Landay and Ferris again visited the club and were not asked to pay a cover charge.6 (Id.) They observed that more mattresses had been brought in to the facility. (Id.) They observed women exposing their breasts, men fondling and making oral contact with women's breasts, women performing oral sex acts on male patrons, and couples and groups of people engaging in sexual intercourse, oral sex and masturbation. (Id.) They also saw several individuals watching other patrons engage in sexual acts. (Id.) On this night, other patrons propositioned Holmes and Landay for sexual acts. (Holmes Cert., Landay Cert.) They acquired two issues of "Swingers Direct" magazine, as well as several flyers, which were displayed for the patrons to take without charge. (Smith Cert.)

Holmes and Jason Gittens, a Township police officer, visited the club on May 5 and May 12, 2001, and observed similar activities. (Holmes Cert., Gittens Cert., Def. Br. Ex. 0.) On May 5, 2001, Holmes and Gittens were required to fill out applications for membership in the John Adams Club and give their driver's licenses to the club attendant...

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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 16, 2013
    ...whether a facial challenge of an administrative search scheme on Fourth Amendment grounds is permissible. 832 Corp. v. Gloucester Twp., 404 F.Supp.2d 614, 620 (D.N.J.2005) (noting the issue is unresolved, but assuming that such a challenge is allowable). In preliminarily enjoining an ordina......
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    ...123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), does not extend to public places such as the theater in this case. Cf. 832 Corp. v. Gloucester Twp., 404 F.Supp.2d 614, 622–25 (D.N.J.2005) (holding that Lawrence does not suggest that the constitutional right to engage in consensual sexual conduct ex......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 25, 2007
    ...expressive conduct. "Having sex, without more, is not expressive conduct protected by the First Amendment." 832 Corp. v. Gloucester Township, 404 F.Supp.2d 614, 626 (D.N.J.2005); Connection Distributing Co. v. Reno, 154 F.3d 281, 289 n. 8 (6th Cir. 1998); O'Connor v. City and County of Denv......
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    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 30, 2015
    ...does not protect any such kernel contained in the activities of sexual intercourse or fondling of genitals"); 832 Corp. v. Gloucester Twp. , 404 F.Supp.2d 614, 626 (D.N.J.2005)("Having sex, without more, is not expressive conduct protected by the First Amendment."). The HCP swingers' event ......
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1 books & journal articles
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    • United States
    • Columbia Journal of Gender and Law Vol. 18 No. 1, January 2009
    • January 1, 2009
    ...in turn, renders inapplicable the constitutional right to sexual liberty recognized in Lawrence. See 832 Corp. v. Gloucester, 404 F. Supp. 2d 614, 623-25 (D.N.J. 2005) (holding that Lawrence did not protect sexual conduct that took place in defendant's club, which was not private); Fleck &a......

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