Hausner, In re, C--111

• Decision Date: 27 September 1971
• Docket Number: C--111
• Parties: In the Matter of Disciplinary Proceedings against S. Edward HAUSNER t/a Skyline Lounge 789 Dowd Avenue, Elizabeth, New Jersey, Holder of Plenary Retail Consumption License(for 1969--70 license period as extended for 1970-- 71 license period) Issued by the City Council of the City of Elizabeth.
• Court: New Jersey Superior Court — Appellate Division

Page 206

116 N.J.Super. 206

281 A.2d 536

In the Matter of Disciplinary Proceedings against S. Edward

HAUSNER t/a Skyline Lounge 789 Dowd Avenue, Elizabeth, New

Jersey, Holder of Plenary Retail Consumption License C--111

(for 1969--70 license period as extended for 1970-- 71

license period) Issued by the City Council of the City of Elizabeth.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 22, 1971.

Decided Sept. 27, 1971.

Theodore Cohen, West New York, attorney for appellant S. Edward Hausner (Anthony X. Arturi, Fort Lee, on the brief).

George F. Kugler, Jr., Atty. Gen., attorney for respondent Division of Alcoholic Beverage Control (Stephen Skillman, Asst. Atty. Gen., of counsel; Bertram P. Goltz, Jr., Deputy Atty. Gen., on the brief).

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Licensee appeals from a 50-day suspension of its license based upon possession of contraceptives and obscene literature on its premises.

The licensee was charged:

1. On August 27, 1969, you allowed, permitted and suffered in and upon your licensed premises and had in your possession obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures; in violation of Rule 17 of State Regulation No. 20.

2. On August 27, 1969, you possessed prophylactics against venereal disease and contraceptives and contraceptive devices, in and upon your licensed premises; in violation of Rule 9 of State Regulation No. 20.

Rule 17 of State Regulation 20 provides:

No licensee shall allow, permit or suffer in or upon the licensed premises or have in his possession or distribute or cause to be distributed any obscene, indecent, filthy, lewd, lascivious or disgusting recording, printing, writing, picture or other matter.

Rule 9 of State Regulation 20 provides:

No licensee, except bona fide pharmacies to the extent that they may be duly authorized by law, shall sell, distribute or possess, or allow, permit or suffer the sale or distribution, or the possession for the purpose of sales or distribution of any prophylactic against venereal disease or any contraceptive or contraceptive device, either chemical or mechanical, or possess, allow, permit or suffer any mechanical device for such sale or distribution, in or upon the licensed premises or any other premises used in connection therewith.

On August 27, 1969, shortly after 3 P.M., an agent of ABC with three law enforcement officers entered the licensed premises on a specific assignment to investigate an allegation that there was stolen liquor on the premises. No stolen liquor was found. At the conclusion of the search for the stolen liquor, the agent inspected a small office area. In a filing cabinet he found three books entitled Photographic Manual of Sexual Intercourse, Oral Love and Variations in Love Making. From a safe he seized a partially used tube of Ortho vaginal jelly, on Ortho diaphragm and three male contraceptives. In a center drawer of the desk he found and seized three catalogs: a 48-page color catalog entitled 'Adult Catalog'; a 4-page color catalog bearing the legend 'Save 25%,' and a 24-page color catalog entitled 'Breathtaking Full Color Adult Catalog.' Licensee admitted that all of the items seized were his except the diaphragm and jelly which he asserted were his wife's.

The Director concluded that the three books did not come within the proscription of Rule 17 of State Regulation 20 and found the licensee not guilty as to those items. As to the catalogs he found that they were pornographic, 'portraying nude persons in sexually suggestive poses and positions of a smutty nature, geared to appeal to the passions of the viewer, and they therefore are obscene, indecent, filthy, lewd, lascivious and disgusting printings, writings and pictures within the meaning of Rule 17 of State Regulation No. 20.' He did not consider it a defense that the materials were merely retained after being received in the mail without solicitation. He ruled that the Division did not have to prove that a licensee possessed such materials with intention to display them to customers. The Director found that the evidence charging the licensee with possession of prophylactics and a contraceptive device was uncontradicted.

The licensee argues that in view of present-day mores the items found to be obscene are not in fact obscene. We have examined the original exhibits and in our opinion the Director's finding that the items were obscene is amply supported. It must be remembered that the standards to be applied are more narrow than the definition of 'obscenity' under the ...