New Hope Books, Inc. v. Farmer, CIV. 98-3937 JBS.

• Decision Date: 13 January 2000
• Docket Number: No. CIV. 98-3937 JBS.,CIV. 98-3937 JBS.
• Citation: 82 F.Supp.2d 321
• Parties: NEW HOPE BOOKS, INC., and 705 Crescent Corporation, Plaintiffs, v. John J. FARMER, Jr. (as Attorney General of the State of New Jersey), Defendant.
• Court: U.S. District Court — District of New Jersey

Page 321

82 F.Supp.2d 321

NEW HOPE BOOKS, INC., and 705 Crescent Corporation, Plaintiffs, v. John J. FARMER, Jr. (as Attorney General of the State of New Jersey), Defendant.

No. CIV. 98-3937 JBS.

United States District Court, D. New Jersey.

January 13, 2000.

Joseph A. Diorio, Philadelphia, PA, for plaintiffs.

John J. Farmer Jr., Attorney General of New Jersey by Larry Etzweiler, Trenton, NJ, for defendant.

OPINION

SIMANDLE, District Judge.

This motion addresses the important issue of whether it is appropriate for this federal court to subject a state criminal statute to pre-enforcement review upon the ground that the statute's existence is alleged to have a tendency to chill the plaintiffs' exercise of First Amendment rights in connection with the operation of their adult entertainment business. In this case, plaintiffs, New Hope Books, Inc. ("New Hope") and 705 Crescent Corporation ("705 Crescent"), an adult entertainment store and its landlord, respectively, challenge the constitutionality of various New Jersey statutes which regulate the adult entertainment business. Plaintiffs were charged with violating N.J.S.A. 2C:34-1, which prohibits engaging in prostitution, promoting prostitution, and compelling others to engage in prostitution, and N.J.S.A. 2C:33-12, which prohibits knowingly maintaining a house of prostitution or a premises where obscene material, as defined in N.J.S.A. 2C:34-2, is exhibited. Pursuant to a plea bargain between the county prosecutors and New Hope and 705 Crescent, all state indictments have been dismissed. Nonetheless, before this Court is plaintiffs' six-count Second Amended Complaint, in which they seek declaratory relief holding unconstitutional the above statutes, as well as N.J.S.A. 2C:33-12.1(b), which allows a court to shut down a nuisance as defined above for one year, and N.J.S.A. 2C:33-12.2(b), which includes in the definition of a nuisance a sexually oriented business which offers enclosures that facilitate sexual activity by patrons.

Defendant, John J. Farmer, Jr., Attorney General of New Jersey, sought judgment on the pleadings as to plaintiffs' challenge to N.J.S.A. 2C:33-12, 2C:33-12.1(b), 2C:34-1, and 2C:34-2, arguing that this Court should abstain under the abstention doctrine from Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Defendant additionally filed a motion for dismissal of the complaint, or for a partial stay and partial dismissal, on the counts for which he does not seek a Younger abstention. In a December 22, 1999 Opinion and Order, this Court denied the motion for judgment on the pleadings. Additionally, the Court dismissed Count Six of the Second Amended Complaint by agreement of the parties. As this Court explained, the following remained to be decided: whether plaintiffs have standing to raise a preenforcement challenge to the constitutionality of N.J.S.A. 2C:33-12.2(b), whether the Court should exercise Pullman abstention, and whether, if the plaintiffs have standing and this Court chooses not to abstain, N.J.S.A. 2C:33-12.2(b) is unconstitutionally vague on its face.¹ This Court promised that a forthcoming Opinion would take up these issues and scheduled oral argument for January 28, 2000 upon these issues.

As explained below, however, this Court has now reviewed the parties' papers on the motion to dismiss or for a partial stay and partial dismissal and has determined that plaintiffs' challenge of N.J.S.A. 2C:33-12.2(b) is not ripe. Accordingly, defendant's motion to dismiss will be granted, and those aspects of Counts One through Five which are based on N.J.S.A. 2C:33-12.2(b) will be dismissed.

I. BACKGROUND

The facts of this case are set out in detail in this Court's December 22, 1999 Opinion, and they need not be repeated here. What follows is a description of only those facts relevant to the ripeness of the challenge to N.J.S.A. 2C:33-12.2(b). These facts are uncontested.

Following a February 6, 1997 raid of the subject premises, on May 5, 1997, the Camden County Prosecutor's Office instituted civil forfeiture proceedings in the Superior Court of New Jersey against certain funds seized during the raid. On May 15, 1997, Lee A. Solomon, the Acting Camden County Prosecutor, sent a letter to "ALL POLICE CHIEFS" in which he explained that an injunction against the enforcement of N.J.S.A. 2C:33-12.2(b) had been issued in August of 1995, but that "[i]n February, 1997, the New Jersey Superior Court, Appellate Division vacated the injunction and declared that N.J.S.A. 2C:33-12.2 is constitutional. Be advised that the statute may now be enforced." (Pls.' Br. Ex. B.) The decision to which the letter referred was Chez Sez VIII v. Poritz, 297 N.J.Super. 331, 688 A.2d 119 (App. Div.), cert. denied, 149 N.J. 409, 694 A.2d 194 (1997), which was issued on February 7, 1997, one day after the raid. The remainder of the letter went on to explain, in layman's terms, the Appellate Division's interpretation of the statute, which was that

sexual activity is facilitated when "booths" or other places in a sexually oriented business are so constructed as to "preclude visibility" from public areas of the business. It appears that it is the Court's opinion that "sexual activity" is more likely to occur, and therefore "facilitated", where a booth has an opaque screen or a door which affords privacy or anonymity to the booth's occupant. It further appears, then, that sexually oriented businesses with booths so equipped are in violation of the statute.

(Pls.' Br. Ex. B.)

Months later, on December 17, 1997, the Camden County grand jury indicted plaintiffs under N.J.S.A. 2C:34-1 and 2C:33-12. Plaintiffs were not charged with violating N.J.S.A. 2C:33-12.2(b).

On April 21, 1998, Brian E. Mulholland, Assistant Prosecutor of Camden County, sent a letter to all owners/operators of sexually oriented businesses which said the following;

New Jersey Statute 2C:33-12.2, a copy of which is enclosed, makes it a nuisance as well as a crime of the fourth degree to own or operate a "sexually oriented business" which offers for public use booths, screens, enclosures or other devices which facilitate sexual activity by patrons. The term "sexually oriented business" is defined in the statute.

In Chez Sez VIII, Inc., et al. v. New Jersey, A1729-95T3, a New Jersey appeals court found that N.J.S. 2C:33-12.2 is not violative of the United States Constitution and also provided guidance in interpreting the statute. According to the appellate court, sexual activity is "facilitated" when booths or other places in a sexually oriented business are so positioned or constructed as to "preclude visibility" from public areas of the business.

N.J.S. 2C:33-12.1, a copy of which is also enclosed, provides that a building whose owner has been convicted of maintaining a nuisance may be closed by the Court for a period not to exceed one year. The purpose of this letter is to formally notify you that a "sexually oriented business" may be operating on premises owned by you, and to give you an opportunity to bring that business into compliance with the law.

(Pls.' Br. Ex. A.)

In response to this letter, plaintiff New Hope Books altered the doors to its viewing booths such that the bottom one-third of the door was eliminated and the opening to the booth was visible to the adjacent public hallway. Counsel to New Hope Books, Donald Feeley, Esquire, wrote to the Police Chief asking for a standard regarding enforcement of N.J.S.A. 2C:33-12.2 and whether his clients' alterations to the doors were in accordance with the law. (Pls.' Br. Ex. C.) He received no response.

Plaintiffs have not been charged with violating N.J.S.A. 2C:33-12.2(b) at any time, including after the police saw and raided the premises thirty-five months ago, or after the police became aware, through Mr. Feeley's letter, that the booths looked essentially the same but now had the bottom 1/3 of the doors removed. Additionally, plaintiffs have not provided evidence that any other sexually oriented business has been charged under the statute.

II. DISCUSSION

A. Standards for Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Defendant here seeks to have this Court dismiss plaintiffs' challenge to N.J.S.A. for lack of standing or ripeness. Such a challenge is one to this Court's subject-matter jurisdiction and is brought under Fed.R.Civ.P. 12(b)(1). When such a motion is brought, the court must accept as true all material allegations of the complaint and construe that complaint in favor of the nonmoving party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The court's focus is not upon the factual allegations insofar as they would entitle plaintiffs to relief, but rather upon whether this Court has jurisdiction to hear the claim and grant that relief. Toward that end, the Court can consider affidavits attached to the moving papers or even require such affidavits to be submitted, id., and based on those the Court can find facts. Growth Horizons, Inc. v. Delaware County, Pennsylvania, 983 F.2d 1277, 1281 n. 4 (3d Cir.1993). "If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." Warth, 422 U.S. at 501-02, 95 S.Ct. 2197.

B. Case or Controversy Requirement

Though defendant argues that plaintiffs lack standing to challenge N.J.S.A. 2C:33-12.2(b), defendant's true argument is that there is no actual "case or controversy" between the parties and that a pre-enforcement challenge to the statute, under these circumstances, is not ripe. Because of the mandates of Article III of the United States Constitution and the terms of the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, this Court must determine whether plaintiff has presented an "actual controversy." As part of the "case or controversy" requirement, parties seeking to challenge a statute must first "suffer injury or come into immediate...