Out-of-State Adult Businesses Can Be Used to Satisfy “Alternative Avenues of Communication”

Out-of-State Adult Businesses Can Be Used to Satisfy “Alternative Avenues of Communication”

  Tuesday, January 24, 2012    Julie Tappendorf

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The New Jersey Supreme Court recently addressed the question whether a court can consider the availability of “alternative channels of communication” in another state as part of its determination of an as-applied challenge to the state law limiting the places where sexually-oriented businesses may operate.  In Borough of Sayreville v. 35 Club, L.L.C., No. A-66-10, (N.J. Sup. Ct., January 19, 2012), the court answered yes, finding that a municipality can consider not only the “neighboring communities” that lie within a state’s borders, but also consider “neighboring communities” beyond those borders.  

In November 2007, 35 Club L.L.C. began operating a business called “XXXV Gentlemen’s Club” in the Borough of Sayreville. The business has been described as an “all-nude gentlemen’s cabaret” and falls within the statutory definition of a sexually-oriented business.  Shortly after the business opened, the Borough of Sayreville sued the business to permanently enjoin it from operating at that location because state law prohibits the operation of a sexually-oriented business within 1,000 feet of a public park or residential zone.

The court first acknowledged that adult-oriented forms of expression are entitled to the protections afforded by the First Amendment.  The court noted that the U.S. Supreme Court has considered challenges to ordinances that regulate the locations where businesses of this type may be conducted through the creation of buffer zones and has upheld these ordinances as consistent with the protections afforded by the First Amendment. The court cited the Supreme Court’s decision in City of Renton v. Playtime Theatres for the conclusion that locational restrictions are content-neutral because they do not prohibit these businesses, but instead are “designed to prevent crime, protect the city’s retail trade, [and] maintain property values,” thereby aiming to preserve quality of life in the communities that adopt them.  

The question the New Jersey court wrestled with was whether enforcing the state's locational restrictions would allow for reasonable alternative avenues of communication. The statute at issue requires a 1,000-foot buffer between a sexually-oriented business and certain sites including schools, public parks, and places of worship.  The court noted that there were a number of reasons why the state looked at the regional market in determining whether there are alternative avenues of communication available.  First, it might be more convenient for a patron to travel a few minutes into New York or Pennsylvania than to travel twenty minutes away to Newark or Elizabeth.   Second, the court recognized that patrons of these adult businesses often travel to other states to access this sort of entertainment. Third, the court noted that prohibiting any consideration of locations in nearby states would result in unequal treatment among municipalities.  Finally, the court rejected 35 Club’s argument that courts should not consider sites beyond state borders because the operators of these businesses have no voice in municipal government of neighboring states, finding that this argument ignores the fact that these businesses have no more voice in municipal governments within the state.

Post authored by Julie Tappendorf, Ancel Glink.