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Do-Wop Corp. v. City of Rahway

A-935-98T5 and A-5109-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; ADULT BUSINESSES—Ordinances restricting the location of certain businesses to certain areas constitute an exercise of the zoning power and can only be adopted in accordance with the Municipal Land Use Law.

An adult entertainment facility operated within a municipality. After it began operation, the municipality adopted an ordinance that regulated the conduct of such businesses when located within 1,000 feet of any residential zone, church, designated public park, playground, and the like. Such activities were permitted only in a particular industrial zone. The ordinance also provided that establishments that were operating on the date of the passage of the ordinance would become unlawful two years following the passing of the ordinance. A second ordinance, of similar nature, was passed with respect to amusement games or devices within adult amusement centers. Finally, an ordinance was adopted to prohibit consumption of alcoholic beverages at adult entertainment centers. When the business sought to renew its license, the application was rejected because the two-year period had expired. The municipality demanded that the adult entertainment business “cease all unlawful activities immediately.” The business took the municipality to court, and the lower court determined that since the 1,000 foot ordinances limited the activity of the business to a specific zone, it constituted a “locational prohibition” or a “territorial division of property according to the nature of the use.” Accordingly, the lower court concluded that those ordinances constituted an exercise of the zoning power, and were invalid because the ordinances were not enacted pursuant to the procedural requirements of the Municipal Land Use Law. The lower court also found that the “two-year” provision of the ordinance was invalid because “what made [the adult entertainment center’s] business unlawful ... two years after passage of the ordinance, is not how the business had been conducted. What [had] made it unlawful [was] where it [was] conducted.” Consequently, the lower court held that these type of ordinances could only be made by enactment in compliance with the requirements of the Municipal Land Use Law. On appeal, the municipality argued that its ordinances were presumptively valid, and were passed to further legitimate goals of the health, safety, and welfare of its citizens, and that its ordinances were valid, content-neutral licensing schemes which are narrowly tailored to regulate the time, place, and manner of an adult establishment’s business. It further argued that its ordinances dealing with the location of the business did not violate state law because of a state statute that permitted a municipality to prohibit adult amusement centers from operating within 1,000 feet from certain types of areas within municipal boundaries. In its cross-appeal, the business argued that the ordinance prohibiting on-premises consumption of alcoholic beverages was unconstitutional, or, in the alternative, it exceeded the scope of the municipality’s authority regarding the regulation of on-premises consumption of alcoholic beverages. In essence, the Appellate Division upheld the lower court’s decision.


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