Commentary: New Jersey Cabarets Gear Up to Fight New Legislation

The New Jersey Adult Cabaret Assn. (NJACA) wants the adult business community in its state to know that it's currently tracking three bills, two of which have been approved by the state Assembly's Housing and Local Government Committee, and that it's going to need everyone's help to make sure the legislation doesn't get passed.

One of the bills – A2583, which would have placed time, place and manner restrictions on all adult businesses, and required dancers to be at least six feet from customers at all times – has been tabled, but two more practically sailed out of committee. Those bills, A3692 and A3693, sponsored by Assemblymembers Pamela R. Lampitt (Camden), Louis D. Greenwald (Camden) and John F. McKeon (Essex) would create new obstacles for adult businesses, several of which would appear to be unconstitutional ... and one of which is just wacky.

The wacky one first: A3692 would require the state to post a police officer or "adult school crossing guard" at "every school, child care center, or school bus stop located within 3,000 feet of any sexually oriented business ... during those time periods when a school, child care center, or school bus stop is in operation and children are outside" and that the adult business is "in operation" – which may mean not only when the adult business is open for business, but simply any time that the business exists at that location.

And of course, the bill also gives the municipality the power to levy a tax ("fee") on the adult businesses to pay for the guards ... even though the state presented no evidence during its hearing that such guards are necessary, or even that any child had had any adverse interaction whatsoever with any local adult business!

We asked Daniel Aaronson, the NJACA's attorney, where he thought the 3,000 feet came from.

"That's just an arbitrary number that was picked out by this lady, Lampitt," Aaronson responded, "and why or how she got to that, no one can tell me."

Worse, of course, is that this is the first time that the concept of posting guards on the kids when they're more than half a mile from an adult bookstore or club has been floated in any legislature in the country, and Aaronson can't see any reason for doing so.

"When I was up there, there was not a single piece of evidence submitted except what I submitted: Six or seven or eight of [sociologist] Dan Linz's studies showing that we don't cause adverse secondary effects and a couple of case decisions, Flannigan's v. Fulton County and one other one," Aaronson explained. "In fact, when I got up there, what I said was, 'Right now, you're curing an evil that you have no evidence that it exists.' I said, 'In order for it to be constitutional, you've got to show that you're alleviating a secondary effect. There have been no studies, there are no studies that show that we in any way, shape or form affect children, or that people who leave our clubs or our bookstores or what-not cause any crimes to children.' I said, 'In fact, people that visit our venues are adults who enjoy looking at adults. Therefore, they are not the type of person that commits crimes against children, because if they're specifically going to our places, they like adults.'"

But in fact, the question of whether children have been targeted anywhere near adult businesses wasn't even addressed by the assemblymembers present for the committee meeting.

"When the issue came up," Aaronson recounted, "one assemblywoman said, 'When I go to my local convenience store and I'm with my kids, I have to see newsracks that have naked pictures of girls on it, and I spoke to those people and they decided that they'd put them down a different hallway so my kids would not have to look at it.' And then another assemblyman got up there and he said, well, he knows that they can do this to us because they can regulate alcohol establishments this way. I had to point out to him that alcohol is governed by the Twenty-First Amendment; we're governed by the First Amendment, and there's a great difference. And then another assemblywoman said, 'Well, you can't tell me that every place needs to have adult entertainment, every city, because I happen to know that we can prohibit Playboys and Penthouses on army bases.' And I said, 'Well, that's governed by a different article of the Constitution, and when it comes to the military, let me ask you this: In the military, you can get kicked out if you're gay. You can't get kicked out of any other place in this world if you're gay. There are separate rules when it comes to the military.' That pretty much was the discussion, other than the fact that I said their law was unconstitutional, and they told me they ran it by their legal staff and their legal staff says it's not. Other than that, that was the hearing."

Well, almost. There was one other witness who testified, just after Aaronson had made his presentation.

"It was amazing: One person got up to speak after me, and he was the representative from the League of Cities for New Jersey, and he took our side," Aaronson said. "Basically, he said he didn't know whether it's constitutional or not, but what he does know is, it's going to make there be constitutional challenges, and every city is going to have to pay for the cost of this litigation because they have to enforce the state statute, and his League of Cities wishes that it does not get passed."

It's rare that a state assembly does not give great weight to the opinion of its state's League of Cities, but it appears that here, the Assembly virtually ignored the League.

"What they said right in front of us was, 'Well, it's all good that you spoke about this, but we've already discussed it with the head of the Assembly and with the heads of our respective parties, and we've all agreed that it's coming out of committee and going to the floor for it to be discussed on the floor'," Aaronson recounted. "The essence of what I could read into it, and this is purely my conjecture, is, this lady [Lampitt] is a new assemblywoman, this is her first bill, and they all want her to feel good, so it's getting out of committee. What they told us was, we'd have time to debate it in front of the full legislature."

One of the points that Aaronson and the NJACA will be making is that the tax component forcing the adult businesses to pay for the children's guards makes the bill unconstitutional on its face.

"If we have to go to court, it will be an applied challenge," Aaronson explained. "You see, if the cities had to pay for it [the guards], then it wouldn't be, but now it's going to be applied to the businesses; the bill says the cities may pass it [the "fees"] on. So now, when they try to pass it on to the individual adult establishment, that adult establishment is going to raise that, 'This is unconstitutional as applied to me. I have never caused any of these things. There have been no sexual assaults,' and we'll have a good crime study, and we'll say, 'This is unconstitutional as applied to me. It's a tax on my speech where I don't create any problem.'"

Aaronson can prove this through a secondary effects studies done by Daniel Linz and Bryant Paul in Union Township, N.J., in 2006 regarding the Hott 22 Club.

"The results showed that there is no evidence that 'Hott 22' is disproportionately more often the source of police attention that other addresses," Linz and Paul reported at that time. "Crime does not tend to accompany, concentrate around, or be aggravated by this adult business.  Likewise, the results of this study show no evidence of an increase in narcotics distribution and use, prostitution, violence against persons and property around this adult business.  We therefore conclude that Hott 22 is not associated with so-called 'adverse secondary effects.' These results are consistent with and completely predicable from modern criminological theory and with past empirical research."

But the legislature's other bill, A3693, may be even worse for adult businesses – and more clearly unconstitutional.

"The bill requires that nobody's allowed to be licensed unless you get a variance, and almost every variance procedure I've ever seen anyplace in the country gives [the governing body] unbridled discretion," Aaronson stated. "The essence of it is that no place – no new place will be allowed in existence; it can only can be zoned in a certain zoned area and cannot be there as a matter of right but has to be there by variance and there needs to be a procedure set up where the people from the city and the surrounding area can come in and complain about it."

The variance process would apply even if the municipality already has a specific zone designated for adult use.

"The bottom line of it is, there's no criteria set up," Aaronson explained. "So you give notice to the surrounding people – at the business's expense – and they come. But there's no criteria by which the variance board needs to live by. So therefore everybody comes in and says, 'We hate that place,' and because of the way the statute is written, it also says they can impose other conditions they feel are necessary, so the next thing you know is, 'We want x amount of lighting; we want x amount of parking spaces; we want this buffer; we want the sign to say this.' They can mandate enough conditions that nobody would ever want to open up."

And making the local business environment so toxic, through excessive regulation, that an adult business will not want to locate in a certain community is, legally, comparable to simply prohibiting such businesses from opening in the community outright – and the U.S. Supreme Court has ruled that that is illegal.

Fortunately, the NJACA has been on top of the legislative fight from the beginning, but the current fear is that since the bills passed so easily out of committee, that they will pass just as easily through the full assembly – and that's something NJACA executive director Jeff Levy doesn't want to happen.

"These bills will have very serious and harmful negative effects upon all adult nightclubs in N.J. and will place our entire industry in jeopardy," Levy wrote to his association's members. "The NJACA can not afford or allow bad bills to become bad laws and we must, as concerned business owners and operators, take action immediately, before it becomes too late! Once law, it will cost hundreds of thousands to millions of dollars to fight it out in the courts, with no guarantee of a positive result."

Levy is asking that all adult businesses in the state contribute to fight these bills, which he fears could force more than half of existing clubs and bookstores out of business. He's requesting that each nightclub contribute $1,000 per month to the fight, and would request similar contributions from adult book and video stores. Levy assures that the funds will be used only for legal defense, academic studies, a monthly newsletter, keeping the adult industry in NJ informed of all negative challenges, tracking and monitoring all bills and legislation that maybe harmful to adult businesses in New Jersey, and hiring lobbyists.

Contributions can be sent to: NJACA c/o Delilah's Den, 4630 State Route 35 North, South Amboy, NJ 08879, and the envelope should note, "Attn: Jeff Levy, Executive Director." And those who wish to receive more information about the NJACA, as well as notices of upcoming meetings, can email Levy at [email protected]