Evaluating Impact of Statutory Location Limits, NJ Supreme Court Rules Existence of Strip Clubs in Adjoining States Can Be Considered in Assessing Availability of Adequate Alternative Avenues of Communication

In Borough of Sayreville v. 35 Club, L.L.C., the owners of  the “XXXV Gentlemen’s Club,  an “all-nude gentlemen’s cabaret”  presented an as-applied challenge to  N.J.S.A. 2C:34-7(a), which prohibits the operation of a sexually-oriented business within 1,000 feet of a public park or residential zone.  The court held:

In evaluating the adequacy of alternative channels of communication when deciding an as-applied constitutional challenge to the State’s statute limiting the places where sexually-oriented businesses may operate, trial courts are not precluded from considering the existence of sites that are located outside of New Jersey but that are found within the relevant market area as defined by the parties’ experts. In the case, the approved analytical approach would allow consideration of the existence of comparable enterprises in Staten Island, New York.

Justifying this perspective, the majority wrote:

First, as a practical matter, it may be far 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, patrons of businesses like that of defendant’s often travel from and to states other than the ones in which they reside to access this sort of entertainment. Third, when this Court announced its rule for the evaluation of such ordinances in Saddle Brook, it intentionally adopted a regional approach to the relevant market. Fourth, refusing to permit any consideration of locations that are found in nearby states would result in unequal treatment among our municipalities themselves. Finally, the suggestion that our courts cannot consider sites beyond our borders in evaluating whether there are adequate alternate avenues of communication because the operators of these businesses have no voice in the government of municipalities in our neighboring states ignores the fact that they have no more voice in the government of other municipalities within our borders. Today the Court does no more than hold that as a part of the evaluation of the regional market, it is permissible to consider not only the “neighboring communities” that lie within our State’s borders, but to consider as relevant to the question those “neighboring communities” that are beyond those borders. The Court holds that the availability of such sites is an appropriate factor to consider as part of evaluating whether there are adequate alternative channels of communication within the relevant market area.

David Hudson of the First Amendment Center discusses the ruling’s implications.