New Jersey’s Sexually Oriented Business Law: What You Need to Know

New Jersey has some of the strictest laws in the country regulating sexually oriented businesses (SOBs). In particular, Section 2C:33-12.2 of the New Jersey Code of Criminal Justice makes it a crime to own, operate, or work at an SOB that is considered a “nuisance.” This law was passed in 2013 and has been controversial ever since. In this article, we’ll break down what the law says, how it has been applied, and the legal challenges it has faced.

What Does the Law Say?

Section 2C:33-12.2 defines a sexually oriented business as a “nuisance” if it meets any of the following criteria:

• It employs or uses any person under 18 years old.
• It employs or uses any person who has been convicted of various sex offenses against minors.
• It permits any person under 18 years old to enter the premises.
• It permits any person who has been convicted of various sex offenses against minors to enter the premises.
• It violates any law regarding obscenity, prostitution, or the sale/distribution of controlled substances.

If an SOB meets any of those conditions, it can be charged as a third-degree crime. The business can also be ordered to close for up to a year. Individuals who own, operate, or work at the business can face fines up to $15,000 and jail time up to 5 years. Subsequent violations are second-degree crimes with even stiffer penalties.

In addition, the law created a public nuisance cause of action. This means private citizens can sue SOBs for being a nuisance, even if no criminal charges have been filed. If successful, the citizen can collect damages, attorneys fees, and force the business to close for up to a year.

Controversial from the Start

Section 2C:33-12.2 has been controversial since it was first introduced. Opponents argued it violated the First Amendment by restricting free expression. Adult entertainment, they claimed, is protected speech under the Constitution. Shutting down businesses based on their expressive content is unlawful censorship.

Supporters of the law disputed this. They said SOBs have extensive secondary effects like increased crime, lowered property values, and harm to minors. Restricting these businesses is within the state’s police power to protect public health and welfare. The law only targets bad actors, not the content itself.

But critics argued the alleged secondary effects are exaggerated or non-existent. They claimed the law’s true intent is to force morally objectionable businesses out of certain communities. This amounts to an end-run around the First Amendment’s protections.

Court Challenges

Not surprisingly, Section 2C:33-12.2 has faced several legal challenges since taking effect. But so far, courts have upheld the law as constitutional.

One of the first cases was Doe v. Poritz in 2014. The owner of an adult bookstore was charged under the law after a minor entered the premises. He sued, arguing the public nuisance provision violated due process. The court disagreed. It found the law was not vague or overbroad, and the owner had fair notice his business could be considered a nuisance.

In 2015, in State v. Caliguiri, the owner of a nude dancing club was charged criminally under the statute. He claimed it infringed his free expression rights. Again the court sided with the state. It ruled the law permissibly targeted the negative secondary effects of SOBs, not their content. Preventing harm to minors and nearby communities is a substantial state interest.

Most recently in 2018, in M&M Stone Co. v. Township of Freehold, an adult bookstore sued the town after it passed an ordinance based on Section 2C:33-12.2. The store claimed the ordinance was an unconstitutional prior restraint on speech. But the court found the town had properly documented negative secondary effects that allowed regulation of SOBs.

What This Means for SOBs

While Section 2C:33-12.2 has survived legal challenges so far, the battles are likely to continue. Opponents argue the secondary effects justification is a smokescreen for suppressing unpopular speech. Expect more lawsuits alleging First Amendment violations, especially if the law is enforced aggressively.

In the meantime, SOBs in New Jersey must be extremely cautious. Something as simple as a minor entering the premises or an employee’s old conviction can trigger severe penalties. Close compliance with age restrictions and background checks is essential. SOBs should also consider legal challenges of their own if they believe the law is being misapplied. With smart precautions, SOBs can try to avoid being deemed a nuisance under the statute. But the risks remain substantial.

This strict law is part of a broader trend of targeting SOBs nationwide. But so far New Jersey’s approach is among the most aggressive. Section 2C:33-12.2 has clearly put SOBs in the state on high alert. How the courts ultimately deal with the law’s free speech implications may set an important precedent for other states looking to rein in the sex industry.