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Zoning Bulletin November 10, 20101 Volume 41 No. 21 <br />First Amendment/Sexually Oriented Business — <br />Town Says Gentlemen's Club Violates State <br />Statute Prohibiting Sexually Oriented Businesses <br />in Certain Locations <br />Club says statute violates First Amendment as applied to club <br />Citation: Borough of Sayreville v. 35 Club, L.L.C., 416 N.J. Super. <br />315, 3 A.3d 1268 (App. Div. 2010) <br />NEW JERSEY (09/17/10) —This case addressed whether a borough, <br />in arguing that restrictions against location of a sexually oriented busi- <br />ness, as applied to a particular business, were constitutionally permis- <br />sible, met its burden of proving the adequacy of available alternative <br />avenues of communications within the relevant market area. <br />The Background/Pacts: In November 2007, 35 Club L.L.C. ( "Club <br />35 ") began operating at a location (the "Property") in the Borough, a <br />"gentlemen's club" featuring live nude erotic dancing. Club 35 was a <br />"sexually oriented business" as defined by New Jersey Statute Anno- <br />tated ( "N.J.S.A. ") § 2C:34- 6(a)(2). Club 35 was located within 1,000 <br />feet of a public park and/or a residential zone. <br />The Borough brought a legal action against Club 35. The Borough <br />alleged that the nature and location of Club 35's activities violated <br />N.J.S.A. § 2C:34 -7(a). Section 2C:34 -7(a) prohibited operation of a <br />sexually oriented business within 1,000 feet of a public park and/or a <br />residential zone. <br />Club 35 argued that § 2C:34 -7(a) as applied to Club 35 violated the <br />First Amendment to the United States Constitution. <br />The trial court found in favor of the Borough It permanently en- <br />joined Club 35 from operating its business at the Property. <br />Club 3S appealed. <br />DECISION: Reversed; matter remanded. <br />The Superior Court of New Jersey, Appellate Division, held <br />§ 2C:34 -7(a) violated the First Amendment as applied to Club 35. Ac- <br />cordingly, Club 35 could continue to operate its sexually oriented busi- <br />ness at the Property. <br />In reaching this conclusion, the court explained that although Club <br />35's location, on its face, violated § 2C:34 -7(a), the Borough could only <br />apply this restriction and prohibit Club 35's operation at the Property if <br />it could show that such restrictions did not violate the First Amendment <br />as applied to Club 35. In other words, because Club 35's business ac- <br />tivities constituted a constitutionally protected form of expression, the <br />m 2010 Thomson Reuters 9 <br />33 <br />