One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control
50 N.J. 329, 27 A.L.R. 3d 1242, 235 A.2d 12 (1967)
Rule of Law:
Disciplinary action against licensed establishments by alcoholic beverage control divisions cannot be based solely on the mere congregation of apparent homosexuals, unless there is specific evidence of overtly indecent conduct or public displays of sexual desires that manifestly offend currently acceptable standards of propriety.
Facts:
- One Eleven Wines & Liquors, Inc., Yal’s Bar, Inc., and Murphy’s Tavern, Inc. were licensed premises operating in New Jersey.
- The New Jersey Division of Alcoholic Beverage Control (ABC) had Rule 5, which prohibited a licensed business from being conducted 'in such manner as to become a nuisance' or allowing 'lewdness' or 'immoral activities'.
- Investigators observed patrons at One Eleven Wines & Liquors, Inc. conversing in lisping tones, using limp-wrist movements, sticking tongues out, laughing, giggling, being chummy, extending pinkies delicately, and generally exhibiting effeminate mannerisms.
- Investigators visited Yal's Bar on several occasions and testified about behavioral characteristics that led them to conclude patrons were apparent homosexuals, though they acknowledged patrons were 'normally dressed' and showed 'very good behavior'.
- Evidence against Murphy's Tavern, Inc. disclosed many individual acts that could have been the basis for specific charges of lewd or immoral conduct, but the Division's prosecuting attorney stated they were not alleging 'any immoral activity or lewdness itself', but rather that the licensee had 'permitted the licensed place of business to become a nuisance' by allowing 'these persons to come in and congregate'.
- The ABC Division's long-standing position was that merely permitting the congregation of apparent homosexuals, without more, was violative of Rule 5.
Procedural Posture:
- The Division of Alcoholic Beverage Control (ABC) disciplined One Eleven Wines & Liquors, Inc., Yal’s Bar, Inc., and Murphy’s Tavern, Inc.
- The ABC suspended the licenses of One Eleven Wines & Liquors, Inc. and Yal’s Bar, Inc.
- The ABC revoked the license of Murphy’s Tavern, Inc.
- One Eleven Wines & Liquors, Inc. (appellant) appealed the suspension of its license to the Appellate Division of the Superior Court of New Jersey.
- The Appellate Division sustained the suspension of One Eleven's license.
- The New Jersey Supreme Court granted certification on One Eleven's application.
- The New Jersey Supreme Court, on its own motion, also certified the appeals that had been taken to the Appellate Division by Yal’s Bar (appellant) and Murphy’s Tavern (appellant), which were awaiting argument there.
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Issue:
Is permitting the mere congregation of apparent homosexuals in a licensed establishment, without specific evidence of overtly offensive, lewd, or immoral conduct, a sufficient basis for disciplinary action under state alcoholic beverage control regulations prohibiting premises from becoming a 'nuisance' or allowing 'immoral activities'?
Opinions:
Majority - Jacobs, J.
No, permitting the mere congregation of apparent homosexuals in a licensed establishment, without specific evidence of overtly offensive, lewd, or immoral conduct, is not a sufficient basis for disciplinary action under state alcoholic beverage control regulations. The Court found that the Division of Alcoholic Beverage Control (ABC) had historically taken a severe position, equating the mere presence of apparent homosexuals with a nuisance or immorality, based on outdated societal intolerance and a perceived 'transitional need for sweeping restraint' in the 1930s. However, current understandings and concepts no longer support this flat prohibition. Drawing on expert testimony (Dr. Wardell B. Pomeroy of the Kinsey Institute) and case law from other jurisdictions (e.g., California's Stoumen v. Reilly and Vallerga v. Dept. of Alcoholic Beverage Con., New York's Kerma Restaurant Corp. v. State Liquor Authority), the Court reasoned that homosexuals are not criminals, and so long as their public behavior violates no legal proscriptions and conforms with acceptable standards of decency, they have the right to congregate in public and licensed establishments. The Court held that restrictions adopted in the exercise of police powers must be reasonable and not go beyond the public need. The ABC failed to demonstrate a current need for its flat prohibition and did not show that it could deal with issues through narrower regulations targeting actual indecent conduct rather than mere congregation. The Division itself conceded that 'apparent homosexuals' exhibiting effeminate behavioral characteristics, without more, would not constitute overt conduct offensive to current standards of morality and decency. Therefore, disciplinary actions must be based on specific charges of improper conduct, not general charges of mere congregation.
Concurring - Proctor, J.
Yes, while well-behaved homosexuals cannot be forbidden to patronize taverns, they may not engage in any conduct which would be offensive to public decency. Justice Proctor concurred with the majority's decision to reverse the disciplinary actions because the charges against the three taverns did not specify any particular offensive acts by the patrons. However, he emphasized that conduct observed in the record (such as 'men kissing each other on the lips') would indeed form a basis for disciplinary action if properly charged. He wanted to make it clear that a tavern should not provide an arena for such behavior, and that the majority opinion should not be interpreted as tolerating such conduct.
Analysis:
This case represents a significant shift in legal and societal views regarding homosexuals, moving away from broad prohibitions based on status or perceived 'nuisance' towards a focus on specific conduct. It reinforces the principle that governmental police power, even in a highly regulated area like liquor control, must be exercised reasonably and cannot infringe on basic rights without a compelling justification linked to actual harmful behavior. The decision effectively requires state agencies to base disciplinary actions on demonstrable misconduct rather than discriminatory assumptions about a protected group, paving the way for greater tolerance and a more precise application of public order regulations. This case has broader implications for anti-discrimination law by drawing a line between identity and conduct.
