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A judge has dismissed, on First Amendment grounds, the first indictment brought under a 1995 New Jersey law that criminalizes running a sexually oriented business next to a residential area. Superior Court Judge Wendel Daniels, in Toms River, N.J., ruled Jan. 17 that the state failed to sustain its burden of showing that other outlets for adult material are available nearby, as the New Jersey Supreme Court required in Saddle Brook v. A.B. Family Center, 156 N.J. 587 (1997). The justices made that showing the quid pro quo for upholding N.J.S.A. 2C:34-7, which makes it a fourth-degree crime to run an adult business within 1,000 feet of a residence, house of worship, school, hospital or similar use. The defendant in the case before Daniels, Shay Varone, plans to reopen his Pleasure Video Boutique in Brick Township, N.J., though he still faces three counts of violating a separate statute that criminalizes facilitating patrons’ on-site sexual activity by enclosed video booths. The Saddle Brook test considers zoning, demographics, transportation and regional marketing patterns. To meet it, Assistant Ocean County Prosecutor Louis Painter presented testimony from a county engineer and a municipal planner, identifying three potential sites for an adult shop in Brick Township and one in Lakewood. Varone’s lawyers, Vincent Verdiramo Jr. and Dennis Oury, answered that the proffered locations were unacceptable for various reasons — no road access, no sewers or proximity to a residential trailer park. The Lakewood site was adjacent to a private day-care center, a small airport and a minor-league baseball stadium. Oury, a Hackensack, N.J., solo practitioner, says the airport and stadium, though privately owned, meet the statutory definition of public recreation areas. “My position was public doesn’t mean publicly owned, but publicly accessible,” he says. The defense brought in a city planner as an expert witness on availability of alternate sites, but the planner never testified because Daniels granted the defense motion to dismiss when the state closed its case. The planner’s 100-page report examined land in a nine-mile radius around Varone’s store and found no suitable locations, says Verdiramo, of Jersey City, N.J.’s Verdiramo & Verdiramo. The Ocean County prosecutor’s office has not decided whether to appeal. Supervising Assistant Prosecutor Robert Gasser says, “It was a daunting challenge to satisfy all of those criteria and I think that was one of the great difficulties of our experience.” Verdiramo says the case was highly fact-sensitive, as such cases in New Jersey are likely to be. “New Jersey is an incredibly densely populated state and all of our commercial areas, by and large, abut residential districts,” he says. “The Legislature took a statute that was frankly intended for a different area of our country, without any analysis at all.”

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