Borough of Belmar v. Buckley

In Borough of Belmar v. Buckley, 187 N.J. Super. 107, 453 A.2d 910 (App.Div.1982) the proscriptive language of the ordinance in question was identical to that in this case. The defendant was convicted on evidence that she was sunbathing on a public beach while wearing only the bottom of her bikini. On appeal to the Law Division, the court acquitted her on the ground that enforcement of the ordinance was preempted by the State lewdness statute. The Court reversed on the preemptive ground and remanded for a trial de novo on the merits. Id. at 112-13, 453 A.2d 910. Although the trial court had not reached the defendant's vagueness argument, the Court chose to dispose of it: We are satisfied that the ordinance in this respect met constitutional muster since it gave a person of ordinary intelligence fair notice of the nature of the prohibited conduct. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); State v. Monteleone, 36 N.J. 93, 99, 175 A.2d 207 (1961). The meaning of portions of the ordinance may be debatable. Nevertheless, we have no doubt that the proscription against "indecent or unnecessary exposure" of the person would unmistakably apprize persons of ordinary intelligence that topless sunbathing on a public beach in the summertime by a female adult lying on her back is prohibited. The Court recognized that that might not be so in other societies having different mores and customs, but the import and applicability of the prohibition to the conduct here in this societal context is beyond reasonable debate. Ibid.