Schad v. Borough of Mount Ephraim

APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

No. 79-1640 Argued: February 25, 1981 --- Decided: June 1, 1981
JUSTICE WHITE delivered the opinion of the Court.

In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N.J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. [p63] Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated § 99-15B of Mount Ephraim's zoning ordinance, which described the permitted uses in a commercial zone, [n1] in which the store was located, as follows:

B. Principal permitted uses on the land and in buildings.

(1) Offices and banks; taverns; restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities; automobile sales; retail stores, such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys; repair shops for shoes, jewels, clothes and appliances; barbershops and beauty salons; cleaners and laundries; pet stores; and nurseries. Offices may, in addition, be permitted to a group of four (4) stores or more without additional parking, provided the offices do not exceed the equivalent of twenty percent (20%) of the gross floor area of the stores.

(2) Motels.

Mount Ephraim Code § 99-15B(1), (2) (1979). [n2] [p64] Section 99 of the Borough's code provided that "[a]ll uses not expressly permitted in this chapter are prohibited."

Appellants were found guilty in the Municipal Court, and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones. [n3] Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that "live nude dancing is protected by the First Amendment," but was of the view that "First Amendment guarantees are not involved," since the case "involves solely a zoning ordinance" under which "[l]ive entertainment is simply not a permitted use in any establishment" whether the entertainment is a nude dance or some other form of live presentation. App. to Juris. Statement 8a, 12a. Reliance was placed on the statement in Young v. American Mini Theatres, Inc., 427 U.S. 50, 62 (1976), that

[t]he mere fact that the commercial exploitation of material protected by the First Amendment is [p65] subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.

The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam opinion "essentially for the reasons" given by the County Court. App. to Juris.Statement 14a. The Supreme Court of New Jersey denied further review. Id. at 17a, 18a.

Appellants appealed to this Court. Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonobscene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution. [n4] We noted probable jurisdiction, 449 U.S. 897 (1980), and now set aside appellants' convictions.

I

As the Mount Ephraim Code has been construed by the New Jersey courts -- a construction that is binding upon us -- "live entertainment," including nude dancing, is "not a permitted use in any establishment" in the Borough of Mount Ephraim. App. to Juris.Statement 12a. By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); [p66] Schacht v. United States, 398 U.S. 58 (1970); Jenkins v. Georgia, 418 U.S. 153 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). See also California v. LaRue, 409 U.S. 109, 118 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62. Nor may an entertainment program be prohibited solely because it displays the nude human figure. "[N]udity alone" does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, at 161; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, at 211-212, 213. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad, supra; California v. LaRue, supra.

Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment. [n5] Because appellants' claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own.

Because overbroad laws, like vague ones, deter privileged activit[ies], our cases firmly establish appellant's standing to raise an overbreadth challenge.

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). [p67]

II

The First Amendment requires that there be sufficient justification for the exclusion of a broad category of protected expression as one of the permitted commercial uses in the Borough. The justification does not appear on the face of the ordinance, since the ordinance itself is ambiguous with respect to whether live entertainment is permitted: § 99-15B purports to specify only the "principal" permitted uses in commercial establishments, and its listing of permitted retail establishments is expressly nonexclusive; yet, § 99 declares that all uses not expressly permitted are forbidden. [n6] The state courts at least partially resolved the ambiguity by declaring live entertainment to be an impermissible commercial use. In doing so, the County Court, whose opinion was adopted by the Appellate Division of the Superior Court, sought to avoid or [p68] to meet the First Amendment issue only by declaring that the restriction on the use of appellants' property was contained in a zoning ordinance that excluded all live entertainment from the Borough, including live nude dancing.

The power of local governments to zone and control land use is undoubtedly broad, and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it "must be exercised within constitutional limits." Moore v. East Cleveland, 431 U.S. 494, 514 (1977) (STEVENS, J., concurring in judgment). Accordingly, it is subject to judicial review; and as is most often the case, the standard of review is determined by the nature of the right assertedly threatened or violated, rather than by the power being exercised or the specific limitation imposed. Thomas v. Collins, 323 U.S. 516, 529-530 (1945).

Where property interests are adversely affected by zoning, the courts generally have emphasized the breadth of municipal power to control land use, and have sustained the regulation if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). But an ordinance may fail even under that limited standard of review. Moore v. East Cleveland, supra, at 520 (STEVENS, J., concurring in judgment); Nectow v. Cambridge, 277 U.S. 183 (1928).

Beyond that, as is true of other ordinances, when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest. [n7] In Schneider v. State, 308 U.S. 147 (1939), for example, [p69] the Court recognized its obligation to assess the substantiality of the justification offered for a regulation that significantly impinged on freedom of speech:

Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. [p70] And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of [First Amendment] rights.

Id. at 161. [n8] Similarly, in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980), [n9] it was emphasized that the Court must not only assess the substantiality of the governmental interests asserted, but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment:

The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S. at 620; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978). "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone. . . ." NAACP v. Button, 371 U.S. 415, 438 (1963). [p71]

JUSTICE POWELL said much the same thing in addressing the validity of a zoning ordinance in Moore v. East Cleveland, 431 U.S. at 499: when the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment,

this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.

Because the ordinance challenged in this case significantly limits communicative activity within the Borough, we must scrutinize both the interests advanced by the Borough to justify this limitation on protected expression and the means chosen to further those interests.

As an initial matter, this case is not controlled by Young v. American Mini Theatres, Inc., the decision relied upon by the Camden County Court. Although the Court there stated that a zoning ordinance is not invalid merely because it regulates activity protected under the First Amendment, it emphasized that the challenged restriction on the location of adult movie theaters imposed a minimal burden on protected speech. 427 U.S. at 62. The restriction did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters -- much less all live entertainment or all nude dancing -- from its commercial districts city-wide. [n10] Moreover, it was emphasized in that [p72] case that the evidence presented to the Detroit Common Council indicated that the concentration of adult movie theaters in limited areas led to deterioration of surrounding neighborhoods, [n11] and it was concluded that the city had justified the incidental burden on First Amendment interests resulting from merely dispersing, but not excluding, adult theaters.

In this case, however, Mount Ephraim has not adequately justified its substantial restriction of protected activity. [n12] None of the justifications asserted in this Court was articulated by the state courts, and none of them withstands scrutiny. First, the Borough contends that permitting live entertainment would conflict with its plan to create a commercial area that caters only to the "immediate needs" of its residents and that would enable them to purchase at local stores the few items they occasionally forgot to buy outside the Borough. [n13] No evidence was introduced below to support this assertion, and it is difficult to reconcile this characterization of the Borough's commercial zones with the provisions of the ordinance. Section 99-15A expressly states that the purpose of creating commercial zones was to provide areas for "local and regional commercial operations." (Emphasis added.) The [p73] range of permitted uses goes far beyond providing for the "immediate needs" of the residents. Motels, hardware stores, lumber stores, banks, offices, and car showrooms are permitted in commercial zones. The list of permitted "retail store" is nonexclusive, and it includes such services as beauty salons, barbershops, cleaners, and restaurants. Virtually the only item or service that may not be sold in a commercial zone is entertainment, or at least live entertainment. [n14] The Borough's first justification is patently insufficient.

Second, Mount Ephraim contends that it may selectively exclude commercial live entertainment from the broad range of commercial uses permitted in the Borough for reasons normally associated with zoning in commercial districts, that is, to avoid the problems that may be associated with live entertainment, such as parking, trash, police protection, and medical facilities. The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems of this nature more significant than those associated with various permitted uses; nor does it appear that the Borough's zoning authority has arrived at a defensible conclusion that unusual problems are presented by live entertainment. Cf. Young v. American Mini Theatres, Inc., 427 U.S. at 54-55, and n. 6. [n15] We [p74] do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant. [n16] Even less apparent is what unique problems would be posed by exhibiting live nude dancing in connection with the sale of adult books and films, particularly since the bookstore is licensed to exhibit nude dancing on films. It may be that some forms of live entertainment would create problems that are not associated with the commercial uses presently permitted in Mount Ephraim. Yet this ordinance is not narrowly drawn to respond to what might be the distinctive problems arising from certain types of live entertainment, and it is not clear that a more selective approach would fail to address those unique problems if any there are. The Borough has not established that its interests could not be met by restrictions that are less intrusive on protected forms of expression.

The Borough also suggests that § 99-15B is a reasonable "time, place, and manner" restriction; yet it does not identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other [p75] commercial uses in the Borough. [n17] In Grayned v. City of Rockford, 408 U.S. 104 (1972), we stated:

The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that, in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest.

Id. at 116-117 (footnotes omitted). Thus, the initial question in determining the validity of the exclusion as a time, place, and manner restriction is whether live entertainment is "basically incompatible with the normal activity [in the commercial zones]." As discussed above, no evidence has been presented to establish that live entertainment is incompatible with the uses presently permitted by the Borough. Mount Ephraim asserts that it could have chosen to eliminate all commercial uses within its boundaries. Yet we must assess the exclusion of live entertainment in light of the commercial uses Mount Ephraim allows, not in light of what the Borough might have done. [n18]

To be reasonable, time, place, and manner restrictions not only must serve significant state interests, but also must [p76] leave open adequate alternative channels of communication. Grayned v. City of Rockford, supra, at 116, 118; Kovacs v. Cooper, 336 U.S. 77, 85-87 (1949); see also Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 535 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976). Here, the Borough totally excludes all live entertainment, including nonobscene nude dancing that is otherwise protected by the First Amendment. As we have observed, Young v. American Mini Theatres, Inc., supra, did not purport to approve the total exclusion from the city of theaters showing adult, but not obscene, materials. It was carefully noted in that case that the number of regulated establishments was not limited and that "[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." 427 U.S. at 71, n. 35.

The Borough nevertheless contends that live entertainment in general and nude dancing in particular are amply available in close-by areas outside the limits of the Borough. Its position suggests the argument that, if there were countywide zoning, it would be quite legal to allow live entertainment in only selected areas of the county and to exclude it from primarily residential communities, such as the Borough of Mount Ephraim. This may very well be true, but the Borough cannot avail itself of that argument in this case. There is no county-wide zoning in Camden County, and Mount Ephraim is free under state law to impose its own zoning restrictions, within constitutional limits. Furthermore, there is no evidence in this record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. The courts below made no such findings; and at least in their absence, the ordinance excluding live entertainment from the commercial zone cannot constitutionally be applied to appellants so as to criminalize the activities for which they have been fined. "[O]ne is not to have the exercise of his liberty of expression in appropriate [p77] places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. at 163.

Accordingly, the convictions of these appellants are infirm, and the judgment of the Appellate Division of the Superior Court of New Jersey is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

1. The zoning ordinance establishes three types of zones. The "R-1" residential district is zoned for single-family dwellings. The "R-2" residential district is zoned for single-family dwellings, townhouses, and garden apartments. The "C" district is zoned for commercial use, as specified in § 99-15 of the Mount Ephraim Code. See Mount Ephraim Code § 99-7 (1979).

2. Section 99-15A states the purpose of the commercial zone:

A. Purpose. The purpose of this district is to provide areas for local and regional commercial operations. The zone district pattern recognizes the strip commercial pattern which exists along Kings Highway and the Black Horse Pike. It is intended, however, to encourage such existing uses and any new uses or redevelopment to improve upon the zoning districts of greater depth by encouraging shopping center type development with buildings related to each other in design, landscaping and site planning and by requiring off-street parking, controlled ingress and egress, greater building setbacks, buffer areas along property lines adjacent to residential uses, and a concentration of commercial uses into fewer locations to eliminate the strip pattern.

3. The building inspector, who is responsible for enforcing the zoning ordinance, testified that three establishments located in commercial zones of the Borough offered live music. However, he stated that they were permitted to do so only because this use of the premises preceded the enactment of the zoning ordinance, and thus qualified as a "nonconforming" use under the ordinance. Munic. Ct. Tr. 21-25, 35-36, 559.

The Police Chief also testified. He stated that he knew of no live entertainment in the commercial zones other than that offered by appellants and by the three establishments mentioned by the building inspector. Id. at 67.

4. Appellants also contend that the zoning ordinance, as applied to them, violates due process and equal protection, since the Borough has acted arbitrarily and irrationally in prohibiting booths in which customers can view live nude dancing while permitting coin-operated movie booths. Since we sustain appellants' First Amendment challenge to the ordinance, we do not address these additional claims.

5. The Borough's counsel asserted at oral argument that the ordinance would not prohibit noncommercial live entertainment, such as singing Christmas carols at an office party. Tr. of Oral Arg. 33. Apparently a high school could perform a play if it did not charge admission. However, the ordinance prohibits the production of plays in commercial theaters. Id. at 34.

6. Service stations are not listed as principal permitted uses in § 99-15B. However, both § 99-15E ("Area and yard requirements") and § 99-15F ("Minimum off-street parking") specifically refer to service stations, and § 99-15J limits the construction or expansion of service stations in a designated area of the commercial district. Service stations would thus appear to be permitted uses even though not expressly listed in § 915B.

Various official views have been expressed as to what extent entertainment is excluded from the commercial zone. At the initial evidentiary hearing, the prosecutor suggested that the ordinance only banned "live entertainment" in commercial establishments. Munic. Ct. Tr. 49 (emphasis added). By contrast, the building inspector for the Borough stated that there was no basis for distinguishing between live entertainment and other entertainment under the ordinance. Id. at 20, 50. Before this Court, the Borough asserted in its brief that the ordinance "does not prohibit all entertainment, but only live entertainment," Brief for Appellee 21, yet counsel for the Borough stated during oral argument that the ordinance prohibits commercial establishments from offering any entertainment. Tr. of Oral Arg. 40. The County Court ruled that "live entertainment" is not a permitted use under § 99-15B, but it did not consider whether nonlive entertainment might be a permitted use. At oral argument, counsel for appellants referred to a movie theater in the Borough, Tr. of Oral Arg. 9, but counsel for the Borough explained that it is permitted only because it is a nonconforming use. Id. at 28, 340.

7. In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the Court upheld a zoning ordinance that restricted the use of land to "one-family" dwellings. The Court concluded that the municipality's definition of a "family" (no more than two unrelated persons) did not burden any fundamental right guaranteed by the Constitution. Id. at 7. Thus, it merely had to bear a rational relationship to permissible state objective. Id. at 8. JUSTICE MARSHALL dissented, asserting that the ordinance impinged on fundamental personal rights:

[Thus,] it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. . . . [T]he onus of demonstrating that no less intrusive means will adequately protect the compelling state interest, and that the challenged statute is sufficiently narrowly drawn, is upon the party seeking to justify the burden.

Id. at 18 (citation omitted).

Moore v. East Cleveland, 431 U.S. 494 (1977), like Belle Terre, involved an ordinance that limited the occupancy of each dwelling to a single family. Unlike the ordinance challenged in Belle Terre, however, this ordinance defined "family" in a manner that prevented certain relatives from living together. JUSTICE POWELL, joined by three other Justices, concluded that the ordinance impermissibly impinged upon protected liberty interests. 431 U.S. at 499. JUSTICE STEVENS concluded that the ordinance did not even survive the Euclid test. 431 U.S. at 520-521. The dissenting opinions did not contend that zoning ordinances must always be deferentially reviewed. Rather, the dissenting Justices who addressed the issue rejected the view that the ordinance impinged upon interests that required heightened protection under the Due Process Clause. Id. at 537 (STEWART, J., joined by REHNQUIST, J., dissenting), id. at 549 (WHITE, J., dissenting).

Even where a challenged regulation restricts freedom of expression only incidentally or only in a small number of cases, we have scrutinized the governmental interest furthered by the regulation and have stated that the regulation must be narrowly drawn to avoid unnecessary intrusion on freedom of expression. See United States v. O'Brien, 391 U.S. 367, 376-377 (1968).

8. Several municipalities argued in Schneider that their anti-leafletting ordinances were designed to prevent littering of the streets. The Court did not deny that the ordinances would further that purpose, but it concluded that the cities' interest in preventing littering was not sufficiently strong to justify the limitation on First Amendment rights. The Court pointed out that the cities were free to pursue other methods of preventing littering, such as punishing those who actually threw papers on the streets. 308 U.S. at 162.

9. Village of Schaumburg invalidated on First Amendment grounds a municipal ordinance prohibiting the solicitation of contributions by charitable organizations that did not use at least 75% of their receipts for "charitable purposes." Although recognizing that the Village had substantial interests "‘in protecting the public from fraud, crime, and undue annoyance,'" 444 U.S. at 636, we found these interests were

only peripherally promoted by the 75-percent requirement and could be sufficiently served by measures less destructive of First Amendment interests.

Ibid.

10. JUSTICE STEVENS relied on the District Court's finding that compliance with the challenged ordinances would only impose a slight burden on First Amendment rights, since there were "myriad locations" within the city where new adult movie theaters could be located in compliance with the ordinances. 427 U.S. at 71, n. 35.

Similarly, JUSTICE POWELL's concurring opinion stressed that the effect of the challenged ordinance on First Amendment interests was "incidental and minimal." Id. at 78. We did not suggest that a municipality could validly exclude theaters from its commercial zones if it had included other businesses presenting similar problems. Although he regarded the burden imposed by the ordinance as minimal, JUSTICE POWELL examined the city's justification for the restriction before he concluded that the ordinance was valid. Id. at 82, and n. 5. Emphasizing that the restriction was tailored to the particular problem identified by the city council, he acknowledged that

[t]he case would have present[ed] a different situation had Detroit brought within the ordinance types of theaters that had not been shown to contribute to the deterioration of surrounding areas.

Id. at 82.

11. Id. at 71, and n. 34 (opinion of STEVENS, J.); id. at 82, n. 5 (POWELL, J., concurring).

12. If the New Jersey courts had expressly interpreted this ordinance as banning all entertainment, we would reach the same result.

13. Mount Ephraim's counsel stated in this Court that these stores were available "[i]f you come home at night and you forgot to buy your bread, your milk, your gift." Tr. of Oral Arg. 40.

14. At present, this effect is somewhat lessened by the presence of at least three establishments that are permitted to offer live entertainment as a nonconforming use. See n. 3, supra. These uses apparently may continue indefinitely, since the Mount Ephraim Code does not require nonconforming uses to be terminated within a specified period of time. See Mount Ephraim Code § 99-24 (1979). The Borough's decision to permit live entertainment as a nonconforming use only undermines the Borough's contention that live entertainment poses inherent problems that justify its exclusion .

15. The Borough also speculates that it may have concluded that live nude dancing is undesirable. Brief for Appellee 20. It is noted that in California v. LaRue, 409 U.S. 109 (1972), this Court identified a number of problems that California sought to eliminate by prohibiting certain explicitly sexual entertainment in bars and in nightclubs licensed to serve liquor. This speculation lends no support to the challenged ordinance. First, § 99-15B excludes all live entertainment, not just live nude dancing. Even if Mount Ephraim might validly place restrictions on certain forms of live nude dancing under a narrowly drawn ordinance, this would not justify the exclusion of all live entertainment or, insofar as this record reveals, even the nude dancing involved in this case. Second, the regulation challenged in California v. LaRue was adopted only after the Department of Alcoholic Beverage Control had determined that significant problems were linked to the activity that was later regulated. Third, in California v. LaRue, the Court relied heavily on the State's power under the Twenty-first Amendment. Cf. Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) .

16. Mount Ephraim has responded to the parking problems presented by the uses that are permitted in commercial zones by requiring that each type of commercial establishment provide a specified amount of parking. See Mount Ephraim Code §§ 99-15F (1979).

17. Mount Ephraim argued in its brief that nonlive entertainment is an adequate substitute for live entertainment. Brief for Appellee 221. This contention was apparently abandoned at oral argument, since the Borough's counsel stated that the ordinance bans all commercial entertainment. At any rate, the argument is an inadequate response to the fact that live entertainment, which the ordinance bans, is protected by the First Amendment.

18. Thus, our decision today does not establish that every unit of local government entrusted with zoning responsibilities must provide a commercial zone in which live entertainment is permitted.
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