Stores Selling Vulgar Clothing on Seaside Heights Boardwalk a Legal Conundrum, Attorney Says

Tasteless merchandise being sold on the Seaside Heights boardwalk is raising eyebrows, July 2022. (Photo: Daniel Nee)

Residents who asked the Seaside Heights borough council toward the end of the summer to review legal options for regulating the display of tee shirts and other clothing items with vulgar sayings and imagery printed on them returned last week to see what the research found – but they may well be disappointed.

Borough Attorney Jean Cipriani, one of the most experienced municipal attorneys in the state who has represented the borough for years, said the question of whether stores can display inappropriate articles of clothing – sometimes with explicit sexual content – within view of the boardwalk has been one she has been dealing with for years. Unless the state government widens the definition of existing statutes that allow for deeper regulation of retail businesses, there are major questions as to whether a local regulatory ordinance would be deemed constitutional, she said.

“There’s got to be a way we can control it,” resident Trisha DeVoe told council members. “I’m all about everything Seaside is doing to make it a family-friendly resort town, and all of that is contra-indicating the new image you want to have. When my kids were young and we just had a summer home here, I hated going up on the boardwalk because of all of that.”

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The clothing in question contains content that is “wildly explicit,” Cipriani said, but in New Jersey, retail businesses that merely sell clothing with vulgar messaging do not fall into the same category as those that can be prohibited from operating in certain locations, such as liquor stores or cannabis dispensaries.

Tasteless merchandise being sold on the Seaside Heights boardwalk is raising eyebrows, July 2022. (Photo: Daniel Nee)

Tasteless merchandise being sold on the Seaside Heights boardwalk is raising eyebrows, July 2022. (Photo: Daniel Nee)

The state does allow some leeway for the local regulation of what are known as “sexually oriented businesses,” but while the town could try to find a nexus between that statute and the local zoning code or mercantile license ordinance, there are still major constitutional questions over the ability to do so legally.

According to N.J.S.A. 2C:34-6, a “Sexually oriented business” is defined as:

(1) A commercial establishment which as one of its principal business purposes offers for sale, rental, or display any of the following: Books, magazines, periodicals or other printed material, or photographs, films, motion pictures, video cassettes, slides or other visual representations which depict or describe a “specified sexual activity” or “specified anatomical area”; or still or motion picture machines, projectors or other image-producing devices which show images to one person per machine at any one time, and where the images so displayed are characterized by the depiction of a “specified sexual activity” or “specified anatomical area”; or instruments, devices, or paraphernalia which are designed for use in connection with a “specified sexual activity”; or

(2) A commercial establishment which regularly features live performances characterized by the exposure of a “specified anatomical area” or by a “specified sexual activity,” or which regularly shows films, motion pictures, video cassettes, slides, or other photographic representations which depict or describe a “specified sexual activity” or “specified anatomical area.”

While businesses fitting this definition cannot be prohibited from operating town-wide, they can be restricted from certain zones, such as a recreational or tourist zone. But the sale of tee shirts and clothing articles with “naughty” sayings or acronyms are unlikely to fit the strict definitions of the state statute.

“Even though some of the tee shirts are wildly explicit, they don’t qualify under the statutory definition,” said Cipriani. “I’ve looked at this issue before over the years – it’s a constant problem. Everybody feels the same way, but it is legally a very difficult issue.”

“When friends come to visit, they want to go to the boardwalk and I’m embarrassed to take them up there,” said DeVoe, whose comments were echoed by fellow resident Lisa Franciosi, who previously asked borough officials to conduct a review of the current statutes and case law on the matter.

Some residents also questioned whether shops selling tobacco products and vape materials were allowed on the boardwalk. The answer was largely the same – there is no state authorization to ban businesses from a zone because they sell legal tobacco products.

“It is a retail business, so if something is zoned for retail, which the boardwalk is, you can’t pick and choose,” Cipriani explained. “For anything that is considered retail without statutory authorization saying, ‘you can treat this business differently,’ there is nothing you can do to let ‘these’ kinds of stores on the boardwalk but not ‘those’ kinds of stores.”

Tasteless merchandise being sold on the Seaside Heights boardwalk is raising eyebrows, July 2022. (Photo: Daniel Nee)

Tasteless merchandise being sold on the Seaside Heights boardwalk is raising eyebrows, July 2022. (Photo: Daniel Nee)

Some businesses are simply treated differently under the law.

“Liquor licenses and cannabis licenses are treated differently because there is a specific law authorizing towns to say, ‘you can treat this business differently than others,'” Cipriani explained.

Borough Administrator Christopher Vaz said he would continue to work with legal counsel to ascertain whether there is any room to incorporate some semblance of regulation into the borough’s mercantile licensing program, but in the past such efforts have fallen short of achieving legal muster, and even if they were to be implemented in some way or another, the overall problem extends beyond boardwalk shops.

“You have our businesses, but it’s not just our businesses,” said Vaz. “The kids show up with the shirts.”