In New Jersey, it is considered a fourth-degree crime to operate an adult entertainment business—or any business that is sexual in nature—within 1,000 feet of a residential area. Strip clubs and other similar businesses have to be mindful of these zoning requirements when they are establishing themselves in a new location.
But the key to violating this law is knowing about it, according to a recent ruling. Last month, a New Jersey appeals court found that the offense is not a strict liability offense, but rather requires the business owner to have knowledge of the unlawful proximity laws.
State v. Eldakroury
Ibrahim Eldakroury was charged with criminal liability for operating his nude juice bar, Hott22, too close to residential areas on Route 22 in Union Township. Hott22 is located within the triangle between the Garden State Parkway, Vauxhall Road and Route 22, and measurements of the surrounding area put the building within 1,000 feet of some neighborhoods.
At trial, the Union County Prosecutor’s Office instructed the grand jury that the state had the responsibility to prove that Hott22 was in violation of the 1,000 feet requirement but did not need to prove that Eldakroury knew about the violation or the law that governs adult business locations.
Upon review in June 2013, Judge Robert Mega of the Union County Superior Court found this instruction to be “blatantly wrong,” and threw out the original indictment. He rejected the comparison between Hott22’s zoning requirements and the school zone drug laws.
The 1,000 feet law for selling narcotics near a school zone has been interpreted as a strict liability crime, so that drug dealers and sellers do not have to be aware of a school zone to be charged with a crime. Mega stated that the 1,000 feet law for adult businesses had no such liability language. He applied the standard mens rea requirement for knowledge of criminal activity.
The theory of mens rea, which means “guilty mind,” is linked to the intent of a criminal act. In most cases, mens rea is critical to proving that a guilty person knew he or she was committing a crime at the time. Most crimes are defined by statutes that indicate the mens rea requirement for a guilty charge. If a defendant has no idea he or she has committed a crime, the jury must consider the lack of criminal intent in their decision.
In State v. Eldakroury, the appellate judges ruled that Eldakroury’s criminal charges could not stand as per the original trial. In order to convict Eldakroury of the fourth-degree crime, the state has the responsibility of proving he knew Hott22’s location was within 1,000 feet of a residential area and thus in violation of the proximity laws.
This ruling will have a direct impact on two criminal cases involving other Hott22 businessmen—the current owner, Kevin Hickey, and the previous owner Daniel Russo. Currently, both are appealing criminal indictments for similar charges. Hott22 has remained open during the litigation by converting from a strip juice bar to a go-go juice bar where the employees wear bikinis.
At Helmer, Conley, and Kasselman, PA, a New Jersey law firm, our attorneys represent persons charged with criminal activity. To discuss your case, contact an HCK lawyer today.