(CN) - New Jersey transportation authorities are not liable for a rest stop employee's decision to remove strip club brochures from Garden State Parkway service plazas, a federal judge ruled.
P.R.B.A. Corp. dba Bare Exposure, which operates a gentleman's club in Atlantic City, N.J., sued the South Jersey Transportation Authority, New Jersey Turnpike Authority, and private service plaza operator HMS Host Toll Roads on Dec. 28, 2012.
The club says the defendants rejected its brochures, which depict a woman's face and the text "Bare Exposure ... Atlantic City's Only All Nude Entertainment."
After Host employee Kevin Diamond found the Bare Exposure brochure in one of the display racks in a Host-leased service plaza in 2012, he sent it to general manager Greg Dion.
Dion, in turn, chose to order advertising agency CTM Media Group - Host's contractual partner since 2003 - to remove all Bare Exposure brochures from the service plazas.
"I felt other patrons would find them offensive," Dion testified about the brochures.
While Dion insisted he did not consider Host's financial interests, he did admit that something that sparks complaints among patrons could adversely affect the company's profits.
Though Bare Exposure admitted the state agencies never instructed Host to remove the brochures, the club argues that the authorities have ordered the placement of political leaders' photos and a government information booth in service plazas.
Bare Exposure's amended complaint asserted a First Amendment violation and facial challenge to the code provisions; 14th Amendment due process and equal protection violations; and speech, association, due process, and equal protection violations of the state Constitution.
The club moved to enjoin the defendants from removing the brochures, and the defendants moved for summary judgment.
U.S. District Judge Renée Marie Bumb denied both motions in July 2014, but ordered further discovery, finding that Bare Exposure cannot challenge the only code provision still in effect, which prohibits the unauthorized distribution of pamphlets on state highways.
The defendants later renewed their motion for summary judgment, and the club opposed.
Judge Bumb granted the defendants' motion last week, finding that "there is no evidence whatsoever that the authorities were at all involved in the decision to remove the brochures, the very challenged conduct at issue, which directly undermines the possibility of state action.
"The undisputed facts make clear that Mr. Dion's decision to have the brochures removed was his and his alone; he did not consult with or receive any direction from the authorities," the judge continued. "Moreover, he did not review or consider any provisions of the New Jersey Administrative Code prior to making his decision, but instead, he believed he was exercising Host's authority under the CTM agreement."
Bumb rejected the claim that political pamphlets in the plazas support a state action.
"Plaintiff has presented no evidence beyond mere argument that such communications were 'done in such a manner that a reasonable patron would tend to assume that all the messages being presented were those of the respective authorities,'" the judge wrote. "Such conclusory assertions are insufficient to survive summary judgment."
The court also tossed aside the claim that Dion was financially motivated.
"Plaintiff asks this court to draw an inference from Dion's testimony that it is 'possible' that people who complain are less likely to deal with a merchant," Bumb wrote. "Even if this court were to draw such an inference, there remains no evidence to demonstrate that the authorities exercise the type of control over Host needed to find state action."
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