## Facts

- Higbee Beach is a relatively isolated beach in Lower Township, Cape May County, New Jersey, associated with a state-owned wildlife area.
- For many years, Higbee Beach was known as a place where people engaged in nude sunbathing.
- After New Jersey acquired the beach, governmental authorities adopted rules aimed at wildlife protection and visitor conduct, and Lower Township maintained an ordinance prohibiting public nudity and indecent exposure in public places.
- On August 7, 1999, a Lower Township police officer observed Arlene E. Vogt sunbathing topless on Higbee Beach, wearing only a bathing-suit bottom.
- The officer approached Vogt, advised her she was in violation of the township’s public-nudity ordinance, and issued a summons for “nudity in a public place.”
- The governing municipal provision, Lower Township Ordinance 3-2.6 (“Indecent or Nude Exposure”), generally barred appearing on public streets, boardwalks, beaches, waterways, or other public places “in a state of nudity” or making an “indecent or unnecessary exposure” of one’s person.
- Vogt did not testify at trial. Her husband testified, among other things, that Higbee Beach had long been used for nude sunbathing and that nudity there had not caused alarm in his experience.
- Vogt was convicted in municipal court and fined.
- Vogt appealed to the Superior Court, Law Division, which conducted a trial de novo on the municipal record and affirmed the conviction.
- Vogt then appealed to the Superior Court of New Jersey, Appellate Division, arguing that the ordinance and her conviction were unconstitutional and improper given the beach’s history and public-access principles.

## Issues

1. Whether Lower Township’s public-nudity ordinance, as applied to a woman sunbathing topless on a public beach, violated equal-protection guarantees by treating female and male bare chests differently.
2. Whether the ordinance was unconstitutionally vague or overbroad because terms such as “nudity,” “indecent,” “lewd,” or “unnecessary exposure” failed to give fair notice or invited arbitrary enforcement.
3. Whether the ordinance was invalid because it conflicted with state law governing the beach or because the public-trust doctrine preserved a right to engage in nude or topless sunbathing at Higbee Beach based on historical use.

## Decision

- The Appellate Division affirmed the Law Division judgment and Vogt’s municipal-court conviction.
- The court held that applying the ordinance to prohibit a woman from appearing topless in public did not violate equal protection under the New Jersey Constitution.
- The court rejected Vogt’s vagueness and overbreadth challenges, concluding the ordinance gave adequate notice that topless sunbathing by a woman on a public beach was prohibited and did not confer standardless enforcement authority.
- The court concluded the ordinance did not improperly conflict with state authority over the beach and that the public-trust doctrine did not bar reasonable restrictions on conduct, even where a beach historically had been used for nude sunbathing.

## Legal Principles

- A municipality may regulate public nudity in public places, such as beaches, through ordinances enacted under its police powers, so long as the ordinance is consistent with constitutional limits.
- Equal-protection review permits some sex-based distinctions if the government shows a sufficient justification tied to legitimate governmental interests in regulating public nudity and maintaining public order and sensibilities.
- A law is not void for vagueness if persons of ordinary intelligence can understand what conduct is prohibited and if the text, as construed, supplies workable standards that constrain arbitrary enforcement.
- The public-trust doctrine secures public access and use of tidal or shore areas for public purposes, but it does not freeze historic patterns of use against later, reasonable regulation of conduct.
- Local ordinances may operate alongside state statutes and regulations unless the Legislature has preempted the field or the local enactment directly conflicts with state law.

## Conclusion

State v. Vogt upheld a Lower Township ordinance barring public nudity as applied to a woman sunbathing topless at Higbee Beach, affirming her conviction and rejecting claims that the ordinance violated equal protection, was unconstitutionally vague, or was invalid due to the beach’s history and public-trust-based access rights.


State v. Vogt, 775 A.2d 551 (2001)