Appendix — Hamilton Amusement Center v. Verniero
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Supreme Court, U.S.
VY FILED
981089 3sn5 19%
No. v!
In The
Supreme Court of the Anited States
October Term, 1998
HAMILTON AMUSEMENT CENTER t/a VIDEO EXPRESS,
L.O.J., INC. (a THE EMPORIUM,
PINCO, INC. ta CAMELOT BOOK STORE, and
CRESCENDO BOOKS, INC. tfa CARNIVAL BOOKS,
Petitioners,
VS.
PETER VERNIERO, Attorney General for the State of New Jersey
and THE STATE OF NEW JERSEY,
es Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF NEW JERSEY
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
LIPSITZ, GREEN, FAHRINGER, ROLL,
SALISBURY & CAMBRIA, LLP
Paul J. Cambria, Jr., Esq.
Counsel of Record
Attorneys for Petitioners
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3857
Of Counsel: (716) 849-1333
Barry Nelson Covert, Esq.
William M. Feigenbaum, Esq.
11 Centre Park (B-1474) 107 Delaware Avenue — Suite 81
Rochester, New York 14614 Buffalo, New York 14202
(716) 232-6920 THE DAILY RECORD (716) 847-2984
i
TABLE OF CONTENTS
ORDER of Supreme Court of New
Jersey denying motion for
reconsideration by plaintiffs-
movants in Hamilton Amusement
Center, etc., et al. v. Verniero,
Seen CE OPO og vce eu weee ues
OPINION of Supreme Court of New
Jersey, affirming decision of
Superior Court of New Jersey,
Appellate Division, decided
Re i eve hae
OPINION of Superior Court of New
Jersey, Appellate Division, reversing
decision of Superior Court of New Jersey,
Law Division - Mercer County, and
vacating permanent injunction, decided
PURE I ne i ee is Se a es
.FINAL JUDGMENT of Superior Court of
New Jersey, Law Division, Mercer County,
declaring New Jersey statutes 2C:34-2.3c
unconstitutional and permanently
enjoining enforcement thereof, granted
SN Se a reo ek be
AMENDED OPINION of Superior Court of
New Jersey, Law Division - Mercer County,
declaring New Jersey statutes 2C:34-7c
unconstitutional and enjoining
enforcement thereof, decided
we Owe
Cent 27. 1998 6% ak oa eS ee A-83
COMPLAINT for declaratory and injunctive
relief, certified September 13, 1995 .......... A-103
A-l
SUPREME COURT OF NEW JERSEY
M-128 September Term 1998
43,790
HAMILTON AMUSEMENT CENTER,
etc., et al.,
Plaintiffs- Movants, ORDER
FILED
Vv. Oct 7 1998
s/Stephen W. Townsend
PETER VERNIERO, etc., et al.,
Defendants-Respondents.
This matter having been duly presented
to the Court, it is ORDERED that the motion for
reconsideration is denied.
WITNESS, the Honorable Deborah T.
Poritz, Chief Justice, at Trenton, this 6th day of October,
1998.
I hereby certify that the foregoing
is a true copy of the orignal on
file in my office.
s/Stephen W. Townsend
Clerk of the Supreme Court
of New Jersey
:
snr
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SUPREME COURT OF NEW JERSEY
A-64 September Term 1997
HAMILTON AMUSEMENT CENTER, t/a
VIDEO EXPRESS, L.O.J., INC., t/a
THE EMPORIUM, PYNCO, INC., t/a
CAMELOT BOOK STORE and CRESCENDO
BOOKS, INC., t/a CARNIVAL BOOKS,
Plaintiffs-Appellants,
Vv.
PETER VERNIERO, ATTORNEY GENERAL for the
STATE OF NEW JERSEY and the STATE OF NEW
JERSEY,
Defendants-Respondents.
Argued January 22, 1998 -- Decided July 21, 1998
On certification to the Superior Court, Appellate Division,
whose opinion is reported at 298 N.J. Super. 230 (1997).
Barry Nelson Covert, a member of the New York bar,
argued the cause for appellants (Steven S. Polinsky,
attorney; Mr. Polinsky and Paul J. Cambria, Jr., a member
of the New York bar, on the briefs).
Larry R. Etzweiler, Senior Deputy Attorney General,
argued the cause for respondents (Peter Verniero, Attorney
General of New Jersey, attorney; Mary C. Jacobson,
Assistant Attorney General, of counsel).
The opinion of the Court was delivered by
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COLEMAN, J.
This appeal challenges the constitutionality of
N.J.S.A. 2C:34-7c that restricts the size, number, and
content of signs that sexually oriented businesses may
display. The case calls for the sensitive balancing of the
interests of sexually oriented businesses in free speech with
the State's interest in minimizing the adverse secondary
effects caused by those businesses. The Appellate Division
found that the statute does not violate federal or state
constitutional guarantees to freedom of speech and that the
Statute is not void for vagueness. 298 N.J. Super. 230
(1997). We granted certification, 150 N.J. 24 (1997), and
now affirm.
For some time prior to August 1995, plaintiffs
Hamilton Amusement Center, Inc., t/a Video Express,
L.O.J., Inc., t/a The Emporium, Pynco Inc., t/a Camelot
Book Store, and Crescendo Book, Inc., t/a Carnival Books
(collectively referred to as "Hamilton" or "plaintiffs")
owned or operated sexually oriented businesses selling a
variety of magazines, books and videotapes,
eh ill
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including adult materials. Plaintiffs used large signs to
advertise the types of products sold, operating hours, and
the locations of entrances. On August 16, 1995, Governor
~ Whitman signed Assembly Bill No. 252 (1994), L. 1995,
c. 230, codified at N.J.S.A. 2C:34-6 and N.J.S.A.
2C:34-7 that directly affects those signs. N.J.S.A. 2C:34-6
defines the key words and phrases used in the legislation,
and N.J.S.A. 2C:34-7 contains the restrictions on signage
and the establishment of perimeter buffer requirements that
triggered this litigation.
On September 3, 1995, plaintiffs instituted the present
litigation challenging the constitutionality of the signage
restrictions in N.J.S.A. 2C:34-7c. Subsection c provides:
"No sexually oriented business shall display more than two
exterior signs, consisting of one identification sign and one
sign giving notice that the premises are off limits to minors.
The identification sign shall be no more than 40 square feet
in size." N.J.S.A. 2C:34-7c.
Plaintiffs alleged in their complaint that those
restrictions violate the First Amendment to the United
States Constitution and Article I, Paragraph 6 of the New
Jersey Constitution. Plaintiffs also contended that the
provision is unconstitutionally vague because it fails to
define "identification sign." Finally, they alleged that
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N.J.S.A. 2C:34-7c violates their Fourteenth Amendment
rights to equal protection because the statute targets only
sexually oriented businesses. Plaintiffs sought declaratory
and injunctive relief to prevent the State from enforcing
N.J.S.A. 2C:34-7c.
The trial court determined that N.J.S.A. 2C:34-7c was
a content-based restriction on speech and applied strict
scrutiny. The court found the provision unconstitutional
under Article I, Paragraph 6 of the New Jersey Constitution
because the State failed to articulate a factual basis to
establish the legitimacy of its asserted compelling state
interests -- traffic safety and the protection of minors.
Alternatively, the trial court found that the statute failed to
survive the less onerous time, place, and manner analysis
because it was not narrowly tailored to protect against the
secondary effects of sexually oriented businesses. The trial
court entered a permanent injunction on December 19,
1995.
The Appellate Division reversed, c cluding that
N.J.S.A. 2C:34-7c targets only commercial speech and
therefore is not subject to strict scrutiny. Hamilton, supra,
298 N.J. Super. at 238. The Appellate Division reasoned
that the protection of minors and the regulation of traffic
safety are both substantial governmental interests, id. at
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239-40, and that N.J.S.A. 2C:34-7c is not substantially
broader than necessary because it allows two signs, does
not proscribe other modes of advertisement, does not
limit the material that may be displayed within the store,
and does not place any significant limitation an what may
be advertised on the two signs. Id. at 241.
The Appellate Division construed the sign
requirements to permit affixing the street numbers of the
property as required by federal postal regulations and to
permit the posting of temporary political signs. Id. at 241
n.6. The Appellate Division also interpreted "identification
sign" to include: the name of the establishment; its street
number; its telephone number; its operating hours; and the
general nature of the establishment. Id. at 242.
I]
First, we address plaintiffs' contention that N.J.S.A.
2C:34-7c violates state and federal constitutional guarantees
of free speech. The First Amendment to the United States
Constitution provides that "Congress shall make no law . .
. abridging the freedom of speech. . . " U.S. Const.
amend. I. The First Amendment restriction on
governmental interference with free speech was made
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applicable to the states by the Fourteenth
Amendment to the United States Constitution. U.S. Const.
amend. XIV, §1; 44 Liquormart, Inc. vy. Rhode Island, 517
U.S. 484, 516, 116 S. Ct. 1495, 1515, 134 L. Ed. 2d 711,
736 (1996); Cantwell v. Connecticut, 310 U.S. 296, 303,
60 S. Ct. 900, 903, 84 L. Ed. 1213, 1218 (1939).
Article I, Paragraph 6 of the New Jersey Constitution
provides: "Every person may freely speak, write and
publish his sentiments on all subjects, being responsible for
the abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press." N.J. Const.
art. I, 16. Because we ordinarily interpret our State
Constitution's free speech clause to be no more restrictive
than the federal free speech clause, Shelton College v. State
Bd. of Educ., 48 N.J. 501, 518 (1967), "[wle rely on
federal constitutional principles in interpreting the free
speech clause of the New Jersey Constitution." Karins v.
City of Atlantic City, 152 N.J. 532, 547 (1998); see Bell v.
Township of Stafford, 110 N.J. 384, 393 (1988) (stating
that constitutional approach taken by United States Supreme
Court when examining commercial speech conforms to our
own). Two exceptions to the general rule, which are not
involved here, are political expressions at
privately-owned-and-operated shopping malls, New Jersey
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Coalition v. J.M.B., 138 N.J. 326 (1994), and defamation,
Sisler v. Gannett Co., 104 N.J. 256, 271 (1986).
iif
Our decision whether N.J.S.A. 2C:34-7c regulates only
commercial speech will in turn determine the appropriate
level of scrutiny to be applied. Plaintiffs argue that both
commercial and political speech are impacted by the
statute. They contend that even under the Appellate
Division's construction of the statute to allow the posting of
temporary political signs, they are prohibited from
conveying political messages on the identification sign,
from posting non-temporary political signs, and from
posting signs related to religion or “everyday problems.”
Plaintiffs also contend that because the statute distinguishes
between sexually oriented businesses and other businesses,
strict scrutiny is appropriate. We find those arguments to be
unpersuasive.
We begin our analysis by defining commercial speech.
Commercial speech is "expression related solely to the
economic interests of the speaker and its audience." Central
Hudson Gas Elec. Corp. v. Public Sery. Comm'n, 447
U.S. 557, 561, 100 S. Ct. 2343, 2349, 65 L. Ed. 2d 341,
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348 (1980). It is "'speech proposing a commercial
transaction. '" Id. at 562, 100 S. Ct. at 2349, 65 L. Ed. 2d
at 348 (quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S.
477, 455-56, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978));
see also Bolger v. Youngs Drug Prods. Corp., 463 U.S.
60, 66-67, 103 S. Ct. 2875, 2880-81, 77 L. Ed. 2d 469,
477-78 (1983) (holding that combination of following
characteristics of communication "provides strong support"
for conclusion that communication is "properly
characterized as commercial speech": advertisement,
mention of specific producti, and economic motivation).
N.J.S.A. 2C:34-7c restricts, rather than prohibits
altogether, the signs that sexually oriented businesses may
display. We find nothing to suggest that the statute restricts
more than commercial speech, or that the Legislature
contemplated that its application would extend beyond the
commercial context. Although outdoor signs are often used
to convey political, social, and commercial ideas, plaintiffs
have made no showing of actual noncommercial use.
Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
501, 101 S. Ct. 2882, 2889, 69 L. Ed. 2d 800, 811 (1981).
On the contrary, the record reveals the messages conveyed
on plaintiffs' signs that predated the litigation are limited to
business identification, the types of products sold, business
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hours, location of the video rental sections of the
businesses, location of entrances, and parking information.
Although plaintiffs could conceivably use their signs to
convey noncommercial messages, they have not done so.
We therefore decline to discuss political speech in a
hypothetical case that is not before us. Furthermore,
nothing in the legislative history suggests that the
Legislature intended that the statute restrict political speech.
We hold, therefore, that the statute applies only to
commercial speech.
Our conclusion that N.J.S.A. 2C:34-7c has as its
purpose the regulation of commercial speech does not mean
that no constitutional protection is afforded to plaintiffs. On
the contrary, the First Amendment protects commercial
speech when the threshold requirements are met: that the
speech is not misleading and relates to lawful activity.
Central Hudson, supra, 447 U.S. at 563-64, 100 S. Ct. at
2350, 65 L. Ed. 2d at 349; see Schad v. Borough of Mt.
Ephraim, 452 U.S. 61, 65-66, 101 S. Ct. 2176, 2180-81,
68 L. Ed. 2d 671, 678-79 (1981) (recognizing First
Amendment protection for sexually explicit speech that is
A-11
not “obscene"); In re Anis, 126 N.J. 448, 456 (1992). It is
a limited measure of protection, however, because the First
Amendment "accords less protection to commercial speech
than to other constitutionally-guaranteed expression." Barry
v. Arrow Pontiac, Inc., 100 N.J. 57, 72 (1985); Town
Tobacconist v. Kimmelman, 94 N.J. 85, 125 (1983). The
limited measure of protection afforded commercial speech
is "’commensurate with its subordinate position in the scale
of First Amendment values.'" Metromedia, supra, 453
U.S. at 506, 101 S. Ct. at 2892, 69 L. Ed. 2d at 814
(quoting Ohralik, supra, 436 U.S. at 456, 98 S. Ct. at
1912, 49 L. Ed. 2d at 444); Central Hudson, supra, 447
U.S. at 562-63, 100 S. Ct. at 2349-50, 65 L. Ed. 2d at
348-49.
Central Hudson articulated a four-part test for
determining when regulating commercial speech does not
violate the First Amendment:
[1 I]t at least must concern lawful activity and not
be misleading. [2] Next, we ask whether the
asserted governmental interest is substantial. If
both inquiries yield positive answers, we must
determine [3] whether the regulation directly
advances the governmental interest asserted, and
[4] whether it is no more extensive than is
necessary to serve that interest.
[Central Hudson, supra, 447 U.S. at 566,
100 S. Ct. at 2350, 66 L. Ed. 2d at 351.
RET ee ne re er cena ee
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Subsequently, in 44 Liquormart, the Supreme Court
held that Rhode Island's complete ban on liquor price
advertising violated the First Amendment. 44 Liquormart,
supra, 517 U.S. at 516, 116 S. Ct. at 1515, 134 L. Ed. 2d
at 736. Similarly, Central Hudson involved a total ban of
forms of commercial advertising found to violate the First
Amendment because the government failed to demonstrate
that a more limited speech regulation would not have
adequately served the governmental interest.
Although the present case does not involve a total
ban on commercial expression, the governmental regulation
must be examined under both the Central Hudson standard
and the time, place, and manner test articulated in Clark v.
Community for Creative Non-Violence, 468 U.S. 288,
293, 104 §. Ct. 3065, 3069, 82 L. Ed. 2d 221, 227 (1984).
The time, place, and manner restrictions on protected
speech are valid provided they "are justified without
reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels
for communication of the information." Ibid. Because the
Central Hudson and Clark standards are closely intertwined
in this case, we will conduct the two analyses
simultaneously. City of Renton v. Playtime Theatres, Inc.,
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475 U.S. 41, 46, 54-55, 106 S. Ct. 925, 928, 932, 89 L.
Ed. 2d 29, 37, 42 (1986).
In addition to concluding that N.J.S.A. 2C:34-7c
targets only commerical speech, we are also persuaded that
the statute is content-neutral. A statute or ordinance is
considered to be content-neutral when the legislature's
predominant concern is with adverse secondary effects,
such as those caused by sexually oriented businesses, and
not with the content of the speech being restricted. Ward v.
Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct.
2746, 2754, 105 L. Ed. 2d 661, 675 (1989). An incidental
effect on some speech does not change the content-neutral
characterization. Ibid.
Having concluded that N.J.S.A. 2C:34-7c targets only
commercial speech and that such speech is provided a
limited measure of protection under the First Amendment,
we are required to engage in an intermediate scrutiny of the
restrictions imposed by N.J.S.A. 2C:34-7c. Florida Bar v.
Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371,
2375-76, 132 L. Ed. 2d 541, 549 (1995). Moreover, courts
have generally analyzed statutes and ordinances restricting
sexually oriented businesses under an intermediate level of
scrutiny because of the unique secondary effects associated
with those businesses. Young v. American Mini Theatres,
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Inc., 427 U.S. 50, 70, 96 S. Ct. 2440, 2452, 49 L. Ed. 2d
310, 326 (1976) .
The intermediate scrutiny will be conducted pursuant
to Central Hudson and Clark. "Unlike rational basis review
[applied by the trial court in the present case], the Central
Hudson [intermediate] standard does not permit [a court] to
supplant the precise interests put forward by the State with
other suppositions." Edenfield v. Fane, 507 U.S. 761, 768,
113 S. Ct. 1792, 1798, 123 L. Ed. 2d 543, 553 (1993). In
this case, that means that the State cannot substitute another
substantial interest for its assertion that N.J.S.A. 2C:34-7c
is required to protect minors and to promote traffic safety.
It may, however, advance other substantial interests in
addition to those two.
Fn
Under a commercial speech analysis, first we must __
determine whether the speech at issue merits protection by
examining whether the speech concerns lawful activity that
is not misleading. Central Hudson, supra, 447 U.S. at 566,
100 S. Ct. at 2350, 65 L. Ed. 2d at 351. There has been no
suggestion that the commercial advertising challenged here
is misleading or involves unlawful activity or obscene
cs a aaa aie mae RRs
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material. Therefore, under the threshold prong of the
Central Hudson test the case before us involves protected
commercial speech.
Next, we focus on Central Hudson's second prong,
namely whether a substantial governmental interest is
advanced by regulating the commercial speech involved
here. We will combine that discussion with our analysis
under the first prong of the time, place, and manner test:
whether the regulation is justifiable without reference to
content. In the trial court, the State argued that the statute
served two substantial state interests: (1) traffic safety; and
(2) the welfare of minors. Before the Appeliate Division,
the State expanded the list of secondary effects it sought to
address with N.J.S.A. 2C:34-7c, arguing that sexually
oriented businesses, as well as the signs that advertise their
existence, generally detract from neighborhood stability and
contribute to prostitution, crime, juvenile delinquency,
deterioration in property values. and lethargy in
neighborhood improvement efforts.
The burden is on the State to establish the existence of
the substantial governmental interest it sought to advance
through the signage regulation. To assist in meeting this
burden, the State relies on an established rule of statutory
interpretation:
ee ee
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Consistent with the judicial predisposition in
favor of the validity of legislation, courts
will readily impute a proper governmental
. purpose or interest as the object to be served
by the enactment, and, if need be, infer an
adequate factual basis to support legislative
regulations, even in the absence of particular
purposes or specific findings being expressed
by the lawmakers.
Nevertheless, if an enactment directly
impinges on a constitutionally protected
right, the presumption in favor of its
validity disappears. Courts are far more
demanding of clarity, specificity and
restrictiveness with respect to legislative
enactments that have a demonstrable impact
~ on fundamental rights.
(Bell, supra, 110 N.J. at 394-95 (citations
omitted) .]
The government's failure to sufficiently substantiate
its alleged substantial interests can be constitutionally fatal
to a regulation. See, e.g., id. at 396 (striking down
ordinance because of failure to reveal objectives or factual
underpinnings); Basiardanes v. City of Galveston, 682 F.2d
1203, 1215-16 (5th Cir. 1982) (finding that city had failed
to prove justifiable interest in regulation prohibiting
advertising by adult theaters because there was no evidence
that city conducted careful study of effects of adult
a
=|
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theaters). The First Amendment, however, does not require
a legislative body “to conduct new studies or produce
evidence independent of that already generated by other
cities" before enacting a regulation affecting sexually
oriented businesses, "so long as whatever evidence the
[legislative body] relies upon is reasonably believed to be
relevant to the problem” addressed. City of Renton, supra,
475 U.S. at 51-52, 106 S. Ct. at 931, 89 L. Ed. 2d at 40.
In Renton, the United States Supreme Court found that
although the city had not conducted its own hearings on its
locational zoning ordinance, it was entitled to rely upon
another city's studies that had been placed in the record.
Ibid. Unlike the city in Renton, however, when enacting
N.J.S.A. 2C:34-7c, the Legislature did not place into the
record the studies of this or any other jurisdiction; nor is
there evidence that lawmakers relied on such studies.
Similarly, the record does not reflect that the Legislature
relied on decisional law from this or any other jurisdiction
that discusses the detrimental secondary effects of sexually
oriented businesses. Nonetheless, we will consider the
precedents. Viewed collectively, a national consensus
emerges regarding the secondary effects of sexually
oriented businesses.
Both the United States Supreme Court and this Court
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have held that the government does not have a heavy
burden to satisfy the substantial governmental interest prong
of the Central Hudson standard. That burden may be
satisfied in a variety of different ways. As recently as 1995,
the Supreme Court stated that
we do not read our case law to require that
empirical data come to us accompanied by a
surfeit of background information. Indeed,
in other First Amendment contexts, we have
permitted litigants to justify speech
restrictions by reference to studies and
anecdotes pertaining to different locales
altogether, see City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 50-51, 106 S.
Ct. 925, 89 L. Ed. 2d 29 (1986); Barnes v.
Glen Theatre, Inc., 501_U.S. 560, 584-585,
131 S. Ct. 2456, 115 L. Ed. 2d 504 (1991)
(Souter, J., concurring in the judgment), or
even, in a case applying strict scrutiny, to
justify restrictions based solely on history,
consensus, and "simple common sense,"
Burson v. Freeman, 504 U.S. 191, 211, 112
S. Ct. 1846, 119 L. Ed., 2d 5 (1992).
Nothing in Edenfield, supra, a case in which
the State offered no evidence or anecdotes in
support of its restriction, requires more.
[Florida Bar, supra, 515 U.S. at 628, 115 S.
Ct. at 2378, 132 L. Ed. 2d at 552.]
The Supreme Court has recognized that sexually oriented
businesses can cause concrete and non-speculative side
aca ieee
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effects that government can target. These effects include
promoting juvenile delinquency, contributing to an overall
increase in crime, creating an environment that leads to the
general deterioration of neighborhoods, and lowering
property values. City of Renton, supra, 475 U.S. at 51,
106 S. Ct. at 931, 89 L. Ed. 2d at 40.
Additionally, this Court has held that a zoning
ordinance need not articulate its objectives but may Le
sustained against constitutional challenge on the
presentation in court of evidence supporting the
governmental interest advanced by the ordinance. Zilinsky
v. Zoning Bd. of Adjustment, 105 N.J. 363, 371 (1987).
Thus, the substantial governmental interest prong can be
satisfied by reference to studies pertaining to other
jurisdictions, legislative history, consensus, and even
common sense. The State maintains that the legislative
history reflecting the State's substantial interest in
ameliorating the negative effects of sexually oriented
businesses consists of a position report submitted by
Concerned Women for America, a floor speech given by
the bill's sponsor, Assemblywoman Crecco, and the
legislative history of N.J.S.A. 2C:33-12.2.
The Assembly Judiciary, Law and Public Safety
Committee considered the Concerned Women report. That
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report focuses on the connection between violent, sexually
explicit material and violent crime, but does not mention
signage. The report does not address traffic safety or harm
to minors; nor does it address the additional effects that
were presented to the Appellate Division.
Assemblywoman Crecco's speech supports the State's
assertion that the Legislature was concerned with the
protection of minors and the reduction of traffic hazards.
She explained that "[s]ign restrictions would be
advantageous because multiple signs distract motorists and
cause accidents." Crecco also referred to the welfare of
minors twice in her speech. First, she mentioned minors in
reference to buffer planting, but not in reference to signage
restrictions. Second, she stated that "[w]e need to put the
brakes on these sorts of element [sic] in all municipalities .
. . . Parents are concerned about their children being
exposed to these types of perverted establishments and their
sordid activities." Assemblywoman Crecco, however, did
not offer evidentiary support for her conclusions.
Further support for the proposition that N.J.S.A.
2C:34-7c was enacted to protect the welfare of minors can
be found in the text of the statute itself: N.J.S.A. 2C:34-7c
requires a sign indicating that the premises are off-limits to
minors. Moreover, because N.J.S.A. 2C:34-7c and
——
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N.J.S.A. 2C:33-12.2' were part of the same package,
consideration of the legislative history of the latter statute is
appropriate. In Chez Sez VIII, Inc. v. Poritz, the Appellate
Division held that N.J.S.A. 2C:33-12.2 was constitutional,
relying on the pre-enactment evidence regarding private
viewing booths. 297 N.J. Super. 331, certif. denied, 149
N.J. 409, and cert. denied, iS. ... 1368, G2. 335/,
139 L. Ed. 2d 262 (1997). The history of N.J.S.A.
2C:33-12.2 was not a part of the record in this case at the
trial level, but the State introduced it before the Appellate
Division. The State has requested this Court to take judicial
notice of that history to establish that the Legislature had a
factual basis for enacting N.J.S.A. 2C:34-7c.
The legislative history of N.J.S.A. 2C:33-12.2
indicates that, generally, the State was concerned with the
negative effects caused by sexually oriented businesses,
particularly businesses that operate private viewing booths.
The history demonstrates that the Legislature was
specifically informed about those effects when it
simultaneously enacted N.J.S.A. 2C:33-12.2 and N.J.S.A.
2C:33-7c.
N.J.S.A. 2C:33-12.2 expanded the criminal offense
of maintaining a nuisance to cover sexually oriented
businesses in certain circumstances.
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Furthermore, in an unpublished opinion, a federal
district court upheld the 1995 amendments to N.J.S.A.
2C:34-2 to -7 against First and Fourteenth Amendment
challenges. Internationally Hott II v. City of Elizabeth,
Civ. No. 96-1447 (D.N.J. Apr. 9, 1997). The District
Court found the statutes constitutional and determined that a
memorandum submitted to the Senate Judiciary Committee,
Deputy Attorney General Etzweiler's testimony before the
Assembly Judiciary Committee, and Assemblywoman
Crecco's statement "detail{ed] the need for these types of
narrowly tailored statutes to combat the secondary
effects of sexually oriented businesses." Id. at 13.
We conclude that the pre-enactment evidence that was
before the Legislature when it enacted N.J.S.A.
2C:33-12.2 and N.J.S.A. 2C:34-7c, and the legislative
history as a whole sufficiently establish that the Legislature
was genuinely concerned with mitigating the adverse
secondary effects of sexually oriented businesses to improve
traffic safety, to limit harm to minors, and to reduce
prostitution, crime, juvenile delinquency, deterioration in
property values, and lethargy in neighborhood improvement
efforts. Whether viewed separately or collectively,
they represent substantial governmental interests. See
American Mini Theaters, supra, 427 U.S. at 80, 96 S. Ct.
oS TI? JO a
A-23
at 2457, 49 L. Ed. 2d at 332 (Powell, J., concurring)
(finding interests in zoning adult movie theaters substantial
because "[W]ithout stable neighborhoods, both residential
and commercial, large sections of a modern city quickly
can deteriorate into an urban jungle with tragic
consequences to social, environmental, and economic
values"); Metromedia, supra, 453 U.S. at 507-08, 101 S.
Ct. at 2892, 69 L. Ed. 2d at 815 ("Nor can there be
substantial doubt that the twin goals that the ordinance
seeks to further -- traffic safety and the appearance of the
city -- are substantial government zoals."); Borrago v. City
of Louisville, 456 F. Supp. 30, 33 (W.D. Ken. 1978)
(finding no doubt that regulation of adult entertainment
furthers "important and substantial" interests); City of
Pasco v. Rhine, 753 P.2d 993, 997 (Wash. Ct. App. 1988)
(finding that government had substantial interest in
mitigating secondary impacts of adult theater's "location in
an area not suitable for such theaters").
-D-
The third prong of the commercial speech inquiry is
whether the regulation directly advances the government's
asserted interests. Central Hudson, supra, 447 U.S. at 566,
A-24
100 S. Ct. at 2350, 65 L. Ed. 2d at 351. This inquiry
requires us to determine whether the elimination or
reduction of the asserted negative effects of sexually
oriented businesses can be achieved by regulating the
number of signs, sign content, and sign size.
“[A] governmental body . . . must demonstrate that the
harms it recites are real and that its restriction will in fact
alleviate them to a material degree." Edenfield, supra, 507
U.S. at 770-71, 113 S. Ct. at 1800, 123 L. Ed. 2d at 555.
Therefore, sign regulations are permissible if the
government can "show that the particular restrictions on
signs in fact relate to the stated goal." State v. Miller, 83
N.J. 402, 415 (1980) .
In American Min) Theaters, supra, the United States
Supreme Court found thata municipality's conclusion that
the concentration of sexually oriented businesses, unlike
other businesses, "causes the area to deteriorate and become
a focus of crime” was "a factual basis" for the conclusion
that dispersal requirements would "have the desired effect."
American Mini Theaters, supra, 427 U.S. at 71 & n.34, 96
S. Ct. at 2452-53 & n.34, 49 L. Ed. 2d at 326 & n.34.
Similarly, we hold that the limitation of the signs
promulgated in N.J.S.A. 2C:34-7c directly advances the
government's interests in limiting negative secondary
A-25
effects, such as neighborhood deterioration and
concentration of crime. The limitation of signage may
reduce the effects generated by the presence of sexually
oriented businesses, particularly in conjunction with the
other provisions of N.J.S.A. 2C:34-7, dispersal
requirements, locational restrictions, and perimeter buffers.
N.J.S.A. 2C:34-7a to -7b.
In Metromedia, supra, the Supreme Court found that —-
the goal of increased traffic safety was furthered by the
limitation of off-site advertising billboards. 453 U.S. at
508-09, 101 S. Ct. at 2893, 69 L. Ed. 2d at 815-16. The
Court explained that "'[bJillboards are intended to, and
undoubtedly do, divert a driver's attention from the
roadway.'" Ibid. (quoting California Supreme Court
decision in same case). The same is true of the on-site
advertising signs limited by N.J.S.A. 2C:34-7c. "Unlike
oral speech, signs take up space and may obstruct
views, distract motorists, displace alternative uses for land,
and pose other problems that legitimately call for
regulation.” City of Ladue v. Gilleo, 512 U.S. 43, 48,
114 §. Ct. 2038, 2041,129 L. Ed. 2d 36, 42-43 (1994)
(emphasis added). The Legislature could reasonably
conclude that the nature and content of the signs of sexually
oriented businesses cause greater distraction to motorists
A-26
than other commercial signs. But cf. Rappa v. New Castle
County, 18 F.3d 1043, 1082 (3d Cir. 1994) (Garth, J.,
concurring and dissenting) (“[T]he allowance of some
signs, but not others, is evidence that the government's
asserted interests in traffic safety and aesthetics are not
sufficiently compelling to justify disparate treatment
between classes of speech.").
We also conclude that the sign limitations serve the
State's interest in protecting the welfare of minors. The
Legislature has chosen to criminalize the sale, distribution,
rental, or exhibition of obscene material to minors.
N.J.S.A. 2C:34-3. The requirement that sexually oriented
businesses post signs indicating that the businesses are
off-limits to minors helps to ensure that minors will be
excluded from the premises. Furthermore, we find that the
limitations on the identification sign reduce the ability of
sexually oriented businesses to attract minors. Moreover,
the other goals that we have determined are advanced by
N.J.S.A. 2C:34-7c, such as limiting neighborhood
deterioration and crime and promoting traffic safety,
undoubtedly contribute to the welfare of minors who live
in, or pass through, the vicinity of sexually oriented
businesses.
The final prong of the commercial speech test is
whether the regulation is no more extensive than necessary
to serve the State's asserted interests. Central Hudson,
supra, 447 U.S. at 566, 100 S. Ct. at 2350, 65 L. Ed. 2d
at 351. That inquiry is similar to that part of the time,
place, and manner test requiring the narrow tailoring of the
regulation and leaving open ample alternative means of
communication. Clark, supra, 468 U.S. at 293, 104S. Ct.
at 3069, 82 L. Ed. 2d at 227. Therefore, we must
determine whether N.J.S.A. 2C:34-7c is narrowly tailored
to serve the State's asserted interests. We combine the
narrow tailoring discussion with our analysis under the final
prong of the time, place, and manner test, whether the
regulation leaves open ample alternative means of
communication. Clark, supra, 468 U.S. at 293, 104 S. Ct.
at 3069, 82 L. Ed. 2d at 227.
N.J.S.A. 2C:34-7c is not substantially broader than
necessary because it: (1) allows two signs to be posted; (2)
does not proscribe other modes of advertisement; (3) does
not inhibit the material that may be displayed within the
store; and, (4) does not place any significant limitation on
what might be advertised on the two signs. The statute does
A-28
net 5an advertising completely, and sexually oriented
businesses have a reasonable opportunity to advertise in the
print and electronic media. SDJ, Inc. v. City of Houston,
837 F.2d 1268, 1278 (5th Cir. 1988), cert. denied sub nom
M.E.F. Enters., Inc. v. City of Houston, 489 U.S. 1052,
109 S. Ct. 1310, 103 L. Ed. 2d 579 (1989); see also State
v. J.&J. Painting, 167 N.J. Super. 384, 386 (App. Div.
1979) (regulation "leaves unaffected all other means [for
businesses] to advertise their business services --
newspapers, telephone directories, radio and electronic
media[, and word of mouth]"). The State "has gone no
further than necessary in seeking to meet its ends. Indeed it
has stopped short of fully accomplishing its ends: It has not
prohibited all" signs. Metromedia, supra, 453 U.S. at 508,
101 S. Ct. at 2893, 69 L. Ed. 2d at 815.
Furthermore, to satisfy Central Hudson and the narrow
tailoring requirement of Clark, the regulation need not be
the least restrictive means of serving the State's
content-neutral substantial interest. Ward, supra, 491 U.S.
at 797, 109 S. Ct. at 2757 105 L. Ed. 2d at 679. "[T]he
requirement of narrow tailoring is satisfied 'so long as the .
. . regulation promotes a substantial government interest
that would be achieved less effectively absent the
regulation'" and the means chosen does not "burden
A-29
substantially more speech than is necessary to further" the
State's content-neutral interest. Id. at 799, 109 S. Ct. at
2758, 105 L. Ed. 2d at 680-81 (quoting United States v.
Albertini, 472 U.S. 677, 689, 105 S. Ct. 2897, 86 L. Ed.
2d 536 (1985)).
Several other courts examining the same issue found
regulations that are more restrictive than N.J.S.A.
2C:34-7c to be sufficiently tailored. For example, in
Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d
1216 (8th Cir. 1997), cert. denied, U.S. _,118S.
Ct. 855, _L.Ed.2d___ (1998), signs were prohibited in
windows, a one-square-foot identification sign was
permitied on the entrance door, and another identification
sign equal to one-square foot for each foot of lot frontage
on the street was allowed. All signs had to be flat, wali
signs. That meant that a sexually oriented business with a
twenty-five foot frontage could have one five-
feet-by-five-feet sign. In the present case, a sign for the
same frontage could be eight feet by five feet. The signage
regulation was found not to be too restrictive because it
limited only the outside of the businesses and the city could
reasonably conclude that this limitation was best able to
buffer the visual and other impacts of those businesses on
the neighborhood. Id. at 1222.
A-30
SDJ involved an ordinance requiring sexually oriented
business to use "simple signs." SDJ, supra, 837 F.2d at
1278. Although the opinion does not contain a definition of
"simple signs," the Fifth Circuit found that the signage
requirements did not violate the First Amendment.
Similarly, in Borrago, supra, a district court upheld an
ordinance that restricted adult entertainment establishments
from having more than one outside sign, not to exceed ten
feet in length and three feet in width, and "not to contain
any emphasis, either by wording or picture or otherwise, on
matters relating to sexual activities." 456 F. Supp. at 31.
_ The court concluded that the restrictions were no greater
than essential
in light of the findings . . . that the
showing and advertising of adult
entertainment attracts an undesirable
quantity and quality of transients,
causes an increase in crime, and
encourages residents and businesses
to move elsewhere. The findings, as
to the undesirability of the transients
who are attracted to this type of
entertainment and as to the resulting
- increase in crime, justify the City in
imposing strict controls over the
persons who manage and control
these types of businesses and also
justify the restrictions on advertising.
{Id. at 33.]
a EN NT Te ee MT
A-31
The signage regulation in Borrago limiting a sign to no
more than thirty square feet was more restrictive than the
forty square feet limitation at issue here.
We conclude that although there is no history to explain
why the Legislature selected forty square feet as the size
limitation, the choice of sign size falls within the ambit of
Renton's legislative discretion. "'It is not [the] function [of
the Court] to appraise the wisdom of [the governmental
regulation because the government] . . . must be allowed a
reasonable opportunity to experiment with solutions to
admittedly serious problems.'" Renton, supra, 475 U.S. at
52, 106 S. Ct. at 931, 89 L. Ed. 2d at 42 (quoting
American Mini Theatres, supra, 427 U.S. at 71, 96 S. Ct.
at 2440, 49 L. Ed. 2d at 310) . A sign that contains forty
square feet represents a reasoned compromise between
serving the State's asserted goals and allowing some
advertisement. Forty square feet is an adequate amount of
space for a business to announce its presence given the
secondary effects of sexually oriented business that are
unrelated to the content of the signs.
Furthermore, we conclude that the State has an interest
in regulating the signage of sexually oriented businesses
rather than leaving that function to municipalities. In
addressing the goals of protecting minors and increasing
A-32
traffic safety, a decision to regulate at a statewide level is
rational because it creates uniformity, rather than relying on
the various municipalities to regulate individually in their
own ways.
Il
Next, we consider plaintiffs’ vagueness argument.
N.J.S.A. 2C:34-7c permits a sexually oriented business to
display an "identification sign" that does not exceed forty
square feet in size. The trial court held the sign statute void
for vagueness because the word "identification" could mean
more than name only. The Appellate Division interpreted
the statute to mean that "an identification sign may
communicate not only the name of the establishment, but
also the street number, telephone number, operating hours
and general nature of the establishment in order to identify
the business." 298 N.J. Super. at 242. Based on that
interpretation, the court found the statute was not vague.
Ibid. Plaintiffs contend that the Appellate Division's
interpretation of the statute has enhanced its vagueness. We
disagree.
A statute may be challenged as being either facially
vague or vague “as applied." State v. Maldonado, 137 N.J.
A-33
536, 563 (1994); State v. Cameron, 100 N.J. 586, 593
(1985). Plaintiffs maintain that the statute is facially
vague. The vagueness doctrine involves procedural due
process considerations of fair notice and adequate warning.
Karins, supra, 152 N.J. at 544. A law is void if it is so
vague that persons "'of common intelligence must
necessarily guess at its meaning and differ as to its
application.'" Town Tobacconist, supra, 94 N.J. at 118
(quoting Connally v. General Constr. Co., 269 U.S. 385,
391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926))
"When a statute's constitutionality is doubtful, a court
has the power to engage in ‘judicial surgery,'" construing
the statute in a constitutional way. Town Tobacconist,
supra, 94 N.J. at 104. When a statute is vague, the court's
"power and obligatica to narrow imprecise Statutory
language . . . to render it constitutional is beyond
question.'" State v. Mortimer, 135 N.J. 517, 533, cert.
denied, 513 U.S. 970, 115 §. Ct. 440, 130 L. Ed. 2d 351
(1994) (quoting State v. Ramseur, 106 N.J. 123, 200
(1987)). That power and obligation exist because the court
"begins with the assumption that the legislature intended to
act in a constitutional manner.'" Id. at 534 (quoting Right
to Choose v. Byrne, 91 N.J. 287, 311 (1982)). Therefore,
we must construé N.J.S.A. 2C:34-7c in a constitutional
A-34
manner if it is reasonably susceptible to such a
construction. Ibid. In the past, this Court has engaged in
"judicial surgery’ to excise a constitutional defect or
engraft a needed meaning." Right to Choose, supra, 91
N.J. at 311; see, Mortimer, supra, 135 N.J. at 534-35
(excising unconstitutionally vague language from statute
on bias crimes); Town Tobacconist, supra, 94 N.J. at 104
(excising unconstitutionally vague portion of "drug
paraphernalia'' definition in Drug Paraphernalia Act); New
Jersey State Chamber of Commerce v. New Jersey Election
Law Enforcement Comm'n, 82 N.J. 57, 75-81 (1980)
(limiting election financing reporting act to avoid
overbreadth); Borough of Collingswood v. Ringgold, 66
N.J. 350, 357 (1975), appeal dismissed, 426 U.S. 901, 96
S. Ct. 2220, 48 L. Ed. 2d 826 (1976) (limiting ordinance
requiring prior registration of canvassers and solicitors to
door-to-door activity on private property); Camarco v. City
of Orange, 61 N.J. 463, 466 (1972) (limiting anti-loitering
ordinance to interference with others in public places or
threats of immediate breach of peace).
In State v. DeSantis, 65 N.J. 462 (1974), the Court
considered the New Jersey criminal laws dealing with
obscenity. These laws did not define "obscenity" with the
A-35
specificity required by Miller v. California, 413 U.S. 15,
93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). DeSantis, supra,
65 N.J. at 472. The Court weighed whether it should
judicially salvage the statute:
[I]t is entirely likely that the Legislature will
expeditiously deal with the subject in light
of all of the opinions in Miller and the
related and ensuing cases both federal and
state. In the meantime, however, we are
confronted with the choice of nullifying L.
1971, c. 449, thereby leaving an interim
void . . . or supplying a stopgap
constitutional interpretation . . . .[W]e take
the latter course which we consider the more
consonant with the legislative goals and our
precedential judicial expressions.
PS ee a Te ee ee eT
[Id. at 472-73.]
Accordingly, the Court engrafted the Miller definition of
obscenity onto New Jersey's obscenity laws. Id. at 423-74.
i al, Sal aw fe al tn
Furthermore, the Legislature has explicitly authorized
courts to interpret terms contained in the New Jersey Code
of Criminal Justice (Code); for example, N.J.S.A. 2C:1-2
provides principles of construction to guide courts in
interpreting Code provisions. N. J. S.A. 2C: 1-2 (c) ("The
provisions of the Code shall be construed according to the
fair import of their terms but when the language is
| susceptible of differing constructions it shall be interpreted
to further the general purposes stated in this section and the
A-36
special purposes of the particular provision involved.").
Courts, however, will not unquestioningly construe
statutes. In State v. Miller, for example, this Court
declined to perform judicial surgery or to adopt a narrow
construction of an ordinance prohibiting homeowners from
posting signs containing political messages because the
ordinance "so directly cuts to the heart of the First
Amendment." State v. Miller, 83 N.J. 402, 414 (1980).
The Appellate Division's construction of N.J.S.A.
2C:34-7c was appropriate for several reasons. The
Appellate Division complied with its obligation to supply a
definition of the type of identification sign that is lawful in
order to "restore the statute to health." Town Tobacconist,
supra, 94 N.J. at 104. That interpretation was necessary to
prevent the statute from being unconstitutionally vague.
The term “identification” could mean the establishment's
name only, the establishment's name combined with a
general description of the nature of its business, or its
address, or both. Given that the Legislature enacted
N.J.S.A. 2C:34-7c as part of a comprehensive package
regulating sexually oriented businesses, it is reasonable to
conclude that the Legislature would prefer the court to
adopt a "stopgap constitutional interpretation" rather than
nullify the statute. Unlike the ordinance at issue in Miller,
A-37
supra, N.J.S.A. 2C:34-7c does not "so directly cut [] to the
heart of the First Amendment" because N J.S.A. 2C:34-7c
primarily concerns commercial, rather than political,
speech. Furthermore, unlike the homeowners in Miller,
sexually oriented businesses have multiple commercial
means of expression available.
Consistent with N.J.S.A. 2C:1-2(c), which authorizes
courts to interpret vague terms in the criminal code, the
Appellate Division's construction gives "fair warning of the
nature of the conduct proscribed." N.J.S.A. 2C:1-2(a)(4).
As a result, sexually oriented businesses will not have to
speculate as to whiat is permitted on their signs.
Additionally, the Appellate Division's construction of
"identification" is consistent with several item used to
identify businesses: name, location, description of location,
description of premises, identity of proprietors and
operators, hours of operation, and the type of business
performed. The Appellate Division's interpretation allows a
sexually oriented business to display the basic elements and
function of its commercial identity.
Hamilton argues that the Appellate Division exacerbated
the statute's vagueness by failing to define the " general
nature of the business," the length of time in posting a
political sign that is "temporary," and what constitutes a
A-38
political sign. We conclude that N.J.S.A. 2C:34-7c as
construed is sufficiently clear and gives adequate notice to
sexually oriented businesses to withstand this
pre-enforcement challenge. A common serise interpretation
of "general nature of the business" allows the establishment
to advertise that it in a sexually oriented business and that it
sells such products to adults.
We also hold that the term "temporary political sign" is
not vague. "Temporary" denotes both physical arid
temporal impermanence. A person of average intelligence
would understand "temporary political signs" to include
signs that are not permanently affixed to the establishment's
property and that speak to matters relating to the activities
of the government, a politician, a political party, or a
political issue. For those reasons, the statute is not facially
unconstitutional.
IV
Plaintiffs argue that N.J.S.A. 2C:34-7c is
impermissibly underinclusive because it exempts all
businesses that are not sexually oriented. Therefore,
according to plaintiffs, the statute violates their rights to
equal protection by discriminating among speakers based
A-39
solely upon the content of their speech. We disagree.
The Fourteenth Amendment to the United States
Constitution provides that no State shall "deny to any
person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. "Of course, the equal
protection claim in this case is closely intertwined with
First Amendment interests." Police Dep't v. Mosley, 40€
U.S. 92, 95, 92 S. Ct. 2286, 2289, 33 L. Ed. 2d 212, 216
(1972). "[T] he notion that a regulation of speech may be
impermissibly under-inclusive is firmly grounded in First
Amendment principles." City of Ladue, supra, 512 U.S. at
51, 114 S. Ct. at 2043, 129 L. Ed. 2d at 45 (emphasis in
original).
The Legislature may legitimately distinguish between
the speech of sexually oriented businesses and non-sexual y
oriented businesses because "society's interest in [the
former] type of expression is of a wholly different, and
lesser magnitude than the interest of untrammeled political
debate." American Mini Theaters, supra, 427 U.S. at 70,
96 S. Ct. at 2456, 49 L. Ed. 2d at 326. Thus. a state "may
legitimately use the content of [sexually oriented] materials
as the basis for placing them in a different classification
from other motion pictures." Id. at 70-71, 96 5. Ct. at
2456, 49 L. Ed. 2d at 326. This reasoning applies equally
A-40
to the signs of sexually oriented businesses as to adult
films. We conclude, therefore, that N.J.S.A. 2C:34-7c is
not constitutionally infirm based on either equal protection
or underinclusiveness concerns.
Finally, plaintiffs contend that N.J.S.A. 2C:34-7c acts
as a prior restraint. In general, "[t]he term prior restraint is
used 'to describe administrative and judicial orders
forbidding certain communications when issued in advance
of the time that such communications are to occur.'"
Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct.
2766, 2771, 125 L. Ed. 2d 441, 450 (1993) (quoting M.
Nambour, Nambour on Freedom of Speech § 4.03 at 4-14
(1984)); Murray v. Lawson, 138 N.J. 206, 221-22 (1994),
cert. denied, 515 U.S. 1110, 115 S. Ct. 2264, 132 L. Ed.
2d 269 (1995). "The Supreme Court and lower federal
courts have frequently noted that traditional concerns about
prior restraint raised by forms of prepublication review
such as the review procedure we permit today do not apply
with the same force in the commercial speech context."
IMO Petition of Felmeister & Isaacs, 104 N.J. 515, 550
n.20 (1986).
eee ewer eae
A-41
One of the factors considered in determining if a
restriction is a prior restraint is whether it "prevents the
expression of a message. Thus, the Supreme Court has
consistently found (often without discussion) that
injunctions are prior restraints if they forbid entirely the
publication of a message." Murray, supra, 138 N.J. at 222.
N.J.S.A. 2C:34-7c does not act as a prior restraint,
however, because it does not prohibit plaintiffs from
expressing their message entirely. Rather, they are simply
prohibited from expressing it on signs larger than those
permitted by the statute. See id. at 223 (finding that
injunction did not act as prior restraint because it only
"prohibited [defendants] from expressing [message] by
picketing within the 300-foot zone that the injunction
establishes"). More importantly, there is no prior restraint
here because plaintiff has sought to restrain enforcement of
the statute while the government has taken no specific act to
restrain plaintiffs' expressions.
VI
The power of this Court to declare a statute
unconstitutional must be delicately exercised. Harvey v.
Board of Chosen Freeholders, 30 N.J. 381, 388 (1959).
A-42
The strong presumption of constitutionality that attaches to
a statute can be rebutted only upon a showing that the
statute's "repugnancy to the Constitution is clear beyond a
reasonable doubt." Ibid.; Franklin v. New Jersey Dept. of
Human Servs., 111 N.J. 1, 17 (1988); New Jersey Sports
& Exposition Auth. v. McCrane, 61 N.J. 1, 8-9 (1972).
An observation made by Justice Holmes nearly a century
ago is applicable to the present case. "Great constitutional
provisions must be administered with caution. Some play
must be allowed for the joints of the machine, and it must
be remembered that legislatures are ultimate guardians of
the liberties and welfare of the people in quite as great a
degree as the courts." Missouri, Kansas, & Texas Ry. Co.
v. May, 194 U.S. 267, 270, 24 S. Ct. 638, 639, 48 L. Ed.
971, 973 (1904).
We conclude that the strong presumption of the validity
of N.J.S.A. 2C:34-7c has not been rebutted. We hold that
the statute is constitutional. The judgment of the Appellate
Division is therefore affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER,
POLLOCK, O'HERN, and GARIBALDI join in JUSTICE
COLEMAN 's opinion. JUSTICE STEIN has filed a
separate opinion concurring in part and dissenting in part.
A-43
SUPREME COURT OF NEW JERSEY
A-64 September Term 1997
HAMILTON AMUSEMENT CENTER, t/a
VIDEO EXPRESS, L.O.J., INC., t/a
THE EXPORIUM, PYNCO, INC., t/a
CAMELOT BOOK STORE and
CRESCENDO BOOKS, INC., t/a
CARNIVAL BOOKS,
Plaintiffs-Appellants,
v.
PETER VERNIERO, ATTORNEY GENERAL for the
STATE OF NEW JERSEY and the STATE OF NEW
JERSEY,
Defendants-Respondents.
STEIN, J., concurring in part and dissenting in part.
The Court sustains, against a First Amendment
challenge, the constitutionality of a statute that limits
sexually oriented businesses throughout the State to two
exterior signs, one giving notice that the promises are off
limits to minors, and the other -- an identification sign --
restricted in size to forty square feet. The State contends
that the statute is sustainable because its purpose is content
-neutral. That is, the statute does not seek to regulate the
constitutionally protected speech engaged in by sexually
A-44
oriented businesses, but rather seeks to regulate the
secondary effects of those businesses. The secondary effects
that the State claims to be fostered by the sign regulation
are traffic safety and the welfare of minors.
I do not necessarily disagree with the court's conclusion
that the challenged statute regulates only commercial speech
and that its constitutionality should be determined on the
basis of an intermediate standard of scrutiny. Ante ai
(slip op. at 6-12). Nor do I disagree with the Court's
determination that "[t]he burden in on the State to establish
the existence of the substantial governmental interest it
sought to advance through the signage regulation.” Ante at
___ (slip op. at 13).
I part company with the Court when it elects to wink at
the complete lack of legislative findings supporting the
alleged governmental interest and sustains the statute
without imposing on the State the burden of proving to the
trial court that the alleged governmental interests are not
pretextual. If those interests are pretextual, the Court would
agree that the statute cannot be sustained. But the record
evidence that the Court credits as supporting the alleged
governmental interests is embarrassingly weak, and the
State inexplicably did not supplement that evidence in the
proceeding before the trial court. The Court ought not so
eal igi ee eas
A-45
readily compromise its responsibility to the interests
protected by the First Amendment.
The Court appropriately relies on Central Hudson
Gas & Electric Corp. v. Public Service Commission of
New York, 447 U.S. 557, 566, 100 S. Ct, 2343, 2346-47,
65 L. Ed. 2d 341, 351 (1980), as a source of the standards
for testing the validity of restrictions an commercial speech
against First Amendment protections:
In commercial speech cases, then, a
four-part analysis has developed. At the
outset, we must determine whether the
expression is protected by the First
Amendment. For commercial speech to
come within that provision, it at least must
concern lawful activity and not be
misleading. Next, we ask whether the
asserted governmental interest is substantial.
If both inquiries yield positive answers, we
must determine whether the regulation
directly advances the governmental interest
asserted, and whether it is not more
extensive than is necessary to serve that
interest.
The United States Supreme Court continues to insist on
adherence to the Central Hudson standard in assessing the
A-46
constitutionality of commercial speech regulations. In
Edenfleld v. Fans, 507 U.S. 761, 113 S. Ct. 1792, 123 L.
Ed. 2d 543 (1993), the Court invalidated under the First
and Fourteenth Amendments Florida's ban on personal
solicitation of prospective clients by certified public
accountants. The Court observed:
It is well established that "[tlhe party
seeking to uphold a restriction on commercial
speech carries the burden of justifying it."
Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 71 n.20, 103 S. Ct. 2875, 2883 n.20,
77 L. Ed. 2d 469, 480 n.20 (1983). This
burden in not satisfied by mere speculation
or conjecture; rather, a governmental body
seeking to sustain a restriction on
commercial speech must demonstrate that the
harms it recites are real and that its
restriction will in fact alleviate them to a
material degree. Without this requirement, a
State could with ease restrict commercial
speech in the service of other objectives
that could not themselves justify a burden
on commercial expression.
"Broad prophylactic rules in the area of free
expression are suspect. Precision of regulation must
be the touchstone in an area so closely touching our
most precious freedoms." NAACP v. Button, 371
U.S. 415, 438, 83 S. Ct. 328, 340, 9 L. Ed. 2d
405, 421 (1963) (citations omitted). Even under the
First Amendment's somewhat more forgiving
Se ee ae ee
A-47
standards for restrictions on commercial speech, a
State may not curb protected expression without
advancing a substantial governmental interest. Here,
the ends sought by the State are not advanced by the
speech restriction, and legitimate commercial speech
is suppressed. For this reason, the Board's rule
infringes upon Fane's right to speak, as guaranteed
by the Constitution.
(Id. at 770-71, 777, 113 S. Ct. at 1800,
1803-04, 123 L. Ed. Ed. 2d at 555, 559
(citations omitted). ]
The Court relies heavily on City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d
29 (1986), which upheld the constitutionality of a city
zoning ordinance that prohibited adult motion picture
theatres from locating within 1,000 feet of any residential
zone, single or multiple-family dwelling, church, park or
school. The Court in Renton adhered to the Central Hudson
mandate that the proponents of a legislative enactment
regulating commercial speech must demonstrate that the
regulation "is designed to serve a substantial government
interest... ." Id. at 50, 106 S. Ct. at 930, 89 L. Ed. 2d
at 39. However, the Court rejected the Court of Appeals's
holding that the ordinance was conclusory and speculative
because the City had not conducted its own studies that
reflected the need for the restriction. Id. at 50, 106 S. Ct.
at 930, 89 L. Ed. 2d at 39-40. The Court observed that the
A-48
record reflected the City Council's reliance on studies
produced by the City of Seattle focusing on the secondary
effects of adult movie theaters, and also its reliance on the
opinion of the Supreme Court of Washington in upholding
the Seattle ordinance. Id., at 51-52, 106 S. Ct. at 931, 89
L. Ed. 2d at 40. The Court concluded:
We hold that Renton was entitled to rely
on the experiences of Seattle and other cities,
and in particular on the "detailed findings"
summarized in the Washington Supreme
Court's Northend Cinema opinion, in
enacting its adult theater zoning ordinance.
The First Amendment does not require a city,
before enacting such an ordinance, to
conduct new studies or produce evidence
independent of that already generated by
other cities, so long as whatever evidence the
city relies upon in reasonably believed to be
relevant to the problem that the city
addresses. That was the came here.
[Ibid.]
This Court acknowledges that
Unlike the city in Renton, however, when
enacting N.J.S.A. 2C:34-7c, the Legislature
did not place into the record the studies of
this or any other jurisdiction; nor in there
evidence that lawmakers relied an such
studies. Similarly, the record does not
reflect that the Legislature relied on
decisional law from this or any other
jurisdiction that discusses the detrimental
ee
she aii RIAL NA ie SMD AE AS NG Liecloede Mii Alga a
ee tne ees
eae
De RA SR cis Ne iacartrtie risalivlte A ke he va AE
A-49
secondary effects of sexually oriented
businesses.
[Ante at__(slip op. at 15.]
Despite the obvious omission in the legislative record, the
Court strains to find some semblance of documentation in
the legislative record that identifies the governmental
interests at stake and demonstrates that the sign restrictions
significantly advance those interests.
Before examining the bits and pieces of the legislative
record the Court relies on to sustain this statute, the Third
Circuit Court of Appeals's recent analysis of the
governmental burden in sustaining commercial speech
restrictions is highly pertinent and provides a frame of
reference for evaluating the soundness of the Court's
analysis. In Phillips v. Borough of Keyport, 107 F. 3d 164
(1997), the Third Circuit reversed as premature a District
Court judgment sustaining the constitutionality of a local
ordinance restricting adult entertainment uses to industrial
districts and prohibiting them within 300 feet of residential
zones, schools, churches, public playgrounds, swimming
pools, parks and libraries, id. at 170-71, remanding the
matter to the District Court for an evidentiary hearing in
which the Borough would be required to identify the
secondary governmental interests that justify the ordinance
A-50
and to prove that the ordinance is reasonably tailored to
promote those interests. Id. at 173. The Court of Appeals
rejected the plaintiffs’ contention that the ordinance could
not be sustained because the Borough did not have before it
at the time of adoption evidence that would sustain the
constitutionality of the ordinance. The Court stated:
There in a significant difference between the
requirement that there be a factual basis for a
legislative judgment presented in court when that
judgment is challenged and a requirement that
such a factual basis have been submitted to the
legislative body prior to the enactment of the
legislative measure. We have always required the
former; we have never required the latter.
Whatever level of scrutiny we have applied in a
given case, we have always found it acceptable
for individual legislators to base their judgments
on their own study of the subject matter of the
legislation, their communications with
constituents, and their own life experience and
common sense so long as they come forward with
the required showing in the courtroom once a
challenge in raised. In reliance on this approach,
most municipal and county councils throughout
the land and some state legislatures do not hold
hearings and compile legislative records before
acting on proposed legislative measures. We
perceive no justification in policy or doctrine for
abandoning our traditional approach. Moreover,
we believe that insistence on the creation of a
legislative record is an unwarranted intrusion into
the internal affairs of the legislative branch of
governments.
a tie ”
A-51
If a legislative body can produce in court
whatever justification is required of it under the
applicable constitutional doctrine, we perceive
little to be gained by incurring the expense,
effort, and delay involved in requiring it to
reenact the legislative measure after parading its
evidence through its legislative chamber. A
record like that presented to the town council in
Renton, can be easily and quickly assembled, and
a requirement that this be done is unlikely to deter
any municipal body bent on regulating or curbing
speech. While we agree with appellants that the
creation of a legislative record can have probative
value on what the lawmakers had in mind when
they acted, we do not understand why its absence
should be controlling when the court is otherwise
satisfied that the legislative measure has a
content-neutral target.
{Id. at 178.]
Judge Rosenn dissented from that aspect of the Court's
opinion, expressing the view that under Renton
consideration of pre-enactment evidence is a prerequisite to
the constitutionality of a legislative restriction on
commercial speech:
We are thus bound by both Supreme Court
precedent and the precedent of our own circuit to
require at least some evidence at the time of adoption
before we sustain a restrictive ordinance of the type
A-52
currently before us. The majority is of the view that
the legislative body need have no factual basis before it 1
at the time of the enactment of the ordinance, and that ;
such a requirement is only necessary when the .
legislative judgment is challenged in court. If we look
to cases decided in our sister circuits, we also see that
no other circuit in this country has espoused the
extreme, and I believe incorrect, position taken by the
majority. Cases similar to the one at bar have been
decided in the First, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, and Eleventh Circuits. Every one of
these circuits has interpreted Renton to require
pre-enactment evidence, and every one of these circuits
_has insisted upon such evidence before affirming the
constitutionality of a restrictive zoning ordinance.
At this juncture, the effects of adult entertainment
establishments are so open and notorious that requiring
legislative bodies to consult studies or other evidence
confirming their deleterious impact may seem
unnecessarily burdensome--just another hoop to jump
through in the process of lawmaking. However, this
requirement is not without purpose. It limits the risk
that legislatures will impose restrictions on speech
activities on the basis of supposed secondary effects
that on closer scrutiny lack any evidentiary support,
and it lends support to the representation that the
content-neutral interest articulated by the lawmaking t 3
body was not merely pretextual and illicitly designed to [3
suppress speech expression, even that constitutionally
protected. I am as sympathetic as the majority to
Keyport's well-intentioned purpose of preserving its
community life, but the First Amendment cases show
that it is "in those instances where protected speech
grates most unpleasantly against the sensibilities that
judicial vigilance must be at its height." Young v.
A-53
American Mini Theatres, 427 U.S. 50, 87, 96 S. Ct.
2440, 2460, 49 L. Ed. 2d 310, 336 (1976) (Stewart,
J., dissenting). Because the Borough of Keyport had no
evidence of deleterious secondary effects before it
when it enacted its restrictive zoning ordinance, our
jurisprudence requires that we strike down the
ordinance as unconstitutional.
[Id. at 189-90 (citations and
footnotes omitted). ]
I]
The Court cites three sources in its analysis of whether
the State has substantiated the governmental interests it
seeks to advance through the signage regulation contained
in N.J.S.A. 2C:34-7(c). The Court first acknowledges that
one of those sources, the position statement by the
Concerned Women for America that was considered by the
Assembly Judiciary Law and Public Safety Committee,
does not address signage, traffic safety, or harm to minors.
Its focus is solely on "the connection between violent,
sexually explicit material and violent crime . . . " Ante at
__ (slip op. at 17).
The Court's opinion breaks new constitutional ground,
however, when it purports to rely on the floor speech
delivered by the bill's sponsor, Assemblywoman Crecco, as
constituting legislative history that establishes the existence
a,
A-54
of governmental interests sought to be advanced by the
signage regulation. The full text of that speech follows:
Thank you, Mr. Speaker. I rise today to urge
you to vote for the Assembly Committee Substitute
to A-252/842 and to offer floor amendments.
The amendments would make this committee
substitute consistent with Senate Bill 342, sponsored
by Senator Gormley.
This legislation regulates the operations of
sexually oriented businesses, such as "juice bars."
These establishments would not be allowed to
operate within 1,000 feet of any school, playground,
park or place or worship, or within 1,000 feet of
any residential area.
This bill does not affect the right of
municipalities to adopt zoning ordinances
establishing so called "combat" zones for the
clustering of sexually oriented businesses.
Additionally, the bill mandates the external
appearance of sexually oriented businesses be
surrounded by 50-foot wide perimeter buffers made
up of plantings, and limits the number and size of
signs.
This 50 foot distance restriction would help to
preserve neighborhoods and to prevent urban
blight.
The buffer plantings would help to establish a
distance between businesses and minors who may be
ii iii,
A-55
in the area. These would also eliminate
embarrassment by citizens who might be walking
by.
Sign restrictions would be advantageous because
multiple signs distract motorists and cause accidents.
This bill also addresses the use of prohibited
enclosures or private booths for the purpose of
viewing pornographic motion pictures, and other
photographic representations which depict or
describe sexual activity. This prohibition would help
to prevent sexually transmitted diseases.
Violators would be guilty of a crime of the
fourth degree, which is punishable by a term of
imprisonment of up to 18 months or a fine of up to
$7,500 or both.
We need to put the brakes on these sorts of
element [sic] in all municipalities in the State of
New Jersey. Parents are concerned about their
children being exposed to these types of perverted
establishments and their sordid activities.
Owners of these businesses need to know that
they will not be able to break the law and get away
with it.
I ask for your favorable consideration of this
bill and the amendments. Thank you.
[Floor h in Favor of Assembly Bill 252 (Dec.
15, 1994) (statement of Marion Crecco,
Assemblywoman). ]
A-56
The obvious irrelevance of Assemblywoman Crecco's
speech to the issue before us is simply incontrovertible,
except to the extent that it demonstrates the Court's
willingness to cite to the flimsiest shred of legislative
history to sustain this statute. Only two sentences in the
speech relate at all to the secondary effects advanced by the
State: traffic safety and concern for minors.
Sign restrictions would be advantageous because
multiple signs distract motorists and cause
accidents.
We need to put the brakes on these sorts of
element [sic] in all municipalities in the State of
New Jersey. Parents are concerned about their
children being exposed to these types of perverted
establishments and their sordid activities.
Obviously, neither statement has any evidentiary
support. Although the letter statement mentions children,
its reference to "perverted establishments and their sordid
activities" more persuasively suggests that the statute is
designed to regulate the content of speech rather than to
control secondary effects. In any event, the Court's
reliance on the speech for any purpose ignores the Supreme
Court's admonition in Renton: "What motivates one
legislator to make a speech about a statute is not necessarily
=) ee Qe ee
A-57
what motivates scores of others to enact it, and the stakes
are sufficiently high for us to eschew guesswork." Renton,
Supra, 475 U.S. at 48, 106 S. Ct. at 929, 89 L. Ed. 2d at
38 (quoting United States v. O'Brien, 391 U.S. 367, 384,
88 S. Ct., 1673, 1683, 20 L. Ed. 2d 672, 684 (1968)).
Finally, the Court relies on the legislative history of
N.J.S.A. 2C:33-12.2, a statute that the Legislature
considered during approximately the same time frame in
which it enacted N.J.S.A. 2C:34-7(c). That statute makes it
unlawful for the operator of a sexually-oriented business to
offer for public use booths, screens, enclosures or other
devices that facilitate sexual activity by patrons.
The Court acknowledges that the legislative history of
N.J.S.A. 2C:33-12.2 was not part of the trial record in this
proceeding, but was included in the State's Appeliate
Division appendix. Ante at _(slip op. at 18). The
Court further acknowledges that the legislative history of
N.J.S.A. 2C:33-12.2 demonstrates the Legislature's
concern with the secondary effects of sexually oriented
businesses that provide private viewing booths for their
patrons. Ante at _ (slip op. at 18-19). What the Court fails
to acknowledge in that the legislative history of N.J.S.A.
2C:32-12.2 proffered by the State can be scoured from
beginning to end without discovering any evidence
A-58
whatsoever that even remotely suggests that N.J.S.A.
2C:34-7(c) advances the governmental interest in promoting
traffic safety or in protecting minors. The Court's reliance
on that legislative history is diversionary and unjustified.
Ill
The hard fact is that this record not only contains
insufficient evidence to sustain this statute -- it contains no
evidence at all. The State could not help but be aware of
the deficiencies in the record. Inexplicably, the State failed
to avail itself of the opportunity to introduce supplemental
supporting evidence before the trial court of the secondary
governmental interests served by the statute and of how the
statute advances those interests. That the State could have
produced evidence sufficient to sustain the statute I have
little doubt. I have no doubt, however, that for the Court to
comb this record in a vain attempt to find evidence that the
State simply has failed to produce is both unseemly and
inappropriate. In short, that is not our job.
In sustaining this statute we ignore not only federal
precedents but our own as well. In Zilinsky v. Zoning
Board of Adjustment of Verona, 105 N.J. 363, 371 (1987),
we acknowledged that when a fundamental right is
A-59
infringed by ordinance a municipality has the burden of
articulating the governmental objectives underlying the
ordinance either in the legislative process or by offering
testimony at a court hearing. In Bell v. Township of
Stafford, 110 N.J. 384 (1988), we invalidated a municipal
ordinance that prohibited billboards throughout the
municipality precisely because the Township failed to
demonstrate the governmental interests advanced by the
ordinance. We observed:
In applying the test for determining the
constitutional validity of an enactment that restricts
or impinges on freedom of speech and expression,
we are mindful that ordinarily legislative enactments
are presumed to be valid and the burden to prove
invalidity is a heavy one...
Nevertheless, if an enactment directly impinges
on a constitutionally protected right, the
presumption in favor of its validity disappears.
Courts are far more demanding of clarity,
specificity and restrictiveness with respect to
legislative enactments that have a demonstrable
impact on fundamental rights. . .
The ordinance fails to reveal either its particular
governmental objectives or its factual
underpinnings. As the Appellate Division noted,
the record is almost completely devoid of any
evidence concerning what interests of Stafford are
served by the ordinance and the extent to which the
A-60
ordinance has advanced those interests. Because the
exercise of first amendment rights and freedom of
speech are at stake, the municipality cannot seek
refuge in a presumption of validity. It clearly had
the burden to present and confirm those compelling
legitimate governmental interests and a reasonable
_ factual basis for its regulatory scheme in order to
validate its legislative action. Its failure to do so is
fatal.
(Id. at 394-96 (citations omitted).]
In State v. Miller, 83 N.J. 402 (1980), we invalidated a
municipal ordinance that severely restricted the content of
signs in residential areas and limited the size of such signs
to not more than six square feet. We noted that "[t]o
withstand the strict constitutional scrutiny required here, the
restriction on signs must be tied to a compelling municipal
interest... ." Id. at 414. We also observed that
"[llimitations on the size of a sign may be imposed if the
allowable square footage is not determined in an arbitrary
manner. . . . Inadequate sign dimensions may strongly
impair the free flow of protected speech.” Id. at 416.
No evidence in this record suggests any rational basis
for the forty-foot limitation on the size of signs permitted
for sexually oriented businesses. That a rational basis for
that limitation could have been advanced is beside the
point. The legislative record on that issue is non-existent,
A-61
and for all this Court knows the size limitation was plucked
out of thin air.
These are not idealistic or academic concerns. The Fifth
Circuit Court of Appeals explained the interests at stake in
SDJ. Inc. v. City of Houston, 837 F.2d 1268, 1274 (1988):
it is true that the effect on speech here
is said to be incidental to a regulation
aimed at the secondary effects of a business
whose activities are within the legitimate
scope of the state's police power. Yet,
unlike our review under a standard of
rationality, we will not hypothesize
such an objective or accept a naked
assertion. Rather, we intrude into the
regulatory decision process to the extent
that we insist upon objective evidence of
purpose -- a study or findings. Insisting
upon findings reduces the risk that a
purported effort to regulate effect is a mask
for regulation of content. That is, evidence
of legitimate purpose is supported by proof
that secondary effects actually exist and are
the result of the business subject to the
regulation. . . . Our task in setting the level
of review is to strike for that point of
equilibrium that vindicates first amendment
values at the least cost to a state's
decisional arrangements.
A-62
ill
I would remand this matter to the Law Division and
require the State to prove its case. The record before the
Court cannot possibly sustain the constitutionality of the
statute under review. For the Court to strain to uphold this
statute on the record presented disserves the fundamental
and enduring interests protected by the First Amendment.
A-63
SUPREME COURT OF NEW JERSEY
NO. A-64 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
HAMILTON AMUSEMENT CENTER, etc.,
et al.,
Plaintiffs-Appellants,
Vv.
PETER VERNIERO, et al.,
Defendants-Respondents.
DECIDED July 21, 1998
Chief Justice Portiz PRESIDING
OPINION BY = Justice Coleman
CONCURRING/DISSENTING OPINION BY Justice Stein
DISSENTING OPINION BY
CONCUR IN PART
CHECKLIST AFFIRM | DISSENT IN PART
CHIEF JUSTICE PORTIZ X
JUSTICE HANDLER
JUSTICE POLLOCK
X
X
JUSTICE O’HERN X
X
JUSTICE GARIBALDI
JUSTICE STEIN X
~<
JUSTICE COLEMAN
On
TOTALS
A-64
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF
NEW JERSEY
APPELLATE DIVISION
A-3176-95T3
HAMILTON AMUSEMENT CENTER, Approved
INC.,
t/a VIDEO EXPRESS, L.O.J., INC., ad
t/a THE EMPORIUM, PYNCO, INC., Publication
t/a CAMELOT BOOK STORE, and Feb 28
CRESCENDO BOOK, INC., t/a
CARNIVAL BOOKS, 1997
Plaintiffs-Respondents, Agere
Divison
v. Filing Date
Appellate Division
Feb 28 1997
s/R. Emille Cox
clerk
DEBORAH PORITZ, Attorney General for the
STATE OF NEW JERSEY, and the
STATE OF NEW JERSEY,
Defendants-Appellants.
Argued: January 6, 1997 - Decided: Feb 28 1997
Before Judges Petrella, Landau and Kimmelman.
A-65
On appeal from Superior Court of New Jersey,
Law Division, Mercer County.
Larry R. Etzweiler, Senior Deputy Attorney
General, argued the cause for appellants
(Peter Verniero, Attorney General, attorney;
Mary C. Jacobson, Assistant Attorney General,
of counsel; Mr. Etzweiler, on the brief).
Paul J. Cambria, Jr. , of the New York Bar, argued
the cause for respondents (Steven S. Polinsky, of the
New Jersey Bar, attorney and on the brief; Mr.
Cambria, Jr., Cherie L. Peterson, and Barry Nelson
Covert, of the New York Bar, also on the brief).
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
This is an appeal by the State of New Jersey from an
order permanently enjoining enforcement of N.J.S.A.
2C:34-7(c) as an unconstitutional content-based restriction
on free speech or alternatively as void for vagueness.
Hamilton Amusement Center, Inc., t/a Video Express,
L.O.J., Inc., t/a The Emporium, Pynco, Inc., t/a Camelot
Book Store, and Crescendo Book, Inc., t/a Carnival Books
(collectively referred to as plaintiffs) own or operate
sexually oriented businesses that use signs which exceed the
A-66
statute's restrictions on size, number and content.’ Plaintiffs i
sought a declaratory judgment declaring N.J.S.A.
2C:34-7(c) unconstitutional under the First Amendment to
the United States Constitution and Article I paragraph 6 of
Eo, ALC ee SS PAS)
the New Jersey Constitution, and seeking temporary
injunctive relief from enforcement of the statute.
The Law Division Judge found in plaintiffs' favor,
holding that N.J.S.A. 2C:34-7 (c) was a content-based
restriction on speech and presumptively unconstitutional
under strict scrutiny. He concluded that the Legislature did
not have a compelling interest to warrant the restriction on
speech. Alternatively, the judge concluded that the statute
would also fail under the less onerous content neutral test of
time, place and manner because it was not narrowly
tailored. An order was entered making the preliminary
injunction final. We conclude that the statute involves
commercial speech which does not trigger the strict scrutiny
1 Apparently, plaintiffs’ signs advertise the type of
products sold, operating hours and location of entrances.
| |
A-67
standard.’ The statute passes constitutional muster, and
hence we reverse.
I
N.J.S.A. 2C:34-7 was enacted by L. 1995, c. 230,
effective September 15, 1995. The sign provisions of the
Statute are just one subdivision of buffering and site
provisions contained in a comprehensive legislative package
aimed at sexually oriented businesses. The statute
provides:
Sexually oriented businesses; restrictions on
location and display of signs; perimeter
buffer requirements
a. Except as provided in a
municipal zoning ordinance adopted
pursuant to N.J.S. 2C:34-2, no person shall
operate a sexually oriented business within
1,000 feet of any existing sexually oriented
business, or any church, synagogue, temple
or other place of public worship, or any
elementary or secondary school or any
school bus stop, or any municipal or county
* As this statute applies only to commercial speech,
it need only be given an intermediate level of scrutiny.
Florida Bar v. Went for it, Inc., U.S. Pe
S.Ct. 2371, 2375-2376, 132 L. Ed. 2d 541, 549 (1995):
Association of Nat. Advertisers, Inc. v. Lungren, 44 F. 3d
726, 731 (9" Cir. 1994), cert. denied. U.S.
116 S. Ct. 62, 133 L. Ed. 2d 25 (1995).
A-68
playground or place of public resort and
recreation, or within 1,000 feet of any area
zoned for residential use. This subsection
shall not apply to a sexually oriented
business already lawfully operating on the
effective date of this act where another
sexually oriented business, an elementary or
secondary school or school bus stop, or any
municipal or county playground or place of
public resort and recreation is subsequently
established within 1,000 feet, or a
residential district or residential lot is
subsequently established within 1,000 feet.
b. Every sexually oriented business shall be
surrounded by a perimeter buffer of at least 50
feet in width with plantings, fence, or other
physical divider along the outside of the perimeter
sufficient to impede the view of the interior of the
premises in which the business is located. The
municipality may, by ordinance, require the
perimeter buffer to meet additional requirements
or standards. This subjection shall not apply to a
sexually oriented business already lawfully
operating on the effective date of this act.
c. No sexually oriented business shall
display more than two exterior signs, consisting of
one identification sign and one sign giving notice
that the premises are off limits to minors. The
identification sign shall be no more than 40 square
feet in size.
d. A person who violates this section is
guilty of a crime of the fourth decree. [N.J.S.A.
The sponsors' statement to Assembly Bill No. 252
(A-252) indicates that one purpose of the sign restrictions is
to further the government's interest in reducing motor
vehicle accidents by eliminating distractions caused by
numerous signs. Facially, the statute also reflects a
concern for the welfare of minors. This concern is also
clear from the legislative history accompanying the
package of bills’ enacted to regulate sexually oriented
businesses, and the specific reference in N.J.S.A.
2C:34-7(c) requiring one sign to indics*te that the
establishment is "off limits to minors." Both aims are
appropriate under the State's police power and general
welfare responsibilities.
Our inquiry is limited when reviewing legislative
motive. See Michael M. v. Sonoma County Superior
Court, 450 U.S. 464, 469-470, 101 S. Ct. 1200,
1204-1205, 67 L. Ed. 2d 437, 443 (1981); Palmer v.
Thompson, 403 U.S. 217, 224, 91 S. Ct. 1940, 1944, 29
L. Ed. 2d 438, 444 (1971); Two Guys from Harrison. Inc.
v. Furman, 32 N.J. 199, 226 (1960): Board of Rec.
Commissioners Rutherford v. Rutherford, 166 N.J. Super.
476, 482-483 (App. Div. 1979); N.J. Turnpike Auth. v.
* Assembly Bills Nos. 252, 842 and Senate Bill No. 342.
A-70
Sisselman, 106 N.J. Super. 358, 367 (App. Div.), certif.
denied, 54 N.J. 565 (1969); City of Las Vegas v. Foley,
747 F.2d 1294, 1297 (9th Cir. 1984). On review, the
question is whether the Legislature has the power to act
and whether it exercised that mower for a permitted
purpose under the Constitution of this State and the United
States.
A-252 and Senate Bill No. 342 (N.J.S.A. 2C:33-12.2)°
were enacted as part of a legislative package addressing
different aspects of sexually oriented businesses.
While non-obscene sexual expression receives some
protection under the First Amendment, see, TK's Video,
Inc. v. Denton County, Tex., 24 F.3d 705, 707 (5th Cir.
1994): Mitchell v. Comm'n on Adult Entertainment Est.,
10 F. 3d 123, 130 (3rd Cir. 1993); see e.g., Barnes v.
Glen Theatre. Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L.
Ed. 2d 504 (1991) (live nude dancing in adult book store
and nightclub); Schad v. Borough of Mt. Ephraim, 452
U.S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981) (live
nude dancer in book store); Erznozik v. City of
Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d
4N.J.S.A. 2C:33-12.2 was the subject of a separate
appeal decided under docket number A-1729-95, captioned
Chez Sez VIII v. State, and reported at___—s'N..J. Super.
App. Div. 1997).
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125 (1975) (motion pictures portraying nudity), the
Supreme Court permits the targeting of sexually oriented
businesses for regulation because of the unique problems
they present to the community. Young v. American Mini
Theatres, 427 U.S. 50, 70-71, 96 S. Ct. 2440, 2452-2433,
49 L. Ed. 2d 310, 326 (1976); SDJ, Inc. v. City of
Houston, 837 F.2d 1268, 1273 (5th Cir. 1988); Mr. B's
Bar and Lounge v. City of Louisville, 630 S.W. 2d 564,
567 (Ky. App. 1982).
N.J.S.A. 2C:34-7(c) to an extent impacts speech. See
Baldwin v. Redwood, 540 F.2d 1360, 1366 (9th Cir.
1976), cert. denied, sub nom. Leipzig v. Baldwin, 431
U.S. 913, 97S. Ct., 2173, 53 L. Ed. 2d 223 (1977)
("Communication by signs and posters is virtually pure
speech"). Subsection (c) limits the number of signs on a
sexually oriented business to two, limits the size of one of
the signs to forty square feet and prescribes the content of
both signs.
Regulation of signs has long been an appropriate
subject of local zoning regulations. State v. Miller, 83 N.J.
406 (1980); United Advertising Corp. v. Metuchen, 42
N.J. 1 (1964): Napierkowski v. Gloucester Tp., 29 N.J.
481 (1959); Berg Agency v. Maplewood Tp., 163 N.J.
Super. 542 (Law Div. 1978); Schoen v. Hillside Tp., 155
A-72
N.J. Super. 286 (Law Div. 1977); Farrell v. Teaneck, 126
N.J. Super. 460 (Law Div. 1974); see also Bd. of Adj. v.
Osage Oil & Transp., Inc., 522 S.W. 2d 836, 837 (Ark.),
cert. denied and app. dism'd, 423 U.S. 941, 96 S. Ct. 350,
46 L. Ed. 2d 273 (1975) ("[I]t would be a waste of time
and effort to cite the cases" that say a municipality has the
power to regulate the "size and location of billboards and
other commercial signs."). Concurrent with the right to
operate a business within this State is the "right to maintain
a business sign on the premises subject to reasonable
regulations." United Advertising Corp. v. Borough of
Raritan, 11 N.J. 144, 150 (1952) (Brennan, J.)
(distinguishing billboards and on-premises signs) (emphasis
added). The Government may regulate and limit the content
of these advertisements. Lehman v. City of Shaker Heigats,
418 U.S. 298, 303, 94 S. Ct. 2714, 2717, 41 L. Ed. 2d
770, 777 (1974); SDJ, Inc. v. City of Houston, supra (837
F.2d at 1278); Borrago v. City of Louisville, 456 F. Supp.
30, 32 (W.D. Ky 1978).
N.J.S.A. 2C:34-7(c) addresses only commercial speech.
Subsection (c) of the statute was enacted in conjunction
with a wide variety of regulations aimed at ameliorating the
secondary effects of sexually oriented businesses. These
regulations prohibit the use of private booths, restrict the
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location of sexually oriented businesses within a community
and prescribe buffering standards. As we interpret N.J.S.A.
2C:34-7(c), its predominant purpose is to strike a balance
between the right of sexually oriented businesses to
reasonably announce their presence to potential patrons and
the legislative perception that sexually oriented signage on a
large scale creates distractions which interfere with traffic
safety. Subsection (c) also reinforces the statutory
prohibition against minor children frequenting these
businesses. Moreover, as we note infra, this section was
part of a legislative package aimed at other police power
concerns. We can find nothing in the legislative history to
suggest that the Legislature intended to curb political or
noncommercial speech, and as we read the statute it does
not.
While the Legislature may single out sexually oriented
businesses as a basis for regulating commercial speech, this
form of speech is protected under the First Amendment if it
is not misleading and pertains to lawful activity. Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New
York, 447 U.S. 557, 561, 100 S. Ct. 2343, 2348-2349, 65
L. Ed. 2d 341, 348 (1980); Matter of Anis, 126 N.J. 448,
456, cert. denied, sub nom. Anis v. N.J. Committee on
Attorney Advertising, 504 U.S. 956, 112 S. Ct 2303, 119
A-74
L. Ed. 2d 225 (1992). Even protected commercial speech
may be regulated if the regulation "directly advance[s] a
substantial government interest" and is "appropriately
tailored to that purpose." Matter of Anis, supra (126 N.J.
at 456) (citing Peel v. Attorney Disciplinary Comm., 496
U.S. 91, 100, 110 S. Ct. 2281, 2287, 110 L. Ed. 2d 83,
94 (1990)).
The regulation of signs and billboards has long been
recognized as serving the government's substantial interest
in traffic safety. See Met ia Inc. v. S iego, 453
U.S. 490, 509, 101 S. Ct. 2882, 2893, 69 L. Ed. 2d 800,
816 (1981); Railway Express Agency, Inc. v. New York,
336 U.S. 106, 109, 69 S. Ct. 463, 93 L. Ed. 533 (1949);
Arlington Cty. Republican Com. v. Arlington Cty. , 983 F.
2d 587, 594 (4th Cir. 1993). In fact, sign restrictions
directed specifically at sexually oriented businesses have
been upheld in the interest of preserving neighborhoods and
protecting minors. See SDJ, Inc. v. City of Houston, supra
(837 F.2d at 1280); Borrago v. City of Louisville, supra
(456 F. Supp. at 33). Such businesses have been found to
have deleterious effects on minors by promoting juvenile
delinquency, contributing to an overall increase in crime,
leading to the general deterioration of neighborhoods, and
lowering property values. See SDJ, Inc. v. City of
A-75
Houston, supra (837 F.2d at 1280): Borrago v. City of
Louisville, supra (456 F. Supp. at 31).
The Legislature was presumably responding to these
concerns in enacting the package of bills that included what
became N.J.S.A. 2C:34-7. See, Reniva v. Playtime
Theatres, Inc., 475 U.S. 41, 51, 106 S. Ct. 925, 931, 89
L. Ed. 2d 29, 40 (1986). On the legislative record,
objective lawmakers could reasonably conclude that
sexually oriented businesses are associated with higher
crime rates and cause a deterioration in the quality of
neighborhood life. By isolating these businesses through
dispersal, perimeter buffers, and signage restrictions
included in L. 1995, c. 230, they addressed these legitimate
concerns while still allowing these businesses to advertise
and operate.
A statute regulating commercial speech cannot be
substantially broader than necessary. Matter of Anis, supra
(126 N.J. at 456) (citing Peel v. Attorney Disciplinary
Comm., supra (496 U.S. at 100, 110 S. Ct. at 2287, 110
L. Ed. 2d at 94). But in addressing substantial needs, the
government must be afforded "a reasonable opportunity to
experiment with solutions to admittedly serious problems."
City of Pasco v. Rhine, 753 P. 2d 993, 997 (Wash. App.
A-76
1988)° (quoting Renton v. PlaytimeTheatres, Inc., supra
> In City of Pasco v. Rhine, 753 P.2d 993 (Wash. App.
1988), the court upheld a municipal ordinance which
restricted signs advertising sexually explicit movie theaters.
Id. at 994. Among the restrictions were:
4. There shall not be visible to passerby standing
anywhere outside the building any drawings,
pictures, and other illustrative material.
7 . Informational material on the building, including the
sign/reader board, shall be limited to the name of the
theater, ownership information, a designation or
identification that adult films are showing, the days
and hours of its operation, and the titles of any films
showing or coming attractions.
The ordinance was directed at advertising of sexually
explicit movie theaters. Id. at 994. The court adopted the
Young v. American Mini Theatres, Inc., supra (427 U.S.
at 70-71, 96 S. Ct. at 2452-2453, 49 L. Ed. 2d at 326),
rationale that the government can classify "based upon the
sexually explicit content of the activity or expression
involved, and differing treatment accorded such speech by
certain locational restrictions, was a valid time, place, and
manner restriction," and concluded that the sign
restriction's purpose was only to regulate commercial
speech such as advertising and consequently applied the
Metromedia Inc. v. San Diego, supra (453 U.S. at 507,
101 S. Ct. at 2892, 69 L. Ed. 2d at 815); Central Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York,
supra (447 U.S. at 566, 100 S. Ct. at 2351, 65 Ed. 2d at
351), test of commercial speech. Id. at 996.
A-77
(475 U.S. at 52, 106 S. Ct. at 931, 89 L.Ed. 2d at 41)
(quoting Young v. American Mini Theatres, Re ee
(427 U.S. at 71, 96 S. Ct. at 2452, 49 L. Ed. 2d at 327)).
There must be a "rational relationship between limiting
advertising ... and the substantial interest [the government]
has in mitigating the secondary impacts...." City of Pasco
y. Rhine, supra (753 P.2d at 997) (emphasis added).
N.J.S.A. 2C:34-7(c) is not substantially broader than
necessary. The two sign limitation is justified given the
undesirable secondary effects that such signs attract, e.g.,
higher incidents of crime, child delinquency. See Borrago,
supra (456 F. Supp. at 33); Dover News, Inc. v. City of
Dover, 381 A.2d 752, 755-56 (N.H. 1977). Indeed, the
Statute has "stopped short of fully accomplishing its ends. It
has not prohibited all [signs] .... " Metromedia, Inc. y. San
Diego, supra (453 U.S. at 508, 101 S. Ct., at 2898, 69 lL.
Ed., 2d at 815). See SDJ, Inc. v. City of Houston, supra
(837 F. 2d 1268); compare Basiardanes v. City of
Galveston, 682 F.2d 1203 (5th Cir. 1982) (total ban on
outside advertising impermissible). Not only does the
statute allow two signs to be posted but it in no way
proscribes other modes of advertisement. Additionally, the
statute does not inhibit in any way the material that may be
displayed within the store nor does it place any significant
A-78
limitation on what may be advertised upon the business's
two signs.°
Il.
The Law Division also held the statute void for
vagueness. The State took the position in the trial court that
an "identification sign" as designated in the statute
pertained to "name only" signs. The judge found that
"identification" could mean more than name only, and
therefore was impermissibly vague. On appeal the State
concedes that the word "identification" connotes more than
the name of the establishment.
The vagueness doctrine is premised on the notion that
the law must "give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that
he may act accordingly. "Grayned v. City of Rockford, 408
U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222,
227 (1972). A common sense approach is required in
© We would not construe the sign requirements to prohibit
affixing the usual street numbers on the property required
by federal postal regulations in addition to the two signs
specified in subsection (c), or even the posting of
temporary political signs. See State v. Mortimer, 135 N.J.
517, 533-534, cert. denied, U.S. 115 S.Ct. 440,
130 L. Ed. 2d 351 (1994); Town Tobacconist v.
Kimmelman, 94 N.J. 85, 104 (1983).
A-79
reading the legislative enactment, SDJ, Inc. v. City of
Houston, supra (837 F.2d at 1278), in terms of the persons
who may be subject to it, Town Tobacconist v.
Kimmelman, 94 N.J. 85, 118-120 (1983), and read it in
context with its intended purpose. State v. Cameron, 100
N.J. 586, 591 (1985). It is our duty to endeavor to
interpret a statute so that it may comply with constitutional
requirements.
As we interpret N.J.S.A. 2C:34-7(c), an identification
sign may communicate not only the name of the
establishment, but also the street number, telephone
number, operating hours and general nature of the
establishment in order to identify the business. Such a
requirement is not vague.
Affirmed.
I hereby certify that the
foregoing is a true copy of the
original on file in my office.
s/R. Emille Cox
Clerk
A-80
STEVEN S. POLINSKY, ESQ.
605 Broad Avenue, Suite 107
P.O. Box 177
Ridgefield, New Jersey 07657
(201) 943-1499
-- and -
PAUL J. CAMBRIA, JR., ESQ.
CHERIE L. PETERSON, ESQ.
BARRY NELSON
COVERT, ESQ.
LIPSITZ, GREEN,
FAHRINGER, ROLL,
SALISBURY & CAMBRIA,
LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333
ATTORNEYS FOR
PLAINTIFFS
HAMILTON AMUSEMENT
CENTER
t/a VIDEO EXPRESS, L.O.J.,
INC.
t/a THE EMPORIUM, PYNCO,
INC.,
t/a CAMELOT BOOK STORE,
and
CRESCENDO BOOK, INC.,
t/a CARNIVAL BOOKS,
Plaintiffs,
vs.
DEBORAH T. PORITZ,
Attorney General for the State of
SUPERIOR COURT
OF NEW JERSEY
LAW
DIVISION: MERCER
COUNTY
Docket No.
MER-L-3693-95
Civil Action
FINAL JUDGMENT
WITH
PERMANENT
INJUNCTION
A-81
New Jersey and
STATE OF NEW JERSEY,
Defendants.
THIS MATTER being opened to the Court upon the
return date of an Order to Show Cause by the Plaintiffs,
Hamilton Amusement Center, t/a Video Express; L.O.J.,
Inc. t/a The Emporium; Pynco, Inc. t/a Camelot Book
Store; and Crescendo Book, Inc. t/a Carnival Books: to
determine the constitutionality of and for certain injunctive
relief from enforcement of P.L. 1995, C. 230: Plaintiffs
appearing through counsel. Paul J. Cambria, Jr.. Barry
Nelson Covert and Steven S. Polinsky (Lipsitz, Green,
Fahringer, Roll, Salisbury & Cambria, LLP and Steven S.
Polinsky, attorneys) in the presence of the attorney for the
Defendants, Deborah T. Poritz, Attorney General of the
State of New Jersey (Janine L. Long, Deputy Attorney
General, appearing) and the Court having reviewed the
complaint, certifications and briefs of counsel filed in
support of and in opposition to the relief sought by the
Plaintiffs; and the Court having heard the arguments of
counsel;
AND IT APPEARING to the Court, after inquiring of
counsel for all parties, that no further proceedings are
required in this matter and that the Court may dispose of
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the matter as provided by R. 4:67-5;
AND IT FURTHER APPEARING to the Court that
Plaintiffs have satisfied the requirements for the relief
sought, as set forth at length in the Opinion of the Court
dated October 27, 1995, the contents of which are
incorporated herein by reference; and good cause existing
for the entry of this Order and Final Judgment.
IT IS on this 19" day of December, 1995
ORDERED and ADJUDGED that P.L. 1995, C. 230,
Sec. I (N.J.S. 2C:34-2.3c) be, and the same is, declared
unconstitutional; and it is further
ORDERED and ADJUDGED that the Defendants State
of New Jersey and Deborah T. Poritz, Attorney General of
the State of New Jersey are permanently restrained and
enjoined from enforcing the provisions of P.L. 1995, C.
230, Sec. 1 (N.J.S. 2C:34-2.3c); and it is further
ORDERED that a true copy of this Order shall be
served upon Counsel for all parties within 7 days from the
date of this Order.
s/ Hon. Philip S. Carchman
HON. PHILIP S. CARCHMAN, A.J.S.C.
A-83
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MERCER COUNTY
DOCKET NO. MER-L,3693-95
HAMILTON AMUSEMENT CENTER,
INC., t/a Video Express,
L.O.J., INC., t/a The Emporium,
PYNCO, INC.., t/a Camelot Bookstore,
and CRESCENDO BOOK, INC..,
t/a Carnival Books Civil Action
Plaintiffs,
v. AMENDED
OPINION
DEBORAH T. PORITZ, ATTORNEY
GENERAL FOR THE STATE OF
NEW JERSEY and THE STATE OF
NEW JERSEY
Defendants.
Decided: October 27, 1995
Paul J. Cambria, Jr., of the New York Bar, for plaintiffs
(Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria,
LLP, attorneys; Cherie L. Peterson and Barry Nelson
Covert, of the New York Bar, and Steven J. Polinsky, on
the briefs).
Janine L Long, Deputy Attorney General, for defendant
A-84
(Deborah T. Poritz, Attorney General of New Jersey,
attorney, Ms. Long, on the brief).
CARCHMAN, A.J.S.C.
This matter comes before the court on plaintiffs’
application for preliminary injunctive relief barring
enforcement of N.J.S.A. 2C:34-7c. This newly enacted
Statute restricts the number, size and content of signs that
may be posted outside sexually oriented businesses.
Plaintiffs, retailers offering a variety of adult materials
including books, magazines and videos for sale, filed a
declaratory judgment action seeking to have N.J.S.A.
2C:34-7c declared unconstitutional. For the reasons set
forth below, this court finds that plaintiff has established
the factors required for preliminary injunctive relief under
Crowe v. DeGioia, 90 N.J. 126 (1982) and, accordingly,
enters a preliminary injunction barring defendant from
enforcing the statute.
The facts in this case are neither complex nor disputed.
On August 16, 1995, the New Jersey Legislature acted to
amend N.J.S.A. 2C:34-2 effective September 16, 1995.
The amendment, eventually codified at N.J.S.A. 2C:34-7,
regulates exterior signage at "sexually oriented businesses, "
and provides, inter alia:
c. No sexually oriented business shall
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display more than two exterior signs,
consisting of one identification sign and
one sign giving notice that the premises
are off limits to minors. The
identification sign shall be no more that
40 square feet in size.
d. A person who violates this section is
guilty of a crime of the fourth degree.
[N.J.S.A. 2C:34-7c,d.]
Plaintiffs all deal in adult materials, and, through their
principals, have certified that they already employ signage
which far exceeds the limitations imposed by N.J.S.A.
2C:34-7¢ with regard to both number and size. With regard
to content, their signs include information such as the types
of products sold, the location of the entrance and hours of
business.
Plaintiffs challenge the constitutionality of the signage
restrictions under both the First Amendment of the United
States Constitution, and Article I, Paragraph 6 of the New
Jersey Constitution. Plaintiffs also assert the new law
violates their right to equal protection because it singles out
sexually oriented businesses and is underinclusive.
Plaintiffs finally urge that the law is unconstitutionally
vague because it fails to define "identification."
The New Jersey Supreme Court has addressed issues of
signage in State v. Miller, 83 N.J. 402 (1980). There, the
A-86
Borough of Milltown adopted an ordinance requiring a
permit before any sign greater than six square feet could be
placed in a residential area. The ordinance also specified
permissible types of messages. Political messages were not
included. Miller was convicted for violation of the
ordinance after displaying a four by eight foot sign on his
front lawn sarcastically welcoming prospective residents
",..TO THIS FLOOD AREA. GOOD LUCK!!
INFORMATION AVAILABLE." The Court struck down
the ordinance as unconstitutional.
The Court recognized the legitimate goals of the
ordinance were the maintenance of aesthetic charm in
residential neighborhoods and the preservation of property
values, pursued "under the zoning component of the police
power to promote general health, safety and welfare of the
community." Miller, 83 N.J. at 407. Despite the legitimacy
of the Borough's goals, the ordinance precluded a property
owner:
[F]rom communicating any other than an
extremely limited message by the use of
stationary signs on his or her property. In
particular, the ordinance's restrictions on the
manner and place of defendant's speech, so
severe as to amount to an absolute ban on
political speech, offend the First
Amendment. [Id. at 411.]
A-87
Because the ordinance so directly cuts to the
heart of the First Amendment, we decline to n
perform judicial surgery or to adopt a narrow
construction in an effort to save it. The ordinance
is unconstitutional on its face. (Id. at 414.]
Justice Clifford, speaking for the Court, recognized that
some regulation of signs may be permissible "if within
constitutional limits, " id. at 414, and offered comments on
the permissible scope of sign regulation:
To withstand the strict constitutional Scrutiny -
required here, the restriction on signs must be tied
to a compelling municipal interest as well as to the
uses permitted in a given zone...
...[The municipality] must show that the
particular restrictions on signs in fact relate to the
stated goal. [Id. at 414-155.]
While commercial speech is afforded some protection, a
local government may distinguish between commercial and
political speech in imposing restrictions on signs. Id.
It should be emphasized however, that
the regulation of sign content must be limited
to a general distinction between commercial
speech as tied to commercial uses permitted in
a given zone, and political speech which is
and must be permitted everywhere. Specific
types of speech or particular messages may
not be prohibited...
A-88
Limitations on the size of a sign may be
imposed if the allowable square footage is not
determined in an arbitrary manner. The size
limits, if any, must be large enough to permit
viewing from the road, both by persons in
vehicles and on foot. Inadequate sign
dimensions may strongly impair the free flow
of protected speech. [Id. at 416.]
Some of the principles articulated in State v. Miller
were echoed and embellished in Bell v. Stafford Tp., 110
N.J. 384 (1988). There, a local ordinance banned all
billboards in the municipality. The Court found there was
no nexus between a government interest and the broad
scope of the law. The ban unnecessarily restricted speech.
Consistent with the judicial predisposition
in favor of the validity of legislation,
courts will readily impute a proper
governmental purpose or interest as the
object to be served by the enactment, and,
if need be, infer an adequate basis to
support legislative regulations, even in the
absence of particular purposes or specific
findings being expressed by the
lawmakers. Hutton Park Gardens v. West
Orange Town Council, 68 N.J. at 564-65;
Burton v. Sills, 53 N.J. 86, 95 (1968).
Nevertheless, if an enactment directly
impinges on a constitutionally protected
right, the presumption in favor of its
validity disappears. Courts are for more
demanding of clarity, specificity and
- A-89
restrictiveness with respect to legislative
enactments that have a demonstrable
impact on fundamental rights. See State vy.
Cameron, 100 N.J. 586, 592 (1985):
Paton v. LaPrade, 469 F .Supp. 773, 778
(D.N.J. 1978) [Bell v. Stafford Tp.,
supra, 110 N.J. at 394-95. ]
The municipality has the burden of articulating tangible,
specific objectives of any ordinance that infringes on a
fundamental right. Id. However, that articulation need not
be in the ordinance itself: the municipality may offer
testimony at a court hearing held to determine the
constitutionality of the ordinance. Id.
Thus, an ordinance that substantially
curtails freedom of expression clearly
requires that the municipality shoulder the
burden of proving its constitutional
validity. The municipality must
satisfactorily demonstrate a legitimate
governmental interest that is to be served
by the enactment and demonstrate a
reasonable factual basis indicating that the
regulation advances that governmental
interest and is no more expansive than
necessary in advancing that interest. See
Metromedia, Inc. vy Diego, supra,
452 U.S. 490, 101 S.Ct. 2882, 69 L. Ed.
2d 800; State y. Miller, supra, 83 N.J.
402. [Bell v. Stafford Tp.., supra, 110
N.J. at 395.]
A-90
The Court indicated that even if it assumed there was a
legitimate governmental interest behind the billboard ban,
the township had failed to demonstrate a factual basis for
such a broad restriction as a municipal-wide ban, which
prevented all kinds of speech, including noncommercial.
The Court also found the township had failed to show that
viable alternative means of communication were left open
to Bell. Id. at 396-97.
The New Jersey Constitution furnishes an independent
basis for protecting individual rights of free speech and may
provide greater protection than that provided by the U.S.
Constitution. State v. Schmid, 84 N.J. 535, 553 (1980):
see also, Pruneyard Shopping Center, 447 U.S. 74, 79-80,
100 S.Ct. 2035, 2039-40, 64 L. Ed.2d 741, 752 (1980).
Even where the state and federal constitutional language is
identical, states have the right to construe a state
constitutional provision in accordance with what the courts
of that state perceive to be its plain meaning. State v.
Schmid, supra, 84 N.J. at 555.
The New Jersey Supreme Court has identified a "basis
for finding exceptional vitality in the New Jersey
Constitution with respect to individual rights of speech and
assembly" in the language employed. Id. at 557. Our
Constitution affirmatively recognizes these freedoms in
A-91
language more Sweeping in scope than that of the First
Amendment:
Every person may freely speak, write and
publish his sentiments on all subjects, being
responsible for the abuse of that right. No law
shall be passed to restrain or abridge the
liberty of speech or of the press. [N.J.Const.
(1947), Art. I, par. 6.]
The people have the right freely to assemble
together, to consult for the common good, to
make known their opinions to their
representatives, and to petition for redress of
grievances. [N.J.Const. (1947), Art. I. par.
18.]
The explicit affirmation of these fundamental rights in
the state constitution can be seen as a guarantee of those
rights, directly enforceable without implementing
legislation, and imposing upon the State government an
affirmative obligation to protect them. State v. Schmid,
supra, 84 N.J. at 558-59.
Commercial speech enjoys constitutional protection so
long as it is not misleading and pertains to legal activity.
Barry v. Arrow Pontiac, Inc.,100 N_J. 57, 72-73 (1985):
see also, Central Hudson Gas and Electric Corp. v. New
York Public Service, 447 U.S. 557, 100 S.Ct. 2343, 65 ey
Ed. 2d 341 (1980). However, it is accorded less protection
than other constitutionally-guaranteed expression. Barry v.
A-92
Arrow Pontiac, Inc., supra, 100 N.J. at 72-72; Central
Hudson Gas, supra, 447 U.S. at 563; 100 S.Ct. at 2350.
As the offspring of self-interest, commercial speech is
considered hardy and not particularly susceptible to being
crushed by overbroad regulation. Id. Nonetheless, where
commercial speech is neither misleading nor concerns
illegal activity, it is constitutionally protected and, under
challenge, it must be determined "whether the regulation
directly advances the governmental interest asserted, and
whether it is not more extensive than necessary to serve that
interest." Barry v. Arrow Pontiac, Inc., supra, 100 N.J. at
73 (quoting Central Hudson Gas, supra).
States and local governments may restrict the size,
location and content of signs without offending either the
New Jersey or federal Constitutions. Aesthetic
considerations, property value and traffic safety are among
the reasons a local government may choose to impose such
regulation. See e.g., State v. J.& J. Painting, 167
N.J.Super. 384 (App. Div. 1979); Schoen v. Township of
Hillside, 155 N.J. Super. 286 (Law. Div. 1977) (cited
approvingly in State v. Miller, supra). A government may
also restrict signage relating to sexually oriented businesses
to reduce or avoid adverse secondary effects of those
businesses. SDJ, Inc. v. City of Houston, 636 F.Supp.
A-93
1359, aff'd, 837 F.2d 1268 (5th Cir. 1988), cert. denied,
489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989).
As with other forms of protected speech, the government
seeking to regulate signage must articulate a legitimate
government interest to be advanced by the restrictions, and
the restrictions must be narrowly tailored to serve that
interest and must leave open other channels of
communication. State v. Miller, supra, SDJ, supra, 837
F.2d at 1273.
In SDJ, Houston adopted an ordinance requiring
permits for topless bars, restricting their proximity to
schools and churches, and to one another, and regulating
signage. The signage portion restricted the number, size,
and content of signs, and prescribed the type of lettering to
be used. Although the regulation severely restricted the
freedom of topless bars, the ordinance was upheld. Houston
held hearings which included expert testimony, and the
preamble to the ordinance cites protection of property
values, churches, schools, the mental health of minors who
come in contact with adult material on nightclub signs, as
well as the undesired criminal element attracted to such
places as reasons for the law. The Houston zoning authority
properly identified a legitimate state concern and tailored its
ordinance accordingly. The legislative history of N.J.S.A.
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2C:34-7c is less compelling. There were neither factual
hearings nor a factual basis to establish the legitimacy of
the asserted state interest or the existence of secondary
effects.
The limitation of signs at sexually oriented businesses to
"identification" only, excluding any other messages such as
political ones, supports the conclusion that the statute is
content-based. Because it is content-based, it is
presumptively unconstitutional. State v. Miller, supra, 83
N.J. 402.
The language of the statute is plain and simple and
disallows any signs containing messages other than
"identification" and a notice of inaccessibility to minors.
Plaintiffs’ attorney conceded at oral argument that
plaintiffs’ constitutional claim would be significantly
diminished if the prohibition of speech was not so broad as
to encompass all messages save "identification." The
restrictions at issue here are similar to those in State v.
Miller. Like the ordinance in Miller, this statute lists
limited permissible messages, effectively precluding all
others such as highly protected political ones.
To be found constitutional, the law must survive the
strict scrutiny prescribed in State v. Miller, supra, 83 N.J.
at 414-15. This court must determine whether the law was
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motivated by a compelling state interest. The legislative
record supplied to the court by defendant includes a
position report submitted by Concerned Women for
America supporting the then-proposed law. tHe report
suggests, and lists some statistical support, for the
proposition that violent, sexually explicit material
encourages violent crime, but it makes no mention of the
specific secondary effects allegedly targeted by the statute:
traffic hazard and potential harm to minors. The other
document supplied by defendant is a copy of the speech
made by the legislation's co-sponsor ("the sponsor") on
December 15, 1994. The text of her speech is as follows:
Thank you, Mr. Speaker. I rise today
to urge you to vote for the Assembly
Committee Substitute to A-252/842 and to
offer floor amendments.
The amendments would make this
committee substitute consistent with Senate
Bill 342, sponsored by Senator Gormley.
This legislation regulates the
operations of sexually oriented businesses,
such as "juice bars." These establishments
would not be allowed to operate within
1,000 feet of any school, playground, park
or place of worship, or within 1,000 feet of
any residential area.
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This bill does not affect the right of
municipalities to adopt zoning ordinances
establishing so-called "combat" zones for the
clustering of sexually oriented businesses.
Additionally, the bill mandates the
external appearance of sexually oriented
businesses be surrounded by 50-foot wide
perimeter buffers made up of plantings, and
limits the number of signs.
This 50 foot distance restriction
would help to preserve neighborhoods and to
prevent urban blight.
The buffer plantings would help to
establish a distance between businesses and
minors who may be in the area. These
would also eliminate embarrassment by
citizens who might be walking by.
Sign restrictions would be advantageous
multiple signs di t motori
cause accidents.
This bill also addresses the use of
prohibited enclosures or private booths for
the purpose of viewing pornographic motion
pictures, and other photographic
representations which depict or describe
sexual activity. This prohibition would help
to prevent sexually transmitted diseases.
Violators would be guilty of a crime of
the fourth degree, which is punishable by a
term of imprisonment of up to 18 months or
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a fine of up to $7,500 or both.
We need to put the brakes on these sorts
of element [sic] in all municipalities in the
State of New Jersey. Parents are concerned
about their children being exposed to
these types of perverted establishments and
their sordid activities.
Owners of these businesses need to
know that they will not be able to break
the law and get away with it.
I ask for your favorable consideration
of this bill and the amendments. Thank
you. [Emphasis added. ]
Beyond these two documents, defendant asserted at oral
argument, there may have been some testimony in the
legislative process, but no notes or recording was made,
and no one has been identified who can remember what was
said, or when.
This court finds that defendant has failed to articulate a
compelling state interest. No mention is made of the
Concerned Women of America's position report in the
legislative materials and it is unclear to what extent, if any,
this report influenced the legislators. The sponsor's speech
largely describes the proposed legislation, but does not
clearly articulate any purpose that could be
attributable to the legislature as a whole. Although her
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speech does refer to the protection of minors and traffic
safety, and these are unquestionably significant state
interests that could support regulation of signage, there are
no findings to support the proposition that signs at sexually
oriented businesses are a significant traffic hazard or that
these signs are of particular concern where the health and
welfare of minors is concerned.
The sponsor's speech, in its reference to "put[ting] the
brakes on these sorts of element[s]," suggests that the
objective of the statute is not to deal with secondary effects,
but rather to eliminate sexually oriented businesses. This
court will not project the sponsor's speech onto the
legislature as a whole, with regard to either permissible or
impermissible objectives of state government. One
legislator's speech may not reflect the motivations of the
legislature as a whole. "What motivates one legislator to
make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork." City of
Renton v. Playtime Theatres, 475 U.S. 41, 48, 106 S.Ct.
925, 929, 89 L. Ed.2d 29 (1986).
The statute suffers from other infirmities as well which
are made more apparent by the lack of a factual predicate.
The dimensional restrictions articulated in the statute are
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arbitrary, in contravention of the New Jersey Supreme
Court's directive contained in State v. Miller, supra, 83
N.J. at 414. The record is devoid of any suggestion that the
legislature considered the issue of adequate visibility of
plaintiff's signs prior to enactment. Miller plainly requires
such an inquiry. Under the statute, a non-sexually oriented
retailer of books, magazines and videos could display signs
of unlimited size, number and content whereas the sexually
oriented retailer next door, displaying an identification sign
with its name only, would be limited to one sign of forty
square feet. Such a result is inconsistent with Miller.
While a governing body may identify legitimate reasons
to enact laws similar to the one at issue here, none has been
demonstrated in this case.
[W]e intrude into the regulatory decision
process to the extent that we insist upon
objective evidence of a purpose - a study
or findings. Insisting upon findings
reduces the risk that a purported effort to
regulate effect is a mask for regulation of
content. [SDJ, supra, 837 F.2d at 1274.]
Even if this court determined that N.J.S.A. 2C:34-7c is
content-neutral, the statute would fail. City of Renton v.
Playtime Theatres, supra, held that "zoning ordinances
designed to combat the undesirable secondary effects of
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such business [that purvey sexually explicit materials] are to
be reviewed under the standards applicable to
"content-neutral" time, place and manner regulations." Id.,
106 S.Ct. at 929. This test requires a court determine
whether (1) the regulation is justifiable without reference to
the content of the regulated speech, (2) whether the
regulation is narrowly tailored to serve a substantial
governmental interest, and (3), whether the regulation
leaves open ample alternative means of communication.
City of Renton, supra, 475 U.S. at 47-51, 106 S.Ct. at
928-31. Assuming the law was enacted to protect against
the secondary effects of sexually oriented businesses,
N.J.S.A. 2C:34-7c is not narrowly tailored to serve those
interests. A ban of all communication save "identification"
is not necessary to preserve traffic safety, especially on a
state-wide basis; moreover, defendant asserted at oral
argument that "identification," which is undefined in the
Statute, means "name only." While there are legitimate
questions as to defendant's interpretation of that statute,
such an interpretation would unduly suffocate speech.
In Basiardanes v. City of Galveston, 682 F.2d 1203
(Sth Cir. 1982), the Fifth Circuit struck down an ordinance
which had a similarly broad effect as the one before this
court, as interpreted by defendant. The city enacted a total
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prohibition on advertising sexually oriented businesses in
any public place. Basiardanes posted a sign indicating his
intent to bring adult entertainment to downtown Galveston.
“The sign had borne nothing more than the legend ' Adult
Theater.'" Id. at 1218. The trial court heard testimony that
indicated a municipal goal of shielding the public from
lurid advertisement, and while the court acknowledged the
importance of that goal, particularly where minors are
concerned, it concluded the interest was not served
narrowly. "The ordinance, as written, prohibits even a
simple sign announcing the existence of an adult theater."
Id. at 1219. "Such a restraint goes far beyond the City's
legitimate interest." Id. Notably, in Berg Agency v.
Township of Maplewood, 163 N.J. Super. 542 (Law Div.
1978), allowing realty "for sale" signs oniy without the
realtor's name was too restrictive.
To the extent "identification" means something other
than "name only," the statute is too vague. This court will
not engage in creative construction of the term in order to
save the statute.
There are no adequate alternative avenues of
communications open to plaintiffs for either political speech
or commercial. In State v. Miller, supra, 83 N.J. at 413,
avenues other than signage were considered inadequate for
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political speech, and they are in this case as well. The
alternatives suggested by defendant are inadequate.
In sum, N.J.S.A. 2C:34-7c proscribes ail messages
except identification and exclusion of minors. It is
content-based and presumptively unconstitutional.
Defendant has failed to demonstrate that it was enacted to
further a compelling state interest, or that it was narrowly
tailored. This court finds N.J.S.A. 2C:34-7c
unconstitutional under the New Jersey Constitution, Article
I, paragraph 6.
Under Crowe v. DeGioia, 90 N.J. 126 (1982) plaintiffs
are entitled to the injunctive relief they seek if (1) they
demonstrate a probability of eventual success on the merits
of the claim, (2) there is a threat of immediate and
irreparable harm to them, and (3) the relief will not create
an undue hardship on defendant. Plaintiffs have
demonstrated a probability of success on the merits, and
maintaining the status quo will not create an undue hardship
on the State. Free speech rights are so important that little
or no additional showing is needed to find a threat of
irreparable harm. New York Times Co. v. United States,
403 U.S. 713, 81 S.Ct. 2140, 29 L. Ed.2d 822 (1971).
Plaintiff is hereby preliminarily enjoined from enforcing
N.J.S.A. 2C:34-7c.
A-103
STEVEN POLINSKY, ESO.
P.O. Box 177
605 Broad Avenue, Suite 107
Ridgefield, New Jersey 07657
(201) 943-1499
PAUL J. CAMBRIA, JR., ESQ.,
CHERIE L. PETERSON, ESQ. and
BARRY NELSON COVERT, ESQ.
LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY &
CAMBRIA, LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333
Pending Application of their
Admission Pro Hac Vice
Attorneys for Plaintiffs
HAMILTON AMUSEMENT
CENTER t/a VIDEO EXPRESS,
L.O.J., INC.t/a THE EMPORIUM,
INC. t/a CAMELOT BOOK
STORE, and CRESCENDO BOOK,
INC., t/a CARNIVAL BOOKS,
Plaintiffs,
vs.
DEBORAH T. PORITZ,
ATTORNEY GENERAL FOR THE
STATE OF NEW JERSEY and THE
STATE OF NEW JERSEY,
Defendants.
SUPERIOR
COURT OF NEW
JERSEY LAW
DIVISION :
MERCER
COUNTY
Docket No.
Civil Action
COMPLAINT
FOR
DECLARATORY
AND
INJUNCTIVE
RELIEF
]
A-104
Plaintiffs, by and through their attorneys, for their
complaint against the defendants above-named, allege upon
information and belief, as follows:
INTRODUCTION
1. Plaintiffs commence this action for declaratory and
injunctive relief to restrain and enjoin defendants, their agents
and employees, from enforcing recent legislation amending
New Jersey Statutes 2C:34-2 and supplementing Chapter 34 of
Title 2C of the New Jersey Statutes which inter alia, prohibits
"sexually oriented businesses" from displaying more than two
exterior signs, consisting of one "identification" sign no more
than forty square feet in size and one sign giving notice that
the premises are off limits to minors, in violation of plaintiffs'
rights guaranteed by the First and Fourteenth Amendments to
the United States Constitution and Article I, Section 6 of the
New Jersey Constitution (the statutory amendments are
annexed as Exhibit A).
JURISDICTION
2. This action is commenced pursuant to the authority of
Title 42, United States Code, Section 1983 and New Jersey
Statutes 2A:16-52 and 2A:16-53, as the amendments violate
A-105
plaintiffs’ rights to freedom of speech guaranteed by the First
and Fourteenth Amendments to the United States Constitution
and Article I, Section 6 of the New Jersey Constitution and
plaintiffs’ right to equal protection of law guaranteed by the
Fourteenth Amendment to the United States Constitution.
PARTIES
3. Plaintiff, Hamilton Amusement Center t/a Video
Express is a New Jersey corporation operating a retail sales
establishment at 1030 State Highway, Route 33, Hamilton
Township, New Jersey 08690. The business offers for sale a
variety of magazines, books and videotapes, including adult
materials.
4. Plaintiff, L.O.J., Inc. t/a The Emporium is a New
Jersey corporation operating a retail sales establishment at 245
Route 130/206, Bordentown, New Jersey 08505. The business
offers for sale a variety of magazines, books and videotapes,
including adult materials.
5. Plaintiff, Pynco, Inc. t/a Camelot Book Store is a New
Jersey corporation operating a retail sales establishment at
1103 U.S. 130 North Burlington, New Jersey 08016. The
business offers for sale a variety of magazines, books and
videotapes, including adult materials.
6. Plaintiff, Crescendo Book, Inc. t/a Carnival Books is a
A-106
New Jersey corporation operating a retail sales establishment
at 705 Crescent Boulevard, Brooklawn, New Jersey 08030.
The business offers for sale a variety of magazines, books and
videotapes, including adult materials.
7. Defendant, Deborah T. Poritz, is the Attorney General
for the State of New Jersey, and, as such, is responsible for
the enforcement of the laws of the State of New Jersey.
8. Defendant State of New Jersey is the entity which
enacted the statute challenged by this action.
9. At all times relevant hereto, defendants have acted under
color of statute, regulation, custom or usage of the State of
New Jersey.
ALLEGATIONS
10. On or about August 16, 1995 the State of New Jersey
enacted amendments to New Jersey Statutes 2C:34-2 entitled
“Obscenity for Persons 18 Years of Age or Older" and
supplementing Chapter 34 of Title 2C of the New Jersey
Statutes by adding 2C:34-2.2 and 2C:34-2.3. These
amendments and additions provide that no sexually oriented
business shall display more than two exterior signs, consisting
of one identification sign, no more than forty square feet in
size, and one sign giving notice that the premises are off limits
to minors. N.J.S.A. 2C:34-2.3c.
11. The statute fails to define what is covered by the
A-107
term “identification sign".
12. A "sexually oriented business" is defined
2C:34-2.2a(l) as:
(a)
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
anatomica! 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 "specific
sexual activity" or specified anatomical area"
or instruments, devices, or paraphernalia
which are designed for use in connection with
a "specified sexual activity"; or
A commercial establishment which regularly
features live performances characterized by
the exposure of a'specified anatomical area"
A-108
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".
13. "Specified anatomical area" is defined as "[ | Jess than
completely and opaquely covered human genitals, pubic
region, buttock or female breasts below a point immediately
above the top of the areola"; or "[h]uman male genitals in a
discernibly turgid state, even if covered". 2C:34-2.2c(l) and
(2).
14. "Specified sexual activity" is defined as "(t]he fondling
or other erotic touching of covered or uncovered human
genitals, pubic region, buttock or female breast"; or "[a]ny
actual or simulated act of human masturbation, sexual
intercourse or deviate sexual intercourse". 2C:34-2.2d(l) and
(2).
15. A person who violates this statute is guilty of a —
crime of the fourth degree.
16. At all times relevant hereto, plaintiffs have two or
more than two signs upon their premises, and the aggregate
area of those signs exceeds forty square feet.
17. By virtue of this statute, all non-
identification" signs
A-109
are completely banned. In addition, the statute bans more than
one "identification" sign and any identification sign which is
larger than forty square feet.
18. This prohibition on signs is violative of plaintiffs’
constitutional rights guaranteed by the First and Fourteenth
Amendments to the United States Constitution and Article I,
Section 6 of the New Jersey Constitution.
19. Specifically, the statute's bar to all nonidentification
signs, more than one "identification" sign, and identification
signs exceeding forty square feet operates as an
unconstitutional content-based restriction on protected speech
which fails to promote a compelling state interest and does not
employ the least restrictive means to further any such interest.
20. Neither are such prohibitions narrowly tailored to
further any substantial governmental interest and any
governmental interest allegedly advanced is not factually
supported by the legislative record.
21. Moreover, the statute fails to provide alternative
avenues of communication as it wholly bans a recognized
forum of expression by prohibiting all non-identification signs
and further fails to provide alternative avenues of
communication by placing burdensome restrictions on
identification signs which stifle the free flow of necessary
truthful information.
A-110
22. Consequently, the statute impermissibly restrains
constitutionally protected speech and virtually destroys an
entire mode of on premises communication.
FIRST COUNT
23. Plaintiffs incorporate by references paragraphs "1"
through "22" of this complaint as if herein set forth at
length.
24. New Jersey Statutes 2C:34-2 bans the communication
of constitutionally-protected non-identification messages via
signs located upon sexually oriented businesses in violation of
plaintiffs’ rights guaranteed by the First and Fourteenth
Amendments to the United States Constitution and Article
I, Section 6 of the New Jersey Constitution.
SECOND COUNT
25. Plaintiffs incorporate by references paragraphs "1"
through "24" of this complaint as if herein set forth at
length.
26. New Jersey Statutes 2C:34-2 improperly burdens
plaintiffs’ speech by prohibiting the display of any sign in
excess of forty square feet and by limiting plaintiffs to the
display of one identification sign and one sign giving notice
that the premises are off limits to minors, in violation of
A-111
plaintiffs' rights guaranteed by the First and Fourteenth
Amendments to the United States Constitution and Article I,
Section 6 of the New Jersey Constitution.
THIRD COUNT
27. Plaintiffs incorporate by references paragraphs "1"
through “26" of this complaint as if herein set forth at
length.
28. New Jersey Statute 2C:34-2 violates plaintiffs’ right to
equal protection of the laws guaranteed by the Fourteenth
Amendment to the United States Constitution by
impermissibly treating the speakers of one type of
constiutionally-protected speech different from speakers of
other types of protected expression.
FOURTH COUNT
29. Plaintiffs incorporate by references paragraphs
"1" through "28" of this complaint as if herein set forth at
length.
30. New Jersey Statutes 2C:34-2 operates as an
unconstitutional prior restraints in violation of plaintiffs’
rights guaranteed by the First and Fourteenth Amendments
to the United States Constitution and Article I, Section 6 of
the New Jersev Constitution.
A-112
FIFTH COUNT
31. Plaintiffs incorporate by references paragraphs "1"
through "30" of this complaint as if herein set forth at
length.
32. New Jersey Statutes 2C:34-2 is impermissibly
underinclusive in violation of plaintiffs' rights guaranteed by
the First and Fourteenth Amendments to the United States
Constitution and Article I, Section 6 of the New Jersey
Constitution in that it restricts speech on the basis of the signs'
message.
SIXTH COUNT
33. Plaintiffs incorporate by references paragraphs "1"
through "32" of this complaint as if herein set forth at
length.
34. New Jersey Statutes 2C:34-2 is unconstitutionally
vague in that it fails to provide proper notice of the conduct
prohibited by the statute and encourages arbitrary and
discriminatory enforcement in violation of plaintiffs’ rights
guaranteed by the Fourteenth Amendment to the United States
Constitution as it fails to define the term "identification sign".
SEVENTH COUNT
35. Plaintiffs incorporate by references paragraphs "1
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through "34" of this complaint as if herein set forth at
length.
36. Enforcement of New- Jersey Statutes 2C:34-2 will
result in irreparable harm to plaintiffs if not immediately
enjoined in that plaintiffs' freedom of speech guaranteed by
the First and Fourteenth Amendments to the United States
Constitution and Article 1, Section 6 of the New Jersey
Constitution will be burdened, restricted and suppressed.
WHEREFORE, plaintiffs respectfully demand judgment
as follows:
(1) Declaring that New Jersey Statutes 2C: 34-2
violates the United States and New Jersey Constitutions;
(2) Preliminarily and permanently enjoining and
restraining defendants, their agents and employees from
enforcing N.J.S.A. 2C:34-2;
(3) Granting plaintiffs the costs and disbursements
associated with this action;
(4) Granting plaintiffs reasonable attorneys’ fees
pursuant to 42 U.S.C. §1988; and
(5) Granting such other and further relief as this
Court may deem just and proper under the circumstances.
DATED: September 13, 1995
A-114
Respectfully submitted,
s/ Steve Polinsky
STEVEN POLINSKY, ESQ.
P.O. Box 177
605 Broad Avenue, Ste. 107
Ridgefield, NJ 07657
(201) 943-1499
PAUL J. CAMBRIA, JR., ESQ.,
CHERIE L. PETERSON, ESQ.
and BARRY NELSON
COVERT, ESQ.
LIPSITZ, GREEN,
FAHRINGER, ROLL,
SALISBURY & CAMBRIA
LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333
Pending Application of their
Admission Pro Hac Vice
Attorneys for Plaintiffs
A-115
CERTIFICATION PURSUANT TO R. 4:5-1
STEVEN S. POLINSKY hereby certifies:
1. I am local counsel for the Plaintiffs on the
Complaint in the within cause of action.
2. Upon information and belief, the matter in controversy
is not the subject of any other action pending in any Court or
of a pending arbitration proceeding; and no other action or
arbitration proceeding is contemplated. At this time the
Defendant knows of no other party who should be joined in
the action.
I certify that the foregoing statements made by me are true.
I am aware that if any of the statements made by me are
willfully false, I am subject to punishment.
s/Steven S. Polinsky
STEVEN S. POLINSKY
DATE: September 13, 1995
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.