Hamilton Amusement Center, Inc. v. Poritz

Page 230

298 N.J.Super. 230

689 A.2d 201

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 Plaintiffs-Respondents, v. Deborah PORITZ, Attorney General for the State of New Jersey, and the State of New Jersey, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1997.

Decided Feb. 28, 1997.

Larry R. Etzweiler, Senior Deputy Attorney General, for defendants-appellants (Peter Verniero, Attorney General, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel; Mr. Etzweiler, on the brief).

Paul J. Cambria, Jr., Buffalo, NY, of the New York Bar, for plaintiffs-respondents (Steven S. Polinsky, Ridgefield, of the New Jersey Bar, attorney and on the brief; Mr. Cambria, Jr., Cherie L. Peterson, and Barry Nelson Covert, Buffalo, NY, of the New York Bar, also on the brief).

Before Judges PETRELLA, LANDAU and KIMMELMAN.

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 statute's restrictions on size, number and content. ¹ Plaintiffs 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 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 standard. ² 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 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 subsection 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 degree.

[ N.J.S.A. 2C:34-7(c),(d) ].

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 ³ enacted to regulate sexually oriented businesses, and the specific reference in N.J.S.A. 2C:34-7(c) requiring one sign to indicate 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, 160 A.2d 265 (1960); Board of Rec. Commissioners, Rutherford v. Rutherford, 166 N.J.Super. 476, 482-483, 400 A.2d 95 (App.Div.1979); N.J. Turnpike Auth. v. Sisselman, 106 N.J.Super. 358, 367, 255 A.2d 810 (App.Div.), certif. denied, 54 N.J. 565, 258 A.2d 16 (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 power 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) ⁴ 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); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 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, 2452-2453, 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, 97 S.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. 402, 416 A.2d 821 (1980); United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 198 A.2d 447 (1964); Napierkowski v. Gloucester Tp., 29 N.J. 481, 150 A.2d 481 (1959); Berg Agency v. Maplewood Tp., 163 N.J.Super. 542, 395 A.2d 261 (Law Div.1978); Schoen v. Hillside Tp., 155 N.J.Super. 286, 382 A.2d 704 (Law Div.1977); Farrell v. Teaneck, 126 N.J.Super. 460, 315 A.2d 424 (Law Div.1974); see also Bd. of Adj. v. Osage Oil & Transp., Inc., 258 Ark. 91, 92-93, 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, 93 A.2d 362 (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 Heights, 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 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...