SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3176-95T3
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.
__________________________________________________
Argued: January 6, 1997 - Decided: February
28, 1997
Before Judges Petrella, Landau and Kimmelman.
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 statute's restrictions on size,
number and content.See footnote 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.See footnote 2 The statute passes constitutional
muster, and hence we reverse.
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 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 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 billsSee footnote 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 (1960); Board of Rec. Commissioners,
Rutherford v. Rutherford,
166 N.J. Super. 476, 482-483 (App. Div.
1979); N.J. Turnpike Auth. v. 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 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)See footnote 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); Erznozik 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. 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 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
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 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 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 Metromedia Inc. v. San Diego,
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 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 Renton 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. 1988)See footnote 5 (quoting Renton v. Playtime Theatres, Inc., supra (475 U.S. at 52, 106 S. Ct. at 931, 89 L. Ed. 2d at 41) (quoting Young v. American Mini Theatres, Inc., supra (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 v. 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. v. San Diego, supra (453 U.S. at
508, 101 S. Ct. at 2898, 69 L. 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 limitation on what may be
advertised upon the business's two signs.See footnote 6
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 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.
Reversed.
Footnote: 1Apparently, plaintiffs' signs advertise the type of
products sold, operating hours and location of entrances.
Footnote: 2As 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. ___,
115 S. Ct. 2371, 2375-2376,
132 L. Ed.2d 541, 549 (1995); Association of Nat. Advertisers, Inc.
v. Lungren,
44 F.3d 726, 731 (9th Cir. 1994), cert. denied, ___
U.S. ___,
116 S. Ct. 62,
133 L. Ed.2d 25 (1995).
Footnote: 3Assembly Bills Nos. 252, 842 and Senate Bill No. 342.
Footnote: 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 ___ N.J. Super. ___ (App. Div. 1997).
Footnote: 5In 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 L. Ed. 2d at 351), test of commercial speech. Id. at 996. Footnote: 6We 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).