Bonito v. Mayor and Council of Bloomfield Tp.

• Decision Date: 03 August 1984
• Citation: 484 A.2d 1319,197 N.J.Super. 390
• Parties: Samuel BONITO t/a Electric Circuit, Plaintiff, v. MAYOR AND COUNCIL OF the TOWNSHIP OF BLOOMFIELD, Defendants.
• Court: New Jersey Superior Court

Page 390

197 N.J.Super. 390

484 A.2d 1319

Samuel BONITO t/a Electric Circuit, Plaintiff, v. MAYOR AND COUNCIL OF the TOWNSHIP OF BLOOMFIELD, Defendants.

Superior Court of New Jersey, Law Division Essex County.

Decided Aug. 3, 1984.

Richard W. Vallario, Nutley, for plaintiff.

Vincent A. Pirone, Bloomfield, for defendants (John A. Bukowski, Jr., Bloomfield, attorney).

VILLANUEVA, J.S.C.

This is an action in lieu of prerogative writs by the owner and operator of a video game arcade to compel the mayor and township council of the Township of Bloomfield to issue a license for an additional 20 video game machines and to have the court declare void and unconstitutional that part of the ordinance which requires certain video arcades to employ off-duty police officers as security guards during specified hours.

The issues presented are:

(1) Was the township's denial of plaintiff's application to increase the number of video machines in his arcade arbitrary, capricious, unreasonable and unlawful?

(2) Is the ordinance requiring a security guard at certain video arcades constitutional and a proper exercise of the township's police power?

(3) May the township require security personnel at video arcades to be off-duty police officers?

The court holds that there was no factual basis for the township to deny plaintiff's application for additional video machines nor is there anything in the ordinance to limit the number of plaintiff's video games, except compliance with all township codes.

The court finds further that the requirement for security personnel in specified instances is a valid exercise of a municipality's police power, but to require only "off-duty police officers" to be used is arbitrary, capricious and unreasonable.

Plaintiff Samuel Bonito is the owner of a video arcade trading as "The Electric Circuit" at 619 Bloomfield Avenue, Bloomfield. He has operated this business for over two years. His license to operate 20 video games has been renewed for each calendar year. Said use is permitted by Bloomfield ordinance no. 1904 in a B-1 zone where plaintiff's arcade is located.

On July 22, 1983, plaintiff applied to the mayor and council for an additional 20 video games. On September 13, 1983, the township clerk notified the plaintiff that the mayor and council had denied his application to add an additional 20 video game machines, citing a large number of police incident reports allegedly attributable to plaintiff's arcade.

Plaintiff requested and was granted a hearing before the township council on December 5, 1983. This hearing was followed by a resolution on December 19, 1983 at which time the township council affirmed the denial of plaintiff's application. The decision to deny plaintiff's application followed testimony by Bloomfield Chief of Police Anthony Castagno that there had been a series of incidents, mostly involving stolen bicycles, allegedly taken from the exterior of plaintiff's arcade. Specifically, there were 11 reports of stolen bicycles, one report of loitering and one report of a break and entry into plaintiff's business. Of the stolen bicycle incidents, eight occurred in 1982 and three in 1983. Chief Castagno admitted that there were no reports of any disturbances within plaintiff's business premises and that he had no information that other residences or businesses in the area of The Electric Circuit had complained to the township about any loitering problems at plaintiff's business.

Plaintiff also testified at the hearing that several other stores, namely, a pizzeria, stationery and car repair shop are also located at 619 Bloomfield Avenue, that there had never been an occasion for the police to come to his premises as a result of any disturbance involving his customers and, lastly, that there had never been any violations filed by the municipal authorities concerning the conduct of his business.

The township, after the hearing, passed a resolution denying the application for an additional 20 video games, stating that: "The Township Council finds that an extraordinary number of police incident reports have been filed relating to the subject premises, and, the applicant has failed to maintain good and safe conduct in and about the premises."

Plaintiff filed this action on January 30, 1984 to compel the mayor and council to issue a license to him for an additional 20 video games, contending that the denial of his application was arbitrary, unreasonable and unlawful, and that there was no evidence justifying the township council's finding that he had not maintained good and safe conduct at his premises.

Thereafter, an amendatory ordinance no. 14-101 was enacted by the township, which required that video arcades, licensed to operate 15 or more machines, must provide "an off-duty police officer" as a security guard during certain hours of operation.

Plaintiff, by amended complaint, further claims that the new ordinance is arbitrary, capricious and unreasonable, and is an abuse of the police powers of the township. Therefore, plaintiff seeks to have this ordinance declared unconstitutional.

I. Denial of Plaintiff's Application for Additional Video Games

Plaintiff's application for an additional 20 video games at his video arcade was initially denied without a hearing by the mayor and township council, in a letter from the township clerk, which informed plaintiff that the denial was based on the "large number of police incident reports received from the location," referring to 619 Bloomfield Avenue, the address of the arcade.

This denial was affirmed by resolution of the mayor and council, premised on the "extraordinary number of police incident reports" filed relating to the premises and because plaintiff had "failed to maintain good and safe conduct in and about the premises." The resolution followed a hearing wherein Bloomfield Police Chief Castagno testified about 13 complaints allegedly concerning the premises: 11 stolen bicycle incidents, one loitering incident and one breaking and entering into the arcade; nine of the 13 incidents occurred between May 14, 1982 and September 15, 1982 and the other four took place in July and August 1983.

Chief Castagno stated that no reports were made concerning the alleged disturbances and no violations were ever filed against the arcade or its owner. In addition, the incidents involving stolen bicycles occurred outside 619 Bloomfield Avenue, which includes three other stores besides plaintiff's arcade.

Plaintiff also testified at the hearing that there had been no disturbances at the arcade, no fighting, and no municipal violations brought against the arcade.

The application was denied, allegedly due to the number of police incidents and plaintiff's conduct of his business.

The township adopted ordinance no. 13-233 on December 14, 1981, to regulate the business of amusement devices. The denial of plaintiff's application by the mayor and council, was made pursuant to such regulatory power.

The number of machines is limited only by section XI of the ordinance which provides:

C. NUMBER OF MACHINES

The maximum number of mechanical amusement devices per establishment shall be two (2).

However, the applicant may in its application, set forth reasons why additional machines would not constitute a violation of the purpose and objective of this Ordinance. In no event, however, may an establishment exceed four (4) machines unless said establishment is located in the B-1 Zone as defined in the Zoning Ordinance of the Township of Bloomfield.

The number of machines permitted in an establishment in a B-1 Zone shall be restricted to the extent that the number of machines shall not violate any of the provisions of the Building Code, Fire Code, Health Code or other applicable codes of the Township of Bloomfield.

The governing bodies of municipalities are given the power to make, amend, repeal and enforce ordinances regarding a variety of subjects, including "theatres, cinema ... and all other places of public amusement." N.J.S.A. 40:52-1. This power to regulate places of public amusement is granted under the municipality's police power to protect the general health, welfare and safety of its citizens. Trombetta v. Atlantic City, 181 N.J.Super. 203, 226, 436 A.2d 1349 (Law Div.1981), aff'd 187 N.J.Super. 351, 454 A.2d 900 (App.Div.1982); N.J.S.A. 40:48-2; Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564, 350 A.2d 1 (1975); Quick Check Food Stores v. Springfield Tp., 83 N.J. 438, 448, 416 A.2d 840 (1980).

Municipal police power, however, can be exercised only in those areas where regulation is needful for the common good, that is, public health, safety, morals or general welfare, and then only by reasonable means substantially connected with the public interest designed to be advanced. Mogelefsky v. Schoem, 90 N.J.Super. 49, 57, 216 A.2d 236 (App.Div.1966), mod. on other grounds 50 N.J. 588, 236 A.2d 874 (1967).

Thus, despite the fact that a municipal ordinance may be within the permissible objectives of the police power, all police power legislation is subject to constitutional limitation that it not be unreasonable, arbitrary or capricious, and that means selected via such legislation shall have real and substantial relation to the object sought to be attained. Gabe Collins Realty, Inc., v. City of Margate City, 112 N.J.Super. 341, 346-347, 271 A.2d 430 (App.Div.1970); Toms River Publishing Co. v. Borough of Manasquan, 127 N.J.Super. 176, 316 A.2d 719 (Ch.Div.1974). The sweep of the police power is coextensive with the public need, Id. at 181, 316 A.2d 719, and the exercise of such power must be reasonable and free from arbitrariness. Sabato v. Sabato, 135 N.J.Super. 158, 168, 342 A.2d 886 (Law Div.1975); N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162, 11 A.2d 113 (E. & A.1940).

It is a well-established principle of law that municipalities may regulate commercial coin-operated devices. Silco Auto. Vend. Co. v. Puma...