Borough of Collingswood v. Ringgold

• Decision Date: 24 January 1975
• Citation: 66 N.J. 350,331 A.2d 262
• Parties: BOROUGH OF COLLINGSWOOD, Plaintiff-Respondent, v. Donald RINGGOLD and John C. Ashhurst, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 350

66 N.J. 350

331 A.2d 262

BOROUGH OF COLLINGSWOOD, Plaintiff-Respondent, v. Donald RINGGOLD and John C. Ashhurst, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Nov. 20, 1973.

Decided Jan. 24, 1975.

Emanuel Greenberg, New York City, of the New York bar, for defendants-appellants (Bryan B. McKernan, Camden, attorney).

James A. Perrin, Municipal Prosecutor, Collingswood, for plaintiff-respondent.

The opinion of the court was delivered by

CLIFFORD, J.

The issue raised by this appeal is the constitutionality of the Borough of Collingswood's Ordinance No. 601, prohibiting canvassing or soliciting without first registering with the Chief of Police and procuring a permit.

In the municipal court defendants were convicted of violating the ordinance in question. The Camden County Court, in a De novo hearing on the record pursuant to R. 3:23--8(a), upheld the convictions, concluding that the ordinance was valid 'both generally and as applied to these defendants.' In an unreported Per curiam opinion the Appellate Division affirmed for the reasons stated by the County Court. A substantial constitutional question having been raised, the appeal to this Court is as of right, R. 2:2--1(a)(1). We affirm.

Defendants were employed by a Pennsylvania subcontractor of Surveys Unlimited, a New York corporation, for the purpose of surveying listener preferences for radio stations. At approximately 9:30 p.m. on the evening of March 16, 1970, they went to the Parkview Apartments in Collingswood to interview residents there. They had not obtained a permit as required by the ordinance.

Mrs. Jeanne Powell, a resident of the Parkview Apartments, agreed to be interviewed. After answering a number of questions relating to radio station, television channel, newspaper and coffee preferences, she became suspicious in light of the many inquiries concerning the times when she viewed or listened to programs. When the interviewer, defendant Ringgold, asked for her telephone number, her suspicions increased and she refused to provide it. The interview took place at the door to the Powell apartment and lasted about 15 minutes. During this time Mrs. Powell noticed a second man going from door to door in the building. Despite Mrs. Powell's suspicions, it is not argued here that the interview was anything but courteous, nor that defendants were attempting to sell anything, nor that they were carrying out any criminal or fraudulent schemes.

However, when Ringgold completed his interview and departed, Mrs. Powell called the police who quickly located defendants outside the apartment building. Upon being questioned by the police, defendants explained what they were doing and admitted having no permit, saying that they had been unaware of the permit requirement. They were then charged with the violation forming the basis of these proceedings.

The relevant ordinance reads in pertinent part as follows:

Section 1. No person except as provided herein shall canvass, solicit, distribute circulars or other matter, or call from door to door, or place to place, in the Borough of Collingswood without first registering with the Chief of Police, or in his absence, the officer in charge of the police department.

Section 2. * * * For the purpose of this ordinance a canvasser or solicitor shall also be deemed to be one who is not in the business of selling goods, but one who makes surveys for research purposes, analysis, opinion polls, rating data and any such similar work by which of its nature involves a door to door, or place to place activity, and shall include persons going from door to door or place to place for the purpose of contributions, donations, or alms, for any persons or organization.

Section 3. The purpose of this ordinance is to prevent fraud, crime and unethical and dishonest business practices, and for the general protection, health and welfare of the residents of the Borough of Collingswood.

Section 4. Each registrant shall, at the time of registering, file with the Chief of Police, an application in writing which shall give the following information:

(a) Name, age and physical description of applicant.

(b) Complete permanent home and local address of applicant.

(c) Name and address of the organization or person for whom solicitation is being made.

(d) Description of the nature of the business and the goods, services, or wares to be sold, and sufficient information to determine whether or not the business he is to transact is interstate or intrastate commerce.

(e) Two (2) photographs of the applicant which shall be approximately 2 1/2 inches by 2 1/2 inches in size showing the head and shoulders of the applicant in a clear and distinguishing manner.

(f) The days, dates, and route of his business in the Borough of Collingswood (which shall be between the hours of 9:00 A.M. and 5:00 P.M.).

(g) A statement as to whether or not the applicant has been convicted of a crime, misdemeanor, or disorderly conduct offense, where and when so convicted, the nature of the offense and the penalty, if any.

(h) The make, model, year, color and license plate number of automobiles used by the applicant during the period of solicitation within the Borough, and the number of his driver's license and the state of issuance.

Section 7. Each registrant shall carry the registration certificate at all times when in the Borough, and shall exhibit it to any citizen or police officer upon request. At the conclusion of each day's canvassing or soliciting the registration card shall be deposited with the Chief of Police.

Section 8. In the event an application for canvassing or soliciting is disapproved to (sic) the Chief of Police, for reasons of reported unethical business practices, or a previous conviction for a crime, the applicant may appeal to the Borough Commissioners, who shall set a time and place for a hearing, which hearing shall be held within ten days after appeal is taken by applicant, at which hearing applicant will be given an opportunity to present his reasons why the license should be issued. The decisions of the Borough Commissioners shall be final.

Section 9. * * * (b) No person subject to the provisions of this ordinance shall canvass, solicit or distribute circular or other matter except during the hours of 9:00 A.M. and 5:00 P.M. Monday through Saturdays.

Section 10. Any person, organization or society or association of a charitable religious, patriotic, philanthrophic or community nature desiring to solicit or have solcited (sic) in this name money, property or financial assistance for which no merchandise, wares or services are required shall be exempt from Section 4 of this ordinance provided there s(sic) filed with the Chief of Police an application in writing giving the following information:

(1) Names of solicitors, and purpose of cause of which solicitation is being made.

(2) Nemes and addresses of the officers of the organization.

(3) Names and addresses of the agents or representatives who will solicit, canvass or distribute literature in the Borough.

(B) Each solicitor for such organization, society, or association shall carry proper identification, and shall display same upon request.

Section 12. Any part or parts of this ordinance, if ever declared to be invalid, shall in no way or manner affect the validity of all remaining part, or parts of this ordinance, which shall continue in full force and effect.

Defendants challenge the ordinance on four constitutional grounds: (1) it is an invalid exercise of the police power as applied to them; (2) it imposes an undue burden on interstate commerce; (3) it abridges the First Amendment freedomes of speech and assembly; and (2) insofar as it sets different requirements for survey researchers from those for charitable, religious, civic and political organizations, it violates the equal protection clause of the Fourteenth Amendment.

We take up these contentions in that order. Our discussion of them amplifies our conclusion that the intention of the ordinance is to protect against a sense of unease and dangers reasonably to be apprehended on account of strangers filtering through the community. To give effect to that intention, since doubtless the municipal authorities would want the enactment to remain to the extent that it may, we have performed such judicial pruning as will render the ordinance constitutional. State v. Zito, 54 N.J. 206, 218, 254 A.2d 769 (1969). See also State v. Profaci, 56 N.J. 346, 349--350, 266 A.2d 579 (1970); State v. DeSantis, 65 N.J. 462, 472--473, 323 A.2d 489 (1974).

I

In evaluating defendant's position we are mindful of the traditional presumption of validity in favor of a municipal enactment, E.g., Moyant v. Paramus, 30 N.J. 528, 534, 154 A.2d 9 (1959), overcome by a showing that the ordinance is arbitrary or unreasonable, Kozesnik v. Montgomery Twp., 24 N.J. 154, 167, 131 A.2d 1 (1957), or that it is constitutionally defective on its face. E.g., City of Elizabeth v. Sullivan, 100 N.J.Super. 51, 55, 58--59, 241 A.2d (Cty.Ct.1968).

Constitutional infirmities aside, it is clear that a municipality may require advance registration of persons who solicit or canvass from house to house. Mogolefsky v. Schoem, 50 N.J. 588, 595, 236 A.2d 874 (1967); Clifton v. Weber, 84 N.J.Super. 333, 336, 202 A.2d 186 (App.Div.1964), aff'd, 44 N.J. 266, 208 A.2d 401 (1965); Moyant v. Paramus, Supra, 30 N.J. at 544, 154 A.2d 9. As long as the requirements imposed by such an ordinance are substantially related to the public good which it seeks to advance, the police power of the state has not been over-extended and the act is within the scope of the grant of that power embodied in N.J.S.A. 40:48--2. See Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 416, 88 A.2d 607 (1952); Toms River Publishing Co. v. Manasquan, 127 N.J.Super. 176, 181, 316 A.2d 719 (Ch.Div.1974).

Defendants base their argument of invalid exercise of police power on a narrow...