Capitol Movies, Inc. v. City of Passaic

• Decision Date: 06 June 1984
• Citation: 194 N.J.Super. 298,476 A.2d 869
• Parties: CAPITOL MOVIES, INC., A Corporation of the State of New Jersey, Plaintiff-Appellant, v. CITY OF PASSAIC, A Municipal Corporation and the City Council of the City of Passaic, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 298

194 N.J.Super. 298

476 A.2d 869

CAPITOL MOVIES, INC., A Corporation of the State of New

Jersey, Plaintiff-Appellant, v. CITY OF PASSAIC, A Municipal Corporation and the City

Council of the City of Passaic, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued May 1, 1984.

Decided June 6, 1984.

James M. McGovern, Jr., Oakhurst, for plaintiff-appellant (Abramoff, Christie, Fox & Zaro, Red Bank, attorneys; James M. McGovern, on the brief).

John J. McKniff, City Atty. for the City of Passaic, for defendant-respondent (Mark Weber, Passaic, on the brief).

Before Judges BOTTER, PRESSLER and O'BRIEN.

The opinion of the court was delivered by

PRESSLER, J.A.D.

The issue raised by this appeal is the validity of an ordinance adopted by defendant City of Passaic which limits the showing of "X-rated" films to the hours of 7 p.m. to midnight. The trial judge entered summary judgment sustaining the validity of the ordinance, ¹ rejecting the constitutional challenge brought by plaintiff Capitol Movies, Inc. (Capitol). We reverse.

The record is regrettably sparse and, in our view, completely devoid of the proofs necessary to sustain the constitutionality of the intrusion by this ordinance upon the protected interest in free speech.

Appellant Capitol has been operating a motion picture theater in downtown Passaic, under city license, since 1972. The affidavits submitted by Capitol state that the theater is a 3,500 seat facility showing "X-rated" films during its regular hours of operation, 11 a.m. to 7 p.m. Plaintiff asserts that the theater is an aged structure requiring the expenditure of approximately $1,000 a day in operating costs. It is also used occasionally as a concert hall for evening performances by rock-music groups. The affidavit of the theater's manager states that without the display of "X-rated" films during daytime hours, operating costs would not be met and the business would "cease to exist." Plaintiff has in the past experimented with the showing of "G" and "PG" movies and with Spanish language films but has found that these films have failed to produce enough revenue to sustain the business operation. Prior attempts to show "X-rated" films in the evening had also proved unsuccessful, apparently because there is very little pedestrian traffic after 7 p.m. in the area in which the theater is located. It appears that there is one other theater in the City of Passaic which shows "X-rated" films, the Montauk Theater, which is not a party to this action.

It has been represented to us that the adoption of this ordinance was a matter of some controversy within the governing body and that it had in fact been vetoed by the mayor and ultimately passed over his objection. That representation constitutes the entire legislative history of this ordinance which appears in the record. The ordinance itself contains no statement of purpose. The City's attorney represented that no verbatim transcriptions of counsel debates are made. Minutes of the council meetings at which the ordinance was discussed were not produced. Neither factual nor expert testimony in support of the ordinance was proffered. The City further concedes that there has never been a law enforcement problem attributable to the operation of the theater. No complaints have been made against it for admitting underage persons, and no criminal activity, public disturbances, breaches of the peace, or other reported incidents have occurred in the vicinity attributable to the theater's operation.

The sole purpose of the ordinance, as represented by the City attorney, is to protect downtown shoppers from contact with persons who might be leaving the theater and to protect the welfare of the children of the City from whatever unarticulated dangers or adverse influences they might be subjected to by reason of the showing of the films to an adult audience during those times of the day when youngsters might be on the street. However, other than their illegal admission to the theater, ² an occurrence which has not in fact been asserted, there is no articulation of what these dangers and adverse influences would be.

The record is devoid of any physical description of the theater, and it is not suggested that pedestrians can see into the theater from the sidewalk or that any offensive advertising has been displayed to the public. There is no suggestion beyond the barest speculation that the showing of "X-rated" films at the theater during daytime hours has discouraged shoppers from using the downtown area or that whatever adverse effect the presence of this theater might have on the community would be ameliorated by the time restrictions imposed by the ordinance.

In view of this total lack of proof that there is any legitimate governmental interest which might be advanced as a result of the ordinance, we are constrained to conclude that its restriction on protected speech is unconstitutional.

We recognize the state constitutional requirement that ordinances of municipal corporations be liberally construed in their favor. N.J. Const. (1947), Art. IV, § VII, par. 11. And see Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 298, 359 A.2d 862 (1976). Thus, as a matter of state constitutional compulsion, a municipal ordinance is presumed to be reasonable, and the burden of persuasion respecting its alleged arbitrariness and unreasonableness rests on the party seeking to overturn it. See Quick Chek Food Stores v. Springfield Tp., 83 N.J. 438, 447, 416 A.2d 840 (1980). Applying these principles, our courts have repeatedly sustained municipal ordinances, whether enacted under the general police power or under the zoning power, which restrict the hours of operation of particular businesses. See Quik Chek Food Stores, supra, and cases collected therein, 83 N.J. at 448, 416 A.2d 840.

Different principles control, however, where the activity which is the subject of municipal regulation is constitutionally protected. This is particularly true when the constitutionally protected interest is free speech within the intendment of the First and Fourteenth Amendments of the Federal Constitution. It is a matter of well-settled constitutional law that a regulation which restricts the time, place or manner of protected speech will survive constitutional scrutiny only if it meets a three-prong test. First, the regulation must be justified without reference to the content of the regulated speech. Second, the regulation must serve a significant governmental interest by the least restrictive possible means. Third, the regulation must leave open ample alternative channels for the communication of the information. Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); State v. Miller, 83 N.J. 402, 412, 416 A.2d 821 (1980). The evidential corollary of this three-prong test is that the burden of persuasion shifts from the party attacking the regulation to the party imposing the regulation. Thus, where the subject of the regulation is a constitutionally protected interest, the challenger need not prove that the regulation is arbitrary and unreasonable. The governmental agency must prove that all of the criteria prerequisite to permissible regulation have been met. See, e.g., Schad v. Mt. Ephraim, 452 U.S. 61, 71-72, 101 S.Ct. 2176, 2184-2185, 68 L.Ed.2d 671 (1981); Erznoznik, supra; United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); Trombetta v. Atlantic City, 181 N.J.Super. 203, 227-228, 436 A.2d 1349 (Law Div.1981), aff'd o.b. 187 N.J.Super. 351, 454 A.2d 900 (App.Div.1982).

If the regulated activity here constitutes protected free speech, then it is clear that the City of Passaic cannot support the validity of the ordinance merely by relying on the state constitutional presumption of validity, on the statutory right accorded municipalities by N.J.S.A. 40:52-1 and 2 to regulate and license places of public amusement, or on the general power to restrict the hours of operation of businesses which are not engaged in constitutionally protected activity. Rather, the City must affirmatively bear the burden of demonstrating compliance of this ordinance with the constitutional criteria for free-speech regulation. We are persuaded that the activity here does implicate a constitutionally protected interest, that the burden of demonstrating the validity of the ordinance was on the City of Passaic, and that it failed to sustain this burden.

There is no doubt that the regulated activity here, the showing of motion pictures, is within the ambit of the free-speech protections of the First and Fourteenth...