Dimor, Inc. v. City of Passaic

• Citation: 122 N.J.Super. 296,300 A.2d 191
• Parties: DIMOR, INC., a Corporation of the State of New Jersey, Plaintiff, and Passaic Cinema, Inc., a Corporation of the State of New Jersey, and S.M.H. Amusement Co., a Corporation of the State of New Jersey, Intervenors, v. CITY OF PASSAIC, a Municipal Corporation of the State of New Jersey, Defendant.
• Decision Date: 22 January 1973
• Court: New Jersey Superior Court

Page 296

122 N.J.Super. 296

300 A.2d 191

DIMOR, INC., a Corporation of the State of New Jersey, Plaintiff,

and

Passaic Cinema, Inc., a Corporation of the State of New

Jersey, and S.M.H. Amusement Co., a Corporation of

the State of New Jersey, Intervenors, v. CITY OF PASSAIC, a Municipal Corporation of the State of New

Jersey, Defendant.

Superior Court of New Jersey,

Law Division.

Argued Jan. 19, 1973.

Decided Jan. 22, 1973.

Richard K. Rosenberg, Passaic, for plaintiff (Heller & Laiks, Passaic, attorneys).

H. Ronald Levine, Passaic, for intervenor Passaic Cinema, Inc. (Robert M. Kronman, Passaic, attorney).

Hymen Siegendorf, Passaic, for intervenor S.M.H. Amusement Co. (Siegendorf, Michaelis & Miller, Passaic, attorneys).

Otto F. Blazsek, Passaic, for defendant (Joseph Scancarella, City Atty.).

DOAN, J.C.C., Temporarily Assigned.

On January 6, 1972 defendant City of Passaic through its mayor and council, adopted ordinance No. 135--72 which set forth certain licensing requirements with respect to motion picture theatres. Its effective date was January 26, 1972. Paragraph 4 of the ordinance provides:

It shall be unlawful for any person conducting a theatre or moving picture show to exhibit immoral pictures or shows of any character, whose dominant theme appeals to the prurient interest, is patently offensive, affronts contemporary community standards relating to sexual matters and is without redeeming social value.

The ordinance provides for a penalty of up to a $200 fine a day for each day that such a motion picture is shown.

Plaintiff Dimor, Inc., and Intervenors Passaic Cinema, Inc. and S.M.H. Amusement Co., are owners respectively of the Montauk, Capital and Central Theatres, establishments regularly in the business of showing motion pictures in the City of Passaic. This action was instituted under the Declaratory Judgment Act (N.J.S.A. 2A:16--52) whereby plaintiff and intervenors seek to have said paragraph 4 declared illegal and void as being preempted by the statute dealing with obscenity, N.J.S.A. 2A:115--1.1 et seq., which was extant at the time the ordinance was adopted. That statute defined the term 'obscene' as follows:

(a) The word 'obscene' wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.

(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:

(1) The dominant theme of the material taken as a whole appeals to a prurient interest;

(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and

(3) The material is utterly without redeeming social value.

The penalty for uttering or exposing obscene literature or pictures was made a misdemeanor by N.J.S.A. 2A:115--2.

The issue presented here for consideration is essentially whether N.J.S.A. 2A:115--1.1 et seq. declares a state policy which preempts any competing municipal action under the Home Rule Act, N.J.S.A. 40:48--1 et seq.; whether the statute at the time of the enactment of this ordinance was so pervasive so as to clearly preempt the field and thus render the attack portion of the ordinance Ultra vires and void.

Whether a given field has been preempted by the Legislature is strictly a question of fact. State v. Pinkos, 117 N.J.Super. 104, 106, 283 A.2d 755 (App.Div.1971).

It should be noted that the above-cited statutory definition of 'obscene' was amended by L.1971, c. 449, § 3, effective February 16, 1972, whereby the requirement that the material be 'utterly without redeeming social value' was eliminated. This amended statute (N.J.S.A. 2A:115--1.1) was subsequently declared unconstitutional in Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D.N.J. filed November 20, 1972). This decision of the U.S. District Court is not binding on us, and it is one with which I do not agree. State v. Speciale, 96 N.J.Super. 1, 7, 232 A.2d 421 (App.Div.1967). Even if it were, it would leave undisturbed the remaining provisions of N.J.S.A. 2A:115--N.J.S.A. 2A:115--1.11. Without regard to the determination made by the Federal District Court with respect to the amended statute, consideration must initially be given, in this proceeding, to the relation of the ordinance to the statutory authority existing at the time of its enactment in deciding whether a preemption had occurred. This must be before any constitutional question may be reached.

The basic statutory authority for a municipality to enact an ordinance such as in this case, is found in the omnibus police powers provisions, N.J.S.A. 40:48--2 which provides:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

This power, however, is a limited delegated power. Its exercise is, of course, subject to the control of the state statutes. As noted by Chief Justice Weintraub in Kennedy v. Newark, 29 N.J. 178, 148 A.2d 473 (1959):

It is fundamental that in the exercise of delegated power a municipality may not legislate in conflict with state statutes. (Citations omitted) (At 186, 148 A.2d at 477)

And,

(However,) before it can be said that the police power delegated to local government must remain inert, it must be clear that the Legislature intended to occupy the field or declared a policy at war with the decision made by local government. The delegated power may not be restrained upon the basis of speculation or dubious inference. (At 186--187, 148 A.2d at 478)

In a more expansive discussion of this area of conflict and preemption, Chief Justice Weintraub, in the case of Summer v. Teaneck, 53 N.J. 548, 251 A.2d 761 (1969), stated:

A municipality may not contradict a policy the Legislature establishes. * * * Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. * * * It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power. Masters-Jersey, Inc. v. Mayor and General Council of Borough of Paramus, 32 N.J. 296, 160 A.2d 841 (1960). * * * The...