Fasino v. Mayor and Members of Borough Council of Borough of Montvale

• Decision Date: 29 January 1973
• Docket Number: P,No. 11461,11461
• Citation: 300 A.2d 195,122 N.J.Super. 304
• Parties: , 72 Lab.Cas. P 53,146 John FASINO and Cheryl Fasino, tr/a Seven Eleven Storelaintiffs, v. MAYOR and MEMBERS OF the BOROUGH COUNCIL OF the BOROUGH OF MONTVALE, a Municipal Body Corporate of the State of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 304

122 N.J.Super. 304

300 A.2d 195, 72 Lab.Cas. P 53,146

John FASINO and Cheryl Fasino, tr/a Seven Eleven Store No 11461, Plaintiffs, v. MAYOR and MEMBERS OF the BOROUGH COUNCIL OF the BOROUGH OF MONTVALE, a Municipal Body Corporate of the State of New Jersey, Defendants.

Superior Court of New Jersey Law Division.

Jan. 29, 1973.

William Sellinger, Clifton, for plaintiffs John Fasino and Cheryl fasino, etc.

Robert E. McGuire, Westwood, for defendants Mayor and Council of the Borough of Montvale (Randall, Randall & McGuire, Westwood, attorneys; Robert E. McGuire, Westwood, on the brief).

PASHMAN, A.J.S.C.

The question for decision is the constitutionality of an ordinance approved by Montvale.

The parties present this simple and undecided question: Is the ordinance of Montvale regulating opening and closing hours of retail business establishments valid?

My answer is no. This is not a constitutional exercise of the police power.

Plaintiffs are the owners and operators of a Seven-Eleven grocery store located within the Borough of Montvale. Their store is not a large supermarket but rather a small convenience store where customers can pick up last-minute items such as milk, eggs, orange juice, snacks, etc. Such stores have in effect taken the place of the local corner store. Plaintiffs, in order to meet the needs and desires of their customers, have recently decided to keep their store open 24 hours per day. They say that in remaining open plaintiffs are providing a needed service to the community.

The Borough of Montvale is a small community of 7500 primarily residential in character. In order to protect the peace and quiet of their community, to eliminate traffic noises during the night hours, and to lessen the hazards of nighttime crime, defendants have adopted the following ordinance:

AN ORDINANCE TO ESTABLISH HOURS OF OPENING AND CLOSING FOR RETAIL ESTABLISHMENTS IN THE MUNICIPALITY.

ARTICLE 1. Retail Businesses. Declaration of Purpose.

It is hereby declared to be the purpose of this Article to regulate the closing hours of various retail businesses within the Borough of Montvale in order to avoid the noise, inconvenience and disturbance to residential areas within the Borough which are caused when retail establishments remain open during the late evening hours. It is hereby declared and determined to be in the best interests of the health, safety and welfare of the residents of the Borough of Montvale that the retail businesses regulated by this article cease the conduct of their business at a reasonable hour.

ARTICLE 2. Definitions. As used in this Article.

Retail Business means and includes any business which holds itself out to the general public for the sale at retail of goods and services.

ARTICLE 3. Closing Hours.

Every retail business within the Borough of Montvale shall be closed to the public, and business with the public therein shall be and is hereby prohibited after the hour of 11:00 p.m. and before the hour of 6:30 a.m. of any day. The provisions of this Section shall not apply to the sale of food and/or beverages sold exclusively for on premises consumption.

ARTICLE 4. All ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed to such inconsistencies.

ARTICLE 5. This ordinance shall take effect immediately upon publication after final passage and approval as required by law.

Plaintiffs challenge the validity of the ordinance on the grounds that:

(1) It is an arbitrary exercise of the zoning power;

(2) It is unreasonable and discriminatory as it applies to their business;

(3) There is no substantial relation to the public health, safety or welfare to justify the restrictions imposed on a legitimate business.

Montvale claims the ordinance is valid as a reasonable exercise of the police power to regulate businesses in order to protect the slumber of its residents by eliminating the noise, light and traffic that accompanies all-night retail operations. Defendants also contend that they are unable to provide adequate police protection to all-night establishments since Montvale has only two policemen on duty during the hours of 11 p.m. until 7 a.m.

N.J.S.A. 40:52--1(g) gives municipalities the power to license and regulate all businesses within its boundaries. It is perfectly clear that private business may be regulated for the common good and welfare. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885); Jones v. Haridor Realty Corp., 37 N.J. 384, 181 A.2d 481 (1962); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 160 A.2d 265 (1960); Masters-Jersey, Inc. v. Paramus, 32 N.J. 296, 160 A.2d 841 (1960). However, it is equally clear that the particular regulation must bear a substantial relation to the public health, safety or welfare; otherwise there would be an unwarranted intrusion on the basic right of private property. Brandon v. Montclair, 124 N.J.L. 135, 142, 11 A.2d 304 (Sup.Ct.1940), aff'd 125 N.J.L. 367, 15 A.2d 598 (E. & A. 1940); Delawanna Iron & Metal Co. v. Albrecht, 9 N.J. 424, 429, 88 A.2d 616 (1952). 'It is requisite that the common welfare be advantaged to a substantial degree to justify the exercise of the police power.' N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162, 168, 11 A.2d 113, 117 (E. & A. 1940). As Justice Roberts, speaking for the United States Supreme Court, stated in Nebbia v. New York, Supra:

The Fifth Amendment, in the field of federal activity and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. (291 U.S. at 525, 54 S.Ct. at 510, 511; emphasis added).

Justice Hall of our own Supreme Court has phrased this requirement as follows:

Where the police power has been granted to a municipal corporation, it is elementary that it can be exercised only in those areas where regulation is needful for the common good, i.e., public health, safety, morals or general welfare, and then only by reasonable means substantially connected with the public interest designed to be advanced. (Moyant v. Paramus, 30 N.J. 528, 544, 154 A.2d 9, 17 (1959).)

See also Mogelefsky v. Schoem, 90 N.J.Super. 49, 216 A.2d 236 (App.Div.1966), mod. 50 N.J. 588, 236 A.2d 874; Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 88 A.2d 607 (1952).

Thus, it is our duty to determine whether this particular regulation is needful for the common good and that the means selected has a substantial relationship to the public interest to be advanced.

Defendants argue that New Jersey has taken the lead in approving ordinances designed to restrict the hours of operation of particular businesses. Falco v. Atlantic City, 99 N.J.L. 19, 122 A. 610 (Sup.Ct.1923) (barber shops); Wagman v. Trenton, 102 N.J.L. 492, 134 A. 115 (Sup.Ct.1926) (jewelry auctions); Spiro Drug Service v. Union City, 130 N.J.L. 1, 30 A.2d 892 (Sup.Ct.1943), aff'd 130 N.J.L. 496, 33 A.2d 872 (E. & A. 1943) (drug stores); Starkey v. Atlantic City, 132 N.J.L. 27, 38 A.2d 198 (Sup.Ct.1944) (drug stores); Amodio v. West New York, 133 N.J.L. 220, 43 A.2d 889 (Sup.Ct.1945) (barber shops); Tonsorial Inc. v. Union City, 115 N.J.Super. 33, 277 A.2d 909 (Law Div.1971) (barber shops).

Likewise, the highest courts of other jurisdictions have upheld closing hours for certain types of businesses. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1884) (laundries); Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145 (1885) (laundries); Ratliff v. Hill, 293 Ky. 36, 168 S.W.2d 336 (Ct.App.1943) (road house); People v. Raub, 9 Mich.App. 114, 155 N.W.2d 878 (App.Ct.1968) (car wash); State v. Grant, 107 N.H. 1, 216 A.2d 790 (Sup.Ct.1966) (eating places); Gibbons v. Chicago, 34 Ill.2d 102, 214 N.E.2d 740 (Sup.Ct.1966), cert. den. 385 U.S. 829, 87 S.Ct. 63, 17 L.Ed.2d 65 (1966) (coin operated laundries).

However, an even greater number of courts have held specific regulations invalid. Yee Gee v. San Francisco, 235 F. 757 (N.D.Cal.1916) (laundries); Perry Trading Co. v. Tallahassee, 128 Fla. 424, 174 So. 854 (Sup.Ct.1937); Ex parte Harrell, 76 Fla. 4, 79 So. 166 (Sup.Ct.1918) (all places of business); Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371 (Sup.Ct.1936) (groceries); Dave Abrams Inc. v. City of Buffalo, 276 N.Y. 494, 12 N.E.2d 174 (Ct.App.1937), aff'g 250 App.Div. 820, 296 N.Y.S. 446 (App.Div.1937) (shoe stores); Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801 (Sup.Ct.1943) (grocery stores); Justesen's Food Stores, Inc. v. Tulare, 12 Cal.2d 324, 84 P.2d 140 (Sup.Ct.1938) (food stores); Coaticook v. Lathrop, 22 Quebec C.S. 225 (Quebec 1902) (all shops); Saville v. Corless, 46 Utah 495, 151 P. 51 (Sup.Ct.1915) (all commercial establishments); Good Humor Corp. v. Long Beach, 22 N.Y.S.2d 382 (Sup.Ct.1940) (ice cream vendors); People v. Kuc, 272 N.Y. 72, 4 N.E.2d 939 (Ct.App.1936) (newspaper hawking); Goodin v. Philadelphia, 222 Miss. 77, 75 So.2d 279 (Sup.Ct.1954) (all places of business); Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (Sup.Ct.1969) (all places of business).

The foregoing is not intended to be exhaustive of the subject, but it appears that the majority view is that ordinances which restrict hours of business operation are invalid. Further, a close...