Mogelefsky v. Schoem

• Decision Date: 07 January 1966
• Docket Number: A--49,Nos. A--1077,s. A--1077
• Citation: 216 A.2d 236,90 N.J.Super. 49
• Parties: Harold MOGELEFSKY and Martin A. Berman, Plaintiffs-Appellants, v. Ira SCHOEM, Mayor of the City of Clifton, et al., Defendants-Respondents. Martin A. BERMAN, Plaintiff-Appellant, v. Ira SCHOEM, Mayor, etc., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 49

90 N.J.Super. 49

216 A.2d 236

Harold MOGELEFSKY and Martin A. Berman, Plaintiffs-Appellants, v. Ira SCHOEM, Mayor of the City of Clifton, et al.,

Defendants-Respondents.

Martin A. BERMAN, Plaintiff-Appellant, v. Ira SCHOEM, Mayor, etc., et al., Defendants-Respondents.

Nos. A--1077, A--49.

Superior Court of New Jersey Appellate Division.

Argued Nov. 8, 1965.

Decided Jan. 7, 1966.

Clive S. Cummis, Newark, for appellants (Schiff, Cummis & Kent, Newark, attorneys, Michael B. Tischman, Westfield, and Steven S. Radin, Newark, on the brief).

Sam Monchak, Clifton, for respondents.

Richard Newman, Deputy Atty. Gen., for the State and New Jersey Real Estate Commission (Arthur J. Sills, Atty. Gen., amicus curiae, Peter J. Schwartz, Deputy Atty. Gen., of counsel and on the brief).

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Plaintiffs Mogelefsky and Berman appeal from a summary judgment entered by the Chancery Division, on motion of defendants, dismissing their complaint, in which they sought a judgment (1) declaring ordinance No. 24-30 of the City of Clifton to be null and void, and (2) enjoining the city and its police department from the enforcement of the provisions of said ordinance against plaintiffs.

The trial court ruled that the ordinance in question, which prohibits persons from soliciting or calling from house to house to sell or attempt to sell goods, or to take orders for services to be performed in the future, unless the solicitor has a written permit therefor from the chief of police, was a valid exercise of the municipal police power. It also held that the ordinance was applicable to plaintiffs, notwithstanding that they were duly licensed by the New Jersey Real Estate Commission as real estate salesmen and that among their licensed privileges, under N.J.S.A. 45:15--3, they were authorized to list properties for sale, offer or attempt to negotiate sales, and solicit for prospective purchasers. Injunctive relief was denied.

In the companion case plaintiff Berman appeals from a further summary judgment entered by the Chancery Division, on motion of defendants, dismissing his complaint, whereby he similarly sought to enjoin defendants from enforcing the provisions of the aforesaid ordinance against him and, in effect, requested an order compelling the chief of police to issue a house to house solicitor's permit to him. His application for such a permit had been denied by the chief of police because of his previous violation of the ordinance.

The trial court iterated its previous holding that the ordinance was valid and was applicable to plaintiff, notwithstanding his being licensed by the Real Estate Commission as a real estate salesman. Injunctive relief was denied. The refusal of the chief of police to grant the permit for 1964 was held to be justifiable because of plaintiff's previous deliberate violation of the ordinance. The police policy was to deny an application for a canvasser's permit for any year during which the applicant violated the ordinance.

We ordered the appeals consolidated because both cases involved common issues.

The facts are not in dispute. Accordingly, it was appropriate to move for summary judgment. R.R. 4:58.

Plaintiffs were duly licensed real estate salesmen and were employed by J. I. Kislak, Inc., a licensed real estate broker. Both had applied for and obtained from the chief of police of Clifton canvassing permits for the year 1963, but they had not obtained one for the year 1964. On April 15, 1964 plaintiffs were going from house to house in Clifton soliciting the owners of the houses for a possible sale of their respective properties through their employer. They were arrested by the local police and charged with a violation of section 24--30 of the Revised Ordinances of Clifton. After complaints filed against them in the Municipal Court of Clifton by the chief of police for violation of the ordinance, they sought injunctive relief from the Chancery Division, as first noted above.

The municipal court complaints were held in abeyance pending disposition of the first suit in the Chancery Division. Judgment dismissing that suit was entered on June 22, 1964. Thereafter, on July 13, 1964, plaintiffs were convicted in the Clifton Municipal Court of violating the ordidance, by admittedly soliciting from house to house properties to be sold by their employer, such solicitation having been indulged in without the permit required by the ordinance. Appeals from the municipal court convictions were taken to the Passaic County Court and we are advised that those appeals are still pending.

Section 24--30 provides:

'No person shall solicit or call from house to house in the city to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares or any other personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future without having received a written permit therefor.'

Any person desiring a permit must file, on a form to be supplied by the chief of police, an application stating his (1) name, (2) permanent home address, (3) name and address of his employer or firm represented, (4) place or places of residence for the preceding three years, (5) date on which he desires to commence canvassing or soliciting, (6) nature of merchandise to be sold or offered for sale, or the nature of the services to be furnished, (7) whether or not the applicant has ever been convicted of 'a crime, misdemeanor, or violation of any ordinance concerning canvassing or soliciting, and if so, when, where, and the nature of the offense.' The application must be accompanied by a letter or other written statement from the employer, certifying that the applicant is authorized to act as the employer's representative.

Upon filing the application with the chief of police or officer in charge of police peadquarters, a fee of $3 must be paid by the applicant to the city clerk for the use of the city to defray the cost of investigating, photographing, fingerprinting, processing and issuing the permit.

Section 24--33 of the ordinance provides, in part:

'The chief of police shall cause such investigation to be made of the applicant's business and moral character as he deems necessary for the protection of the public good. This investigation shall include the photographing and fingerprinting of the applicant. If, as a result of such investigation, the applicant's character or business responsibility is found to be unsatisfactory, the chief of police shall endorse his disapproval and the reasons therefor on the application and the permit shall not issue. If, as a result of such investigation, the applicant's character and business responsibility is found to be satisfactory, the chief of police shall endorse his approval and execute a permit to be formally issued by the city clerk. * * *'

The permittee is required to carry the permit with him at all times while canvassing or soliciting, and to exhibit the same to any person upon request. Section 24--34 also provides:

'No canvassing or soliciting shall be done except between the hours of 9 o'clock in the forenoon and 5 o'clock in the afternoon, on each weekday.'

The permit may be revoked for fraud in the application, fraud in carrying on his business as solicitor or canvasser, any violation of the ordinance, conviction of crime involving moral turpitude or any ordinance concerning soliciting or canvassing, or conducting the business in an unlawful manner, or in breach of the peace, or in such a way as to constitute 'a menace to the health, safety or general welfare of the public.' The penalty for a violation of the ordinance is a fine not exceeding $100, or imprisonment for a term not exceeding 30 days, or both.

I

Plaintiffs do not contend that the ordinance in question is invalid Per se. They raise no argument regarding the general police power of a municipality to regulate door-to-door soliciting and canvassing. N.J.S.A. 40:48--2. They acknowledge the correctness of the rationale for supporting local regulation of canvassers and solicitors, as expressed by Justice Hall in Moyant v. Paramus, 30 N.J. 528, 544, 154 A.2d 9, 17 (1959), where he said on behalf of the Supreme Court in upholding generally the validity of this type of ordinance 'There can be no doubt that the business of soliciting and canvassing is a proper subject for regulation under the police power, as is peddling, and has been so considered for generations. The way in which the business is necessarily conducted opens the way for fraud, deceit and dishonest dealing by the unscrupulous, even though by only a minority of those engaged in it, with redress difficult or practically impossible since the solicitor is very frequently a stranger and quickly gone from the locality. Resort may also be easily had to the business by the criminally minded for the purpose of obtaining admittance to private homes in furtherance of some...