News Printing Co. v. Borough of Totowa

• Decision Date: 03 January 1986
• Citation: 211 N.J.Super. 121,511 A.2d 139
• Parties: , 13 Media L. Rep. 1072 The NEWS PRINTING COMPANY, a New Jersey Corporation, Plaintiff, v. BOROUGH OF TOTOWA, a Municipal Corporation, Defendant. . Dated
• Court: New Jersey Superior Court

Page 121

211 N.J.Super. 121

511 A.2d 139, 13 Media L. Rep. 1072

The NEWS PRINTING COMPANY, a New Jersey Corporation, Plaintiff, v. BOROUGH OF TOTOWA, a Municipal Corporation, Defendant.

Superior Court of New Jersey, Law Division,

Passaic County.

Dated Jan. 3, 1986.

Alexander F. McGimpsey, for plaintiff (McGimpsey & Cafferty, North Brunswick, [511 A.2d 143] attorneys; Thomas J. Cafferty, North Brunswick, on the brief)

Robert S. Moraff, for defendant (Fiorello, Moraff, Foster & Corrado, Totowa, attorneys; W. Randall Bush, Totowa, on brief).

DWYER, J.S.C.

After defendant, Borough of Totowa, a municipal corporation, ("Totowa"), placed a notice, printed on cardboard, on seven of the honor boxes or newsracks owned by plaintiff, The News Printing Company, a New Jersey corporation, ("News"), stating ¹ Section seven of said ordinance provided that any person who shall be convicted of violating said ordinance shall be subject to a fine not exceeding $100. The other provisions of the ordinance shall be considered hereafter but none provided for confiscating "newsracks" for the owners violating the ordinance.

¹ that the newsrack was placed in violation of ordinance no. 09-83, must be immediately moved, and upon failure to remove within 48 hours, the newsrack would be confiscated and a summons issued, counsel for the News, based on a verified complaint, supporting certification, brief and notice to Totowa, applied for a preliminary injunction to restrain Totowa from removing its newsracks and declaring said ordinance unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States and the Constitution of New Jersey.

There was no basis in the ordinance upon which Totowa or its officials could base their act in giving notice or in taking any further action. Regulation of activities upon streets and sidewalks is normally by ordinance. 5 McQuillin, Municipal Corporations, §§ 15.03 and 15.04; N.J.S.A. 40:67-1. A municipality may also prescribe penalties for violation thereof under N.J.S.A. 40:49-5 by ordinance. In the absence of a municipality having adopted an ordinance authorizing activity proposed to be carried out, or being carried out, a municipal official has no The removal of the newsracks by either the News or Totowa would interfere with the circulation of newspapers to members of the public. This posed questions about the First Amendment which is applicable to the states and municipalities under the Fourteenth Amendment. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 85 L.Ed. 949 (1938); Kash Enterprises Inc. v. City of Los Angeles, 19 Cal.3d 294, 138 Cal.Rptr. 53, 562 P.2d 1302 (Sup.Ct.1977). (sections of municipal ordinance authorizing seizure of newsracks which were placed in violation of ordinance held unconstitutional).

power to act. Cf. City of Paterson v. Barnet, 46 N.J.L. 62, 66 (Sup.Ct.1884) (city denied writ of mandamus to compel mayor to sign city bonds to be sold to pay off sewers where board of aldermen had not adopted an ordinance authorizing construction of sewers).

First Amendment protections are applicable to the public distribution of newspapers and periodicals through newsracks....

See Passaic Daily News v. City of Clifton, 200 N.J.Super. 468, 491 A.2d 808 (Law Div.1985).

By the return date, the complaint which was filed in the Chancery Division was designated as an action in lieu of prerogative writs without objection by Totowa and assigned to this judge by the assignment judge.

The issuance of a preliminary injunction to stay enforcement of an ordinance in a prerogative writ action challenging a statute or ordinance is proper. Two Guys from Harrison, Inc. v. Furman, 59 N.J.Super. 135, 157 A.2d 351 (Law Div.1959). But a preliminary injunction does not issue as of right but only upon a showing that: (1) plaintiff will suffer irreparable harm; (2) the underlying right sought to be enforced is free from doubt; (3) the material facts are not in dispute; and (4) the granting of the preliminary injunction will not inflict undue hardship on defendant but denying it will substantially hurt the plaintiff. See Crowe v. DeGioia, 90 N.J. 126, 133-134, 447 A.2d 173 (1982).

The denial of the injunction would result in the removal of seven of the newsracks of the News in Totowa, if not all, with the result that the News' ability to circulate its papers and the public's right to obtain them under the First Amendment would have been infringed. In cases involving First Amendment rights, the burden is on the municipality to show that it has a substantial interest to protect and that the regulation is related to that interest and allows sufficient alternative means of communication. Where, as here, the News showed that the ordinance 09-83 provided a prior restraint in that a license was required before a newsrack could be placed, the burden was on Totowa to prove the constitutionality of that ordinance, Capitol Movies Inc. v. City of Passaic, 194 N.J.Super. 298, 302-303, 476 A.2d 869 (App.Div.1984).

The material facts pertaining to the provisions in ordinance 09-83 and certain actions of the News in placing newsracks without a license were not in dispute. Further, where no action is pending under an ordinance with criminal sanctions against a person, but such action is threatened, such person may seek a declaratory judgment that the ordinance is unconstitutional rather than wait to defend a criminal charge. Philadelphia Newspapers Inc. v. Borough of Swarthmore, 381 F.Supp. 228 (E.D.Pa.1974).

Those were the facts that were relevant in respect to the granting of the preliminary injunction. Finally, the certifications and related photographs indicated that there was little likelihood of finding a safety hazard and that there was no history of complaints about the newsracks being the subject of safety incidents or vandalism. Balancing the equities so as to preserve the status quo, the court issued a preliminary injunction restraining the enforcement of the ordinance.

Following discovery, counsel requested that the court delay a hearing until the decision in Passaic Daily News, supra, was rendered, and thereafter requested additional time to have their experts ready.

The court will set forth certain background facts and then give its decision on the questions posed in the following order:

1. Validity of licensing requirement, §§ 2, 3 and 4.

2. Validity of maintenance and installation requirements, § 5.

3. Validity of location and placement of newsrack requirements, § 6.

4. Whether the separability clause should be used to save any provisions of the ordinance found to be valid.

The News editorial office and printing plant is in the City of Paterson. Currently, it publishes a morning newspaper six days a week.

Totowa is located on the west side of the City of Paterson and the east side of Wayne Township which also bounds Totowa on the south. The Passaic River is Totowa's eastern boundary. Route # 46 and Route # 80 cross Totowa.

The property along Route # 46 is zoned "thoroughfare business." Union Boulevard runs through the principal residential zones of Totowa. The properties adjoining it are zoned "community business."

The News has 11 newsracks in Totowa. Most are located either along Union Boulevard or Route # 46 on sidewalks or on properties in the zones mentioned above.

William Monahan ("Monahan") has been the circulation manager for the News for the past five years. He has worked for newspapers operating in the Bergen-Passaic area in the circulation departments for the last 33 years. He testified that the News delivers papers to the newsracks between 2:00 a.m. and 3:00 a.m. six days a week. The News has no Sunday edition. The News also delivers papers to nine stores in Totowa.

He stated that the News has young persons who deliver newspapers to homes. They are between the ages of 11 to 14. Under applicable state law, they cannot deliver newspapers before 6:00 a.m., except the 14-year-olds may deliver papers after 5:30 a.m.

He explained that the five newsracks located on Union Boulevard were placed there to serve commuters who board buses In respect to the newsracks located along Route # 46, the locations were picked to be near boarding points for commuter buses and entrances to restaurants.

along that street and for those who shop in that area. The locations are selected to be near restaurants and at intervals between stores which may sell copies of the News.

He further testified that four of the present newsracks are located on private property. A fifth was located on private property but was removed at the owner's request.

He further stated that no newsracks were chained to fire call boxes or fire hydrants. The boxes are usually chained to some object. Where that is not possible, they are weighted down or bolted down.

In his opinion, the vending newsracks may not be profitable but the News has to have them so that the paper is read.

From some boxes only 10 to 15 papers are sold a day. In such areas, the News could not sustain a newsperson. From other newsracks, 50 papers a day are sold. He testified that the newsracks in question are 24"" wide, 20"" deep and 3' high.

Witnesses for Totowa urged that the subject ordinance is intended to be a reasonable "time, place, and manner" regulation of objects in the public area to avoid hazardous conditions and thereby promote safety and unimpeded flow of traffic in the street and on the sidewalks. They also urged that said ordinance promoted Totowa's aesthetics by avoiding visual clutter and sight pollution thereby improving its image.

The News sells only newspapers from its newsracks.

1. Validity of Licensing Requirements, §§ 2, 3 and 4.

Ordinance 09-83 was adopted on December 20, 1983. The provisions of §§ 2, 3 and 4 are set forth below. ² After the The ordinance requires that a person seeking to lawfully place a newsrack along a street or on a sidewalk area in Totowa must fill out and...