State, Tp. of Pennsauken v. Schad

• Decision Date: 03 February 1998
• Citation: 307 N.J.Super. 493,704 A.2d 1337
• Parties: STATE of New Jersey, TOWNSHIP OF PENNSAUKEN, Plaintiff-Respondent, v. James SCHAD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 493

307 N.J.Super. 493

704 A.2d 1337

STATE of New Jersey, TOWNSHIP OF PENNSAUKEN, Plaintiff-Respondent, v. James SCHAD, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1998.

Decided Feb. 3, 1998.

Robert E. Levy, Secaucus, and John A. Underwood, Voorhees, for defendant-appellant (Underwood & Micklin, attorneys; Mr. Levy, on the briefs).

Michael E. Joyce, Cherry Hill, for plaintiff-respondent (Kelley, Wardell & Craig, attorneys, Haddonfield; Mr. Joyce, on the briefs).

Before Judges LONG, KLEINER and KIMMELMAN.

The opinion of the court was delivered by

KIMMELMAN, J.A.D.

Before the court are two separate appeals from distinct trials de novo in the Law Division, wherein defendant was twice convicted of violating provisions of the Township of Pennsauken (Township) sign ordinance. The violations charged in both cases were identical, but the cases related to different points in time. We ordered that the appeals be argued back-to-back. Since both matters involve the same facts and law, we now elect to treat the appeals together in this opinion.

Defendant operates adult entertainment businesses at two locations in the Township; 3000 Admiral Wilson Boulevard and 2251 Route 73. At both locations, there is erected and maintained an illuminated, free-standing sign; at the Admiral Wilson Boulevard location there is also an illuminated, building-mounted sign; and at the Route 73 location there are two illuminated, building-mounted signs. These signs had been erected and maintained prior to the time of the violations charged. All of these pre-existing signs either (1) conformed with the Township's sign ordinance, which limits the number and size of business signs and requires the issuance of a permit before a sign is erected; or (2) were considered to be permitted, non-conforming uses.

The controversy centers upon action taken by defendant in September 1995. At that time, defendant devised and assembled wooden encasement displays containing color transparency photos of women dressed in beach attire or swimwear. Each display measured approximately 42.75 square feet in size. Twelve displays were installed in the building at the Admiral Wilson Boulevard location and eight were installed in the building at the Route 73 location. Each display was set twelve to twenty-four inches behind the front windows and were visible only from outside the premises.

On October 17, 1995, defendant was issued summonses charging the following sign ordinance violations: failing to remove signs exceeding the number of signs permitted, failing to remove signs exceeding the gross square footage of signs permitted at a given location, and failing to obtain permits for the transparency displays. On March 21, 1996, defendant was found guilty by the Pennsauken Municipal Court of the sign ordinance violations as charged and was fined $31,500, together with costs of $120. On September 3, 1996, following a trial de novo in the Law Division, defendant's convictions were upheld. The fine and court costs have been paid. The appeal of these convictions was lodged on September 18, 1996, and has been docketed as A-0486-96.

On June 28, 1996, summonses were once again issued to defendant, charging continuing violations of the same sign ordinance provisions. Defendant was again found guilty by the Pennsauken Municipal Court and fined $102,000. On appeal to the Law Division, and following a trial de novo, defendant's convictions were affirmed, but the fine was reduced to $65,920. Pending defendant's appeal of the second set of convictions, which was lodged on February 5, 1997, and docketed as A-3218-96, the payment of the fines and court costs have been stayed.

On these appeals, we deal only with defendant's principal contention; that the transparency displays placed inside the windows of each adult entertainment premises were not "signs" within the meaning of the Township's sign ordinance. Our ruling on this issue makes it unnecessary for us to address other arguments raised by defendant relating to constitutional issues, selective law enforcement, lack of due process, bias, and abuse of power.

The pertinent ordinance provisions follow:

Pennsauken Code § 126-700.1 defines a sign as:

SIGN--A structure and a land use, a building wall or other outdoor surface or any device used for visual communication, display, identification or publicity and more fully described under § 126-711 of this chapter.

Pennsauken Code § 126-711 further provides:

Any sign erected or maintained after the effective date of this chapter shall conform to the following regulations:

A. Types and area of signs. A sign shall include banners, streamers, whirling or lighting devices or any other type of attention-attracting device and may be a single-faced, double-faced or a V-type structure.

(1) Business sign. A sign which directs attention to a business or commodity for sale, or a profession, service or entertainment rendered or offered upon the premises where such sign is located.

...

(9) Wall sign. A sign attached to or painted on a wall and subject to all sign regulations herein.

...

C. Signs in commercial districts. The following signs may be erected and maintained in commercial districts, subject to the conditions specified:

...

(2) Business signs or signs for any permitted commercial activity. A sign may be erected and maintained on the same building or premises as the use to which it refers, provided that:

...

(b) The maximum total area of all permitted signs shall not exceed an area equal to two (2) square feet for every one (1) lineal foot of building frontage; and signs shall be permitted on a building wall or roof; provided, however, that no sign shall extend higher above the building height, as defined herein, than four (4) feet.

(c) Temporary window signs shall not be considered in computing the allowable sign area, provided that such interior window signs do not cover more than ten percent (10%) of any single window and are not permanently affixed to the windows.

...

(6) Whenever a sign becomes dilapidated or structurally unsafe or endangers the safety of the public, a building or premises, the Construction Official shall give written notice to the owner of the sign or the owner of the premises upon which such sign is located, and such sign shall be made safe, repaired or removed, as applicable, within a period of ten (10) days from receipt of such written notice, otherwise such owner shall be in violation of this chapter.

(7) Any nonconforming use may continue to maintain such signs as may have existed on the effective date of this chapter, but after such date none of such signs shall be increased in number or total area.

The issue which we must address is whether the Township's sign ordinance reaches inside the business premises to control interior store displays which are placed behind front windows. The Township argues that the signs in this case fall within the concept of a "display", pursuant to Pennsauken Code § 126-700.1. This argument has superficial appeal, but cannot withstand scrutiny when basic rules of statutory construction are applied. AMN, Inc. of N.J. v. Township of So. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25, 461 A.2d 1138 (1983). The word "display" cannot be reviewed in a vacuum. On the contrary, its meaning must be assessed in light of the other words in the ordinance of which it is a part. Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129, 527 A.2d 1368 (1987). All of those words clearly address exterior signage. The rule of noscitur a sociis (the meaning of a word may be controlled by the words which surround it) governs. Germann v. Matriss, 55 N.J. 193, 220-21, 260 A.2d 825 (1970). Accordingly, the argument that § 700.1 applies to the facts of this case must fail.

The Township also argues that the signs in question fall within § 126-711....