State v. Calabria, Gillette Liquors
| Citation | 693 A.2d 949,301 N.J.Super. 96 |
| Parties | The STATE of New Jersey, (Long Hill Township), Plaintiff, v. CALABRIA, GILLETTE LIQUORS & Diane's Country Kitchen, Defendants. |
| Decision Date | 24 January 1997 |
| Court | Superior Court of New Jersey |
John R. Pidgeon, Princeton, for plaintiff.
Marc Gettis, Gillette, for defendants.
On January 29, 1996, three business owners were issued summonses charging each with a violation of the Long Hill Township ordinance regulating signs, specifically, Section 35-8.3e (relevant portion underlined):
All illuminated signs shall be either indirectly lighted or of the diffused lighting type. Group signs, if illuminated, shall be illuminated by an exterior source only in accordance with subsection 35-8.10b of this section, except that ground signs in the B-3 zone may be internally illuminated. No sign shall be lighted by using unshielded incandescent bulbs or neon tubes, mirrors reflecting a direct light source or similar devices. Buildings or structures may not be outlined by tubing or strings of lights for advertising purposes, except that all buildings shall be permitted strings of lights displays between November 15 and January 15 of each year.
[Twp. of Long Hill, Code § 35-8.3e (1990).]
Each defendant had signs on the inside of a store illuminated by neon. 1 In municipal court, defendants challenged the constitutionality of the ordinance. With the benefit of testimony at the August trial, briefs and oral argument of counsel, Judge Bride upheld the constitutionality of the ordinance and found each defendant guilty of the violation. Fines and costs were suspended. The Defendants have appealed their convictions to the Law Division de novo on the record and presented the following issues on appeal:
Point I: The Ordinance Infringes upon Freedom of Speech, in Violation of the First and Fourteenth Amendments.
Point II: The Ordinance Denies Defendants Equal Protection under the Law, in Violation of the Fourteenth Amendment.
Point III: Since the Ordinance Affects a Fundamental Right, It is not Entitled to Any Presumption of Validity.
Point IV: The Ordinance is Unconstitutional, Due to Vagueness and Overbreadth and Serves to Deny Defendants Substantive Due Process.
Point V: Defendants Should be Found Not Guilty Based Upon the Record Below.
This court has reviewed the transcript, evidence, and briefs submitted by counsel, has considered oral argument presented on December 16, 1996, and been enlightened by precedent from the United States Supreme Court, other states and higher courts of this state.
Before addressing the substantive issues, the court accepts the essentially undisputed testimony regarding the scope and purpose of ordinance. Michael Tobia, the Township planner and recognized expert in zoning and planning, testified that the present ordinance was enacted in 1990 after several years of work by the municipal boards and township committee, after solicitation of comments from residents and business owners, and after consideration of the need for a comprehensive plan for commercial development within the community. The specific section that bans the use of neon signs actually existed in prior laws and as far back as 1974.
A purpose of the zoning ordinance is to promote a desirable visual environment in the town in a balance with the interests of the commercial businesses. Commercial signs are regulated as to size, placement, lighting source, and degree of illumination to prevent the look of "highway commercial signage."
The specific section at issue is a "generic" prohibition of any sign constructed out of tubed material filled with either a gas or a powder which, when electrified, lights up. 2 Other types of illumination--internally lit or externally lit--are permitted. The brightness of lighting is also regulated. Twp. of Long Hill, Code § 35-8.10b (1990). Mr. Tobia concluded that prohibiting the use of neon is consistent with the goal of a desirable visual environment.
Additional testimony related to the actual signs themselves, the reason for the use of the signs by each of the owners, and reference to photographs of other signs, designs, illuminations and locations throughout the Township.
The first issues to address are the last two points of defendants' appeal. These issues are first because it is a principle of judicial review that the court must not strike down legislation on constitutional grounds if a more narrow or factual basis can be found for review. Bell v. Stafford Twp., 110 N.J. 384, 389, 541 A.2d 692 (1988). The Defendants argue that there is no proof in the record that their signs are neon and, in a similar context, that the ordinance cannot be enforced due to the lack of definition of the term "neon."
The federal and state constitutional ban on vague laws is intended to invalidate regulatory enactments that fail to provide adequate notice of their scope and sufficient guidance for their application. The terms of an ordinance must enable a person of "common intelligence, in light of ordinary experience" to understand whether contemplated conduct is lawful. The determination of vagueness must be made against the contextual background of the particular law and with a firm understanding of its purpose. The degree of vagueness that the Constitution tolerates depends on the nature of the enactment. State v. Cameron, 100 N.J. 586, 591, 498 A.2d 1217 (1985); Town Tobacconist v. Kimmelman, 94 N.J. 85, 119, 462 A.2d 573 (1983); State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979). Vague laws offend several values: that laws must give a person a reasonable opportunity to know what is prohibited; that laws must provide explicit standards for those who apply them; and that laws cannot impermissibly delegate basic policy matters to enforcers on a subjective basis with the attendant danger of arbitrary application. Cameron, supra, 100 N.J. at 591, 498 A.2d 1217 (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).
In the Long Hill Township ordinance, neon is not defined. As Mr. Tobia testified, however, and without contradiction, neon is a term referring to signs constructed of tubes that contain a gas or powder which emits light when ignited by electrical sources. Mr. Cerulli, the zoning officer, testified that the summonses were issued for the signs lit through use of a tube, and that he knew the difference between fluorescent and neon lights. Every defendant acknowledged that he/she used a neon sign(s).
A statute does not have to specifically define every element of its provisions. The government may rely upon ordinary terms, usage and definition within the context and nature of the law. State v. Mortimer, 135 N.J. 517, 532-533, 641 A.2d 257 (1994). Neon has a very clear encyclopedic definition, as set forth in the footnote above. There is no vagueness problem in the enforcement of this statute. Further, there is no lack of proof in the record that defendants each had neon signs in their businesses. Indeed, "it is a well-settled principle of constitutional law that 'one to whose conduct a statute clearly applies may not successfully challenge it for vagueness'." State v. Finance American Corp., 182 N.J.Super. 33, 42, 440 A.2d 28 (App.Div.1981) (quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439, 458 (1974)). Reversal of the convictions is denied on Points IV and V. 3
The issues raised in Points I, II and III are interrelated in the sense that the court must determine a standard to review this municipal ordinance. That standard is, in turn, based upon whether the ordinance regulates the content of commercial speech, or regulates only the time, place and manner of the advertisements. These issues entail a discussion of the purposes of the ordinance, the nature of the regulations, and the distinctions it seeks to draw in its regulations.
As set forth at the beginning of this opinion, the ordinance specifically directs that "No sign shall be lighted by using unshielded incandescent bulbs or neon tubes...." Twp. of Long Hill, Code § 35-8.3e (1990). The ordinance also defines sign:
Sign shall mean every sign, billboard, ground sign, roof sign, wall sign, window sign, illuminated sign, and temporary sign, and shall include any visual display used to draw the attention of the public to any organization, business product, individual or service when the same is placed so that it is clearly visible to the general public from an out of doors position.
This definition is important in rejecting defendants' primary argument that the ban of neon lighting is a violation of their rights to commercial speech protected by the First Amendment. This is a right recognized consistently by the United States Supreme Court since the decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.
[Id. at 765, 96 S.Ct. at 1827, 48 L.Ed.2d at 360.]
However, while commercial speech is protected speech, it can be regulated as to time, place or manner. Content-neutral restrictions of that kind are not subject to higher constitutional standards of protection "provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative...
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