State v. Schwarcz
| Decision Date | 09 April 1973 |
| Citation | 303 A.2d 610,123 N.J.Super. 482 |
| Parties | STATE of New Jersey, Plaintiff, v. Nathan SCHWARCZ, Defendant. -Criminal, New Jersey |
| Court | New Jersey County Court |
Robert F. Dato, Municipal Atty., Woodbridge Township, for plaintiff.
Harold G. Cohen, Perth Amboy, for defendant (Wilentz, Goldman & Spitzer, Perth Amboy, attorneys).
SCHWARTZ, J.C.C.
This is an appeal from the Municipal Court of Woodbridge Township where the matter was decided on a stipulation of facts. Defendant, charged with violating 'An Ordinance to regulate hours of operating and closing of barber shops etc.,' was found 'not guilty.'
Among other things, it was agreed that 'a male patron entered the defendant's barber shop at approximately 7:26 P.M.' and 'received a haircut thereafter.' This violated the closing hour fixed by the ordinance. The stipulation also provided: 'Defendant has moved pursuant to R. 7:4--2(e) thereby challenging the ordinance as unconstitutional on its face and as applied.'
The municipal court viewed the instant situation 'in a different era' vis-a-vis Amodio v. West New York, 133 N.J.L. 220, 43 A.2d 889 (Sup.Ct. 1945), and concluded that since the beauty parlor ordinance did not regulate closing hours, it is 'basically and intrinsically unfair, so unjust, has no relation to the public health, safety and welfare'; 'there is no logical distinction between the two,' and considering it unfair to 'shun its responsibility' found defendant 'not guilty.'
The township filed a timely notice of appeal (assuming it had a right to appeal).
Defendant urges finality of the municipal decision on the authority of State v. Cannorozzi, 77 N.J.Super. 236, 186 A.2d 113 (App.Div.1962).
Neither party drew any distinction between a notice of appeal and an application for leave to appeal. R. 3:23 limits the right to appeal from a municipal court to a defendant following conviction, presumably because an acquittal is final. Bd. of Health v. Tandy & Allen, Inc., 29 N.J.Super. 61, 101 A.2d 617 (Cty.Ct.1953). Either party, however, may move to seek leave to appeal to the County Court from an interlocutory order entered before trial, R. 3:24. Since the township's only relief in these circumstances could be by way of leave to appeal from an interlocutory order, and defendant plainly sought an interlocutory determination under R. 7:4--2(e), I viewed the notice of appeal as application for leave to appeal. Form should not be exalted over substance. R. 1:1--2.
State v. Cannorozzi, Supra, illustrates the frustration of an appellate court unable to correct an unjust and erroneous result where, on a stipulation, as here, a state statute was ruled unconstitutional and the complaint dismissed. R. 3:10--3 was thereafter adopted. It provides that a constitutional question must be raised before trial or after a verdict of guilty. 'Such defenses shall not be considered during trial.' The rule was intended to prevent repetition of a Cannorozzi result. See Comment to R. 3:10--3.
R. 3:10--3 is made applicable to the municipal court and ordinances by R. 7:4--2(e). Consequently, the constitutional issue decided in the municipal court is appealable. The contention that double jeopardy attaches as in Cannorozzi () is no longer tenable. Cannorozzi held that a judgment of acquittal entered At the end of a trial is not appealable even though based upon a conclusion that the ordinance is inapplicable by its terms or invalid. Here it was a ruling Before trial. R. 3:10--3 requires it before trial or after a verdict of guilty, and there was no verdict of guilty here. I granted leave to appeal and 'simultaneously (proceeded to) decided the appeal on the merits * * *.' See R. 3:24.
The barber shop ordinance regulates hours of opening and closing. The beauty parlor ordinance does not. Thus, defendant urges that barbers are not accorded equal protection of the law; that 'in view of the unisexual nature of hairstyling services rendered in both barber shops and beauty parlors' it is discriminatory to leave hours of the latter unregulated. It is said that the 'changing cultural milieu' has rendered decisions such as Amodio, supra, and Falco v. Atlantic City, 99 N.J.L. 19, 122 A. 610 (Sup.Ct.1923) (while 'controlling' and 'on point'), antiquated and therefore not controlling as 'stare decisis' but 'rather for their ratio decidendi' which are equally sound today and support the result sought here in that (the former Supreme Court) held 'all persons engaged in the same business are thereby treated alike; are subject to the same restrictions; and are entitled to the same privileges under similar conditions.' Falco v. Atlantic City, Supra at 22, 122 A. at 611; 'The inquiry is whether there is discrimination against anyone within the prescribed limits of the regulation * * * '(and) if within the sphere of its operation it affects alike all persons similarly situated,' * * *.' Amodio, supra, 133 N.J.L. at 220, 43 A.2d at 893. From this the logic advanced is that men patronize beauty parlors today and therefore it follows that beauty parlors and barber shops are engaged in the same business and are to be treated alike and entitled to the same privileges.
The questions raised are novel. Beauty parlors and barber shops cannot be said to be 'engaged in the same business,' and a male seeking service and being accommodated in a beauty parlor does not make it so. Is the discrimination 'within the prescribed limits of the regulation?' Are all within the sphere of its operation and similarly situated treated alike?
In Amodio v. West New York, Supra, it was said:
Nor is the ordinance discriminatory because 'beauty parlors and all other businesses, trades and professions are not affected thereby.' As noted the exigency in the particular case is for the judgment of the lawmaking power; and, unless there is an utter lack of basis for the classification, the action taken is not discriminatory in the constitutional sense. There is no invidious discrimination merely because the evil may in some degree extend to other occupations. The question of the relative need is essentially one for the legislative judgment. The inquiry is whether there is discrimination against anyone within the prescribed limits of the regulation. Special burdens are often necessary for general benefits; and if the restrictions operate alike upon all persons and property under the same circumstances and conditions, there is no just ground of complaint. (at 226, 43 A.2d at 893; emphasis added).
This would be dispositive (in a period when men were served only in barbershops) since it is specifically in point. Now, it is said to be anachronistic. The argument rests on the ambiance of our time, on current style. New regulations in New York State 'at which men and women can use the same facility to obtain their hairdressing needs' is said to demonstrate this. However, that regulation requires that licensed barbers and hairdressers be employed to perform services requested by male and female patrons and such shops are to provide enclosed booths for privacy of a patron who desires it. Local barber shop regulations in New York are not shown to be inapplicable to a barber shop operating jointly with a beauty parlor under the New York regulation. A clipping (appended to the brief) from the Washington Post of July 16, 1972 also states that 'until now, separate licenses were required for a beauty parlor and a barber shop and It was illegal to treat the two sexes together unless separate hours or separate parts of a shop were provided.' (Emphasis added).
I find no such comparable provisions in our statutes, i.e., that 'it is illegal to treat the two sexes together * * *.' Our statutes do not prohibit both men and women from being served on the same premises for such needs, although separate licenses are, in my judgment, impliedly required. N.J.S.A. 45:4--1 et seq. and N.J.S.A. 45:4A--1 et seq. It is noted that such shops do exist, but this is not to say they must.
The new New York regulation 166.27 of Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York provides:
Discrimination between patrons on account of sex prohibited.
(a) No shop licensed pursuant to Articles 27 and 28 of the General Business Law shall discriminate between patrons on account of sex. Both male and female patrons May be served and accommodated in either a licensed barber shop or licensed beauty shop provided the owner employs licensed operators in each category to perform the services requested by the patron, in accordance with the qualifications of the operator specified and required by law.
(b) Any such licensed shop employing both licensed barbers and licensed cosmetologists shall provide an enclosed booth to Insure the privacy of any patron, male or female, who requests it.
(c) Each such licensed shop employing licensed barbers and licensed costmetologists Shall post a sign, prominently displayed on the exterior of the premises, Advertising the fact that services may be provided to both male and female patrons. (Emphasis added).
This does not support defendant. It is implicit (from the news clipping and the regulation submitted) that in New York a hair styler (beautician) was not licensed to serve men prior to the new regulation, nor is it sanctioned under the new regulation. Men and women can use the same facility under the new regulation provided both 'licensed barbers and licensed cosmetologists' are employed 'in each category to perform the service--in accordance with the qualifications of the operator specified and required by law.' The New York regulation referred to does not require the conclusion of unlawful discrimination or of deprivation of a constitutional right here. It does underscore the fact that theretofore a female was required to patronize one and a male the other. Nor does the New York...
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...41 N.J. 531, 197 A.2d 678 (1964) (defendant failed to raise double jeopardy claim before trial). See also State v. Schwarcz, 123 N.J.Super. 482, 303 A.2d 610 (Law Div.1972) (court will treat unconstitutionality defense as having been raised before trial). However, the bench and bar can scar......
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