Tomasi v. Wayne Tp.

• Decision Date: 17 December 1973
• Parties: George TOMASI, Individually and Trading as George Richards' For Men, Plaintiff, v. TOWNSHIP OF WAYNE, a Municipal Corporation of the State of New Jersey, Defendant.
• Court: New Jersey Superior Court

Page 169

126 N.J.Super. 169

313 A.2d 229

George TOMASI, Individually and Trading as George Richards' For Men, Plaintiff, v. TOWNSHIP OF WAYNE, a Municipal Corporation of the State of New Jersey, Defendant.

Superior Court of New Jersey Law Division.

Dec. 17, 1973.

William J. Rosenberg, Paterson, for plaintiff.

Robert S. Moraff, Caldwell, for defendant (Lawrence D. Katz, Paterson, on the brief).

SCHWARTZ, L., J.C.C., Temporarily Assigned.

Plaintiff, the holder of a barber shop license issued by the State of New Jersey, has challenged the constitutionality of an ordinance adopted by Wayne Township prohibiting barber shops from remaining open for business after 6:30 p.m. on weekdays. He contends that it is an arbitrary exercise of the police power, there being no relationship between the restraint and the public health, safety and welfare to justify the restrictions imposed upon a legitimate and indispensable business.

The municipality contends that the ordinance is a valid exercise of the police power delegated to it by N.J.S.A. 40:52--1(l). The statute which has been in effect since 1917 (L.1917, c. 97) authorizes municipalities to regulate 'the hours of opening and closing on weekdays' of barber shops.

The court is satisfied that the authority to implement this statute has been specifically delegated to the municipality. But it must face the question of the constitutionality of the grant since it has become necessary for the disposition of this matter and the issue is imperative and inescapable. Smith v. Livingston Tp., 106 N.J.Super. 444, 256 A.2d 85 (Ch.Div.1969); State v. Salerno, 27 N.J. 289, 142 A.2d 636 (1958).

For this reason plaintiff was required by the court to notify the Attorney General of New Jersey of the pendency of this action, but the State did not participate.

In a number of cases the New Jersey courts have sustained the validity of the statute and ordinances on this subject.

In Falco v. Atlantic City, 99 N.J.L. 19, 122 A. 610 (Sup.Ct.1923), a closing hour ordinance and the 1917 closing hour statute were sustained as 'well within the limits of the general police powers':

The fruitfulness of many barber shops as spreaders of certain forms of contagious disease is a matter of common knowledge, and the power of the state and its subordinate agents to provide for licensing, regulation, and inspection of such places in the interest of public health cannot be doubted. (at 21, 122 A. at 610.)

It must be borne in mind that at that time the barbers were not merely hair stylists and they exercised talents far beyond their passion for voluble self-expression. They engaged in phlebotomy as a therapeutic device, as well as leechcraft, and the reduction of fever by the application of heated suction cups to the body. Teeth extraction by a judicious wrench of the pliers was one of their specialties.

It was not unnatural that a class of persons whose business historically brought its members into close contact with persons suffering bodily infirmities should, before the age of sterilization as we find it today, be made a target of condemnation or restraint.

Barbers were the original surgeons, and since the Middle Ages and until the 20th Century they performed operations and amputations and treated wounds and skin lesions. DeZemler, Once Over Lightly. (1939).

The sign of the barber is still a striped spiral pole, the red fillet representing the bloodied bandages used in their ministrations. Thorpe, Practice and Science of Standard Barbering. (1959).

It is without significance, but of interest, to note that even today, in our statute on barbering, a physician and surgeon are exempt from the operation of the act. N.J.S.A. 45:4--30.

Local health regulations of barber shops ended in 1933 when the Legislature preempted (Coculo v. Trenton, 85 N.J.Super. 523, 205 A.2d 340 (App.Div.1964), as to beauty parlors) the entire field of barber hygiene and sanitation in the State by the adoption of an act to license and regulate barbering, which placed the operations of this occupation under the control of the State Department of Health. L.1933, c. 175.

Neither in this statute, nor in the succeeding statutes on the subject, did the Legislature mention or disturb the enabling closing hour statute adopted in 1917, and the delegation to municipalities of a limited power to regulate in the area of hours of closing remains in effect. Tonsorial, Inc. v. Union City, 115 N.J.Super. 33, 277 A.2d 909 (Law Div.1971).

The Legislature, by L.1938, c. 197, enacted a completely new statute regulating the occupation of barbering, providing for the licensing of persons to carry on such occupation, creating the State Board of Barber Examiners, providing for rules regulating the proper conduct and sanitation of the occupation of barbering, and providing penalties for violation thereof.

This law has been amended during the succeeding years so that currently N.J.S.A. 45:4--27 to 56 comprises a comprehensive set of regulations for licensing, inspection and sanitation requirements for barbers and barber shops.

It would serve no purpose to recite all the statutory provisions to assure hygienic and salutory conditions, but these are some of the regulations mentioned in only one of the chapters, N.J.S.A. 45:4--52 (a) There shall be readily available at such shop * * * an adequate supply of hot and cold water and where a public water supply under pressure and a sewerage system is available, there shall be provided in such shop * * * a supply of hot and cold running water under pressure. A barber shop owner shall provide at least one wash basin. The wash basin shall be so situated that the same is readily accessible to the operator of each barber chair.

(b) No towel shall be used on any person which has been used upon another patron unless such towel shall have been relaundered and thoroughly dried * * *.

(c) The head rest of a barber chair shall be covered with a clean covering such as a towel or paper before used on any patron. Head rests shall not be placed on the floor at any time.

(d) There shall be placed about the neck of each patron served a clean towel or other clean material to prevent the hair cloth touching the skin of the patron.

(e) Any tool or part thereof which comes into contact with the head, face or neck of the patron such as razors, scissors, tweezers, combs and parts of vibrators shall be immersed in boiling water or in alcohol of a strength of 70% Or higher or treated by some other equally effective method before being used on each patron. All tools or instruments when not in use shall be kept in a closed compartment and shall be disinfected before being used on a patron.

(f) Any shaving mug and shaving brush shall be thoroughly rinsed in hot water immediately before use in serving a patron.

(g) At least 2 receptacles for soiled towels and waste shall be provided. Only used towels shall be deposited in one and wastes such as used shaving paper shall be deposited in the other. All towels used on each patron must be deposited in an enclosed towel receptacle. All laundered linen must be kept in a closed compartment at all times.

(h) No styptic pencil, finger bowl, sponge, lump alum or powder puff shall be used except of the individual applicator type.

(j) A sterilizer solution container for each chair adequate in size to immerse all instruments, tools and combs to be used on each patron. Such containers shall be kept filled at all times and shall be completely emptied and cleaned and refilled with prescribed solutions at least once each week.

(o) Any barber shop maintaining toilet facilities for public use shall maintain such facilities in a clean and sanitary condition.

(t) Containers with covers must be provided for the storage of hair trimmings and other waste materials.

(w) No barber * * * shall engage in barbering nor be employed in a barber shop or barber school who is affected with any contagious or infectious diseases in a communicable stage.

(x) No common drinking cup or glass shall be maintained, kept or used.

(z) No barber shall smoke while serving a patron.

Legislating the closing hours for this business regulated so antiseptically cannot be sustained as a measure related to 'contagion.'

The fading of the menace of unhealthy barber shop environment which has taken place since the years of Falco, supra, can be measured by the disappearance of one of the early appliances, the spittoon, from the modern barber shop.

These early accessories had been prominently placed to accommodate the aim of the customers. However, the withdrawal from the scene of the phlegm and saliva receptacle was anticipated by the first curbing of its extensive use in 1938 when the Legislature provided:

(g) If any cuspidor is provided it shall be throughly cleaned a least once each day and there shall be kept in such receptacle a disinfectant solution. (L.1938, c. 197).

The demise of this accountment came in 1963. L.1963, c. 156 provides:

(k) The use of cuspidors in a barber shop is prohibited.

While the hours of closing statute may have been reasonably related to the unhygienic conditions of barber shops at one time, the court must examine the situation as it exists today. In applying constitutional principles, the statutes and ordinances which are found clearly not to conform to the Constitution, after giving weight to the new conditions, must fall. Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

In Amodio v. Bd. of Comm'rs, West New York, 133 N.J.L. 220, 43 A.2d 889 (Sup.Ct.1945), the court held that an ordinance compelling Wednesday afternoon closing for barber shops did not violate the Fourteenth Amendment or N.J.Const. (1844), Art. I, § I,...