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Mogolefsky v. Schoem

Decided: December 22, 1967.


For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Hall, J.


[50 NJ Page 590] The plaintiffs are real estate salesmen duly licensed by the New Jersey Real Estate Commission. They are employed by J.I. Kislak, Inc., a real estate broker similarly licensed, which engages in brokerage of residential and other property in various parts of the state. One of

its methods of securing residential property to sell is to have its salesman go from house to house in a community, without prior invitation or appointment, soliciting sales listings. While so doing in the city of Clifton, plaintiffs were arrested for violating the city's ordinance regulating canvassers and solicitors, which provides:

"No person shall solicit or call from house to house in the city to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having received a written permit therefor." (Emphasis supplied).

Admittedly the plaintiffs had not obtained or even applied for such permits.

During the pendency of the charges in the Municipal Court, plaintiffs instituted the first-captioned action in the Chancery Division against the Mayor, Chief of Police and governing body of the city, seeking to have the ordinance declared null and void as to them and to restrain its enforcement. The theory was that the state had preempted all regulation of real estate brokers and salesmen by the enactment of the statute providing for the licensing of such persons at the state level. N.J.S.A. 45:15-1, et seq. They do not contend that the city's ordinance is invalid per se (see Moyant v. Borough of Paramus, 30 N.J. 528 (1959); N.J.S.A. 40:48-2), or that it did not, or was not intended, on its face, to apply to their solicitation activities.

The defendants, taking the view that the real estate license law did not in any way supersede the municipal power to regulate generally soliciting and canvassing, moved for summary judgment. The trial court agreed and granted the motion, resulting in a dismissal of the complaint.

Thereafter, the plaintiff Berman applied for a permit, offering to comply with all the requirements of the ordinance therefor. His application was rejected because of the violation

complaint against him in the Municipal Court, which had been held in abeyance pending the outcome of the Chancery Division suit. Thereupon he commenced the second-captioned action in the same court, asking that the city be enjoined from the enforcement of the ordinance against him because the municipality arbitrarily refused to issue him a permit even if he fully complied with the ordinance. Before this suit came on for disposition, the Municipal Court found plaintiffs guilty of violating the ordinance (from which they took appeals to the Passaic County Court, which we understand remain undecided pending the final outcome of the litigation at bar). The defendants then moved for summary judgment, which the trial court granted, holding that the city was justified in denying Berman a permit because he had previously violated the ordinance.

On plaintiffs' consolidated appeals of the judgments in the two civil actions, the Appellate Division admitted the State and the New Jersey Real Estate Commission as amici curiae to present their views through the Attorney General, which, as elaborated upon at oral argument before us and by further advices thereafter, will be referred to later herein. That court felt that, while the state real estate license statute did not completely preempt municipal regulation, under basic police power principles, of persons so licensed as far as their door-to-door solicitation of business was concerned, it did preclude any municipal determination with respect to moral character or business responsibility as a condition of a licensed real estate salesman obtaining a solicitor's permit, since determination as to such matters was reposed in the Real Estate Commission in connection with its issuance of licenses.

The court held, 90 N.J. Super. 49 (1966), that only the provision of the ordinance restricting house-to-house solicitation to weekdays between the hours of 9 A.M. to 5 P.M. was validly applicable to real estate salesmen and went on to say:

"We are not deciding that a valid ordinance may not be adopted which would require all house to house solicitors for business, including real estate salesmen, to apply for and carry with them, while soliciting, an identification card or permit issued by the local police. However, in the case of licensed real estate brokers or salesmen, no fee may be required therefor and the identification card or permit must be issued without the requisite of fingerprinting or other qualifying test beyond establishing that they are licensed brokers or salesmen. Such a police identification card would achieve the objectives of this ordinance without interfering with the statutory rights of the licensees. However, no particular ordinance with such provisions is before us and we do not now definitely pass on such a situation until an actual case is presented." (90 N.J. Super., at pp. 59-60).

As to the second suit, the court found it unnecessary to decide whether the plaintiff Berman was properly denied a permit for the calendar year in which he violated the ordinance, that year having also long since passed. The result of the appeals therefore was a reversal of the judgments dismissing the complaints and a direction to remand for the entry of an order enjoining defendants from enforcing the provisions of the ordinance as to plaintiff, except as to the provision limiting the hours of solicitation.

We granted the defendants' petition for certification, in which they reiterated their contention that municipal power in the field of canvassing and soliciting is not at all affected by the real estate licensing statute. 47 N.J. 241 (1966). Although the plaintiffs did not cross-petition, their brief indicates they still adhere to the position that no municipal ...

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