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Tillberg v. Township of Kearny

Decided: October 15, 1968.

HARRY L. TILLBERG, T/A RITZ BILLIARD ACADEMY, PLAINTIFF,
v.
TOWNSHIP OF KEARNY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MAYOR AND COUNCIL OF THE TOWNSHIP OF KEARNY, DEFENDANTS



Lynch, J.s.c.

Lynch

[103 NJSuper Page 327] Plaintiff is the owner and operator of a billiard parlor in the Town of Kearny, New Jersey, and has been such since on or about March 15, 1964. In 1929 the town had adopted an ordinance providing for the licensing and regulating of billiard parlors. Prior to plaintiff's acquisition of the business involved, he applied to the town council

and received a license to operate. Having thus secured the license, plaintiff purchased the business. It is conceded that the premises were then, as they are now, in violation of section 8 of the ordinance which provides that no license shall be issued to conduct such a business where the place where it is to be conducted is below the surface of the adjoining street, and also in violation of section 6 in that the interior of the premises are not open to full view by the public, either from the street or the hall or corridor of the place where the business is conducted. It is further conceded that the same conditions had existed in violation of the ordinance since 1936, but annual licenses had nevertheless been issued ever since. On June 1, 1964 plaintiff entered into a new five-year lease agreement for the premises at a monthly rental of $110. The license was renewed for the years 1965, 1966 and 1967.

On January 2, 1968 plaintiff applied for renewal of the license for that calendar year, whereupon he was advised that a public hearing would be held on February 4, 1968 concerning his application. Such a hearing was held, and on May 8, 1968 the mayor and council adopted a resolution refusing to renew plaintiff's license. Essentially, four reasons were given for the denial: (a) the premises attract young people who create disturbances, trespass on adjacent property and generally have a detrimental effect upon the peace and welfare of the town; (b) the premises violate the subject ordinance in that the interior is not open to full view by the public from the street or hall or corridor of said premises, as required by section 6 of the ordinance; (c) the premises are situated below the surface of the adjoining street, a violation of section 8, and (d) plaintiff had been fined for permitting a 15-year-old boy to play billiards on the premises on May 6, 1967, in violation of N.J.S. 2 A:170-54.

Plaintiff attacks the action of the town in refusing renewal of the license, essentially on these grounds: (1) the subject ordinance constitutes an unreasonable and arbitrary exercise of the delegated powers of the town; (2) it fails to contain appropriate standards to guide the town authorities in the

issuance or renewal of a license; (3) the licensing provisions, being invalid, are so intimately related to the ordinance as a whole as to render it void; (4) the town is estopped from refusing to renew the license because of noncompliance of the premises with the physical requirements of the ordinance, sections 6 and 8, and (5) the denial of plaintiff's application for a billiard parlor license was arbitrary, unreasonable and capricious. Plaintiff's contentions will be treated in order.

(1)

The reasonableness of the ordinance as a regulation of billiard parlors

Plaintiff's first argument rests in part on the contention that in modern times it is unreasonable to regulate billiard parlors and that their alleged capacity for evil is a relic of bygone days. He would thus belittle the alleged evils of "pool" parlors, much as was so delightfully done by the show-tune, "Trouble in River City,"*fn1 whose lyrics equated "trouble" with "pool," but by hyperbolic artistry clearly carried the message that such relationship existed only in the minds of the credulous and naive. Defendant town, on the other hand, cites Murphy v. State of California, 225 U.S. 623, 32 S. Ct. 697, 56 L. Ed. 1229 (1912), which held that billiard parlors have inherent possibilities for evil arising from the tendency of young people to loiter therein, the encouragement of idleness and with attendant further possibilities of wrongful conduct clandestinely carried on.

It may be that the potentials for evil in billiard parlors today are not the same as they were in 1912. The difference may be only in kind. We cannot be blind to the possibility that public pool parlors may be the situs of gambling (cf. Feder v. McCaffrey, 110 N.Y.S. 2 d 488 (Sup. Ct. 1952)), lottery or, more relevant to today's problems, perhaps the purveying or use of drugs. Though there is no evidence

of such use here, the feasibility thereof is the relevant consideration. The concept of Murphy v. State of California, supra, has been endorsed as the public policy of this State by N.J.S. 2 A:170-54, which ordains that billiard parlors are not appropriate for the attendance of young people under the age of 16. To that end they may be regulated by facilitating surveillance by the police.

Despite the entertaining appeal of "Trouble in River City" that only the credulous find evil in pool, ordinances such as that here involved are aimed, as was said in Murphy, not at the game but at the place. In any event, N.J.S.A. 40:52-1(f) expressly delegates to municipalities the power to regulate billiard parlors. The exercise of legislative judgment in this respect is not subject to judicial superintendence unless plainly beyond the realm of police power or palpably unreasonable. State v. Mundet Cork Corp., 8 N.J. 359 (1952). The reasonableness is committed in the first instance to the municipal authorities. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405 (1952).

The court cannot say that the regulation of billiard parlors contained in this ordinance, particularly sections 6 and 8 concerning the physical characteristics of the premises, is palpably unreasonable.*fn2 Such provisions as that the premises be open to view from outside and be at street level may serve to provide better surveillance by the police and prevent clandestine acts inimical to the general welfare of the municipality. The provisions are in furtherance of the policy established by N.J.S. 2 A:170-54, supra. Whether this is desirable legislative judgment is for the local governing body to decide, and not this court.

(2)

The sufficiency of "standards" for licensing

With respect to plaintiff's contention that the ordinance is lacking in sufficient "standards" for the issuance of a

license, it is noted first that sections 2(2) and 2(3) provide that no license may issue unless "the Chief of Police approves in writing and application," and that the Council "approve said application."

It is well settled that a licensing ordinance vesting discretion in municipal officials to issue or deny a license must contain appropriate standards to govern such decisions. Moyant v. Borough of Paramus, 30 N.J. 528 (1959); Weiner v. Borough of Stratford, County of Camden, 15 N.J. 295 (1954); Finn v. Municipal Council of City of Clifton, 136 N.J.L. 34 (E. & A. 1946); Lipkin v. Duffy, 119 N.J.L. 366 (E. & A. 1937); Jersey City Merchants Council v. Jersey City, 71 N.J. Super. 156 (App. Div. 1961); Gross v. Allan, 37 N.J. Super. 262 (App. Div. 1955); Mister Softee v. Mayor and Council of City of Hoboken, 77 N.J. Super. 354 (Law Div. 1962).

In Gross v. Allan, an ordinance of the Town of Kearny provided for the licensing of the business of selling motor vehicles on vacant land. It provided that the license shall not issue until after approval by the building inspector, the superintendent of the fire prevention bureau and the town council "after hearing thereon."*fn3 The court said:

"There is no escape from the essentiality of specific provisions plainly stating the norms or standards which are to guide and control the designated officials in determining whether the license shall be granted or denied. Weiner v. Borough of Stratford, 15 N.J. 295, 299 (1954); Township of Raritan v. Hubb Motors, Inc., 26 N.J. Super. 409, 410 (App. Div. 1953); Finn v. Municipal Council of City of Clifton, 136 N.J.L. 34 (E. & A. 1947); Rosenberg v. Board of Com'rs of City of Camden, 137 N.J.L. 505 (Sup. Ct. 1948). Defendants urge that the requirements for approval by the building inspector and the superintendent of the fire prevention bureau sufficiently imply an intent that the statutes and ordinances committed to their administrative enforcement should constitute the standards applicable. Cf. Kurinsky v. Board of Health, Lakewood Township, 128 N.J.L. 185, 187 (Sup. Ct. 1942). While the nature of the subject matter regulated may in a particular case warrant fairly

broad standards, Adams Theatre Co. v. Keenan, 12 N.J. 267, 274 (1953); Ward v. Scott, 11 N.J. 117, 123, 124 (1952), the legislative language should not leave any doubt as to what the standards are. The mere requirement of the approval of particular administrative or police officers does not spell out the standards, particularly where, as here, there is overlaid the requirement of approval by the governing body 'after hearing', unaccompanied by specification of any kind of criterion upon which the decision at the hearing is to hinge. Finn v. Municipal Council of City of Clifton, supra (136 N.J.L., at pages 36, 37). Section 4 of this ordinance is defective on its face and invalid." (37 N.J. Super., at p. 268; emphasis added)

Defendants point to section 9 of the ordinance which reads as follows:

"Any license granted pursuant to the terms of this ordinance may be revoked by resolution of this Council upon hearing and for due cause such as failure to comply with any of the ...


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