This action in lieu of prerogative writ, challenges the validity of a municipal ordinance of the City of Union City entitled "An Ordinance to Regulate Barber Shops, Barbering and Itinerant Barbers in the City of Union City, County of Hudson, to Fix Opening and Closing Hours for Barber Shops and to Provide Penalties for the Violation Thereof." The provision in question, section 11, provides in part that "It shall be unlawful for any barber shop to be open for business on any Sunday, New Year's Day, July 4th, Labor Day, Thanksgiving Day, Christmas, Memorial Day, Washington's Birthday and all Wednesdays except whenever there is a week containing a holiday ; in that instance the barber shop may remain open." (Emphasis added).
Although the matter was presented on the return of an order to show cause for preliminary restraint, the parties stipulated that the court consider the case as if it were submitted on final hearing.
The facts are not in dispute. Plaintiff is engaged in the business of barbering in Union City and is the owner of a barber shop which offers such services to the general public. On January 27, 1971 the Department of Health of the city filed a complaint against Thomas Russo as president of plaintiff corporation alleging that he engaged in barbering at his place of business in violation of section 11, in that he kept his shop open on January 27, 1971, a Wednesday. This court temporarily restrained the city from enforcing the ordinance pending the determination of the issues presently before the court.
In addition to the parties to the litigation, an amicus curiae brief was filed on behalf of the Union City Boss Barbers Association.
Plaintiff challenges the validity of the ordinance on the following grounds: (1) in enacting N.J.S.A. 40:52-1(l) the Legislature has preempted local regulation of the barbering profession; (2) N.J.S.A. 40:52-1(l) does authorize local regulation of plaintiff's business, the municipality is nevertheless not empowered thereunder to adopt ordinances compelling barber shops to close on Wednesdays, and (3) the ordinance is unconstitutional with relation to such compulsory closing in that it is discriminatory, oppressive and unreasonable.
The particular question at issue is a novel one in this state since there are no reported opinions on the subject.
N.J.S.A. 40:52-1 provides:
The governing body may make, amend, repeal and enforce ordinances to license and regulate: * * * (1) The opening and closing of barber shops on Sunday and legal holidays, and the hours of opening and closing on week days, and to impose a penalty for the violation of any such ordinance, not exceeding a fine of $25.00, or imprisonment in the municipal lockup, or in the county jail, not exceeding 10 days.
It further provides that:
Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by any department, board, commission, or other agency of the State.
Plaintiff asserts that since barber shops are licensed by the State Board of Barber Examiners pursuant to N.J.S.A. 45:4-27 et seq. , the municipality is prohibited from making, amending or enforcing ordinances to regulate the days or hours of opening and closing of businesses engaged in barbering. This argument would have merit if the issue before the court were limited to the validity of an ordinance requiring a barber to obtain a municipal license when that individual ...