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Gold v. City Council

Decided: October 31, 1972.

JACK GOLD AND IRWIN GOLDSTEIN, T/A THE FRAZIER MARKET, PLAINTIFFS-APPELLANTS,
v.
THE CITY COUNCIL OF THE CITY OF TRENTON, A MUNICIPAL CORP. OF NEW JERSEY, DEFENDANT-RESPONDENT. AND JOHN F. FUNDIN, PLAINTIFF-APPELLANT, V. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LAWRENCE, A MUNICIPAL CORP. OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Labrecque, Kolovsky and Matthews. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Plaintiffs appeal from judgments sustaining the validity of ordinances adopted by defendant municipalities which provide in pertinent part that it shall be unlawful for any food dealer in the respective municipality

Plaintiffs urge three reasons in support of their contentions that the ordinances are invalid. All were rejected by the trial court but are repeated here. We find none of them to be meritorious.

Plaintiffs first contend that the State, by enactment of L. 1968, c. 428, now N.J.S.A. 24:15A-3 and 4, has preempted

the field and that therefore the municipalities had no power to adopt the ordinances in question. The cited statute reads as follows:

1. No prepackaged unprocessed or untreated fresh or frozen meat shall be sold or exposed for sale at retail on the same premises where packaged, unless such package is colorless and transparent on at least one of the sides with the largest exposed surface area, exclusive of labeling which shall not occupy more than 10% of such side or 5 square inches, whichever is greater.

2. The provisions of this act shall be applicable throughout the State and shall be enforced by the State Department of Health and local boards of health.

The trial court noted that in the statement issued by Governor Hughes when he signed the bill which became L. 1968, c. 428, he said:

I feel that with the enactment of this legislation we have established a basic minimum necessary to protect the consumer from the small minority of unscrupulous persons who would conceal the true quality of the meats that they sold * * * [and that]

[The legislation] would not, however, prohibit a municipality from adopting an ordinance requiring that both sides of a package be transparent as in fact some municipalities have already done.

The trial court concurred with the Governor's observations. It ruled that the language of the statute did not evince an intent to bar municipalities from adopting more restrictive regulations ...


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