Doan, J.c.c., Temporarily Assigned.
[122 NJSuper Page 298] On January 6, 1972 defendant City of Passaic through its mayor and council, adopted ordinance No. 135-72 which set forth certain licensing
requirements with respect to motion picture theatres. Its effective date was January 26, 1972. Paragraph 4 of the ordinance provides:
It shall be unlawful for any person conducting a theatre or moving picture show to exhibit immoral pictures or shows of any character, whose dominant theme appeals to the prurient interest, is patently offensive, affronts contemporary community standards relating to sexual matters and is without redeeming social value.
The ordinance provides for a penalty of up to a $200 fine a day for each day that such a motion picture is shown.
Plaintiff Dimor, Inc., and intervenors Passaic Cinema, Inc. and S.M.H. Amusement Co., are owners respectively of the Montauk, Capital and Central Theatres, establishments regularly in the business of showing motion pictures in the City of Passaic. This action was instituted under the Declaratory Judgment Act (N.J.S.A. 2A:16-52) whereby plaintiff and intervenors seek to have said paragraph 4 declared illegal and void as being preempted by the statute dealing with obscenity, N.J.S.A. 2A:115-1.1 et seq. , which was extant at the time the ordinance was adopted. That statute defined the term "obscene" as follows:
(a) The word "obscene" wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.
(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:
(1) The dominant theme of the material taken as a whole appeals to a prurient interest;
(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(3) The material is utterly without redeeming social value.
The penalty for uttering or exposing obscene literature or pictures was made a misdemeanor ...