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Fasino v. Mayor and Members of Borough Council of Montvale

Decided: January 29, 1973.

JOHN FASINO AND CHERYL FASINO, TR/A SEVEN ELEVEN STORE NO. 11461, PLAINTIFFS,
v.
MAYOR AND MEMBERS OF THE BOROUGH COUNCIL OF THE BOROUGH OF MONTVALE, A MUNICIPAL BODY CORPORATE OF THE STATE OF NEW JERSEY, DEFENDANTS



Pashman, A.j.s.c.

Pashman

The question for decision is the constitutionality of an ordinance approved by Montvale.

The parties present this simple and undecided question: Is the ordinance of Montvale regulating opening and closing hours of retail business establishments valid?

My answer is no. This is not a constitutional exercise of the police power.

Plaintiffs are the owners and operators of a Seven-Eleven grocery store located within the Borough of Montvale. Their store is not a large supermarket but rather a small convenience store where customers can pick up last-minute items such as milk, eggs, orange juice, snacks, etc. Such stores have in effect taken the place of the local corner store. Plaintiffs, in order to meet the needs and desires of their customers, have recently decided to keep their store open 24 hours per day. They say that in remaining open plaintiffs are providing a needed service to the community.

The Borough of Montvale is a small community of 7500 primarily residential in character. In order to protect the peace and quiet of their community, to eliminate traffic noises during the night hours, and to lessen the hazards of nighttime crime, defendants have adopted the following ordinance:

AN ORDINANCE TO ESTABLISH HOURS OF OPENING AND CLOSING FOR RETAIL ESTABLISHMENTS IN THE MUNICIPALITY.

ARTICLE 1. Retail Businesses. Declaration of Purpose.

It is hereby declared to be the purpose of this Article to regulate the closing hours of various retail businesses within the Borough of Montvale in order to avoid the noise, inconvenience and disturbance

to residential areas within the Borough which are caused when retail establishments remain open during the late evening hours. It is hereby declared and determined to be in the best interests of the health, safety and welfare of the residents of the Borough of Montvale that the retail businesses regulated by this article cease the conduct of their business at a reasonable hour.

ARTICLE 2. Definitions. As used in this Article.

Retail Business means and includes any business which holds itself out to the general public for the sale at retail of goods and services.

ARTICLE 3. Closing Hours.

Every retail business within the Borough of Montvale shall be closed to the public, and business with the public therein shall be and is hereby prohibited after the hour of 11:00 P.M. and before the hour of 6:30 A.M. of any day. The provisions of this Section shall not apply to the sale of food and/or beverages sold exclusively for on premises consumption.

ARTICLE 4. All ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed to such inconsistencies.

ARTICLE 5. This ordinance shall take effect immediately upon publication after final passage and approval as required by law.

Plaintiffs challenge the validity of the ordinance on the grounds that:

(1) It is an arbitrary exercise of the zoning power;

(2) It is unreasonable and discriminatory as it applies to their business;

(3) There is no substantial relation to the public health, safety or welfare to justify the restrictions imposed on a legitimate business.

Montvale claims the ordinance is valid as a reasonable exercise of the police power to regulate businesses in order to protect the slumber of its residents by eliminating the noise, light and traffic that accompanies all-night retail operations. Defendants also contend that they are unable to provide adequate police protection to all-night establishments since Montvale has only two policemen on duty during the hours of 11 P.M. until 7 A.M.

N.J.S.A. 40:52-1(g) gives municipalities the power to license and regulate all businesses within its boundaries. It is perfectly clear that private business may be regulated

for the common good and welfare. Nebbia v. New York , 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934); Barbier v. Connolly , 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923 (1885); Jones v. Haridor Realty Corp. , 37 N.J. 384 (1962); Two Guys from Harrison, Inc. v. Furman , 32 N.J. 199 (1960); Masters-Jersey, Inc. v. Paramus , 32 N.J. 296 (1960). However, it is equally clear that the particular regulation must bear a substantial relation to the public health, safety or welfare; otherwise there would be an unwarranted intrusion on the basic right of private property. Brandon v. Montclair , 124 N.J.L. 135, 142 (Sup. Ct. 1940), aff'd 125 N.J.L. 367 (E. & A. 1940); Delawanna Iron & Metal Co. v. Albrecht , 9 N.J. 424, 429 (1952). "It is requisite that the common welfare be advantaged to a substantial degree to justify the exercise of the police power." N.J. Good Humor, Inc. v. Bradley Beach , 124 N.J.L. 162, 168 (E. & A. 1940). As Justice Roberts, speaking for the United States Supreme Court, stated in Nebbia v. New York, supra:

The Fifth Amendment, in the field of federal activity and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the ...


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