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Tomasi v. Township of Wayne

Decided: December 17, 1973.


Schwartz, L., J.c.c., Temporarily Assigned.


Plaintiff, the holder of a barber shop license issued by the State of New Jersey, has challenged the constitutionality of an ordinance adopted by Wayne Township prohibiting barber shops from remaining open for business after 6:30 P.M. on weekdays. He contends that it is an arbitrary exercise of the police power, there being no relationship between the restraint and the public health, safety and welfare to justify the restrictions imposed upon a legitimate and indispensable business.

The municipality contends that the ordinance is a valid exercise of the police power delegated to it by N.J.S.A. 40:52-1(l). The statute which has been in effect since 1917 (L. 1917, c. 97) authorizes municipalities to regulate "the hours of opening and closing on weekdays" of barber shops.

The court is satisfied that the authority to implement this statute has been specifically delegated to the municipality.

But it must face the question of the constitutionality of the grant since it has become necessary for the disposition of this matter and the issue is imperative and inescapable. Smith v. Livingston Tp., 106 N.J. Super. 444 (Ch. Div. 1969); State v. Salerno, 27 N.J. 289 (1958).

For this reason plaintiff was required by the court to notify the Attorney General of New Jersey of the pendency of this action, but the State did not participate.

In a number of cases the New Jersey courts have sustained the validity of the statute and ordinances on this subject.

In Falco v. Atlantic City, 99 N.J.L. 19 (Sup. Ct. 1923), a closing hour ordinance and the 1917 closing hour statute were sustained as "well within the limits of the general police powers":

The fruitfulness of many barber shops as spreaders of certain forms of contagious disease is a matter of common knowledge, and the power of the state and its subordinate agents to provide for licensing, regulation, and inspection of such places in the interest of public health cannot be doubted. [at 21]

It must be borne in mind that at that time the barbers were not merely hair stylists and they exercised talents far beyond their passion for voluble self-expression. They engaged in phlebotomy as a therapeutic device, as well as leech-craft, and the reduction of fever by the application of heated suction cups to the body. Teeth extraction by a judicious wrench of the pliers was one of their specialties.

It was not unnatural that a class of persons whose business historically brought its members into close contact with persons suffering bodily infirmities should, before the age of sterilization as we find it today, be made a target of condemnation or restraint.

Barbers were the original surgeons, and since the Middle Ages and until the 20th Century they performed operations and amputations and treated wounds and skin lesions. DeZemler, Once Over Lightly. (1939).

The sign of the barber is still a striped spiral pole, the red fillet representing the bloodied bandages used in their ministrations. Thorpe, Practice and Science of Standard Barbering. (1959).

It is without significance, but of interest, to note that even today, in our statute on barbering, a physician and surgeon are exempt from the operation of the act. N.J.S.A. 45:4-30.

Local health regulations of barber shops ended in 1933 when the Legislature preempted (Coculo v. Trenton, 85 N.J. Super. 523 (App. Div. 1964), as to beauty parlors) the entire field of barber hygiene and sanitation in the State by the adoption of an act to license and regulate barbering, which placed the operations of this occupation under the control of the State Department of Health. (L. 1933, c. 175).

Neither in this statute, nor in the succeeding statutes on the subject, did the Legislature mention or disturb the enabling closing hour statute adopted in 1917, and the delegation to municipalities of a limited power to regulate in the area of hours of closing remains in effect. Tonsorial, Inc. v. Union City, 115 N.J. Super. 33 (Law Div. 1971).

The Legislature, by L. 1938, c. 197, enacted a completely new statute regulating the occupation of barbering, providing for the licensing of persons to carry on such occupation, creating the State Board of Barber Examiners, providing for rules regulating the proper conduct and sanitation of the occupation of barbering, and providing penalties for violation thereof.

This law has been amended during the succeeding years so that currently N.J.S.A. 45:4-27 to 56 comprises a comprehensive set of regulations for licensing, inspection and sanitation requirements for barbers and barber shops.

It would serve no purpose to recite all the statutory provisions to assure hygienic and salutory conditions, but these are some of the regulations mentioned in only one of the chapters, N.J.S.A. 45:4-52:

(a) There shall be readily available at such shop * * * an adequate supply of hot and cold water and where a public water supply under pressure and a sewerage system is available, there shall be provided in such shop * * * a supply of hot and cold running water under pressure. A barber shop owner shall provide at least one wash basin. The wash basin ...

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