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Wein v. Town of Irvington

New Jersey Superior Court, Appellate Division

Decided: January 28, 1974.


Carton, Seidman and Demos.

Per Curiam

[126 NJSuper Page 411] Section 22-35 of the Irvington Town Code, adopted in 1960, provides as follows:

[126 NJSuper Page 412]

It shall be unlawful for any person to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish, or offer to publish, or have in his control, or otherwise distribute, make, display or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film image, cast, slide, figure, instrument, statute, drawing or presentation or other article which is obscene, within the town.

Violators are liable to the payment of a fine not exceeding $200, imprisonment for a term up to 90 days, or both.

Plaintiffs, the owners and operators of the "Best Adult Book Store" in Irvington, filed a complaint to enjoin the town, its municipal court, the police department and one of its detectives from arresting and prosecuting them for the alleged sale of obscene materials in violation of the quoted section; to compel the return of a quantity of books, magazines, films and other goods seized by the police pursuant to a warrant, and to declare the section of the Code "preempted, illegal, void, invalid and unconstitutional."

The Chancery Division granted an interim restraint and entered an order directing defendants to show cause why a temporary injunction should not issue pending final hearing. The Essex County Prosecutor was permitted to intervene as a party defendant.

On the return day of the order to show cause, there being no disputed facts, the trial court elected to treat the matter as a motion for summary judgment. The pertinent section of the town code was declared invalid on the ground that it was preempted by N.J.S.A. 2A:115-1.1 et seq., and the complaints pending in the municipal court were dismissed. Plaintiffs' demand for the return of the seized items was denied without prejudice to the making of a later application therefore.

Judgment was entered accordingly and defendants and the intervenor appeal.

In determining that the ordinance was invalid, the trial court relied entirely upon the case of Dimor, Inc. v. Passaic, 122 N.J. Super. 296 (Law Div. 1973). Defendants argue

[126 NJSuper Page 413]

before us, as they did below, that Adams Newark Theatre Co. v. Newark, 22 N.J. 472 (1956), aff'd 354 U.S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957), is dispositive on the authority of the municipality to adopt the type of ordinance under attack herein.

We observe at the outset that Adams Theatre Co. is not in point, since the question of preemption did not arise in that case. The issue there, resolved in favor of the city, was whether an ordinance condemning certain kinds of obscene performances violated the state and federal constitutional provisions guaranteeing freedom of speech.

Dimor involved a declaratory judgment action to invalidate a section of a municipal motion picture theatre licensing ordinance which declared unlawful the exhibiting of immoral pictures or shows "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." Judge Doan, in the Law Division, held that the field of obscenity had been preempted by the State through the enactment of N.J.S.A. 2A:115-1.1 et seq., and, as a consequence, the challenged portion of the ordinance was ultra vires and void.

The matter of preemption has recently been reviewed and the general principles stated in Chester Tp. v. Panicucci, 62 N.J. 94:

See also Coast Cigarettes Sales v. Mayor, etc., Long Branch, 121 N.J. Super. 439, 446 (Law Div. 1972).

There is no doubt that municipalities have statutory power to deal with obscenity. In addition to the omnibus provisions of N.J.S.A. 4:48-2, specific authority to adopt ordinances to prevent vice, drunkenness and immorality is contained in N.J.S.A. 40:48-1(6). Nevertheless, it is our view that statutes on obscenity enacted by the Legislature since 1957, and particularly in 1971, evidence a clear design for uniform state-wide treatment of the subject.

The uttering or exposing of obscene literature or pictures is prohibited by N.J.S.A. 2A:115-2, originally enacted in 1898 (L. 1898, c. 235, p. 808), and amended thereafter only in minor respects in 1957 and 1959. It provides, in pertinent part:

Any person who, without just cause * * * possesses with intent to utter or expose to the view or hearing of another, any obscene or indecent book, publication, pamphlet, picture, * * * or other representation however made or any person who shall sell, * * * or distribute or possess with intent to sell * * *, or offer for sale any obscene or indecent book, publication, pamphlet, picture or other representation, however made, * * * is guilty of a misdemeanor.

The increasing concern of the State with respect to obscenity is apparent in N.J.S.A. 2A:115-1.1, as amended by L. 1971, c. 449, ยง 3, which defines "obscene."*fn1 According

[126 NJSuper Page 415]

to the statement attached to the 1971 amendment, the legislative intent was to establish a constitutionally viable standard for defining the term "which would permit action to be taken against the accumulating flood of salacious films and literature which in recent years has seriously alarmed our citizens." Note should also be taken of the legislative findings set forth in N.J.S.A. 2A:115-1.1a:

The Legislature deemed it necessary to deal specifically with the sale of obscene materials to persons under 18 years of age. N.J.S.A. 2A:115-1.6 et seq. It found

Another statute, also enacted in 1971, makes it a misdemeanor knowingly to communicate publicly "material obscene

[126 NJSuper Page 416]

for public communication." N.J.S.A. 2A:115-2.1 et seq. The Legislative findings are significant:

The Legislature finds that there is increased public communication in the State of salacious and lascivious material; that such public communication is a nuisance which offends the standards, sensibilities and aesthetic values of the State community relating to the public display and vocalization of sexual matters, and assaults individual privacy and that to abate and prevent this nuisance it is necessary to establish a standard of material obscene for public communication and to forbid and punish the public communication thereof. [ N.J.S.A. 2A:115-2.1].

The Legislature has launched a broad attack on a problem it considered offensive to the public community. It has declared the public policy in the matter and clearly spelled out the need for a uniform mode of treatment.

The court said in Dimor, supra :

The subject of obscenity is one of "general public interest and applicability" which necessitated "uniform treatment." Coast Cigarette Sales, Inc. v. Mayor, etc., Long Branch, supra. Surveying all the interests involved it is quite clear that "the Legislature intended to immobilize the municipalities from dealing with local aspects" of the subject matter of obscenity. Summer v. Teaneck, supra. [122 N.J. Super. at 302-303]

We are in substantial agreement with the court's reasoning in Dimor and we reach a like result with respect to the ordinance in this case, the subject-matter of which is encompassed

[126 NJSuper Page 417]

within the statutes referred to hereinabove.*fn2 The trial court correctly held the ordinance invalid on the ground of preemption.

As for plaintiffs' contention that the seized goods should be returned to them, we note that the right of plaintiffs to make application therefor to the court below was reserved in the judgment. We perceive no need for our consideration of that issue on this appeal.




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