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Trombetta v. Mayor and Commissioners

Decided: July 6, 1981.


Gruccio, A.j.s.c.


Plaintiff Robert Trombetta rents a business location at 1826 and 1826 1/2 Atlantic Avenue in the City of Atlantic City, New Jersey. Atlantic Avenue is a main artery which traverses the city. This business location appears within the central business district of Atlantic City.

Trading as United Adult Books, plaintiff operates an adult book store and provides adult entertainment through coin-operated machines. Plaintiff currently operates ten peep shows pursuant to mercantile licenses obtained for this purpose. The subject matter of this suit involves two additional applications for mercantile licenses filed by plaintiff.

On February 22, 1980 plaintiff applied for 20 additional peepshow mercantile licenses. On March 12, 1980, he submitted a revised application for (24) additional mercantile licenses instead of 20. This time plaintiff requested 12 coin-operated peepshow mercantile licenses utilizing live nude female dancers, 8 coin-operated conversational booth mercantile licenses utilizing live nude females and 4 coin-operated peepshow mercantile licenses.

On March 13, 1980, one day following plaintiff's revised application, Commissioner Roth introduced Ordinance 28 of 1980, which proscribed nudity in private business establishments within Atlantic City to which the public are invited. That ordinance contained the following two sections:

SECTION 1. Nothing contained in any other ordinances to the contrary withstanding, there shall not be permitted in any public place nor on the premises of any business enterprise within the City of Atlantic City, any dancers, entertainers, performers, or other employees whose specified anatomical areas are exposed or are less than completely and opaquely covered.

For the purpose of this Ordinance, specified anatomical areas are the following:

(a) Human genitals, pubic region.

(b) Buttock.

(c) Female breast below a point immediately above the areola.

SECTION 2. This Ordinance shall take effect immediately upon its final passage and publication according to law.

On March 27, 1980 this ordinance was amended and unanimously adopted to provide as follows:

Section 2 of Ordinance No. 28 of 1980 shall hereafter be known as Section 4 and shall be replaced by the following new Sections 2 and 3:

SECTION 2. Any person violating any of the provisions of this Ordinance shall, upon conviction thereof before the Municipal Court Judge of the City of Atlantic City, be sentenced to pay a fine of not exceeding Five Hundred Dollars ($500.00) or by imprisonment for not more than ninety (90) days in the County Jail, or both, in the discretion of the said Municipal Court Judge.

SECTION 3. For the purposes of the above Section 2, the owner of the premises in which the violation occurs and the dancer, entertainer, performer or employee involved in the violation shall both be considered as violative of this Ordinance and subject to the above penalty.

This amended ordinance became effective on March 31, 1980 upon publication.

By letter dated April 2, 1980 the city solicitor asked plaintiff to reduce the number of requested licenses from 24 to 10, since "it has been the policy of the City to limit the number of coin operated vending machines (peep shows) in premises such as yours." By letter dated April 7, 1980 the city solicitor informed plaintiff that: "As to [his] application of March 12, 1980 for the 12 automatic coin operated licenses, or live pep [ sic ] shows utilizing nude girls, and for 7 licenses for conversational booths with nude girls, these licenses must be denied based upon Ordinance No. 28 of 1980. . . ."

On April 25, 1980 plaintiff, through his attorney, informed the city solicitor by letter that he did not wish to reduce his request for 24 licenses to 10 and requested that his applications be processed as expeditiously as possible. By letter dated May 5, 1980 the city solicitor wrote plaintiff's counsel to indicate that the city has a legitimate interest in the number of coin-operated peep shows to be licensed in the city; that the issuance of a mercantile license is not a ministerial duty, and that the city has a right to regulate businesses within the city and the issuance of licenses for same. He expressed his continuing desire to negotiate the number of licenses for which plaintiff applied.

On May 21, 1980 plaintiff filed a complaint in lieu of prerogative writs. Plaintiff attacks the action of the city in denying the licenses, essentially on these grounds: (1) the State of New Jersey has preempted the regulation of sexually explicit materials and their communication through N.J.S.A. 2A:115-1 and its successor statute, 2C:14-4; (2) the ordinances in question are unconstitutional in that they are a prior restraint upon First Amendment rights of plaintiff and they violate the Due Process Clause of both the United States Constitution and the New Jersey State Constitution, in that they prevent circulation, communication and distribution of constitutionally protected material; (3) the ordinances have deprived and will deprive plaintiff of his rights as guaranteed by the Privileges and Immunities Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Equal Protection

Clause of the Fourteenth Amendment; (4) the city is employing its police power overbroadly, and the ordinances are arbitrary, unreasonable, discriminatory, oppressive and unlawful.

Plaintiff demands judgment against the Mayor and the Commissioners of Atlantic City pursuant to N.J.S.A. 2A:16-50 through 2A:16-62 and N.J.S.A. 2A:16-23, declaring the enactment of the ordinances as ultra vires and unconstitutional; for preliminary and permanent injunctive relief precluding enforcement of the within ordinances; for an order requiring issuance of the licenses applied for, and for costs of suit.

A hearing was held before this court on October 3, 1980 with respect to an application for a summary judgment declaring the invalidity of Ordinance 28 of 1980 and for a requirement on the part of the city to issue requested coin-operated mercantile licenses.

As a consequence of the October 3 hearing this court ordered that the city schedule a hearing with respect to the outstanding applications made by plaintiff. Such a hearing occurred on October 20, 1980 in the Atlantic City Hall.

At the time of the hearing before this court on October 3, 1980, the city took the position that Ordinance 37 of 1977 was an applicable ordinance justifying the refusal of the city to grant the requested licenses. The city places special reliance on § 2(A)(3) of that ordinance, which provides that

Any license or permit application made pursuant to the provisions of this Ordinance or any amendment thereof for the conducting of business may be denied for good cause by the Mercantile Licensing Bureau or by the Governing Body. Good cause for the denial of a license or permit shall include, but is not limited to:

(3) A finding by the Mercantile Licensing Bureau or by the Governing Body that said business will not comport with the peace, health, safety, convenience, good morals, or general welfare of the public. . . .

At the hearing conducted on October 20, 1980 the city for the first time took the position that it was justified in refusing to

grant the requested licenses as a consequence of a provision in the Atlantic City Municipal Land Use Ordinance that prohibits live entertainment in the central business district except in a restaurant. The city denied plaintiff's applications for a second time.

In response to the city's invocation of Ordinance 37 of 1977, plaintiff submits that the refusal to issue peepshow licenses is against the weight of the evidence adduced at the October 20 hearing and that the denial is arbitrary, unreasonable and capricious. Furthermore, plaintiff seeks a declaration of invalidity of the provisions of the Atlantic City Municipal Land Use Ordinance cited by the city as its justification.

On January 23, 1981 the parties herein reargued the summary judgment motion, following the city's denial of plaintiff's application at the October 20 hearing. Cognizant that the United States Supreme Court was considering the constitutionality of an ordinance similar to Ordinance 28 of 1980, this court deferred ruling on the within motion for summary judgment pending the announcement of the decision in Schad v. Mt. Ephraim , U.S. , 101 S. Ct. 2176, 62 L. Ed. 2d 671 (1981).

For purposes of analysis it is helpful to keep in mind that the instant case will be examined from three viewpoints, namely: judicial review and procedural limitations of its exercise; legislative power and limitations on that power, and constitutional prohibitions.

Judicial Review and Procedural Limitations on its Exercise

A. The Power and Scope of Judicial Review

Whether the denial of licenses to exhibit live nude dancing in private business establishments in Atlantic City is a legitimate subject for judicial review raises an essentially antiquarian issue. It has been axiomatic since Marbury v. Madison , 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), that a court can adjudicate the constitutional validity of a legislative act. But beyond this virtually unanimous agreement there is sharp divergence about

the proper scope of judicial review. This issue, far from being antiquarian, is perennial.

The tension which sustains this divergence is the distinct nature of the legislative and judicial functions. The legislature is a mediated form of the majority will, which may not be frustrated by judicial fiat in our constitutional democracy, save by a principled application of the Constitution. This limit itself is founded on the constitutional text, that is, the First Amendment as it is incorporated by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, read in the light of history.

However, the normative content of the limit -- the changing contents of the public welfare -- is referable not to the constitutional text, but rather to the conventions of contemporary sociopolitical culture. Perry, "Abortion, The Public Morals, and the Police Power: The Ethical Function of Substantive Due Process," 23 U.C.L.A. L.Rev. 689, 707-709 (1976). In asking whether a municipality has properly applied the public welfare limit, decisions of municipal authorities on applications for licenses are presumed to be valid. The constitutional direction that any law concerning municipal corporations be liberally construed in their favor is applicable in determining the constitutionality of an ordinance licensing and regulating mercantile and other businesses and occupations. N.J.Const. (1947), Art. IV, § VII, par. 11; Brielle v. Ziegler , 73 N.J. Super. 352, 355-356 (Law.Div.1962).

On appeal from a ruling before the Atlantic City Board of Commissioners, the court cannot optionally supersede either the exercise of the supervisory licensing authority entrusted to it or arbitrarily overturn its bona fide discretionary determinations. Nor does a mere difference of opinion concerning evidential persuasiveness of relevant testimony enable a court to substitute its judgment for that of the duly constituted licensing agency, although the decision was rendered by the licensing agency in performance of a so-called quasi -judicial proceeding.

In re Sanders , 40 N.J. Super. 477, 483 (App.Div.1956). An administrative adjudication is subject to judicial review where it offends the State or Federal Constitution or is ultra vires of a statutory grant, unsupported by adequate evidence, or unreasonable, unjustly discriminatory, arbitrary or capricious. In re Larsen , 17 N.J. Super. 564, 570 (App.Div.1952).

Attempts to accommodate constitutional rights with broad if not universally shared ideas of public welfare have inherently limited power, for we are talking about the rights of individuals or groups pitched against the larger community and perhaps against the overwhelming majority of a municipality as a whole. Courts must ultimately define and defend individual rights against government in terms independent of consensus or majority will, and endure, if need be, the censure of majoritarian judgment. See I Tribe, American Constitutional Law , 896 (1978).

B. Procedural Limitations on the Exercise of Judicial Review

Two judicially declared procedural limitations on judicial review merit attention here.

Standing. This court cannot pronounce any municipal ordinance void because irreconcilable with the Constitution, except as it is called upon to adjudge the rights of litigants in actual controversy. In other words, a party must have "a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton , 405 U.S. 727, 731, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972). Therefore, I on my own motion raise the issue whether plaintiff is in a position to demonstrate a concrete stake in the outcome of this suit and a direct impairment of his own constitutional rights. I must ask whether plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Baker v. Carr , 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962).

Standing to make a constitutional claim requires analysis in terms of two inquiries: (a) "whether [plaintiff] alleges that the challenged action has caused him injury in fact , economic or otherwise," and (b) "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations v. Camp , 397 U.S. 150, 152, 153, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970) (Emphasis added). As part of the "injury in fact" requirement, plaintiff must demonstrate a personal harm that would be eliminated if plaintiff's claim were accepted. See Linda R.S. v. Richard D. , 410 U.S. 614, 619, 93 S. Ct. 1146, 1149, 35 L. Ed. 2d 536 (1973); Warth v. Seldin , 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26, 38, 96 S. Ct. 1917, 1924, 48 L. Ed. 2d 103 (1976).

Ordinance 28 of 1980 enumerates criminal penalties that may be imposed against both a proprietor and entertainer who feature live nude dancing. The Municipal Land Use Ordinance in question prohibits live nude dancing in the instant case because plaintiff's establishment is not a restaurant. Additionally, plaintiff endures the obvious financial loss which attends the denial of his license applications. If the licenses were granted, plaintiff's personal harm would be eliminated. Therefore, I am satisfied that plaintiff has demonstrated that he has standing in the instant case.

To have standing, plaintiff must have suffered, or may presently suffer, a direct impairment of his own constitutional rights. A plaintiff may, however, assert third-party rights where he himself has suffered injury and third parties find it difficult to assert their own rights (see NAACP v. Alabama , 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958)) or the injury suffered by plaintiff adversely affects his relationship with third parties, resulting in an indirect violation of their rights (see Craig v. Boren , 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d

397 (1976)). Mr. Justice White has addressed the ability of a proprietor to raise the constitutional rights of his customers in the context of live nude dancing in his majority opinion in Schad, supra:

Accordingly, plaintiff may assert the impairment of the constitutional rights of his dancers and customers as well as his own constitutional rights.

Ripeness. The standing question bears close affinity to questions of ripeness, that is, whether the harm asserted has matured sufficiently to warrant judicial intervention. Issues must be fully developed, clearly defined and not merely speculative, conjectural or premature.

In analyzing the instant factual complex and its attendant procedural history for ripeness, the court will consider the following elements: (1) in view of the issues presented herein, whether further delay in bringing the action would assist this court materially in understanding the issues; (2) whether the interpretation of the challenged ordinances, or the manner in which they are being applied, is ambiguous or uncertain because the facts have not yet progressed ...

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