On appeal from the Superior Court, Law Division, Passaic County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
The issue raised by this appeal is the validity of an ordinance adopted by defendant City of Passaic which limits the showing of "X-rated" films to the hours of 7 p.m. to midnight. The trial judge entered summary judgment sustaining the validity of the ordinance,*fn1 rejecting the constitutional challenge brought by plaintiff Capitol Movies, Inc. (Capitol). We reverse.
The record is regrettably sparse and, in our view, completely devoid of the proofs necessary to sustain the constitutionality of the intrusion by this ordinance upon the protected interest in free speech.
Appellant Capitol has been operating a motion picture theater in downtown Passaic, under city license, since 1972. The affidavits submitted by Capitol state that the theater is a 3,500 seat facility showing "X-rated" films during its regular hours of operation, 11 a.m. to 7 p.m. Plaintiff asserts that the theater is an aged structure requiring the expenditure of approximately $1,000 a day in operating costs. It is also used occasionally as
a concert hall for evening performances by rock-music groups. The affidavit of the theater's manager states that without the display of "X-rated" films during daytime hours, operating costs would not be met and the business would "cease to exist." Plaintiff has in the past experimented with the showing of "G" and "PG" movies and with Spanish language films but has found that these films have failed to produce enough revenue to sustain the business operation. Prior attempts to show "X-rated" films in the evening had also proved unsuccessful, apparently because there is very little pedestrian traffic after 7 p.m. in the area in which the theater is located. It appears that there is one other theater in the City of Passaic which shows "X-rated" films, the Montauk Theater, which is not a party to this action.
It has been represented to us that the adoption of this ordinance was a matter of some controversy within the governing body and that it had in fact been vetoed by the mayor and ultimately passed over his objection. That representation constitutes the entire legislative history of this ordinance which appears in the record. The ordinance itself contains no statement of purpose. The City's attorney represented that no verbatim transcriptions of counsel debates are made. Minutes of the council meetings at which the ordinance was discussed were not produced. Neither factual nor expert testimony in support of the ordinance was proffered. The City further concedes that there has never been a law enforcement problem attributable to the operation of the theater. No complaints have been made against it for admitting underage persons, and no criminal activity, public disturbances, breaches of the peace, or other reported incidents have occurred in the vicinity attributable to the theater's operation.
The sole purpose of the ordinance, as represented by the City attorney, is to protect downtown shoppers from contact with persons who might be leaving the theater and to protect the welfare of the children of the City from whatever unarticulated dangers or adverse influences they might be subjected to by
reason of the showing of the films to an adult audience during those times of the day when youngsters might be on the street. However, other than their illegal admission to the theater,*fn2 an occurrence which has not in fact been asserted, there is no articulation of what these dangers and adverse influences would be.
The record is devoid of any physical description of the theater, and it is not suggested that pedestrians can see into the theater from the sidewalk or that any offensive advertising has been displayed to the public. There is no suggestion beyond the barest speculation that the showing of "X-rated" films at the theater during daytime hours has discouraged shoppers from using the downtown area or that whatever adverse effect the presence of this theater might have on the community would be ameliorated by the time restrictions imposed by the ordinance.
In view of this total lack of proof that there is any legitimate governmental interest which might be advanced as a result of the ordinance, we are constrained to conclude that its ...