On appeal from the Superior Court, Law Division, Bergen County.
Pressler, Brody and Cohen. The opinion of the court was delivered by Richard S. Cohen, J.A.D.
[199 NJSuper Page 484] Defendant was convicted after pleading guilty to five charges of making Sunday sales prohibited by the Sunday Closing Law. N.J.S.A. 2A:171-5.8. The five sales took place within 22 minutes on January 22, 1984 and totalled $71.45. On each conviction, the Elmwood Park Municipal Court imposed a fine of $3,000, costs of $15 and a Violent Crimes Compensation Board assessment of $25, for a total imposition of $15,200. There was an additional complaint charging that defendant maintained a nuisance on January 22 in violation of N.J.S.A. 2A:171-5.9. That section provides that, upon four convictions for Sunday Closing Law violations, the premises on which the violations occurred shall be deemed a nuisance. The court found defendant guilty after it stipulated not only the five January 22 violations but also more than four convictions on prior dates. As a penalty for maintaining the nuisance, the municipal court
ordered defendant to close its store completely every Sunday for one year.
Defendant appealed to the Law Division. It argued that there was no statutory authority for the one year Sunday closure order. The court agreed. It noted that N.J.S.A. 2A:130-5, which permitted premises housing a nuisance to be closed for up to a year, was repealed upon the enactment of Title 2C. It recognized that N.J.S.A. 2C:33-12.1 permits the closing of premises that house nuisances, but held that the statute was applicable only after conviction under the immediately preceding N.J.S.A. 2C:33-12 which, the court said, did not cover premises involved in Sunday Closing Law violations. The court therefore vacated the municipal court's closure order. The State appealed, and we now affirm but for different reasons.
The Sunday Closing Law, N.J.S.A. 2A:171-5.8 et seq., is not a broad ban on worldly employment or business. Cf. N.J.S.A. 2A:171-1 (repealed). It prohibits retail activity in the selected areas of clothing and wearing apparel, building and lumber supply materials, furniture, home or business or office furnishings, and household, business or office appliances. N.J.S.A. 2C:170-5.8. The statute applies only in counties that adopt it by referendum, N.J.S.A. 2A:171-5.12 et seq., except in any municipality that may opt out of the county adoption. L. 1984, c. 160. It currently applies in Bergen County and Hudson County except Jersey City.
When the Sunday Closing Law was enacted in 1959, those nuisances that were indictable at common law were punishable as misdemeanors. N.J.S.A. 2A:85-1 (repealed). See N.J.S.A. 2C:1-5, 2C:98-2. One who maintained a nuisance, defined as a building or place where the law was habitually violated, was guilty of a misdemeanor. N.J.S.A. 2A:130-1, 2A:130-3. In addition to the usual penalty provided by N.J.S.A. 2A:85-7 for misdemeanors, N.J.S.A. 2A:130-4 and 2A:130-5 provided further penalties for a person convicted of maintaining a nuisance.
N.J.S.A. 2A:130-4 permitted an order, upon conviction under N.J.S.A. 2A:130-3, to abate the nuisance and to seize and forfeit or destroy personal property found on the premises and involved in maintaining the nuisance. N.J.S.A. 2A:130-5 permitted the further penalty, to a property owner found guilty of maintaining a nuisance, of an order to close the building where the nuisance was maintained and to bar its use for not more than a year from the date of conviction. N.J.S.A. 2A:130-4 referred specifically to N.J.S.A. 2A:130-3 and N.J.S.A. 130-5 did not. It is not at all clear that the Legislature intended a difference in their application. If there were any punishable nuisances that did not fit within N.J.S.A. 2A:130-3, no good reason appears why some should have been subject only to abatement and forfeiture and others only to closure.*fn1
All of N.J.S.A. 2A:130, which outlawed and penalized nuisances, were repealed by N.J.S.A. 2C:98-2. The Sunday Closing Law survived. See N.J.S.A. 2C:98-3. New criminal code provisions were enacted on the subject of nuisances. Title 2C no longer defines a nuisance as a "building or place where the law is habitually violated," as did N.J.S.A. 2A:130-1. Instead, N.J.S.A. 2C:33-12 prohibits maintaining three specific kinds of nuisances: a) conditions that endanger the safety or health of a considerable number of persons; (b) premises where persons gather to engage in unlawful conduct, and (c) premises used as a house of prostitution or for sale, manufacture or exhibition of obscene materials. Maintaining an (a) or (b) nuisance is a
disorderly persons offense. Maintaining a (c) nuisance is a fourth degree crime. N.J.S.A. 2C:33-12 ends by stating that, "upon conviction under this section in addition to the sentence authorized by this code, the court may proceed as set forth in section 2C:33-12.1."
N.J.S.A. 2C:33-12.1 is an almost verbatim copy of N.J.S.A. 2A:130-4 and 2A:130-5. N.J.S.A. 2C:33-12.1a authorizes the additional penalty upon conviction under N.J.S.A. 2C:33-12 of an order to abate the nuisance and forfeit or destroy personal property found on the premises and involved in maintaining the nuisance. N.J.S.A. 2C:33-12.1b permits the further penalty of an order to close the building where the nuisance was maintained and to bar its use for not more than a year. But, like N.J.S.A. 2A:130-5, it permits closure "if the owner of any ...