[211 NJSuper Page 127] After defendant, Borough of Totowa, a municipal corporation, ("Totowa"), placed a notice, printed on cardboard, on seven of the honor boxes or newsracks owned by plaintiff, The News Printing Company, a New Jersey corporation, ("News"), stating*fn1
that the newsrack was placed in violation of ordinance no. 09-83, must be immediately moved, and upon failure to remove within 48 hours, the newsrack would be confiscated and a summons issued, counsel for the News, based on a verified complaint, supporting certification, brief and notice to Totowa, applied for a preliminary injunction to restrain Totowa from removing its newsracks and declaring said ordinance unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States and the Constitution of New Jersey.
Section seven of said ordinance provided that any person who shall be convicted of violating said ordinance shall be subject to a fine not exceeding $100. The other provisions of the ordinance shall be considered hereafter but none provided for confiscating "newsracks" for the owners violating the ordinance.
There was no basis in the ordinance upon which Totowa or its officials could base their act in giving notice or in taking any further action. Regulation of activities upon streets and sidewalks is normally by ordinance. 5 McQuillin, Municipal Corporations, §§ 15.03 and 15.04; N.J.S.A. 40:67-1. A municipality may also prescribe penalties for violation thereof under N.J.S.A. 40:49-5 by ordinance. In the absence of a municipality having adopted an ordinance authorizing activity proposed to be carried out, or being carried out, a municipal official has no
power to act. Cf. City of Paterson v. Barnet, 46 N.J.L. 62, 66 (Sup.Ct.1884) (city denied writ of mandamus to compel mayor to sign city bonds to be sold to pay off sewers where board of aldermen had not adopted an ordinance authorizing construction of sewers).
The removal of the newsracks by either the News or Totowa would interfere with the circulation of newspapers to members of the public. This posed questions about the First Amendment which is applicable to the states and municipalities under the Fourteenth Amendment. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 85 L. Ed. 949 (1938); Kash Enterprises Inc. v. City of Los Angeles, 19 Cal. 3d 294, 138 Cal.Rptr. 53, 562 P. 2d 1302 (Sup.Ct.1977). (sections of municipal ordinance authorizing seizure of newsracks which were placed in violation of ordinance held unconstitutional).
First Amendment protections are applicable to the public distribution of newspapers and periodicals through newsracks. . . . [562 P. 2d at 1306]
By the return date, the complaint which was filed in the Chancery Division was designated as an action in lieu of prerogative writs without objection by Totowa and assigned to this judge by the assignment judge.
The issuance of a preliminary injunction to stay enforcement of an ordinance in a prerogative writ action challenging a statute or ordinance is proper. Two Guys from Harrison, Inc. v. Furman, 59 N.J. Super. 135 (Law Div.1959). But a preliminary injunction does not issue as of right but only upon a showing that: (1) plaintiff will suffer irreparable harm; (2) the underlying right sought to be enforced is free from doubt; (3) the material facts are not in dispute; and (4) the granting of the preliminary injunction will not inflict undue hardship on defendant but denying it will substantially hurt the plaintiff. See Crowe v. DeGioia, 90 N.J. 126, 133-134 (1982).
The denial of the injunction would result in the removal of seven of the newsracks of the News in Totowa, if not all, with the result that the News' ability to circulate its papers and the public's right to obtain them under the First Amendment would have been infringed. In cases involving First Amendment rights, the burden is on the municipality to show that it has a substantial interest to protect and that the regulation is related to that interest and allows sufficient alternative means of communication. Where, as here, the News showed that the ordinance 09-83 provided a prior restraint in that a license was required before a newsrack could be placed, the burden was on Totowa to prove the constitutionality of that ordinance, Capitol Movies Inc. v. City of Passaic, 194 N.J. Super. 298, 302-303 (App.Div.1984).
The material facts pertaining to the provisions in ordinance 09-83 and certain actions of the News in placing newsracks without a license were not in dispute. Further, where no action is pending under an ordinance with criminal sanctions against a person, but such action is threatened, such person may seek a declaratory judgment that the ordinance is unconstitutional rather than wait to defend a criminal charge. Philadelphia Newspapers Inc. v. Borough of Swarthmore, 381 F. Supp. 228 (E.D.Pa.1974).
Those were the facts that were relevant in respect to the granting of the preliminary injunction. Finally, the certifications and related photographs indicated that there was little likelihood of finding a safety hazard and that there was no history of complaints about the newsracks being the subject of safety incidents or vandalism. Balancing the equities so as to preserve the status quo, the court issued a preliminary injunction restraining the enforcement of the ordinance.
Following discovery, counsel requested that the court delay a hearing until the decision in Passaic Daily News, supra, was rendered, and thereafter requested additional time to have their experts ready.
The court will set forth certain background facts and then give its decision on the questions posed in the following order:
1. Validity of licensing requirement, §§ 2, 3 and 4.
2. Validity of maintenance and installation requirements, § 5.
3. Validity of location and placement of newsrack requirements, § 6.
4. Whether the separability clause should be used to save any provisions of the ordinance found to be valid.
The News editorial office and printing plant is in the City of Paterson. Currently, it publishes a morning newspaper six days a week.
Totowa is located on the west side of the City of Paterson and the east side of Wayne Township which also bounds Totowa on the south. The Passaic River is Totowa's eastern boundary. Route # 46 and Route # 80 cross Totowa.
The property along Route # 46 is zoned "thoroughfare business." Union Boulevard runs through the principal residential zones of Totowa. The properties adjoining it are zoned "community business."
The News has 11 newsracks in Totowa. Most are located either along Union Boulevard or Route # 46 on sidewalks or on properties in the zones mentioned above.
William Monahan ("Monahan") has been the circulation manager for the News for the past five years. He has worked for newspapers operating in the Bergen-Passaic area in the circulation departments for the last 33 years. He testified that the News delivers papers to the newsracks between 2:00 a.m. and 3:00 a.m. six days a week. The News has no Sunday edition. The News also delivers papers to nine stores in Totowa.
He stated that the News has young persons who deliver newspapers to homes. They are between the ages of 11 to 14. Under applicable state law, they cannot deliver newspapers before 6:00 a.m., except the 14-year-olds may deliver papers after 5:30 a.m.
He explained that the five newsracks located on Union Boulevard were placed there to serve commuters who board buses
along that street and for those who shop in that area. The locations are selected to be near restaurants and at intervals between stores which may sell copies of the News.
In respect to the newsracks located along Route # 46, the locations were picked to be near boarding points for commuter buses and entrances to restaurants.
He further testified that four of the present newsracks are located on private property. A fifth was located on private property but was removed at the owner's request.
He further stated that no newsracks were chained to fire call boxes or fire hydrants. The boxes are usually chained to some object. Where that is not possible, they are weighted down or bolted down.
In his opinion, the vending newsracks may not be profitable but the News has to have them so that the paper is read.
From some boxes only 10 to 15 papers are sold a day. In such areas, the News could not sustain a newsperson. From other newsracks, 50 papers a day are sold. He testified that the newsracks in question are 24" wide, 20" deep and 3' high.
Witnesses for Totowa urged that the subject ordinance is intended to be a reasonable "time, place, and manner" regulation of objects in the public area to avoid hazardous conditions and thereby promote safety and unimpeded flow of traffic in the street and on the sidewalks. They also urged that said ordinance promoted Totowa's aesthetics by avoiding visual clutter and sight pollution thereby improving its image.
The News sells only newspapers from its newsracks.
1. Validity of Licensing Requirements, §§ 2, 3 and 4.
Ordinance 09-83 was adopted on December 20, 1983. The provisions of §§ 2, 3 and 4 are set forth below.*fn2 After the
adoption of that ordinance, the News placed five newsracks in Totowa in 1984. The News did not apply for a permit before or after placing those newsracks. It also placed four newsracks in 1978 and two in 1983.
The ordinance requires that a person seeking to lawfully place a newsrack along a street or on a sidewalk area in Totowa must fill out and sign a written application for a permit stating the location.
There are no standards setting forth the criteria under which the permit will be issued or denied by the mayor and council.
There is no time period within which the mayor and council must approve or deny. If the permit is denied, the person must then initiate judicial action to have the determination set aside. For such a person to proceed to place newsracks would be a violation of the ordinance.
In Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938), Lovell's conviction of violating an ordinance prohibiting distribution of handbills, magazines, or literature of any kind without first obtaining a permit from the city manager by distributing handbills and magazines without having obtained a permit was reversed.
After pointing out that municipalities relying upon state laws authorizing them to adopt ordinances constitutes state action and hence such ordinances are subject to the prohibitions of the First and Fourteenth Amendments, id., 303 U.S. at 451, 58 S. Ct. at 669, 82 L. Ed. at 953, Chief Justice Hughes writing for
the Court held the ordinance invalid on its face because it violated said Amendments.
The ordinance cannot be saved because it relates to distribution and not to publication. "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value." Ex parte Jackson [6 Otto 727, 733], 96 U.S. 727, 733, 24 L. Ed. 877, 879. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660, 56 S. Ct. 444, supra, was held invalid because of its direct tendency to restrict circulation.
[ Id., 303 U.S. at 451-452, 58 S. Ct. at 669, 82 L. Ed. at 953-954].
In Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939) (ordinance prohibiting parades or public assemblies on streets, in parks or public places unless, upon application three days in advance, director of public safety issues a permit after investigation of the circumstances and facts of application which permit he could deny to prevent riots, disturbances, or disorderly assemblies held invalid and injunction against officials enforcing it modified and affirmed) Justice Roberts rejected the contention of the petitioners that Davis v. Massachusetts, 167 U.S. 43, 17 S. Ct. 731, 42 L. Ed. 71 (1897) should control.
In the instant case the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks.
We have no occasion to determine whether, on the facts disclosed, the Davis Case was rightly decided, but we cannot agree that it rules the instant case.
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
See Schneider v. State of New Jersey, (Town of Irvington), 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939), in which the Supreme Court considered appeals concerning ordinances in several municipalities which prohibited distribution of printed matter on the sidewalks and some like Irvington's ordinance which required a person to obtain a permit in advance. All the ordinances were held invalid. Justice Roberts wrote for the majority. The Supreme Court held that if there is to be an infringement of First Amendment rights to prevent others from engaging in undesirable conduct that can be made unlawful and enforced by other means.
The motive of the legislation under attack in Numbers 13, 18 and 29 is held by the courts below to be the prevention of littering of the streets and, although the alleged offenders were not charged with themselves scattering paper in the streets, their convictions were sustained upon the theory that distribution by them encouraged or resulted in such littering. We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. Amongst these is the punishment of those who actually throw papers on the streets.
It is argued that the circumstance that in the actual enforcement of the Milwaukee ordinance the distributor is arrested only if those who receive the literature throw it in the streets, renders it valid. But, even as thus construed, the ordinance cannot be enforced without unconstitutionally abridging the liberty of free speech. As we have pointed out, the public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution.
Conceding that fraudulent appeals may be made in the name of charity and religion, we hold a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens; some persons may, while others may not, disseminate information from house to house. Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than bestowal of power on police authorities to decide what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press.
We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however, that the petitioner's conduct, is void, and she cannot be punished for acting without a permit. [60 S. Ct. at 151-152]
In Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) the Supreme Court upheld petitioner's conviction for violating a municipal ordinance prohibiting a person from willfully making or assisting in the making of any noise or diversion in an area adjacent to a building in which a school or classes thereof are in session.
Justice Marshall writing for the majority stated that a municipal government may validly regulate activity in public areas.
Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable "time, place and manner" regulations may be necessary to further significant governmental interests, and are permitted. For example, two parades cannot march on the same street simultaneously, and government may allow only one. Cox v. New Hampshire, 312 U.S. 569, 576, 61 S. Ct. 762, 765, 85 L. Ed. 1049 (1941). A demonstration or parade on a large street during rush hour might put an
intolerable burden on the essential flow of traffic, and for that reason could be prohibited. Cox v. Louisiana, 379 U.S.  at 554, 85 S. Ct.  at 464. [92 S. Ct. at 2303].
The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place and manner that are reasonable." Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest. Access to the "streets, sidewalks, parks and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot constitutionally be denied broadly . . ." Free expression "must not, in the guise of regulation, be abridged or denied." [92 S. Ct. at 2303-2304]
In Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666 (11 Cir.1984), the Circuit Court of Appeals affirmed that part of the judgment holding that licensing procedure that required newspapers to obtain a permit before placing or maintaining a newsrack along a street or on a public sidewalk area unconstitutional. The applicant had to submit a form to the city clerk who had to determine if the applicant and the proposed use were in compliance with city codes, and the applicant had to pay a flat license fee of $100 and an additional amount for each vending machine. If the city clerk found a probable violation, then he had to give notice and hearing before the city commission. If the city commission found no violation, then the license could issue. If the city commission found a violation and denied the license there was no specified procedure for judicial review.
The Circuit Court of Appeals held that under the ordinances the city's officials had broad discretion to determine what other codes applied and if there were violations. Further, there were no time limits on when the officials had to act.
In determining whether a state or municipal law that indirectly affects first amendment freedoms is narrowly tailored enough to pass constitutional muster, it is appropriate to consider whether alternative means are available to the state that would both serve the state's interest and exert a less severe impact on first amendment rights. L. Tribe, American Constitutional Law, 682-87 (1978). In this case, the municipality's interest in furthering the public health, safety and welfare by enforcing its ordinances can be and in fact is preserved by more narrowly tailored means. [734 F.2d at 675].
That court pointed out that there were more officers who had the responsibility to determine if other ordinances were being violated and they could enforce them. Therefore, there was no need to resort to a preregistration to enforce them; hence, there was an invalid prior restraint. The court also said:
No time limits are prescribed within which the city commission is to decide whether a given applicant must be denied a license for failure to comply with applicable provisions of the city code; during the indeterminate period that such a matter is pending, a newsrack operator is without a license to vend newspapers, and by the terms of Chapter 16, without a license, he may not operate the newsracks. Furthermore, the statute furnishes no means for judicial review, prompt or otherwise, of city commission decisions.
Because § 16-4.1 vests city officials with untoward discretion to deny licenses, and furnishes inadequate safeguards to ensure against abuse of that discretion, we hold that the section is unconstitutional on its face. [ Id. at 675-676].
In Gannett Co. v. City of Rochester, 69 Misc. 2d 619, 330 N.Y.S. 2d 648 (Sup.Ct.1972), the court held unconstitutional that portion of a municipal ordinance which regulated newsracks and vending machines for newspapers and magazines by requiring
a person intending to place such along the street or on the public area to apply ten days in advance, or within ten days after the adoption of the ordinance for a permit to the commissioner of public works who had discretion to determine if the unit would harmonize with the area, obstruct traffic, or be a hazard to the public.
This ordinance anticipates far too much. Instead of saying the sidewalk may not be obstructed it says one must apply for a permit even if there is no obstruction and then the decision will be made as to whether or not to grant one. This is inherently bad. The right to communicate thoughts and discuss questions on the public street may not be denied or even abridged by ordinance and certainly not in advance by requiring a permit upon the theory that its exercise may obstruct traffic. A municipality cannot require those who wish to discuss matters in the public street to present their subject first to the municipal authorities for approval with discretion in them to grant or refuse a permit. Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423. [ Id. 330 N.Y.S. 2d at 656]
In Philadelphia News Inc. v. Borough of Swathmore, supra, upon defendant's seizing and removing from a sidewalk location two newsracks owned by plaintiff on the ground that the newsracks violated defendant's ordinance limiting use of sidewalks for commercial uses to the owners, tenants, or occupants of stores adjoining sidewalks, plaintiff filed suit challenging the ordinance on the ground that the ordinance violated its rights under the First and Fourteenth Amendments. The ...