On appeal from Superior Court, Law Division, Bergen County.
Dreier, Bilder and Gruccio. The opinion of the court was delivered by Gruccio, J.s.c. (temporarily assigned).
Defendant Readers Shocase appeals from a Superior Court, Law Division ruling that Paramus Borough Ordinance No. 77-6 is constitutional and not preempted by State law. Defendant was found guilty and fined in the municipal court for violating obscenity Ordinance No. 77-6, which regulates the public display of magazines containing nudity. The Superior Court, Law Division, denied defendant's motion to dismiss, remanding to the municipal court for trial. We granted defendant's motion for leave to appeal. R. 2:2-4 and R. 2:5-6.
The Paramus obscenity ordinance is expressly intended "to prohibit the establishment of . . . adult book stores and to prohibit stores from displaying or otherwise exhibiting indecent and obscene material." However, Section III, paragraph 2 provides that it "shall not be a violation of this ordinance to sell magazines that may fall within the prohibitions of this ordinance provided that they are not openly exposed to public view." While the ordinance does not prohibit the sale of indecent and obscene material, it nevertheless permits the sale only if such materials "are not exposed to public view."
Readers Shocase, a magazine service which displays a variety of magazines for sale and also offers subscriptions for the displayed magazines, was charged with violating the obscenity ordinance by failing to cover Playboy and Penthouse magazines. The two magazines were alleged to be obscene within the meaning of the ordinance and to have been left in full view by defendant.
At issue in this case is whether the Paramus municipal ordinance is preempted by State law and is constitutionally invalid.
It is unquestioned that municipal ordinances carry a presumption of validity. Moyant v. Paramus, 30 N.J. 528, 534 (1959). However certain areas of the law require that the State speak with one voice, and these areas are preempted from local regulation by State law. Township of Chester v. Panicucci, 62 N.J. 94, 99-100. In Wein v. Town of Irvington, 126 N.J. Super. 410 (App.Div.1974), certif. den. 65 N.J. 287 (1974), the court discussed the State's involvement in the field of obscenity and stated: "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." Id. 126 N.J. Super. at 414. The court further found that 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." Id. at 416.
The court's holding in Wein has been followed consistently. In Egg Harbor v. Colasuonno, 182 N.J. Super. 110 (Ch.Div.1981), the court pointed out that although Wein interpreted N.J.S.A. 2A:115-1, the predecessor to N.J.S.A. 2C:34-2, there was a clear legislative intent to have a statewide standard. Id. at 116. See also Expo, Inc. v. City of Passaic, 149 N.J. Super. 416, 421; State v. Crawley, 90 N.J. 241, 250 (1982); Dimor, Inc. v. City of Passaic, 122 N.J. Super. 296, 302 (Law Div.1973). In the case before us, the municipal court judge's remarks illustrate the wisdom of State preemption in determining what material is obscene. The municipal court judge stated, "Paramus has decided in their Borough Ordinance and the police officers have decided that this type of magazine in their minds, are adult publications."
N.J.S.A. 2C:1-5d prohibits the enactment or enforcement of any local ordinance which conflicts with or is preempted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1, et seq., or the policies expressed by the Code. Even when there is no apparent conflict between a local ordinance and a state statute, "[i]f, upon an examination of the totality of the subject
matter, it is concluded that the Legislature intended to solely occupy the field, it would then have preempted the same and the ordinance of necessity would be ultra vires and invalid." Id. at 302.
The subject of obscenity has largely been preempted by the Code. N.J.S.A. 2C:34-2; Egg Harbor v. Colasuonno, supra, 182 N.J. Super. at 116. Nevertheless, specific authority has been given to municipalities to relax ...