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State v. Malcolm Konner Chevrolet

Decided: May 4, 1988.

STATE OF NEW JERSEY (BOROUGH OF PARAMUS), PLAINTIFF,
v.
MALCOLM KONNER CHEVROLET, CERAMI PONTIAC CORP. AND MCDONALD'S CORP., DEFENDANTS



On Appeal from Judgment of Paramus Municipal Court.

Ciolino, A.j.s.c.

Ciolino

[226 NJSuper Page 693] The facts which form the basis of the municipal court trial and the subsequent appeal are not in dispute. They are as follows: Defendants, Malcolm Konner Chevrolet, Cerami Pontiac Corp. and McDonald's Corp. all maintain and conduct businesses within the confines of the Borough of Paramus. Each of these defendants had erected 80-foot flag poles, from which they each admittedly flew garrison flags on their properties.

Defendant, Malcolm Konner Chevrolet, commenced flying the flag on or about October 4, 1983; defendant, Cerami Pontiac, commenced flying the flag in question in October 1984, and defendant McDonald's, on or about August 22, 1985.

On November 26, 1985, the Borough of Paramus passed a zoning ordinance, Ordinance No. 85-32 (see attached), which expressly prohibited the flying of garrison flags in the borough except on holidays or as permitted by presidential proclamation. The ordinance does permit the flying of post flags on all days. On or about July 17, 1987, the borough issued a summons to each defendant alleging that each flew a garrison flag on their premises on June 29, 1987 in violation of the borough ordinance. June 29, 1987 was, neither a recognized legal holiday, nor declared one, by presidential proclamation.

Subsequent to the issuance of the summonses, pleas of not guilty were entered in the municipal court by all three defendants and the matters were heard for trial on August 14, 1987 and August 27, 1987. Following the trial, the municipal court found all three defendants guilty of violating the borough ordinance and levied fines of $250 plus $15 costs against each defendant. Execution of the fines and costs were stayed pending appeal.

Each defendant has filed a notice of appeal alleging the unconstitutionality of the borough ordinance, and, also, questioning whether each defendant had an existing nonconforming use.

The First Amendment Issue.

Counsel for the borough has argued that the Paramus ordinance limiting the use of the garrison flag on legal holidays serves an important governmental interest, and is a valid exercise of the municipality's police power. Counsel argues that the ordinance is not content based. In fact, quite to the contrary, he asserts that the borough encourages this type of speech, and would never attack the content of a patriotic

expression, such as the flying of the American flag. Counsel further alleges the borough ordinance, in reality, is a content neutral time, place and manner restriction.

The borough further argues that "Ordinance 85-32 was passed to curb the 'commercialization' of American flags in the interests of public safety and to prevent visibility problems and accidents occurring on the highway." The borough maintains it was also enacted to prevent businesses from flying advertisement logos and other banners on the standardized American flag pole in an effort to preserve the integrity of the American flag. It is the further position of the borough that the State has a legitimate compelling interest in preserving the integrity of the flag, not only from destruction but also in its use and display. It is alleged that the display of the garrison-size flag daily on defendants' properties, rather than only on legal holidays, would adulterate the patriotic significance of flying an American flag. The borough's position is that if this large size flag were displayed daily on defendants' properties and other private buildings, the psychological effect of seeing the garrison-size flag displayed on national holidays and other special occasions would be lost.

The issue is whether the borough may regulate the flying of what it considers an oversized American flag, or whether such regulation is an impermissible infringement on defendants' First and Fourteenth Amendment rights. Both at oral argument and in legal brief, counsel for the borough acknowledges that the regulated activity, the flying of the American flag, constitutes protected free speech. In Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), the Supreme Court noted that "[f]or the great majority of us the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and valor of the millions of Americans who in peace and war have joined together to build and to defend a nation in which self-government and personal liberty endure." Id. 418 U.S. at 413, 94 S. Ct. 2732,

41 L. Ed. 2d at 848; cf. United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, ...


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