Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State (City of Paterson) v. Khater

Decided: February 1, 1994.

STATE OF NEW JERSEY (CITY OF PATERSON), PLAINTIFF,
v.
HARBI KHATER, DEFENDANT



Rothenberg

Rothenberg

SYLVAN G. ROTHENBERG, J.S.C.

This municipal appeal comes before this court pursuant to R. 3:23. The defendant appeals his conviction under Paterson Municipal Ordinance RGOP § 4-2, which requires the licensure of all mechanical amusement devices (except for those listed in RGOP § 4-1.1) used in public, quasi-public or private club settings. The limited issue on appeal is whether the municipal ordinance that the defendant allegedly violated, RGOP § 4-1, is a valid and reasonable exercise of the City of Paterson's police power in order to protect and regulate the health, safety, and welfare of its citizens.*fn1

The arguments of counsel, the briefs submitted by all the parties, and the transcript of the proceeding below indicate that the defendant was charged and convicted of a violation of RGOP § 4-2. The municipal court trial demonstrated that the defendant maintained three "Keno" machines on his business premises without the proper license required by RGOP § 4-2.*fn2 However, the types of mechanical amusement devices maintained by the defendant were prohibited from licensure pursuant to RGOP § 4-1.1. Under the ordinance, it is presumed that the types of machines the defendant maintained on his premises were to be utilized for gambling purposes.*fn3 Thus, under the ordinance, the City will not license mechanical amusement devices whose sole purpose is to promote and/or facilitate gambling. However, the defendant now avers that RGOP § 4-1 is preempted by N.J.S.A. 2C:37-1-9, the state legislative scheme to regulate and criminalize gambling.*fn4

The history behind this ordinance warrants mention. The record before this court indicates that on January 21, 1992, the Paterson City Council amended the City's ordinance that regulated and licensed mechanical amusement devices. The City Council, before enacting these amendments, heard testimony from various sources, including the Passaic County Prosecutor's Office, the Paterson Division of Public Safety, and various city residents, which indicated that certain amusement devices had the sole purpose of promoting and encouraging gambling. Thus, in furtherance of the city's police power, these amendments were enacted to prevent the licensure of devices presumed to be used exclusively for gambling purposes.*fn5

However, the amendments to the mechanical amusement device ordinance fostered litigation challenging the validity and the constitutionality of the amendments.*fn6 This court is now called upon to again determine whether the amended ordinance is preempted by state law. More particularly, it is to decide whether the defendant's conviction thereunder was permissible.

It is undisputed that municipalities have the broad authority to enact ordinances to regulate the public health, safety, and welfare of the municipality and its citizens.*fn7 More particularly, N.J.S.A. 40:48-1(20) permits municipalities to make and enforce ordinances that regulate:

the use of theaters, cinema houses, public halls, schools, churches, and other places where numbers of people assemble, and the exits therefrom, so that escape therefrom may be easily and safely made in case of fire or panic; and to regulate any machinery, scenery, lights, wires and other apparatus, equipment or appliances used in all places of public amusement.

However, this broad authority is not absolute and may be limited when the municipality is prevented from enacting ordinances which are contrary to state law or policy due to the doctrine of preemption. Overlook Terrace Management v. Rent Control Bd. of W. New York, 71 N.J. 451, 461, 366 A.2d 321 (1976).

The validity of any municipal ordinance under the doctrine of preemption must necessarily turn upon the intention of the Legislature. Thus, if a court "determines that the Legislature intended its own actions, whether it exhausts the field or touches only part of it, to be exclusive, then it will conclude that the State has preempted the field, thereby barring any municipal legislation." Mack Paramus Co. v. Mayor and Council of Paramus, 103 N.J. 564, 573, 511 A.2d 1179 (1986).

This caveat is limited by the fact that municipalities have been granted broad authority and control over matters of local concern and interest by Art. IV, § 7, para. 11 of the New Jersey Constitution. This particular section of the Constitution "ordains liberal construction of these powers." Township of Chester v. Panicucci, 62 N.J. 94, 99, 299 A.2d 385 (1973). Thus, the legislative intent to supersede these local powers by legislative enactments must be clearly present in the Legislature's actions. Garden State Farms, Inc. v. Mayor Louis Bay, II, 77 N.J. 439, 450, 390 A.2d 1177 (1978).

The seminal case pertaining to the doctrine of preemption is Overlook Terrace Management Corp., supra.*fn8 The Court outlined five factors to consider in a preemption analysis:

1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.