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State v. Calabria

January 24, 1997

THE STATE OF NEW JERSEY, (LONG HILL TOWNSHIP), PLAINTIFF,
v.
CALABRIA, GILLETTE LIQUORS & DIANE'S COUNTY KITCHEN, DEFENDANTS.



Langlois, J.s.c.

The opinion of the court was delivered by: Langlois

OPINION

LANGLOIS, J.S.C.

On January 29, 1996, three business owners were issued summonses charging each with a violation of the Long Hill Township ordinance regulating signs, specifically, Section 35-8.3e (relevant portion underlined):

All illuminated signs shall be either indirectly lighted or of the diffused lighting type. Group signs, if illuminated, shall be illuminated by an exterior source only in accordance with subsection 35-8.10b of this section, except that ground signs in the B-3 zone may be internally illuminated. No sign shall be lighted by using unshielded incandescent bulbs or neon tubes, mirrors reflecting a direct light source or similar devices. Buildings or structures may not be outlined by tubing or strings of lights for advertising purposes, except that all buildings shall be permitted strings of lights displays between November 15 and January 15 of each year.

[Twp. of Long Hill, Code § 35-8.3e (1990).]

Each defendant had signs on the inside of a store illuminated by neon. *fn1 In municipal court, defendants challenged the constitutionality of the ordinance. With the benefit of testimony at the August trial, briefs and oral argument of counsel, Judge Bride upheld the constitutionality of the ordinance and found each defendant guilty of the violation. Fines and costs were suspended. The Defendants have appealed their convictions to the Law Division de novo on the record and presented the following issues on appeal:

Point I: The Ordinance Infringes upon Freedom of Speech, in Violation of the First and Fourteenth Amendments.

Point II: The Ordinance Denies Defendants Equal Protection under the Law, in Violation of the Fourteenth Amendment.

Point III: Since the Ordinance Affects a Fundamental Right, It is not Entitled to Any Presumption of Validity.

Point IV: The Ordinance is Unconstitutional, Due to Vagueness and Overbreadth and Serves to Deny Defendants Substantive Due Process.

Point V: Defendants Should be Found Not Guilty Based Upon the Record Below.

This court has reviewed the transcript, evidence, and briefs submitted by counsel, has considered oral argument presented on December 16, 1996, and been enlightened by precedent from the United States Supreme Court, other states and higher courts of this state.

Before addressing the substantive issues, the court accepts the essentially undisputed testimony regarding the scope and purpose of ordinance. Michael Tobia, the Township planner and recognized expert in zoning and planning, testified that the present ordinance was enacted in 1990 after several years of work by the municipal boards and township committee, after solicitation of comments from residents and business owners, and after consideration of the need for a comprehensive plan for commercial development ...


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