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Hamilton Amusement Center, Inc. v. Poritz

February 28, 1997

HAMILTON AMUSEMENT CENTER, INC., T/A VIDEO EXPRESS, L.O.J., INC., T/A THE EMPORIUM, PYNCO, INC., T/A CAMELOT BOOK STORE, AND CRESCENDO BOOK, INC., T/A CARNIVAL BOOKS, PLAINTIFFS-RESPONDENTS,
v.
DEBORAH PORITZ, ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Approved for Publication March 5, 1997. As Corrected April 28, 1997.

Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Petrella, P.j.a.d.

The opinion of the court was delivered by: Petrella

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

This is an appeal by the State of New Jersey from an order permanently enjoining enforcement of N.J.S.A. 2C:34-7(c) as an unconstitutional content-based restriction on free speech or alternatively as void for vagueness.

Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, Pynco, Inc., t/a Camelot Book Store, and Crescendo Book, Inc., t/a Carnival Books (collectively referred to as plaintiffs) own or operate sexually oriented businesses that use signs which exceed the statute's restrictions on size, number and content. *fn1 Plaintiffs sought a declaratory judgment declaring N.J.S.A. 2C:34-7(c) unconstitutional under the First Amendment to the United States Constitution and Article I paragraph 6 of the New Jersey Constitution, and seeking temporary injunctive relief from enforcement of the statute.

The Law Division Judge found in plaintiffs' favor, holding that N.J.S.A. 2C:34-7(c) was a content-based restriction on speech and presumptively unconstitutional under strict scrutiny. He concluded that the Legislature did not have a compelling interest to warrant the restriction on speech. Alternatively, the Judge concluded that the statute would also fail under the less onerous content neutral test of time, place and manner because it was not narrowly tailored. An order was entered making the preliminary injunction final. We conclude that the statute involves commercial speech which does not trigger the strict scrutiny standard. *fn2 The statute passes constitutional muster, and hence we reverse.

I.

N.J.S.A. 2C:34-7 was enacted by L. 1995, c. 230, effective September 15, 1995. The sign provisions of the statute are just one subdivision of buffering and site provisions contained in a comprehensive legislative package aimed at sexually oriented businesses. The statute provides:

Sexually oriented businesses; restrictions on location and display of signs; perimeter buffer requirements

a. Except as provided in a municipal zoning ordinance adopted pursuant to N.J.S. 2C:34-2, no person shall operate a sexually oriented business within 1,000 feet of any existing sexually oriented business, or any church, synagogue, temple or other place of public worship, or any elementary or secondary school or any school bus stop, or any municipal or county playground or place of public resort and recreation, or within 1,000 feet of any area zoned for residential use. This subsection shall not apply to a sexually oriented business already lawfully operating on the effective date of this act where another sexually oriented business, an elementary or secondary school or school bus stop, or any municipal or county playground or place of public resort and recreation is subsequently established within 1,000 feet, or a residential district or residential lot is subsequently established within 1,000 feet.

b. Every sexually oriented business shall be surrounded by a perimeter buffer of at least 50 feet in width with plantings, fence, or other physical divider along the outside of the perimeter sufficient to impede the view of the interior of the premises in which the business is located. The municipality may, by ordinance, require the perimeter buffer to meet additional requirements or standards. This subsection shall not apply to a sexually oriented business already lawfully operating on the effective date of this act.

c. No sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign giving notice that the premises are off limits to minors. The ...


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