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State v. Schad

STATE OF NEW JERSEY, TOWNSHIP OF PENNSAUKEN, PLAINTIFF-RESPONDENT,
v.
JAMES SCHAD, DEFENDANT-APPELLANT.



Argued January 6, 1998 - Decided February 3, 1998

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

Before Judges Long, Kleiner and Kimmelman.

The opinion of the court was delivered by: Kimmelman, J.A.D.

Before the court are two separate appeals from distinct trials de novo in the Law Division, wherein defendant was twice convicted of violating provisions of the Township of Pennsauken (Township) sign ordinance. The violations charged in both cases were identical, but the cases related to different points in time. We ordered that the appeals be argued back-to-back. Since both matters involve the same facts and law, we now elect to treat the appeals together in this opinion.

Defendant operates adult entertainment businesses at two locations in the Township; 3000 Admiral Wilson Boulevard and 2251 Route 73. At both locations, there is erected and maintained an illuminated, free-standing sign; at the Admiral Wilson Boulevard location there is also an illuminated, building-mounted sign; and at the Route 73 location there are two illuminated, building-mounted signs. These signs had been erected and maintained prior to the time of the violations charged. All of these pre-existing signs either (1) conformed with the Township's sign ordinance, which limits the number and size of business signs and requires the issuance of a permit before a sign is erected; or (2) were considered to be permitted, non-conforming uses.

The controversy centers upon action taken by defendant in September 1995. At that time, defendant devised and assembled wooden encasement displays containing color transparency photos of women dressed in beach attire or swimwear. Each display measured approximately 42.75 square feet in size. Twelve displays were installed in the building at the Admiral Wilson Boulevard location and eight were installed in the building at the Route 73 location. Each display was set twelve to twenty-four inches behind the front windows and were visible only from outside the premises.

On October 17, 1995, defendant was issued summonses charging the following sign ordinance violations: failing to remove signs exceeding the number of signs permitted, failing to remove signs exceeding the gross square footage of signs permitted at a given location, and failing to obtain permits for the transparency displays. On March 21, 1996, defendant was found guilty by the Pennsauken Municipal Court of the sign ordinance violations as charged and was fined $31,500, together with costs of $120. On September 3, 1996, following a trial de novo in the Law Division, defendant's convictions were upheld. The fine and court costs have been paid. The appeal of these convictions was lodged on September 18, 1996, and has been docketed as A-0486-96.

On June 28, 1996, summonses were once again issued to defendant, charging continuing violations of the same sign ordinance provisions. Defendant was again found guilty by the Pennsauken Municipal Court and fined $102,000. On appeal to the Law Division, and following a trial de novo, defendant's convictions were affirmed, but the fine was reduced to $65,920. Pending defendant's appeal of the second set of convictions, which was lodged on February 5, 1997, and docketed as A-3218-96, the payment of the fines and court costs have been stayed.

On these appeals, we deal only with defendant's principal contention; that the transparency displays placed inside the windows of each adult entertainment premises were not "signs" within the meaning of the Township's sign ordinance. Our ruling on this issue makes it unnecessary for us to address other arguments raised by defendant relating to constitutional issues, selective law enforcement, lack of due process, bias, and abuse of power.

The pertinent ordinance provisions follow:

Pennsauken Code § 126-700.1 defines a sign as:

SIGN - A structure and a land use, a building wall or other outdoor surface or any device used for visual communication, display, identification or publicity and more fully described under § 126-711 of this chapter.

Pennsauken Code § 126-711 further provides:

Any sign erected or maintained after the effective date of this chapter shall conform to ...


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