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State v. Deangelo

September 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WAYNE DEANGELO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 44-2005.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 21, 2007

Before Judges A. A. Rodríguez, Sabatino and Lyons.

The opinion of the court was written by A. A. RODRÍGUEZ, P.J.A.D.

This matter arises in the rubric of an appeal from a conviction for violating a municipal ordinance. However, the focus of the appeal is the enforceability of the ordinance that prevents the display of a large balloon in the shape of a rat during a labor dispute. We hold that the ordinance, which does not affect the parties' rights in the labor dispute, is not preempted by the National Labor Relations Act (NLRA), 29 U.S.C.A. § 151-69, nor does it abridge any party's freedom of expression. The Ordinance is not void for vagueness. It is content-neutral and the record does not support a claim that it was selectively enforced. Accordingly, the conviction of the union official that authorized display of the balloon is affirmed.

Wayne P. DeAngelo, appeals from his conviction, in the Lawrence Township Municipal Court and again in the Law Division, following a trial de novo, of a violation of Lawrence Township Municipal Ordinance § 535(L)(2) (the Ordinance), which provides:

L. Prohibited Signs. All signs not permitted by this Ordinance are hereby prohibited with the following signs specifically prohibited:

2. Banners, pennants, streamers, pinwheels, or similar devices; vehicle signs; portable signs, balloon signs or other inflated signs (excepting grand opening signs); and searchlights (excepting grand opening signs), displayed for the purpose of attracting the attention of pedestrians and motorists; unless otherwise excepted.

The facts are not disputed. On April 5, 2005, the International Brotherhood of Electrical Workers, Local 269 (IBEW) was handbilling the general public on the sidewalk in front of Gold's Gym. DeAngelo was the senior IBEW official at the scene. As part of the labor action, the IBEW displayed a balloon in the shape of a rat, as a symbol of protest against unfair labor practices. We are advised that a rat is a well-known symbol of protesting unfair labor practices. According to the Laborers' E. Region Org. Fund, 2005 NLRB LEXIS 273, at *21 (June 14, 2005), "[t]he union's use of the rat constituted confrontational conduct intended to persuade third persons not to do business with [employer]. A rat is a well-known symbol of a labor dispute and is a signal to third parties that there is an invisible picket line they should not cross. The [NLRB] has noted that the term 'rat' means to 'go nonunion [,]'" Marquis Elevator Co., 217 NLRB 461 n.2 (1975) and is a synonym for the word "scab," i.e., a strike replacement, or someone who refuses to join a union. See Int'l Union of Operating Eng'rs, Local 150 v. Village of Orland Park, 139 F. Supp. 2d 950 (N.D. Ill. 2001) (noting that "[t]he rat has long been a symbol of labor unrest.")

The balloon is approximately ten feet tall and has no writing on it. In response to a complaint by Gold's Gym, the police were summoned. Lawrence Township Police Officer Mark Harmon went to the scene and spoke with three IBEW leaders about the balloon. The leaders removed the balloon. According to Harmon, "approximately [] 45 minutes later, [he] received a call from the dispatcher on the police radio. They had received a [second] call that the inflatable rat had been put back up." He returned to the scene and issued a summons to DeAngelo, charging that the inflatable rat is a "balloon sign or other inflated sign," prohibited by Ordinance § 535(L)(2).

DeAngelo moved to dismiss the summons challenging the constitutionality of the Ordinance. The State opposed the motion, stipulating to the facts and requesting that the municipal judge decide the legal issue: whether an inflatable rat is a type of sign that the Ordinance prohibits. The judge denied DeAngelo's motion to dismiss, determining that the display of the rat balloon sign was prohibited by the Ordinance unless a permit was issued.

Following a trial in the municipal court, DeAngelo was found guilty of violating the Ordinance. He was fined $100 and charged $33 for court costs. The fines and costs were stayed pending appeal to the Law Division. The Law Division found DeAngelo guilty of the same charge and imposed the same sanction. DeAngelo paid the fine and court costs and filed this appeal.

He raises several contentions, including federal preemption and constitutional challenges based on free speech, void for vagueness and selective enforcement. We are not persuaded by any of these arguments.

The Rat Balloon Is Prohibited By The Ordinance

DeAngelo first contends that the inflatable rat balloon is not a sign prohibited by the Ordinance. Specifically, he argues that "because 'sign' is not defined by the Ordinance, the public is left guessing at the meaning of the Ordinance." DeAngelo then asserts that "a sign simply does not include an inflatable rat devoid of any lettering or markings." We disagree.

The first step in construing the Ordinance is to examine its language. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999). The meaning derived from that language controls if it is clear and unambiguous. Ibid. It is axiomatic that "[a]bsent a clear indication to the contrary, the language in the [Ordinance] is to be read in accordance with its plain and ordinary meaning." Carpenter Tech. Corp. v. Admiral Ins. Co., 335 N.J. Super. 510, 515 (App. Div. 2001), rev'd on other grounds, 172 N.J. 504 (2002) (citations omitted). Thus, the absence of a definition in the text means that the plain and ordinary meaning is to be applied. If the text is predisposed to different interpretations, the court can consider extrinsic factors, such as the statute's purpose, legislative history, and statutory context to determine the legislature's intent. Wingate v. Estate of Ryan, 149 N.J. 227, 236 (1997); Lesniak v. Budzash, 133 N.J. 1 (1993); N.J. Builders, Owners & Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972).

Here, we conclude that the Ordinance's text is clear and unambiguous. The public need not guess at its meaning. It is true that the Ordinance does not define the term "sign." However, it does describe the types of signs which, are prohibited and gives examples. One of these is "balloon signs or other inflated signs" whose purpose is "attracting the attention of pedestrians and motorists." Moreover, Webster's New International Dictionary defines the term "sign" as a symbol, "a conventional symbol or emblem which represents an idea, as a word, letter, or mark . . . . In writing and printing, an ideographic mark, figure, or picture . . . conventionally used to represent a term or conception, usually technical." Webster's New International Dictionary 2334 (2d ed. 1950). Here, the rat balloon at the location of union handbilling was clearly a sign carrying a symbolic message of a labor protest. Therefore, we reject DeAngelo's first contention.

Furthermore, we note that the summons was issued after Officer Harmon had asked that the balloon be removed because it violated the Ordinance. It was removed ...


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