On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal Nos. 96-06 and 43-07.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Skillman, Graves and Grall.
Defendant was found guilty on two occasions of violating municipal ordinances that prohibit the sale of merchandise on the Atlantic City boardwalk by attempting to take photographs of persons walking on the boardwalk and then selling them to the subjects. On appeal, defendant argues that this business activity is expressive conduct protected by the First Amendment and consequently the Atlantic City ordinances could not be constitutionally applied to prohibit it. He also argues that one of those ordinances is unconstitutionally vague and violates due process by conferring unbridled discretion upon the mayor to decide whether to issue a special events permit.
We conclude that defendant's business activity does not serve predominantly expressive purposes and therefore is not entitled to protection under the First Amendment. We also conclude that, as applied to defendant, the municipal ordinances under which he was prosecuted are not unconstitutionally vague and do not confer unbridled discretion upon the mayor. Therefore, defendant does not have standing to challenge the constitutionality of those ordinances. Accordingly, we reject defendant's constitutional arguments and affirm his convictions.
Around 2 a.m. on October 22, 2006, two police officers on patrol observed defendant on the boardwalk in front of the Wild Wild West Casino in Atlantic City taking pictures of persons walking on the boardwalk. Defendant not only had a camera but also a printer and a display board with photographs and prices of particular size photographs attached to it. Defendant also had a suitcase to carry this paraphernalia. One officer told defendant he could not solicit persons to take their photographs without a permit. Defendant responded that the officer was "violating his civil rights."
The officers charged defendant with violating Atlantic City's municipal ordinance 145-1, which provides:
No person shall hawk, peddle or vend any ice cream, food, beverages, confections, goods, wares, merchandise or commodities of any nature or description on the public Boardwalk in the City of Atlantic City or upon any of the approaches thereto except as permitted by a special events permit issued by the Mayor.
Defendant did not take the stand in his trial in municipal court. Consequently, the charging officers' description of the business operation defendant conducted on the boardwalk was unrebutted. However, defendant, who appeared pro se, argued in summation that, under an order entered by a federal district court in the Bery case, the selling of photographs in public places such as streets and boardwalks is protected by the First Amendment.*fn1 Based on this precedent, defendant argued that ordinance 145-1 could not be constitutionally applied to his business activity on the boardwalk.
The municipal court judge concluded that defendant had engaged in the "hawking" of photographs on the boardwalk, in violation of ordinance 145-1. The judge declined to consider defendant's constitutional argument on the ground that such a claim should be considered only in the Superior Court. The judge imposed a $206 fine for defendant's violation of the ordinance.
Defendant appealed his conviction to the Law Division, where he was represented by counsel. Defense counsel expanded upon defendant's argument presented in municipal court that the application of ordinance 145-1 to his business activity violated the First Amendment. In addition, defense counsel argued for the first time that ordinance 145-1 is "unconstitutionally vague."
The Law Division judge found, based on the evidence presented in municipal court, that "defendant was going about carrying out some kind of photographic business on the board-walk, trying to take pictures of people and printing them out and selling them for a fee," which constituted a violation of ordinance 145-1. The judge also rejected defendant's constitutional arguments.
Defendant's second violation of a municipal ordinance for attempting to take and sell photographs of persons walking on the boardwalk occurred at approximately 10:20 p.m. on November 11, 2006. A police officer on patrol observed defendant approaching persons on the boardwalk with a placard containing eight photographs, one of which was of defendant. It appeared to the officer that defendant was attempting to sell the photographs, and defendant confirmed in a conversation with the officer that he was selling the photographs for from $2 to $5. The officer also observed a small camera in defendant's top pocket. The officer asked defendant to produce a mercantile license to engage in this commercial activity, but he did not have one. Defendant claimed in response to the officer's questions that he did not need a license to sell photographs.
The officer charged defendant with violating Atlantic City municipal ordinance 170-2, which provides in pertinent part:
No person shall engage in or carry on any business in the City of Atlantic City, nor aid or assist as employee, clerk or otherwise in carrying on such business, . . . nor sell or offer for sale any goods or thing for which a license is required by the terms of this article unless a license as herein provided for shall have been first obtained therefor.
Defendant admitted at his trial in municipal court, in which he appeared pro se, that he displayed the placard with the attached photographs to persons on the boardwalk. However, he claimed that his purpose was not to sell the photographs but rather to advertise his skill as a photographer so that persons who saw the photographs would hire him as a photographer for weddings or parties. Defendant also argued, as in his other trial in municipal court, that he had a right under the First Amendment to sell photographs on the boardwalk without obtaining a license.
The municipal court judge found, based on the charging officer's testimony and the placard that defendant displayed to persons on the boardwalk, that defendant had been engaged in offering to take photographs of persons walking on the boardwalk for sale. In making this finding, the judge stated that "looking at [the placard] it's very clear that there's different people in pictures here, . . . and it has $10 here on the back, . . . there's an inference that can be drawn that [he was] offering to take pictures of people on the Boardwalk." The judge therefore concluded that defendant had violated ordinance 170-2 by engaging in the business of selling photographs without a license. ...