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Hamilton Amusement Center v. Vernerio

156 N.J. 254, 716 A.2d 1137 (1998)

SIGNS—The state statute that restricts sexually oriented businesses to two exterior signs, one with identifying information and one stating that the premises are off limits to minors, is constitutionally enforceable.

An adult oriented store challenged the constitutionality of N.J.S. 2C:34-7(c), which restricts sexually oriented businesses from “display[ing] more than two exterior signs consisting of one identification sign and one sign giving notice that premises are off limits to minors.” It alleged that those restrictions violate the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. It also contended that the statute was unconstitutionally vague because it fails to define “identification sign.”

The New Jersey Supreme Court began its analysis by determining that the statute in question was designed to regulate commercial speech only. It applied a four-part test in determining the constitutionality of the statute as applied to the challenged activity. To pass muster, restrictions affecting commercial speech must concern: (i) lawful activity that is not misleading; and (ii) must include a substantial governmental interest that has been asserted. If both tests are satisfied, then further inquiry is made as to: (iii) whether the regulation advances the governmental interest asserted; and (iv) whether it is no more extensive than is necessary to serve that interest.

The Court found that the commercial activity was lawful and not misleading. It also found that the government’s interest in preventing auto accidents by regulating the number of allowable signs was an important one. It further found that protecting children was a substantial state interest and that the regulation achieved the government’s interest because the posting of signs indicating that the businesses are off-limits to minors helps to ensure that minors will be excluded from the premises. In applying the last prong of the four-part test, the Court found that the statute was no broader than necessary because it: (1) allows two signs to be posted; (2) does not proscribe other modes of advertisement; (3) does not inhibit the material that may be displayed in the store; and, does not place any significant limitation on what might be advertised on the two signs. The Court also found that sexually oriented businesses could advertise in the print and electronic media.

The Court also rejected the plaintiff’s vagueness argument. It cited case law as standing for the proposition that when a statute’s constitutionality is doubtful, a court may construe it in a constitutional way. The Court then adopted the Appellate Division’s definition of “identification sign” as one that could communicate not only the name of the establishment, but also the street number, telephone number, operating hours, and general nature of the establishment in order to identify the business.


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