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State of New Jersey v. All American Pinstripes, Inc.

A-3358-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ORDINANCES—Maintaining a sidewalk cafè may violate a specific ordinance governing the use of a sidewalk for such a purpose, but doesn’t violate an ordinance prohibiting display or placement of personal property on the sidewalk.

A licensed liquor and restaurant establishment was located on a beach front. For over thirty years, during the summer months, “the business set[] up table and chairs immediately outside the premises as a sidewalk caf used by its patrons.” In 1993, the municipality revised its Code to include “Sidewalk Cafes and Restaurants” provisions. It made them “an ancillary” use to a permitted restaurant, but required that a license be obtained. Even though the municipality had this ordinance, the restaurant received a summons for violating portions of the municipality’s Code governing “Display of Merchandise on Sidewalks.” There are two provisions of that Code. One is captioned “Display Restricted” and the other is captioned “Obstruction of Public Travel.” The restaurant was found guilty to have violated the “Display of Merchandise on Sidewalks” portion. That section of the ordinance says: “No person shall display, place or permit any merchandise, goods or personal property, of any kind, on or within the sidewalk lines of any sidewalk in the Borough for any space beyond three (3’) feet from the store or building facing on the sidewalk.”

Although the ordinance had been in place since at least 1939, it wasn’t until 2000 and 2001 that the restaurant was charged with its violation. The Appellate Division agreed that delay “may well [have been] entirely a matter of discretionary enforcement,” but thought that it might have been because the restaurant sidewalk caf was not thought to fall within the scope of the “Display of Merchandise on Sidewalks” ordinance. According to the Appellate Division, “[a] sidewalk caf is hardly a ‘display of merchandise.’” It pointed out that “while the title of an ordinance may be of assistance in ascertaining its scope, the title cannot operate to negate its express terms.” Further, where alleged conduct is proscribed by a penal or quasi-penal ordinance, the ordinance must be clear and unambiguous. With that in mind, the Court held that it was not clear that the ordinance in question applied to a sidewalk caf . Its focus was upon displays of merchandise. It accepted the Borough’s argument that the ordinance referred not only to merchandise and goods, but also to personal property. The municipality argued that personal property includes “a[]ny movable or intangible thing that is subject to ownership and not classified as real property.” On the other hand, the propounded definition came from Black’s Law Dictionary, and that same definition section states that personal property is “[p]roperty not used in a taxpayer’s trade or business… .” That would exclude the restaurant’s tables and chairs because those items were clearly used as part of its business. In addition, the Appellate Division did not think that the tables and chairs were “displayed.” It agreed that the ordinance also used the words “place” and “permit,” and recognized that those terms might be broadly construed to encompass the sidewalk caf . If that were so, however, the tables and chairs still didn’t constitute merchandise, goods or personal property. As such, application of the Ordinance was, at best, ambiguous. Further, given the “wholly separate licensing provisions which permit[ted] sidewalk caf s,” the Appellate Division felt “constrained to reverse [the restaurant’s] convictions.

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