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State of New Jersey v. Wilkerson

A-1411-01T3 (N.J. Super. App. Div. 2002) (Unpublished)

HOURS OF OPERATION— A municipality that shows a proper nexus may restrict the hours of business operation in a neighborhood and may delegate authority to its police department to grandfather some existing businesses out of such a restriction on the basis that those businesses had not contributed to the perceived problems, even if new businesses of similar character are not similarly exempted.

A municipality adopted an ordinance regulating the business hours of commercial establishments on several streets within the municipality, prohibiting them from operating between the hours of ll:00 p.m. and 5:00 a.m. the next day. The streets were located in a residential-commercial district in the municipality. The ordinance declared, as its purpose, “to decrease noise, disturbances and criminal activity, particularly drug related crime, associated with the crowds of young people who loiter around these businesses throughout the night.” The ordinance incorporated numerous findings in support of its purpose. It exempted certain enumerated businesses such as “pharmacies and holders of alcoholic beverage licenses,” and provided for exemptions “from the closing regulations for other business to be approved by the Police Director,” such as restaurants or retail sales establishments with a history of remaining open past 11:00 p.m. on a regularly scheduled basis and where the owners or operators had never been found guilty of liquor law violations. Shortly after the regulation was adopted, several store owners filed a complaint in lieu of prerogative writs challenging the constitutionality of the regulation. “Specifically, [those store owners] contended that the ordinance [did] not serve a valid public purpose, [was] arbitrary and discriminatory, and that the exemption provision place[d] too much discretion in the police, who [had] exercised their delegated authority in an arbitrary and discriminatory manner.” In that earlier case, a lower court upheld the “constitutional validity of the regulation, and further directed corporation counsel of the municipality to meet with the Police Director to insure that the police, in enforcing its exemption authority, follow the guidelines of the ordinance in a ‘uniform, consistent and fair manner.’” In finding that the ordinance served a valid public purpose, the lower court concluded that the evidence was striking and persuasive that the area was “sorely troubled by drug trafficking and by other crimes and disorderly conduct.” It also found problems with enormous crowds of young people, double and triple parking, gang fights, loud noise, and drug trafficking. Consequently, it “concluded that the evidence ‘clearly established a nexus between business establishments ... remaining open past 11 o’clock [p.m.] and the boisterous, rowdy, disorderly and sometime criminal conduct occurring in their vicinity.”

The present litigation arose almost thirteen years after the earlier lower court upheld the constitutionality of the ordinance. It resulted from a summons issued to a retail business operating beyond the 11 p.m. closing restriction. The municipal court judge found the defendant in violation of the ordinance, rejecting a constitutional challenge. An appeal was taken to the Law Division and, “[f]inding no evidence that the ordinance was either ineffective or no longer warranted, the trial judge concluded that the presumption of its validity had not been overcome.” Nevertheless, the trial judge invalidated the entire ordinance because of perceived problems with its exemption provision. In the lower court’s view, to be eligible to qualify for exemption, business owners would have to operate for one year in violation of the very ordinance from which they seek exception.” The lower court rejected the municipality’s interpretation “that the exemption clause was intended to serve to ‘grandfather’ in only those businesses that had operated past 11:00 p.m. without incident prior to the enactment of the regulation… .” Nonetheless, the lower court “ruled the ordinance unconstitutional because no businesses not in operation before 1987 could obtain an exemption.”

On further appeal, the Appellate Division understood that the ordinance was passed for the “order and protection of persons and property, and with the preservation of the public health, safety and welfare of the municipality and its inhabitants… .” As such, an express delegation of police power “permits the enactment of regulatory ordinances on any subject matter of local concern that is reasonably related to a legitimate object of public health, safety or welfare.” Ordinances “restricting hours of particular businesses have been consistently upheld.” The scope of municipal police power ordinances are to be liberally construed in their favor.” Consequently, municipal ordinances carry a presumption of validity, with a heavy burden placed on the party seeing to overturn them.” After reviewing the record, the Appellate Division was satisfied that, “as a general proposition, limitations upon hours of service in commercial establishments located in a residential milieu is a regulation related to the health, peace and comfort of those in surrounding homes.” It was also satisfied that under the particular circumstances in this area of the municipality, “identified for its high incidence of noise, disturbance and criminal activity doubtless further[ed] the public health, safety and welfare of the affected residential community.” Simply put, the defendant in this case had “produced no proof to overcome the ordinance’s presumption of validity.” According to the Court, the ordinance was rationally related to its stated goal. Therefore, it rejected the lower court’s finding that the exemption provision afforded no real relief to area businesses. Unlike the lower court, the Appellate Division thought that a reasonable construction of the ordinance was, in fact, to grandfather businesses that had operated for at least one year prior to the adoption of the ordinance and without incident. “So viewed, this ‘grandfather’ clause no longer [had] application to area businesses presently in occupation and therefore its separation from the remainder of the ordinance [would] have no obvious effect thereon.” Essentially, “the exemption clause, no matter how viewed [was] not so intimately connected or integrated with the remainder of the ordinance as to be inseparable or that all or none must stand.” The Court concluded that the lower court “erred in declaring the entire ordinance unconstitutional because of the perceived offensiveness of the exemption clause.” It also found “no defect, constitutional or otherwise, in the exemption provision as phrased, which, in any event, [was held] to be severable from the remainder of the ordinance.” Lastly, it adhered to “the view that the entirety of the ordinance [was] constitutionally firm.”


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