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State v. Agostini

A-6409-01T5 (N.J. Super. App. Div. 2004) (Unpublished)

MUNICIPALITIES; ORDINANCES; PROFESSIONS—Municipalities cannot enforce local ordinances that attempt to license, as businesses, professions that are already regulated by state law.

In 2000, a municipality enacted a “General Business” license ordinance, replacing an earlier version. A significant change was that the new ordinance included state-licensed professionals. Then, the municipality charged a psychologist with violating the local Municipal Code by failing to apply for a General Business License for 2001. She was found guilty in a municipal court. On appeal, the Law Division again found the psychologist to be guilty.

On appeal, the Appellate Division dismissed the conviction, holding that the ordinance, as applied to a licensed psychologist, was preempted by state licensing law. To determine whether preemption bars a local ordinance, the following five questions must be considered: 1) Does the ordinance conflict with state law?; 2) Was the state law intended, expressly or impliedly, to be exclusive in the field?; 3) Does the subject matter reflect a need for uniformity?; 4) Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?; and 5) Does the ordinance stand “as an obstacle to accomplishment and execution of the full purposes and objectives” of the Legislature?

Based on prior case law, the Court noted that matters that inherently require uniform and consistent treatment at the state level are not apt subjects for local regulation. In this case, the Practicing Psychology Licensing Act (Act) provides comprehensive regulation of the professional licensing and practice of trained psychologists. The Act created the State Board of Psychological Examiners (Board), which is the agency responsible for investigating and licensing psychologists and which establishes specific qualifications for membership. The Act also authorizes the Board to enact regulations governing licensure of psychologists.

Furthermore, the Court held that the Legislature had expressed its intention to provide for “uniform investigative and enforcement powers and procedures and uniform standards for license revocation, suspension and other disciplinary proceedings” by professional boards, including the Board. As a result, the Court held that the local ordinance was preempted. First, the ordinance had the potential for conflicting with state licensing law. Under that Act, the Board decides whether or not a psychologist has “good moral character” or if the psychologist is complying with the Act. The local ordinance would have permitted municipal officials to deny a business license to a state-licensed professional on very similar grounds, thereby leading to a potential conflict with the Board’s ongoing supervision of the same individual.

Additionally, the Court believed that the ordinance intruded into a field that was comprehensively regulated by state licensing law, which, the Court noted, plainly was intended to constitute the exclusive and uniform regulation of the practice of psychology. The municipality offered no evidence to support its contention that it had had any rational basis for imposing different or additional conditions upon the practice of psychology within its borders.


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