Boiling point
By JENNIFER KELLEY
Cherry Hill Sun
10/19/2006
Attorneys weigh in on debate over ‘adult’ store
Freedom of speech is the first freedom mentioned in the First Amendment. It also is at the heart of the lawsuit an area businessman has filed against the township. Launched in March 2005, the lawsuit seeks to force Cherry Hill to issue a building permit for a sexually oriented video and novelty shop on Route 70 – directly adjacent to the Barclay neighborhood.
Township officials have denied rumors that the municipality settled with Jim Restaino, owner of the small, vacant one-story structure that sits where Barclay’s Kenwood Drive meets one of Cherry Hill’s main commercial corridors.
Restaino’s attorney, Hackensack-based lawyer Dennis Oury, said his client and the township had neared a settlement in June, wherein Restaino agreed to keep “adult” material to less than 50 percent of the store among other concessions. However, he said, following the brief trial in Superior Court and subsequent agreement, the township balked at the proposed settlement.
The case is still open, officials told The Sun, and Oury said he may soon make a motion to reinstate the trial.
But circumstances may be entirely different the second time around for this contentious case.
Residents react
In recent weeks, word has spread like wildfire through the tightly knit Barclay community that the township’s first adult video and sex toy shop may soon sit at one of the entrances to their neighborhood.
While the property in question faces Route 70, it backs up to rows of residential homes and a children’s bus stop.
Mayor Bernie Platt and Council members have been barraged with phone calls, emails and confrontations at public meetings with residents outraged that a sexually-oriented business could set up shop in a family oriented community.
The Barclay Civic Association has held numerous meetings on the matter, and is raising funds to join the legal battle. Members have also been consulting with an attorney specialized in First Amendment rights, according to BCA President Robert Saldutti.
“(This movement) is more organized than anything I’ve seen of this nature – ever,” he said.
And the township has whole-heartedly backed residents, vowing to fight Restaino’s bid for a permit and do everything within the law to prevent his business from opening.
At a rally held Oct. 9, Platt told residents, “On behalf of our residents, our children and grandchildren, I am drawing a line in the sand and announcing that this township’s government will vigorously fight the presence of such a moral blight on our community and its values.”
Council members The Sun spoke with were in agreement with the mayor.
“I’m not in favor of censorship,” said Councilwoman Shelley Adler, “but I am in favor of moving the business somewhere less objectionable.
“These residents were here first. It would be a violation of their rights to have this type of business come in after the fact.”
She added that had Restaino’s shop been in place before many of the neighborhood’s families had moved in, it may have been a deciding factor in the choice they made to buy a home in the area.
But prior to Restaino’s purchase of the property in 2003, sexually oriented businesses were forbidden from opening within the township.
Zoning and the Constitution
The original ordinance addressing the issue was adopted in 1977 and instituted a wholesale ban on stores peddling adult videos, magazines, sex toys and related sundry, according to Dan Keashen, the mayor’s spokesman.
“Since that time, legal precedent has been set by the U.S. Supreme Court and protected by the U.S. Constitution that an outlet for this type of expression has to be made, and that government bodies cannot make wholesale bans on this material,” he said
Indeed, when Restaino applied for a building permit and was denied, he sued on the grounds that the township’s law banning sexually oriented businesses was unconstitutional.
“It has long been the law that municipalities cannot ban sexually oriented material – they’re not allowed to say, ‘Not in my town,’” Oury said. “People have the right to access pornography and other sexually oriented materials. In Cherry Hill, it was completely banned.”
In 2004, after receiving Restaino’s complaint, Council attempted to pass an ordinance allowing sexually oriented stores in town, but severely restricting how, where and when they could operate.
In 2005, the ordinance was amended, whittled down from six pages to two. Passed unanimously by Council, it restricted “adult” businesses to one of the township’s industrial zones, but noted that they can’t be located within 1,000 feet of any schools, playgrounds, parks, child care centers, places of public recreation, community centers or places of worship. In addition, such stores cannot operate within 500 feet of any school bus stop, the resolution states.
Oury contends that the zoning ordinance is still too restrictive, making it nearly impossible for an “adult” store to open in town.
“Everybody has a property right,” he told The Sun.
The law may be on Restaino’s side.
“Pornography and the like is considered commercial speech – under the First Amendment, that’s given protection,” said Flaster Greenberg attorney Phil Rickner, adding, “But not quite as much as the other forms, such as political speech. A township is given more latitude to regulate commercial speech.”
However, Rickner said, “(Oury) may argue that the township’s ordinance was orchestrated as a retaliation aimed at (Restaino). That’s called ‘spot zoning,’ and the law prohibits that. Zoning is for the public’s welfare, but it can’t be aimed at a specific business.”
He noted it may look “suspicious” to a judge that a business applied for a permit and the township passed an ordinance around the same time banning that particular business from most areas of town.
“Circumstantially, it looks like spot zoning,” Rickner said.
He added that municipalities cannot set up a law in such a way that there is nowhere in town a certain type of business can set up shop – “that’s not going to pass constitutional muster.”
“It’s a real dilemma for Cherry Hill,” Rickner said. “I really sympathize with the mayor and Council. They’re going to have a difficult time restricting this business if (Restaino) is determined to open it somewhere in this town. You can’t legislate it out of existence, and the restrictions imposed on it have to be reasonable.”
The New Jersey’s branch of the American Civil Liberties Union concurs.
“The courts have ruled that towns cannot use their zoning authority to target (commercial) speech alone,” said ACLU-NJ Legal Director Ed Barocas. “Towns can use zoning laws to address secondary effects, such as crime, that could be associated with such businesses, but the towns must base such restrictions on rational information that ties the speech to the town’s purported concerns.
“Additionally,” he said, “the courts have ruled that towns have to afford the opportunity for such businesses to exist, so officials can’t impose an outright ban that would cover the entire town.”
Oury said that from a crime standpoint, “there is no evidence this store will generate more crime than any other business.”
Police department spokesman Lt. Bill Kushina said he did not know if crime would be higher around the area of a sexually oriented store because none currently exist within the township.
In Mt. Laurel, where Restaino owns an “adult” store similar to the one he plans to open on Route 70, calls to the local police precinct were unreturned as of press time.
“People aren’t going to be driving to this store from Philadelphia or New York,” Oury said. “It will be frequented by people who live in Cherry Hill, for the most part. If you were to use people’s Zip codes to track where customers were coming from, I’d say about 40 percent will come from here.”
What now?
Oury said he and Restaino were fully prepared to go back to court, but that the days of negotiating with the township were over.
“If I need to try this case to a conclusion, I believe my client would be looking to put adult material in 100 percent of the store,” Oury noted. “We previously agreed to limit it to around 45 percent, but if I’m going to litigate, (Restaino) will likely open at 100 percent.”
While he no longer wishes to negotiate for his client with Platt and Council, Oury said he’d be willing to meet with area residents to discuss concerns they have about Restaino’s store.
“We’re willing to put up trees, fences, fix up the property, put a counter at the front of the store so no kids under 18 could get inside, etc.,” he said
While Saldutti told The Sun, “Any level of dialogue is important,” he and many residents don’t want to wrangle over the aesthetics of the property – they simply don’t want Restaino to open his store at that site.
“I know people have the right to sell or buy (sexually explicit) materials, but if everyone steps back and looks at the situation, they’d see this business is seeking to operate right next to someone’s house,” he said, adding that his neighbors are most alarmed about the effect such a store will have on area children.
A township on trial
Rickner noted that the burden of proof in this case will fall on the township.
“They’ll have to show evidence that the restrictions they are imposing (in the zoning ordinance) are reasonable, perhaps by citing things like their right to protect children within township and showing the judge proof that when these types of businesses open up, neighborhoods deteriorate.
“But proving that their restrictions are both reasonable and within the bounds of the law will be difficult,” he added. “And an advantage (Oury) will have will be pointing out the timing of the zoning ordinance. In the end, it will be up to the judge.”
As a possible court date draws closer, Platt and Council have stepped up their rhetoric against Restaino and his proposed business, and residents have put aside anger directed at the township for not involving them in the fight earlier and are, instead, focusing on figuring out a solution.
“Civic association members and residents are now more inclined to resolve this issue rather than belabor the past,” Saldutti said. “We’re trying to move forward, and cooperate with and assist the township any way we can.”
Should Restaino win his lawsuit, receive a building permit, and his Romantic Video & Boutique on Route 70 opens, residents still have options, Rickner said.
“They can protest and picket outside of the store, as long as it’s done in a lawful way, take pictures of patrons to discourage business, etc,” he said. “Essentially, there are restrictions on what they can and can’t do, but they have the right to express their disagreement with the business within the bounds of the law. That’s their First Amendment right.
“It comes down to constitutional rights on one side versus constitutional rights on the other side,” Rickner said. “When one First Amendment right is pitted against another, it gets us into a murky area of the law. Both sides have compelling arguments here.”
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