A Camden, N.J., ordinance that forces restaurants, food stores and other retail businesses to close up early has been upheld against suits that sought to block it, one of them lodged by 7-Eleven Inc.
Superior Court Judge F.J. Fernandez-Vina ruled Monday that the curfew, which aims to curtail crime around businesses near residences, "is a valid exercise of police power by the governing body and is not a land use ordinance as argued by plaintiffs."
Adopted in August 2011, the ordinance applies to businesses within residential zones or that are in a commercial or mixed zone but situated less than 200 feet from a residential zone.
The affected businesses must be closed from 11 p.m. — or midnight on Friday and Saturday — until 6 a.m. Violations are grounds for suspension or revocation of a business license.
Exempted are gas stations and pharmacies, for health and safety reasons, and businesses holding liquor licenses, which already are tightly regulated by state and local liquor authorities.
The ordinance goes beyond one adopted in 1999, which only restricted the hours of food service business located within residential zones.
Several business owners and Camden resident Frank Fulbrook, a community activist with a history of litigating against the city, sued in September 2011, in Fulbrook v. Mayor and Members of City Council, CAM-L-4699-11.
7-Eleven followed that November with its own suit, 7-Eleven Inc. v. City of Camden, CAM-L-5662-11.
Fernandez-Vina enjoined enforcement of the ordinance last September, pending outcome of the suits.
At a seven-day bench trial in February, a 7-Eleven regional manager in charge of 88 locations contended that two Camden stores would lose 30 percent of their sales, and the owner of two Crown Fried Chicken stores in Camden claimed at least 30 percent of his income is generated by late-night customers.
On Monday, the judge found that the plaintiffs "failed to show even by a preponderance of the evidence presented that they would suffer a financial loss of any significance if the stores were required to close."
Fernandez-Vina called the ordinance "reasonably related to the stated purpose [of] improving the quality of life for residents." He said that expert testimony established that areas near late-night restaurants and food sellers showed higher crime rates than other areas.
He rejected arguments that reported crime is higher around such establishments because there are more witnesses, calling it "irrelevant" to the law’s purpose.
He gave no credence to the concept of displacement — that criminal activity squelched in one area only crops up elsewhere — finding it "particularly confusing and unpersuasive as essentially the logical progression of that opinion is that … nothing should be done."
The judge was persuaded by the testimony of a defense expert, who said the rate of violent crime around 26 late-night Camden businesses was two times higher than average, and of Camden Deputy Police Chief Michael Lynch, who said increased traffic around such establishments leads to more noise, fights and other illegal activity.
Fernandez-Vina distinguished a precedential ruling that struck down a business curfew, Fasino v. Mayor and the Borough Council of Borough of Montvale, 122 N.J. Super. 304 (1973), because that ordinance affected all retail businesses in the municipality, not just those close to residences.
Camden Mayor Dana Redd called the decision "truly … great news for our residents" and said officials would begin contacting affected businesses.
The city’s outside counsel, John Eastlack Jr. of Weir & Partners in Cherry Hill, said, "The city of Camden needs businesses. … We want them to thrive; we just don’t want all the noise, traffic and, unfortunately, drug trafficking."
Newark, New Jersey’s largest city, has an ordinance restricting hours of commercially zoned businesses located close to residential zones, Eastlack said.
Fulbrook’s lawyer, John Calzaretto of Calzaretto & Bernstein in Maple Shade, deferred comment to him.
Fulbrook said he’d like to appeal but is still discussing it with the other plaintiffs. "I don’t think the judge’s decision is a very sound decision," he said. "This ordinance creates winners and losers … but they’re identical businesses."
Asked what’s prompted him to fight the curfew, Fulbrook said: "Basically for me it’s economic freedom and the belief that a thriving city should be a 24-hour operation. I want to see the city thrive and I believe it has to be based on vitality."
Andrew Bayer of Gluck Walrath in Trenton, 7-Eleven’s counsel, says the corporation will appeal Fernandez-Vina’s decision.