Brown v. City of Newark

• Decision Date: 25 January 1985
• Citation: 493 A.2d 1255,202 N.J.Super. 1
• Parties: Richard BROWN and Ernest King, Plaintiffs-Respondents, v. CITY OF NEWARK, a Municipal Corporation of the State of New Jersey, Defendant- Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

202 N.J.Super. 1

493 A.2d 1255

Richard BROWN and Ernest King, Plaintiffs-Respondents, v. CITY OF NEWARK, a Municipal Corporation of the State of New Jersey, Defendant- Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 19, 1984.

Decided Jan. 25, 1985.

Kathleen C. Goger, Asst. Corp. Counsel, Montclair, for appellant (John J. Teare, Corp. Counsel, Newark, attorney, Janice Montana, Asst. Corp. Counsel, Springfield, and Hugh B. Gallagher, Asst. Corp. Counsel, Newark, on the brief).

Louis S. Raveson, Newark, for respondents.

Before Judges MATTHEWS, FURMAN and RICHARD S. COHEN.

The opinion of the court was delivered by

FURMAN, J.A.D.

The constitutionality of thirteen sections of the City of Newark ordinance regulating peddling and the entitlement of Rutgers Urban Legal Clinic to an attorney's fee award under 42 U.S.C.A. § 1988 are at issue on this appeal. Plaintiffs are licensed peddlers of the city. In a comprehensive opinion the trial judge struck down twelve sections and part of a thirteenth of the ordinance as unconstitutional, upheld the balance of the ordinance as constitutional and applied the severability clause of the ordinance because, in his view, the invalid sections are independent and the valid sections form a complete enactment by themselves. The City of Newark appeals; no cross-appeal is brought.

We affirm in part and reverse in part. The ordinance under attack is entitled to the presumption of validity favoring municipal enactments, N.J. Const., Art. IV, § VII, par. 11. Municipalities are granted specific authority to regulate peddling, N.J.S.A. 40:52-1(c). We conclude that sections (e)(2), (e)(3), (e)(4), (e)(5), (f), (h), (l), (m), (p), and (q), all struck down by the trial judge, are neither unduly burdensome, unduly vague nor without reasonable relationship to the legislative purposes of avoiding congestion on the public sidewalks and of preventing public nuisances.

The subsections of (e) which were declared invalid prohibit substantial impediments to ingress to and egress from abutting property; nuisances; increases in traffic congestion and hazards; and dangers to life, health or property. The definition of "nuisance" should be drawn from N.J.S.A. 2C:33-12 a. The four subsections reasonably protect against threats to the public interest and are readily construable to advance that purpose; whether they overlap with or are redundant of other legislative proscriptions is immaterial, see State v. States, 44 N.J. 285, 291, 208 A.2d 633 (1965).

Sections (f) and (h) limit the dimensions of the peddler's cart to two feet in width, four feet in length and four feet in height and prohibit use of any rack or other device to increase the display capacity of the cart. Whether a peddler's cart substantially obstructs the orderly and free flow of pedestrian sidewalk travel is in relationship to its over-all size. Cart size limitations reasonably further the public interest in preventing pedestrian congestion. In the absence of any proofs supporting plaintiffs, we reject their argument that the maximum dimensions fixed, including extensions by racks or other devices, are arbitrary or impose an undue restriction on peddlers.

Sections (l), (m), (p) and (q) impose distance limitations for the stationing of a peddler's cart: not so as to reduce the unobstructed pedestrian right of way to less than six feet; not within ten feet of any curb cut designed to facilitate pedestrian or vehicular movement; not within 15 feet of a fire hydrant, crosswalk or driveway; not against display windows of fixed location businesses; not within 20 feet of the entranceway of any building, store, theatre, sports arena, school or other public place. The trial judge held the distance limitations to be constitutionally invalid on the ground that they are unduly burdensome and difficult or impossible to comply with. We disagree. The distance limitations reasonably serve the legislative objectives of avoiding congestion on the public sidewalks and of assuring an unimpeded view into commercial premises see State v. Boston Juvenile Shoes, 60 N.J. 249, 257, 288 A.2d 7 (1972). They are measurable or may be readily approximated by eye. In upholding sections (l), (m), (p) and (q), we construe them as applicable when a peddler's cart is stationary on the sidewalk and as inapplicable when a peddler's cart is being pushed or pulled along the sidewalk, for example, passing the entranceway to a store. We apply the rule of construction which favors a constitutional interpretation of a legislative enactment whenever reasonably susceptible to such interpretation, State v. Profaci, 56 N.J. 346, 350, 266 A.2d 579 (1970).

The three other sections of the ordinance which the trial judge struck down, that is, (d), part of (n) and (o), we also hold to infringe constitutional mandates.

Section (d) requires a peddler's cart to be continuously in motion except "when a sale is ... being transacted." The trial judge determined that this provision had been selectively enforced in violation of equal protection of the law under the State Constitution because food vendors and storekeepers with sidewalk displays had not been prosecuted. We disagree that section (d), which is neutral on its face, should be held invalid because of discrimination in its enforcement. The remedy for selective enforcement of a penal law is not invalidation of the penal law, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

We base our affirmance of the holding that section (d) is constitutionally invalid on the ground that it is not reasonably related to and does not reasonably serve the stated purpose of the orderly and free flow of pedestrian sidewalk travel, see Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 301, 359 A.2d 862 (1976). A peddler's cart in motion, proceeding slowly because of its bulk and to attract customers, would tend to impede pedestrians more than would a stationary peddler's cart.

Appellant city cites Mister Softee v. Mayor and Council of Hoboken, 77 N.J.Super. 354, 375, 186 A.2d 513 (Law Div.1962), as authority for a so-called "perpetual motion" requirement for peddlers. Mister Softee sustains such an ordinance provision for vehicular peddlers or hawkers traveling on the public street, without discussion of its applicability to sidewalk vendors. A direct and persuasive authority adverse to appellant city is Russell v. Town of Pittsford, 94 A.D.2d 410, 464 N.Y.S.2d 906 (1983), which held that a prohibition against a peddler's standing in one place except to effect a sale was unconstitutionally restrictive and arbitrary, because of the lack of a reasonable nexus between the prohibition and the town's objective of alleviating traffic congestion.

Section (n) is constitutionally unchallengeable insofar as it requires a peddler to give written sales receipts to all customers showing the peddler's name, business address and details of the sale, but it is constitutionally infirm, as the trial judge ruled, insofar as it requires a peddler to retain on his cart copies of receipts from the prior week. We agree with the trial judge that this further requirement is unduly burdensome and without reasonable relationship to any valid legislative objection, such as prevention of consumer fraud; all pertinent information is available on the written sales receipt.

Section (o), provides that no peddler shall:

Engage in the business of peddling on any sidewalk or along any street which has been designated as a bus stop. For the purposes of this act, the word bus stop shall include the sidewalk and the adjoining street where that street has been designated as a bus stop by the City of Newark.

We agree with the trial judge that section (o) is overbroad in the light of the testimony of a Newark police sergeant that it proscribes peddling along an entire block from corner to corner whenever a bus stop is...