Brown v. City of Newark

Citation552 A.2d 125,113 N.J. 565
PartiesRichard BROWN and Ernest King, Plaintiffs-Respondents and Cross-Appellants, v. CITY OF NEWARK, a Municipal Corporation of the State of New Jersey, Defendant- Appellant and Cross-Respondent.
Decision Date18 January 1989
CourtUnited States State Supreme Court (New Jersey)

Kathleen C. Goger, Montclair, for defendant-appellant and cross-respondent (Glenn A. Grant, Corp. Counsel, attorney).

Louis Raveson, for plaintiffs-respondents and cross-appellants (Louis Raveson, Newark, attorney; Edward McCardell, Princeton, on the brief).

The opinion of the Court was delivered by


This appeal requires us to determine the validity of an ordinance regulating peddlers in the City of Newark. The Law Division invalidated all or part of ten of the nineteen sections of the ordinance, and the Appellate Division reinstated seven of those sections. 202 N.J.Super. 1, 493 A.2d 1255 (1987). We granted Newark's petition and the peddlers' cross-petition for certification, 109 N.J. 490, 537 A.2d 1282, 1283 (1987). We now affirm in part and reverse in part the judgment of the Appellate Division. With the exception of section (d), we find the ordinance to be valid.


For many years, defendant, Newark, has attempted to regulate peddlers such as plaintiffs, Richard Brown and Ernest King. Both Brown and King are licensed to peddle by Newark, and King, as an honorably discharged veteran, has a statutory right to peddle. N.J.S.A. 45:24-9. Twenty-five years ago the Chancery Division enjoined the enforcement of a predecessor ordinance regulating peddlers, Germano v. Keenan, 25 N.J.Super. 37, 95 A.2d 439 (1953), and ten years ago in an unreported opinion the Appellate Division declared unconstitutional an ordinance enacted in 1978. This case requires us to review the most recent amendment contained in Newark Revised Ordinance, title 8, chapter 7, section 6, adopted on October 3, 1979 (N.R.O. 8:7-6). Plaintiffs seek a declaration of the invalidity of the ordinance and an injunction against its enforcement.

No statement of purpose accompanies the ordinance, and the parties disagree on its intended purpose. The peddlers contend that the purpose of the ordinance is to eliminate competition with retail merchants, and Newark argues that the purpose is to avoid congestion on the City's sidewalks and to protect the rights of abutting property owners, many of whom are retail merchants.

Our analysis begins with the basic principle that municipalities have broad power to enact and enforce ordinances to protect the public health, safety, and welfare. Chamber of Commerce of U.S. v. State, 89 N.J. 131, 155, 445 A.2d 353 (1982). Furthermore, the Legislature has specifically authorized municipalities to license and regulate peddlers. N.J.S.A. 40:52-1(c). As legislative action, municipal ordinances, like statutes, are presumptively valid. Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564, 350 A.2d 1 (1975). Legislatures, both state and local, are better situated than courts to make policy decisions concerning public health, safety, and welfare. As broad as is the police power, however, it is constrained by guarantees of due process, Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 301, 359 A.2d 862 (1976), and of equal protection, Barone v. Department of Human Servs., 107 N.J. 355, 364-73, 526 A.2d 1055 (1987), in the federal and state constitutions.

In the present case, the municipal exercise of police power manifests itself in an economic regulation of the legitimate business of peddling. For various reasons, including potential problems of street and sidewalk congestion, government has often viewed peddlers with suspicion. Concerns about economic competition and obstruction of their premises have led more established businesses, such as retail merchants, to object to the presence of peddlers. Our review, conducted in light of the diverse interests of the municipality, the peddlers, and the public, involves consideration of the purpose of the peddling ordinance and the means used to achieve that purpose. In conducting our review, we are guided by principles of substantive due process and equal protection.

Economic regulations, such as those regulating peddling, need be only rationally related to a legitimate state purpose to satisfy requirements of substantive due process. Williamson v. Lee Optical of Okla., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563, 572, reh'g denied, 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256 (1955). If an economic regulation is not arbitrary, capricious, or unreasonable, and the means selected bear a rational relationship to the legislative objective, the regulation should be sustained. Joseph H. Reinfeld, Inc. v. Schieffelin & Co., 94 N.J. 400, 413, 466 A.2d 563 (1983); Piscataway Township Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, 431 A.2d 799, appeal dismissed, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed.2d 470 (1981); Robson v. Rodriguez, 26 N.J. 517, 522, 141 A.2d 1 (1958). As a corollary, courts should not substitute their judgment for that of a legislative body, at least when the regulation is reasonably related to a legitimate governmental interest. Williamson, supra, 348 U.S. at 487, 75 S.Ct. at 464, 99 L.Ed. at 571.

Furthermore, a legislative act, whether a statute or ordinance, must not be so vague that a person of ordinary intelligence is unable to discern what it requires, prohibits, or punishes. Hudson Circle Servicenter, Inc., supra, 70 N.J. at 301, 359 A.2d 862. No one should be criminally responsible for conduct that could not reasonably be understood to be proscribed. State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979). That principle applies to the subject ordinance, a violation of which carries a potential maximum fine of $500 and a ninety-day term of imprisonment.

As distinguished from standards governing due process claims, federal equal protection analysis involves different tiers or levels of review. If a fundamental right or suspect class is involved, the legislative classification is subject to strict scrutiny, Barone, supra, 107 N.J. at 364-65, 526 A.2d 1055; Greenberg v. Kimmelman, 99 N.J. 552, 564, 494 A.2d 294 (1985), which requires that a statute further a compelling state interest and that there be no less restrictive means of accomplishing that objective. Barone, supra, 107 N.J. at 365, 526 A.2d 1055 (citing Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)). When it regulates a "semi-suspect" class, a legislative act is examined under "intermediate scrutiny," and must be substantially related to the achievement of an important governmental objective. Barone, supra, 107 N.J. at 365, 526 A.2d 1055 (citing Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), reh'g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977)). If, as here, the enactment does not affect a suspect or semi-suspect class and does not attempt to regulate a fundamental right, it need be only rationally related to a legitimate state interest to satisfy federal equal protection requirements. Ibid. (citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, reh'g denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970)).

When conducting equal protection analysis under article I, paragraph 1 of the New Jersey Constitution, we have rejected a multi-tiered analysis and employed a balancing test. Barone, supra, 107 N.J. at 368, 526 A.2d 1055; Greenberg, supra, 99 N.J. at 567, 494 A.2d 294; Right to Choose v. Byrne, 91 N.J. 287, 308-09, 450 A.2d 925 (1982). "In striking the balance, we have considered the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Greenberg, supra, 99 N.J. at 567, 494 A.2d 294. Although stated differently, an equal protection analysis of rights under article I, paragraph 1 of the New Jersey Constitution, like an analysis of equal protection and due process under the fourteenth amendment of the United States Constitution, may lead to the same results. Id. at 569, 494 A.2d 294.

In this case, we are not concerned with either a fundamental right or a suspect class. For equal protection purposes, the ordinance satisfies the United States Constitution if it is rationally related to a legitimate state interest. The ordinance satisfies the State constitution if, on balance, the regulation, considering the public need, does not unduly restrict the right of the peddlers to engage in their business. Greenberg, supra, 99 N.J. at 567, 494 A.2d 294. Similarly, for substantive due process purposes, the ordinance is valid if it reasonably relates to a legitimate legislative purpose and is neither arbitrary nor discriminatory. Joseph H, Reinfeld, Inc., supra, 94 N.J. at 413, 466 A.2d 563.

Newark contends generally that each section of the ordinance bears a reasonable relationship to the legitimate purpose of regulating pedestrian and vehicular traffic, and in preventing obstruction of ingress to and egress from the stores of adjacent merchants. Plaintiffs challenge the ordinance as arbitrary, impossible of compliance, irrational, vague, unreasonably burdensome, and prohibitory. In addition, they assert that the purpose of the ordinance is not to relieve traffic congestion, but to shield local merchants from competition.

The ordinance contains nineteen sections. Of these, twelve sections regulate the location of the peddler's cart on the sidewalks of Newark; four sections regulate the size and configuration of the carts; and three sections regulate other aspects of the peddler's business, including hours of operation and retention of receipts. Before us, the peddlers do not challenge nine sections ((a), (b), (c), (g), (i), (j), (k), (r), and (s)), and we limit our review to the remaining sections ((d), (e), (f), (h), (l), (m), (n), (o), (p), and (q)).

We begin with section (d), which provides that no...

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