General Food Vending Inc. v. Town of Westfield

• Decision Date: 01 December 1995
• Citation: 288 N.J.Super. 442,672 A.2d 760
• Parties: GENERAL FOOD VENDING INC., a New Jersey Corporation, and C.I.C. Corporation, a New Jersey Corporation, Plaintiffs, v. TOWN OF WESTFIELD, Defendants.
• Court: New Jersey Superior Court

Page 442

288 N.J.Super. 442

672 A.2d 760

GENERAL FOOD VENDING INC., a New Jersey Corporation, and C.I.C. Corporation, a New Jersey Corporation, Plaintiffs, v. TOWN OF WESTFIELD, Defendants.

Superior Court of New Jersey, Law Division,

Union County.

Decided Dec. 1, 1995.

Keith N. Biebelberg, Millburn, for plaintiffs (Biebelberg & Martin, Attorneys)

Charles H. Brandt, Westfield, for defendant.

MENZA, J.S.C.

Plaintiffs, cigarette vending machine owners, challenge the constitutionality of an ordinance adopted by the defendant, the Town of Westfield, which prohibits cigarette vending machines in Westfield.

The facts are as follows:

In early 1995 the defendant initiated the process of adopting an ordinance with the purpose of preventing the sale of cigarette machines to minors. It considered two alternatives: 1) eliminating cigarette vending machines entirely, and 2) requiring cigarette vending machines to have locking devices to prevent purchase without human intervention.

In late spring defendant introduced an ordinance, which banned cigarette vending machines entirely and, as required by law, advertised it in the newspaper and held a public hearing. Plaintiffs expressed their opposition to the total prohibition at the hearing and conducted a demonstration of a vending machine with a locking device in the hall outside of the meeting place.

At the defendant's July meeting, the Group Against Smoking Pollution, a public interest group, presented information regarding the sales of cigarettes to minors and the effectiveness of locking devices in preventing such sales. Defendant at that time also received correspondence from the manufacturer and vendor of the locking devices promoting their effectiveness.

On September 12, 1995, defendant adopted Ordinance No. 1649, which prohibits cigarette vending machines in the Town of Westfield. The ordinance provides:

ARTICLE IX

CIGARETTE VENDING MACHINES SECTION 9-36

CIGARETTE VENDING MACHINES PROHIBITED

In view of the indiscriminate sales of cigarettes to minors by automatic vending machines, all cigarette vending machines are hereby prohibited in the town of Westfield.

Prior to the adoption of the ordinance, each of the plaintiffs operated three cigarette vending machines in Westfield. However, as a result of defendant's enforcement of the ordinance, plaintiffs are no longer operating their vending machines in Westfield and one of the plaintiffs, C.I.C., has removed its vending machines from the Westfield locations altogether. There are no other relevant facts, and the court has accepted plaintiffs' explanation that the LDR-106R locking device is one-hundred percent effective in preventing unsupervised sales from cigarette machines.

Plaintiffs first contend that their cigarette vending machines are not "vending machines" within the meaning of the ordinance because they are equipped with locking devices that require The defendant responds that the common meaning of the term "vending machines" includes cigarette vending machines which require human assistance to dispense cigarettes, and that the defendant intended such machines to be prohibited by the ordinance. Defendant further responds that if the language of the ordinance is vague in this regard it will amend it. In response to the plaintiffs' constitutional claims, defendant first argues that the total ban of cigarette vending machines is rationally related to its legitimate objective of preventing cigarette sales to minors. Next, it argues that the ordinance is a reasonable exercise of the municipality's police power to protect public health, and is not a taking because defendant has not completely destroyed the value of plaintiffs' property or taken it for its own use. Finally, defendant argues that the ordinance is not an unconstitutional impairment of the plaintiffs' contracts because it is a reasonable

                human activation before they will dispense cigarettes. 1  The plaintiffs further argue that the ordinance is unconstitutional on three grounds.  Specifically, they argue that the ordinance violates the equal protection clause because the defendant's choice of the total ban is not rationally related to its goal of preventing the sale of cigarettes to minors.  Next, plaintiffs argue that the ordinance is a taking because it unnecessarily and completely destroys the value of plaintiffs' business in Westfield.  Finally, they argue that it violates the contract clause because it extinguishes the plaintiffs' contracts with the owners of the locations where the plaintiffs operate their vending machines.  However, the gravamen of all plaintiffs' constitutional complaints is the same.  They contend that defendant's choice of the total ban violates plaintiffs' constitutional rights because defendants rejected an alternative--requiring locking devices--which would have been as effective as the total ban in preventing cigarette sales to minors, and at the same time would have permitted the plaintiffs to continue their Westfield operations
                method of furthering defendant's objective of preventing cigarette sales to minors.  The gravamen of defendant's response to the plaintiffs' constitutional arguments is that in adopting the ordinance it has done all that is constitutionally required because it acted reasonably and therefore, the ordinance is a legitimate exercise of its police power to protect public health
                

VENDING MACHINES

The first issue is whether plaintiffs' cigarette machines are "vending machines" within the meaning of the ordinance.

Webster's New Collegiate Dictionary (1981) defines "vending machine" as "a coin operated machine for vending merchandise." It defines "vend" as follows: "to sell; to dispose of something by sale." It defines a machine as "a coin operated device ." Thus, according to the commonly accepted definition of the term a "cigarette vending machine" is one that vends cigarettes when coins are deposited.

The plaintiffs, nevertheless, urge this court to adopt the position that a cigarette vending machine which requires a human attendant to activate it is by definition no longer a "vending machine." This position was taken by a Maryland trial court in Allied Vending, Inc. v. Montgomery County, Civil No. 80353 (Cir.Ct.Md. April 22, 1993), an unreported case in which the court struck down a county ordinance, which effectively banned the sale of cigarettes through vending machines, because it conflicted with the state law that expressly authorized such sales. This court rejects this narrow definition of "vending machine," which the court in Allied Vending stated in dicta, was inconsistent with the common usage of the term.

Plaintiffs further cite Pressley v. City of Chicago, 26 Ill.App.2d 283, 168 N.E.2d 41 (1960) and Continental Industries, Inc. v. Erbe, 107 N.W.2d 57 (Sup.Ct.Iowa 1961), in support of the argument that the ordinance does not apply to their machines. Neither case bolsters the plaintiffs' position. The Illinois Court of Appeals in Pressley v. City of Chicago held that an ordinance We are of the opinion that in the use of the device in question the storekeeper as licensee maintains the principle of the ordinance in imposing the responsibility for selling cigarettes to minors ... Id. [168 N.E.2d] at 44.

restricting cigarette vending machines to certain locations did not apply to plaintiffs' machines because they required the customer, in order to obtain cigarettes, to give the money directly to the sales clerk, who then activated the cigarette dispenser by depositing the money in a remote control device. The court explained its decision as follows:

Here, the customer deposits the money directly into the machine.

In Continental Industries an evenly-split Iowa Supreme Court affirmed "by operation of law" a trial court's decision that an ordinance prohibiting vending machines did not apply to machines equipped with remote devices. This court is not persuaded by the holding of a foreign trial court, with which half of the members of its own highest court disagreed.

The machines in question, no matter how triggered, are vending machines within the meaning of the ordinance.

EQUAL PROTECTION CLAUSE

The first constitutional question is whether the ordinance violates the equal protection clause. This question has already been answered in C.I.C. Corp. v. East Brunswick Tp., 266 N.J.Super. 1, 628 A.2d 753 (App.Div.1993), affirmed 135 N.J. 121, 638 A.2d 812 (1994), a case in which the court upheld the constitutionality of an ordinance adopted by East Brunswick that is identical to the Westfield ordinance.

The court in C.I.C. articulated the appropriate test to be applied to the challenged ordinance. It stated:

There is no question that the prohibition on the vending machines does not involve a suspect class or fundamental right and that it need only be rationally related to a legitimate governmental interest to satisfy equal protection and substantive due process concerns. (emphasis added) (citations omitted) Id. at 14 .

Applying the "rational basis test," the court rejected plaintiffs' argument that the equal protection clause required East Brunswick to choose a less restrictive means of accomplishing its objective--requiring remote control devices. In so doing the court wrote:

When it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark. (citations omitted)

The information provided to the East Brunswick Township Council amply supported its determination that "a point has to be fixed or a line has to be drawn" as how best to prevent access of minors to cigarettes through the use of vending machines. Id. at 15 .

The Council could have, and obviously did, determine the effort to reduce access by minors to cigarettes would not be as effective as desired if something short of a total ban were implemented....