Opinion
DOCKET NO. A-6104-11T4
06-13-2013
MILE SQUARE TOWING, LLC, Plaintiff-Appellant, v. CITY OF HOBOKEN, a municipal entity, Defendant-Respondent, and LOGAN AUTOMOTIVE INC., and TRUCHAN BROTHERS AUTO & TOWING, Defendants.
Jared B. Weiss argued the cause for appellant (Fruchter & Associates, attorneys; Harvey Fruchter, of counsel; Mr. Weiss, on the brief). Christopher K. Harriott argued the cause for respondent (Florio & Kenny, LLP, attorneys; Mr. Harriott, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Simonelli.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5733-11.
Jared B. Weiss argued the cause for appellant (Fruchter & Associates, attorneys; Harvey Fruchter, of counsel; Mr. Weiss, on the brief).
Christopher K. Harriott argued the cause for respondent (Florio & Kenny, LLP, attorneys; Mr. Harriott, of counsel and on the brief). PER CURIAM
Plaintiff Mile Square Towing, LLC (Mile Square) appeals the denial of its challenges to the validity of an ordinance adopted by defendant the City of Hoboken. The ordinance — City of Hoboken's Ordinance No. Z-131, codified as Chapter 184 of the General Code of the City of Hoboken — provides for licensing and regulation of businesses that remove and store motor vehicles. Because the ordinance does not exceed Hoboken's authorization to license and regulate towing services provided in N.J.S.A. 40:48-2.49, or impermissibly delegate authority to the director of Hoboken's Department of Parking and Transportation to administer and enforce Chapter 184, we affirm. But to the extent the order upholds provisions of Chapter 184 authorizing the director to amend and supplement the ordinance, we reverse the order and invalidate those provisions.
The ordinance was adopted by the city council and approved by the mayor in late September 2011. Mile Square filed an action in lieu of prerogative writ contesting its validity in December 2011. In addition, Mile Square applied for a license, noting it was doing so "under protest." Hoboken denied the application because it was filed under protest, and in response to that denial Mile Square amended its complaint to seek an order compelling Hoboken to grant its application if the ordinance was upheld.
Mile Square also amended its complaint to name other applicants — Logan Automotive, Inc. and Truchan Brothers Auto & Towing — as defendants. Neither defendant filed an answer or participated in this appeal.
Because it is not clear whether Mile Square's claims against these private-party defendants have been resolved, we are not certain whether the order Mile Square challenges is appealable as of right. R. 2:2-3(a). Because a dismissal of this appeal would leave the validity of Hoboken's ordinance in question and leave an impermissible delegation of authority to amend the ordinance in place, in the interest of justice we exercise our discretion and grant leave to appeal as within time. R. 2:4-4; R. 2:5-6.
The judge decided the matter on the parties' written and oral arguments and supporting documents, which include selected portions of the deposition of the director of Hoboken's Department of Parking and Transportation. For reasons stated in a letter opinion, the judge entered an order upholding the ordinance but concluding that Mile Square's application was arbitrarily denied and directing Hoboken to consider it on the merits.
On appeal, Mile Square acknowledges that Hoboken's post-judgment grant of its application moots its objections to the initial denial. The issuance of the license, however, does not, as Hoboken argues, moot Mile Square's objections to the validity of the ordinance.
I
Prior to the enactment of this ordinance, Mile Square had a contract with Hoboken under which it acted as the exclusive provider of towing services requested by the City. Apart from that contract, Mile Square also provided towing services within the city limits at the request of and by agreement with private parties. Although Mile Square's contract with Hoboken expired in 2005, Mile Square continued as the sole provider of towing services requested by Hoboken until the adoption of this ordinance.
The "whereas" clauses of the ordinance explain that Chapter 184 was adopted to address "downfalls" in Hoboken's traditional approach to obtaining towing services — contracting with a single supplier under the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51. Hoboken, N.J., Ordinance No. Z-131 (Sept. 21, 2011) (Ordinance No. Z-131). Hoboken's purpose was to address the prior system's "lack of oversight, inefficiency in towing services, lack of necessary services during times of emergency and high volume, litigation expense, and lack of ability to recoup costs incurred by the City relating to the services" and to "increase effectiveness and efficiency of towing services within the City." Ibid.
The director of Hoboken's Department of Parking and Transportation, an engineer with experience in managing projects involving traffic studies, parking analyses, impact studies and license applications, spearheaded the effort to draft the ordinance. Hoboken's business administrator, deputy director of emergency management and assistant counsel participated.
In explaining the reasons for Hoboken's adoption of Chapter 184 to license and regulate towing services, the director noted that the City received "multiple complaints" about poor treatment received by owners of towed vehicles. In Hoboken's view, those problems were not adequately addressed through its prior contract with Mile Square. The director further explained that under the terms of that contract, Hoboken was required to pay an hourly rate, per vehicle and per driver, for some services and incurred costs in managing and dealing with the operations. To remedy those problems and accomplish the goals stated in the ordinance, Hoboken elected to move from sole provider contracting "to the towing model authorized by N.J.S.A. 40:48-2.49." Ordinance No. Z-131. While Chapter 184 does not refer to the statute, the ordinance leaves no room to question that Hoboken adopted this ordinance pursuant to the authority granted in N.J.S.A. 40:48-2.49.
In pertinent part, N.J.S.A. 40:48-2.49 authorizes licensing and regulation of those in the business of towing and storing motor vehicles as follows:
[A] municipality may regulate, by ordinance, the removal of motor vehicles from private or public property by operators engaged in such practice, including, but not limited to, the fees charged for storage following removal in accordance with [N.J.S.A. 40:48-2.50], fees charged for such removal, notice requirements therefor, and the mercantile licensing of such operators.
The ordinance shall set forth nondiscriminatory and non-exclusionary regulations governing operators engaged in the business of removing and storing motor vehicles. The regulations shall include, but not be limited to:
a. A schedule of fees or other charges which an operator may charge vehicle owners for towing services, storage services or both;
b. Minimum standards of operator performance, including but not limited to standards concerning the adequacy of equipment and facilities, availability and response time, and the security of vehicles towed or stored;
c. The designation of a municipal officer or agency to enforce the provisions of the ordinance in accordance with due process of law;
d. The requirement that such regulations and fee schedules of individual towers shall be made available to the public during normal business hours of the municipality.
Nothing in this section shall be construed to authorize a municipality to establish
charges for services that are not included in the schedule of towing and storage services for which a towing company may charge a service fee established by the Director of Consumer Affairs pursuant to [N.J.S.A. 56:13-14]. Nothing in this section shall be construed to exempt an operator from complying with the requirements of [the Predatory Towing Prevention Act, N.J.S.A. 56:13-7 to -23].
[(Emphasis added).]
To the extent Mile Square claims that Hoboken's ordinance regulating towing service providers is preempted by the Predatory Towing Prevention Act, we reject the argument. As indicated by the final paragraph of N.J.S.A. 40:48-2.49, operators licensed pursuant to an ordinance must comply with the Predatory Towing Prevention Act. Moreover, the Predatory Towing Prevention Act expressly provides that it does not preempt ordinances licensing and regulating those involved in the business. N.J.S.A. 56:13-20a. This claim lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).
This enabling statute authorizes regulation of businesses that remove motor vehicles "from private or public property."
According to Hoboken's director, Chapter 184 is intended to license and regulate only those in the business of removing and storing motor vehicles at the request of the City's agents — the problem Ordinance Z-131 was designed to address.
Sections 184-1 and 184-2 respectively define the purpose and scope of Hoboken's regulation and licensing of towing services. Section 184-1 explains that the Chapter "establish[es] mercantile licensing for, and rules and regulations associated with, the towing and storage of motor vehicles from public roadways within the city limits." Code § 184-1 (emphasis added). And, Section 184-2 provides that the Chapter "appl[ies] to any entity that engages in towing and storage of motor vehicles within the city limits . . . for the benefit of the public." (Emphasis added).
Section 184-4(A) provides that "[n]o entity or individual shall operate a towing service within the City limits" without obtaining a license. See also id. § 184-3 (defining the terms "Licensee" and "Licensed Towing Service" without limitation to those doing business with Hoboken). But, Hoboken's licensing scheme centers on providing a system for the City to acquire towing services from licensees.
Two provisions of Section 184-10, which addresses fees a licensed towing service may charge, refer to private property. One reference appears in a provision that applies only to "[a] licensed towing service that engages in towing at the request of the City." Code § 184-10(b). The other requires a "towing company performing a private property tow or other non-consensual tow" to store the vehicle at its closest storage facility. Id. § 184-10(g).
Licensees are placed on Hoboken's towing lists and are "summoned" by designated public officials, or their authorized agents, on a rotating basis. Id. § 184-9(A) to (E). Hoboken's officials who are authorized to summon a towing service must use a towing list, and without a license, no towing service may be placed on a towing list. Id. §§ 184-5(A), 184-9.
The licenses are provided annually by the city council, and issued by the city clerk upon the approval of the director of the Department of Parking and Transportation. See id. §§ 184-3 (stating that a licensed towing service has a license provided by the city council), 184-4(A) (providing for issuance by the city clerk), 184-4(B) (requiring approval of the director). There are two types of licenses, light and heavy duty, and Chapter 184 limits the number of each type that may be issued: the director may approve up to six light-duty and three heavy-duty towing licenses. Id. § 184-4(C).
The respective lists of light and heavy duty licensees are comprised as follows. If there are more qualified applicants than licenses, the licenses are awarded by a random lottery conducted by the City at the direction of the director. Ibid. Designated officials summon for services and their calls are rotated among the licensees in the appropriate class. Id. § 184-9.
Licensees' relative positions on the list are determined each year by a lottery, and on the first day of each month, the licensee at the top of the list is moved to the bottom. Id. § 184-9(B). The licensee at the top of the list on any given day is summoned first for each call, and if that licensee refuses or is unable to perform, the next licensee on the list is called. Id. § 184-9(B) to (C). Although these procedures are set forth in Section 184-9, Section 184-9(D) gives the director "discretion" to develop and amend the "procedural details of the rotating system . . . as necessary."
There is no question that licensing governed by Chapter 184 is the core of Hoboken's rotating system for securing tows at the summons of its designated officials. Id. § 184-9; see also Code § 184-5(A)(12) (requiring an applicant to agree to provide towing service "within fifteen minutes of being summoned").
Chapter 184 includes detailed provisions governing licensing. Annual licenses are issued to successful applicants on or before January 1, and they authorize the licensee to provide services through December 31. Code § 184-4(F). Annual applications for licenses must be submitted no later than November 1 on forms the director must make available by September 1. Id. § 184-4(E) to (F). No late applications may be accepted, and failure to provide all information required disqualifies an applicant. Id. §§ 184-4(E), 184-5(B).
The standards for licensing respecting equipment and qualifications to operate are primarily set forth in Section 184-5. Light-duty and heavy-duty licensees alike must have a storage site that is compatible with applicable zoning and building codes, and they must submit proof of their right to use the property. Id. § 184-5(A)(3) to (7). A storage site used by a light-duty towing service must be within five miles and a site used by a heavy-duty towing service must be within twenty-five miles of the city limits. Id. § 184-5(A)(1) to (2). Additionally, an applicant must have insurance meeting or exceeding the requirements of N.J.S.A. 56:13-12 and specified towing equipment that is licensed, registered and insured. Id. § 184-5(A)(5) to (6). Section 184-5(A)(8), requires towing services to provide "such other items as the Director of the Department of [Parking and] Transportation shall require by Administrative Rule or Regulation, in his or her discretion."
Relevant to an applicant's ability to provide effective and efficient operation, an applicant must provide a list of its customer service representatives and proof that it has a software system that is internet capable. Id. § 184-5(A)(9) to (10). Moreover, all applicants must agree to meet standards specified in the ordinance including: utilizing software compatible with the City's system; operating during hours required by the director; providing service twenty-four hours a day and 365 days a year within fifteen minutes of being called; and employing drivers that have specified licenses and certifications. Id. § 184-5(A)(9) to (13) (emphasis added).
Although the first round of applications had been submitted when this action was pending in the trial court, the director acknowledged that he had not yet specified the hours of operation for storage sites and did not yet have specifications for software systems compatible with the City's system.
The director explained how the five-mile radius for light-duty towing storage sites and the fifteen-minute response time were selected. The distance requirements were designed to address a major flaw in the prior single contractor system; there was only one operator within the city limits. When Hoboken undertook, to no avail, to solicit public bids on contracts after the expiration of Mile Square's, it determined that there were additional operators within that distance. The five-mile distance was expanded to twenty-five miles for heavy-duty service providers because there are fewer of them and Hoboken wanted a sufficient number of applicants.
The five-mile distance for light-duty providers was related to response time as well. The director explained that the distance encompasses the Hudson County peninsula, and service providers beyond the peninsula are not likely able to timely respond within fifteen minutes.
In developing the distance and fifteen-minute response time, peak and off-peak travel times were considered, and "Google Maps" were consulted. As the director explained, Section 184-5(A)(12) does not require Hoboken to assess whether an applicant meets the required timeframe for response. Section 184-5(A)(12) leaves that determination to the applicant by requiring each applicant to agree to meet that response time.
Section 184-6(A) authorizes the director to investigate applicants to determine whether they have "vehicles and equipment" in a "condition that they can be operated in a safe and efficient manner" and are "of good moral character." With respect to character and safety, the director may "investigate the driving history, criminal background and financial stability of any individual or entity applying," but may not consider any "negative history" that is ten years old or older. Id. § 184-6(A) to (C).
Each applicant must pay a $1000 administrative fee. That fee, which includes fees for criminal background checks, is returned if the applicant is not awarded a license. Id. § 184-5(D).
With respect to regulation of operations, the ordinance includes a schedule of allowable fees, id. § 184-10; a provision setting forth additional regulations addressing matters ranging from the preparation of bills for services and records to be maintained to the director's authority to inspect and audit records, id. § 184-11; and a provision requiring licensees to display information for the benefit of vehicle owners. Id. § 184-7. Section 184-10(O), authorizes the director to "establish additional rules and regulations, as necessary, to effectuate the purpose and intent" of Chapter 184.
Procedures for enforcement are also addressed. The director, "after notice and an opportunity to be heard," is authorized to suspend or revoke a license. Id. § 184-13(A). Section 184-13(B) provides: "For severe violations and/or recurring violations, the Director may, after notice and an opportunity to be heard, revoke any annual license and, in addition, use such violation as the determining factor for refusing to approve subsequent annual applications for a period of up to ten (10) years."
The director indicated that the hearings required by Section 184-13 would be conducted in accordance with procedures in the General Code, and he noted that he had conducted hearings on taxi, limousine, and shuttle bus licenses, which were also under his purview. According to the director, in those cases he presides over the initial hearing and the business administrator presides over any subsequent hearing.
The record does not include provisions of the General Code that address hearings on licenses or violations of regulations applicable to licensees, and none have been cited in the briefs submitted on appeal.
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The Police and Parking and Transportation Departments are authorized to charge violations of the Chapter, which are prosecuted in municipal court. Id. § 184-12. A schedule of penalties for violations, which specifies fines and imprisonment for a period of days for a first, second or third violation, is provided, and those penalties are to be fixed and imposed by the municipal court judge. Id. § 184-14.
II
Three of Mile Square's challenges to the validity of Chapter 184 are resolved with reference to the statute authorizing municipalities to license and regulate the business of towing and storage of motor vehicles, N.J.S.A. 40:48-2.49. We consider them first.
A
Mile Square claims that Chapter 184 of Hoboken's General Code regulating towing service providers is preempted by the Predatory Towing Prevention Act. But the final paragraph of N.J.S.A. 40:48-2.49 states that operators licensed pursuant to an ordinance must comply with that act. Moreover, the Predatory Towing Prevention Act expressly provides that it does not preempt ordinances licensing and regulating towing companies. N.J.S.A. 56:13-20a. In the absence of any argument pointing to a provision of Chapter 184 that requires a towing service to violate the Predatory Prevention Towing Act, this claim lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).
B
Mile Square also suggests that Chapter 184 violates N.J.S.A. 40A:11-5(1)(u), a provision of the Local Public Contracts Law. That provision has no relevance here. N.J.S.A. 40A:11-5(1) identifies contracts that "may be negotiated and awarded by the governing body without public advertising for bids and bidding therefor and shall be awarded by resolution of the governing body." The list includes "towing and storage contracts, provided that all such contracts shall be pursuant to reasonable non-exclusionary and non-discriminatory terms and conditions, which may include the provision of such services on a rotating basis, at the rates and charges set by the municipality pursuant to [N.J.S.A. 40:48-2.49]." Chapter 184 does not provide for the award of contracts; it provides for provision of services on a rotating basis between licensees. Thus, the only question is whether N.J.S.A. 40:48-2.49 precludes that arrangement, and Mile Square does not argue that it does.
C
Mile Square further contends that Chapter 184 impermissibly delegates authority to amend and supplement its provisions, which were adopted by ordinance, to the director of Hoboken's Department of Parking and Transportation. We agree.
Three Sections of Chapter 184 give the director authority to alter regulations that N.J.S.A. 40:48-2.49 requires to be adopted by ordinance. They are Sections 184-9(B), which gives the director authority to develop the procedural details of the rotating system for summoning licensees, which are set forth in that Section; 184-11(0), which authorizes the director "to establish additional rules and regulations, as necessary, to effectuate the purpose and intent" of Chapter 184; and 184-5(A)(8), which requires an applicant to provide "such other items as the Director of the Department of [Parking and] Transportation shall require by Administrative Rule or Regulation, in his or her discretion."
The foregoing delegations of authority to amend and supplement provisions of Chapter 184 are contrary to the authorizing legislation. N.J.S.A. 40:48-2.49 permits a municipality to "regulate, by ordinance." It further provides that "the ordinance shall set forth . . . regulations governing operators" that "shall include" a "schedule of fees" and "[m]inimum standards of operator performance."
Where a statute delegates authority that a municipality must exercise by ordinance, the ordinance may not delegate authority to amend or supplement its terms by means other than an ordinance. Reuter v. Borough Council of Fort Lee, 328 N.J. Super. 547, 554-55 (App. Div. 2000), aff'd in part, rev'd in part, 167 N.J. 38 (2001); see generally Inganamort v. Borough of Fort Lee, 72 N.J. 412, 418-19 (1977) (noting that the general grant of authority to exercise police power in N.J.S.A. 40:48-2, which authorizes a municipality to "make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws" the terms are synonymous and require adoption by ordinance). In short, "amendment or reenactment of legislation required initially to be enacted by ordinance must be accomplished by the same means . . . ." Albigese v. City of Jersey City, 129 N.J. Super. 567, 569-70 (App. Div. 1974). The provisions of Chapter 184 that delegate authority to alter the ordinance are, therefore, invalid.
The invalidity of the provisions authorizing the director to adopt, rather than recommend adoption of amendments by ordinance, does not require invalidation of the entire ordinance, however. Where portions of an ordinance that are invalid are "independent and the remaining portion forms a complete act within itself," courts may sever the invalid portions. United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 39 (App. Div.), certif. denied, 170 N.J. 390 (2001). Because the obvious purpose of these impermissible grants of discretion is to facilitate amendment of Chapter 184 as necessary, these forward-looking provisions are independent of the remainder and their excision will not detract from the completeness of the chapter as it stands without them. What remains is viable. See ibid. Indeed, the director indicated that he intends to seek incorporation of additional regulations in an amended ordinance.
For the foregoing reasons, these provisions of Chapter 184, effectively delegating authority to amend and supplement the chapter, are invalidated.
III
Mile Square also challenges Chapter 184 on the ground that it fails to provide adequate standards to guide the director's exercise of discretion in granting or denying applications and enforcing Chapter 184. Where, as here, a municipality has statutory authority "to enact a licensing and regulatory ordinance," when "vesting discretion in licensing officials to grant or deny a license" it must "provide adequate standards to govern the deliberations of the officials having the discretionary power." Weiner v. Borough of Stratford, 15 N.J. 295, 298-99 (1954).
There is no question that Chapter 184 provides adequate standards to guide the director's discretion involving licensing and enforcement. With respect to licensing, Chapter 184 specifies the requirements in great detail. No license can be issued if an application is late or incomplete. The standards for equipment, facilities and their distance from the city limits and the required motor vehicle drivers' licenses operators must have, are all set forth.
The only area in which the director has any discernible discretion is in evaluating the condition of the equipment and the moral character of the applicant. "[I]n the area of occupational restrictions, any imprecision in drafting must be assessed with a recognition that the governing body of the occupation or profession is uniquely qualified to assess the meaning of the language." Moiseyev v. N.J. Racing Comm'n, 239 N.J. Super. 1, 6 (App. Div.), certif. denied, 117 N.J. 666 (1989). Moreover, where there is a single enforcer, as there is here, "the risk of arbitrary enforcement that flows from lack of clarity in other contexts" is diminished. In re N.J. State Funeral Dirs. Ass'n, 427 N.J. Super. 268, 283 (App. Div. 2012).
Measured against the applicable standard, Chapter 184 provides adequate guidance. In the case of equipment, the governing standard is capacity to operate in a safe and efficient manner. In the case of character, the director's discretion is limited to consideration of driving history, criminal record and financial stability, and his consideration of criminal history is limited to a ten-year period. Given the guidance that is provided, Mile Square's challenge to any imprecision cannot be sustained.
The standards for enforcement are also stated in Chapter 184. Section 184-13 permits the director to take action to suspend or revoke a license for a violation of the Chapter. While Section 184-13 does not specify how the director must distinguish severe or recurring violations from those that are not severe or recurring, the determinations are necessarily fact sensitive assessments of the particular violation on the purposes of regulating this business.
IV
Mile Square also urges us to invalidate the statute on the ground that Chapter 184 does not specify the details pertinent to the provision of procedural due process to applicants who are denied licenses and licensees facing suspension or revocation of their licenses. Pursuant to N.J.S.A. 40:48-2.49c, a municipality adopting an ordinance regulating this industry must designate an officer who will enforce its provisions "in accordance with due process of law." Chapter 184 is silent with respect to procedures for an applicant to challenge denial of a license, but with respect to actions against a licensee, Section 184-13 requires prior "notice and an opportunity to be heard."
Even in the context of denial of approval implicating the right to freedom of speech, all due process requires is "the possibility of prompt judicial review in the event that the license is erroneously denied." Twp. of Pennsauken v. Schad, 160 N.J. 156, 181 (1999). Such prompt judicial review is available pursuant to Rule 4:69-6. Ibid.
In the case of license suspensions and revocations, Chapter 184 requires the director to afford the fundamental components of due process required before action taken against a licensee — notice and an opportunity to be heard. Bechler v. Parsekian, 36 N.J. 242, 256 (1961); see also Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976). Given that Chapter 184 requires prior notice and opportunity to be heard, we cannot conclude that a failure to specify the precise procedures is fatal to Chapter 184. The omission of details about the nature of the opportunity to be heard is a matter for a court to address in the event of a failure to provide a fair hearing with prior notice and opportunity to be heard that Chapter 184 requires. It has long been understood that a hearing in which the decision maker is a witness is not a fair hearing. Connelly v. Hous. Auth. of Jersey City, 63 N.J. Super. 424, 429 (App. Div. 1960); Drozdowski v. Mayor & Borough Council of Sayreville, 133 N.J.L. 536, 539 (Sup. Ct. 1946).
V
Mile Square further argues that Chapter 184 must be invalidated because its provisions requiring licensees to agree to respond to a summons for service from a city official within fifteen minutes and for light-duty licensees to maintain a facility within five miles of the city limits are not supported by adequate reliable evidence. We reject this claim substantially for the reasons stated by the trial court in its written letter opinion of June 27, 2012, as supplemented here.
Municipal ordinances are presumptively valid. Brown v. City of Newark, 113 N.J. 565, 571 (1989). One who challenges an ordinance has the burden of proving that it is arbitrary, capricious, or unreasonable. Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564-65 (1975); Vineland Constr. Co. v. Twp. of Pennsauken, 395 N.J. Super. 230, 256 (App. Div. 2007), appeal dismissed as moot, 195 N.J. 513 (2008). Courts do "not evaluate the weight of the evidence for and against the enactment [or] review the wisdom of any determination of policy which the legislative body might have made." Hutton Park Gardens, supra, 68 N.J. at 565. The presumption that an ordinance is reasonable "can be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the legislative body or which could reasonably be assumed to have been known which would rationally support a conclusion that the enactment is in the public interest." Ibid.
We agree with the trial court that the director's deposition testimony provided a logical and reasonable explanation for the chosen geographic limitation and response time. The City sought to license multiple providers of towing services, but limit the licenses to providers who could be expected to meet the response time. Although, the City could undoubtedly have relied on data more accurate than Google Maps, "[l]egislative bodies are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience." Id. at 564-65. N.J.S.A. 40:48-2.49 authorizes municipalities to provide "[m]inimum standards of operator performance, including . . . response time," and it was more than reasonable for the City to rely on the experience of its director and its geographic location on a heavily-traveled peninsula in formulating these non-discriminatory standards. Given the director's training, experience and familiarity with local conditions in his area of responsibility, the presumption is well-warranted.
This case is not comparable to DeFalco Instant Towing, Inc. v. Borough of New Providence, 380 N.J. Super. 152, 158 (App. Div. 2005), upon which Mile Square relies. In DeFalco, we invalidated an ordinance adopted pursuant to N.J.S.A. 40:48-2.49 that gave a preference to local towers, because there was "nothing in the record to demonstrate" that adding this preference to an ordinance that also included a provision requiring a response within twenty minutes, would "actually reduce the response time for towing calls . . . [or] otherwise promote or benefit the public health." Ibid.
VI
Mile Square also asserts a facial challenge to Chapter 184, arguing that the ordinance is impermissibly vague. "A law is void as a matter of due process if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). As the discussion of the provisions of Chapter 184 set forth above demonstrates, the provisions describing the qualifications applicants must meet and the requirements they must follow leave no room for differing opinions.
Mile Square points to the provisions that require applicants to agree to acquire software that is compatible with the City's system and to operate its storage facility at hours specified by the director at the time applications are due. However undesirable these requirements may be from the perspective of a prospective applicant, there is nothing ambiguous or uncertain about them — an interested applicant must agree to do what the City requires.
Mile Square also challenges provisions requiring equipment that can be operated in a safe and efficient manner. This requirement involves matters within the expertise of those involved in the regulated business. In considering whether the terms of an ordinance or regulation gives "fair warning or notice," courts are mindful of the fact that professionals to whom a statute or regulation applies "have a peculiar expertise in being able to assess the meaning of [the] terms." In re Polk, 90 N.J. 550, 575 (1982).
Mile Square's complaint that the ordinance is vague because it does not provide an adequate description of the manner in which the lotteries will be conducted lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). And given our conclusion that Chapter 184 impermissibly authorizes the director to amend and supplement certain provisions, there is no reason to address its argument that this grant of authority renders Chapter 184 vague.
VII
Mile Square argues that the trial court erred in concluding that Chapter 184 applies only to towing services seeking to do business with Hoboken. We have no reason to consider this claim because the relief Mile Square requests on appeal is a decision overturning the ordinance. Mile Square presents no argument as to why this narrow interpretation would warrant invalidation of Chapter 184.
Given the apparent immateriality of the point, it suffices to note that the trial court's interpretation, limiting Chapter 184 to those who wish to provide services at the summons of city officials, is consistent with the sections of Chapter 184 stating its purpose and scope. Although Section 184-4(A), read literally, requires all towing service providers to obtain licenses, the narrower interpretation is consistent with the scheme of Chapter 184, which, read as a whole, is best understood to provide a system through which city officials will summon providers of towing services who are licensed and regulated. We further note that the authorizing statute, N.J.S.A. 40:48-2.49, permits municipalities to adopt ordinances governing "the removal of motor vehicles from private or public property." (Emphasis added). It does not require a municipality to regulate all towing within its boundaries or none at all.
Affirmed in part and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION