*1 KING, RICHARD BROWN AND ERNEST PLAINTIFFS-RESPON CROSS-APPELLANTS, DENTS AND NEWARK, v. CITY OF A MUNICIPAL CORPORATION OF THE STATE OF NEW JER SEY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. Argued March January 1988 Decided 1989. *5 appellant and cross- Goger argued the cause for Kathleen C. Counsel, (Glenn Grant, Corporation attorney). respondent A. argued respondents cause and cross- the for Louis Raveson McCardell, Raveson, attorney; appellants Edward {Louis brief). the was opinion Court delivered
POLLOCK, J. validity of an requires This us to determine the appeal peddlers in the Newark. The Law regulating City of ordinance part of ten the nineteen sections Division all or invalidated reinstated seven of Appellate Division (1987). granted We Newark’s those sections. 202 certification, cross-petition peddlers’ for petition and (1987). part part reverse in We affirm N.J. 490 now exception of Appellate Division. judgment of the With (d), find ordinance valid. section we be *6 -I- many years, defendant, For Newark, regu- attempted has to peddlers late plaintiffs, such as Richard Brown and Ernest King. King Both and peddle by Newark, Brown are licensed to King, and as honorably discharged veteran, an a statutory has right peddle. to Twenty-five years N.J.S.A. 45:24-9. ago the Chancery enjoined Division predecessor the enforcement regulating peddlers, Keenan, ordinance Germano v. 25 N.J.Su- (1953), per. years ago 37 and ten unreported opinion an the Appellate Division declared an unconstitutional ordinance enact- ed in requires 1978. This case us to review the most recent Ordinance, amendment contained in 8, Newark Revised title 7, chapter 6, adopted section 3, (N.R.O. 8:7-6). on October 1979 Plaintiffs seek a invalidity declaration of the of the ordinance injunction against and an its enforcement.
No purpose statement of accompanies the and the parties disagree its purpose. on intended contend purpose that the is competition ordinance to eliminate merchants, with retail argues and Newark that the is congestion to City’s avoid protect sidewalks and to rights owners, abutting property many whom are retail merchants. analysis begins
Our principle the basic that munici palities power have broad enact and enforce ordinances to health, protect public safety, and welfare. Chamber of State, 131, (1982). Commerce 89 U.S. N.J. Further more, Legislature specifically has municipalities authorized regulate peddlers. 40:52-l(c). legis license and N.J.S.A. As action, municipal ordinances, statutes, lative presump like are tively valid. Orange Hutton Park Gardens v. West Town Council, (1975). Legislatures, N.J. both state local, better policy are situated than courts make decisions concerning health, public safety, and broad is welfare. As however, police power, it by guarantees is constrained process, Servicenter, due Hudson Circle Kearny, Inc. v. Depart (1976), equal protection, Barone v. (1987), in Servs., 364-78 107 N.J. Human
ment of state constitutions. federal and police power case, municipal exercise of present In the legitimate regulation of the economic itself an manifests reasons, including potential peddling. For various business congestion, has government sidewalk problems of street and suspicion. about econom- Concerns peddlers with often viewed led have more premises of their competition and obstruction ic merchants, object to businesses, such as retail established *7 review, light of the peddlers. of Our conducted presence peddlers, and the municipality, interests diverse peddling purpose of the public, consideration involves In purpose. that means used to achieve ordinance and the review, guided substan- by principles of conducting our we are equal process protection. and due tive peddling, regulations, regulating such as Economic those legitimate to state only rationally related a need be process. satisfy requirements of due Williamson substantive Okla., 348483, 488, 461, 464, 99 75 S.Ct. Optical Lee U.S. v. 925, 657, 99 572, denied, 75 563, 349 U.S. S.Ct. reh’g L.Ed. regulation arbitrary, (1955). is not If an economic 1256 L.Ed. unreasonable, a the means selected bear or and capricious, regulation legislative relationship objective, rational v, Reinfeld, & Joseph H. Inc. should sustained. be Schieffelin (1983); 400, Piscataway Township Bd. Co., 94 413 N.J. dismissed, 308, 318, 454 appeal U.S. Caffiero, 86 N.J. Educ. v. S.Ct, (1981); 560, v. 1025, 470 Robson Rodri 70 L.Ed.2d 102 517, (1958). corollary, courts should 522 As a guez, 26 N.J. body, at legislative of a least judgment their for that substitute gov legitimate regulation reasonably related a is when 487, 75 Williamson, supra, at 348 U.S. ernmental interest. 464, at 571. 99 L.Ed. S.Ct. act,
Furthermore, a or statute legislative a whether ordinary vague person of ordinance, that a must not be so
573 intelligence requires, prohibits, is unable to discern it what or punishes. Servicenter, Inc., Hudson Circle supra, 70 atN.J. 301. No one criminally responsible should be for conduct that reasonably could not proscribed. be understood be v. State 1, Lashinsky, (1979). 81 N.J. 17 principle applies That to the subject a potential violation which carries a maxi- fine mum term ninety-day imprisonment. $500 a distinguished
As governing from standards pro due claims, equal cess protection analysis federal involves different tiers or levels of review. If a right suspect fundamental involved, legislative is subject class classification is to strict scrutiny, Barone, supra, 364-65; 107 N.J. at v. Greenberg Kimmelman, 552, (1985), 99 564 requires N.J. that further compelling statute state interest and that there be no less accomplishing objective. Barone, restrictive means of 107 supra, (citing Richardson, at 365 v. N.J. Graham 403 U.S. 1848, 365, (1971)). 29 regulates S.Ct. L.Ed.2d 534 it When class, “semi-suspect” a legislative act is examined under “inter scrutiny,” substantially mediate be must related to the important governmental Barone, objective. achievement an supra, 107 (citing Boren, 190, at 365 Craig 429 U.S. (1976), denied, S.Ct. reh’g L.Ed.2d 429 U.S. (1977)). If, here, S.Ct. L.Ed.2d 574 the enactment *8 suspect does not affect a semi-suspect class and not does regulate to attempt right, a fundamental it only need be ration ally legitimate to satisfy related a state interest to federal Ibid, equal protection requirements. (citing Dandridge v. Williams, 471, 1153, 491, 397 25 reh’g U.S. 90 S.Ct. L.Ed.2d denied, 398 (1970)). U.S. 26 80 S.Ct. L.Ed.2d conducting protection
When equal analysis under article I, paragraph Jersey Constitution, the reject of New have we analysis employed balancing ed a multi-tiered test. Bar one, supra, 368; 567; supra, at Greenberg, N.J. atN.J. Right Byrne, (1982). Choose N.J. 308-09 “In balance, striking the we have considered the nature of the governmental restriction the extent which the right, affected it, public for and the need the restriction.” upon intrudes differently, Although at Greenberg, supra, 99 N.J. 567. stated I, equal protection analysis rights paragraph under article an Constitution, equal an Jersey analysis the like 1 of New process under the fourteenth amendment of protection and due Constitution, the may lead to same results. the United States Id. at 569. case, either a
In this we are not concerned with suspect equal right protection or a class. For fundamental the United purposes, the ordinance satisfies States Constitution legitimate state rationally if it is related interest. if, balance, the State the ordinance satisfies constitution need, considering public not restrict regulation, unduly does right peddlers engage in their of the business. Green Similarly, for due berg, supra, 99 at 567. substantive reasonably if it relates process purposes, the ordinance is valid legitimate arbitrary nor legislative purpose to a and is neither H, Inc., Joseph supra, discriminatory. Reinfeld, 94 N.J. 413. generally
Newark that each section the ordinance contends legitimate relationship to the bears reasonable traffic, preventing and in regulating pedestrian and vehicular adjacent ingress egress to and from the stores of obstruction of arbitrary, challenge the ordinance merchants. Plaintiffs irrational, impossible compliance, vague, unreasonably bur- densome, addition, they prohibitory. In assert that the congestion, purpose of ordinance is not to relieve traffic but competition. merchants from to shield local these, Of The ordinance contains nineteen sections. twelve peddler’s regulate the location of the cart on sections Newark; regulate four size and sidewalks of sections carts; configuration regulate sections other and three business, including aspects peddler’s operation hours of us, receipts. Before do and retention
575 challenge ((a), (b), (c), (i), (k), (r), nine (g), (j), (s)), sections and ((d), (e), (f), and we limit our review to the remaining sections (h), (l), (n), (o), (m), (p), (q)). and begin (d), provides
We with section that no peddler shall set or maintain his cart or or it [s]tation, place, up vehicle, allow to remain at the same location being on sidewalk or street at a any time when a sale is not
transacted. “peddler” Newark defines as: goes referred to a any person either as or who commonly hawker, from traveling to or from house to house on the streets place place and carries by goods, selling delivering with him and wares merchandise for the or purpose goods, them to consumers or who has wares any person and merchandise of traveling sent from to any house to house description place place on by selling delivering goods for streets and to consumers. [N.R.O. 8:7-1.] comports That definition generally “peddler” by as defined Evans, 586, our cases. Huband v. (Sup.Ct.1935); 114 N.J.L. 588 435, Pevey Greenberg, v. 101 (Sup.Ct.1925); N.J.L. 436-37 Sha piro Newark, 530, (Law 44 N.J.Super. Div.1957). v. 534 Al though peddling legitimate occupation, right is a peddle to right go wares, is the to from place place selling one’s right indefinitely remain aat fixed location. Township Lord, 280, Bergen N.J.Super. N. v. (App.Div.1974) 131 283 (citing Germano, (Essex County Newark v. 143 Ct.1953)). right peddle by rights The is limited abutting owners to property unobstructed access their public’s right passage over streets and sidewalks. Street, Inc., (1981). Stewart v. Wallace 87 N.J. Consequently, municipality designate a may not sidewalk public marketplace, Laverack, see State N.J.L. (Sup.Ct.1870); operation sale, a fixed such newsstand, as a trespass public would constitute a on the easement, Marcus, (Essex 823 Broad St. v. 17 N.J.Misc. Ct.1939). County peddlers acknowledge rights, these limits their but by requiring making
assert that to move they them unless are *10 sale, purpose reducing sidewalk the ordinance defeats the vending, congestion. is the The reason that while meters, among fireplugs, telephones, parking place their carts three feet from the curb. stops and in an “amenities zone” bus they Forcing move their carts from that area unless them to eliminate, conges- engender, making are will not sidewalk a sale tion. City counsel for the of Newark conceded argument,
At oral interpreted “broadly” light “of and in that “sale” should be only selling, include the act of but also common sense” to not display goods potential and to interact opportunity counsel, According to its Newark intended never customers. selling a move to one customer. that should after counsel, explained by a point prevent as is to remaining place indefinitely. in Counsel peddler from one sales, he or she in peddler making may states if a is remain day. one location all
Furthermore, acknowledges Newark that even if a location, or she particular must he also satisfies move from moving gener- in by to another location the same the ordinance construed, is apparent purpose of the ordinance al area. So congestion ingress that obstructs the prevent sidewalk In egress adjacent regard, merchants. this the stores average in record that the sidewalks the downtown area reveals twenty they normally congested. and that are not feet in width therefore, Arguably, purpose may of the ordinance be best forcing peddlers their unnecessarily achieved not to move along public carts sidewalks. written, precision, problem lacks
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To the extent that is the ordinance vagueness. suffers from have As we written: than a L.Ed.2d L.Ed.2d notions of fair State v. forbidden. acting test “demands guidance to the guess whether his conduct arbitrary. given Kimmelman, A Vagueness penal notice and trap in Lashinsky, supra, 596, statute should not become a good Kolender for Cf. 609 "is supra, play.” those that Colautti faith, but adequate police (1979) (disapproving essentially (1983). a law be acting v. N.J. 94 State v. that Lawson, v. [State warning is criminal. Nor should the statute 81 rather in Franklin, law sufficiently good N.J. [85] Lashinsky, procedural 461 v. enforcement should at 18. faith); at 125 n. 21. Town Tobacconist v. of the law’s reach.” Lee, U.S. statute that was found to be little more trap 439 U.S. A clear give In re 81 N.J. 352, for a due defendant should fair is so [360], 379, DeMarco, person process 1, 17 precise notice of 395, uncertain 103 S. 165-66 (1979). concept 99 ordinary N.J. 83 so that Ct. S.Ct. not (1984).] conduct provide The 1855, 1860, as to be 25, grounded 675, 685, intelligence people vagueness obliged 37 so little become that (1980); are 58 to in is problem interpretation suggested by The Newark's slightest counsel is that no have the notion would how long after permitted before or a sale he or she would be to place. interpretation peddlers remain in would subject virtually police, unlimited discretion to whom the guidance. gives ordinance no requires That conclusion that we Hoboken, revisit Mayor Mr. and Council Softee (Law Div.1962), parties. is cited both prohibited There an ordinance that vendors and parking dispensing period longer a "vehicle or container for a customer,” id. at it takes to make
than the time a sale long “parking place in one for a interpreted prohibit was time,” for at 375. with our invalidation period of Id. Consistent ordinance, we overrule Mr. vagueness part of the Newark may validating an the extent it be read as Softee vague unconstitutionally ordinance. otherwise the Newark Although we do not undertake to rewrite may helpful parties if guidelines be to the some (d). The term “sale” should be Newark elects to amend section stationary only to remain while defined to allow a vendor potential customers are actually serving customers and while specified surveying goods, the vendor’s but for a reasonable Thus, and after a sale. Newark must allow ven time before specified up in a location and remain there for a dors to set sales, complete and to continue period of time to attract and Conceivably Newark should display thereafter to their wares. period of time while permit peddlers to remain for one period completing after waiting to make a sale and for another specifies period a time a sale. To the extent that the ordinance place, possibility enhances the for a to remain it *12 imply surviving vagueness challenge. We no view whether a such an attack. the ordinance could survive (e) provides peddler no shall Section allow it to remain on set or maintain his cart or any [s]tation, place, up (1) interfere in a as would restrict, obstruct, sidewalk such way substantially (2) right of ob- restrict, with or the way; substantially impede pedestrian’s abutting ingress egress the interfere or or from struct, with impede (4) (3) congestion, increase traffic cause nuisance; create or become a property; (5) danger a increase traffic or cause or create or constitute hazards; or delay (6) ice cream or confections of food, drinks, health or sell life, any property; his own for immediate unless he has available for use kind consumption public patronage maintained for his litter which shall be marked and receptacle clearly picking removing leave location without first nor shall use, peddler any up, any remaining disposing made him. trash or refuse from sales and any (e)(1), upheld pro which The Law Division subsection substantially obstructing public way, peddler hibits in accordance with N.J.S.A. by interpreting this subsection 2C:33-7, rendering prohibits purposely recklessly or which public passage “impassable without unreasonable inconvenience or (e)(2) hazard.” The court then struck down subsections and (4) (1),” and, analysis addition, “subsumed under in in [its] (3), (e)(2), (4), (5) struck down subsections vague and as “too put prohibited.” notice as to what conduct is
The Appellate part judgment Division reversed this Division, finding the Law four subsections reason- “[t]he ably protect against threats to public interest and are readily purpose; construable to advance that they whether overlap legislative with or are redundant other proscriptions immaterial, States, is (1965).” see State sustaining (e)(3), at 6. In Appellate Division stated: definition of ‘nuisance’ should be drawn from “[T]he N.J.S.A. 2C:33-12a.” Ibid. peddlers challenge Appellate Division’s declaration (4), validity (e)(2), (5). of subsections and Newark contends (e)(4),
that the of subsection like that of subsections (e)(1) (e)(2), protect against is to obstructions to access of abutting properties, (e)(4), and that subsection like N.J.S.A. 39:4-67, prohibits parking which they motor vehicles where cars, passage interfere simply prohibits of other ven- causing pedestrian dors from congestion. Looking and traffic (e) at section entirety, its we find that the sense of the section is to cover those acts that create a or “nuisance” “danger life, property.” agrees, health Newark’s counsel prohibits only “outrageous and states that the ordinance con- Subject construction, limiting may duct.” to our the section day stand. We leave for another whether is the ordinance unreasonably particular enforced in a instance. challenge
Plaintiffs the cart size limitations contained (f) (h), provide sections that no shall *13 (f) a cart of of which exceed 2 4 feet dimensions feet [u]se [sic] width, length height including height, conducting and feet in wheel while business sidewalk; on any (h) table, crate, or the use of carton, set up, attach, place permit any [u]se, selling kind to increase the or display device or structure of rack, any capacity his cart. cart size restrictions agree Appellate Division that with We congestion, pedestrian reasonably preventing related to are (f) (h). uphold and therefore sections N.J.Super. at and (l), (m), challenge (p), plaintiffs sections The also specified prohibit peddling from within (q), which objects. provide The that no of certain sections distances peddler shall (l) remain on or maintain his cart or allow it to set any [s]tation, place, up right of do so reduce the unobstructed way sidewalk if to would pedestrian Engineering time to time 8 feet. The from less than may Department right change regulation way space required, width pedestrian circumstances require; (m) [e]ngage peddling location in the within ten feet of where any business to facilitate or vehicle movement; the curb has been pedestrian depressed along [ejngage peddling (p) or street in the business of sidewalk any any 15 feet of fire crosswalk or within any hydrant, driveway; goods against (q) maintain his or set or cart display [s]tation, place, up shall 20 feet from of fixed location nor be within an businesses, windows they building, museum, movie store, theatre, school, any library, entranceway arena or other house, public assembly. sports (b), setting challenge prohibits section Plaintiffs do which (k), peddler, thirty another or section up within feet of feet up his cart least ten requires a to set at intersecting streets or sidewalks. virtually impossible for a
The trial court “that it was found triangulate lay person accurately all these measurement (b) along required by the ones sections requirements (k).” Appellate disagreed, stating: “The distance Division legislative objectives of avoid- reasonably limitations serve assuring an unim- ing congestion public on the sidewalks and premises. into v. Boston peded view commercial See State (1972). Shoes, They are measurable Juvenile readily by eye.” may approximated be 6-7. us, Appellate Division contend
Before proper judicial by substituting bounds review exceeded *14 findings its of fact for those of the trial court. See Rova Co., Farms Resort v. Investors (1974) Ins. 65 N.J. (“the appellate court should original exercise its finding fact jurisdiction sparingly and in none but the clear case where there is no matter.”). doubt about the disagree. We Appellate Division merely resorted to a standard more condu- cive finding to a of constitutionality, approximation by eye rather than actual measurement. many instances,
In peddler a need not simultaneously make all the distance required measurements by the ordinance. Ac- cording counsel, moreover, to its Newark expect does not the peddlers to make actual distances; measurements of the an approximation will contexts, suffice. In other people often make similar example, measurements. For a parking motorist a car frequently “eyeball” makes numerous measurements to calculate the distance curb, of the car from the hydrants, fire driveways, and other Similarly, peddler cars. a need not actual- ly triangulate measure or the distance of the cart from another object. We agree therefore Appellate the Division that the distances reasonably legislative serve objectives and that they are by eye. measurable N.J.Super. at 6-7. (n) provides
Section that no shall [ejngage selling giving the business of at location without a written any engage selling to each in the receipt customer, business of location any maintaining without on his showing or on the cart or vehicle person receipts during preceding sales made week. The shall show receipts clearly seller’s name, business license address, number, the merchan- description dise and the sold, and shall be purchase numbered. price sequentially The lower court sustained so much of the requires section as receipt customer, to issue a to each but invalidated requirement the further maintain on their carts receipts previous from the week’s In affirming sales. the trial ruling, court’s Appellate Division found require- the section “unduly burdensome,” ment since pertinent “all information is receipt” available on the written sales issued to the customers. at 8. maintaining receipts on their requirement Doubtless Moreover, customer peddlers. imposes a burden on carts difficulty in demon receipt may encounter lost the who has peddler. particular from a purchase of an item strating the here, assessing Nonetheless, guided as we are we are *15 sustain, if duty our to provisions other constitutionality of the ordinance. State possible, the Profa (1970); ci, 346, Boyle, Hurwitz v. 56 N.J. the transient nature of (App.Div.1971). Because of business, pose special problems to their custom peddlers
their complain ought to be able A who wishes to ers. customer receipt at the verify purchase from an examination requirement peddler. locates the time he or she legitimate receipts on their carts fulfills peddlers retain the ped avoiding altercations between governmental regulation is reason Consequently, the dlers and consumers. interest. As the United States ably legitimate related to a state every stated, in “the law need not be Supreme Court has its aims to be constitutional. respect logically consistent with correction, and at hand for enough that there is an evil It is legislative thought particular that the measure might that it be Williamson, supra, 348 U.S. way rational to correct it.” was a 487-88, at 572. at 99 L.Ed.2d S.Ct. not Furthermore, the ordinance does vio we find that peddlers, not equal protection by requiring but late notions of receipts purchases. from generally, to maintain merchants Peddlers, transiency, distinguishable from of their are because Softee, Mister operate from fixed locations. merchants who purposes equal protec N.J.Super. at 373. For the supra, 77 peddlers tion, treats all alike. it that the ordinance is sufficient Ibid. (o), proximity in to bus prohibits peddling
*16 Section which stops, states that no shall along peddling [e]ngage sidewalk or street any in the on any business designated of this the words bus Act, For the has been as a bus stop. purposes adjoining shall include the sidewalk and the street where that street stop has designated been as a bus of Newark. stop by City peddlers for the peddlers Counsel conceded that should not be up allowed set accepting their carts are where buses discharging passengers. Newark’s counsel informs us that the only designated streets that have been stops as bus in their entirety are the north side of Market Street west Broad Street and east side Broad Street south of Market Street. peddlers The result is that prohibited setting up are their concerned, carts that area. Insofar as other streets are we find subject limiting that the section is to a construction that may prohibited distance, be within reasonable such (one sixty length), feet stop sign. bus of a bus Newark’s counsel assures us that the ordinance bewill so construed. Interpreted (o) vagueness that manner section surmounts the prohibit test and does not peddling. lawful conduct of See (1956) Irvington, (“[t]he Gilbert v. Town 20 N.J. regulate power power prohibit does embrace the [*] [*] [*] (o)
If proscribe section “peddling along were an entire from corner stop designat block to corner whenever a bus was block,” anywhere found, Appellate ed as the Division 202 N.J.Super. it light at would be overbroad. Construed concessions, counsels’ we reasonably find that the ordinance is legitimate public purpose congestion related to the avoiding protecting public vicinity in the of a immediate bus stop.
Plaintiffs also contend that is ordinance invalid improper protect it for purpose, because was enacted an competition shopkeepers from Moy from street vendors. See Paramus, (1959) v. (municipality ant 30 N.J. 545 cannot police power exercise for purpose shop “a to shield the local keepers competition, private from lawful thus serve interests in rights.”) (quoting contravention of common N.J. Beach, (E. Bradley Good v. Humor & N.J.L. A.1939)). squarely question addressed the
Neither of the lower courts improper purpose. ordinance was enacted for an whether the Nonetheless, at the trial court stated that “there was evidence (d) allegation “that section was enacted to support” trial to companies in interests and protect the commercial business Newark,” some evidence that those and found that established compe- unfair business interests considered be both “eyesore.” tition and an occupation, municipalities are
Although peddling is lawful regulate to enact ordinances to license and expressly authorized 40:52-l(c). If peddlers. an ordinance has both a valid N.J.S.A. guess purpose, and an invalid courts should not mind, governing body uphold had in should the ordi but 601, 613 Riggs Long Township, nance. Beach 109 N.J. (1988). Consequently, purposes even if one of the of the merchants, protect the ordinance will ordinance was to retail legitimate purpose subject ordinance has the stand. ensuring orderly pedestrian and vehicular the safe and flow of traffic.
Finally, plaintiffs merely contend that the ordinance does not prohibits peddling. If the effect of regulate but business prohibit peddling, it exceed New the ordinance were to would legitimate police power. Moyant, supra, ark’s exercise 437; Gilbert, Softee, 544; at Mister supra, N.J. at N.J. 370-71; Germano, supra, supra, 77 light con of our 41. It is uncertain whether Super. at struction, On the record before has that effect. the ordinance If, however, the ordinance us, that conclusion. cannot reach we plaintiffs may prohibiting peddling, has the effect of as enforced appropriate action. *17 an institute part in Appellate Division is affirmed judgment The of the part. the matter to the Law and reversed in We remand judgment with this entry for the of a consistent Division opinion. STEIN, J., S. concurring part dissenting
GARY in and part. in challenge validity
This case involves a to the of an ordinance City imposing of the of multiplicity Newark of on restrictions sections, the of peddling. business Of the ordinance’s nineteen impose peddler’s twelve restrictions on the of a location cart sidewalks, City’s regulate the configuration four the size and of carts, regulate the and three other aspects peddler’s business, including operation receipts. hours of retention and of majority opinion acknowledges, As the the ordinance represents attempt past twenty-five years regu- Newark’s third in the peddling. late the business of Ante at 571. trial,
After the Law Division all or ten part invalidated of Appellate sections the ordinance. Division reversed part, reinstating City seven of these sections. Brown v. Newark, (App.Div.1987). today The Court upholds ordinance, all but acknowledging, one section of the however, that if “the as enforced has ordinance the effect prohibiting peddling, plaintiffs may an appropriate institute majority action.” Ante at 584. To the extent the opinion ordinance, the reflects Court’s concern that this specific its applications, may become mechanism for harassment or selec- prosecution peddlers, tive I share that concern.
Thus, fully I am in accord with the Court’s conclusion that (d), “perpetual provision section so-called motion” ordinance, rationally literally, pur- read “is not related to the pose reducing 576-577, and, congestion,” if sidewalk ante counsel, suggested by vague- construed as Newark’s is void for However, disagree ness. Ante at 578. I majority’s (l), in upholding (m), (p), conclusions sections (q) by invalidated the Law Division but by reinstated Division, (e)(4) (5), Appellate and sections which also were upheld by Appellate invalidated Division and Law Division. *18 (l), (m), (q) (p), of
Sections and restrict location peddler’s Among the other sections that cart on the sidewalk. (b), impose analogous prohibits restrictions are section which a maintaining peddler from a cart on the sidewalk closer than (k), thirty peddler, prohibits another and section a feet to peddler maintaining from his cart or merchandise closer than addition, intersecting feet from streets or In ten sidewalks. (o) prohibits along any peddling section on the sidewalk street designated stop, although majority that has as a bus been apply point opinion only construes this section to to a within sixty bus-stop sign, except a for the “north side of feet of and the Market Street west of Broad Street east side Broad Street,” “designated Street south of Market which are as bus * * stops entirety in their Ante at 583. Therefore, (l), (m), apart requirements from the of sections (q), peddler thirty any (p), and must be feet from other sidewalk, peddler, away intersecting ten an feet from street sixty away stop. and at least feet from a bus by prohibit The four the trial court sections invalidated engaging following from in the conduct: (l) or maintain his it to on set cart or allow remain [to] [s]tation, place, up right if sidewalk to do so would reduce unobstructed any way pedestrian Engineering to less than 6 feet. The from time to time Department may regulation change right width of pedestrian way required, space circumstances require; (m) [e]ngage peddling in the within 10 feet of location business [to] any where the curb has been to facilitate or vehicle movement; depressed pedestrian (p) [e]ngage peddling along in the sidewalk or business [to] any any street within 15 feet of fire crosswalk or any hydrant, driveway. (q) goods against set or maintain his cart or [to] [s]tation, place, up display windows of fixed location nor shall be within 20 feet from an businesses, they building, movie store, theatre, school, museum, entranceway any library, arena or other house, sports place public assembly. Thus, observing thirty a minimum addition to distance of feet peddler, intersecting another ten feet from an street or sidewalk, sixty stop, feet from a bus must pedestrian right-of-way an maintain unobstructed of not less feet, than six his cart at least ten feet from a curb depression, crosswalk, fifteen feet fire-hydrant, from a or drive- way, and twenty the entranceway any building, feet from *19 store, theatre, school, library, museum, house, movie sports arena or public assembly, other bearing'in mind the majority opinion observation the that the sidewalks the area average only downtown of Newark twenty feet in width. Ante at 576-577. Moreover, (d) prior section invalidation, to its compelled peddler would have who had completed these observations repeat and calculations to them throughout working the day each time that the cart was relo- cated.
Focusing (l), (m), (p), on sections (q), trial the court determined that requirements imposed the distance by these invalid, provisions concluding were that the multiple regulations affecting placement peddler’s the lawful of a cart were so complex and detailed City that it would be unreasonable for the compliance: demand regard, triangulate In this Ms. Jackson testified that she was unable to the distances either with or without instruments and in order to measure at that, King all, the had to leave his or her cart unattended. Mr. and Mr. figure Brown testified that were unable to out the distances alone and they figure triangulate
were not able to out the but only distances, with the them, aid of another and then on a week-end when there was less person only traffic. Frederick Kent testified that he pedestrian plaintiffs expert, measuring needed instruments to take the and that he measurements, had Gabriel, page triangulating those measurements. difficulty Officer deposition, extremely difficult, impossible, his that it was testified if for complying requirements him to determine was with the distance if the ordinance. these sections Furthermore, to make calculations from require peddlers (d), during innumerable locations times under section since, many day remaining “legal” are in even a theoretical location prohibited being when a sale is not transacted. If a with the peddler attempts comply using attempting triangulate ordinance rulers and he or she by distances, 8:7-6(i) leaving completing inis violation of his or her cart unattended while by the calculations. There was from Officer Pollitto that he could not testimony triangulate the distances the ordinance but had to instead on required by rely charged If are measurements.” those who with the enforcement of “eyeball legal the ordinance are unable to determine where it is we accurately peddle, are cannot those who asked to with the ordinance to reasonably expect comply do more. we Indeed, found to be made the testimony, credible, point triangulation calculations could not be measured. [Brown repeatedly 18-19) (slip (emphasis added).] Newark, No. L34066-81 City supra, op. Notwithstanding finding this of fact the Law Division it, testimony Appellate based on the before Division con- cluded that the “are may readily distances measurable or be approximated by eye.” Newark, City supra, Brown v. majority at 7. question observes that complied question whether the ordinance can be is a of law fact, agrees Appellate rather than with the Division that reasonably legislative objectives “the distances serve and that they by eye.” are measurable Ante at 581. complicated governing
Whether or not these rules where a *20 peddler may may park or complex his cart are too to be complied simultaneously obviously question is a of fact— Thus, not law. I unwisely ignored believe the Court has factual findings by “supported by the trial court that are adequate, substantial and evidence.” Rova credible Farms Resort v. Co., (1974). Moreover, Investors 483-84 Ins. the majority ignores regulatory context in which the Law judge Division In concluding, invalidated these sections. based testimony, triangulation on the that “the calculations could not measured,” be obviously impressed by the trial court was practical conducting peddling difficulties inherent in a business being required while comply at all times to observe and with a profusion question of distance I restrictions. whether majority readily by eye” would find such distances “measurable attempt were it to perspective such measurements from the peddler selling Newark, a from a cart on the sidewalks required time, to move that cart from time to and to recalculate required stopped distances each time the cart is at a new location. The trial court concluded that these sections were unduly myriad burdensome because of distance restrictions “impossible compliance,” finding supported were and its was by testimony peddlers police from as well as I officers. would uphold (l), (m), the Law Division’s invalidation of (p), sections (q). (e)(4),
I prohibits ped- also would invalidate section which dler maintaining way from a cart in such a as would “increase congestion, traffic delay hazards;” cause or increase traffic (e)(5), prohibits peddler and section maintaining way cart in a that “cause danger would or create or constitute a life, property.” health or (e)(5), The ‘Court construes section repre- based on counsel’s argument, at prohibiting only “outrageous sentation oral conduct,” representation and concludes that counsel’s saves the invalidity vagueness. Similarly, ordinance from because of (e)(4) representation by Court sustains section based on a coun- “simply prohibits sel that that section causing vendors from pedestrian congestion.” and traffic Ante 579-580.
I disagree with the Court’s conclusion these sections acquire meaning ordinance can somehow sufficient Newark ly precise challenge to avoid constitutional on the basis of generalized argument counsel’s concessions at oral before us. only Not are such concessions of no value who must requirements conform their conduct to the of the Newark they guidance charged but offer little or no to those selective, with its enforcement. The result inevitable will be *21 arbitrary, vague, gen and individualized enforcement of these eral, obfuscatory provisions. and I would invalidate sections (e)(4) (e)(5) vagueness grounds. Papachristou on See Jacksonville, 156, 162, 839, 843, 405 92 31 2d U.S. S.Ct. L.Ed. 110, (1972)(vagueness challenge vagrancy 115 sustained where give person ordinary intelligence ordinance to of fair “fail[ed] contemplated by notice that his conduct forbidden” [was] 590 “encourage[d] it arbitrary and because and erratic convictions”); 586, Cameron,
arrests and State v. 100 591 (1985) (“[t]o pitfall vagueness, zoning avoid the of ordinance person must enable of intelligence, light ‘common of ordinary experience’ contemplated to understand whether con- lawful”). duct is join majority’s
I in the of challenges resolution asserted e(l), e(2), e(3), (n), (o) to sections of the ordinance. J., O’HERN, dissenting.
I thought would have that an ordinance that defined the peddler’s activity Supreme pass as the Court has done would plaintiffs, however, muster. The have used the “perpet- label ual motion ordinance” to disable and to raise doubt an about description otherwise familiar peddling. of business peddler The idea is that “an traveling itinerant or trader, goods them, who carries about in order to sell and who actually them purchasers, sells to to contradistinction goods trader who has for sale and them in a place sells fixed Missouri, 296, 308, 367, business.” Emert v. 156 U.S. 15 S. Ct. 369, 430, (1895) (citation omitted); 39 L.Ed. Wag see also 95, 101, 94, v. City Covington, ner 40 S.Ct. U.S. (1919) (“an peddler” L.Ed. itinerant vendor or is a “traveling person place place selling from within state goods that are carried with purpose.”). about the seller for the law is Our the same. A is “one who travels about with selling purpose merchandise for the it.” Engle Hewson v. wood, (Sup.Ct.1893). City N.J.L. of Newark in “peddler” turn defines in its ordinance goes any referred either as a or who person commonly hawker, traveling or from house to house on the streets and carries place place by goods, selling delivering him wares and merchandise for the or goods, them to consumers or who has wares and merchandise any person traveling sent from any from house to house description place *22 selling delivering goods the streets for the consumers. 8:7-1.] [N.R.O. selling restricts peddlers’ practices The Newark ordinance peddler may that no or maintain his cart or or allow it to remain at vehicle, set [s]tation, place, up being
the same location sidewalk or at a time when a street sale is any 8:7-6(d).] transacted. [N.R.O. plaintiffs invalidating provi- The succeeded in have latter sion, peddlers supposedly what are codifies licensed go place.” they do—to “from What seek is not to up shop. peddle but set problem municipal regulator squeezed
The is at is that spectrum. Generally ends of a municipality both is forbid its portion marketplace den to set aside a streets as where may space by be used for the sale of merchandise. Newark, 42 Mayor McDonald v. and Common Council of 136, (Ch.1886). N.J.Eq. peddler’s Even the afforded license statutory any veteran, 45:24-9, grace to does not N.J.S.A. carry with it to sell at a a license “refreshments merchandise 435, Pevey (Sup.Ct. fixed stand.” Greenberg, N.J.L. 1925). uneasy The municipality best that a can do is oversee an consumers, peddlers, competing alliance between and the de public maintaining zoning mands of the fixed boundaries. burden, City easy dog This is no as the wars” of Atlantic “hot Press, Sept. attest. The Atlantic 18. City, is regulatory Part of reason for the stalemate the ambiva- Many that we us retain peddlers. lence feel toward street images peddlers-past neighborhoods. who enhanced our enjoy dog or savor Others the ambiance a hot alfresco are roasting pleasant chestnuts on an urban Those street. unpleasant aspects peddling. part The is that we have trays sausages community as a that we not want sense do camped jewelry and costume outside of our best retail stores. problem requires maintaining a delicate be- thus balance *23 nostalgic peddling aspects tween the and the intrusive aspects. try by provide guidance
Hence we ordinance to some to the municipal officials must competing who balance these commer- putting cial interests. The Court faults for Newark a time peddling. suggests clock on the business of It that Newark period may must define “one of time” before it ask the along. to move Ante at 578. After what time? Fifteen minutes, twenty willing minutes? Newark seems to accommo- customers, may serving group date a who be a let us say coming out of the Federal in Courthouse for a bite of lunch says the fresh air. Newark the ordinance means the peddler may long in serving remain as he is customers. adopted rule, If twenty-minute Newark the Court’s would police arbitrary officer be his enforcement of the ordinance if require he did not on? move setting span rule, In disapproves its of time the Court Mr. decision that made sense of the balance between Softee1 right the ice cream vendor’s to sell cones to children on a hot night community’s quiet summer and the interest street. twenty-four-second Must each town fix a sort of clock for the pop? sale of an ice cream (i.e.,
Is it not grandest unusual that the visions of our law process, just compensation, trial), due speedy and some lesser (i.e., driving, negligence), may careless preci- be defined without sion, peddler’s but Newark’s ordinance must be so exact? only
We have before challenge us a facial to Newark’s infringement rights, ordinance. Absent of first amendment challenge facial regulation to a commercial must demonstrate “impermissibly vague applica- that the ordinance is in all of its Village Flipside, tions.” Estates v. of Hoffman Hoffman (Law 1Mr. and Council Hoboken, 354, 77 375 Mayor Softee Div.1962) (giving against "reasonable to ordinance interpretation” prohibition parking longer customer). than for sale to a
593 Estates, Inc., 489, 497, 455 1186, 1193, U.S. 102 S.Ct. (1982). L.Ed.2d Even an “escort service” cannot make challenge governmental a facial regulation of its activities. “Facial ‘strong invalidation is medicine’ which should be used ” ‘sparingly only as a last IDK, resort.’ County Inc. v. Clark, (9th Cir.1988) F.2d (quoting Broadrick v. Oklahoma, 601, 613, 2908, 2916, U.S. 93 S.Ct. 37 L.Ed.2d (1973)). There is little fear that overbreadth will chill expression free by the street merchants. And there is no evidence that Newark has been or will be arbitrary in its treatment of this class of merchants. argument,
At oral counsel for the City of Newark conceded *24 that “sale” interpreted had to be “broadly” in light “of common sense” to only include selling the act of but also the opportunity to display goods potential customers. Coun- sel informs us that Newark never intended that a seller should move after selling to point one customer. The of the explained counsel, prevent is to remaining in one indefinitely. Furthermore, acknowledges Newark even if.a must particular location, move from a he or she satisfies the by moving ordinance to another location in general the same area.
I (d) would sustain section against Newark ordinance challenge. facial It codifies the understanding time-honored peddling what is.
For part, in part reversal in and remandment affirmance WILENTZ, —Chief Justice CLIFFORD, and Justices HANDLER, POLLOCK and GARIBALDI-5.
Concurring part; dissenting part —Justice GARY S. STEIN—1.
Dissenting —Justice O’HERN—1.