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Softee v. Mayor & Council

Decided: November 14, 1962.


Artaserse, A.j.s.c.


These are consolidated actions in lieu of prerogative writs attacking the validity of an ordinance adopted by the City of Hoboken on May 2, 1962, known as sections 21:21 to 21:32 inclusive of chapter 21 of "The General Ordinances of the City of Hoboken" adopted January 7, 1959 entitled "An Ordinance to Regulate and License Vendors, Peddlers, Itinerant or Transient Merchants, and to Be Known as Sections 21:21 to 21:32 Inclusive of Chapter 21 of 'The General Ordinances of the City of Hoboken.'"

The disputed sections of the ordinance are:

21:26. Granting of Licenses: Following the filing of the application, a copy thereof shall be sent by the License Inspector to the Director of the Department of Public Safety of the City of Hoboken who shall verify the moral character of the applicant by causing his fingerprints to be taken and a photograph made, and based on his findings, shall either recommend his approval or disapproval of the application. Upon the approval of the application and payment of the fee the license shall be issued by the License Inspector who shall keep all necessary records pertaining thereto. For all license classes, the license shall not authorize any person except the person named in said license, to engage in business thereunder. Said license shall not be transferable from the person to whom issued to any other person. A separate license must be obtained by a licensed peddler for every agent or employee working for him. All licenses shall expire on the 31st day of December of each year.

21:29. Regulations to be observed: All persons to whom a license shall be issued hereunder shall observe the following regulatinos [ sic , regulations]:

(1) No person or vehicle shall stand or be parked for the purpose of displaying or selling wares, merchandise or service on public or private property within 200 feet of a business selling same or similar merchandise.

(2) No person or vehicle shall stand or be parked in a fixed location for the purpose of displaying or selling wares, merchandise or services on any public or private property where to do so causes or is likely to cause a crowd, impede vehicular or pedestrian traffic, produce annoying sounds, noise or disturbances, which interfere with the comfort of the residents, nor shall use a gong bell or other instrument or sound device to attract the attention of the public. It shall also be unlawful to strew or litter or cause to be strewn or littered the public streets or sidewalks with refuse or waste matter of any kind or to in anywise interfere with the comfort or convenience of the residence or business of the occupants or owners of adjacent properties.

(3) No person or vehicle shall stand or be parked for the purpose of displaying or selling wares, merchandise or services on any public or private property within a distance of 200 feet of the nearest public, parochial or private school in the City of Hoboken during school hours. School hours shall mean any time between 8:30 A.M. and 3:30 P.M. on weekdays, exclusive of Saturdays, during such days as the said schools may be in session.

(4) No person covered by this ordinance shall sell or attempt to sell in accordance with the terms of this ordinance except as set forth in the preceding paragraph, before 9 A.M. or after 9 P.M. prevailing time. The aforesaid time limitations shall not apply to persons who are expressly invited into homes by the occupants thereof.

(6) No licensee shall park his vehicle or dispensing container for a period longer than the time it takes to make a sale to a customer.

Plaintiffs challenge the validity of said ordinance for the following reasons:

(a) The said provisions transcend the power granted to the City of Hoboken by R.S. 40:48-2 or N.J.S.A. 40:52-1, in that the purpose or objects of the municipality in adopting said provisions are unlawful and ultra vires for the reason that they do not advance the common good and can accomplish nothing other than to shield local shopkeepers from competition;

(b) Said provisions represent an unreasonable exercise of the police power for the reasons that the means employed by the City of Hoboken to attain any possible or lawful municipal objects are unreasonable, nor is there any substantial relationship between such means employed and any avowed lawful object;

(c) The said ordinance, while purporting to be regulatory, is really prohibiting plaintiffs from continuing to do business as itinerant ice cream vendors in the City of Hoboken;

(d) The aforesaid provisions are arbitrary and discriminatory in that they favor one particular class of merchants over another for the enrichment of the former class, restrict competition and create monopolies or confer exclusive privileges;

(e) The provisions of section 21:26 of the ordinance quoted above are invalid, ultra vires and unconstitutional for the reason that it delegates to the Director of the Department

of Public Safety of the City of Hoboken discretionary power to grant or deny a license without setting forth adequate or sufficient standards to guide his determination; and

(f) The said provisions violate the due process and equal protection clauses of the Federal Constitution (14 th Amendment) and of the New Jersey Constitution, Art. I, pars. 1 and 5.

The defendant Mayor and Council of the City of Hoboken states that the ordinance and its provisions are a lawful exercise of the power granted to said municipality under the provisions of R.S. 40:48-2 and N.J.S.A. 40:52-1; are not violative of the provisions of the Federal or New Jersey Constitutions; are a reasonable exercise of the police power of the municipality, and are designed for the preservation of the health, safety and welfare of the residents of Hoboken. The defendant also contends that the bells used by the plaintiffs, the hawking by peddlers, the use of mechanical musical devices by peddlers, and the assembling or parking for the dispensing of their wares and merchandise create a congested situation in allowing numerous people to assemble in the evening and during the day, which disturbs the peace and quiet of the community and affects the sleep of the residents and the children. The defendant further says that the use of the vehicles employed by the plaintiffs creates a dangerous traffic hazard in that the ringing of the bells, gong or whatever instrument of sound used causes the children to dart out from the sidewalk into the path of oncoming traffic, thereby endangering their lives and safety. This condition is more hazardous in a community such as Hoboken where there is a high density of population, narrow streets and the parking of vehicles on both sides of the street. Moreover, these hazards are more pronounced when said peddlers dispense their merchandise in the vicinity of schools. Defendant further asserts that the regulation concerning the distance of 200 feet from an established business is a reasonable one, because past experience has shown that when a peddler has parked his vehicle near a store selling the same merchandise, arguments and

breaches of the peace have ensued between the storekeeper and the peddler, which fracases not only affected the persons involved but the children and others who were at or near said vehicles and stores.

The parties have stipulated the following:

(1) Plaintiffs have been engaged in the business of vending ice cream and ice cream products from mobile vehicles in the State of New Jersey for many years, and for many years have operated in the City of Hoboken and that the vending period of their businesses commences on or about April 1 and lasts to October 1 of each year.

(2) Plaintiffs are presently operating in Hoboken under licenses issued pursuant to the peddling ordinance in effect immediately preceding the ordinance now being challenged.

(3) Plaintiffs have substantial investments in equipment and employ numerous employees in their businesses.

(4) Attention of the buying public is attracted by the bells of Good Humor and by the musical chimes of Mister Softee.

(5) Hoboken is approximately one mile square and there are 18 blocks running north and south and 15 blocks running east and west.

In addition to the stipulations, the court makes the following findings of fact:

The plaintiff Good Humor Corporation has one truck which has operated in Hoboken for the past 14 years from April 1 to October 1 of each year. It leaves the company garage in Newark at 11 A.M. and remains actively engaged in selling the products of Good Humor until about 10 P.M. Upon entering a block the salesman stops his truck 20 to 50 feet in from the intersection and rings the tinkle bells of the Good Humor vehicle. He then waits for customers. This procedure is repeated in the middle and end of each 200-foot block. The bells, which are operated manually, consist of a set of four bells which range from two inches to three and a quarter inches in diameter. No gong is used. These bells can be heard for a distance of more than 100 feet and are used to attract customers.

The plaintiffs Paul A. Cardinale and Joseph E. Murphy, Jr., partners trading as Mister Softee, operate two vehicles in the City of Hoboken selling ice cream products. The

plaintiff Mister Softee, a corporation of New Jersey, sells its vehicles and gives franchises to the purchasers thereof to sell its products. The plaintiff Jersey City Curb Service, Inc., supplies the products and services the vehicles for the plaintiffs Cardinale and Murphy. Mister Softee operates from March 15 to October 15 of each year between the hours of 11 A.M. and 10:30 P.M. and has conducted its business in Hoboken only for the years 1961 and 1962. Upon entering a block the driver makes three stops therein, none of which is at an intersection, and the musical chimes are rung to attract customers. These vehicles have mechanically operated musical chimes which are played by the pushing of a switch. The cycle is 45 seconds, and to replay the chimes the switch must be moved. School principals have asked the operators of the Mister Softee vehicles to remove them from at or near school entrances, and no sales are made or attempted within 200 feet of the schools. In the City of Hoboken there are 15 schools -- 5 parochial elementary schools, 6 public elementary schools, 2 private high schools, 1 public high school and the Stevens Institute of Technology.

Both the tinkle bells and the musical chimes may be played continuously and without interruption.

Sales made by both Mister Softee and Good Humor before 6 P.M. average about 35% to 40%, and those made after 6 P.M. average between ...

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