On appeal from the Superior Court, Law Division, Essex County.
Matthews, Furman and Richard S. Cohen. The opinion of the court was delivered by Furman, J.A.D.
The constitutionality of thirteen sections of the City of Newark ordinance regulating peddling and the entitlement of Rutgers Urban Legal Clinic to an attorney's fee award under 42 U.S.C.A. § 1988 are at issue on this appeal. Plaintiffs are licensed peddlers of the city. In a comprehensive opinion the trial judge struck down twelve sections and part of a thirteenth of the ordinance as unconstitutional, upheld the balance of the ordinance as constitutional and applied the severability clause of the ordinance because, in his view, the invalid sections are independent and the valid sections form a complete enactment by themselves. The City of Newark appeals; no cross-appeal is brought.
We affirm in part and reverse in part. The ordinance under attack is entitled to the presumption of validity favoring municipal enactments, N.J. Const., Art. IV, § VII, par. 11. Municipalities are granted specific authority to regulate peddling, N.J.S.A. 40:52-1(c). We conclude that sections (e)(2), (e)(3), (e)(4), (e)(5), (f), (h), (l), (m), (p), and (q), all struck down by the trial judge, are neither unduly burdensome, unduly vague nor without reasonable relationship to the legislative purposes of avoiding congestion on the public sidewalks and of preventing public nuisances.
The subsections of (e) which were declared invalid prohibit substantial impediments to ingress to and egress from abutting property; nuisances; increases in traffic congestion and hazards; and dangers to life, health or property. The definition of "nuisance" should be drawn from N.J.S.A. 2C:33-12 a. The four subsections reasonably protect against threats to the public interest and are readily construable to advance that purpose; whether they overlap with or are redundant of other legislative proscriptions is immaterial, see State v. States, 44 N.J. 285, 291 (1965).
Sections (f) and (h) limit the dimensions of the peddler's cart to two feet in width, four feet in length and four feet in height and prohibit use of any rack or other device to increase the display capacity of the cart. Whether a peddler's cart substantially obstructs the orderly and free flow of pedestrian sidewalk travel is in relationship to its over-all size. Cart size limitations reasonably further the public interest in preventing pedestrian congestion. In the absence of any proofs supporting plaintiffs, we reject their argument that the maximum dimensions fixed, including extensions by racks or other devices, are arbitrary or impose an undue restriction on peddlers.
Sections (l), (m), (p) and (q) impose distance limitations for the stationing of a peddler's cart: not so as to reduce the unobstructed pedestrian right of way to less than six feet; not within ten feet of any curb cut designed to facilitate pedestrian or vehicular movement; not within 15 feet of a fire hydrant, crosswalk or driveway; not against display windows of fixed location businesses; not within 20 feet of the entranceway of any building, store, theatre, sports arena, school or other public place. The trial judge held the distance limitations to be constitutionally invalid on the ground that they are unduly burdensome and difficult or impossible to comply with. We disagree. The distance limitations reasonably serve the legislative objectives of avoiding congestion on the public sidewalks and of assuring an unimpeded view into commercial premises,
see State v. Boston Juvenile Shoes, 60 N.J. 249, 257 (1972). They are measurable or may be readily approximated by eye. In upholding sections (l), (m), (p) and (q), we construe them as applicable when a peddler's cart is stationary on the sidewalk and as inapplicable when a peddler's cart is being pushed or pulled along the sidewalk, for example, passing the entranceway to a store. We apply the rule of construction which favors a constitutional interpretation of a legislative enactment whenever reasonably susceptible to such interpretation, State v. Profaci, 56 N.J. 346, 350 (1970).
The three other sections of the ordinance which the trial judge struck down, that is, (d), part of (n) and (o), we also hold to infringe constitutional mandates.
Section (d) requires a peddler's cart to be continuously in motion except "when a sale is . . . being transacted." The trial judge determined that this provision had been selectively enforced in violation of equal protection of the law under the State Constitution because food vendors and storekeepers with sidewalk displays had not been prosecuted. We disagree that section (d), which is neutral on its face, should be held invalid because of discrimination in its enforcement. The remedy for selective enforcement of a penal law is not invalidation of the penal law, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).
We base our affirmance of the holding that section (d) is constitutionally invalid on the ground that it is not reasonably related to and does not reasonably serve the stated purpose of the orderly and free flow of pedestrian sidewalk travel, see Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 301 (1976). A peddler's cart in motion, proceeding slowly because of its bulk and ...