On certification to the Superior Court, Appellate Division.
For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock and Garibaldi. Concurring in part; dissenting in part -- Justice Gary S. Stein. Dissenting -- Justice O'Hern. The opinion of the Court was delivered by Pollock, J. Gary S. Stein, J., concurring in part and dissenting in part. O'Hern, J., dissenting.
[113 NJ Page 570] This appeal requires us to determine the validity of an ordinance regulating peddlers in the City of Newark. The Law Division invalidated all or part of ten of the nineteen sections of the ordinance, and the Appellate Division reinstated seven of those sections. 202 N.J. Super. 1 (1987). We granted Newark's petition and the peddlers' cross-petition for certification, 109 N.J. 490 (1987). We now affirm in part and reverse in part the judgment of the Appellate Division. With the exception of section (d), we find the ordinance to be valid.
For many years, defendant, Newark, has attempted to regulate peddlers such as plaintiffs, Richard Brown and Ernest King. Both Brown and King are licensed to peddle by Newark, and King, as an honorably discharged veteran, has a statutory right to peddle. N.J.S.A. 45:24-9. Twenty-five years ago the Chancery Division enjoined the enforcement of a predecessor ordinance regulating peddlers, Germano v. Keenan, 25 N.J. Super. 37 (1953), and ten years ago in an unreported opinion the Appellate Division declared unconstitutional an ordinance enacted in 1978. This case requires us to review the most recent amendment contained in Newark Revised Ordinance, title 8, chapter 7, section 6, adopted on October 3, 1979 (N.R.O. 8:7-6). Plaintiffs seek a declaration of the invalidity of the ordinance and an injunction against its enforcement.
No statement of purpose accompanies the ordinance, and the parties disagree on its intended purpose. The peddlers contend that the purpose of the ordinance is to eliminate competition with retail merchants, and Newark argues that the purpose is to avoid congestion on the City's sidewalks and to protect the rights of abutting property owners, many of whom are retail merchants.
Our analysis begins with the basic principle that municipalities have broad power to enact and enforce ordinances to protect the public health, safety, and welfare. Chamber of Commerce of U.S. v. State, 89 N.J. 131, 155 (1982). Furthermore, the Legislature has specifically authorized municipalities to license and regulate peddlers. N.J.S.A. 40:52-1(c). As legislative action, municipal ordinances, like statutes, are presumptively valid. Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564 (1975). Legislatures, both state and local, are better situated than courts to make policy decisions concerning public health, safety, and welfare. As broad as is the police power, however, it is constrained by guarantees of due process, Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 301
(1976), and of equal protection, Barone v. Department of Human Servs., 107 N.J. 355, 364-73 (1987), in the federal and state constitutions.
In the present case, the municipal exercise of police power manifests itself in an economic regulation of the legitimate business of peddling. For various reasons, including potential problems of street and sidewalk congestion, government has often viewed peddlers with suspicion. Concerns about economic competition and obstruction of their premises have led more established businesses, such as retail merchants, to object to the presence of peddlers. Our review, conducted in light of the diverse interests of the municipality, the peddlers, and the public, involves consideration of the purpose of the peddling ordinance and the means used to achieve that purpose. In conducting our review, we are guided by principles of substantive due process and equal protection.
Economic regulations, such as those regulating peddling, need be only rationally related to a legitimate state purpose to satisfy requirements of substantive due process. Williamson v. Lee Optical of Okla., 348 U.S. 483, 488, 75 S. Ct. 461, 464, 99 L. Ed. 563, 572, reh'g denied, 349 U.S. 925, 75 S. Ct. 657, 99 L. Ed. 1256 (1955). If an economic regulation is not arbitrary, capricious, or unreasonable, and the means selected bear a rational relationship to the legislative objective, the regulation should be sustained. Joseph H. Reinfeld, Inc. v. Schieffelin & Co., 94 N.J. 400, 413 (1983); Piscataway Township Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, appeal dismissed, 454 U.S. 1025, 102 S. Ct. 560, 70 L. Ed. 2d 470 (1981); Robson v. Rodriguez, 26 N.J. 517, 522 (1958). As a corollary, courts should not substitute their judgment for that of a legislative body, at least when the regulation is reasonably related to a legitimate governmental interest. Williamson, supra, 348 U.S. at 487, 75 S. Ct. at 464, 99 L. Ed. at 571.
Furthermore, a legislative act, whether a statute or ordinance, must not be so vague that a person of ordinary
intelligence is unable to discern what it requires, prohibits, or punishes. Hudson Circle Servicenter, Inc., supra, 70 N.J. at 301. No one should be criminally responsible for conduct that could not reasonably be understood to be proscribed. State v. Lashinsky, 81 N.J. 1, 17 (1979). That principle applies to the subject ordinance, a violation of which carries a potential maximum fine of $500 and a ninety-day term of imprisonment.
As distinguished from standards governing due process claims, federal equal protection analysis involves different tiers or levels of review. If a fundamental right or suspect class is involved, the legislative classification is subject to strict scrutiny, Barone, supra, 107 N.J. at 364-65; Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985), which requires that a statute further a compelling state interest and that there be no less restrictive means of accomplishing that objective. Barone, supra, 107 N.J. at 365 (citing Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971)). When it regulates a "semi-suspect" class, a legislative act is examined under "intermediate scrutiny," and must be substantially related to the achievement of an important governmental objective. Barone, supra, 107 N.J. at 365 (citing Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), reh'g denied, 429 U.S. 1124, 97 S. Ct. 1161, 51 L. Ed. 2d 574 (1977)). If, as here, the enactment does not affect a suspect or semi-suspect class and does not attempt to regulate a fundamental right, it need be only rationally related to a legitimate state interest to satisfy federal equal protection requirements. Ibid. (citing Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491, reh'g denied, 398 U.S. 914, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970)).
When conducting equal protection analysis under article I, paragraph 1 of the New Jersey Constitution, we have rejected a multi-tiered analysis and employed a balancing test. Barone, supra, 107 N.J. at 368; Greenberg, supra, 99 N.J. at 567; Right to Choose v. Byrne, 91 N.J. 287, 308-09 (1982). "In striking the balance, we have considered the nature of the
affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Greenberg, supra, 99 N.J. at 567. Although stated differently, an equal protection analysis of rights under article I, paragraph 1 of the New Jersey Constitution, like an analysis of equal protection and due process under the fourteenth amendment of the United States Constitution, may lead to the same results. Id. at 569.
In this case, we are not concerned with either a fundamental right or a suspect class. For equal protection purposes, the ordinance satisfies the United States Constitution if it is rationally related to a legitimate state interest. The ordinance satisfies the State constitution if, on balance, the regulation, considering the public need, does not unduly restrict the right of the peddlers to engage in their business. Greenberg, supra, 99 N.J. at 567. Similarly, for substantive due process purposes, the ordinance is valid if it reasonably relates to a legitimate legislative purpose and is neither arbitrary nor discriminatory. Joseph H, Reinfeld, Inc., supra, 94 N.J. at 413.
Newark contends generally that each section of the ordinance bears a reasonable relationship to the legitimate purpose of regulating pedestrian and vehicular traffic, and in preventing obstruction of ingress to and egress from the stores of adjacent merchants. Plaintiffs challenge the ordinance as arbitrary, impossible of compliance, irrational, vague, unreasonably burdensome, and prohibitory. In addition, they assert that the purpose of the ordinance is not to relieve traffic congestion, but to shield local merchants from competition.
The ordinance contains nineteen sections. Of these, twelve sections regulate the location of the peddler's cart on the sidewalks of Newark; four sections regulate the size and configuration of the carts; and three sections regulate other aspects of the peddler's business, including hours of operation and retention of receipts. Before us, the peddlers do not
challenge nine sections ((a), (b), (c), (g), (i), (j), (k), (r), and (s)), and we limit our review to the remaining sections ((d), (e), (f), (h), (l), (m), (n), (o), (p), and (q)).
We begin with section (d), which provides that no peddler shall
[s]tation, place, set up or maintain his cart or vehicle, or allow it to remain at the same location on any sidewalk or street at a time when a sale is not being transacted.
Newark defines "peddler" as:
any person commonly referred to either as a peddler or hawker, who goes from place to place or from house to house by traveling on the streets and carries with him goods, wares and merchandise for the purpose of selling or delivering them to consumers or any person who has goods, wares and merchandise of any description sent from place to place or from house to house by traveling on the streets for the purpose of selling and delivering goods to consumers. [N.R.O. 8:7-1.]
That definition comports generally with "peddler" as defined by our cases. Huband v. Evans, 114 N.J.L. 586, 588 (Sup.Ct.1935); Pevey v. Greenberg, 101 N.J.L. 435, 436-37 (Sup.Ct.1925); Shapiro v. Newark, 44 N.J. Super. 530, 534 (Law Div.1957). Although peddling is a legitimate occupation, the right to peddle is the right to go from place to place selling one's wares, not the right to remain indefinitely at a fixed location. Township of N. Bergen v. Lord, 131 N.J. Super. 280, 283 (App.Div.1974) (citing Newark v. Germano, 20 N.J. Super. 143 (Essex County Ct.1953)). The right to peddle is limited by the rights of the abutting owners to unobstructed access to their property and by the public's right of passage over streets and sidewalks. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 151 (1981). Consequently, a municipality may not designate a sidewalk as a public marketplace, see State v. Laverack, 34 N.J.L. 201, 206 (Sup.Ct.1870); and the operation of a fixed place of sale, such as a newsstand, would constitute a trespass on the public easement, 823 Broad St. v. Marcus, 17 N.J.Misc. 25, 28 (Essex County Ct.1939).
The peddlers acknowledge these limits on their rights, but assert that by requiring them to move unless they are making a
sale, the ordinance defeats the purpose of reducing sidewalk congestion. The reason is that while vending, the peddlers place their carts among fireplugs, telephones, parking meters, and bus stops in an "amenities zone" three feet from the curb. Forcing them to move their carts from that area unless they are making a sale will engender, not eliminate, sidewalk congestion.
At oral argument, counsel for the City of Newark conceded that "sale" should be interpreted "broadly" and in light "of common sense" to include not only the act of selling, but also the opportunity to display goods and to interact with potential customers. According to its counsel, Newark never intended that a peddler should move after selling to one customer. The point of the ordinance, as explained by counsel, is to prevent a peddler from remaining in one place indefinitely. Counsel states that if a peddler is making sales, he or she may remain in one location all day.
Furthermore, Newark acknowledges that even if a peddler must move from a particular location, he or she also satisfies the ordinance by moving to another location in the same general area. So construed, the apparent purpose of the ordinance is to prevent sidewalk congestion that obstructs the ingress and egress to the stores of adjacent merchants. In this regard, the record reveals that the sidewalks in the downtown area average twenty feet in width and that they are not normally congested. Arguably, therefore, the purpose of the ordinance may be best achieved by not unnecessarily forcing peddlers to move their carts along the public sidewalks.
As written, the ordinance lacks precision, a problem that is exacerbated because of its penal sanctions. See Lashinsky, supra, 81 N.J. at 17 (penal sanctions should not be imposed for conduct not reasonably understood as proscribed). If the ordinance is read literally as permitting vendors to remain in place only while they are making a sale, it is not rationally related to the purpose of reducing sidewalk congestion. See
Russell v. Town of Pittsford, 94 A.D. 2d 410, 464 N.Y.S. 2d 906 (1983) (town ordinance prohibiting peddlers from remaining stationary except in direct response to a request to purchase is unconstitutional as unduly restrictive because not reasonably related to alleviation of traffic congestion and preservation of town's aesthetics; ordinance also impermissibly vague). That defect not only renders the statute unconstitutional, as counsel for the peddlers contends before us, but arguably would place it beyond the power delegated to municipalities to regulate peddlers. See Town of Nutley v. Forney, 116 N.J. Super. 567, 578 (Law Div.1978); 6A E. McQuillin, Municipal Corporations 30 (3rd ed. 1988).
To the extent that requirement is relaxed, the ordinance suffers from vagueness. As we have written:
Vagueness "is essentially a procedural due process concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17 (1979). The vagueness test "demands that a law be sufficiently clear and precise so that people are given notice and adequate warning of the law's reach." Town Tobacconist v. Kimmelman, supra, 94 N.J.  at 125 n. 21.
A penal statute should not become a trap for a person of ordinary intelligence acting in good faith, but rather should give fair notice of conduct that is forbidden. Cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S. Ct. 675, 685, 58 L. Ed. 2d 596, 609 (1979) (disapproving statute that was found to be little more than a trap for those acting in good faith); In re DeMarco, 83 N.J. 25, 37 (1980); State v. Lashinsky, supra, 81 N.J. at 18. A defendant should not be obliged to guess whether his conduct is criminal. Nor should the statute provide so little guidance to the police that law enforcement is so uncertain as to become arbitrary. Kolender v. Lawson, 461 U.S. 352, , 103 S. Ct. 1855, 1860, 75 L. Ed. 2d 903, 910 (1983). [ State v. Lee, 96 N.J. 156, 165-66 (1984).]
The problem with the interpretation suggested by Newark's counsel is that no peddler would have the slightest notion how long before or after a sale he or she would be permitted to remain in place. The interpretation would subject the peddlers to the virtually unlimited discretion of the police, to whom the ordinance gives no guidance. That conclusion requires that we revisit Mr. Softee v. Mayor and Council of Hoboken, 77 N.J. Super. 354 (Law Div.1962), which is cited by both parties. ...