On certification to the Superior Court, Appellate Division.
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the Court was delivered by STEIN, J.
This appeal requires the Court to determine the validity of a municipal ordinance that bans hawking, peddling, or vending in a
statutorily-authorized Special Improvement District (SID). The ordinance exempts from the prohibition pushcart peddling conducted by and adjacent to restaurants that operate in the SID. Plaintiff is a food vendor holding a license under a State statute that gives armed-services veterans the right to peddle. He challenged the municipal ordinance on the grounds that it (1) exceeded the State's delegation of legislative powers to the municipality; (2) conflicted with plaintiff's statutory right to peddle; (3) violated federal and state constitutional due-process and equal-protection guarantees; and (4) violated federal and state antitrust laws. The Chancery Division upheld the validity of the ordinance and the Appellate Division affirmed. We granted plaintiff's petition for certification, 134 N.J. 481 (1993), and now affirm.
Plaintiff Louis Fanelli owns and operates a vending cart from which he sells food and beverages such as frankfurters, meatball sandwiches, doughnuts, soft drinks, and coffee. Plaintiff is licensed by the State pursuant to N.J.S.A. 45:24-9, which grants honorably-discharged military personnel, among others, "the right to hawk, peddle and vend any goods, wares or merchandise * * * within this State, by procuring a license * * *." Plaintiff estimates that he has held such a license for approximately twenty to thirty years.
Plaintiff's cart is five-feet long and three-and-one-half-feet wide, weighing an estimated one-thousand pounds. Plaintiff stands inside the cart when serving his customers and has no employees. He transports the cart to his desired location by securing it to a trailer hitch on his car. Once plaintiff moves the cart into position for business, the cart remains stationary.
In May 1988 plaintiff began operating his cart in the City of Trenton (the City or Trenton) at State and Montgomery Streets. That location is across the street from a pedestrian mall known as "the Commons." Both plaintiff's location and the Commons are part of a SID that Trenton created in 1986 pursuant to N.J.S.A.
40:56-65 to -89. See Trenton, N.J., Ordinance No. 86-27 (Apr. 1, 1986). To operate in Trenton, plaintiff had to obtain a permit at a cost of $250 and comply with the applicable regulations.
In September 1988 Trenton passed Ordinance No. 88-78, which amended the City's SID ordinance. Ordinance No. 88-78 stated in pertinent part:
[The SID ordinance] shall be and is hereby amended to provide certain limitations on the uses to be permitted in the [SID] by concessionaires, vendors, peddlers and hawkers to promote economic growth and employment within the [SID], by means of the following amendment * * * :
WHEREAS, N.J.S.A. 40:56-65 et seq. provides for the creation of a [SID] * * * to assist municipalities in promoting economic growth and employment within business districts; to provide the municipality with the broadest possible discretion to establish by local ordinance, self help programs most consistent with the local needs, goals and objectives; and, to permit the governing body to protect the public welfare and health and the interest of the public in the safe and effective movement of persons and to preserve and enhance the function and appearance of the business districts; and
WHEREAS, the governing body finds that vending, hawking or peddling of any foods, beverages, confections, goods, wares, merchandise or commodities of any nature * * * within the [SID] will undermine the economic growth and employment within the [SID] and will inhibit the safe, convenient and effective movement of persons and detract from the function and appearance of the [SID]; and
WHEREAS, the governing body finds that vending, hawking or peddling of any foods, beverages, confections, goods, wares[,] merchandise or commodities of any nature * * * within the [SID] should be prohibited unless specifically authorized by [the] City Council pursuant to rules and regulations formally adopted by [the] City Council in accordance with the standards enunciated in N.J.S.A. 40:56-65 et seq.
NOW THEREFORE, the Council of the City of Trenton ordains:
Plaintiff operated his cart at the State-and-Montgomery location until October 1988, when he learned of the ordinance and ceased
operating in Trenton. Plaintiff sought a temporary restraint on enforcement of the ordinance through an order to show cause, but was denied injunctive relief. Subsequently, plaintiff obtained leave to amend an existing complaint challenging another Trenton ordinance*fn1 to add challenges to the validity of the SID ordinance. In a second ...