On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-204-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
In response to requests from residents, the City of New Brunswick (the City) appointed a committee to review the quality of existing taxi service and the need for additional taxi service. In response to study recommendations, the City Council adopted an ordinance allowing the issuance of five additional taxi licenses subject to public bid, with a $50,000 minimum bid, and imposing additional requirements regarding taxi operations within the City. The City appeals from an order invalidating the public bidding procedure and the minimum bid as ultra vires. Plaintiffs*fn1 All Nations Taxi (All Nations) and Acapulco Taxi (Acapulco) appeal from the order dismissing their other claims that the regulatory provisions are void for vagueness, have been selectively enforced against out-of-town taxi operators, restrict plaintiffs' right to travel, and infringe on their search and seizure rights. We affirm.
All Nations operates a taxicab company in Milltown. Acapulco operates a taxicab company in Bound Brook. Both are licensed by the municipalities in which they are located. Neither company is licensed in the City, although the owners of each company bid for a license when the City authorized the issuance of five additional licenses.
The Taxi Service Review Committee (the Committee), commissioned by the New Brunswick City Council, recommended the creation of five additional taxicab licenses that would be subject to public bid, with a minimum bid of $50,000. The Committee suggested enhanced quality of service standards, improved inspection procedures, and adoption of an "implied consent" ordinance for random stops to verify licensure, insurance and equipment standards. The Committee also recommended additional operational requirements including stricter enforcement of the existing ban on "cruising" for fares, and sharp limitations on stopping and standing while in service. Finally, the Committee suggested that taxicabs not licensed in the City should be allowed to pick up passengers in another town and discharge them in the City, or pick up a passenger in the City and discharge the passenger in another town. An out-of-town licensed taxicab could not pick up and discharge a passenger in the City.
The City Council amended the existing taxi ordinance*fn2 in early 2004. The Amended Taxi Ordinance of 2004 (ATO) incorporated virtually all of the recommendations of the Committee. It established annual fees of $250 for the operation of a taxi and $60 for the renewal of a taxi driver license. The ATO provides for the thorough and careful inspection of all taxis by the police department prior to the issuance of a taxicab license. The police department must also inspect the taxis every three months to ensure safety, cleanliness and fitness. On September 21, 2005, the City Council amended the ATO to remove the language requiring that police "shall maintain a constant vigilance over all taxicabs" to ensure safe and clean equipment and authorizing police to stop and inspect any taxi at any time. The 2005 amendment to the ATO authorized the director of police to assign only one member of the department to conduct periodic physical inspections of the taxicabs.
Section 5.100.190 of the ATO provided originally that a taxicab cannot park on the streets of the City, except at designated taxi stands, or on private property unless the property is owned by the owner or operator of the taxicab. In September 2005, the City Council amended this provision to provide that the owner or operator can park a taxicab at his home or at another location in the City when the owner or operator is conducting personal business, other than taxi services. Section 5.100.250 of the ATO also provides that a taxicab in service cannot stop except to receive or discharge passengers or in response to a traffic signal or at the direction of a police officer.
Following the adoption of the ATO in 2004, the owners of All Nations and Acapulco complained that they received an excessive number of tickets and summonses for alleged violations of the amended ordinance. Eusebio Lopez, the owner of Acapulco, asserted that he received numerous tickets for picking up fares in the City. He alleged that one ticket was issued when he was with two friends and had neither sought nor accepted a fare in the City. Felix Perez, the son of Olegario Vasquez, the owner of All Nations, asserted that he received a ticket when he stopped at a store to buy milk. During 2004, All Nations was charged with 165 violations of Title 39 of the New Jersey Statutes, including citations for unsafe operation and careless driving, improper discharge of passengers, and failure to provide proper child restraints. All Nations also received over sixty summonses for violations of the taxi ordinance, including excessive use of a horn, improper parking, and operating an unlicensed taxi. Acapulco received numerous citations for violations of Title 39 and the ATO. At the time of the return date of the order to show cause filed by plaintiffs, over 150 summonses had been issued and the resolution of many of those summonses was stayed pending disposition of plaintiffs' complaint.
The City offered five new taxicab licenses at public bid. Vasquez, on behalf of All Nations, successfully bid $74,000. Lopez on behalf of Acapulco, successfully bid $75,000. At the time of the return date of the order to show cause, each owner paid the required deposit but failed to pay the remainder of the balance.
On January 6, 2005, plaintiffs filed a verified complaint and an order to show cause with temporary restraints challenging various provisions of the ATO. In Count One, plaintiffs allege that the number of authorized licenses is arbitrary and the procedure and cost for acquisition of a license is an improper and unauthorized revenue raising measure. In Count Two, plaintiffs allege that the prohibition against unlicensed taxicabs from picking-up and discharging passengers within the City and the limitations on parking places an undue burden on their right to travel.
In Count Three, plaintiffs allege that the ATO allows the police unfettered authority to stop and search taxicabs without reasonable suspicion of any regulatory violation. In Count Four, plaintiffs allege that the ATO is unconstitutionally vague and overbroad because it bestows excessive discretion on the police and municipal court. Finally, in Count Five, plaintiffs allege that the City selectively enforced the terms of the ATO against out-of-town taxicabs, many of which are owned by Hispanics with Hispanic clientele.
On the return date of the order to show cause, Judge Longhi declined to impose temporary restraints regarding the enforcement of the ATO. A consent order stayed the adjudication of all summonses issued ...