On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3855-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Carchman and Parrillo.
Plaintiff, Citywide Towing, Inc. (Citywide), appeals from the January 9, 2009 summary judgment dismissal of its federal civil rights complaint against defendant Township of Dover (Township) arising out of defendant's April 11, 2006 decision not to issue plaintiff a towing license to tow on public property. We affirm.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. Plaintiff is engaged in the business of private towing in Dover Township, contracting with owners of various shopping centers and apartment complexes to remove vehicles from those private properties since 2003. Pursuant to a local ordinance governing issuance of towing licenses by the Township Committee, in the Fall of 2005, plaintiff applied for a towing license to tow for the Township in 2006. Under the ordinance, only a limited number of towing licenses are issued, and only licensed towers may engage in the removal of vehicles from the Township's public streets and ways.
Towing from public property is done under the direction and supervision of the Township's Police Department, which, under the ordinance, is responsible for conducting background investigations of the applicants for licensure. Pursuant to this authorization, the department's Chief of Police conducted a background check of plaintiff and as a result of this investigation, recommended against issuing a license to plaintiff, although the inquiry did not reveal any criminal or motor vehicle violations on plaintiff's part. By resolution of April 11, 2006, the Township Committee awarded a license to Accurate Towing, granted two license renewals to Grones Wrecker*fn1 and Price Right, and denied licensure to plaintiff.
Plaintiff filed a complaint against the Township on December 11, 2006, pursuant to 42 U.S.C.A. § 1983, alleging that the denial of licensure violated its due process and equal protection rights under the United States Constitution and the federal statute. Plaintiff claimed a deprivation of a property interest without due process of law and unequal treatment as an "out-of-town" tower because none of the other license applicants had to undergo a background check. Plaintiff also alleged that since 2005, defendant, through its Police Department, had engaged in a campaign to harass and defame plaintiff by making negative comments and complaints about plaintiff's business practices to its private clients.
Defendant answered, denying the allegations, and after the completion of discovery, moved for summary judgment. Following argument, Judge Thomas O'Brien granted defendant's motion dismissing plaintiff's complaint with prejudice. The judge found that, to the extent plaintiff's complaint sounds in the state common law claim of tortious inference with business, such a claim is barred for plaintiff's failure to provide adequate notice of claim as required by the New Jersey Tort Claims Act, N.J.S.A. 59:8-7, 8. As to plaintiff's federal civil rights and constitutional claims, Judge O'Brien reasoned:
In order to invoke the [D]ue [P]rocess [Clause] of the Fourteenth Amendment to the United States Constitution, Plaintiff must show that it has a property interest in being selected as a municipal tower by Defendant. To have such an interest, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents v. Roth, 408 U.S. 564, 577 [, 92 S.Ct. 2706, 2709, 33 L.Ed. 2d 548, 561] (1972). There is no property interest for [D]ue [P]rocess purposes if a government official may grant or deny the right at their discretion. Town of Castle Rock, Colorado v. Gonzalez, 545 U.S. 748, 756 [, 125 S.Ct. 2796, 2803, 162 L.Ed. 2d 658, 669] (2005).
In this case, Plaintiff does not vault the first hurdle required for consideration of a Due Process violation. Plaintiff did not have a legitimate claim of entitlement to a position as a municipal tower. Roth, [supra,] 408 U.S. at 577 [, 92 S.Ct. at 2709, 33 L.Ed. 2d at 561]. Rather, Plaintiff had a desire to be a municipal tower, applied for such a position[,] and was denied licensure based on the findings of a police department background check. Id. Further, Plaintiff could not have a property interest for [D]ue [P]rocess purposes because this decision was left to the discretion of the chief of police in Dover Township. Town of Castle Rock, supra,] 545 U.S. at 756 [, 125 S.Ct. at 2803, 162 L.Ed. 2d at 669].
Because Plaintiff does not have a property interest for [D]ue [P]rocess purposes, this court need not consider procedural versus substantive [D]ue [P]rocess analysis. Defendant's actions do not constitute a violation of Plaintiff's due process rights under the Fourteenth Amendment to the United States Constitution. No rational jury could find that Plaintiff has a protected property interest in a position as a licensed municipal tower. Brill, [supra,] 142 N.J. at 523. Because there is no genuine issue as to any material fact regarding Plaintiff's interest in licensure as a municipal tower, Defendant is entitled to summary judgment on this point. Rule 4:46-2[(c)].
A claimant may not simply re-label a due process claim as a claim under the Equal Protection clause. Rivkin [v. Dover Township Rent Leveling Bd.,] 143 N.J. [352,] 380 [(internal citations omitted), cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L.Ed. 2d 198 (1996)]. Further, bringing an equal protection claim against a municipal agency requires a distinct measure of proof because "the majesty of the Equal Protection Clause should not be invoked every time that applications are incorrectly denied by a municipal agency." Id. In order to sustain a claim under the Equal Protection [C]lause of the Fourteenth Amendment a plaintiff must show that he was singled out because of membership in a distinct class and not merely a victim of government incompetence. Id. at 381.
In this case, Plaintiff claims that it was treated differently from similarly situated towing companies because of its status as an "out of town" towing company. However, the evidence presented to this Court does not show such disparate treatment. Of the four applicants who were considered for a municipal towing license, two were merely renewing their license. A third, Accurate Towing, was considered and recommended for licensure on September 22, 2005. It should be noted that though Plaintiff had a principal place of business in Hawthorne, [N.J.], it did have ...