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Mark's Advanced Towing, Inc v. City of Bayonne and Robert Sloan

March 22, 2012


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-864-10.

Per curiam.


Argued February 27, 2012 -

Before Judges Parrillo, Skillman and Hoffman.

Plaintiff Mark's Advanced Towing was licensed by the defendant City of Bayonne to tow motor vehicles under a municipal ordinance that requires any company seeking to tow at the direction of the Bayonne Police Department to obtain a license to engage in this activity. An application for such a license is reviewed by the Chief of Police. If the Chief denies an application, this denial may be appealed to the City Council.

The rates that a licensed towing company may charge for police-directed towing are governed by the ordinance. In August 2008, the Chief of Police suspended Mark's towing license for two weeks because it had been overcharging Bayonne for towing municipal vehicles. Mark's reimbursed Bayonne for the overcharges and did not appeal the suspension to the City Council.

In August 2009, the Police Chief advised Mark's that he had again received complaints that it was overcharging for towing vehicles and that a hearing would be held regarding those alleged ordinance violations, which could result in a suspension or revocation of its license. The original date for the hearing was adjourned, and before the hearing was rescheduled, Mark's 2009 towing license expired.

In December 2009, Mark's applied to the Police Chief for a renewal of its license for the 2010 calendar year. However, because of the pending complaints for overcharging, the Police Chief did not act upon this renewal application. Despite the fact that Mark's license had not been renewed, the Police Department continued to allow Mark's to conduct police-directed tows.

Although the Police Chief withheld action on Mark's application for a renewal of its license, he granted towing licenses for the 2010 calendar year to two of Mark's competitors, Logan's Towing and Tumino's Towing. Thereafter, these towers and Mark's were called by the Police Department for police-directed tows on a rotating basis.

On January 6, 2010, Mark's filed a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, asking for "any and all applications for towing license for the City of Bayonne including renewals, for license year 2010." The Law Department responded that the request was "unduly burdensome, vague and onerous. . . . A request this vague cannot be complied with." Mark's faxed a document clarifying his OPRA request on January 12, 2010, stating that its request was limited to "any application, whether it is a new application or renewal application, submitted to the City of Bayonne for a towing license which would be effective for the license year 2010." The City did not respond, and later claimed that it had never received the clarifying fax.

Mark's then filed this action in lieu of prerogative writs against the City, its clerk, Robert Sloan, and Logan's and Tumino's. The complaint sought three forms of relief: (1) an order directing the City to turn over the requested OPRA documents and award attorney's fees; (2) an order directing the City to issue Mark's a 2010 towing license; and (3) revocation of Logan's and Tumino's 2010 towing licenses.

Pursuant to the trial court's direction at a case management conference held shortly after the filing of Mark's complaint, the City provided Mark's with the Logan's and Tumino's license renewal applications that had been the subject of its OPRA request. This directive was memorialized by an order entered on April 1, 2010.

In September 2010, the City and Sloan moved for summary judgment with respect to Mark's other claims. After hearing oral argument, the trial court ordered the Police Chief to conduct a hearing within ten days regarding the proposed suspension of Mark's towing license and, if the Police Chief's decision resulted in a suspension, ordered the City Council to conduct a hearing within 20 days of the Police Chief's decision.

The court also determined in a written opinion issued on October 22, 2010 that the City had failed to produce the documents that were the subject of Mark's OPRA request until "compelled to do so" by the court's April 1, 2010 order. The court further determined that "the City intentionally violated OPRA," and that "the present litigation was a catalyst" for the City's compliance with Mark's OPRA request. Accordingly, the court determined that Mark's was entitled to an award for the attorney's fees it reasonably incurred in pursuing its OPRA claim. However, the court determined that Mark's submission in support of its request for attorney's fees was insufficient to determine a reasonable award. Therefore, it denied the request for attorney's fees without prejudice.

In addition, the trial court determined in the same October 22, 2010 opinion that Mark's lacked standing to challenge the issuance of towing licenses to Logan's and Tumino's and that in any event the Police Chief's decision to issue licenses ...

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