On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3494-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 16, 2012 - Before Judges Fisher and Waugh.
Plaintiff Chayim Goodman, who operates an automobile towing business under the name All The Way Towing, appeals from the judgment of the Law Division dismissing his complaint against defendant Township of Lakewood (Lakewood). We affirm.
We discern the following facts and procedural history from the record on appeal.
On July 6, 2006, Lakewood adopted an amended ordinance regarding the use of tow trucks. The purpose of the towing ordinance, according to Section 4-6.1, is to provide for the establishment of a licensed towing operator list to be utilized when necessary by the Police Department to provide quick, safe and reasonably priced towing and wrecker services for abandoned, disabled or wrecked vehicles and the regulation of said operators, and to keep the flow of traffic as free as possible, as authorized by N.J.S.A. 40:48-2.49. All towing operators while on duty shall operate as independent contractors and nothing herein shall be deemed to establish a principal agent relationship between the Township of Lakewood and licensed towers, this section is to regulate the operation of the wreckers and fees charged.
Section 4-6.8 provides in pertinent part as follows:
No towing operator, licensed under this section, shall respond to the scene of an accident except upon the request of the driver or owner of the vehicles involved or except upon the request of the Police Department. If the owner or driver requests a private towing service to respond to the accident scene it will be the responsibility of that responding company to clean up the accident scene or they will not be allowed to tow the vehicle.
If a Police Officer determines that an emergency or hazardous condition exists that must be remedied immediately, the Officer shall take control of the management of the emergency or hazardous condition and the towing procedures necessary to effect the remedy. The Officer shall dispatch a towing operator(s) licensed pursuant to this section and that licensed towing operator(s) shall be solely responsible to removal of any vehicles.
As required by those provisions, the Lakewood Police Department maintains a list of licensed towing operators, who are called to the scene of automobile accidents or disabled vehicles on a rotating basis. Goodman is not a "licensed towing operator," having elected not to seek a license. Nevertheless, he is generally permitted to respond to calls from individuals for towing services following accidents in Lakewood. There were, however, instances when he came to the scene but was not allowed to perform the tow.
In August 2006, Goodman filed a verified complaint against Lakewood, seeking to enjoin the township from "enforcing any provision of its ordinances regulating the operation of a towing business, and declaring the same void and of no effect" and from "imposing any restrictions, qualifications, or conditions not contained in a properly adopted ordinance." He also sought damages, costs, and fees. Lakewood answered in August 2006. The matter was dismissed without prejudice on June 3, 2008, pursuant to a settlement providing that Goodman could render towing assistance to customers at their request, as long as he did not hamper police operations. The settlement was subject to the approval of Lakewood officials. It is not clear from the record whether the proposed settlement was ever approved.
In September 2009, Goodman filed an amended complaint, which related back to August 2006. He again alleged that the provisions of the amended ordinance were "arbitrary, capricious and unreasonable." Goodman further alleged that the ordinance's implementation and enforcement by the Lakewood police had been arbitrary, capricious and unreasonable, constituting an abuse of discretion. In addition, he alleged that Lakewood had violated his right under the constitutions of the United States and New Jersey to engage in his ...