Opinion
Civil Action No. 99-1633 (JBS).
March 9, 2000.
Louis M. Barbone, Esq., Arthur J. Murray, Esq., Jacobs Barbone, Atlantic City, N.J., Attorney for Plaintiff.
Nona L. Ostrove, Esq., Subranni Ostrove, Voorhees, N.J., Attorney for Defendant.
OPINION
In this case, plaintiff James Callista seeks permanent injunctive relief, as well his costs and reasonable attorneys' fees, from defendant, the Board of Commissioners of the Borough of Longport, based on the defendant's repeal of an ice cream peddling ordinance under which plaintiff had previously been licensed to sell ice cream products on the beaches of the Borough of Longport. On May 26, 1999, the Honorable Joseph E. Irenas denied plaintiff's request for temporary injunctive relief in the form of a writ of mandamus requiring the defendant to issue a license to plaintiff. Now before the Court is defendant's motion for summary judgment on the merits of plaintiff's claims. For the reasons stated below, defendant's motion will be granted, and this case will be dismissed.
I. Background
The undisputed facts are as follows. On March 27, 1996, defendant passed Ordinance No. 96-02, which authorized the peddling of ice cream products on the beaches of the Borough of Longport with a limit of three licenses. The Ordinance limited the number the beach peddler licenses to be issued to three, drawn by lottery if the number of applicants who otherwise met the criteria (age 18, resident of Atlantic County, approval by police chief based on lack of criminal history, applicant agrees to indemnify defendant) exceeded the number of available slots. (Def.'s Aff. Opp. Mandamus Ex. A.) The Ordinance held that
[a] person holding a beach peddler's license in good standing from the prior summer season . . . may reapply no later than the first Tuesday of February of the following year in the same form and manner as required of all other applicants generally. If his or her application is approved by the Chief of Police and the Board of Commissioners of the borough, the application will be given priority over all other applications and not be subject to the lottery. However, if such applicant submits his or her application after the last day for application submission, then no preference shall be accorded to said applicant.
(Id.) The Ordinance further stated that "[l]icenses shall not be transferrable and must be renewed each year by filing a new application with background and fingerprinting in the same manner as a new application," and that "[n]otwithstanding anything contained herein to the contrary, the borough is under no obligation to renew any license from one year to the next or any subsequent year." (Id.) Plaintiff received a license to peddle ice cream in accordance with that Ordinance in 1996, 1997, and 1998.
In February of 1999, plaintiff reapplied again for a license for the summer season of 1999. His application was denied because the Ordinance through which his license had previously been issued was repealed through Ordinance No. 02-1999. The latter Ordinance was introduced and first read to the public on January 20, 1999, was published on January 29, 1999, and was subject to a second reading/public hearing on February 17, 1999. (Def.'s Aff. Opp. Mandamus Ex. B.) Plaintiff appeared at that public hearing and spoke in opposition to the proposed repeal of the ice cream peddling ordinance. (Id. at Ex. C.) The Mayor and the two Commissioners agreeing that the then-present form of ice cream vending on the beaches was "not in the interest of public health, safety, and welfare" (id.), Ordinance No. 02-1999 passed, and Ordinance No. 96-02 was repealed. Thus, plaintiff's application for a renewal license was denied.
Plaintiff then filed a Complaint in this Court on April 7, 1999. In the Complaint, the plaintiff alleged that defendant violated his procedural and substantive due process rights. Additionally, the plaintiff alleged that Ordinance 02-1999 should be declared unconstitutional on its face and as applied because this ban on selling ice cream on the beaches, in the face of knowledge that the defendant still allows the sale of beach badges, creates both equal protection and First Amendment problems. Finally, plaintiff alleged that the ban on sale of ice cream on beaches violates the public trust doctrine. Plaintiff sought a temporary restraining order/writ of mandamus ordering the defendant to issue a license to him before the Memorial Day holiday weekend. Judge Irenas held oral argument on May 26, 1999, and in an oral opinion disposed of each of the issues except the public trust doctrine. He held that plaintiff had not shown a likelihood of success on any of his arguments.
Thereafter, on May 19, 1999, the Borough Commissioners adopted Ordinance 10-1999, allowing again for a limited number of licenses. (Def.'s Aff. Opp. Mandamus Ex. D.) Pursuant to that Ordinance, the Borough solicited bids for three franchises for selling ice cream and ice cream products on public beaches. Bids were due on Tuesday, June 1, 1999, at 10:00 a.m. (Id. at Ex. E.) Certain conditions were to be placed on those who placed the highest bids and received licenses, including wearing white, tidy clothing without advertisement on it and using only verbal means (as opposed to bells, whistles, or horns) to sell their products. (Id.; see also Resolution No. 1999-68 (adopted June 16, 1999), in Hewson Certif. Ex. B.) Plaintiff appeared and placed a bid, but he was not the highest bidder (Resolution No. 99-59, in Hewson Certif. Ex. A), and thus he could not sell products on the beaches and was not subject to the rules of Resolution No. 1999-68.
Plaintiff originally noted that he would be amending his complaint to question the constitutionality of the limitations on vendors in No. 1999-68. To date, the Complaint has not been amended to challenge either the ordinance or the resolution adopting the amended rules and regulations contained therein.
II. Standard of Review
The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Plaintiff argues that this Court should deny the motion for summary judgment because discovery has been stayed pending the outcome of this motion and summary judgment is inappropriate before discovery has been completed. However, pursuant to Federal Rule of Civil Procedure 56(f), parties that believe it is too early for summary judgment because facts essential to their opposition to the motion could not be within their control prior to discovery have the ability to file affidavits so stating. Here, plaintiff did not file a 56(f) statement verifying that it cannot respond to the summary judgment motion in the absence of discovery. Moreover, the facts which plaintiff claims are in dispute — namely, the amount of money and effort plaintiff expended in his ice cream business over the years — are entirely within the plaintiff's control; discovery of defendant's knowledge would not add to plaintiff's ability to defend this motion. Therefore, this Court will address defendant's motion for summary judgment on the merits.
III. Discussion
A. Procedural Due Process
Plaintiff first contends that defendant took away his property right in a license without due process of law. He contends that because defendant issued him a license in 1996, 1997, and 1998, because defendant's original Ordinance provided him, a previous license-holder, with an advantage in receiving a license in 1999, and because he spent money on his business in reliance on the Ordinance, the granting of a license was a mere ministerial act. Thus, the repeal of Ordinance No. 96-02 violated his procedural due process rights because his property rights were taken away without an opportunity for a neutral judicial hearing first. Plaintiff's claim fails because he did not have a property right in a 1999 license.
As plaintiff explains,
Property interests are not created by the federal constitution. They are created and defined by an independent source such as state law. . . . A property interest is more than a mere expectation. It is a `legitimate claim of entitlement which is protected by the due process clause of the Fourteenth Amendment. . . .Gibson v. Supermarkets General Corp., 564 F. Supp. 50, 56 (D.N.J. 1983). Plaintiff cites numerous cases from outside of this jurisdiction as support for the notion that the issuance of a license vests a property right in the license's holder, more than a mere privilege or expectation. See McCauley v. City of Jacksonville, 739 F. Supp. 278 (E.D.N.C. 1989) (if substantial expenditures in good faith reliance on license, municipality cannot simply revoke the permit without some sort of hearing); Olympic Drive In Theater, Inc. v. Pagedale, 441 S.W.2d 5 (Mo. 1969) (permit holder, who operated four years in same place in reliance on permit, has vested right in the permit); O'Connor v. Moscow, 202 P.2d 401 (Idaho 1949) (zoning law inoperative to existing businesses because it constituted a taking without due process); Peginis v. Atlanta, 63 S.E. 857 (Ga. 1989) (invalidating law which labeled as a nuisance a particular business which had been operating under a license).
Each of those cases is correct, but each is also distinguishable from the present case. In the cases plaintiff cites, the plaintiffs were operating under current licenses or permits and their rights in those currently operating licenses were hampered by government action. In the instant case, on the other hand, plaintiff was not a license holder whose license was revoked. Under Ordinance 02-96, licenses to sell on the beaches from Memorial Day to Labor Day expired each year and would not be automatically renewed. Thus, plaintiff's 1998 license was no longer operable when he applied in 1999, and defendant's decision to repeal the Ordinance under which he was previously granted licenses did not act to revoke an existing license.
Moreover, plaintiff had nothing more than a unilateral expectation that he would receive a license in 1999. According to Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1971), "[t]o have a property interest in a benefit, 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." Id. at 577. Those "entitlements" can be found in existing rules or independent sources such as state law. Id. In the Roth case, the Court found that the nontenured teacher was not entitled to a hearing before the Board of Regents decided not to rehire him because the teacher's employment contract made no provision for renewal at all, and thus, while plaintiff may have had an abstract expectation of being rehired, plaintiff did not have an entitlement to employment. Id. Likewise, in the instant case, Ordinance No. 02-96, under which plaintiff received licenses in 1996, 1997, and 1998, specifically states that the "borough is under no obligation to renew any license from one year to the next," and past licensees are still required to apply for a new license.
Based on these facts, plaintiff had nothing more than an expectation of receiving a new license, not a property in a license. Furthermore, due process requires only notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." See Richardson v. Eastover, 922 F.2d 1152, 1160 (4th Cir. 1991) (citing Matthews v. Eldridge, 424 U.S. 319 (1976)). Here, plaintiff was afforded some due process rights, as defendant held a public hearing before repealing Ordinance No. 02-96, at which plaintiff was present and spoke. He was apprised of the pendency of the repeal and had an opportunity to present his objection. See Richardson, 922 F.2d at 1160. Though plaintiff actually had no property right and thus no entitlement to due process, this legislative process for adopting ordinances accorded full procedural due process.
Therefore, plaintiff's procedural due process rights were not violated when the defendant repealed Ordinance No. 02-96.
B. Substantive Due Process
Plaintiff contends that defendant violated substantive due process under the Fourteenth Amendment because Ordinance No. 02-1999 is an unreasonable, arbitrary, or capricious law, or because that Ordinance is not rationally related to any legitimate objective. See Sea Girt Restaurant and Tavern Owners Assoc., Inc. v. Sea Girt, 625 F. Supp. 1482, 1491 (D.N.J. 1986), aff'd, 802 F.2d 445 and 802 F.2d 448 (3d Cir. 1986).
The sale of ice cream on a beach is not a fundamental right, and unless it is denied to those of a suspect class (discussed infra), its denial is subject only to rational basis review, questioning whether it is rationally related to legitimate objective of the governing body. See Fanelli v. Trenton, 135 N.J. 582, 592-93 (1994). See also Sea Girt, 625 F. Supp. at 1492 (rational basis review regarding the sale of liquor). The question is whether there is a rational basis for passing an ordinance repealing an ordinance allowing for licenses for three vendors to sell ice cream.
New Jersey has recognized that local municipalities may regulate the business of peddling under their police powers. See Moyant v. Paramus, 30 N.J. 528, 543 (1959). But see N.J. Good Humor, Inc. v. Board of Comm'rs of Borough of Bradley Beach, 124 N.J.L. 162 (Ct. Of Errors and Appeals 1940) (noting that under police power, must be regulating for the public interest and not to protect local property values or local businesses). New Jersey law specifically allows municipalities to "make, amend, repeal, and enforce ordinances to license and regulate . . . (c) . . . hawkers, peddlers,. . . ." N.J.S.A. 40:52-1. Though there is an exception for honorably discharged veterans who reside in the state, who can otherwise peddle, N.J.S.A. 45:24-9, the exception does not extend to public beaches or public boardwalks. Id. Local municipalities may thus ban peddling on the public beaches or boardwalks altogether. The repeal of Ordinance No. 02-96 was within the defendant's power.
The remaining question is whether there was some rational reason within the defendant's police power for repealing the ordinance. Defendant claims that people had been complaining about the beach vendors, and thus defendant repealed Ordinance No. 02-96 with plans to institute a licensing plan which sold licenses to the highest bidder, along with accompanying hour, product, and uniform restrictions. The record bears out this explanation, which is a rational explanation, not arbitrary or capricious. Therefore, Ordinance No. 1999-02 survives substantive due process review.
Plaintiff never amended the Complaint to include Ordinance No. 1999-02, and thus that statute's constitutionality is not before this Court.
C. Equal Protection and First Amendment
The Complaint alleges that Ordinance No. 1999-02 violates the First Amendment and the equal protection clause of the Fourteenth Amendment, both on the face of the Ordinance and as applied. According to plaintiff, it is unfair for the defendant to ban vending of ice cream on its beaches while allowing the sale of beach badges on the beaches. Additionally, plaintiff contends, because one must speak in order to sell either ice cream or beach badges, defendant's decision to allow the sale of beach badges but not ice cream constitutes a content-based restriction of speech. This Court need not engage in either equal protection or First Amendment analysis, however, because plaintiff's arguments as to both claims are premised on incorrect facts.
Though the Complaint alleges that beach badge sales were banned altogether by Ordinance No. 1999-02, this Court cannot ignore the uncontroverted evidence of record that defendant did not simply ban the sale of ice cream on the beaches, but rather replaced an older set of regulations for vendors with a new mechanism for picking vendors and regulations to control those vendors. Thus, contrary to the Complaint's allegation, both beach badge sales and ice cream sales are allowed on the beach. Plaintiff's claim that defendant violated the First Amendment and the equal protection clause by disallowing ice cream sales while simultaneously allowing beach badge sales therefore fails.
At oral argument on the temporary restraining order, plaintiff noted that defendant's later ordinances allowing for the sale of three licenses to the highest bidders place restrictions on the methods which those licensees may engage in selling ice cream, and plaintiff contended that perhaps those restrictions violate the First Amendment. That argument is not properly before this Court for several reasons. First, plaintiff did not amend the Complaint to include the substance of the later ordinances. Second, unless plaintiff could prove to this Court that defendant violated a statute or constitutional provision by selling licenses only to the highest bidder, plaintiff would likely lack standing to challenge the content of the restrictions on the 1999 ice cream vendors, as he was not among the highest bidders and did not receive a license to sell at all. Therefore, this Court could not decide whether the restrictions on ice cream vendors in 1999 violate the First Amendment, nor could this Court compare the restrictions on 1999 ice cream vendors to the restrictions, if any, on beach badge vendors.
D. Public Trust Doctrine
Finally, the Complaint alleges that because the New Jersey Supreme Court has recognized the unique suitability of ocean front property for bathing and other recreational activities and has given effect to a statewide policy of encouraging greater access to ocean beaches for recreational purposes, defendant has violated the public trust doctrine by making an unreasonable regulation of activities on its beaches. This claim must fail because while that doctrine guarantees access to the beaches for recreational uses, it does not extend to the commercial sale of products on New Jersey beaches. Lusardi v. Curtis Point Property Owners Ass'n, 86 N.J. 217 (1981) (public trust doctrine guarantees access to beaches for recreational purposes).
IV. Conclusion
For the foregoing reasons, none of plaintiff's claims can survive summary judgment. The accompanying Order, granting summary judgment for defendant, is entered.
ORDER
This matter having come before the court upon defendant's motion for summary judgment; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this ___ day of March, 2000 hereby
ORDERED that defendant's motion for summary judgment be, and hereby, isGRANTED.
JUDGMENT to be entered for defendant.