FRANK J. FULLBROOK v. THE MAYOR AND MEMBERS OF CITY COUNCIL OF THE CITY OF CAMDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK J. FULLBROOK, LIAQAT ALI,

t/a BROADWAY FOOD COURT, ALI S.

KAHN, CROWN FRIED CHICKEN, LE

GUAN WO and GREAT WALL CHINESE

RESTAURANT,

Plaintiffs,

v.

THE MAYOR AND MEMBERS OF CITY

COUNCIL OF THE CITY OF CAMDEN, a

Municipal Corporation of the State

of New Jersey,

Defendants.

____________________________________

7-ELEVEN, INC.,

Plaintiff-Appellant,

v.

CITY OF CAMDEN, DANA L. REDD,

as Mayor of the City of Camden,

CITY COUNCIL OF THE CITY OF CAMDEN,

Defendants-Respondents.

_____________________________________

November 7, 2013

 

Argued September 25, 2013 Decided

 

Before Judges Sapp-Peterson, Maven and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5662-11.1

 

Andrew Bayer argued the cause for appellant (GluckWalrath LLP, attorneys; Mr. Bayer, of counsel; William C. Katz, on the brief).

 

John C. Eastlack, Jr. argued the cause for respondents (Weir & Partners, LLP, attorneys; Mr. Eastlack and Daniel E. Rybeck, on the brief).

 

PER CURIAM

Plaintiff, 7-Eleven, Incorporated (7-Eleven) appeals from the May 13, 2013 trial court order denying its application to set aside Ordinance MC-4629 (Ordinance) adopted by defendant, City of Camden (City). The Ordinance regulates the hours of operation of certain businesses located within 200 feet of a residential zone. Following a bench trial, the trial court found the Ordinance represented a valid exercise of the City's police power and dismissed the action. We agree and affirm.

On August 9, 2011, the City adopted the Ordinance, which provides in pertinent part:

Section 3. Restaurants, retail food establishments, retail sales and personal services businesses to be closed during certain hours.

 

A. Restaurants, retail food establishments, retail sales, and personal services businesses located within a Residential Zone or within two hundred (200) feet of a Residential Zone, may operate in the City only within the time restrictions set forth in the section:

 

1. Sunday through Thursday: 6:00 a.m.

to ll:00 p.m.

 

2. Friday through Saturday: 6:00 a.m.

to 12:00 a.m.

 

The Ordinance identified its purposes as including to:

Improve the quality of life for residents in the residential areas of the City, particularly during the late night/early morning hours.

 

Decrease the incidence of arrests, criminal activity, nuisance complaints, and littering associated with large crowds of individuals congregating in, or in close proximity to, residential areas in the City during the late night/early morning hours, which individually and collectively have a negative impact on the quality of life for residents.

 

Discourage activities that compromise the public safety of residents and business patrons in certain areas of the City during the late night/early morning hours.

 

Provide for the efficient, effective and economical provision of scarce government resources in addressing each of the aforementioned purposes.

. . . .

 

Reduce the crowds of individuals who are attracted to businesses located in, or in close proximity to, residential areas in the City, which businesses remain open during the late night/early morning hours when similar businesses in other parts of the City have long since closed.

 

Discourage crowds of individuals from congregating not only on the main streets and thoroughfares, but also onto adjoining residential streets, lots and parking areas, which prevents neighborhood residents from sleeping, safely walking their streets and enjoying the peace and quiet of their homes.

 

Reduce the incidence of disorderly conduct and criminal activities, including loitering, littering public drinking, drug dealing, noise, disturbance and other unlawful acts during the late night/early morning hours, which would lead to a commensurate reduction in the need for police presence and calls for police service in, or in close proximity to, residential areas.

 

Reduce debris in residential areas from improperly discarded food containers, wrappings, bottles, cans, utensils, and decomposing food products.

Plaintiff filed an action in lieu of prerogative writs challenging the Ordinance as an arbitrary and unreasonable exercise of the City's police powers. Prior to plaintiff commencing its action, Frank H. Fullbrook, Liaqat Ali, t/a Broadway Food Court, Ali S. Kahn, Crown Fried Chicken, Le Guan Wo, and Great Wall Chinese Restaurant filed a similar action challenging the Ordinance. The two matters were consolidated for trial.2 Plaintiffs claimed the Ordinance bore no "reasonable and substantial relationship to the public interest to be advanced thereunder." They additionally claimed that enforcement of the Ordinance would cause significant harm, and jeopardize their continuing ability to provide food and beverages to the City's residents.

The court conducted a seven-day bench trial at which numerous witnesses testified. Plaintiffs produced seven witnesses: Michael Bertha, 7-Eleven s Market Manager for Southern New Jersey; James A. Williams, Ph.D., the former Chief of Organized Crime Drug Enforcement Task Forces for the Federal Drug Enforcement Agency and a former municipal police chief; Jennifer3 Beahm, a professional planner admitted as an expert in land use and planning; Jon A Meyer, Ph.D., a former professor of criminology at Rutgers-Camden, admitted by the court as an expert in criminology; Frank Fullbrook, a community activist, City resident, and property owner; and Ali Kahn and Liaqat Ali, co-owners of a number of eateries located in the City. The City presented two witnesses: (1) Deputy Chief Michael Lynch of the Camden County Police Department; and (2) Jerry Ratcliffe, Ph.D., who was admitted as an expert in crime scene science.

Dr. Meyer testified she conducted a study using city-wide crime data prepared in 2007, and compiled a list of the businesses impacted by the Ordinance. She opined that the crime data, when compared with the locations of the late-night eateries, reflected that the crimes were being committed within one block or more from the businesses affected by the Ordinance. She discussed "displacement," a concept in the field of criminology, as standing for the proposition that ordinances or prevention measures do not eliminate unwanted activity, but rather, moves unwanted activity elsewhere. She expressed the opinion that a more effective crime deterrent would be to enact a curfew for people around select locations rather than forcing the restaurants to close.

Kahn and Ali testified that enforcing the Ordinance would result in their businesses losing significant gross revenues. However, neither witness produced any competent evidence to support this contention. Moreover, while under cross-examination, Kahn admitted he pays some of his employees "under the table."

Dr. Williams, who was permitted to testify as an expert in law enforcement, security policies, practice procedures and training, testified that the Ordinance was not likely to reduce crime. He opined that

people who are engaged in criminal activities do so in an area where they are most familiar. . . . All in all, criminals are territorial and whether or not a store or a building is opened or closed or even on a position, it has nothing to do with the criminal activity that takes place in that area.

 

He additionally testified that if stores are closed, store clerks are not present, the lighting the stores would normally emit would not be available and there may be an increased likelihood of crimes being committed in those areas.

In his testimony, Bertha, 7-Eleven's Market Manager for stores in the Southern New Jersey region, described the 7-Eleven business model as keeping its stores open 24 hours a day, 7 days a week, 365 days a year. He testified that he supervises eighty-eight stores and that eighty-six of them are operated on a twenty-four hour basis; only two operated under restricted hours in the late night and early morning, one located in Trenton and one located in Haddonfield. He stated that another store in the Borough of Seaside Park also operated with restricted hours.

Bertha explained the financial breakdown between the franchisees and the Southland Corporation (7-Eleven). He testified that one of the two stores that would be affected by the Ordinance earns between $66,000 and $67,000 annually in net profit paid to the franchisee, and the other store earned approximately $50,000 to $52,000 per year in net profits paid to the franchisee. He further estimated that thirty percent of the stores' sales would be lost if the Ordinance were to be imposed. He did not testify that the Ordinance would result in the closure of the affected 7-Eleven stores.

Beahm, plaintiffs' professional planning expert, testified she actually viewed the Ordinance as land use legislation, which should have been presented before the Planning Board or Zoning Board of Adjustment for approval. Beahm explained that had this process been followed, the hours of operation for each affected establishment would have been determined based upon the individual applicant's circumstances without the necessity to enact the underlying Ordinance. She opined that she did not believe the Ordinance would reduce noise because structure rather than horizontal distance attenuates noise.

Dr. Ratcliffe, defendant's expert, testified that he performed a study, which focused "late night eateries." He stated that City police provided him with a list of thirty-seven establishments located in the City and that he narrowed the list to twenty-six establishments. He testified that he was

able to compare crime around the eateries in question to what we would generally expect crime to be around commercial premises during those late-night, early morning hours. And what I found was around the eateries in question that nighttime violent crime, the density of crime, was just over, it was about two times higher than [what] we would expect for violent crime. And I found that disorder activity was two and a half times higher than the average that we would expect around a number of commercial premises. When I looked at comparing the crime around the eateries to a selection of residential locations, the nighttime violent crime around the eateries was over three and a half times higher than [what] we would expect around an average of crime around residential premises for that time of night.

 

During cross-examination, he conceded the businesses themselves were not necessarily the cause of the criminal activity. He did, however, maintain that there was a correlation between the heightened levels of crime around late night eateries when compared to other areas of the City where there were no late night eateries.

The final witness was Deputy Chief Lynch of the Camden County Police Department. He testified he appeared before City Council, at the request of the Assistant City Attorney, before the Ordinance was adopted and provided an overview of crime hot spots in the City through a PowerPoint court presentation. He explained that he utilized crime data representing the period from January 1, 2010 through June 12, 2011. Based upon his review of the data, he determined there is increased pedestrian and vehicular traffic, loud noise, trash, fights, loud conversation, shouting, and other activities that go along with illegal activities. He believed the Ordinance would serve as a tool to help alleviate those problems.

On April 19, 2013, Judge F. J. Fernandez-Vina issued a nineteen-page opinion upholding the Ordinance as a valid exercise of the City's police powers. He made findings relative to the testimony and evidence presented. Specifically, he reviewed the maps of the City Dr. Meyer relied on during her testimony. He noted the areas on the map depicting the late night eateries indicated higher crime rates than those areas where no late night eating establishments are located. He discounted her opinion that if eateries were to remain open, customers could serve as potential witnesses against suspected criminals, and found it irrelevant to the Ordinance's stated purposes.

Likewise, he found Dr. Meyer's testimony about displacement in the context of the Ordinance confusing and unpersuasive, concluding that her opinion only supported the idea that "nothing should be done." He additionally noted that she utilized data from a 2007 study to support her opinions and had not performed any analysis of a similar type for the current Ordinance.

Judge Fernandez-Vina next assessed the testimony of Kahn and Ali, concluding their testimony was vague and unsupported by data. He specifically noted that there had been no quantification of the losses claimed by the proprietors except for a report, which he barred "as prepared in anticipation of litigation and provided without any supporting documentation for what were essentially summaries."

The judge rejected Dr. Williams's opinion that a closed business was more likely to attract criminals than an open business. Rather, he concluded that "if businesses are closed then any individuals gathering in those areas would be more easily detected because they would have no legitimate reason for being on the premises." The judge characterized Dr. Williams's testimony as essentially positing that "nothing really works therefore nothing should be tried other than general policing." He additionally found that Beahm's testimony was diminished by her unfamiliarity with ordinances regulating the use of businesses in towns where she had been a planner and therefore undermined her argument that the Ordinance was a land use ordinance.

On the other hand, Judge Fernandez-Vina noted that Dr. Ratcliffe, in reaching his opinion, relied upon crime data City police used to focus their resources in crime reduction and also explained the methodology he utilized to reach his opinion. The judge further noted the testimony of Deputy Chief Lynch, whose testimony was based upon his personal knowledge, "as to activity that goes on around late night eateries" in the area.

The judge concluded plaintiff failed to carry its burden to demonstrate the Ordinance was arbitrary and unreasonable. Rather, the judge found "the [O]rdinance is reasonably related to the stated purpose" of "improving the quality of life for the residents in residential areas." The present appeal ensued.

On appeal, plaintiff contends the trial court failed to consider relevant evidence that would demonstrate the Ordinance was of general application. Additionally, plaintiff contends the court erred in finding that the Ordinance was reasonably likely to increase the quality of life for the City's residents. Finally, plaintiff urges that imposition of a business curfew, within what plaintiff nominally characterizes as residential zones, "is not sufficiently likely to reduce crime to justify restricting 7-Eleven's lawful operation of its business to the substantial detriment of its franchisees and the public at large." We reject each of these contentions and affirm substantially for the reasons expressed by Judge Fernandez-Vina in his April 19, 2013 written opinion.

"Municipalities have the power by statute to enact ordinances in support of their police power to the extent that such ordinances advance the protection of persons and property, and are for the preservation of the public health, safety and welfare of the municipality and its inhabitants." Southland Corp. v. Twp. of Edison, 217 N.J. Super. 158, 172 (App. Div. 1987) (internal citation and quotation marks omitted). N.J.S.A. 40:48-2 provides:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

 

An ordinance adopted by a municipality pursuant to the exercise of its police powers is presumptively valid and while this presumption is rebuttable, a heavy burden is placed upon the party seeking to overturn the ordinance. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 55 (2009) (citing Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564 (1975)). Thus, "factual support for the [municipal governing body's] judgment will be presumed and, absent a sufficient showing to the contrary, it will be assumed that the [ordinance] rested 'upon some rational basis within the knowledge and experience of the [municipal governing body].'" Burton v. Sills, 53 N.J. 86, 95 (1968) (quoting Reingold v. Harper, 6 N.J. 182, 196 (1951)), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).

To overcome a municipal ordinance's presumed validity, something more is required beyond proof that the stated purpose of the ordinance could be achieved through what is perceived as a less burdensome course of action. See Bryant v. City of Atl. City, 309 N.J. Super. 596, 610 (App. Div. 1998) (holding that "[w]hen two actions are open to a municipal body, municipal action is not arbitrary and capricious if exercised honestly and upon due consideration, even if an erroneous conclusion is reached.")(citing Worthington v. Fauver, 88 N.J. 183, 204 05, (1982)). Thus, "if any state of facts may reasonably be conceived to justify the ordinance, it will not be set aside." Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 448 (1980)(citing Hutton Park Gardens, supra, 68 N.J. at 564-565). Consequently, a municipal ordinance's presumption of validity "can be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the [municipal governing body] . . . [that] would rationally support a conclusion that the enactment is in the public interest." Hutton Park Gardens, supra, 68 N.J. at 564 65.

Informed by these standards, we reject plaintiff's contention that Judge Fernandez-Vina's decision was reached without his consideration of the relevant evidence. Rather, the record demonstrates that plaintiff failed to satisfy its heavy burden of demonstrating that no set of facts known to the governing body could rationally support a finding that the Ordinance's enactment served the public interest. Ibid.

By way of illustration, the data depicted on the City maps Dr. Meyer relied upon to support her opinions indicated that there were higher crime rates around late night eateries than those areas where no late night eating establishments were located. Thus, from the maps alone, it may reasonably be inferred that there is a correlation between regulating the hours of operation of certain establishments and the presence of crime in those locations. Hence, the maps supported the rational conclusion reached by Dr. Ratcliffe and Deputy Chief Lynch that the Ordinance would further its stated purposes.

What plaintiff presented was essentially testimony opining that the Ordinance would have no appreciable impact upon crime reduction, rather than evidence which established that no set of facts could rationally support the conclusion the Ordinance "served the public interest." Ibid. Additionally, even if we were to conclude the Ordinance would have no impact upon crime reduction, reducing crime was only one of the Ordinance's stated purposes. Plaintiff presented no evidence challenging the Ordinance's other stated purposes, such as decreasing "nuisance complaints," "[r]educing debris in residential areas," and "[r]educing crowds of individuals who are attracted to businesses located in, or in close proximity to, residential areas in the [C]ity[,] which businesses remain open during the late night/early morning hours when similar businesses in other parts of the City have long since closed."

Moreover, Judge Fernandez-Vina found that some of the factual data upon which opinions were based dated back to 2007 credited the opinions reached through consideration of more current crime data. His findings in this regard are entitled to deference. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Likewise, we are not persuaded that the carve-out exceptions in the Ordinance for holders of plenary retail consumption or retail distribution licenses provide a basis to reverse the judge's decision. As the City notes, holders of liquor licenses, which are regulated on a statewide basis by the Division of Alcoholic Beverage Control, N.J.A.C. 13:2-23.6(b), are subject to liability for the activities of their patrons. However, businesses such as 7-Eleven or Crown Fried Chicken cannot be held liable for the actions of third parties, who, for example, are selling drugs, fighting, loitering, or creating excessive noise. Further, revoking a liquor license removes the undesired activity for all individuals at the location, whereas arresting and convicting an individual for violations of the Criminal Code, whether inside or outside a business, is solely directed against that particular offender.

Additionally, the Ordinance does not apply to all late night eateries in the City. It is undisputed that businesses, including a 7-Eleven on Cooper Street and gasoline stations on Admiral Wilson Boulevard, are not subject to the Ordinance. Consequently, the Ordinance is distinguishable from the ordinance rejected in Fasino v. Mayor & Members of the Borough Council, 122 N.J. Super. 304 (Law Div. 1973), where the ordinance required all businesses to close from 11:00 p.m. to 6:30 a.m.

Finally, we find no merit to plaintiff's attempt to defeat the validity of the Ordinance by urging that a 1999 ordinance, with similar restrictions, had no considerable impact upon crime in the City. Plaintiff presented no competent evidence to support this contention. Moreover, the earlier ordinance which primarily restricted take-out restaurants located within the City's residential zones, from operating during late night and early morning hours, affected only three businesses.

In short, the mere fact that plaintiff presented testimony from its experts questioning the appreciable impact of the Ordinance on crime reduction and presented evidence to support alternative methods of achieving crime reduction does not render the method chosen arbitrary, capricious, or unreasonable. Nor did such evidence satisfy plaintiff's heavy burden to present proofs that "preclude[d] the possibility that there could have been any set of facts known to the [municipal governing body] . . . [that] would rationally support a conclusion that the enactment [was] in the public's interest." Hutton Park Gardens, supra, 68 N.J. at 564 65.

Affirmed.

1 Docket No. L-4699-11, Frank J. Fullbrook, et al. v. Mayor and Members of City Council of the City of Camden, is not part of this appeal.

2 7-Eleven is the only party who filed a notice of appeal from the trial court ruling.

3 The trial court opinion misidentifies Ms. Beahm as "Jessica Beahm."