CHAYIM GOODMAN v. THE TOWNSHIP OF LAKEWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2436-11T1

CHAYIM GOODMAN, t/a ALL THE

WAY TOWING,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF LAKEWOOD IN THE

COUNTY OF OCEAN, NEW JERSEY,

Defendant-Respondent.

__________________________________

November 13, 2012

Argued October 16, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3494-09.

Larry S. Loigman argued the cause for appellant.

Daniel F. Corrigan argued the cause for respondent (Bathgate, Wegener & Wolf, attorneys; Mr. Corrigan, of counsel and on the brief).

PER CURIAM

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.

I.

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 trade without undue interference. Finally, Goodman again sought injunctive relief and damages. Lakewood filed its answer in December.

A three-day bench trial took place in 2010. The issues addressed at trial were:

(1) [i]s the ordinance at issue arbitrary, capricious [or] unreasonable; (2) does the ordinance at issue violate the provisions of N.J.S.A. 40:48-2; (3) is the ordinance at issue a valid exercise of municipal powers; (4) is the ordinance at issue invalid as applied warranting injunctive relief.

Lakewood Township Police Captains Gregory Miick and Michael Mooney testified about police practices for calling towing operators, referred to as "wreckers," to accident scenes. Miick described the procedure as follows:

[W]e find out if [the car owners] have a wrecker in mind to call. If they do, we call them for them or they call themselves. If they have no wrecker, we call our wrecker, on duty wrecker. Once the on duty wrecker is called, takes their cars.

Mooney testified that Lakewood police officers are required to honor a motorist's request to employ a private tower when there is no immediate danger to others. He said there is a "formal policy that every police officer has received and signed for that he read and understands them."

Goodman presented testimony from three customers, Maurice Isra Rosenberg, Avrohom Fishman, and Benzion Kushner. According to Rosenberg, he rear-ended another vehicle in February 2010. The accident occurred when Rosenberg was distracted by a police officer issuing a ticket at the side of the road. At the time, Rosenberg said there was "lots of rubbernecking and [the traffic] was going slowly because the police officer was there with [flashing] lights." After he had pulled to the side of the road, he told the police officer that he wanted to call Goodman, whose services he had used in the past. Rosenberg testified that the officer rejected his request.

Rosenberg further testified that, although he had not called him, Goodman nevertheless arrived at the scene. The police officer told Goodman that he could not tow Rosenberg's vehicle. It was towed by the licensed tower called by the police, who refused to tow it to the location preferred by Rosenberg.

Fishman testified that he sought to use Goodmans' services following his wife's minor motor vehicle accident in late 2007 or early 2008. According to Fishman, after his wife telephoned him about the accident, he telephoned his brother-in-law, who in turn contacted Goodman. After Fishman arrived at the scene, he told the officer at the scene that Goodman had been called. The officer responded, "[S]orry, we have our own." Fishman testified:

I said you know, he is coming. So Mr. Goodman came on the scene.

They told him he can't do anything. My wife was on the side of the road. The bus was on the side of the road and the officer said, you still can't do anything. The police truck came. I said I would rather Mr. Goodman. They said no.

According to Fishman, he was charged $75 by the licensed tower for taking the car to a nearby parking lot, and subsequently paid Goodman to have it taken somewhere for repair.

Kushner testified regarding a 2009 automobile accident involving his wife. On his way to the scene of the accident, Kushner called Goodman. According to Kushner, his wife told the police that they had called their own tow truck. When Kushner arrived at the scene of the accident, approximately ten to fifteen minutes after the accident, both Goodman and the licensed tower were at the scene. Goodman, however, testified that he arrived at the accident scene prepared to tow the vehicle ten or fifteen minutes before the tow truck called by police. Goodman testified that his witnesses were representative of dozens of similar occurrences, comprising approximately fifty-percent of the calls he receives to tow vehicles following accidents.

The judge reserved decision, and then issued a twelve-page letter opinion on September 27, 2010. He held that, while Goodman "presented some evidence where he may have not been afforded the opportunity to provide a private tow to clients or other persons who had solicited his services at the scene of an accident," the problem was "a training issue and not a basis to enjoin the application of the Ordinance or declare the same null and void." The judge concluded that the amended ordinance was not "void for vagueness" and did not vest "unbridled discretion with the police officer at an accident scene." An order dismissing the first and second counts of Goodman's complaint was entered on October 19, 2010.

When Goodman sought to pursue the third count, which sought damages, Lakewood moved for summary judgment. Following argument on December 16, 2011, the judge put an oral decision on the record and entered an order dismissing the third count. This appeal followed.

II.

On appeal, Goodman argues that the trial judge erred in refusing to invalidate Lakewood's amended towing ordinance and in dismissing the third count of his amended complaint on summary judgment.

With respect to the amended ordinance, Goodman argues that its provisions exceed a municipality's authority to regulate towing companies and that it is enforced in an arbitrary manner. We are persuaded by Judge Vincent J. Grasso's comprehensive letter opinion, which correctly concludes that the amended ordinance does not exceed the regulatory authority conferred by N.J.S.A. 40:48-2.49.

Unlike the ordinance invalidated in DeFalco Instant Towing, Inc. v. Borough of New Providence, 380 N.J. Super. 152, 158-59 (App. Div. 2005), Lakewood's ordinance did not have a provision favoring towing companies located within its municipal borders. The Lakewood ordinance is actually more permissive than the statute requires, in that it could have precluded towers, such as Goodman, from operating at all if they did not comply with all of the licensing requirements.

We also agree with Judge Grasso's conclusion that Section 4-6.8 of the ordinance, which allows a police officer to "take control of the management of the emergency or hazardous condition and the towing procedures necessary to effect the remedy" if the officer "determines that an emergency or hazardous condition exists that must be remedied immediately," is not void for vagueness and does not vest "unbridled discretion" in the police officers. The judge's conclusions, (1) that the section at issue is "reasonably tailored," (2) that Lakewood police officers are appropriately trained, and (3) that "[t]he record does not support a finding that the Ordinance is applied unfairly or improperly restricts the . . . conduct of [Goodman's] business," are supported "by adequate, substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Goodman also argues that the judge should not have dismissed count three of the amended complaint on motion. We have reviewed that issue and find it to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Judge Grasso's decision on the damages claim was based upon the findings of fact and conclusions of law that resulted from the trial. Because the judge had already determined that the amended ordinance was valid and that the glitches concerning implementation were not the result of arbitrary action on the part of the police, there was no legal basis for the damages sought in count three.

Affirmed.