NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1451-16T4
CARCOL ENTERPRISES, LLC,
Plaintiff-Appellant,
v.
CENTRAL LICENSE BUREAU OF THE CITY OF ELIZABETH and CLARA GOODRIDGE,
Defendants-Respondents. ____________________________
Submitted February 12, 2018 – Decided July 18, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0748- 16.
Hugo Villalobos, attorney for appellant.
William R. Holzapfel, City Attorney, attorney for respondents (Raymond T. Bolanowski, First Assistant City Attorney, on the brief).
PER CURIAM
Plaintiff Carcol Enterprises, LLC, appeals from a Law
Division order dismissing its complaint in lieu of prerogative
writs challenging defendant Central License Bureau of the City of Elizabeth's (Bureau) suspension and revocation of plaintiff's
license to operate its limousine service. Because there was
insufficient credible evidence supporting the Bureau's decision
to suspend and revoke plaintiff's license, we reverse.
I.
In pertinent part, Elizabeth City Ordinance No. 3156 (1999),
now codified in its City Code, Elizabeth, N.J., Elizabeth City
Code ch. 5.20.030 (2017), provides that "[n]o limousine . . .
service having its principal place of business in the city shall
operate hereafter upon the streets of the city without first
complying with the provisions of N.J.S.A. 48:16-14 [and -16 to 18]
and receiving" a license. Plaintiff operated a limousine service
with its principal place of business in Elizabeth and, for several
years prior to 2015, had a limousine license issued by the Bureau.
On March 2, 2015, the Bureau's Chief License Inspector Clara
Goodridge sent plaintiff a letter suspending and revoking its
limousine license. In the letter, Goodridge asserted plaintiff
was "operating an illegal taxicab service" instead of the limousine
service the Bureau had licensed. Specifically, Goodridge alleged
plaintiff was:
(1) Not providing a premium ride.
(2) Not providing a premium fare consistent with local area [l]imousine [c]ompanies.
2 A-1451-16T4 (3) Not keeping proper logs.
(4) Not giving prices to customers.
(5) Not returning to [its] principal place of business after each ride.
(6) Not keeping proper financial records.
Plaintiff appealed the suspension and revocation in
accordance with Chapter 5.20.090(C) of the City Code, which
provides for an appeal hearing before Elizabeth's "mayor or
designee." Elizabeth's Assistant Business Administrator Marie
Krupinski was designated hearing officer, and conducted a hearing
during which the Bureau called Goodridge as its witness, and
plaintiff called its secretary, Maria Mendez, to testify on its
behalf.
At the commencement of the hearing, the Bureau's counsel
requested that the following documents be respectively marked for
"identification" as exhibits C-1 to C-5: the March 2, 2015 letter
from Goodridge to plaintiff; a series of pages containing the
limousine fares charged by other limousine service companies; a
2010 settlement agreement between plaintiff and Elizabeth; a March
13, 2015 petition containing signatures from Elizabeth taxi
drivers complaining about plaintiff's operations; and February 27,
2015 investigative reports from Bureau investigators Mary Aliseo
3 A-1451-16T4 and Stanley Sremcevic.1 Plaintiff's counsel objected to certain
documents and, in response, the Bureau's counsel advised that the
documents were "only being marked for identification," and that
it was therefore unnecessary to address plaintiff's objection.
Later in the hearing, the Bureau's counsel also referred to the
schedule of fares charged by other limousine services and stated
it had not been "introduced yet," but had been marked only for
identification. The Bureau never moved any of the exhibits marked
for identification2 into evidence.
During Mendez's testimony, plaintiff's counsel similarly
marked certain documents for identification, such as plaintiff's
price sheets, logs sheets, and instructions to drivers and
dispatchers, but did not request their admission in evidence. We
therefore limit our discussion of the evidence presented at the
hearing to the witnesses' testimony.
Goodridge testified her job responsibilities include
oversight of Bureau operations. She received complaints from
1 During the colloquy concerning the exhibit including the investigative reports, counsel referred only to Aliseo's report. The record, however, otherwise shows Sremcevic's report was also included in the exhibit. 2 During the hearing, the Bureau's counsel also marked for identification copies of the City Code provisions concerning limousine services as exhibit C-6 and the results of a search investigators ran on plaintiff's business as exhibit C-7.
4 A-1451-16T4 plaintiff's customers, drivers and competitors about its
operations and the fares plaintiff charged. She stated she
personally called plaintiff at an unspecified time, asked for a
taxi, and was told plaintiff would send a vehicle in twenty
minutes.
Goodridge provided general and limited testimony concerning
the violations alleged in her March 2, 2015 letter. Without
describing the sources of her knowledge, she said she discovered
plaintiff's drivers were not providing its customers with a
"premium ride," which she defined as a prearranged limousine ride
during which the drivers open their vehicle's doors for the
customers and pull up to the customers' homes instead of picking
them up in the middle of the street.
She also testified plaintiff was not charging a "premium
fare," as required by state statute. See N.J.S.A. 48:16-13 and
-13.1 (defining limousines in part by the requirement that they
charge a premium fare). She opined that a premium fare is the
customary rate charged by the other limousine service providers
licensed by the Bureau, and explained these rates were no less
than $40, with some charging either a higher rate or a fixed hourly
rate of $40 or more. Goodridge testified plaintiff's records
showed it charged rates as low as $8.00, and fares of $12.50 for
rides within Elizabeth's city limits, which were only slightly
5 A-1451-16T4 higher than the $7.00 to $9.00 fares Elizabeth taxis charged for
providing the same services.
Goodridge rejected plaintiff's position that its $12.50 fare
is a premium fare because it is significantly higher than those
charged by taxis. She explained plaintiff was aware it was
required to charge fares consistent with "industry standards,"
because plaintiff agreed to charge such fares under a 2010
settlement agreement between plaintiff and Elizabeth.3 Goodridge
also testified she contacted plaintiff on one occasion, requested
the fare for a limousine service within Elizabeth's city limits,
and was informed she would be charged $8.00 when, at the time, the
other licensed limousine services charged a minimum of $40.00 for
the same service.
Goodridge also testified plaintiff did not maintain proper
logs detailing the dispatch of its vehicles. The Bureau's counsel
marked plaintiff's dispatch log sheets for identification, but
Goodridge did not provide any testimony about the alleged manner
in which plaintiff failed to comply with any applicable legal
requirements related to the completion of the log sheets. As
noted, the log sheets were never introduced into evidence before
the hearing officer.
3 The settlement agreement was marked for identification, but was not admitted in evidence during the hearing.
6 A-1451-16T4 Goodridge testified plaintiff did not provide prices to its
customers before a ride was scheduled. Her conclusion was based
on the reports of inspectors Aliseo and Sremcevic that were marked
for identification but never moved into evidence. Goodridge
testified Aliseo and Sremcevic visited plaintiff's office on
February 27, 2015, and observed dispatchers arranging rides
without first providing customers with the fares. Goodridge also
testified that some of plaintiff's log sheets did not include the
fares charged, and plaintiff did not provide her with a fare when
she called to request a limousine.
Goodridge further opined that Elizabeth's City Code requires
that a limousine return to its principal place of business before
being dispatched to another a customer. She testified the
information on plaintiff's log sheets showed plaintiff did not
comply with this requirement.4
4 Goodridge misstated the requirements of Chapter 5.20.070(E) of the City Code, which states that a limousine "shall immediately return to its principal place of business after discharging a passenger, unless it is in route to a scheduled pickup." (Emphasis added). Thus, her statement that a limousine is required to return to its principal place of business, and conclusion plaintiff's log sheets established a violation of the City Code merely because they showed the vehicles did not always return to the principal place of business, were incorrect. These errors, however, are of no moment because the hearing officer did not base the revocation of plaintiff's license on any alleged violation of Chapter 5.20.070(E).
7 A-1451-16T4 Plaintiff presented the testimony of Mendez, who plaintiff
first employed in July 2015, following Goodridge's letter
notifying plaintiff of the suspension and revocation of its
license. Mendez testified the dispatchers are given a document
with plaintiff's fares, she monitors the dispatchers'
communications with customers, and the dispatchers inform the
customers of the fares when a ride is scheduled. She could not,
however, testify whether the customers actually agreed to any of
the fares she has heard the dispatchers quote over the phone.
Mendez testified the dispatchers enter information on log
sheets, including the time of the customer's call, the driver's
car and code number and name, the addresses of the customer pickup
and delivery, the limousine's license plate number, and the fare.
She conceded that some of the log sheets she was shown during
cross-examination did not include all of the information plaintiff
required of the dispatchers. None of the log sheets were moved
into evidence.
According to Mendez, plaintiff's drivers must charge its
minimum fares, which are between $12.50 and $14.00 for trips within
Elizabeth's city limits. She said the minimum fare for limousine
service from Elizabeth to Newark is between $25 to $30, but
conceded the log sheets showed a $22 fare was charged for that
service.
8 A-1451-16T4 The hearing officer issued a February 2, 2016 written
decision, and made limited and vague factual findings supporting
her decision. The hearing officer determined "[i]t was clear from
the evidence . . . that there were past violations[,] some of
which were corrected." Although the log sheets were not moved
into evidence, the hearing officer found that "prices were added
at a later date by different persons on the log sheets" and "[t]he
handwriting on the log sheets consistently did not match and there
were erasure marks in the pricing column."
The hearing officer further determined "it was questionable
what fares were being charged to the riders," "many complaints
were received by . . . Elizabeth" from plaintiff's competitors
that plaintiff "was operating as a taxi and not a limousine"
service, and plaintiff "failed to establish" it "charg[ed]
limousine[] fares consistent with industry standards for
limousines."5 The hearing officer concluded the Bureau "clearly
5 To the extent the hearing officer determined plaintiff had the burden of establishing it was charging the appropriate fares, she committed error. See N.J. Dep't of Evtl. Prot., Div. of Solid Waste Mgmt. v. Louis Pinto & Son, Inc., 311 N.J. Super. 552, 554- 56 (App. Div. 1998) (noting that the agency seeking to revoke a business or professional license bears "the burden of proof in a revocation proceeding," and that the Administrative Law Judge committed a "critical error" in determining otherwise). On appeal, however, we apply the appropriate standard and determine whether there is sufficient credible evidence supporting the Bureau's suspension and revocation of plaintiff's license.
9 A-1451-16T4 substantiated" "the major violation of operating a taxi service
while holding a limousine license." Based on those limited
findings, the hearing officer affirmed the suspension and
revocation of plaintiff's license.
Plaintiff filed a complaint in lieu of prerogative writs
challenging the hearing officer's decision, claiming it was not
supported by substantial credible evidence and should be set aside
because the hearing officer was not impartial.
After hearing argument, the court issued a bench opinion
finding that although Goodridge's March 2, 2015 letter cited six
reasons for the suspension and revocation of plaintiff's license,
the hearing officer did not make any findings concerning, or base
her decision on, three of the alleged violations. More
particularly, the court recognized the hearing officer did not
find plaintiff failed to provide a premium ride, require that its
vehicle's return to its principal place of business before being
dispatched, or keep proper financial records as Goodridge
originally alleged.
The court observed that the hearing officer's determination
plaintiff operated "a taxi service while holding a limousine
license" was based on three findings: prices in the log sheets
were consistently altered; there were questions regarding the
fares charged to riders; and plaintiff's failure to establish it
10 A-1451-16T4 charged premium fares consistent with industry standards for
limousines. The court interpreted the hearing officer's findings
to constitute determinations that plaintiff did not charge a
premium fare, keep proper logs or give prices to customers prior
to scheduling limousine services as alleged in Goodridge's March
2, 2015 letter.
More particularly, the court concluded there was sufficient
evidence supporting the hearing officer's determination that the
log sheets were altered based on its review of the log sheets that
were marked for identification but never moved into evidence. The
court found the log sheets showed erasures and alterations of the
listed fares, and noted Mendez testified the dispatchers did not
have time to enter information on log sheets when limousine
services were scheduled. Although the Bureau's investigators
never testified, in apparent reliance on Aliseo and Sremcevic's
February 27, 2015 investigative reports that were marked for
identification but not admitted in evidence, the court determined
that "evidence . . . presented by" the investigators showed the
fares on the log sheets were altered.
The court also determined there was sufficient evidence
showing plaintiff failed to provide fares in advance to customers
when its services were scheduled as required under Chapter 5.20.010
of the City Code. In pertinent part, the provision defines
11 A-1451-16T4 "autocabs," the term used to refer to limousines, to include
vehicles that "charge[] a fare or price agreed upon in advance
between the operator and the passenger." The court relied on the
log sheets and investigative reports, and concluded there was
sufficient evidence showing plaintiff failed to arrange its fares
with its customers in advance because fares were entered on the
log sheets after the services were scheduled, and the
investigators' reports showed that plaintiff's dispatchers did not
provide fares to plaintiff's customers when scheduling limousine
services on February 27, 2015. The court also relied on
Goodridge's testimony that she called plaintiff to arrange for
limousine service and was not provided a fare. The court also
noted Mendez's testimony that she could not confirm the dispatchers
always provided customers with a prearranged fare.
Last, the court found N.J.S.A. 48:16-136 required that
limousine services charge a premium fare, and accepted Goodridge's
6 In its oral opinion, the court did not refer to N.J.S.A. 48:16- 13, but instead cited N.J.S.A. 48:16-17, which pertains to the issuance of a limousine license. It is clear the judge merely misspoke and intended to cite N.J.S.A. 48:16-13, which is the only applicable statute requiring that limousines charge a premium fare. We also note that N.J.S.A. 48:16-13.1 provides certain requirements for limousines in counties of the first class with population densities of greater than 10,000 per square mile as established by the most recent United States Census. The statute requires that limousines charge a premium fare, but has no
12 A-1451-16T4 testimony that a premium fare is defined by industry standards.
The court determined the evidence showed plaintiff charged fares
as low as $8.00 and $12.50, and its fares were substantially below
those charged by other limousine companies for the same services.
The court also found plaintiff understood it was required to charge
a premium fare in accordance with industry standards because it
agreed to do so in the 2010 settlement agreement with Elizabeth.
The court concluded the hearing officer's decision was
supported by substantial credible evidence, the Bureau proved
plaintiff was operating as a taxicab company and not a limousine
service, and plaintiff failed to demonstrate the hearing officer's
decision was arbitrary, capricious or unreasonable. The court
determined the evidence showed plaintiff violated N.J.S.A. 48:16-
137 and Chapter 5.20.070 of the City Code, and entered an order
dismissing the complaint. This appeal followed.
Plaintiff presents the following arguments for our
consideration:
application here because Union County has a population density of only 5216.1 people per square mile according to the 2010 United States Census. See U.S. Department of Commerce, U.S. Census Bureau, QuickFacts Union County, New Jersey, https://www.census.gov/quickfacts/fact/table/unioncountynewjerse y/AGE115210 (last visited July 3, 2018). 7 See footnote 6, supra.
13 A-1451-16T4 POINT I
THE SUBSTANTIAL EVIDENCE RULE BARS A FINDING THAT [PLAINTIFF] VIOLATED THE LAW BECAUSE THERE IS NO RESIDUUM OF LEGAL AND COMPETENT EVIDENCE IN THE RECORD TO SUPPORT SUCH [A] FINDING[.]
POINT II
THE ACTION TAKEN BY THE CITY WAS NOT SUPPORTED BY THE RECORD AND WAS ARBITRARY, CAPRICIOUS, DISCRIMINATORY AND UNREASONABLE.
POINT III
THE STATUTORY DEFINITION OF LIMOUSINES DOES NOT APPLY TO [PLAINTIFF] AND THE COURT SHOULD REVERSE THE FINDINGS BELOW.
POINT IV
THE STATE [] AMENDED THE STATUTE[, N.J.S.A. 48:16-22.5] TO EXPLICITLY REMOVE THE RIGHT BY THE CITY TO REGULATE LIMOUSINE FARES[.]
POINT V
THE LOCAL ORDINANCE MARKS THE PATHWAY TO A FINDING OF OPERATING AS A TAXI AND THE DECISION TO REVOKE THE LICENSE OF [PLAINTIFF] DESPITE THE POWER GRANTED BY THE STATUTE TO REVOKE THE LICENSE WAS NOT PROVED BY A FAIR PREPONDERANCE OF THE CREDIBLE EVIDENCE[.]
II.
A municipal agency decision "is subject to review in the Law
Division in an action in lieu of prerogative writs[,] . . . and
the Law Division's review of the . . . decision must be based
solely on the agency record." Willoughby v. Planning Bd. of Twp.
14 A-1451-16T4 of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997) (internal
citation omitted) (citing R. 4:69). "The Law Division reviews the
record to determine whether the . . . factual findings are based
on 'substantial evidence' and whether its discretionary decisions
are 'arbitrary, capricious and unreasonable.'" Id. at 273-74
(citation omitted).
"When we consider an appeal of a trial court's review of a
municipal board's action, we are bound by the same standard as the
trial court. We give deference to a municipal board's decision,
and such decisions should be overturned only when proven arbitrary,
capricious or unreasonable." Cohen v. Bd. of Adjustment of Borough
of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (internal
citation omitted). "[M]unicipal action is not arbitrary and
capricious if exercised honestly and upon due consideration, even
if an erroneous conclusion is reached." Bryant v. City of Atl.
City, 309 N.J. Super. 596, 610 (App. Div. 1998). However, "[a]
determination predicated on unsupported findings is the essence
of arbitrary and capricious action." Ibid.
Because our review is limited to a consideration of the record
before the hearing officer, see Willoughby, 306 N.J. Super. at
273, we observe at the outset that the record consists only of
Goodridge and Mendez's testimony. We recognize the informality
attendant to the hearing, and that it was not governed by our
15 A-1451-16T4 Rules of Court or Rules of Evidence, see N.J.R.E. 101(a)(2); R.
1:1-1, but the record shows the skilled attorneys at the hearing
had the exhibits marked for identification only, expressly relied
on the fact that they were marked only for identification, and
never requested that the hearing officer admit the exhibits as
evidence or otherwise consider them as part of the hearing record.
Indeed, when plaintiff's counsel sought to interpose an objection
to certain of the exhibits, the Bureau's counsel avoided any ruling
on the objection by twice asserting the exhibits had been marked
only for identification. And, in fact, neither party proffered
the exhibits to the hearing officer for her consideration as part
of the record.
Our review of the Bureau's action is therefore limited to a
determination of whether Goodridge and Mendez's testimony
constitutes substantial credible evidence supporting the hearing
officer's limited fact findings, see Willoughby, 306 N.J. Super.
at 273, because their testimony constitutes the sole record before
the hearing officer. It was error for the hearing officer and the
court to base their respective decisions on the exhibits because
there is no showing they were part of the hearing record.
We agree with the court that the hearing officer made only
the following three findings supporting her decision that
plaintiff was not properly operating as a limousine service:
16 A-1451-16T4 prices in the log sheets were consistently altered; plaintiff
failed to inform customers of the fares when scheduling limousine
service; and plaintiff did not charge fares consistent with
industry standards for limousines. We therefore consider whether
there was substantial credible evidence supporting each finding.
The court determined there was substantial credible evidence
supporting the hearing officer's finding plaintiff changed the
fares on the log sheets based on the investigative reports and
the presence of erasure marks on the log sheets. As noted, the
log sheets and investigative reports were not admitted in evidence
and they did not constitute evidence supporting the hearing
officer's fact-finding. The only testimony concerning erasures
on the log sheets came from Mendez, but she stated only that
numbers "next to where the fare(s) [were] listed" were erased.
She did not testify there were erasures or alterations of the
fares listed, and did not explain the significance of the numbers
"next to" the fares that were erased. Absent a review of the log
sheets, which the Bureau chose not to admit in evidence, Mendez's
testimony about the erasures is simply too vague to support a
finding that plaintiff changed fares. We are therefore convinced
there was no credible evidence in the record supporting the hearing
officer's determination the log sheets were not properly
maintained because the prices were altered.
17 A-1451-16T4 We also note that although Chapter 5.20.110 of the City Code
requires that a limousine service maintain records showing the
"time of departure . . . name and address of the driver . . .
license plate number of the vehicle and time of return to the
place of business," there is no requirement that fares be recorded.
Neither the Bureau nor the hearing officer cites to any legal
requirement that plaintiff correctly record the fares charged on
its log sheets and, therefore, plaintiff's purported failure to
correctly or timely record the fares did not violate any provision
of the City Code or other legal standard.
We next consider whether there was evidence supporting the
hearing officer's finding that plaintiff failed to provide fares
to customers when its services were scheduled as required under
Chapter 5.20.010 of the City Code.8 The provision requires that
limousine services "charge[] a fare or price agreed upon in advance
between the operator and the passenger."
As the log sheets and investigative reports were not part of
the hearing record, they could not support a determination
plaintiff does not arrange fares with its customers in advance.
The only evidence in the record suggesting plaintiff failed to
8 The hearing officer did not cite to Chapter 5.20.010, but the court correctly recognized the provision defined plaintiff's obligation to arrange fares "in advance."
18 A-1451-16T4 provide their customers with fares in advance was Goodridge's
testimony that on a single occasion she called plaintiff to arrange
a limousine service and was not advised of the fare. However,
she did not testify she actually arranged a limousine service with
plaintiff at that time so the record is bereft of any evidence
plaintiff "charge[d] a fare" that was not "agreed upon in advance"
in violation of Chapter 5.20.010.
The only other finding of fact supporting the hearing
officer's determination plaintiff committed "the major violation
of . . . operating as a taxi and not a limousine" is that plaintiff
did not charge "fares consistent with industry standards for
limousines." To be sure, there was testimony concerning
plaintiff's fares. Goodridge testified plaintiff was obligated
by law to charge a premium fare, and opined that a premium fare
is the minimum fare charged for the same service by other limousine
services licensed by the Bureau. She testified that other licensed
limousine services charged a minimum fare of $40, and plaintiff
charged fares as low as $8.00 and $12.50. Mendez testified
plaintiff's minimum fare was $12.50, which is greater than the
$7.00 to $9.00 fares Goodridge testified are charged by Elizabeth
taxis for the same services. Goodridge also testified plaintiff
was aware it was required to charge industry standard fares because
it agreed to do so in a 2010 settlement agreement with Elizabeth.
19 A-1451-16T4 The settlement agreement was marked for identification, but was
not admitted in evidence, and there was no testimony concerning
its terms other than Goodridge's general testimony that it required
plaintiff to charge industry standard fares.
The Elizabeth City Code prohibits limousines from operating
as taxicabs. See Chapter 5.20.070. More particularly, it
prohibits a limousine service from committing six defined forms
of conduct: causing a limousine to be parked on a street while
waiting to be dispatched or to pick up passengers; driving or
cruising in search of, or for the purpose of soliciting,
passengers; displaying any sign, soliciting or accepting
passengers; dispatching a limousine when a taxicab is requested;
failing to return to the limousine service's principal place of
business "unless it is in route to a scheduled pick-up[;]" and
storing or parking limousines on the City's streets. Chapter
5.20.070(A) to (E).
Neither Chapter 5.20.070 nor any other provision of Chapter
5.20 require that a limousine service charge an industry standards
fare, a premium fare, or any other fare, or provide that the
failure to charge a particular fare is an indicia of a limousine
operating as a taxicab. See Chapter 5.20.010 to 5.20.120. The
absence of a City Code provision setting fares for limousine
services is in accordance with N.J.S.A. 48:16-22.5, which provides
20 A-1451-16T4 that the State statutory scheme regulating limousines, N.J.S.A.
48:16-13 to -22.5, shall not "be construed in any way . . . as
giving the State or any political subdivision thereof the authority
to set or regulate limousine fares . . . ." Thus, the hearing
officer's determination plaintiff functioned as a taxicab service
instead of a limousine service because it failed to charge industry
standard fares could not have been properly founded upon a
violation of the City Code.
The hearing officer's determination is untethered to any
cited ordinance or statute supporting her decision, but we infer
the hearing officer relied on N.J.S.A. 48:16-13, which, in
pertinent part, defines a limousine as "any automobile or motor
car used in the business of carrying passengers for hire to provide
prearranged passenger transportation at a premium fare on a
dedicated, nonscheduled, charter basis that is not conducted on a
regular route and with a seating capacity of no more than 14
passengers, not including the driver . . . ." (Emphasis added).
The Bureau argued before the hearing officer and the court, as it
argues here, that N.J.S.A. 48:16-13 requires that plaintiff charge
customers a "premium fare," and Goodridge testified that, in her
opinion, a premium fare is the minimum fare for the same service
charged by the Bureau's other licensed limousine companies.
21 A-1451-16T4 We are not persuaded Goodridge's opinion is correct. "Premium
fare" is not defined in N.J.S.A. 48:16-13, and neither this court
nor our Supreme Court has interpreted the meaning of the term.
The interpretation of a statute is an issue of law that we review
de novo. State v. Gandhi, 201 N.J. 161, 176-77 (2010).
"When construing a statute, our primary goal is to discern
the meaning and intent of the Legislature. In most instances, the
best indicator of that intent is the plain language chosen by the
Legislature." Id. at 176 (citation omitted); accord State v.
Hudson, 209 N.J. 513, 529 (2012).
The inquiry thus begins with the language of the statute, and the words chosen by the Legislature should be accorded their ordinary and accustomed meaning. If the language leads to a clearly understood result, the judicial inquiry ends without any need to resort to extrinsic sources.
[Hudson, 209 N.J. at 529.]
N.J.S.A. 1:1-1 provides that "unless inconsistent with the
manifest intent of the [L]egislature or unless another or different
meaning is expressly indicated," words in a statute shall "be
given their generally accepted meaning, according to the approved
usage of the language." Where "words and phrases hav[e] a special
or accepted" technical or legal meaning, they "shall be construed
in accordance with such technical or special and accepted meaning."
N.J.S.A. 1:1-1.
22 A-1451-16T4 "In determining the common meaning of words, it is appropriate
to look to dictionary definitions." Macysyn v. Hensler, 329 N.J.
Super. 476, 485 (App. Div. 2000). "Premium" is defined as "[a]
sum of money paid in addition to a regular price, salary, or other
amount; a supplemental amount of money above the normal or standard
rate." Black's Law Dictionary 1372 (10th ed. 2014); see also
Webster's II New College Dictionary 893 (3d ed. 2005) (defining
premium as "[a] sum of money or bonus paid on top of a regular
price, salary, or other amount," and as "[a]n unusual or high
value"). "Premium rate" is defined as "[a] higher-than-normal
amount that one pays for a service, usu[ally] because demand is
particularly high at that specific time." Black's Law Dictionary
1372 (10th ed. 2014).
Giving "premium" its generally accepted meaning, the plain
language of N.J.S.A. 48:16-13 does not require that plaintiff
charge the same fares charged by other licensed limousine services.
To the contrary, an interpretation of N.J.S.A. 48:16-13 requiring
that all limousine services charge the same minimum fares is
inconsistent with the ordinary usage of the term premium. A
premium is an "amount of money above the normal or standard
rate." Black's Law Dictionary 1372 (10th ed. 2014). Thus, a
premium fare could not be the same fare charged by other limousine
companies because such a fare would constitute the "normal or
23 A-1451-16T4 standard rate," and not one above the "normal or standard rate."9
There is no ordinary usage of the term "premium" supporting the
conclusion that N.J.S.A. 48:16-13 requires that plaintiff charge
rates consistent with, or defined by, other licensed limousine
services. It was error for the hearing officer and court to
conclude otherwise.
Determining whether a premium fare is being charged in
accordance with N.J.S.A. 48:16-13 requires a comparison to a normal
or standard fare. The statute does not define the fare against
which the premium fare required under N.J.S.A. 48:16-13 is measured
but where, as here, the legislative history is silent as to an
intended standard, we turn to the "common-sense of the situation."
Bruce Paparone, Inc. v. State, Agric. Dev. Comm., 392 N.J. Super.
391, 401 (App. Div. 2007).
9 Goodridge did not testify that "premium rate" has a special or technical meaning, and the Bureau does not contend the term has a special or technical meaning. See N.J.S.A. 1:1-1. The Bureau relies solely on what appears to be Goodridge's personal and unsupported opinion that a premium fare under N.J.S.A. 48:16-13 is the minimum fare charged by other limousine services or, in other words, the industry standard. Goodridge also testified plaintiff was aware it was required to charge industry standard fares because it agreed to do so in a 2010 settlement agreement. As noted, the settlement agreement is not part of the hearing record and, even if it was, it could not define N.J.S.A. 48:16- 13's requirements. Moreover, Goodridge did not assert in her March 2, 2015 letter, and the hearing officer did not find, that plaintiff's license should be suspended and revoked due to any alleged violation of a 2010 settlement agreement.
24 A-1451-16T4 The Bureau's claims against plaintiff were based on the
premise that plaintiff functioned as a taxicab service and not a
limousine service, and limousine services are required to charge
fares different than those charged by taxicabs. The Legislature
enacted separate provisions in Title 48 concerning taxicabs,
N.J.S.A. 48:16-1 to -12, and limousines, N.J.S.A. 48:16-13 to
-22.7, and did not require that taxicabs charge a premium rate.
See N.J.S.A. 48:16-1. In our view, common sense dictates that the
Legislature intended to distinguish limousines from taxicabs in
part by requiring that limousines charge a higher rate, or premium
fare, than those charged by taxicabs. Thus, we accept plaintiff's
contention that it is against the taxicabs' standard or normal
rates that we determine whether a limousine has charged the higher,
or "premium", fare required under N.J.S.A. 48:16-13.
Goodridge testified the standard taxicab rates for
transportation within Elizabeth's city limits was between $7.00
and $9.00. Mendez said plaintiff's minimum fare is $12.50, which
is between approximately thirty-eight and seventy-eight percent
higher than Elizabeth taxicabs' standard rates.10 Although
Goodridge testified she called plaintiff on one occasion and was
10 A $12.50 fare is seventy-eight percent higher than a $7.00 rate, fifty-six percent higher than an $8.00 rate and thirty-eight percent higher than a $9.00 rate.
25 A-1451-16T4 quoted an $8.00 fare, she did not testify plaintiff ever actually
charged that fare for its limousine service. In sum, we are
convinced the record lacks sufficient credible evidence
establishing plaintiff failed to charge a premium fare as required
under N.J.S.A. 48:16-13 for its limousine services. The hearing
officer's contrary conclusion is "predicated on unsupported
findings" and constitutes "arbitrary and capricious action."
Bryant, 309 N.J. Super. at 610.
Our holding is limited to the facts presented. We do not
establish a formula for the calculation of the premium fare
required under N.J.S.A. 48:16-13, but instead leave that
determination to the Legislature. See DiNapoli v. Bd. of Educ.
of Twp. of Verona, 434 N.J. Super. 233, 238 (App. Div. 2014)
("Courts should be extremely reluctant to add terms to a statute,
lest they usurp the Legislature's authority."); Colantoni v. Bd.
of Educ. of Twp. of Long Hill, Morris Cty., 329 N.J. Super. 545,
552 (App. Div. 2000) (noting that "we cannot act as a
superlegislature and supply an ingredient that is missing from the
statutory scheme."); see also In re Proposed Amendment to Title
291, 264 Neb. 298, 301 (2002) (noting the Nebraska Public Service
Commission's express definition of "premium fare" for limousines
as "a rate based on hourly rental of not less than one (1) hour
at fifty dollars . . . per hour with a minimum rental time of one
26 A-1451-16T4 hour"). We decide only it was error to rely on industry standard
fares as the benchmark for determining the premium fare required
under N.J.S.A. 48:16-13, and that common sense dictates that
limousine fares at least thirty-eight per cent higher than taxicab
fares are sufficiently above the normal rate to qualify as the
requisite premium fares under the statute. See Bruce Paparone,
Inc., 392 N.J. Super. at 401.
Reversed.
27 A-1451-16T4