                                NOT FOR PUBLICATION WITHOUT THE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-5496-16T1

SPEEDWAY LLC,

          Plaintiff-Appellant,

v.

THE STATE OF NEW JERSEY
and ATTORNEY GENERAL
GURBIR S. GREWAL,

     Defendants-Respondents.
____________________________

                    Argued December 11, 2018 – Decided April 24, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0284-17.

                    Brian J. Molloy argued the cause for appellant
                    (Wilentz, Goldman & Spitzer, PA, attorneys; Brian J.
                    Molloy and Daniel J. Kluska, of counsel and on the
                    briefs).

                    Renee Greenberg, Deputy Attorney General, argued the
                    cause for respondents (Gurbir S. Grewal, Attorney
                    General, attorney; Jason W. Rockwell, Assistant
                    Attorney General, of counsel; Wendy Leggett Faulk
            and Renee Greenberg, Deputy Attorneys General, on
            the brief).

            Brennan Law Firm, attorneys for amicus curiae New
            Jersey Gasoline-C-Store-Automotive Association and
            Fuel Merchants Association of New Jersey (Francis J.
            Brennan, III and Craig A. Cox, of counsel and on the
            brief).

PER CURIAM

      Over seventy-five years ago, the New Jersey Legislature established "[a]n

act to regulate the retail sale of motor fuels" (1938 Act), N.J.S.A. 56:6-1 to -17.

Among other provisions, the 1938 Act prohibits retail dealers from selling

gasoline below the net cost of the fuel plus all selling expenses, defined as "all

overhead and general business expense[s]." N.J.S.A. 56:6-2(b); N.J.S.A. 56:6-1.

      On October 16, 2016, the Middlesex County Department of Weights and

Measures filed two complaints in the Woodbridge Municipal Court against

plaintiff Speedway, LLC, alleging it violated N.J.S.A. 56:6-2(b) because it sold

gasoline at its Hopelawn filling station below cost. According to Speedway, it

is the "second[] largest chain of company-owned-and-operated convenience

stores in the United States[,] with approximately 2730 locations in [twenty-one]

states." Speedway owns and operates approximately seventy convenience stores

in New Jersey, which all sell motor fuel.



                                                                           A-5496-16T1
                                        2
      On February 13, 2017, Speedway filed a complaint in the Law Division

seeking a declaration that the below-cost sales prohibition violated the due

process clause of the New Jersey and United States Constitutions, infringed

plaintiff's right to sell goods, and violated the Federal Civil Rights Act, 42

U.S.C. § 1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

Speedway also sought an injunction to prevent defendant, the State of New

Jersey, from enforcing the provision.

      After the trial court granted defendants' motion to dismiss under Rule

4:6-2(e), Speedway filed this appeal. We affirm because the trial court, after

accepting as true all of Speedway's factual allegations, properly dismissed the

complaint.   The Legislature's decision, as expressed in N.J.S.A. 56:6-2(b),

prohibiting the below-cost sale of gasoline is a rational, necessary restraint on

the market, and is in the public interest.

      We also agree with the court that N.J.S.A. 56:6-2(b) is not

unconstitutionally vague. The challenged terms – "net cost" and "expenses" –

are words of common usage and understanding, particularly for a sophisticated

business entity such as Speedway.            Finally, because the below-cost sales

provision addresses a specific state interest, it is not unconstitutionally

overbroad.


                                                                           A-5496-16T1
                                         3
                                           I.

      We begin our opinion with a brief discussion of the 1938 Act, its

subsequent amendment, and the relevant legislative history.

   A. 1938 Act

      The 1938 Act outlines the conditions for the sale of motor fuel by retail

dealers. Among other requirements, it mandates that retailers post the per-gallon

fuel price on each pump, and requires all dispensing equipment to conspicuously

identify the fuel brand. N.J.S.A. 56:6-2(a) and (g). The fuel price must be

posted inclusive of all taxes, and cannot employ rebates or concessions that

would affect the sale of fuel below the posted price. N.J.S.A. 56:6-2(a) and (e).

Retailers are prohibited from selling gasoline at a price below their net cost of

the fuel plus all selling expenses, defined in the statute as "all overhead and

general business expense[s]." N.J.S.A. 56:6-2(b); N.J.S.A. 56:6-1. As noted,

Speedway challenges only the constitutionality of the below-cost sales

prohibition, codified in subsection (b).

   B. Amendments to the 1938 Act and Relevant Legislative History

      The Legislature created a "Gasoline Study Commission" (Commission) in

February 1952 to study New Jersey's gasoline industry, with an emphasis on

those factors "governing the fixing of prices of gasoline to the public." In


                                                                         A-5496-16T1
                                           4
addition, the Commission prepared a report that also "survey[ed] the operation

of the entire gasoline industry in the [s]tate . . . with a view to[ward] correcting

– if it appeared necessary and desirable – by legislative recommendation[], any

practices which might be found to be injurious to the best interests of all the

people of New Jersey." (emphasis in original).

      The report also explained that although the Commission's "paramount

obligation" was to all New Jersey citizens, it stressed that:

            [s]pecial attention has been directed in this examination
            to the plight of those New Jersey citizens – small
            businessmen – who own or operate the retail outlets in
            this State. The problem of the retailers and of all other
            phases of the petroleum industry have been carefully
            and fully reviewed both from the viewpoint of serving
            the best interests of the vast army of consumers of a
            commodity – gasoline – which has become a necessity
            in modern living and from the viewpoint of recognizing
            the difficult and important position of the small
            businessman in an industry dominated by giants.

      The Commission recommended that the 1938 Act be amended to make it

a misdemeanor if any distributor offered, or any retail dealer accepted, a rebate

or concession with respect to the distribution of motor fuel. The Commission

also endorsed that the Legislature invoke the State's police power to protect the

public welfare by ending unfair practices that curtailed, rather than strengthened




                                                                            A-5496-16T1
                                         5
competition, because "[t]he motor fuel business constitutes such an important

and necessary part in the economy of this State."

      In addition, the Commission considered proposing that any retail

distributor of fuel be required to sell "at a price determined by the [distributor's]

cost of doing business plus the posted tankwagon price."1 The Commission

explained that company-owned-and-operated retail stations (at the time

described as "few in number") were typically "integrated corporations" that can

"exert considerable influences on the posted retail prices" and operate retail

outlets at a loss if necessary "in sharp contrast to the individual dealer who is

compelled to carry on his business at a profit in order to survive." Despite

expressly recognizing the influence company-owned retail dealers had on the

price of fuel, the Commission declined to recommend amending the 1938 Act

in this regard because it concluded the below-cost sales prohibition adequately

addressed the issue and additional legislation would be "superfluous."

      The 1938 Act was amended in 1953, consistent with the Commission's

recommendations, and retitled the Uniform Motor Fuels Practices Act, N.J.S.A.

56:6-19 to -32 (1953 Amendments). When passing the new legislation, the



1
   Tankwagon price represents "the price charged to the retailer by the
wholesaler, or the invoice cost of motor fuel to the retailer."
                                                                             A-5496-16T1
                                         6
Legislature declared that the "practices of the distribution and sale of motor fuels

in th[e] State have developed unfair methods of competition in the marketing of

motor fuels" and that "conditions have . . . impair[ed] . . . the supply of motor

fuel needed by the general public[,] thereby affecting the general economic

welfare of the people of th[e] State." N.J.S.A. 56:6-19(a). Although the 1953

Amendments modified the 1938 Act to prohibit certain trade practices related to

the distribution of motor fuel that "inten[d] to injure competitors or destroy or

substantially lessen competition," N.J.S.A. 56:6-22,2 the Legislature did not

amend or change the below-cost sales prohibition to include similar language.

      Since 2008, the Legislature considered a number of bills seeking to amend

the below-cost sales prohibition that would permit a retailer to sell gasoline at a

price below its net cost plus selling expenses to meet competition, and deem it

illegal for a dealer to sell at a price below net cost if done with the intent to harm

or injure competition. See Senate Bill No. 2414 (2008 Session); Senate Bill No.

484 and Assembly Bill No. 2932 (2010 Session); Assembly Bill No. 1567 (2012

Session); and Assembly Bill No. 1695 (2014 Session). None of these bills were




2
    N.J.S.A. 56:6-22 prohibits retailers from offering "a rebate, concession,
allowance, discount or benefit . . . in connection with the sale or distribution of
motor fuel."
                                                                              A-5496-16T1
                                          7
enacted. Accordingly, the Legislature has not altered the original language of

N.J.S.A. 56:6-2(b) contained in the 1938 Act.

         On appeal, Speedway raises five points of error, three of which relate to

its claim that the 1938 Act, and specifically section (b), is unconstitutional.

First, Speedway contends that the complaint alleged viable due process

violations because the below-cost sales prohibition unreasonably and arbitrarily

"deprives it of its property and liberty interests and abrogates its common -law

right to sell goods," as the provision lacks "an element of intent and a meeting

competition defense."      Second, Speedway argues that the below-cost sales

prohibition deprives it of due process of law because it is unconstitutionally

vague as it "leaves retailers guessing at its meaning and application." In further

support of this argument, Speedway contends that the State is collaterally

estopped from disputing that section (b) is constitutionally infirm on vagueness

grounds, because it unsuccessfully litigated the issue before another New Jersey

court.     Third, Speedway maintains that the below-cost sales provision is

unconstitutionally overbroad. Fourth, Speedway claims that the court erred in

dismissing violations of the New Jersey and Federal Civil Rights Acts. Finally,

Speedway asserts that the court incorrectly applied Rule 4:6-2(e), failed to issue

findings of facts and conclusions of law in accordance with Rule 1:7-4 and


                                                                          A-5496-16T1
                                         8
requests that any remanded proceeding be conducted by a different judge. We

disagree with all of Speedway's arguments and affirm.

                                      II.

      We start with the standard of review. "On appeal, we engage in a de novo

review from a trial court's decision to grant or deny a motion to dismiss filed

pursuant to Rule 4:6-2(e)." Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div.

2017) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.

Super. 103, 114 (App. Div. 2011)). We accord no deference to the trial court's

legal conclusions. Rezem Family Assocs., LP, 423 N.J. Super. at 114. When a

court grants a party's motion to dismiss, "[w]e approach our review of the

judgment below mindful of the test for determining the adequacy of a pleading :

whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189, 192 (1988)). "[T]he Court is not concerned with

the ability of plaintiffs to prove the allegation contained in the complaint." Ibid.

(citing Somers Constr. Co. v. Bd. of Educ., 198 F.Supp. 732, 734 (D.N.J. 1961)).

                                      III.

      Next, and before addressing each of Speedway's points on appeal

individually, we briefly discuss basic constitutional principles applicable to


                                                                            A-5496-16T1
                                            9
Speedway's challenge to the below-cost sales prohibition.              Legislative

enactments carry a "strong presumption in favor of constitutionality." Paul

Kimball Hospital, Inc. v. Brick Twp. Hospital, Inc., 86 N.J. 429, 447 (1981).

While the presumption can be rebutted, "it places a heavy burden on the party

seeking to overturn the [statute]." Hutton Park Gardens v. Town Council, 68

N.J. 543, 564 (1975).

      "[I]t is up to legislatures, not courts, to decide on the wisdom and utility

of legislation." Ferguson v. Skrupa, 372 U.S. 726, 729 (1963). Thus, courts

reviewing the validity of a statute, should "properly defer to legislative judgment

as to the necessity and reasonableness of a particular measure." United States

Tr. Co. v. New Jersey, 431 U.S. 1, 22-23 (1977). A court's power to declare a

statute invalid is to be "delicately exercised," Kimball, 86 N.J. at 447, and

"unless the statute is clearly repugnant to the Constitution," ibid., or "plainly

exceeds the constitutional power of the Legislature, a court should not adjudge

it invalid." Yellow Cab Co. v. State, 126 N.J. Super. 81, 94 (App. Div. 1973).

      When a statute's facial constitutionality is challenged, courts should ask

"whether the 'mere enactment' of [the] statute offends constitutional rights," as

the "effects on particular participants in an industry are not dispositive." State

Farm Mut. Auto. Ins. Co. v. State, 124 N.J. 32, 46 (1991) (citing Hodel v.


                                                                           A-5496-16T1
                                       10
Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 295 (1981)).

"In cases dealing with the validity of price-control statutes . . . , holdings of

facial unconstitutionality are exceedingly rare." Ibid. Further, if a statute may

be construed as valid or unconstitutional, the construction "which will uphold

its validity must be adopted." Ahto v. Weaver, 39 N.J. 418, 428 (1963) (citing

State v. Hudson Cnty. News Co., 35 N.J. 284, 294 (1961)). The reasonableness

of a governmental price regulation may be reinforced by "the existence of an

'emergency'" and a "determination that the industry regulated is 'affected [with]

a public interest.'" Hutton Park Gardens, 68 N.J. at 561-62 (first quoting Como

Farms, Inc. v. Foran, 6 N.J. Super. 306, 314 (App. Div. 1950); then quoting

Fried v. Kervick, 34 N.J. 68, 71-74 (1961)).

      Finally, when addressing the constitutionality of the 1938 Act, we note

that we do not write on a blank slate. Indeed, in Fried, 34 N.J. at 83, our Supreme

Court upheld subsection (e) of N.J.S.A. 56:6-2 against a constitutional challenge

that the provision violated a retail motor fuel dealer's due process and equal

protection rights. Subsection (e) prohibits retailers from providing rebat es that

would permit a consumer to purchase gasoline below the posted price. Similar

to the below-cost sales prohibition, subsection (e), does not contain an intent to

injure element. N.J.S.A. 56:6-2(e).


                                                                           A-5496-16T1
                                       11
      In rejecting the retail dealer's constitutional challenge, the Fried court

concluded the Legislature's decision to safeguard the public welfare was neither

discriminatory nor arbitrary, but rather a reasonable exercise of the State's

policing power. Fried, 34 N.J. at 83. The Court's holding relied upon the 1952

New Jersey Gasoline Study Commission, the Annual Report of the Motor Fuel

Division, and the Report of the United States Senate Select Committee on Small

Business on Petroleum Marketing Practices in New Jersey (Senate Committee)

(84th Congress, 2d Session 1956; Report No. 2810). Id. at 79-80. The Senate

Committee report found that "competitive problems of gasoline retailers were

most pronounced," in New Jersey. Id. at 80.

      When describing the appropriate use of the state's police power, the Fried

court stated:

            [T]he police power of a state is incapable of precise
            definition and limitation. It develops by an empiric
            process and its boundaries expand to include authority
            to regulate an evil associated with any business which
            for the public good justifies the particular measure of
            control. The Legislature is presumed to know the needs
            of the people . . . .

            [Id. at 75.]

See also United Stations of New Jersey v. Getty Oil Co., 102 N.J. Super. 459,

474-76 (Ch. Div. 1968) (rejecting constitutional challenges to subsection (f) of


                                                                        A-5496-16T1
                                      12
N.J.S.A. 56:6-2, which bars the use of gaming activities in connection with the

sale of gasoline).

      With these principles in mind, we turn to Speedway's specific

constitutional challenges.

                                      IV.

  A. Due process violations based on the below-cost sales prohibition's
     unreasonable restriction on free trade and competition.

      In counts one, two and three of its complaint, Speedway asserts that the

absence of meeting competition and intent to harm elements in the below-cost

sales prohibition deprives Speedway of its due process rights. Specifically,

Speedway asserts that the below-cost sales prohibition "creates a conclusive

presumption that all below-cost sales are made with an intent or effect of

destroying competition and bars motor fuel retailers from having any

opportunity to show they made such sales without any improper intent or unfair

effect on competition." As a result, Speedway contends the below-cost sales

prohibition is unreasonable, arbitrary, and discriminatory, as it restrains fair and

open competition. We disagree.

      It is well established that "a state is free to adopt whatever economic

policy may reasonably be deemed to promote public welfare, and to enforce that

policy by legislation adapted to its purpose." Nebbia v. New York, 291 U.S.

                                                                            A-5496-16T1
                                        13
502, 537 (1934). Price-control legislation is "subject to the same narrow scope

of review under principles of substantive due process as are other enactments

under police power: could the legislative body rationally have concluded that

the enactment would serve the public interest without arbitrariness or

discrimination?" Hutton Park Gardens, 68 N.J. at 563-64.

      In Nebbia, the United States Supreme Court upheld the constitutionality

of the government's regulation of milk prices, and held that statutes that regulate

prices are constitutional:

            [i]f the law-making body within its sphere of
            government concludes that the conditions or practices
            in an industry make unrestricted competition an
            inadequate safeguard of the consumer's interests, . . .
            statutes passed in an honest effort to correct the
            threatened consequences may not be set aside because
            the regulation adopted fixes prices reasonably deemed
            by the [L]egislature to be fair to those engaged in the
            industry and the consuming public.

            [Nebbia, 291 U.S. at 538.]

      The goal of the below-cost sales provision, as gleaned from the legislative

history, is to prevent improper trade practices related to the sale of motor

fuel. Because it applies to all retailers, large and small, and to all sales

regardless of volume, it is neither discriminatory nor arbitrary. Further, because

it addresses Speedway's non-fundamental right to sell goods, it need only be


                                                                           A-5496-16T1
                                       14
supported by a conceivable rational basis. That basis can be found in the

Commission's recommendation, ultimately followed by the Legislature in its

enactment of the 1953 Amendments, not to amend or change the below-cost

sales prohibition to include an intent to injury element, as it did with other

provisions. See N.J.S.A. 56:6-22. The Legislature clearly determined that the

below cost sales provision, as originally enacted, was necessary to maintain a

competitive motor fuel market, particularly in an industry "dominated by

giants," many of whom maintain a vertically integrated supply chain.

      Further, in adopting the 1953 Amendments, the Legislature determined

that selling gasoline at below cost would cause disorder in the marketplace,

particularly as to smaller retailers whose survival depends upon operating at a

profit, and who cannot sustain an extended price war. The Legislature deemed

a broad below-cost sales provision, without an intent to injure component, or

meeting the competition defense, was necessary not only to ensure a competitive

market, but to avoid the adverse financial consequences that would be visited

on small, retail operators from aggressive, uncontrolled pricing practices. See

Fried, 34 N.J. at 79-80.

      We conclude that this considered judgment by our Legislature, made

nearly seventy years ago was rational and should not be disturbed. Any changes


                                                                       A-5496-16T1
                                     15
to the below-cost sales prohibition in the manner requested by Speedway are

best addressed by the Legislature. See Burton v. Sills, 53 N.J. 86, 95 (1968)

(courts do not sit "as a superlegislature" and "absent a sufficient showing to the

contrary, it . . . [is] assumed that [a] statute rested 'upon some rational basis

within the knowledge and experience of the Legislature.'"). In this regard,

Speedway's citation to the below-cost sales prohibition in thirty-three states'

statutes which include a intent to injure element or meeting competition defense,

demonstrates that the legislature branch of government is the proper body to

exercise judgment as to the necessity and reasonableness of such language in

price control legislation after considering the public welfare of the citizens of a

particular state, as our Legislature did when passing the 1953 Amendments.

      Speedway's reliance on State v. Packard-Bamberger & Co., Inc., 123

N.J.L. 180 (1939) and Wilentz v. Crown Laundry Serv. Inc., 116 N.J. Eq. 40

(1939), is misplaced as neither case supports invalidating price control

legislation with respect to products affecting the public interest.               In

Packard-Bamberger, the Court determined that a below-cost sales prohibition of

general   merchandise,     which    included    any   personal    property,    was

unconstitutional. Central to its conclusion that the statute in that case was

unconstitutional was the court's finding that the statute contained "no limitation


                                                                           A-5496-16T1
                                       16
to transactions which involve commodities affected with a public inte rest." Id.

at 184-85; see also Wilentz, 116 N.J. Eq. at 43 ("[A] few years ago every court

in the land would have held that a statute abrogating [the] right [to sell goods],

except in the case of a business or property affected with a public interest, would

deprive the individual of his property without due process of law and therefore

be void.") (emphasis added). Thus, as the Packard-Bamberger and Wilentz

courts recognized, a significant distinction exists between price regulations

involving general commodities, and those affected with the public interest.

      Here, N.J.S.A. 56:6-19(c) expressly recognized that the "distribution and

sale of motor fuels within this State is hereby declared to be affected with a

public interest." As noted, while the Legislature has included an intent to harm

element in other provisions of the statute, see N.J.S.A. 56:6-22, it has deemed it

reasonably necessary to regulate differently the pricing of retailers' sale of

gasoline.

      Speedway also relies on three cases from Arkansas, Minnesota, and

Pennsylvania, in which courts invalidated similar statutes for their lack of an

intent to harm element. See Ports Petroleum Co. v. Tucker, 916 S.W.2d 749

(Ark. 1996); Twin City Candy & Tobacco Co. v. A. Weisman Co., 149 N.W.2d

698 (Minn. 1967); Commonwealth v. Zasloff, 13 A.2d 67 (Pa. 1940). We


                                                                           A-5496-16T1
                                       17
conclude that the unique legislative history related to the 1938 Act and 1953

Amendments render those cases fundamentally distinguishable.

      In Ports Petroleum Co., the Court considered the below-cost sales

prohibition in the Arkansas Petroleum Trade Practices Act (APTPA). In that

case, the Court determined the APTPA "prohibit[ed] legitimate and innocent

competition fostered by below-cost sales," and concluded that "[h]ad the

[APTPA] included a prohibition against such sales made with predatory intent

to damage and destroy competition[,] . . . due process impairment would not be

a concern."     Ports Petroleum Co., 916 S.W.2d at 755.            In making its

determination, the Court employed a test adopted by the Alabama Supreme

Court in State v. Mapco Petroleum, Inc., 519 So. 2d 1275, 1284-85(Ala. 1987),

that "[i]f the act penalizes innocent acts not reasonably related to the problem of

monopolistic practices or other deceptive, disruptive, or destructive price

cutting, the act strikes too broadly." Ibid.

      The Ports Petroleum Co. court, however, failed to discuss Arkansas's

legislative history that led to the enactment of the APTPA. Similarly, the Twin

City Candy & Tobacco Co. and Zasloff courts did not consider the legislative

history underpinning the Minnesota and Pennsylvania statutes at issue. As we

have previously detailed, New Jersey's unique and lengthy legislative history


                                                                           A-5496-16T1
                                       18
related to the 1953 Amendments confirms the necessity of the below-cost sales

provision to ensure a competitive market, while avoiding harmful financial

consequences resulting from uncontrolled pricing practices.

   B. Due process violations based on the vague and overbroad nature of the
      below-cost sales prohibition.

      In count four of its complaint, Speedway asserts that the terms "net cost"

and "selling expenses" in N.J.S.A. 56:6-2(b) are unconstitutionally vague, and

the State is collaterally estopped from disputing the issue. Further, in the fifth

count of its complaint, Speedway argues the below-cost sales prohibition is

overbroad because it "restrain[s] constitutionally-protected fair competition."

Again, we disagree.

      "A law is void if it is so vague that persons 'of common intelligence must

necessarily guess at its meaning and differ as to its application.'" Twp. Of

Pennsauken v. Schad, 160 N.J. 156, 181 (1999) (quoting Town Tobacconist v.

Kimmelman, 94 N.J. 85, 118 (1983)). "[T]he requirement of statutory clarity is

essentially a due process concept grounded in notions of fair play." In re N.N.,

146 N.J. 112, 126 (1996) (quoting State v. Cameron, 100 N.J. 586, 591 (1985)).

Vague laws are constitutionally banned in order to "invalidate regulatory

enactments that fail to provide adequate notice of their scope and sufficient

guidance for their application." Cameron, 100 N.J. at 591. "The determination

                                                                          A-5496-16T1
                                       19
of vagueness must be made against the contextual background of the particular

law and with a firm understanding of its purpose." Ibid. "Absent any explicit

indications of special meanings, the words used in a statute carry their ordinary

and well-understood meanings." State v, Afanador, 134 N.J. 162, 171 (1993).

      "[D]ifferent levels of 'definitional clarity' are required depending on the

type of statute under scrutiny." Heyert v. Taddese, 431 N.J. Super. 388, 424

(App. Div. 2013) (quoting Commc'ns. Workers of Am. v. State, Dep't of

Treasury, 421 N.J. Super. 75, 104 (Law Div. 2011)). Economic legislation "is

subject to a less strict vagueness test because its subject matter is often more

narrow, and because businesses, which face economic demands to plan behavior

carefully, can be expected to consult relevant legislation in advance of action."

Cameron, 100 N.J. at 592 (quoting Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 498 (1982)).

      Further, a "regulated enterprise may have the ability to clarify the meaning

of the regulation by its own inquiry, or by resort to an administrative process."

In re Farmers' Mut. Fire Assurance Ass'n of New Jersey, 256 N.J. Super. 607,

619 (App. Div. 1992) (quoting Village of Hoffman Estates, 455 U.S. at 498).

Thus, "[a] commercial regulatory statute can be held unconstitutionall y vague

only if it is 'substantially incomprehensible.'"   Ibid. (alteration in original)


                                                                          A-5496-16T1
                                      20
(quoting In re Loans of N.J. Property Liability Ins. Guar. Ass'n, 124 N.J. 69, 78

(1991)).

      We first address Speedway's claim that the State is collaterally estopped

from defending against its vagueness challenge due to the court's ruling in Neeld

v. Automotive Products Credit Ass'n, 21 N.J. Super. 159 (Dist. Ct. 1952.)

Collateral estoppel "bars relitigation of any issue which was actually determined

in a prior action, generally between the same parties, involving a different claim

or cause of action." Ziegelheim v. Apollo, 128 N.J. 250, 265 (1992) (quoting

State v. Gonzalez, 75 N.J. 181, 186 (1977)). A party asserting collateral estoppel

must demonstrate:

             (1) the issue to be precluded is identical to the issue
            decided in the prior proceeding; (2) the issue was
            actually litigated in the prior proceeding; (3) the court
            in the prior proceeding issued a final judgment on the
            merits; (4) the determination of the issue was essential
            to the prior judgment; and (5) the party against whom
            the doctrine is asserted was a party to or in privity with
            a party to the earlier proceeding.

            [First Union Nat. Bank v. Penn Salem Marina, Inc., 190
            N.J. 342, 352 (2007) (citing Hennessy v. Winslow
            Twp., 183 N.J. 593, 599 (2005)).]

However, "[e]ven where these requirements are met, the doctrine, which has its

roots in equity, will not be applied when it is unfair to do so."         Pace v.

Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002).

                                                                          A-5496-16T1
                                       21
        In Neeld, the court addressed whether N.J.S.A. 56:6-2(b) was

"unenforceable for uncertainty." The court noted that as a district court, it was

an "inferior court of limited jurisdiction," Neeld, 21 N.J. Super. at 161, and

acknowledged that "the better practice is for the inferior court to assume that an

act is constitutional until it has been passed upon by the Appellate Court." Ibid.

(quoting Legg v. County of Passaic, 122 N.J.L. 100, 104 (Sup. Ct. 1939)). Thus,

while the court found N.J.S.A. 56:6-2(b) unenforceable due to its uncertainty, it

did not determine the below-cost sales prohibition unconstitutional. Rather, the

court stated, "[a]lthough [it is] inclined to think it invalid, it cannot be said to be

clear beyond a reasonable doubt that the prohibition against selling below cost,

without more, is unconstitutional." Id. 163.

      Further, the 1952 Neeld decision was never appealed, nor has the

Legislature amended N.J.S.A. 56:6-2(b), despite being presented with the

opportunity on at least four occasions. Finally, unlike the Neeld court, we have

undertaken a thorough review of the legislative history and constitutionality of

the below-cost sales probation, and have conclusively determined it passes

rational basis scrutiny. Under these circumstances, we conclude it would be

fundamentally unfair to apply the equitable doctrine of collateral estoppel here.

Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67, 93 (2012)


                                                                               A-5496-16T1
                                         22
("Collateral estoppel is an equitable doctrine and should be invoked only to

promote equity."); Hennessey, 368 N.J. Super. at 452 ("An equitable doctrine,

collateral estoppel is not applied if it is unfair to do so.").

      Turning to the merits of Speedway's vagueness argument, we reject

Speedway's claim that persons of ordinary intelligence would be unable to

understand the meaning of the terms used in N.J.S.A. 56:6-2(b). While we

acknowledge that the phrase "net cost" is not defined, it is a commonly used

business term used in retail settings. Further, upon an examination of the

ordinary, well-understood definitions of "net" and "cost," 3 we conclude a person

of ordinary intelligence can ascertain the definition of "net cost."

      We reach a similar conclusion with respect to the term "selling expense"

which is defined in N.J.S.A. 56:6-1 as "all overhead and general business

expense[s]." As there is no "explicit indication[] of [a] special meaning[], the

words used in [the] statute carry their ordinary and well-understood meanings."

Afanador, 134 N.J. at 171.        The well-understood definition of "overhead,"

another commonly understood business term, is "business expenses (such as


3
  "Net" is defined as "remaining after the deduction of all charges, outlay, or
loss," Merriam-Webster, https://www.merriam-webster.com/dictionary/net (last
visited Apr. 8, 2019), and "cost" is defined as "the amount or equivalent paid or
charged for something." Merriam-Webster, https://www.merriam-webster.com/
dictionary/cost (last visited Apr. 8, 2019).
                                                                         A-5496-16T1
                                         23
rent, insurance, or heating) not chargeable to a particular part of the work or

product."    Merriam-Webster, https://www.merriam-webster.com/dictionary/

overhead (last visited Apr. 8, 2019).

       With respect to Speedway's overbreadth claim, we note that in

determining if a statute is overbroad, "the question is whether the enactment

reaches a 'substantial amount of constitutionally protected conduct.'" State v.

Lee, 96 N.J. 156, 164-65 (1984). A court must ask "whether the reach of the

law extends too far in fulfilling the State's interest." Id. at 165. Here, as

discussed at pp. 14-16, the Legislature had a legitimate interest in regulating the

pricing for all motor vehicle sales, regardless of intent. Thus, we conclude

N.J.S.A. 56:6-2(b) is not overbroad.

                                        V.

      Based on our conclusion that the below-cost sales provision does not

represent an unconstitutional restraint on trade nor is otherwise impermissibly

vague and overbroad under the Federal and New Jersey Constitutions, we reject

Speedway's claim that the court erred in dismissing the sixth count of the

complaint asserting violations of the Federal Civil Rights Act and New Jersey

Civil Rights Act. Without an underlying constitutional violation, there exists no

legal basis for those claims. See Rezem Family Assocs., LP v. Borough of


                                                                           A-5496-16T1
                                        24
Millstone, 423 N.J. Super. 103, 114-115 (App. Div. 2011) (stating that civil

rights laws "'[are] not [themselves] a source of substantive rights,' but merely

provide[] 'a method of vindicating federal [or state] rights elsewhere

conferred.'"); 42 U.S.C. § 1983; N.J.S.A. 10:6-2.

                                     VI.

      Finally, we find without merit Speedway's claims that the court

improperly applied Rule 4:6-2(e) and that its factual findings and legal

conclusions failed to satisfy Rule 1:7-4. In an oral decision, the court recited

the legal standard applicable with respect to Rule 4:6-2(e) dismissal motions,

followed by an explanation of the rational basis review to be applied to

Speedway's constitutional claims, and a summary of each party's arguments.

Then, the court, accepting as true Speedway's factual allegations, determined

that they were "palpably insufficient to support [the] claim[s]." Finally, the

court noted the presumption of constitutionality of statutes, particularly

economic legislation, and concluded that Speedway failed to rebut this

presumption. We are satisfied that the court properly applied Rule 4:6-2(e) and

complied with its obligation under Rule 1:7-4. Printing Mart-Morristown, 116

N.J. at 746 ("In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry

is limited to examining the legal sufficiency of the facts alleged on the face of


                                                                         A-5496-16T1
                                      25
the complaint."); Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594 (App.

Div. 2016) ("When a trial court issues reasons for its decision, it 'must state

clearly [its] factual findings and correlate them with relevant legal conclusions,

so that parties and the appellate courts [are] informed of the rationale underlying

th[ose] conclusion[s].'")

      Because we affirm the court's order dismissing the complaint, we need not

address Speedway's request that the matter be assigned to a different judge on

remand. We note, however, there is no support in the record for the request.

      Affirmed.




                                                                           A-5496-16T1
                                       26
