Point Beach Goes After Jenkinson's Legally to Try To Recoup Special Event Fees
But town has to decide if it will sue or issue violation to try to get $28,202
The Point Beach Council voted 2 to 1 Tuesday night to take legal action against Jenkinson's Boardwalk to try to recoup about $28,202 in special event fees.
But no one is sure yet exactly how, where or when that legal action will be taken.
Council members Michael Corbally, who made the motion, and Kristine Tooker voted yes, Council member Tim Lurie voted no, and Council member Jeffrey Dyer recused himself because his company works with Jenkinson's.
Council members Sean Hennessy and Frank Rizzo, who has missed many recent meetings due to illness, were absent.
Mayor Vincent Barrella did not vote because in the borough council form of government, the mayor only votes to break a tie.
Jenkinson's representatives could not be reached Tuesday night.
Municipal Clerk Maryann Ellsworth had said in a recent interview that she had billed Jenkinson's $28,202.75 for their Music Fest, Fireworks, and Big Joe Henry shows during the summer.
"These are the events that require additional police services," she had wrote in an Oct. 11 email.
Corbally said at the meeting that the town is paying "$250,000 for Operation Rice Krispies this year and next year...If we didn't have Martell's and Jenkinson's, we wouldn't need Rice Krispies."
"Rice Krispies" and "Snap, Crackle and Pop" have been the label used for ramped-up police enforcement of criminal mischief violations on and near the boardwalk and beach that police said were worse this year during weekends than in the past 17 years.
Numerous year-round and seasonal residents have complained about weekend noise, public urination and trash on their property and people stumbling drunk through the streets, through their yards and sleeping on their property.
Part of the vote to take legal action was to authorize Borough Attorney Thomas Gannon to research whether the town should file suit in Superior Court, Toms River, or whether it should issue a notice of violation for not abiding by a municipal ordinance mandating special event fees.
Ellsworth said at the Tuesday night meeting that since billing Jenkinson's for the special event fees, the company has asked her questions about who authorized the bills and who is the authority to send out the bills.
"The ordinance is the authority that authorizes the bills," she told the council, relaying what she had told Jenkinson's.
She said she has answered Jenkinson's questions, but not received any payment.
Lurie, who did engineering consulting work for Jenkinson's a few years ago, said he wanted to amend the motion to first get an opinion from Borough Attorney Thomas Gannon on whether the town had a good case, as well as whether it should pursue the matter through a lawsuit filed in Superior Court or through an ordinance violations process in municipal court.
Corbally said he was open to hearing from the attorney about which venue would be best for pursuing legal action, but that he still wanted the vote to be for legal action to be initiated.
Lurie also asked Gannon how much a lawsuit filed in Superior Court would cost. Gannon never gave any estimate on that, but said, "It's expensive."
In response to a question from Lurie, Gannon also said a lawsuit could take a year.
Although Dyer recused himself from voting, he did make his feelings clear.
"I'm recusing myself for obvious reasons," he said, "but I do want to say that I think it makes sense to find out if we have a case before spending money."
Corbally said, "If we don't win, we'll hear from the judge what kind of wording we need to put in place so we'll win next year."
Gannon said he would research the legal options, adding that bringing suit "requires a higher standard of proof and is more expensive."
"I think we could prevail," he added. "But there are certain challenges, such as the vagueness of the ordinance, the clarity and past practice."
Resident Vincent Castin asked if the town can demand payment of special event fees in advance as a requirement for Jenkinson's to hold the special events.
Ellsworth said that's exactly how events are handled for nearly all other organizations, such as the fundraiser walk recently sponsored by the American Cancer Society.
The society pays about $3,000 to $5,000 in advance, she said, noting the amount billed in advance is the town's estimate of how much money it will have to spend in extra police services.
Then after the event, they, and other organizations holding special events, have 10 days to pay any additional police costs that were incurred, Ellsworth said.
She said that in the past there have sometimes been organizations that did not pay the balance within 10 days.
"Then I send another letter saying they have to pay or their event won't be approved next year," Ellsworth said. "I usually get a check after that."
Jenkinson's, in contrast, has held numerous events for many years without ever having to pay the fees before, during or after, officials have said.
Former Councilman John Dixon said it seems like it would be better for the borough to pursue the matter as a violation notice in municipal court, instead of having to pay attorney fees and court fees in Superior Court.
Barrella said that since an action against Jenkinson's would be more involved than the typical municipal court case, a special session would have to be called.
"The attorneys would all have to come in for that, so there would be attorney's fees either way," he said.
Barrella said the legal action might result not only in recouped special event fees, but in establishing a stronger basis for the town to collect the fees in the future.
Earlier this year, Ellsworth recalled, the council had voted to exempt Jenkinson's from having to pay a special event fee for its Easter parade.
Ellsworth had said in a recent interview that the Point Pleasant First Aid and Emergency Squad was exempted from having to pay a special event fee for its upcoming Monster Dash because the town exempts the first aid and fire department since they are manned by volunteers protecting the town's health, safety and welfare.
"The First Aid Squad always files the necessary special event paperwork and was approved by the Governing Body on 4/19/11," Ellsworth wrote in a recent email. "Anyone who's interested can look up those minutes on the town website (www.pointpleasantbeach.org).
"The fee was waived since they, like PPB Fire Company #2 and Ocean Fire Company #1, are unpaid volunteers who directly serve all town residents and rely on their fundraisers to stay in existence.
"You can only imagine how much it would cost the taxpayers of Point Pleasant Beach if we had a paid fire/emt squad," she wrote.