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State v. Kiejdan

Decided: October 13, 1981.


On appeal from the Superior Court, Law Division, Atlantic County.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.


[181 NJSuper Page 256] Following a trial de novo in the Law Division, defendant, the owner of an apartment complex in Egg Harbor Township, was convicted of two violations of a Township Board of Health ordinance which, pursuant to N.J.S.A. 26:3-69.1 et seq. , adopted by reference the Public Health and Nuisance Code of New

Jersey. The specific provision thereof which defendant was found guilty of violating makes it unlawful for the owner of multi-unit residential property to fail to provide heat to tenants to the degree and at the times therein prescribed. Defendant was fined $75 for each violation and appeals.

The State's proofs support the conclusion, beyond a reasonable doubt, that on October 30 and 31, 1979, the dates charged, insufficient heat, if any at all, was furnished to at least two tenants. The primary thrust of the defense was not to dispute the fact of the heating failure but rather to attempt to excuse it on the ground that the building's heating system had been continuously and repeatedly damaged by vandalism during the two or three weeks prior to the late October dates here charged. Defendant claims that during that period he was engaged in a continuing effort to make repairs to the heating system, only to have the results of those efforts subjected to further and recurring acts of vandalism.

The question thus raised is whether the facts upon which the defense was predicated would, if proved, constitute a viable legal defense to the charges. It was the view of both the Law Division and the municipal court, in which we concur, that the ordinance in question imposes strict liability for noncompliance and hence that its penal consequences may be imposed irrespective of fault or intent in the traditional mens rea sense. We, accordingly, find no merit in defendant's claim that a "culpable mental state" is a prerequisite to conviction of an ordinance violation.

To begin with, it has long since been settled, particularly in respect of minor offenses, that the "Legislature may make the doing of . . . [a] prohibited act criminal or penal, regardless of a corrupt or criminal purpose or even knowledge of the illegal character of the act; and in such case only the doing of the proscribed act need be shown." State v. Labato , 7 N.J. 137, 149 (1951). While it is recognized that this strict liability approach to penal sanctions should be "sharply limited," nevertheless it is

also clear that "a wide variety of social and economic problems has impelled the adoption in this century of numerous 'strict liability' penal statutes." State v. Chiarello , 69 N.J. Super. 479, 494 (App.Div. 1961), certif. den. 36 N.J. 301 (1962).

Without attempting to define the outer limits of constitutional or community acceptability of the strict liability technique, we are satisfied that that technique continues to be an unexceptionable and appropriate legislative option where employed to implement a regulatory scheme designed to deal with a serious social problem. See Dare v. State , 159 N.J. Super. 533, 538 (App.Div. 1978), and cases therein collected. And see State v. Kinsley , 103 N.J. Super. 190, 193 (Cty.Ct. 1968), aff'd o.b. 105 N.J. Super. 347 (App.Div. 1969). The provision here in question prescribing the landlord's obligation to furnish heat is, moreover, part of just such a regulatory scheme intended to protect and advance the public health and safety. Its imposition of penal consequences for a failure of compliance, whether or not intended, is both a clearly implied part of that scheme and a necessary tool for the effectuation of its public purpose. See , so holding in respect of similar ordinances, State v. Elmwood Terrace, Inc. , 85 N.J. Super. 240 (App.Div. 1964); Newark v. Charlton Holding Co. , 9 N.J. Super. 433 (Cty.Ct. 1950).

We point out that typically, although not necessarily so, statutory provisions imposing penalties for violation of regulatory schemes are in the nature of civil penalties enforceable by way of summary proceedings pursuant to the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. , implemented by R. 4:70. And see Sawran v. Lennon , 19 N.J. 606 (1955); Verona v. Shalit , 96 N.J. Super. 20 (App.Div. 1967); Conservation and Ec. Dev. Dept. v. Scipio , 88 N.J. Super. 315 (App.Div. 1965), certif. den. 45 N.J. 598 (1965). It further appears that just such a civil penalty was intended by the ordinance here. As we have already noted, the ordinance was adopted by the Township Board of Health pursuant to N.J.S.A. 26:3-69.1 et seq. The penalty upon conviction of ordinance violation was therein fixed at not less than $2

nor more than $100. The amount of that penalty conformed precisely with that prescribed by the pre-1970 version of N.J.S.A. 26:3-70. We thus have no doubt that the statutory penalty provisions of N.J.S.A. 26:3-70 to 82 were intended to apply, and as a matter of law were required to apply, to enforcement of the ordinance. N.J.S.A. 26:3-72, moreover, expressly requires penalty proceedings to be prosecuted in accordance with N.J.S.A. 2A:58-1 et seq. , and confers jurisdiction upon the municipal court to entertain such proceedings. But whether the proceedings here were actually civil in nature or, as the parties hereto apparently believed, quasi -criminal in nature, is ...

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