On appeal from Superior Court of New Jersey, Law Division, Cape May County.
Dreier and Long. The opinion of the court was delivered by Dreier, J.A.D.
Defendant has appealed from a Law Division conviction for a parking violation for which the judge imposed a $10 fine and $5 costs. The facts are simple and raise a single question, the interpretation of the term "12 p.m."
Defendant had parked in a space controlled by a parking meter which displayed a legend showing the hours of the meter's operation to be from 8 a.m. until 12 p.m. The underlying municipal ordinance regulated parking from "8:00 a.m. to 12:00 midnight," but the sign which was the only notice of the effective hours of metered parking, did not use the language of the ordinance. Defendant contended in the Wildwood Municipal
Court and the Law Division, and reiterates before us, that when the overtime parking ticket was given at 1:35 p.m., it was after the posted hours of the meter and, therefore, he should be exonerated. He noted at trial that in the local post office in Wildwood the Saturday hours were posted as 10:00 a.m. to "noon (12 o'clock p.m.)" [Emphasis added]. He further noted that in a manual he received accompanying a video recorder, midnight was set at 12 o'clock a.m. These examples were given to the trial court to indicate at least the ambiguity created by the use of the terms 12 o'clock a.m. or 12 o'clock p.m. rather than the more precise terms of noon and midnight. From this ambiguity, defendant argued that since quasi-criminal and penal statutes are to be strictly construed, the signs in question should be found at least ambiguous and defendant's conviction reversed.
The trial judge in a letter opinion determined that 12 p.m. meant only midnight and "the fact that people have a misconception of a fact or an error in their understanding of a concept does not change the fact nor alter the concept." He determined as a matter of law that "Twelve Midnight is 12 hours after Noon (post meridiem)." He also stated, however, that "Twelve midnight is also 12 hours before Noon (ante meridiem)." But after demonstrating this ambiguity of 12 midnight in terms of a.m. or p.m., he stated, ipse dixit: "Therefore, 12 p.m. is 12 midnight." This reasoning is based upon a fallacy. Although it makes no difference to after noon references or to midnight, the terms ante meridiem and post meridiem do not generally refer to the number of hours before or after noon (the meridian), but rather the time occurring in the 12 hour period before or after noon. Thus, although three p.m. is also three hours after noon, three a.m. is not three hours before noon, but rather nine hours before noon; it is the third hour in the 12 hours ante meridiem.
At oral argument in the Law Division the trial judge made it clear that he accepted the State's argument that in a shore
community it would be illogical to suppose that the municipality intended to regulate parking only in the morning, since revenues were derived from the meters throughout the entire day especially in the summer periods. In his opinion the judge quoted Schierstead v. Brigantine, 29 N.J. 220, 230 (1959):
He further determined that "the same logic and construction should apply to legal notices such as the one here in dispute." Although we agree with this legal principle, we cannot agree with the judge's application of it to this case. If it were proper to speculate upon what a motorist would discern as to the municipality's motives in setting the hours of parking regulation, it would not be unreasonable to suppose that the City of Wildwood determined that to attract additional downtown patronage, it would not charge for parking in the afternoon, a time when most people would be at the beaches.
The issue, therefore, is whether the notice given to the public was clear, since any ambiguity should be resolved to avoid unfairness and in favor of defendant. The posted notice should be subject to the same rules of construction as any underlying statute or ordinance. "Statutes rendering behavior criminal . . . must do so in terms that cannot arguably be misunderstood. . . ." State v. Hodge, 95 N.J. 369, 374 (1984). Also, as noted in State v. Leonardo, 109 N.J. Super. 442, 448 (App.Div.1970):
A penal statute must be strictly construed and will not be held to create a liability not clearly fixed by the words of enactment. . . . Before one can be punished under such a statute, the condemned act must be plainly and unmistakably within the statute. . . . Any doubt ...