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State v. Capaci

Decided: October 30, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT CAPACI, DEFENDANT-APPELLANT



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

Pressler, R.s. Cohen and Muir, Jr. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

[260 NJSuper Page 66] Defendant Vincent Capaci and his wife owned residential rental property in Paterson. The record does not show whether it was a single residence or a multi-unit building. They sold the property in 1989, while it was occupied by a tenant or tenants, without complying with Article 29 of Chapter 13 of Paterson's codified ordinances. Defendant was found guilty in the municipal court and then in the Law Division of violating the ordinance,

and was fined $40 and assessed $10 in costs. We reverse.

Article 29 concerns lead paint in dwellings. It was enacted pursuant to municipalities' general police power, and pursuant to N.J.S.A. 24:14A-1 to -11, which prohibits the use of lead paint in certain circumstances, and requires its removal and disposal when it constitutes a danger to persons.

The statute prohibits the application of lead paint to toys, furniture, the exposed interior surfaces of any dwelling, or any exterior surface that is readily accessible to children. N.J.S.A. 24:14A-1. It also prohibits knowingly selling or offering to sell toys or furniture to which lead paint has been applied, or knowingly transferring or exchanging such toys or furniture if the lead paint will be readily accessible to children. N.J.S.A. 24:14A-2. Violators of the statute are declared to be disorderly persons. N.J.S.A. 24:14A-3. Such persons are punishable under the Criminal Code by imprisonment for up to six months. N.J.S.A. 2C:43-8.

The lead paint statute goes on to declare as a public nuisance the presence of lead paint on the interior of a dwelling or on any exterior surface, readily accessible to children, which causes a hazard to anyone coming in contact with it. N.J.S.A. 24:14A-5. The local board of health or other locally constituted health agency (N.J.S.A. 24:14A-4e) is given "the primary responsibility for investigation of violations under this act and the enforcement of this act, . . ." N.J.S.A. 24:14A-6. It can order the removal and appropriate Disposition of lead paint from dwellings, N.J.S.A. 24:14A-7; in high risk cases, it can order remediation within 10 days. N.J.S.A. 24:14A-8. Failure of a property owner to comply with an order of the local board to correct a violation permits the board to take the corrective action, sue the owner and/or have a property lien for the expense. N.J.S.A. 24:14A-9. If a local board is not doing its job, the State Department of Health can step in. N.J.S.A. 24:14A-10. The Department also has the authority to issue

rules and regulations. N.J.S.A. 24:14A-11. The statute contains no provisions for inspections or remediation before rentals or property transfers.

The Paterson ordinance contains such provisions. It requires the owner of every dwelling*fn1 to obtain a "compliance letter" from the city Division of Health before allowing occupancy by a new tenant or before transfer of title to a new owner. The compliance letter is issued by the city health officer stating that the dwelling has been found free of any lead paint or any violation of the requirements of the statute or the ordinance. It is issued only after an inspection, which "must be conducted while the dwelling is vacant" no more than 30 days before new tenancy or transfer of title. If the inspection reveals lead paint violations, the owner must remove and dispose of it, and the property is then reinspected. A person found to be in violation of the ordinance "shall be adJudged a disorderly person."

The ordinance is in some respects patterned on a Paterson ordinance requiring an inspection for certification of occupancy at the commencement of any tenancy, which was upheld by the Supreme Court in Dome Realty, Inc. v. Paterson, 83 N.J. 212, 416 A.2d 334 (1980). There are differences, however, between that ordinance and this, and in the settings in which they operate. Defendant raises a number of troublesome objections to the validity of the lead paint ordinance. One of them is dispositive and requires a reversal. It is that the penalty provision is invalid. It subjects a disorderly person to punishment of up to six months' incarceration. N.J.S.A. 2C:43-8. The authority of a municipality to prescribe penalties for ordinance violations is found in N.J.S.A. 40:49-5. The limit of that authority is incarceration for 90 days. The ordinance penalty provision is therefore invalid as exceeding the municipal authority.

It is not only the excess that is invalid. We cannot blue-pencil the unlawful provision to delete the offending overage and rescue the valid remainder, even though defendant received a sentence that would have been proper under a lawful ordinance provision. The penalty provision is wholly invalid, and cannot support an otherwise appropriate sentence. Verona v. Shalit, 96 N.J. Super. 20, 232 A.2d 431 ...


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