July 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
CONSOLIDATED APARTMENTS, INC., AND ROBERT MAGLIES, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, No. 4-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2007
Before Judges Seltzer and C.L. Miniman.
Plaintiff State of New Jersey appeals the dismissal of three summonses, two charging defendant Robert Maglies with violations of New Brunswick, N.J., Rev. Gen. Ordinance 8.40.080 and one charging defendant Consolidated Apartments, Inc. (Consolidated), with a violation of the same ordinance.*fn1 Both the South Brunswick Municipal Court*fn2 judge and the Law Division judge on de novo review concluded that notice of violation and opportunity to abate were constitutionally required on fundamental fairness grounds prior to the issuance of a summons. We reverse.
On April 26, 2005, at 2:30 p.m., New Brunswick Inspector M. Meyerhofer issued Summons SC-048052 to Maglies charging him with failing to keep the grounds at 300 Lawrence Street free of litter and debris in violation of New Brunswick, N.J., Rev. Gen. Ordinance 8.40.080. At trial, Maglies stipulated that all facts necessary to sustain a conviction existed at the date, time and place alleged in the summons, although the facts on which the violation was predicated were not set forth in the record. The State stipulated that no notice of violation and opportunity to abate was given respecting this property prior to the issuance of the summons.
On May 31, 2005, at 1:25 p.m., Inspector Ariel Ayala issued Summons SC-049366 to Consolidated charging it with failing to maintain the grounds at 299 Lawrence Street in a safe and sanitary condition in violation of New Brunswick, N.J., Rev. Gen. Ordinance 8.40.080. Consolidated made a stipulation similar to that of Maglies, as did the State. Again, the actual facts were not placed on the record.
Lastly, on July 26, 2005, at 10:45 a.m., Inspector Ayala issued Summons SC-050679 to Maglies charging him with failing to maintain the grounds at 302 Lawrence Street in a safe and sanitary condition in violation of New Brunswick, N.J., Rev. Gen. Ordinance 8.40.080. Maglies again stipulated that the facts necessary to sustain a conviction existed at the date, time and place alleged. The State again stipulated that prior notice of violation had not been given. The factual predicate for the violation was not placed on the record.*fn3
The ordinance in question provides:
A. It is the duty of persons owning or occupying property, including tenants, lessees, occupants, or persons in charge, to keep the sidewalk and gutter areas (twenty-four (24) inches from curb into street) in front of their premises free of litter, which include any solid waste spilled by animals or vandals, dropped or thrown by unknown persons, blown by the wind or as a result of a defective or inadequate containers. This section includes residential tenants as well as commercial and industrial establishments.
B. It is the duty of persons owning or occupying property, including tenants, lessees, occupants, or persons in charge, to keep their property, the front, side and/or rear yard free of litter, which includes any solid waste spilled by animals or vandals, dropped or thrown by unknown persons, blown by the wind or as a result of a defective or inadequate container. This section includes residential tenants as well as commercial and industrial establishments. [Ibid.]
The municipal ordinance defines the term "litter" in the following manner:
"Litter" refers to and includes any used or unconsumed substance or waste material which has been discarded whether made of aluminum, glass, plastic, rubber, paper, or other natural or synthetic material, or any combination thereof including, but not limited to, any bottle, jar or can, or any top, cap or detachable tab of any bottle, jar, or can, any unlighted cigarette, cigar, match or any flaming or glowing material or any garbage, trash, refuse, debris, rubbish, grass clippings or other law or garden waste, newspaper, magazines, glass, metal, plastic or paper containers or other packaging or construction material but does not include the waste of the primary processes of mining or other extraction processes, logging, saw milling, farming or manufacturing.
[New Brunswick, N.J., Rev. Gen. Ordinance 8.40.020.]
The terms "aluminum," "garbage," "trash," "newspaper," "glass containers," and "plastic containers" are also defined. Ibid. Clearly, a nonresident owner would not be immediately aware of "any solid waste spilled by animals or vandals, dropped or thrown by unknown persons, [or] blown by the wind"*fn4 unless the owner made continual daily inspections of his rental properties.
The Law Division judge noted that the parties agreed that "the primary purpose of the ordinance is to protect public health, safety and welfare insofar as . . . maintaining . . . sanitary property." She placed on the record the parties' agreement that, in the exercise of appropriate police power, the municipality can enact and enforce such an ordinance. She found that the penalties were "secondary in terms of the objective of the ordinance." She concluded that notice to abate the condition served the objective of the ordinance. She determined that a property owner's ability to comply with the ordinance was impacted by people, animals and weather over which the property owner had no control. Although the judge concluded that the ordinance was not vague, she found that it was fundamentally unfair:
However, what is problematic is that the lack of notice to abate it . . . could surely come under the concept of fundamental fairness insofar as that doctrine in New Jersey does serve to protect citizens against unjust and arbitrary governmental action. Procedures that tend to operate arbitrarily can[,] insofar as the ability to cite this violation at any point in time and understanding that it is a strict liability ordinance, fundamental fairness requires at a minimum that the individual be given notice to abate, because under the circumstances [in which] this ordinance operates, an individual could potentially be subject to unfair treatment and . . . that applies . . . in this case. And again, I go back to the concept of fundamental fairness would operate to protect the rights of a defendant under these circumstances.
The judge then dismissed the three summonses issued to Maglies and Consolidated.
On appeal, the State argues that the municipal court and the Law Division erred when they found that the absence of a notice provision in New Brunswick, N.J., Rev. Gen. Ordinance 8.40.080 violated principles of fundamental fairness under the New Jersey Constitution. The State contends that New Brunswick enacted a "strict liability regulatory scheme . . . to deal with a serious social problem" as permitted by State v. Kiejdan, 181 N.J. Super. 254, 258 (App. Div. 1981), and State v. Kinsley, 103 N.J. Super. 190, 193 (Cty. Ct. 1968), aff'd o.b., 105 N.J. Super. 347 (App. Div. 1969). It asserts that New Brunswick's ordinance is entitled to a rebuttable presumption of validity and that Maglies and Consolidated did not make "a clear showing that the ordinance is arbitrary or unreasonable," as required by Hudson Circle Servicenter, Inc. v. Town of Kearny, 70 N.J. 289, 298-99 (1996). The State argues that the doctrine of fundamental fairness, as elucidated in State v. Yoskowitz, 116 N.J. 679, 705-08 (1989), does not require invalidation of the ordinance.
Maglies and Consolidated respond that the absence of prior notice violates substantive due process because the absence of notice is arbitrary and unreasonable, and without notice, the ordinance "fails to meet the evil that it was designed to address." They argue that the ordinance unreasonably requires constant vigilance every moment of the day and night and thus "makes compliance impossible as a practical matter," rendering the ordinance fundamentally unfair. They assert that strict liability is not appropriate because compliance is not within their control. Finally, they urge that the ordinance is void for vagueness because property owners will not know when they are in violation of the ordinance and, thus, cannot comply with the requirements of the ordinance. Additionally, they contend that the ordinance provides no guidelines to prevent erratic or discriminatory enforcement by municipal inspectors. In other words, the ordinance fails to establish standards for determining "what conditions are significant enough to justify a summons," and is, thus, void for vagueness.
The scope of our review is de novo because both the municipal court judge and the Law Division judge decided an issue of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (no deference is owed to the trial court's "interpretation of the law and the legal consequences that flow from established facts"). Clearly, the validity of a statute or ordinance is a purely legal issue subject to de novo review. Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63, 84 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 984, 166 L.Ed. 2d 710 (2007).
In reviewing a municipal ordinance, we presume the ordinance is constitutional and the party urging invalidity bears the burden to overcome that presumption. Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, appeal dismissed, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed. 2d 470 (1981); Capitol Movies, Inc. v. City of Passaic, 194 N.J. Super. 298, 302 (App. Div. 1984) ("the burden of persuasion respecting its alleged arbitrariness and unreasonableness rests on the party seeking to overturn it" (citing Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980))).
Ordinances, as well as statutes, are accorded a presumption of validity. Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564 (1975); Collingswood v. Ringgold, 66 N.J. 350, 358 (1975). The presumption is not irrebuttable but it imposes a burden on the party seeking to overturn the ordinance. Hutton Park Gardens v. West Orange Town Council, supra, 68 N.J. at 564; Collingswood v. Ringgold, supra, 66 N.J. at 358; Moyant v. Paramus, 30 N.J. 528, 535 (1959). The presumption may be overcome only by a clear showing that the local ordinance is arbitrary or unreasonable. Vickers v. Gloucester Tp. Com., 37 N.J. 232, 242 (1962), cert. denied, 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed. 2d 495 (1963); Kozesnik v. Montgomery Tp., 24 N.J. 154, 167 (1957); Local Bd. of Health, Berkeley Tp. v. Johnson, 73 N.J. Super. 384, 391-392 (App. Div. 1962). [Hudson Circle Servicenter, supra, 70 N.J. at 298-99.]
The presumption of validity is "a matter of state constitutional compulsion." Capitol Movies, supra, 194 N.J. Super. at 302 (citing N.J. Const., art. IV, § 7, ¶ 11). See also Hudson Circle Servicenter, supra, 70 N.J. at 298 (holding that municipal ordinances must be liberally construed as a matter of constitutional requirement). Thus, Maglies and Consolidated bear the burden to prove "by a clear showing that the local ordinance is arbitrary or unreasonable." Hudson Circle Servicenter, supra, 70 N.J. at 299.
Generally, unless fundamental rights are involved, "a state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose and is not arbitrary or discriminatory." Greenberg[ v. Kimmelman, 99 N.J. 552,] 563 [(1985)]. Interpreting substantive due process rights under the Fourteenth Amendment, our Supreme Court set forth a more stringent standard: "substantive due process is reserved for the most egregious governmental abuses against liberty or property rights." Rivkin v. Dover Township Rent Leveling Bd., 143 N.J. 352, 366, 368, cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L.Ed. 2d 198 (1996) (noting that bias of member of rent leveling board did not result in violation of substantive due process). [United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 27-28 (App. Div.), certif. denied, 170 N.J. 390 (2001) (holding that ordinance imposing liability on tenants for occupancy violations was constitutional).]
All police power legislation, such as the ordinance before us, must be reasonably exercised -- the regulation must not be unreasonable, arbitrary or capricious, the means selected must have a real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated. [Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971).]
See also Caffiero, supra, 86 N.J. at 319-20 ("As long as the means chosen by the Legislature have a rational relation to obtaining the objective sought, the statute will not be in violation of due process of law as an arbitrary or capricious enactment.").
We have recognized that "a wide variety of social and economic problems has impelled the adoption in this century of numerous strict-liability penal statutes by both Congress and state legislatures . . . ." State v. Chiarello, 69 N.J. Super. 479, 494 (App. Div. 1961) (quotations omitted), certif. denied, 36 N.J. 301 (1962). A statute may render an act criminal without the requirement of guilty knowledge or wrongful intent. United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943); State v. De Meo, 20 N.J. 1, 7 (1955). For example, we have upheld the constitutionality of a state regulation imposing strict liability on a trainer of any horse found to have had certain drugs in its system following a race and affirmed the penalty of suspension even though the trainer had no knowledge of the administration of such drugs. Dare v. State, 159 N.J. Super. 533 (App. Div. 1978).
Municipal ordinances, too, may impose strict liability. State v. Elmwood Terrace, Inc., 85 N.J. Super. 240, 246 (App. Div. 1964) (upholding heat ordinance). A challenge to an ordinance based on theoretical facts outside the record will not support its invalidation. Id. at 247. In evaluating the reasonableness of an ordinance imposing strict liability, we consider all of the attendant circumstances, including the need to deter, the amount of the fine, and the benefit to the public weighed against "any injustice resulting from strict liability." United Prop. Owners Ass'n of Belmar, supra, 343 N.J. Super. at 29.
In Kiejdan, supra, 181 N.J. Super. 254, we considered a heat ordinance imposing strict liability for noncompliance. We noted that "penal consequences may be imposed irrespective of fault or intent in the traditional mens rea sense." Id. at 257. The issue before us was whether repetitive vandalism of the defendant's heating system constituted a defense to liability. Ibid.
We observed that the propriety of strict-liability statutes and ordinances "has long been settled." Ibid. (citing State v. Labato, 7 N.J. 137, 149 (1951)). We recognized that various social problems have led to the adoption of strict-liability penal statutes. Id. at 258. We found that strict liability "continues to be an unexceptionable and appropriate legislative option where employed to implement a regulatory scheme designed to deal with a serious social problem." Ibid.
We concluded that the heat ordinance was part of such a scheme and necessary to effectuate its purposes. Ibid. We observed that "statutory provisions imposing penalties for violation of regulatory schemes are in the nature of civil penalties" and that "such a civil penalty was intended by the [heat] ordinance." Ibid. We noted that the penalty ranged from $2 to $100, the permitted range under N.J.S.A. 26:3-70, and thus, "the statutory penalty provisions of N.J.S.A. 26:3-70 to 82 were intended to apply," and that N.J.S.A. 26:3-72 conferred jurisdiction on the municipal court to entertain proceedings to enforce such civil penalties. Id. at 258-59.
We responded to defendant's substantive due process argument, as follows:
Finally, defendant contends, in what is apparently a substantive due process argument, that fundamental fairness should preclude penalty enforcement for events beyond the defendant's control. We do not address that contention since we are persuaded, as were the trial courts here, that the defense to these proceedings did not rely on such events. The argument might have appeal here if heat could not be supplied because of some natural catastrophe such as earthquake or fire or, indeed, because of some unanticipatable intervention of human agency. If the violations here were based on heat interruption resulting from an initial act of vandalism, promptly counteracted, we might then be dealing with causes which might invoke substantive due process concerns. But such is not the case here. Defendant was not charged with ordinance violation until several weeks after the first act of vandalism. It is clear that as soon as that first act occurred, even if that first act were completely and reasonably unanticipated, he was placed on notice of his responsibility to take steps to prevent a recurrence. Certainly effective steps could have been taken and the fact of recurrence demonstrates that they were not taken.
We are convinced that the essence of strict liability in the penal context before us is to warn those subject to sanction that a high, if not extraordinary, degree of care in the conduct and management of their regulated business and affairs is required.
If that degree of care is warranted as a matter of the public interest, and if it remains ultimately within one's power and capacity to effect compliance with imposed regulation, strict liability does not offend any traditional substantive due process notion. [Id. at 260 (emphasis added).]
Our Supreme Court addressed strict-liability regulations in State v. Maldonado, 137 N.J. 536 (1994). There the Court held:
Absolute liability for regulatory offenses traditionally finds justification in administrative convenience, the need to deter through the most effective forms of prosecution, dispensing with proof of intent, and imposing relatively minor punishment, all adding up to a conclusion that whatever injustice results from strict liability is more than counterbalanced by benefit to the public. . . . The usual rationale is that the added deterrence of strict liability is all the justification that is needed in view of the serious threat to public safety posed by the conduct prohibited by those laws. [Id. at 550-51 (emphasis added) (citations omitted).]
The Court also held that "constitutional-due-process limitations on strict-liability criminal statutes apply when the underlying conduct is so passive, so unworthy of blame, that the persons violating the proscription would have no notice that they were breaking the law." Id. at 555.
In discussing penalty statutes the United States Supreme Court observed,
The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. [Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 297 (1952).]
With these legal principles in mind, we are not persuaded that Maglies and Consolidated have made a clear showing that the ordinance is arbitrary or unreasonable. The parties agreed that the municipality could enact and enforce such an ordinance in the exercise of appropriate police power. They also agreed that the primary purpose of the ordinance is to protect public health, safety, and welfare by requiring the maintenance of sanitary property. Thus, it is undisputed that the ordinance "reasonably relates to a legitimate legislative purpose." Greenberg, supra, 99 N.J. at 563.
Like the heat ordinance at issue in Kiejdan, this ordinance is in the nature of a civil penalty within the permitted range of N.J.S.A. 26:3-70. The imposition of a strict-liability civil penalty serves the purpose of the ordinance by causing property owners to be vigilant in the maintenance of their properties. We are not persuaded by the conclusion of the Law Division judge that notice of violation will serve that purpose because it will permit property owners to neglect their property until a notice of violation has been served on them. In an urban setting such as New Brunswick, notice of violation runs counter to protecting public health, safety and welfare and would require enormous enforcement efforts in a city where thousands of housing units are predominantly rental units that have no owner in residence.
We are satisfied that any injustice that may result from imposition of a strict-liability civil penalty "is more than counterbalanced by benefit to the public." Maldonado, supra, 137 N.J. at 550. "[T]he added deterrence of strict liability is all the justification that is needed in view of the serious threat to public safety posed by the conduct prohibited." Id. at 551.
Additionally, we are satisfied that the record before us does not support a conclusion that the ordinance is fundamentally unfair.
In New Jersey the doctrine of fundamental fairness has been an "elusive concept . . . [where] exact boundaries are undefinable." Greenberg, New Jersey's Fairness and Rightness Doctrine, 15 Rutgers L.J. 927, 928 (1984), (quoting New Jersey State Parole Bd. v. Byrne, 93 N.J. 192, 209 (1983)). For the most part, it has been employed when the scope of a particular constitutional protection has not been extended to protect a defendant. As one commentator has noted, the fundamental-fairness "cases often follow the same pattern: the court identifies a constitutional issue, discusses it, and then declines to reach it, resting its decision instead on fairness and rightness or an earlier fairness decision." Greenb[e]rg, New Jersey's Fairness and Rightness Doctrine, supra, 15 Rutgers L.J. at 928. But see State v. Godfrey, 139 N.J. Super. 135 (App. Div.) (indictment could be dismissed on either fundamental-fairness or double-jeopardy grounds), certif. den. 73 N.J. 40 (1976). [Yoskowitz, supra, 116 N.J. at 704-05.]
In Yoskowitz the Supreme Court did "not question the vitality of the fundamental-fairness doctrine." Id. at 708. Rather, the Court found "that an inadequate factual record exists to determine whether it is applicable to this case." Ibid. The Court concluded that the record before it was insufficient to determine the fundamental-fairness issue. Ibid.
We are beset by the same problem in this case. We cannot ascertain whether fundamental fairness might preclude prosecution of the civil penalty case. There is no evidence before us that one or more of the summonses was predicated on litter strewn on the properties of Maglies and Consolidated as a result of vandals, passersby, animals or the wind. As a consequence, Maglies and Consolidated have not met their burden to prove that some fundamental unfairness infused the enforcement of the ordinance. We express no opinion as to the viability of a fundamental-fairness defense to a prosecution, shown by the evidence, to be based on a minimal and undiscoverable violation.
Finally, we are not persuaded that the ordinance is, in any respect, vague. If anything, it is extremely explicit. Property owners will know when they are in violation of the ordinance by inspecting their property. The ordinance does not need to establish standards for determining "what conditions are significant enough to justify a summons" because it is clear that any litter is forbidden.
Reversed and remanded for further proceedings consistent with this opinion.