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State v. Consolidated Apartments

July 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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