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State of New Jersey v. Farooq Mohamed

April 21, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FAROOQ MOHAMED, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4797.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Carchman and Messano.

Defendant Farooq Mohamed appeals from a judgment of the Law Division on a trial de novo, wherein defendant was found guilty of violating Clifton Municipal Ordinance Code § 461-70(H)(3)(a) (the Ordinance). Specifically, defendant was charged with failure to comply with a condition imposed by the Clifton Planning Board limiting operation of his business to eighteen hours per day. Judge Scott J. Bennion in the Clifton Municipal Court concluded that defendant violated the condition. On the trial de novo Judge Jared Honigfeld also concluded that the ordinance was violated and defendant could not collaterally attack the Planning Board condition in the municipal court proceeding. We agree and affirm.

These are the relevant facts, which, as we have noted, were not in dispute. As to the specific offense, defendant admits that on November 27, 2008, he operated his store located at 849 Clifton Avenue, Clifton in excess of the eighteen-hour restriction that had been imposed on the operation of the business by a 1992 Resolution of the Clifton Planning Board.

In considering the issues raised on appeal, additional factual background is necessary. In February 1992, the then owner of the subject premises*fn1 sought to extend an existing shopping center and sought preliminary site plan approval from the Planning Board. The Board granted the approval with nineteen conditions including a condition that limited operation of new businesses to operate eighteen hours per day. The owner accepted the conditions and did not challenge the action of the Board.

In 1997, the existing tenant assigned its lease to Farman, Inc., a 7-Eleven franchisee. The owner then applied to the Planning Board to delete the eighteen-hour restriction, but that application was denied. That denial was memorialized in a resolution of November 8, 2007.*fn2 The owner took no action regarding the denial and did not commence an action in lieu of prerogative writs to challenge the Planning Board determination.

Thereafter, defendant, by his admission, violated the condition, and a complaint was filed against defendant alleging a violation of the Ordinance.*fn3 At the hearing in Municipal Court, defendant did not attack the Ordinance but challenged the underlying condition imposed in 1992, citing other instances of businesses operating in Clifton in excess of eighteen hours per day.

Both the Municipal Court Judge and the Law Division judge concluded that the municipal court proceeding was not the appropriate forum to collaterally attack the Planning Board condition. We agree and affirm substantially for the reasons set forth in the December 1, 2008 oral opinion of Judge Scott J. Bennion in the Clifton Municipal Court, which was later adopted by and expanded upon by Judge Honigfeld in his oral opinion of February 9, 2010. We add the following comments.

On appeal, defendant asserts that the eighteen-hour restriction fails to promote any legitimate public purpose "in violation of defendant's due process rights;" the "eighteen (18) hour per day restriction does not reasonably relate to the objects and purposes of the enabling statute;" and the municipal court had jurisdiction to consider these issues. We have considered these arguments and find them to be without merit.

R. 2:11-3(e)(1)(E).

The jurisdiction of the municipal court is defined by statute. N.J.S.A. 2B:12-17. Included within its jurisdiction, the court adjudicates ...


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