On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-09-10 (A-5858-09) and 009-12-10 (A-1720-10).
The opinion of the court was delivered by: Harris, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Graves, Harris, and Koblitz.
The opinion of the court was delivered by HARRIS, J.A.D.
These two appeals, which stem from enforcement proceedings under the City of Garfield's ordinance-based property maintenance code, have been consolidated on our motion for purposes of this opinion. Defendant Ellen Heine seeks review of two judgments of the Law Division, by different judges, that found her guilty of violating several Garfield ordinances. We affirm in part and reverse in part.
These are the facts that were developed during Heine's first trial,*fn1 and upon which the Garfield Municipal Court found her guilty. Heine is the owner of real property at 515 Van Bussum Avenue. The municipality's construction and fire official, Gerald Walis, testified that on October 27, 2009, he went to Heine's property because there were several police reports indicating possible hazardous conditions in the building. He claimed that there were tenants in the building who could "be in danger of some hazards" if the premises were not inspected. Walis testified he had been to the premises on at least two or three occasions.
When Walis arrived with Garfield's building official, Frederick Krowl, Walis identified himself to Heine as a municipal inspector and asked to enter the building. Heine "told the tenants, do not let them in, [they] have no right being there." Krowl testified that he heard Heine "stipulate that she did not want anybody entering her property."
Heine testified on her own behalf. She stated that when Walis requested entry into the building, she refused, believing it was a violation of her "constitutional right." She asserted that Walis did not represent himself as a construction official and that she only knew him as a fire official.
At the conclusion of the trial, the municipal court found Heine guilty of violating § 181-3 of the City of Garfield Code, which provides as follows:
The Construction Official is hereby authorized and directed to make inspections to determine the condition of dwellings, dwelling units, rooming units and premises located within the City of Garfield in order that he may perform his duty of safeguarding the health and safety of the occupants of dwellings and of the general public. For the purpose of making such inspections the Construction Official is hereby authorized to enter, examine and survey at all reasonable times all dwellings, dwelling units, rooming units and premises. The owner or occupant of every dwelling, dwelling unit and rooming unit, or the person in charge thereof, shall give the Construction Official free access to such dwelling, dwelling unit or rooming unit and its premises at all reasonable times for the purpose of such inspection, examination and survey. Every occupant of a dwelling or dwelling unit shall give the owner thereof or his agent or employee access to any part of such dwelling or dwelling unit or its premises at all reasonable times for the purpose of making such repairs or alterations as are necessary to effect compliance with the provisions of this chapter or with any lawful rule or regulation adopted or any lawful order issued pursuant to the provisions of this chapter.
The court found that Heine, as the owner of the property, (1) knew that Walis was the construction official, (2) was aware that he was seeking, in his official capacity, to inspect the premises to determine its condition, and (3) refused to give free access for such inspection. Consequently, the court found her guilty as charged, and imposed a fine of $750 and $33 in costs.*fn2
Heine appealed to the Law Division. After oral argument, the court found Heine guilty de novo, and imposed the same sanctions. It held that Heine's constitutional challenge to the validity of § 181-3 was both unpersuasive and insufficient:
Here, the Court may infer from the language of the Garfield ordinance in question that it was enacted to ensure the health and safety of dwelling occupants and the general public.
The ordinance is presumed both reasonable and valid, and the Court finds that health and safety are rational bases to sustain the ordinance.
The defendant, Ellen Heine, has failed to overcome the heavy burden of proving [§] 181-3 to be unreasonable.
These are the facts that were developed during Heine's second trial, which also involved § 181-3.
Walis testified that on January 19, February 2, and February 8, 2010, Heine refused to give permission to inspect the premises at 515 Van Bussum Avenue. He indicated that he had made appointments with Heine, but she cancelled each one. The reasons for the inspections, he claimed, were because "she didn't have a dwelling inspection done, a fire inspection on change of ownership of the building, required any change of ownership under state statute under the fire code." Lastly, he indicated that "[t]he other issue is there may be -- it may be a three-family house, which . . . requires an inspection by the state housing, of which I am a member." Walis gave examples of his concerns:
We have to make sure the smoke detectors are in place. We have to make sure there is not excessive blocked egress to the building. We have to secure that -- if it is a three-family, there is proper egress from the third floor. Just general fire code issues, making sure the house is safe for occupants inside.
Heine did not testify, but she called Krowl as her sole witness to explore zoning and land use issues, which the court ruled were mostly irrelevant. Although she was given the right to deliver an oral summation, Heine was not permitted to subpoena or call as witnesses certain persons, including "the multi-family dwelling inspector," who were present at the premises on a separate date, August 7, 2009. The municipal court held that the charges against Heine stemmed from events in 2010, and testimony from witnesses associated with an earlier encounter at the property would be inadmissible.
The court found Heine guilty of violating § 181-3 and imposed a fine of $1,500 plus costs of $33. Heine sought review in the Law Division, which conducted a de novo trial of these charges, together with the charges that were ...