February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLEN HEINE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-11-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2012
Before Judges Fuentes, Harris, and Koblitz.
In State v. Heine, ___ N.J. Super. ___ (App. Div. 2012) (Heine I), we held that the application of § 181-3 of the City of Garfield Code to defendant Ellen Heine was unconstitutional.
The only material difference between the facts of this appeal and those in Heine I is the date of the offense. We reverse, based upon our conclusions in Heine I.
In the instant matter, Heine was convicted in both the Garfield Municipal Court and the Law Division for failing to allow an inspection on April 7, 2010, of her real property at 515 Van Bussum Avenue in Garfield.*fn2 The Law Division imposed a fine of $1,000 plus costs of $33.
In Heine I, a case involving multiple inspection refusals, we held that "Garfield's criminalization of Heine's refusal to allow the inspections is not in accordance with long-established law." Id. at slip op. 21. "By exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise." Id. at slip op. 20. The same is true in this case.