Opinion
DOCKET NO. A-2469-14T1
04-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NELVI CABA, Defendant-Appellant.
Edgardo F. Galleno argued the cause for appellant (Perez, Gonzalez & Galleno, LLC, attorneys; Mr. Galleno, on the brief). Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 32-2014. Edgardo F. Galleno argued the cause for appellant (Perez, Gonzalez & Galleno, LLC, attorneys; Mr. Galleno, on the brief). Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). PER CURIAM
A Perth Amboy municipal ordinance prohibits the parking of buses on public streets between 6 a.m. and 6 p.m. Defendant Nelvi Caba received seven tickets under the ordinance for parking seven of his vehicles on the streets overnight. His vehicles were registered as school buses with the State and had the words "School Bus" printed on their exteriors. However, he argued that the ordinance's prohibition on parking "buses" was unconstitutionally vague.
Defendant was found guilty in the Municipal Court. The Law Division denied his appeal. We affirm.
I.
Defendant owns Nelvi Transit, Inc., a company that transports children and adults to and from school. On April 2, 2014, seven of defendant's vehicles were parked overnight in violation of Perth Amboy's municipal ordinance prohibiting buses from parking on public streets between 6:00 p.m. and 6:00 a.m. Defendant received tickets for the violations sometime before 6:00 a.m. that morning.
The vehicles were minivans of different makes and models, each of which could hold seven passengers. Each was registered with the New Jersey Motor Vehicle Commission as a "School Vehicle Type II," which is defined as a type of school bus. Accordingly, each vehicle had a license plate number beginning with characters specifically used to designate school buses. In addition, each vehicle was clearly marked with the words "School Bus." Furthermore, defendant testified that the local chief of police had previously warned defendant that continuing to park his vehicles on the street was a violation of the municipal ordinance.
On May 22, 2014, a trial was held in the Perth Amboy Municipal Court before Judge Emery Z. Toth. Defendant and two law enforcement officers testified at the hearing. Judge Toth found defendant guilty on each of the seven summonses, concluding that defendant's vehicles were buses, and that they had been parked in violation of the municipal ordinance. Defendant was ordered to pay a fine of $350 for each of the seven summonses, as well as $231 in costs, totaling $2681.
Defendant appealed to the Law Division, arguing the term "bus" as used in the municipal ordinance was unconstitutionally vague. Judge Michael A. Toto denied the appeal in an order dated December 19, 2014, finding the vehicles were buses within the plain meaning of the ordinance.
II.
Defendant challenges the constitutionality of Perth Amboy, N.J., Municipal Ordinance, ch. 414, art. II, § 8.3 (2014) [hereinafter, "the Ordinance"]. He argues the term "buses" as used in the Ordinance is unconstitutionally vague, and that enforcement violated his due process rights under the United States and New Jersey constitutions.
"Municipal court convictions may be appealed to the Law Division in accordance with the requirements of Rule 3:23." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). "The review in the Law Division is de novo on the record, although the court must give due regard to the municipal judge's opportunity to view the witnesses and assess credibility." Ibid. (citing State v. Johnson, 42 N.J. 146, 157 (1964)). "On appeal to this court, we must determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division." Ibid. However, we are not "required to afford any special deference to the Law Division's interpretation of the law and the legal consequences that flow from established facts." Ibid. (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). Therefore, our review of the Ordinance's constitutionality is de novo. We must hew to that standard of review.
After careful review, we affirm substantially for the reasons given by Judge Toto in his December 19, 2014 memorandum of decision. We add the following.
III.
The Ordinance provides, in relevant part, that "[n]o person shall park a truck or vehicle over four (4) tons' gross weight, trailer, semitrailer truck to which equipment is attached, buses or boats upon any street between the hours of 6:00 p.m. to 6:00 a.m." Many of the terms in the Ordinance are defined by a provision which specifically incorporates all definitions set forth in N.J.S.A. 39:1-1. While N.J.S.A. 39:1-1 does not define "bus," it does define "school bus":
"Whenever any words and phrases are used in this chapter, the meaning respectively ascribed to them in Subtitle 1 of Title 39 of the Revised Statutes of New Jersey shall be deemed to apply to such words and phrases used herein." Perth Amboy, N.J., Municipal Ordinance, ch. 414, art. I, § 1 (2014). --------
"School bus" means every motor vehicle operated by, or under contract with, a public or governmental agency, or religious or other charitable organization or corporation, or privately operated for the transportation of children to or from school for secular or religious education, which complies with the regulations of the New Jersey Motor Vehicle Commission affecting school buses, including "School Vehicle Type I" and "School Vehicle Type II" as defined below[.]
N.J.S.A. 39:1-1 defines "School Vehicle Type I" as "any vehicle designed to transport 16 or more passengers," and "School Vehicle Type II" as "any vehicle designed to transport less than 16 passengers, including the driver," which are "used to transport enrolled children, and adults only when serving as chaperones, to or from a school, school connected activity, day camp, summer day camp, summer residence camp, nursery school, child care center, preschool center or other similar places of education." There is no question each of defendant's vehicles is used in this way, is registered and bears a license plate as a "School Vehicle Type II," and is thus a "School Bus." Indeed, defendant's vehicles bore the description "School Bus" on their exteriors.
A school bus is a type of bus. Moreover, defendant's vehicles fall within the dictionary definition of a "bus," which includes both "a large motor-driven vehicle designed to carry passengers," and "any vehicle publicly owned or privately owned and operated for compensation used for transporting children to and from school." Webster's Third New International Dictionary Unabridged 301 (1971) (emphasis added).
"The established rules of statutory construction govern the interpretation of a municipal ordinance." Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). "[W]e give the relevant language its ordinary meaning and construe it 'in a common-sense manner.'" State v. Perry, 439 N.J. Super. 514, 523 (App. Div.) (quoting State in Interest of K.O., 217 N.J. 83, 91 (2014)), certif. denied, 222 N.J. 306 (2015).
Nonetheless, defendant argues it is not clear that his school buses constituted "buses" under the Ordinance, because it does not define "buses." "As a general principle, a municipal ordinance is afforded a presumption of validity[.]" Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015); see also Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). "Anyone challenging an ordinance has the burden of demonstrating its invalidity." State v. Krause, 399 N.J. Super. 579, 583 (App. Div. 2008).
"Generally, under federal constitutional law, a 'statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'" Betancourt v. Town of West New York, 338 N.J. Super. 415, 422 (App. Div. 2001) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). "New Jersey courts have also recognized that '[i]t is offensive to fundamental concepts of justice and violative of due process of law . . . to impose sanctions for violations of laws, whose language is doubtful, vague, and uncertain.'" Id. at 423 (citation omitted). Thus, "[t]o withstand a void-for-vagueness challenge, a penal ordinance must define the offense 'with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" Golin, supra, 363 N.J. Super. at 482-83 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983)).
We agree with the Law Division that the Ordinance's term "bus" is not vague. The Ordinance does not "contain[] language that is so imprecise that it cannot be understood by persons of ordinary intelligence." Betancourt, supra, 338 N.J. Super. at 422. Thus, defendant had "fair notice of the acts which [the Ordinance] forbids" and was not denied his due process. Ibid.
Moreover, defendant's conduct indicates he understood his vehicles were buses. Defendant does not dispute that he registered his vehicles as school buses and had the description "School Bus" painted on their exteriors. Defendant describes the nature of his business as providing transportation that comports almost verbatim with the definition of "school bus" under N.J.S.A. 39:1-1. Thus, defendant's actions belie his claim that he lacked notice and suffered arbitrary enforcement of the Ordinance. Indeed, he was told that the Ordinance applied to his vehicles, but still allowed them to be parked on the streets at night in violation of the Ordinance. Thus, as Judge Toto found, the Ordinance barring overnight parking is not unconstitutionally vague on its face or as applied to defendant. See State v. Ball, 141 N.J. 142, 170 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996); State v. Stafford, 365 N.J. Super. 6, 15 (App. Div. 2003).
Defendant also asserts the legislative history supports his argument. Because the plain meaning of the Ordinance is unambiguous, we need not look to extrinsic sources. State v. D.A., 191 N.J. 158, 164 (2007). In any event, we find the defendant's reliance on legislative history is unpersuasive for the reasons set forth by Judge Toto.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION