Opinion
DOCKET NO. A-0925-10T3
02-06-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELLEN HEINE, Defendant-Appellant.
Ellen Heine, appellant, argued the cause pro se. Law Offices of Giuseppe C. Randazzo, attorney for respondent (Giuseppe C. Randazzo, on the brief). 1
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris, and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-11-10.
Ellen Heine, appellant, argued the cause pro se.
Law Offices of Giuseppe C. Randazzo, attorney for respondent (Giuseppe C. Randazzo, on the brief). PER CURIAM
Counsel for respondent did not appear at oral argument.
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. The Law Division imposed a fine of $1,000 plus costs of $33.
Heine received notice of the inspection from Garfield's Bureau of Fire Inspection, signed by Gerald Walis, the City's Fire/Construction Official. It stated, "Please be advised that I am scheduling a state housing and fire inspection for 515 Van Bussum [A]ve. on 4/7/10 at 1:30 pm. Please contact me to confirm this date of [sic] reschedule this date if you are not available." Walis sent another inspection notice on the letterhead of the New Jersey Department of Community Affairs, Division of Codes and Standards, Bureau of Housing Inspection. Because of the manner in which we dispose of this appeal, it is unnecessary to address Heine's arguments concerning whether the inspection (1) was for local or state purposes or (2) was a pretext for tax assessment purposes.
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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.
Reversed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION