Opinion
DOCKET NO. A-4304-10T4
01-10-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZUHIRAH RASULALAH, Defendant-Appellant.
Rabinowitz, Lubetkin & Tully, L.L.C., attorneys for appellant (John J. Harmon, on the brief). Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange (Richard D. Trenk and Aziz O. Nekoukar, of counsel; Ross J. Switkes, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-073.
Rabinowitz, Lubetkin & Tully, L.L.C., attorneys for appellant (John J. Harmon, on the brief).
Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange (Richard D. Trenk and Aziz O. Nekoukar, of counsel; Ross J. Switkes, on the brief). PER CURIAM
Defendant Zuhirah Rasulalah appeals from an order entered by the Law Division on February 18, 2011, which found her guilty of violating the Township of West Orange's (the Township) parking ordinances. We affirm.
The facts that gave rise to this appeal are not in dispute. Defendant is a physically-handicapped person. On June 27, 2000, at defendant's request, the Township enacted Ordinance 1707-00, amending Subsection 7-32.2 of the Township's Revised General Ordinances, which pertains to "Restricted Parking Zones" (RPZ). As amended, Subsection 7-32.2 establishes RPZs at specified locations, when the adjacent residences
are occupied by a handicapped person issued a Handicapped Persons Identification Card pursuant to N.J.S.A. 39:4-205, and this handicapped person, or an immediate family member of the handicapped person who is an occupant of the same residence, was issued the corresponding windshield placard and/or wheelchair symbol license plates for a motor vehicle.
The ordinance further provides that, "[t]he specific parking stalls in front of the residences identified in this subsection shall only be designated a [RPZ] when a permit is issued and the handicapped person maintains his/her residenc[e] at that address." The ordinance states that, "In accordance with N.J.S.A. 39:4-197.6, parking is permitted in the [RPZ] except when prohibited in front of the residence by other sections of this Chapter." Defendant's residence was identified as the location of the RPZ. The ordinance stated that all other ordinances, or parts thereof, which are inconsistent with this ordinance "are hereby repealed."
In April and May 2010, the Township police issued four tickets to defendant for violating Section 7-12 of the Township's Revised General Ordinances, which prohibits street parking on days and at times designated for street cleaning and maintenance. Section 7-12 indicates that parking is prohibited on the south side of defendant's street between the hours of 9:00 a.m. and 12:00 noon on Mondays.
In addition, on April 27, 2010, the Township police issued a ticket to defendant for violation of Section 7-50.3k of the Township's Revised General Ordinances, which prohibits parking in a municipal parking lot without a permit. Moreover, the Township police issued a ticket to defendant for violating Section 4-15.2 of the Township's Revised General Ordinances, which prohibits the abandonment of vehicles in the Township.
Trial in the matter was scheduled for August 17, 2010. Defendant failed to appear. The municipal court judge stated on the record that defendant was given notice of the trial date and that the court had not received notice that defendant had encountered any problems that would prohibit her from appearing. The court proceeded with the matter in defendant's absence. Special Police Officer Robert J. Stock (Officer Stock), who is assigned to parking enforcement in the Township, testified. The court found defendant guilty of the charged violations and imposed fines totaling $308.
Defendant appealed to the Law Division. Defendant did not challenge the summons issued for abandoning her car. She argued, however, that the summonses issued for parking at times designated for street cleaning were invalid. The Law Division filed a letter opinion dated February 18, 2011, in which it concluded that the municipal court correctly determined that defendant had violated Ordinances 7-12 and 7-50.3k.
In her appeal, defendant argued that Section 1 of the ordinance, which permits her to park in a RPZ, conflicts with Section 3 of that Ordinance, which repealed other ordinances or parts thereof that are inconsistent with the Ordinance. Defendant additionally argued that the conflict between Sections 1 and 3 of the Ordinance created an ambiguity that should be resolved in defendant's favor. The Law Division judge rejected these arguments.
The court found that Section 3 of the Ordinance did not repeal the restrictions on parking on days designated for street cleaning. The court stated that Section 3 provided defendant with notice of the limitations on her ability to park in the RPZ.
The court also found that Section 3 did not create an ambiguity for a reader "charged with interpreting" the ordinance's text. The court stated that the plain language of the ordinance provided defendant "with sufficient indication that although she is permitted to park in the [RPZ] she must still abide by" the limitations in the street-cleaning ordinance. The court additionally pointed out that Officer Stock left warning summons on defendant's car, alerting her that the privilege to park in the RPZ was limited by other parking restrictions.
In her appeal, defendant also argued that the summons issued for parking in a public lot without a parking permit, in violation of Ordinance 7-50k.3, compounded the inequity that she suffered. She also argued that the public lot was the only other parking available to her within a reasonable proximity to her residence. The Law Division judge found, however, that defendant clearly violated Ordinance 7-50k.3 because she parked her car in the public lot and did not have a permit to do so.
In addition, defendant claimed that the municipal court judge revealed a personal animus towards her. She asserted that she appeared in court on July 20, 2010, to respond to the summonses issued to her. Defendant claimed that she conferred with the prosecutor, who recommended to the municipal court judge that lesser fines be imposed. Defendant says that she observed the municipal court judge "crumple up the prosecutor's recommendation" for a lesser fine, toss it in the garbage, and order her to return to court on another date. Defendant also argued that the municipal court judge erred by proceeding in her absence and without the prosecutor present.
The Law Division judge held, however, that the record did not indicate that the municipal court judge had displayed a personal animus against defendant, or evidence the incident she described. The court also found that the municipal court properly conducted the proceeding in defendant's absence and without the prosecutor.
The Law Division judge therefore determined the municipal court correctly found defendant guilty of parking at times designated for street cleaning, in violation of Ordinance 7-12, and parking in a public lot without a permit, in violation of Ordinance 7-50.3k. The court entered an order dated February 18, 2011, memorializing its decision. This appeal followed.
Defendant raises the following arguments for our consideration:
I. GOOD CAUSE EXISTS TO EXTEND THE TIME FIXED BY RULE 2:4-1(A) FOR FILING AN APPEAL BECAUSE APPELLANT'S COUNSEL DID NOT RECEIVE A COPY OF THE COURT'S ORDER UNTIL MORE THAN 45 DAYS AFTER THE COURT ISSUED ITS OPINION.
II. WEST ORANGE ORDINANCE NO 1707-00, WHICH GRANTED APPELLANT THE RIGHT TO HER OWN SPECIALLY DESIGNATED HANDICAPPED PARKING SPACE IN FRONT OF HER HOME, SUPERSEDES WEST ORANGE ORDINANCE NO. 7-12, WHICH ESTABLISHE[D] STREET CLEANING REGULATIONS.
III. THE MUNICIPAL COURT'S COMMENTS AND CONDUCT DURING THE MUNICIPAL TRIAL AND ITS SURROUNDING EVENTS REVEALED A PERSONAL ANIMUS AGAINST APPELLANT WHICH WEIGHS IN FAVOR OF OVERTURNING APPELLANT'S VIOLATIONS; ADDITIONALLY, IT WAS INEQUITABLE FOR WEST ORANGE TO PENALIZE APPELLANT FOR PARKING IN THE MUNICIPAL LOT WHEN SHE WAS FORCED TO MOVE HER CAR FROM HER HANDICAPPED PARKING SPACE.
We note initially that the issue raised in Point I is moot. This court entered an order dated May 27, 2011, granting defendant's motion to file a notice of appeal beyond the time prescribed by Rule 2:4-1(a). However, the other issues raised by defendant are without merit.
Defendant argues that Section 3 of Ordinance 1707-00 effectively repealed the restrictions on street parking set forth in Ordinance 7-12. We disagree. When interpreting an ordinance, we utilize the same rules of interpretation that we use when interpreting a statute. Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div. 2006). We begin our analysis with the plain language of the enactment. DiProspero v. Penn, 183 N.J. 477, 492 (2005). Moreover, we must read the ordinance in its entirety, and the sections thereof should be construed in order to "provide a harmonious whole." Burnett v. County of Bergen, 198 N.J. 408, 421 (2009).
Section 3 of Ordinance 1707-00 provides for the repeal of any ordinance or part thereof that is inconsistent with Section 1, which allows defendant to park in a RPZ. Section 1 states that defendant can park in the RPZ except when other ordinances prohibit her from doing so. Ordinance 7-12 establishes restrictions on parking on certain streets at certain times for street-cleaning purposes. Since Section 1 does not conflict with Ordinance 7-12, the latter restrictions are not repealed by Section 3.
Defendant additionally argues that the Township should be estopped from enforcing Ordinance 7-12 because Leonard R. Pepore (Pepore), the Township's engineer, wrote to her on June 30, 2000, and stated that the parking stall in the RPZ would be for defendant's exclusive use. However, Pepore's letter merely indicated that other persons could not park their car in the RPZ designated for defendant's use. It did not provide defendant with a guarantee that the Township would not enforce the restrictions in Ordinance 7-12.
Defendant further argues that the Township should be prohibited from penalizing her for parking the municipal lot because that was the only other available parking place within a reasonable distance of her home. However, it is undisputed that defendant did not have a permit to park in that lot. Therefore, the record clearly established that defendant violated Ordinance 7-50.3k and enforcement of that Ordinance is not arbitrary, capricious or unreasonable.
In addition, defendant argues that the municipal court judge displayed a personal animus towards her, which requires dismissal of all of the charges against her. We disagree. Here, the record supports the Law Division judge's finding that the record failed to establish that the municipal court judge displayed any personal animus towards defendant.
Defendant nevertheless argues that the municipal court judge displayed animus towards her by proceeding with the trial in her absence and in the absence of the municipal prosecutor. We note, however, that Rule 7:8-7(a) permits a municipal court to conduct a trial in absentia. Here, the municipal court judge noted on the record that defendant was aware of the trial date and had not contacted the court to advise that she could not appear.
Furthermore, the prosecutor's absence did not preclude the court from proceeding. In State v. Hardy, 211 N.J. Super. 630, 635 (App. Div. 1986), the court stated that "[t]he appearance of impartiality of the court is seriously eroded when a case is prosecuted by a judge who is also the ultimate fact finder." However, we noted in Hardy that our court rules do not require that all municipal court cases "be prosecuted by an attorney representing the interests of the State." Ibid.
We are satisfied that the municipal court did not err by proceeding without a prosecutor in this case. Defendant did not appear and, therefore, she was not subject to adversarial questioning by the court. Moreover, the Law Division judge found that the fact that the trial was held without defendant or the prosecutor present did not affect the municipal court's final judgment or the court's ability to be impartial. The record supports that finding.
Affirmed.