STATE OF NEW JERSEY v. MISAEL CLAROS

Defendant, landlord Misael Claros, appeals from a July 16,

2015 Law Division order finding him guilty de novo of nine counts

of violating Township of North Bergen, Ordinance 38-09, Section 6

prohibiting renting cubicles and imposing a fine of $750 plus $33

court costs on each count for a total of $7047. Because as a

matter of law the State produced insufficient evidence of guilt

beyond a reasonable doubt, we reverse.

The State called one witness, North Bergen Building

Department and Bureau of Fire Prevention Inspector James J. Corso,

who testified that he inspected the two-family property in April

2013 in response to anonymous complaints. Two tenants let him

into the home. He identified what he believed were five "cubicles"

upstairs and four downstairs. Each had a "key lock on the door,"

although most were unlocked at the time of inspection. Corso

distinguished a "key lock" from other indoor privacy locks in that

a key lock is locked by a key from outside the door. Many of

these separate rooms also contained refrigerators or microwave

ovens. Each floor, or single-family-zoned apartment, had its own

kitchen and bathroom. One of the kitchens had a "posting" in

Spanish on the kitchen wall, a "handwritten piece of paper telling

someone to clean up after themselves as, you know, everyone uses

the kitchen." Neither apartment had a living room, which Corso

explained contributed to the appearance of illegality. He opined





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that regardless of the relationship among the tenants, the rooms

constituted "cubicles" because of the key locks and other indicia

and were therefore illegal.

Corso also inspected the basement. The basement contained

an "unmade bed, cooking utensils that were hidden in a . . .

closet." Corso did not issue a violation for the basement because

he thought "[he] didn't have enough evidence for it."

Corso explained that in his experience of inspecting homes

for eight years a family or roommates living together would not

be likely to have key locks on rooms, signs posted reminding

individuals to clean up or a lack of a living room.1

Defendant raises the following issues on appeal:

POINT I: ORDINANCE NO. 38-09 FAILS TO PROVE THE REQUISITE ELEMENTS TO DEFEND AGAINST A VIOLATION AND, AS SUCH, IS A VAGUE AND UNCONSTITUTIONAL ORDINANCE.



POINT II: THE ORDINANCE IS UNCONSTITUTIONAL BECAUSE, WHILE KEEPING IN MIND THE FHA'S POLICY "TO PROVIDE, WITHIN CONSTITUTIONAL LIMITATIONS, [] FAIR HOUSING THROUGHOUT THE UNITED STATES," IT ALLOWS DISCRIMINATION AGAINST THE OCCUPANTS DUE TO VAGUENESS. 42 U.S.C.A. § 3601.



POINT III: ALTERNATIVELY, IF THE ORDINANCE IS CONSTITUTIONAL, THE PROSECUTION DID NOT

1 Corso also testified that he spoke to a tenant who said that "[he] lived in that one by [himself]." Defendant did not object to this hearsay testimony, N.J.R.E. 802, but neither did the court rely on it. We disregard this testimony as it was inadmissible and not considered by the trial court.





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MEET IT'S [SIC] BURDEN OF PROVING THAT THE APARTMENT CONTAINED ILLEGAL CUBICLES.



"[Appellate] review is limited to determining whether there

is 'sufficient credible evidence present in the record' to support

the findings of the Law Division judge, not the municipal court."

State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005)

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The Law

Division judge is to give "due, although not necessarily

controlling, regard to the opportunity of a [municipal court] to

judge the credibility of the witnesses." State v. Johnson, supra,

42 N.J. at 157. The Appellate Division, like the Law Division,

is not in as good a position to evaluate credibility, and should

not make new credibility findings but should defer to the trier

of facts. State v. Locurto, 157 N.J. 463, 474 (1999).

"Moreover, the rule of deference is more compelling where, .

. . two lower courts have entered concurrent judgments on purely

factual issues. Under the two-court rule, appellate courts

ordinarily should not undertake to alter concurrent findings of

facts and credibility determinations made by two lower courts

absent a very obvious and exceptional showing of error." Ibid.

However, "[a] trial court's interpretation of the law and the

legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v.





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Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State

v. Brown, 118 N.J. 595, 604 (1990)).

At a municipal level, "ordinances enacted pursuant to the

police power are presumptively valid." N.J. Shore Builders Ass'n

v. Twp. of Jackson, 199 N.J. 38, 55 (2009); see also First Peoples

Bank v. Twp. of Medford, 126 N.J. 413, 418 (1991) ("Generally, a

reviewing court should presume the validity and reasonableness of

a municipal ordinance."). "Municipal ordinances are normally

liberally construed in favor of the municipality . . . with the

burden of proving otherwise placed upon the party seeking to

overturn the ordinance." State v. Golin, 363 N.J. Super. 474,

481-82 (App. Div. 2003). "However, because municipal court

proceedings to prosecute violations of ordinances are essentially

criminal in nature, penal ordinances must be strictly construed."

Id. at 482 (citing Twp. of Pennsauken v. Schad, 160 N.J. 156, 171

(1999)).

"[A]n ordinance violation, commenced on municipal court

summons and in which the State acknowledged its burden beyond a

reasonable doubt, is a quasi-criminal matter." State v. Carlson,

344 N.J. Super. 521, 527 (App. Div. 2001), certif. denied, 171

N.J. 336, cert. denied, 536 U.S. 960, 122 S. Ct. 2665, 153 L. Ed.

2d 839 (2002). "Because municipal court proceedings to prosecute

violations of ordinances are essentially criminal in nature, [the





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courts] should follow the rule of strict construction,

interpreting the terms of the ordinance narrowly." Twp. of

Pennsauken v. Schad, supra, 160 N.J. at 171 (1999) (citation

omitted).

Ordinance 38-09 Section 6 states:

For purposes of this ordinance a "cubicle" is defined as one or more rooms occupied or intended for occupancy with sleeping facilities, but without one or more of the requirements of a "dwelling unit" as defined in Section 4 of this Ordinance.



Section 4 of Ordinance 38-09 states:

For purposes of this ordinance, a "dwelling unit" is defined as one or more rooms occupied or intended for occupancy as separate living quarters for one family with access directly from the outside of the building or through a common hall and for which separate cooking, sleeping, and sanitary facilities are provided for the exclusive use of the occupants.



[Emphasis added.]



The Law Division judge, when finding defendant guilty beyond

a reasonable doubt, made the following findings regarding guilt:

The property involved in the individually secured units is clearly qualified as cubicles and as defined by the ordinance, which is not challenged, and they are maintained at this property. They very clearly do not possess the required separately divided cooking, sleeping and sanitary facilities to satisfy the definition of a dwelling unit as used in the ordinance. And it's obvious, it's clear what was going on here, the house was chopped up into cubicles in order to maximize its potential for providing rent.





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The Law Division judge also opined that key-locked rooms were

"unheard of in a family relationship" and proof that the people

living in the apartments were strangers to each other. Although

the municipal judge's findings are not before us, we find

instructive his detailed findings including that "anyone with

teenagers" would not find it unusual that key locks were found on

bedroom doors, or refrigerators in bedrooms. The municipal judge

also stated, "I find, beyond a reasonable doubt that there were

nine people living in that building who really probably didn't

even know each other."

While the ordinance does not define "family," case law has

determined that in order for an ordinance limiting residence to

one family to be valid, the interpretation of "family" must include

more than a traditional familial definition. See Glassboro v.

Vallorosi, 117 N.J. 421, 431 (1990). The Supreme Court in

Glassboro held that a group of ten unrelated college students

living together who cooked for each other, shared household chores,

used a shared telephone, and paid bills from a common checking

account constituted a family as defined by the Borough's statute.

Id. at 424, 432-33. The Court upheld the validity of the ordinance

because the definition of "family" did not impose an "explicit

distinction between related and unrelated people." Id. at 431.

The Court noted that it is the relationship among individuals





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"exhibit[ing] a kind of stability, permanency and functional

lifestyle which is equivalent to that of the traditional family

unit." Id. at 431 (quoting Open Door Alcoholism Program, Inc. v.The only evidence introduced at trial was Corso's testimony

and photographs of the front of the building, three doorknob key

locks and the interiors of two rooms. Corso was not qualified as

an expert witness. See N.J.R.E. 702. Even had he been qualified

as an expert, "an expert's testimony that expresses a direct

opinion that defendant is guilty of the crime charged is wholly

improper." State v. Odom, 116 N.J. 65, 77 (1989). The ordinance

violations carried a possible sentence of ten days in jail.

Suspicions and likelihoods are not sufficient proofs in a quasi

criminal case.

Bd. of Adjustment, 200 N.J. Super. 191, 200 (App. Div. 1985)).

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