SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE
v.
GWENDOLYN BOYD,
____________________________
July 12, 2012
Submitted April 23, 2012 - Decided
Before Judges Grall and Skillman.
On appeal from Superior Court of New
Jersey, Law Division, Essex County,
Municipal Appeal No. 2009-23.
Jonathan R. Mehl, attorney for appellant.
Derrick Griffin, East Orange Chief Prosecutor, attorney for respondent (Edward G. Johnson, Municipal Prosecutor, on the brief).
PER CURIAM
Following a trial de novo in the Law Division, the judge found defendant Gwendolyn Boyd, the manager of a forty-unit apartment building in East Orange, guilty of four violations of two provisions of the City of East Orange Municipal Code concerning heat and utilities. We reverse because the evidence was inadequate to support the convictions.
The summonses were issued by Eric Doers, an inspector of property maintenance for the City. In response to a tenant's complaint, Doers inspected Apartment 310 on February 2, 2009. A hand-held thermometer issued to Doers by his employer registered the room temperature as 66.7 degrees, where 68 degrees is required. Using the same thermometer, Doers tested the temperature of the hot water, which registered 96.2 degrees, where 120 degrees is required.
On a date that Doers could not recall, he measured the room and water temperature of Apartment 412. There, his thermometer registered a room temperature of 65.8 degrees and a hot water temperature of 97.3 degrees. Despite Doers' uncertainty about the date he checked the temperatures in Apartment 412, the summonses Doers issued for Apartment 412 indicate the violation occurred on or about February 2, 2009.
Doers explained that this apartment building had one boiler, which must have been operating because other apartments in the building had heat. He did not know how hot water was supplied to the apartments.
Doers tests temperature as follows. For room temperature, Doers checks the radiators or other heating equipment, checks for open windows, goes to the middle of the room about four feet off the ground away from doors and windows and takes the reading. For water temperature, he opens the hot water faucet and lets the water run until the thermometer is not registering any additional change.
Boyd was charged with two violations of Section 159-117, which in pertinent part provides:
A. It shall be the duty of every person, individual or corporate, or other business entity who shall have contracted, expressly or impliedly, by lease or otherwise, to heat or to furnish heat for any building or portion thereof where one or more persons reside or are employed and to heat or furnish heat for every occupied room in such building or portions thereof so that a minimum temperature of 68°F., without regard to outside temperatures, shall be maintained therein during the entire day, . . . daily from October 1 each year to May 15 of the next succeeding year, both days being inclusive . . . .
B. For the purpose of this section, wherever a building is heated by means of a furnace, boiler or apparatusunder control of the owner, the agent or lessor of such building, such owner, agent or lessor, in the absence of acontract or agreement to the contrary, shall be deemed to have contracted, undertaken or bound himself or herself to furnish heat in accordance with the provisions of this section.
. . . .
D. Any violation of this section shall be punishable by a fine of not less than $100 nor more than $1000 or imprisonment for not more than 90 days, or both. Separate fines shall be assessed for each day and for each unit in which a violation is found.
[(Emphasis added).]
Boyd was found guilty of both violations. Assuming that Doers' identification of Boyd as the manager of the building was adequate to establish that she is an agent of the building's owner or lessor, there was no evidence as to her duties and responsibilities. Without that evidence, there is no evidence establishing that Boyd had an express or implied contractual obligation to furnish the heat as required by paragraph A, or that the boiler supplying the heat was under Boyd's "control," which is the predicate fact needed to trigger a rebuttable presumption of her contractual obligation provided in paragraph B of this section. Because this critical element of the violation was not established, Boyd's convictions for violating Section 159-117 are reversed.
Boyd was also charged with two violations of Section 159-87, which in pertinent part provides:
A. No owner, operator or occupant of a residence shall cause any service, facility, equipment or utility which isrequired to be supplied by the provisions of this chapter or by any provisions of the Code of the City of East Orange, or which is required under the terms of an executed lease or rental agreement, to be removed from ordiscontinued for an occupied dwelling unit or rooming unit, except for necessary repairs, alterations or emergency or for such other reason as may be permitted pursuant to those sections of this chapter or other ordinances of the City applicable to such service, facility, equipment or utility. This section shall specifically include the causing of the shutting off of City water service or electrical service caused by the nonpayment of legitimately due and owing water or electric bills. [Amended 4-26-2004 by Ord. No. 10-2004]
. . . .
[(Emphasis added).]
There was no testimony that Boyd caused the heat or hot water to be removed or discontinued from either apartment. Doers testified that the boiler was operating and other apartments had heat and he did not know how the heated water was supplied to the apartments. As a consequence of the inadequate proof that Boyd caused removal or discontinuation of either heat or hot water, her convictions for violating Section 159-87 are also reversed.
Reversed and remanded with the direction to vacate the judgments.
