STATE OF NEW JERSEY v. TORGRO, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5984-08T45984-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TORGRO, INC.,

Defendant-Appellant.

_______________________________

 

Submitted: August 3, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 27-09.

Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Torgro, Inc. appeals from convictions on two summonses for operating a bus in Atlantic City without the appropriate permit, N.J.A.C. 19:75-3.11, after a trial de novo in the Law Division, see R. 3:23-8(a). We affirm.

Defendant is a licensed operator of a luxury limousine company serving customers across the northeast corridor. On July 30, 2007, South Jersey Transportation Authority (SJTA), a quasi-state agency with operational responsibilities for the Atlantic City Expressway, Atlantic City International Airport (airport) and parking facilities in Atlantic City, sent a warning letter to defendant, informing that defendant's Bus #23 was found parked at Showboat Casino in Atlantic City in violation of N.J.A.C. l9:75-4.1 (failure to park in approved facility). Thereafter, the SJTA issued two summonses to defendant, dated December 4 and 25, 2008, for vehicles that failed to have a valid permit.

The trial was held in Atlantic City Municipal Court on March 20, 2009, during which the summonses were amended to reflect the correct statute. Defendant was adjudged to have violated the bus operator permit regulation in both instances. Fines and costs totaling $728 were imposed by the court, which were stayed pending appeal to the Law Division.

On de novo review, the court again adjudicated defendant guilty on each of the two summonses. The Law Division judge imposed the same fines as in municipal court, which he stayed pending appeal.

On appeal, defendant challenges the court's finding that its vehicle was a bus and governed by SJTA. Defendant's position was that the subject vehicle was in the nature of a limousine coach, which is similar to a recreational vehicle that is not regulated by the SJTA. Based on our review of the record and applicable law, we are not persuaded by defendant's argument and affirm.

There was testimony and evidence presented at trial, which, for the most part, briefly summarized the two offenses and described defendant's vehicle with the aid of photographic evidence. Maurice Nelson, a supervisor with the SJTA entrusted with the responsibility of performing field work and enforcement of the bus management regulations, testified that the federal Department of Transportation (DOT) records reflected defendant owned one motor coach and two mini-buses, with a notation of "no limousines, no school buses." Another business entity, Torgro Limousine Service, had a fleet consisting of sixteen limousines. On each of the occasions cited, Nelson observed a vehicle owned by defendant at Harrah's Casino, approached the driver and asked whether he had a daily entrance permit, to which the driver responded he did not have one. The driver told Nelson the vehicle was there to take passengers from the casino to the airport. The driver refused to allow access and inspection of the vehicle. As a result, Nelson issued the two summonses.

Nelson produced the July 30, 2007 letter, stating that defendant's vehicle came within the regulations of the SJTA. Photographs of the bus that was the subject of the summons were received into evidence. Nelson checked defendant's website and learned the vehicle was a 35-passenger vehicle, was built on a truck frame, had a gross weight of over 10,000 pounds, and had been issued bus tags by the Commonwealth of Pennsylvania. Nelson opined that the subject vehicle was not a recreational vehicle, which is used for family purposes. Nelson explained that daily entry permits are required for buses to enter Atlantic City, the SJTA had no record of defendant purchasing permits until after the issuance of the summonses, and the permits are not transferable.

John Groff, a Torgro manager, testified for defendant. He stated the subject vehicles would have been hired for a fee "per vehicle" as opposed to "per head" to transport people from Harrah's to another location, such as the airport. He explained that the Torgro "organization" comprises a family of companies owning about thirty limousines and buses. Rather, they opined that the subject vehicles were not buses but were recreational vehicles but for the absence of sleeping quarters, because they had open seating similar to limousines rather than standard seating, and had restrooms, running water, cooling systems for refreshments, leather seating and flat screen TVs. Groff further stated his view that a bus would be a vehicle that moves passengers on a prearranged route at a prearranged time and is capable of holding over thirty-five passengers. He acknowledged the subject vehicles bore Pennsylvania bus tags and indicated his belief that in Pennsylvania bus tags are issued for vehicles with over a six-passenger capacity.

The municipal court judge found defendant violated N.J.A.C. 19:75-3.ll. In the Law Division, Judge Neustadter tried the case de novo based on the municipal court record. He gave due, though not controlling, deference to the municipal court judge's findings. See State v. Johnson, 42 N.J. 146, 157 (1964). Then, making his own independent findings of fact and conclusions, State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd, 372 N.J. Super. 1 (App. Div. 2004), the Law Division judge found the State met its burden to prove by a preponderance of the evidence that defendant was guilty of failing to have a valid permit while operating a bus in Atlantic City, ibid. The judge noted, among other definitions in the regulations, the definition of bus -- "any motor vehicle or motorbus operated as a motorbus charter service or on motorbus regular route service as those terms are defined in this chapter" -- and motorbus regular route service -- "the operation of any motorbus or motorbuses on streets, public highways or other facilities, over a fixed route and between termini on a regular schedule for the purpose of carrying passengers for hire or otherwise . . . ." N.J.A.C. 9:75-1.1. He then made the following findings:

[T]he record clearly supports defendant's conviction on the dates [in question]. Defendant's vehicle was found without a valid permit. . . . [D]efendant had adequate notice that their vehicle fell under the jurisdiction of the S.J.T.A. as a bus as defined [under N.J.A.C.] 19:75-1.1. The fact that the statute clearly defines bus aside, the defendant also received a letter in 2007 informing their vehicles were under the auspices of S.J.T.A. and defendant's argument that the document on S.J.T.'s website did not define bus is not persuasive because the term bus is clearly defined in the actual statute in my view. . . . Moreover, this is considered by the Court to be remedial legislation and should be interpreted in the broadest manner possible to effectuate the purpose of the legislation. Here the legitimate State interest of the reduction of pollution, traffic congestion, noise, overcrowding, and health concerns outweigh any possible equal protection claim made by defendant in this record.

The ruling was memorialized in an order of June 31, 2009.

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. l995). We defer to findings that reasonably could have been reached on substantial credible evidence in the record. State v. Locurto, l 57 N.J. 463 (1999); Johnson, supra, 42 N.J. at 157. However, where there were no factual disputes to resolve on credibility grounds and were only legal conclusions to draw, such findings are not entitled to any deference and our standard of review is plenary. State v. Bruno, 323 N.J. Super. 322, 331 (App. Div. l999).

To the extent defendant is still challenging the fact the SJTA's website did not define the word "bus," such argument is without merit and does not warrant any discussion, R. 2:11-3(e)(2), other than to note there was no evidence presented of affirmatively misleading information on the website respecting the regulation of the subject vehicles.

We are satisfied the record supports the finding that defendant's vehicle was a bus as defined and regulated by N.J.A.C. 9:75-3.11, and that it did not have the requisite permit for operating in Atlantic City. We affirm substantially for the reasons articulated by the Law Division judge.

We are persuaded the language and standards set forth in the regulations are sufficiently clear to put an entity such as defendant on notice that it was required to obtain a permit. See, e.g., Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (l983) (holding that "[v]ague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position"); Betancourt v. Town of W. New York, 338 N.J. Super. 415, 422 (App. Div. 200l) (holding that due process is generally violated by 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"). Defendant's vehicle was hired to transport up to thirty-five passengers between the airport and the casino and has the outward characteristics of a bus. Even considering the rule of lenity and resolving any ambiguities in the regulation in favor of the defendant charged with a violation, see State v. Golin, 363 N.J. Super. 474, 482 (App. Div. 2003), we are not convinced that because the seating configuration differs from a standard bus and the vehicle has some luxury features that may also be present in a limousine, it falls outside the definition of "motor vehicle or motorbus" as intended by the regulations. The vehicle emits exhaust like a bus and carries a substantial number of passengers, thus similarly contributing to the traffic congestion, noise and pollution in Atlantic City.

Nor is the regulation violative of equal protection because it is not applicable to vehicles that defendant submits are similar in characteristics. It has long been recognized that legislative classification for equal protection purposes is not a precise science, and that the Legislature need not adopt the most finely defined approach. Greenberg v. Kimmelman, 99 N.J. 552, 577 (l985). "A statute does not violate equal protection simply because it is underinclusive or could have been drawn more precisely to accomplish the governmental objectives." Piscataway Tp. Bd. of Educ. v. Caffiero, 86 N.J. 308, 324 (l981).

 
Affirmed.

The summonses charged the failure to have a valid permit but incorrectly cited N.J.A.C. l9:75-3.14, which prohibits owners of approved facilities from permitting a bus to park, load or unload without exhibiting proof of payment of the appropriate fee for a permit or medallion. The correct regulation was N.J.A.C. 75:3.11, which requires the owner or operator of a bus that enters Atlantic City to obtain a permit or annual medallion.

Nelson testified it was the same bus on both occasions and he believed it was the same driver, although he was not certain.

The definition of bus was subsequently revised to conform to the definition of the DOT, R. 2009, d. 348, effective November l6, 2009.

(continued)

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9

A-5984-08T4

August 13, 2010