963 A.2d 898 (N.J.Mun.Ct. 2008), State v. O'Connor

Citation:963 A.2d 898, 405 N.J.Super. 185
Opinion Judge:BOWE, J.M.C.
Party Name:STATE of New Jersey, Plaintiff, v. David A. O'CONNOR, Dustin Walton, and Patrick Nadeau, Defendants.
Case Date:September 11, 2008
Court:Municipal Court of New Jersey
 
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963 A.2d 898 (N.J.Mun.Ct. 2008)

405 N.J.Super. 185

STATE of New Jersey, Plaintiff,

v.

David A. O'CONNOR, Dustin Walton, and Patrick Nadeau, Defendants.

Municipal Court, Byram Township, Sussex County, New Jersey.

September 11, 2008

BOWE, J.M.C.

[405 N.J.Super. 186] The offenses charged in the captioned summonses all arose out of the same facts and circumstances and were consolidated for trial pursuant to Rule 7:8-4. The defendants were charged with violating N.J.S.A. 13:9-19, which says:

In any district for which fire wardens have been appointed under the provisions of this chapter, no person shall set fire to or cause to be set on fire in any manner whatsoever; or to start fires anywhere and permit them to spread to forests, thereby causing damage to or threat to life or property, either accidentally or otherwise, directly or indirectly, in person or by agent, or cause to be burned waste, fallows, stumps, logs, brush, dry grass, fallen timber or any property, [405 N.J.Super. 187] material, or vegetation being grown thereon, or anything that may cause a forest fire, without first obtaining

Page 899

the written permission of the department.

In addition, the member of the New Jersey Forest Fire Service who charged the defendants with violating N.J.S.A. 13:9-19 issued a second summons to each defendant seeking " recovery of costs associated with extinguishing the open burn w/o permit," pursuant to N.J.S.A. 13:9-44.9.

The threshold question in this case is, " Does a municipal court have original jurisdiction to assess penalties for violation of N.J.S.A. 13:9-19?" This court's research has disclosed no case on point that would provide the answer. This appears to be a case of first impression. For the reasons articulated below, the court holds that a municipal court does not have original jurisdiction to assess penalties for violation of N.J.S.A. 13:9-19. Accordingly, the captioned summonses must be dismissed.

If a violation of N.J.S.A. 13:9-19 is alleged to have occurred, the Department of Environmental Protection (DEP) is authorized under N.J.S.A. 13:9-44.10 to:

1. Institute a civil action for injunctive relief to prohibit and prevent such violation;

2. Collect any penalties under " the penalty enforcement law," N.J.S.A. 2A:58-1, et seq. ;

3. Petition the attorney general to bring a criminal action against any person who knowingly...

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