State v. Smith
| Decision Date | 25 July 1996 |
| Citation | 295 N.J.Super. 399,685 A.2d 73 |
| Parties | STATE of New Jersey, Complainant-Respondent, v. Evelyn SMITH, Defendant-Appellant. |
| Court | New Jersey Superior Court |
Gina A. Calogero, Hackensack, for defendant-appellant.
Thomas J. Ryan, Assistant Prosecutor, for the State, complainant-respondent (Carmen Messano, Hudson County Prosecutor, attorney).
This case presents an issue of first impression to the New Jersey judiciary: namely, the interpretation of N.J.S.A. 4:19-17 through 4:19-36 (the Vicious and Potentially Dangerous Dog Act), which governs vicious and potentially dangerous dogs. Specifically, appellant, Ms. Evelyn Smith, has appealed the ruling of the Hoboken Municipal Court finding her pet dog, Big Head, to be vicious under N.J.S.A. 4:19-22. If the appeal is unsuccessful, the dog would have to be destroyed. N.J.S.A. 4:19-20.
This court finds that the City of Hoboken failed to comply with the procedural requirements of the statute. Consequently, the municipal court lacked the subject matter jurisdiction to entertain this action and to pass judgment under the Vicious and Potentially Dangerous Dog Act. This court further finds that the parties voluntarily entered into an agreement constituting a settlement of the issues raised by this appeal. Therefore, the judgment of the Municipal Court of Hoboken is reversed, and any action ordered pursuant thereto is rendered null and void. This court finds the settlement to be a legally binding agreement between the parties and orders its specific enforcement.
On April 26, 1995, Ms. Smith took her dog, Big Head, an adult mixed-breed 1, for a walk in a fenced-in vacant lot fronting Jefferson Street in Hoboken. The dog was not leashed or otherwise restrained, as Ms. Smith believed that the lot was completely and securely sealed from the street and sidewalk outside. Unfortunately, this was not the case; the dog found an opening in the fence, rushed onto the sidewalk, and bit Mrs. Dorothy Petruzelli on the left hand. The victim, who had not in any way provoked the dog or threatened Ms. Smith, suffered serious injury to her hand and was rushed to St. Mary's Hospital in Hoboken for emergency treatment. She also received lacerations to her face which required stitches. Mrs. Petruzelli underwent two subsequent surgeries on her left hand at Columbia Presbyterian Hospital in New York City and has endured extensive rehabilitation. Despite these efforts, she has experienced a significant loss of use of her left hand.
The Hoboken Board of Health was notified of this dog bite incident by St. Mary's Hospital on April 27, 1995. That same day, Mr. Frank Sasso, Hoboken's Health Officer, had delivered to Ms. Smith a letter ordering her to appear at a hearing scheduled for May 8 pursuant to Hoboken City Code § 93-24. The hearing was held as scheduled, and a summons was issued charging Ms. Smith with a violation of N.J.S.A. 4:19-20. Hearings were then held in Hoboken Municipal Court on the following dates: June 22, July 11, July 19, August 8, and August 10, 1995. At some point in June 1995, appellant agreed to place the dog in a private kennel pending the decision of the municipal court. The municipal court issued its decision on August 10, finding the dog to be vicious under the terms of the Act, and notice of appeal was filed on August 18, 1995. On March 11, 1996, appellant filed a motion seeking a modification of the municipal court's order requiring that the dog remain in a kennel pending the outcome of this appeal. The motion was denied on March 20, 1996. 2
A thorough textual analysis of the Act compels the court to reverse the municipal court's ruling in this case; for while the court purported to act consonant with the dictates of N.J.S.A. 4:19-20 and 4:19-22, in reality the actions of both the City of Hoboken and the municipal court created a crazy quilt of missteps and omissions which in no way satisfied the requirements of the statute.
According to N.J.S.A. 4:19-19, an action pursuant to the Vicious and Potentially Dangerous Dog Act begins when an "animal control officer ... seize[s] and impound[s] a dog" based on reasonable cause to believe that the dog is vicious or potentially dangerous under any one of four enumerated factors. 3 In this case, the pertinent factors would have been subsection (a) of N.J.S.A. 4:19-19, "[reasonable cause to believe that the dog] attacked a person and caused death or serious bodily injury ... to that person," and/or subsection (b), "[reasonable cause to believe that the dog] caused bodily injury ... to a person during an unprovoked attack and poses a serious threat of harm to persons or domestic animals." N.J.S.A. 4:19-19. Further, "[t]he dog shall be impounded until the final disposition as to whether the dog is vicious or potentially dangerous." Id.
Once the dog in question has been impounded, the animal control officer must immediately notify the municipal court of this action and attempt to identify the dog's owner. N.J.S.A. 4:19-20. Within three working days of ascertaining the owner's identity, the animal control officer shall notify the dog's owner of the impoundment and shall inform the owner of his right to request a hearing. The notice from the animal control officer to the dog owner "shall also require that the owner return within seven days, by certified mail or hand delivery, a signed statement indicating whether he wishes the hearing to be conducted or, if not, to relinquish ownership of the dog, in which case the dog may be humanely destroyed." N.J.S.A. 4:19-20. If a hearing is requested, the municipality has the burden of proving, by clear and convincing evidence, that the dog is vicious or potentially dangerous. A dog is deemed vicious if (in pertinent part) it: "(1) killed a person or caused serious bodily injury as defined in N.J.S. 2C:11-1(b) to a person." N.J.S.A. 4:19-22(a). However, a dog shall not be declared vicious for causing death or serious injury to a person if the dog was provoked. N.J.S.A. 4:19-22(b). A dog shall be found to be potentially dangerous if (in pertinent part) it: "(1) caused bodily injury as defined in N.J.S. 2C:11-1(a) to a person during an unprovoked attack, and poses a serious threat of bodily injury or death to a person...." N.J.S.A. 4:19-23(a)(1).
The City of Hoboken failed to follow this procedural roadmap. The proceeding concerning Big Head was initiated by Mr. Sasso, the Health Officer, instead of by the animal control officer as specified in N.J.S.A. 4:19-19. 4 Further, Hoboken did not commence proceedings by impounding the dog, as N.J.S.A 4:19-19 directs, but rather held a "preliminary" hearing before deciding to issue a summons for violating the Vicious and Potentially Dangerous Dog Act. Despite there being no provision for such hearings under the statute, Mr. Sasso contends that he acted pursuant to the powers afforded him by Hoboken City Code § 93-24. That ordinance reads:
The Health Officer is hereby empowered to order a hearing for the purpose of ensuring that all aspects of this chapter are being met. [He] shall give written notice stating the time, location and a brief statement of reason for the hearing....
[Hoboken, N.J. City Code § 93-24 (1994).]
However, the Act specifically provides for the preemption of "any law, ordinance, or regulation concerning vicious or potentially dangerous dogs, any specific breed of dog, or any other type of dog inconsistent with this act enacted by any municipality, county, or county or local board of health." N.J.S.A. 4:19-36. While it is true that a state statute does not preempt a municipal ordinance simply by addressing the same subject, Parsippany Hills Assoc. v. Rent Leveling Bd. of Parsippany-Troy Hills Township, 194 N.J.Super. 34, 49, 476 A.2d 271 (App.Div.1984), the ordinance will be preempted if the court finds that the Legislature intended the statute to be "the sole regulator of an area." State v. Crawley, 90 N.J. 241, 250, 447 A.2d 565 (1982). Toward that end, the New Jersey Supreme Court has applied a multi-part test to inform its preemption analysis:
1. Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted?
2. Was the state law intended expressly or impliedly to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature?
Applying the Overlook test, this court finds that the Vicious and Potentially Dangerous Dog Act preempts any Hoboken ordinance purporting to cover this same subject. At a minimum, the plain language of N.J.S.A. 4:19-36 declares the State's intention that the statute constitute the exclusive law in this area. Perhaps more importantly, however, is the danger that the procedural features of a municipal ordinance would conflict with the dictates of the statute--as they did in this case--thus inevitably leading to confusion among the parties and the inefficient enforcement of the Act. A servant can serve but one master; in this case, that master is the Legislature.
As the statute makes no provision for initiating an action by any means other than impoundment of the dog, it is clear that Hoboken did not proceed in accordance with the Act. Neither did the municipal court require the City of Hoboken to comply strictly with the statute's procedural demands. The court had ample opportunity to address this issue, by refusing to entertain...
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