STATE OF NEW JERSEY v. GREGORY CRANCE (1016-PKS-2019-52031, 1016-PKS-2019-52033, 1016-PKS-2019-52034, 1016-PKS-2019-52035, 1016-PKS-2019-1016-PKS-2019-52036, 1016-PKS-2019-52037, 1016-PKS-2019-52038, 1016-PKS-2019-56891, 1016-PKS-2019-56894, 1016-PKS-2019-56895, 1016-PKS-2019-1016-PKS-2019-56896, 1016-PKS-2019-56897, 1016-PKS-2019-56898, 1016-PKS-2019-56899, 1016-PKS-2019-56900, 1016-PKS-2019-56901, 1016-PKS-2019-56902, 1016-PKS-2019-56903, 1016-PKS-2019-56907, 1016-PKS-2019-56908, 1016-PKS-2019-56919, 1016-PKS-2019-56927, 1016-PKS-2019-57036, 1016-PKS-2019-57037, AND 1016-PKS-2019-57039, HUNTERDON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1374-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY CRANCE,
Defendant,
and
DELAWARE RIVER TUBING, INC.,
Defendant-Appellant.
_________________________________
Argued April 6, 2022 – Decided June 23, 2022
Before Judges Gilson, Gooden Brown, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Docket Nos. 1016-PKS-
2019-52031, 1016-PKS-2019-52033, 1016-PKS-2019-
52034, 1016-PKS-2019-52035, 1016-PKS-2019-1016-
PKS-2019-52036, 1016-PKS-2019-52037, 1016-PKS-
2019-52038, 1016-PKS-2019-56891, 1016-PKS-2019-
56894, 1016-PKS-2019-56895, 1016-PKS-2019-1016-
PKS-2019-56896, 1016-PKS-2019-56897, 1016-PKS-
2019-56898, 1016-PKS-2019-56899, 1016-PKS-2019-
56900, 1016-PKS-2019-56901, 1016-PKS-2019-
56902, 1016-PKS-2019-56903, 1016-PKS-2019-
56907, 1016-PKS-2019-56908, 1016-PKS-2019-
56919, 1016-PKS-2019-56927, 1016-PKS-2019-
57036, 1016-PKS-2019-57037, and 1016-PKS-2019-
57039.
Gaetano M. De Sapio argued the cause for appellant.
Candice McLaughlin, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Donna Arons, Assistant
Attorney General, of counsel; Candice McLaughlin, on
the brief).
PER CURIAM
Defendant Delaware River Tubing, Inc. (DR Tubing) appeals from a
January 25, 2021 order finding the company guilty of twenty-five violations of
N.J.A.C. 7:2-2.5, for operating a commercial enterprise on State parklands
without a permit. The order penalized DR Tubing $800 for each violation for
total penalties of $20,000. We affirm because the fines were authorized by
statute, the court's findings were supported by substantial credible evidence, and
the amounts imposed were within the court's discretion.
I.
DR Tubing is a corporation that rents and sells tubes for recreational use.
Its primary business is located several miles from the Delaware and Raritan
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Canal State Park (the Park) and the Delaware River. During the summer rental
season, customers park in the company's parking lot and rent tubes. DR Tubing
then transports its customers by shuttle buses, which park in the Park or on land
adjacent to the Park. Customers and employees of DR Tubing then walk to river
access points located in the Park. After the customers finish tubing, the
company's buses pick them up about six and a half miles downstream at another
Park location.
The Park is managed by the State Park Service (the Service), which is
part of the Department of Environmental Protection (the DEP). Through the
Service, the DEP manages State parks and the public's access to those Parks.
See N.J.A.C. 7:7-2.2. The Legislature has declared that developing and
managing State parks and forests, as well as providing recreational programs to
the public, is in the best interests of the citizens of the State. N.J.S.A. 13:1L-2.
The DEP is authorized to grant persons or companies the right to operate for
private profit in State parks when the Department finds it "necessary and proper"
to further the public's use and enjoyment of State lands. N.J.S.A. 13:1L-6.
Accordingly, the DEP's regulations prohibit commercial enterprises from using
State parks without a permit, contract, or lease from the State. N.J.A.C. 7:2-2.5.
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In 2013, DR Tubing entered a publicly bid Concession Agreement with
the DEP. The Agreement gave DR Tubing the exclusive right to rent tubes for
recreational floating down the Delaware River from designated entry and exit
points in the Park. The Agreement also permitted DR Tubing to use designated
parking spots for its buses and to install seasonal stairs at river -access points.
DR Tubing was also required to pay concession fees to the DEP based on its
annual number of tubing customers.
DR Tubing operated under the terms of the Concession Agreement, which
was renewed annually, from 2013 to 2018. The DEP, however, declined to
renew the Agreement for 2019, contending that DR Tubing had not paid the
required fees for previous years. The State contends that DR Tubing failed to
pay $43,000 in concession fees in 2016 and 2017. Accordingly, the DEP did
not extend DR Tubing's Concession Agreement for the summer of 2019.
Instead, DEP advised DR Tubing in writing that it could not operate on State
property.
Even though it did not have a Concession Agreement with DEP, DR
Tubing transported hundreds of customers each day into the Park from May to
September of 2019. In response, the State Park Police issued thirty-eight
complaint-summonses for unauthorized commercial activity in the Park in
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violation of N.J.A.C. 7:2-2.5. Those complaints originally named as defendant
Gregory Crance, the president of DR Tubing. The court later added DR Tubing
as a defendant on the DEP's motion.
Initially, the complaints were filed in the Kingwood Township Municipal
Court. Thereafter, an order was issued transferring venue from the Municipal
Court to the Superior Court. See N.J.S.A. 2A:58-11; N.J.S.A. 13:1L-23(d)
(allowing DEP to pursue civil penalties in either Municipal Courts or the
Superior Court).
A four-day bench trial was conducted in November 2020. At trial, the
State elected to proceed on thirty-four of the complaints. The court heard
testimony from five witnesses: three State Park police officers, the Assistant
Director of the Division of Parks and Forestry, and Gregory Crance. The DEP
also submitted evidence, including the Concession Agreement and several
videos showing the scope of DR Tubing's activities in the Park in 2019.
The trial court announced its decision on the record on December 15, 2020
and made detailed findings of facts and conclusions of law. The court found
that before 2019, DR Tubing had engaged in a commercial enterprise on State
lands in accordance with the Concession Agreement. The court also found that
in 2019, DR Tubing continued to engage in commercial activities for profit on
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property in a State park without a concession agreement. The court found DR
Tubing parked its buses in the Park and on State property; DR Tubi ng's
employees assisted customers with carrying tubes or guiding customers over
State property to the Delaware River; tubes were piled on the towpath in the
State Park; and tubes and employees of DR Tubing were often on State property.
Based on those factual findings, the trial court concluded that DR Tubing
had violated N.J.A.C. 7:2-2.5 on twenty-five occasions. The court dismissed
nine of the summonses. The court also dismissed all the summonses against
Crance. The court then imposed penalties. Those rulings were embodied in an
amended order issued on January 13, 2021. DR Tubing now appeals from that
order.
II.
On appeal, DR Tubing makes seven arguments contending, (1) it was not
a violation of law or regulations for it to provide its customers with
transportation to a State park so that the customers could access and use the
Park; (2) the Delaware River is a navigable waterway and the State cannot
penalize DR Tubing for transporting its customers to use that waterway; (3) the
right of access to the Delaware River is guaranteed by the Public Trust Doctrine;
(4) sustaining the civil penalties would sanction the State's violation of its
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obligation to facilitate access to the Delaware River; (5) the trial court erred by
considering and giving undue weight to the 2013 Concession Agreement; (6) the
court erred by allowing the State to amend the summonses to name DR Tubing
as a defendant; and (7) the State imposed administrative penalties without an
administrative hearing.
The scope of appellate review of a judge's verdict following a bench trial
is limited. Factual findings will be upheld on appeal when they are supported
by substantial credible evidence. Seidman v. Clifton Sav. Bank, 205 N.J. 150,
169 (2011). Moreover, we are obliged to "'give deference to those findings of
the trial judge which are substantially influenced by [the] opportunity to hear
and see the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). "We do not disturb the findings of fact and
conclusions of law of the trial court unless those findings and conclusions were
'so manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice.'" H.V.D.M. v.
R.W., 466 N.J. Super. 227, 238 (App. Div. 2021) (quoting Rova Farms Resort
Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
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DR Tubing's seven arguments can be appropriately analyzed in five
questions: (1) is the DEP authorized to require a commercial business to have
a permit to use a State park; (2) was DR Tubing operating a commercial
enterprise in a State park in 2019; (3) does the Public Trust Doctrine or the status
of the Delaware River as a navigable waterway prevent the DEP from regulating
DR Tubing's commercial operations; (4) did the trial court err in allowing DR
Tubing to be named as a defendant; and (5) were the penalties imposed lawfully?
A. The Authority of DEP.
The DEP is authorized to promulgate regulations regarding reasonable use
of State property. N.J.S.A. 13:1L-19. The Legislature has expressly granted the
DEP authority to enter concession agreements for the public's benefit:
The Department shall have the authority to grant such
rights or privileges to individuals or corporations for
the construction, operation and maintenance for private
profit of any facility, utility or device upon the State
parks . . . as the Department shall find necessary and
proper for the use and enjoyment of the lands by the
public. Such rights and privileges shall include, but not
be limited to, concessions, franchises, licenses, permits
and other rights and privileges deemed by the
Department to be appropriate in the utilization of the
lands for the public's benefit.
[N.J.S.A. 13:1L-6(a).]
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The DEP, in turn, has issued regulations directing that "[a] person shall
not engage in a commercial enterprise or activity on lands and waters under the
jurisdiction of the State Park Service without a permit issued by the State Park
Service or pursuant to a contract or lease entered into with the Department."
N.J.A.C. 7:2-2.5. That regulation was validly issued in 2014. Our review of
agency regulations "begins with a presumption that the regulations are both
'valid and reasonable.'" Caporusso v. N.J. Dep't of Health & Senior Servs., 434
N.J. Super. 88, 111 (App. Div. 2014) (quoting N.J. Ass'n of School Adm'rs v.
Schundler, 211 N.J. 535, 548 (2012)).
B. DR Tubing Commercial Enterprise.
The trial court found that DR Tubing had operated a commercial
enterprise on the Park by renting tubes to customers and then transporting the
customers to the Park. The court found that DR Tubing's "fleet of twelve buses"
had pulled onto State Park property daily "for the sole purpose of dropping off
and picking up" hundreds of customers. The court also found that DR Tubing
employees had escorted customers with their tubes to the river-access areas and
later picked up those customers after they had finished tubing down the river.
Those factual findings are supported by substantial credible evidence. Those
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facts also establish that DR Tubing operated a commercial enterprise on Park
lands.
DR Tubing contends that N.J.A.C. 7:2-2.5 is vague and overly broad
because there was no permit available for what DR Tubing was doing with its
customers in 2019. We reject that argument as not supported by the law or the
facts found by the trial court.
"A law is void if it is so vague that persons 'of common intelligence must
necessarily guess at its meaning and differ as to its application.'" Visiting
Homemaker Serv. of Hudson Cnty. v. Bd. of Chosen Freeholders of Cnty. of
Hudson, 380 N.J. Super. 596, 613 (App. Div. 2005) (quoting Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80 (1998)). Accordingly, for
the regulation to be unconstitutionally vague as applied to DR Tubing, it "must
not clearly prohibit the conduct on which the particular charges were based."
State v. Dalal, 467 N.J. Super. 261, 283 (App. Div. 2021) (quoting State v.
Saunders, 302 N.J. Super. 509, 521 (App. Div. 1997)).
N.J.A.C. 7:2-2.5, however, is clear: a person needs permission to operate
a commercial enterprise in a State park. The trial court confirmed the common
understanding of the term "commercial enterprise" by referring to Black's Law
Dictionary. That dictionary defined "business" as "[a] commercial enterprise
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carried on for profit; a particular occupation or employment habitually engaged
in for livelihood or gain." Black's Law Dictionary 192 (7th ed. 1999). Indeed,
this is in line with how "business" is defined by multiple dictionaries. See
Business, Merriam-Webster, https://www.merriam-
webster.com/dictionary/business (last visited June 5, 2022) ("[A] commercial or
sometimes an industrial enterprise . . . ."); Webster's II New College Dictionary
149 (1st ed. 1995) ("A commercial enterprise or establishment.").
Before 2019, DR Tubing had a Concession Agreement with the DEP that
allowed it to operate. The trial court also found that DR Tubing's activities in
2019 were the same as its activities from 2013 to 2018. Consequently, DR
Tubing understood it was operating a commercial enterprise in the Park. The
Service had a right not to renew that agreement when DR Tubing failed to pay
all the concession fees. Accordingly, we hold that N.J.A.C. 7:2-2.5 is not
unconstitutionally vague.
We also reject DR Tubing's contention that the trial court inappropriately
considered the Concession Agreement. The Agreement was relevant, and it was
appropriate for the trial court to consider the Concession Agreement because
DR Tubing operated under that Agreement from 2013 to 2018. The Concession
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Agreement was, therefore, relevant, and its probative value was not substantially
outweighed by its potential to cause undue prejudice. See N.J.R.E. 403.
C. The Public Trust Doctrine.
Under the Public Trust Doctrine, the shores and the navigable waterways
of New Jersey are open to public use and access by "all on equal terms."
Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 322 (1984) (quoting
Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 309
(1972)). The doctrine extends to "recreational uses," including the right of the
public to access and use the ocean and navigable waters. Borough of Neptune
City, 61 N.J. at 309; see also Arnold v. Mundy, 6 N.J.L. 1 (1821).
The State concedes that the Public Trust Doctrine applies to access to the
Delaware River. The State also concedes that the Delaware River is a navigable
waterway to which the public has a right of access. The public right of access,
however, can be reasonably restricted. See Matthews, 95 N.J. at 323-24. The
State has the right to impose reasonable regulations concerning access to public
trust areas. For example, it has long been recognized that the State or
municipalities can charge beach-access fees provided that those fees are
reasonable and related to the cost of maintaining lands or wet water areas under
the public trust doctrine. Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc.,
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185 N.J. 40, 42 (2005). A "municipality, in the exercise of its police power and
in the interest of the public health and safety, would have the right to adopt
reasonable regulations as to the use and enjoyment of [a] beach area." Van Ness
v. Borough of Deal, 78 N.J. 174, 179 (1978). Accordingly, the State has the
authority to adopt reasonable regulations governing the use and enjoyment of
lands leading to navigable waters. Ibid.; see also Borough of Neptune City, 61
N.J. at 306.
The Legislature authorized the DEP to regulate lands and waters under its
jurisdiction to ensure that commercial entities have concession agreements to
conduct commercial activities on State park lands. See N.J.S.A. 13:1L-6(a);
N.J.S.A. 13:1L-2; N.J.S.A. 13:1L-19. Consequently, the State is not barring
access to the Delaware River by requiring a concession agreement. Instead, it
is exercising the authority delegated to it by the Legislature to ensure that
commercial entities operate in a way that does not restrict the right of access of
the public. In short, the public has reasonable access to the Delaware River, and
commercial businesses can facilitate that reasonable access so long as they have
a concession agreement.
The trial court noted that the DEP did not issue tickets to DR Tubing
customers or other members of the public who had entered the Park to use the
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river. Indeed, nothing in the trial court's decision suggests that the company was
being penalized for accessing or using the Delaware River. Instead, penalties
were imposed on DR Tubing for violating DEP regulations because the company
was conducting a commercial enterprise on Park lands without permission or an
agreement with the State.
D. Adding DR Tubing as a Defendant.
The trial court properly permitted the summonses to be amended to add
DR Tubing as a defendant. Court rules permit amending a summons to remedy
technical defects, even after a trial has started. R. 7:2-5; R. 7:14-2. DEP
appropriately moved to amend the complaint-summonses to add DR Tubing at
the first appearance in Municipal Court. Those amendments gave DR Tubing
sufficient notice of the charges against it and a full opportunity to defend itself
at trial.
E. The Civil Penalties.
The Legislature has provided that violation of State Park Service
regulations can result in a civil penalty in an amount from $50 to $1,500. See
N.J.S.A. 13:1L-23(d). DR Tubing was found to have committed twenty-five
violations of N.J.A.C. 7:2-2.5. The trial court exercised its discretion and
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assessed a civil penalty of $800 per violation. Those penalties were within the
statutory range. We discern no error in the imposition of those penalties.
DR Tubing argues that a plenary hearing was required to review the civil
administrative penalties imposed. In making that argument, DR Tubing
misconstrues the difference between a civil action and an administrative action
under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -31. Because the
summonses against DR Tubing were pursued as civil penalties in court, they are
not subject to the Administrative Procedure Act.
In summary, we affirm the trial court's order finding DR Tubing guilty of
twenty-five violations of N.J.A.C. 7:2-2.5 and the court's imposition of an $800
penalty for each violation. To the extent that we have not addressed certain
arguments raised by DR Tubing, we hold that those arguments lacked sufficient
merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).
Affirmed.
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