On appeal from final decision of the Commissioner of Community Affairs.
Bischoff, Botter and Morton I. Greenberg.
This appeal originally involved the consolidation of five appeals from fines levied by the State of New Jersey, Department of Community Affairs, upon the owners of residential apartment buildings. Immediately prior to submission of the five consolidated appeals to this court for determination, we were advised that four of them had been settled and stipulations of dismissal filed. The remaining appeal which now receives our attention is that of the State of New Jersey, Department of Community Affairs, and Joseph A. LeFante, Commissioner v. Fritz and Marvin Wertheimer , Docket No. A-3421-78.
The record discloses the following factual background. On June 23, 1977 the Department of Community Affairs (respondent) issued a document entitled "Inspection Report and Orders of the Commissioner" detailing 20 violations of the Hotel and Motel Dwelling Law, N.J.S.A. 55:13A-1 et seq. , at the premises
of 403 Bergen Street, Newark, New Jersey. Fritz and Marvin Wertheimer, owners of the premises, were ordered to abate all violations noted by the date of reinspection. Appellants were also notified of their right to request a hearing within 15 days of the receipt of the Commissioner's order. Appellants received this document on June 22, 1977 [ sic ] but did not request a hearing. Instead, by letter, they requested a 60-day extension of time to abate the open violations. This request was granted by the Department and the time allowed for abatement was extended to October 18, 1977.
A reinspection of the premises on November 9, 1977 revealed a failure to abate the violations and appellants were assessed a penalty of $250 by notice and order dated January 25, 1978. Again, appellants were advised of their right to request an administrative hearing within 15 days of the receipt of the order. Appellants received this penalty notice on January 27, 1978 but did not request a hearing.
Appellants' premises were again reinspected on April 17, 1978 and the violations previously noted continued unabated. Appellants were thereupon served with a "Commissioner's Notice of Continuing Unabated Violations and Orders to Abate Violations and to Pay Penalty." This document, dated May 23, 1978, assessed a penalty of $3,000 against appellants. This notice, like the documents preceding it, contained notice to appellants of their right to request a hearing within 15 days of receipt of the notice. Appellants received notice of this penalty on May 25, 1978 and neither requested a hearing within 15 days nor paid the penalty assessed. By letter dated August 24, 1978 respondent informed appellants that since they had not paid the penalty their case was being referred to the Office of the Attorney General for suit under the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. Appellants, for the first time on October 19, 1978, requested an administrative hearing on the penalty assessed May 23, 1978. The request was denied as untimely and this appeal is from that denial.
(1) They were denied their constitutional right to due process of law by the failure of respondent to hold an administrative hearing prior to assessing the penalty;
(2) The statutory requirement that an application for a factfinding hearing be filed within 15 days of receipt of the notice of the action taken is arbitrary and capricious and violated appellants' due process rights;
(3) In addition to an administrative factfinding hearing they were entitled to a factfinding hearing in Superior Court, ...