On appeal from Superior Court, Chancery Division, Sussex County.
Approved for Publication March 6, 1996.
Before Judges Long and Brochin. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
The primary issue before us is whether the term "costs" as used in N.J.S.A. 45:1-25 includes investigative fees or whether it is limited to the kinds of items routinely assessed as court costs, for example, witness fees and printing costs. We think the more inclusive interpretation of the statute is the correct one and that investigative fees are within its contemplation.
For the purposes of this analysis, the facts of the case need not be detailed. It is sufficient to say that defendant was investigated by the State Board of Examiners of Master Plumbers and found to have engaged in the unlicensed practice of plumbing. After a bench trial he was fined $2500 and assessed $7308 in investigative expenses. Defendant challenges only the latter, contending that the statute precludes assessment of investigative costs. Alternatively, he argues that even if the statute allows such costs, the State failed to prove the amount and reasonableness of what was incurred.
N.J.S.A. 45:1-25 provides:
Any person violating any provision of an act or regulation administered by a board shall, in addition to any other sanctions provided herein, be liable to a civil penalty of not more than $2,500.00 for the first offense ... [and] the payment of costs for the use of the State. (emphasis added).
Defendant, citing U.S. Pipe & Foundry Co. v. United Steelworkers of America, 37 N.J. 343, 355, 181 A.2d 353 (1962), argues that "costs" is a term of art and
comprise principally certain statutory allowances, amounts paid the clerk in fees, and various other specified disbursements of counsel including sheriff's fees, witness fees, deposition expenses and printing costs.
See also Fagas v. Scott, 251 N.J. Super. 169, 207, 597 A.2d 571 (Law Div. 1991), ("litigation costs" include xeroxing, messenger services, filing fees, and postage "because they are of the type [of costs] that an attorney would normally bill a fee-paying client.") Underpinning this argument is the principle that ordinarily, "all litigants must bear the cost of enforcing their rights through litigation." Van Horn v. City of Trenton, 80 N.J. 528, 533, 404 A.2d 615 (1979).
According to defendant, if the Legislature had intended an exception to this rule and wished to include investigative fees within the scope of "costs" in N.J.S.A. 45:1-25, it knew how to do so and would have done so explicitly as it has in other statutes. See Velli v. Rutgers Casualty Ins. Co., 257 N.J. Super. 308, 312, 608 A.2d 431 (App. Div.), certif. denied, 130 N.J. 597 (1992). For example, N.J.S.A. 39:6A-34 provides that the demanding party "shall be assessed court costs and other reasonable costs ... including attorney's fees [and] investigation expenses." Likewise, N.J.S.A. 56:8-14.1 entitles county and municipal offices of consumer affairs to "reasonable costs ... including investigative and legal costs."
While this argument is appealing, it fails to account for the decision of our Supreme Court in In re Polk License Revocation, 90 N.J. 550 (1982). There, the Court affirmed the trial Judge's assessment of investigative fees pursuant to N.J.S.A. 45:1-25, the statute under review here, ...