On appeal from Superior Court of New Jersey Law Division, Camden County.
Approved for Publication July 23, 1996.
Before Judges Pressler, Wefing and Kole. The opinion of the court was delivered by Kole, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: Kole
The opinion of the court was delivered by
KOLE, J.A.D. (retired and temporarily assigned on recall).
Notices of violation of the Uniform Fire Safety Act, N.J.S.A. 52:27D-192 to 213, were filed by the City of Camden Fire Marshal's Office on December 6, 1993, *fn1 against defendant Michael Kouvatas. The violations were for premises owned by defendant known as Market Street East located at 227-229 Market Street, Camden, New Jersey. The notices of violation stated that the rear second and third floor fire escapes were "in deplorable condition" and were "not being properly maintained" contrary to N.J.A.C. 5:18-3.5. Defendant was ordered to pay a $1,000.00 fine or penalty. *fn2 Defendant also received a summons and complaint to appear in Camden City Municipal Court on January 11, 1994, for the violation of N.J.A.C. 5:18-3.5. At the time of the violation notices and summons, the property was leased to a restaurant operated by Robert DiSipio.
The violations notices and orders instructed defendant that a request for an appeal or hearing must be made in writing within fifteen days after receipt of the orders. *fn3 The notices incorrectly informed defendant that the request for hearing should be addressed to the City of Camden Fire Marshal's Office. In accordance with this information, defendant sent a certified letter dated December 20, 1993, to the Fire Marshal's Office requesting a hearing to appeal the violations. In a letter dated December 27, 1993, the City of Camden Fire Department informed defendant that he "must file such appeal, in writing, to the Camden County Board of Appeals..." In a letter dated January 10, 1994, defendant requested a hearing from the Camden County Construction Board of Appeals (Board). The Board, in a letter dated February 7, 1994, rejected the request for a hearing as not being made within the fifteen-day period for requesting a hearing. Though defendant continued attempts to obtain a hearing on the violations, no hearing was held.
On April 26, 1994, a Notice of Code Violation and Order to Pay Penalty was issued by the Fire Marshal in the amount of $700,000.00. The penalty was issued because defendant had not complied with the December 6, 1993, order to vacate the second and third floors of the premises. Defendant then requested an appeal of the fine to the Board within a fifteen-day period. A hearing date of July 6, 1994, was eventually set by the Board. The hearing was canceled by the Board and never rescheduled. No explanation is provided as to why the Board never rescheduled the hearing. However, the Camden City Attorney's Office, in a letter dated July 15, 1994, requested that the Board dismiss the administrative appeal, or stay the action until the municipal court matter could be resolved. Defendant opposed the dismissal in a letter dated July 19, 1994, but no response was received from the Board. In the end, defendant never received a hearing on the merits from the Board on any of the violations, or the $700,000.00 or any other penalty.
The municipal court hearing on the summons and complaint was delayed until March 3, 1995. The reasons causing the delay include: defendant's illness; the proceedings' being continued pending the administrative hearing; and a motion to dismiss the municipal court complaint for failure to provide discovery. At the March 3, 1995 municipal court proceedings, the court continued the proceedings to a firm trial date of May 2, 1995, since the city was not ready.
On May 2, 1995, in a hearing before the municipal court, instead of proceeding on the merits of the fire code violation complaint before that court, the city reduced the $700,000.00 penalty to $5,000 and sought summary enforcement thereof under N.J.S.A. 2A:58-1. *fn4 This was the first time that the city had given notice that it was going to seek summary enforcement of a penalty without a trial by the municipal court of the merits of the actual complaint before it. In response, the municipal court Judge asked if defendant had received notice of the imposition of a penalty. Defense counsel stated that notice was received, that an appeal had been made to the Board, and that the appeal was never heard.
The court then stated that "as I understand it I really don't have any control or any alternative but to say yea or nay [to enforcement of the penalty] and figure out how you're going to pay it. That's where it stands. If you plead surprise I really don't know if that's effective...It's my understanding that I really have no alternative. I don't have a right to look beyond the penalty that has been imposed and to enforce it. And that's exactly what I'm going to do. I am going to impose a $5,000 penalty as requested be imposed by the Fire Marshal's Office in accordance with the State Enforcement Summary Penalty Enforcement Act...I make no finding as to whether or not the appeal before the Board of Appeals was proper or not proper."
The municipal court did suggest that for the sake of brevity and convenience, everything be dismissed without prejudice and a new citation issued. However, the city asserted that it would be prejudiced by this action, since defendant had ample opportunity to fix and abate the situation and he was still in violation. In any event, because the property was vacant at the time, the city moved to dismiss the underlying complaint charging a fire code violation--apparently involving the $700,000 penalty--without prejudice. It was so dismissed by the municipal court.
Defendant appealed to the Law Division of the Superior Court. The Superior Court Judge ruled that, consistent with State Dept. of Community Affairs v. Wertheimer, 177 N.J. Super. 595, 427 A.2d 592 (App. Div. 1980), it did not have the authority to remand the controversy to the municipal court for a trial on the merits, as requested by defendant. If anything, he stated, defendant should have sought relief from the Chancery Division to have the Board's determination set aside. *fn5 The court held that the municipal court acted properly and affirmed its determination. *fn6 This appeal followed.
We hold that defendant was denied his right to due process and a fair hearing as to whether he was in violation of the statute and regulations involved herein, as well as the amount of the penalties imposed; and that the ...