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New Jersey Dep't of Labor, and Workforce Development v. Vanko Painting/Coating

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 16, 2007

NEW JERSEY DEPARTMENT OF LABOR, AND WORKFORCE DEVELOPMENT, PETITIONER-RESPONDENT,
v.
VANKO PAINTING/COATING, INC., AND GEORGE M. VANICSKO, JR., RESPONDENTS-APPELLANTS.

On appeal from the Board of Review, Department of Labor, Docket No. CRI-639563-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2007

Before Judges Cuff and Fuentes.

Respondent George M. Vanicsko, Jr. appeals from the order of the New Jersey Department of Labor (DOL), suspending his license to perform public contracting work in this State. The revocation was predicated upon Vanicsko's failure to disclose his interest in a company apparently owned by his former spouse. This company was on the DOL's revoked list at the time defendant omitted his interest therein.

The central issue here is whether respondent had notice of what constitutes a financial interest warranting disclosure. DOL argues that, in addressing the notice issue, we should look to the close relationship between the Prevailing Wage Act N.J.S.A. 34:11-56.25 to -56.47, and the Public Works Contractors Registration Act, N.J.S.A. 34:11-56.48 to -56.57. We agree.

N.J.S.A. 34:11-56.49c (of the Wage Act), provides that, "It is . . . necessary and proper for the Legislature to establish a registration system for contractors and subcontractors engaged in public works projects in order to better enforce existing labor laws and regulations in the public works industry." N.J.S.A. 34:11-56.52a(4) (of the Contractor Registration Act), requires that registrants provide the name of each person with a "financial interest" in the business entity subject to registration.

Although the Registration Act does not define "financial interest," N.J.S.A. 34:11-56.52a(4) requires the registrant to disclose the percentage of that interest; if the firm is publicly traded, the contractor must also disclose the names of the officers of the registrant. Vanko therefore argues that a fair reading of subsection (4) suggests that he is required to disclose an interest in the sole proprietorship, only if he had an ownership interest in the firm. He did not.

Under the plain language of N.J.S.A. 34:11-56.52a(4), disclosure of officers is only required when the registrant firm is a publicly traded firm. Vanko argues that he is not in violation of the disclosure requirements of the Registration Act, because Vanko does not fall under the category of a publicly traded company.

We disagree. To ascertain the notice requirements applicable here, the Registration Act and the Prevailing Wage Act should be read in pari materia. The regulations promulgated by the Commissioner under the enabling authority of the Prevailing Wage Act, N.J.S.A. 34:11-56.69, defines "interest" as follows:

"Interest" means an interest in the entity bidding or performing work on the public works project, whether as an owner, partner, officer, manager, employee, agent, consultant or representative. The term also includes, but is not limited to, all instances where the debarred contractor or subcontractor receives payments, whether cash or any other form of compensation, from any entity bidding or performing work on the public works project, or enters into any contracts or agreements with the entity bidding or performing work on the public works project for services performed, or to be performed, for contracts that have been or will be assigned or sublet, or for vehicles, tools, equipment or supplies that have been or will be sold, rented or leased during the period from the initiation of the debarment proceedings until the end of the term of the debarment period. "Interest," however, does not include shares held in a publicly traded corporation if the shares were not received as compensation after the initiation of debarment from an entity bidding or performing work on a public works project. [N.J.A.C. 12:60-7.2 (emphasis added).]

Thus, when considered against this legal standard, the record developed before the Administrative Law Judge (ALJ) amply supports the findings reached therein. That record shows that respondent paid the revoked associated company's $6,000 fine, and listed himself as that company's vice-president in a letter sent to the State Division of Taxation. The ALJ found his attempts at distancing himself from this company unavailing. The Commissioner adopted the ALJ's findings.

Our review of administrative agency decisions is quite narrow. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). We will not disturb a determination by an administrative agency in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the enabling legislation. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006).

Against this standard of review, we are satisfied that the Commissioner's decision was well-supported by substantial credible evidence and was not arbitrary, capricious or unreasonable. We discern no legal basis to intervene.

Affirmed.

20070716

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