On appeal from the Department of Labor and Workforce Development, Docket No. PC-1233-1005-BOI.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judge Messano and Chambers.
John H. Morley, Jr., appeals from the final agency decision of the Department of Labor and Workforce Development (DOL) that assessed a penalty of $1250 for failing to register pursuant to the Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48 to -56.56 (the CRA). We glean from the record, including the testimony before the administrative law judge (ALJ), the following facts which were essentially undisputed.
In December 2002, Morley was hired by C.J. Schmidt and Sons (Schmidt), a general contractor performing public work on the Monroe Township Williamstown Middle School, as a sub-contractor to install a fire-protection sprinkler system. The sub-contract amount was $26,600. Schmidt executed its contract with the school system in January 2003, and at that time, Morley had a valid certificate of registration issued pursuant to N.J.S.A. 34:11-56.54. On April 9, 2003, Schmidt obtained permission to install the fire protection system in the project, and Morley commenced his work.
Morley's business is located in Pennsylvania. He employs no other workers and on this occasion performed all the contract work himself. The design phase of the work continued until sometime in August when Morley submitted his "shop drawing" for review. Thereafter, he "fabricated" the components of the system and "beg[a]n installation." He substantially completed his work in September 2003, and tested the system as installed sometime in December 2003.
In the interim, on May 3, 2003, Morley's certificate of registration expired. DOL does not routinely notify a registrant that renewal is required and did not notify Morley in this case. However, on September 22, 2003, Morley submitted an application for renewal of his certificate. Though subsequent testimony before the ALJ revealed that DOL deemed the application to be incomplete, Morley was not notified, nor were any insufficiencies actually identified.
More than two years later, in November 2005, DOL issued Morley a notice of violation for failing to register. John Callahan, a Hearing and Review Officer for DOL familiar with the administrative process that followed the issuance of the violation, testified before the ALJ that the citation was occasioned by an inspection DOL conducted in September 2005. Callahan could not say what prompted the inspection, but noted that it could have resulted from "a complaint," "a routine [inspection]," or from "a wage claim." In response to the ALJ's question as to why there was such a delay between completion of the work, and the notice of violation, Callahan noted "we do have jurisdiction going back several years to anything within that time frame . . . that would be under our jurisdiction to do an inspection." He continued, "[U]nder our wage payment law, we can go back six years."*fn1
The initial penalty assessment was in the amount of $2500. Morley filed an administrative appeal and a pre-hearing conference was held in an attempt to resolve the issue. It was not resolved and DOL issued a final order assessing the penalty on July 20, 2006. When Morley appealed, the matter was transferred to the Office of Administrative Law on February 15, 2007 as a contested matter. The hearing held before the ALJ on April 17, 2007 was limited to Morley and Callahan's testimony, and the admission of various documents.
In a written opinion issued on May 9, 2007, the ALJ essentially reviewed the evidence we have cited above. He found it to be "undisputed that Morley violated the [CRA]" because "[h]e was engaged in public work without a contractor registration after May 2002 (sic) when his registration expired." Citing N.J.A.C. 12:62-2.5, the ALJ concluded that DOL could assess the penalties available for violations of the PWA to any violation of the CRA. Although DOL sought to impose the maximum allowable penalty against Morley, $2500, the ALJ noted that any penalty assessed under the PWA must consider the factors set forth in N.J.A.C. 12:60-8.3(c). After consideration of those factors, the ALJ determined that the appropriate penalty was $1250.
On June 26, 2007, DOL issued its "Final Administrative Action" adopting the ALJ's decision and approving "the terms of the settlement." While it is unclear from the record what transpired immediately thereafter, DOL then issued another Final Order, dated July 23, 2007, which ignored the fact that Morley had appealed the original notice of violation. On August 29, 2007, DOL sent Morley a third letter notifying him that he was being debarred from further public work for failing to comply with the prior administrative order and paying the penalty.
Morley filed this appeal on August 30, 2007. On September 7, 2007, DOL sent Morley yet another notice advising that both the July 23 Final Order and the August 29 letter of debarment were sent in error, and that the notice of Final Administrative Action dated June 26 was the agency's ultimate decision.
Morley argues that the CRA does not authorize the imposition of a financial sanction for a failure to register, and that any interpretation to the contrary cannot be squared with the ...