April 28, 2009
ZAMAL AHMED, APPELLANT,
STATE OF NEW JERSEY, DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF CODES AND STANDARDS, BUREAU OF HOUSING INSPECTION. RESPONDENT.
On appeal from Department of Community Affairs, Case No. R600021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Payne and Waugh.
Appellant, Zamal Ahmed, the owner of a three-family dwelling in Paterson, appeals from a determination by the Department of Community Affairs (DCA) to dismiss as untimely his appeal from (1) the imposition, pursuant to the Hotel & Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28, and applicable regulations, of a fine in the amount of $500 for failure to properly demonstrate that he had corrected deteriorated lead paint found on a third-floor window of a common hall and the causes of the deterioration and from (2) a penalty of $5,000 for failure to provide dust wipe samples demonstrating compliance with applicable lead levels by the deadline set by the DCA. On appeal, Ahmed claims that the DCA's denial of an administrative hearing deprived him of his procedural due process rights.
The following facts are relevant to our resolution of this appeal. On June 4, 2007, following an inspection of the premises by the DCA's Bureau of Housing Inspection, Ahmed was cited for unsafe maintenance of lead-based paint. See N.J.A.C. 5:10-6.6(d) (Lead-safe maintenance requirements for multiple dwellings). The notice of violation was served on June 17, 2007, and compliance with the order for remediation was required by June 27, 2007. The premises were reinspected on July 9, 2007. At that time, the inspector noted that the work appeared to be complete, but that a required license and certification needed to be produced. When Ahmed failed to provide the required documentation, a $500 penalty was imposed pursuant to N.J.S.A. 55:13A-19(b). A notice of statutory violation and order to pay penalty, dated July 11, 2007, was served on Ahmed, by substituted service, on August 31, 2007.*fn1 The notice provided that a request for an administrative hearing to contest the order "must be made within 15 days after receipt" of the order.
On July 26, 2007, the Bureau of Housing Inspection advised Ahmed of his continuing violation, requiring compliance by September 24, 2007. That letter was followed by a further letter of September 17 advising Ahmed that failure to provide necessary dust wipe samples indicating compliance with Department of Housing and Urban Development standards and a required certification*fn2 within seven days "may result in additional penalty assessments of $5,000.00 per each day the dust wipe results and certification are not provided."
On September 20, 2007, Ahmed engaged a private inspector, licensed by the Bureau, who issued a report stating that tests conducted on the third floor hallway met government standards.
On September 25, 2007, one day after the Bureau's deadline, Ahmed sent a copy of the inspector's report and test results to the Bureau by telefax.
On October 25, 2007, the Bureau issued an order requiring Ahmed to pay a $5,000 penalty for failure to comply with the instructions contained in the September 17, 2007 letter. That order, like the previous one, required payment within thirty days of receipt and provided that the order could be contested at an administrative hearing, but that the request for a hearing must be made within fifteen days of receipt of the challenged order. The order was served on Ahmed by certified mail on October 29. Ahmed did not request a hearing within the fifteen-day specified period.
Twice on November 5, 2007 and once on November 7, 2007, Ahmed sent by telefax copies of his inspector's report and the test results obtained in September, indicating that his premises were in compliance with applicable laws.
On November 7, 2007, the Bureau sent Ahmed a letter acknowledging receipt of all of the certifications and demanding payment of the $5,500 in outstanding penalties by December 7, 2007. Subsequently, the Bureau agreed to reduce the penalty to $3,300, if Ahmed paid the penalty by December 28, 2007. In response to a letter by Ahmed's newly-retained attorney, the Bureau agreed to extend the due date for payment of the reduced penalty to January 28, 2008, after which the Bureau would seek payment of the full amount assessed.
On January 15, 2008, Ahmed requested an administrative hearing pursuant to N.J.S.A. 55:13A-18. On January 22, 2008, the Bureau denied Ahmed's request as untimely. On February 28, 2008, a judgment in the amount of $5,500 was entered against Ahmed in the Superior Court, pursuant to N.J.S.A. 2A:58-10. This appeal followed.
On appeal, Ahmed notes that he is of Middle Eastern origin, with little command of English, that he had been laid off from his employment, and that he lacks funds. He then argues that the notice of his right to appeal was too inconspicuous; it was conveyed in too impersonal a manner, not having been conveyed orally as in municipal court; and the time in which an appeal must be filed was too short. Accordingly, Ahmed claims that he was denied his constitutional right to procedural due process. Ahmed argues additionally that the prompt offer of settlement by the Bureau for a markedly lower amount demonstrated bad faith on the Bureau's part and an attempt to balance the budget by bleeding the populace.
We reject Ahmed's due process arguments, which are similar to those that we considered previously in Community Affairs Dep't v. Wertheimer, 177 N.J. Super. 595 (App. Div. 1980). Addressing the defendants' challenge to the denial, as untimely, of their request for a hearing on fines and penalties imposed pursuant to the Hotel and Multiple Dwelling Law, we stated:
The essential components of due process are adequate notice[,] opportunity for a fair hearing and availability of appropriate review. In re Heller Suspension, 78 N.J. 292, 310 (1977). The fundamental requisite of notice involves "such notice as is in keeping with the character of the proceedings and adequate to safeguard the right entitled to protection." State v. Standard Oil Co., 5 N.J. 281, 305 (1950), aff'd. 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078 (1951). Advance notice of a tax or penalty assessment is not necessary so long as the subject is afforded an opportunity to present his defenses to a competent tribunal before it is collected or the order to pay becomes irrevocable. Nickey v. Mississippi, 292 U.S. 393, 54 S.Ct. 743, 78 L.Ed. 1323 (1934); Horsman Dolls, Inc. v. Unemployment Comp. Comm'n, 7 N.J. 541, 550-551 (1951), app. dism. 342 U.S. 890, 72 S.Ct. 201, 96 L.Ed. 667 (1951); Malady v. Board of Review, 166 N.J. Super. 523, 530 (App. Div. 1979).
The time within which a person aggrieved by an administrative ruling may request a hearing under the Hotel and Multiple Dwelling Law is set by the statute at 15 days. N.J.S.A. 55:13A-18. Accordingly, the Department is without authority to entertain a request for a hearing not submitted in accord with the time period established by the statute. Scrudato v. Mascot S. & L. Ass'n, 50 N.J. Super. 264 (App. Div. 1958); Hess Oil & Chem. Corp. v. Doremus Sport Club, 80 N.J. Super. 393 (App. Div. 1963), certif. denied, 41 N.J. 308 (1964); Borgia v. Board of Review, 21 N.J. Super. 462 (App. Div. 1952); Malady v. Board of Review, supra, at 527; Lowden v. Board of Review, 78 N.J. Super. 467 (App. Div. 1963).
Moreover, it is clear that appellants never sought an administrative review of the assessment of fines and penalties until October 19, 1978, long after the inspection, reinspection and assessment of fines and penalties had become an accomplished fact. It is thus clear that the 15-day time period did not prejudice appellants by its brevity.*fn3
[Wertheimer, supra, 177 N.J. Super. at 599-600.]
Our review of the Commissioner's Notice of Statutory Violation and Order to Pay Penalty satisfies us that the written notification therein of appeal rights meets due process standards. The fact that the orders may be contested is signaled by the phrase, "YOU MAY CONTEST THESE ORDERS," written, as here, in capital letters, using a bold typeface. Further instructions regarding the right to appeal appear in type equal in size to that utilized in the remainder of the notice. The DCA had no obligation to provide its notice in a language other than English. Alfonso v. Bd. of Review, 89 N.J. 41, 46 (1982).
We decline to address Ahmed's argument that the Bureau's offer to reduce the amount owed provided evidence of its bad faith in levying the assessment in the first place, finding utterly no factual or legal support for Ahmed's conclusions. R. 2:11-3(e)(1)(E).