On appeal from a Final Decision of the New Jersey Department of Corrections.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Wefing, Payne and Baxter.
In the period from July 1999 to July 2004, defendant committed three zero tolerance drug/alcohol offenses: *258 (refusing to submit to testing for prohibited substances) and two charges of *204 (use of any prohibited substances). See N.J.A.C. 10A:1-2.2 (definition of zero tolerance drug/alcohol policy); 10A:4-4.1 (prohibited acts); 10A:4-5.1(c) (sanctions for zero tolerance drug/alcohol offenses) and 10A:4-12 (zero tolerance policies). Defendant was sanctioned with, among other things, permanent loss of contact visits. On August 21, 2007, defendant sought reinstatement of his contact visits, but he was informed that they were "permanently lost." Defendant appealed, and we remanded for reconsideration, noting that N.J.A.C. 10A:18-6.20(b) permits an application for "reinstatement of contact visit privileges for an inmate who has been found guilty of a second or subsequent prohibited act identified in a zero tolerance policy as established in N.J.A.C. 10A:4-5.1 and 12 . . . after the inmate has completed all consecutive sanctions imposed and has submitted a request to the Administrator [or] designee."
On remand, the Administrator denied defendant's request, stating:
[Y]our Disciplinary Record reflects that you permanently lost your contact visit privileges for three (3) separate zero tolerance infractions. In accordance with N.J.A.C. 10A:1-2.2; 10A:4-5.1 and in accordance with N.J.A.C. 10A:18-6.20 I have reviewed your request and the court's remand for consideration for restoration of contact visits. Be advised that your request for the restoration of your contact visits is denied. The use of narcotics within a correctional facility is considered to be an extremely serious violation. In addition, the standard reads "permanent loss of contact visits." The Webster's dictionary meaning for "permanent" is as follows . . . . Based on all of these reasons your request for restoration of contact visits is denied.
Defendant again appealed.
N.J.A.C. 10A:1-2.2 provides a definition for "Zero Tolerance Drug/Alcohol Policy" stating that "inmates found guilty of drug/alcohol related prohibited acts as set forth in N.J.A.C. 10A:4-5.1(c) shall have their contact visit privileges terminated while housed in New Jersey State prisons and correctional facilities." In contrast, the definition of "Zero Tolerance for Misuse or Possession of an Electronic Communication Device Policy" merely states that violators "shall have their contact visit privileges terminated and shall be ineligible for consideration for any custody status lower than medium custody until after the contact visit privileges are reinstated."
Despite what appears to be a permanent prohibition of contact visits in the definitional section, N.J.A.C. 10A:4-5.1(c) provides: Pursuant to the Zero Tolerance Drug/Alcohol Policy as defined in N.J.A.C. 10A:1-2.2, a finding of guilt to any of the following prohibited acts shall result in termination of contact visit privileges and ineligibility for consideration for any custody status lower than medium custody until after contact visit privileges are reinstated.
As stated previously, N.J.A.C. 10A:18-6.20(b) also permits reinstatement and particularly addresses circumstances in which the inmate has committed two or more zero tolerance offenses, permitting reinstatement at the discretion of the Administrator.
As the Department of Corrections (Department) notes, we upheld a permanent loss of contact visits as a permissible sanction for committing a zero tolerance drug offense in Ries v. Department of Corrections, 396 N.J. Super. 235, 240 (App. Div. 2007). However, it does not appear that the permanence of "permanent" was raised in that case, nor was it raised in connection with our decision in Hamilton v. Department of Correction, 366 N.J. Super. 284, 286 (App. Div. 2004).
Defendant argues that he has served his sanctions and has not committed a zero tolerance offense since 2004. He argues further that the Administrator's decision to deny reinstatement was arbitrary and capricious, because it was founded in her understanding that a permanent ...