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Richard Demarco, D/B/A Cooperative Parking Systems v. New Jersey Motor Vehicle Commission

July 29, 2011

RICHARD DEMARCO, D/B/A COOPERATIVE PARKING SYSTEMS, PETITIONER-APPELLANT,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Motor Vehicle Commission.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 6, 2010

Before Judges Lisa, Sabatino and Alvarez.

Richard DeMarco, d/b/a Cooperative Parking Systems, appeals from the November 13, 2009 Final Decision, entered after a remand from this court, of the New Jersey Motor Vehicle Commission (MVC). The decision terminated appellant's "LIMITED ON-LINE ACCESS PROGRAM AGREEMENT" (Agreement) with the MVC on the grounds that DeMarco has a criminal record. During the remand proceedings, when the MVC informed appellant of its intention to terminate the agreement based on his criminal record, appellant requested a hearing before the Office of Administrative Law (OAL). The MVC denied the request and proceeded to issue its final decision. For the reasons that follow, we conclude that a hearing was required in order to resolve material issues of fact and to assess the need for rulemaking. Accordingly, we vacate the November 13, 2009 final decision and remand for further administrative proceedings.

I.

Appellant is in the business of providing a service to automobile body shops, automobile repair shops, towing yards, and other entities or private parties who come into possession of abandoned vehicles. The service is to identify the owner of the vehicle and any lien holder with an interest in the vehicle, and provide those interested parties with notice of the vehicle's location, the steps necessary to reclaim it, and the consequences of failing to do so.

DeMarco began this business in 1994. Prior to that time, he operated a body shop for more than twenty-five years. During that time, he also sometimes engaged in towing of vehicles. He learned through that experience the procedures for obtaining through the then-Division of Motor Vehicles (DMV) the identities of owners and lien holders, so that he could lawfully dispose of abandoned vehicles.

In a hearing in these proceedings, DeMarco described the service his current business provides as follows:

Well, the towing companies, all these different entities that I solicit all the time is to move these vehicles in a more expedient manner so that the owner realizes that his accruing storing charges or he could be sued for leaving the car abandoned, also gives the banks and collateral lien holders an opportunity to reclaim these vehicles due to the fact that their customers, that they would be losing their collateral interest in these vehicles if the towing companies or all these different entities ended up filing this application and the DMV divests them of ownerships.

DeMarco continued by explaining why there was a need in this industry for the kind of service he provides:

Well, I came into the business in '94 and I realized that there was a ton of these different facilities and businesses that I was related to that they were just junking and converting people's property without due process. What I do is the due process part, I guess, is to send the notices out. They were just junking people's cars after a certain period time and - - I belong to the Towman's Association and the Auto Body Association, and being I'm part of those two associations, I've written different articles of stuff about this, about converting, you know, an individual's property and disposing them without due process, that they can get caught up in conversation [sic].

DeMarco further explained that a number of his customers provide towing services for municipalities, and described how his service fits into that kind of operation:

Well, I do it for the towing companies that service municipalities because certain municipalities, with all of the police work they have to do, they don't really have the expedient time as I do. This is my full time job, so when I get hired by different towers that work for municipalities I send the letters out in their name and it just says that they're the authorized representative towing company of certain municipalities, say, you know, Performance Towing authorized a tower for Point Pleasant Beach Police Department and then the body of the letter basically says 'We towed this vehicle at the public agency's request' on such and such a date, and that they're going to dispose of the vehicle within the time allowed by law, it's usually 20 to 30 days.

At the time of his testimony, DeMarco had more than 900 customers. He identified several other companies providing a similar service in New Jersey. These companies refer to themselves as motor vehicle title services.

Since beginning his business in 1994, DeMarco dealt on a regular basis with the DMV and its successor, the MVC, in obtaining the identifying information we have described. In 1997, the Legislature enacted the New Jersey Drivers' Privacy Protection Act (DPPA), now codified at N.J.S.A. 39:2-3.3 to - 3.7. See L. 2007, c. 188, eff. August 5, 1997. The DPPA, modeled after a similar federal law enacted in 1994, see N.J.S.A. 39:2-3.4d, e, regulates the disclosure of "personal information" related to motor vehicles, and "motor vehicle record[s]." N.J.S.A. 39:2-3.4a.

Implicated in this case are aspects of "personal information," which is defined in the DPPA as "information that identifies an individual, including an individual's photograph; social security number; driver identification number; name; address other than the five-digit zip code; telephone number; and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." N.J.S.A. 39:2-3.3. More particularly, and very importantly, the only aspects of "personal information" involved in this dispute are the names and addresses of vehicle owners and lien holders.

The DPPA prescribes what can be characterized as a basic procedure by which such information can be requested. This is done by submitting a written request on prescribed forms, setting forth various items of information including the reason for the request. N.J.S.A. 39:2-3.4b. Alternatively, the MVC is authorized to "permit a person to complete and submit for approval to the chief administrator or the chief administrator's designee, on a case by case basis, a written application form for participation in a public information program on an ongoing basis." Ibid. Under this alternative method, persons allowed by the MVC to participate in the program are granted ongoing access to the MVC's computerized database and can obtain the desired information online without the need for submitting a separate written request form for each request. With the online system, a requestor can obtain same-day information, whereas with the written requests, the information is not forthcoming for many weeks. It is appellant's access to the online database that is at the heart of the dispute in this case.

The DPPA lists twelve categories of purposes for which personal information may be disclosed. N.J.S.A. 39:2-3.4c(1) to (12). One of the categories is "[f]or use in providing notice to the owners of ...


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