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Berger & Associates I, LLC v. Department of Community Affairs


May 16, 2012


On appeal from the New Jersey Department of Community Affairs, Agency Reference No. R338934.

Per curiam.


Submitted February 7, 2012 -

Before Judges Messano and Kennedy.

Berger & Associates I, LLC (Berger) appeals from a December 21, 2010 determination of the Department of Community Affairs (DCA) rejecting as untimely its challenge to a "Notice of Statutory Violation and Order to Pay Penalty" which alleged that Berger had failed to comply with prior orders requiring it to correct various building violations at its multiple dwelling in Metuchen. We affirm.

Berger's four unit multiple dwelling was inspected by the DCA, Bureau of Housing Inspection (Bureau), on January 28, 2010, and on March 4, 2010, the DCA issued a written inspection report and order setting forth several violations of the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A -1 to -28. The report required the violations to be corrected by May 3, 2010.

The Bureau re-inspected the premises on September 1, 2010, and determined that some of the violations set forth in its March report and order had not been abated. Consequently, on November 11, 2010, the Bureau issued a "Notice of Statutory Violation and Order to Pay Penalty" to Berger for its failure to comply with the March 2010 report and order. The notice provided, in pertinent part:

YOU MAY CONTEST THESE ORDERS at an administrative hearing. The request for a hearing must be made within 15 days after receipt of these orders. Each issue intended to be raised at the hearing must be set forth in detail in the letter.

[Emphasis in the original.]

The notice was received by Berger on November 22, 2010.

Berger contends that the Bureau's representative had never gained access to the premises in September and that, in any event, it had complied with the order to abate all violations.

By letter dated December 8, 2010, Berger advised the DCA it was "contesting" the November notice and claimed that all violations had been abated. Berger also enclosed a certification pertaining to the application of flame retardant paint on the premises.

By letter dated December 21, 2010, the DCA acknowledged receiving Berger's correspondence by facsimile on December 10, 2010, and by hard copy on December 14, 2010. The letter further denied Berger's "application for a hearing" because it had not been filed with the DCA within 15 days of Berger's receipt of the November notice. This appeal followed.

Berger contends on appeal that its letter demanding a hearing was timely filed; that the DCA delayed providing Berger with the required form of a "fire affidavit" until December 3, 2010, thereby "estopping" the DCA from rejecting as untimely its demand for a hearing; that given Berger's alleged abatement of all violations, the notice issued by the DCA is "fundamentally unfair"; and that it is entitled to relief under Rule 4:50-1.

We begin our consideration of these arguments by restating applicable legal principles. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [In re Taylor, 158 N.J. 644, 656 (1999) (citations omitted).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citing State v. Johnson, 42 N.J. 146, 162 (1964)).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

After carefully reviewing the record in light of the arguments advanced by the parties, we conclude that the DCA's decision is supported by sufficient credible evidence in the record and that the issues presented by Berger are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D), (E). We note only that N.J.S.A. 55:13A-18 provides that a person aggrieved by any action or ruling of the DCA is entitled to a hearing and that the application for a hearing "must be filed with the commissioner within 15 days of the receipt by the applicant" of notice of the action or ruling. The DCA is "without the authority to entertain a request for a hearing not submitted in accord with the time period established by statute." Dep't of Community Affairs v. Wertheimer, 177 N.J. Super. 595, 599-600 (App. Div. 1980). As a result, we are satisfied that the agency's action was not arbitrary, capricious, or unreasonable. Burris, supra, 338 N.J. Super. at 496.



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