September 26, 2012
ROBERT DIMARIA, PETITIONER-APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS TRAINING ACADEMY, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Police Training Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2012 - Before Judges Reisner and Hayden.
Petitioner Robert DiMaria appeals from the final administrative action of the Police Training Commission (PTC) adopting the August 29, 2011 decision of the Administrative Law Judge (ALJ), pursuant to N.J.S.A. 52:14B-10. The PTC sustained DiMaria's dismissal from the Department of Corrections Training Academy following a positive drug test result. DiMaria claims his positive result came from inadvertently drinking coca de mate tea. He argues that the ALJ's decision was arbitrary and capricious because it ignored substantial credible evidence favorable to him and made incorrect credibility determinations. Additionally, he argues that the agency's interpretation of the applicable regulation was unreasonable because it was contrary to the regulation's plain language. We disagree with these arguments and affirm the PTC's final decision.
The record reveals that on January 5, 2009, DiMaria entered the New Jersey Department of Corrections Training Academy to participate as a recruit in the basic course for corrections officers. PTC's regulations provide for mandatory random drug testing of all recruits during the basic course. N.J.A.C. 13:1-7.2(a)(19). In addition, all drug testing conducted by any law enforcement academy during a basic course "shall be consistent with and utilize the procedures and methods set forth in the New Jersey Law Enforcement Drug Testing Policy and the New Jersey Drug Testing Manual . . . ." N.J.A.C. 13:1-7.2(a)(19)(i). Further, the regulation mandates the penalty for a positive result: "[t]he school director shall dismiss any trainee who produces a positive test result for illegal drug use. Such dismissal shall constitute a dismissal for misconduct . . . ." N.J.A.C. 13:1-7.2(a)(19)(ii). In addition, the PTC "may, as circumstances warrant, notify the central registry maintained by the Division of State Police of a trainee's positive test result for illegal drug use." N.J.A.C. 13:1-7.2(a)(19)(iii).
Recruits live at the Academy during the week, and are permitted to stay with their families from Friday nights to early Monday mornings. The Academy notified all recruits in every course on several occasions that they would be drug tested multiple times throughout their training. Prior to entering the Academy, DiMaria underwent a drug test which yielded a negative result. A subsequent test taken on the second day of training also was negative. Drug testing is performed early in the week to ensure that no illegal drugs are ingested during the recruit's absence from the Academy.
On February 9, 2009, the recruits were administered a third drug test. A few weeks later DiMaria had a fourth drug test, which yielded negative results. On April 1, 2009, DiMaria was informed that his third drug test had produced a positive result for benzoylecgonine, the primary metabolite for cocaine. When this chemical compound is found in a urine sample, it demonstrates that cocaine is present in the system of the tested person. Consequently, in accordance with the Attorney General's Law Enforcement Drug Testing Policy*fn1 and N.J.A.C. 13:1-7.2(a)(19), he was dismissed from the Academy, his name was placed on the State Police Central Drug Registry, and he was permanently barred from working in law enforcement in New Jersey.
DiMaria filed an appeal of his dismissal on April 15, 2009, alleging that on the morning of the positive test his mother served him coca de mate tea,*fn2 which was responsible for the positive drug test result. The PTC transmitted the matter to the Office of Administrative Law (OAL) as a contested case on July 17, 2009.
The parties appeared before the ALJ for an administrative hearing on July 13, 2011. The parties entered into several stipulations of fact, including that the February 9 drug test was accurate, that the test result showed that the tested person had cocaine in his body, that coca de mate tea can contain cocaine and can result in a positive test for cocaine, and that DiMaria subsequently had a hair sample drug test in April 2009 that was negative for cocaine or its derivatives.
The Academy's sole witness was John Cunningham, the Director of the Academy, who testified that, as required by the PTC, the Academy followed the Attorney General's Law Enforcement Drug Testing Policy,*fn3 which required dismissal for a positive drug test. On the second day of training all new recruit classes were informed about the drug testing and warned not to drink coca de mate tea as this could result in a positive test result. Cunningham acknowledged that the lecture was not in written form, and he could not provide written evidence that this particular warning was given to DiMaria's class.
DiMaria produced several witnesses at the hearing, including his mother, Leigh DiMaria,*fn4 who testified that in early February 2009, her son was home for the weekend with the flu. Ms. DiMaria decided to give her son some tea along with the over-the-counter medication she provided. She chose the coca de mate tea because she wanted to finish the box. She explained that, when the family was trying to figure out the cause of the positive drug test result, she looked at the box of tea, and thought, "coca, coca, cocaine?" She stated that in April 2009 only a few tea bags remained in the box, and she determined that the coca de mate was the tea she served her son.
DiMaria testified that he had been sick the weekend preceding the February 9 test. He stated that he took vitamins, Theraflu, and aspirin, and had reported ingesting those items the morning of the third drug test, but that he had not listed the tea. He denied receiving any warnings during the Academy lecture on drug testing about herbal teas, herbal supplements or coca de mate tea. He testified that his mother first conceived the idea that her tea caused the positive drug test. He steadfastly denied ever intentionally ingesting cocaine.
In addition, a childhood friend of DiMaria testified that, during the basic training course held immediately after DiMaria's course, the drug testing procedures instructor did not mention the dangers of ingesting herbal teas or coca de mate tea. Another family friend, who was a corrections officer, testified that he had known DiMaria for many years and had never known him to use illegal drugs.
The ALJ issued a written decision on August 29, 2011, affirming DiMaria's dismissal from the Academy. He determined that certain crucial testimony from DiMaria's witnesses was not credible and that the Academy had established by a preponderance of the evidence that DiMaria had produced a positive test result for illegal drug use.
In making credibility findings, the ALJ observed that no evidence of DiMaria's sickness was offered other than his own and his mother's statements. Further, the ALJ noted that DiMaria's and his mother's testimony were inconsistent. At the hearing, they both testified that Ms. DiMaria made the connection between the tea and the test results, while they both had stated in their prior certifications that DiMaria's attorney was responsible for this discovery. Further, the judge questioned Ms. DiMaria's assertion that she gave her son coca de mate tea because she wanted to finish the box in February, when, despite claiming to be an avid tea drinker, she had still not used up the contents in April. The ALJ concluded that DiMaria and his mother's inconsistencies undercut their credibility, and "their story fail[ed] to 'hang together.'"
Consequently, the ALJ found that DiMaria's positive drug test was not caused by the ingestion of coca de mate tea and concluded that the Academy had proven its case by a preponderance of the evidence. He explained as follows:
Per the plain language of the regulations, the Academy only has to prove the existence of a positive result. This fact was agreed to by the parties. While the parties disagree as to whether a mistaken ingestion of this tea provides a legal basis for overcoming the regulation, [DiMaria's] inability to credibly demonstrate the likelihood of this fact pattern makes consideration of such legal question unnecessary. This is all that N.J.A.C. 13:1-7.2, the governing regulation, requires.
The judge thereby affirmed DiMaria's dismissal from the Academy. The parties filed exceptions and cross-exceptions with the PTC. Because the PTC failed to act within forty-five days of the close of the record, the ALJ's initial decision was deemed adopted by the agency pursuant to N.J.S.A. 52:14B-10(c).*fn5
This appeal followed.
On appeal, DiMaria contends that the ALJ's findings of fact, particularly the finding that DiMaria did not ingest coca de mate tea, were arbitrary and capricious and not supported by substantial credible evidence in the record. He also argues that the ALJ's legal conclusions were erroneous and contrary to the language of the governing regulation, N.J.A.C. 13:1-7.2(a)(19). We find these arguments unpersuasive.
It is well settled that our scope of appellate review of administrative decisions is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We must "uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Dep't of Children and Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We must determine whether the agency's finding could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). However, we are not bound by an "agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
Based on upon the applicable standard of review, we are satisfied that the agency decision was reasonably reached based upon sufficient credible evidence in the record as a whole, and we find no reason to disturb the decision. We affirm substantially based upon the ALJ's written decision of August 29, 2011. R. 2:11-3(e)(1)(D). We add the following brief comments.
We reject DiMaria's attack on the ALJ's factual findings. We are convinced from our review that the ALJ's findings were based upon substantial evidence in the record. Moreover, he clearly articulated his findings and used them as a foundation for his legal conclusions. We must defer to an ALJ's findings because they are clearly influenced by the ALJ's ability to hear and see the witnesses, an opportunity unavailable to a reviewing court. Majiarum v. Twp. of Hamilton, 336 N.J. Super. 85, 100 (App. Div. 2000). Additionally, there is more than enough support in the record, including several inconsistencies in their testimony, for the ALJ's finding that DiMaria and his mother were not credible witnesses. Because the ALJ's findings of fact were amply supported in the record, they are entitled to deference. Id. at 100-01.
DiMaria also submits that the ALJ's legal conclusions were contrary to law. He argues that N.J.A.C. 13:1-7.2(a)(19) does not define the term "illegal drug use" and the plain meaning of this term does not require dismissal under the circumstances here. DiMaria maintains that the Academy did not prove that the cocaine in DiMaria's system was the result of "illegal drug use." We do not agree.
The parties stipulated that the February 9 drug test revealed the presence of the primary metabolite for cocaine, which indicated that the person had ingested cocaine. Any substance derived from coca leaves, which includes cocaine, is a Schedule II controlled dangerous substance, N.J.S.A. 24:21-6(a)(4), and possession and use of it without medical authorization is illegal. N.J.S.A. 2C:35-10. Thus, as the ALJ found, DiMaria had stipulated to facts sufficient to show the positive test resulted from illegal drug use. Because the ALJ rejected DiMaria's claim about his inadvertent ingesting of coca de mate tea, we need not reach the issue of whether the regulation covers the unintentional use of illegal drugs.