Opinion
DOCKET NO. A-6244-09T3
09-16-2011
IN RE WILFREDO PEREZ
Robert J. DeGroot, attorney for appellant (Oleg Nekritin, on the brief). Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Barbara Berreski, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
On appeal from the Department of Community Affairs, Compliance Case No. R229177-04C.
Robert J. DeGroot, attorney for appellant (Oleg Nekritin, on the brief).
Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Barbara Berreski, Deputy Attorney General, on the brief). PER CURIAM
Wilfredo Perez appeals from final agency action by the Department of Community Affairs (DCA), Division of Codes and Standards (the Division), denying his application to extend the time within which he could request a hearing to contest a notice of continuing unabated violations of the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28 and orders to abate violations and pay a penalty of $110,000. We affirm.
The Commissioner's Notice of Continuing Unabated Violations and Orders to Abate Violations and to Pay Penalty was issued on April 15, 2010. The notice set a date of compliance for May 7, 2010, and reflected a penalty of $110,000. The violations were first detected during a cyclical inspection on September 14, 2005. Reinspections of the property on March 16, 2006, January 8, 2007, April 8, 2008, and March 17, 2010, revealed continuing, unabated violations. The Commissioner's notice was served by certified mail on April 16, 2010, but Perez did not claim the certified mail. As a result, on May 14, 2010, the Division served the notice on the Secretary of State, who is deemed the owner's agent for service of process, and on June 15, 2010, caused the Bureau of Housing Inspection (Bureau) for Newark to post a copy of the notice in a conspicuous location on the premises. The fifteen-day period in which to request a hearing lapsed on June 30, 2010.
On July 8, 2010, the Bureau received a letter from Perez's counsel stating in part:
Please be advised that I have been retained by Wilfredo Perez in the above captioned matter. Please enter my appearance on his behalf and a plea of not guilty to the alleged violations. Kindly send all correspondences and discovery in the matter to my address listed in the masthead above. Mr. Perez was recently very ill and did not personally see these orders until this week.
Treating the letter as a request for a hearing, but finding that it did not comply with the time constraints of N.J.S.A. 55:13A-18, the Division Director notified Perez's counsel on July 9, 2010, that the application for an administrative hearing was denied. Counsel received the denial on July 14, 2010.
On August 21, 2010, Perez's counsel sought reconsideration of the denial of Perez's application for an administrative hearing. He argued that the medical records for Perez, enclosed with the letter, showed "that he was undergoing several medical procedures including having a pacemaker/defibrillator installed during the time period after he received the Notice Orders dated 6/3/2010." However, the medical records he submitted, with one exception, were all from 2003 and 2008. The one exception was an emergency room record from July 31, 2010. That emergency room visit clearly did not occur until after the Division denied Perez's untimely application for a hearing. No response to that request was forthcoming and this appeal was initially filed on August 26, 2010, but several amended notices of appeal were filed in September 2010.
Perez contends that his failure to timely request an administrative hearing was a result of excusable neglect and that the DCA acted unreasonably when it failed to grant him a hearing because his medical condition prevented him from acting in a timely manner. He urges that his application for a hearing should have been evaluated under the standards governing civil courts on motions to vacate a default or default judgment. Finally, he contends that due process demands that he have a hearing.
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. 664, 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 issues presented by Perez are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D), (E). We note only that there was no competent evidence before the agency when it denied Perez's initial request for a hearing that would support a fact-finding that his medical condition prevented him from making a timely request. The July 2, 2010, letter from his attorney made no mention of any adverse health conditions and it was only at the time of counsel's request for reconsideration that any medical evidence was submitted. Additionally, the medical evidence submitted did not support counsel's argument that Perez was unable to make a timely request for hearing. The only medical record from 2010 constituted a one-day emergency visit to the hospital long after his untimely request for a hearing. This would not constitute good cause for relaxation of a time limit under any standard of review. 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.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
___________________________
CLERK OF THE APPELLATE DIVISION