Opinion
DOCKET NO. A-5007-12T4
04-01-2015
YOLONDA EASTERLING, Plaintiff-Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Defendant-Respondents.
Yolonda Easterling, appellant pro se. John J. Hoffman, Acting Attorney General, (Lewis A Scheindlin, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Department of Community Affairs, Docket No. R234689. Yolonda Easterling, appellant pro se. John J. Hoffman, Acting Attorney General, (Lewis A Scheindlin, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Yolonda Easterling appeals from the April 18, 2013 final determination of the Department of Community Affairs, Division of Codes and Standards (Department), denying as untimely her administrative hearing request. For the reasons that follow, we affirm.
The record establishes that plaintiff is the owner of a multiple dwelling in East Orange (the property). In September 2011, the Department's Bureau of Housing Inspection inspected the property and found several violations of the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -27 (the Act). The Bureau detailed these violations in an inspection report and orders dated October 20, 2011. The Bureau sent the inspection report and orders by certified mail on November 11, 2011 to the address on file for plaintiff. However, the post office marked the letter as "unclaimed" mail and returned it to the Bureau. Pursuant to N.J.S.A. 55:13A-20(b)(1)(ii), the Bureau re-sent the correspondence by substitute service on March 12, 2012.
Substitute service requires that a copy of the rules, decisions, and orders be served on the Secretary of State and posted in a "conspicuous location" on the property. N.J.S.A. 55:13A-20(b)(1)(ii).
On November 2, 2012, the Bureau re-inspected the property and determined that not all of the housing violations found at the September 2011 inspection had been corrected. Consequently, the Bureau issued another inspection report and orders, as well as a notice assessing a $850 penalty for failing to abate the previous violations. The notice of penalty alerted plaintiff in capital letters that "YOU MAY CONTEST THESE ORDERS" and then notified her in smaller print that she could contest the orders by filing a request for an administrative hearing within fifteen days of her receipt of the notice. The Bureau sent the notice by certified mail to the address on file. The post office again returned the correspondence as "unclaimed." The Bureau then served the correspondence by substitute service on March 21, 2013 (making a request for a hearing due by April 5). The individual who effectuated the substitute service certified that he "posted a copy of notice in a conspicuous location on the aforementioned premises."
The re-inspection found thirteen abated violations and five continuing violations, three for failure to have emergency egress lighting in the hallways, one for failing to caulk a tub, and one for failure to remove an unlicensed vehicle.
Plaintiff sent the Bureau a letter on April 13, 2013 requesting an administrative hearing. The Bureau received plaintiff's letter on April 16, 2013 and denied her request as untimely in the April 18, 2013 letter. The letter erroneously stated that plaintiff had "received and signed for" the notice and orders on March 21, 2013. This appeal followed.
On appeal, plaintiff argues that she never signed for any notice or order from the Bureau. Rather, she contends, at some unidentified time she found the notice in the trash and thereafter, submitted her request for an administrative hearing. Plaintiff also contends that all of the violations listed in the October 2011 notice and orders had been abated prior to the property being re-inspected. Plaintiff claims that when the re-inspection occurred, the property and the surrounding area were without power as a result of Hurricane Sandy. Plaintiff asserts that the violations found were those "which [she] had no control over" due to the power outage.
It is well-established that an administrative agency's findings will be accorded deference so long as they are supported by "adequate, substantial and credible evidence." In re Boardwalk Regency Corp. v. N.J. Casino Control Comm'n, 352 N.J. Super. 285, 306 (App. Div.), certif. denied, 174 N.J. 366 (2002) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Clowes, supra, 109 N.J. at 588). Thus, an appellate court will generally "not upset an agency's ultimate determination unless the agency's decision is shown to have been 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Barrick v. State, Dep't of Treasury, Div. of Prop. Mgmt. & Constr., 218 N.J. 247, 259 (2014) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alterations in original).
The Act provides that any person "aggrieved" by an order issued pursuant to the Act is entitled to a hearing. N.J.S.A. 55:13A-18. "The application for such hearing must be filed with the commissioner within 15 days of the receipt by the applicant thereof of notice of the ruling, action, order or notice complained of." Ibid. The fifteen-day time limit is mandatory and jurisdictional. See Cavallaro 556 Valley St. Corp. v. Div. of Alcoholic Beverage Control, 351 N.J. Super. 33, 38-39 (App. Div. 2002) (citing State, Dep't of Cmty. Affairs v. Wertheimer, 177 N.J. Super. 595, 599 (App. Div. 1980)). Where "the time frame is considered jurisdictional, [it] cannot be waived or relaxed by the agency;" rather, "relief must be sought before the Legislature." Id. at 38; see also Schaible Oil Co. v. N.J. Dep't of Envt'l Prot., 246 N.J. Super. 29, 31-32 (App. Div.) (noting that when a statute sets precise time limits for administrative adjudication, those limits are mandatory and cannot be relaxed), certif. denied, 126 N.J. 387 (1991).
Because we conclude that the Department was required to abide by the fifteen-day time limit, we affirm the Department's decision that plaintiff's hearing application was untimely.
We note that there remains an open question whether a "good cause exception" should be engrafted to the fifteen-day time limit requirement in the Act. See Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992) (permitting a late filed appeal of a migrant farmworker who did not receive notice as the agency sent it to the incorrect address). We do not reach that issue here, however, as Easterling has not demonstrated good cause for not filing a timely request for a hearing in this case.
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Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION