Opinion
DOCKET NO. A-4042-13T2
03-03-2016
MALIK CHARLES, Appellant, v. NEW JERSEY DIVISION OF DEVELOPMENTAL DISABILITIES, Respondent.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Zachary R. Wall, on the brief). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Rosenblum, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Department of Human Services, Division of Developmental Disabilities, UIR No. 13-286731. Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Zachary R. Wall, on the brief). Gene Rosenblum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Rosenblum, on the brief). PER CURIAM
Malik Charles appeals from a March 25, 2014 final decision of the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD or agency), finding that he violated Danielle's Law, N.J.S.A. 30:6D-5.3(a), and imposing a $5000 penalty. He also appeals from the agency's denial of his request for an evidentiary hearing to contest the charge. We reverse the order on appeal, and we remand this case to the agency with direction that the case be transmitted to the Office of Administrative Law (OAL) for a plenary hearing on the underlying charge of violating Danielle's Law.
We permitted both sides to supplement the meager record on appeal. The agency submitted a certification detailing its procedures for mailing notices, and how the notices were mailed in this case. Charles certified to his non-receipt of the original notice, explained that he did not always reside at the address to which it was mailed, and set forth his procedural and substantive defenses to the charges.
I
By way of a background, Danielle's Law, N.J.S.A. 30:6D-5.1 to -5.6, requires that staff members at facilities for persons with developmental disabilities or traumatic brain injuries, or staff of public or private agencies who work with those clients, must call 911 for assistance if a client suffers a life-threatening emergency. N.J.S.A. 30:6D-5.3. A staff member who fails to comply with this requirement is liable for a civil penalty of $5000 for a first offense. N.J.S.A. 30:6D-5.4. The DDD has promulgated regulations enforcing the statute. See N.J.S.A. 30:6D-5.6.
Among other things, the regulations govern the investigation of alleged violations by the agency's Assistant Commissioner, the imposition of penalties where violations are found, service of penalty notices by certified mail or personal service, and the right to an administrative hearing to challenge the penalties:
The regulations do not specify any level of due process for the accused employee during the course of the investigation; specifically, they do not require that the agency at least attempt to obtain the employee's version of the incident.
(f) When the Assistant Commissioner has determined that a staff member has violated N.J.S.A. 30:6D-5.3, the Division shall notify that staff member of this determination by certified mail (return receipt requested) or by personal service. . . . The notice of violation shall:
1. Identify the section of the statute or rule violated;
2. Concisely state the facts which constitute the violation;
3. Specify the amount of the penalty to be imposed; and
4. Advise the staff member of how the notice of violation may be appealed.
(g) If an appeal of the notice of violation is not requested, the notice of violation shall become the final decision of the Department upon expiration of the 30-day period following the receipt thereof.
(h) A request for appeal shall be submitted in writing to the Assistant Commissioner within 30 days of the date of receipt of the notice of violation . . . .
[N .J.A.C. 10:42A-3.1(f)-(h).]
Notably, the regulations do not specify that regular mail may be substituted for certified mail service if the certified mail is unclaimed. The regulations also do not provide the accused employee an opportunity to obtain an extension of the thirty-day time limit for good cause, nor do they require that the employee be given notice of such an opportunity. But see N.J.A.C. 12:20-4.1(h) (permitting the untimely filing of an unemployment compensation appeal, upon a showing of good cause); see Garzon v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). Perhaps for that reason, the agency apparently has no mechanism by which an employee in appellant's situation can even make a record before the agency if he has not been properly served with the penalty notice or if he otherwise has a good explanation for failing to submit a timely appeal request.
In this case, the agency imposed a $5000 penalty on Charles, based on an investigation in which he had no opportunity to tell his side of the story because he was never interviewed. Charles was a van driver, responsible for transporting disabled persons. According to the certification we permitted him to file on a motion to supplement the appellate record, in March 2013, one of the passengers fell from the van and hit her head. According to Charles, she got up immediately and apologized for trying to get out of the van. He did not call 911 because she did not appear to be seriously injured. He resigned from the van driver job later in March 2013. No one ever contacted him concerning an investigation of the incident.
Ten months after the incident, the agency sent Charles a notice dated January 31, 2014, advising that he had violated Danielle's Law, and must pay a $5000 fine, because he failed to call 911 to report the incident. The letter was sent certified and regular mail to Charles' last known address listed in his employer's records. The certified mail was returned unclaimed but the regular mail was not returned. According to Charles' certification, he never received either letter because they were addressed to his mother's house and he was only there sporadically. The first notice he received was a March 25, 2014 letter advising him that the earlier notice was "now a final agency decision" and payment of the $5000 was due immediately.
The March letter advised Charles of his right to appeal to the Appellate Division and also advised Charles that if he had "any questions regarding this letter" he should call a specific agency employee at a phone number listed on the notice. According to Charles, he called that employee, advised him that he never received the earlier notice, and asked for the opportunity to have a hearing. The employee told Charles it was too late to contest the penalty and his only remedy was to file an appeal with this court.
II
We ordinarily defer to an agency's determination unless it is arbitrary, capricious, or unreasonable or is unsupported by substantial credible evidence. J.D. ex rel. D.D.H. v. N.J. Div. of Devel. Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000). However, we review an agency's legal determinations de novo. Brambila v. Bd. of Review, 124 N.J. 425, 437 (1991).
As previously noted, the DDD regulations permit the agency to serve violation notices by certified mail, return receipt requested, or by personal service. N.J.A.C. 10:42A-3.1(f). Once served with the original violation notice, an individual then has thirty days to request an administrative hearing, failing which the initial penalty notice will become final. N.J.A.C. 10:42A-3.1(g) and (h).
The regulations do not specify that regular mail service will suffice if the certified mail is returned unclaimed. Arguably, absent such a provision, the rule could be construed to require the agency to make personal service if certified mail is unclaimed. The agency relies by analogy on the court rules in asserting that regular mail will suffice if certified mail is unclaimed. See R. 1:5-4(b). However, the court rules also provide mechanisms by which a default or default judgment may be set aside where a litigant can demonstrate excusable neglect and a meritorious defense, lack of service, or that the interests of justice require relief. See R. 4:50-1(a), (d) and (f). The agency's rules have no such mechanisms. --------
The regulations have no provision for an extension of the thirty-day deadline for good cause, although due process principles require that the agency provide that opportunity. See Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992); Garzon, supra, 370 N.J. Super. at 2-3. Nor, apparently, does the agency have any mechanism for considering extension requests or for considering applications to vacate final orders in cases such as this, where an employee can show either non-receipt of the notice, or excusable neglect for failing to respond and a meritorious defense to the charge. At least on this record, the regulatory scheme seems designed to pursue efficiency at the expense of fairness.
According to Charles, when he received the March letter telling him that the penalty had become final, he called the individual who was listed on the notice as the person to call if there were questions. Charles explained that he did not receive the original mailed notice, but the agency representative told Charles that it was too late to request an administrative hearing, and his only recourse was to file an appeal with this court. The agency did not dispute that version of events. Nor did the agency dispute Charles's sworn statement that he was not interviewed as part of whatever investigation the agency undertook before it decided that he violated Danielle's Law and should pay a $5000 penalty. Charles' certification also set forth his version of events which, if believed, might constitute a meritorious defense to the charge of violating Danielle's Law.
A State agency has an obligation to "turn square corners" in dealing with members of the public who are subject to its regulations. See W.V. Pangborne & Co., Inc. v. N.J. Dep't of Transp., 116 N.J. 543, 561-62 (1989). Moreover, the agency is obligated to provide due process before it imposes a penalty.
The Constitution demands that a person not be deprived of property or liberty absent due process of law. To make such process adequate the state must provide "notice and an opportunity for hearing appropriate to the nature of the case." Put simply, the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final. The touchstone of adequate process is not abstract principle but the needs of the particular situation.
[Rivera, supra, 127 N.J. at 583 (citations omitted).]
"New Jersey cases have recognized a presumption that mail properly addressed, stamped, and posted was received by the party to whom it was addressed." SSI Medical Servs. v. HHS, Div. of Med. Assistance and Health Servs., 146 N.J. 614, 621 (1996). However, the presumption is rebuttable. Id. at 625; see also Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 319-20 (3d Cir. 2014). In this case, Charles provided evidence rebutting the presumption. Further, the agency, having taken ten months to serve Charles with a penalty notice, can hardly be heard to complain that time is of the essence in finalizing the penalty. See Rivera, supra, 127 N.J. at 589-90 (noting that "little explains the inflexible application of the . . . time limit on appeals").
In light of the agency's deficient procedures, the evidence of non-receipt of the initial notice, and the time that has elapsed since Charles first attempted to assert his right to a hearing, we remand this matter to the agency for an OAL hearing on the merits of the appeal. See Rivera, supra, 127 N.J. at 590 (noting that "[n]o fewer administrative resources would have been expended" to give Rivera a hearing on the merits of his appeal than to give him a hearing on the timeliness of his appeal request).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION