JAMES M. MALONEY v. NEW JERSEY MOTOR VEHICLE COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3954-04T23954-04T2

JAMES M. MALONEY,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Respondent.

________________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from a Final Determination of the New Jersey Motor Vehicle Commission.

James M. Maloney, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Emily H. Armstrong, Deputy Attorney General, on the brief).

PER CURIAM

James M. Maloney appeals from a final determination of the New Jersey Motor Vehicle Commission (Commission) dated February 22, 2005 denying his request for an administrative hearing to determine the validity of an outstanding surcharge and the continuing suspension of his New Jersey driving privileges. The Commission denied the hearing because of Maloney's failure to "specify disputed material facts and/or legal issues/arguments in [his] request for a hearing." We affirm.

Maloney was convicted in 1984 for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50(a), which occurred on June 11, 1983. The Commissioner (then the Director of the Division of Motor Vehicles) levied a mandatory statutory surcharge of $1,000 per year for three years as a result of Maloney's conviction. N.J.S.A. 17:29A-35b(2)(b). The statute requires written notification of the surcharge mailed to the violator's "last address of record with the commission." Ibid.

The record on appeal contains numerous notices sent by the Commission to Maloney in 1985, 1986 and 1987. All were sent to 177 Main Street, Fort Lee, New Jersey, 07024. According to the Commission, that was Maloney's address of record at all times the notices were sent. Maloney submitted no evidence to the contrary. Maloney disputes that he ever received any of the notices. He contends the first notice he actually received regarding the surcharge was dated December 16, 2004, mailed to his current address at 33 Bayview Avenue, Port Washington, New York, 11050-3515.

The Commission does not necessarily dispute that Maloney never received the notices sent to the Fort Lee address. The Commission contends that compliance with the statutory obligation of mailing the notices to the last address of record satisfied the notice requirement. The Commission finds support for its position in N.J.S.A. 39:3-36, which requires New Jersey licensed drivers to notify the Commission within seven days of any change in residence, and State v. Wenof, 102 N.J. Super. 370, 375-76 (Law Div. 1968), overruled on other grounds, State v. Ferrier, 294 N.J. Super. 198 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997), holding that mailing to the address of record is a method reasonably calculated to reach the intended party and thus satisfies due process even in the absence of actual notice.

The Commission's argument on appeal relies upon its assertion that all notices were sent to Maloney at his address of record. It argues, for example, "The surcharge statute provides that the surcharge notice is to be sent to the address of record, which is what the [Commission] did." And, after articulating its position disputing Maloney's statute of limitations contentions, the Commission stated that "Maloney's statute of limitations argument, which is essentially an argument based on laches, should be rejected because of his own failure to notify the [Commission] that his address of record had changed."

The scope of judicial review of the action of a state agency is very limited. We will not upset an agency determination "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence . . . ." Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963) (citations omitted). Applying this deferential standard, we are satisfied that the record supports the Commission's factual finding that the Fort Lee address was Maloney's address of record at the time the surcharge notices were sent. We further agree with the Commission's legal conclusion that sending the notices to the correct address of record satisfied the notice requirement and complied with due process. Accordingly, we affirm the Commission's final determination of February 22, 2005.

We add one caveat. The final determination concluded with a note: "If you have factual evidence of an error in your New Jersey driver history record, which will affect your surcharge assessment, please submit documentation to the Surcharge Administration Office . . . ." The record on appeal furnished to us by the Commission contains a "MOTOR VEHICLE SERVICES ADDRESS CHANGE HISTORY," dated August 11, 2005, reflecting a current address from Maloney at P.O. Box 551, Port Washington, New York, 11050-0551, and a previous address at 177 Main Street, Fort Lee. This document reflects no other addresses for Maloney. However, the record furnished to us by the Commission also includes a copy of the motor vehicle summons for the underlying June 11, 1983 DWI offense and its disposition, as well as a photocopy of Maloney's driver's license at that time. Both the summons and driver's license show his address at 375 Undercliff, Edgewater, New Jersey, 07020. We are mindful, of course, that those documents predate by at least two years the surcharge notices later sent to Maloney at the Fort Lee address, and Maloney may well have notified the Commission of a change of address in the interim. Nevertheless, we are puzzled by the absence of a prior address, including that in Edgewater, on the Commission's change history document.

Our affirmance is without prejudice to Maloney's right to again seek an administrative hearing if he can furnish to the Commission competent factual evidence that the Fort Lee address was not his official last address of record with the Commission on the dates when the surcharge notices were sent to him.

 
Affirmed.

(continued)

(continued)

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A-3954-04T2

December 7, 2005