LEWIS J. SPIELER v. JIS ASSOCIATES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1267-10T1

LEWIS J. SPIELER &

CYNTHIA J. SPIELER,

Appellants,

v.

JIS ASSOCIATES,

Respondent.

__________________________

November 8, 2012

Submitted: October 17, 2012 - Decided:

Before Judges Axelrad and Haas.

On appeal from the New Jersey Division on Civil Rights, Department of Law & Public Safety, Docket No. HG22WW-61589.

Lewis J. Spieler and Cynthia J. Spieler, appellants pro se.

Josephine Shenman, respondent pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beverley A. Lapsley, Deputy Attorney General, on the brief).

PER CURIAM

Appellants, Lewis and Cynthia Spieler, tenants of a housing complex managed by respondent, JIS Associates, appeal from the final determination of the Director of the Division of Civil Rights (Director) finding no probable cause to substantiate appellants' complaints of housing discrimination. We affirm.

On November 1, 2007, the parties entered into a written lease agreement for an apartment in Middlesex County, renewed annually. Appellants receive Section 8 housing assistance and thus the apartment is subject to annual inspection by the New Jersey Department of Community Affairs (DCA). The parties had numerous conflicts during the tenancy, involving issues such as repairs, heat, insect infestation, and damage to the units. In October 2009, respondent's manager, Jo Shenman, contacted the DCA about problems she was having with appellants. On November 10, 2009, the DCA sent appellant Cynthia1 a notice of adverse action, advising it had received recurring complaints regarding her occupancy, specifically regarding destruction of property.

On November 2, 2009, respondent filed an eviction complaint against appellants, alleging "disorderly conduct to the neighborhood," willful violation of rules, and significant damage to the premises. Apparently the eviction did not proceed because respondent did not send the requisite formal notices to quit.

On January 22, 2010, appellants filed a housing discrimination complaint with the United States Department of Housing and Urban Development (HUD), that was forwarded to the New Jersey Division on Civil Rights (Division) for investigation, and was withdrawn by appellants on March 3, 2010. Respondent issued appellants multiple notices to cease and notices to quit from January to June 2010, alleging excessive noise; property damage; harassing phone calls; disorderly conduct; and tampering with mail boxes, plumbing and locks.

On July 6, 2010, appellants filed a housing discrimination complaint with HUD, and the matter was forwarded to the Division for investigation. On July 26, 2010, appellants filed the subject verified complaint with HUD, also handled by the Division, charging that respondent subjected them to differential treatment because of their race (Caucasian), national origin (non-Hispanic), and mental disability (unspecified), as prohibited by the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. l0:5-12(g). In particular, appellants alleged respondent did not make repairs and renovations to their apartment in the same manner as it did for its Hispanic tenants and tenants without disabilities. Appellants also claimed respondent issued them multiple notices to cease and notices to quit from May 11, 2010, but did not issue similar notices to those other tenants.

Respondent denied the allegations and asserted that appellants have always been troublesome tenants. Respondent admitted sending appellants the notices to cease and to quit but denied they were sent for discriminatory reasons. Rather, they were sent because appellants willfully and repeatedly caused damage to the property, were abusive to employees, and did not timely pay rent. Respondent characterized appellants' behavior as harassing and abusive.

Although Lewis would not provide the investigator with any information regarding an alleged mental disability, the investigator noted that it was clear respondent perceived him as having a mental disability. Nonetheless, according to the investigator's report, "the investigation failed to reveal any evidence that Shenman's perception of [] Lewis' alleged mental disability factored into any of her actions in connection with this case."

The Division's investigator interviewed other tenants (two Caucasians, two Hispanics, and one African American) and respondent's independent contractor who performs routine repairs and maintenance at the property, including appellants' apartment (Caucasian), none of whom supported appellants' claims. In fact, the contractor stated that he performed repairs and maintenance at appellants' apartment on numerous occasions, noting that Lewis often behaved in an abusive manner while he was there and had deliberately broken many items in the apartment. Two of the tenants also told the investigator that they frequently heard Lewis shouting inside his apartment and that they were afraid of him.

The investigator found Lewis uncooperative during the investigation, noting he refused to answer many of his questions with respect to a variety of issues, or provide additional evidence or information which refuted respondent's position. The investigator concluded:

In summary, the investigation did not substantiate [appellants'] claim that Respondent subjected them to differential treatment because of their race, national origin and/or disability. The evidence did not show any differential treatment with respect to repairs and maintenance in [appellants'] apartment. The evidence supported Respondent's assertion that the Notices were issued because [appellant] Lewis Spieler willfully and repeatedly damaged its property and was abusive to its employees.

The investigator recommended the case be "closed" based on "No Probable Cause."

By order of September 21, 2010, the Director evaluated the investigation, agreed there was no probable cause to credit the allegations of the complaint, and closed the file. This appeal ensued.

On appeal, appellants dispute several areas of the investigative findings, and specifically claim they were never given an opportunity to rebut respondent's answer or provide additional evidence.

Our review of an administrative agency decision is limited. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 587 (l988). "The court must survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Ibid. "'[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (modification in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (l980)).

We have carefully reviewed appellants' arguments in light of the record and applicable law and find them to be "without sufficient merit to warrant extended discussion in a written opinion." R. 2:11-3(e)(1)(E).

Appellants' arguments basically seek to have us re-evaluate the evidence and reach a conclusion contrary to that of the Director. To that end, appellants have emphasized what they perceive to be many inconsistencies and untruths in the investigator's findings.

However, it is not our function to canvas the facts in order to decide what conclusion we might have reached if we were deciding the matter in the first instance. Clowes, supra, 109 N.J. at 588. The report and recommendation adopted by the Director are neither arbitrary, nor capricious, nor unreasonable. To the contrary, the investigator performed a thorough investigation, interviewing other tenants and maintenance personnel. The record clearly reflects that he provided appellants more than ample opportunity to present their case and rebut the testimony and evidence presented by respondent in defense. Appellants, however, were not cooperative with the investigator and failed to answer many of his questions. We are satisfied the record provides "sufficient credible evidence" to support the Director's conclusions. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); R. 2:11-3(e)(1)(D).

Affirmed.

1 As necessary in this opinion, we refer to the respective appellant by his or her first name and intend no disrespect.