STATE OF NEW JERSEY v. JEFF MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFF MILLER,

Defendant-Appellant.

______________________________________

July 15, 2015

Argued February 12, 2014 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-021.

Fred S. Dubowsky argued the cause for appellant.

Ronald H. Gordon argued the cause for respondent (DeCotiis, FitzPatrick & Cole, L.L.P., attorneys; Mr. Gordon, of counsel and on the brief; Mark A. Bunbury, Jr., on the brief).

The decision of the court was delivered by

FUENTES, P.J.A.D.

Defendant Jeff Miller appeals from an order entered by the Law Division upholding $77,014 in civil penalties imposed by the Municipal Court of Marlboro Township for defendant's failure to obtain construction and demolition permits before performing substantial construction work on a property he owned in Marlboro, in violation of N.J.A.C. 5:23-2.14(a).1 The trial court reviewed the record developed before the municipal court de novo and found sufficient evidence to uphold the penalties under N.J.S.A. 2A:58-11(c), which authorizes the court to decide in a summary manner whether the penalties were properly imposed.

Defendant argued before the Law Division, and continues to argue before this court, that he was denied due process of law because he was not given an opportunity to contest the underlying facts alleged in the violation notices issued by the municipal construction official. The Law Division rejected this argument because defendant failed to appeal the construction official's decision to issue the notice of violation to the Monmouth County Construction Board of Appeals, as provided in N.J.A.C. 5:23A-2.1. We agree and affirm.

On November 10, 2008, Joseph LaBruzza, the construction code official for Marlboro Township, issued a notice of violation and order to terminate activities to Heln Management L.L.C., a limited liability entity wholly owned by defendant. The violation notice alleged defendant was in violation of N.J.A.C. 5:23-2.14(a) for performing demolition, electrical, plumbing, and construction work on a property owned by defendant, without first obtaining the required permits. LaBruzza "ordered" defendant to terminate the violations "on or before 11/22/2008." The notice also informed defendant that "failure to comply with this ORDER may result in the assessment of penalties of up to $2,000.00 per week per violation[.]" The notice also contained a specific provision informing defendant of his right to appeal LaBruzza's determination of violation to the Monmouth County Construction Board of Appeals, and included the Board's address as well as a description of how to file the appeal.

LaBruzza sent defendant via certified mail a separate "Notice and Order of Penalty" also dated November 10, 2008, stating that on November 7, 2008, defendant had been "found . . . in violation of the State Uniform Construction Code Act and Regulations promulgated thereunder, in that you . . . failed to obtain construction permit[s]." Defendant was ordered to pay an $1800 penalty and an additional $500 per week if the violations continued past November 22, 2008. This penalty notice also included the same statement describing defendant's right to appeal the determination to the Monmouth County Construction Board of Appeals. Both notices were addressed to defendant's home address.

Defendant failed to respond or abate the violations and pay the $1800 penalty. On December 29, 2008, defendant applied for zoning approval to demolish and reconstruct a portion of the property. The zoning board denied defendant's application on February 5, 2009. The record also contains a copy of an application dated August 2, 2009, which defendant submitted to the Marlboro Zoning Board of Adjustment seeking unspecified "bulk variances" concerning the same property. The application reflects defendant was represented by counsel. We do not know what decision the zoning board of adjustment reached with respect to this application.

Nearly two years after the two notices of the construction code violation and penalty were issued, the construction official issued a summons requiring defendant to appear before the Marlboro Municipal Court on April 6, 2010. The municipal court issued a bench warrant when defendant failed to appear. Defendant was eventually arrested on this warrant. He was released on bail and ordered to appear before the municipal court on December 1, 2011. The municipal court issued another bench warrant when defendant again failed to appear.

On February 23, 2012, defendant finally appeared to respond to the violations before the Marlboro Municipal Court. His privately retained counsel asked the municipal court judge for an adjournment, claiming the municipal prosecutor had not responded to his repeated requests for discovery. Counsel informed the municipal court that following a conversation he had with the "building official" that day, "I don't know what he is charged with let alone have any information by way of discovery." The municipal court judge informed counsel that the charge against his client was reflected in the three-year-old "ticket," which stated defendant had "performed [work] without permits" at a specific property owned by defendant.

The colloquy between defense counsel and the municipal court judge revealed the essence of defendant's legal position. Defense counsel argued he was not prepared for trial without the discovery necessary to challenge the underlying basis of the construction official's charge that defendant performed construction work without a permit. As the following exchange indicates, the municipal court judge explained to defense counsel the error in his line of defense

DEFENDANT'S COUNSEL: I recognize that your position is, and that of the building official is, - - that when the building official decides to issue a notice, that there is no legal protection available to this defendant - -

THE MUNICIPAL COURT: No, that is absolutely incorrect. There is procedure. This is the wrong venue. You have to appeal it before the Uniform Construction Council.2 That is not this venue. You are on a different track. And there is a time period to do that. That expired three years ago. That is the problem. You are in the wrong venue.

There is a proceeding, - - they issue, - - you could have had a complete trial of everything that was done by the building department at [that] time at that location. It wasn't done. So now, it is to me for a summary proceeding to collect the money.

You can't come in to [me] and say now, I want a trial, what did he do wrong, and why is this done. I have no jurisdiction over that. That is the wrong venue. I am strictly here as the collection agency for them. The fines don't even come to the [c]ourt and the municipality.

The matter returned to the Marlboro Municipal Court on May 31, 2012. At the time, the municipal prosecutor informed the municipal court judge that a review of municipal records confirmed defendant secured the permits at issue on October 19, 2011. The municipal prosecutor argued that under N.J.A.C. 5:23-2.31(b)(6) the municipal court had the jurisdiction to enforce the penalties imposed by the construction official under the summary process authorized in N.J.S.A. 2A:58-11. Based on the number of days the violation was left unabated, the municipal prosecutor requested the imposition of $77,014 in penalties. Defense counsel again argued that the imposition of this penalty without a trial violated defendant's right to due process. The municipal court rejected defendant's argument and imposed the penalty requested by the State.

Defendant continued to press this line of defense on appeal to the Law Division. The Superior Court judge was also unpersuaded by defendant's argument. After conducting a de novo review of the evidence presented by the State, the trial court imposed a penalty of $77,014, representing $500 for every day the violation remained unabated from November 22, 2008 to October 19, 2011, plus the original $1800 penalty. Defendant does not question the accuracy of this amount. The Superior Court judge explained his ruling in a memorandum of opinion.

Defendant now appeals raising the following arguments

POINT I

APPELLANT HAS BEEN DENIED FUNDAMENTAL DUE PROCESS, A RIGHT GUARANTEED UNDER STATE AND FEDERAL CONSTITUTION.

POINT II

THE STATE HAS FAILED TO PRESENT A CASE.

POINT III

THE MUNICIPAL COURT LACKED SUBJECT MATTER JURISDICTION.

POINT IV

DOUBLE JEOPARDY.

POINT V

THERE IS NO BASIS TO SUBSTANTIATE THE AFFIRMANCE AT THE TRIAL DE NOVO.

POINT VI

NO CASE LAW SUPPORTS THE STATE'S POSITION; THE STATE RECEIVED NOTICE OF DEFENDANT'S DUE PROCESS ARGUMENT.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In this setting, the Superior Court's role is limited to determining the accuracy of the penalties imposed. N.J.S.A. 2A:58-11(c). Defendant failed to take advantage of his right to challenge the underlying basis for the construction official's claims before the administrative body that has jurisdiction to review it, the Monmouth County Construction Board of Appeals. N.J.A.C. 5:23A-2.1. We discern no legal basis to disturb the decision of the Law Division. State v. Johnson, 42 N.J. 146, 157 (1964).

1 N.J.A.C. 5:23-2.14(a) provides

It shall be unlawful to construct, enlarge, repair, renovate, alter, reconstruct or demolish a structure, or change the use of a building or structure, or portion thereof, or to install or alter any equipment for which provision is made or the installation of which is regulated by this chapter without first filing an application with the construction official, or the appropriate subcode official where the construction involves only one subcode, in writing and obtaining the required permit therefor.

2 We infer the municipal court judge was referring to the Monmouth County Construction Board of Appeals.