G.G.N. v. NEW JERSEY DEPARTMENT OF HUMAN RESOURCES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

G.G.N.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

HUMAN RESOURCES and NEW JERSEY

DEPARTMENT OF CORRECTIONS,

Respondents.

___________________________

December 14, 2016

Submitted August 23, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from the Department of Human Services and Department of Corrections.

G.G.N., appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondents (Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Appellant G.G.N. is currently committed to the Department of Corrections' Special Treatment Unit (STU) for sexually violent predators. He appeals from a final agency decision denying his request that the STU designate an outdoor area for residents to smoke tobacco products and use electronic smoking devices "until such time as the requirements of N.J.S.A. 26:3D-58.1 can be thoroughly followed by STU officials." Because we agree with the State that N.J.S.A. 26:3D-58.1 does not apply to the STU, we affirm.

Following enactment in 2006 of the New Jersey Smoke-Free Air Act, N.J.S.A.26:3D-55 to -64, which prohibited smoking in indoor public places and workplaces, the Commissioner of the Department of Corrections in May 2012 announced a three-phase plan to eliminate smoking within the secured perimeter of all Department facilities. Pursuant to such plan, residents of the STU were advised in December 2012 that effective January 1, 2013, they could no longer order or receive tobacco products. In March 2013, residents were advised that tobacco products were considered contraband in the STU and that only nicotine lozenges would remain available for purchase in the commissary. In June 2013, the STU provided residents a smoking cessation module.

In January 2014, the Residents' Guide to the STU was revised to provide that "[s]moking and tobacco products are not allowed in any buildings or on any grounds of the STU." G.G.N. submitted an STU remedy form in November 2014 seeking a designated smoking area. G.G.N. received a response to his remedy form advising that "smoking is prohibited in all State facilities." G.G.N. administratively appealed, claiming the response did not address his concerns. The STU's administrator thereafter affirmed the denial of G.G.N.'s request for a designated smoking area.

On appeal, G.G.N. argues that "[b]ecause residents of the STU are entitled to more considerate treatment and conditions of confinement than the criminally punished, there is no reason why STU officials should not be made to consider the STU more as a psychiatric hospital and less as a correctional institution." Reasoning from that premise, G.G.N. argues the STU should not have denied his remedy form requesting a designated smoking area because it "failed to prohibit tobacco products in accordance with N.J.S.A. 26:3D-58.1(a)-(c)."

N.J.S.A. 26:3D-58.1(a) provides that a "[s]tate psychiatric hospital may prohibit smoking on its grounds, if it offers a smoking cessation program for both employees, and residents and patients." Subsection b of the statute provides that the "smoking cessation program shall be developed in consultation with the Commissioners of Health and Senior Services and Personnel, and shall be initiated one year prior to prohibiting smoking on its grounds and continue to be offered as long as smoking is prohibited." Subsection c allows the Commissioner of Human Services, by regulation, to prohibit smoking on the grounds of other Human Services facilities, subject to the requirements of subsection b.

The STU is not a State psychiatric hospital. Pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, the Department of Corrections is responsible for the operation of any secure facility, such as the STU, designated for the custody, care and treatment of sexually violent predators. See N.J.S.A. 30:4-27.34. The Division of Mental Health Services in the Department of Human Services provides for treatment of persons committed to the STU. Ibid.; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 609 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Because N.J.S.A. 26:3D-58.1 does not apply to the STU, we cannot find the STU was prohibited from banning smoking at the facility in accordance with its terms.

Our role in reviewing the STU's denial of G.G.N.'s request for a designated smoking area is limited to a determination of whether the decision was arbitrary, capricious or unreasonable or was not supported by substantial credible evidence in the record as a whole, in which case reversal is warranted. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Given the Legislature's finding that "[t]obacco smoke constitutes a substantial health hazard to the nonsmoking majority of the public," N.J.S.A. 26:3D-56b, and that the regulations promulgated thereunder both apply to correctional facilities as well as other public places, N.J.A.C. 8:6-2.3, and make clear that they are not to "be construed to limit the ability of an . . . operator of an establishment from establishing . . . prohibitions against smoking at the establishment that are greater than those provided in the Act and this chapter," N.J.A.C. 8:6-2.1(c), we cannot find the denial of a designated smoking area on the grounds of the STU arbitrary or capricious.

Affirmed.