NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1681-15T2
DEPARTMENT OF COMMUNITY AFFAIRS,
DIVISION OF HOUSING,
Argued October 16, 2017 - Decided November 1, 2017
Before Judges Accurso and Vernoia.
On appeal from Department of Community
Affairs, Division of Housing.
Sonia Bell argued the cause for appellant
(South Jersey Legal Services, Inc.,
attorneys; Ms. Bell, on the brief).
Debra A. Allen, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Ms. Allen, on the
T.A. appeals from a final decision of the Department of
Community Affairs terminating her Section 8 rental assistance
benefits based on false statements of her family's income. We
The Administrative Law Judge presiding over the hearing in
this matter found the essential facts largely undisputed. T.A.
lived in a three-bedroom house in Camden with her two daughters,
ages twenty-two and twenty at the time of the hearing in 2015.
She had been a participant in the Section 8 Housing Choice
Voucher Program for fourteen years before her termination in
2014, recertifying her eligibility annually.
T.A. attended a recertification meeting with her daughters
in December 2013, at which they all signed statements certifying
to zero household income. In the course of verifying those
statements in accordance with federal regulations, the
Department learned their representations were false, and that
T.A.'s daughters had earned over $19,000 during 2012 and 2013.
Those misrepresentations resulted in T.A. receiving $7002 in
housing subsidies to which she was not entitled over two
recertification periods. In March 2014, the Department advised
T.A. it was terminating her participation in the Section 8
At the hearing before the ALJ, T.A. admitted her daughters
earned the income the Department claimed they had, and that she
owed $7002 in overpaid housing subsidies. She also admitted an
older daughter had made similar false statements about her
income a few years previous, and thus no longer resided with the
family. T.A. contended, however, that she was unaware her
younger daughters were working until the Department notified her
it was terminating her rent subsidy. T.A. claimed her daughters
worked overnight shifts, leaving the house after she was asleep
and returning before she was up in the morning. When the ALJ
asked where her daughters worked, T.A. replied that one worked
at Macy's and the other at Walmart. When the judge asked how
her daughters were working overnight for over a year at retail
stores, T.A. said, "Inventory."
Although admitting the false statements regarding her
household income, T.A. claimed she was entitled to an
"accommodation," reversing the Department's decision to
terminate her participation in the program and allowing her to
continue to receive her housing subsidy while she paid back the
money she owes. She testified that between 2011 and 2012 she
suffered the deaths of nine people close to her, resulting in a
debilitating depression. T.A. did not present a doctor or
psychologist to support her claim. At the hearing, she
presented only a four-line letter from a doctor at Cooper Family
Medicine saying T.A. "was seen in [her] office on 8/21/2014,"
was previously followed by someone else "for depression" and
"was started on Paxil on 3/14/14."
The Department's witnesses testified that no accommodation
request was made until it was presented by T.A.'s lawyer to the
hearing officer at the departmental hearing, months after T.A.
was advised her subsidy was being terminated. They also noted
that T.A.'s claimed depression post-dated the period during
which her daughters were working.1
One of the Department's witnesses explained that T.A. could
not qualify for a repayment plan because she owed more than
double the $3000 limit for such plans. The witness explained
that HUD (the Department of Housing and Urban Development)
required repayment of all amounts owed within thirty-six months,
but caps the monthly repayment amount at a percentage of the
participant's annual adjusted income. The $3000 cap represents
the most a participant can owe and repay within thirty-six
months given those percentage of income caps and income
eligibility requirements. Because T.A. cannot repay the amount
she owes within thirty-six months while staying within the HUD
imposed income caps, she does not qualify for a repayment plan.
While the record remained open, T.A. submitted a letter from
another doctor at Cooper Family Medicine, dated the day after
the hearing. The letter consisted of one line stating: "T has
had depression at least since 2011."
The ALJ affirmed the Department's decision to terminate
T.A.'s Section 8 rental assistance benefits. In a written
decision, the judge noted she "afford[ed] little weight to
petitioner's testimony . . . that she was unaware that either of
her daughters was working." The judge found it "simply not
credible that [T.A.] was unaware of any employment by either
daughter for this substantial period of time." Although the
judge accepted the sincerity of T.A.'s testimony that she was
"overwhelmed by personal tragedy" from the loss of her family
members in 2011 and 2012, the ALJ concluded it did not justify
T.A.'s failure to report her daughters' earnings. The judge
also rejected petitioner's claim that her depression "somehow
mandates an accommodation for the failure to report nineteen
thousand dollars of income in 2012 and 2013."
On appeal, T.A. argues the ALJ relied on inapplicable
regulations in upholding the termination of her rental subsidy
and that the Department's "denial of accommodation was improper
where the Agency failed to follow its own procedures." She asks
that we order the Department to "relax its policy and allow her
an installment plan to satisfy a $7000 underpayment."
Because the Commissioner failed to modify or reject the
ALJ's decision within forty-five days, it was deemed adopted
N.J.S.A. 52:14B-10(c), and is thus the final agency
decision we review on appeal. See Newman v. Ramapo Coll. of
349 N.J. Super. 196, 202 (App. Div. 2002). Our review of
administrative agency actions is, of course, limited. In re
192 N.J. 19, 27 (2007). We do not independently
assess the evidence in the record as if we were the court
hearing it in the first instance. In re Taylor,
158 N.J. 644,
656 (1999). So long as the ALJ's factual findings are supported
by adequate, substantial and credible evidence in the record,
they are considered binding on appeal. Ibid. We will not upset
an agency's final quasi-judicial decision absent a "clear
showing that it is arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record." In re Herrmann,
192 N.J. at 27-28.
Applying those standards here, petitioner has provided us
no basis on which to overturn the ALJ's decision. We
acknowledge that the ALJ, although several times referring to
the Section 8 program and the federal regulations governing it,
also referenced, and applied, the State regulations governing
the State's Rental Assistance Program (S-RAP),
287.1 to -287.4. As the State's regulations mirror those
promulgated under the Section 8 program, see 175 Exec. House,
L.L.C. v. Miles,
449 N.J. Super. 197, 205-06 (App. Div. 2017),
and T.A. does not dispute she violated the Section 8 regulations
by failing to report her daughters' income, see 24 C.F.R. §
982.551(b), we find the error of no consequence.
We reject T.A.'s claim that the Department owes her any
accommodation arising out of her failure to truthfully certify
to her household income. The record is clear that T.A. never
requested an accommodation from the Department until months
after receipt of the initial decision terminating her Section 8
benefits. Her counsel first raised the issue to the hearing
officer at the departmental hearing, asserting "[the]
accommodation sought is the rescission of the proposed
terminat[ion] of [T.A.'s] participation in the Section 8
program, as well as a repayment schedule to clear the debt."
Under the circumstances, both the hearing officer and the
ALJ, appropriately in our view, treated the request as a defense
to termination based on T.A.'s claimed inability to supervise
her daughters because she was depressed over the deaths of
several family members. Neither agreed the condition T.A.
described, to which no doctor testified, excused the truthful
reporting of petitioner's household income. More important, the
ALJ deemed T.A.'s testimony that she was unaware her daughters
were working as unworthy of belief.
Because we find no error in the Department terminating
petitioner's Section 8 rental assistance benefits based on the
admitted false statements of her family's income over two
recertification periods, we affirm.