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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1681-15T2






              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

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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,"

                                  3                         A-1681-15T2
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."

                                4                          A-1681-15T2
    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

pursuant to 
N.J.S.A. 52:14B-10(c), and is thus the final agency

                                5                          A-1681-15T2
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), 
N.J.S.A. 52:27D-

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

                                6                            A-1681-15T2
by failing to report her daughters' income, see 24 C.F.R. ยง

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

                                 7                         A-1681-15T2
admitted false statements of her family's income over two

recertification periods, we affirm.

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