NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Defendant Flarlas, LLC appeals a March 31, 2015 Law Division order entered after a de novo trial on an appeal from the Bloomingdale municipal court. The Law Division found defendant violated N.J.A.C. 5:23-2.32(a) by maintaining an unsafe structure, and N.J.A.C. 5:23-2.14 by failing to obtain construction permits, and imposed penalties totaling $330,000. We affirm the court's findings that defendant violated the regulations, reverse the imposition of penalties, and remand for further proceedings.
Defendant owns a mixed-use building in Bloomingdale. On August 1, 2011, Bloomingdale's construction official Daniel Hagberg inspected the building and discovered a broken pipe leaking water, a collapsed ceiling, and possible damage to the electrical system. He also observed the second story had been converted into two apartments without the requisite building permits or approvals.
On August 1, 2011, Hagberg issued two notices to defendant asserting violations of provisions of the Uniform Construction Code Act (UCCA), N.J.S.A. 52:27D-119 to-141, and its corresponding regulations. The first notice was titled "notice of unsafe structure" and stated
Take NOTICE that as a result of the inspections conducted by this agency on 08/01/11 on the above property, an unsafe condition has been found to exist pursuant to N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32. The building or structure, or portion thereof, deemed an unsafe condition is described as follows:
N.J.A.C. 5:23-2.32 UNSAFE STRUCTURE WITH SUBSTANTIAL WATER DAMAGE.
The notice also advised that failure to correct the unsafe condition would result in a referral for prosecution and assessment of penalties up to $2000 per week per violation. The notice advised defendant to immediately declare to the construction official its acceptance or rejection of the terms of the notice.
The second notice was titled "notice of violation and order to terminate." The notice included the following:
TAKE NOTICE that you have been found to be in violation of the State Uniform Construction Code Act and Regulations promulgated thereunder in that:
N.J.A.C. 5:23-2.14 Failure to obtain permits. N.J.A.C. 5:23-2.15(a) Failure to obtain prior approvals.
You are hereby ORDERED to terminate the said violations on or before 08/01/11.
The notice also stated that failure to comply with its terms may result in the assessment of penalties of up to $2000 per week per violation.
Both notices informed defendant it could contest the orders by requesting a hearing before the Passaic County Construction Board of Appeals as provided by N.J.A.C. 5:23A-2.1. Defendant did not contest the alleged violations and did not take any action to remedy the unsafe condition or correct its failure to obtain permits or approvals.
Over a year later, on September 27, 2012, Hagberg issued two summonses to defendant. One summons charged defendant with violating "N.J.A.C. 5:23-2.32" and the other charged defendant with violating "N.J.A.C. 5:23-2.14 [and] N.J.A.C. 5:23-2.15(a)." The summonses alleged the violations occurred on September 27, 2012.
A summary proceeding for collection of penalties was conducted in the Bloomingdale municipal court. R. 4:70; N.J.S.A. 2A:58-11(b) and N.J.S.A. 52:27D-138(d). Defendant did not dispute the existence of the unsafe condition under N.J.A.C. 5:23-2.32 or the failure to obtain the construction permits as alleged under N.J.A.C. 5:23-2.14 and-2.15(a). Defendant instead moved to dismiss the charges, alleging the summonses did not comply with the requirements of Rule 7:2-1 and violated the double jeopardy clauses of the United States and New Jersey Constitutions.
The municipal judge denied defendant's motions. The judge found the summonses were proper under Rule 7:2-1 because they were issued on a court mandated form and were certified by Hagberg. The court denied defendant's double jeopardy motion finding the allegations contained in the summonses were based on circumstances existing after the completion of a 2008 enforcement proceeding.
Defendant also presented evidence in mitigation of the Borough's request for the imposition of penalties. Defendant's senior member, Sally Meyer, testified that she failed to respond to the August 1, 2011 notices because she thought they were for the same items that were the subject of a 2008 enforcement proceeding, which resulted in a settlement with Bloomingdale. She described defendant's lack of sufficient funds to make the necessary repairs and its efforts to sell the property. Meyer first admitted there was water damage in 2011, but then disputed Hagberg's claim water leaked from the building in August 2011, stating the water to the property had been turned off in 2010 as a result of the 2008 enforcement proceeding.
Hagberg testified he observed water leaking inside the building on August 1, 2011, sent the notices to defendant, and defendant had not repaired the unsafe condition or obtained the permits since the notices were issued. Hagberg requested that the municipal judge impose the maximum penalties permitted under N.J.S.A. 52:27D-138 to compel defendant's compliance and because the building was an eyesore located in a prominent position in the Borough.
Although neither summons alleged a violation of the August 1, 2011 notices and instead alleged only that violations of the cited regulations occurred on a single date, September 27, 2012, the municipal judge found defendant violated the notices from August 1, 2011, through the end of the municipal court proceeding on September 11, 2013.
The municipal judge further determined that because defendant failed to comply with the notices, it committed a separate offense for each week between August 1, 2011, and September 11, 2013, totaling 110 separate offenses. The judge granted Hagberg's request for the imposition of the maximum penalties for the violations of the separate orders.
The municipal judge imposed a penalty of $1000 per week for 110 weeks for defendant's violation of the August 1, 2011 notice concerning the unsafe condition, and a penalty of $2000 per week for 110 weeks for the violation of the notice concerning the failure to obtain a building permit. The judge entered a written opinion and order imposing total penalties of $330,000. Defendant appealed.
At the trial de novo before the Law Division, defendant renewed its motion to dismiss the summonses. The Law Division judge denied the motion, finding the summonses alleged sufficient facts to inform defendant of the alleged violations that were the subject of the proceeding. The judge also denied defendant's motion to dismiss on double jeopardy grounds. The judge found the allegations in the summonses were based on distinct events occurring subsequent to the termination of the prior enforcement proceeding and, as a result, there was no violation of the double jeopardy prohibition.
The judge made findings of fact based on the record before the municipal court and found "beyond a reasonable doubt [that] defendant violated N.J.A.C. 5:23-2.(a)1 [by] maintaining an unsafe structure," and "N.J.A.C. 5:23-2.14, [by] fail[ing] to obtain required construction permits."2 The judge summarized Hagberg's testimony concerning the Borough's request for imposition of the maximum penalties. The judge noted that the statute provided for harsh penalties as a means of encouraging compliance. The judge then imposed the "same fines" as the municipal judge based on his finding there was "no compliance whatsoever" and entered an order imposing $330,000 in penalties based on the same calculus employed by the municipal judge. This appeal followed.
In our review of the Law Division's decision on a municipal appeal, "[w]e review the action of the Law Division, not the municipal court." State v. Robertson, 438 N.J.Super. 47, 64 (App. Div. 2014), certif. granted, 221 N.J. 287 (2015). We consider "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37, 49 (2012) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:32-8(a), we do not independently assess the evidence." State v. Gibson, 429 N.J.Super. 456, 463 (App. Div. 2013) (citing Locurto, supra, 157 N.J. at 471), rev'd on other grounds, 219 N.J. 227 (2014). We defer to the trial judge's findings of fact, but "no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts." Stas, supra, 212 N.J. at 49 (citing State v. Handy, 206 N.J. 39, 45 (2011)) (stating "appellate review of legal determinations is plenary").
We first address defendant's argument that the summonses should have been dismissed because they did not contain "the essential facts constituting the offense[s] charged" as required under Rule 7:2-1(a). Disposition of a motion to dismiss requires a legal determination based on a review of the pleadings and is therefore subject to de novo review. See Rezem Family Assoc., LP v. Borough of Millstone, 423 N.J.Super. 103, 114 (App. Div.) ("we apply a plenary standard of review from a trial court's decision to grant [or deny] a motion to dismiss"), certif. denied, 208 N.J. 366 (2011).
Defendant acknowledges the summonses alleged violations occurring on September 27, 2012, and identified the regulations defendant allegedly violated, but contends there was a fatal omission of the essential facts upon which the allegations were based. Rule 7:2-1(a) generally requires that a complaint contain the essential facts constituting the offense charged but also mandates the use of an approved form of complaint in penalty enforcement proceedings. See R. 7:2-1(a).
Under Rule 7:2-1(h), a special form of complaint and summons prescribed by the Administrative Director of the Courts shall be used in all penalty enforcement proceedings, and if the special form of complaint is issued by a governmental body or officer, it may be certified or verified on information and belief by any person duly authorized on its behalf. Hagberg used the approved special form of complaint and summons, and certified the facts alleged as the Bloomingdale construction official. We are therefore convinced the judge correctly denied defendant's motion to the extent it contended the summonses were not issued in accordance with Rule 7:2-1(a).
We are also satisfied the summonses alleged the essential facts of the violations alleged. The summonses provided the date of the alleged violations, the regulations allegedly violated, the identity of the property where the alleged violations occurred, and the identity of Hagberg as the complaining witness. Under similar circumstances in State v. Latorre, 228 N.J.Super. 314, 319 (App. Div. 1988), we determined that a complaint charging a defendant with driving while intoxicated under N.J.S.A. 39:4-50, alleged the requisite essential facts where it included the date and location of the incident, the statute violated, and the name of the complaining officer. There is no basis for a different result here.
We reject defendant's contention the dismissal was required under State v. Tri-Way Kars, Inc., 402 N.J.Super. 215, 217 (App. Div. 2008), where the complaint generally alleged defendant violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to-204. We held the complaint's mere reference to the CFA with the date and place of the alleged violation was insufficient because the CFA proscribes a broad spectrum of conduct. Id. at 227. In doing so, however, we expressly distinguished between complaints alleging violations of the CFA with those issued in penalty enforcement proceedings where use of a prescribed summons is mandated by the Administrative Office of the Courts. Id. at 226-27. Thus, our decision in Tri-Way did not require a dismissal of the summonses here.
Defendant also argues the municipal court erred by sustaining the State's objection to defendant's attempt to admit into evidence an August 21, 2012 letter sent by Bloomingdale's municipal attorney. Meyer testified the Borough had expressed an interest in buying the property since 2008. Approximately a year after the issuance of the August 1, 2011 notices, and weeks before the issuance of the September 27, 2012 summonses, Bloomingdale's municipal attorney sent an August 21, 2012 letter to Meyer asking if defendant was "prepared to sell" the property to the Borough "for [its] appraised value ... less all sums due" to the Borough.
Defendant sought to introduce the letter into evidence to support its contention that Bloomingdale breached its duty to deal fairly with defendant. See generally Doe v. Portiz, 142 N.J. 1, 108 (1995). Defendant argues the letter showed Bloomingdale violated principles of fundamental fairness by seeking penalties at the same time that it sought to purchase the property for a price that would be reduced by the amount of any penalties imposed.
The municipal judge sustained the State's objection to the admission of the letter, finding it constituted inadmissible hearsay. N.J.R.E. 802. Defendant did not renew the request for introduction of the letter before the Law Division. We therefore decline to address defendant's challenge to the evidentiary ruling because it was not raised before the Law Division and does not "go to the jurisdiction of the trial court or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Defendant also argues the Law Division judge erred by sustaining the State's objection to defendant's request to call Jodi Meyer, a member of defendant, as a rebuttal witness. Defendant sought to call Jodi Meyer to challenge Hagberg's testimony that he observed water leaking from a broken pipe when he inspected the building on August 1, 2011. It was asserted Jodi Meyer would testify that the water to the building had been turned off in 2008 and therefore Hagberg's testimony there was a leaking water piper on August 1, 2011 was inaccurate or false. The municipal judge barred Jodi Meyer's testimony because she was not identified on the defendant's pretrial witness list, and her putative testimony was cumulative because Sally Meyer testified the water had been shut off prior to August 1, 2011.
We review a trial court's evidentiary rulings for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). The abuse of discretion standard applies to a trial court's decision to bar an undisclosed witness or a rebuttal witness. Wymbs v. Twp. of Wayne, 163 N.J. 523, 543-45 (2000); Casino Dev. Auth. v. Lustgarten, 332 N.J.Super. 472, 497 (App. Div.) certif. denied, 165 N.J. 607 (2000). Trial courts generally have discretion to limit or exclude witnesses. State v. Hill, 121 N.J. 150, 169 (1990).
We discern no abuse of discretion in the court's decision to exclude Jodi Meyer as a witness. The record supports the court's determination that Jodi Meyer was not disclosed as a potential witness prior to trial and her proffered testimony was rendered needlessly cumulative by Sally Meyer's testimony. See Murray v. Nicol, 224 N.J.Super. 303, 313-15 (App. Div. 1988) (finding no abuse of discretion in excluding testimony of surprise witness at trial who was not named on witness list); cf. Lustgarten, supra, 332 N.J. Super. at 498 ("Where a rebuttal witness ... is prepared to offer non-repetitive, substantive testimony that directly attacks the value of defendant's expert testimony, we are of the view that the exclusion of such testimony has the capacity of producing an unjust result.") (emphasis added).
Defendant next argues the Law Division judge erred by imposing penalties that are not authorized by N.J.S.A. 52:27D-138. The judge based the penalties on his adoption of the municipal court's reasoning that defendant committed separate offenses for each of the weeks following service of the August 1, 2011 notices, and it therefore was proper to impose a separate penalty for each of the offenses. Having found defendant committed a separate offense during each of the 110 weeks following the issuance of the notices and through the completion of the municipal court trial, the Law Division judge imposed the maximum penalty for each of the alleged separate weekly violations — a total sum of $330,000. Defendant claims the judge exceeded his authority under N.J.S.A. 52:27D-138(c) in doing so. We agree.
N.J.S.A. 52:27D-138(a) authorizes the imposition of penalties for violations of the UCCA. DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 304 (2005). In pertinent part, it provides:
Any person or corporation, including an officer, director or employee of a corporation, who:
(1) Violates any of the provisions of this act or rules promulgated hereunder;
(2) Constructs a structure or building in violation of a condition of a building permit;
(3) Fails to comply with any order issued by an enforcing agency or the department;
(4) Makes a false or misleading written statement, or omits any required information or statement in any application or request for approval to an enforcing agency or the department;
(5) Knowingly sells or offers for retail sale any item, device or material, the regular and intended use of which would violate any provision of the State Uniform Construction Code;
Shall be subject to a penalty of not more than $2000; provided, however, that any penalties in excess of $500 per violation may be levied by an enforcing agency only in accordance with subsection e. below.
N.J.S.A. 52:27D-138(c) defines when separate offenses occur for purpose of assessing penalties under subsections (a). See also N.J.A.C. 5:23-2.31(b)(3) (defining separate offenses under the UCCA). A person commits a separate offense under N.J.S.A. 52:27D-138(a)(3) for each week there is a violation of any validly issued order by an enforcing agency or department.3 N.J.S.A. 52:27D-138(c); N.J.A.C. 5:23-2.31(b)(3). In contrast, a person does not commit a separate offense on a weekly basis where there is a violation of the UCCA or its regulations. N.J.S.A. 52:27D-138(c). A person who violates the UCCA or its regulations under N.J.S.A. 52:27D-138(a)(1) commits an offense "for each violation of any provision of [the UCCA] or rules promulgated" under the UCCA.4 N.J.S.A. 52:27D-138(c); N.J.A.C. 5:23-2.31(b)(3).
Here, defendant was not charged with violating the August 1, 2011 orders. The summonses charged defendant with violations of regulations promulgated under the UCCA. In one summons defendant was charged with maintaining an unsafe condition in violation of N.J.A.C. 5:23-2.32, and in the other defendant was charged with violating N.J.A.C. 5:23-2.14 and-2.15(a) by failing to obtain a construction permit.
Moreover, the judge did not find that defendant violated any orders. Although the judge generally discussed defendant's failure to comply with the orders, the judge determined only that defendant violated N.J.A.C. 5:23-2.32(a) and N.J.S.A. 5:23-2.14. As a result, defendant's violations were of the "rules promulgated" under the UCCA as proscribed by subsection (a)(1) of N.J.S.A. 52:27D-138.
A separate offense under subsection (a)(1), however, does not occur for each week of an alleged violation of the UCCA or its regulations. N.J.S.A. 52:27D-138(c). Where, as here, a defendant violates the UCCA's regulations, N.J.S.A. 52:27D-138(c) provides that a separate offense is committed only with each violation. Consistent with this provision, the summonses here did not allege defendant committed weekly separate offenses during the two years following the issuance of the notices. The summonses alleged only that defendant committed violations of the UCCA regulations on September 27, 2012.
The Law Division judge found defendant violated N.J.A.C. 5:23-2.32(a) and N.J.A.C. 5:23-2.14, and therefore defendant committed only two offenses for which penalties could be properly imposed. N.J.S.A. 52:27D-138(c). The judge erred by finding that commission of those violations of the regulations occurred for each week following the issuance of the August 1, 2011 notices. The record does not support that finding because the judge did not determine defendant violated any validly issued order under N.J.S.A. 52:27D-138(a)(1), nor could he have because there was no violation of the August 1, 2011 orders alleged in the summonses and no alleged violation on any date other than September 27, 2012.
We are therefore satisfied the court's determination that defendant committed a separate offense for each week following the issuance of the notices was in error. We reverse the judge's determination that defendant committed separate offenses for each of the 110 weeks following the issuance of the notices and through the completion of the municipal court trial.5 We are constrained to remand for the court to consider the imposition of penalties for the single violations of the regulations, as charged in the summonses, occurring on September 27, 2012.
We also reverse the amount of the penalties imposed. N.J.S.A. 52:27D-138(a) permits the imposition of a maximum penalty of $2000 for each offense, "provided, however, that any penalties in excess of $500 per violation may be levied ... only in accordance with subsection" (e). Subsection (e) permits the imposition of a penalty in excess of $500 only in limited circumstances. N.J.S.A. 52:27D-138(e).
A penalty of $1000 per violation may be imposed where there is a violation of "any lawful order," and where the violation "is done with the knowledge it will endanger the life or safety of any person," a maximum fine of $2000 may be imposed. Id. at (e)(1). Here, the municipal court imposed a penalty of $1000 for defendant's violation of the August 1, 2011 order regarding the maintenance of an unsafe condition under N.J.A.C. 5:23-2.32(a), presumably based on its finding that the unsafe condition did not endanger the life or safety of any person. The Law Division imposed the same penalty.
As noted, however, defendant was not charged with violating the August 1, 2011 notice concerning the unsafe condition, and was not found by the Law Division to have violated the notice. Defendant was found only to have violated the regulation itself, N.J.A.C. 5:23-2.32(a). Thus, the maximum penalty the court could impose for defendant's violation of N.J.A.C. 5:23-2.32(a) was $500 because N.J.S.A. 52:27D-138(e) does not permit the imposition of a penalty in excess of $500 where a defendant is found to have only violated a UCCA regulation. N.J.S.A. 52:27D-138(e)(1).
Defendant was subject to the imposition of a penalty not to exceed $2000 based on its violation for failing to obtain a building permit under N.J.A.C. 5:23-2.14. N.J.S.A. 52:27D-138(e)(2) permits the imposition of a penalty of up to $2000 where a defendant commences construction without obtaining a required permit. The Law Division judge imposed the maximum penalty by simply adopting the municipal court's determination, without making any findings supporting his decision. A statement of reasons for the imposition of the penalties is required to permit appropriate appellate review and ensure against arbitrariness in the imposition of penalties. See State v. Bolvito, 217 N.J. 221, 235 (2014) (finding court must provide statement of reasons supporting imposition of a penalty on a criminal conviction); State v. Moran, 202 N.J. 311, 330 (2010) (remanding for resentencing for a motor vehicle conviction because judge did not articulate reasons for the sentence imposed). No such statement of reasons was provided here. We therefore reverse the court's imposition of the maximum penalty for defendant's violation of N.J.A.C. 5:23-2.14.
On remand, the court must reconsider the amount of the penalties imposed for defendant's violations of N.J.A.C. 5:23-2.32(a) and N.J.A.C. 5:23-2.14 occurring, as charged, on September 27, 2012. N.J.S.A. 52:27D-138 does not mandate the imposition of any minimum penalties for defendant's violations but does impose maximum penalties that may be imposed. The imposition of penalties, however, cannot be untethered to the facts and circumstances or be founded on the State's opinion or request that the maximum allowable penalties should be imposed.
Administrative penalties "must be tested for reasonableness as applied to the specific facts involved." In re Garay, 89 N.J. 104, 115 (1982). To determine reasonableness, courts assess "whether [the] punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." In re License Issued to Zahl, 186 N.J. 341, 354 (2006) (quotation omitted).
Our Supreme Court has outlined some of the factors a court must consider in the calculation of civil penalties: (1) the good or bad faith on the part of the violator; (2) the ability to pay; (3) the amount of profits obtained from the illegal conduct; (4) the injury to the public; (5) the duration of the offense; (6) the existence of criminal or treble damages actions; and (7) past violations. Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 137-39 (1987). On remand, the court should consider those factors "as well as any other factors it deems proper, to arrive at an appropriate penalty." Id. at 140.
We next briefly address defendant's contention that the summonses should have been dismissed on double jeopardy grounds. Defendant claims it was sanctioned during the 2008 enforcement proceeding for the same conduct for which it was charged in the summonses here. A double jeopardy challenge presents a question of constitutional law that we review de novo. See State v. Pomianek, 221 N.J. 66, 80 (2015) (explaining that issues of constitutional interpretation are purely legal in nature subject to de novo review).
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, and Article I, Paragraph 11 of the New Jersey Constitution prohibit an individual from being twice placed in jeopardy for the same offense. State v. Miles, 443 N.J.Super. 212, 220-21 (App. Div. 2015). The New Jersey constitutional protections against double jeopardy have been interpreted to be co-extensive with the protections afforded by the federal clause. Id. at 221 (citing State v. Schubert, 212 N.J. 295, 304 (2012)). Under both clauses, a defendant is safeguarded against three types of abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Ibid. (citing State v. Dively, 92 N.J. 573, 578 (1983)).
"New Jersey has traditionally placed the burden upon a defendant seeking protection of the double jeopardy bar." State v. Salter, 425 N.J.Super. 504, 520 (App. Div. 2012) (citing State v. Ebron, 61 N.J. 207, 217-18 (1972)); see also State v. Colon, 374 N.J.Super. 199, 218 (App. Div. 2005) (explaining that a defendant "must demonstrate that the first prosecution encompassed all the facts utilized in the second").
We need not determine whether the imposition of civil penalties here implicates the prohibition against multiple penalties under the double jeopardy clauses. Hudson v. United States, 522 U.S. 93, 102, 118 S.Ct. 488, 495, 139 L. Ed. 2d 450, 461 (1997); State v. Widmaier, 157 N.J. 475, 492 (1999); State v. Black, 153 N.J. 438, 443 (1998). Defendant failed to sustain its burden of establishing that the penalties here were imposed based on the same facts upon which the 2008 enforcement action was based. The little evidence defendant presented concerning the 2008 enforcement action was vague and did not establish that the 2012 summonses alleged violations for which defendant had been previously sanctioned. We are convinced the court correctly determined defendant failed to sustain its burden of establishing otherwise.
Because we have reversed the court's imposition of penalties, it is unnecessary to address defendant's remaining contentions.
We affirm the court's order finding defendant committed violations of N.J.A.C. 5:23-2.32(a) and N.J.A.C. 5:23-2.14 on September 27, 2012, as charged in the summonses. We reverse the court's imposition of penalties and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.