Lenthy MVC suspension reverse JOSEPH J. CONSTANDI, JR., Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION,

Lenthy MVC suspension reverse JOSEPH J. CONSTANDI, JR.,  Appellant,  v.  NEW JERSEY MOTOR VEHICLE COMMISSION,  Respondent.  

 October 22, 2014   Submitted September 9, 2014 — Decided  Before Judges Reisner and Higbee.  On appeal from the New Jersey Motor Vehicle Commission. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5832-12T4  Appellant Joseph J. Constandi, Jr. (Constandi) appeals from an Order of Suspension issued by the New Jersey Motor Vehicle Commission (the agency). After reviewing the facts and procedure followed in this matter, we find Constandi was entitled to a hearing to contest his suspension. We reverse and remand.

On October 15, 2012, Constandi was issued a ticket for speeding in violation of N.J.S.A. 39:4-98. He pled guilty to a violation of N.J.S.A. 39:4-97.2, unsafe driving, under the mistaken belief that his plea would not result in any points on his driving record. Notwithstanding Constandi's belief, the offense carried a four point penalty. On May 2, 2013, Constandi was sent a Notice of Suspension, which stated his license would be suspended for 420 days because he had twelve or more points on his record. The notification also advised that he could accept the suspension or request a hearing.

Prior to the present violation, Constandi accumulated sixty points during a four decade span. More recently, his record has been less active. That information is memorialized in the attachment to the notification, which depicts his driving history from July 2009-May 2013. He received only two points in 2009 for speeding. He received zero points in 2010 or 2011; and in 2012, he received zero points and had three points deducted for safe driving. Relevant here, Constandi's record is without twelve points in a four year period. He received only six points in that time frame with a three point deduction. In light of his more recent driving history, we find that the notice of suspension was arbitrary and unsupported.

Specifically, N.J.S.A. 39:5-30.8a, as cited in the notice, states that the director of the agency shall suspend a driver's license for no less than thirty days, and no more than 180 days when a person accumulates twelve or more points in a two year period. Likewise, N.J.S.A. 39:5-30.8b allows the same suspension for accumulating over fifteen points in a period of greater than two years. In that light, there is no explanation for why Constandi's license was being suspended for 420 days. The record attached to the notice did not support a violation of N.J.S.A. 39:5-30.8a.With regard to Constandi's cumulative lifetime points, although it was noted on the record, the notice makes no mention of the same, and does not state this as the reason for suspension.

After receipt of the suspension notice, Constandi filed a motion to vacate his plea in municipal court, and sent a copy of the motion to the agency with a written request for a hearing. Likewise, in a letter to the Commission dated July 2, 2013, Constandi's counsel requested discovery of his entire record, and further requested an opportunity to be heard. The written request noted that plaintiff's recollection did not match the attachment to the suspension notice.

In addition to those requests, counsel advised the agency his client had two school age children involved in sports teams, and when Constandi's license was suspended, his children would not be able to get to their athletic activities. He also advised that Constandi had been unemployed for several months, and now was working, but reported he would lose his job if he could not drive.

In response to Constandi's plea withdrawal and request for a hearing, the agency issued a second notice of suspension on June 13, 2013. This notice again stated the reason for suspension was "because you have 12 or more points on your driving record." Without explanation, and again citing N.J.S.A. 39:5-30.8 as authority, this notice reduced the suspension from 420 days to 390 days. We note, this suspension was still more than double the maximum time allowed under the statute. The notice again advised of the right to a hearing.

On June 14, 2013, Constandi's counsel sent a letter to the agency that probably crossed in the mail with the notice dated June 13 from the agency to Constandi. In this letter, counsel advised the agency that Constandi had been allowed to withdraw his plea to unsafe driving, and he instead had pled to a two point speeding violation. The letter said plaintiff and counsel were waiting for a date for a suspension hearing.

On July 20, 2013, the agency replied sending a letter to counsel which was just as confusing as the prior notices had been. In this letter, the agency told plaintiff that no pre-hearing conference was necessary for the May 26, 2013 notice. The letter stated that since the violation of N.J.S.A. 39:4-97 (Unsafe Operation of Motor Vehicle) was amended to 39:4-98 (Speeding), the May notice no longer had any effect; the letter further stated that "as a result, your client's total point accumulation is below the 12 point threshold." This is immaterial because the record attached to both notices does not show that even the original four point violation would have exceeded the twelve point limit in less than two years. The number twelve is not relevant to the total point accumulation portion of the statute. The letter did advise plaintiff that he will be notified of a pre-hearing conference date.

On July 2, 2013, counsel for Constandi requested a hearing in writing for the third time and a complete copy of his client's driving record which he had not been given. Additionally, counsel indicated he wanted to present the personal problem issues to a hearing examiner, and question the contents of the record. Eight days later, on July 10, 2013, with no response to counsel's request for a copy of the records relied upon by the agency and no hearing having been held, the agency issued an Order of Suspension and a Denial of Hearing Request/Final Decision signed by the Chairman of the agency.

The final order for the first time stated that Constandi's driving license was being suspended because the two point speeding ticket caused his total point accumulation to be fifty-eight points in violation of N.J.S.A. 39:5-30.8b.The order denied a hearing because "no material facts or legal issues are in dispute" and the request for a hearing was based merely on "personal hardship." The order further stated that based on his driving record and mitigating circumstances, the suspension was being reduced from 390 days to 150 days. Finally, the order also noted that "suspension of your driving privilege is intended to be rehabilitative rather than punitive."

Appellate review of an administrative agency's action is limited. On appeal, we are required to give deference to agency decisions, but not where they are arbitrary, capricious or contrary to law. Circus Liquors Inc. v. Governing Body of Middletown Twp., 199 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007).

It is well-settled that without a "clear showing" that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance. In re Herrman, 192 N.J. 19, 27 (2007). The New Jersey Supreme Court has explained that arbitrary and capricious means "willful and unreasonable action, without consideration and in disregard of the circumstances." Worthington v. Fauver, 88 N.J. 183, 204-05 (1982).

Based on this deferential standard courts have accorded a presumption of validity and reasonableness to agency action, therefore placing the burden on the challenger to overcome this presumption. Bergen Pines Hosp. v. Department of Human Serv., 96 N.J. 456, 477 (1984). In this case, plaintiff has met his burden.

Here, we agree with plaintiff that a response to his discovery request should have been provided. If he was suspended based on points over his entire record, a copy of his entire record should have been attached to the notice, not just his record for the prior four years. The limited attachment did not contain sufficient evidence to even support a suspension.

The agency's actions in suspending Constandi's license for 150 days without a hearing was arbitrary, capricious and in violation of the law. Constandi was entitled to be advised of the specific reason for his suspension. Constandi was not advised of the actual reason for his suspension until he received the final order. The denial of a hearing was in violation of N.J.S.A. 39:5-30.8c which gives the licensee the right to a hearing before an administrative law judge to evaluate the appropriateness of a suspension in excess of thirty days, and allows relevant evidence which would include a personal hardships to be considered on the length of a suspension in excess of thirty days.

Specifically, N.J.S.A. 39:5-30.8 states a suspension shall become effective unless the licensee notifies the director in writing of his intention to personally appear at a hearing to challenge the suspension. The statute further states:

The administrative law judge presiding at a hearing held pursuant to this section shall only consider evidence of the actual number of points assessed and the period of time during which such points were accumulated, taking into consideration any point reduction credits earned by the licensee, in issuing a suspension. He may consider other relevant evidence in considering the appropriateness of any portion of a suspension issued in excess of 30 days.

It was arbitrary to dismiss plaintiff's three written requests for a hearing. It was arbitrary and violated the applicable law to initially impose suspensions far in excess of the maximum time allowed by law. It was arbitrary to not provide plaintiff with a complete copy of his record, or advise him of how he could obtain it.

Constandi has a right to a hearing before any suspension in excess of thirty days is imposed. At that hearing, the administrative law judge can consider the time frames involved, the number of violations and points, the claimed hardship, the nature of the violations, and all relevant facts as allowed by the statute to the issue of the appropriateness of a suspension in excess of thirty days.

Reversed and remanded.