Hoffman Enterprises, Inc. v. Bureau of Homeowner Protection

590 A.2d 697, 248 N.J. Super. 166, 1991 N.J. Super. LEXIS 151
CourtNew Jersey Superior Court Appellate Division
DecidedMay 15, 1991
StatusPublished

This text of 590 A.2d 697 (Hoffman Enterprises, Inc. v. Bureau of Homeowner Protection) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoffman Enterprises, Inc. v. Bureau of Homeowner Protection, 590 A.2d 697, 248 N.J. Super. 166, 1991 N.J. Super. LEXIS 151 (N.J. Ct. App. 1991).

Opinion

The opinion of the court was delivered by

LONG, J.A.D.

Appellant Hoffman Enterprises, Inc. here challenges the revocation of its certificate of registration under the New Home Warranty and Builders’ Registration Act (the Act), N.J.S.A. 46:3B-1 to -12, by respondent Bureau of Homeowner Protection, New Home Warranty Program, Department of Community Affairs.

Hoffman was a registered builder under the Act which governs the administration of warranty programs applicable to all new residential construction in this State. The warranty pro[169]*169gram provides coverage against defective materials, workmanship, and systems in new home construction. Pursuant to duly authorized regulations, the program prescribes a claims resolution process, N.J.A.C. 5:25-5.5, through which a homeowner may obtain repair of warrantable defects.

Pursuant to N.J.A. C. 5:25-2.5(a), a certificate of registration may be denied, suspended or revoked if the registrant:

1. Willfully made a misstatement of material fact in his application for registration or renewal;
2. Willfully committed fraud in the practice of his occupation;
3. Practiced his occupation in a grossly negligent manner;
4. Willfully violated the New Jersey State Uniform Construction Code to any substantial degree;
5. Failed to continue his participation in either the State Plan or a private plan;
6. Failed to enroll or warrant any new home with a private plan, which new home was sold during the time he was participating in such private plan;
7. Fails to correct or settle any claim arising out of any defect after his responsibility has been established through the dispute settlement procedure of the State Plan or of a private plan as the case may be, unless such determination is appealed;
8. Failed to file an amended application for or to a certificate of registration within 30 days of any material change in the information provided in the most recent application or amendment thereto;
9. Has as an officer, partner, director or stockholder, any person who was serving as an officer, partner, director or stockholder for a builder whose certificate of registration has been suspended or revoked for cause pursuant to this subchapter at the time the incidents or practices leading to revocation occurred;
10. Has incurred or been responsible for incurring an award against the New-Home Warranty Security Fund;
11. Violated any provision of the New Home Warranty and Builders’ Registration Act (P.L.1977, c. 467) or this chapter;
12. Fails to participate in the dispute settlement process;
13. Has violated any order issued by the Commissioner and which has been adjudicated in accordance with the Administrative Procedures Act.

The Bureau charged Hoffman under sections 7, 10 and 11 and ordered the revocation of his certificate of registration as follows:

[Y]ou have constructed a home at Kings Rd., RD# 1, Box 11161C, Mt. Holly, NJ 08060, on.which title was transferred to Thomas & Reena DiOrio after which claim number CL-88-0440 was filed for the correction of specified defects and was submitted to formal dispute settlement where you chose to [170]*170have an Arbitration Award rendered [with] which you have failed and continue to fail to comply and for which the State of New Jersey will be subject to financial liability for the correction of such defects and all to the detriment of the health, welfare, and safety of the intended occupants and the general public.
[Y]ou have constructed a home at 532-B Williamstown Rd., Franklinville, NJ 08322, on which title was transferred to Jeffrey Krieger after which claim number CL-85-0774 was filed for the correction of specified defects and was submitted to formal dispute settlement where you chose to have an Arbitration Award rendered [with] which you have failed and continue to fail to comply and for which the State of New Jersey will be subject to financial liability for the correction of such defects and all to the detriment of the health, welfare, and safety of the intended occupants and the general public.

Hoffman requested a hearing which was held before an Administrative Law Judge (AU). She found that Hoffman, in fact, failed to correct or settle the claims in issue and was responsible for incurring awards against the New Home Warranty Security Fund (Fund) in the amount of $1600 in the Krieger case and over $60,000 in the DiOrio matter. She recommended revocation of Hoffman’s certificate of registration. The Commissioner of the Department of Community Affairs adopted the decision of the AU and revoked Hoffman’s certificate of registration. Hoffman appeals. We affirm in part and reverse and remand in part.

We are satisfied from our thorough review of this record that, apart from the penalty recommended, this decision is supported by substantial credible evidence in the record as a whole. R. 2:ll-3(e)(l)(D). Clearly, Hoffman failed to correct or settle the claims filed by the DiOrios and Krieger after his responsibility was established. It is equally clear that the Fund was required to award money to the aggrieved parties. Hoffman’s conduct therefore violated N.J.A.C. 5:25-2.5(a)(7) and (10), and subjected Hoffman to a penalty.

However, we are at a loss as to how the penalty of revocation was chosen. The rule, which authorizes denial, suspension or revocation, obviously contemplates the imposition of different penalties in different cases but does not set forth a rationale for choosing among penalties. The various options

[171]*171presume some proportionality. We are unable to tell from this record, as a result of the complete silence of the AU and the Department on the subject, how or why the penalty was reached in this case. Such a state of affairs makes meaningful appellate review impossible.

The Department has an obligation to provide factual findings and a reasoned explanation of the basis for the sanction it has imposed. See Noble Oil Co., Inc. v. Department of Environmental Protection, 123 N.J. 474, 588 A.2d 822, 824 (1991). As the Supreme Court stated in In re Application of Howard Sav. Inst. of Newark, 32 N.J. 29, 52, 159 A.2d 113 (1960) (emphasis in original):

[A]n administrative agency acting quasi -judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination, for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations.

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Related

State, Dept. of Health v. Tegnazian
477 A.2d 363 (New Jersey Superior Court App Division, 1984)
In Re Application of Howard Savings Institution of Newark
159 A.2d 113 (Supreme Court of New Jersey, 1960)
Noble Oil Co. v. Department of Environmental Protection
588 A.2d 822 (Supreme Court of New Jersey, 1991)

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Bluebook (online)
590 A.2d 697, 248 N.J. Super. 166, 1991 N.J. Super. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-enterprises-inc-v-bureau-of-homeowner-protection-njsuperctappdiv-1991.