NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2135-17T3
JUST PUPS, LLC and VINCENT LOSACCO,
Plaintiffs-Appellants,
v.
TOWNSHIP OF EAST HANOVER and CARLO DILIZIA,
Defendants-Respondents. _____________________________
Submitted December 18, 2018 – Decided January 24, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0963-17.
Anthony X. Arturi, attorney for appellants.
O'Donnell McCord, PC, attorney for respondents (Jonathan Testa, on the brief).
PER CURIAM Plaintiffs Just Pups, LLC (Just Pups) and Vincent LoSacco appeal from
Law Division orders granting defendants Township of East Hanover (Township)
and Carlo DiLizia summary judgment dismissing plaintiffs' complaint and
denying plaintiffs' motion for partial summary judgment. We affirm.
We derive the following facts from the motion record. Every municipality
must have a board of health. N.J.S.A. 26:3-1. In the case of a municipality
formed under the Faulkner Act, N.J.S.A. 40:69A-115 to -132, another board or
body performs the functions of a local board of health. The governing body of
a Faulkner Act Municipality may exercise the functions of a local board of
health. N.J.S.A. 26:3-1.
The Township operates as a "Small Municipality Plan A" optional form
of government under the Faulkner Act. The Township's Council acts as the local
Board of Health. DiLizia serves as Director and Health Officer for the
Township's Department of Health and Human Services.
The Township regulates the licensing and sanitary conditions of all
commercial kennels and pet shops within its boundaries through ordinances
published in Chapter 173 of the East Hanover Code (Code). The Township
requires every kennel and pet shop to "annually apply for and obtain a license
from the Township Board of Health." Code § 173-10. Each application must
A-2135-17T3 2 be accompanied by "written approval of the Township Health Officer showing
compliance with the local and State rules and regulations governing the location
and sanitation at such establishments." Ibid.
Pursuant to Code § 173-12, kennel and pet shop licenses are:
subject to revocation by the Board of Health on recommendation of the State Department of Health or the Township Health Officer for failure to comply with applicable provisions of [Chapter 173] or the rules and regulations of the State Department of Health or of the Township Board of Health governing the same, after the licensee has been afforded a hearing by either the State Department of Health or the Township Board of Health.
Vincent LoSacco is the owner of Just Pups. The Township issued a
kennel/pet shop license to Just Pups on January 6, 2016, with an expiration date
of December 31, 2016. The License expressly states: "This is to certify that the
above licensee . . . agreed to comply and abide by all the provisions of the N.J.
State Codes [and] is hereby permitted to operate the above business. This
license is also subject to suspension/revocation due to noncompliance."
Beginning on January 2, 2017, DiLizia and several Registered
Environmental Health Specialists (REHS) from the Township's Department of
Health discovered health violations at Just Pups's pet shop (the pet shop).
DiLizia and Sergeant Frank Rizzo, II, of the New Jersey SPCA Humane Police,
A-2135-17T3 3 found Vincent Losacco in the process of transporting thirty-two puppies into the
pet shop without veterinarian certificates confirming the canines are free from
contagious disease.
On January 10, 2017, DiLizia filed thirty-two complaints against plaintiffs
in East Hanover Municipal Court for violating State Department of Health
regulations for the sanitary operation of pet shops, codified at N.J.A.C. 8:23A-
1.13.1 The next day, Just Pups applied for a renewal of its pet shop license.
Over the course of the next month, DiLizia and the Township's REHS
conducted follow-up inspections of the pet shop on January 23, February 1, and
February 3, 2017. Each inspection revealed additional health violations. As a
result of the investigations, DiLizia issued a quarantine order affecting the entire
facility effective February 3, 2017. In total, fifty-three of the canines removed
from plaintiff's possession had confirmed cases of various diseases, including
Giardia, kennel cough, and/or pneumonia.
Due to the ongoing health violations, DiLizia issued a formal
Recommendation For Revocation of Pet Shop License (Recommendation) that
the Township revoke and not renew the pet shop license issued to Just Pups.
1 A temporary restraining order was issued by the municipal court against plaintiffs. The municipal court matters otherwise remained stayed pending the outcome of this appeal. A-2135-17T3 4 The Recommendation listed nineteen alleged violations and stated the
investigation "confirmed and/or [gave] reason to suspect the existence of a
zoonotic or other communicable disease that would be harmful to human or
animal health in several animals currently housed at the facility." The
Recommendation also stated the licensee:
(1) failed to maintain proper hygiene, sanitation, and disease control, and exercise reasonable care in safeguarding the health of animals in its custody; (2) sold, [or] offered for sale, a substantial number of animals that licensee knew or reasonably should have known, to be unfit for purchase; and/or (3) failed to comply with the rules and regulations of the State and the Township.
The chronic violations discovered by the Local Health Authority at Just Pups, LLC, are detrimental to the health, safety, and welfare of the animals housed therein and the public at large.
While the license renewal application was pending, the State also recommended
Just Pups's license not be renewed.
On February 20, 2017, the Township served plaintiffs with the
Recommendation and written notice that a public hearing as to the
renewal/revocation of the License was scheduled before the Town Governing
Body, on March 6, 2017. The hearing to determine whether to revoke or renew
the pet shop license took place as scheduled before the Township Council, acting
A-2135-17T3 5 as the local board of health. Plaintiffs were represented by counsel at the
hearing.
Plaintiffs argued that Township Council lacked authority to suspend or
revoke the license because the local health authority did not hold a hearing and
take testimony before issuing the Recommendation, in violation of N.J.S.A.
56:8-96. The hearing proceeded over plaintiffs' objections.
DiLizia, Township REHS Elyssa Loiacono, and licensed veterinarian Dr.
Andrea Serrano-Pribula, testified at the hearing. LoSacco also testified and
submitted evidence during the hearing. DiLizia, Loiacono, and Dr. Serrano-
Pribula each described the health violations they discovered at plaintiffs’ pet
shop in January and February 2017. Plaintiffs had the opportunity to cross-
examine the Township's witnesses but elected to cross-examine only DiLizia.
At the conclusion of the hearing, the Township voted to revoke and not
renew the pet shop license. On April 3, 2017, the Township adopted a resolution
(the Resolution) embodying the findings and conclusions made during the
Plaintiffs filed a four-count complaint in the Law Division. The complaint
alleged violation of due process (count one); violation of 42 U.S.C. § 1983
(count two); violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A.
A-2135-17T3 6 10:6-1 to -2 (count three); and that adoption of the Resolution revoking the pet
shop license was unlawful, arbitrary, capricious, and unreasonable (count four).
Plaintiffs demanded compensatory, punitive, and consequential damages,
injunctive relief, invalidation of the Resolution, attorney's fees and costs of suit.
While this matter was before the trial court, the Township received an
affidavit from Missouri Licensed Veterinarian, Dr. Dale Alumbaugh, dated June
7, 2017. Dr. Alumbaugh’s affidavit confirms certain health certificates plaintiff
presented to DiLizia as proof that veterinarian care and examination were
falsified.
On July 5, 2016, the State filed a Chancery Division action against Just
Pups and LoSacco alleging they violated the Consumer Fraud Act, N.J.S.A.
56:8-1 to -20; the regulations governing the sale of animals, N.J.A.C. 13:45A-
12.1 to -12.3; the Pet Purchase Protection Act, N.J.S.A. 56:8-92 to -97; and the
regulations governing general advertising, N.J.A.C. 13:45A-9.1 to -9.8.2
The parties to the Chancery action agreed to resolve the claims against
defendants Just Pups and LoSacco, including the State's claims that Just Pups
and LoSacco accepted deposits at their pet shop in East Hanover for animals
prior to having the animals examined by a veterinarian licensed to practice in
2 Porrino v. Just Pups, LLC, No. C-184-16 (Ch. Div. June 22, 2017). A-2135-17T3 7 New Jersey, and had included in the animal's history and health certificates
statements that were false, by a final consent judgment entered on June 22, 2017.
Among other things, the consent judgment permanently enjoined plaintiff from
owning, managing, and/or operating a pet shop or kennel, or acting as a breeder
or broker in New Jersey. The consent judgment also permanently enjoined
LoSacco from serving as an employee, advisor, consultant, independent
contractor and/or agent of any pet shop, kennel, breeder and/or broker in New
Jersey. In addition, Just Pups and LoSacco agreed to pay civil penalties of
$290,000, restitution of $30,163.73, and investigation costs of $5876.48.
Defendants subsequently moved to dismiss plaintiffs' complaint or
alternatively for summary judgment. Plaintiffs cross-moved for partial
summary judgment on counts one and two. Following oral argument on
November 27, 2017, the Law Division judge issued separate orders and written
statements of reasons granting defendant's motion and denying plaintiffs' cross-
motion. This appeal followed.
Plaintiffs raise the following points:
I. IT WAS NOT THE TOWN THAT WAS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW, IT WAS PLAINTIFF WHERE IT WAS UNDISPUTED THAT NO HEARING WAS HELD BY THE LOCAL HEALTH AUTHORITY PRIOR TO
A-2135-17T3 8 ISSUANCE OF A RECOMMENDATION TO THE MUNICIPALITY, AS THE STATUTE REQUIRED.
A. THE TOWNSHIP HAD NO AUTHORITY TO REVIEW, SUSPEND OR REVOKE THE JUST PUPS LICENSE PURSUANT TO N.J.S.A. 4:19-15.8c BECAUSE THE LOCAL HEALTH AUTHORITY (ADMITTEDLY MR. DILIZIA) DID NOT HOLD THE HEARING THAT WAS FIRST REQUIRED BEFORE IT COULD MAKE A RECOMMENDATION TO THE TOWNSHIP COUNCIL.
B. PLAINTIFF, NOT DEFENDANT, WAS ENTITLED TO JUDGMENT ON COUNTS ONE AND TWO OF ITS CLAIM FOR VIOLATION OF PROCEDURAL DUE PROCESS AND DEPRIVATION OF PROPERTY RIGHTS UNDER COLOR OF LAW.
We review the grant or denial of summary judgment de novo, applying
the same standard used by the trial court, which:
mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]
A-2135-17T3 9 We also determine "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades At Ft. Lee Condo. Ass'n v. 100 Old Palisade, LLC,
230 N.J. 427, 442 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512
(2009)).
The United States Constitution provides no state shall "deprive any person
of life, liberty, or property, without due process of law." U.S. Const. amend.
XIV, § 1. The New Jersey Constitution recognizes people have "certain natural
and unalienable rights," which include "enjoying and defending life and liberty,
of acquiring, possessing, and protecting property, and of pursuing and obtaining
safety and happiness." N.J. Const. art. 1, ¶ 1. Although our State Constitution
does not reference "due process," it protects "values like those encompassed by
the principle[] of due process." Greenberg v. Kimmelman, 99 N.J. 552, 568
(1985). "In examining a procedural due process claim, we first assess whether
a liberty or property interest has been interfered with by the State, and second,
A-2135-17T3 10 whether the procedures attendant upon that deprivation are constitutionally
sufficient." Doe v. Poritz, 142 N.J. 1, 99 (1995) (citing Valmonte v. Bane, 18
F.3d 992, 998 (2d Cir. 1994)).
Within this framework, "[a]n occupational license is in the nature of a
property right." Santaniello v. N.J. Dep't of Health & Sr. Servs., 416 N.J. Super.
445, 460 (App. Div. 2010) (alteration in original) (quoting Graham v. N.J. Real
Estate Comm'n, 217 N.J. Super. 130, 135 (App. Div. 1987)). However, "[t]here
is no protectable property right in continuing or future [licensure] since any
existing property interest in the [license] is extinguished upon its expiration."
Id. at 459. Accordingly, "constitutional due process protects against only the
improper suspension or revocation of a license; it does not protect against a
licensing board's summary refusal to reinstate a license that has been revoked."
Id. at 460 (quoting Limongelli v. N.J. State Bd. of Dentistry, 137 N.J. 317, 326
(1993)).
"Once it is determined that due process applies, the question remains what
process is due." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). "The minimum
requirements of due process . . . are notice and the opportunity to be heard."
Doe, 142 N.J. at 106 (citing U.S. v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987));
see also Goss v. Lopez, 419 U.S. 565 (1975). However, procedural due process
A-2135-17T3 11 is a flexible concept dependent upon the particular circumstances of a case.
Zinermon v. Burch, 494 U.S. 113, 127 (1990). The following factors must be
weighed to determine what process a given case requires:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[Ibid. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976))].
In cases where a property interest is deprived by state action in violation
of procedural due process, the harm may be remedied by conducting whatever
process was originally due post-deprivation and damages need not be made
available. See Parratt v. Taylor, 451 U.S. 527, 544 (1981) ("Although the state
remedies may not provide the respondent with all the relief which may have
been available if he could have proceeded under § 1983, that does not mean that
the state remedies are not adequate to satisfy the requirements of due process.").
See also Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 380 (1996)
("Because the State provided an adequate post-deprivation remedy to redress the
A-2135-17T3 12 aberrant conduct of the board member or the Board, plaintiffs' rights to
procedural due process were not violated.").
Section 1983 provides "a method of vindicating federal rights elsewhere
conferred." Rivkin, 143 N.J. at 363 (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)). A successful § 1983 claimant may recover compensatory and
punitive damages, as well as attorney's fees and costs. Section 1983 allows for
punitive damages against state actors in their individual capacity upon a showing
of maliciousness. Smith v. Wade, 461 U.S. 30 (1983). However, municipalities
are immune from punitive damages under § 1983. City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981).
The NJCRA serves as a state analog to § 1983. While the Act allows
claims for substantive due process violations, "[a] procedural due process claim
cannot be brought under the NJCRA." Mattson v. Aetna Life Ins. Co., 124
F.Supp. 3d 381, 390 (D.N.J. 2015) (quoting Major Tours, Inc. v. Colorel, 799
F.Supp. 2d 376, 405 (D.N.J. 2011) (noting "[t]he NJCRA was specifically
amended to limit the legislation's scope to substantive due process")).
Plaintiff essentially argues he was entitled to two hearings, one before
DiLizia issued his recommendation to revoke or not renew the pet shop license,
and the hearing he in fact received before Township Council. For this reason,
A-2135-17T3 13 he contends he was entitled to summary judgment rather than defendants, as it
is undisputed no hearing occurred prior to DiLizia issuing his recommendation.
To be successful, plaintiff's argument requires a strained reading of N.J.S.A.
4:19-15.8(c) and N.J.S.A. 56:8-96 for the proposition that a hearing must be
afforded prior to the issuance of a recommendation.
Defendants first argue this case is moot in light of the Final Consent
Judgment that permanently enjoins them from owning or operating a pet shop in
the State. We disagree because the Final Consent Judgment was entered
approximately six months after the pet shop license expired and more than two
months after the Resolution was adopted. Plaintiff's theory for compensatory
damages is based on his economic loss incurred in the time lapse between the
Township passing their resolution to revoke or not renew plaintiff's License and
when plaintiff entered the settlement agreement with the Attorney General.
Thus, plaintiff's claim, if successful, provides a path to some damages. See R.J.
Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 267 (2001)
(noting plaintiff's "claim is not moot to the extent that it seeks monetary
damages").
Defendants next contend summary judgment dismissing the complaint
was appropriate because plaintiff received notice of a hearing, attended the
A-2135-17T3 14 hearing with representation, and was allowed an opportunity to cross-examine
and be heard. Defendants note plaintiffs' argument is founded on an
unsupported interpretation of New Jersey law. We agree.
Plaintiff received notice and a hearing before Township Council, acting
as the local board of health, yet argues he did not receive procedural due process.
Relying on the language of N.J.S.A. 4:19-15.8(c) and 56:8-96, plaintiff insists a
hearing should have been conducted prior to DiLizia issuing the
Recommendation.
N.J.S.A. 4:19-15.8(c) provides:
The license for a pet shop shall be subject to review by the municipality, upon recommendation by the Department of Health or the local health authority for failure by the pet shop to comply with the rules and regulations of the State department or local health authority governing pet shops or if the pet shop meets the criteria for recommended suspension or revocation provided under subsection c. or d. of section 5 of [N.J.S.A. 56:8-96], after the owner of the pet shop has been afforded a hearing pursuant to subsection e. of section 5 of [N.J.S.A. 56:8-96].
[Id. (emphasis added).]
In turn, N.J.S.A. 56:8-96(e) provides:
Pursuant to the authority and requirements provided in section 8 of [N.J.S.A. 4:19-15.8], the owner of the pet shop shall be afforded a hearing and, upon the recommendation by the local health authority pursuant
A-2135-17T3 15 to subsection c. or d. of this section, the local health authority, in consultation with the Department of Health, shall set a date for the hearing to be held by the local health authority or the State Department of Health and shall notify the pet shop involved. The municipality may suspend or revoke the license, or part thereof, that authorizes the pet shop to sell cats or dogs after the hearing has been held and as provided in section 8 of [N.J.S.A. 56:8-96]. At the hearing, the local health authority or the Department of Health, whichever entity is holding the hearing, shall receive testimony from the pet shop and shall determine if the pet shop: (1) failed to maintain proper hygiene and exercise reasonable care in safeguarding the health of animals in its custody, or (2) sold a substantial number of animals that the pet shop knew, or reasonably should have known, to be unfit for purchase.
Both statutes solely reference "hearing" in the singular. Only an obtuse reading
of these statutes would suggest two hearings must be provided.
More fundamentally, in a Faulkner Act Municipality such as the
Township, the governing body serves as the local board of health. Therefore,
interpreting these statutes to require two hearings by the same governmental
entity would make no sense. We will not interpret a statute in a way that leads
to an absurd result. DiProspero v. Penn, 183 N.J. 477, 493 (2005).
In any event, an analysis of what process a given case requires is properly
guided by weighing the following factors: (1) the private interest affected by
A-2135-17T3 16 state action; (2) the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
safeguards; and (3) the government's interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail. Mathews, 424 U.S. at 335.
An assessment of the competing interests reveals the hearing on notice
afforded to plaintiffs satisfied procedural due process requirements. At the
hearing, plaintiffs were represented by counsel, were permitted to present
witnesses and evidence, were given the opportunity to confront their accusers
through cross-examination, and were permitted to present legal argument,
thereby enjoying all of the hallmarks of a trial. Moreover, it is unclear what
purpose a second hearing would have served.
We further note, plaintiffs' property interest in the pet shop license expired
on December 31, 2016. Therefore, it appears plaintiff's property interest in the
license was extinguished. Santaniello, 416 N.J. Super. at 459.
Additionally, as found by the motion judge, local governments are
unequivocally permitted to exercise their police power over the licensing and
enforcement of dog regulations for the public's protection. Nicchia v. New
York, 254 U.S. 228, 230-31 (1920) (noting "[p]roperty in dogs is of an imperfect
A-2135-17T3 17 or qualified nature and they may be subjected to peculiar and drastic police
regulations by the state without depriving their owners of any Federal right").
Here, the pet shop was operated in a manner that promoted the spread of
communicable diseases, as evidenced by the removal of more than fifty canines
infected by Giardia, kennel cough, or pneumonia.
Weighing the three factors, we conclude plaintiffs' constitutional rights
were not violated. Plaintiffs were afforded all of the process they were due and
suffered no compensable damages. The decision to revoke or not renew the pet
shop license was not arbitrary, capricious, unreasonable, or unlawful.
Therefore, the motion judge properly granted summary judgment dismissing the
complaint.
Plaintiffs' remaining arguments – to the extent that we have not addressed
them – lack sufficient merit to warrant any further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2135-17T3 18