NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1544-17T1
ZVI E. SELLA,
Complainant-Appellant,
v.
NEW JERSEY REAL ESTATE COMMISSION,
Respondent-Respondent. _____________________________
Submitted April 4, 2019 – Decided April 18, 2019
Before Judges Simonelli and Whipple.
On appeal from the New Jersey Real Estate Commission, Department of Banking and Insurance.
Zvi E. Sella, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Brian R. Fitzgerald, Deputy Attorney General, on the brief).
PER CURIAM Appellant Zvi E. Sella appeals from the October 12, 2017 final decision
of respondent Department of Banking and Insurance (Department) affirming the
September 18, 2017 decision of the Real Estate Commission (Commission)
denying Sella's application to reinstate his real estate salesperson's license. We
affirm.
Sella's salesperson's license expired June 30, 2013. On July 5, 2017, he
applied to the Department to reinstate his license. On July 10, 2017, the Director
denied the application as out of time under N.J.S.A. 45:15-9. The Director
notified Sella that if he appealed to the Commission, he must demonstrate the
lack of prejudice to the Commission, the series of steps he took to comply with
the statute, the absence of any negligence or wrongdoing by him that contributed
to his failure to strictly comply, and a reasonable explanation why there was not
strict compliance.
Sella appealed to the Commission, claiming that he went to Israel in 2011
where he suffered serious medical problems and was involved in a car accident
in 2012, which rendered him medically unable to timely reinstate his license. He
submitted purported medical records; however, the documents were written in
Hebrew and Sella provided no English translation. He also submitted medical
A-1544-17T1 2 records written in English, but they evidenced medical treatment he received in
2017.
In a September 18, 2017 written decision, the Commission denied Sella's
appeal. The Commission found:
Sella does not dispute the factual basis for the denial. His explanation is that he suffered serious health issues, starting in 2012 while visiting Israel, which prevented him from being able to reinstate his license . . . . Sella was also involved in a car accident during treatment of his ailments, further compromising his health status.
The Commission stated it is prejudiced when a licensee fails to timely submit
their license application and, while it was sympathetic to Sella's situation, he
had not completed any continuing education hours required since 2011, and had
not met the requirements for reinstatement. In an October 12, 2017 written
decision, the Department affirmed the Commission's decision. This appeal
followed.
From what we can discern from Sella's pro se merits brief, he contends
the Commission ignored the extent of his medical problems, his medical
problems prevented his completing the continuing education hours , he is a
seasoned real estate professional, and he made a sufficient showing that he was
medically unable to timely reinstate his license. He also contends he
A-1544-17T1 3 demonstrated the lack of prejudice to the Commission, the series of steps he took
to comply with N.J.S.A. 45:15-9(e), the absence of any negligence or
wrongdoing by him that contributed to his failure to strictly comply, and gave a
reasonable explanation why he did not strictly comply with the statute.
"The scope of review in a case involving an appeal from the New Jersey
Real Estate Commission is the same as that for other administrative agencies[.]"
Morgan v. Saslaff, 123 N.J. Super. 35, 38 (App. Div. 1973). "[We] have 'a
limited role' in the review of [agency] decisions." In re Stallworth, 208 N.J.
182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980)). "[A] 'strong presumption of reasonableness attaches to [an agency
decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting
In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order to reverse an
agency's judgment, [we] must find the agency's decision to be 'arbitrary,
capricious, or unreasonable, or . . . not supported by substantial credible
evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting Henry,
81 N.J. at 579-80). Our Supreme Court has held:
In determining whether agency action is arbitrary, capricious, or unreasonable, [we] must examine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2)
A-1544-17T1 4 whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Id. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at
483). "This is particularly true when the issue under review is directed to the
agency's special 'expertise and superior knowledge of a particular field.'" Id. at
195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is
settled that '[a]n administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412
N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original) (quoting
Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
A-1544-17T1 5 2001). "Statutory and regulatory construction is a purely legal issue subject to
de novo review." Ibid. Applying the above standards, we discern no reason to
reverse.
The statutory provisions for reinstatement of a salesperson's license are
mandatory. A person holding a salesperson's license who fails "to maintain or
renew such license or obtain a new license for a period of two consecutive years
or more after the expiration of the last license held . . . shall . . . attend a licensed
school and pass the State examination prior to issuance of a further license."
N.J.S.A. 45:15-9(e). "The [C]ommission may, in its discretion, approve for
relicensure a salesperson applicant . . . who has not renewed his license or
obtained a new license for two or more consecutive years upon a sufficient
showing that the applicant was medically unable to do so." Ibid. However, if
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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-1544-17T1
ZVI E. SELLA,
Complainant-Appellant,
v.
NEW JERSEY REAL ESTATE COMMISSION,
Respondent-Respondent. _____________________________
Submitted April 4, 2019 – Decided April 18, 2019
Before Judges Simonelli and Whipple.
On appeal from the New Jersey Real Estate Commission, Department of Banking and Insurance.
Zvi E. Sella, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Brian R. Fitzgerald, Deputy Attorney General, on the brief).
PER CURIAM Appellant Zvi E. Sella appeals from the October 12, 2017 final decision
of respondent Department of Banking and Insurance (Department) affirming the
September 18, 2017 decision of the Real Estate Commission (Commission)
denying Sella's application to reinstate his real estate salesperson's license. We
affirm.
Sella's salesperson's license expired June 30, 2013. On July 5, 2017, he
applied to the Department to reinstate his license. On July 10, 2017, the Director
denied the application as out of time under N.J.S.A. 45:15-9. The Director
notified Sella that if he appealed to the Commission, he must demonstrate the
lack of prejudice to the Commission, the series of steps he took to comply with
the statute, the absence of any negligence or wrongdoing by him that contributed
to his failure to strictly comply, and a reasonable explanation why there was not
strict compliance.
Sella appealed to the Commission, claiming that he went to Israel in 2011
where he suffered serious medical problems and was involved in a car accident
in 2012, which rendered him medically unable to timely reinstate his license. He
submitted purported medical records; however, the documents were written in
Hebrew and Sella provided no English translation. He also submitted medical
A-1544-17T1 2 records written in English, but they evidenced medical treatment he received in
2017.
In a September 18, 2017 written decision, the Commission denied Sella's
appeal. The Commission found:
Sella does not dispute the factual basis for the denial. His explanation is that he suffered serious health issues, starting in 2012 while visiting Israel, which prevented him from being able to reinstate his license . . . . Sella was also involved in a car accident during treatment of his ailments, further compromising his health status.
The Commission stated it is prejudiced when a licensee fails to timely submit
their license application and, while it was sympathetic to Sella's situation, he
had not completed any continuing education hours required since 2011, and had
not met the requirements for reinstatement. In an October 12, 2017 written
decision, the Department affirmed the Commission's decision. This appeal
followed.
From what we can discern from Sella's pro se merits brief, he contends
the Commission ignored the extent of his medical problems, his medical
problems prevented his completing the continuing education hours , he is a
seasoned real estate professional, and he made a sufficient showing that he was
medically unable to timely reinstate his license. He also contends he
A-1544-17T1 3 demonstrated the lack of prejudice to the Commission, the series of steps he took
to comply with N.J.S.A. 45:15-9(e), the absence of any negligence or
wrongdoing by him that contributed to his failure to strictly comply, and gave a
reasonable explanation why he did not strictly comply with the statute.
"The scope of review in a case involving an appeal from the New Jersey
Real Estate Commission is the same as that for other administrative agencies[.]"
Morgan v. Saslaff, 123 N.J. Super. 35, 38 (App. Div. 1973). "[We] have 'a
limited role' in the review of [agency] decisions." In re Stallworth, 208 N.J.
182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980)). "[A] 'strong presumption of reasonableness attaches to [an agency
decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting
In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order to reverse an
agency's judgment, [we] must find the agency's decision to be 'arbitrary,
capricious, or unreasonable, or . . . not supported by substantial credible
evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting Henry,
81 N.J. at 579-80). Our Supreme Court has held:
In determining whether agency action is arbitrary, capricious, or unreasonable, [we] must examine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2)
A-1544-17T1 4 whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Id. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at
483). "This is particularly true when the issue under review is directed to the
agency's special 'expertise and superior knowledge of a particular field.'" Id. at
195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is
settled that '[a]n administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412
N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original) (quoting
Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
A-1544-17T1 5 2001). "Statutory and regulatory construction is a purely legal issue subject to
de novo review." Ibid. Applying the above standards, we discern no reason to
reverse.
The statutory provisions for reinstatement of a salesperson's license are
mandatory. A person holding a salesperson's license who fails "to maintain or
renew such license or obtain a new license for a period of two consecutive years
or more after the expiration of the last license held . . . shall . . . attend a licensed
school and pass the State examination prior to issuance of a further license."
N.J.S.A. 45:15-9(e). "The [C]ommission may, in its discretion, approve for
relicensure a salesperson applicant . . . who has not renewed his license or
obtained a new license for two or more consecutive years upon a sufficient
showing that the applicant was medically unable to do so." Ibid. However, if
approved, the salesperson "shall pass the salesperson's license examination and
. . . complete the continuing education requirements applicable to salesperson
licensees in the preceding licensure term prior to being relicensed." Ibid.
To qualify for the examination, the salesperson must "give evidence of
satisfactory completion of [seventy-five] hours in the aggregate of such courses
of education in real estate subjects at a school licensed by the [C]ommission as
the [C]ommission shall by regulation prescribe." N.J.S.A. 45:15-10.1(a). "At
A-1544-17T1 6 least three hours of that course of study shall be on the subject of ethics and
ethical conduct in the profession of a real estate salesperson." Ibid.
In addition, a salesperson "as a condition of biennial license renewal
pursuant to [N.J.S.A.] 45:15-10 . . . [shall] complete not more than [sixteen]
hours of continuing education requirements imposed by the [C]ommission
pursuant to this section and [N.J.S.A. 45:15-16.2a through N.J.S.A. 45:15-
16.2f.]" N.J.S.A. 45:15-16.2a(a).
Sella had to reinstate his salesperson's license by June 30, 2015. He did
not seek reinstatement until July 5, 2017, over two years later. Accordingly,
prior to reinstatement, he had to attend a licensed school and pass the State
examination prior to issuance of a further license. N.J.S.A. 45:15-9(e). Even if
the Commission had approved Sella's relicensure, prior to reinstatement he had
to pass the salesperson's license examination and complete the continuing
education requirements applicable to salesperson licensees in the preceding
licensure term prior to being relicensed. Ibid. To qualify for the examination,
Sella had to complete seventy-five hours in the aggregate of such courses of
education in real estate subjects at a school licensed by the Commission.
N.J.S.A. 45:15-10.1(a). He further had to complete not more than sixteen hours
of continuing education requirements imposed by the Commission. N.J.S.A.
A-1544-17T1 7 45:15-16.2a(a). Sella did not satisfy any of these mandatory requirements. His
years of experience as a real estate salesperson provide no exemption. See
Graham v. N.J. Real Estate Comm'n, 217 N.J. Super. 130, 137 (App. Div. 1987)
(noting that the Legislature amended N.J.S.A. 45:15-9 in 1983 as part of a
"comprehensive legislative plan designed to assure the public that real estate
licensees" are knowledgeable in the current real estate laws and industry trends).
Sella also did not make a sufficient showing that he was medically unable
to apply for reinstatement timely. His medical problems occurred in 2012.
There is no evidence he was medically unable to apply for reinstatement during
the two years following the expiration of his license, i.e., from June 30, 2013 to
June 30, 2015. None of Sella's medical records are dated between those dates.
Contrary to Sella's argument, the Commission considered his medical problems,
but properly concluded he failed to make a sufficient showing that he was
medically unable to apply for reinstatement of his salesperson's license during
the relevant time-period.
We are satisfied there is sufficient credible evidence in the record as a
whole supporting the Commission's decision, Rule 2:11-3(e)(1)(D), and the
decision is not arbitrary, capricious, or unreasonable. To the extent we have not
specifically addressed any of appellant's arguments, we conclude they are
A-1544-17T1 8 without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1544-17T1 9