Published Appellate Court Opinions

On leave granted, we reverse an April 10, 2015 Law Division order granting partial summary judgment in favor of plaintiffs, limited liability companies that qualify as urban renewal entities under the Long Term Tax Exemption (LTTE) Law, N.J.S.A. 40A:20-1 to -22. The City of Jersey City (City) claims that plaintiffs attempted to circumvent a tax abatement agreement by improperly changing their allowable profit rate so as to avoid paying the City any excess net profit. Plaintiffs' complaint sought a declaratory judgment against the City declaring that the parties' financial agreements incorporate future changes to the LTTE law, such that plaintiffs may calculate their "allowable profit rate" in accordance with the 2003 amendments to the LTTE Law. The City argued that the motion court misinterpreted the 2000 and 2001 financial agreements, warranting reversal. We find it contrary to fundamental public financing concepts for the Legislature to adjust the terms of municipal tax abatement contracts after the fact. See N.J.S.A. 40A:20-2, N.J.S.A. 40A:12A-2. We further find the Legislature did not intend to do so in the 2003 LTTE amendments.

We issued our unpublished opinion on July 22, 2016. At the direction of the Court, we now publish our opinion.

We hold that a municipal health ordinance that imposes time limitations on indoor smoking in a tobacco retail establishment is not superseded by the New Jersey Smoke-Free Air Act (the Smoke-Free Act), N.J.S.A. 26:3D-55 to -64. Appellants operated a cigar emporium where customers could purchase and smoke cigars and pipe tobacco. The store qualified as a "tobacco retail establishment" under the Smoke-Free Act. Thus, the Smoke-Free Act did not prohibit indoor smoking in such an exempt establishment.

The Township of West Caldwell, where the store operated, passed a health ordinance that limited indoor smoking to pre-purchase sampling not to exceed two minutes. Appellants challenged that ordinance arguing that the Smoke-Free Act superseded it. Appellants also argued that the ordinance was really a land use ordinance that did not apply to their pre-existing non-conforming use.

The Smoke-Free Act states that it supersedes "any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace . . . ." The provision, however, identifies three exceptions, which include: (1) "where smoking is prohibited by municipal ordinance under authority of [N.J.S.A.] 40:48-1 or 40:48-2[;]" (2) where smoking is prohibited "by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health[;]" and (3) "provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act." Here, the municipal ordinance was within the ambit of all three exceptions.

We also hold the ordinance is a valid municipal health ordinance and it is not a land use ordinance. Accordingly, we affirm the dismissal of appellants' action in lieu of prerogative writs, and the denial of their request to invalidate the municipal smoking ordinance.

An inmate serving a sentence for marijuana trafficking, filed a petition with the Director of the Division of Consumer Affairs seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV. The Director denied the petition, interpreting N.J.S.A. 24:21-3(c) as requiring that New Jersey to adhere to the federal Controlled Substances Act, 21 U.S.C.A. § 812(c), which lists marijuana as a Schedule I substance.

The court granted leave to appear as amicus curiae to L.B. on behalf of G.B., a minor child who takes medical marijuana to control epileptic seizures. When G.B.'s parents requested that the nurse at G.B.'s special education school administer her prescribed dosage of medical marijuana, the school refused citing marijuana's Schedule I classification which prohibits it on school grounds. G.B. was required to leave school at lunchtime to receive her medication and did not return to school, causing her to miss a half day of school each day. Amicus argued that the continued scheduling of marijuana as a Schedule I narcotic frustrates the purposes of the New Jersey Compassionate Use Medical Marijuana Act N.J.S.A. 24:6I-1 to 24:6I-16 and denies her the constitutionally protected right to a free and appropriate education.

The court found the Director erred in concluding that he lacked the authority to reclassify marijuana without a change in existing federal law and remanded the matter for a determination of whether marijuana has a high potential for abuse and, if so, whether that factor justifies continued classification as a Schedule I substance in the face of compelling evidence of accepted medical use and impediments to its legal use which may be attributable to its classification.

Judge Espinosa dissents, concluding that because the plain language of N.J.S.A. 24:21-3(c) requires the Director to adhere to federal schedules, his denial of the petition to remove marijuana from Schedule I was not arbitrary, capricious or unreasonable and should be affirmed. In addition, a review of extrinsic evidence, including New Jersey's legislative scheme and the federal Controlled Substances Act, 21 U.S.C.A. § 801 to § 904, support the conclusion that the Director lacks the discretion to change the classification of a controlled dangerous substance under the circumstances here.

In this appeal, the panel considered whether a tenant, exercising under its lease a contracted right of first refusal to adopt terms of a purchase contract for premises, is obligated to pay a commission to a broker who secured the prospective buyer for the landlord/seller.

The broker secured a prospective purchaser, who orally represented it would enter into a written commission agreement, separate and apart from the purchase contract, to pay the broker 1.5% of the purchase price. When the tenant exercised its option to purchase the premises, no commission agreement was included in the sales contract.

Because there was no contractual relationship, either express or implied, between the broker and the tenant, nor any other basis to impose an obligation to pay the commission, the panel affirmed the trial court's grant of summary judgment for the tenant. The panel also affirmed the dismissal of the tenant's counterclaim against the broker.

The trial court prohibited the admission of defendant's two prior drunk driving convictions, which the State sought to admit to prove defendant acted recklessly in his pending trial on the charge of first-degree vehicular homicide while intoxicated within 1000 feet of a school. On interlocutory appeal, the Appellate Division affirms due to the statutory inference of recklessness that arises when driving drunk, N.J.S.A. 2C:11-5(a), as well as the deferential review standard applied to a N.J.R.E. 404(b) decision.

In this appeal, we hold: (1) the Division of Child Protection and Permanency (Division) established all of the criteria for termination of parental rights in N.J.A.C. 30:4C-15.1(a), where defendant father essentially abandoned the child to the care of others, was deported and failed to maintain contact with the child for several years, the child formed a bond with her foster parent, and the Division's expert testified that the child would suffer severe and enduring harm if removed from the foster home, which defendant could not ameliorate; (2) the Vienna Convention of Consular Relations, April 23, 1963, 21 U.S.T. 77, did not require consular notice in this matter or the prior child protection proceedings because the child was a citizen of the United States; and (3) defendant father failed to establish that he was denied the effective assistance of counsel in the guardianship action.

Plaintiffs entered into health club contracts, which charged various forms of fees including late fees, collection administrative fees, in addition to dues. Plaintiffs filed suit asserting the form of their membership contracts and the fees defendant charged violated RISA, the Consumer Fraud Act (CFA), the Health Club Services Act (HCSA), and the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA). Plaintiffs sought class certification for all persons who entered into a membership agreement with defendant. Plaintiffs were denied class certification and defendant was granted summary judgment dismissing plaintiffs' complaint.

The Retail Installment Service Act (RISA), N.J.S.A. 17:16C-1(b) to -50, is a remedial act regulating charges associated with contracts entered into in New Jersey between a retail seller and a retail buyer evidencing an agreement to pay the retail purchase price of goods or services, which are primarily for personal, family or household purposes, or any part thereof, in two or more installments over a period of time. RISA applies to security agreements, chattel mortgages, conditional sales contracts, or other similar instruments, and any contract for the bailment or leasing of goods. RISA is to be construed liberally in favor of the consumer. Notwithstanding, the panel concluded health club contracts are not covered by RISA because they do not fall within the definition of "other similar instruments" of the sort contemplated by the statute.

These four related appeals from three vicinages concern efforts by plaintiffs (a nonprofit advocacy organization for disabled students, and the mother of a disabled student in the Camden City Public Schools) to obtain from several school districts copies of settlement agreements and records reflecting the provision of special services to other qualified students. The respective school districts resisted disclosure, citing statutory and regulatory provisions that generally safeguard the privacy of students in their records. The four cases generated conflicting decisions in the Law Division.

Plaintiffs' requests for records raise several novel issues of access under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-19, and the Federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g. The requests also implicate administrative regulations adopted under both the NJPRA and FERPA.

The panel holds that the respective plaintiffs in the Hillsborough, Parsippany-Troy Hills, and Cherry Hill cases are entitled to appropriately-redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of "bona fide researchers" within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15). The school districts shall not turn over the redacted records until they first provide reasonable advance notice to the affected student's parents or guardians.

We remand the Camden City case for further proceedings with respect to requested documents that also could refer to other students, but affirm the trial court's grant of access concerning records that exclusively mention the requestor's child.

In this declaratory judgment action, the court addresses legal issues of property damage coverage under a Commercial General Liability ("CGL") insurance policy. The coverage issues stem from lawsuits brought by a condominium association and unit owners to remediate construction defects within a residential building. The insured, an HVAC subcontractor, worked on the roof and elsewhere in the building. The defects concern the progressive infiltration of water within the building.

After the contractor was named as a third-party defendant in the underlying construction defect cases, it sought a defense and indemnity from the insurers that had issued CGL policies to it over successive policy periods. The trial court granted summary judgment to Selective, one of those insurers, finding that the property damage had already manifested before its policy period commenced.

In reversing summary judgment and remanding for further development of the record, the panel held: (1) a "continuous trigger" theory may be applied to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work; and (2) the "last pull" of that trigger occurs when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it.

The panel rejected the subcontractor's novel argument that the last pull of the trigger does not occur until there is proof that "attributes" the property damage to faulty conduct by the insured.

The court reverses defendant's drug possession conviction and holds that when the State refuses a defense attorney's diligent pre-indictment request to preserve and produce recordings, which the State or its law enforcement agencies created and are directly relevant to adjudicating an existing charge, the defendant is entitled to an adverse inference charge. In this drug case, despite the attorney's timely preservation request, the State allowed the automatic erasure of a booking room video that likely recorded the search of defendant, which allegedly uncovered the drugs he was charged with possessing. The court also holds the court erred by allowing the State to introduce evidence that defendant gave a false name during the earlier traffic stop.

In this appeal, the court addresses whether, in a pretrial detention hearing, defendant's pregnancy should be given greater consideration than any other pretrial detention factor in a judge's assessment under the Criminal Justice Reform Act (Act), N.J.S.A. 2A:162-15 to -26.

At the detention hearing, the trial judge noted defendant's extensive juvenile history, current serious second-degree charges and multiple failures to appear, and considered the Pretrial Services recommendation for no release. Although stating that all pertinent factors under N.J.S.A. 2A:162-20 weighed in favor of detention, the judge concluded that defendant's eight-week pregnancy required her release with conditions.

Because the trial judge abused his discretion in giving defendant's pregnancy greater weight than all other pertinent factors in his determination to release her, we reverse. Pregnancy, like any other medical condition, is considered only for its impact on the risk of a defendant posing a danger to the community, obstructing justice or failing to appear in court. N.J.S.A. 2A:162-20.

Appellant resigned in anticipation of employment with a different employer. However, before she began work with the second employer, it withdrew the offer and appellant applied for unemployment benefits. The Appeal Tribunal disqualified appellant from receiving benefits because she left employment without good cause attributable to the work. N.J.S.A. 43:21-5(a). Appellant argued she was eligible for benefits pursuant to a 2015 amendment, which provides the disqualification

shall not apply to an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminates the individual before that date, the seven-day period will commence from the specified date.

[L. 2015, c. 41 (emphasis added).]

The Board of Review affirmed, concluding the exception only applied if the employee "commences" work with the second employer.

The court affirmed, concluding the plain language of the statute and relevant legislative history demonstrated the exception applied only if the employee started employment with the second employer and was subsequently terminated. The court's opinion disagrees with another panel's interpretation of the amendment in McClain v. Board of Review, ___ N.J. Super. ___ (App. Div. 2017).

Appellant is subject to community supervision for life (CSL) under the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. His application to live in Sweden with his wife and children was summarily denied by the Parole Board, which treated it as a request to terminate CSL. The court reverses and remands to the Parole Board to consider the merits of appellant's application, including whether the Board could supervise or monitor his compliance with the conditions of CSL or impose special conditions.

In these back-to-back appeals, Bed Bath & Beyond, Inc. (BB&B) and its subsidiary BBB-VSI appeal the denial by the Treasury Department's Unclaimed Property Administration (UPA) of their claim for a refund of the value of certain unclaimed merchandise return certificates. These certificates were provided by BB&B and BBB-VSI to customers who returned merchandise without a receipt. They could only be redeemed for other merchandise or services, and not for cash. The court concludes that for BB&B certificates issued between July 1, 1999 to June 30, 2010, the unused balances of these certificates should have been refunded by the UPA because they were not "property" within the scope of New Jersey's Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 to -109 (UUPA). UPA's denial of a refund is reversed. For certificates issued by BBB-VSI from July 1, 2010 to June 30, 2011, the certificates are not "credit memoranda" but rather constitute "stored-value cards" under the plain language of the UUPA as it was amended in 2010. The UPA erred in not refunding the value of these certificates because they were prematurely remitted by BBB-VSI.

On the day of the final hearing, defendant filed an in limine motion that sought dismissal of plaintiff's complaint, arguing the alleged facts suggested only parenting differences and not domestic violence. The trial judge considered and granted the motion without taking testimony or providing plaintiff a full and fair opportunity to meaningfully respond. In condemning the filing of in limine motions that seek disposition of an action, particularly in domestic violence actions, and in finding the motion's rapid consideration and disposition-deprived plaintiff of due process, the court reversed and remanded for a final hearing.

The court affirms the dismissal on summary judgment of a volunteer firefighter's whistleblower claim against Colts Neck Volunteer Fire Company No. 2, and several individual officers and members of the fire company, finding volunteer firefighters are not entitled to the protections of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Because plaintiff is not an employee of the fire company, its vote to strip him of his membership in the organization in alleged retaliation for his letters to the fire company's fidelity carrier and Colts Neck's Executive Fire Council, even if true, is not a violation of CEPA.

Following a defendant's detention under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, the State generally has ninety days to indict defendant, N.J.S.A. 2A:162-22(a)(1)(a), and 180 days after the indictment to try defendant, N.J.S.A. 2A:162-22(a)(2)(a). Both periods allow for "excludable time" and for the State to move to continue detaining defendant provided the State can make certain showings. N.J.S.A. 2A:162-22(a)(1), (2).

In accordance with the CJRA, defendant has been detained in jail since early March 2017. He contends that the time for his trial under the speedy trial provisions of the CJRA is about to be reached. On leave granted, he appeals three orders that found a total of sixty-seven days of "excludable time," N.J.S.A. 2A:162-22(a), under the CJRA. We hold that our standard of review of the period to "be excluded in computing the time in which a case shall be indicted or tried" under N.J.S.A. 2A:162-22(b) is de novo. We also hold that we apply the traditional deferential standard of review to the trial court's factual findings concerning the amount of time excluded. Applying these standards, we affirm the orders that found sixty-seven days of excludable time.

The grand jury indicted defendant, a sitting Superior Court judge, for official misconduct, N.J.S.A. 2C:30-2b, and two counts of hindering the apprehension of her boyfriend, the subject of an active arrest warrant for robbery. N.J.S.A. 2C:29-3a(1) and (2). The indictment alleged that with a purpose to benefit herself and her boyfriend, defendant refrained from performing a duty inherent in the nature of her office, i.e., to "enforce an arrest warrant . . . by failing to adequately notify the . . . Police Department of . . . [her boyfriend's] intended appearance or presence at her residence." The hindering counts alleged defendant "harbored or concealed" her boyfriend and offered or provided aid to avoid discovery or apprehension or to effect escape. The Law Division judge granted defendant's motion to dismiss the official misconduct charge but denied her motion as to the two hindering counts. The court granted each party's motion for leave to appeal.

The court affirmed, holding that under the circumstances presented, the judge did not have a duty, inherent in her office, to notify police of her boyfriend's location or that he was shortly appearing at her home. The court also concluded the State had produced some evidence before the grand jury to support the indictment on the hindering counts.