                                NOT FOR PUBLICATION WITHOUT THE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

hearing.

      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.

            [Id. (emphasis added).]

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
