JUST PUPS LLC VS. BOROUGH OF EMERSON (L-5052-16, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3375-16T4
JUST PUPS LLC,
Plaintiff-Appellant,
v.
BOROUGH OF EMERSON and
JANE DIETSCHE, Clerk of the
Borough of Emerson,
Defendants-Respondents.
____________________________
Argued November 28, 2018 – Decided January 7, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5052-16.
Anthony X. Arturi argued the cause for appellant.
John A. Stone argued the cause for respondent
(DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys;
John A. Stone, of counsel and on the brief).
PER CURIAM
Plaintiff pet shop Just Pups LLC appeals from the court's February 1, 2017
order granting defendants Borough of Emerson (Borough) and Jane Dietsche's
motion for partial summary judgment. We affirm substantially for the reasons
articulated in Judge Lisa Perez Friscia's twenty-six-page written opinion.
Each year from 2009 to 2016, the Borough issued plaintiff a kennel
license. Following a hearing on July 12, 2016, the council voted unanimously
to deny plaintiff's application for a pet shop license. Plaintiff filed a complaint
in lieu of prerogative writs pursuant to Rule 4:69. After the court dismissed the
complaint, plaintiff appealed.
Plaintiff argues (1) the court erred in its interpretation of N.J.S.A. 4:19-
15.8(a) and (d) by finding the statute allows the municipal clerk discretion to
grant or deny an application for a pet shop license and (2) the Borough acted
illegally in conducting a hearing on plaintiff's application. A review of the
record and analysis of N.J.S.A. 4:19-15.8 demonstrates the statute affords the
Borough discretion to conduct a hearing and determine whether an application
for a pet shop license should be denied.
In August 2009, plaintiff was issued a certificate of occupancy for retail
puppy sales, supplies, toys, and accessories, and has operated a pet shop since
then. Each year from 2009 to 2016, the Borough issued plaintiff a license to
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operate a kennel pursuant to Emerson, N.J., Code § 140-7 (2016),
https://www.ecode360.com/11485938.1 In May 2016, the Borough advised
plaintiff its kennel license was set to expire, and if plaintiff was "interested in
seeking a new license for the period of July 1, 2016 through June 30, 2017, [to]
kindly complete the attached application and required information . . . ."
At the end of June 2016, plaintiff filed an application for a pet shop license
with the Borough pursuant to N.J.S.A. 4:19-15.8. The Borough wrote plaintiff
that the mayor and council would hold a hearing to determine whether to grant
or deny the application.2 The letter informed plaintiff that, at the hearing,
plaintiff would "be provided the opportunity to give oral or written testimony,
offer expert testimony, and . . . be represented by an attorney." Plaintiff then
filed a complaint in lieu of prerogative writs against defendants, alleging the
Borough was required to issue a pet shop license upon plaintiff's application but
failed to do so.
1
A kennel is defined as "[t]he conducting of the business of harboring, raising
or otherwise dealing in and with dogs, and any person harboring more than five
dogs shall be presumed to conduct a kennel." § 140-1. Plaintiff maintains that
it does not qualify as a kennel, although it was licensed as such for several years.
2
Plaintiff's statement of material facts emphasizes the fact that the Borough has
no ordinance regulating pet shops, only an ordinance regulating kennels, which
should not apply to plaintiff. The Borough, however, is authorized to regulate
pet shop licensing, and did so here, pursuant to N.J.S.A. 4:19-15.8.
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The Borough held a hearing on plaintiff's application on July 12, 2016.
Plaintiff objected to the hearing, arguing no ordinance authorized the Borough
to conduct a hearing on plaintiff's license application. The Borough responded
it was conducting the hearing pursuant to N.J.S.A. 4:19-15.8(d). At the hearing,
plaintiff's counsel introduced evidence and cross-examined witnesses.
The Borough's animal control officer, Carol A. Taylor, testified that
plaintiff "regularly puts [the puppies] in an unsafe and cruel situation[]"; and a
registered environmental health specialist, Darlene Mandeville, testified about
various defects in the condition of plaintiff's pet shop. Members of the public
testified at the hearing about the poor condition and health of the puppies sold
by plaintiff, both in Emerson and in its Paramus location. At the conclusion of
the hearing, the council voted unanimously to deny plaintiff's application for a
pet shop license.
Following the hearing, plaintiff amended its complaint in lieu of
prerogative writs. In a well-reasoned written decision, Judge Friscia granted
defendants' motion for partial summary judgment. In granting defendants'
motion, Judge Friscia first found "[a]ccording to the plain language of the
statutory scheme under review, . . . the Borough is vested with the decision
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whether or not to issue a license under N.J.S.A. 4:19-15.8." Judge Friscia
reasoned:
Reading the statute as a whole, the municipal discretion
to decline a license and the issues of review in
contemplation of license issuance are clearly
established. The Borough has authority to deny or
revoke a license, pursuant to N.J.S.A. 4:19-15.8(c), for
a pet shop's "failure . . . to comply with the rules and
regulations of the state department or local health
authority." New Jersey courts have found that "the
power to grant licenses connotes the power of denial for
good cause, in keeping with and to subserve the
declared legislative ends." Librizzi v. Plunkett, 126
N.J.L. 17, 23 (1940). The municipality is the governing
body authorized to license pet shops within its borders,
not the clerk. Therefore, reading subsection (a) and (d)
in harmony in consideration of the statutory purposes
and liberal construction in the favor of the municipality,
the Borough was within its statutory rights to hold a
hearing to consider and deny Just Pups' license. The
legislative purpose in requiring licenses for pet shops is
the health, welfare and safety of animals and people.
Additionally, the court finds the hearing appropriately
provided plaintiff with the right to call witnesses,
introduce evidence and cross-examine witnesses.
Plaintiff also had been provided the opportunity to have
an independent health officer review the store and its
history, who could have been provided to testify, but
chose not to.
Judge Friscia also found "the governing body relied on standards as set
forth in the statute and that the evidence relied on was permissive." She
reasoned:
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[T]he Borough appropriately considered evidence from
a qualified animal control officer and an environmental
health specialist, who each had direct interaction and
oversight of the Just Pups' business operations and
handling of dogs. Each testified to multiple issues
regarding health code deficiencies and extensive
oversight issues. The court finds that the testimony of
witnesses presented at the Borough hearing, which Just
Pups' counsel had an opportunity to cross-examine,
presented valid reasons to conclude that issuing a
license to Just Pups violated . . . the purpose of N.J.S.A.
4:19-15.8. The governing body's decision to decline to
issue the license, to safeguard the health of animals and
the people who interact with those animals, was
substantiated by the record. Therefore the court finds
that plaintiff has failed to overcome the presumption of
validity afforded to the Borough's action and plaintiff
has failed to demonstrate that the denial of Just Pups'
license was arbitrary, capricious or unreasonable.
The parties entered a stipulation of dismissal of the remaining counts of
the amended complaint and counterclaim without prejudice, thus rendering
Judge Friscia's order final. "[A] dismissal without prejudice of either an issue
or a party . . . with the contemplation of commencement of a subsequent action
and entered for the purpose of rendering an otherwise interlocutory order
appealable will preclude the finality and hence the appealability of that order."
Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.4 on R. 2:2-3 (2019);
see also Grow Co. v. Chokshi, 403 N.J. Super. 443, 460-61 (App. Div. 2008)
(quoting CPC Intern., Inc. v. Hartford Acc. & Indem. Co., 316 N.J. Super. 351,
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366 (App. Div. 1998)) (noting that "the dismissal of claims without prejudice
must not become a device 'to foist jurisdiction upon this court' over what is, in
reality, an interlocutory order"); Silviera-Francisco v. Bd. of Educ. of City of
Elizabeth, 224 N.J. 126, 143 (2016) (noting that "the Appellate Division has
repeatedly admonished parties for attempting to disguise an interlocutory order
. . . as final for purposes of pursuing an appeal as of right").
The stipulation agreement provides for reinstatement of plaintiff's
remaining claims "if [Judge Friscia's] February 1, 2017 [o]rder . . . is vacated or
reversed on appeal . . . ." Because we affirm Judge's Friscia's order, the
stipulation agreement will not have the effect of reinstating plaintiff's claims.
Nonetheless, because only partial summary judgment was granted, the
subsequent stipulation agreement could be viewed as an attempt "to disguise an
interlocutory order" as a final order. The issues have been fully briefed and we
choose to resolve the matter while reiterating disapproval for such stipulation
agreements.
When evaluating whether summary judgment was proper, we conduct a
de novo review, applying the same standard as the trial court. Templo Fuente
de Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 224 N.J. 189, 199
(2016). Summary judgment must be granted "if the pleadings, depositions,
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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." R.
4:46-2(c).3
Judge Friscia correctly found N.J.S.A. 4:19-15.8 affords the Borough
discretion to conduct a hearing and determine whether an application for a pet
shop license should be granted. Moreover, the Borough's hearing process
properly afforded plaintiff due process.
Our primary purpose in construing a statute is to "identify and implement
the legislative intent." Smith v. Millville Rescue Squad, 225 N.J. 373, 389
(2016). Thus, when interpreting a statute, we must first consider the plain
language of the statute, which is "the best indicator of that intent." Ibid. (quoting
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
In doing so, we should "ascribe to the statutory words their ordinary
meaning and significance, and read them in context with related provisions so
3
Rule 4:69-2 addresses motions for summary judgment where a complaint in
lieu of prerogative writs has been filed. The Rule provides that a motion for
summary judgment may be filed "at any time after the filing of the complaint,
by motion supported by affidavit and with briefs . . . ." R. 4:69-2. See also 388
Rt. 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318,
338-39 (2015).
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as to give sense to the legislation as a whole." DiProspero, 183 N.J. at 492(citation omitted); see also Tumpson v. Farina, 218 N.J. 450, 467 (2014)
(quoting Wilson v. City of Jersey City, 209 N.J. 558, 572 (2012)) (reasoning
"[e]ach statutory provision must be viewed not in isolation but 'in relation to
other constituent parts so that a sensible meaning may be given to the whole of
the legislative scheme'"); N.J.S.A. 1:1-1 (in interpreting statutes, "words and
phrases shall be read and construed with their context, and shall, unless
inconsistent with the manifest intent of the [L]egislature[,] . . . be given t heir
generally accepted meaning, according to the approved usage of the language").
N.J.S.A. 4:19-15.8 provides, in pertinent part,
a. Any person who keeps or operates or proposes to
establish a kennel, a pet shop, a shelter, or a pound shall
apply to the clerk . . . in the municipality where such
establishment is located, for a license entitling him to
keep or operate such establishment.
....
c. 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
. . . after the owner of the pet shop has been afforded a
hearing . . . .
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d. The municipality may issue a license for a pet shop
that permits the pet shop to sell pet supplies for all types
of animals, including cats and dogs, and sell animals
other than cats and dogs but restricts the pet shop from
selling cats or dogs, or both.
[(emphasis added).]
As Judge Friscia correctly found, pursuant to N.J.S.A. 4:19-15.8, the
Borough was vested with the discretion to grant or deny plaintiff's application
for a pet shop license. Plaintiff relies on N.J.S.A. 4:19-15.2, 15.3(a), 15.4, and
15.5, which apply only to licensing of the actual animal, not the licensing of a
pet shop. As such, plaintiff's argument regarding the "overall pet licensing
scheme of N.J.S.A. 4:19-15" is unpersuasive.
The plain language of N.J.S.A. 4:19-15.8 read in the context of the
statute's manifest purpose establishes that the licensing of a pet shop is
permissive, not mandatory. Subsection (a) sets forth the requirements that an
applicant shall fulfill in order to submit a complete application for a pet shop
license. While subsection (a) does not delineate how the application will be
reviewed, subsection (d) establishes the permissive nature of a pet shop license.
Subsection (d) provides, "[t]he municipality may issue a license for a pet shop
that . . . restricts the pet shop from selling cats or dogs, or both." N.J.S.A. 4:19-
15.8(d). Plaintiff argues that this subsection should be narrowly construed to
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mean only that the Borough may "limit what pets can be sold" after granting a
pet shop license. Under the plain wording of N.J.S.A. 4:19-15.8 (d), the
Borough could have restricted a pet shop license to prevent the sale of dogs, thus
eliminating the business of Just Pups. To read the statute to require that the
Borough restrict the license rather than deny the license is nonsensical. N.J.S.A.
4:19-15.8 affords the Borough the discretion whether to grant or deny plaintiff's
application for a pet shop license.
Plaintiff also argues the hearing process set forth in the statute pertains
only to license revocation, not license application, and, therefore, was
improperly applied to plaintiff's application for a pet shop license. Pursuant to
N.J.S.A. 4:19-15.8(c), a pet shop license is "subject to review by the
municipality, upon recommendation by the Department of Health or the local
health authority" for violations of State or local regulations "after the owner of
the pet shop has been afforded a hearing . . . ."
Using plaintiff's logic, the Borough would have to grant and then begin
revocation proceedings pursuant to subsection (c) for every unwarranted pet
shop license. This would also allow an establishment whose pet shop license
had previously been revoked to reapply and obtain a license without review by
the municipality.
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Such a process is unreasonable and inefficient and would undercut the
legislative purpose to protect the health, welfare, and safety of animals and
people. The Borough acted well within its discretion in holding a hearing to
review plaintiff's application for a pet shop license, and subsequently deny the
license.
Affirmed.
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