The opinion
NOT FOR PUBLICATION WITHOUT THE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-2369-23
S.R.,1
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF COMMUNITY AFFAIRS,
DIVISION OF HOUSING AND
COMMUNITY RESOURCES,
Respondent-Respondent.
___________________________
Argued September 10, 2025 – Decided September 22, 2025
Before Judges Rose and Torregrossa-O'Connor.
On appeal from the New Jersey Department of
Community Affairs, Docket No. SRAP 101-22.
John M. Corcoran argued the cause for appellant (South
Jersey Legal Services, Inc., attorneys; Justine
Digeronimo, John M. Corcoran and Kenneth M.
Goldman, on the briefs).
1
We use initials consistent with the record provided on appeal. Accord R. 1:38-
3(c)(11).
Andrew Hedin, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Andrew Hedin, on the
brief).
PER CURIAM
Petitioner S.R. appeals from a March 13, 2024 final agency decision of
the Department of Community Affairs (DCA), adopting an initial decision of
the Administrative Law Judge (ALJ), which terminated S.R. from the State
Rental Assistance Program (SRAP).2 We affirm.
I.
Although both parties moved for summary decision before the ALJ,
because judgment was granted in favor of DCA, we consider the facts in a light
most favorable to S.R. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995). We summarize the pertinent facts and events from the record
provided on appeal, including the joint stipulation of material facts and the
certifications provided on behalf of S.R.
2
SRAP is "a rental assistance program for low-income individuals or
households, who are not recipients of Federal housing choice vouchers under
the Housing Choice Voucher Program (formerly known as the 'Section 8
Housing Assistance program')." N.J.A.C. 5:42-1.1(a); N.J.S.A. 52:27D-287.1.
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2
Since 2010, S.R.'s rent for his one-bedroom apartment in Sea Girt was
subsidized by SRAP. In 2016, S.R. pled guilty to fourth-degree criminal sexual
contact, N.J.S.A. 2C:14-3(b), as amended from second-degree sexual assault by
contact, N.J.S.A. 2C:14-2(b), for intentionally touching a twelve-year-old girl's
sexual or intimate parts. Accordingly, S.R. was classified as a Tier I sex
offender under Megan's Law, N.J.S.A. 2C:7-1 to -23, and therefore was required
to maintain lifetime sex offender registration with the state.
On February 22, 2017, DCA issued an initial decision terminating S.R.
from SRAP for violating the program's requirements because he was a Megan's
Law registrant. In its decision, DCA noted it "may deny admission for an
applicant or terminate assistance for a participant . . . . [i]f any member of the
family has committed . . . [a] corrupt or criminal act."
S.R. timely requested an informal hearing contesting his termination.
Thereafter, DCA issued an amended initial decision terminating S.R. from
SRAP because S.R. "ha[d] been arrested and convicted of . . . criminal sexual
contact."
A-2369-23
3
In August 2022, the matter was transmitted to the Office of Administrative
Law as a contested case.3 In an October 4, 2022, letter to DCA, S.R.'s attorney
sought a reasonable accommodation, under the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 to 12213, requesting DCA withdraw S.R.'s
termination from SRAP. In the letter, S.R.'s attorney stated S.R. "has been
developmentally disabled his entire life" and his "mental impairments
significantly impacted him [sic] committing a sexual offense in 2013." S.R.'s
counsel argued S.R. continued to receive psychological treatment for his
disability, he was "otherwise in good standing with the DCA and his current
landlord," and the "modification would not 'fundamentally alter' the nature of
the DCA's SRAP program."
In February 2023, DCA denied S.R.'s request for an accommodation under
the ADA. In its correspondence, DCA stated an accommodation would "directly
contravene" N.J.A.C. 5:42-4.1(g), which provides: "DCA shall deny admission
or terminate [SRAP] to sex offenders subject to a lifetime registration
requirement under a state sex offender registration program."
3
As the ALJ noted in her decision, the record does not explain the five-year
delay in transmitting the case. Nor do the parties provide an explanation on
appeal.
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4
On September 18, 2023, both parties simultaneously moved for summary
decision before the ALJ, who decided the matter on the papers. In support of
his claimed disability and request for reasonable accommodation, S.R. provided
certifications of his psychiatrist, mother, pastor, and community resource
workers. DCA did not file opposing certifications.
In her initial decision that followed, the ALJ concluded DCA did not abuse
its discretion in terminating S.R. from SRAP in view of his conviction and sex-
offender registration requirement. The ALJ recognized "the present language of
N.J.A.C. 5:42-4.1(g) removes all discretion" from DCA and now "compel[s
DCA] to terminate S.R." from SRAP in view of his lifetime sex offender
registration requirement under Megan's Law.
Noting DCA did not counter S.R.'s certifications and reports, the ALJ
further found S.R. established his disability. The ALJ stated DCA also failed to
use "the interactive process in response to [S.R.'s] request" for a reasonable
modification under the ADA to determine if any accommodation was possible.
Although the ALJ found DCA technically violated the interactive process,
she concluded that analysis would have been "unfruitful" because DCA was
compelled to terminate S.R. from SRAP under N.J.A.C. 5:42-4.1(g). The ALJ
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5
determined, notwithstanding S.R.'s disability, S.R. "[wa]s not exempt from the
requirement of N.J.A.C. 5:42-4.1(g)."
On December 12, 2023, S.R. filed exceptions to the initial decision,
arguing the ALJ's decision was "arbitrary, capricious, unreasonable, contrary to
law, and . . . otherwise not supported by the substantial credible evidence ."
Claiming he "made a prima facie case for a reasonable accommodation," S.R.
requested DCA rescind his termination from SRAP.
On March 13, 2024, DCA's Acting Commissioner issued a final decision,
adopting the ALJ's conclusion that N.J.A.C. 5:42-4.1(g) compelled DCA to
terminate S.R. from SRAP. The Acting Commissioner stated "the ALJ correctly
held that the current version of N.J.A.C. 5:42-4.1(g) controls in this case and
compelled termination because [S.R.] is a lifetime registrant sex offender."
However, the Acting Commissioner rejected the ALJ's "additional
background facts, and the conclusions that [S.R.] has a disability," noting a
factual hearing was not conducted "to question the authors" of the letters and
certifications submitted by S.R. in support of his disability. The Acting
Commissioner thus found the ALJ's finding on S.R.'s disability was
unnecessary. The Acting Commissioner reasoned "[t]he current regulation
requires [DCA] to terminate [S.R.] from SRAP because he is a lifetime sex
A-2369-23
6
offender registrant; there is no reasonable accommodation that could have been
made in this case because there is no middle ground between termination and
non-termination." The Acting Commissioner concluded "any accommodation
would completely eviscerate the purpose of the regulation."
On appeal, S.R. argues DCA erroneously concluded N.J.S.A. 5:42-4.1(g)
is not preempted by the ADA and maintains he is entitled to a reasonable
modification. S.R. contends "there is no dispute" he is disabled and would
otherwise meet all the essential requirements to receive SRAP benefits. In S.R.'s
view, his criminal conviction was "the direct result of his diagnosed disabilities"
as his mental impairment led him to engage in criminal behavior. S.R. therefore
asserts DCA wrongfully denied rental assistance based on his disability.
II.
Our review of an agency decision is well settled. Ordinarily, we defer to
the Commissioner's determination unless it was "arbitrary, capricious, or
unreasonable." Melnyk v. Bd. of Educ. of the Delsea Reg'l High Sch. Dist., 241
N.J. 31, 40 (2020). In making that determination, we consider:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) 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
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erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In
re Carter, 191 N.J. 474, 482-83 (2007)).]
An agency decision will be upheld "unless there is a clear showing that
(1) the agency did not follow the law; (2) the decision was arbitrary, capricious,
or unreasonable; or (3) the decision was not supported by substantial evidence."
In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,
422 (2008). In determining whether agency action is arbitrary, capricious, or
unreasonable, our role is restricted to three inquiries:
(1) whether the agency action violates the enabling act's
express or implied legislative policies; (2) whether
there is substantial evidence in the record to support the
findings upon which the agency based application of
legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred
by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors.
[R.S. v. Div. of Med. Assistance and Health Servs., 434
N.J. Super. 250, 261 (App. Div. 2014) (quoting H.K. v.
Div. of Med. Assistance and Health Servs., 379 N.J.
Super. 321, 327 (App. Div. 2005)).]
We note, however, a court is "in no way bound by [an] agency's
interpretation of a statute or its determination of a strictly legal issue." Carter,
191 N.J. at 483 (quoting Mayflower Sec. Co., Inc v. Bureau of Sec. in Div. of
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8
Consumer Affs., 64 N.J. 85, 93 (1973)). "Because an agency's determination on
summary decision is a legal determination, [appellate] review [of that decision]
is de novo." L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 204 (2015).
The standard for summary decision motions pursuant to N.J.A.C. 1:1-12.5
is "substantially the same as that governing a motion under Rule 4:46-2 for
summary judgment in civil litigation." Id. at 203. As such, an agency must
ascertain "whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in consideration of the
applicable evidentiary standard, are sufficient to permit a rational factfinde r to
resolve the alleged disputed issue in favor of the non-moving party." Id. at 204
(quoting Brill, 142 N.J. at 523); see also N.J.A.C. 1:1-12.5(b) (providing a
summary decision "may be rendered if the papers and discovery which have
been filed 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 prevail
as a matter of law").
However, our review of an agency's summary decision differs slightly
from our de novo review of a court's decision on summary judgment. See St.
Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005). Although we employ a de
novo standard of review to an agency's determination that there are no genuine
A-2369-23
9
issues of material fact, we aim to "give substantial deference to the interpretation
an agency gives to a statute that the agency is charged with enforcing." Ibid.
"DCA has adopted the procedures it follows in administering the [SRAP]
as administrative rules." Bouie v. N.J. Dep't of Cmty. Affs., 407 N.J. Super.
518, 529 n.2 (App. Div. 2009) (citing N.J.A.C. 5:42-1.1 to -7.3). The
Commissioner of DCA "acts as the final decision-maker in proceedings
involving the termination of rental subsidies under" SRAP. Id. at 530 n.3. When
denying or terminating assistance to an individual, DCA must provide the
grounds for doing so and the process to request a fair hearing. N.J.A.C. 5:42-
4.3(a).
N.J.A.C. 5:42-4.1(j) provides, in pertinent part: "DCA may deny
assistance to an applicant or terminate assistance to a participant family if any
member of the family has committed, based on the preponderance of the
evidence[,] . . . . a violent criminal act." In 2018, the regulation was amended,
adding: "DCA shall deny admission or terminate assistance to sex offenders
subject to a lifetime registration requirement under a state sex offender
registration program." N.J.A.C. 5:42-4.1(g).
Title II of the ADA provides "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
A-2369-23
10
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity." 42 U.S.C. § 12132 (emphasis
added). The ADA regulations require public entities make "reasonable
modifications in policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would fundamentally alter
the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7)(i)
(emphasis added). "Title II 'requires only "reasonable modifications" that would
not fundamentally alter the nature of the service provided, and only when the
individual seeking modification is otherwise eligible for the service.'" Lasky v.
Moorestown Twp., 425 N.J. Super. 530, 539 (App. Div. 2012) (quoting
Tennessee v. Lane, 541 U.S. 509, 532 (2004)); see also 42 U.S.C. § 12131(2).
With these governing legal principles in view, we reject S.R.'s preemption
argument. DCA does not dispute the ADA preempts conflicting state law. As
DCA correctly argues, however, the issue turns on whether S.R. was terminated
from SRAP pursuant to his disability or his Megan's Law registration.
It is undisputed S.R. was convicted of criminal sexual contact with a minor
and is subject to lifetime sex offender registration under Megan's Law. The
plain language of N.J.A.C. 5:42-4.1(g) makes clear DCA must terminate a SRAP
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participant who is required to maintain lifetime sex offender registration.
Accordingly, we discern no error in DCA's final decision concluding S.R. is
ineligible to receive SRAP benefits in view of his lifetime Megan's Law
registration status.
Although we are satisfied DCA properly terminated S.R.'s SRAP benefits,
for the sake of completeness, we address S.R.'s contention he was terminated
from SRAP because of his disability and he was entitled to an accommodation
under the ADA. Citing his unrefuted certifications, S.R. contends "there is no
dispute" he is disabled and he "meet[s] all essential [SRAP] requirements." S.R.
argues his criminal conviction was "the direct result of his diagnosed
disabilities" because his mental impairment led him to engage in criminal
behavior. S.R. therefore argues he established a prima facie case of disability
discrimination. S.R. asserts DCA failed to show his proposed accommodation
"would fundamentally alter the nature of the SRAP program."
To make a prima facie showing of disability discrimination under Title II
of the ADA for failure to make a reasonable accommodation, a party must show:
"(1) he [or she] is a qualified individual; (2) with a disability; (3) [who] was
excluded from participation in or denied the benefits of the services, programs,
or activities of a public entity, or was subjected to discrimination by any such
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entity; (4) by reason of his [or her] disability." Haberle v. Troxell, 885 F.3d
170, 178-79 (3d Cir. 2018) (second alteration in original) (quoting Bowers v.
Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 553 n.32 (3d Cir. 2007)).
In the present matter, S.R. failed to establish DCA terminated his SRAP
assistance "by reason of his disability." See ibid. Although S.R.'s certifications
aver his sexual conduct was the result of his disability, S.R.'s purported
disability does not excuse his criminal conviction, which subjected him to
lifelong Megan's Law registration. Nor do his certifications otherwise "link" his
termination from SRAP to his disability, as S.R. contends. Accordingly, we
discern no error in DCA's decision terminating S.R. from SRAP.
To the extent not addressed, S.R.'s remaining arguments lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Pursuant
to our governing standard of review, see Melnyk, 241 N.J. at 40, we affirm
substantially for the reasons expressed in the Acting Commissioner's cogent
final decision, which "is supported by sufficient credible evidence on the record
as a whole," R. 2:11-3(e)(1)(D).
Affirmed.
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