NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0117-19T4

AMERICARE EMERGENCY 

MEDICAL SERVICE, INC.,

Plaintiff-Respondent,

v.

THE CITY OF ORANGE TOWNSHIP, 

BELL MEDICAL TRANSPORTATION,

TOWNSHIP OF IRVINGTON, and

TOWNSHIP OF SOUTH ORANGE,

Defendants,

and

STATE OF NEW JERSEY

DEPARTMENT OF HEALTH,

OFFICE OF EMERGENCY 

MEDICAL SEVICES, JAMES

SWEENY, SCOTT PHELPS, and

ERIC HICKEN,

Defendants-Appellants, 

______________________________________

Argued telephonically April 1, 2020 –

Decided May 27, 2020

Before Judges Whipple, Gooden Brown, and Mawla.1

 

1

 Judge Mawla did not participate in oral argument. He joins the opinion with 

counsel's consent. R. 2:13-2(b).
A-0117-19T4

2

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Essex County, 

Docket No. L-2397-19.

Stephen J. Slocum, Deputy Attorney General, argued 

the cause for appellants (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, of counsel; 

Deborah E. Shane-Held and Patrick Jhoo, Deputy 

Attorneys Generals, on the briefs).

Shay S. Deshpande argued the cause for respondent 

(Franzblau Dratch, PC, attorney; Shay S. Deshpande, 

of counsel and on the brief; Daniel A. Lebersfeld, on

the brief).

The opinion of the court was delivered by 

WHIPPLE, J.A.D. 

On leave granted, the New Jersey Department of Health (Department) 

Office of Emergency Medical Services (OEMS), appeals from a July 16, 2019 

Law Division order lifting the summary suspension of plaintiff AmeriCare 

Emergency Medical Service, Inc.'s (AmeriCare), license to operate as an 

emergency medical service provider and permitting an action to proceed under 

the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (CRA). Under the CRA, 

"the party alleging a claim must show a violation of a substantive right or that 

someone 'acting under color of law' interfered with or attempted to interfere with a 

substantive right." State v. Quaker Valley Farms, LLC, 235 N.J. 37, 64 (2018). 

Since AmeriCare did not make that showing, we reverse. 
A-0117-19T4

3

AmeriCare, an entity that provides emergency transportation services, is 

licensed to operate mobility assistance vehicles (MAV), basic life support 

vehicles (BLS), and specialty care transport unit vehicles (SCTU). AmeriCare 

operates six BLS/SCTU vehicles and one MAV vehicle. OEMS, through the 

Department, has the legislative authority through its rules and regulations to 

grant, renew, and revoke licenses to entities engaged in performing emergency 

medical transportation services. OEMS also has the authority to issue summary 

suspensions of licenses issued to entities that conduct such services. 

In June 2018, OEMS conducted an audit of AmeriCare's overall 

compliance with applicable regulations as well as an inspection of the 

emergency vehicles under their operation. OEMS filed a summary suspension 

of AmeriCare's license to operate and initiated revocation proceedings asserting 

AmeriCare engaged in a variety of regulatory violations relating to specific

vehicles and the company's overall operation such as the credentialing of 

employees, record keeping, and the maintenance and security of patient-related 

records. In February 2019, the summary suspension and proposed revocation 

was withdrawn without a formal enforcement consequence imposed. 

On May 30, 2019, OEMS received a complaint that doors on an 

AmeriCare vehicle were falling off their hinges, oxygen cylinders were empty 

due to system leaks, and wheels were falling off an AmeriCare ambulance while 
A-0117-19T4

4

in use. The complainant informed OEMS that those same vehicles were 

responsible for providing emergency medical services for the City of Irvington 

and Village of South Orange. At the time of the initial complaint, one of 

AmeriCare's BLS/SCTU vehicles, Vehicle 5261, was deemed out of service by 

the Department for having an inoperable front emergency grill light, missing 

protective jackets, and a missing fire extinguisher inspection tag. 

In response, on May 31, 2019, OEMS conducted an unannounced 

inspection on two of AmeriCare's BLS/SCTU vehicles, Vehicles 5256 and 5258. 

The inspectors found serious safety concerns and the vehicles were deemed out 

of service. Vehicle 5256 had expired vehicle credentials, a loose rear step, an 

unsecure oxygen retention system, a balding front tire, an improperly attached 

side door, a hole in the passenger seat making it pervious to blood borne 

pathogens, and a map light with exposed wires. OEMS also found similar 

violations with Vehicle 5258 including a balding front tire, unsecured portable 

oxygen, a missing front license plate, a hole in the arm rest of the front passenger 

seat making it pervious to blood borne pathogens, a dashboard radio which falls 

out while driving, and an unsanitary portable suction unit. 

These violations prompted OEMS to conduct an unannounced audit of 

AmeriCare on June 3, 2019. The investigators claimed they visited AmeriCare's 

principal place of business, a location in Dumont, but found no AmeriCare 
A-0117-19T4

5

official. The investigators visited Americare's location in Irvington, where they 

found Vehicle 5259, which they inspected and placed out of service after finding 

serious safety concerns. After the inspection, OEMS scheduled a meeting with 

an AmeriCare employee, but the meeting did not take place because the 

employee never arrived. 

On June 4, 2019, OEMS, unable to reach representatives of AmeriCare, 

placed AmeriCare's remaining vehicles out of service to ensure public health, 

safety and welfare. OEMS also contacted the appropriate dispatch centers as 

well as both the City of Irvington and the Village of South Orange. On June 5, 

2019, South Orange Village terminated its contract with AmeriCare. 

After learning OEMS was contacting AmeriCare's clients, Fabrizio 

Bivona, AmeriCare's founder and CEO, contacted OEMS and arranged for the 

re-inspection of its vehicles. On June 10 and 12, 2019, additional inspections 

were performed and Vehicles 5261, 5256, and 5259 were placed back into 

service after inspection. The remaining vehicles were not restored at that time. 

AmeriCare argues that OEMS refused to inspect and pass the remaining vehicles 

despite failing to identify any violations. AmeriCare further asserts that an 

OEMS representative spoke with a city attorney for Orange Township noting 

that over fifty percent of AmeriCare's vehicles remained out of service.
A-0117-19T4

6

Despite three of the vehicles being reinstated, on June 18, 2019, the 

Department summarily suspended AmeriCare's license to operate emergency 

medical transportation services. The suspension letter contained a detailed 

history of the inspection of AmeriCare's vehicles, as well as a description of the 

other violations OEMS found during the investigation. 

Ultimately, the summary suspension forced AmeriCare to stop operating 

all vehicles and OEMS notified AmeriCare that it had the "right to apply to the 

Commissioner of the [Department] for emergency relief to contest this summary 

suspension," and that "failure to submit a request for a hearing within [thirty] 

days from the date of this Notice shall result in the continued summary 

suspension of your . . . provider licenses . . . ." AmeriCare asserts it did not 

receive the summary suspension letter until a week after the letter was finalized.

Rather than file for emergent relief, AmeriCare filed an order to show 

cause for injunctive relief and an amended complaint in lieu of prerogative writs 

in the Law Division seeking to add OEMS and Scott Phelps, Director of OEMS, 

Eric Hicken, Administrator of OEMS, and James Sweeney, Chief Investigator, 

as defendants in its prerogative writs complaint. AmeriCare was already 

involved in litigation which alleged public bidding violations against the City of 

Orange and Bell Medical Transportation (Bell). In its bid litigation against the 

City of Orange and Bell, AmeriCare alleged that in response to a request by the 
A-0117-19T4

7

City of Orange to submit sealed bids for a contract to perform emergency 

medical services, AmeriCare submitted the lowest bid but the contract was 

awarded to Bell. The City of Orange and AmeriCare were allegedly in 

settlement negotiations when, according to AmeriCare, OEMS investigator 

Sweeney began inspecting its vehicles and OEMS took two vehicles out of 

service. AmeriCare further asserted OEMS advised its clients that AmeriCare 

was out of business, which ultimately resulted in the loss of municipal contracts. 

AmeriCare asserts OEMS wrongfully notified its clients of AmeriCare's 

suspension before it notified AmeriCare and OEMS's actions were invalid and 

designed to interfere with its business in violation of its civil rights under the 

CRA and 42 U.S.C. § 1983.

On July 1, 2019, the Law Division judge heard oral argument on the order 

to show cause and motion for injunctive relief. The court found it had 

jurisdiction to issue the relief sought and ordered that the summary suspension 

be lifted to permit AmeriCare to operate the vehicles that were re-inspected and 

re-authorized by OEMS, provided they remained in compliance with the 

applicable legal standards. The court also ordered OEMS to re-inspect 

AmeriCare's remaining vehicles which remained out of service. The court 

rejected OEMS's argument that AmeriCare was required to exhaust its 

administrative remedies and on July 16, 2019, entered an order memorializing 
A-0117-19T4

8

its July 2, 2019 decision. OEMS sought a stay of the trial court's order on July 

17, 2019, and the application was denied. On July 29, 2019, OEMS moved for 

leave to appeal and for a stay of the trial court’s July 16 order, which we granted. 

This appeal followed.

I.

On appeal, OEMS asserts we should vacate the trial court's July 16 order 

for the following reasons: 1) plaintiff failed to exhaust its administrative 

remedies; 2) even if plaintiff were not required to exhaust its administrative 

remedies, the trial court lacked jurisdiction to consider plaintiff's claims because 

review of agency action lies with the Appellate Division; and 3) plaintiff's 

claims lack merit. At the outset, we first address whether the Law Division had 

subject matter jurisdiction to adjudicate AmeriCare's complaint. The 

determination of whether subject matter jurisdiction exists is a legal question, 

which we review de novo. Santiago v. N.Y. & N.J. Port Auth., 429 N.J. Super. 

150, 156 (App. Div. 2012). 

OEMS asserts the trial court erroneously concluded AmeriCare was not 

required to exhaust its administrative remedies and could pursue relief from 

OEMS's regulatory decisions in the Law Division. OEMS argues that no matter 

how AmeriCare "styled its claims" the substance of those claims are not civil 

rights violations but are substantive challenges to the summary suspension itself 
A-0117-19T4

9

and that the trial court lacks the expertise to consider the summary suspension 

as the OEMS's licensing function falls within its technical expertise. 

The CRA provides, in pertinent part, a remedy against private and public 

defendants for a person who has

been deprived of any substantive due process or equal 

protection rights, privileges or immunities secured by 

the Constitution or laws of the United States, or any 

substantive rights, privileges or immunities secured by 

the Constitution or laws of this State, or whose exercise 

or enjoyment of those substantive rights, privileges or 

immunities has been interfered with or attempted to be 

interfered with, by threats, intimidation or coercion by 

a person acting under color of law . . . . 

[N.J.S.A. 10:6-2(c).]

The CRA further provides that actions "may be filed in Superior Court. Upon 

application of any party, a jury trial shall be directed." N.J.S.A. 10:6-2(d). 

"[T]he CRA is facially silent about any other procedural requirement that a 

plaintiff must satisfy in order to bring a CRA cause of action." Owens v. Feigin, 

194 N.J. 607, 611 (2008). 

In Owens, 194 N.J. at 611-14, the Court examined the legislative history 

and the plain language of the CRA to determine whether the Legislature intended 

for the Tort Claim Act's (TCA), N.J.S.A. 59:1-1 to -12-3, notice-of-claim 

requirement to apply to CRA causes of action. There, Owens timely filed a 

notice-of-claims to public entities and employees that were named defendants 
A-0117-19T4

10

but did not file a notice-of-claim for one defendant, Feigin, the county medical 

examiner. Id. at 610. The Court held that the notice requirement did not apply 

to CRA claims as neither the plain language of the CRA nor its legislative 

history contain any indication that the Legislature intended the TCA's notice 

requirement to "serve as a prerequisite to a CRA cause of action." Id. at 613-

14. In reaching this conclusion, the Court noted the "broad remedial purpose of 

the CRA" supports the conclusion that the Legislature did not condition "the 

rectifying of an infringement on an individual's vital constitutional rights," on 

the satisfaction of the notice requirement. Id. at 614. 

The United States Supreme Court also recognized the need to analyze 

legislative intent in determining whether a procedural scheme, such as the 

exhaustion of administrative remedies, is a prerequisite to bringing a claim 

under a federal civil rights statute. In Patsy v. Bd. of Regents of Fla., 457 U.S. 

496, 516 (1982), the Court held the exhaustion of state administrative remedies 

is not a prerequisite to bringing a 42 U.S.C. § 1983 claim. There, the Court 

recognized Congress intended the Civil Rights Act of 1871, the precursor to § 

1983, to "'open the doors of the United States courts' to individuals who were 

threatened with, or who had suffered, the deprivation of constitutional rights 

. . . and to provide these individuals immediate access to the federal courts 

notwithstanding any provision of state law to the contrary . . . ." Id. at 504. 
A-0117-19T4

11

(citations omitted). The Court also recognized that although the exhaustion 

requirement would further various policies such as lessening the burden on 

federal courts and enabling the state administrative agency, with expertise in the 

area, to enlighten the federal court's decision, these policy considerations alone 

cannot justify judicially imposed exhaustion unless the exhaustion is consistent 

with the legislative intent. Id. at 512-13. 

Based on our review, we do not find the trial court erred in concluding 

that plaintiff was not required to exhaust its administrative remedies before 

bringing a claim under the CRA in the Law Division. Like the Court in Patsy, 

we decline to read into the CRA an exhaustion of remedies requirement as doing 

so would be inconsistent with legislative intent. See Tumpson v. Farina, 218 

N.J. 450, 474 (2014) (noting the interpretation of 42 U.S.C. § 1983 claims may 

provide guidance in construing our CRA); Owens, 194 N.J. at 615 (noting the 

CRA serves a "broad remedial purpose."). 

However, while the exhaustion requirement is not a prerequisite to 

bringing a CRA claim in the Law Division, we have also refused to allow 

plaintiffs to avoid the exhaustion of administrative remedies when their claims 

amount to nothing more than a collateral attack of a State administrative 

determination. In Beaver v. Magellan Health Servs., Inc., 433 N.J. Super. 430, 

432-34 (App. Div. 2013), the plaintiff, an insured former public employee, sued 
A-0117-19T4

12

the New Jersey Health Benefits Program and a medical provider after his son's 

treatment at a substance abuse facility was denied. Beaver appealed the decision 

and the matter was transferred to the Office of Administrative Law for an 

evidentiary hearing. Id. at 434-35. The Administrative Law Judge (ALJ) 

recommended denial of the claim and the State Health Benefits Commission 

(SHBC) adopted the ALJ's findings and conclusions. Id. at 435-36. 

Beaver later filed a complaint in the Law Division alleging breach of 

contract, breach of fiduciary duty, unjust enrichment, and a violation of the New 

Jersey Consumer Fraud Act. Id. at 436. The trial judge dismissed those claims 

for lack of subject matter jurisdiction and plaintiff appealed. Id. at 437. On 

appeal, Beaver asserted his complaint did not "challenge the SHBC's final 

administrative action, but rather is a separate action at law alleging statutory and 

common law causes of action . . . ." Id. at 437. He contended the SHBC action 

was irrelevant to the asserted causes of action and the defendants argued that the 

language in Beaver's complaint illustrates that, regardless of the claims asserted, 

he was simply seeking coverage for his son's treatment, and that reversal of the 

SHBC's determination was essential to his complaint. Id. at 439. 

We explained that an examination of the causes of action set forth in the 

complaint is pivotal to a determination of jurisdiction. Ibid. Affirming the 

dismissal, we said:
A-0117-19T4

13

[P]laintiff has explicitly stated that his complaint is

brought to recover "unpaid benefits" under the 

Program. Accordingly, to recover, plaintiff must 

necessarily secure a reversal of the SHBC final agency 

action upholding the denial of those same benefits. 

Plaintiff cannot avoid this obvious conclusion by 

cloaking his claims under the mantle of contract and 

tort.

. . . .

[S]tripped to their barest essentials, plaintiff's claims, 

sounding in tort and contract, amount to no more than 

a collateral challenge to the . . . SHBC final agency 

action upholding the limitation of coverage for 

plaintiff's health benefit claims. Indeed, absent an 

attack on that final agency action, plaintiff's tort and 

contract claims are patently without basis in fact or law. 

. . . .

Accordingly, plaintiff's complaint in the Law Division 

must be dismissed for lack of jurisdiction. To hold 

otherwise would permit plaintiff to collaterally attack a 

State administrative determination in the Law Division. 

[Id. at 441-44.]

In this case, jurisdiction hinges on whether AmeriCare has a colorable 

CRA claim and if so, the nature of the CRA claim. The Legislature adopted the 

CRA "for the broad purpose of assuring a state law cause of action for violations 

of state and federal constitutional rights and to fill any gaps in state statutory 

anti-discrimination protection." Owens, 194 N.J. at 611. As noted above, the 

CRA is modeled after the federal Civil Rights Act, 42 U.S.C. § 1983, and 
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14

provides a vessel for "vindicating substantive rights and is not a source of rights 

itself." Gormley v. Wood-El, 218 N.J. 72, 98 (2014). 

The elements of a substantive due process claim under the CRA are the 

same as the statute it was modeled after, 42 U.S.C. § 1983. Rezem Family 

Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div. 2011). 

The first step "is to identify the state actor, 'the person acting under the color of 

law,' that has caused the alleged deprivation." Id. at 114 (quoting Rivkin v. 

Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (1996)). Next the party must 

"identify a right, privilege or immunity secured to the claimant" by the 

constitutions of the state and federal governments or by state and federal laws.

Ibid. (internal quotations omitted) (citations omitted). Therefore, to bring a 

cause of action under the CRA, the second element requires a party to allege a 

specific constitutional violation. Our case law is clear that an individual may 

prevail on a claim under the CRA only when: (1) the plaintiff has actually been 

deprived of a right; or (2) one acting under color of law has threatened, 

intimidated, or coerced a person or attempted to do so, in such a way that it 

interferes with the person's exercise or enjoyment of his rights. Felicioni v. 

Admin. Office of Courts, 404 N.J. Super. 382, 400 (App. Div. 2008). 

In its complaint, AmeriCare's first assertion is OEMS violated N.J.S.A. § 

10:6-2 by, among other things, arranging for questionable inspections of its 
A-0117-19T4

15

ambulances, giving failing grades based on insignificant and non-material 

violations, failing to inspect all vehicles, refusing to perform re-inspections, and 

ultimately suspending AmeriCare despite three of its vehicles being placed back 

into service just days prior to the suspension. The very essence of these claims 

is a collateral attack on agency action.

Although not expressly stated in the complaint, even if AmeriCare alleged 

it was deprived of its right to an occupational license, such a deprivation does 

not rise to the level of a substantive due process violation. "[A]n occupational 

license is in the nature of a property right." Santaniello v. N.J. Dept't of Health 

& Sr. Servs., 416 N.J. Super. 445, 460 (App. Div. 2010) (citation and internal 

quotations omitted). 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. Therefore, 

"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 (citation omitted). 

Accordingly, AmeriCare would only be able to challenge the procedural process, 

i.e. the improper suspension or revocation. Here, AmeriCare was entitled to 

emergency relief by the Commissioner of the Department for review of OEMS's 

period of suspension and was so advised. Since procedural due process claims 
A-0117-19T4

16

cannot be brought under the CRA,2 plaintiff cannot proceed under this theory. 

AmeriCare was offered the process it was due.

II.

AmeriCare's second assertion is the "Individual Defendants" further 

violated 42 U.S.C. § 1983 by making statements containing confidential and 

non-public information to municipal officials, which resulted in AmeriCare 

being denied contracts with certain municipalities and for existing contracts to 

be rescinded or terminated. The second assertion, in general terms, alleges the 

Department's unethical conduct is a violation of AmeriCare's "due process and 

civil rights." 

We decline to offer an opinion on the record before us whether a cause of 

action based on these allegations has validity. We do recognize, however, the 

allegations inescapably require the fact-finder to determine the validity of 

OEMS's summary suspension, a role that falls under the exclusive province of 

the Department. To prove that OEMS unconstitutionally harmed its business, 

AmeriCare would be required to attack the agency's determination that it should 

no longer be licensed. Without the right to operate as a licensed entity, the 

above-referenced claims are rendered moot. Thus, as we stated in Beaver, 433 

 

2

 The CRA was specifically amended to limit the legislation's scope to 

substantive due process. 
A-0117-19T4

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N.J. Super. at 441, "to recover, plaintiff must necessarily secure a reversal of the 

. . . agency['s] action."

Reversed. We do not retain jurisdiction.