On appeal from Final Decision of the Commissioner, New Jersey Department of Community Affairs, Bureau of Code Services.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Graves.
Appellant William Singleton d/b/a Exquisite Toy Balloons (Singleton or appellant) appeals from a final decision of the Commissioner, New Jersey Department of Community Affairs, Bureau of Code Services (DCA or BCS) adjudicating him guilty of violating N.J.A.C. 5:14A-9.8(e) and (m) -- failure to pay attention and control what was happening on the rock climbing amusement ride -- and fining him $500. We affirm.
Singleton is the owner of an amusement ride known as the Rock Climbing Wall, which he has been operating since 1999. On August 29, 2004, he was operating the ride at the Riverfest event in Knowlton, New Jersey. At that location, the rock climbing wall was enclosed by a fence approximately fifteen feet from the wall and there was only a small area for patrons to enter and exit, the remainder of the fenced area being off limits to patrons and their family members. No one other than staff is permitted to assist the rider while they are actively climbing.
The amusement ride functions as follows. Climbers are strapped into a harness. The harness has a cable that runs up the rock climbing apparatus and down the back. The cable is then spooled into a hydraulic coil. The spool functions automatically. When climbers complete the rock climb, which is approximately twenty-two feet tall, they are lowered down automatically. The spool senses their weight and releases the rider down to the ground at a safe rate of speed.
On the day in question, between 2:00 p.m. and 3:00 p.m., Kevin Corbitt, a certified amusement ride inspector with the BCS, observed the operation of the rock climbing wall for about ten to twenty minutes. He situated himself approximately twenty feet from the amusement ride. From this vantage point, Corbitt observed Singleton's employees talking to patrons at the fence of the ride instead of paying full attention to the ride itself. Corbitt also saw a mother within the restricted fenced-in area of the rock wall ride who was attempting to assist her child climb up the rock wall. Corbitt's observations were in large part corroborated by Candy Ward, an acquaintance he met at the Riverfest event, who also witnessed that the employees were not assisting or watching the children on the wall. Ward also observed a woman inside the fenced-in area "strapping her own child into a harness."
As a result of his inspection, Corbitt issued a notice of violation, charging Singleton with failing to pay proper attention to, and maintain control over, the rock climbing wall, N.J.A.C. 5:14A-9.8(e) and N.J.A.C. 5:14A-9.8(m), and failing to provide proper training to his employees, N.J.A.C. 5:14A-9.9(c), and seeking a penalty of $1000. As to the former, N.J.A.C. 5:14A-9.8 governs the operation of amusement rides, including appellant's rock wall, and requires that the ride operator monitor the wall's "riders until the ride is completed" and "exercise control over the ride to prevent dangerous actions by a rider." N.J.A.C. 5:14A-9.8(e) and (m).
The matter was transmitted to the Office of Administrative Law (OAL) as a contested case. At the hearing, Corbitt testified to his observations and the BCS offered, in addition, Ward's sworn statement. In opposition, Singleton denied there were any patrons inside the fenced area for the amusement. He testified generally as to his "normal operating procedures" on the rock wall, that he "operate[s] a tight ship"; knows "the consequences of someone, or a child, getting hurt climbing [on his] rock wall"; and "would not allow this to happen." In addition, one of Singleton's employees testified that he did not observe anyone pushing a child up the wall, and another employee, Singleton's grandson, testified that he did not observe any unattended rider or activities.
At the conclusion of the hearing, the administrative law judge (ALJ) dismissed the N.J.A.C. 5:14A-9.9(c) charge, finding insufficient proof that Singleton failed to properly train the ride operators. The ALJ also dismissed the remaining two charges finding the Department did not meet its burden of proof because both parties were credible, the "witnesses on each side had an equal interest in the outcome," and the evidence was in equipoise.
Following exceptions, the Commissioner issued a final agency decision modifying the ALJ's initial determination. The Commissioner affirmed the dismissal of the N.J.A.C. 5:14A-9.9(c) charge, but rejected the reminder of the initial decision, finding sufficient evidence in the record to support the allegation of violation as to failure to pay attention to and control the activity on the amusement ride, N.J.A.C. 5:14A-9.8(e) and (m), and imposing a reduced penalty of $500 thereon. In doing so, the Commissioner determined that it was unreasonable for the ALJ to find that the witnesses had "an equal interest in the outcome[,]" noting that whereas "the owner [of the amusement ride] and his associates have an economic interest in avoiding a penalty, the only interest that the agency and its inspector have is the protection of public safety." The Commissioner further reasoned that the testimony provided by Singleton and his employees stating that they did not see the violations as observed by Corbitt did not contradict the inspector's testimony regarding them. Rather, such testimony, according to the Commissioner, suggested that Singleton and his employees were not paying adequate attention to the ride as the inspector had observed.
We agree. As the ALJ himself concluded, Corbitt was a credible witness "forthright in his testimony." His testimony established that a patron was within the restricted portion of the ride and was helping push her child up the rock climbing wall, while the operator and his employees were inattentive, leaving the ride unmonitored and in a potentially dangerous situation. Corbitt's observations were corroborated in large measure by another witness, Ward. Contrary to Singleton's sole claim on appeal, we find there is sufficient proof in the record to support the Commissioner's determination. In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The fact that neither Singleton nor his two testifying employees observed any of the violations reported by Corbitt, including a mother assisting her child inside the ride's restricted area, serves neither to refute Corbitt's account nor render it any less credible. On the contrary, as the Commissioner noted, their failure to see what Corbitt witnessed suggests the very inattentiveness for which appellant was charged and assessed a penalty. Nor did Ward's version contradict Corbitt's. As the ALJ himself found, there were no substantial inconsistencies in the testimony to render any of it "incredible or unreliable." Indeed, Corbitt clearly explained that he saw a woman assist her child climb up the rock ...