On appeal from the Department of Community Affairs, Docket No. RBHS-108-06/1426-005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2008
Before Judges Miniman and Lihotz.
Appellant Peter Schneider appeals from the final decision of the Commissioner of the Department of Community Affairs (DCA). The Commissioner affirmed the initial decision of an Administrative Law Judge (ALJ) upholding a $5,000 penalty imposed by the respondent Bureau of Rooming and Boarding House Standards (Bureau) for operating an unlicensed rooming house. On appeal, Schneider argues, as he did before the agency, no license was required. He maintains his property was used as a single-family residence occupied by a family-unit, rather than a rooming house. We affirm the Commissioner's decision.
Schneider purchased an operating residential health care facility (facility) located at 61 Mountainview Avenue, Mount Arlington. Schneider created a corporation called Lake View Rest Home at Mt. Arlington, Inc. and continued the facility's operations. Although the facility was located in a residential zone, the Borough of Mt. Arlington (Borough) allowed the facility as a pre-existing, non-conforming use. Until 2005, the Borough inspected the facility annually. In 2005, the Borough relinquished inspection authority to the State.
When the State Fire Marshall required installation of a fire sprinkler system, Schneider determined the cost was prohibitive and closed the facility on June 1, 2005. The non-family residents in the facility were required to relocate.
On June 7, 2005, Schneider wrote to the Department of Health and Senior Services (DHSS) to terminate the facility's operations. He attached a list of forwarding addresses for the former facility residents. Remaining in the property, in addition to Schneider's family, which included his wife, two daughters and his aunt, there were three former facility residents and a live-in maid.
The Bureau sent Angelo Mureo, a chief investigator with twenty-five years of experience with the DCA, to conduct "a jurisdictional status investigation." Mureo stated he was to gather "all available facts" to help determine whether the property's usage placed it under the Bureau's jurisdiction.
Upon Mureo's inspection of Schneider's property, he observed several bedrooms and two common bathrooms on the second floor along with bedrooms, bathrooms, a shared kitchen, living room, dining room, and an enclosed rear porch on the first floor. None of the bedrooms had kitchen, laundry, or bathroom facilities. The doors of the bedrooms occupied by the non-family residents, the maid, and Schneider's aunt featured a dead-bolt plunger lock with a key entry. Mureo stated "most" residential bedrooms have a privacy latch, not a dead-bolt lock. The three non-family residents told Mureo they paid "rent" monthly*fn1 and the maid was given a room and paid $100 per week.
Mureo concluded the property was an unlicensed "Class B" boarding house, N.J.S.A. 55:13B-7(a), resulting in the imposed penalty. The Bureau issued Schneider a Notice of Violation and Penalty Order. Schneider requested a hearing.
Following a hearing, the ALJ credited Mureo's testimony and found Schneider's "explanation" for the dead-bolt locks not credible. The ALJ concluded the property was an unlicensed rooming house, pursuant to N.J.S.A. 55:13B-3(h), rather than a boarding house. See Country Lane Builders, Inc. v. Dep't of Cmty. Affairs, 96 N.J.A.R.2d (CAF) 94 (1996). The ALJ upheld the $5,000 fine*fn2 for the unlicensed operation of a rooming house. N.J.S.A. 55:13B-7. The Commissioner adopted the ALJ's recommendation as her final decision.
Schneider suggests the property was not a rooming house and the ALJ's decision adopted by the Commissioner was against the weight of the evidence. He also asserts the ALJ's decision is inconsistent and incompatible with the municipalities' ...