December 10, 2008
JOHN H. ANSTISS, APPELLANT,
DEPARTMENT OF COMMUNITY AFFAIRS, OFFICE OF REGULATORY AFFAIRS, RESPONDENT.
On appeal from the Department of Community Affairs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 28, 2008
Before Judges Skillman and Grall.
The Department of Community Affairs issued a notice of violation and order revoking John Anstiss's license as a Construction Official. N.J.A.C. 5:23-5.2(b). The violation charged was failure to ensure that all inspections needed for a temporary certificate of occupancy (TCO) were performed and completed before TCOs were issued, N.J.A.C. 5:23-2.18(b); N.J.A.C. 5:23-4.5(h)1x and xii(1), N.J.A.C. 5:23-5.2(b)3; N.J.A.C. 5:23-5.25(a).*fn1 The sanction indicated was license revocation based on the foregoing violations of the Uniform Construction Code regulations, failure over time "to maintain a minimally acceptable level of competence," conduct demonstrating incompetence and failure to enforce the Uniform Construction Code Act. N.J.A.C. 5:23-5.2(b)3; N.J.A.C. 5:23-5.25(a)1, 6, 10, 11.
On Anstiss's request for a hearing, the Department referred the case to the Office of Administrative Law. N.J.A.C. 5:23-5.2(c); N.J.A.C. 5:23-5.25(d)(10). For reasons stated in a written decision, the Administrative Law Judge (ALJ) concluded that the Department had established the violations and recommended that the Commissioner revoke Anstiss's Construction Official license. The Commissioner adopted the ALJ's decision, and Anstiss filed this appeal. N.J.S.A. 52:14B-10(c); R. 2:2-3(a)(2). After review of the record in light of the arguments presented, we see no basis for disturbing the agency's action. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Anstiss was appointed to serve as the Construction Official for the City of Newark in June 2001. A construction official is the person appointed "to enforce and administer" the construction code regulations in the municipality. N.J.A.C. 5:23-1.4. As a representative of the Department explained during his testimony before the ALJ, Newark's Construction Official is the administrative head of the City's Building Department and is obligated to supervise his subordinates in the performance of their duties to enforce construction regulations.
Pursuant to N.J.A.C. 5:23-4.5(h)1x and xii(1), a construction official must "[e]nsure that the reports of all inspections are completed and properly filed" and "[e]nsure that all inspection[s] required for the purpose, [have] been completed prior to the issuance of" a TCO.
The TCOs at issue here were for four properties in Mount Prospect Place, a residential development in Newark. The TCOs were issued on November 10, 2005. In 2006, after the retaining wall that shored up the land on which the homes were built failed, the Department commenced an investigation into actions taken by the City's Building Department in connection with the issuance of the TCOs and other approvals.
This was not the Department's first investigation of the City's enforcement of the Uniform Construction Code in connection with the Mount Prospect Place project. In 2002, after homes built on different lots in the same project "fail[ed]," the Department filed charges against Anstiss based on inspections that had not been done. That matter was settled when Anstiss agreed to receive additional training.
There is no dispute that the TCOs issued on November 10, 2005 were approved before the required inspections were performed. And, there is no dispute that the TCO's were signed by Anstiss's subordinate, Alberto Ventura.
Thus, the issue was whether Anstiss could be held accountable on the basis of his failure to fulfill his responsibility as the Construction Official. On November 9, 2005, Anstiss expected the contractor for the Mount Prospect Place project to come to his office to pay for and receive the TCOs on November 10. Anstiss knew, however, that he was scheduled to be out of the office on November 10, so he assigned Alberto Ventura, the City's Senior Plumbing Inspector, to serve as the Acting Construction Official on that date. Although Ventura had the license needed to serve as Acting Construction Official, he had never before acted in that capacity.
Before leaving his office on November 9, Anstiss took no action to review the Mount Prospect Place files or determine whether the necessary inspections had been done. He relied on his building inspector's earlier representation that "everything was fine [and] that it should be okay." He also told Ventura about his designation.
Ventura asked for direction. He questioned Anstiss about what he was expected to do and what needed to be done in his absence. Ventura could not say whether Anstiss mentioned the Mount Prospect Place project by name, but he remembered Anstiss pointing to a spot in his office and telling him that the applications placed there were ready for issuance of a certificate upon payment of the fee.
On November 10, folders for the TCOs for Mount Prospect Place were in the place Anstiss designated for files that required nothing more than payment. Payment was tendered, and Ventura signed the TCOs. When the Department subsequently charged Anstiss with failure to fulfill his obligation to "[e]nsure that all inspection required for the purpose [was] completed prior to the issuance" of the TCOs, Anstiss pointed out that he had not signed the TCOs.
The ALJ rejected Anstiss's claim that the Department could not establish the violation it alleged because he had not signed and was not present when the TCOs were signed. She found that Anstiss had an obligation to make sure that his subordinates fulfilled their responsibilities, but he assigned the inexperienced Ventura to serve as Acting Construction Official and told Ventura that he could issue TCOs if payment was made on a file placed in a designated location. The ALJ determined that given Anstiss's knowledge of prior serious problems with the Mount Prospect Place project, "[i]t was incumbent on him to make sure that the file was in order prior to his leaving" the applications in "Ventura's hands." The ALJ further concluded that Anstiss's performance demonstrated incompetence and "a total disregard of the duties of his position" that warranted revocation of his license.
The Commissioner's decision to adopt the ALJ's recommendation is fully supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons stated in the decision the Commissioner adopted.
On this appeal Anstiss objects to the sufficiency of the notice of violation and claims that the agency action was arbitrary and capricious. Those arguments lack sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(1)(E).