On appeal from the Department of Community Affairs, Docket No. RBHS-027-07/1214-0145.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson, and Alvarez.
Petitioner Joseph Fabics, Jr., appeals three penalties assessed against him by the Department of Community Affairs, Division of Codes and Standards, Bureau of Rooming and Boarding House Standards (the Department), arising from his unlicensed operation of a rooming house. Fabics appealed the penalties to the Department, which referred the matter to the Office of Administrative Law (OAL). The administrative law judge (ALJ) affirmed the penalties, finding that Fabics' home in New Brunswick constituted two illegal rooming houses, one within the first floor, the other within the second floor. The adoption of the ALJ's decision on April 7, 2008, by Joseph V. Doria, Jr., the Commissioner of the Department, constituted final agency action. We affirm.
On appeal, Fabics raises the following points:
UNDER THE APPLICABLE STATUTORY DEFINITIONS, A "ROOMING HOUSE" IS SUCH ONLY IF IT PROVIDES "SINGLE ROOM OCCUPANCY," DEFINED AS NOT "PROVID[ING] A PRIVATE, SECURE DWELLING SPACE ARRANGED FOR INDEPENDENT LIVING": A STANDARD, SELF-SUFFICIENT APARTMENT. THIS IS THE ONLY INTERPRETATION WHICH COMPORTS WITH THE STATUTORY LANGUAGE, CAN BE APPLIED EVENHANDEDLY, GIVES ADEQUATE NOTICE AND IS NOT UNCONSTITUTIONALLY VOID FOR VAGUENESS, AND UNDER THAT STANDARD THE APPELLANT'S TWO-STORY HOUSE WITH ITS TWO APARTMENTS IS CLEARLY NOT A ROOMING HOUSE. THE COMMUNITY AFFAIRS COMMISSIONER'S CONTRARY DECISION THEREFORE IS WRONG AND SHOULD BE REVERSED.
A. THE STATUTE IS EXPLICIT: A "ROOMING HOUSE" IS SUCH ONLY IF IT PROVIDES "SINGLE ROOM OCCUPANCY," DEFINED AS NOT "PROVID[ING] A PRIVATE, SECURE DWELLING SPACE ARRANGED FOR INDEPENDENT LIVING." IF THIS CRITERION IS NOT MET, THE HOUSING IS A STANDARD, SELF- SUFFICIENT APARTMENT, NOT A ROOMING HOUSE. THE APPELLANT'S TWO-STORY HOUSE DOES NOT FIT THE CRITERION, AND THUS THE COMMISSIONER WAS DUTY-BOUND TO APPLY THE STATUTE AS WRITTEN AND FIND THE APPELLANT NOT GUILTY. BECAUSE HE DID NOT DO SO, THE DECISION SHOULD BE REVERSED.
B. A LAW IS UNCONSTITUTIONALLY VAGUE WHEN IT DOES NOT WITH SUFFICIENT CLARITY PROHIBIT THE CONDUCT AGAINST WHICH IT IS SOUGHT TO BE ENFORCED. THE I-KNOW-IT-WHEN-I-SEE-IT APPROACH EMPLOYED BY THE AGENCY HERE IS UNCONSTITUTIONALLY VAGUE, FOR IT DOES NOT APPRISE AN ORDINARY PERSON OF ITS MEANING AND REACH. A STATUTE ALWAYS BEING CONSTRUED TO AVOID UNCONSTITUTIONALITY, THIS COURT SHOULD INSTEAD EMPLOY THE STANDARD DETAILED HERE - THE STANDARD SPECIFIED BY THE LEGISLATURE - AND REVERSE THIS DECISION.
On May 24, 2007, the Department assessed a $5000 penalty against Fabics for violation of Section 7(a) of the Rooming and Boarding House Act of 1979 (RBHA), N.J.S.A. 55:13B-1 to -21, due to his unlawful operation of a rooming house without a valid license. A second $5000 penalty issued for a violation of N.J.A.C. 5:27-1.6, as a result of Fabics' failure to provide proof of local zoning approval for the operation of a rooming house "for the number of intended occupants." A third $5000 penalty issued because Fabics violated N.J.A.C. 5:27-1.3(c)(4) in failing to produce a certificate of inspection showing compliance with all of the provisions of the Uniform Fire Code applicable to rooming houses.
On June 6, 2007, Fabics appealed the three orders to the Department, and the matter was transferred to the OAL as a contested case. Cross-motions were filed for a summary decision, and the record closed on January 25, 2008. The ALJ affirmed the Department's determination that Fabics' private residence constituted two unlicensed rooming houses. The Commissioner thereafter adopted the ALJ's decision in its entirety, resulting in this appeal.
Fabics' two-story, two-family residence is divided such that on each floor, there are three bedrooms, a kitchen and a bath. Each floor has its own furnace, hot water heater, utility meters, and phone line. Fabics occupies a first-floor bedroom and rents out all other bedrooms. The building was inspected by the Bureau of Rooming and Boarding House Standards (the Bureau) investigator, Angelo J. Mureo, as a result of complaints by former tenants that Fabics was operating an illegal rooming house.
On May 18, 2007, Mureo inspected the property and concluded that Fabics was indeed operating two unlicensed rooming houses, one on each floor. The individual bedrooms did not have operable locks. Fabics told Mureo that leases signed by the five unrelated tenants called for each to pay $500 in rent and a portion of the utilities monthly. Mureo concluded that Fabics had fashioned the leases so as to circumvent rooming house rules and regulations. Multiple tenants sign a single lease document, despite the varying start dates of their terms of occupancy.
We review the Bureau's action and the Department's final agency decision in a limited fashion. See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). Our role is to "survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Ibid. We give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . [give] due regard also to the agency's ...