On appeal from the New Jersey Department of Community Affairs, Bureau of Rooming and Boarding House Standards, Agency Docket No. RBHS-018-09/0601-0058.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010
Before Judges Payne, Baxter & Koblitz.
Petitioner Robert C. Thompson appeals from a September 2, 2009 Final Agency Decision of the Department of Community
Affairs, Bureau of Rooming and Boarding House Standards (DCA), in which DCA adopted the decision of an administrative law judge (ALJ) that Thompson was operating an unlicensed rooming house. DCA adopted the ALJ's determination of five separate violations, all pertaining to the same property located at 231 Cohansey Street (the property) in the City of Bridgeton (City). The ALJ imposed a $5,000 penalty for each of the five violations; however, during the pendency of this appeal, DCA rescinded the four ancillary notices of violation and the four accompanying penalties, which resulted in a modified penalty of $5,000.
We reject Thompson's argument that the evidence presented by DCA was insufficient to support a finding that he operated an unlicensed rooming house, thereby violating the Rooming and Boarding House Act of 1979, N.J.S.A. 55:13B-1 to -21. We likewise reject his contention that because any conversion of the premises from a single-family home to a rooming house was done by the tenant, in violation of her lease, and without Thompson's knowledge, DCA lacked authority to sanction him for the violation. Last, we reject Thompson's claim that the search of the premises by DCA and by officials of the City was unlawful and the ALJ and DCA wrongly denied his motion to suppress the fruits of that search. We affirm.
On December 1, 2008, police officer Luis Santiago of the Bridgeton Police Department was on routine patrol when he observed handwritten signs, written in Spanish, posted in the windows of three stores. Each sign advertised rooms for rent at 231 Cohansey Street, Bridgeton: "For rent, two rooms on 231 Cohansey Street. Good conditions. For more information call (856) 392-2075." Believing that such rentals were likely in violation of the City's certificate of occupancy requirements, Santiago photographed the signs and forwarded them to Melanie A. Walters, the City's Code Enforcement Supervisor.
Walters, in turn, forwarded the photographs and accompanying police report to Michael Briant, Bureau Chief for the Bureau of Rooming and Boarding House Standards at DCA. Briant assigned Angelo Mureo, one of his employees, to review the materials submitted by Walters. On February 4, 2009, Mureo went to the property, accompanied by Walters and by Maria Lopez, a bilingual code enforcement officer employed by the City.
In response to Mureo's knock on the front door, Jeremias Osorio came to the door, at which time Mureo identified himself as a field enforcement supervisor from DCA. Mureo told Osorio that he, Walters and Lopez were there to conduct a site inspection as a result of a complaint that had been forwarded to Trenton. He assured Osorio that neither he, Walters or Lopez "was from Immigration." Mureo testified that "Osorio was very cooperative with the investigation. He let me in, no problem." Mureo had previously obtained a copy of the certificate of occupancy (CO) and believed that Osorio was listed as a tenant; however, to be certain, Mureo asked Osorio to produce a copy of his lease, which he did. Mureo added that Alida Velasco, another tenant, also came to the door, and also told the three they could enter.
As a result of his inspection, and from information elicited from Osorio and from the other residents who were present, Mureo determined that the property was an unlicensed rooming house consisting of six dwelling units and twelve occupants. He prepared a Jurisdictional Status Form (JSF) so indicating. The JSF was accompanied by a detailed floor plan that Mureo prepared showing a kitchen, dining room and living room on the first floor, which were used by the occupants of all six bedrooms. Mureo's interview of the residents who were home at the time revealed that the occupants of all six bedrooms also shared the same bathroom on the second floor.
Based on Mureo's findings, DCA charged Thompson with operating an unlicensed rooming house and with the four ancillary violations that DCA subsequently rescinded. Thompson requested a hearing before an ALJ. The hearing consumed two days in June 2009. According to both Mureo and Briant, shared access to a communal bathroom, kitchen, living room and dining room signifies that the property is a rooming house.
In addition to the shared sanitary facilities and kitchen, Mureo testified that several other factors provided proof that the property was being operated as a rooming house: the presence of padlocks or deadbolt locks on some of the bedrooms, different dates of original occupancy by several of the tenants, several occupants not being listed on the original lease signed by Osorio and Thompson Realty, and the fact that the tenants each paid Osorio their rent, and he, in turn, tendered a single check to Thompson. Walters and Lopez each provided testimony consistent with Mureo's.
Thompson testified, asserting that he owns more than 300 rental properties in the City and manages another seventy to eighty properties for family members. He estimated that a total of 2,400 people reside in the units he manages. In addition to five employees who work in the office of Thompson Realty, which Thompson owns, Thompson typically employs between twenty-eight and thirty-four employees who are responsible for repairing and renovating the rental properties. Those additional employees were electricians, carpenters, plumbers, roofers "and everything in between." Thompson explained that his workmen were "trained [and] instructed to look for signs" of illegal occupancy such as tenants living in the basement, padlocks attached to the bedroom doors, or bedding*fn1 in excess of the number of occupants permitted by the lease.
Thompson insisted that whenever any of his workmen advised him of a possible infraction, he immediately visited the premises to demand that the tenant cease the illegal subletting. He also explained that each lease contains a provision imposing a $500 fine if any tenant is found to be permitting others to live in the basement because basement occupancy "is illegal." Additionally, according to Thompson, each of his residential leases prohibits tenants from installing locks on bedroom doors. He maintained that if he catches a tenant reinstalling a bedroom lock after he has instructed the tenant to remove it, it is his practice to begin eviction proceedings.
Thompson maintained that on only one occasion had he operated a rooming house. The property was set up as a rooming house "when [he] bought it," but he found "the business of running a rooming house" to be "very distasteful" because the applicable rules and regulations were "overbearing [sic]."
Last, Thompson explained that when he rented 231 Cohansey Street to Osorio, he expected only Orsorio and his immediate family to be living there and "trusted them with [the] property" pursuant to the written lease, which prohibited them from "changing the occupancy" or "putting locks on the door." Thompson insisted he had no indication that the property was being operated in the fashion that DCA discovered during its February 4, 2009 inspection until he received the complaint from DCA charging him with operating an unlicensed rooming house. In particular, he asserted he had no reason to anticipate that the tenants would permit other tenants to move ...