February 8, 2011
BUREAU OF HOUSING INSPECTION, PETITIONER-RESPONDENT,
VICTOR R. CAMILO, 317 LAFAYETTE AVENUE, PASSAIC, RESPONDENT-APPELLANT.
On appeal from the Department of Community Affairs, Bureau of Housing Inspection, Docket No. BHI 146-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2011
Before Judges Grall and LeWinn.
Appellant, Victor Camilo, is the owner of a nineteen-unit apartment building at 317 Lafayette Avenue, Passaic, New Jersey. He appeals from the August 20, 2009 final decision of the New Jersey Department of Community Affairs (DCA) imposing a fine of $205,000, plus inspection costs, for his failure to abate housing violations in that building from 2003 through 2007. We affirm.
On February 13, 2008, appellant received by certified mail a notice from the Bureau of Housing Inspection within DCA that he had been assessed $205,000 in penalties for continuing unabated violations; the notice set a compliance date of March 6, 2008.
At appellant's request, DCA transmitted this matter as a contested case to the Office of Administrative Law (OAL) on March 17, 2008. On May 13, 2008, the OAL sent appellant a notice of a hearing date before an Administrative Law Judge (ALJ) on May 27, 2008.
On the scheduled hearing date, counsel appeared on behalf of appellant and, for the first time, requested an adjournment because appellant had been continuously out of the country since prior to the May 13, 2008 notice. Counsel acknowledged, however, that appellant was aware of the hearing date and, in fact, had specifically requested counsel to appear on his behalf. Further, counsel sought "a very short adjournment, even . . . a day or . . . a two-day adjournment just to get [appellant] back here." Counsel, however, provided no explanation as to why appellant had failed to return in time for the scheduled hearing date. DCA objected to the adjournment request noting that "this [is] an habitual offender case. . . . The issue here at this time is that these are fire and life safety issues that have perpetuated now for approximately five years."
In denying the adjournment request, the ALJ stated:
This is an eleventh-hour request, and I find it unacceptable that someone who has taken on the responsibility of property ownership -- and knowing when it's a multi-dwelling, he left someone in charge. . .
So, I deny the request for an adjournment, . . . the record is open, we will move forward. At any time, after my decision -- I will keep it open for a brief period, so the parties may appeal the order of the denial. . . . [O]therwise, we have to move forward on this because of the safety matters that are at risk. People's lives may be at risk, and that's what I'm hearing, and we don't want to jeopardize that, nor do we want to second guess that if that is a fact.
Housing Inspector Miguel Miqueli conducted an initial inspection of appellant's building on August 29, 2003, and noticed "a lot of . . . open violations that had to be abated." Miqueli personally conducted four re-inspections of the building on February 27 and July 21, 2004; January 12, 2006; and May 16, 2007.
Violations existed around the exterior of the building, in common areas, and in seventeen of the apartment units. Miqueli testified that he was unable to gain "any admittance" into two apartment units during his inspections.
Miqueli testified at length as to the violations he personally observed and noted in his reports of his successive re-inspections. These violations included by way of example, missing fire alarms and smoke detector systems; broken windows; inadequate fire-retardant construction in hallways and stairwells; pest infestation; peeling paint; missing floor tiles; water leaks; and missing carbon monoxide alarms.
Miqueli acknowledged that some violations had been abated and were noted as such on his May 16, 2007 inspection. Also, the areas he was unable to access were indicated in his report of that date. As of May 16, 2007, Miqueli noted forty-one outstanding violations on the property.
Carolyn Long, a compliance officer with the Bureau of Inspection in DCA, testified as to the manner in which penalties were assessed for the forty-one violations. Citing her statutory authority in N.J.S.A. 55:13A-19(b), and regulatory authority in N.J.A.C. 5:10-1.17, Long explained that there are two categories of violations, "Life Safety and Non-Life Safety."
Appellant's property had thirty-one non-life safety violations and ten life safety violations.
Long assessed a $5000 penalty for each violation pursuant to N.J.A.C. 5:10-1.17(f) which provides that, "[a]bsent any mitigating circumstances, the third, and any subsequent, continuing violation penalty shall be in the amount of $5,000 per violation." As Long explained it, appellant was "at the maximum point," with continuing violations of four years' duration.
At the conclusion of Long's testimony, appellant's attorney once again moved to "call [his] main witness, [appellant] at a later date so that he can be cross[-]examined and he can present proofs that may be extremely relevant to the case at hand." DCA again objected for the reasons previously stated. The judge denied the motion, noting that nothing had "persuade[d her] that [appellant] was not provided with adequate notice. He had notice in time enough to contact [his attorney] and send a representative, a property manager. . . . And what's most important is the safety issues . . . . [T]here are [forty-one] violations that were [sic] still open."
Vilma Chavez, the property manager of appellant's building, then testified. She had been present only for the last two re-inspections by Miqueli.
Chavez stated that some of the violations noted in the May 16, 2007 re-inspection were abated after that date. Regarding infestations violations, Chavez testified that when tenants complained, she would hire an exterminator; some tenants, however, "didn't open the door, they were not there." Chavez acknowledged that, notwithstanding the extermination services, cockroaches would return.
Regarding violations of broken windows, Chavez testified that the window in one unit was replaced after the 2007 inspection, adding that broken windows happen "every day."
Other violations, such as the failure to install smoke detectors, had also been abated after the 2007 inspection. Chavez added that tenants remove the smoke detectors "when they cook . . . and sometimes they forgot [sic] to put it back." A heating violation in one apartment that had existed from 2003 through the May 16, 2007 inspection was abated in November 2007. When asked to produce records to support her testimony, Chavez stated that appellant "has all the records[,]" and that he was in "Santo Domingo . . . [on] a personal matter."
At the conclusion of the hearing, the ALJ instructed both parties to submit written post-hearing statements by June 16, 2008. Neither of those statements has been included in the record before us.
The ALJ closed the record in this matter on June 11, 2009, and issued her initial decision on July 16, 2009. In that decision, the ALJ noted that appellant had "offered no compelling evidence to disprove the findings listed in the inspector's reports[,] . . . [and] presented no mitigating or aggravating circumstances that would warrant a lesser penalty assessment than that proposed by [DCA]."
After reviewing the evidence, the ALJ concluded that DCA had demonstrated that forty-one violations were not abated as of the May 16, 2007 re-inspection of the property. She further found that appellant had received all required notices and opportunities to bring his building into compliance, pursuant to N.J.S.A. 55:13A-16. Finally, the ALJ determined that the $5000 penalty "for each continuing violation" was authorized by N.J.S.A. 55:13A-19. Therefore, the ALJ concluded that DCA had "properly calculated the amount of penalty at $205,000 plus a re-inspection fee."
On August 20, 2009, the Acting Commissioner of DCA adopted the ALJ's initial decision as his final decision.
On appeal, appellant raises the following contentions for our consideration:
JUDGE BARI-BROWN ERRED IN IMPOSING A $205,000 PENALTY IN VIOLATION OF APPELLANT
CAMILO'S DUE PROCESS RIGHTS, THE PENALTIES MUST BE VACATED OR SUBSTANTIALLY REDUCED. POINT II THE MATTER MUST BE REVERSED AND REMANDED TO ALLOW THE APPELLANT VICTOR CAMILO THE OPPORTUNITY TO TESTIFY AND TO PRESENT DOCUMENTATION IN HIS OWN BEHALF AS THE OAL JUDGE'S DECISION DEPRIVED HIM OF HIS DUE PROCESS RIGHTS.
Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied that neither is of "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). We add only the following comments.
Our scope of review is limited in these matters. We will not substitute our judgment for that of an administrative agency where the agency's findings are supported by substantial credible evidence. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). When "the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Ibid. (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). Only in those cases where we determine that the agency's decision is arbitrary or capricious, or not supported by the record, may we reverse.
Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980); see also Glukowsky v. Equity One, Inc., 180 N.J. 49, 65 (2004).
We are satisfied that the evidence here amply supported the ALJ's conclusion that forty-one violations remained unabated at appellant's property as of the May 16, 2007 re-inspection. Chavez's testimony established, at best, that some of those violations were abated after that fourth re-inspection.
We also are satisfied that the penalties imposed are reasonable and not disproportionate in light of the outstanding violations at issue. Under N.J.S.A. 55:13A-19(b), the DCA may assess a penalty of between $50 to $500 for a first violation and between $500 and $5000 for subsequent violations. DCA's regulations provide further support. Pursuant to N.J.A.C. 5:10-1.17(f), in the absence of mitigating circumstances, "the third, and any subsequent, continuing violation penalty shall be in the amount of $5,000 per violation." Long's testimony as to her assessment of penalties was entirely consistent with this authority.
With regard to appellant's second point, we note that between the May 27, 2008 hearing date and the June 11, 2009 date on which the record was closed, appellant made no effort to reopen the matter, to appeal the adjournment denial, or to take any other action to seek the relief he now requests on appeal.
As the ALJ noted in denying appellant's eleventh-hour adjournment request, he failed to demonstrate that his absence was due to any emergent or other compelling reason. As of the hearing date, most of the violations at appellant's property had persisted unabated for over four years, thereby imperiling the safety and well-being of his tenants.
As of February 13, 2008, appellant was on notice that his failure to abate violations on his property would subject him to monetary penalties. Appellant's response to that notice was to request an administrative hearing. In short, appellant was afforded every opportunity to exercise his right to challenge DCA's actions. His absence on the crucial date of the OAL hearing, as far as this record reveals, was appellant's voluntary choice. Under the circumstances, we are satisfied that the ALJ properly denied his adjournment request. We find no abuse of discretion requiring reversal of that determination. See State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1971) ("[t]he granting of trial adjournments rests within the sound discretion of the trial court") (internal quotation marks deleted), certif. denied, 58 N.J. 335 (1971).
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