May 25, 2012
DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF HOUSING INSPECTION, PETITIONER-RESPONDENT,
AARON K. ABOAGYE, 6 WASHINGTON STREET, MONTCLAIR, RESPONDENT-APPELLANT.
On appeal from the New Jersey Department of Community Affairs, Agency Docket No. BHI-164-10/0713-18280-L1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Messano and Kennedy.
Aaron K. Aboagye (Aboagye) appeals from a May 12, 2010 final decision of Commissioner of the Department of Community Affairs (DCA) upholding the assessment of penalties against him and requiring him to abate violations of regulations pertaining to lead-based paint at the multiple dwelling he owns in Montclair. For reasons set forth hereinafter, we affirm.
I Aboagye owns a multiple dwelling in Montclair that was constructed prior to 1930. The building was inspected by the DCA, Bureau of Housing Inspection (Bureau), on October 26, 2009, which issued an inspection report identifying five areas in "Apt #2 common area" containing violations of N.J.A.C. 5:10-6.6(d). The report required Aboagye to "correct deteriorated paint and causes of deterioration" within 10 days. In addition, the report stated:
All work performed to abate the above violations shall be carried out using lead safe work practices by individuals trained in accordance with N.J.A.C. 5:10- 6.6(g). Upon re-inspection the property owner must have available for the inspector's review any training records to support compliance with N.J.A.C. 5:10- 6.6(g), as well as any required wipe samples showing the work area to be lead hazard free.
Aboagye admitted receipt of the inspection report and order.
The building was re-inspected on December 14, 2009, by a Bureau inspector in the "Lead Unit" who reported, "[a]t this time, all violations open in Unit #2 ' wall/ceiling 3rd floor appear to be painted/repair. No DW/certs." As a consequence of this re-inspection, the DCA on December 15, 2009, issued to Aboagye a "Notice of Statutory Violation and Order to Pay Penalty" of $1,000 "for your failure to comply with the previous order dated 10/26/09." The notice required Aboagye to abate the violations within 10 days.
On January 5, 2010, Aboagye spoke with James Grogan, a compliance officer in the Bureau's Lead Compliance Unit, and told him he had completed all the work to abate the violations. Based on this representation, Grogan agreed to reduce the penalty by $500 if Aboagye made payment and showed "[a]ll violations to be abated by providing the required Dust Wipe Results" by February 5, 2010. Aboagye agreed.
Because Aboagye had represented that he had properly abated the deteriorated paint conditions at the building prior to January 5, 2010, Grogan ordered a re-inspection. On January 7, 2010, a Bureau inspector returned to the property and reported that the violations were still "open." Consequently, the DCA issued to Aboagye a "Notice of Continuing Unabated Violations and Orders to Abate Violations" assessing a penalty of $10,000 and requiring abatement of the violations within 10 days. Aboagye contested the notice and requested a hearing.
A hearing was held before an Administrative Law Judge on February 17, 2010. The Bureau employees who undertook the December and January inspections testified, and both stated that they found some evidence of painting but, nonetheless, the deteriorated paint conditions identified in the October 26, 2009 report still existed. Aboagye also testified that he had his building superintendent undertake the "repairs" and conceded that the superintendent was not trained as required by N.J.A.C. 5:10-6.6(g). The superintendent was not called as a witness.
Aboagye did provide evidence, however, he had lead wipe samples from his building taken by a DCA certified lead evaluator that revealed lead concentrations below lead hazard levels established by law. These results and a $500 check were sent to the DCA shortly after February 5, 2010.
Following the hearing, the administrative law judge issued his written decision in which he found:
1. The subject premises was inspected and re-inspected by the DCA three times from October 2009 through January 2010.
2. At each of the aforesaid inspections, DCA inspectors identified five violations to walls and ceilings reflecting water damage as well as paint peeling and chipping on the premises which was built prior to 1978.
3. Respondent attempted to abate the violations but failed to use the required licensed lead abatement contractor.
The administrative law judge determined that Aboagye "attempted to mitigate the violations through the efforts of an unauthorized individual or company" and "adduced nothing more than the laboratory testing report of swipes whose custody was not authenticated." He concluded that the DCA had proved by a preponderance of the credible evidence that Aboagye violated the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A -1 to -28, and upheld the $10,000 penalty, subject to a $500 credit, and abatement order.
On appeal, Aboagye makes the following arguments:
1. Third DCA inspection and fine was in violation of [the settlement] agreement...;
2. The DCA . . . has not conclusively demonstrated that the abatements were not performed by [Aboagye];
3. Several wrong facts [were] used to arrive at [the] conclusion. [sic]
We examine each claim of error in the order presented.
The Hotel and Multiple Dwelling Law was enacted to ensure that residents of hotels and multiple dwellings are provided with "decent, standard and safe units of dwelling space." N.J.S.A. 55:13A-2. To achieve this end, the Commissioner of the DCA must promulgate rules and regulations to protect the health, safety and welfare of occupants of multiple dwellings. N.J.S.A. 55:13A-7. N.J.S.A. 55:13A-7(w) expressly requires the Commissioner to promulgate rules addressing the "[p]resence of lead-based paint hazards in multiple dwellings . . . [.]" Pursuant to this authority, and the mandate of the Lead Hazard Control Assistance Act, N.J.S.A. 52:27D-437.1 to -437.15, the Commissioner has promulgated "Lead-Safe maintenance requirements for multiple dwellings," codified at N.J.A.C. 5:10-6.6.
N.J.A.C. 5:10-6.6(a) requires each multiple dwelling constructed prior to 1978 to undergo an inspection for lead-based paint hazards at the time of the dwelling's cyclical inspection unless it had earlier been certified as free of lead-based paint in accordance with N.J.A.C. 5:17-3.6. The owner of a multiple dwelling must also examine painted surfaces for deterioration upon turnover of a unit or every 12 months, whichever is earlier, and promptly and safely remediate deteriorated paint. N.J.A.C. 5:10-6.6(d)(2). Following such remediation, "dust wipe sampling" must be undertaken to insure that lead dust levels do not exceed certain hazard levels. Ibid. Only a certified lead evaluator is qualified to evaluate the results of a dust wipe analysis. N.J.A.C. 5:17-2.1(c)(4).
N.J.A.C. 5:10-6.6(g) requires all owners of a multiple dwelling or employees of the owner who undertake the visual examinations or "corrective action or maintenance work" to have completed training on "safe building maintenance practices and applicable New Jersey law" by a State accredited trainer. The required training courses include various lead-based paint remediation courses offered through specified federal agencies.
Aboagye's claim that the re-inspection undertaken on January 7, 2010, violated the "agreement" he reached with the Bureau is without merit. First, Aboagye conceded that the alleged "remediation" was undertaken by his superintendent who was not trained as required by N.J.A.C. 5:10-6.6(g). Second, there was substantial credible evidence in the record to show that the violations had not been abated as of December 14, 2009, the date prior to which Aboagye claimed his superintendent undertook the required work. Further, Aboagye does not contend that he undertook any remediation work after January 5, 2010, in any event, but rather simply commissioned a dust wipe analysis. Consequently, Aboagye may not avoid liability by reliance upon a "settlement" agreement premised upon work allegedly undertaken by an untrained employee unauthorized by law to undertake that work.
Aboagye's next argument essentially is that there was insufficient evidence in the record to support the conclusion that the violations identified in the October 26, 2009, inspection report had not been remediated. In making this argument, Aboagye focuses upon the actual building violations -which he conceded existed as of October 26, 2009 - and his remediation efforts, and ignores the fact that the person who purportedly undertook the abatement work was not trained to undertake that work as required by the law and regulations noted above.
We begin our consideration of this argument by restating applicable legal principles. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [In re Taylor, 158 N.J. 644, 656 (1999) (citations omitted).]
Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
After carefully reviewing the record in light of the arguments advanced by the parties, we conclude that the DCA's decision is supported by sufficient credible evidence in the record and the issues presented by Aboagye are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D), (E).
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