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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...