Opinion
DOCKET NO. A-2113-11T1
04-25-2013
ELLEN HEINE, Petitioner-Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF ROOMING AND BOARDING HOUSE STANDARDS, Respondent-Respondent.
Ellen Heine, appellant, argued the cause pro se. Debra A. Allen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Allen, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Leone.
On appeal from the Department of Community of Affairs.
Ellen Heine, appellant, argued the cause pro se.
Debra A. Allen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Allen, on the brief). PER CURIAM
Petitioner Ellen Heine appeals from the August 11, 2011 final decision of the Commissioner of the New Jersey Department of Community Affairs (Department). The Commissioner adopted the initial decision, dated July 14, 2011, of the Administrative Law Judge (ALJ), Barry E. Moscowitz.
This action concerns a property where petitioner and five or six other persons resided. The property, on Van Bussum Avenue in Garfield, had been cited for violations of the construction code and fire safety laws. In September 2010, the Commissioner notified petitioner that she was in violation of the Rooming and Boarding House Act of 1979, N.J.S.A. 55:13B-1 to -16. Petitioner requested and received a hearing, which took place before the ALJ on January 8, March 15, and May 17, 2011, followed by the submission of briefs.
In his initial decision, the ALJ determined that the property was a "rooming house" under N.J.S.A. 55:13B-3(h), and that petitioner was its primary owner under N.J.S.A. 55:13B-3(f), but that she did not have a valid license to operate a rooming house, and no licensed operator was available as required under N.J.S.A. 55:13B-8. Pursuant to that provision, the ALJ deemed petitioner to be the operator, found her responsible for the failure to comply, see N.J.S.A. 55:13B-10(a), and determined that a $5,000 civil penalty was appropriate under N.J.S.A. 55:13B-10(b).
Petitioner appeals. We must hew to our standard of review. "'[O]rdinarily, we will not upset a determination by [an administrative agency] in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the [enabling legislation].'" Aqua Beach Condominium Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Under the Act, a "rooming house" is a building "which contains two or more units of dwelling space arranged or intended for single room occupancy, exclusive of any such unit occupied by an owner or operator," which does not fall within specified categories. N.J.S.A. 55:13B-3(a), (h). A "[u]nit of dwelling space" is "any room, rooms, suite, or portion thereof, whether furnished or unfurnished, which is occupied or intended, arranged or designed to be occupied for sleeping or dwelling purposes by one or more persons." N.J.S.A. 55:13B-3(j). "'Single room occupancy' means an arrangement of dwelling space which does not provide a private, secure dwelling space arranged for independent living, which contains both the sanitary and cooking facilities," with exceptions. N.J.S.A. 55:13B-3(i).
Petitioner does not dispute the accuracy of the Department's description of the physical layout of the property, which the ALJ adopted. Instead, she argues that the property "does not fit the physical description (construction) of a rooming house;" that "[t]here are defects in the evidence, and in the dates of the charges;" and that the Department's "closure of buildings is an abuse of process because it oversteps the authority of the legislature's Act which empowers the agency." We reject those arguments for substantially the reasons set forth in the initial decision of ALJ Moscowitz.
Petitioner also argues that the ALJ should have granted her motion to obtain testimony or records from the Probation Department and the Department of Youth and Family Services. We reject that argument for substantially the reasons set forth in the oral ruling during trial by ALJ Moscowitz.
On appeal, petitioner now argues that the Department's actions are discriminatory "in rooming house matters, including evictions;" that the Department's "standard for 'single' 'unrelated' people is discriminatory;" and that "[t]here are Constitutional Issues that have not been properly addressed," namely due process and protection of property. Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION