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New Jersey Department of Community Affairs v. Culhane

OAL Docket No. CAF 5610-99 (Department of Community Affairs 1999)

BOARDING HOUSES—Where a boarding house operator has the right to abate a violation and a right to an immediate re-inspection, the administrative agency must adhere to such a procedure even if the alleged hazard constitutes an imminent danger and the violation had occurred and been cured in the past.

The New Jersey Administrative Code requires that every rooming and boarding house licensee “shall have on duty at all times as many employees as may be needed to properly safeguard the health, safety and welfare of the residents, as required by these regulations. Such employees shall be adequately trained and supervised.” The Bureau of Rooming and Boarding House Standards (Bureau) charged that a particular rooming house was in violation of that regulation. On June 3, 1999, the Bureau served a Notice of Imminent Hazard and Orders to vacate, and the boarding house owner immediately requested a re-inspection and opportunity to abate the violation pursuant to the applicable statute. The Bureau transmitted the matter to the Office of the Administrative Law, where, on June 4, 1999, it was filed as a contested case and scheduled for a hearing on that very same day. What had happened was that the boarding house had been previously inspected on May 24, 1999 and the premises, which had between ten and fourteen mostly elderly residents, some of whom suffered from dementia, were found unsupervised. In that instance, on the very next day, the boarding house owner requested an inspection and that inspection was performed immediately. At the time of the re-inspection, the violation was found to be abated. Therefore, the Order of Imminent Hazard was withdrawn. Seven days later, the inspection that was the subject of this hearing was made and, again, no supervision found. For that reason, the second order to vacate the boarding house was issued, to which the boarding house owner responded by again requesting a re-inspection. The Bureau refused to reinspect. The Administrative Law Judge held that the Bureau’s evidence, if credible, was sufficient to justify a determination of violation of the regulation. Whether the particular violation constituted an imminent hazard could not be determined on the record, but the Judge found that the issue did not need to reached. The Judge did not believe that an order for vacation was a remedy contemplated for a violation of this sort. In addition, the Judge held that the failure of the Bureau to reinspect the boarding house after the second violation was a fatal defect for purposes of the Bureau’s request that the boarding house owner comply with its order. The statute provides for re-inspection within one working day of the receipt of such a notice and states “[i]f re-inspection is not conducted by the Commission within one working day of the receipt of the notice, occupancy of the rooming or boarding house may be resumed forthwith.” Having found that a timely request for re-inspection was made and that the Bureau failed to reinspect within one working day, the unambiguous provisions of the statute required that occupancy be resumed. The statute was intended to provide an opportunity to cure a violation even when the violation constitutes an imminent hazard. Fundamental due process and the strict language of the statute provide for an opportunity, however brief, to abate. Finally, the Judge held that the statute was designed to immediately vacate a boarding house or rooming house when conditions are such that imminent hazards exist that the owner and operator will not or cannot immediately abate. In the Judge’s view, that was not the case here.


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