DEPARTMENT OF COMMUNITY AFFAIRS BUREAU OF HOUSING INSPECTION - v. TIMOTHY DOUGHERTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0643-07T10643-07T1

DEPARTMENT OF COMMUNITY AFFAIRS,

BUREAU OF HOUSING INSPECTION,

Petitioner-Respondent,

v.

TIMOTHY DOUGHERTY and MARY

DOUGHERTY, his wife,

Respondents-Appellants.

_____________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from a Final Agency Decision of the Department of Community Affairs, Bureau of Housing Inspection, Docket No. BHI-117-071424-00444-C.

DeCotiis, FitzPatrick, Cole and Wisler, LLP, attorneys for appellants (Jonathan L. Williams, of counsel; Alice M. Penna, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Jonathan J. Greenberg, Deputy Attorney General, on the brief).

PER CURIAM

Timothy and Mary Dougherty ("the Doughertys") appeal a final agency decision of the Department of Community Affairs ("the DCA") finding the Doughertys' three-family residence in violation of N.J.A.C. 5:10-19.2(a)(5), a regulation of the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28 ("HMDL"). The dispute concerns whether the Doughertys are required by that regulation to install viewers (or "peepholes") on the individual entry doors of the apartment units within their building. We sustain the DCA's reasonable interpretation and enforcement of the regulation, and affirm its final decision.

I.

In 1999, the Doughertys purchased a house at 10 Westmore Avenue in Morristown, where Ms. Dougherty had been living since 1989. Built shortly after the Civil War, the house is listed as what correspondence in the record describes as a "contributing building" in the Morristown Extended Historic District, an area which is included in the State and National Registers of Historic Places.

Sometime in the 1970s, a previous owner converted the house into a three-family dwelling. The Doughertys continue to maintain it as such. Consequently, the residence falls under the HMDL and is subject to the regulations as codified at N.J.A.C. 5:19.2. The DCA's Bureau of Housing Inspection ("the Bureau") has statutory responsibility for the enforcement of the HMDL. N.J.S.A. 55:13A-4.

To enter the residence, one must pass through a set of unlocked double doors (the "First Entry Doors") that lead into the vestibule of the home. Once inside the vestibule, entrants encounter a locked door (the "Second Entry Door"). Residents have keyed-entry through the Second Entry Doors, while those without a key must be let in by someone else. The vestibule contains a set of three doorbells, one for each of the three dwelling units.

About two-thirds of the vestibule doors are composed of glass windows, allowing persons inside the building to view the vestibule prior to opening the Second Entry Door. The vestibule is also viewable from a second-floor window. The window is inside the common hallway, but the exact location of the window is not specified.

The record and accompanying photographs reflect that after coming into the residence's common hallway, an entrant will encounter a main entrance door to the first floor apartment and a set of stairs leading to the two other apartments on the second floor. The second-floor window appears to be in the second floor hallway, overlooking the stairs and the common hallway, thereby allowing second-floor residents to see through glass windows of the Second Entry Door into the vestibule.

After passing through the Second Entry Doors, entrants step into a common hallway. Each apartment has its own entry door, which is equipped with a security lock and chain door guard.

According to the Doughertys, the DCA had been inspecting the house since it was converted into a multi-family dwelling in the 1970s but had never before issued a violation for the viewers. Prior to the 2005 inspection at issue in this appeal, the Bureau most recently conducted an inspection of the Doughertys' residence on March 5, 2003, finding no violations at that time.

On March 31, 2005, Inspector Marlo M. Carroll from the Bureau conducted an inspection of the Doughertys' home. She cited the Doughertys for several violations, including several that were characterized as "life safety" violations involving the front entrance doors to the individual units. Carroll also conducted a first re-inspection on October 19, 2005; a second re-inspection on December 5, 2006; and a third and final re-inspection on April 10, 2007. The Doughertys did not challenge the other violations. As this appeal relates solely to the alleged violations of the viewer requirement, we discuss only the facts relating to those particular violations.

Instructions on the back of the inspection notice stated "Violations/reinspections. Important Notice to Owners." The notice apparently included instructions that if the homeowners intended to contest the notice they must do so in writing within fifteen days.

As of the final re-inspection on April 10, 2007, all violations were abated except for the three violations relating to the viewer requirement. The DCA contends that these outstanding conditions transgress N.J.A.C. 5:10-19.2(a)(5), a regulation amended in 1993. That regulation, which has been in force through the Doughertys' ownership, requires that the entrance doors to individual dwelling units be equipped with, among other things, "a viewing device . . . located so to enable a person on the outside of the entrance door to view a person immediately outside." Ibid.

Upon receiving the DCA's final inspection report, issued on April 27, 2005, the Doughertys did not contest the accuracy of the notice of inspection. They did not request an extension of time to comply with the viewer requirement, and they did not request an exception in a timely manner.

Instead, in August 2005, the Doughertys contacted the Morristown Historic Commission regarding the viewer requirements. Mr. Dougherty contended that the Commissioner of the Historic Commission informed him that the Doughertys did not have to make any changes. The Commissioner offered to send a letter to the Bureau, indicating that the Doughertys' home was entitled to an exemption as a contribution house in the historic district.

Although the Doughertys were cited for multiple violations relating to the individual apartment doors, including the viewers, door closers, chain guards, and deadbolts, all violations have since been abated except for the viewers. The Bureau assessed a total penalty of $1,150.

The Doughertys object to installing modern-day viewers in the 150 year-old twelve-foot-high doors that are original to the home. They contend that the viewers would change the "dynamic" of the door, "ruin the character of the home," and serve "no safety purpose."

The dispute was referred to the Office of Administrative Law ("OAL") for a hearing as a contested case. The OAL hearing was conducted in May 2007 before an Administrative Law Judge ("ALJ"). Inspector Carroll and Compliance Officer Dyott testified on behalf of the agency, and Mr. Dougherty was the sole defense witness.

In her First Initial Decision issued on May 25, 2007, the ALJ concluded that the Doughertys' house should be exempted from the viewer requirement because of the building's historic nature. However, the DCA Commissioner remanded the matter back to the ALJ because the First Initial Decision had relied on an incorrect section of the regulations.

On remand, the ALJ found in her Second Initial Decision, dated July 31, 2007, that the correct regulation, N.J.A.C. 5:10-19.2(a)(5), does call for viewers to be installed. Even so, the ALJ concluded that the requirement should not be enforced because it would have "no positive impact on the health and safety of the occupants" and because the installation of viewers would negatively affect "the value of [this] historic property." The ALJ abated any additional penalties for the lack of viewers, but did sustain the $1,150 in penalties assessed initially.

The Acting Commissioner of the DCA rejected the ALJ's recommendations. In a written final agency decision issued on August 24, 2007, the Acting Commissioner determined that the Doughertys should not be exempted "from the requirement of placing viewers on the individual unit doors." Although the Acting Commissioner recognized "the importance of maintaining the historic integrity of the building," he concluded that "a building that is to be occupied as a multiple dwelling must nevertheless conform to modern health and safety standards." Such requirements, noted the Acting Commissioner, "include not only code-compliant plumbing and electrical systems, but also the devices that are required in order to protect the security of building occupants."

The Acting Commissioner differed with the ALJ on the adequacy of security within the house in the absence of unit-specific viewers. The Acting Commissioner recognized that the doorbells and the lock on the front entry door provided adequate protection against "unauthorized persons seeking to enter the building." But, as the Acting Commissioner noted, the security risk does not end there.

As the Acting Commissioner found, the provision requiring installation of viewing devices

serves a different, though related, purpose; it is meant to protect the residents of a unit from any unauthorized person who might seek entry to the unit from within the building, thus serving both as a second line of defense against any intruders who might gain access to the building and as protection against others in the building who might seek entry into the unit.

Based on these safety concerns, the Acting Commissioner ruled that the Doughertys are required to install the individual viewers and sustained the $1,150 in penalties.

The Doughertys appeal, contending that the DCA's final decision should be overturned because: (1) the Acting Commissioner mis-cited the pertinent regulation; (2) the viewer regulation does not apply to the doors in question here; and (3) even if the regulation is construed to apply, the final decision is not supported by the language of the HMDL. In essence, the Doughertys urge us to reject the agency's interpretation of the regulation and its denial of a hardship exemption.

II.

Our standard of review in this administrative law case is a limited one. In essence, our function in a case of this nature that does not implicate any constitutional issues, is "to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Township of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). We must examine 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). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Department of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Generally, the wisdom, prudence and good sense of the Legislature in the enactment of law are not questions for the judiciary to resolve." Id. at 57 (citing Burton v. Sills, 53 N.J. 86, 95 (1968)); see also Burt v. West Jersey Health Systems, 339 N.J. Super. 296, 309 (App. Div. 2001). However, we are not bound by the agency's legal opinions. G.S. v. Dept. of Human Servs., Div. of Youth and Family, 157 N.J. 161, 170 (1999); see also Mayflower Secs. v. Bureau of Secs., 64 N.J. 85, 93 (1973). The correct regulation at issue here is N.J.A.C. 5:10-19.2(a)(5), which, although at times mis-cited by the parties, is the regulation relied upon by the ALJ in her Second Initial Decision and by the Acting Commissioner. That regulation provides:

All entrance doors to each dwelling unit shall be equipped with a chain door guard so as to permit partial opening of the door, and a viewing device installed on the designated main entrance door to the dwelling unit, located so to enable a person on the inside of the entrance door to view a person immediately outside.

[N.J.A.C. 5:10-19.2(a)(5).]

The Doughertys contend that since the regulation does not define the terms "entrance doors" or "designated main entrance," they need not comply with its mandate for viewers. We disagree.

The plain language of N.J.A.C. 5:10-19.2(a)(5) distinguishes between "[a]ll entrance doors to each dwelling unit," and "the designated main entrance door to the dwelling unit." The regulation mandates that all entrance doors to individual dwelling units be equipped with a chain door guard. Ibid. However, the regulation only requires the "designated main entrance door to the dwelling unit" be equipped with a viewing device. Ibid.

The Doughertys erroneously suggest the "main entrance door" referred to in the regulation is the common doorway, i.e., the Second Entry Door. As the DCA accurately points out, "the use of the phrase 'to the dwelling unit' differentiates such a door from the entrance doors to the building," components which are separately regulated. Subsection (a)(5) discusses only doors to dwelling units, namely "all entrance doors" to dwelling units, and the "main entrance door" to the dwelling unit. N.J.A.C. 5:10-19.2(a)(5). The regulation bespeaks the objective of the viewer requirement: "to enable a person on the inside of the entrance door [to the dwelling unit] to view a person immediately outside." Ibid.

The Second Entry Door constitutes an "exterior entrance door leading to [an] interior common area[]" therefore, subsection (a)(8), not subsection (a)(5), is the regulation applicable to the Second Entry Door. See N.J.A.C. 5:10-19.2(a)(8). Subsection (a)(8) only requires the installation of a viewing device for such entrance doors "if it would not otherwise be possible to see a person seeking to enter without opening the door." Ibid. The second Entry Door to the Doughertys' home has a large window. Accordingly, the Bureau did not require installation of a viewer at that location.

As the language of N.J.A.C. 5:19-19.2(a)(5) clearly indicates, "a viewing device [must be] installed on the designated main entrance door to the dwelling unit." (Emphasis added). The Acting Commissioner correctly interpreted the regulation, and his final decision should be given deference by this court.

Moreover, the Doughertys are not entitled to an exemption from the viewer requirement under N.J.S.A. 55:13A-11(a), as the Acting Commissioner reasonably found that the absence of viewers in the main entrance doors to the dwelling units could unreasonably jeopardize the health, safety and welfare of the intended occupants. The exemption provision in the statute, N.J.S.A. 55:13A-11(a), states that:

No [] exceptions shall be granted in any particular case unless the commissioner shall find: (1) that strict compliance with any such regulation, if required would result in undue hardship to such owner; and (2) that the exception, if granted, will not unreasonably jeopardize the health, safety and welfare of intended occupants and the public generally.

[(Emphasis added).]

The Commissioner has the discretion to grant exceptions to the regulations in the Hotel and Multiple Dwelling Law, as outlined in N.J.S.A. 55:13A-11. The Commissioner shall not grant exceptions except in cases where: (1) adherence with the regulation would cause undue hardship for the homeowner, and (2) the exception would not jeopardize the health, safety and welfare of the occupants. Ibid. Therefore, in order to qualify for an exception, a homeowner must satisfy both prongs of the test.

More than financial hardship is required to constitute "undue hardship." The Hotel and Multiple Dwelling Law mandates liberal interpretation. N.J.A.C. 5:10-1.5(a). The Legislature enacted the law in order to establish the minimum safeguards "reasonably necessary to the health, safety and welfare of the occupants or intended occupants of any multiple dwelling." N.J.S.A. 55:13A-7; Trentacost v. Brussel, 82 N.J. 214, 230 (1980).

We evaluated the meaning of "undue hardship" in this provision in Renan Realty Corp. v. Dep't of Community Affairs, 182 N.J. Super. 415, 420 (App. Div. 1981). There, the property owners requested an exception to the regulation of the Hotel and Multiple Dwelling Law requiring the installation of a second means of egress. Id. at 417. The owners argued that compliance with the regulation would result in undue hardship, and that the exception would not unreasonably jeopardize the health, safety and welfare of the occupants. Id. at 417-18. The Commissioner denied the request for an exception. Id. at 418. Upon review, we concluded that "financial hardship alone does not rise to the level of 'undue hardship' contemplated by the statute. The law recognizes that great hardship may be imposed upon an owner if such hardship is necessary to protect the health, safety or welfare of the public." Id. at 420.

Similarly, in Bureau of Housing Inspection v. Bistricer, 93 N.J.A.R.2d (CAF) 43 (Aug. 23, 1993), aff'd, 95 N.J.A.R. (CAF) 99 (July 26, 1995), the DCA Commissioner denied a request for an exception to the self-closing/self-locking door requirement, dismissing the owner's arguments for financial hardship in consideration of the tenants' safety and security.

In his Second Final Decision in this case, the Acting Commissioner determined that the Doughertys were not eligible for an exception from the viewer requirement, as the Acting Commissioner determined that such an exception would place the security of building occupants at risk. Although the ALJ determined that it would be a significant hardship for the Doughertys to install viewers in the historic doors in their home, it is ultimately within the discretion of the Acting Commissioner to determine whether the hardship is necessary to protect the health, safety or welfare of the public. We further note that the Doughertys cite to no statute or other law demonstrating that the house's historical status trumps the regulation mandate of unit-specific viewers. The record also does not address the feasibility of the Doughertys removing and storing the original historic doors and temporarily replacing them with doors with modern-day viewers while the building is used as a multiple dwelling.

The Acting Commissioner reasonably determined that, in accordance with the regulatory intent of the Hotel and Multiple Dwelling Law, the viewing devices are necessary to maintain safety and security as "a second line of defense" against would-be intruders, and, as such, his final decision should be sustained.

For all of these reasons, we affirm the DCA's final agency determination, substantially for the reasons expressed in the Acting Commissioner's written decision of August 24, 2007.

 

The Doughertys' brief states that the Second Entry Doors "are locked and can only be opened by the occupants of the home (both from the inside and out)," although the door does not appear to be a double-keyed lock.

Alvin Dyott, Compliance Officer with the Bureau of Housing and Inspection, testified that violations are assessed a higher penalty if they are considered fire or life safety violations than if they are considered non-life safety violations. As Dyott explained: "life safety violations are [items such as] battery operated smoke detectors, electrically interconnected smoke detectors, deadbolt locks, chain guards, door closers . . . and viewers . . . it's been proven [that] these items are of a fire/life safety nature. They are assessed a slightly higher amount." (Emphasis added).

N.J.S.A. further requires a homeowner seeking an exception to file a written application for the exception within 30 days of receiving the order requiring compliance. N.J.S.A. 55:13A-11; N.J.A.C. 5:10-1.15(a). The Doughertys did not file a proper and timely application for an exception; the Doughertys instead requested a hearing in January 2007, eight months after the application deadline expired. The untimeliness of their application aside, the Doughertys do not qualify for an exception.

(continued)

(continued)

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A-0643-07T1

March 27, 2009