DEPARTMENT OF COMMUNITY AFFAIRS BUREAU OF CODE SERVICES v. WILLIAM MAJOR, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-07T32395-07T3

DEPARTMENT OF COMMUNITY AFFAIRS,

BUREAU OF CODE SERVICES,

Petitioner-Respondent,

v.

WILLIAM MAJOR, JR., PRESIDENT,

Respondent,

and

FUNTOWN PIER AMUSEMENTS,

Respondent-Appellant.

________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Department of Community

Affairs, Bureau of Code Services, No. BCS-946-05/

CAR-100-05.

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent-appellant Funtown Pier

Amusements (Lary I. Zucker and Walter F. Kawalec, III, of counsel; Mr. Kawalec, on the brief.)

Anne Milgram, Attorney General, attorney for

petitioner-respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel; Barbara Berreski, Deputy Attorney General, on the brief).

William Major, Jr., did not participate in

this appeal.

PER CURIAM

Funtown Pier Amusements ("Funtown") appeals from a Final Decision of the Commissioner of the Department of Community Affairs ("DCA") finding that Funtown violated various regulations enacted under the statute governing amusement rides, N.J.S.A. 5:3-31 to -57, and assessing a penalty totaling $45,000. After reviewing the record in light of the contentions advanced on appeal, we affirm the findings but modify the penalty.

Funtown operates a number of rides in Seaside Park, one of which was known as Arctic Circle. On July 2, 2005, Charles Carpenter, an employee of Funtown, was fatally electrocuted while loading passengers into Car 22 of Arctic Circle. The incident was investigated by Michael Brooks of the Occupational Safety and Health Administration and David Hewitt, a subcode official with the DCA. Their investigation revealed that Carpenter's fatal shock was not the first incident with that ride that day.

At approximately 10:00 p.m. on July 2, Peter Raykov, another employee of Funtown, received a shock when he touched the lap safety bar while loading passengers onto the ride. He said he became "stuck" in his position and could not release the bar and then blacked out. He reported the incident to Vincent Capone, Funtown's operations manager, who closed the ride. Capone notified Joseph Iozzi, Funtown's general manager, who dispatched Carpenter to investigate the situation and repair it. Iozzi noticed some time later that the ride was back in operation and asked Capone what had happened. Capone told him that Carpenter had unplugged several of the cars and put the remainder back in operation.

About twenty minutes later, Ivo Ranchev, also received a shock while loading passengers onto the Arctic Circle. He informed Capone and again Carpenter was sent to repair the ride. The ride was again returned to operation and shortly thereafter, yet another Funtown employee, Hristo Tarolov, was shocked when he touched the lap safety bar while loading passengers. He reported the incident to Iozzi and Carpenter and Carpenter was again dispatched to address the problem.

At approximately 11:30 p.m., Carpenter was assisting another Funtown employee, Jennifer McNamara, with loading passengers onto the ride. He told her not to touch the lap safety bar because he had not yet located the source of the shocks. He then touched the bar himself and was electrocuted.

Funtown had purchased the ride "used" from Wisdom Manufacturing in 1997. The ride was inspected and licensed by the DCA before Funtown put it into operation. Funtown performed routine maintenance on its rides during the off-season and rides were inspected and licensed by the DCA before Funtown resumed operations each new season. During the winter months of 2004-2005, Funtown performed a major renovation of Actic Circle and as part of that, installed new transformers under the cars. The old transformers that were removed were multi-tap transformers with slide pins. The new transformers were multi-tap transformers with lead pins. The new transformers came with mounting hardware, orange wire nuts to be placed on unused wires and an instruction sheet that stated "insulate all unused wire(s) to prevent possible short." Transformers perform the critical role of reducing high voltage electricity from a primary source to low voltage electricity for a secondary source. When Hewitt and Brooks looked underneath Car 22, they discovered that none of the unused wires on that car's new transformer had been insulated with the orange wire nuts or mounted as the instruction sheet had stated. Further investigation revealed that Funtown did not have maintenance logs recording the installation of these transformers or the repairs Carpenter had performed on the ride. Testing also revealed that there was no grounding wire on Car 22.

At the conclusion of the investigation, Funtown was charged with six violations of the regulations governing amusement rides: N.J.A.C. 5:14A-9.3(e), performing electrical repairs on Arctic Circle without documenting those repairs; N.J.A.C. 5:14A-9.6(a), having permitted Arctic Circle to operate on July 2, 2005, despite knowing it had an electrical malfunction; N.J.A.C. 5:14A-9.10(b), not having properly locked-out Arctic Circle immediately after Carpenter's accident; N.J.A.C. 5:14A-9.11(h), installing new transformers on Arctic Circle without having consulted the manufacturer on whether they were compatible; N.J.A.C. 5:14A-4.7(d), not having notified the DCA of the installation of the new transformers and not having documented the work performed in connection with their installation; and N.J.A.C. 5:14A-9.21(a), failing to properly install and maintain all electrical equipment and wiring.

A hearing was conducted before an administrative law judge with respect to these alleged violations. At that hearing, John Paluchowski, a licensed professional engineer, explained the importance of a grounding wire.

Normally, you have a grounding wire connected to all metallic pieces of the equipment, all electrically conductive pieces of equipment, because that's where electricity will flow. That's where the harm can be created, that's where there's a safety factor.

If . . . any of the electrically conductive pieces of an equipment are not connected electrically . . . back to the electrical panel where there's the grounding source to bring it to earth, there's no safe way for electricity to find its way back to that panel safely. It would then leave that equipment exposed to anybody that would come in contact to it.

He continued that

[e]lectricity is supposed to flow in a particular set of wires in order to keep it safe to the public. And when you have a breakdown of that, for whatever reason, then you have a hazard. And in the case of a missing grounding wire that's not there, that is a definite hazard.

The administrative law judge concluded that the violations had been proven and imposed a $20,000 penalty on the second count and a $5,000 penalty on each remaining count, for a total of $45,000. The Commissioner adopted this initial decision, modifying it only to the extent that the administrative law judge had included William Major, Jr., the principal of Funtown, as a responsible party; the Commissioner excluded Major individually as a responsible party.

We note first the limited scope of our review in a matter such as this. A final administrative decision should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted).

Our Supreme Court restated the four questions to be considered by a reviewing court:

(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.

[Karins, supra, 152 N.J. at 540 (citation omitted).]

More recently, the Court has noted that "the overarching informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-W. Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).

Guided by that framework, our review of this record satisfies us that there is no basis for us to overturn the findings and conclusions that Funtown violated these regulatory provisions. We do, however, agree with Funtown in one regard.

Funtown was charged with violating N.J.A.C. 5:14A-9.6(a), which provides that "[n]o person shall knowingly use or permit to be used an amusement ride which is not properly assembled or which is defective or unsafe in any of its parts, components, controls or safety equipment." N.J.S.A. 5:3-54 provides that "[a]ny person who interferes in any manner with the implementation of or otherwise fails to comply with the provisions of [the] act, shall be liable to a fine of not more than $5,000 per day for each violation to be adjudged, collected and enforced, in suit filed by the department . . . ."

The record showed that on July 2, 2005, there were four incidents of individuals being shocked on Arctic Circle and Funtown was assessed a $5,000 penalty for each incident, for a total of $20,000. A penalty can only be assessed, however, if a person permits an amusement ride to be used knowing that it is "defective or unsafe in any of its parts, components, controls or safety equipment." The record contains no evidence that Funtown knew that Arctic Circle was unsafe prior to the first Funtown employee, Peter Raykov, receiving a shock on July 2. There was thus no basis to impose a $5,000 penalty upon Funtown for that incident. Accordingly, we modify the penalty upon Funtown to $40,000. In all other respects, the decision is affirmed.

Affirmed as modified.

 

(continued)

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A-2395-07T3

February 20, 2009