JOSEPH FABICS, JR. v. DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF CODES AND STANDARDS, BUREAU OF ROOMING AND BOARDING HOUSE STANDARDS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4264-07T34264-07T3

JOSEPH FABICS, JR.,

Petitioner-Appellant,

v.

DEPARTMENT OF COMMUNITY

AFFAIRS, DIVISION OF CODES

AND STANDARDS, BUREAU OF

ROOMING AND BOARDING HOUSE

STANDARDS,

Respondent-Respondent.

____________________________

 

Argued March 2, 2009 Decided

Before Judges Reisner, Sapp-Peterson, and Alvarez.

On appeal from the Department of Community Affairs, Docket No. RBHS-027-07/1214-0145.

Christopher A. Ferrara argued the cause for appellant (American Catholic Lawyers Association, Inc., attorneys; Bertram P. Goltz, Jr., on the brief).

Debra A. Allen, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, or counsel; Ms. Allen, on the brief).

PER CURIAM

Petitioner Joseph Fabics, Jr., appeals three penalties assessed against him by the Department of Community Affairs, Division of Codes and Standards, Bureau of Rooming and Boarding House Standards (the Department), arising from his unlicensed operation of a rooming house. Fabics appealed the penalties to the Department, which referred the matter to the Office of Administrative Law (OAL). The administrative law judge (ALJ) affirmed the penalties, finding that Fabics' home in New Brunswick constituted two illegal rooming houses, one within the first floor, the other within the second floor. The adoption of the ALJ's decision on April 7, 2008, by Joseph V. Doria, Jr., the Commissioner of the Department, constituted final agency action. We affirm.

On appeal, Fabics raises the following points:

UNDER THE APPLICABLE STATUTORY DEFINITIONS, A "ROOMING HOUSE" IS SUCH ONLY IF IT PROVIDES "SINGLE ROOM OCCUPANCY," DEFINED AS NOT "PROVID[ING] A PRIVATE, SECURE DWELLING SPACE ARRANGED FOR INDEPENDENT LIVING": A STANDARD, SELF-SUFFICIENT APARTMENT. THIS IS THE ONLY INTERPRETATION WHICH COMPORTS WITH THE STATUTORY LANGUAGE, CAN BE APPLIED EVENHANDEDLY, GIVES ADEQUATE NOTICE AND IS NOT UNCONSTITUTIONALLY VOID FOR VAGUENESS, AND UNDER THAT STANDARD THE APPELLANT'S TWO-STORY HOUSE WITH ITS TWO APARTMENTS IS CLEARLY NOT A ROOMING HOUSE. THE COMMUNITY AFFAIRS COMMISSIONER'S CONTRARY DECISION THEREFORE IS WRONG AND SHOULD BE REVERSED.

A. THE STATUTE IS EXPLICIT: A "ROOMING HOUSE" IS SUCH ONLY IF IT PROVIDES "SINGLE ROOM OCCUPANCY," DEFINED AS NOT "PROVID[ING] A PRIVATE, SECURE DWELLING SPACE ARRANGED FOR INDEPENDENT LIVING." IF THIS CRITERION IS NOT MET, THE HOUSING IS A STANDARD, SELF-SUFFICIENT APARTMENT, NOT A ROOMING HOUSE. THE APPELLANT'S TWO-STORY HOUSE DOES NOT FIT THE CRITERION, AND THUS THE COMMISSIONER WAS DUTY-BOUND TO APPLY THE STATUTE AS WRITTEN AND FIND THE APPELLANT NOT GUILTY. BECAUSE HE DID NOT DO SO, THE DECISION SHOULD BE REVERSED.

B. A LAW IS UNCONSTITUTIONALLY VAGUE WHEN IT DOES NOT WITH SUFFICIENT CLARITY PROHIBIT THE CONDUCT AGAINST WHICH IT IS SOUGHT TO BE ENFORCED. THE I-KNOW-IT-WHEN-I-SEE-IT APPROACH EMPLOYED BY THE AGENCY HERE IS UNCONSTITUTIONALLY VAGUE, FOR IT DOES NOT APPRISE AN ORDINARY PERSON OF ITS MEANING AND REACH. A STATUTE ALWAYS BEING CONSTRUED TO AVOID UNCONSTITUTIONALITY, THIS COURT SHOULD INSTEAD EMPLOY THE STANDARD DETAILED HERE THE STANDARD SPECIFIED BY THE LEGISLATURE AND REVERSE THIS DECISION.

On May 24, 2007, the Department assessed a $5000 penalty against Fabics for violation of Section 7(a) of the Rooming and Boarding House Act of 1979 (RBHA), N.J.S.A. 55:13B-1 to -21, due to his unlawful operation of a rooming house without a valid license. A second $5000 penalty issued for a violation of N.J.A.C. 5:27-1.6, as a result of Fabics' failure to provide proof of local zoning approval for the operation of a rooming house "for the number of intended occupants." A third $5000 penalty issued because Fabics violated N.J.A.C. 5:27-1.3(c)(4) in failing to produce a certificate of inspection showing compliance with all of the provisions of the Uniform Fire Code applicable to rooming houses.

On June 6, 2007, Fabics appealed the three orders to the Department, and the matter was transferred to the OAL as a contested case. Cross-motions were filed for a summary decision, and the record closed on January 25, 2008. The ALJ affirmed the Department's determination that Fabics' private residence constituted two unlicensed rooming houses. The Commissioner thereafter adopted the ALJ's decision in its entirety, resulting in this appeal.

Fabics' two-story, two-family residence is divided such that on each floor, there are three bedrooms, a kitchen and a bath. Each floor has its own furnace, hot water heater, utility meters, and phone line. Fabics occupies a first-floor bedroom and rents out all other bedrooms. The building was inspected by the Bureau of Rooming and Boarding House Standards (the Bureau) investigator, Angelo J. Mureo, as a result of complaints by former tenants that Fabics was operating an illegal rooming house.

On May 18, 2007, Mureo inspected the property and concluded that Fabics was indeed operating two unlicensed rooming houses, one on each floor. The individual bedrooms did not have operable locks. Fabics told Mureo that leases signed by the five unrelated tenants called for each to pay $500 in rent and a portion of the utilities monthly. Mureo concluded that Fabics had fashioned the leases so as to circumvent rooming house rules and regulations. Multiple tenants sign a single lease document, despite the varying start dates of their terms of occupancy.

We review the Bureau's action and the Department's final agency decision in a limited fashion. See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). Our role is to "survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Ibid. We give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . [give] due regard also to the agency's expertise where such expertise is a pertinent factor.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

We defer to an agency's interpretation of an ambiguous statute so long as the interpretation is not plainly unreasonable. In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, Stranded Costs & Restructuring Filings, 167 N.J. 377, 384, cert. denied, 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001). We give substantial deference to an agency's interpretation of an ambiguous statute because the agency is charged by the Legislature with the responsibility of implementing relevant statutes. Ibid.

We do not reverse an agency's decision unless it is "'arbitrary, capricious or unreasonable' or it is unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether an agency decision is arbitrary or capricious, judicial review is limited to four inquiries:

(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 v. City of Atl. City, 152 N.J. 532, 540 (1998) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

Even if we would have come to a different result, so long as "the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm." Clowes, supra, 109 N.J. at 588.

As noted by the ALJ, the RBHA defines "boarding house" as:

any building, together with any related structure, accessory building, any land appurtenant thereto, and any part thereof, 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, and wherein personal or financial services are provided to the residents.

[N.J.S.A. 55:13B-3(a).]

"Single room occupancy" is defined as "an arrangement of dwelling space which does not provide a private, secure dwelling space arranged for independent living, . . . contain[ing] both the sanitary and cooking facilities required in dwelling spaces." N.J.S.A. 55:13B-3(i). A "unit of dwelling space" is defined as "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). A "rooming house" is "a boarding house wherein no personal or financial services are provided to the residents." N.J.S.A. 55:13B-3(h).

Based on these statutory definitions, the ALJ concluded: "Essentially, then, to qualify as a rooming house, a building must contain two or more rooms that are intended for sleeping or dwelling and that are not arranged for independent living." He then noted Fabics' contention that each separate floor of his residence, rather than each separate bedroom, was the "relevant measure of dwelling space."

Because the "rooming house" definition specifically excludes any unit occupied by the owner, Fabics urges that his occupation of a room in the first-floor unit prevents that unit from being one of the two units of dwelling space necessary to establish a rooming house. See N.J.S.A. 55:13B-3(a). Fabics also argues that if each floor is the relevant dwelling space, the requirement of "single room occupancy" is not met because each floor is a secure place containing all that is necessary for independent living, including a kitchen and bathroom. See N.J.S.A. 55:13B-3(a) and N.J.S.A. 55:13B-3(i).

The ALJ decided, to the contrary, that each bedroom was the relevant dwelling space. He noted that each room lacked the sanitary or kitchen facilities required for independent living, and that the tenants were unrelated to one another, had not been acquainted prior to taking occupancy, and had negotiated separate lease agreements. He also noted that the tenants were not living independently, as evidenced by their communal use of the kitchen and bathroom. He concluded that the last of these factors was the most significant. See, e.g., Bureau of Rooming & Boarding House Standards v. Schneider, CAF 3554-06, initial decision, (January 27, 2007), http://lawlibrary.rutgers. edu/oal/search.html (finding that a rooming house existed where rooms were individually rented and did not include kitchen, laundry facilities, or bathroom "accommodations"). We concur with these findings.

The absence of deadbolt security locks on the bedroom doors is not, as Fabics urges, dispositive. Although the presence of security locks is often a significant factor in a court's determination that a rooming house exists, rooming houses have been found to exist where rooms do not have locks or have locks to which tenants do not have keys. See Bureau of Rooming & Boarding House Standards v. Last Chance Recovery, Inc., CAF 8725-98, initial decision, (February 27, 2001), http://law library.rutgers.edu/oal/search.html (finding that a rooming house existed even though bedroom doors did not have locks); Country Lane Builders, Inc. v. Dep't of Cmty. Affairs, 96 N.J.A.R.2d 94 (Dep't of Cmty. Affairs)(finding that a rooming house existed where although rooms had locks, tenants did not have keys; tenants shared bathroom and kitchen facilities, as well as common areas; and occupancies started at different times). In the final analysis, it is the fact that each tenant individually rents a room that is dispositive. In re Frank Gialanella, 96 N.J.A.R.2d 40 (Dep't of Cmty. Affairs).

In this case, each bedroom lacks the elements necessary for independent living. No tenant has a relationship with any other tenant. Each tenant separately formed a landlord-tenant relationship directly with Fabics. As the ALJ said:

While the petitioner tries to establish otherwise by having the various tenants sign a common lease document, this attempt to create the appearance of a joint leasing situation is ineffective as the February 2, 2007 "Apartment Lease" for "Apartment #2" still has a different lease term for each of the three tenants on the lease.

The Department's conclusion that the totality of the circumstances established Fabics' operation of an unlicensed rooming house is reasonable and supported by the credible competent evidence in the record. See Clowes, supra, 109 N.J. at 587.

Fabics also contends that the Department's interpretation and application of the RBHA is unconstitutionally vague, and that he was not "reasonably apprised, as a matter of common intelligence, in light of ordinary human experience, that his particular conduct was unlawful." State v. Lashinsky, 81 N.J. 1, 18 (1979). "As a matter of due process, if a law is so vague 'that persons of common intelligence must necessarily guess at its meaning and differ as to its application,' it is considered void and unenforceable." State v. Rogers, 308 N.J. Super. 59, 65 (App. Div.), certif. denied, 156 N.J. 385 (1998) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983)) (internal quotations omitted).

A statute can be challenged as either "facially" vague or vague "as applied." Rogers, supra, 308 N.J. Super. at 65. A statute is categorized as facially vague when "there is no conduct that it proscribes with sufficient certainty." State v. Cameron, 100 N.J. 586, 593 (1985). "If a statute does not prohibit the conduct sought to be proscribed with sufficient clarity it can be challenged 'as applied.'" Rogers, supra, 308 N.J. Super. at 65 (citing State v. Afanador, 134 N.J. 162, 175 (1993)). In that case, the court must determine "whether the statute clearly extends to the acts that the State alleges [the] defendant committed." Afanador, supra, 134 N.J. at 165.

This court has noted, however, that "[e]ven if behavior is not susceptible to precise definition, the statute may be constitutional." State v. Saunders, 302 N.J. Super. 509, 521 (App. Div.), certif. denied, 151 N.J. 470 (1997). The court concluded:

[W]here the legislative regulatory objective is appropriate and the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to the use of such language. That there may be marginal cases in which it becomes difficult to determine the side of a line on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a penal offense.

[Rogers, supra, 308 N.J. Super. at 66 (quoting In re B.N., 99 N.J. Super. 30, 34 (App. Div. 1968)) (internal citations omitted).]

The Supreme Court previously addressed the constitutionality of the RBHA, holding that "[u]nder New Jersey law[,] a challenged statute will be construed to avoid constitutional invalidity if the provision is 'reasonably susceptible to such interpretation.'" Market Street Mission v. Bureau of Rooming & Boarding House Standards, Dep't of Cmty. Affairs, 110 N.J. 335, 340-41, appeal dismissed, 488 U.S. 882, 109 S. Ct. 209, 102 L. Ed. 2d 201 (1988) (quoting State v. Profaci, 56 N.J. 346, 350 (1970)). The Court added: "We find that the legislative history confirms that the Legislature would have intended the statute to extend as far as its constitutional reach would permit." Market Street Mission, supra, 110 N.J. at 342. The Court further stated: "We are confident that the Bureau will pursue the least restrictive means to achieve the State's overriding concern. At this juncture we need not invalidate the Act's general requirements merely because they may be amenable to an unconstitutional application." Id. at 343.

The enactment of the RBHA was prompted by several boarding house fires that resulted in fatalities. Id. at 341. The Legislature found that the residents of such facilities were "predominantly elderly, disabled and poor, many of whom need social, personal and financial services, protection from building hazards and protection from unscrupulous and predatory neighbors." N.J.S.A. 55:13B-2. The Legislature concluded that the RBHA was "necessary to provide for the health, safety and welfare of all those who reside in rooming and boarding houses in this State." Ibid. This legislative objective is clear, unambiguous and obviously appropriate. The RBHA is therefore, as previously decided, not unconstitutionally vague on its face.

 
As applied to Fabics, the Department's totality-of-the-circumstances approach does not by itself make the legislation impermissibly vague. See Rogers, supra, 308 N.J. Super. at 65. Based on the totality of the circumstances, Fabics' residence fell squarely within the definition of a rooming house. The Legislature intended the statute to extend as far as constitutionally permissible for the protection of the public. Fabics has not established that the RHBA is impermissibly vague as applied to his residence. See Market Street Mission, supra, 110 N.J. at 342.

Affirmed.

(continued)

(continued)

13

A-4264-07T3

May 11, 2009