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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. ">

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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).

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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. 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

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also Mayflower Secs. v. Bureau of Secs., 64 N.J. 85, 93 (1973). The correct regulation at issue here is N.J.A.C. 5:1019.2(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. 5:1019.2(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.

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Moreover, the Doughertys are not entitled to an exemption from the viewer requirement under 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." 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

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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. wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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