Salvation Army v. Department of Community Affairs of State of N.J.
| Decision Date | 05 November 1990 |
| Docket Number | No. 89-5705,89-5705 |
| Citation | 919 F.2d 183 |
| Parties | SALVATION ARMY (The), Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS OF the STATE OF NEW JERSEY, John P. Renna, Commissioner of the Department of Community Affairs of the State of New Jersey, Charles Mysak, Supervisor of Enforcement, Bureau of Rooming and Boarding House Standards of the Department of Community Affairs of the State of New Jersey, and Bonnie Watson Carter, Chief, Bureau of Rooming and Boarding House Standards of the Department of Community Affairs of the State of New Jersey. |
| Court | U.S. Court of Appeals — Third Circuit |
William J. Moss, Michael G. Dolan (argued), Cadwalader, Wickersham & Taft, New York City, Peter M. Burke, Young, Rose & Millspaugh, P.C., Roseland, N.J., for appellant.
Peter N. Perretti, Jr., Atty. Gen. of N.J., Mary C. Jacobson, Deputy Atty. Gen., John J. Chernoski (argued), Deputy Atty. Gen., Trenton, N.J., for appellees.
Before SLOVITER, BECKER, and STAPLETON, Circuit Judges.
In this action The Salvation Army ("TSA") seeks an exemption from the requirements of the New Jersey Rooming and Boarding House Act of 1979, N.J.S.A. 55:13B-1 et seq. ("the Act"), and the regulations promulgated thereunder. After the defendants, consisting of the agency, bureau, and individuals responsible for enforcement of the Act, agreed to grant an exemption to TSA with respect to a number of provisions of the Act and regulations, the district court granted summary judgment in favor of the defendants and vacated the preliminary injunction which had previously been issued.
On appeal, TSA contends that the defendants' concessions are insufficient to accommodate its right to free exercise of religion, both because the exemptions granted to it are not legally binding and because all of the provisions of the Act and regulations, whether or not the subject of an exemption, impermissibly intrude upon the practice of its religion. Initially, we conclude that in light of the exemptions granted by the defendants, TSA is not currently entitled to a declaratory judgment concerning the constitutionality of those portions of the Act and regulations from which it has been exempted. The scope of the case is thus materially narrowed.
While we had this appeal under advisement, the Supreme Court announced its decision in Employment Division, Department of Human Resources of Oregon v. Smith, --- U.S. ----, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) ("Smith"). 1 Since that decision appeared to provide significant new guidance on the scope of the free exercise clause, we requested supplemental briefing from the parties. After considering Smith and the comments of the parties thereon in the context of the provisions of the Act and regulations as to which the defendants still insist upon compliance by TSA, we conclude that all of TSA's objections to those provisions based on the free exercise clause alone must be rejected. We further conclude that TSA's claims under the equal protection and establishment clauses of the Constitution are without merit.
In addition to its free exercise claim, TSA's complaint asserts that the Act violates the related rights to freedom of association of it and its members, as well as their First Amendment rights generally. While these claims were largely ignored throughout the proceedings until we requested supplemental briefing in light of Smith, the seminal nature of Smith justifies TSA's renewed emphasis on these aspects of its complaint. Accordingly, we will consider the possibility that TSA might have a valid freedom of association or free speech claim. We conclude that such a possibility does exist, and will remand this case to the district court for further consideration.
New Jersey's Rooming and Boarding House Act of 1979 was enacted in response to a number of deadly boarding home fires which focused public attention on the unsafe and unsanitary conditions that existed in many of these facilities. See Market Street Mission v. Bureau of Rooming and Boarding House Standards, Department of Community Affairs, State of New Jersey, 110 N.J. 335, 541 A.2d 668, 671 (N.J.), appeal dismissed, 488 U.S. 882, 109 S.Ct. 209, 102 L.Ed.2d 201 (1988); see generally Gordon & Lazarus, New Jersey's Rooming and Boarding House Act: Its Effects and Effectiveness, 12 Seton Hall L.Rev. 484 (1982). But the Act as written goes far beyond this initial motivation to ensure fire safety and safeguard the health of the residents; 2 in the course of examining the problem, the legislature learned that residents of rooming and boarding houses are frequently exploited by the operators of the facilities in a number of ways, and concluded that "[t]he residents of such facilities are 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. Accordingly, the legislature created a detailed statutory scheme requiring licensing of all rooming and boarding house operators, and regulating virtually every aspect of the conduct of these facilities.
For the most part, the Act delegates to the Commissioner of the Department of Community Affairs ("the Commissioner") responsibility for establishing substantive standards "including, but not limited to, standards to provide for the following:"
a. Safety from fire;
b. Safety from structural, mechanical, plumbing and electrical deficiencies;
c. Adequate light and ventilation;
d. Physical security;
e. Protection from harassment, fraud and eviction without due cause;
f. Clean and reasonably comfortable surroundings;
g. Adequate personal and financial services rendered in boarding houses;
h. Disclosure of owner identification information;
i. Maintenance of orderly and sufficient financial and occupancy records;
j. Referral of residents, by the operator, to social service and health agencies for needed services;
k. Assurance that no constitutional, civil or legal right will be denied solely by reason of residence in a rooming or boarding house;
l. Reasonable access for employees of public and private agencies, and reasonable access for other citizens upon receiving the consent of the resident to be visited by them; and
m. Opportunity for each resident to live with as much independence, autonomy and interaction with the surrounding community as he is capable of.
N.J.S.A. 55:13B-6.
Pursuant to this delegation, the Commissioner has promulgated a detailed set of regulations too lengthy and detailed to summarize here. N.J.A.C. 5:27-1.1 et seq. As an example of the level of detail of these regulations, all facilities must have a living room "contain[ing] comfortable chairs sufficient for at least two-thirds of the residents or intended residents ... [and] sufficient space for socializing and for such recreational activities as card playing, reading, letter writing and watching television." N.J.A.C. 5:27-7.3. Garbage cans must be metal "or other approved material." Id. 5:27-4.3. If the facility has a lawn, deck, or porch, again chairs must be provided. Id. 5:27-7.4(a). And so forth.
The legislature also created, as a supplement to the Act, a "bill of rights" for residents of such facilities. N.J.S.A. 55:13B-17 et seq.
Every resident of a boarding facility shall have the right:
a. To manage his own financial affairs;
b. To wear his own clothing;
c. To determine his own dress, hair style, or other personal effects according to individual preference;
d. To retain and use his personal property in his immediate living quarters, so as to maintain individuality and personal dignity, except where the boarding facility can demonstrate that such would be unsafe, impractical to do so, infringes upon the rights of others and that mere convenience is not the facility's motive to restrict this right;
e. To receive and send unopened correspondence;
f. To unaccompanied access to a telephone at a reasonable hour and to a private phone at the resident's expense;
g. To privacy;
h. To retain the services of his own personal physician at his own expense or under a health care plan and to confidentiality and privacy concerning his medical condition and treatment;
i. To unrestricted communication, including personal visitation with any person of his choice, at any reasonable hour;
j. To make contacts with the community and to achieve the highest level of independence, autonomy, and interaction with the community of which he is capable;
k. To present grievances on behalf of himself or others to the operator, State governmental agencies or other persons without threat or reprisal in any form or manner whatsoever;
l. To a safe and decent living environment and considerate and respectful care that recognized the dignity and individuality of the resident;
m. To refuse to perform services for the boarding facility, except as contracted for by the resident and the operator;
n. To practice the religion of his or her choice, or to abstain from religious practice; and
o. To not be deprived of any constitutional, civil or legal right solely by reason of residence in a boarding facility.
N.J.S.A. 55:13B-19. A written statement of these rights must be posted and given to every resident, N.J.S.A. 55:13B-20, and residents may maintain a cause of action against an operator for violation of any of these rights, N.J.S.A. 55:13B-21.
Finally, the Act contains several other enforcement mechanisms, including fines of up to $5000 for each violation, N.J.S.A. 55:13B-10, injunctive remedies, N.J.S.A. 55:13B-11, and criminal penalties, N.J.S.A. 55:13B-12.
The Bureau of Rooming and Boarding House Standards ("the Bureau") is the state agency within the Department established to enforce the Act and Regulations.
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