55:13B-11. Violations constituting imminent hazard to health, safety or welfare; order of vacation or correction of violation; reinspection after notice of correction; reconsideration hearing; injunction; failure to correct; order for submission of reports or receivership
a. If, upon inspection of any rooming or boarding house, the commissioner shall discover any violation of the provisions of this act, or any rules or regulations promulgated thereunder, which constitutes an imminent hazard to the health, safety or welfare of the occupants or intended occupants thereof, or of the public generally, the commissioner may issue and cause to be served on the owner or operator thereof a written order directing: (1) that the rooming or boarding house be vacated forthwith or (2) that the violation be corrected within the period specified in the order. The written order shall state the nature of any violation, the date and hour by which the rooming or boarding house be vacated or the violation be abated and, if necessary, the manner in which the violation shall be abated. A copy of the written order to vacate shall be sent to relevant county and municipal officials within 24 hours of its issuance.
Upon the receipt by the commissioner of written notice from the owner or operator of any rooming or boarding house vacated or ordered to be vacated stating that the violation has been terminated, the commissioner shall reinspect the rooming or boarding house within one working day of the receipt of the notice. If, upon reinspection, the commissioner determines that the violation has been terminated, he shall rescind the order requiring the vacation of the rooming or boarding house and occupancy may be resumed forthwith. If reinspection is not conducted by the commissioner within one working day of the receipt of the notice, occupancy of the rooming or boarding house may be resumed forthwith.
Where the owner or operator of any rooming or boarding house denies that any violation justifying an order to vacate exists, he may apply to the commissioner for a reconsideration hearing, which shall be afforded and a decision rendered by the commissioner within 48 hours of the receipt of the application for the hearing. If the commissioner decides adversely to the owner or operator, the owner or operator may petition the Superior Court of this State for injunctive relief against any order of the commissioner directing that the rooming or boarding house be vacated forthwith.
Relief may be sought by an order to show cause and may be granted ex parte pending a hearing de novo, except that the only issue to be determined in the hearing de novo shall be the existence of any violation of the provisions of this act, or rules and regulations promulgated thereunder, which constitutes an imminent hazard to the health, safety or welfare of the occupants or intended occupants of the rooming or boarding house, or to the public generally.
Where the owner or operator of any rooming or boarding house denies that any violation justifying an order to abate within a specific period exists, the owner or operator may seek injunctive relief by an order to show cause, and relief may be granted ex parte pending a hearing de novo. However, the only issue to be determined in the hearing de novo shall be the existence of any violation of the provisions of this act, or rules and regulations promulgated thereunder, which constitutes a hazard to the health, safety or welfare of the occupants or intended occupants of the rooming or boarding house, or to the public generally.
b. If an owner or operator is found to be in violation of any of the provisions of this act, and notice thereof has been served which also fixes a date by which any such violations shall be terminated, and such owner or operator fails to terminate such violations by such date, then the commissioner may take any of the following actions:
(1) Issue an order directing that the owner submit monthly reports to the commissioner, in a form prescribed by the commissioner, listing all payments received and expenditures made by him, in connection with the operation of any rooming and boarding house owned by him, received and or made by the operator or any agent or employee of any such facility. In addition, the commissioner may require said owner to report such payments and expenditures for any past period which the commissioner shall determine, and to provide statements of personal or corporate assets and worth.
During the term of any such order, the owner shall not increase the amount of any payment due from, or require any new payment or charge from, any resident of any rooming or boarding house owned by him, without prior written approval from the commissioner.
During the term of any such order, the commissioner may direct that the owner make certain expenditures to terminate violations of any provisions of this act, or may prohibit any expenditure deemed by the commissioner to be not in the best interests of the residents of any rooming or boarding house belonging to the owner.
The commissioner shall rescind any such order whenever the violations which caused the order to be issued, and any other violations, have been terminated by the owner.
(2) Petition the Superior Court for an order appointing a receiver for the rooming or boarding house of such an owner. It shall be a sufficient defense to the proceeding if the owner establishes that the condition alleged in the petition of the commissioner does not in fact exist or that such condition has been remedied or that such condition, although periodically remedied, has not habitually existed as pattern and practice.
The court shall proceed in a summary manner and shall render a judgment either: (1) Dismissing the petition; (2) Granting the relief provided under subsection a. above or directing the commissioner to issue an order as provided under subsection b. above; or (3) Appointing a receiver from a list of nominees submitted by the commissioner or any other responsible person; provided, however, that the owner or operator of the home shall not be so appointed.
With the approval of the court, the receiver shall have the following powers: (1) To hire any consultants or to undertake any studies of the rooming or boarding house which he deems appropriate; (2) To make any repairs, improvements or expenditures he deems necessary to terminate conditions or violations specified in the complaint; (3) To hire or discharge any employees, including the operator; (4) To receive or expend in a reasonable and prudent manner the revenues of the facility due on the date of, or subsequent to, the entry of the court's judgment; (5) To continue to operate the facility in accordance with all standards promulgated by the commissioner; (6) To perform all acts necessary or appropriate to conserve the facility and to promote the health, safety and welfare of its residents; and (7) To exercise such other powers as he deems necessary or appropriate to implement the court's judgment.
The receiver may, in his discretion, either: (1) Assume the role of operator; or (2) Direct the operator to take such actions as will eliminate or rectify the conditions specified in the petition.
The court shall require the filing at periodic intervals of reports of action taken by the receiver and of accounts itemizing revenues and expenditures. Such reports shall be open to inspection by all parties in the case. Upon motion of the court, the receiver, or the owner, the court may require a presentation or settlement of the accounts. Notice of a motion for presentation or settlement of accounts shall be served on the owner and any party holding an interest in such revenues and expenditures.
The commissioner, receiver or owner may make a motion to terminate the receivership on the grounds that the conditions complained of have been terminated. The court may thereupon immediately terminate the receivership or terminate it subject to such terms as it feels are necessary or appropriate to prevent the conditions complained of from recurring.
The court shall allow from the revenues of the rooming or boarding houses a reasonable amount of compensation for the expenditures and services of the receiver. The receiver may be required to furnish a bond, the amount and form of which shall be approved by the court, and the cost of which shall be borne by the owner.
During the time such receivership is in effect, the receiver shall give priority to the termination of violations when determining the expenditure of any income, and the court shall ensure that any creditor aggrieved is satisfied only to the extent consistent with the health, safety and welfare of the residents of the rooming or boarding house. The receivership order shall remain in effect for as long after the termination of any violations as is necessary for the receiver to satisfy any creditors to whom payments were deferred in order to make funds available to effect such termination.
During the period when the receivership order is in effect, any action for possession initiated by any mortgage holder shall be brought before the court having jurisdiction in the receivership case and shall only be granted if it shall appear that the mortgage holder, when in possession, will terminate or remove the violations which caused the receivership order to be issued, and will operate the facility in accordance with standards promulgated by the commissioner.
No provision of this act shall limit the right of any owner to sell or mortgage any facility subject to receivership under the provisions of this section, provided, however, that the approval of the court having jurisdiction shall first be required and shall be granted only if it shall appear that the purchaser will terminate the violations which caused the receivership order to be issued and will operate the facility in accordance with standards promulgated by the commissioner, or if it appears that the granting of a mortgage will materially contribute to the ability of the owner to terminate such violations.
During the period when the receivership order is in effect, the owner shall have the right to use assets not under the receiver's control to terminate such violations.
L.1979, c. 496, s. 11.
Section: Previous 55-13b-6 55-13b-6.1 55-13b-7 55-13b-8 55-13b-9 55-13b-10 55-13b-10.1 55-13b-11 55-13b-11.1 55-13b-11.2 55-13b-12 55-13b-13 55-13b-14 55-13b-15 55-13b-16 Next
Last modified: October 11, 2016