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3 N.J.A.R. 412

Sgambati, Peter & John Rossi v. Fairview, Borough of
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Citation: 3 N.J.A.R. 412
Decision Date: 1980
Synopsis: John Rossi and Peter Sgambati served as auxiliary members of the Fairview Hook and Ladder Volunteer Fire Company. At the time of this action, Mr. Rossi was 52 years old and Mr. Sgambati was 51 years old. Both men filed applications to become regular members of the fire company but were rejected based on a Fairview Borough ordinance which provided that a person must be 40 years old or younger to join the company. Both men were otherwise qualified to join the fire company. Petitioners argue that the Borough ordinance is in direct conflict with New Jersey's Law Against Discrimination, N.J.S.A. 10:5-4 and its corresponding rule, N.J.A.C. 13:12-l.l(a). The administrative law judge rejected the Borough's argument that the ordinance does not conflict with the Law Against Discrimination since the purpose of the ordinance is to safeguard the safety and welfare of the community by prohibiting the appointment of firemen over the age of 40. The judge found that the petitioners are physically fit to carry out the duties of firemen and that six members of the fire company in which they seek membership are over the age of 40. Nor did the judge find the Borough's reliance on N.J.S.A. 48:14-1 et seq. (which allows age limits to be set for appointments to paid fire departments) controlling. The judge noted that such exemptions are for paid fire depart- ments while the fire company in issue was a volunteer one; nor did the Borough demonstrate why the reasons for such exemptions should apply to a volunteer company. The judge concluded that the state regulation and Borough ordinance address the same issue--the age of individuals applying for the position of volunteer fireman. Noting that the local ordinance clearly conflicted with the state regulation, the judge concluded that the ordinance clearly frustrates the objective behind the state statute and regulation and thus it is preempted by state law. State of New Jersey 413 Accordingly, the administrative law judge ordered that the Borough of Fairview amend its ordinance to eliminate the discriminatory provision regarding age and that it permit the petitioners to become regular members of the volunteer fire company. Susan L. Reisner, Deputy Attorney General for Petitioners (John J. Degnan, Attorney General of New Jersey, Attorney) James J. Deer, Esq., for Respondent
Rule(s) Cited: 13:12-1.1(a) 
Statute(s) Cited: 10:5-4