VOLUME 46, ISSUE 2
ISSUE DATE: JANUARY 21, 2014
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
46 N.J.R. 168(a)
Proposed Readoption with Amendments: N.J.A.C. 13:45
Administrative Hearings in the Division of Consumer Affairs
Authorized By: Eric T. Kanefsky, Director, Division of Consumer Affairs.
Authority: N.J.S.A. 34:8-54, 45:14D-6, 45:17A-21, and 56:8-4; and Reorganization Plan No. 008-1998.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2014-017.
Submit written comments by March 22, 2014, to:
Eric T. Kanefsky, Director
Office of the Director
New Jersey Division of Consumer Affairs
PO Box 45027
Newark, NJ 07101
The agency proposal follows:
Pursuant to N.J.S.A. 52:14B-5.1.c, the rules at N.J.A.C. 13:45 will expire on December 22, 2013. Filing of this notice extends the expiration date for 180 days to June 20, 2014, pursuant to N.J.S.A. 52:14B-5.1.c(2). The Division of Consumer Affairs (Division) has reviewed these rules and determined them to be generally necessary, reasonable, and proper for the purpose for which they were originally promulgated, namely, to set forth the procedures to be followed in contested cases in which the Director of the Division of Consumer Affairs (Director) issues administrative charges and hears contested matters as the agency head. The Division proposes to readopt N.J.A.C. 13:45 with amendments. The following is a summary of the rules the Division proposes to readopt, as well as a summary of the proposed amendments.
Subchapter 1 contains general provisions including definitions of words and phrases used in the rules. The subchapter sets forth the scope and construction of the rules. In addition, the subchapter gives the Director the authority to use discretion with respect to matters not expressly covered under these rules.
Subchapter 2 addresses the Division's subject matter jurisdiction, which includes both sales and advertisements of merchandise under the Consumer Fraud Act.
As described in Subchapter 3, administrative proceedings are commenced by the Division by issuance of administrative charges. The subchapter includes a description of the required contents of the notice and complaint and the methods by which service is affected. N.J.A.C. 13:45-3.1(d)3 specifies that a notice of hearing will contain the time and place of the hearing. It is not always possible to provide the time and place of a hearing before an answer to a complaint has been received. The Director proposes to delete N.J.A.C. 13:45-3.1(d)3. The Director proposes a new subsection (f), which states that the time and place for a hearing will be provided once the answer to a complaint has been received and it has been determined that a contested case exists.
Subchapter 4 describes the conduct of hearings, sets forth the Director's authority to hear contested cases, provides for setting the time and place of a hearing, permits adjournments, and specifies the order in which evidence is presented.
Subchapter 5 addresses the duties of the Director when issuing a final decision and order.
[page=169] The Director has determined that the comment period for this notice of proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirements.
The rules proposed for readoption with amendments establish the Division's practices and procedures for contested cases within the Division's jurisdiction. The rules allow the Director to address an apparent violation by way of administrative charges and administrative hearings. Administrative charges provide for a less formal proceeding in which to address a violation of one of the statutory schemes covered under the Division's subject matter jurisdiction.
An administrative hearing is beneficial to the parties because it allows for a speedy, less costly hearing before the Director who has expertise in consumer matters. These procedures do not foreclose the Attorney General from pursuing matters in other forums as may be appropriate. It is important that the chapter be readopted to continue to allow parties to take advantage of these types of proceedings.
The rules proposed for readoption with amendments, have no economic impact on the general public but may have some economic impact on persons who contest a violation of one of the statutory schemes covered under N.J.A.C. 13:45-2.1. All corporations appearing in a contested case must be represented by counsel and, therefore, will incur attorneys' fees. In addition, if an adjournment of the hearing is requested by the respondent, any monetary sanctions as set forth under N.J.A.C. 1:1-14.14 may be charged to the respondent. A respondent requesting a stenographic transcript of the hearing is charged with the cost as set forth in the Uniform Administrative Procedure Rules and, if found to have violated one of the statutes, may be assessed civil penalties, restitution, costs, and attorneys' fees. The Division will incur the administrative costs of advancing the proceedings.
The Division believes that these costs are necessary to effectuate an efficient administrative hearing process in which to address violations of the covered statutory schemes.
Federal Standards Statement
A Federal standards analysis is not required because the rules proposed for readoption with amendments are not subject to any Federal standards or requirements.
The Division does not anticipate that the rules proposed for readoption with amendments will increase or decrease the number of jobs in the State.
Agriculture Industry Impact
The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State.
Regulatory Flexibility Analysis
The rules proposed for readoption with amendments impose no reporting or recordkeeping requirements. The rules do impose a number of compliance requirements on any small business that has contested a violation of the statutes covered by this chapter. Where a complaint has been issued, the respondent must comply with the time requirements under N.J.A.C. 13:45-3.3, when filing an answer to the complaint. N.J.A.C. 13:45-4.3 requires the respondent to request an adjournment as set forth under N.J.A.C. 1:1-9.6. If the respondent is a corporation in a proceeding under the rules, it may appear or file papers only through counsel. Where civil penalties, restitution, and costs are assessed by the Director, the respondent must comply with the provision of N.J.A.C. 13:45-5.4. Any respondent who decides to appeal the final decision and order of the Director must comply with proposed N.J.A.C. 13:45-5.5 and the New Jersey court rules related to appellate filings.
The rules proposed for readoption with amendments are a necessary means by which violations of the statutes provided for under proposed N.J.A.C. 13:45-2.1 can be addressed and, therefore, are important to the health, safety, and welfare of the public. The rules must be applied uniformly to all who contest a violation of the Act or the other statutes covered by these rules, regardless of their size. The Division points out that N.J.A.C. 13:45C-2.1 through 2.5 provide a procedure by which the Division may grant a waiver of regulatory requirements. This procedure may provide relief to small businesses in appropriate circumstances.
Housing Affordability Impact Analysis
The rules proposed for readoption with amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules proposed for readoption with amendments concern Division administrative hearings.
Smart Growth Development Impact Analysis
The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the rules proposed for readoption with amendments concern Division administrative hearings.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:45.
Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
SUBCHAPTER 3. COMMENCEMENT OF FORMAL ADMINISTRATIVE PROCEEDINGS; PLEADINGS; SERVICE OF PLEADINGS; INITIATION OF ADMINISTRATIVE CHARGES
13:45-3.1 Notice of hearing and complaint
(a)-(c) (No change.)
(d) The notice of hearing shall contain:
1.-2. (No change.)
[3. A statement of the time and place of the hearing;]
Recodify existing 4.-7. as 3.-6. (No change in text.)
(e) (No change.)
(f) The time and place of the hearing will be provided once the answer to the complaint has been received and it has been established that a contested case exists.