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NEW JERSEY REGISTER
VOLUME 36, NUMBER 19
MONDAY, OCTOBER 4, 2004
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OFFICE OF CONSUMER PROTECTION
CHARITABLE FUND RAISING


Proposed Readoption with Amendments: N.J.A.C. 13:48

Authorized By: Peter C. Harvey, Attorney General, by Reni Erdos, Director, Division of Consumer Affairs, Designee.

Authority: N.J.S.A. 45:17A-18 et seq., specifically 45:17A-21b.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2004-378.

Submit written comments by December 3, 2004 to:

Reni Erdos, Director

State of New Jersey

Division of Consumer Affairs

Office of Director

PO Box 45027

Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the sunset provisions of Executive Order No. 66(1978) and N.J.S.A. 52:14B-5.1, N.J.A.C. 13:48, the rules on charitable fund raising are scheduled to expire on September 9, 2004. Because this notice of proposal has been filed prior to September 9, 2004, the expiration date of the rules is extended by 180 days to March 8, 2005, pursuant to N.J.S.A 52:14B-5.1c. These rules were promulgated to implement the Charitable Registration and Investigation Act, P.L. 1994, c.16 (N.J.S.A. 45:17A-1 et seq.). Pursuant to the Executive Order, the Division has reviewed these rules and has determined that with minor amendments, they are still necessary, reasonable and proper for their originally intended purpose to implement the provisions of the Charitable Registration and Investigation Act (Act), N.J.S.A. 45:17A-18 et seq.

A summary of the current rules and proposed amendments in the chapter follows.

N.J.A.C. 13:48-1.1 provides that the Director of the Division of Consumer Affairs is charged with the enforcement and administration of the Act.

N.J.A.C. 13:48-1.2 states that the rules of the chapter govern the registration and charitable fund raising activities of charitable organizations, federated fund raising organizations, professional fund raisers, solicitors and commercial co-ventures. The rule further states that the chapter applies to anyone engaging in any activities in this State regulated by the Act, including persons whose principal place of business is located outside the State.

N.J.A.C. 13:48-1.3 provides definitions of words and phrases used in the chapter.

N.J.A.C. 13:48-1.4 provides the address of the Charities Registration Section to which all matters related to registration of charities must be sent.

N.J.A.C. 13:48-2.1 contains the fee schedule which sets out the charges which the Division of Consumer Affairs assesses for the registration of charitable organizations, fund raising counsel, independent paid fund raisers, and solicitors, and for the filing of contracts and other documents. The amendments to the rule at paragraphs (a)1 through 5, 7 and 8 stating that the registrant is to submit a complete annual registration filing along with the applicable fee in order to avoid a late fee are being proposed to clarify the rule and to make it clear to organizations that the filing must be complete to avoid a late fee.

The proposed amendment to N.J.A.C. 13:48-2.1(a)14 deletes the reference to the fees charged for the photocopying of a public record and changes the controlling statutory reference to the "Open Public Records Act, N.J.S.A. 47:1A-1 et seq." In the future, fees charged for photocopying will be those authorized by the "Open Public Records Act."

N.J.A.C. 13:48-3.1 sets forth general requirements concerning registration and filing. Specifically, the rule prohibits a charitable organization, fund raising counsel, independent paid fund raiser, or solicitor from soliciting or counseling solicitation of a New Jersey resident for a contribution before a registration statement has been filed with and reviewed by the Attorney General, unless the person or organization is exempt from registration.

N.J.A.C. 13:48-3.2 states that the Attorney General will notify a registrant within 10 business days if the registration has failed to satisfy the legal requirements. N.J.A.C. 13:48-3.2 provides guidance by noting that the Attorney General will deny registration to any applicant who fails to either satisfy the requirements or request a hearing after receiving notification of a deficiency.

N.J.A.C. 13:48-3.3 delineates those organizations exempt from registration.

N.J.A.C. 13:48-3.4 sets forth the requirements for an extension of time for filing the annual renewal statement and financial report.

N.J.A.C. 13:48-3.5 generally states that the Division of Consumer Affairs will supply forms for filing information required by the Act on request.

N.J.A.C. 13:48-3.6 states that each registrant must notify the Attorney General of an address change no later than 10 days following the change, and failure to do so will be a violation of the Act and rules.

Subchapter 4 addresses short form registration for charitable organizations. N.J.A.C. 13:48-4.1 lists the organizations eligible for short form filing, which includes those engaged in charitable fund raising which receive gross contributions of less than or equal to $25,000 during a fiscal year, if all fund raising activities are performed by volunteers not compensated for soliciting contributions; fraternal, patriotic, social or other similar organizations when solicitation is confined to membership and performed by members; persons requesting contributions for the relief of any individual specified by name at the time of the solicitation if all contributions are turned over to the named beneficiary; and any local post, camp, chapter or similarly designated element of a veterans' organization. The rule also includes the information required for short form registration.

N.J.A.C. 13:48-4.2 requires each short form registrant to file a short form for renewal within six months after the close of its fiscal year as long as the organization continues to meet the requirements for short form registration. If an extension request was made, a copy of that request must accompany the renewal.

N.J.A.C. 13:48-4.3 details the information which a charitable organization must include on its financial report when filing the short form registration or short form renewal.

Subchapter 5 addresses registration of charitable organizations through the long form registration process. N.J.A.C. 13:48-5.1 requires each charitable organization, which is not exempt or qualified to file a short form, to file a long form registration statement with the Attorney General. The regulation also includes the information required for long form registration.

N.J.A.C. 13:48-5.2 addresses renewal of a long form registrant.

N.J.A.C. 13:48-5.3 delineates the information which a long form registrant must include in its financial report and when an audit is required.

Subchapter 6 addresses registration of local units by parent organizations. N.J.A.C. 13:48-6.1 addresses the registration requirements that must be met by a parent organization which elects to register its local units, and when a local unit must register itself.

Subchapter 7 addresses registration of fund raising counsels and independent paid fund raisers. N.J.A.C. 13:48-7.1 states the general registration requirements for a fund raising counsel, independent paid fund raiser, or any assignee, subcontractor or other successor in interest.

N.J.A.C. 13:48-7.2 states that each fund raising counsel or independent paid fund raiser having or intending to have custody, control, or access to any charitable organization's funds must file a $20,000 bond with the Attorney General at the time of application for registration. The proposed amendment to the rule is a technical one, as it deletes the reference to the May 13, 2000 deadline to replace a non-conforming bond as the deadline to do so has already passed.

N.J.A.C. 13:48-7.3(a) states that the registration of a fund raising counsel or independent paid fund raiser will not be deemed effective until all registration requirements, including the bond and all required filings, are satisfied. Pursuant to subsection (b), any fund raising counsel or independent paid fund raiser taking custody or control of, or having access to, a charitable organization's money without satisfaction of the bonding requirement will be deemed to have violated the Act.

Subchapter 8 addresses registration of solicitors. N.J.A.C. 13:48-8.1 contains the registration requirements for a solicitor.

Subchapter 9 addresses contracts and charitable sales promotions reports. N.J.A.C. 13:48-9.1 generally requires a fund raising counsel or an independent paid fund raiser to file a copy of any contract with any charitable organization with the Attorney General at least 10 days before it begins to perform services and sets forth the minimum requirements of the contract. This section also sets forth the reporting requirements in connection with charitable campaigns.

N.J.A.C. 13:48-9.2 requires each charitable organization to file a copy of a contract with a commercial co-venturer at least 10 business days prior to the start of the sales promotion, solicitation, or venture agreement and sets forth the minimum requirements of the contract.

N.J.A.C. 13:48-9.3 provides additional guidance to the regulated community by addressing what occurs when a contract does not satisfy the requirements of the Act or these rules.

Subchapter 10 sets forth recordkeeping requirements for all charitable organizations, unless exempt from registration pursuant to N.J.A.C. 13:48-3.3, fund raising counsel, independent paid fund raisers, and commercial co- venturers. N.J.A.C. 13:48-10.1 contains the general requirements which must be met.

N.J.A.C. 13:48-10.2 states the additional records that must be maintained by each fund raising counsel and independent fund raiser having or intending to have custody, control, or access to any charitable organization's funds is to maintain.

Subchapter 11 addresses fund raising practices. N.J.A.C. 13:48-11.1 requires each fund raising counsel or independent paid fund raiser to deposit contributions within five days of their receipt in a bank account in the name of the charitable organization. The charitable organization must exercise sole control of the account.

N.J.A.C. 13:48-11.2 governs solicitations and disclosures to the public.

N.J.A.C. 13:48-11.3 contains the disclosures for canisters, honor boxes and public vending machines used to raise funds for charitable organizations.

Subchapter 12 addresses standards for and supervision of fund raising activities. N.J.A.C. 13:48-12.1 requires each charitable organization to exert control over fund raising activities that are conducted for its benefit, and requires independent fund raisers and fund raising counsel to exercise control over their employees.

N.J.A.C. 13:48-12.2 sets forth the duty of each charitable organization, fund raising counsel, or independent paid fund raiser to cooperate with any inquiry, inspection, or investigation conducted by, or on behalf of, the Attorney General.

Subchapter 13 addresses acts or omissions which are considered violations of the Act and rules. N.J.A.C. 13:48-13.1 addresses unregistered practice and states that any charitable organization or person which is required to file a registration statement and fails to do so will be deemed to have violated the Act.

N.J.A.C. 13:48-13.2 specifies unlawful acts as well as those practices which will be considered misconduct. The proposed amendment to the rule at N.J.A.C. 13:48-13.2(a)7 making it an unlawful practice to present literally true information, statements or communications in a manner than can mislead the average consumer, is in response to a statutory amendment at N.J.S.A. 45:17A- 32(c)7, P.L. 1998, c.123, 1.

N.J.A.C. 13:48-13.3 provides that, after notice and an opportunity for a hearing, a registration may be denied, suspended or revoked upon finding that a registrant has committed any of the acts which the rule outlines consistent with the statutory authority set forth in N.J.S.A. 45:17A-33.

Subchapter 14 sets forth penalties. N.J.A.C. 13:48-14.1 provides that, following notice and an opportunity for a hearing, in addition to or as an alternative to revocation or suspension of a registration, a person may be assessed civil penalties, directed to cease and desist, or be ordered to restore to any aggrieved person money or property which the aggrieved party lost due to an unlawful act.

N.J.A.C. 13:48-14.2 provides the circumstances under which a charitable organization aggrieved by a violation of the law or regulations may initiate a civil action or assert a counterclaim in a court of competent jurisdiction against the violator.

N.J.A.C. 13:48-14.3 provides that a parent organization will be held accountable for action relating to information filed on behalf of a local unit provided that the parent organization knew or should have known that the information is false and misleading. Similarly, the rule establishes that any local unit which provides truthful information to its parent organization will not be held accountable for any misconduct committed by a parent organization, including the failure of the parent to file timely reports on behalf of the local unit.

Subchapter 15 addresses criminal law enforcement organizations engaged in charitable activity. N.J.A.C. 13:48-15.1 requires local criminal law enforcement charitable organizations to file completed Notices of Intent to Solicit Funds with the Attorney General and the county prosecutor in counties where solicitations will occur. It also requires parent criminal law enforcement charitable organizations with local units in more than one county to file a completed Notice of Intent for each local unit with the Attorney General after which time the Attorney General will notify the appropriate county prosecutors.

As the Division has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The rules proposed for readoption with amendments will permit the Division of Consumer Affairs to continue to implement and administer the Charitable Registration and Investigation Act and provide enforcement authority to protect against fraud and questionable practices in fund raising. The rules affect all charitable organizations, fund raising counsels, commercial co-venturers, independent paid fund raisers and solicitors who conduct fund raising in the State, and the rules provide these fund raisers with regulatory guidance relating to their fund raising activities.

Additionally, the rules proposed for readoption will protect the public from fraud and deceptive practices by providing regulatory safeguards and making available information concerning charitable fund raising in the State of New Jersey.

Economic Impact

The Division does not anticipate any new or additional economic impact on charitable organizations as a result of the readoption with amendments of the existing rules. No additional costs to existing fund raising entities are expected. Of the rules proposed for readoption, N.J.A.C. 13:48-2.1, Fee schedule, is the one rule which creates an economic impact. The readopted fee schedule provides that the registration fees for charitable organizations are graduated and based upon the amount of gross contributions received annually. Uniform fees apply to fund raising counsel, independent paid fund raisers and solicitors. The revenue generated by the fee schedule covers the costs of the Charities Registration Unit for processing registrations, reviewing contracts and various documents, as well as other tasks, such as the maintenance of the telephone information service, which is the charities "hot line." The fee revenue also covers the costs for investigations and enforcement actions. The readopted fee schedule will have no effect upon the public, since its direct impact is confined to charitable organizations and personnel involved in solicitation campaigns. Additionally, the Division believes that the fees are not excessive and do not impinge on the total revenue which is applied to charitable purposes. Consumers will be protected from fraud by the controls and consumer protections embodied in the rules. Such protections in the rules may enhance contributions by increasing the public's trust in charitable organizations.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments are governed by N.J.S.A. 45:17A-18 et seq. and are not subject to any Federal requirements or standards.

Jobs Impact

The Division believes that the rules proposed for readoption with amendments will not result in the generation or loss of jobs in New Jersey.

Agriculture Industry Impact

The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State of New Jersey.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. (the Act), requires an agency to give a description of the types and an estimate of the number of small businesses to which the rule proposed for readoption with amendments will apply. If, for the purposes of the Act, any of the 9,741 charitable organizations, 235 fund raising counsels and independent paid fund raisers and 1,158 solicitors registered with the Division to which these rules apply are small businesses, then the following analysis applies.

The Act requires the Division to set forth the reporting, recordkeeping, and other compliance requirements, including the kinds of professional services likely to be needed, to comply with the requirements. The Act further requires the Division to estimate the initial and annual compliance costs, to outline the manner in which it has designed the rules to minimize an adverse impact upon small businesses, and to set forth whether the rules establish differing compliance requirements for small businesses.

Several reporting requirements are set forth in the rules proposed for readoption with amendments. The reporting requirement contained in N.J.A.C. 13:48-3.4 requires that the annual filing of the renewal statement and financial report is due no later than six months after the close of an organization's fiscal year unless the organization has been granted an extension.

N.J.A.C. 13:48-3.6 requires each registrant to inform the Attorney General of any change of address in writing. N.J.A.C. 13:48-4.3 requires each charitable organization that files a short form registration statement to submit a completed financial report with its renewal.

N.J.A.C. 13:48-5.3 similarly requires each long form registrant to submit a completed financial report with its renewal. In addition, charitable organizations receiving more than $100,000 in gross revenue must submit an audited financial statement prepared in accordance with generally accepted accounting principles by an independent certified public accountant. This requirement is mandated by N.J.S.A. 45:17A-24(d)2.

N.J.A.C. 13:48-7.1 requires each fund raising counsel, independent paid fund raiser, or any assignee, subcontractor or other successor in interest to report information set forth in the rule on its registration statement. Moreover, N.J.A.C. 13:48-7.1 requires any material change in the information to be reported in writing within 10 business days after the change.

N.J.A.C. 13:48-8.1 requires each solicitor for an independent paid fund raiser to register and requires any material change in the information to be reported in writing within 10 business days of the change.

To comply with the reporting requirements set forth in N.J.A.C. 13:48-9.1, each fund raising counsel or independent paid fund raiser must delineate the mailing address or addresses where contributions will be received and the names of the authorized signatories for accounts where money is deposited. In addition, the financial campaign report must contain the information set forth in the rule including gross revenues, expenses, and bank information.

To comply with the reporting requirements with N.J.A.C. 13:48-9.2, each charitable organization permitting a charitable sales promotion to be conducted on its behalf must file a copy of the sales promotion contract which includes a description of the promotion and other relevant information.

Finally, N.J.A.C. 13:48-15.1 imposes a reporting requirement on local criminal law enforcement charitable organizations and parent criminal law enforcement charitable organizations with local units in more than one county. Local organizations must file completed Notices of Intent to Solicit Funds with the Attorney General and with the county prosecutor and parent organizations must file completed Notices of Intent for each local unit with the Attorney General.

Subchapter 10 addresses recordkeeping requirements. N.J.A.C. 13:48-10.1 requires each registered charitable organization, as well as every fund raising counsel, independent paid fund raiser and commercial co-venturer to keep complete and accurate records of its activities in this State as required by the Act. N.J.A.C. 13:48-10.2 requires fund raising counsels and independent paid fund raisers who have custody, control, or access to a charitable organization's monies to maintain the records required by the rule for at least three years following the end of the charitable campaign.

With respect to compliance requirements, N.J.A.C. 13:48-3.1 requires prospective registrants to file the applicable registration statement. N.J.A.C. 13:48-3.4 requires each petitioner seeking an extension of time for filing its annual renewal statement and financial report to detail the facts which constitute "good cause" and provide the Attorney General with any supporting documents.

N.J.A.C. 13:48-4.1, requires short form registrants to submit the information required by the rule on their registration statements.

To comply with N.J.A.C. 13:48-5.1, long form registrants must submit the information required by the rule on their registration statements.

To comply with N.J.A.C. 13:48-5.3, each long form registrant requested to submit an audited financial statement by the Attorney General must do so within 120 days of the Attorney General's notification. Those receiving more than $100,000 in gross revenue must submit an audited financial statement with their registration. The audit, which is required by the Act, N.J.S.A. 45:17A-24(d)2, imposes costs to be borne by the charitable organizations. Such costs are necessary to fulfill the underlying purposes of the Act, including providing relevant information to the donating public.

To comply with N.J.A.C. 13:48-7.2, any fund raising counsel or independent paid fund raiser who has, or intends to have custody, control, or access to a charitable organization's money shall file with the Attorney General a bond in the sum of $20,000.

N.J.A.C. 13:48-11.1 requires a fund raising counsel or independent paid fund raiser to deposit each contribution into an account in the name of the charitable organization within five business days of its receipt.

N.J.A.C. 13:48-11.2 and 11.3 list the disclosures which must be made to the public as part of a charitable campaign.

As stated in the Economic Impact statement above, compliance with these readopted rules does entail payment of a registration fee, in amounts specified in the fee schedule at N.J.A.C. 13:48-2.1. These registration fees are graduated to minimize the financial burden imposed upon small, nonprofit organizations. There are, in addition, several fees for filing documents. These have been set at the lowest possible level consistent with costs for processing and review.

The rules proposed for readoption may require charitable organizations to engage the professional services of accountants to assist in reporting requirements.

The Division believes that the rules proposed for readoption should be applied uniformly to all charitable organizations including small for-profit businesses because to exempt them would negate the purpose and effectiveness the rules are intended to achieve. The Division believes that any adverse economic impact on small businesses is minimized, and must be weighed against the protective benefits accruing to the public, as well as to charitable organizations.

Smart Growth Impact

The rules proposed for readoption and the proposed amendments will have no impact on smart growth or implementation of the State Development and Redevelopment Plan.

Full text of the proposed readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:48.

Full text of the proposed amendments follows :

<< NJ ADC 13:48-2.1 >>

13:48-2.1 Fee schedule

(a) The fees charged by the Division of Consumer Affairs for registration of charitable organizations (which shall be read to include, for the purposes of this subchapter, federated fund raising organizations), fund raising counsel, independent paid fund raisers, and solicitors, and for filing of contracts and other documents, shall be the following:

1. A charitable organization, which is required under the Act to file a short form registration statement and which received gross contributions of not more than $10,000 during the most recently filed fiscal year of the organization, shall not be required to pay an annual registration fee. A late fee of $25.00 shall be incurred by any organization that fails to submit <<-the- >> <<+ a complete+ >> annual <<+registration+ >> filing within 30 days of the annual filing deadline.

2. A charitable organization, which is required under the Act to file a short form registration statement and which received gross contributions in excess of $10,000 during the most recently filed fiscal year of the organization, shall pay an annual registration fee of $30.00 a year with the annual filing unless a filing extension was granted pursuant to N.J.A.C. 13:48-3.1(c). A late fee of $25.00 shall be incurred by any organization that fails to <<- pay any- >> <<+submit a complete annual registration filing along with the applicable+ >> annual registration fee within 30 days of the annual filing deadline.

3. A charitable organization, which is required under the Act to file a long form registration statement and which received gross contributions of not more than $100,000 during the most recently filed fiscal year of the organization, shall pay an annual registration fee of $60.00 a year with the annual filing unless a filing extension was granted pursuant to N.J.A.C. 13:48-3.1(c). A late fee of $25.00 shall be incurred by any organization that fails to <<- pay any- >> <<+submit a complete annual registration filing along with the applicable+ >> annual registration fee within 30 days of the annual filing deadline.

4. A charitable organization, which is required under the Act to file a long form registration statement and which received gross contributions of more than $100,000 but not more than $500,000 during the most recently filed fiscal year of the organization, shall pay an annual registration fee of $150.00 a year with the annual filing unless a filing extension was granted pursuant to N.J.A.C. 13:48-3.1(c). A late fee of $25.00 shall be incurred by any organization that fails to <<-pay any- >> <<+submit a complete annual registration filing along with the applicable+ >> annual registration fee within 30 days of the annual filing deadline.

5. A charitable organization, which is required under the Act to file a long form registration statement and which received gross contributions of more than $500,000 during the most recently filed fiscal year of the organization, shall pay an annual registration fee of $250.00 a year with the annual filing unless a filing extension was granted pursuant to N.J.A.C. 13:48-3.1(c). A late fee of $25.00 shall be incurred by any organization that fails to <<- pay any- >> <<+submit a complete annual registration filing along with the applicable+ >> annual registration fee within 30 days of the annual filing deadline.

6. (No change.)

7. All fund raising counsel and independent paid fund raisers shall pay an annual registration fee of $250.00, payable upon initial registration and on July 1 of each renewal year thereafter. A partnership or corporation which offers either fund raising counsel or independent paid fund raiser services, or both types of services, shall pay a single annual registration fee, payable upon initial registration and on July 1 of each renewal year thereafter. Upon renewal of registration, failure to <<-pay the- >> <<+submit a complete annual registration filing along with the applicable+ >> fee within 30 calendar days of July 1 shall result in a late fee of $25.00.

8. In addition to the fee paid by independent paid fund raisers, a solicitor shall pay a registration fee of $15.00, payable upon initial registration and on July 1 of each renewal year thereafter. Upon renewal of registration, failure to <<-pay the- >> <<+submit a complete annual registration filing along with the applicable+ >> fee within 30 calendar days of July 1 shall result in a late fee of $25.00.

9.-13. (No change.)

14. The fees for photocopies of any public record maintained pursuant to the Act shall be in accordance with <<-N.J.S.A. 47:1A-2, specifically:- >> <<+the "Open Public Records Act," N.J.S.A. 47:1A-1 et seq.+ >>

DELETED TABULAR MATERIAL NOT DISPLAYED

(b)-(d) (No change.)

<< NJ ADC 13:48-7.2 >>

13:48-7.2 Bond requirements for fund raising counsel and independent paid fund raisers

(a) A fund raising counsel or independent paid fund raiser who has or intends to have custody, control, or access to a charitable organization's money shall, at the time of making application for registration, file with the Attorney General a bond in which it shall be the principal obligor for the sum of $20,000 for the initial registration. <<-If a fund raising counsel or independent paid fund raiser holds a nonconforming bond on November 15, 1999, that bond shall be replaced with a conforming one prior to the expiration of that bond or May 13, 2000, whichever comes first.- >>

(b)-(g) (No change.)

<< NJ ADC 13:48-13.2 >>

13:48-13.2 Unlawful acts and practices; misconduct

(a) The following acts and practices are declared unlawful as applied to the planning, conduct, or execution of any solicitation or charitable sales promotion and shall be considered misconduct:

1.-6. (No change.)

<<+7. To utilize information, statements or communication that, although literally true, are presented in a manner that has the capacity to mislead the average consumer;+ >>

Recodify existing 7.-11. as <<+8.-12.+ >> (No change in text.)



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