NEW JERSEY REGISTER
Proposed Readoption: N.J.A.C. 13:44D
Authorized By: Reni Erdos, Director, Division of Consumer Affairs.
Authority: N.J.S.A. 45:14D-1 et seq., specifically 45:14D-6.
Submit comments by October 1, 2004 to:Reni Erdos, Director
Division of Consumer Affairs
124 Halsey Street
PO Box 45027
Newark, New Jersey 07102
The agency proposal follows:
The Director of the Division of Consumer Affairs (the Director) proposes to readopt N.J.A.C. 13:44D without change. These rules are scheduled to expire on December 25, 2004 pursuant to N.J.S.A. 52:14B-5.1c.
The Director has recently adopted an extensive revision to N.J.A.C. 13:44D that amended these rules significantly. In light of these recent changes, effective June 7, 2004, the Director proposes to readopt N.J.A.C. 13:44D without further amendments. The Director believes that the rules proposed for readoption are necessary, reasonable, understandable and responsive for the purpose for which they were originally promulgated. The following summarizes each subchapter in N.J.A.C. 13:44D.
Subchapter 1 defines words and phrases used in the chapter.
Subchapter 2 deals with applications for licensure and general requirements of a licensee. N.J.A.C. 13:44D-2.1 prohibits licensees from engaging in the business of public moving and/or storage unless the licensee owns, or leases pursuant to a long-term lease, at least one moving vehicle. An applicant for licensure is required to submit to the Director: a completed application and license fee; certificates of insurance; a designation of agent; a tariff; and a photocopy of vehicle registrations. Licensees are required to renew their licenses annually and to display the license in places of business and to carry a copy of the license on each vehicle. Every vehicle must have a decal issued by the Director and must be labeled with the name of the licensee, the license number and the name of the registered owner of the vehicle. Licensees are only allowed to perform those services for which they are licensed.
N.J.A.C. 13:44D-2.2 sets forth the process and time frames within which a licensee must notify the Director of a change of address, business name or telephone number. When a licensee changes a business name or address, any vehicle signage must be updated. The rule also sets forth time frames for notifying the Director when there is a change in the ownership of a moving company.
N.J.A.C. 13:44D-2.3 prohibits public movers and/or warehousemen from operating under a license unless the licensee's agent for service of process and the agent's address is on file with the Director.
N.J.A.C. 13:44D-2.4 sets forth fees that a licensee must pay for the initial license, renewal license and copies of licenses.
N.J.A.C. 13:44D-2.5 requires that all advertising by a licensee include the name of the licensee, the license number and the New Jersey business address and phone number. The rule prohibits advertisements that are misleading as to the services a licensee can provide.
N.J.A.C. 13:44D-2.6 requires a licensee to maintain a permanent place of business in New Jersey where original business records are kept and where a representative of the business will be present for a minimum of 20 hours a week. This section also requires the licensee to post a notice that states the telephone number where a representative who will handle consumer inquiries can be reached for a minimum of 35 hours a week and when a representative will be present on the premises for the minimum 20 hours a week.
N.J.A.C. 13:44D-2.7 prohibits licensees from using names that are misleading as to the services the licensee can provide.
N.J.A.C. 13:44D-2.8 provides for the disconnection of telephone service to unlicensed movers. The Director is required to notify the Board of Public Utilities (BPU) of any unlicensed public mover. Once notified of an unlicensed mover by the Director, the BPU is to order the servicing telecommunications company to disconnect the mover's commercially listed telephone. A telecommunications company is required to disconnect phone service when ordered to do so by the BPU.
Subchapter 3 requires that each licensee file tariffs with the Director. The subchapter specifies the format and frequency with which the tariffs must be filed, and the rates, charges, classification ratings, terms and conditions that must be part of the tariff filing. A licensee may not charge more than the amount specified in the tariff unless he or she is using a binding estimate. N.J.A.C. 13:44D-3.2 is a reserved section.
Subchapter 4 covers the general responsibilities and duties of licensees. N.J.A.C. 13:44D-4.1 deals with moving contracts based on non-binding estimates. A licensee providing services pursuant to a non-binding estimate must issue to consumers, at least 24 hours prior to the move, a brochure, a written estimate that has been signed by the consumer and the mover after a physical inspection of the premises, and an order for service. A licensee is also required to issue a bill of lading to the consumer after the order for service has been signed by the mover and the consumer. The bill of lading must include the time the moving vehicle arrived at the point of origin and the time when the move was finished. A licensee is required to issue a certificate of insurance to a consumer who has ordered insurance through the licensee prior to the commencement of a move.
N.J.A.C. 13:44D-4.2 outlines procedures to follow when a mover enters into a contract based on a binding estimate. A licensee providing services pursuant to a binding estimate must issue, at least 24 hours prior to a move, a brochure, an order for service and a binding estimate to a consumer. The binding estimate must be in writing and shall be furnished to a consumer after a physical inspection of the premises and the goods to be moved. Licensees are also required to issue bills of lading. If any additional services are requested by a consumer, the mover may perform those services and charge for them pursuant to his or her filed tariff. If additional services are added, the binding estimate is still a valid contract between the mover and the consumer for the services it lists. A licensee is required to issue a certificate of insurance to a consumer who has ordered insurance through the licensee within seven days of the move.
N.J.A.C. 13:44D-4.3 outlines procedures that must be followed when a licensee enters into a contract to provide warehousing services. Prior to entering into a contract to provide warehousing services, a licensee must provide consumers with: a brochure; a non-binding final estimated cost of services; an order for service; and a warehouse receipt.
N.J.A.C. 13:44D-4.4 allows licensees to use a combined order for service and estimate form.
N.J.A.C. 13:44D-4.5 details the legal liability of licensees and the requirements that licensees must meet in terms of securing, maintaining and filing their insurance status with the Director. The rule allows licensees to contract to limit liability for damage to goods to 60 cents per pound, but states that any such limitation is invalid if: a licensee fails to present an appropriate order for service at least 24 hours prior to a move; a licensee fails to provide a brochure at least 24 hours prior to a move; or a court or administrative agency finds that the damage was the result of gross negligence or gross incompetence on the part of the licensee. The rule also requires licensees to obtain insurance that covers vehicles, cargo, storage facilities and property held in storage. Licensees are required to provide for payment of obligations to injured employees. Licensees must furnish consumers with a certificate of insurance when the consumer has purchased additional insurance and are required to inform the Director when an insurance policy lapses, is revoked or is not renewed.
N.J.A.C. 13:44D-4.6 deals with withholding shipments. A licensee is prohibited from withholding a shipment if the contract is based on a binding estimate and the consumer pays the amount of the binding estimate. A licensee is prohibited from withholding a shipment if the contract is based on a non-binding estimate and the mover does not disclose in the order for service that he or she may withhold a shipment for non-payment of the freight bill.
N.J.A.C. 13:44D-4.7 deals with subcontracting. A licensee may only subcontract when he or she is unable to perform a move on the promised date and the consumer agrees to the subcontracting in writing. A licensee can only subcontract to another licensee. If a licensee subcontracts, he or she must supply a consumer with the nature of the relationship between the two licensees in writing. A licensee who subcontracts is responsible for the services provided by a licensee to whom work has been subcontracted.
N.J.A.C. 13:44D-4.8 addresses situations in which a licensee intends to use or employ the services of an owner/operator. In such situations the licensee must provide the consumer in advance in writing with the definition of "owner/operator" and the nature of the relationship between the licensee and the owner/operator. A licensee who uses or employs the services of an owner/operator remains ultimately responsible for the services being rendered.
N.J.A.C. 13:44D-4.9 states that a licensee will be deemed to have engaged in occupational misconduct should he or she fail to practice in an ethical business fashion. Conduct ranging from intentional failure to book a moving vehicle of adequate size to tardiness and failing to offer the consumer acceptable options is considered occupational misconduct.
N.J.A.C. 13:44D-4.10 requires that a licensee supply only such labor and equipment as is necessary to perform the moving services indicated on the original estimated cost of services form and that any changes from that form must be approved in writing, in advance, by the consumer.
N.J.A.C. 13:44D-4.11 provides the manner in which the warehousing of the consumer's goods is to be handled. The licensee must provide the warehouse's address and give advance notice should changes arise involving either the address of the warehouse or the necessary insurance coverage. This section further addresses situations involving self-storage facilities, advance notice for increases in fees, and a consumer's access to his or her possessions and goods upon 48 hours notice to the licensee. The section further protects consumers by prohibiting a licensee from storing the goods of a consumer engaged in an intra-State move in an out-of-State warehouse. This section also requires that a warehouse be in a building that meets all State and local building and fire codes.
N.J.A.C. 13:44D-4.12 prohibits a licensee from collecting from a consumer any tariff charges on a shipment that is either totally lost or destroyed, although the consumer will remain liable for any and all insurance premiums jointly agreed to by the consumer and the licensee.
N.J.A.C. 13:44D-4.13 states that a licensee is liable for physical loss, destruction or damage to any article of the consumer during transit or storage. The licensee is exempted from this liability in certain circumstances such as when damages are caused by a consumer's negligence, a defect in the article, or "an act of God." This section further states that the burden of proof to demonstrate an exception to liability rests with the licensee and that the licensee is not liable for any loss or damage that occurs after the property has been delivered to the consumer.
N.J.A.C. 13:44D-4.14 establishes the manner in which claim procedures are to be handled, including the time frame, documents, payment and liability aspects of the professional relationship between the consumer and the licensee.
N.J.A.C. 13:44D-4.15 outlines procedures that must be followed when a licensee performs a short-notice move or warehousing. A licensee is allowed to perform professional services on the same day a consumer contracts with the licensee only if: a consumer has been evicted from his or her residence or office and needs to move property within 24 hours; the consumer's residence or office has been damaged by fire and he or she needs to move the property within 24 hours; the consumer had contracted for a move or warehousing and the mover and/or warehouseman did not arrive to perform services; or the total cost of the move will not exceed $500.00. A licensee must issue all the forms required by N.J.A.C. 13:44D-4.1, 4.2 and 4.3 when performing a short-notice move. A licensee must obtain proof that one of the above requirements has been met and maintain this documentary evidence as part of the records for at least three years.
Subchapter 5 contains sample forms that are intended to demonstrate the information that is required to be included by licensees in transactions related to providing contractual services.
The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.
The proposed readoption of N.J.A.C. 13:44D will allow the Director to continue to enforce and effectuate the beneficial consumer protection measures which resulted from the original promulgation of these rules. The rules will continue to regulate the professional conduct of public movers and warehousemen in New Jersey.
There are several sections specifically designed to protect the interests of either the consumer, the licensee or both. Those sections designed to protect licensees limit the licensees' liability when a shipment is damaged or lost. N.J.A.C. 13:44D-4.5 allows licensees to limit their liability to 60 cents per pound as long as the licensee provided the consumer with the informational brochure and an order for service, and the loss was not due to gross negligence or incompetence on the part of the licensee. N.J.A.C. 13:44D-4.13 lists the circumstances under which a licensee is not liable for lost, destroyed or damaged articles of the shipper, such as when the damage was due to the negligence of the shipper or where the damage was due to a defect in the article.
The rules proposed for readoption protect consumers by providing them with adequate information and ensuring that the licensee is properly insured. N.J.A.C. 13:44D-2.1(b)2 requires that a licensee have insurance that covers workers' compensation, motor vehicles and property. This is beneficial as it ensures that a licensee will be able to pay for any damages for which he or she is liable. N.J.A.C. 13:44D-2.3 requires every licensee to have an agent upon whom process may be served. This ensures that licensees, or at least their agents, will be accessible for legal actions. N.J.A.C. 13:44D-2.6 requires the licensee to do several things to ensure that a representative of the company will be available to answer consumer questions. N.J.A.C. 13:44D-4.1, 4.2 and 4.3 require a licensee to issue to consumers a brochure informing the consumer of his or her rights, an estimate of the costs of the move, an order for services form and a bill of lading or warehouse receipt. These documents ensure that the consumer will know all the information that is relevant to the move. N.J.A.C. 13:44D-4.2 outlines the requirements of a binding estimate. When a licensee uses a binding estimate it ensures that the consumer will know the charges for a move before it takes place while allowing licensees to set a fee that fairly reflects the intricacies of each move. N.J.A.C. 13:44D-4.7 allows a licensee to use a subcontractor only pursuant to a consumer's permission. Similarly, N.J.A.C. 13:44D-4.8 allows a licensee to use an owner/operator only if the licensee advises the consumer and provides the consumer with a definition of owner/operator and informs the consumer of the nature of the relationship between the licensee and the owner/operator. This ensures that a consumer will know who is performing the actual move. N.J.A.C. 13:44D-4.10 requires a licensee to use only the labor and equipment that is appropriate for the job. This ensures that consumers only pay for those services that they actually need. N.J.A.C. 13:44D-4.11 requires licensees to provide consumers with information regarding the warehouse where consumers' goods are stored. N.J.A.C. 13:44D-4.12 protects a consumer by providing that he or she will not pay any tariff charges for a shipment that is lost or destroyed.
N.J.A.C. 13:44D-4.9 and 4.13 serve to protect both the consumer and the licensee. N.J.A.C. 13:44D-4.9 defines which actions constitute occupational misconduct. This apprizes licensees of prohibited conduct and informs consumers of which actions by licensees are unacceptable. N.J.A.C. 13:44D-4.13 protects both licensees and consumers as it sets out the procedures to follow when filing a claim for loss, damage, destruction or overcharge. This informs the consumer how, and when, to file a claim but also protects licensees by limiting the time period within which a claim can be filed.
Some of the rules proposed for readoption have an economic impact. N.J.A.C. 13:44D-2.4 sets forth the fees which the Director assesses for services rendered to licensees. The fee schedule has an economic impact on licensees and applicants for licensure by establishing those fees that are the minimum necessary for the Director to fund the operation of overseeing the moving and warehousing businesses.
Several rules proposed for readoption impose costs on licensees. N.J.A.C. 13:44D-2.1 requires licensees to own or lease at least one vehicle. This rule also requires applicants for licensure to submit a photocopy of all vehicle registrations to the Director and requires licensees to renew licensure every year. Any vehicle used for moving must have the name and license number of the licensee and the name of the owner of the vehicle printed on it. N.J.A.C. 13:44D-2.2 requires a licensee, within 60 days of a change in the name of a business, to update vehicle signage and to notify the Director of the change. If there is a change in ownership in a moving company, a licensee must notify the Director within 30 days of the change. N.J.A.C. 13:44D-2.5 states that licensees who violate prohibitions on advertising may be subject to discipline from the Director. N.J.A.C. 13:44D-2.7 imposes sanctions on licensees who use business names that are misleading as to the services a licensee can perform. Disciplinary action could include the imposition of fines, and costs, which the licensee would need to pay.
N.J.A.C. 13:44D-3.1, which requires licensees to file a tariff, imposes the costs of preparing and printing these documents on licensees.
N.J.A.C. 13:44D-4.1, 4.2 and 4.3 require licensees to provide consumers with specific documents and forms when entering into a contract to provide moving or warehousing. When a licensee subcontracts a move, pursuant to N.J.A.C. 13:44D- 4.7, or when a licensee uses an owner/operator pursuant to N.J.A.C. 13:44D-4.8, the licensee must provide the consumer with certain information in writing. N.J.A.C. 13:44D-4.14 requires licensees to provide consumers with claim forms when the consumer wants to make a claim for damages. The cost of preparing and providing these forms is borne by licensees. N.J.A.C. 13:44D-4.5 imposes costs on licensees in that the rule sets out the minimum amount of insurance a
licensee must carry and requires licensees to provide workers' compensation insurance. N.J.A.C. 13:44D-4.6 imposes a cost on licensees who fail to follow the binding estimate requirements. N.J.A.C. 13:44D-4.15 requires licensees to maintain on file for three years documentary proof that the circumstances permitting a short-notice move have been met. The cost of maintaining this documentation is borne by licensees.
Federal Standards Statement
As the rules proposed for readoption apply solely to intra-State moves, a Federal standards analysis is not required because there are no applicable Federal laws or standards.
The Director does not anticipate that the rules proposed for readoption will result in the loss or gain of any jobs.
Agriculture Industry Impact
The Director does not anticipate that the rules proposed for readoption will have any impact on the agriculture industry of the State.
Regulatory Flexibility Analysis
If, for the purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the approximately 400 licensees are considered "small businesses," then the following analysis applies.
The Act requires the Director to set forth the reporting, recordkeeping and other compliance requirements of the proposal including the kinds of professional services likely to be needed to comply. The Act further requires the Director to estimate the initial and annual compliance costs of the proposal with an indication of the varying impact on small businesses of differing types and sizes and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.
The costs imposed on small businesses by the rules proposed for readoption are the same costs that are imposed on all businesses as outlined in the Economic Impact statement above.
The Director believes that licensees may need to employ professional printers in order to obtain the forms they are required to provide to consumers. The Director does not believe that licensees will need to employ any other professional services in order to comply with the requirements of the rules proposed for readoption.
There are several compliance requirements imposed by the rules proposed for readoption. N.J.A.C. 13:44D-2.1 requires a licensee to renew licensure yearly, purchase or lease a moving vehicle, display the original license at his or her place of business, carry a copy of the license in each vehicle used in moving or storage and to display a decal issued by the Director that identifies the licensee. The rule also requires that all vehicles have the licensee's company name and license number printed on them and prohibits licensees from performing services for which they are not licensed. N.J.A.C. 13:44D-2.2 requires licensees to change signage on a truck within 30 days of a name change. N.J.A.C. 13:44D-2.3 requires licensees to designate an in-State agent for service of process. N.J.A.C. 13:44D-2.5 requires all advertising by licensees to include the licensee's name, license number and New Jersey business address and telephone number. The rule also prohibits licensees from using terms in advertisements that indicate that the licensee can perform a service for which he or she does not have a license. N.J.A.C. 13:44D-2.6 requires licensees to maintain a place of business in New Jersey where a representative will be present for a minimum of 20 hours a week. The rule also requires licensees to post a phone number where a representative can be reached and a schedule of the hours a representative will be present at the office. N.J.A.C. 13:44D-2.7 prohibits a licensee from using a business name that is misleading as to what services a licensee is licensed to perform.
N.J.A.C. 13:44D-4.1 and 4.2 require movers to issue to consumers, 24 hours prior to the move, the "Important Notice to Consumers Utilizing Public Movers" brochure, a written estimate and an order for service form. The public mover must also issue a bill of lading on the day of the move and a certificate of insurance. N.J.A.C. 13:44D-4.2 also requires that, if additional services not listed in a binding estimate are requested, the public mover charge for those services pursuant to his or her filed tariff. N.J.A.C. 13:44D-4.3 requires a warehouseman to issue to consumers, prior to entering into a contract, the brochure, a non-binding estimated cost of services form, an order for service and a warehouse receipt. N.J.A.C. 13:44D-4.4 requires a licensee who uses a combined order for service and estimate form to ensure that the combined form have two signature lines, one for the order for service and one for the estimate. N.J.A.C. 13:44D-4.1, 4.2, 4.3 and 4.4 require that all forms used by licensees conform to the forms found in Appendices A through G. N.J.A.C. 13:44D-4.5 requires licensees to secure minimum amounts of insurance covering motor vehicle equipment, cargo, storage facilities and property being stored. The rule also requires licensees to make arrangements to cover the costs of worker's compensation for any injuries employees suffer. When a consumer requests additional insurance, the licensee must supply the consumer with a certificate of insurance furnishing information about the additional insurance. The rule states that the minimum amount to which a public mover may limit liability is $.60 per pound, and requires that the order for service indicate the licensee's liability.
N.J.A.C. 13:44D-4.6 prohibits a public mover from withholding a shipment if the amount due according to a binding estimate is paid or if a moving contract based on an non-binding estimate does not indicate that the mover can withhold the shipment for nonpayment. N.J.A.C. 13:44D-4.7 requires that public movers subcontract only when the public mover cannot perform the move due to circumstances beyond the mover's control. A public mover may only subcontract to another public mover and a consumer must agree to the subcontracting in writing. A public mover who subcontracts must provide the consumer with the nature of the relationship between the public mover and the subcontracted public mover. A public mover who subcontracts to another public mover remains responsible for the services provided. N.J.A.C. 13:44D-4.8 requires licensees to inform a consumer of the definition of "owner/operator" and the relationship between the licensee and the owner/operator before using the services of an owner/operator. N.J.A.C. 13:44D-4.11 requires licensees to apprize the consumer of the address of the warehouse where the consumer's goods are stored. The rule also requires the licensee to notify consumers if the licensee uses a self- storage facility, to notify the consumer 30 days before raising storage fees, and to allow consumers access to their goods upon 48 hours notice by the consumer. In addition, it denies the licensee the right to store intra-State move articles in an out-of-State warehouse. N.J.A.C. 13:44D-4.14 sets out the procedure for making a claim against a licensee for lost or damaged goods. Licensees must supply a consumer with the appropriate claim forms within seven days of receiving notification of a consumer's intent to bring a claim and the licensee must settle all claims within 90 days after receipt of the completed claim form. N.J.A.C. 13:44D-4.15 prohibits a licensee from performing short- notice moves or warehousing except when a consumer is evicted, there has been a fire, the original licensee did not show up on the day of the move or the move is less than $500.00. The rule also requires a licensee who performs a short- notice move or warehousing to provide the forms required by N.J.A.C. 13:44D- 4.1, 4.2 and 4.3.
The rules proposed for readoption impose several reporting and recordkeeping requirements. N.J.A.C. 13:44D-2.2 requires licensees to apprize the Director in writing within 30 days of any changes in mailing address, permanent place of business, business name or ownership of the business. Licensees are required to notify the Director of a change in truck signage within 60 days of the change. Licensees must maintain all business records at the permanent place of business in New Jersey according to N.J.A.C. 13:44D-2.6. N.J.A.C. 13:44D-3.1 requires licensees to file a tariff with the Director which includes the rates, charges, classification ratings, and terms and conditions of the mover or warehouseman. N.J.A.C. 13:44D-4.2 requires licensees to maintain a copy of a binding estimate as an addendum to the bill of lading. N.J.A.C. 13:44D-4.5 requires licensees to maintain and file with the Director a certificate of insurance that covers motor vehicles, cargo, storage facilities and property. Licensees must file a notice of cancellation of workers' compensation insurance policies and to notify the Director if an insurance policy lapses. The rule also requires a licensee to file with the Director a certificate of insurance for workers' compensation, or a written order granting an exemption from insuring the whole or any part of such liability from the Commissioner of Banking and Insurance pursuant to N.J.S.A. 34:15-77. N.J.A.C. 13:44D-4.14 requires that when an extension of the settlement deadline for claims is agreed to by the consumer and the public mover, the licensee must keep the written agreement on file for two years. N.J.A.C. 13:44D-4.15 requires a licensee who performs a short notice move to keep documentary proof that the conditions of N.J.A.C. 13:44D-4.15(b) were met as part of his or her records for three years.
As the compliance, reporting and recordkeeping requirements of the rules proposed by readoption were originally promulgated to adequately regulate licensees and protect consumers who use their services, the Director believes that the rules must be uniformly applied to all licensees and no exemptions are provided based on size of the business.
Smart Growth Impact
The Director does not anticipate that the rules proposed for readoption will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:44D.
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