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RULE PROPOSALS
VOLUME 42, ISSUE 22
ISSUE DATE: NOVEMBER 15, 2010
Law and Public Safety
Division of Consumer Affairs
OFFICE OF THE DIRECTOR

Proposed New Rules: N.J.A.C. 13:45G

Disposition of Consumer Complaints

Authorized By: Thomas R. Calcagni, Acting Director, New Jersey Division of Consumer Affairs.
Authority: P.L. 2010, c. 17 (N.J.S.A. 45:1-18).

Calendar Reference: See Summary below for explanation of exemption to calendar requirement.
Proposal Number: PRN 2010-287.

Submit written comments by January 14, 2011 to:

Thomas R. Calcagni, Acting Director
New Jersey Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark , NJ 07101

The agency proposal follows:

Summary

Proposed new Chapter 45G implements P.L. 2010, c. 17 (N.J.S.A. 45:1-18), which becomes effective on November 2, 2010. The Act requires that whenever a board, the Director of the Division of Consumer Affairs through the Attorney General, or the Attorney General receives a consumer complaint, a final disposition must be rendered within 120 days of the filing of the complaint, unless the 120-day period is tolled for certain events listed in the Act.

Consumer complaints forwarded to the professional licensing boards generally involve an accusation that a specific licensee engaged in some conduct that the complainant believes violates the law or some professional standard. A board's duty is to impartially consider all of the facts and circumstances surrounding the licensee's conduct complained about, through a process that is fair to the licensee and the consumer. Due process requires that a board obtain and evaluate all relevant information, including records and other evidence, necessary for the board to adjudicate the complaint. At a minimum, the board needs to consider the licensee's version of what occurred, as well as the allegations in the complaint. These rules build in a short period for the licensee to supply that necessary information for the board's consideration - either 21 days or until the next board meeting, which ever is later. Many cases require additional investigation to obtain necessary evidence so that the board can have a better understanding of the underlying event or the applicable standards of conduct. Sometimes after the board is satisfied that it has all of the necessary information to proceed, consumers will submit additional information that they find or that they realize is relevant. It is common for a board to consult experts to assist it in determining whether the conduct of a licensee violated the rules of practice of the profession, even if the facts are not in dispute. Where the facts, or their import, are in dispute, the board will often conduct an investigative hearing, as authorized by N.J.S.A. 45:1-18.b or pursue other investigative powers to confirm that there is sufficient cause to seek disciplinary charges or remedial measures. An inspection of premises may be required under N.J.S.A. 45:1-18.c. An examination of goods, books or records may be needed to gather the necessary evidence to meet the burden of proof for the prosecution of the case. N.J.S.A. 45:1-18.d or e. Often a board may chose to defer or suspend its consideration of a complaint if it becomes the subject of a criminal investigation or prosecution, particularly in circumstances where necessary evidence may remain in the possession of criminal authorities. Where the board or the Attorney General have concluded that the initiation of charges is warranted, efforts may be made to negotiate a resolution without resort to litigation. The response of the licensee or counsel to an offer of settlement is part of the ongoing effort to gather the information needed for the disposition of the consumer complaint. If no consensual resolution can be reached, charges may be filed and an evidentiary administrative hearing held, either before the board or as a contested case at the Office of Administrative Law. Finally, there may be an extraordinary or unforeseen circumstance that interrupts the board's consideration of the complaint. All of these circumstances are identified in the Act as a basis for which the running of the 120-day period may be tolled in order to fully develop information vitally important to the full and fair adjudication of the complaint.

Proposed N.J.A.C. 13:45G-1.1 describes the purpose of the proposed new rules. Proposed N.J.A.C. 13:45G-1.2 states the scope of the new rules. The rules will apply to consumer complaints received by a board, the Director through the Attorney General, or the Attorney General on or after November 2, 2010. Proposed N.J.A.C. 13:45G-1.3 contains definitions of words and phrases used in the new rules including a definition of "consumer," "consumer complaint," "final disposition" and "documented approval."

Proposed N.J.A.C. 13:45G-1.4 prescribes that consumer complaints be resolved within 120 days from the filing of the complaint and lists the events that toll the running of the 120-day period.

Proposed N.J.A.C. 13:45G-1.5 describes when an accusation against a licensee ripens into a consumer complaint.

Proposed N.J.A.C. 13:45G-1.6 describes the report that is required to be made to the Attorney General.

The Acting Director 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.

Social Impact

The proposed new rules will benefit consumers by assuring that their complaints will processed without unnecessary delay. That complaints are expeditiously resolved will also help licensees who are under the cloud of a complaint. The proposed new rules effectuate the statutory circumstances that can operate to toll the 120-day period so that evidence can appropriately be obtained and evaluated to assure an informed enforcement process that is fair to both the complaining consumer and the accused licensee.

Economic Impact

The proposed new rules may have a positive economic impact on consumers and licensees to the extent that a consumer whose complaint for restitution is upheld may receive payment sooner.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rules are not subject to any Federal standards or requirements.

Jobs Impact

The Acting Director does not anticipate that the proposed new rules will increase or decrease jobs in the State.

Agriculture Industry Impact

The proposed new rules will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

If, for the purposes of the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., an individual who files a consumer complaint does so on behalf of his or her business conducted as a sole proprietorship, and such business is a "small business," then the following analysis applies.

Proposed rule N.J.A.C. 13:45G-1.5 imposes a compliance requirement on the consumer. It requires that a consumer who wants to file a [page=2746] consumer complaint against a licensee include in or with communications to a board, the Director through the Attorney General or the Attorney General all of the information about the matter available to the consumer, together with supporting documentation. The proposed rule does not create any new reporting or record keeping requirements. Currently, a consumer would have to furnish the information and supporting documentation at some time in order for the board, the director through the Attorney General or the Attorney General to properly consider the allegations against a licensee. Under the proposed rule, all of the information and supporting documents would have to have been furnished to start the 120-day period.

The proposed rule affects equally all consumers who wish to file a complaint against a licensee. It will not have an adverse economic impact on consumers. The proposed rule does not impose any compliance costs. A consumer would incur the same costs whether the information and supporting documents are furnished up-front or during the course of the proceedings. No professional services will be required for a consumer to comply with the proposed rule.

Smart Growth Impact

The Division does not believe that the proposed new rules will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Housing Affordability Impact

The proposed new rules will have an insignificant impact on affordable housing in New Jersey . It is extremely unlikely that the rules would evoke a change in the average costs associated with housing because the proposed rules concern the resolution of complaints against licensees of various boards within the Division of Consumer Affairs.

Smart Growth Development Impact

The proposed new rules will have an insignificant impact on smart growth. It is extremely unlikely 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 proposed rules concern the resolution of complaints against licensees of various boards within the Division of Consumer Affairs.

Full text of the proposed new rules follows:

CHAPTER 45G

DISPOSITION OF CONSUMER COMPLAINTS

SUBCHAPTER 1. DISPOSITION OF CONSUMER COMPLAINTS

13:45G-1.1 Purpose

The rules in this chapter implement the provisions of P.L. 2010, c. 17, which require that a final disposition of a consumer complaint filed with a board, the Director through the Attorney General, or the Attorney General be rendered within 120 days of the filing of the complaint, subject to certain events that toll the 120-day period.

13:45G-1.2 Scope

The rules in this chapter apply to the disposition of consumer complaints against a licensee of any of the boards designated in N.J.S.A. 45:1-15 received by the board, the Director through the Attorney General, or the Attorney General on or after November 2, 2010.

13:45G-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Administrative hearing in a contested case" for the purpose of this chapter commences with the filing by or on behalf of a board of an administrative complaint, provisional order of discipline, notice of violation, uniform penalty letter, or other charging document against a licensee based on a consumer complaint and concludes upon the filing or execution of the board's final disposition.

"Attorney General's designee" means a senior member of the staff of the Attorney General, the Director of the Division of Consumer Affairs, or a Deputy Director of the Division of Consumer Affairs designated by the Attorney General to approve the tolling of the 120-day period within which a board, the Director or the Attorney General shall render a final disposition of a consumer complaint.

"Board" means any of the boards listed in N.J.S.A. 45:1-15.

"Consumer" means an individual who seeks or receives services provided by a licensee or a person who is authorized to act on behalf of that individual.

"Consumer complaint" means an accusation made by a consumer against a licensee, supported by all of the information and documentation available to the complainant that the board, Director through the Attorney General or Attorney General deems necessary to resolve the accusation or refer the matter for investigation.

"Director" means the Director of the Division of Consumer Affairs.

"Documented approval" means a writing, including an e-mail or other electronic document, made by the Attorney General or the Attorney General's designee approving the tolling of the 120-day period for the resolution of a consumer complaint.

"Final disposition" of a consumer complaint means an oral or written order, entered after a hearing or other opportunity to be heard or by consent, or other document authorized by the board imposing discipline on a licensee, taking action against a licensee not constituting discipline, or finding that there is no cause for action.

13:45G-1.4 Time period for disposition of consumer complaints

(a) A board, the Director through the Attorney General, or the Attorney General shall render a final disposition of a consumer complaint within 120 days of the filing of the complaint, except that the 120-day period shall be tolled, based upon the documented approval of the Attorney General or the Attorney General's designee, whenever additional time is required:

1. To obtain information, records or evidence, necessary for the investigation of the consumer complaint, from the licensee or a third party, through an informal request or the exercise of investigative authorities as set forth at N.J.S.A 45:1-18;

2. To obtain information, records or evidence, provided by or on behalf of a licensee that, in the licensee's view, materially refutes the findings upon which a settlement is premised or warrants an alternative disposition. Obtaining information, records or evidence includes an evaluation by the board of the material provided by or on behalf of the licensee in response to an offer of settlement, which shall be considered at the next regularly scheduled meeting of the board held on or after the 15th day after receipt of the material;

3. For the board, Director or the Attorney General, as the case may be, to consider additional information furnished by the consumer more than 30 days after the filing of the complaint;

4. To conduct an administrative hearing in a contested case;

5. For expert consultation related to the subject matter under investigation;

6. Because a complaint is, or becomes, the subject of a criminal investigation or prosecution; or

7. For other good cause shown due to extraordinary or unforeseen circumstances.

(b) Documented approval will be deemed to have been automatically granted by the Attorney General or the Attorney General's designee to obtain and review a response to a perfected consumer complaint from the licensee named in the complaint, for a period of 21 days or until the next meeting of the board following receipt of the complaint, whichever occurs later.

13:45G-1.5 Perfecting a consumer complaint

(a) A consumer who wants to file a consumer complaint against a licensee shall include in or with communications to a board, the Director through the Attorney General or the Attorney General all of the information about the matter available to the consumer, together with supporting documentation.

(b) If a communication from a consumer received by a board, the Director through the Attorney General or the Attorney General is in the nature of an accusation against a licensee, but does not contain, or is not accompanied by, sufficient information necessary to resolve the accusation or refer the matter for investigation, the recipient shall send the consumer, in the same manner as the consumer's communication was sent, an acknowledgment of receipt of the communication, advice that the [page=2747] communication did not contain all of the information necessary to constitute a consumer complaint, and a request for additional information.

(c) When the board, the Director through the Attorney General or the Attorney General receives communications and information, including supplemental information as requested under (b) above, from the consumer constituting a consumer complaint, it shall notify the consumer that the consumer's communications and accompanying information is or has been deemed to be a completed consumer complaint, indicating the date the consumer complaint was received or the date that the consumer complaint was deemed to be complete.

13:45G-1.6 Report to the Attorney General

A board and the Director shall each submit to the Attorney General a monthly report required under P.L. 2010, c. 17. The report shall include the number of complaints pending on the first day of the preceding month, the number of complaints for which tolling of the 120 days was approved within the preceding month, the number of complaints brought to final disposition during the preceding month within the 120-day period from filing (regardless of whether tolling had been approved), and the number of complaints brought to final disposition during the preceding month after more than 120 days from filing for which tolling of the 120-day period had been approved.

   
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