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NEW JERSEY REGISTER
VOLUME 38, ISSUE 20
ISSUE DATE: OCTOBER 16, 2006
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS

Proposed Readoption with Amendments: N.J.A.C. 13:45
Proposed Repeals: N.J.A.C. 13:45-4.5, 4.6 and 4.7
Proposed Repeal and New Rule: N.J.A.C. 13:45-5.5

Administrative Hearings in the Division of Consumer Affairs

Authorized By: Kimberly S. Ricketts, Director, Division of Consumer Affairs.

Authority: N.J.S.A. 56:8-4 and 45:14D-6, Reorganization Plan No. 008-1998, and N.J.S.A. 45:17A-21 and 34:8-54.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2006-252.

Submit written comments by December 15, 2006 to:
Kimberly S. Ricketts, Director
Office of the Director
New Jersey Division of Consumer Affairs
PO Box 45027
Newark, NJ 07101

The agency proposal follows:

Summary Pursuant to N.J.S.A. 52:14B-5.1c and N.J.A.C. 1:30-6.4, the rules at N.J.A.C. 13:45 will expire on December 28, 2006. The Division of Consumer Affairs (the "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 all contested cases in which the Director of the Division of Consumer Affairs (the "Director") issues administrative charges and hears contested matters as the agency head. The chapter has been amended throughout to reflect the different statutory areas in which the Division has jurisdiction and where the Director is authorized to conduct a hearing. 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 of the Division of Consumer Affairs (the "Director") the authority to use discretion with respect to matters not expressly covered under these rules. The Division proposes to add the definitions of certain words that are found in the Consumer Fraud Act, P.L. 1960, c. 39, N.J.S.A. 56:8-1 et seq., (the "Act") but have not been previously defined in the rules as well as a number of other definitions. The added definitions are "administrative changes," "advertisement," "consumer complaint," "contested case," "final decision," "formal complaint," "merchandise," "person" and "sale." The Division proposes to change the definition of "respondent" to conform to the definition under the Uniform Administrative procedure rules at N.J.A.C. 1:1-2.1. The Division proposes to delete the term "hearing examiner" to reflect that only an agency head may retain and decide "personally and directly" a contested case as set forth in the Administrative Procedure Act at N.J.S.A. 52:14F-8. The Division also proposes to amend the chapter wherever the term "hearing examiner" appears to reflect this change and delete any procedures that would have been required if a hearing examiner was conducting the hearing. These procedures are unnecessary as the Director now is acting independently under the proposed amendments.

Subchapter 2 addresses the Division's subject matter jurisdiction, which includes both sales and advertisements of merchandise under the Act. The Division proposes to amend N.J.A.C. 13:45-2.1 to include real estate under the Division's subject matter jurisdiction, pursuant to N.J.S.A. 56:8-2 and also include within its jurisdiction violations of N.J.S.A. 34:8-43 et seq., employment agencies, 45:14D-1 et seq., and Reorganization Plan 008-1998, Public movers, and 45:17A-18 et seq., charities. The Division proposes new N.J.A.C. 13:45-2.1(b) to make clear that the Attorney General may seek relief under these statutes in other forums in addition to the administrative forum. The Division proposes to remove the definitions of "merchant" and "consumer," words no longer found in the amended rules. In addition, the Division proposes to delete N.J.A.C. 13:45-2.1(d) to reflect that enforcement proceedings before the Director do not include disputes between private persons. Under proposed N.J.A.C. 13:45-2.2, where, for any reason the Division is without jurisdiction, it must notify the person who initiated the consumer complaint and, where possible, refer the consumer complaint to the appropriate local, State or Federal agency.

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 effected. The Division proposes to amend N.J.A.C. 13:45-3.1(b) to specify that a complaint must be answered within 35 days. The Division proposes to add two new requirements to the notice of hearing, as paragraphs (d)1 and 2. First, the notice must state that respondent must file an answer to the complaint within 35 days and, second, that the respondent must either admit or deny each and every one of the allegations of the complaint. The Division proposes to amend N.J.A.C. 13:45-3.1(d)7 to require that requests for adjournments conform with N.J.A.C. 1:1-9.6 and to allow the Director to sanction for untimely adjournment requests as provided by N.J.A.C. 1:1-14.14. A proposed amendment to N.J.A.C. 13:45-3.2 would require that service of papers after an answer has been filed conform to N.J.A.C. 1:1-7.1. In the proposal, the provisions related to pleadings have been removed from Subchapter 4 and proposed as new sections N.J.A.C. 13:45-3.3 and 3.4. Proposed N.J.A.C. 13:45-3.3 makes clear that an answer must be filed within 35 days of service and the respondent must follow the procedures set forth in the section when answering the complaint. Proposed N.J.A.C. 13:45-3.4 would allow the pleadings to be amended but limits the time within which that may occur. The Division proposes new section N.J.A.C. 13:45-3.5 to set forth the Attorney General's authority to initiate other types of administrative charges in addition to a complaint.

Subchapter 4 describes the conduct of hearings, sets forth the Director's authority to hear a contested case, provides for setting the time and place of a hearing, and permits adjournments. The proposed amendment to N.J.A.C. 13:45-4.1 makes the hearing of a contested case in the Division consistent with the Administrative Procedure Act at N.J.S.A. 52:14F-8, which requires the agency head to determine whether a matter is contested and, if so, allows an agency to refer any contested case to the Office of Administrative Law or retain jurisdiction and hear the matter. The Division proposes to amend N.J.A.C. 13:45-4.2 to establish that the Director's powers when hearing a contested case are consistent with the Uniform Rules of Administrative Procedure. The Division proposed to amend N.J.A.C. 13:45-4.3 to make the Director's adjournment powers consistent with those under N.J.A.C. 1:1-9.6, including sanction powers. N.J.A.C. 13:45-4.5, which addresses the pleadings, has been reorganized and placed in Subchapter 3 as N.J.A.C. 13:45-3.3 and 3.4 since the Division has determined that Subchapter 3, which addresses the commencement of formal administrative pleadings, is the more appropriate place for the provisions of N.J.A.C. 13:45-4.5.

The proposed amendment to N.J.A.C. 13:45-4.4 would delete subsections (a) and (b) because those sections would be covered under the proposed amendment to N.J.A.C. 13:45-4.2. N.J.A.C. 13:45-4.4 also states that a corporation may appear only through an attorney authorized to practice in the State, except as permitted by the rules of the Office of Administrative Law. N.J.A.C. 13:45-4.6 and 4.7 have been repealed to reflect that the Uniform Administrative Procedure Rules related to failure to appear and transcripts are applicable here.

Subchapter 5 addresses the duties of the Director when issuing a final decision and order. The subchapter contains a number of proposed amendments to make the rules consistent with the Administrative Procedure Act and case law, in that it makes clear that hearings of a contested matter, not referred to Office of Administrative Law, can only be heard by the agency head. Thus, the Division proposes to delete N.J.A.C. 13:45-5.1(a), which requires submission to the hearing officer of proposed findings of fact and conclusions of law, as no longer necessary. The proposed amendment to N.J.A.C. 13:45-5.1(a) (recodified from (b)) requires the Director to issue a final decision and order within 45 days of the last day of the hearing, receipt of the transcript or any required submissions. The 45-day period is consistent with the time period within which an administrative law judge must issue a final decision under the Administrative Procedure Act at N.J.S.A. 52:14B-10. The proposed amendments to N.J.A.C. 13:45-5.1(b) (recodified from (c)) require the Director to issue a final decision that includes findings of facts and conclusions of law. Proposed new subsection (c) sets forth the requirement that the specific penalties assessed against the respondent must be included in the Director's final decision and order. This provision was relocated from N.J.A.C. 13:45-5.3(d) as the Division determined that it is more appropriately placed under the section dealing with the requirements of the Director's final decision. The Division proposes to delete N.J.A.C. 13:45-5.1(e), (f) and (h) to remove any duties required of the hearing examiner that would be inconsistent with the requirement that only the Director hear a contested matter. N.J.A.C. 13:45-5.2 has been amended to provide not only for the assessment of civil penalties, but also for restitution, costs and attorneys' fees. This change makes the regulations consistent with the remedies available under the Act at N.J.S.A. 56:8-13, 15 and 11 and the other statutory schemes set forth in proposed N.J.A.C. 13:45-2.1. The Division has proposed amendments to N.J.A.C. 13:45-5.2(b) and the deletion of N.J.A.C. 13:45-5.2(c) to clarify the meaning of first and second offense under the Consumer Fraud Act. The example for assessment of civil penalties at proposed N.J.A.C. 13:45-5.2(d) is being corrected to reflect the current penalties under the Consumer Fraud Act at N.J.S.A. 56:8-13. The Division proposes to amend N.J.A.C. 13:45-5.3(a) and delete subsection (b) to reflect that it is the Director's final decision and order that will be served on the parties in conformance with N.J.A.C. 1:1-7.1 and to remove any reference to the hearing examiner and his or her report. In addition, the Division proposes to delete N.J.A.C. 13:45-5.3(c) and (d) to reflect that written exceptions are no longer necessary since a hearing officer's report will no longer be issued. The Division proposes an amendment to N.J.A.C. 13:45-5.4(b) to clarify the manner in which payment of penalties, restitution and costs must be made. The Division proposes to repeal the section that allows the re-opening of the proceedings, N.J.A.C. 13:45-5.5, and replace it with a new rule that sets forth the time frame for appeal to the Appellate Division. Finally, the subchapter includes a severance provision in the event that any portion of the rules is found by a court to be invalid.

The Director has determined that the comment period for this proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirements.

Social Impact

The rules proposed for readoption with amendments, repeals and new rule govern the commencement, pleadings and final decision in any contested case within the Division's jurisdiction as set forth in N.J.A.C. 13:45-2.1. 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 rectify 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. In addition, where the Division takes advantage of this type of proceeding, it positively impacts the public by preventing behavior that violates the Consumer Fraud Act or the other statutory schemes provided for in this chapter. 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 the parties to take advantage of these types of proceedings.

Economic Impact

The rules proposed for readoption with amendments, repeals and new rule 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, repeals and new rule are not subject to any Federal standards or requirements.

Jobs Impact

The Division does not anticipate that the rules proposed for readoption with amendments, repeals and new rule will increase or decrease the number of jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption with amendments, repeals and new rule will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The rules proposed for readoption with amendments, repeals and new rule impose no reporting or recordkeeping requirements: The rules do, however, impose a number of compliance requirements on any small business, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., that has contested a violation of the statutes covered by these rules. Where a complaint has been issued, the respondent must comply with the time requirements under proposed 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, except as permitted under N.J.A.C. 1:1-5.4 and 5.6. Where civil penalties, restitution and costs are assessed by the Director, the respondent must comply with the provisions of N.J.A.C. 13:45-5.4. Finally, 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. Compliance costs and professional services are discussed in the Economic Impact above. The rules proposed for readoption with amendments, repeals and new rules 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.

Smart Growth Impact

The rules proposed for readoption with amendments, repeals and new rule have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.

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, repeals and new rule follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 1. GENERAL PROVISIONS

13:45-1.1 Definitions

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

"Act" means the New Jersey Consumer [Protection] Fraud Act, N.J.S.A. 56:8-1 et seq. as amended and/or supplemented, or any regulation adopted thereunder.

"Administrative charges" means a formal complaint or such other pleading, including, but not limited to, a notice of violation, provisional orders of discipline or uniform penalty letters.

"Advertisement" means the attempt directly or indirectly by publication, dissemination, solicitation, endorsement or circulation or in any other way to induce directly or indirectly any person to enter or not enter into any obligation or acquire any title or interest in any merchandise or to increase the consumption thereof or to make any loan.

"Attorney for the [division] Division" means an attorney appointed or assigned by the Attorney General of New Jersey to represent and render legal services to the Division [of Consumer Affairs].

"Complainant" means [any person including the Attorney General or the director, alleging an unlawful practice within the meaning of the act] the party who requests action or relief by filing a complaint.

"Consumer complaint" means the letter, e-mail, telephone call or other means by which a consumer reports to the Division a violation of the Act or other statutory schemes covered by these rules.

"Contested case" means an adversary proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing. The required hearing must be designed to result in an adjudication concerning the rights, duties, obligations, privileges, benefits or other legal relations of specific parties over which there exist disputed questions of fact, law or disposition relating to the past, current or proposed activities or interests. Contested cases are not informational nor intended to provide a forum for the expression of public sentiment on a proposed agency action or broad policy issues affecting entire industries or large, undefined classes of people.

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

"Final decision" means a decision by the Director after a hearing conducted in accordance with the rules under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

"Formal complaint" means administrative charges pursued in a pleading asserting an allegation of a violation requiring a form answer.

["Hearing examiner" means any person designated by the Attorney General or the director to conduct any hearing alleging violations of the act.]

"Merchandise" means any objects, wares, goods, commodities, services or anything offered, directly or indirectly, to the public for sale.

"Person" means any natural person or his or her legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer. director, member, stockholder, associate, trustee or cestuis que trustent thereof.

"Respondent" means [any person charged with an unlawful practice under the act] the party who answers or responds to a request for relief or action.

"Sale" means any sale, rental or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute.

13:45-1.2 Scope

The following rules [shall constitute the practice and procedure and] shall govern the commencement, pleadings and final decision in all contested cases [as defined by the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-2(b),] before the Division [of Consumer Affairs, where a violation of the act is alleged].

13:45-1.3 Construction

(a) These rules shall be liberally construed to permit the Division [of Consumer Affairs] to discharge its statutory functions.

(b) Except as stated in (c) below, [The director] the Director [or the director's representative] may, upon notice to all parties, relax [the application of these rules where the interest of justice will be served thereby] or disregard the application of these rules if the Director determines that adherence would result in unfairness or injustice. The Director shall make such determinations and state the reasons for doing so on the record.

(c) The burden of proof shall not be relaxed. Statutory procedural requirements shall not be relaxed or disregarded except when permitted by the controlling Federal or State statutes.

13:45-1.4 Practice where rules do not govern

(a) The [director] Director may rescind, amend or expand these rules from time to time, provided the same is effected in accordance with the provisions of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

(b) In any matter not expressly controlled by these rules or by statute, the [director] Director shall exercise discretion.

SUBCHAPTER 2. JURISDICTION

13:45-2.1 Subject matter jurisdiction

(a) The jurisdiction of the [division] Division shall extend to all sales or advertisements for the sale of merchandise [between a consumer and a merchant] or real estate, pursuant to the Act and to contested matters where the Director is authorized to proceed with administrative charges for violations of N.J.S.A. 34:8-43 et seq., 45:17A-18 et seq. or 45:14D-1 et seq.

[(b) For the purpose of applying this rule, a "merchant" is a person as defined by N.J.S.A. 56:8-1(d) engaged in the business of selling merchandise as defined by N.J.S.A. 56:8-1(c).

(c) For the purpose of applying this rule, a "consumer" shall be a person as defined by N.J.S.A. 56:8-1(d) who purchases merchandise for personal or private use or for profit.

(d) A sale of merchandise between two private individuals shall not be deemed to be within the jurisdiction of the Division of Consumer Affairs.]

(b) Nothing in this chapter shall be construed to preclude the Attorney General from pursuing violations of law in any other forum.

13:45-2.2 Procedure where [division] Division is without jurisdiction

Whenever it shall appear that the [division] Division is without jurisdiction [over a consumer complaint] as defined in N.J.A.C. 13:45-2.1, the [complaint] party making the consumer complaint shall be so advised, and where possible, the consumer complaint shall be [forwarded] referred to the appropriate local, State or Federal agency for further action.

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) Whenever it shall appear to the [director] Attorney General that a violation of [the act] law under one of the statutory schemes covered by N.J.A.C. 13:45-2.1 has occurred, is occurring or may occur and that the matter warrants a formal administrative hearing to effectuate the policies underlying [said act] the applicable statute, the [director] Attorney General may cause to be issued a notice of hearing and complaint seeking any relief authorized by the [act] applicable statute.

(b) The complaint shall be [returnable in not less than five nor more than 30] answered within 35 days from the date of service thereof.

(c) (No change.)

(d) The notice of hearing shall contain:

1. A statement that the respondent shall file an answer to the allegations in the complaint within 35 days of service of the complaint;

2. A statement that the answer shall admit or deny each allegation in the numbered paragraphs of the complaint

Recodifying existing 1. and 2. as 3. and 4. (No change in text.)

[3.] 5. A statement that the respondent may present evidence in [defence] defense to the charges contained in the complaint, either through an attorney or personally;

[4.] 6. A statement that should the respondent fail to file an answer or appear at the hearing, a default will be entered and the complainant will proceed with proofs in support of the relief demanded; and

[5. A statement that adjournments will not be granted except on timely written application to the director and for good cause shown. Said statement shall also contain notice that in the event an adjournment is granted, any expenses incurred by the director as a result thereof may be taxed to the respondent as a condition for granting the adjournment.]

7. A statement that adjournments will be granted where the party requesting the adjournment has conformed to the regulations set forth in N.J.A.C. 1:1-9.6. If the application for adjournment is untimely, the Director may order any sanctions provided in N.J.A.C. 1:1-14.14.

(e) A complaint [issued by the director] shall contain:

1.-3. (No change.)

13:45-3.2 Service of notice of hearing and complaint

(a) Service of a notice of hearing and complaint shall be made as follows:

1.-3. (No change.)

4. In lieu of the service set forth in [paragraphs] (a)1 through 3 [of this subsection] above, [the director may direct that] service may be made by sending a copy of the notice of hearing and complaint certified mail, return receipt requested to either the registered or principal place of business or to any agent authorized by law to accept service or to the last known address of the respondent.

(b) Service of any papers after an answer has been filed with the Director shall conform to the requirements of N.J.A.C. 1:1-7.1.

13:45-3.3 Answer

(a) A respondent shall file an answer to the complaint with the Director within 35 days of service of the complaint, with a copy to the complainant.

(b) In the answer, the respondent shall admit or deny each allegation of the numbered paragraphs of the complaint.

(c) The respondent may assert any factual or legal defenses to the allegations made in the complaint.

(d) Filing of an answer shall be made by forwarding an original and two copies to the Director, with a copy to the complainant. Evidence of filing of the answer shall be a notation showing the date, time and place of filing.

(e) If the respondent submits a self-addressed, stamped envelope, the Division will return a copy of the answer to the respondent marked with the date of filing.

(f) The Director, upon receiving an answer for filing that does not conform to the requirements of these rules, may return the answer with instructions for refiling.

(g) The failure to file an answer shall be deemed a default, if service has been effectuated.

13:45-3.4 Amendment to pleadings

A complaint may be amended as a matter of course at any time before an answer is filed with the Director. After the answer has been filed, any amendments to the pleadings shall be governed by N.J.A.C. 1:1-6.2.

13:45-3.5 Administrative charges

Nothing in this subchapter shall preclude the Attorney General from initiating administrative charges through, but not limited to, a notice of violation, provisional order of discipline or uniform penalty letter. The respondent shall answer the administrative charges as directed by the pleadings.

SUBCHAPTER 4. CONDUCT OF HEARINGS

13:45-4.1 Hearing to conform to law

(a) After an agency proceeding has commenced, the Director shall promptly determine whether the matter is a contested case.

(b) If a party petitions the Director to determine whether a matter is contested, the Director shall make that determination within 30 days from receipt of the petition and inform all parties of his or her determination.

(c) The Director shall determine whether to retain jurisdiction of the contested case or refer the contested case to the Office of Administrative Law (OAL). The Director shall be the final decision maker in any contested case sent to the OAL.

(d) The conduct of all hearings shall conform to the requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

13:45-4.2 [Hearing examiner] Director's powers when hearing contested case

(a) All hearings under these rules shall be conducted before [a hearing examiner designated by the Attorney General or] the [director] Director. When the hearing is conducted before the Director, the Director may exercise the powers and responsibilities of an administrative law judge, pursuant to N.J.A.C. 1:1.

[(b) The hearing examiner shall have authority and discretion to control the order of proceedings, to administer oaths to witnesses, to rule on any procedural or evidential motions or objections, to order witnesses to produce evidence in accordance with the act and/or these rules, and to make such rulings as may be necessary to conduct a fair and orderly hearing.

(c) The hearing examiner shall receive all evidence relevant to the matter before him without regard to the strict rules of admissibility, and may in his discretion examine witnesses.]

[(d)] (b) The [hearing examiner] Director may [permit] require the submission of proposed findings of fact and conclusions of law, written memoranda of law or briefs.

[(e)] (c) The [hearing examiner shall not] Director may dismiss any complaint or part thereof or any other administrative charges in any pending matter[. A recommendation to dismiss the complaint or any part thereof may be made to the director in the hearing examiner's report or] at [such other] any time as may be appropriate for good cause shown.

13:45-4.3 Time and place of hearing

(a) Hearings shall be held at a time and place designated by the [director] Director, having due regard for the convenience of the parties and witnesses.

(b) The procedures for adjournments set forth under N.J.A.C. 1:1-9.6 shall govern all applications for adjournments in the Division. All applications for adjournments shall be made to the Director. The Director may order sanctions as set forth in N.J.A.C. 1:1-9.6(j).

[(b) In the director's discretion or upon application made at least five days prior to the date of the hearing on behalf of any party, a hearing may be adjourned.

(c) A motion to adjourn a hearing may be made during a hearing to the hearing examiner.

(d) Upon granting any adjournment, the director or hearing examiner shall notify all interested parties and may, on notice, reschedule the hearing at any time thereafter.

(e) In the event an adjournment is granted as provided herein, either the director or the hearing examiner may, where appropriate, tax any costs or expenses, including but not limited to recording fees and hearing examiner's fees.]

13:45-4.4 Appearance[s and] of attorneys

[(a) The complainant in any hearing held hereunder shall first present the evidence in support of the alleged violation of the act.

(b) Thereafter, the respondent may cross-examine any witness giving testimony and present evidence either through counsel or prose.]

[(c)] [A] Except as permitted by N.J.A.C. 1:1-5.4 and 1:1-5.6, a corporation shall not appear or file any paper in proceedings before the [division] Director except through an attorney authorized to practice in this State.

[13:45-4.5 Pleadings

(a) A respondent may file an answer setting forth any factual or legal defenses to the allegations contained in the complaint.

(b) Where appropriate, the director may require the respondent to file an answer to the complaint.

(c) Filing of an answer shall be made by forwarding an original and two copies to the director.

(d) The failure to file an answer, except when ordered to do so, shall not be deemed a default.

(e) A complaint or an answer may be amended at any time prior to the hearing.

(f) Any pleading may be amended during or after a hearing with leave of the hearing examiner.

13:45-4.6 Failure to appear

If the respondent without good cause fails to appear on the date set for a hearing, the hearing officer may hear the evidence presented by the office and render his decision forthwith.

13:45-4.7 Transcript

(a) The proceedings before the hearing examiner may be stenographically recorded at the request and expense of the respondent.

(b) If the proceedings are transcribed at the respondent's request, the respondent shall serve a copy of the transcript upon the hearing examiner and the attorney for the division.

(c) If the proceedings are transcribed at the division's request, respondent shall, upon written request, be afforded access to the transcript.]

SUBCHAPTER 5. ISSUANCE OF FINAL DECISION

13:45-5.1 [Hearing examiner's] Director's decision

[(a) In any contested case, the respondent may, not later than ten days following the final day of hearing, submit proposed findings of fact and conclusions of law to the hearing examiner, provided notice of intention to submit such finding is given to the hearing examiner prior to the close of the hearing. In the event that a respondent elects to file proposed findings of fact and conclusions of law, a copy of the same shall be served upon the attorney for the division, who may within ten days after service thereof file a response thereto.]

[(b)] (a) The [hearing examiner] Director shall, not later than [30] 45 days following the final day of hearing [or], receipt of the transcript [or receipt of proposed findings of fact and conclusions of law] or any required submissions, whichever is latest, [file with the director a report pursuant hereto] issue a final decision and order.

[(c)] (b) The [hearing examiner's report] Director's final decision and order shall include [recommended] findings of fact and conclusions of law, separately stated.

(c) The Director's final decision and order shall include such remedies or conditions as may be authorized by law, including, but not limited to, the entry of a cease and desist order, the assessment of civil penalties, restitution, costs, including investigative costs, and attorneys' fees.

[(d) In those cases where an unlawful practice under the act is found, the report shall specifically state the violation in terms of the statutory language found to be violated.

(e) A concise and explicit statement of the underlying facts supporting a recommended finding of an unlawful practice shall be set forth.

(f) In any case where a respondent has submitted proposed findings of fact and conclusions of law, the report shall include a ruling on each proposed finding.]

[(g)] (d) [In any case where a stenographic recording is not secured, the hearing examiner's report] The Director's final decision and order shall be in writing.

[(h) In those cases where a stenographic recording is made of the proceeding, the hearing examiner may, in his discretion and consistent with the within rules and the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., render a report orally on the record.]

13:45-5.2 Assessment of civil penalties, restitution and costs and other remedies under the law; second offenses

(a) Upon [recommending] a finding of a violation of any provision of [the act] law or any regulation promulgated thereunder, after a hearing, the [hearing examiner] Director may, [in addition to any other remedy authorized by the act, recommend] order remedies consistent with the applicable statute, which may include registration suspension or revocation, the assessment of a civil penalty in [accordance with N.J.S.A. 56:8-13] an amount consistent with the statute, based on the findings, a cease and desist directive or other remedial measures and a release from a bond to satisfy obligation, if one is required, restitution to consumers, costs and attorneys' fees.

[(b) For the purpose of applying said N.J.S.A. 56:8-13, a first offense shall be deemed to be the first consumer transaction in which an unlawful practice is established.]

[(c)] (b) [A] Whether a finding of an unlawful practice or practices in a second [consumer] or subsequent transaction shall be deemed to be a second or subsequent offense [within the meaning of N.J.S.A. 56:8-13] in the same matter shall be controlled by the applicable statute. [(d)] For the purpose of illustrating [the within] this provision, if a respondent in any administrative proceeding [held pursuant hereto] alleging violations of the Act or N.J.S.A. 45:17A-18 et seq. is found to have used or employed an unlawful practice [under the act] in two separate [consumer] transactions, [said] the respondent shall be liable for a penalty of not more than [2,000] $ 10,000 for the first transaction and not more than $[5,000]20,000 for the second transaction. Under N.J.S.A. 45:14D-16, a second offense occurs in a proceeding only after entry of a prior order.

13:45-5.3 Service of [hearing examiner's] Director's decision

[(a)] A [report rendered in writing by a hearing examiner] final decision and order issued by the Director shall be served [upon the respondent by sending a copy of the report or transcript thereof] by certified mail, return receipt requested, to the last known address of the respondent or where applicable, to counsel for respondent] in conformance with N.J.A.C. 1:1-7.1.

[(b) Copies shall also be filed with the director and the attorney for the division.

(c) A respondent or the attorney for the division may, not later than ten days following receipt of the hearing examiner's report, file with the director written exceptions to the report. In the event such exceptions are filed, a copy thereof shall be served upon the hearing examiner and the opposing party or counsel thereto. Exceptions to the hearing examiner's report shall separately set forth the recommended finding of fact or conclusion of law to which the exception is taken and a concise statement of the applicable facts or law to be considered by the director in reviewing the report.

(d) Upon receipt of the hearing examiner's report and exceptions thereto, if any, the director shall review the record before the hearing examiner and render a final decision and order of the division. The division's final order may include such remedies or conditions as may be authorized by the act, including but not limited to the entry of a cease and desist order, restoration of moneys or property to consumers, and the assessment of civil penalties and costs.]

13:45-5.4 Payment of [civil penalties] award

(a) In any matter wherein payment of civil penalties, restitution and costs is ordered, payment thereof shall be made not later than 10 days following service of the [director's] Director's final decision and order or as directed by the terms of the order.

(b) Payment of assessed penalties and costs shall be by certified check or money order made payable to the [State of New Jersey] New Jersey Division of Consumer Affairs by forwarding the same to the [director] Division. Payment of restitution shall be by certified check or money order made payable to the appropriate consumer and forwarded to the Division.

[13:45-5.5 Reopening of proceedings

(a) An administrative proceeding hereunder may be reopened:

1. By the hearing examiner at any time prior to rendering the report required herein; or

2. By the director at any time subsequent to the filing of the hearing examiner's report.

(b) A reopening may be sought by the respondent or the attorney for the division on a timely motion for good cause shown or on the motion of the director.

(c) The reopening of proceedings shall not be deemed to be a matter of right but rather a matter of discretion.]

13:45-5.5 Effect of final order

The final order shall be effective on the date of filing with the Division. Any appeal of the final order shall be made to the Appellate Division within 45 days from the date of service of the final order and decision, in accordance with the New Jersey Court Rules.

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