Rule Proposal

51 N.J.R. 1667(a)

VOLUME 51, ISSUE 22, NOVEMBER 18, 2019

RULE PROPOSALS

Reporter

51 N.J.R. 1667(a)

NJ - New Jersey Register  >  2019  >  NOVEMBER  >  NOVEMBER 18, 2019   >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement

INTERESTED PERSONS

Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal.

The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of N.J.S.A. 52:14B-3 . An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register.

At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at N.J.A.C. 1:30-6.3 . The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code.

Agency

LAW AND PUBLIC SAFETY > DIVISION OF CONSUMER AFFAIRS > OFFICE OF THE DIRECTOR

Administrative Code Citation

 Proposed Amendments: N.J.A.C. 13:45A-31.2, 31.4, 31.5, and 31.6

Authorized By: Paul R. Rodriguez, Acting Director, Division of Consumer Affairs.Authority: N.J.S.A. 56:13-19 and P.L. 2018, c. 165.

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

Proposal Number: PRN 2019-146.

Submit comments by January 17, 2020, to:

Paul R. Rodriguez, Acting Director

State of New Jersey

Division of Consumer Affairs

Office of the Director

PO Box 45027

Newark, New Jersey 07101

or electronically at:

 http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx

The agency proposal follows:

 Summary

 The Division of Consumer Affairs (Division) proposes amendments to its rules under the Predatory Towing Prevention Act (Act), N.J.S.A. 56:13-7 et seq., to extend the rules to the immobilization of motor vehicles, including by booting the vehicle, by installing an obstruction device on the windshield, or by other means. These proposed amendments will protect consumers from predatory practices covered by the Act, such as unreasonable fees for removing an immobilization device, but not previously addressed in the Division's rules.

 The Division also proposes amendments to implement P.L. 2018, c. 165, which clarified that the Act applies to commercial motor vehicles and made clear that towing companies can charge reasonable fees when a law enforcement officer has authorized towing without the owner's consent. The Act states that, in such circumstances, a towing company may charge either for towing or storage, if the fee is in accordance with a duly-authorized fee schedule established by a municipality or other political subdivision of this State. The Act creates a rebuttable presumption that fees charged in accordance with such a fee schedule are not unreasonable or excessive.

 Proposed amendments to N.J.A.C. 13:45A-31.2 revise the definitions of "basic tow," "motor vehicle," "non-consensual towing," "private property towing," and "towing" to incorporate changes to these definitions pursuant to P.L. 2018, c. 165. The proposed amendments delete the definition for "consumer," as P.L. 2018, c. 165 extended the Act to protect "persons," which includes commercial entities, not previously protected by the term "consumer." New definitions for "immobilization," "booting," and "windshield obstruction device" are set forth by the proposed amendments. The definition of "non-consensual towing" is proposed for amendment to clarify that the Division will regulate immobilization of vehicles.

 Proposed amendments to N.J.A.C. 13:45A-31.4 permit towing companies to charge a fee for removing an immobilization device, such as a booting device or a windshield obstruction device. The proposed amendments also address two types of instances in which a tow has been authorized by a law enforcement officer. They recognize, consistent with P.L. 2018, c. 165, that a towing company may charge a reasonable storage fee when a motor vehicle has been towed pursuant to authorization from [page=1668] a law enforcement officer. They also permit charging municipally established towing fees, pursuant to authorization by a law enforcement officer, when those fees have been established by municipal ordinance or resolution or by a contract between a municipality and the towing company, provided the amount of the fee is not unreasonable or excessive. The proposed amendments to N.J.A.C. 13:45A-31.4 remove references to "consumer," as that term has been removed from the Act.

 Proposed amendments to N.J.A.C. 13:45A-31.5 recognize that a fee will be presumed to be reasonable if towing has been authorized by law enforcement and the fee is established in a municipal ordinance or resolution or in a contract between a municipality and towing company.

 Proposed amendments to N.J.A.C. 13:45A-31.6 remove a reference to "consumer."

 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 Division anticipates that the proposed amendments will have a positive impact for individuals whose motor vehicles have been immobilized due to booting or the installation of a windshield obstruction device. Such individuals will be protected from predatory behaviors as the entities installing such devices will be subject to oversight by the Division, pursuant to the Act. The other provisions of the proposed amendments are intended to implement amendments to the Act made by P.L. 2018, c. 165.

 Economic Impact

 The proposed amendments will have a positive economic impact on persons whose vehicles are towed or immobilized, because they will limit the fees that can be assessed against them. The proposed amendments will also have a positive economic impact on towing companies, because they clarify that certain fees are permissible.

 Federal Standard Statement

 A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendments.

 Jobs Impact

 The Division does not believe that the proposed amendments will either increase or decrease the number of jobs in New Jersey.

 Agriculture Industry Impact

 The Division does not expect the proposed amendments to have any impact on the agriculture industry in the State.

 Regulatory Flexibility Analysis

 It is likely that the majority of towing companies employ fewer than 100 individuals and will be considered "small businesses" under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq.

 The proposed amendments impose no costs and will not require towing companies to employ any professional services. The proposed amendments do not impose recordkeeping or reporting requirements, but do impose compliance requirements as detailed in the Summary above.

 As the compliance requirements are necessary to adequately regulate towing companies performing booting or installing windshield obstruction devices and protect persons whose motor vehicles are immobilized through the installation of such devices, the Division believes that the proposed amendments must be uniformly applied to all towing companies and no exceptions are provided based on the size of the towing business.

 Housing Affordability Impact Analysis

 The proposed amendments will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the proposed amendments would evoke a change in the average costs associated with housing because the proposed amendments concern fees for the towing and immobilization of motor vehicles.

 Smart Growth Development Impact Analysis

 The proposed amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the proposed amendments 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 amendments concern fees for the towing and immobilization of motor vehicles.

 Racial and Ethnic Community Criminal Justice and Public Safety Impact

 The Division has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.

 Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

 SUBCHAPTER 31. PRIVATE PROPERTY AND NON-CONSENSUAL TOWING COMPANIES

 13:45A-31.2 Words and phrases defined

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

 "Basic tow" means private property towing and other non-consensual towing as defined in this section and other ancillary services that are components of a routine tow that include the following: arriving at the site from which a motor vehicle will be towed; 15 minutes waiting time; hooking a motor vehicle to, or loading a motor vehicle onto, a tow truck; transporting a motor vehicle to a storage facility; unhooking or unloading a motor vehicle from the tow truck; and situating the motor vehicle in the space in which it will be stored. "Basic tow" also includes issuing documents for the release of a motor vehicle to its owner or other person authorized to take the motor vehicle; issuing an itemized bill; three trips to the motor vehicle in storage, which, if applicable, include making a vehicle available to an insurance appraiser or adjuster; issuing documents for the release of a motor vehicle to its owner or other person authorized to take the motor vehicle; and retrieving a motor vehicle from storage during the hours in which the storage facility is open.

 "Booting" means the act of placing, on a parked motor vehicle, a mechanical device that is designed to prohibit its usual manner of movement.

 ...

 ["Consumer" means a natural person.]

 ...

 "Immobilization" includes booting, installing a windshield obstruction device, or other means of impeding the usual manner of movement of a vehicle.

 "Motor vehicle" includes all vehicles propelled other than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles, motorized scooters, motorized wheelchairs , and motorized skateboards. "Motor vehicle" also includes commercial motor vehicles as defined at N.J.S.A. 39:1-1.

 "Non-consensual towing" means the towing of a motor vehicle without the consent of the owner or operator of the vehicle, regardless of the reason for the tow. "Non-consensual towing" includes towing a motor vehicle when law enforcement orders the vehicle to be towed whether or not the owner or operator consents. The term also includes immobilization of a motor vehicle.

 ...

 "Private property towing" means non-consensual towing from private property or from a storage facility by a motor vehicle of a [consumer's] motor vehicle that is parked illegally, parked during a time at which such parking is not permitted, or otherwise parked without authorization or the immobilization of, or preparation for moving or removing of, such motor vehicle, for which a service charge is made, either directly or indirectly. This term shall not include the towing of a motor vehicle that has been abandoned on private property in violation of N.J.S.A. 39:4-56.5, provided that the abandoned vehicle is reported to the appropriate law enforcement agency prior to removal and the vehicle is removed in accordance with N.J.S.A. 39:4-56.6.

 ...

 "Towing" means the moving or removing from public or private property or from a storage facility by a motor vehicle of a [consumer's non-commercial] motor vehicle that is damaged as a result of an accident or otherwise disabled, recovered after being stolen or is parked illegally [page=1669] or otherwise without authorization, parked during a time at which such parking is not permitted , or otherwise parked without authorization or the immobilization of , or preparation for moving or removing of , such motor vehicle, for which a service charge is made, either directly or indirectly. Dues or other charges of clubs or associations, which provide towing services to club or association members shall not be considered a service charge for purposes of this definition.

 ...

 "Windshield obstruction device" means a device that attaches to the outside of a motor vehicle windshield, is designed to block the driver's vision and impair the ability to operate the vehicle, and requires special removal to avoid damage to the windshield.

 ...

 13:45A-31.4 Schedule of other non-consensual towing and storage services

 (a) A towing company that engages in private property towing or other non-consensual towing may charge fees for the following services:

 1.-2. (No change.)

 3. Removing an immobilization device, such as a booting device or a windshield obstruction device, when no fee is charged, pursuant to (a)1 or 2 above.

 (b)-(d) (No change.)

 (e) [A] Except as set forth in (f) and (g) below, a towing company shall not charge any fee for private property towing or other nonconsensual towing and related storage services not included in (a) above.

 (f) If a motor vehicle is subject to a non-consensual tow authorized by a law enforcement officer, a towing company may charge a reasonable fee for storage of the vehicle.

 (g) A towing company may charge a reasonable fee for non-consensual towing or related storage services if the non-consensual towing of a motor vehicle is authorized by a law enforcement officer and the fee has been established by a:

 1. Municipal ordinance or resolution; or

 2. Contract between a municipality and the towing company.

 [(f)] (h) If a towing company charges [a consumer] an owner or operator of a motor vehicle a fee for a private property or other non-consensual towing service that is disputed by the [consumer] person, the parties shall use good faith efforts to resolve the dispute. If the parties are unable to resolve the dispute and the Director determines the fee to be unreasonable under N.J.A.C. 13:45A-31.5, the Director may order the towing company to reimburse the [consumer] person for an amount equal to the difference between the charged fee and a reasonable fee, plus interest, as calculated pursuant to [(g)] (i) below.

 [(g)] (i) The interest rate imposed pursuant to [(f)] (h) above shall be based on the average rate of return, to the nearest whole or one-half percent, for the corresponding preceding fiscal year terminating on June 30, of the State of New Jersey Cash Management Fund (State accounts) as reported by the Division of Investment of the Department of the Treasury.

 Recodify existing (h)-(k) as (j)-(m) (No change in text.)

 13:45A-31.5 Unreasonable fees

 (a)-(b) (No change.)

 (c) Notwithstanding (a) and (b) above, there is a rebuttable presumption of reasonableness for a fee charged in connection with non-consensual towing of a motor vehicle if it is authorized by a law enforcement officer and the fee has been established by a:

 1. Municipal ordinance or resolution; or

 2. Contract between a municipality and the towing company.

 13:45A-31.6 Towing motor vehicles from private property

 (a) A private property towing company shall not remove a motor vehicle from private property without the consent of the owner or operator of the motor vehicle, unless:

 1. (No change.)

 2. The owner of the private property has posted a sign, in a conspicuous place at each vehicular entrance, at least 36 inches high and 36 inches wide stating:

 i.-v. (No change.)

 vi. That a [consumer] person may contact the Division of Consumer Affairs by calling 1-800-242-5846;

 3.-4. (No change.)