Proposed Readoption with Amendments: N.J.A.C. 13:44D
Authorized By: David M. Szuchman, Director, Division of Consumer Affairs.
Proposal Number: PRN 2009-289.
David M. Szuchman, Director
The agency proposal follows:
The Director of the Division of Consumer Affairs (the Director) proposes to readopt N.J.A.C. 13:44D with amendments. These rules are scheduled to expire on June 18, 2010 pursuant to N.J.S.A. 52:14B-5.1c.
In compliance with Executive Order No. 66 (1978), the Director undertook a thorough review of the existing provisions of N.J.A.C. 13:44D. The Director believes that the rules proposed for readoption are necessary, reasonable, understandable and responsive to the purpose for which they were originally promulgated. These rules have had an advantageous impact on the regulation and conduct of the practice of public moving and warehousing by enabling the Division of Consumer Affairs (Division) to have in place procedures which serve and protect the public's best interest. The following summarizes each subchapter in N.J.A.C. 13:44D and amendments proposed to the existing rules. It should be noted that the Division intends to propose amendments to N.J.A.C. 13:44D-2.1, 3.1, 4.5 and Appendix A in a separate proposal.
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 at least one moving vehicle. An applicant for licensure is required to submit specific information to the Director. Licensees are required to renew their licenses annually, 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 allowed to perform only those services for which they are licensed. The Director proposes to amend this rule to delete a requirement that vehicles used by an owner/operator display a decal issued by the Director as such a requirement is not imposed by P.L. 2007, c. 50.
N.J.A.C. 13:44-2.2 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, 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 a licensee to post a notice that states the telephone number where a representative who will handle consumer inquiries can be reached and when a representative will be present on the premises.
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.
Subchapter 3 requires that licensees 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.
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 and N.J.A.C. 13:44D-4.2 deals with moving contracts based on binding estimates. The rules set forth the documentation and information that licensees are required to provide to consumers and a time frame for providing this documentation and information.
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. 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 and provides circumstances under which this limitation is invalid. 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. 13:44 D-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. 13:44 D-4.7 deals with subcontracting. A licensee may only subcontract to another licensee and only 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 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 permits a licensee to contract with an owner-operator for the owner-operator to provide moving services to consumers. A licensee who uses an owner-operator is responsible to the consumer for any services rendered by the owner-operator and is required to provide consumers with a written notice that the licensee is using the services of an owner-operator. An owner-operator used by a public mover shall be added as an additional insured under the licensee's insurance policy and an owner-operator is required to maintain specific levels of insurance. A licensee who uses an owner-operator is required to maintain records regarding his or her relationship with the owner-operator.
N.J.A.C. 13:44 D-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 and that any changes from the estimated cost of services form must be approved in writing, in advance, by the consumer.
N.J.A.C. 13:44D-4.11 provides standards for warehousing a consumer's goods. A licensee must provide the warehouse's address to consumers. This rule 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. A licensee is prohibited from storing the goods of a consumer engaged in an intra-state move in an out-of-State warehouse. This rule 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 any tariff charges on a shipment that is either totally lost or destroyed. A consumer is liable for any and all insurance premiums jointly agreed to by the consumer and the licensee.
N.J.A.C. 13:44 D-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, [page=3378] 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.
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 Director proposes amendments to Appendices D and G to correct the title of the brochure that licensees are required to supply consumers by replacing "Utilizing" with "Using."
The 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.
The proposed readoption of N.J.A.C. 13:44D will allow the Director to continue to enforce 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 that protect consumers, licensees or both. 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 consumer 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 for the consumer as he or she is not relying on the financial ability of a licensee 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 a licensee, or at least his or her agent, will be accessible for legal actions. N.J.A.C. 13:44D-2.6 requires a 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 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. N.J.A.C. 13:44D-4.8 requires public movers to include an owner-operator as an additional covered insured on his or her insurance policy and requires owner-operators to carry their own insurance. This protects the public by ensuring that possible losses suffered during a move performed by an owner-operator are sufficiently covered by insurance. 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 identifies actions that constitute occupational misconduct. This apprises licensees of prohibited conduct and informs consumers of the actions by licensees that 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 not only 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 that the Director assesses for services rendered to licensees. The fee schedule has an economic impact on licensees and applicants for licensure by establishing fees that are necessary for the Director to fund the operation of regulating 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 public 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. 13:44 D-2.5 states that licensees who violate prohibitions on advertising may be subject to discipline action. N.J.A.C. 13:44D-2.7 provides grounds for sanctions on licensees who use business names that are misleading as to the services the 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 by setting out the minimum amount of insurance licensees must carry and by requiring licensees to provide workers' compensation insurance. 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 with amendments will result in the loss or gain of any jobs.
Agriculture Industry Impact
The Director does not anticipate that the rules proposed for readoption with amendments will have any impact on the agriculture industry of the State.
Regulatory Flexibility Analysis
Since public movers and/or warehousemen are individually licensed by the Division, they may be considered "small businesses" under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq.
The costs imposed on small businesses by the rules proposed for readoption with amendments are the same costs that are imposed on all licensees as outlined in the Economic Impact statement. The Board does not believe that licensees will need to employ any professional services to comply with the rules proposed for readoption. The rules proposed for readoption with amendments will continue to impose compliance, reporting and recordkeeping requirements as detailed in the Summary above.
As the compliance, reporting and recordkeeping requirements of the rules proposed for readoption with amendments were originally [page=3379] 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 with amendments 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.
Housing Affordability Impact
The rules proposed for readoption with amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules concern the licensure and regulation of public movers and/or warehousemen.
Smart Growth Development Impact
The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood 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 rules concern the licensure and regulation of public movers and/or warehousemen.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:44D.
Full text of the proposed amendments follows (deletion indicated in brackets [thus]):
(Agency Note: N.J.A.C. 13:44D Appendices D and G are reproduced below incorporating, without proposed change symbolism, the amendments described in the Summary above.)
13:44D-2.1 License to engage in the business of public moving and/or storage
(a)-(f) (No change.)
(g) A decal issued by the Director indicating that the public mover and/or warehouseman is licensed in this State shall be displayed on the driver's side door of each power unit registered and performing intrastate moving and/or storage services[, including all vehicles used by an owner/operator on contract to a public mover].
(h)-(j) (No change.)
[page=3380] APPENDIX D
ORDER FOR SERVICE WITH NON-BINDING ESTIMATE
[page=3381] APPENDIX G
ORDER FOR SERVICE WITH BINDING ESTIMATE
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