ACR146 1R

Sponsored by:

Assemblyman PAUL D. MORIARTY

District 4 (Camden and Gloucester)

Assemblyman TIMOTHY J. EUSTACE

District 38 (Bergen and Passaic)

Assemblyman DANIEL R. BENSON

District 14 (Mercer and Middlesex)

Co-Sponsored by:

Assemblywoman Mosquera

SYNOPSIS

Determines that Division of Consumer Affairs rules and regulations establishing procedure for waiver of Division of Consumer Affairs rules are inconsistent with legislative intent.

CURRENT VERSION OF TEXT

As reported by the Assembly Consumer Affairs Committee on June 7, 2012, with amendments.

A Concurrent Resolution concerning legislative review of Division of Consumer Affairs regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

Whereas, Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement and, upon a finding that the rule or regulation is not consistent with legislative intent, may transmit the finding to the Governor and the head of the agency; and

Whereas, On August 1, 2011, the Division of Consumer Affairs proposed for public comment in the New Jersey Register new rules, proposed to be codified at N.J.A.C.13:45C-2 and N.J.A.C.13:45C-3, to establish a procedure for the waiver of department rules; and

¹Whereas, The proposed rules were adopted by the Attorney General on March 21, 2012 and notice of adoption was published in the New Jersey Register on April 16, 2012; and¹

Whereas, The summary of the rule proposal focuses on a discussion of Executive Order No. 2 of 2010 issued by Governor Chris Christie as the reasoning for the ¹[proposed]¹ new rules and does not provide any support or justification for the proposed rulemaking based on any statutory authority granted to the Division of Consumer Affairs; and

Whereas, The notice of proposal lists four statutory citations as the authority for the rule proposal ¹and the notice of adoption retains these citations as the authority for the new rules¹; however, none of these statutes are discussed in the summary of the rule proposal, none of the statutory references provide the Division of Consumer Affairs with the authority to promulgate one set of rules and regulations in order to waive other rules and regulations previously adopted pursuant to the “Administrative Procedure Act,” and none of the statutes referenced authorize the department to establish a procedure for the waiver of other department rules; and

Whereas, ¹[According to the rule proposal, the] The¹ new rules ¹[would]¹ authorize the Division of Consumer Affairs, all boards, committees, and units within the division, and the Legalized Games of Chance Control Commission “to waive specific regulatory requirements, for the reasons of undue hardship, economic or otherwise” upon request and further allow the Division of Consumer Affairs to issue such waivers without even being requested to do so by the licensee, applicant, or regulated person or business, if requiring strict compliance “would lead to a burdensome, unfair or incongruous result or would endanger the health, safety and welfare of the general public”; and

Whereas, The very laws and regulations the Division of Consumer Affairs is entrusted with enforcing are those designed to protect New Jersey consumers and the public safety; and

Whereas, Granting compliance waivers in such important matters could only serve to threaten and endanger the health, safety and welfare of the general public in its own right; and

Whereas, The ¹[proposed]¹ regulations ¹[would]¹ explicitly grant the Division of Consumer Affairs authority to waive enforcement even when the division finds that there is a basis to issue a charge of a violation; and

Whereas, Authorizing such waivers would only serve to undercut the division’s chief mission and render the laws passed to safeguard the public safety ineffective and unenforceable; and

Whereas, New Jersey’s consumers, licensees, applicants, and regulated persons and businesses would have no guidance on when a waiver may be deemed justified and granted by the division and when they may be held accountable for compliance; and

Whereas, Allowing for enforcement waivers opens the door to inconsistent enforcement of the law and could lead to claims of impropriety; and

Whereas, For all of the above reasons, the ¹[proposed] new¹ rules and regulations ¹[to establish] establishing¹ a procedure for the waiver of division rules are inconsistent with the statutory authority provided to the Division of Consumer Affairs and would undermine the specific rules and regulations adopted pursuant to the authority granted to the division by the Legislature in specific laws; now, therefore,

Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):

1. The Legislature declares that the rules and regulations proposed in the New Jersey Register on August 1, 2011 by the Division of Consumer Affairs ¹[to establish] , adopted by the Attorney General on March 21, 2012, and published in the New Jersey Register on April 16, 2012 establishing¹ a procedure for the waiver of division rules are not consistent with the intent of the Legislature.

2. The Clerk of the General Assembly and the Secretary of the Senate shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Director of Consumer Affairs and the Attorney General.

3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Attorney General shall have 30 days following transmittal of this resolution to amend or withdraw the ¹[proposed] adopted¹ rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.