A279

ASSEMBLY, No. 279

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblymen BATEMAN and KAVANAUGH

An Act concerning the service of certain administrative notices, rulings, decisions and orders and the time periods in which to apply for certain hearings, and amending and supplementing various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 13 of P.L.1977, c.419 (C.45:22A-33) is amended to read as follows:

13. a. If the agency determines after notice and hearing that a person has:

(1) Violated any provision of this act;

(2) Directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of a unit;

(3) Made any substantial change in the plan of disposition and development of the subdivision subsequent to the order of registration without obtaining prior written approval from the agency;

(4) Disposed of any units, lots, parcels, or interests in a planned real estate development which have not been registered with the agency, or;

(5) Violated any lawful order or rule of the agency; it may issue an order requiring the person to cease and desist from the unlawful practice or to take such other affirmative action as in the judgment of the agency will carry out the purposes of this act.

b. If the agency makes a finding of fact in writing that the public interest will be irreparably harmed by delay in issuing an order, it may issue a temporary cease and desist order. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing shall be held within 10 days of such request to determine whether or not it becomes permanent. [Such temporary cease and desist order shall be forwarded by certified mail.]

(cf: P.L.1977, c.419, s.13)

2. Section 6 of P.L.1993, c.258 (C.45:22A-54) is amended to read as follows:

6. Any person aggrieved by any order issued by the agency under this act shall be entitled to a hearing before the Commissioner of Community Affairs pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The application for such hearing must be filed with the agency within 10 business days of [the receipt by the applicant] the service of notice of the order complained of. The Commissioner may extend the 10 day time period to make written application for a hearing for an additional 10 business days if, in the Commissioner's judgment, the interests of justice shall be served. Pending the determination of the Commissioner, and upon application therefor, the Commissioner may grant a stay of the order complained of, provided that no such stay shall be granted except upon such terms and conditions as will adequately protect the public.

(cf: P.L.1993, c.258, s.6)

3. (New section) Notices, rulings, decisions and orders, including all cease and desist orders, required or permitted to be issued and served pursuant to "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.) shall be served as follows:

a. On the developer:

(1) By ordinary or certified mail to the person designated as developer or agent on the registration statement of the development, in the municipal tax records or in the records of the Secretary of State;

(2) By serving the document on the Secretary of State, who shall be deemed the developer's agent for service of process, except that reasonable efforts shall have first been made to serve the developer or agent by ordinary mail and that a copy of the document is posted at a conspicuous location on the premises;

(3) By personal delivery of the document to the developer or agent;

(4) By leaving the document at the office or dwelling unit of the developer or agent with a person 14 years of age or older; or

b. On any other person:

(1) By ordinary or certified mail to the person at the person's last known address;

(2) By personal delivery of the document to the person;

(3) By leaving the document at the office or dwelling unit of the person with a person 14 years of age or older.

c. The date of personal service or the third day after mailing shall be considered the date of service.

4. (New section) Notices, rulings, decisions and orders required or permitted to be issued and served pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) shall be served as follows:

a. On the owner:

(1) By ordinary or certified mail to the person designated as owner or agent on the construction permit application, in the municipal tax records or in the records of the Secretary of State;

(2) By serving the document on the Secretary of State, who shall be deemed the owner's agent for service of process, except that reasonable efforts shall have first been made to serve the owner or agent by ordinary mail and that a copy of the document is posted at a conspicuous location on the premises;

(3) By personal delivery of the document to the owner or agent;

(4) By leaving the document at the office or dwelling unit of the owner or agent with a person 14 years of age or older; or

b. On any other person:

(1) By ordinary or certified mail to the person at the person's last known address;

(2) By personal delivery of the document to the person;

(3) By leaving the document at the office or dwelling unit of the person with a person 14 years of age or older.

c. The date of personal service or the third day after mailing shall be considered the date of service.

5. Section 7 of P.L.1981, c.494 (C.52:27D-124g) is amended to read as follows:

7. Any person aggrieved by any ruling, action, order, or notice of the commissioner pursuant to this act shall be entitled to a hearing pursuant to the "Administrative Procedure Act" (P.L.1968, c.410, C.52:14B-1 et seq.). The application for the hearing must be filed within 15 days of [the receipt by the applicant thereof] the service of notice of the ruling, action, order or notice complained of. The commissioner may extend the 15 day time period to make written application for a hearing for an additional 15 days if, in the commissioner's judgment, the interests of justice shall be served. Pending the determination of the commissioner, and upon application therefor, the commissioner may grant a stay of the ruling, action, order or notice complained of, provided that no such stay shall be granted except upon such terms and conditions as will adequately protect the public.

(cf: P.L.1981, c.494, s.7)

6. Section 15 of P.L.1983, c.383 (C.52:27D-206) is amended to read as follows:

15. a. A person aggrieved by a ruling, action, order, or notice of the commissioner pursuant to this act shall be entitled to an administrative hearing. The application for the hearing shall be filed with the commissioner by the 15th day after [receipt by the person] the service of notice of the ruling, action, order or notice. The commissioner may extend the 15 day time period to make written application for a hearing for an additional 15 days if, in the commissioner's judgment, the interests of justice shall be served.

All hearings shall be conducted by the Office of Administrative Law pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and P.L.1978, c.67 (C.52:14F-1 et seq.), and the final decision shall be issued by the commissioner or his designee.

b. A person aggrieved by any ruling, action, order or notice of a local enforcement agency pursuant to this act[,]shall be entitled to an administrative hearing before the construction board of appeals created pursuant to section 9 of P.L.1975, c.215 (C.52:27D-127)[,]having jurisdiction in the municipality in which the building, structure or premises is located. The applications for the hearing shall be filed with the construction board of appeals by the 15th day after the [receipt by the person] service of notice of the ruling, action, order or notice complained of. The construction board of appeals may extend the 15 day time period to make written application for a hearing for an additional 15 days if, in its judgment, the interests of justice shall be served.

(cf: P.L.1983, c.383, s.15)

7. Section 20 of P.L.1983, c.383 (C.52:27D-211) is amended to read as follows:

20. a. Notices, [rules] rulings, decisions and orders required or permitted to be issued and served pursuant to this act shall be served as follows:

(1) On the owner:

(a) By ordinary or certified mail to the person designated as owner or agent on the certificate of registration, in the municipal tax records, or in the records of the Secretary of State; [however, if the certified mailing is returned, the original letter shall be remailed to the last known address of the person by ordinary mail.]

(b) By serving the document on the Secretary of State, who shall be deemed the owner's agent for service of process; except that reasonable efforts have first been made to serve the owner or [his] agent by ordinary or certified mail and that a copy of the document is posted in a conspicuous location on the premises. "Conspicuous location" shall include the walls of the front vestibule or any common foyer or hallway immediately inside the main front entrance[.];

(d) By leaving the document at the office or dwelling unit of the owner or agent with a person 14 years of age or older.

(2) On any other person:

(a) By ordinary or certified mail to the person at [his] the person's last known address; [however, if the certified mailing is returned, the original letter shall be remailed to the last known address of the person by ordinary mail.]

(b) By personal delivery of the document to the person[.]; or

b. The date of personal service or the third day after mailing shall be considered the date of service.

(cf: P.L.1983, c.383, s.20)

8. Section 22 of P.L.1986, c.103 (C.52:27D-351) is amended to read as follows:

22. If the commissioner determines or has cause to believe that a person has engaged in any act or practice which constitutes a violation of this act, the commissioner may take any or all of the following actions, as appropriate:

a. Issue an order requiring the person to cease and desist from engaging in the act or practice;

b. Bring an action in a court of competent jurisdiction to enjoin the act or practice and to enforce compliance with this act. Upon a proper showing, the court may grant a permanent or temporary injunction, restraining order or writ of mandamus and may appoint a receiver or conservator for the defendant or the defendant's assets. The commissioner shall not be required to post a bond; or

c. Levy and collect civil penalties in the amount of not less than $250, and not more than $50,000, for each violation of this act or any rule adopted pursuant thereto, and compromise and settle any claim for a penalty in such amount in the discretion of the commissioner as may appear appropriate and equitable under the circumstances of the violation. Each day during which a violation continues after the effective date of a notice to terminate issued by the commissioner shall constitute an additional, separate and distinct violation. If an administrative order levying a civil penalty is not satisfied within 30 days of its issuance, the commissioner may sue for and recover the penalty with costs in a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.) in the Superior Court.

[The commissioner shall promulgate regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), regarding the implementation of subsection c. of this section.]

(cf: P.L.1991, c.314, s.1)

9. (New section) Any person aggrieved by any ruling, action, order, or notice of the commissioner pursuant to the "Continuing Care Retirement Community Regulation and Financial Disclosure Act," P.L.1986, c.103 (C.52:27D-330 et seq.) shall be entitled to a hearing conducted in conformity with the rules and procedures, insofar as they may be applicable, provided for hearings by a State Agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The application for such hearing must be filed with the commissioner within 15 days of the service of notice of the ruling, action, order or notice complained of. The commissioner may extend the 15 day time period to make written application for a hearing for an additional 15 days if, in the commissioner's discretion, the interests of justice shall be served. Pending the determination of the commissioner, and upon application therefor, the commissioner may grant a stay of the ruling, action, order, or notice complained of; provided, that no such stay shall be granted except upon such terms and conditions as will adequately protect the occupants or intended occupants of the continuing care retirement community involved.

10. (New section) Notices, rulings, decisions and orders permitted or required to be served pursuant to the "Continuing Care Retirement Community Regulation and Financial Disclosure Act," P.L.1986, c.103 (C.52:27D-330 et seq.) shall be served as follows:

a. On the owner:

(1) By ordinary or certified mail to the person designated as owner or agent on the construction permit application, in the municipal tax records or in the records of the Secretary of State;

(2) By serving the document on the Secretary of State, who shall be deemed the owner's agent for service of process; except that reasonable effort shall have first been made to serve the owner or agent by ordinary mail and that a copy of the document is posted at a conspicuous location on the premises;

(3) By personal delivery of the document to the owner or agent; or

(4) By leaving the document at the office or dwelling unit of the owner or agent with a person 14 years of age or older.

b. On any other person:

(1) By ordinary or certified mail to the person at the person's last known address;

(2) By personal delivery of the document to the person; or

(3) By leaving the document at the office or dwelling unit of the person with a person 14 years of age or older.

c. The date of personal service or the third day after mailing shall be considered the date of service.

11. Section 18 of P.L.1967, c.76 (C.55:13A-18) is amended to read as follows:

18. Any person aggrieved by any ruling, action, order, or notice of the commissioner pursuant to this act, except any order or notice issued by the commissioner pursuant to sections 12(d), 15(e) and 17 of this act, shall be entitled to a hearing [before the commissioner] conducted in conformity with the rules and procedures, insofar as they may be applicable, provided for hearings by a State Agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The application for such hearing must be filed with the commissioner within 15 days of the [receipt by the applicant thereof] service of notice of the ruling, action, order or notice complained of. [No such hearing shall be held except upon 15 days' written notice to all interested parties, and each such hearing shall be held within 30 days of the receipt of the application therefor. When a hearing officer is designated by the commissioner to conduct hearings, said hearing officer shall issue a recommended report and decision within 30 days after the completion of any hearing, a copy of which shall be filed with the commissioner and mailed to all parties of record. Each party of record shall be afforded 15 days in which to file exceptions, objections, and replies thereto, and to present argument to the commissioner. Within 15 days thereafter, the commissioner shall issue an order which adopts, rejects, or modifies the recommended report and decision, a copy of which shall be served on all parties of record.] The commissioner may extend the 15 day time period to make written application for hearing for an additional 15 days if, in the commissioner's discretion, the interests of justice shall be served. Pending the determination of the commissioner, and upon application therefor, the commissioner may grant a stay of the ruling, action, order, or notice complained of; provided, that no such stay shall be granted except upon such terms and conditions as will adequately protect the occupants or intended occupants of the hotel or multiple dwelling involved, or the public generally.

(cf: P.L.1970, c.138, s.10)

12. Section 20 of P.L.1967, c.76 (C.55:13A-20) is amended to read as follows:

20. [(a)]a. Notices [required or permitted to be issued and served pursuant to this act shall be served as follows:

(1). On the owner:

(i) By mailing same by certified mail, return receipt requested, to the person designated as owner or agent on the certificate of registration or in the municipal tax records or in the records of the Secretary of State.

(ii) If the above certified mailing is returned, the original letter shall be remailed to the last known address by common mail.

(2). On the occupant:

(i) By mailing same by certified mail, return receipt requested, to said occupant, or

(ii) If the above certified mailing is returned the original letter shall be remailed to the last known address by common mail.

(b) Rules] , Rulings, Decisions and Orders required or permitted to be issued and served pursuant to this act shall be served as follows:

(1). On the owner:

(i) By mailing same by ordinary or certified mail[, return receipt requested,]to the person designated as owner or agent on the certificate [or] of registration or in the municipal tax records or in the records of the Secretary of State[.]; or

(ii) By serving same on the Secretary of State, who shall be deemed the owner's agent for service of process, provided however, that reasonable efforts have first been made to serve the owner or [his] agent by ordinary or certified mail or by personal service and that a copy of such notice is posted in a conspicuous location on the premises. "Conspicuous location" shall include the walls of the front vestibule or in any common foyer or hallway immediately inside the main front entrance.

(2). On the occupant:

(i) By mailing same by ordinary or certified mail[, return receipt requested,]addressed to the occupant at the premises[,]; or

(ii) By leaving same at the dwelling unit of the occupant with a person of at least the age of 14.

[(c)]b. The date of service shall be considered the date of personal service or the date of the third day after mailing, whichever occurs [later] sooner.

(cf: P.L.1970, c.138, s.12)

13. Section 12 of P.L.1979, c.496 (C.55:13B-12) is amended to read as follows:

12. Notices or orders issued pursuant to this act shall be served upon the owner or operator by posting them by ordinary or certified mail[, return receipt requested,]to the owner or operator of a rooming or boarding house or[, if necessary,]by leaving them with the owner or with a person [above] of at least the age of 14 at the owner's dwelling unit or place of business. The date of service shall be considered to be the third day after mailing or [after] the date the notice or order is left at the owner's dwelling unit or place of business.

(cf: P.L.1979, c.496, s.12)

14. (New section) Any person aggrieved by any ruling, action, order, or notice of the commissioner pursuant to the "Rooming and Boarding House Act of 1979," P.L.1979, c.496 (C.55:13B-1 et al.), except any order or notice issued by the commissioner pursuant to section 11 of P.L.1979, c.496 (C.55:13B-11), shall be entitled to a hearing conducted in conformity with the rules and procedures, insofar as they may be applicable, provided for hearings a State Agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The application for such hearing must be filed with the commissioner within 15 days of the service of notice of the ruling, action, order or notice complained of. The commissioner may extend the 15 day time period to make written application for a hearing for an additional 15 days if, in the commissioner's discretion, the interests of justice shall be served. Pending the determination of the commissioner, and upon application therefor, the commissioner may grant a stay of the ruling, action, order, or notice complained of; provided, that no such stay shall be granted except upon such terms and conditions as will adequately protect the occupants or intended occupants of the rooming or boarding house involved.

15. This act shall take effect immediately.

STATEMENT

This bill would allow service of administrative notices and orders under "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.), the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.), the "Uniform Fire Safety Act," P.L.1983, c.383 (C.52:27D-192 et seq.), the "Continuing Care Retirement Community Regulation and Financial Disclosure Act," P.L.1986, c.103 (C.52:27D-330 et seq.), the "Hotel and Multiple Dwelling Law," P.L.1967, c.76 (C.55:13A-1 et seq.), and the "Rooming and Boarding House Act of 1979," P.L.1979, c.496 (C.55:13B-1 et al.), to be made by ordinary mail as well as by certified mail. The use of ordinary mail to serve notices and orders, such as motor vehicle license revocation notices, has been recognized by our courts as being not violative of due process. The use of ordinary mail instead of certified mail, return receipt requested, as now required under the acts being amended, would allow substantial cost savings both for the State and for local enforcing agencies. The bill also amends these acts to allow the Department to extend the time period to apply for a hearing to contest a ruling, action, order or notice of the commissioner if, in the commissioner's discretion, the interests of justice would be served.

Allows service of certain notices by ordinary mail; extends time period to apply for certain hearings.