title-56•Title 56 — Trade Names, Trade-Marks and Unfair Trade Practices
title-56N.J.S.A. tit. 56Code1 de jan. de 1900
Any person conducting or transacting business and using the designation "and company," or "& Co.," as a part of a firm or partnership name, shall file a statement in the office of the clerk of the county within which such business is conducted or transacted, and a duplicate thereof for filing in the office of the Secretary of State, as provided in section 56:1-3 of this Title. Such statement shall be duly executed and sworn to before some person authorized by the laws of this State to administer oaths, and shall state the nature of the business and the full names and residences of all persons who are members of such firm or partnership and if, the members of said firm or partnership or any of them are or is not resident in this State, such statement shall contain a power of attorney constituting the county clerk of the county, his successors in office, the true and lawful attorney of said nonresident partner or partners upon whom all original process in an action or legal proceeding against said firm or partnership may be served and therein he or they shall agree that such original process, which may be served on the county clerk, shall be of the same force and validity as if served upon said nonresident partner or partners and that the authority thereof shall continue in force so long as the firm or partnership does business in this State under said name.
No person shall conduct or transact business under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person shall file a certificate in the office of the clerk of the county or counties in which such person conducts or transacts, or intends to conduct or transact, such business, together with a duplicate thereof for filing in the office of the Secretary of State, as provided in section 56:1-3 of this Title. Such certificate shall set forth the name under which such business is conducted or transacted, or is to be conducted or transacted, and the true name or names of the person or persons conducting or transacting the same, with his or their post-office address or addresses, and shall be duly executed and sworn to by the person or persons conducting or transacting, or intending to conduct or transact, such business, before some person authorized by the laws of this State to administer oaths and if any person or persons conducting or transacting business as aforesaid is or are not resident in this State, such statement shall contain a power of attorney constituting the county clerk of the county, his successors in office, the true and lawful attorney of said nonresident person or persons, upon whom all original process in an action or legal proceeding against said person or persons for any debt, damages or liability, contracted or incurred by them in, or growing out of, the conduct or transaction of said business, may be served and therein he or they shall agree that such original process which may be served on the county clerk shall be of the same force and validity as if served upon said nonresident person or persons and that the authority thereof shall continue in force so long as the person or persons conduct or transact said business in this State.
Whenever any person or persons shall have constituted the county clerk of any county his or their attorney for service of any process by any certificate filed pursuant to chapter one of Title 56 of the Revised Statutes, any such original process in any action or legal proceeding against such person or persons may be served on the county clerk by leaving a copy of such process in his office with a fee of five dollars ($5.00) to be taxed in the plaintiff's costs.
When any such original process is served upon any county clerk as herein provided, he shall forthwith notify the person or persons upon whom service is intended to be made through him by letter directed to the post-office address given in the certificate and shall, within two days after such service, forward to such person or persons, in the same manner, a copy of the process served on him and such service shall be deemed sufficient service upon such person or persons. The county clerk shall keep a record of all such processes showing the day and hour of such service.
The several county clerks and the Secretary of State shall each keep alphabetical indexes of all persons filing the statements or certificates provided for by sections 56:1-1 and 56:1-2 of this Title, and for the indexing and filing of such statements or certificates they shall each receive a fee of $5.00 from the person who presents the same for filing. Every person who presents for filing any such statement or certificate in the office of the county clerk shall present therewith a duplicate of such statement or certificate for filing with and indexing by the Secretary of State. The county clerk shall, at the time of the filing such statement or certificate with him, collect from the person presenting the same, in addition to the fee payable to him, the fee payable to the Secretary of State for filing and indexing such duplicate statement or certificate, and shall forward to the Secretary of State such duplicate statement or certificate together with the fee collected for the Secretary of State as aforesaid.
A copy of any such statement or certificate, duly certified by the county clerk in whose office the same shall have been filed or by the Secretary of State, shall be presumptive evidence in all courts of law in this State of the facts therein contained.
Any person conducting or transacting business contrary to the provisions of either section 56:1-1 or 56:1-2 of this title shall be guilty of a misdemeanor.
Sections 56:1-1 to 56:1-4 of this title shall in no way affect or apply to any corporation duly organized under the laws of this state, or any corporation organized under the laws of any other state and lawfully doing business in this state, nor shall they be construed to prevent the lawful use of a partnership name or designation, if such partnership name or designation shall include the true or real names of all members of such partnership.
When any partnership which has filed the statement or certificate provided for by sections 56:1-1 and 56:1-2 of this Title shall be dissolved and a certificate setting forth the name under which the trade-name has been carried on, the business which has been conducted or transacted, the true or full name of the person or persons who have conducted or transacted the same, with the post-office addresses of such person or persons, and a statement setting forth the facts showing such dissolution, duly executed and sworn to by the person or persons who have conducted or transacted business as such trade-name, is filed in the office of the clerk of the county wherein the statement or certificate above referred to shall have been filed, together with a duplicate for filing in the office of the Secretary of State, the county clerk shall file such certificate and record the dissolution.
The record of dissolution provided for by section 56:1-6 of this Title shall be made by the county clerk and by the Secretary of State by writing the word "dissolved," together with the date of the certificate of dissolution, in the margin of the book or books used for filing trade-name certificates, at or near the place where such trade-name certificate shall have been indexed. For the filing of such certificates and recording the dissolution of the trade-name the county clerk and the Secretary of State shall each receive a fee of $1.00. The county clerk, at the time of filing such certificate, shall collect from the person presenting the same, in addition to the fee payable to him, the fee payable to the Secretary of State for filing and recording the same, and shall immediately forward to the Secretary of State the duplicate of such certificate together with such fee collected for the Secretary of State as aforesaid.
Any association, lodge, order, fraternal society, beneficial association, or fraternal and beneficial society or association, historical, military or veterans' organization, labor union, foundation, federation, or any other society, organization or association, degree, branch, subordinate lodge, or auxiliary thereof, whether incorporated or unincorporated, the principles and activities of which are not repugnant to the constitution and laws of the United States or this state, may register in the office of the secretary of state of this state, a facsimile, duplicate, or description of its name, badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia, and may, by reregistration, alter or cancel the same.
Application for a registration, alteration or cancellation authorized by section 56:2-1 of this title shall be made by the chief officer or officers of the association or organization mentioned in said section 56:2-1, upon blanks to be furnished by the secretary of state. Any registration had under authority of this chapter shall be for the use, benefit, and on behalf of all associations, degrees, branches, subordinate lodges, and auxiliaries of such association or organization, or any other society, organization, or association, degree, branch, subordinate lodge, or auxiliary thereof, and the individual members and those thereafter becoming members thereof, throughout this state.
When a name, badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia has been registered in accordance with the provisions of this chapter, no registration or alteration in registration of a name, badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia, imitating, or so nearly resembling as to be calculated to be deceptive of, a name, badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia already registered, shall be accepted, unless the same was adopted and has been in actual use by any regularly organized association or organization mentioned in section 56:2-1 of this title, for at least three months prior to June twenty-first, one thousand nine hundred and thirty-three.
Upon granting registration as provided in this chapter, the secretary of state shall issue his certificate to the applicant for registration, setting forth the fact of such registration.
Any person who, without the permission or authority of any association or organization mentioned in section 56:2-1 of this title, makes, forges, counterfeits or causes to be made, forged, or counterfeited, or who, without such permission or authority, utters, distributes or causes to be uttered or distributed, knowing the same to be false, forged or counterfeited, any duly registered badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia of any such association or organization, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine not exceeding one hundred dollars, and in default of payment of such fine, shall be committed to jail for not to exceed sixty days.
Any person who willfully wears, exhibits, displays or uses, for any purpose, the badge, motto, button, decoration, membership card, charm, emblem, rosette, or other insignia of any association or organization mentioned in section 56:2-1 of this title, duly registered as provided in this chapter, or any imitation thereof, shall, unless he is entitled to use and wear the same under the constitution, by-laws, rules, or regulations of any such association or organization, be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine not exceeding one hundred dollars, and, in default of payment of such fine, shall be committed to jail for not to exceed sixty days.
The provisions of sections 56:2-5 and 56:2-6 of this title shall not apply to the wearing, exhibiting, displaying or using, for any purpose, of the badge, motto, button, decoration, membership card, charm, emblem, rosette or other insignia of any association or organization which has, prior to June twenty-first, one thousand nine hundred and thirty-three, duly copyrighted the same under the laws of the United States, and the wearing, exhibiting, displaying or using thereof has been authorized or privileged thereunder by the constitution, by-laws, rules or regulations of the copyrighting association or organization.
The secretary of state shall keep a properly indexed record of the registration authorized by this chapter, which shall also show any altered or canceled registration.
The fees of the secretary of state for registration, alteration, cancellation and searches made and certificates issued by him, pursuant to the provisions of this chapter, shall be the same as provided by law for similar services. All fees collected under authority of this chapter shall be paid by the secretary of state into the state treasury.
"Abandoned," when used with reference to a mark, means the occurrence of either of the following:
(1) When its use has been discontinued with intent not to resume that use. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall constitute prima facie evidence of abandonment.
(2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.
"Act" means and refers to P.L.1966, c.263 (C.56:3-13.2 et seq.) as amended and supplemented by: P.L.1971, c.171 (C.56:3-13.7a); P.L.1987, c.454 (C.56:3-13.16 et seq.); and P.L.1995, c.171 (C.56:3-13.1a et al.).
"Applicant" means the person filing an application for registration of a mark under this act, and the legal representatives, successors, or assigns of that person.
"Dilution" means the lessening of the capacity of the registrant's mark to identify and distinguish goods or services, regardless of the presence or absence of competition between the parties, or the likelihood of confusion, mistake, or deception.
"Mark" means any trademark or service mark entitled to registration under this act, whether registered or not.
"Owner" means a person who has legal rights to a mark either as a result of registration or at common law.
"Person" means a natural person, and also includes a firm, partnership, corporation, union, association, or other organization capable of suing and being sued in a court of law.
"Registrant" means the person to whom the registration of a mark under this act is issued, and the legal representatives, successors, or assigns of that person.
"Secretary" or "Secretary of State" means the Secretary of State of New Jersey or the designee of the secretary charged with the administration of this act.
"Service mark" means any word, name, symbol, or device, or any combination thereof, used by a person to identify and distinguish the services of one person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. Service mark includes titles, character names used by a person, and other distinctive features of radio or television programs, notwithstanding that they, or the programs, advertise the goods of the sponsor.
"Trademark" means any word, name, symbol, or device, or any combination thereof, used by a person to identify and distinguish the goods of the person, including a unique product, from those manufactured and sold by others, and to indicate the source of the goods, even if that source is unknown.
"Trade name" means any name used by a person to identify a business or vocation of the person.
"Use" means the bona fide use of a mark in the ordinary course of trade in this State, and not made merely to reserve a right in a mark. A mark shall be deemed to be in use: (1) on goods when it is placed in any manner on the goods or their containers, or the displays associated with the goods or containers, or on the tags or labels affixed to the goods or containers, or if the nature of the goods makes placement impracticable, then on the documents associated with the goods or their sale, and the goods are sold or transported in commerce in this State; and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this State.
A mark by which the goods or services of an applicant for registration may be distinguished from the goods or services of others shall not be registered if it:
(a) consists of or comprises immoral, deceptive or scandalous matter; or
(b) consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or
(c) consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof; or
(d) consists of or comprises the name, signature or portrait identifying a particular living individual, except by the individual's written consent; or
(e) consists of a mark which, (1) when used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them, or (2) when used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them, or (3) is primarily merely a surname; provided, however, that nothing in this subsection (e) shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant's goods or services. The Secretary of State may accept as evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this State for the five years before the date on which the claim of distinctiveness is made; or
(f) consists of or comprises a mark which so resembles a mark registered in this State or a mark or trade name previously used in this State by another and not abandoned or dissolved, as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive.
Subject to the limitations set forth in this act, any person who uses a mark may file in the office of the Secretary of State, in a manner complying with the requirements of the Secretary of State, an application for registration of that mark setting forth, but not limited to, the following information:
(a) the name and business address of the person applying for registration; and, if a corporation the state of incorporation, or, if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the Secretary of State;
(b) the goods or services on or in connection with which the mark is used and the mode or manner in which the mark is used on or in connection with such goods or services and the class in which such goods or services fall;
(c) the date when the mark was first used anywhere and the date when it was first used in this State by the applicant or a predecessor in interest; and
(d) a statement that the applicant is the owner of the mark, that the mark is in use, and that, to the knowledge of the person verifying the application, no other person has registered the mark, either with the United States Patent and Trademark Office or with the Secretary of State, or has the right to use such mark either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods or services of such other person, to cause confusion, or to cause mistake, or to deceive.
The Secretary of State may require a statement as to whether an application to register the mark, or portions of a composite of the mark, has been filed by the applicant or a predecessor in interest in the United States Patent and Trademark Office; and, if so, the applicant shall provide the Secretary of State with information regarding any application, including the filing date and serial number of each application, the status of each application and, if any application was refused registration or has otherwise not resulted in a registration, the reasons for the refusal or for the application not resulting in registration.
The application shall be typed and prepared on 8-1/2" x 11" bond paper, or prepared using any other means approved by the Secretary of State. The Secretary of State shall also require that a drawing of the mark, complying with requirements that the Secretary of State may specify, accompany the application.
The application shall be signed and verified by oath, affirmation or declaration subject to punishment for perjury, by the applicant or by a member of the firm or an officer of the corporation or association applying.
The application shall be accompanied by three specimens showing the mark as actually used.
The application shall be accompanied by an application fee established by and payable to the Secretary of State.
b. The applicant shall provide any additional pertinent information requested by the secretary, including a description of a design mark, and may make, or authorize the secretary to make, any amendments to the application that may be reasonably requested by the secretary or deemed by the applicant to be advisable to respond to any rejection or objection.
c. The secretary may require the applicant to disclaim an unregistrable component of a mark otherwise registrable, and an applicant may voluntarily disclaim a component of a mark sought to be registered. The disclaimer shall not prejudice or affect the applicant's or registrant's rights then existing or thereafter arising in the disclaimed matter, or the applicant's or registrant's rights of registration on another application if the disclaimed matter is or becomes distinctive of the applicant's or registrant's goods or services.
d. Amendments may be made by the secretary to the application submitted by the applicant upon the applicant's agreement; or the secretary may require submission of a fresh application.
e. If the applicant is found not to be entitled to registration, the secretary shall notify the applicant and shall advise the applicant of the reasons for the denial of registration. The applicant shall have a reasonable period of time specified by the secretary in which to reply or to amend the application, in which event the application shall then be reexamined. This procedure may be repeated until:
(1) the secretary finally refuses registration of the mark; or
(2) the applicant fails to reply or amend within the specified period, in which case the application shall be deemed to have been abandoned.
f. If the secretary finally refuses registration of the mark, the applicant may seek a review in accordance with the procedures set forth in section 14 of P.L.1995, c.171 (C.56:3-13.3b).
g. In the instance of applications concurrently being processed by the secretary seeking registration of the same or confusingly similar marks for the same or related goods or services, the secretary shall grant priority to the applications in order of filing. If a prior-filed application is granted a registration, any other application for the same or confusingly similar marks shall be rejected. A rejected applicant may bring an action for cancellation of the registration of the same or confusingly similar mark upon grounds of prior or superior rights to the mark, in accordance with the provisions of subsection b. of section 14 of P.L.1995, c.171 (C.56:3-13.3b).
(1) The grounds shall include:
(a) any decision by the Secretary of State refusing registration or renewal of an existing registration, or;
(b) the failure of the Secretary of State to update the register of marks in the manner provided by section 8 of P.L.1966, c.263 (C.56:3-13.8).
(2) An appeal shall not be taken until a formal request for reconsideration of the action at issue has been filed and denied by the Office of the Secretary of State.
(3) A notice of intent to appeal shall be filed with the Secretary of State at least 10 days prior to the taking of any appeal.
(4) An appeal may be taken by filing a complaint with the designated administrative law judge or with the Superior Court in Mercer County requesting equitable relief for the grounds on which the appeal is made. No money damages or costs shall be awarded if the requested relief is granted.
(5) A copy of the complaint shall be served on the Secretary of State, and the Secretary of State shall have the right to elect to intervene and defend, oppose or otherwise participate in the appeal.
(6) The Secretary of State shall promulgate the fees and charges for the appeal, which fees and charges shall be the same as that for other appeals, to an administrative law judge or to the New Jersey Superior Court.
b. Where grounds exist for cancellation as provided in section 8 of P.L.1966, c.263 (C.56:3-13.8), and the Secretary of State has not cancelled the mark, a third party with standing may, by petition to the Secretary of State, move to have the registration declared void and removed from the register of marks of record by acting as follows:
(1) A petition to cancel shall be filed with the Secretary of State, which shall state the facts in support of the petition, and shall be accompanied by a fee established by the Secretary of State.
(2) A copy of the petition shall be served on the registrant or the owner of the mark by certified mail, return receipt requested, and notice of the service shall be filed with the Secretary of State.
(3) The registrant or owner shall have 20 days from receipt of the petition within which to respond to the petition, providing evidence in support of the objection to the cancellation. The Secretary of State may provide an extension of time for the response.
(4) In the event that the registrant or owner files no objection to the cancellation, or in the event that grounds for cancellation are clear on the record, the Secretary of State shall order cancellation. In the event that the Secretary of State denies cancellation, the petitioner shall have a right of appeal to the designated administrative law judge or to the Superior Court in Mercer County in accordance with the procedures set forth in paragraphs (4), (5) and (6) of subsection a. of this section.
(5) Upon service of a copy of the complaint on the Secretary of State, the Secretary of State shall have the right to elect to intervene and defend, oppose or otherwise participate in the appeal.
c. In any action brought against a nonresident registrant under this section, service may be effected in accordance with the procedures established for service upon nonresident corporations and business entities as provided in Rule 4:4-4(c) of the Rules Governing the Courts of the State of New Jersey, or any amendment to that rule.
Upon compliance by the applicant with the requirements of this act, the Secretary of State shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the Secretary of State and the Seal of the State, and it shall show the name and business address and, if a corporation, the state of incorporation, or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the Secretary of State, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in this State, the class of goods or services and a description of the goods or services on or in connection with which the mark is used, a reproduction of the mark, the registration date and the term of the registration.
Any certificate of registration issued by the Secretary of State under the provisions of this act or a copy of a certificate of registration duly certified by the Secretary of State shall be admissible in evidence as competent and sufficient proof of the registration of the mark in any action or judicial proceedings in any court of this State.
Registration of a mark with the Secretary of State shall be effective for a term of five years from the date of registration and, upon application filed within six months prior to the expiration of the term, in a manner complying with the requirements of the Secretary of State, the registration may be renewed for a like term from the end of the expiring term. A renewal fee in an amount established by and payable to the Secretary of State, shall accompany the application for renewal of the registration.
A mark registration may be renewed for successive periods of five years in like manner.
Any registration in force on the effective date of P.L.1995, c.171 (C.56:3-13.1a et al.) shall continue in full force and effect for the unexpired term of the registration, and may be renewed by filing an application for renewal with the Secretary of State complying with the requirements of the Secretary of State and paying the renewal fee established by the Secretary of State within six months prior to the expiration of the registration.
All applications for renewal shall include a verified statement that the mark has been and is still in use and shall include a specimen showing actual use of the mark on or in connection with the goods or services.
a. Any mark and its registration or application for registration shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and shall be recorded with the Secretary of State upon the payment of the recording fee payable to the Secretary of State. An assignment of any registration under this act shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is filed for recording with the Secretary of State within 20 days after the date of the assignment or prior to the subsequent purchase or transfer.
b. Other instruments which relate to a mark registered or application pending pursuant to this act, including, but not limited to, a change of owner name, shall be recorded by the Secretary of State upon the payment of the recording fee established by and payable to the Secretary of State, provided that the instrument is in writing and executed by the applicant or registrant. Instruments recordable under the provisions of the Uniform Commercial Code, such as security interests and mortgages, and their recordation, shall continue to be governed by and recorded under the provisions of the Uniform Commercial Code.
c. Acknowledgement by the assignee or transferee shall be prima facie evidence of the execution of an assignment or other instrument and, when recorded by the Secretary of State, the record shall be prima facie evidence of execution.
d. A photocopy of any instrument referred to in subsections a. and b. of this section shall be accepted for recording if it is certified by any of the parties to the instrument, or their successors, to be a true and correct copy of the original.
The Secretary of State shall keep for public examination a record of all marks registered or renewed under this act and applications for registration of a mark, and all documents recorded pursuant to section 6 of P.L.1966, c.263 (C.56:3-13.6). The Secretary of State shall provide copies of these records to the public upon payment of a fee established by and payable to the Secretary of State.
Upon request of any person, the Secretary of State shall issue upon the payment of a fee of $25.00 a certificate of availability of a mark (one to three marks).
The Secretary of State shall cancel from the register:
(a) after one year from the effective date of this act, all registrations under prior acts which are more than 10 years old and not renewed in accordance with this act;
(b) any registration concerning which the Secretary of State shall receive a voluntary request for cancellation thereof from the registrant or the assignee of record;
(c) all registrations granted under this act and not renewed in accordance with the provisions of this act;
(d) any registration concerning which a federal court of competent jurisdiction or a court of competent jurisdiction in this State shall find:
(1) that the registered mark has been abandoned;
(2) that the registrant is not the owner of the mark;
(3) that the registration was granted contrary to the provisions of section 2 of P.L.1966, c.263 (C.56:3-13.2);
(4) that the registration was obtained fraudulently;
(5) that the registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in the United States Patent and Trademark Office, prior to the date of the filing of the application for registration by the registrant under this act, and not abandoned; provided, however, that should the registrant prove that he is the owner of a concurrent registration of his mark in the United States Patent and Trademark Office covering an area including this State, the registration under this act shall not be canceled;
(6) that the mark is or has become the generic name for the goods or services, or a portion thereof, for which it has been registered.
(e) when a federal court of competent jurisdiction or a court of competent jurisdiction in this State shall order cancellation of a registration on any ground.
Any person who shall for himself or herself, or on behalf of any other person, procure the filing or registration of any mark in the office of the Secretary of State under the provisions of this act, by knowingly making any false or fraudulent representation or declaration, orally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of the filing or registration, to be recovered by or on behalf of the injured party in any court of competent jurisdiction.
Nothing herein shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.
If any provision hereof, or the application of such provision to any person or circumstance is held invalid, the remainder of this act shall not be affected thereby.
Sections 56:3-1 to 56:3-13 of the Revised Statutes are repealed, except that as to any suit, proceeding or appeal, and for that purpose only, pending at the time this act takes effect such repeal shall be deemed not to be effective until final determination of said pending suit, proceeding or appeal.
(1) The use, without consent of the owner or designee, of any reproduction, counterfeit, copy, or colorable imitation of a mark in connection with the sale, distribution, offering for sale, or advertising in this State of any goods or services on or in connection with which the use is likely to cause confusion or mistake or to deceive as to the source of origin of the goods or services; or
(2) The reproduction, counterfeiting, copying or colorable imitation of a mark and the application of a reproduction, counterfeit, copy or colorable imitation of a mark to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this State of the goods or services.
b. The action shall be brought in the Superior Court of the county in which the defendant resides, is found, has an agent, transacts business, or in which the reproduction, counterfeit, copy or imitation of the mark is found.
c. (1) The plaintiff in the civil action shall establish violation of subsection a. of this section by a preponderance of the evidence. A jury trial shall be available at the request of either party. (2) If the Attorney General determines that the sale or distribution of goods or services related to the conduct specified in paragraph (1) or (2) of subsection a. of this section poses a threat to the health, safety or welfare of any member of the public, the Attorney General may intervene in a pending civil action filed by the owner or designee of the owner of a mark pursuant to subsection a. of this section in order to enforce the remedies provided in subsection d. or e. of section 1 of P.L.2004, c.150 (C.56:3-13.22).
d. In an action brought pursuant to subsection a. of this section, the court may grant temporary restraining orders and injunctions, as may be deemed just and reasonable by the court, to prevent any conduct described in paragraphs (1) and (2) of subsection a. of this section, and may require the defendants to pay to the owner or designee of the owner all profits derived from or all damages suffered by reason of such conduct, or both. The court may also order that any reproduction, counterfeit, copy or imitation in the possession or under the control of any defendant in the case be disposed of or destroyed in accordance with the provisions of section 3 of P.L.1987, c.454 (C.56:3-13.17). The court, in its discretion, may enter judgment for an amount not to exceed three times the profits or damages and may also award reasonable attorneys' fees and costs of suit to the prevailing party in cases where the court finds the other party committed the wrongful acts with knowledge or in bad faith or if the court finds the other party's conduct so egregious as to justify such an award. In assessing defendant's profits, plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed therefrom. In an action in which the Attorney General successfully intervenes in order to enforce the remedies provided in subsection d. or e. of section 1 of P.L.2004, c.150 (C.56:3-13.22)), the defendant also shall be liable to the State for the costs of the suit, including reasonable attorney's fees, costs of investigation and litigation.
e. Upon finding a violation of subsection a. of this section, the court may, in its discretion, award prejudgment interest on the monetary recovery awarded under subsection d. of this section, at an annual interest rate established pursuant to Rule 4:42-11 of the Rules Governing the Courts of the State of New Jersey, commencing on the date of the service of the plaintiff's pleadings which set forth the claim for monetary recovery and ending on the date the judgment is awarded or for a shorter time as the court deems appropriate.
f. Any provisional or equitable remedy that would be available in a comparable civil action commenced under the federal Trademark Act of 1946, 15 U.S.C. s.1051 et seq. may, to the same extent and upon a comparable showing, be made available to a party in an action commenced under this section, subject to the conditions and requirements imposed by the Civil Practice Rules of the Rules Governing the Courts of the State of New Jersey.
g. (Deleted by amendment, P.L.1995, c.171.)
h. In any civil proceeding brought under this section relating to the manufacture, use, display or sale of a counterfeit mark, in addition to the remedies available to an owner as provided in subsections d., e. and f. of this section, the court shall have jurisdiction to prevent and restrain the manufacture, use, display or sale of a counterfeit mark by issuing appropriate orders, including, in appropriate circumstances, an ex parte temporary restraining order without a seizure, or an ex parte order without notice for the seizure of counterfeit goods and the following materials:
(1) Spurious marks;
(2) The means of making the spurious marks;
(3) Articles in the defendant's possession bearing the spurious marks, or on or in connection with which the spurious marks are intended to be used;
(4) Business records documenting the manufacture, purchase or sale of counterfeit marks. Any business records seized through an ex parte seizure order under this subsection shall be taken into the custody of the court. The applicant or its representatives shall not be permitted to see these records during the course of the search or thereafter, except under an appropriate protective order, issued on notice to the person from whom the business records were seized, with respect to confidential business information.
i. Ex parte seizure orders under subsection h. of this section shall not be issued unless the applicant:
(1) Provides an affidavit clearly setting forth specific facts in support of the need for the seizure order, and
(2) Provides security in an amount as the court deems adequate for the payment of damages as any person may suffer as a result of a wrongful seizure or wrongful attempted seizure of his property under subsection h. of this section. These damages shall include but not be limited to lost profits, the cost of materials, and loss of good will. In any case in which it is shown that the applicant caused the seizure without adequate evidence that the goods or materials were counterfeit, damages shall include reasonable attorney's fees.
(3) The court shall place under seal any order for an ex parte seizure under subsection h. of this section, together with the papers upon which the order was granted, until the party in possession of the goods or materials has been given an opportunity to contest the order. j. No order for an ex parte seizure under subsection h. of this section shall be issued unless the court finds that a temporary restraining order on notice to the defendant or an ex parte temporary restraining order would be inadequate to protect the applicant's interest. In particular, no court shall issue an order for an ex parte seizure under subsection h. of this section unless it clearly appears from specific facts offered under oath or affirmation that:
(1) Counterfeit goods or the materials described above are located at the place identified in the affidavit;
(2) The applicant will suffer immediate and irreparable injury, loss or damage if the goods or materials are not seized through execution of an ex parte order, in that:
(a) The person from whom the goods or materials are to be seized would not comply with an order directing him to retain the goods or materials and to make them available to the court, but would instead make the goods or materials inaccessible by destroying, hiding or transferring them; or
(b) The person from whom the goods or materials are to be seized will otherwise act to frustrate the court in a proceeding under this section; and
(3) The applicant has made no effort to publicize the requested seizure and will refrain from doing so until the party in possession of the goods and materials has been given an opportunity to contest the order.
k. An order for a seizure under subsection h. of this section shall particularly describe the goods or materials to be seized, the place from which they are to be seized, and the amount of security provided by the applicant.
l. The court shall set a hearing date not more than 10 court days after the last date on which seizure is ordered at which any person from whom goods are seized may appear and seek release of the seized goods.
m. Except where the court authorizes the Attorney General to make the seizure in a matter in which the Attorney General has intervened in accordance with paragraph (2) of subsection c. of this section, where an order for seizure is made, the court shall direct the sheriff of the county in which the property is located to make the seizure or, where the property to be seized is located in more than one county, the direction shall issue to the sheriff of each of those counties. The sheriff shall make the seizure within 72 hours of the order.
In any civil action brought pursuant to this act, if the court determines that a mark is counterfeit, the court may order the destruction of all marks, all means of making the marks, and all goods, articles or other matter bearing the marks, which are in the possession or control of the court or any party to the action; or, after obliteration of the counterfeit mark, the court may order the disposal of the aforesaid materials to the State, a civil plaintiff, an eleemosynary institution, or any appropriate private person other than the person from whom the materials were obtained.
Nothing in this act shall supersede any provision of federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this act, except that no plaintiff who recovers treble damages or treble profits pursuant to subsection d. of section 2 of this act shall also be entitled to corresponding recovery under any other federal, State or other law in connection with the same underlying occurrences or transactions.
A final judgment or decree rendered in favor of the State in a criminal proceeding brought under Chapter 20 or 21 of Title 2C of the New Jersey Statutes shall estop the defendant in the action or proceeding in any subsequent civil action as to all matters as to which the judgment in the action or proceeding would be an estoppel between the parties to it.
a. The degree of inherent or acquired distinctiveness of the mark in this State;
b. The duration and extent of use of the mark in connection with the goods and services;
c. The duration and extent of advertising and publicity of the mark in this State;
d. The geographical extent of the trading area in which the mark is used;
e. The channels of trade for the goods or services with which the registrant's mark is used;
f. The degree of recognition of the registrant's mark in its and in the other's trading areas and channels of trade in this State; and
g. The nature and extent of use of the same or similar mark by third parties.
The owner of a famous mark shall be entitled only to injunctive relief in this State in an action brought under this section, unless the subsequent user willfully intended to trade on the owner's reputation or to cause dilution of the owner's mark. If willful intent is proven, the owner shall also be entitled to any other remedies set forth in this act, subject to the discretion of the court and the principles of equity.
b. (1) The action shall be brought in the Superior Court of the county in which the defendant resides, is found, has an agent, transacts business, or in which the reproduction, counterfeit, copy or imitation of the mark is found.
(2) The Attorney General may institute an action under subsection a. of this section without regard to whether the owner or the designee of the owner of the mark has brought a civil action pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16); however, a civil action brought by an owner or designee of an owner of the mark pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16) may be joined with an action brought by the Attorney General pursuant to subsection a. of this section, and the Attorney General also may seek to enforce the remedies provided in subsection d. or e. of this section by intervening in a pending civil action brought by an owner or designee of an owner of the mark pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16).
c. The Attorney General shall establish violation of subsection a. of this section by a preponderance of the evidence. A jury trial shall be available at the request of either party.
d. (1) In an action brought pursuant to subsection a. of this section, the court may grant temporary restraining orders and injunctions, as may be deemed just and reasonable by the court, to prevent any conduct specified in paragraphs (1) and (2) of subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16).
(2) Upon proof, by a preponderance of the evidence, of a defendant's violation of subsection a. of this section, the court shall order that any reproduction, counterfeit, copy or imitation in the possession or under the control of any defendant in the case be disposed of or destroyed in accordance with the provisions of section 3 of P.L.1987, c.454 (C.56:3-13.17), and the defendant shall also be liable to the State for the costs of the suit, including reasonable attorney's fees, costs of investigation and litigation.
e. In any civil proceeding brought by the Attorney General under this section relating to the manufacture, use, display or sale of a counterfeit mark, in addition to the remedies in subsection d. of this section, the court shall have jurisdiction to prevent and restrain the manufacture, use, display or sale of a counterfeit mark by issuing appropriate orders, including, in appropriate circumstances, an ex parte temporary restraining order without a seizure, or an ex parte order without notice for the seizure of counterfeit goods and the following materials:
(1) Spurious marks;
(2) The means of making the spurious marks;
(3) Articles in the defendant's possession bearing the spurious marks, or on or in connection with which the spurious marks are intended to be used;
(4) Business records documenting the manufacture, purchase or sale of counterfeit marks.
Any business records seized through an ex parte seizure order under this subsection shall be taken into the custody of the court. The applicant or its representatives shall not be permitted to see these records during the course of the search or thereafter, except under an appropriate protective order, issued on notice to the person from whom the business records were seized, with respect to confidential business information.
f. Ex parte seizure orders under subsection e. of this section shall not be issued unless the Attorney General provides an affidavit clearly setting forth specific facts in support of the need for the seizure order.
(1) The court shall place under seal any order for an ex parte seizure under subsection e. of this section, together with the papers upon which the order was granted, until the party in possession of the goods or materials has been given an opportunity to contest the order.
(2) No order for an ex parte seizure under subsection e. of this section shall be issued unless the court finds that a temporary restraining order on notice to the defendant or an ex parte temporary restraining order would be inadequate to protect the health, safety or welfare of any member of the public.
(3) An order for a seizure under subsection e. of this section shall particularly describe the goods or materials to be seized and the place from which they are to be seized.
(4) The court shall set a hearing date not more than 10 court days after the last date on which seizure is ordered at which any person from whom goods are seized may appear and seek release of the seized goods.
(5) Where an order for seizure is made, the court shall authorize the Attorney General to make the seizure.
g. Nothing in this section shall be deemed to limit the authority of the Attorney General to investigate and prosecute violations of the criminal code, and the forfeiture procedures provided in this subsection are intended to supplement the forfeiture procedures set forth in chapter 64 of Title 2C of the New Jersey Statutes.
This article shall be known and designated as the "New Jersey bottle law" , and may be so cited and referred to in all process and proceedings taken under it and in all courts and places.
Any person or corporation engaged in manufacturing soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, ice cream, ice cream mixtures or compounds or any other similar product frozen substantially to the consistency of ice cream, small beer, lager beer, weiss beer, white beer, near beer, or other beverages or medicines, medical preparations, perfumery, oils, compounds or mixtures, or any person or corporation engaged in bottling or selling any of the above-named articles or products in bottles, barrels, half-barrels, quarter-barrels, boxes, kegs, siphons, tins, ice cream containers, packages, wrappers, cabinets, refrigerators, equipment, or other receptacles or containers, upon which his or its name, or other marks or devices used by him or it, are branded, stamped, engraved, etched, blown, embossed, impressed, or otherwise produced, may register his or its name, mark or device in the manner hereinafter provided, and, upon completing such registration and the publication required by sections 56:3-16 and 56:3-17 of this title, shall be deemed the proprietor of such name, mark or device and of every container upon which such name, mark or device may be branded, stamped, engraved, etched, blown, embossed, impressed or otherwise produced.
The registration of names, marks or other devices shall be by filing in the office of the clerk of the county in which the principal office of the person or corporation seeking registration is situated and in the office of the Secretary of State, descriptions of such names, marks or other devices. If the applicant for registration has no principal office in this State the names, marks or other devices may be registered by filing descriptions thereof in the office of the clerk of any county in which the applicant does business and in the office of the Secretary of State.
For each filing as herein provided the Secretary of State shall receive a fee of $20.00 and the county clerk shall receive a fee of $5.00.
Any person or corporation seeking to register names, marks or other devices under authority of this article shall first cause the description mentioned in section 56:3-16 of this title to be printed once in each week, for two weeks successively, in a newspaper published in the county in which such description may be filed as provided by said section 56:3-16.
The affidavit of the printer or publisher of the newspaper, or of his foreman or clerk, in which the description mentioned in section 56:3-16 of this title has been printed as required by section 56:3-17 of this title, showing that the same has been published as so required, annexed to a printed copy of the description as published, shall be received as evidence of the required publication and also of the matters therein stated in all courts and places.
No person or corporation, other than the owner or proprietor, of a name, mark or other device mentioned in section 56:3-15 of this title, shall fill or cause to be filled with any of the articles or products mentioned in said section 56:3-15, or shall sell, buy, give, take, possess, use, dispose of or traffic in, any bottle, container or receptacle enumerated in said section 56:3-15 which is so marked or distinguished with or by any name, mark or device, a description of which has been filed as provided by section 56:3-16 of this title; nor shall any person or corporation deface, obliterate, destroy, cover up, or otherwise remove or conceal any such name, mark or device on any such bottle, container or receptacle, without the written consent of the owner or proprietor thereof, unless the same has been purchased from such owner or proprietor.
No person or corporation, to whom or to which any of the articles or products mentioned in section 56:3-15 of this title has been delivered in any of the bottles, containers or receptacles mentioned in said section 56:3-15 by the owners or proprietors thereof, shall be deemed to have violated the provisions of this article by having in his possession any such marked receptacles, unless such person or corporation retains such bottles, containers or receptacles for a period longer than is reasonably necessary after the contents placed therein by the owner or proprietor thereof have been removed therefrom.
Any person, acting for himself or as the agent of any person, firm or corporation, who violates the provisions of this article shall, for the first offense, be punished by imprisonment for not less than ten days nor more than one year, or by a fine of five dollars for each bottle, container or receptacle mentioned in section 56:3-15 of this title filled, sold, bought, given, taken, used, disposed of, trafficked in or possessed in contravention of this article, or by both such imprisonment and fine, and for each subsequent offense by imprisonment for not less than twenty days nor more than one year, or by a fine of ten dollars for each such bottle, container or receptacle so filled, sold, bought, given, taken, possessed, used, disposed of, or trafficked in, or by both such imprisonment and fine, in the discretion of the court or magistrate before which or whom the offense is tried.
The owner or proprietor, or his or its agents, may take possession of any bottle, container or receptacle mentioned in section 56:3-15 of this title used in violation of this article, whether the same be empty, or full or partly full of any liquid, beverage or other substance, and shall not be liable in damages therefor, or for any trespass arising out of such taking possession. If any person having possession of any such bottle, container or receptacle refuses to empty the same of its contents, immediately, upon notice and demand by the owner or proprietor thereof, or his or its agents, such owner or proprietor or agents may empty such bottle, container or receptacle, and shall not be liable therefor.
The Superior Court and any municipal court shall have jurisdiction of proceedings for the collection and enforcement of a penalty imposed because of the violation, within the territorial jurisdiction of the court, of any provision of this article. The proceedings shall be summary and in accordance with "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). Process shall be either in the nature of a summons or warrant and shall issue in the name of the State, upon the complaint of any person.
Whenever any person makes oath before the Superior Court or any municipal court that he has reason to believe and does believe that any bottle, container or receptacle mentioned in section 56:3-15 of this Title, the property of any person or corporation who or which has complied with the provisions of sections 56:3-16 and 56:3-17 of this Title, are being filled, sold, bought, given, taken, possessed, used, disposed of or trafficked in by any person or corporation in violation of this article, the court shall issue a search warrant to discover and obtain such bottles, containers or receptacles, and to bring before the court the person in whose possession bottles, containers or receptacles may be found. If any such bottles, containers or receptacles are found in the possession of any such person in violation of the provisions of this article, the court issuing the search warrant shall proceed summarily in a criminal proceeding to trial and judgment, and, upon a conviction and judgment, shall also award possession of the bottles, containers or receptacles taken under the search warrant to the owners or proprietors thereof.
The presence, upon any bottle, container or receptacle mentioned in section 56:3-15 of this title, of any name, mark or device which has been registered and published as provided by sections 56:3-16 and 56:3-17 of this title, shall be presumptive evidence, in any proceeding or trial, that the owner or proprietor of any such name, mark or device is the owner or proprietor of such bottle, container or receptacle.
All fines and costs imposed and collected upon conviction for violations of this article in any city of the first class shall be paid into the treasury of such city and be disposed of as fines and costs in indictable cases are by law disposed of, and all such fines and costs imposed and collected in any other municipality shall be disposed of as provided by law.
The requiring, taking or accepting of any deposit upon delivery of any bottle, container or receptacle mentioned in section 56:3-15 of this title, having thereon a name, mark or device which has been registered and published as provided by sections 56:3-16 and 56:3-17 of this title, shall not be deemed a sale of any such bottle, container or receptacle, either optional or otherwise.
Any person or corporation who or which violates the provisions of this article shall be liable to a penalty of five dollars, for the first offense, for each bottle, container or receptacle mentioned in section 56:3-15 of this title, filled, sold, bought, given, taken, used, disposed of, trafficked in or possessed in violation of the provisions of this article, and, for the second and each subsequent offense, a penalty of double that amount, recoverable by the owner or proprietor of any such bottle, container or receptacle, or his agent, in an action at law in any court of competent jurisdiction.
Any person or corporation who has filed in any of the offices mentioned in section 56:3-16 of this title a description of the names, marks or devices upon his or its property therein mentioned, and has caused the same to be published according to the law existing at the time of such filing and publication, shall not be required to again file and publish such description in order to be entitled to the benefits of this article; but may avail himself or itself of any or all of the provisions, modes of procedure and methods of protection provided for in this article, as fully as if he or it had registered such names, marks or devices under and in accordance with the provisions of this article.
Any proceedings pending on July eleventh, nineteen hundred and thirty-three, under the act entitled "An act concerning bottles, boxes, siphons, tins, kegs or other articles used in the sale of soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages or medicines, medical preparations, perfumery, oils, compounds or mixtures," approved March twenty-first, one thousand nine hundred and twenty-five (L.1925, c. 246, p. 678), or any other pre-existing law of a like nature, shall not abate, but may be proceeded into final judgment thereunder.
Nothing in this article contained shall be construed to repeal, modify or affect article 4 of this chapter (s. 56:3-42 et seq.), or any other existing law for the protection of producers or shippers of milk or concerning milk cans.
Any person engaged in the business of supplying towels, coats, aprons, toilet devices or other kindred articles or supplies for hire or compensation, used for the purpose of providing cleanliness and sanitation, and having a name, or trade-mark or device branded, stamped, marked, sewed, or otherwise impressed thereon, may file, in the office of the clerk of the county in which his principal place of business is situated, a description of such name, trade-mark or device, and cause such description to be printed once a week for three successive weeks in a newspaper published in such county, or if his principal place of business is in another state such filing shall be made in the office of the clerk of any county in this state in which business is done, and such description printed for three successive weeks in any newspaper published in such county. For such filing there shall be paid to the county clerk two dollars for each such name, mark or device so filed.
Any person who has complied with the provisions of section 56:3-35 of this title shall thereupon be deemed the owner of such name, mark or device, and of every such towel, apron, coat, toilet cabinet or toilet device, so used as aforesaid, upon which such mark may be branded, stamped, marked, sewed, or otherwise impressed or produced thereon.
When any person having complied with the provisions of sections 56:3-35 and 56:3-36 of this title assigns, by sale or otherwise, the business mentioned in section 56:3-35 of this title, his assignee shall, upon such assignment, file a certificate of such assignment in the office of the clerk of the county in which his principal place of business is situated, and cause such certificate to be printed once each week for three successive weeks in a newspaper published in such county, or, if the principal place of business of such assignee is in another state, the filing of such certificate of assignment shall be made in the office of the county clerk in any county of this state in which business is done, and printed once each week for three successive weeks in a newspaper published in such county.
No person other than as provided in sections 56:3-35 and 56:3-36 of this title shall use any towels, coats, aprons, toilet cabinets, towel devices, or any other articles or supplies used for the purpose of cleanliness and sanitation, by supplying, furnishing, selling, transferring or renting the same for hire or compensation, or otherwise, or shall deface, erase, obliterate, cover up, or otherwise remove or conceal the name, trade-mark or device thereon, or shall give, take or otherwise dispose of such towels, coats, aprons, toilet cabinets or other toilet devices branded and marked as provided in this article, without the written consent of the owner whose name, mark or device shall be or have been upon such article or articles as provided in said sections 56:3-35 and 56:3-36.
The use of such article or articles at the place where the same are placed or delivered by the owner under an agreement, lease, or license from such owner, shall not be unlawful; nor shall anything in this article contained make it unlawful for any bona fide hotel, restaurant, cafe, or other public hostelry, to permit and allow the use of such article or articles to any guest, boarder, or any regularly hired employee thereof, during the period of any lease, renting or hiring agreement of such article or articles with the owner thereof.
The possession by any junk dealer or dealer in rags or second-hand articles, or person other than by the owner, lessee or sublessee thereof as herein provided, of any such marked or distinguished article or articles without such written consent shall be presumptive evidence of traffic in such goods and a violation of this section.
No person, other than the owner, shall launder, wash, clean, renovate or cause to have laundered, washed, cleaned, or renovated, any towels, coats, aprons, toilet devices or other supplies used for the purpose of cleanliness and sanitation which are so marked, named or distinguished as aforesaid, the possession of which is claimed by lease, or rental from the owner thereof as herein provided, except by the written consent of the owner thereof.
The requiring, taking or acceptance of any sum of money by the owner of towels, coats, aprons, toilet cabinets, toilet devices, or any other articles or supplies used for the purpose of cleanliness and sanitation as a deposit for security for the safe-keeping and return of such article or articles shall not constitute a sale of such property, either optional or otherwise.
Any person violating any of the provisions of this article shall, for the first offense, be liable to a penalty of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00), and for each subsequent offense to a penalty of two hundred dollars ($200.00), recoverable in a civil action before the Superior Court or municipal courts, which courts within their respective territorial jurisdictions, shall have jurisdiction to hear and determine actions brought under this article. An action for the recovery of a penalty under this article may be instituted by any person aggrieved or damnified by a violation of this article. The penalty, when recovered in the Superior Court shall be paid to the treasurer of the county, and, when recovered in a municipal court, shall be paid to the treasurer of the municipality.
No person shall, without the written consent of the owner or owners or shipper, or shippers, or his or their agent, use, sell, dispose of, buy or traffic in any milk or cream can, belonging to any dealer in or shipper of milk or cream residing in this state or elsewhere, who may ship milk or cream to any city, town or place within this state, or who may buy or sell milk or cream within this state, which can has the name or initials of the owner or owners, dealer or dealers, or shipper or shippers, stamped, marked or fastened thereupon, or willfully mar, erase or change by remarking or otherwise such name or initials.
The superintendent of any railroad over which milk or cream shall be carried or shipped to any place within this state, shall have the power to appoint an agent for the collection, protection and care of any milk or cream cans shipped over such railroad, on such terms of compensation as may be arranged between such railroad company and any such agent.
The fact of any person, without the written consent of the owner, dealer or shipper thereof, or his agent, either using, selling, disposing of, buying, trafficking in or having in his possession or under his control, or having on, in or about his premises, any such milk or cream can or cans, shall be presumptive evidence of the unlawful use, purchase or traffic in such can or cans.
Any can or cans mentioned in section 56:3-42 of this title, full or partly full of milk or cream, used in violation of the provisions of this article, may be emptied of their contents by the owner, dealer or shipper, or his agent, and taken possession of by any of such several parties, without being liable in damages therefor, upon first giving notice to the person having the possession of such can or cans to empty the same.
Any person who shall, in violation of this article, either use, sell, dispose of, buy, traffic in or have in his possession, or in, on or about his premises any such can or cans, or who shall willfully mar, erase or change by remarking or otherwise the name or initials of any such owner, dealer or shipper, so stamped, marked or fastened upon such can or cans, or who shall have any such can or cans on, in or about his premises as in this article provided, shall be liable to a penalty of fifty dollars for each and every such can either so used, sold, disposed of, bought, trafficked in, or found in his possession or in, on or about his premises.
The penalty prescribed by this section shall be recovered in an action at law, to be brought in the name of the owner, dealer or shipper in any court of this state having cognizance thereof, with costs of action and such reasonable disbursements as any such owner, dealer or shipper, or his agent, may incur in retaking possession of any such can or cans, to be determined in such action.
If any owner, dealer or shipper, or his agent, has reason to believe, and does believe, that any can or cans of the kind mentioned in section 56:3-42 of this Title, stamped or marked as provided in said section 56:3-42, is or are being used, or has or have been unlawfully used as aforesaid, by any person, or that any person has any such can or cans secreted in or upon his premises, or any other place, any such owner, dealer or shipper, or his agent, may go before the Superior Court or the municipal court in the municipality wherein such offenses may be or have been committed, and make complaint thereof under oath, which complaint may be wholly upon information and belief. Whereupon the court shall issue a process in the nature of a search warrant, directed to any marshal or an executive officer of any municipality, which shall recite the complaint, or the substance thereof, and shall command such marshal or executive officer to search immediately the premises, place or places mentioned in the complaint, and, if any milk or cream cans be found, to bring the same, together with the body of the person in whose possession they may be found, before the court which shall summarily inquire into the ownership of such can or cans, and, upon being satisfied that the same belong to such owner, dealer or shipper, or that his agent is entitled to the possession thereof, he shall deliver such can or cans to such owner, dealer or shipper, or his agent, who shall have the costs of the proceedings from the person so illegally having such can or cans in his or their possession. If the person illegally having such can or cans in his possession shall refuse to pay the costs, the court shall commit such person to the county jail of the county wherein he shall be arrested until such costs are paid.
No person engaged in selling the products of a farm or garden, on commission or otherwise, shall allow the basket or other package containing any of such products, upon which the name or mark of the owner is distinctly branded, stamped, painted or otherwise impressed, to go out of his possession without first demanding and receiving a sum of money equal to the full value of such basket or other package. Such sum of money shall be refunded to the purchaser of such products upon the return of the basket or other package in as good condition as when he received the same. The money collected on baskets or other packages not returned shall be paid to the owner at the end of each month.
Any person who shall violate the provisions of section 56:3-48 of this title, or who shall, without the written consent of the owner, sell, dispose of, buy or traffic in, mar or erase the brands or marks on, willfully break, destroy or otherwise injure, fill or use for any other purpose than the sale of the original contents of any of such baskets or other packages, shall be liable to a penalty of twenty dollars, with costs, for each and every offense; which penalty may be sued for and recovered with costs, by any person in any court of competent jurisdiction.
"Covered entity" means (1) the manufacturer of a covered product that is sold or offered for sale in this State; and (2) a wholesaler, supplier, or retailer that is responsible for the labeling or packaging of a covered product.
"Covered product" means a consumer product sold or offered for sale in this State that is (1) a premoistened nonwoven disposable wipe marketed as a baby wipe or diapering wipe; or (2) a premoistened nonwoven disposable wipe that contains petrochemical-derived fibers that is likely to be used in a bathroom, including baby wipes, bathroom cleaning wipes, toilet cleaning wipes, hard surface cleaning wipes, disinfecting wipes, hand sanitizing wipes, antibacterial wipes, facial and makeup removal wipes, general purpose cleaning wipes, personal care wipes for use on the body, feminine hygiene wipes, adult incontinence wipes, adult hygiene wipes, and body cleansing wipes.
"Do Not Flush labeling" means product packaging that includes a "Do Not Flush" symbol and label notice in accordance with subsection b. of section 2 of P.L.2023, c.280 (C.56:3-51).
"High contrast" means a light symbol on a solid dark background or a dark symbol on a solid light background and having at least 70 percent contrast between the symbol artwork and background using the formula [(B1 - B2) / B1] * 100, where B1 is the light reflectance value of the light background, and B2 is the light reflectance value of the dark background or symbol.
"Label" means to represent by statement, word, picture, design, or emblem on a covered product package.
"Label notice" means the phrase "Do Not Flush" in a size equal to at least two percent of the surface area of the principal display panel, except as otherwise specified in subsection b. of section 2 of P.L.2023, c.280 (C.56:3-51); provided, however, for covered products regulated pursuant to the Federal Hazardous Substances Act (15 U.S.C. s.1261 et seq.) by the United States Consumer Product Safety Commission under 16 CFR s.100.121, if the label notice requirements in this paragraph would result in a type size larger than first aid instructions under the Federal Hazardous Substances Act, then the type size for the label notice shall, to the extent permitted by federal law, be equal to or greater than the type size required for first aid instructions; and for a covered product required to be registered by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. s.136 et seq.) if the label notice requirements in this paragraph would result in a type size on the principal display panel larger than a warning pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, then the type size for the label notice shall, to the extent permitted by federal law, be equal to or greater than the type size required for a child hazard warning required by the Environmental Protection Agency.
"Non-flushable disposable wipe product" means (1) a pre-moistened nonwoven disposable wipe marketed as a baby wipe or diapering wipe; or (2) a pre-moistened nonwoven disposable wipe that is composed partly or entirely of petrochemical-derived fibers which may reasonably be used in a bathroom and shall include, but not be limited to, baby wipes, bathroom cleaning wipes, toilet cleaning wipes, hard surface cleaning wipes, disinfecting wipes, hand sanitizing and other sanitizing wipes, antibacterial wipes, facial and makeup removal wipes, general purpose cleaning wipes, personal care wipes for use on the body, feminine hygiene wipes, adult incontinence wipes, adult hygiene wipes, and body cleansing wipes.
"Principal display panel" means the side of the product package that is most likely to be displayed, presented, or shown under customary conditions of display for retail sale; provided, however, for a cylindrical or nearly cylindrical package, the surface area of the principal display panel shall constitute 40 percent of the product package as measured by multiplying the height of the container by the circumference; and for a flexible film package in which a rectangular prism or nearly rectangular prism stack of wipes is housed within the film, the surface area of the principal display panel shall be measured by multiplying the length and width of the side of the package when the flexible packaging film is pressed flat against the stack of wipes on all sides of the stack.
"Product packaging" means the disposable outer material such as cardboard, film plastic, rigid plastic tub or canister, or paper that contains the unit of product as intended for sale at retail.
"Symbol" means a "Do Not Flush" symbol, or its gender equivalent, as depicted in the INDA/EDANA Code of Practice, Second Edition, as published in "Guidelines for Assessing the Flushability of Disposable Nonwoven Products," Edition 4, May 2018, in a size equal to at least two percent of the surface area of the principal display panel, except as otherwise specified in section 2 of P.L.2023, c.280 (C.56:3-51).
b. Any non-flushable disposable wipe product sold, offered for sale, or distributed for sale in this State shall have a "Do Not Flush" symbol and label notice or its equivalent. A covered product manufactured after the effective date of this act shall be clearly and conspicuously labeled with a symbol and label notice. Except as otherwise provided in this section, both the symbol and label notice, respectively, shall be sized equal to at least two percent of the surface area of the principal display panel in accordance with the following requirements:
(1) for cylindrical or nearly cylindrical packaging intended to dispense individual wipes, a covered entity shall:
(a) place the symbol and label notice on the principal display panel in a location that is reasonably viewable each time a wipe is dispensed; or
(b) place the symbol on the principal display panel and either the symbol or label notice, or the symbol and label notice in combination, on the flip lid subject to the following requirements:
(i) if the label notice does not appear on the flip lid, the label notice must be placed on the principal display panel;
(ii) the symbol or label notice, or the symbol and label notice in combination, on the flip lid may be embossed, in which case the symbol or label notice, or the symbol and label notice in combination, do not need to comply with the requirements set forth in paragraph (6) of this subsection; and
(iii) the symbol or label notice, or the symbol and label notice in combination, on the flip lid shall cover a minimum of eight percent of the surface area of the flip lid;
(2) for flexible film packaging intended to dispense individual wipes, a covered entity shall place the symbol on the principal display panel and dispensing side panel and place the label notice on either the principal display panel or dispensing side panel, in a prominent location reasonably visible to the user each time a wipe is dispensed. If the principal display panel is on the dispensing side of the package, two symbols are not required;
(3) for refillable tubs or other rigid packaging intended to dispense individual wipes and be reused by the consumer for that purpose, a covered entity shall place the symbol and label notice on the principal display panel in a prominent location reasonably visible to the user each time a wipe is dispensed;
(4) for packaging not intended to dispense individual wipes, a covered entity shall place the symbol and label notice on the principal display panel in a prominent and reasonably visible location;
(5) a covered entity shall ensure that the packaging seams, folds, or other package design elements do not obscure the symbol and the label notice;
(6) a covered entity shall ensure that the symbol and the label notice have sufficiently high contrast with the immediate background of the packaging to render the symbol and label notice reasonably likely to be seen and read by the ordinary individual under customary conditions of purchase and use;
(7) for covered products sold in bulk at retail, both the outer package visible at retail and the individual packages contained within shall comply with the labeling requirements set forth in this subsection that apply to the particular packaging types, except the following:
(a) individual packages contained within the outer package that are not intended to dispense individual wipes and contain no retail labeling; and
(b) outer packages that do not obscure the symbol and label notice on individual packages contained within;
(8) if a covered product is provided within the same packaging as another consumer product for use in combination with the other consumer product, the outside retail packaging of the other consumer product does not need to comply with the labeling requirements of this subsection;
(9) if a covered product is provided within the same package as another consumer product for use in combination with the other product and is in a package smaller than three inches by three inches, the covered entity of the covered product may comply with the requirements of this subsection by placing the symbol and label notice in a prominent location reasonably likely to be seen and read by the ordinary individual under customary conditions;
(10) a covered entity, directly or through a corporation, partnership, subsidiary, division, trade name, or association in connection to the manufacturing, labeling, packaging, advertising, promotion, offering for sale, sale, or distribution of a covered product, shall not make any representation, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, illustration, trademark, or trade name, about the flushable attributes, flushable benefits, flushable performance, or flushable efficacy of a covered product;
(11) if a covered product is required to be registered by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. s.136 et seq.) and the New Jersey Department of Agriculture under State law, then the covered entity shall submit a label compliant with the labeling requirements of this subsection no later than January 1, 2024, to the United States Environmental Protection Agency. If the United States Environmental Protection Agency or the New Jersey Department of Agriculture does not approve a product label that otherwise complies with the labeling requirements of this subsection, the covered entity shall use a label that complies with as many of the requirements of this subsection as the relevant agency has approved; and
(12) a covered entity may include on a covered product words or phrases in addition to those required for the label notice if the words or phrases are consistent with the purposes of this act.
c. The Division of Consumer Affairs in the Department of Law and Public Safety shall enforce the provisions of this section.
d. Nothing in this section shall apply to non-flushable disposable wipe products that are sold, offered for sale, or distributed by a retailer or wholesaler that does not package or label the non-flushable disposable wipe products.
“Confidential business information” means a substance or a combination of substances present in a menstrual product that serve a technical or functional purpose in the finished menstrual product, and for which a claim has been approved by the United States Environmental Protection Agency for inclusion on the confidential portion of the “Toxic Substances Control Act,” Pub.L.94-469 (15 U.S.C. s.2601 et seq.) Chemical Substance Inventory or for which the manufacturer of the menstrual product or the supplier of the substance claim protection under the federal “Defend Trade Secrets Act of 2016,” Pub.L.114-153 (18 U.S.C. s.1836 et seq.) or the "New Jersey Trade Secrets Act," P.L.2011, c.161 (C.56:15-1 et seq).
“Ingredient” means an intentionally added substance or a combination of substances present in a menstrual product that serve a technical or functional purpose in the finished menstrual product, provided that the substance or the combination of substances is not considered confidential business information.
“Menstrual product” means a product manufactured for the purpose of catching menstruation and vaginal discharge, including, but not limited to, a tampon, sanitary pad, disc, menstrual cup, and menstrual underwear. The term shall include both disposable and reusable products.
“Package or box containing menstrual products” means menstrual products packaged for individual retail sale, and does not include packaging used exclusively for shipping purposes.
b. No later than 18 months after the effective date of this section, every manufacturer of menstrual products sold or offered for sale in this State shall:
(1) ensure that a label is included on every package or box containing menstrual products that is sold or offered for sale in this State listing all of the ingredients contained in the menstrual product, with the ingredients listed in descending order of predominance within the menstrual product. The information shall be displayed in a manner that is conspicuous and easily understandable to consumers; and
(2) post on its Internet website, in an electronically readable format, the label information required to be included on every package or box containing menstrual products pursuant to paragraph (1) of this subsection. The manufacturer shall promptly post on its Internet website information concerning any changes requiring a change to the label on a menstrual product pursuant to subsection d. of this section no later than six months after making any ingredient change, addition, or removal. A manufacturer may use technologies, including, but not limited to, a digital link, to communicate the information required by this subsection.
c. The provisions of subsection b. of this section shall not be construed to require a manufacturer of menstrual products sold or offered for sale in this State to disclose confidential business information on a package or box containing menstrual products, or on its Internet website. If, in complying with subsection b. of this section, a manufacturer declines to disclose confidential business information on a package or box containing menstrual products or on its Internet website in order to protect a substance’s confidential identity, the manufacturer shall include the confidential business information by its common name with the label information required under subsection b. of this section.
d. A manufacturer of menstrual products, when required to change the label on a menstrual product due to a change in an ingredient, or addition or removal of an ingredient, shall make the change to the label within 18 months of the change in the ingredient.
e. (1) In addition to any other penalties authorized by law, it shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) for any manufacturer of menstrual products to sell or offer for sale in this State a package or box containing menstrual products that does not meet the requirements of paragraph (1) of subsection b. of this section.
(2) A civil penalty shall not be assessed pursuant to paragraph (1) of this subsection for a package or box containing menstrual products that was manufactured prior to 18 months after the effective date of this act.
The Legislature further finds and declares: that the carbon-fluorine bond used to make PFAS is one of the strongest chemical bonds and does not break down under typical environmental conditions; that PFAS are nicknamed “forever chemicals” because they accumulate in the environment, rather than break down, over time; that PFAS enter the environment through manufacturing processes and waste streams, and humans are exposed through contaminated food, dust, air, drinking water, and certain consumer products; that human exposure to these chemicals has been linked to endocrine disruption, cancer, immuno-toxicity, and developmental impacts; and that PFAS have been detected in the blood serum of 98 percent of humans tested.
The Legislature further finds and declares: that contamination of air, soil, and water in the State from PFAS poses a significant threat to the environment of the State and to the health of its citizens; that the full extent of PFAS contamination in the State is not presently known, but is anticipated to be widespread and to require a significant expenditure of resources to identify and remediate; and that, to address the imminent threat of further contamination of air, soil, and water in the State and protect the public health of citizens in the State, it is imperative to conduct PFAS-related research within the State and to phase out the sale of certain nonessential products containing PFAS.
The Legislature therefore determines that it is in the best interest of the residents of New Jersey for PFAS to be prohibited from being intentionally added to certain products being manufactured and sold within the State, for manufacturers of cookware products containing PFAS to notify consumers about the presence of PFAS in their products, and for educational programming and research concerning PFAS to be available to residents in the State.
“Carpet” means a rug or fabric marketed or intended for use as a floor covering.
“Cookware” means durable houseware items that are used to prepare, dispense, or store food, foodstuffs, or beverages that are intended for direct food contact, and that are items to which heat is transferred or which come into direct contact with a heat source, including pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils. “Cookware” does not include products that are intended for commercial use only.
“Cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap.
“Division” means the Division of Consumer Affairs in the Department of Law and Public Safety.
“Fabric treatment” means a substance applied to fabric to give the fabric one or more characteristics, including, but not limited to, stain resistance or water resistance.
“Food packaging” means a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is composed, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers. “Food packaging” includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays.
“Intentionally added PFAS” means PFAS added to a product or intentionally used during the development of a product or one of its product components to provide a specific characteristic, appearance, or quality or to perform a specific function. “Intentionally added PFAS” also includes any degradation byproducts of PFAS. ”Intentionally added PFAS” shall not include a technically unavoidable trace quantity of PFAS which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product or product component.
“Internal component” means an internal part of a product, whether permanently affixed or removable, that is designed and intended to not be touched by a person during the intended use or handling of the product. “Internal component” includes parts of a product used for holding batteries, regardless of whether the parts are touched when replacing batteries.
“Manufacturer” means the person that manufactures a product or whose brand name is affixed to the product. In the case of a product imported into the United States, “manufacturer” includes the importer or first domestic distributor of the product if the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States.
“Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
“Product” means an item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, which is sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.
“Product component” means an identifiable component of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.
“Product label” means a display of written, printed, or graphic material that appears on, or is affixed to, the exterior of a product, or its exterior container or wrapper that is visible to a consumer, if the product has an exterior container or wrapper.
b. If a cosmetic product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the cosmetic product, that trace quantity shall not cause the product to be in violation of this section.
c. The provisions of this section shall not apply to a product that contains intentionally added PFAS only in electronic components or internal components of the product.
b. If a carpet or fabric treatment contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.
b. If a food packaging product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.
b. The product label of a cookware product containing PFAS shall include a statement, in both English and Spanish, that reads: “This product contains PFAS.”
c. A manufacturer of cookware sold in the State shall ensure that the statement required on the product label pursuant to subsection b. of this section is visible and legible to the consumer, including on the product listing for online sales.
d. Beginning two years after the effective date of this act, a manufacturer shall not make a claim, on the product label or Internet website for the cookware product, that the cookware is free of PFAS if PFAS were intentionally added to the cookware.
e. Cookware that meets both of the following requirements shall be exempt from the labeling requirements of this section:
(1) the surface area of the cookware cannot fit a product label of at least two square inches; and
(2) the cookware does not have either of the following:
(a) an exterior container or wrapper on which a product label can appear or be affixed; or
(b) a tag or other attachment with information about the product attached to the cookware.
f. The provisions of this section shall not apply to a product that contains intentionally added PFAS only in electronic components or internal components of the product.
g. Notwithstanding the provisions of this section to the contrary, any cookware product with a product label that lists the presence of PFAS or a PFAS chemical pursuant to another state or federal law shall be deemed in compliance with the requirements of this section.
b. If a cookware product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.
(1) issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;
(2) bring a civil action in accordance with subsection c. of this section;
(3) levy a civil administrative penalty in accordance with subsection d. of this section;
(4) bring an action for a civil penalty in accordance with subsection e. of this section;
(5) direct a manufacturer or other person that is not in compliance with the requirements of this act to stop offering for sale or distributing certain products that contain intentionally added PFAS; or
(6) notify the public of a manufacturer that is not in compliance with the requirements of this act.
The exercise of any of the remedies provided in this section shall not preclude the seeking of any other remedy specified.
b. Whenever the division finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, the division may issue an administrative enforcement order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, requiring compliance with the provision violated, and giving notice to the person of the person's right to a hearing on the matters contained in the administrative enforcement order. The ordered person shall have 20 calendar days from receipt of the order within which to deliver to the division a written request for a hearing. After the hearing and upon finding that a violation has occurred, the division may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.
c. The division is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or any rule or regulation adopted pursuant thereto. This relief may include an assessment against the violator for the costs of any investigation, inspection, or audit that led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.
d. The division is authorized to impose a civil administrative penalty of not less than $1,000 nor more than $20,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense. In assessing a civil administrative penalty, the division shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will maintain an appropriate deterrent. Prior to assessment of a civil administrative penalty, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the division a written request for a hearing. After the hearing and upon finding that a violation has occurred, the division may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The division may compromise any civil administrative penalty assessed under this section in an amount and with conditions the division determines appropriate.
e. A person who violates any provision of this act, or any rule or regulation adopted pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the division shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the division . In addition to any penalties, costs, or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.
b. In order to identify the proprietary information or trade secrets to be protected from public disclosure pursuant to subsection a. of this section, a manufacturer shall file a trade secret claim to the division, in a form and manner determined by the division. No later than 90 days after receipt of a trade secret claim, the division shall make a determination on the validity of the trade secret claim. Upon making a determination on the validity of a trade secret claim, the division shall inform the manufacturer of the determination by certified mail. If the division determines that the manufacturer's trade secret claim is not valid, the manufacturer shall have 45 days from the receipt of the division’s determination to file with the division a written request for an administrative hearing on the determination. If the manufacturer does not file such a request within 45 days, the division may take action to disclose the information for which the trade secret claim was made, pursuant to the provisions of this act. If a manufacturer requests an administrative hearing pursuant to the provisions of this subsection, the division shall refer the matter to the Office of Administrative Law, for a hearing thereon. At the hearing the manufacturer shall have the burden to show that the trade secret claim is valid. Within 45 days of receipt of the administrative law judge's recommendation, the division shall affirm, reject, or modify the recommendation. The division’s action shall be considered the final agency action for the purposes of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), and shall be subject only to judicial review as provided in the Rules of Court. The division shall inform the manufacturer of its decision on the administrative law judge's recommendation by certified mail.
c. The subject of any trade secret claim pending or approved shall be treated as confidential information. The division shall not disclose any confidential information to any person except an officer or employee of the State in connection with the official duties of the officer or employee under any law for the protection of public health or the environment. Any officer or employee of the State who has access to any confidential information, and who willingly and knowingly discloses the confidential information to any person not authorized to receive it, shall be guilty of a crime of the third degree.
d. Any written notification containing information for which a trade secret claim is pending or has been approved may be made available to the public with that information concealed.
"Copyright owner" means the owner of a copyright of a musical work, other than a motion picture or audiovisual work;
"Performing rights society" means an association or corporation that licenses the nondramatic public performance of musical works on behalf of copyright owners, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC, Inc.;
"Proprietor" means the owner of a retail establishment, restaurant, inn, bar, tavern or any other similar place of business or professional office located in this State in which the public may assemble and in which musical works may be performed, broadcast, or otherwise transmitted for the enjoyment of the members of the public there assembled;
"Royalty" or "royalties" means the fees payable to a copyright owner or performing rights society for the nondramatic public performance of a musical work.
b. Upon request, any person may view the list in electronic form through the Office of the Secretary of State.
c. The list in electronic form at the time that a proprietor enters into a contract with a performing rights society, as supplemented by subsequent additions to the list, shall be binding between the parties for the period of the contract.
d. Every performing rights society shall provide a copy of its current list at a reasonable cost to any person upon request.
e. Every performing rights society licensing music in this State shall establish a toll free telephone number which can be used to answer inquiries regarding specific musical works licensed by that performing rights society.
a. a schedule of the rates and terms of royalties under the contract;
b. notice that the performing rights society shall, upon request by a proprietor, provide, before entering into a contract with that proprietor, a schedule of the rates and terms of royalties under agreements executed by the performing rights society and proprietors of comparable businesses in the same county;
c. in the case of a performing rights society which offers discounts to proprietors in the same county on any basis, the amounts and terms of those discounts;
d. notice of the provisions of section 3 of this act including the electronic address and the toll free telephone number; and
e. notice that the proprietor is entitled to the information required under this act and that the failure of the performing rights society to provide that information is a violation of this act.
a. be in writing;
b. be signed by the parties to the contract; and
c. include at least the following information:
(1) the proprietor's name and business address and the name and location of each place of business to which the contract applies;
(2) the name and business address of the performing rights society;
(3) the duration of the contract; and
(4) the schedule of rates and terms of royalties to be collected under the contract, including any sliding scale, discount or schedule for any increase or decrease of those rates for the duration of the contract.
a. enter onto the premises of a proprietor's business for the purpose of discussing a contract for the payment of royalties by that proprietor without first identifying himself to the proprietor or his employees and disclosing that he is acting on behalf of the performing rights society and disclosing the purpose of the discussion;
b. collect or attempt to collect a royalty payment or any other fee except as provided in a contract executed pursuant to the provisions of this act on or after the effective date of this act;
c. use or attempt to use any unfair or deceptive act or practice in dealing with a proprietor;
d. use or attempt to use any act or practice that is substantially disruptive to a proprietor's business; or
e. commence or threaten to commence legal proceedings in connection with an alleged copyright violation unless that performing rights society shall have advised the proprietor that the proprietor may comply with the federal copyright law pursuant to Title 17 of the United States Code with respect to copyrighted musical works in that performing rights society's repertory by:
(1) obtaining a license from that performing rights society; or
(2) discontinuing all nondramatic public performances of music in that performing rights society's repertory; or
(3) obtaining authorization for nondramatic public performances directly from the copyright owners who are members of that performing rights society.
b. The prevailing party in an action brought under this act shall be awarded reasonable attorney's fees and costs of suit.
b. This act shall not apply to any conduct by law enforcement officers or other persons engaged in the enforcement of section 1 of P.L.1991, c.125 (C.2C:21-21).
No merchant, firm or corporation shall appropriate for his or their own use a name, brand, trade-mark, reputation or goodwill of any maker in whose product such merchant, firm or corporation deals.
Any contract provision that purports to restrain a vendee of a commodity from reselling such commodity at less than the price stipulated by the vendor or producer shall not be enforceable or actionable at law.
Any person, firm or corporation violating any of the provisions of section 56:4-1 of this title shall be liable, at the suit of the maker of such branded or trade-marked products, or any other injured person, to an injunction against such practices, and shall be liable in such suit for all damages, directly or indirectly caused, to the maker by such practices, which damages may be trebled in the discretion of the court.
As used in this act:
a. "Customer" means any person who causes or caused a molder to fabricate, cast or otherwise make a mold, die or form, or who causes or caused a molder to use a mold, die or form in the manufacture or assembly of products.
b. "Molder" means any person who fabricates, casts or otherwise makes a mold, die or form to produce plastic products, or who uses a mold, die or form in the manufacture or assembly of plastic products.
Unless otherwise agreed to in writing, if a customer does not take possession from a molder of a mold, die or form situated in this State within 3 years following its last prior use, the customer's rights, title and interest to the mold, die or form may be transferred by operation of law to the molder for the purpose of destroying the mold, die or form consistent with this act. To transfer title, the molder shall send written notice by registered mail, return receipt requested, to the customer's designated address or, if there is none, to the customer's last known address, indicating that the molder intends to have the customer's rights, title and interest to the mold, die or form transferred pursuant to this act.
If a customer does not take possession of the particular die, mold, or form within 120 days following the date the molder receives acknowledgement or nonacknowledgement of the return receipt of the notice or does not make other contractual arrangements with the molder for taking possession or for the storage thereof, all rights, title, and interest of the customer shall transfer by law to the molder. Thereafter, the molder shall be entitled to destroy the particular die, mold, or form as the molder's own property without any risk of liability to the customer.
This act shall not be construed to affect the rights of customers under federal patent or copyright law, or any State or federal law pertaining to unfair competition. This act shall not apply if a molder retains title to and possession of a mold, die or form, nor shall this act be construed to grant a customer any rights, title or interest in a mold, die or form.
For purposes of this act, the term "within 3 years following its last use" shall be construed to include any period following the last prior use of any die, mold, or form regardless of whether or not the period precedes the effective date of this act.
(1) the molder's intention to sell the die, mold, form or pattern 30 days after the notice was mailed;
(2) a description of the die, mold, form or pattern to be sold;
(3) the time and place of the sale; and
(4) an itemized statement for the amount due.
b. If the die, mold, form or pattern is sold for an amount which is greater than the amount of the lien plus all reasonable expenses of the sale, any excess amount shall be paid to any prior lienholder known to the molder at the time of the sale and any remainder to the customer, or if the owner is different from the customer, to the owner. If there is no prior lienholder and the customer or, if the owner is different from the customer, the owner has not responded to the notices required to be sent pursuant to this act, any excess shall be paid to the State Treasurer for deposit in the General Fund.
c. A lien under this act shall not take priority over an existing perfected security interest.
d. A customer or, if the owner is different from the customer, the owner shall seek repossession of a mold, die, form or pattern subject to a lien under this act only by posting a bond in the amount of the charges outstanding.
When any electric storage battery has the word "rental" or any word, mark, device or character printed, painted, stamped, burned or otherwise placed upon or attached to it for the purpose of identifying the ownership thereof, it shall be unlawful for any person, copartnership or corporation, other than the owner of said storage battery:
a. To remove, deface, alter or destroy, or cause to be removed, defaced, altered or destroyed any such word, mark, device or character so placed thereon or attached thereto; or
b. To sell, dispose of, deliver, or give, or attempt to sell, dispose of, deliver, or give to any person, copartnership or corporation any such battery, so identified; or
c. To recharge, except in the case of an emergency and with the consent of the owner, or his duly authorized agent or employee, any such battery so identified; or
d. To retain in his, their or its possession, any such battery so identified, for a longer time than ten days after written demand for its return has been made by the owner thereof and sent by registered mail.
Any person, copartnership or corporation and the members, officers, agents and employees of any copartnership or corporation violating any provision of this section shall be guilty of a misdemeanor.
Whoever assembles or rebuilds, in whole or in part, an electric storage battery for use on automobiles, out of secondhand or used material, such as containers, separators, plates, groups or other battery parts, and sells or offers the same for sale in this state, without the word "rebuilt" moulded into the side of the container in letters at least one inch high and five-eighths of an inch wide, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding two hundred and fifty dollars, or be imprisoned for a term of not more than six months, or both.
Words used in this act, unless otherwise expressly stated, or unless the context or subject matter otherwise requires, shall have the following meaning:
"Person" shall mean and include natural persons and partnerships, firms, associations, joint stock companies, syndicates and corporations and any receiver, trustee, conservator or other officer appointed pursuant to law by any court, State or Federal. The use of the singular number shall include the plural number.
"Retail dealer" any person operating a service station, filling station, store, garage or other place of business for the sale of motor fuel for delivery into the service tank or tanks of any vehicle propelled by an internal combustion engine.
"Motor fuel" shall mean (a) all products commonly or commercially known or sold as gasoline (including casinghead and absorption or natural gasoline), benzol, benzene, or naphtha regardless of their classification or uses; and (b) any liquid prepared, advertised, offered for sale or sold for use as or commonly and commercially used as a fuel in internal combustion engines, which when subjected to distillation in accordance with the standard method of test for distillation of gasoline, naphtha, kerosene and similar petroleum products (American Society of Testing Material Designation D-86) shows not less than ten per centum (10%) distilled (recovered) below three hundred forty-seven degrees (347) Fahrenheit (one hundred seventy-five degrees (175) Centigrade) and not less than ninety-five per centum (95%) distilled (recovered) below four hundred sixty-four degrees (464) Fahrenheit (two hundred forty degrees (240) Centigrade); and (c) any other product or liquid when sold for use as a fuel in any type of internal combustion engine furnishing power to operate a motor vehicle.
"Sale" shall have its ordinary meaning and, in addition, shall include any exchange, gift or other disposition; and "purchase" shall include any acquisition of ownership.
"Selling expense" includes all overhead and general business expense.
"Commissioner" shall mean the State Tax Commissioner.
(b) No retail dealer shall sell motor fuel at a price which is below the net cost of such motor fuel to the retail dealer plus all selling expenses.
(c) No other price signs of motor fuel so dispensed, or signs relating to the price of such fuel shall be used or displayed on or about the premises where motor fuel is sold at retail, other than the signs provided by section 3 of P.L.1952, c.258 (C.56:6-2.3).
(d) No advertising or sign other than that provided for in section 3 of P.L.1952, c.258 (C.56:6-2.3), which directly or indirectly contains a statement of, or an implied reference to the price of motor fuel shall be displayed at any place where motor fuel is dispensed at retail. Any advertising of the retail price of motor fuel through any other medium which contains a reference to the per gallon or per liter price thereof, shall include all taxes in the price stated, and there shall be included in such advertising a statement that such price includes taxes, or a statement of the amount of taxes which are included in such price. Such advertising shall be identified by the name of the product, and the letters of the name shall be not less than one-half the size of the figures used in the price.
(e) No rebates, allowances, concessions or benefits shall be given, directly or indirectly, so as to permit any person to obtain motor fuels from a retail dealer below the posted price or at a net price lower than the posted price applicable at the time of the sale, except that credits earned through purchases on a credit card, debit card, or rewards card may be utilized by a person to receive a rebate, allowance, concession, or benefit in the purchase of motor fuels, provided that: (1) the use of credits earned through purchases on a credit card, debit card, or rewards card shall not change the retail price displayed on any sign required pursuant to section 3 of P.L.1952, c.258 (C.56:6-2.3); and (2) the retail dealer shall not be responsible for any of the costs associated with the rebate, allowance, concession, or benefit received by the motor fuel purchaser except for any interchange fees and transaction fees associated with the use of a credit card or debit card by a customer for the purchase of motor fuels.
As used in this subsection, "rewards card" means a card or certificate distributed by the issuer to a consumer pursuant to an awards, loyalty, rewards, or promotional program, or used to benefit frequent shoppers or to collect data on purchasing habits.
(f) It shall be unlawful for any retail dealer to use lotteries, wheels of fortune, punchboards or other games of chance, in connection with the sale of motor fuels.
(g) All above-ground equipment for storing or dispensing motor fuel operated by a retail dealer shall bear, in a conspicuous place, the name or trade-mark of the product stored therein or dispensed therefrom, and no retail dealer shall permit delivery into underground or above-ground containers, tanks or equipment of any motor fuel other than the brand represented or designated by the name or trade-mark appearing on such container or dispensing equipment attached thereto. No retail dealer shall be a party to the substitution of one grade of motor fuel for another.
(h) If the motor fuel stored in or dispensed from any above-ground equipment by a retail dealer shall not have a brand name or trade-mark, such container or dispensing equipment shall have conspicuously displayed thereon the words "No Brand."
All signs relating to the price of motor fuel being sold or dispensed by a retail dealer shall be used and displayed in accordance with the provisions of this act and the act to which this is a supplement.
Signs under the control of the retail dealer, stating the price of motor fuel for delivery into the service tank or tanks of any vehicle propelled by an internal combustion engine, shall be displayed and maintained as provided for in section 3 of P.L.1952, c. 258 (C. 56:6-2.3). No other sign relating to the price of motor fuel shall be used or displayed on or about the premises where the motor fuel is sold at retail or on other premises under the control of the retail dealer.
"Includes (insert the tax per gallon) N.J.Tax-- (insert the tax per gallon) Federal Tax," "Includes State and Federal Taxes," "Includes N.J. and U.S. Taxes," or "Includes all Taxes."
The colors of all price signs shall be of such combination that the sign may be easily read by any person purchasing motor fuel from the pump or other dispensing equipment to which the sign is attached. Any figure or fraction used in any price computing mechanism constituting a part of a computing pump or any other dispensing equipment shall not be considered a price sign under the provisions of this section.
Price signs displayed in accordance with the provisions of subsection b. of this section shall include the price per gallon, or the price per gallon and per liter, for both cash and credit card purchases of motor fuel.
No sign stating or relating to the price of motor fuel and no signs designed or calculated to cause the public to believe that they state or relate to the price of motor fuel other than the signs provided for herein, shall be posted or displayed on or about the premises where motor fuel is sold at retail and within view from any public highway or reservation.
This act shall supersede any and all acts or parts of acts inconsistent herewith.
The following procedure shall be followed in actions for the enforcement of penalties set forth in Article III of this act:
(a) The said penalty shall be sued for in the name of the Director of the Division of Taxation. The Superior Court and every municipal court is hereby authorized, upon the filing of a complaint in writing, duly verified by the Director of the Division of Taxation, or by any assistant or employee of the Director of the Division of Taxation, which may be made upon information or belief, that any retail dealer has violated any of the provisions of Article II of this act, to issue process at the suit of the Director of the Division of Taxation as plaintiff. Such process shall be either in the nature of a summons or warrant, which may issue without any order of the court or judge first being obtained against the person or persons so charged. When such process shall be in the nature of a warrant, it shall be returnable forthwith, and when in the nature of a summons, it shall be returnable in not less than five nor more than ten days. Such process shall specify the section of the act which is alleged to have been violated by the defendant or defendants, and upon the return of such process or at any time to which the trial shall be adjourned, the said court shall proceed and summarily hear the testimony and, without the filing of any pleadings, determine the matter and give judgment, without a jury, either for the plaintiff for the recovery of such penalty with costs or for the defendant. If judgment shall be rendered for the plaintiff, the court shall cause any defendant who may refuse or fail to pay forthwith the amount of the judgment rendered against him and all costs and charges incident thereto to be committed to the county jail for any period not exceeding the period mentioned in Article III hereof.
(b) The officers to serve and execute all process under this act shall be officers authorized to serve all process out of said court. The court shall have the power to adjourn the hearing or trial in any case from time to time, but in such case, except in case where the first process was a summons, it shall be the duty of the judge to detain the defendant in safe custody unless he shall enter into a bond to the Director of the Division of Taxation with at least one sufficient surety, in a sum fixed by the court which shall be not less than fifty dollars ($50.00) nor more than two hundred dollars ($200.00), conditioned for his appearance on the day to which the hearing shall be adjourned and thence from day to day until the case is disposed of, and then to abide by the judgment of the said court, and such bond if forfeited may be prosecuted by said Director of the Division of Taxation.
(c) The form of conviction in prosecutions under this article shall be in the following or similar form:
State of New Jersey, )
)ss.
County of )
Be it remembered, that on this .......... day of .............. , at .................................... , in said County, X ......... , the defendant, was by (name of court) convicted of violating Section ................. of Article II of an act entitled 'An act to regulate the retail sale of motor fuels, and providing penalties for violations' (date of approval of act) in a summary proceeding at the suit of the Director of the Division of Taxation, upon a complaint by ..................... ; and, further, that the witnesses in said proceeding who testified for the plaintiff were (name them), and the witnesses who testified for the defendant were (name them).
Wherefore, the said court does hereby give judgment that the plaintiff recover of the defendant ........................ dollars penalty and ................................ dollars costs of this proceeding."
The conviction shall be signed by the judge before whom the conviction is had. In case the defendant is committed to jail in default of payment of the penalty, commitment in the following form shall be added beneath the judge's signature to the conviction:
"And the said X, neglecting and refusing to pay the amount of the penalty above mentioned, with costs, it is hereby ordered that the said X be and he is hereby committed to the common jail in the county of ......................... for a period of ........................ days, unless the said penalty and costs are sooner paid." Such commitment shall also be signed by the judge and, in case of commitment of any defendant to jail, the conviction and the commitment shall be signed in duplicate, and one of the duplicate copies shall serve the purpose of a warrant of commitment. If a defendant who is committed to jail in default of payment of the penalty shall serve the full period for which he shall be committed, upon his release from jail he shall be entitled to have the judgment satisfied of record, and the certificate of the warden of said jail that the said defendant has been detained for the period specified in the commitment shall be sufficient warrant for the clerk of any court in which the judgment for the penalty and costs is docketed to discharge the same of record.
(d) The clerk of the court may sign and seal any process required to issue under this act, except a warrant of commitment. The costs recoverable in any such proceeding shall be the same as costs taxed in actions in said court and shall be recoverable by said Director of the Division of Taxation in the event of the conviction of the defendant. Execution may issue for the collection of any judgment obtained under this act against the goods and chattels and body of the defendant without any order first obtained for such purpose.
(e) The Director of the Division of Taxation may file a bill in the Superior Court for an injunction to prohibit any habitual violation of this act, or any of the orders, rules, or regulations made by the director, and every such action shall proceed in the Superior Court according to the rules and practice of that court, and cases of emergency shall have precedence over other litigation pending at the time in the Superior Court, and final hearing may be had within such time and on such notice as the court shall direct.
b. The State Superintendent or any weights and measures official shall be authorized to serve all process out of said court.
c. Any judgment recovered for a penalty under the provisions of P.L.1938, c.163 (C.56:6-1 et seq.), in any municipal court may be docketed with the Superior Court. Execution may issue in a manner similar to that for other Superior Court judgments.
d. Any habitual violations of provisions of P.L.1938, c.163 (C.56:6-1 et seq.), or of any orders or rules or regulations made pursuant to said statutes may be restrained by the Superior Court in an action brought for such purpose by the Attorney General on behalf of the State Superintendent of Weights and Measures.
e. Penalties, when imposed or recovered in an action brought by a State weights and measures officer, shall be payable to the State Treasurer. When such action is brought by a county or municipal weights and measures officer, the penalty moneys shall be paid to the respective county or municipal treasury, as the case may be.
All moneys which shall be recovered as penalties under this act shall be paid by the commissioner to the State Treasurer to be transferred to the credit of the commissioner to defray the expenses of carrying into effect the provisions of this act.
The State Tax Commissioner is hereby authorized and empowered to carry into effect the provisions of this act and in pursuance thereof to make and enforce such rules and regulations as he may deem necessary.
For the purpose of administering this act, the commissioner whenever he deems it expedient, may make or cause to be made by any employee of the State Tax Department engaged in the administration of this act an audit, examination or investigation of the books, records, papers, vouchers, accounts and documents of any retail dealer. It shall be the duty of every retail dealer, his agents or employees, to exhibit to the commissioner or to any such employee of the State Tax Department all such books, records, papers, vouchers, accounts and documents of the retail dealer and to facilitate any such audit, examination or investigation so far as it may be in his or their power so to do.
The commissioner or any employee of the State Tax Department by him thereunto designated may conduct hearings, administer oaths to and examine under oath any retail dealer, his agents or employees and any other witnesses as well in investigating alleged violations of this act, or for the purpose of ascertaining facts to enable the commissioner to administer the provisions of this act.
The commissioner or any employee of the State Tax Department by him thereunto designated shall have the power by subpoena, signed by the commissioner and served in the same manner as like process in civil actions in the Supreme Court, to compel the attendance of witnesses and the production of any books, records, papers, vouchers, accounts or documents of any retail dealer at any hearing held pursuant to the provisions of this act. The fees of witnesses required to attend any such hearing shall be the same as those allowed to witnesses appearing in the Supreme Court. Such fees shall be paid in the manner provided for the payment of other expenses incident to the administration of this act.
If a person subpoenaed to attend any hearing under this act fails to appear, be examined or answer any question or produce any books, records, papers, vouchers, accounts or documents when subpoenaed so to do by the Director of the Division of Taxation or by any employee of the Division of Taxation designated by the director, the director or such employee of the said division may apply to the Superior Court to compel the person to comply forthwith with the subpoena.
The commissioner may appoint an assistant or a deputy to administer this act, and such other assistants as he may deem necessary, and may establish, equip and maintain one office at such place in this State as he shall determine, subject always to the appropriations provided therefor. The assistant or deputy appointed under this act and not more than three employees assigned to special and confidential duties in connection therewith or whose duties require them to be attorneys shall be in the unclassified civil service; provided, however, that when any person employed as one of the said three employees has served or shall have served continuously in said employment for thirty months, said person shall hold and thereafter continue to hold his said employment within and as a part of the classified service of the State, in accordance with the provisions of Title 11 of the Revised Statutes. In case an employee in the classified service is appointed as assistant or deputy, he shall continue to have such rights of tenure in the classified service as he formerly possessed.
The commissioner shall keep a record of all of his official acts and shall preserve copies of all rules, regulations, decisions and orders made by him. Copies of any rule, regulation, decision or order made by him or of any paper or papers filed in any office maintained by him in the administration of this act may be authenticated under his official seal, and when so authenticated shall be evidence in all courts of this State of the same weight and force as the originals thereof. For authenticating any such copy the commissioner shall be paid a fee of one dollar ($1.00).
From and after January first, one thousand nine hundred and thirty-nine, the expenses of enforcing the provisions of this act shall be paid out of the moneys received under chapter thirty-nine of Title 54 of the Revised Statutes for license fees.
If any of the provisions of this act or the application thereof to any person or circumstances be held invalid, such invalidity shall not affect the validity of other provisions or applications of this act, which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared separable.
This act shall be cited and referred to as "An act to regulate the retail sale of motor fuels."
(a) It is hereby declared that:
The methods and practices of the distribution and sale of motor fuels in this State have developed unfair methods of competition in the marketing of motor fuels; such conditions have produced waste harmful to the public and impaired the sale and distribution of motor fuel; that such conditions have caused unfair methods of competition in the industry resulting in the impairment of the supply of motor fuel needed by the general public and thereby affecting the general economic welfare of the people of this State.
(b) These conditions vitally concern the health, safety and general economic welfare of the people of this State.
(c) The distribution and sale of motor fuels within this State is hereby declared to be affected with a public interest. The provisions of this article are enacted in the exercise of the police powers of this State for the purpose of protecting the health, safety and general welfare of the people of this State.
This act shall be known and may be cited as the "Unfair Motor Fuels Practices Act."
The following words, terms and phrases, when used in this act, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:
(a) "Distributor" or "refiner" or "supplier" means and includes every person, wherever resident or located, who imports or causes to be imported into this State motor fuels for distribution or sale after the same shall reach this State, whether in the original packages or containers in which it is imported or otherwise; and also any person who produces, refines, manufactures, blends or compounds or causes to be produced, refined, manufactured, blended or compounded fuels and distributes or sells the same within this State.
(b) "Wholesaler" means any person who engages in the business of selling motor fuels to other persons who resell the said motor fuel or who place or have the said fuel placed into their containers or storage tanks for future consumption. The words "containers" or "storage tanks" as herein used shall not apply to vehicle service tanks used only to carry motor fuels for use in propelling only the vehicle carrying such tanks.
(c) "Director" means the Director of the Division of Taxation in the Department of the Treasury.
(d) "Branded Motor Fuel" shall be that motor fuel which a retail dealer sells using the trade name of the refiner or supplier.
(e) "Tank wagon price" is the invoice cost of motor fuel to the retailer.
It shall be unlawful and a violation of this act for any distributor, refiner, wholesaler or supplier, with intent to injure competitors or destroy or substantially lessen competition:
(a) To offer, directly or indirectly, a rebate, concession, allowance, discount or benefit, of any kind or nature whatsoever, in connection with the sale or distribution of motor fuel or other products marketed by the distributor, refiner, wholesaler or supplier except that this shall not apply to discounts uniformly applied for timely payments, quantity, or quality; or
(b) To lease or make a contract on condition, promise, agreement or understanding, where the effect of such lease, contract on condition, promise, agreement or understanding may be to substantially lessen competition that the lessee or purchaser thereof shall not use or deal in goods, wares, merchandise, supplies or other commodities of a competitor of such distributor, refiner, wholesaler or supplier except that this shall not apply to tanks or pumps if furnished by the distributor, refiner, wholesaler or supplier to be used in the distribution of its motor fuel; or
(c) To discriminate, either directly or indirectly, in tank wagon price between different retail dealers purchasing the same grade, quality or quantity of branded motor fuel, except to meet competition.
(d) Any distributor, refiner, wholesaler or supplier who violates the provisions of this section shall be guilty of a misdemeanor.
Any contract expressed or implied, made by any person in violation of any of the provisions of this act, is declared to be an illegal and void contract and no recovery thereon shall be had.
The director may adopt rules and regulations for the enforcement of this act.
(a) An action may be maintained in any court of equitable jurisdiction to prevent, restrain or enjoin a violation, or threatened violation, of any of the provisions of this act. Such an action may be instituted by any person injured by any violation or threatened violation of this act or by the Attorney-General, upon the request of the director. If in such action a violation or threatened violation of this act shall be established, the court shall enjoin and restrain, or otherwise prohibit, such violation or threatened violation. In such action it shall not be necessary that actual damages to the plaintiff be alleged or proved, but where alleged and proved, the plaintiff in said action, in addition to such injunctive relief and costs of suit, including reasonable attorney's fees, shall be entitled to recover from the defendant the actual damages sustained by such plaintiff.
(b) In the event that no injunctive relief is sought or required, any person injured by a violation of this act may maintain an action for damages and costs of suit in any court of competent jurisdiction.
(a) In addition to the provisions of this act, the director is empowered to suspend or revoke the license or any licenses of any person, licensed under the provisions of R.S. 54:39-1, et seq. No such license or licenses shall be suspended or revoked except upon notice to the licensee and after a hearing as prescribed by said director. The said director, upon a finding by him that the licensee has failed to comply with any provision of this act or any rule or regulation promulgated thereunder, shall, in the case of the first offender, suspend the license or licenses of the said licensee for a period of not less than five nor more than twenty consecutive business days, and, in the case of a second or plural offender, shall suspend said license or licenses for a period of not less than twenty consecutive business days nor more than twelve months, and, in the event said director finds the offender has been guilty of willful and persistent violations, he may revoke said person's license or licenses.
(b) Any person whose license or licenses have been so revoked may apply to the director at the expiration of one year for a reinstatement of his license or licenses. Such license or licenses may be reinstated by the director if it shall appear to the satisfaction of said director that the licensee will comply with the provisions of this act and the rules and regulations promulgated thereunder.
No person whose license has been suspended or revoked shall sell motor fuel or permit motor fuel to be sold during the period of such suspension or revocation on the premises occupied by him or upon other premises controlled by him or others or in any other manner or form whatever. Nor shall any disciplinary proceedings or action be barred or abated by the expiration, transfer, surrender, continuance, renewal or extension of any license issued under the provisions of R.S. 54:39-1 et seq.
Any determination by the director and any order of suspension or revocation of a license or licenses thereunder or refusal to reinstate a license or licenses after revocation shall be reviewable by the Superior Court by proceedings in lieu of the prerogative writs.
In order to effectuate the purposes of this act it shall be the duty of the director to carry out the enforcement provisions of this act. In accordance with the provisions of Title 11, Civil Service, of the Revised Statutes, the director may, within the limits of available appropriations, employ and fix the duties and compensation of such inspectors and other personnel necessary to carry out the provisions of this act.
All of the powers vested in the Director of the Division of Taxation by the provisions of R.S. 54:39-1, et seq., aforesaid, shall be available to the said director in the enforcement of this Unfair Motor Fuels Practices Act.
The provisions of this act shall be deemed to be severable and if for any reason any provision shall be determined to be unconstitutional or invalid, such determination shall not be held to affect any other provision hereof. And no such determination shall be deemed to invalidate or render ineffectual any of the provisions of R.S. 54:39-1 et seq.
This act shall take effect July first, one thousand nine hundred and fifty-four.
This act shall be known and may be cited as the "Unfair Cigarette Sales Act of 1952."
The following words, terms and phrases, when used in this act, shall have the meaning ascribed to them in this section except where the context clearly indicates a different meaning;
a. "Person" shall mean and include any individual, firm, association, company, partnership, corporation, joint stock company, club, agency, syndicate, municipal corporation or other political subdivision of this State, trust, receiver, trustee, fiduciary and conservator.
b. "Cigarettes" shall mean and include any roll for smoking, made wholly or in part of tobacco, or of any other substance or substances other than tobacco, irrespective of size, shape or flavoring, the wrapper or cover of which is made of paper or any other substance or material, excepting tobacco.
c. "Sale" shall mean any transfer for a consideration, exchange, barter, gift, offer for sale and distribution in any manner or by any means whatsoever.
d. "Wholesaler" shall include any person who:
(1) Purchases cigarettes directly from the manufacturer; or
(2) Purchases cigarettes from any other person who purchases from the manufacturer and who acquires such cigarettes solely for the purpose of bona fide resale to retail dealers or to other persons for the purposes of resale only; or
(3) Service retail outlets by the maintenance of an established place of business for the purchase of cigarettes, including, but not limited to, the maintenance of warehousing facilities for the storage and distribution of cigarettes.
Nothing contained herein shall prevent a person from qualifying in different capacities as both a "wholesaler" and "retailer" under the applicable provisions of this act.
e. "Retailer" shall mean and include any person who operates a store, stand, booth, or concession for the purpose of making sales of cigarettes at retail.
f. "Sell at retail," "sale at retail" and "retail sales" shall mean and include any transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or usual conduct of the seller's business, to the purchaser for consumption or use.
g. "Sell at wholesale," "sale at wholesale" and "wholesale sales" shall mean and include any bona fide transfer of title to cigarettes for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler's business, to a retailer for the purpose of resale.
h. "Basic cost of cigarettes" shall mean the invoice cost of cigarettes to the retailer or wholesaler, as the case may be, or the replacement cost of cigarettes, to the retailer or wholesaler, as the case may be, in the quantity last purchased, whichever is lower, less all trade discounts and the normal discount for cash afforded for prompt payment, but excluding any special, extraordinary, or anticipatory discounts for payment within a shorter period of time than the prompt payment date required for eligibility for the normal discount for cash, to which shall be added the full face value of any stamps which may be required by any cigarette tax act of this State and by ordinance of any municipality thereof, now in effect or hereafter enacted, if not already included by the manufacturer in his list price.
i. "Director" means the Director of the Division of Taxation, in the Department of the Treasury.
j. "Business day" shall mean any day other than a Sunday or a legal holiday.
a. For any retailer, wholesaler or distributor with intent to injure competitors or destroy or substantially lessen competition--
(1) to advertise, offer to sell, or sell, at retail or wholesale, cigarettes at less than cost to such retailer or wholesaler, as the case may be,
(2) to offer a rebate in price, to give a rebate in price, to offer a concession of any kind, or to give a concession of any kind or nature whatsoever in connection with the sale of cigarettes;
b. For any retailer, wholesaler or distributor--
(1) to induce or attempt to induce or to procure or attempt to procure the purchase of cigarettes at a price less than "cost to wholesaler" as defined in this act,
(2) to induce or attempt to induce or to procure or attempt to procure any rebate or concession of any kind or nature whatsoever in connection with the purchase of cigarettes,
(3) to sell, with or without a stamp, cigarette packages described in subsection b. of section 405 of P.L.1948, c.65 (C.54:40A-15);
c. Any retailer, wholesaler or distributor who violates the provisions of this section is a disorderly person and shall be prosecuted and punished by a fine of not more than $1,000 for each offense, in accordance with the provisions of Title 2C of the New Jersey Statutes.
d. Evidence of advertisement, offering to sell or sale of cigarettes by any retailer, wholesaler or distributor at less than cost to him, or evidence of any offer of a rebate in price or the giving of a rebate in price or an offer of a concession or the giving of a concession of any kind or nature whatsoever in connection with the sale of cigarettes or the inducing or attempt to induce or the procuring or the attempt to procure the purchase of cigarettes at a price less than cost to the wholesaler, retailer or distributor shall be prima facie evidence of intent to injure competitors and to destroy or substantially lessen competition.
a. The term "cost to the retailer" shall mean the "basic cost of cigarettes" to the retailer plus the "cost of doing business by the retailer," as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor (including salaries of executives and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising; provided, that any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, discounts ordinarily allowed upon purchases by a wholesaler shall, in determining "cost to the retailer," pursuant to this subsection, add the "cost of doing business by the wholesaler," as defined in section five of this act, to the "basic cost of cigarettes" to said retailer, as well as the "cost of doing business by the retailer."
b. In the absence of the filing with the director of satisfactory proof of a lesser or higher cost of doing business by the retailer making the sale, the "cost of doing business by the retailer" shall be presumed to be eight per centum (8%) of the "basic cost of cigarettes" to the retailer.
c. In the absence of the filing with the director of satisfactory proof of a lesser or higher cost of doing business, the "cost of doing business by the retailer," who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, the discounts ordinarily allowed upon purchases by a wholesaler, shall be presumed to be eight per centum (8%) of the sum of the "basic cost of cigarettes" and the "cost of doing business by the wholesaler."
a. The term "cost to the wholesaler" shall mean the "basic cost of cigarettes" to the wholesaler plus the "cost of doing business by the wholesaler," as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor costs (including salaries of executives and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising.
b. In the absence of the filing with the director of satisfactory proof of a lesser or higher cost of doing business by the wholesaler making the sale, the "cost of doing business by the wholesaler" shall be presumed to be 5.25% of the "basic cost of cigarettes" to the wholesaler, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost, in the absence of the filing with the director of satisfactory proof of a lesser or higher cost, shall be deemed to be 3/4 of 1% of the "basic cost of cigarettes" to the wholesaler.
In all advertisements, offers for sale or sales involving two or more items, at least one of which items is cigarettes, at a combined price, and in all advertisements, offers for sale, or sales, involving the giving of any gift or concession of any kind whatsoever (whether it be coupons or otherwise), the retailer's or wholesaler's combined selling price shall not be below the "cost to the retailer" or the "cost to the wholesaler," respectively, of the total costs of all articles, products, commodities, gifts and concessions included in such transactions.
When one wholesaler sells cigarettes to any other wholesaler, the former shall not be required to include in his selling price to the latter, "cost to the wholesaler," as provided by section five of this act, except that no such sale shall be made at a price less than the "basic cost of cigarettes" as defined in said section two of this act, but the latter wholesaler, upon resale to a retailer, shall be deemed to be the wholesaler governed by the provisions of said section five of this act.
The provisions of this act shall not apply to sales at retail or sales at wholesale made (a) as an isolated transaction and not in the usual course of business; (b) where cigarettes are advertised, offered for sale, or sold in bona fide clearance sales for the purpose of discontinuing trade in such cigarettes and said advertising, offer to sell, or sale shall state the reason thereof and the quantity of such cigarettes advertised, offered for sale, or to be sold; (c) where cigarettes are advertised, offered for sale, or sold as imperfect or damaged, and said advertising, offer to sell, or sale shall state the reason therefor and the quantity of such cigarettes advertised, offered for sale, or to be sold; (d) where cigarettes are sold upon the final liquidation of a business; or (e) where cigarettes are advertised, offered for sale, or sold by any fiduciary or other officer acting under the order or direction of any court.
a. Any retailer may advertise, offer to sell, or sell cigarettes at a price made in good faith to meet the price of a competitor who is selling the same article at cost to him as a retailer as prescribed in this act. Any wholesaler may advertise, offer to sell, or sell cigarettes at a price made in good faith to meet the price of a competitor who is rendering the same type of service and is selling the same article at cost to him as a wholesaler as prescribed in this act. The price of cigarettes advertised, offered for sale, or sold under the exceptions specified in section eight shall not be considered the price of a competitor and shall not be used as a basis for establishing prices below cost, nor shall the price established at a bankrupt sale be considered the price of a competitor within the purview of this section.
b. In the absence of proof of the "price of a competitor," under this section, the "lowest cost to the retailer," or the "lowest cost to the wholesaler," as the case may be, determined by any "cost survey," made pursuant to section thirteen of this act, may be deemed the "price of a competitor," within the meaning of this section.
Any contract, expressed or implied, made by any person in violation of any of the provisions of this act, is declared to be an illegal and void contract and no recovery thereon shall be had.
a. In determining "cost to the retailer" and "cost to the wholesaler" the Director or a court shall receive and consider as bearing on the bona fides of such cost, evidence tending to show that any person complained against under any of the provisions of this act purchased cigarettes, with respect to the sale of which complaint is made, at a fictitious price, or upon terms, or in such a manner, or under such invoices, as to conceal the true cost, discounts or terms of purchase, and shall also receive and consider as bearing on the bona fides of such cost, evidence of the normal, customary and prevailing terms and discounts in connection with other sales of a similar nature in the trade area or State.
b. Merchandise given gratis or payment made to a retailer or wholesaler by the manufacturer thereof for display, or advertising, or promotion purposes, or otherwise, shall not be considered in determining the cost of cigarettes to the retailer or wholesaler.
In establishing the cost of cigarettes to the retailer or wholesaler, the invoice cost of said cigarettes purchased at a forced, bankrupt, or closeout sale, or other sale outside of the ordinary channels of trade, may not be used as a basis for justifying a price lower than one based upon the replacement cost of the cigarettes to the retailer or wholesaler in the quantity last purchased, through the ordinary channels of trade.
Where a cost survey, pursuant to recognized statistical and cost accounting practices, has been made for the trading area in which the offense is committed, to establish the lowest "cost to the retailer" and the lowest "cost to the wholesaler," said cost survey shall be deemed competent evidence to be used in proving the cost to the person complained against within the provisions of this act.
The director may adopt rules and regulations for the enforcement of this act and he is empowered to and may undertake a "cost survey" as provided for in section thirteen of this act.
a. An action may be maintained in any court of equitable jurisdiction to prevent, restrain or enjoin a violation, or threatened violation, of any of the provisions of this act. Such an action may be instituted by any person injured by any violation or threatened violation of this act or by the Attorney-General, upon the request of the director. If in such action a violation or threatened violation of this act shall be established, the court shall enjoin and restrain, or otherwise prohibit, such violation or threatened violation. In such action it shall not be necessary that actual damages to the plaintiff be alleged or proved, but where alleged and proved, the plaintiff in said action, in addition to such injunctive relief and costs of suit, including reasonable attorney's fees, shall be entitled to recover from the defendant the actual damages sustained by such plaintiff.
b. In the event that no injunctive relief is sought or required, any person injured by a violation of this act may maintain an action for damages and costs of suit in any court of competent jurisdiction.
a. In addition to the provisions of section 3 and section 15 of this act, the director is empowered to suspend or revoke the license or any licenses of any person, licensed under the provisions of the "Cigarette Tax Act," P.L. 1948, c. 65 (C. 54:40A-1 et seq.). No such license or licenses shall be suspended or revoked except upon notice to the licensee and after a hearing as prescribed by said director. The said director, upon a finding by him that the licensee has failed to comply with any provision of this act or any rule or regulation promulgated thereunder, shall, in the case of the first offender, suspend the license or licenses of the said licensee for a period of not less than 10 nor more than 20 consecutive business days, in the case of a second offender, shall suspend the license or licenses for a period of not less than 30 consecutive business days nor more than 12 months, and, in the case of a third offender, shall suspend the license or licenses for a period of 12 months. If the director finds that an offender has been guilty of willful and persistent violations, he may revoke said person's license or licenses.
b. Any person whose license or licenses have been so revoked may apply to the director at the expiration of one year for a reinstatement of his license or licenses. Such license or licenses may be reinstated by the director if it shall appear to the satisfaction of said director that the licensee will comply with the provisions of this act and the rules and regulations promulgated thereunder.
No person whose license has been suspended or revoked shall sell cigarettes or permit cigarettes to be sold during the period of such suspension or revocation on the premises occupied, by him or upon other premises controlled by him or others or in any other manner or form whatever. Nor shall any disciplinary proceedings or action be barred or abated by the expiration, transfer, surrender, continuance, renewal or extension of any license issued under the provisions of the "Cigarette Tax Act."
Any determination by the director and any order of suspension or revocation of a license or licenses thereunder or refusal to reinstate a license or licenses after revocation shall be reviewable by the Superior Court by proceedings in lieu of the prerogative writs.
In order to effectuate the purposes of this act it shall be the duty of the director to carry out the enforcement provisions of this act. In accordance with the provisions of Title 11, Civil Service, of the Revised Statutes, the director may, within the limits of available appropriations, employ and fix the duties and compensation of such inspectors and other personnel necessary to carry out the provisions of this act.
All of the powers vested in the Director of the Division of Taxation by the provisions of the "Cigarette Tax Act," aforesaid, shall be available to the said Director in the enforcement of this Unfair Cigarette Sales Act.
The provisions of this act shall be deemed to be severable and if for any reason any provision shall be determined to be unconstitutional or invalid, such determination shall not be held to affect any other provision hereof. And no such determination shall be deemed to invalidate or render ineffectual any of the provisions of the "Cigarette Tax Act."
(b) The term "Attorney General" shall mean the Attorney General of the State of New Jersey or any person acting on his behalf;
(c) The term "merchandise" shall include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale;
(d) The term "person" as used in this act shall include any natural person or his 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;
(e) The term "sale" shall include any sale, rental or distribution, offer for sale, rental or distribution or attempt directly or indirectly to sell, rent or distribute;
(f) The term "senior citizen" means a natural person 60 years of age or older.
The Attorney General shall promulgate rules and regulations pursuant to section 4 of P.L.1960, c.39 (C.56:8-4). The Attorney General shall, by rule or regulation, establish, prescribe or change an annual registration fee or other charge on temporary help service firms to such extent as shall be necessary to defray all proper expenses incurred by his office in the performance of its duties under this section of this act but such registration fees or other charges shall not be fixed at a level that will raise amounts in excess of the amount estimated to be so required. In addition to any other appropriate requirements, the Attorney General shall, by rule or regulation require the following:
a. Each temporary help service firm operating within the State of New Jersey shall, prior to the effective date of this act or commencement of operation and annually thereafter, notify the Attorney General as to its appropriate name, if applicable; the trade name of its operation; its complete address, including street and street number of the building and place where its business is to be conducted; and the names and resident addresses of its officers. Each principal or owner shall provide an affidavit to the Attorney General setting forth whether such principal or owner has ever been convicted of a crime.
b. When a temporary help service firm utilizes any location other than its primary location for the recruiting of applicants, including mobile locations, it shall notify the Office of the Attorney General of such fact in writing or by telephone, and subsequently confirm in writing prior to the utilization of such facility.
c. Each temporary help service firm shall at the time of its initial notification to the Attorney General, and annually thereafter, post a bond of $1,000.00 with the Attorney General to secure compliance with P.L.1960, c. 39 (C. 56:8-1 et seq.), provided however that the Attorney General may waive such bond for any corporation or entity having a net worth of $100,000 or more.
d. Any temporary help service firm, as the term is used in P.L.1960, c.39 (C.56:8-1 et seq.), P.L.1989, c.331 (C.34:8-43 et seq.) or this section, which places individuals in work which requires them to obtain transportation services to get to, or return from, the site of the work shall be subject to the provisions of this subsection, except that the provisions of this subsection shall not apply if the firm requires the individuals to use their own vehicles or other transportation of their choice, for transportation to and from work and shall not apply if public transportation is available at the times needed for them to get to, and return from, the site of the work and the firm permits them to use the public transportation. If the firm provides transportation services with any vehicle owned, leased or otherwise under the control of the firm, the firm shall be responsible for compliance with the provisions of R.S.48:4-3 et seq. and any other applicable law or regulation regarding the vehicle and its use and shall keep records in the manner required by regulations adopted by the Attorney General in consultation with the New Jersey Motor Vehicle Commission. If the firm does not provide transportation services, but refers, directs or requires the individuals to use any other provider or providers of transportation services, or provides no practical alternative to the use of services of the provider or providers, the firm shall obtain, and keep on file, documentation that each provider is in compliance with the provisions of R.S.48:4-3 et seq. and any other applicable law or regulation in the manner required by regulations adopted by the Attorney General in consultation with the New Jersey Motor Vehicle Commission. The firm may not require the individuals to use transportation provided by the firm or another provider of transportation services if they have other transportation available. A failure to comply with the provisions of this subsection, including all record-keeping requirements of this subsection, shall be regarded as an unlawful practice and a violation of this section, of P.L.1960, c.39 (C.56:8-1 et seq.) and of R.S.48:4-3 et seq. and a temporary help service firm found to be in violation shall be subject to penalties provided for violations of those acts, and shall be jointly and severally liable with the provider of transportation services for any injury which occurs to the individuals while being transported in a vehicle owned, leased or otherwise under the control of the provider. In the case of noncompliance with the provisions of this section on more than one occasion, the Attorney General may suspend or revoke the firm's registration as a temporary help service firm for the purposes of this section, P.L.1960, c.39 (C.56:8-1 et seq.) and P.L.1989, c.331 (C.34:8-43 et seq.).
It shall be an unlawful practice for any person to operate under a name or in a manner which wrongfully implies that such person is a branch of or associated with any department or agency of the Federal Government or of this State or any of its political subdivisions, or use any seal, insignia, envelope or other format which simulates that of any governmental department or agency.
The advertisement of merchandise as part of a plan or scheme not to sell the item or service so advertised or not to sell the same at the advertised price is an unlawful practice and a violation of the act to which this act is a supplement.
The notification to any person by any means, as a part of an advertising plan or scheme, that he has won a prize and requiring him to do any act, purchase any other item or submit to a sales promotion effort is an unlawful practice and a violation of the act to which this act is a supplement.
It shall be an unlawful practice for a person to advertise merchandise for sale accompanied by a picture or illustration of the merchandise in an assembled condition when it is intended to be sold unassembled, unless the advertisement bears the notation that the merchandise is to be sold unassembled.
It shall be an unlawful practice for any person to sell, attempt to sell or offer for sale any merchandise at retail unless the total selling price of such merchandise is plainly marked by a stamp, tag, label or sign either affixed to the merchandise or located at the point where the merchandise is offered for sale.
For the purposes of this act, each day for which the total selling price is not marked in accordance with the provisions of this act for each group of identical merchandise shall constitute a separate violation of this act and the act of which this act is a supplement.
It shall be an unlawful practice for any person to advertise merchandise for sale as a "going out of business sale" or in terms substantially similar to "going out of business sale" for a period in excess of 90 days or to advertise more than one such sale in 360 days. The 360-day period shall commence on the first day of such sale. For any person in violation of this act, each day in violation shall constitute an additional, separate and distinct violation.
It shall be an unlawful practice for any person to misrepresent on any menu or other posted information, including advertisements, the identity of any food or food products to any of the patrons or customers of eating establishments including but not limited to restaurants, hotels, cafes, lunch counters or other places where food is regularly prepared and sold for consumption on or off the premises. This section shall not apply to any section or sections of a retail food or grocery store which do not provide facilities for on the premises consumption of food or food products.
The identity of said food or food products shall be deemed misrepresented if:
a. Its description is false or misleading in any particular;
b. Its description omits information which by its omission renders the description false or misleading in any particular;
c. It is served, sold, or distributed under the name of another food or food product;
d. It purports to be or is represented as a food or food product for which a definition of identity and standard of quality has been established by custom and usage unless it conforms to such definition and standard.
Any person violating the provisions of the within act shall be liable for a refund of all moneys acquired by means of any practice declared herein to be unlawful.
The refund of moneys herein provided for may be recovered in a private action or by such persons authorized to initiate actions pursuant to P.L.1975, c. 376 (C. 40:23-6.47 et seq.).
The rights, remedies and prohibitions accorded by the provisions of this act are hereby declared to be in addition to and cumulative of any other right, remedy or prohibition accorded by the common law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.
This act shall be known and may be cited as the "Refund Policy Disclosure Act."
As used in this act:
a. "Merchandise" means any objects, wares, goods, commodities, or any other tangible items offered, directly or indirectly, to the public for sale.
b. "Proof of purchase" means a receipt, bill, credit card slip, or any other form of evidence which constitutes reasonable proof of purchase.
c. "Retail mercantile establishment" means any place of business where merchandise is exposed or offered for sale at retail to members of the consuming public.
Every retail mercantile establishment shall conspicuously post its refund policy as to all merchandise on a sign in at least one of the following locations:
a. Attached to the item itself, or
b. Affixed to each cash register or point of sale, or
c. So situated as to be clearly visible to the buyer from the cash register, or
d. Posted at each store entrance used by the public.
Any sign required by section 3 of this act to be posted in retail mercantile establishments shall state whether or not it is a policy of such establishment to give refunds and, if so, under what conditions, including, but not limited to, whether a refund will be given:
a. On merchandise which has been advertised as "sale" merchandise or marked "as is" ;
b. On merchandise for which no proof of purchase exists;
c. At any time or not beyond a point in time specified; or
d. In cash, or as credit or store credit only.
A retail mercantile establishment violating any provision of this act shall be liable to the buyer, for up to 20 days from the date of purchase, for a cash refund or a credit, at the buyer's option, provided that the merchandise has not been used or damaged by the buyer.
The provisions of section 3 shall not apply to retail mercantile establishments or departments that have a policy of providing, for a period of not less than 20 days after the date of purchase, a cash refund for a cash purchase or providing a cash refund or issuing a credit for a credit purchase, which credit is applied to the account on which the purchase was debited, in connection with the return of its unused and undamaged merchandise.
This act shall not apply to sales of motor vehicles, or perishables and incidentals to such perishables, or to custom ordered, custom finished merchandise, or merchandise not returnable by law.
a. An individual action for a violation of this act may be brought in a municipal court in whose jurisdiction the sale was made.
b. In addition to the penalties provided for in section 5, a retail mercantile establishment that fails to comply with the requirements of this act and, in practice, does not have a policy as provided in section 6 and has refused to accept the return of the merchandise shall be liable to the consumer for:
(1) A cash refund or a credit, at the buyer's option, provided the merchandise has not been used or damaged, and
(2) Damages of not more than $200.00.
It shall be an unlawful practice for a person in connection with a sale of merchandise to require or request the consumer to sign any document as evidence or acknowledgment of the sales transaction, of the existence of the sales contract, or of the discharge by the person of any obligation to the consumer specified in or arising out of the transaction or contract, unless he shall at the same time provide the consumer with a full and accurate copy of the document so presented for signature but this section shall not be applicable to orders placed through the mail by the consumer for merchandise.
It shall be an unlawful practice for any person, other than a charitable or nonprofit organization, engaged in the business of selling used goods, wares or merchandise for profit to solicit, by telephone, by the placement of collection boxes or otherwise, donations of used goods, wares or merchandise for resale for profit, without first disclosing to the person solicited the profit-making nature of the business, or if profits are to be shared with a charitable or nonprofit organization, the portion of profits which that organization will receive. For the purposes of this act, "engaged in the business of selling used goods, wares or merchandise" means anyone who conducts sales more than five times a year.
b. A person engaged in the business of advertising shall be immune from liability under this section for receiving, accepting or publishing any advertisement, irrespective of the medium or format, submitted or developed for any person conducting or transacting business under an assumed name.
a. any non-prescription drug, infant formula or baby food, which is subject to expiration dating requirements issued by the federal Food and Drug Administration, if the date of expiration has passed; and
b. any infant formula or baby food which is subject to expiration dating requirements issued by the federal Food and Drug Administration, any non-prescription drug, or any cosmetic as defined in subsection h. of R.S.24:1-1, unless that person presents, within five days of the request, a written record of the purchase of that product, which record or invoice shall specifically identify the product being sold by the product name, quantity purchased, that quantity being denoted by item, box, crate, pallet or otherwise, and date of purchase and shall contain the complete name or business name, address and phone number of the person from whom that product was purchased. The provisions of this subsection shall not apply to a transaction involving less than $50 of product between persons selling that product in the same general market area on the same day.
"Advertised" means any attempt, other than by use of a price tag, catalogue or any offering for sale of a motor vehicle, to directly or indirectly induce the purchase or rental of merchandise at retail, appearing in any newspaper, magazine, periodical, circular, in-store or out-of-store sign or other written matter placed before the consuming public, or in any radio or television broadcast.
"Merchandise" means any objects, wares, merchandise, commodities, services or anything offered directly or indirectly to the public for sale or rental at retail.
"Raincheck" means a written statement issued by a retail mercantile establishment allowing the purchase of designated merchandise at a previously advertised price.
"Retail mercantile establishment" means any place of business where merchandise is exposed or offered for sale at retail to members of the consuming public.
a. Affixed to a cash register or location of the point of sale;
b. So situated as to be clearly visible to the buyer;
c. Posted at each store entrance used by the public;
d. At the location where the merchandise was offered for sale;
e. In an advertisement for merchandise; or
f. Printed on the receipt of sale.
a. Honor or satisfy that raincheck within 60 days of issuance, unless an extension of such time period is agreed to by the holder of the raincheck, provided that if after a good faith effort a retail mercantile establishment cannot procure for the holder of the raincheck the advertised merchandise within the 60-day period, the retail mercantile establishment may offer the holder of the raincheck a different item of merchandise of substantially the same kind, quality and price of the original advertised merchandise; and
b. For all merchandise with an advertised price greater than $15 per unit, give written or telephonic notice to the holder of the raincheck when the merchandise is available and inform the holder of the raincheck that the advertised merchandise will be held for a period of no less than 10 days from the date of notification or to the end of the 60-day period for which the raincheck is valid, whichever is longer; and
c. Offer a raincheck to all customers who are unable, due to the unavailability of the merchandise, to purchase the advertised merchandise during the period of time that the merchandise has been advertised as available for sale.
b. A person in violation of subsection a. of this section shall be subject to a civil penalty of up to $2,500 for a first offense and up to $5,000 for a second offense, to be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction of proceedings for the enforcement of the penalty provided by this section.
A third violation of subsection a. of this section is an unlawful practice under P.L.1960, c.39 (C.56:8-1 et seq.), and for the purposes of this subsection shall be considered a first offense under P.L.1960, c.39 (C.56:8-1 et seq.).
A fourth or subsequent violation of subsection a. of this section is an unlawful practice under P.L.1960, c.39 (C.56:8-1 et seq.), and for the purposes of this subsection shall be considered a subsequent offense under P.L.1960, c.39 (C.56:8-1 et seq.).
c. The provisions of this section shall not apply to:
(1) any person selling goods or services at an airport, provided that at least two persons selling food at each terminal within the airport accept cash as payment;
(2) any parking facility owned by a municipality, regardless of whether the facility is operated by the municipality, a parking authority, or an independent third party;
(3) any parking facility that accepts mobile payment, provided that the facility does not accept payment by any means other than mobile payment;
(4) any company in the business of renting motor vehicles, provided that the company accepts a cashier's check or a certified check when offered by a buyer as payment; and
(5) any sports or entertainment venue with a seating capacity of 10,000 or more irrespective of the event held at the venue.
d. As used in this section, "at retail" shall include any retail transaction conducted in person and exclude any telephone, mail, or Internet-based transaction.
When it shall appear to the Attorney General that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this act, or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any such practice, he may:
(a) Require such person to file on such forms as are prescribed a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning the sale or advertisement of merchandise by such person, and such other data and information as he may deem necessary;
(b) Examine under oath any person in connection with the sale or advertisement of any merchandise;
(c) Examine any merchandise or sample thereof, record, book, document, account or paper as he may deem necessary; and
(d) Pursuant to an order of the Superior Court impound any record, book, document, account, paper, or sample of merchandise that is produced in accordance with this act, and retain the same in his possession until the completion of all proceedings in connection with which the same are produced.
Upon receiving evidence of any violation of the provisions of chapter 39 of the laws of 1960, the Attorney General, or his designee, is empowered to hold hearings upon said violation and upon finding the violation to have been committed, to assess a penalty against the person alleged to have committed such violation in such amount within the limits of chapter 39 of the laws of 1966 as the Attorney General deems proper under the circumstances. Any such amounts collected by the Attorney General shall be paid forthwith into the State Treasury for the general purposes of the State.
b. In an action brought by the Attorney General, any commercial practice that violates State or federal law is conclusively presumed to be an unlawful practice under section 2 of P.L.1960, c.39 (C.56:8-2). Nothing in this subsection shall be construed to restrict the scope of unlawful practices under Section 2 of P.L.1960, c.39 (C.56:8-2) in actions not brought by the Attorney General.
Service by the Attorney General of any notice requiring a person to file a statement or report, or of a subpoena upon any person, shall be made personally within this State, but if such cannot be obtained, substituted service therefor may be made in the following manner:
(a) Personal service thereof without this State; or
(b) The mailing thereof by registered mail to the last known place of business, residence or abode, within or without this State of such person for whom the same is intended; or
(c) As to any person other than a natural person, in accordance with the Rules Governing the Courts of the State of New Jersey pertaining to service of process, provided, however, that service shall be made by the Attorney General; or
(d) Such service as the Superior Court may direct in lieu of personal service within this State.
If any person shall fail or refuse to file any statement or report, or obey any subpoena issued by the Attorney General, the Attorney General may apply to the Superior Court and obtain an order:
(a) Adjudging such person in contempt of court;
(b) Granting injunctive relief without notice restraining the sale or advertisement of any merchandise by such persons;
(c) Vacating, annulling, or suspending the corporate charter of a corporation created by or under the laws of this State or revoking or suspending the certificate of authority to do business in this State of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly unlawful practice; and
(d) Granting such other relief as may be required; until the person files the statement or report, or obeys the subpoena.
If any person shall refuse to testify or produce any book, paper or other document in any proceeding under this act for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him, convict him of a crime, or subject him to a penalty or forfeiture, and shall, notwithstanding, be directed to testify or to produce such book, paper or document, he shall comply with such direction.
A person who is entitled by law to, and does assert such privilege, and who complies with such direction shall not thereafter be prosecuted or subjected to any penalty or forfeiture in any criminal proceeding which arises out of and relates to the subject matter of the proceeding. No person so testifying shall be exempt from prosecution or punishment for perjury or false swearing committed by him in giving such testimony.
Whenever it shall appear to the Attorney General that a person has engaged in, is engaging in or is about to engage in any practice declared to be unlawful by this act he may seek and obtain in a summary action in the Superior Court an injunction prohibiting such person from continuing such practices or engaging therein or doing any acts in furtherance thereof or an order appointing a receiver, or both. In addition to any other remedy authorized herein the court may enjoin an individual from managing or owning any business organization within this State, and from serving as an officer, director, trustee, member of any executive board or similar governing body, principal, manager, stockholder owning 10% or more of the aggregate outstanding capital stock of all classes of any corporation doing business in this State, vacate or annul the charter of a corporation created by or under the laws of this State, revoke the certificate of authority to do business in this State of a foreign corporation, and revoke any other licenses, permits or certificates issued pursuant to law to such person whenever such management, ownership, activity, charter authority license, permit or certificate have been or may be used to further such unlawful practice. The court may make such orders or judgments as may be necessary to prevent the use or employment by a person of any prohibited practices, or which may be necessary to restore to any person in interest any moneys or property, real or personal which may have been acquired by means of any practice herein declared to be unlawful.
When a receiver is appointed by the court pursuant to this act, he shall have the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, derived by means of any practice declared to be illegal and prohibited by this act, including property with which such property has been mingled, if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use or employment of any unlawful practices and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. In the case of a corporation, partnership or business entity the receiver shall settle the estate and distribute the assets under the direction of the court, and he shall have all the powers and duties conferred upon receivers by the provisions of Title 14, Corporations, General, so far as the provisions thereof are applicable. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
Subject to an order of the court terminating the business affairs of any person after receivership proceedings held pursuant to this act, the provisions of this act shall not bar any claim against any person who has acquired any moneys or property, real or personal, by means of any practice herein declared to be unlawful.
In any action or proceeding brought under the provisions of this act, the Attorney General shall be entitled to recover costs for the use of this State.
If any provision of this law or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the law which can be given effect without the invalid provision or application, and to this end the provisions of this law are severable.
In any action brought pursuant to this section to enforce any order of the Attorney General or his designee the court may, without regard to jurisdictional limitations, restore to any person in interest any moneys or property, real or personal, which have been acquired by any means declared to be unlawful under this act, except that the court shall restore to any senior citizen twice the amount or value, as the case may be, of any moneys or property, real or personal, which have been acquired by any means declared to be unlawful under P.L.1960, c.39 (C.56:8-1 et seq.).
In the event that any person found to have violated any provision of this act fails to pay a civil penalty assessed by the court, the court may issue, upon application by the Attorney General, a warrant for the arrest of such person for the purpose of bringing him before the court to satisfy the civil penalty imposed.
A person who fails to restore any moneys or property, real or personal, found to have been acquired unlawfully from a senior citizen shall be subject to punishment for criminal contempt pursuant to N.J.S.2C:29-9, which is a crime of the fourth degree.
As used in this section, "court of appropriate jurisdiction" includes a municipal court in the municipality where the offense was committed or where the defendant may be found and a central municipal court in the county where the offense was committed or where the defendant may be found. However, the term shall not include a municipal court in a city of the first class if the Chief Justice of the Supreme Court approves a recommendation submitted by the assignment judge of the vicinage in which the court is located to exempt that court from such jurisdiction.
All moneys collected pursuant to this section shall be paid to the officer lawfully charged with the custody of the general funds of the county or municipality.
"Fund" means the Consumer Fraud Education Fund created pursuant to section 5 of P.L.1999, c.129 (C.56:8-14.6).
"Pecuniary injury" shall include, but not be limited to: loss or encumbrance of a primary residence, principal employment, or source of income; loss of property set aside for retirement or for personal or family care and maintenance; loss of payments received under a pension or retirement plan or a government benefits program; or assets essential to the health or welfare of the senior citizen or person with a disability.
"Person with a disability" means a natural person who has a physical disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or deaf-blindness or hearing impairment, inability to speak or speech impairment, or physical reliance on a service animal, wheelchair, or other remedial appliance or device, or from any mental, psychological, or developmental disability resulting from anatomical, psychological, physiological, or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.
"Senior citizen" means a natural person 60 years of age or older.
(1) A penalty of not more than $10,000 if the violation caused the victim of the violation pecuniary injury and the person knew or should have known that the victim is a senior citizen or a person with a disability; or
(2) A penalty of not more than $30,000 if the violation was part of a scheme, plan, or course of conduct directed at senior citizens or persons with disabilities in connection with sales or advertisements.
The requirement of actual or constructive knowledge is applicable to the additional penalty provided under paragraph (1) of this subsection only, and is not required to prove a violation of any other provision of P.L. 1960, c. 39 (C.56:8-1 et seq.).
b. The civil penalties authorized and collected under subsection a. of this section shall be paid to the State Treasurer and credited to the Consumer Fraud Education Fund created pursuant to section 5 of P.L.1999, c.129 (C.56:8-14.6).
a. The preparation of educational materials regarding consumer protection laws and consumer rights that are of particular interest to senior citizens and persons with disabilities and distribution of those materials to the appropriate State and county agencies for dissemination to senior citizens, persons with disabilities and the public; and
b. The underwriting of educational seminars and other forms of educational projects for the benefit of senior citizens and persons with disabilities.
b. The Division of Consumer Affairs may draw upon the fund to effectuate the purposes of section 4 of P.L.1999, c.129 (C.56:8-14.5) and to pay reasonable and necessary administrative expenses incurred in implementing the provisions of this act to the extent that moneys are available.
In assessing any penalty under this act and the act hereby amended and supplemented, the Attorney General or his designee may provide for the remission of all or any part of such penalty conditioned upon prompt compliance with the requirements thereof and any order entered thereunder.
A person who fails to restore moneys or property found to have been acquired unlawfully from a senior citizen shall be subject to punishment for criminal contempt pursuant to N.J.S.2C:29-9, which is a crime of the fourth degree.
Where the Attorney General or his designee, after a hearing as provided in P.L.1967, c. 97, finds that an unlawful practice has been or may be committed, he may order the person committing such unlawful practice to cease and desist or refrain from committing said practice in the future. When it shall appear to the Attorney General that a person against whom a cease and desist order has been entered has violated said order, the Attorney General may initiate a summary proceeding in the Superior Court for the violation thereof. Any person found to have violated a cease and desist order shall pay to the State of New Jersey civil penalties in the amount of not more than $25,000.00 for each violation of said order. In the event that any person fails to pay a civil penalty assessed by the court for violation of a cease and desist order, the court assessing the unpaid penalty is authorized, upon application of the Attorney General, to grant any relief which may be obtained under any statute or court rule governing the collection and enforcement of penalties.
a. Had no actual knowledge of the false, misleading or deceptive character of the information; b. Made a reasonable and diligent inquiry to ascertain whether the information is of a false, misleading, or deceptive character. For purposes of this section, communications by a real estate broker, broker-salesperson, or salesperson which shall be deemed to satisfy the requirements of a "reasonable and diligent inquiry" include, but shall not be limited to, communications which disclose information:
(1) provided in a report or upon a representation by a person, licensed or certified by the State of New Jersey, including, but not limited to, an appraiser, home inspector, plumber or electrical contractor, or an unlicensed home inspector until December 30, 2005, of a particular physical condition pertaining to the real estate derived from inspection of the real estate by that person;
(2) provided in a report or upon a representation by any governmental official or employee, if the particular information of a physical condition is likely to be within the knowledge of that governmental official or employee; or
(3) that the real estate broker, broker-salesperson, or salesperson obtained from the seller in a property condition disclosure statement, which form shall comply with regulations promulgated by the director in consultation with the New Jersey Real Estate Commission, provided that the real estate broker, broker-salesperson, or salesperson informed the buyer that the seller is the source of the information and that, prior to making that communication to the buyer, the real estate broker, broker-salesperson, or salesperson visually inspected the property with reasonable diligence to ascertain the accuracy of the information disclosed by the seller. In addition to any other question as the director shall deem necessary, the property condition disclosure statement shall include a question specifically concerning the presence of lead plumbing, including but not limited to any service line, piping materials, fixtures, and solder, in the residential property; and
c. If a property condition disclosure statement contained information indicating the seller's awareness of water leakage, accumulation or dampness, the presence of mold or other similar natural substance, or repairs or other attempts to control any water or dampness problem on the real property, the real estate broker, broker-salesperson, or salesperson referred the buyer of the real property to the "Mold Guidelines for New Jersey Residents" pamphlet on the Department of Health Internet website, or other pamphlet or guidelines deemed appropriate by the director and, if requested by the buyer, provided the buyer with a physical copy of the pamphlet.
Nothing in this section shall be interpreted to affect the obligations of a real estate broker, broker-salesperson, or salesperson pursuant to the "New Residential Construction Off-Site Conditions Disclosure Act," P.L.1995, c.253 (C.46:3C-1 et seq.), or any other law or regulation.
b. The Division of Consumer Affairs, in consultation with the Department of Environmental Protection, Department of Community Affairs and New Jersey Real Estate Commission, in addition to any other question as the director deems necessary, shall add the following specific questions and information to the property condition disclosure statement concerning certain flood risks to a property being sold. The division shall revise the regulations promulgated pursuant to subsection c. of section 1 of P.L.1999, c.76 (C.56:8-19.1) with which the form of the property condition disclosure statement must comply to incorporate the requirements of this subsection, but in advance of such rulemaking the division shall make the revised form which includes the specific questions and information required by this subsection and subsection c. of this section, if applicable, available for use by publishing the revised form on the division's website. A seller of real property shall be required to use the revised form beginning on the 90th day following its publication on the division's website. The additions to the property condition disclosure statement shall contain the heading "Flood Risk" and contain questions, and space for sellers to answer yes, no, or unknown. If a seller answers yes to any question, the disclosure statement shall require the seller to explain the answer. The disclosure statement shall contain the following questions and explanatory language:
(1) Is any or all of the property located wholly or partially in the Special Flood Hazard Area ("100-year floodplain") according to FEMA's current flood insurance rate maps for your area?
(2) Is any or all of the property located wholly or partially in a Moderate Risk Flood Hazard Area ("500-year floodplain") according to FEMA's current flood insurance rate maps for your area?
(3) Is the property subject to any requirement under federal law to obtain and maintain flood insurance on the property? Properties in the special flood hazard area, also known as high-risk flood zones, on FEMA's flood insurance rate maps with mortgages from federally regulated or insured lenders are required to obtain and maintain flood insurance. Even when not required, FEMA encourages property owners in high-risk, moderate-risk, and low-risk flood zones to purchase flood insurance that covers the structure and the personal property within the structure. Also note that properties in coastal and riverine areas may be subject to increased risk of flooding over time due to projected sea level rise and increased extreme storms caused by climate change which may not be reflected in current flood insurance rate maps.
(4) Have you ever received assistance, or are you aware of any previous owners receiving assistance, from FEMA, the U.S. Small Business Administration, or any other federal disaster flood assistance for flood damage to the property? For properties that have received federal disaster assistance, the requirement to obtain flood insurance passes down to all future owners. Failure to obtain and maintain flood insurance can result in an individual being ineligible for future assistance.
(5) Is there flood insurance on the property? A standard homeowner's insurance policy typically does not cover flood damage. You are encouraged to examine your policy to determine whether you are covered.
(6) Is there a FEMA elevation certificate available for the property? If so, the elevation certificate must be shared with the buyer. An elevation certificate is a FEMA form, completed by a licensed surveyor or engineer. The form provides critical information about the flood risk of the property and is used by flood insurance providers under the National Flood Insurance Program to help determine the appropriate flood insurance rating for the property. A buyer may be able to use the elevation certificate from a previous owner for their flood insurance policy.
(7) Have you ever filed a claim for flood damage to the property with any insurance provider, including the National Flood Insurance Program? If the claim was approved, what was the amount received?
(8) Has the property experienced any flood damage, water seepage, or pooled water due to a natural flood event, such as heavy rainfall, costal storm surge, tidal inundation, or river overflow? If so, how many times?
c. The Division of Consumer Affairs, in consultation with the Department of Environmental Protection, shall include in the disclosure requirements and form to be distributed to purchasers of real property before the purchaser becomes obligated under any contract for the purchase of the property, that Statewide flood risks are increasing and that the purchaser may review these risks by going to the website that the Department of Environmental Protection shall create and ensure is managed with current and scientifically supported information, and linked to and published on the website of the Department of Community Affairs. The Department of Environmental Protection's website shall at a minimum include information that helps property owners provide the disclosures enumerated in this statute. The website shall include access to a user-friendly look-up tool searchable by mailing address that identifies if a property is in the FEMA Special or Moderate Risk Flood Hazard Area. The requirement to disclose if the property is in the FEMA Special or Moderate Risk Flood Hazard Area, beyond actual knowledge, shall take effect after the website look-up tool is in place.
This act shall be known and may be cited as the "Unit Price Disclosure Act" .
As used in this act: "Consumer commodity" means any merchandise, wares, article, product, comestible or commodity of any kind or class produced, distributed or offered for retail sale for consumption by individuals other than at the retail establishment, or for use by individuals for purposes of personal care or in the performance of services rendered within the household, and which is consumed or expended in the course of such use.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Price per measure" means the retail price of a consumer commodity expressed per such unit of weight, standard measure or standard count as the director shall designate by regulation.
"Person" means any natural person, partnership, corporation or other organization engaged in the sale, display or offering for sale of consumer commodities at retail from one or more retail establishments whose combined total floor area exceeds 4,000 square feet or whose combined total annual gross receipts from the sale of consumer commodities in the preceding year exceed $2 million.
It shall be an unlawful practice for any person to expose or offer for sale at retail any consumer commodities, except as specifically exempted by the director in accordance with section 4 of this act, unless said consumer commodities shall be plainly marked by a stamp, tag, label or sign at the point of display with the price per measure of such consumer commodity.
The Director of the Division of Consumer Affairs in the Department of Law and Public Safety may by regulation, and in each instance after public hearing, provide for the manner in which price per measure shall be calculated and displayed, establish and modify a list of commodities exempt from the provisions of this act, and define the classes of retail establishment exempted from the requirements of this act; provided that in no case shall persons with annual gross receipts from the sale of consumer commodities in the preceding tax year of more than $2 million from all retail establishments with a total floor area of more than 4,000 square feet each be exempt from the provisions of this act, and provided further that the director, in promulgating unit-pricing regulations, shall not exempt consumer commodities or retail establishments from the provisions of this act except where compliance therewith would be impractical, unreasonably burdensome or unnecessary for adequate protection of consumers. The Director of the Division of Consumer Affairs shall maintain at all times and make public a clearly defined list of specific commodities exempt from the provisions of this act and of all classes of retail commodities and all classes of retail establishments required to be in compliance with this act and any regulations issued hereunder.
The director, pursuant to the provisions of the Administrative Procedures Act, P.L.1968, c. 410 (C. 52:14B-1 et seq.), shall promulgate such other regulations as shall be necessary in his discretion to effectuate the purposes of this act.
a. "Director" means the director of the Division of Consumer Affairs in the Department of Law and Public Safety.
b. "Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
c. "Person" means corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals.
d. "Place of entertainment" means any privately or publicly owned and operated entertainment facility within this State, such as a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held and for which an entry fee is charged.
e. "Ticket" means any physical, electronic, or other evidence that the possessor of that evidence has a license to enter a place of entertainment for one or more events at the place of entertainment, at the date and time or dates and times specified on the ticket, subject to the terms and conditions specified by the ticket issuer.
f. "Ticket broker" means any person situated in and operating in this State who is involved in the business of reselling tickets of admission to places of entertainment and who charges a premium in excess of the price, plus taxes, printed on the tickets. For the purposes of P.L.1983, c.135 (C.56:8-26 et seq.), the term "ticket broker" shall not include an individual not regularly engaged in the business of reselling tickets, who resells less than 30 tickets during any one-year period, and who obtained the tickets for his own use, or the use of his family, friends, or acquaintances.
g. "Resale" means a sale by a person other than the owner or operator of a place of entertainment or of the entertainment event or an agent of any such person. Resale shall not include the first sale or distribution of a ticket by a ticket issuer.
h. "Resell" means to offer for resale or to consummate a resale.
i. "Digger" means a person temporarily hired for the purpose of securing tickets by intimidating a purchaser waiting in line to procure event tickets.
j. "Reseller" means any person, other than a ticket issuer or ticket resale website, who resells a ticket.
k. "Ticket issuer" means any person, other than a ticket resale website or reseller, that makes tickets available, directly or indirectly, to the general public, and may include, as applicable, the owner or operator of a place of entertainment, the producer or promoter of an event, a sports team or sports league of teams, a theater company, musical group or similar participant in an event, or an agent for any such person.
l. "Ticket resale website" means an online platform that provides a forum for the buying and selling of tickets, but does not include a ticket broker, ticket issuer, reseller, or place of entertainment.
a. Owning, operating or maintaining a permanent office, branch office, bureau, agency, or other place of business, not including a post office box, for the purpose of reselling tickets;
b. Obtaining a certificate of registration to resell or engage in the business of reselling tickets from the director;
c. Listing the ticket broker's registration number in any form of advertisement or solicitation in which tickets are being sold for the purpose of purchase by the general public for events in this State;
d. Maintaining records of ticket sales, deposits and refunds for a period of not less than two years from the time of any of these transactions;
e. Disclosing to the purchaser, by means of verbal description or a map, the location of the seats represented by the tickets;
f. Disclosing to the purchaser the cancellation policy of that broker;
g. Disclosing that a service charge is added by the ticket broker to the stated price on the tickets and is included by the broker in any advertisement or promotion for an event;
h. Disclosing to the purchaser, whenever applicable, that the ticket broker has a guarantee policy. If a ticket broker guarantees delivery of tickets to a purchaser and fails to deliver the tickets, the ticket broker shall provide a full refund for the cost of the tickets;
i. Disclosing to the purchaser of tickets when he is utilizing a tentative order policy, popularly known as a "try and get." When a ticket broker fails to obtain tickets on a "try and get" basis, the broker shall refund any deposit made by a purchaser of those tickets within a reasonable time, as shall be determined by the director;
j. When guaranteeing tickets in conjunction with providing a tour package, a ticket broker who fails to provide a purchaser with those tickets shall refund fully the price of the tour package and tickets; and
k. Providing to a purchaser of tickets who cancels an order a full refund for the cost of the tickets less shipping charges, if those tickets are returned to the broker within three days after receipt; provided, that when tickets are purchased within seven days of an event, a refund shall be given only if the tickets are returned within one day of receipt; and further provided, that no refund shall be given on any tickets purchased within six days of an event unless the ticket broker is able to resell the tickets.
b. Every applicant for a certificate of registration to engage in the business of reselling tickets as a ticket broker shall file a written application with the division on the form furnished by, and consistent with, the regulations prescribed by the director.
c. Each application shall be accompanied by a fee which shall be determined by the director and shall not exceed $500, and a description of the location where the applicant proposes to conduct his business.
b. The certificate of registration granted may be renewed for a period of two years upon the payment of a renewal fee which shall be determined by the director and shall not exceed $500.
c. No certificate of registration shall be transferred or assigned without the approval of the director. Any request for a change in the location of the premises operated by any registrant situated in and operating in this State shall be submitted to the director in writing no less than 30 days prior to that relocation. The certificate of registration shall run to January 1 in the second year next ensuing the date thereof unless sooner revoked by the director.
Each bond shall be conditioned on the promise that the applicant, his agents or employees will not be guilty of fraud or extortion, will not violate any of the provisions of this act, will comply with the rules and regulations promulgated by the director, and will pay all damages occasioned to any person by reason of misstatement, misrepresentation, fraud or deceit or any unlawful act or omission in connection with the provisions of this act and the business conducted under this act.
The director, after notice to the licensee and reasonable opportunity for the licensee to be heard, may revoke his license or may suspend his license for any period which the director deems proper, upon satisfactory proof that the licensee has violated this act, any condition of his license or any rule or regulation of the division promulgated pursuant to this act.
Immediately upon the receipt of the license issued pursuant to this act, the licensee shall display and maintain his license in a conspicuous place in his principal office for reselling tickets. He shall request copies of the license from the director for the purpose of displaying a copy of the license in each branch office, bureau or agency and the director may charge a fee for the copies.
b. No reseller other than a registered ticket broker shall resell or purchase with the intent to resell a ticket for admission to a place of entertainment at a maximum premium in excess of 20% of the ticket price or $3.00, whichever is greater, plus lawful taxes. No registered ticket broker shall resell or purchase with the intent to resell a ticket for admission to a place of entertainment at a premium in excess of 50% of the price paid to acquire the ticket, plus lawful taxes.
c. Notwithstanding the provisions of subsection a. or b. of this section, nothing shall limit the price for the resale or purchase of a ticket for admission to a place of entertainment sold by any reseller other than a registered ticket broker, provided such resale or purchase is made through an Internet web site.
b. Notwithstanding any other provision of law, any reseller or ticket resale website shall guarantee to each purchaser of resold tickets that the reseller or ticket resale website will provide a full refund of the amount paid by the purchaser, including, but not limited to, all fees, regardless of how characterized, if any of the following occurs:
(1) the event for which that ticket has been resold is cancelled, provided that if the event is cancelled, then actual handling and delivery fees need not be refunded as long as that previously disclosed guarantee specifies that those fees will not be refunded; or
(2) the ticket received by the purchaser does not grant the purchaser admission to the event described on the ticket, for reasons that may include, but are not limited to, that the ticket is counterfeit, the ticket has been cancelled by the ticket issuer due to non-payment, or the event described on the ticket was cancelled for any reason prior to purchase of the resold ticket, unless the ticket is cancelled due to an act or omission by that purchaser.
c. (1) No reseller shall employ a tentative ticket policy whereby the reseller sells tickets that are not in the reseller's possession at the time of sale, unless that policy is disclosed to a ticket purchaser at the outset of the transaction. That disclosure shall include an approximate delivery date and the number of tickets that are guaranteed together, including the zone or section number. If the reseller is unsuccessful in securing those tickets, the reseller shall refund any deposit made by a purchaser of those tickets within 10 days after the event.
(2) A reseller shall not sell a ticket for the same seat to more than one person at the same time.
d. No person shall use or cause to be used any means, method or technology that is designed, intended or functions to disguise the identity of the purchaser with the purpose of purchasing or attempting to purchase a quantity of tickets to a place of entertainment in excess of authorized limits established by a ticket issuer.
e. No person shall use or cause to be used software, or any other technology or device, that is designed, intended or functions to interfere with a computer, computer network, or computer system, or any part thereof, for the purpose of purchasing or attempting to purchase or obtain access to a quantity of tickets to a place of entertainment in excess of authorized limits established by a ticket issuer, or that is designed, intended or functions to circumvent or disable any access control systems, electronic queues, waiting periods or other sales volume limitation systems to ensure the equitable distribution of tickets instituted on the website of the ticket issuer.
"Internet domain name" means a globally unique, hierarchical reference to an Internet host or service, which is assigned through centralized Internet naming authorities and which is comprised of a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
"Ticket website" means an Internet website advertising, offering for sale, selling, or reselling tickets to any event at a place of entertainment in New Jersey.
"Website operator" means a person owning, operating, or controlling a ticket website for any event at a place of entertainment in New Jersey.
b. (1) Except as provided in paragraph (2) of this subsection, a website operator shall not sell or offer to sell a ticket to a New Jersey resident through a ticket website if the website operator intentionally uses an Internet domain name that contains any of the following:
(a) the name of the place of entertainment or any name that is substantially similar; or
(b) the name of the event or any name that is substantially similar, including the name of the person or entity scheduled to perform or appear at the place of entertainment.
(2) Paragraph (1) of this subsection shall not apply to a website operator who is authorized by the place of entertainment to act on its behalf.
c. A violation of subsection b. of this section is an unlawful practice pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
The director, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c. 410 (C. 52:14B-1 et seq.), shall promulgate rules and regulations necessary to implement this act.
b. In addition to any other penalty provided by law, any person who violates any provision of P.L.1983, c.135 (C.56:8-26 et seq.) shall be guilty of a crime of the fourth degree.
The provisions of this act shall not apply to any person who sells, raffles or otherwise disposes of the ticket for a bona fide nonprofit or political organization when the premium proceeds are devoted to the lawful purposes of the organization.
As used in this act:
a. "Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
b. "Health club" means an establishment which devotes or will devote 40% or more of its square footage to providing services or facilities for the preservation, maintenance, encouragement or development of physical fitness or physical well-being. The term includes an establishment designated as "reducing salon," "health spa," "spa," "exercise gym," "health studio," "health club," or by other terms of similar import.
c. "Health club services" means those services offered by a health club for the preservation, maintenance, encouragement or development of physical fitness or physical well-being.
d. "Health club services contract" means an agreement under which the buyer of health club services purchases or becomes obligated to purchase health club services.
e. "Operating day" means any calendar day on which patrons may inspect and use the health club's facilities and services during a period of at least eight hours, except holidays and Sundays.
Each person who sells or offers for sale health club services in this State shall register with the director on forms the director provides. The registration shall be renewed every two years. Upon the sale of the health club facility or a change in the majority ownership of the stock of the corporate owner, the health club facility shall reregister with the director and shall pay the registration fee. The person shall provide the full name and address of each business location where health club services are sold in the State as well as any other information regarding the ownership and operation of each health club that the director deems appropriate. The registration and renewal fees shall be established or changed by the director and shall be fixed at a level to allow for the proper administration and enforcement of this act, but shall not be fixed at a level that will raise amounts in excess of the amount estimated to be so required.
a. A person who sells or offers for sale health club services shall, for each health club facility operated in the State, maintain a bond issued by a surety authorized to transact business in this State or maintain an irrevocable letter of credit by a bank or maintain with the director securities, moneys or other security acceptable to the director to fulfill the requirements of this subsection. The principal sum of the bond, letter of credit, or securities, moneys or other security shall be 10% of the health club's gross income for health club services during the club's last fiscal year, except that the principal sum of the bond, letter of credit, or securities, moneys or other security shall not be less than $25,000.00, nor more than $50,000.00. However, the principal sum of the bond, letter of credit, or securities, moneys or other security shall be $50,000.00 for any period of time that a person sells or offers for sale health club services prior to the opening of the health club facility. After the health club facility opens, the bond, letter of credit, or securities, moneys or other security shall be adjusted to the appropriate sum. The bond, letter of credit, or securities, moneys or other security shall be filed or deposited with the director and shall be executed to the State of New Jersey for the use of any person who, after entering into a health club services contract, is damaged or suffers any loss by reason of breach of contract or bankruptcy by the seller. Any person claiming against the bond, letter of credit, or securities, moneys, or other security may maintain an action at law against the health club and the surety, bank or director, as the case may be. The aggregate liability of the surety, bank, or the director to all persons for all breaches of the conditions of the bond, letter of credit, or the securities, moneys or other security held by the director shall not exceed the amount of the bond, letter of credit, or the securities, moneys or other security held by the director.
In the case of a bond, the health club shall file a copy of the bond with the director and a certificate by the surety that the surety will notify the director at least 10 days in advance of the date of any cancellation or material change in the bond.
b. The provisions of subsection a. of this section shall not be applicable to a person who sells or offers for sale health club services in which the buyer of the health club services purchases or becomes obligated to purchase health club services to be rendered over a period no longer than three months and in which the seller of the health club services requires or collects no more than three months' payment in advance. The person who sells or offers for sale health club services under contracts provided for in this subsection shall file with the director, within 30 days following the effective date of this act and no later than January 15 of every even-numbered year, a declaration, executed under penalty of perjury, stating he sells or offers for sale only health club services under contracts which comply with this subsection. Any person who has filed a declaration pursuant to this subsection and who intends to sell or offer for sale health club services under contracts with longer terms or greater payments in advance than those provided in this subsection shall comply with subsection a. of this section.
b. A health club services contract shall specifically set forth in a conspicuous manner on the first page of the contract the buyer's total payment obligation for health club services to be received pursuant to the contract.
c. A health club services contract of a health club facility which maintains a bond, irrevocable letter of credit or securities, moneys, or other security pursuant to subsection a. of section 3 of this act shall set forth that a bond, irrevocable letter of credit or securities, moneys, or other security is filed or deposited with the Director of the Division of Consumer Affairs to protect buyers of these contracts who are damaged or suffer any loss by reason of breach of contract or bankruptcy by the seller.
d. Services to be rendered to the buyer under the contract shall not obligate the buyer for more than three years from the date the contract is signed by the buyer.
e. A contract for new or increased health club services may be cancelled by the buyer for any reason at any time before midnight of the third operating day after the buyer receives a copy of the contract. In order to cancel a contract the buyer shall notify the health club of cancellation by telephone to the health club facility location where the contract was entered into or online, if the contract was entered into online; by regular, registered, or certified mail received within the three-day period, return receipt requested; or personal delivery to the address specified in the contract. All moneys paid pursuant to the cancelled contract shall be fully refunded within 30 days of receipt of the notice of cancellation. If the customer has executed any credit or loan agreement through the health club to pay all or part of health club services, the negotiable instrument executed by the buyer shall also be returned within 30 days. The contract shall contain a conspicuous notice printed in at least 10-point bold-faced type as follows:
"NOTICE TO CUSTOMER
You are entitled to a copy of this contract at the time you sign it.
You may cancel this contract at any time before midnight of the third operating day after receiving a copy of this contract. If you choose to cancel this contract, you must take any one of the following actions:
1 Send a signed and dated written notice of cancellation by regular, registered, or certified mail, return receipt requested;
Personally deliver a signed and dated written notice of cancellation to: ..................................... (Name of health club) ..................................... (Address of health club);
Personally place a telephone call to the health club facility location where the agreement was initially entered into; or
If you entered into the contract online, use either the direct link on the health club facility's Internet website, the user settings on your smartphone or tablet, or a termination email formatted and provided by the health club facility to cancel the contract online.
If you cancel this contract within the three-day period, you are entitled to a full refund of your money. If the third operating day falls on a Sunday or holiday, notice is timely given if it is mailed or delivered as specified in this notice on the next operating day. Refunds must be made within 30 days of receipt of the cancellation notice to the health club.
'Operating day' means any calendar day on which patrons may inspect and use the health club's facilities and services during a period of at least eight hours, except holidays and Sundays."
f. A health club services contract shall provide that it is subject to cancellation by telephone or written notice online, if the contract was entered into online; sent by regular, registered, or certified mail, return receipt requested; or personally delivered to the address of the health club specified in the contract upon the buyer's death or permanent disability, if the permanent disability is fully described and confirmed to the health club by a physician. In a cancellation under this subsection, the health club may retain the portion of the total contract price representing the services used plus reimbursement for expenses incurred in an amount not to exceed 10% of the total contract price.
g. A health club services contract shall provide that it is subject to cancellation by telephone or written notice online if the contract was entered into online; sent by regular, registered, or certified mail, return receipt requested; or personally delivered to the address of the health club specified in the contract upon the buyer's change of permanent residence to a location more than 25 miles from the health club or an affiliated health club offering the same or similar services and facilities at no additional expense to the buyer. In a cancellation under this subsection, the health club may require proof of the new permanent residence and may retain a prorated share of the total contract price based upon the date the notice was received plus reimbursement for expenses incurred in an amount not to exceed 10% of the total contract price.
h. A health club services contract shall provide that if a health club facility is closed for a period longer than 30 days through no fault of the buyer of the health club services contract, the buyer is entitled to either extend the contract for a period equal to that during which the facility is closed or to receive a prorated refund of the amount paid by the buyer under the contract.
i. A health club services contract shall not obligate the buyer to renew the contract. A buyer who entered into a health club services contract online shall be provided with the option to terminate the automatic renewal of the health club services contract online through a direct link or button on the health club facility's Internet website. The link or button shall be in a prominent location on the health club facility's Internet website and in clear and conspicuous text.
j. If a health club facility is not in existence on the date the contract is executed, the health club services contract shall provide that a buyer of a contract may cancel the contract if the facility is not open for business on a date which shall be set forth in the contract and receive a full refund of any deposit or payment on the contract.
k. As used in this section:
"Automatic renewal" means a plan or arrangement in which a health club services contract is automatically renewed at the end of a definite term for a subsequent term.
"Clear and conspicuous" means in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language.
(1) a customer account or profile on the subscription service provider's internet website, or the user settings on a consumer's smartphone or tablet; or
(2) a termination email formatted and provided by the subscription service provider that a consumer can email to the subscription service provider without being required to provide any additional information.
b. As used in this section:
"Automatic renewal" means a plan or arrangement in which a paid subscription service is automatically renewed at the end of a definite term for a subsequent term.
"Clear and conspicuous" means in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language.
"Consumer" means a resident of this State to whom a subscription service is sold online.
"Subscription service provider" means a person who sells a subscription service to a consumer online.
"Subscription service" means health club services provided on a subscription basis in exchange for a reoccurring payment, including, but not limited to, a weekly, monthly, or annual payment charged to and made by a consumer.
c. It shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) for any person to violate the provisions of this section.
a. A health club services contract shall not require the execution of any note or series of notes by the buyer which, if separately negotiated, will cut off as to third parties any right of action or defense which the buyer has against the health club.
b. A right of action or defense arising out of a health club services contract which the buyer has against the health club shall not be cut off by assignment of the contract whether or not the assignee acquires the contract in good faith and for value.
A health club may not charge and accept a down payment exceeding 25% of the total contract price prior to opening the health club facility.
a. Any health club services contract entered into in reliance upon any fraudulent or substantially and willfully false or misleading information, representation, notice or advertisement of the health club is voidable at the option of the buyer of the contract. Any health club services contract which does not comply with the applicable provisions of this act is voidable at the option of the buyer of the contract.
b. Any waiver by the buyer of the provisions of this act is void.
It is an unlawful practice and a violation of P.L. 1960, c. 39 (C. 56:8-1 et seq.) to violate the provisions of this act.
The provisions of this act shall not apply to any nonprofit public or private school, college or university; the State or any of its political subdivisions; or any bona fide nonprofit, religious, ethnic, or community organization.
The director shall adopt pursuant to the provisions of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), rules and regulations necessary to effectuate the purposes of this act.
"Dealer" means a person who sells a toy or other article intended for use by children at retail. A dealer who sells at wholesale a toy or article subject to this act shall, with respect to that sale, be considered the distributor of that toy or article.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Distributor" means a person who sells a toy or other article intended for use by children at wholesale.
"Manufacturer" means a person who manufactures or imports a toy or other article intended for use by children for distribution in this State, except that when the toy or other article is distributed or sold under a name other than that of the actual manufacturer or the toy or other article, the term "manufacturer" includes any person under whose name the toy or other article is distributed or sold.
b. The director shall adopt all regulations necessary to carry out the purposes of this act, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
"Child" means a person less than 14 years of age.
"Children's product" means a product, including, but not limited to, a full-size crib, non-full-size crib, toddler bed, bed, car seat, chair, high chair, booster chair, hook-on chair, bath seat, gate or other enclosure for confining a child, play yard, stationary activity center, carrier, stroller, walker, swing, or toy or play equipment, that meets the following criteria:
a. the product is designed or intended for the care of, or use by, a child; or
b. the product is designed or intended to come into contact with a child while the product is used.
Notwithstanding any other provision of this section to the contrary, a product is not a "children's product" for the purposes of this act if it may be used by or for the care of a child, but it is designed or intended for use by the general population or segments of the general population and not solely or primarily for use by or for the care of a child, or it is a balloon, medication, drug, or food or is intended to be ingested.
"Commercial user" means any person who deals in children's products or who otherwise by one's occupation holds oneself out as having knowledge or skill peculiar to children's products, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing in the stream of commerce children's products.
"Crib" means a bed or containment designed to accommodate an infant.
"Full-size crib" means a full-size crib as defined in Sections 1508.1 and 1508.3 of title 16, Code of Federal Regulations regarding the requirements for full-size cribs.
"Non-full-size crib" means a non-full-size crib as defined in Section 1509.2 of title 16, Code of Federal Regulations regarding the requirements of non-full-sized cribs.
"Place in the stream of commerce" means to sell, offer for sale, give away, offer to give away, or allow the use of.
b. A children's product is deemed to be unsafe for purposes of this section if it meets any of the following criteria:
(1) it has been recalled for any reason by a federal agency or the product's manufacturer, distributor, or importer and the recall has not been rescinded; or
(2) a federal agency has issued a warning that a specific product's intended use constitutes a safety hazard and the warning has not been rescinded.
(1) create, maintain, and update a comprehensive list of children's products that have been identified as meeting any of the criteria set forth in section 2 of P.L.2007, c.124 (C.56:8-53.2); and
(2) make the comprehensive list available to the public at no cost, including, but not limited to, posting the list on the Internet.
b. The Division of Consumer Affairs shall not be liable for any civil damages as a result of any acts or omissions undertaken in good faith in the creation, maintenance or updating of the list of children's products in accordance with subsection a. of this section.
b. Pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Commissioner of Children and Families shall adopt rules and regulations to effectuate the purposes of section 5 of this bill.
"Automatic dialing device" means equipment capable of being programmed to randomly or sequentially dial seven-digit or ten-digit telephone numbers and, upon connection, play back a pre-recorded message.
"Information service" means live or pre-recorded voice or computer-generated communication initiated by use of a telephone number for a fee or charge billed by or on behalf of the information service provider in addition to any charges for the local or long distance transmission or other services associated with the call which are subject to federal regulation or to regulation by the Board of Public Utilities pursuant to Title 48 of the Revised Statutes, but shall not include any regulated announcement services, directory or operator services offered by telephone companies, or services offered on a presubscription basis.
"Information service provider" means a person who advertises or sells an information service.
(1) An accurate description of the service;
(2) The total price of the service, or, where a charge is based in whole or in part on the passage of time; the rate, by minute or other unit of time upon which that charge is based; any other charges being imposed for the service; and the total cost of any information service of predetermined length;
(3) Instruction to minors to obtain parental consent before engaging the information service; and
(4) The legal name and street address of the information service provider.
b. In any case in which the total price of the information service may exceed $5, it shall be an unlawful practice for a person to advertise or sell the information service unless:
(1) The disclosures required by paragraphs (1) and (2) of subsection a. of this section and, in the case of an information service aimed at or likely to be of interest to minors, an additional instruction directing minors to hang up unless the minor has parental permission are clearly and prominently stated at the inception of the telephone call connecting the caller with the information service; and
(2) The caller is clearly notified of and afforded a reasonable opportunity to disconnect the call following the disclosure and prior to incurring any charge for the information service.
c. The preambles required for information services subject to the provisions of subsection b. of this section are intended to be consistent with the preambles required for interstate calls subject to the provisions of 56 Fed. Reg. 56165 (1991) (to be codified at 47 C.F.R. s.64.709). In the event that such regulations are amended or replaced by federal law or subsequent federal regulation, the Director of the Division of Consumer Affairs is authorized to promulgate regulations modifying the provisions of this section to avoid conflict with federal requirements.
a. Advertisement through use of an automatic dialing device;
b. Access to the information service through use of signals or tones provided directly or indirectly by the information service provider;
c. The dialing of more than one telephone number for a fee;
d. The participation in a contest, raffle, lottery or game of chance which is illegal under New Jersey law;
e. Job or employment opportunities in violation of licensing, registration or other requirements of New Jersey law;
f. Charitable solicitation where the charity and the information service provider are not registered as required by New Jersey law or are not otherwise in compliance with New Jersey law; or
g. Accessing an information service in order to claim or receive information or notice concerning entitlement to a prize, gift, award or other thing of value, other than in connection with a lottery, type of lottery, or lottery game offered by the New Jersey State Lottery Commission.
"Dealer" means any establishment that advertises, represents or holds itself out as selling, preparing or maintaining food as kosher. This shall include, but not be limited to, manufacturers, slaughterhouses, wholesalers, stores, restaurants, hotels, catering facilities, butcher shops, summer camps, bakeries, delicatessens, supermarkets, grocery stores, nursing homes, freezer dealers and food plan companies. These establishments may also sell, prepare or maintain food not represented as kosher.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety or the director's designee.
"Food" means a food, food product, food ingredient, dietary supplement or beverage.
b. It shall be an unlawful practice for any person to violate the requirements of subsection a. of this section.
"As is" means a used motor vehicle sold by a dealer to a consumer without any warranty, either express or implied, and with the consumer being solely responsible for the cost of any repairs to that motor vehicle.
"Consumer" means the purchaser or prospective purchaser, other than for the purpose of resale, of a used motor vehicle normally used for personal, family or household purposes.
"Covered item" means and includes the following components of a used motor vehicle: Engine - all internal lubricated parts, timing chains, gears and cover, timing belt, pulleys and cover, oil pump and gears, water pump, valve covers, oil pan, manifolds, flywheel, harmonic balancer, engine mounts, seals and gaskets, and turbo-charger housing; however, housing, engine block and cylinder heads are covered items only if damaged by the failure of an internal lubricated part. Transmission Automatic/Transfer Case - all internal lubricated parts, torque converter, vacuum modulator, transmission mounts, seals and gaskets. Transmission Manual/Transfer Case - all internal lubricated parts, transmission mounts, seals and gaskets, but excluding a manual clutch, pressure plate, throw-out bearings, clutch master or slave cylinders. Front-Wheel Drive - all internal lubricated parts, axle shafts, constant velocity joints, front hub bearings, seals and gaskets, Rear-Wheel Drive - all internal lubricated parts, propeller shafts, supports and U-joints, axle shafts and bearings, seals and gaskets.
"Dealer" means any person or business which sells or offers for sale a used motor vehicle after selling or offering for sale three or more used motor vehicles in the previous 12-month period.
"Deduction for personal use" means the mileage allowance set by the federal Internal Revenue Service for business usage of a motor vehicle in effect on the date a used motor vehicle is repurchased by a dealer in accordance with section 5 of this act, multiplied by the total number of miles a used motor vehicle is driven by a consumer from the date of purchase of that vehicle until the time of its repurchase.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Excessive wear and tear" means wear or damage to a used motor vehicle beyond that expected to be incurred in normal circumstances.
"Material defect" means a malfunction of a used motor vehicle, subject to a warranty, which substantially impairs its use, value or safety.
"Repair insurance" means a contract in writing to refund, repair, replace, maintain or take other action with respect to a used motor vehicle for any period of time or any specified mileage and provided at an extra charge beyond the price of the used motor vehicle.
"Service contract" means a contract in writing to refund, repair, replace, maintain or take other action with respect to a used motor vehicle for any period of time or any specific mileage or provided at an extra charge beyond the price of the used motor vehicle.
"Used motor vehicle" means a passenger motor vehicle, excluding motorcycles, motor homes and off-road vehicles, title to, or possession of which has been transferred from the person who first acquired it from the manufacturer or dealer, and so used as to become what is commonly known as "secondhand," within the ordinary meaning thereof but does not mean a passenger motor vehicle, subject to a motor vehicle lease agreement which was in effect for more than 90 days , which is sold by the lessor to the lessee, or to a family member or employee of the lessee upon the termination of the lease agreement.
"Warranty" means any undertaking, in writing and in connection with the sale by a dealer of a used motor vehicle, to refund, repair, replace, maintain or take other action with respect to the used motor vehicle, and which is provided at no extra charge beyond the price of the used motor vehicle.
a. To misrepresent the mechanical condition of a used motor vehicle;
b. To fail to disclose, prior to sale, any material defect in the mechanical condition of the used motor vehicle which is known to the dealer;
c. To represent that a used motor vehicle, or any component thereof, is free from material defects in mechanical condition at the time of sale, unless the dealer has a reasonable basis for this representation at the time it is made;
d. To fail to disclose, prior to sale, the existence and terms of any written warranty, service contract or repair insurance currently in effect on a used motor vehicle provided by a person other than the dealer, and subject to transfer to a consumer, if known to the dealer;
e. To misrepresent the terms of any written warranty, service contract or repair insurance currently in effect on a used motor vehicle provided by a person other than the dealer, and subject to transfer to a consumer;
f. To fail to disclose, prior to sale, the existence and terms of any written warranty, service contract or repair insurance offered by the dealer in connection with the sale of a used motor vehicle;
g. To misrepresent the terms of any warranty, service contract or repair insurance offered by the dealer in connection with the sale of a used motor vehicle;
h. To represent, prior to sale, that a used motor vehicle is sold with a warranty, service contract or repair insurance when the vehicle is sold without any warranty, service contract or repair insurance;
i. To fail to disclose, prior to sale, that a used motor vehicle is sold without any warranty, service contract, or repair insurance; and
j. To fail to provide a clear written explanation, prior to sale, of what is meant by the term "as is," if the used motor vehicle is sold "as is."
a. If the used motor vehicle has 24,000 miles or less, the warranty shall be, at a minimum, 90 days or 3,000 miles, whichever comes first;
b. If the used motor vehicle has more than 24,000 miles but less than 60,000 miles, the warranty shall be, at a minimum, 60 days or 2,000 miles, whichever comes first; or
c. If the used motor vehicle has 60,000 miles or more, the warranty shall be, at a minimum, 30 days or 1,000 miles, whichever comes first, except that a consumer may waive his right to a warranty as provided under section 7 of this act.
b. It shall be an affirmative defense to any claim under this section that:
(1) The alleged material defect does not substantially impair the use, value or safety of the used motor vehicle; or
(2) The material defect is the result of abuse, neglect or unauthorized modification or alteration of the used motor vehicle by anyone other than the dealer or his agent.
c. It shall be presumed that a dealer has a reasonable opportunity to correct or repair a material defect in a used motor vehicle, if:
(1) The same material defect has been subject to repair three or more times by the dealer or his agent within the warranty period, but the material defect continues to exist; or
(2) The used motor vehicle is out of service by reason of waiting for the dealer to begin or complete repair of the material defect for a cumulative total of 20 or more days during the warranty period.
(1) has a tread depth of less than 1/16 inch measurable in any groove;
(2) has any damage exposing the reinforcing plies of the tire, including any cuts, cracks, bulges, punctures, scrapes, or wear;
(3) has any improper repairs, including, but not limited to:
(a) any repair to the sidewall or bead area of the tire;
(b) any repair made in the tread shoulder or belt edge area of the tire;
(c) any puncture that has not been sealed or patched on the inside and repaired with a cured rubber stem through the outside of the tire; or
(d) any puncture repair of damage larger than 1/4 inch;
(4) shows evidence of prior use of a temporary tire sealant without evidence of a subsequent proper repair;
(5) has a defaced or missing tire identification number;
(6) has inner liner or bead damage; or
(7) shows indication of internal separation, such as bulges or local areas of irregular tread wear.
b. A person who violates subsection a. of this section shall be subject to a civil penalty of not more than $500 for a first offense and at least $500 and not more than $1,000 for a second and each subsequent offense , to be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction of proceedings for the enforcement of the penalty provided by this section.
"Accredited college or university" means a college or university that is accredited by one of the following six regional accrediting agencies: Middle States Association of Colleges and Schools, New England Association of Schools and Colleges, North Central Association of Colleges and Schools, Northwest Association of Schools and Colleges, Southern Association of Colleges and Schools, or Western Association of Schools and Colleges. A college or university that is located outside of the United States will be considered on the basis of its accreditation status in the education system that has jurisdiction.
"Certified industrial hygienist" or "CIH" means a person who has met the education, experience, and examination requirements of an industrial hygiene certification organization and whose certification has not lapsed or been revoked.
"Certified industrial hygienist in training" or "CIHIT" is a person who has received the designation industrial hygienist in training from an industrial hygiene certification organization and whose certification has not lapsed or been revoked.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Industrial hygiene" means the science and practice devoted to the anticipation, recognition, evaluation, and control of those factors and stresses arising in or from the workplace or the environment that may cause sickness, impaired health and well-being, or significant discomfort among workers or members of the community.
"Industrial hygiene certification organization" means a professional organization of certified industrial hygienists which has been in existence for at least five years and which has been established to improve the practice and educational standards of the profession of industrial hygiene by certifying individuals who meet its education, experience and examination requirements. The organization shall have its certifying examinations evaluated by a national testing service and shall maintain criteria that are at least the equivalent of the American Board of Industrial Hygiene.
"Industrial hygienist" means a person who has an industrial hygienist education as defined in this section.
"Industrial hygienist education" means a baccalaureate or graduate degree from an accredited college or university in industrial hygiene, biology, chemistry, engineering, physics, or a closely related physical or biological science; or a baccalaureate or graduate degree from an accredited college or university that contains at least 60 semester credit hours in undergraduate or graduate level courses in science, mathematics, engineering and technology, with at least 15 of those hours in courses offered at the upper (junior, senior or graduate) level. A degree that is heavily comprised of only one of those subject areas in the absence of others, may be judged unacceptable. An unacceptable baccalaureate degree may be remedied by additional science coursework from an accredited college or university or by completion of a related graduate degree from an accredited college or university.
b. It shall be an unlawful practice for any person who does not have an industrial hygienist education to advertise or hold himself out as an industrial hygienist.
a. A person employed as an apprentice under the supervision of an industrial hygienist, certified industrial hygienist in training or certified industrial hygienist; or
b. A student studying industrial hygiene engaging in supervised activities related to industrial hygiene.
"Board" means the Board of Public Utilities.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Telecommunications service provider" means any individual, firm, joint venture, partnership, corporation, association, public utility, cooperative association, joint stock association and includes any trustee, receiver, assignee, representative, provider of intrastate, interLATA, intraLATA or local exchange telecommunications service to an end-use customer.
"Service for which there are multiple providers" means a service for which customers have the ability to subscribe or select from more than one telecommunications service provider.
"Animal" means a cat or dog.
"Breeder" means any person, firm, corporation, or organization in the business of breeding cats or dogs.
"Broker" means any person, firm, corporation, or organization who sells a cat or dog to a pet shop, whether or not the broker is also the breeder of the cat or dog.
"Consumer" means a person purchasing a cat or dog not for the purposes of resale.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Pet dealer" means any person engaged in the ordinary course of business in the sale of cats or dogs to the public for profit or any person who sells or offers for sale more than five cats or dogs in one year.
"Pet shop" means a pet shop as defined in section 1 of P.L.1941, c.151 (C.4:19-15.1).
"Quarantine" means to hold in segregation from the general population any cat or dog because of the presence or suspected presence of a contagious or infectious disease.
"Unfit for purchase" means any disease, deformity, injury, physical condition, illness or defect which is congenital or hereditary and severely affects the health of the animal, or which was manifest, capable of diagnosis or likely contracted on or before the sale and delivery of the animal to the consumer. The death of an animal within 14 days of its delivery to the consumer, except by death by accident or as a result of injuries sustained during that period, shall mean the animal was unfit for purchase.
"USDA" means the United States Department of Agriculture.
"USDA license number" means the license number issued to a breeder or broker by the United States Department of Agriculture pursuant to the federal "Animal Welfare Act," 7 U.S.C. s.2131 et seq., or any rules or regulations adopted pursuant thereto.
"Veterinarian" means a veterinarian licensed to practice in the State of New Jersey.
b. Within five days prior to the offering for sale of any animal, the owner or operator of a pet shop, or employee thereof, shall have the animal examined by a veterinarian licensed to practice in the State. The name and address of the examining veterinarian, together with the findings made and treatment, if any, ordered as a result of the examination, shall be noted on the animal history and health certificate for each animal as required by regulations adopted pursuant to Title 56 of the Revised Statutes. If 14 days have passed since the last veterinarian examination of the animal, the owner or operator of the pet shop, or employee thereof, shall have the animal reexamined by a veterinarian licensed to practice in the State as provided for in subsection g. of this section, except as otherwise provided in that subsection.
c. Every pet shop offering animals for sale shall post, in a conspicuous location on the cage or enclosure for each animal in the cage or enclosure, a sign declaring:
(1) The date and place of birth of each animal, and the actual age, or approximate age as established by a veterinarian, of the animal;
(2) The sex, color markings, and other identifying information of the animal, including any tag, tattoo, collar number, or microchip information;
(3) The name and address of the veterinarian attending to the animal while the animal is in the custody of the pet shop, and the date of the initial examination of the animal;
(4) The first and last name of the breeder of the animal, the full street address of where the breeder is doing business, an email address, if available, by which to contact the breeder, the breeder's USDA license number, and, if the breeder is required to be licensed in the state in which the breeder is located, the breeder's state license number;
(5) If the broker is different from the breeder, the first and last name of the broker of the animal, the full street address of where the broker is doing business, an email address, if available, by which to contact the broker, the USDA license number of the broker, and, if the broker is required to be licensed in the state in which the broker is located, the broker's state license number; and
(6) The statement "Know Your Rights" in bold type face and no less than 12 point type, followed by the statement in no less than 10 point type, "State law requires that every pet shop offering cats or dogs for sale post in a conspicuous location on or near each cat or dog's cage or enclosure the USDA inspection reports for the breeder and broker of each cat or dog for the two years prior to the first day that the cat or dog is offered for sale. If you do not see a required inspection report, please request the report from the pet shop. If you have any concerns, please contact the New Jersey Division of Consumer Affairs, 124 Halsey St., Newark, NJ 07102, (973) 504-6200. You may also view these and other USDA inspection reports for the breeder and broker of each cat or dog on the USDA Animal and Plant Health Inspection Service (APHIS) website. You are entitled to receive additional information from APHIS about the breeder's or broker's history through the federal Freedom of Information Act."
Every pet shop offering animals for sale shall also post, in a conspicuous location on or near the cage or enclosure for each animal in the cage or enclosure, the USDA inspection reports for the breeder and the broker of the animal for the two years prior to the first day that the animal is offered for sale by the pet shop.
The owner or operator of the pet shop shall regularly update the information required to be posted pursuant to this subsection and make changes as necessary to all signage required by this subsection so that the public has access to the correct information at all times.
d. The owner or operator of a pet shop, or employee thereof, shall quarantine any animal diagnosed as suffering from a contagious or infectious disease, illness, or condition and may not sell such an animal until such time as a veterinarian licensed to practice in the State treats the animal and determines that such animal is free of clinical signs of infectious disease or that the animal is fit for sale. All animals required to be quarantined pursuant to this subsection shall be placed in a quarantine area, separated from the general animal population of the pet shop.
e. The owner or operator of a pet shop, or designated employee thereof, may inoculate and vaccinate animals prior to purchase only upon the order of a veterinarian. No owner or operator of a pet shop, or employee thereof, may represent, directly or indirectly, that the owner or operator of the pet shop, or any employee thereof, other than a veterinarian, is qualified to, directly or indirectly, diagnose, prognose, treat, or administer for, prescribe any treatment for, operate concerning, manipulate or apply any apparatus or appliance for addressing, any disease, pain, deformity, defect, injury, wound, or physical condition of any animal after purchase of the animal, for the prevention of, or to test for, the presence of any disease, pain, deformity, defect, injury, wound, or physical condition in an animal after its purchase. These prohibitions include, but are not limited to, the giving of inoculations or vaccinations after purchase, the diagnosing, prescribing, and dispensing of medication to animals, and the prescribing of any diet or dietary supplement as treatment for any disease, pain, deformity, defect, injury, wound, or physical condition.
f. The Director of the Division of Consumer Affairs in the Department of Law and Public Safety shall provide each owner or operator of a pet shop with notification forms, to be signed by the owner or operator of the pet shop, or employee thereof, and the consumer at the time of purchase of an animal. The notification form shall provide the following:
(1) The full text of the rights and responsibilities provided for in subsection h. of this section;
(2) The full text and description of the recourse to which the consumer is entitled pursuant to subsection i. of this section;
(3) The statement that it is the responsibility of the consumer to obtain such certification within the required amount of time provided by subsection h. of this section;
(4) The full text of the rights and responsibilities of the owner or operator of the pet shop, and the employees thereof, and the consumer provided in subsection l. of this section;
(5) The notification, reporting and enforcement provisions provided in section 5 of P.L.1999, c.336 (C.56:8-96), including the name and address of the local health authority with jurisdiction over the pet shop;
(6) The name, full street address, email address, if available, and USDA license number of the breeder of the animal and the broker of the animal, if the broker is different from the breeder;
(7) The breeder's state license number, if the breeder is required to be licensed in the state in which the breeder is located, and, if the broker is different from the breeder and the broker is required to be licensed in the state in which the broker is located, the broker's state license number; and
(8) An attestation by the owner or operator of the pet shop that, as of the date of purchase of the animal by the pet shop, which shall be specified in the attestation, the breeder and the broker of the animal were in compliance with the requirements concerning the maintenance and care of animals and the sanitary operation of kennels, pet shops, shelters and pounds established in rules and regulations adopted pursuant to section 14 of P.L.1941, c.151 (C.4:19-15.14), as required pursuant to section 3 of P.L.2015, c.7 (C.56:8-95.1).
The owner or operator of the pet shop, or an employee thereof, shall obtain the signature of the consumer on the form and shall also sign and date the form at the time of purchase of an animal by the consumer, and shall provide the consumer with a signed copy of the form and retain a copy of the form on the pet shop premises. Copies of all such notices shall be readily available for inspection by an authorized representative of the Division of Consumer Affairs, upon request. No pet shop owner or operator, or employee thereof, may construe or use the signed notification form required pursuant to this subsection as an abdication of the right to recourse provided for in subsection i., or as a selection of recourse pursuant to subsection k. of this section.
g. The owner or operator of a pet shop, or an employee thereof, shall have any animal that has been examined more than 14 days prior to the date of purchase, reexamined by a veterinarian for the purpose of disclosing its condition, within 72 hours of the delivery of the animal to the consumer, unless the consumer has waived the right to the reexamination in writing. The owner or operator of a pet shop, or an employee thereof, shall provide a copy of the written waiver to the consumer prior to the signing of any contract or agreement to purchase the animal and the written waiver shall be in the form established by the director by regulation.
h. If at any time within 14 days after the sale and delivery of an animal to a consumer, the animal becomes sick or dies and a veterinarian certifies, within the 14 days after the date of purchase of the animal by the consumer, that the animal is unfit for purchase due to a non-congenital cause or condition, or that the animal died from causes other than an accident, the consumer is entitled to the recourse described in subsection i. of this section.
If the animal becomes sick or dies within 180 days after the date of purchase and a veterinarian certifies, within the 180 days after the date of purchase of the animal by the consumer, that the animal is unfit for sale due to a congenital or hereditary cause or condition, or a sickness brought on by a congenital or hereditary cause or condition, or died from such a cause or condition or sickness, the consumer shall be entitled to the recourse provided in subsection i. of this section.
It shall be the responsibility of the consumer to obtain such certification within the required amount of time provided by this subsection, unless the owner or operator of the pet shop, or the employee thereof selling the animal to the consumer, fails to provide the notice required pursuant to subsection f. of this section. If the owner or operator of the pet shop, or the employee thereof, fails to provide the required notice, the consumer shall be entitled to the recourse provided for in subsection i. of this section.
i. Only the consumer shall have the sole authority to determine the recourse the consumer wishes to select and accept, provided that the recourse selected is one of the following:
(1) The right to return the animal and receive a full refund of the purchase price, including sales tax, plus the reimbursement of the veterinary fees, including the cost of the veterinarian certification, incurred prior to the receipt by the consumer of the veterinarian certification;
(2) The right to retain the animal and to receive reimbursement for veterinary fees incurred prior to the consumer's receipt of the veterinarian certification, plus the future cost of veterinary fees to be incurred in curing or attempting to cure the animal, including the cost of the veterinarian certification;
(3) The right to return the animal and to receive in exchange an animal of the consumer's choice, of equivalent value, plus reimbursement of veterinary fees, including the cost of the veterinarian certification, incurred prior to the consumer's receipt of the veterinarian certification; or
(4) In the event of the death of the animal from causes other than an accident, the right to a full refund of the purchase price of the animal, including sales tax, or another animal of the consumer's choice of equivalent value, plus reimbursement of veterinary fees, including the cost of the veterinarian certification, incurred prior to the death of the animal.
The consumer shall be entitled to be reimbursed an amount for veterinary fees up to and including two times the purchase price, including sales tax, of the sick or dead animal. No reimbursement of veterinary fees shall exceed two times the purchase price, including sales tax, of the sick or dead animal.
j. The veterinarian shall provide to the consumer in writing and within the seven days after the consumer consults with the veterinarian any certification that is appropriate pursuant to this section upon the determination that such certification is appropriate. The certification shall include:
(1) The name of the owner;
(2) The date or dates of examination;
(3) The breed, color, sex, and age of the animal;
(4) A statement of the findings of the veterinarian;
(5) A statement that the veterinarian certifies the animal to be "unfit for purchase";
(6) An itemized statement of veterinary fees incurred as of the date of certification;
(7) If the animal may be curable, an estimate of the possible cost to cure, or attempt to cure, the animal;
(8) If the animal has died, a statement establishing the probable cause of death; and
(9) The name and address of the certifying veterinarian and the date of the certification.
k. Upon the presentation of the veterinarian certification required in subsection j. of this section to the pet shop, the consumer shall select the recourse to be provided and the owner or operator of the pet shop, or the employee thereof, shall confirm the selection of recourse in writing. The confirmation of the selection shall be signed by the owner or operator of the pet shop, or an employee thereof, and the consumer and a copy of the signed confirmation shall be given to the consumer and retained by the owner or operator of the pet shop, or employee thereof, on the pet shop premises. The confirmation of the selection shall be in the form established by the director by regulation.
l. The owner or operator of the pet shop, or an employee thereof, shall comply with the selection of recourse by the consumer no later than 10 days after the receipt of the veterinarian certification and the signed confirmation of selection of recourse form. In the event the owner or operator of the pet shop, or an employee thereof, wishes to contest the selection of recourse of the consumer, the owner or operator of the pet shop, or an employee thereof, shall notify the consumer and the director in writing within the five days after the receipt of the veterinarian certification and the signed confirmation of selection of recourse form. After notification to the consumer and the director of the division, the owner or operator of the pet shop, or an employee thereof, may require the consumer to produce the animal for examination by a veterinarian chosen by the owner or operator of the pet shop, or employee thereof, at a mutually convenient time and place, except if the animal has died and was required to be cremated for public health reasons. The director shall set, upon receipt of such notice of contest on the part of the owner or operator of the pet shop, or an employee thereof, a hearing date and hold a hearing, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and the Uniform Administrative Procedure Rules adopted pursuant thereto, to determine whether the recourse selected by the consumer should be allowed. The consumer and the owner or operator of the pet shop, or employee thereof, shall be entitled to any appeal of the decision resulting from the hearing as may be provided for under the law, or any rule or regulation adopted pursuant thereto, but upon the exhaustion of such remedies and recourse, the consumer and the owner or operator of the pet shop shall comply with the final decision rendered.
m. Any owner or operator of a pet shop, or employee thereof, shall be guilty of a deceptive practice if the owner or operator, or employee thereof, secures or attempts to secure a waiver of any of the provisions of this section except as specifically authorized under subsection g. of this section.
n. The owner of a pet shop shall be responsible and liable for any recourse or reimbursement due to a consumer because of violations of any provisions of this section by the owner or operator of the pet shop, or any employee thereof, or because of any document signed pursuant to this section by the owner or operator of the pet shop, or any employee thereof.
o. Any pet shop in the State advertising for sale an animal bred by a USDA licensed breeder through print or electronic means, including those posted on the Internet or a website, shall continuously display the name, state of residence, and USDA license number of the breeder of the animal in the advertisement so that this information is easily legible to the consumer.
(1) is not in compliance with the requirements concerning the maintenance and care of animals and the sanitary operation of kennels, pet shops, shelters and pounds established in rules and regulations adopted pursuant to section 14 of P.L.1941, c.151 (C.4:19-15.14) at the time of purchase of the animal by the pet shop;
(2) is not in possession of a current license issued by the USDA pursuant to 9 C.F.R. s.1.1 et seq.;
(3) is not in possession of all other licenses required for a breeder or broker by the state in which the breeder or broker is located;
(4) has been cited on a USDA inspection report for a direct violation of the federal "Animal Welfare Act," 7 U.S.C. s.2131 et seq., or the corresponding federal animal welfare regulations at 9 C.F.R. s.1.1 et seq., during the two-year period prior to the purchase of the animal by the pet shop;
(5) has been cited on a USDA inspection report during the two-year period prior to the purchase of the animal by the pet shop for three or more indirect violations of the federal "Animal Welfare Act," 7 U.S.C. s.2131 et seq., or the corresponding federal animal welfare regulations at sections 2.4, 2.40, 2.50 through 2.55, 2.60, 2.75 through 2.80, 2.130 through 2.132, 3.1 through 3.19, or 3.125 through 3.142 of Title 9 of the Code of Federal Regulations;
(6) is cited on the two most recent USDA inspection reports prior to the purchase of the animal by the pet shop for no-access violations pursuant to enforcement of the federal "Animal Welfare Act," 7 U.S.C. s.2131 et seq., or the corresponding federal animal welfare regulations at 9 C.F.R. s.1.1 et seq.; or
(7) directly or indirectly obtained the animal from a breeder, broker, or other person, firm, corporation, or organization to whom paragraph (1), (2), (3), (4), (5), or (6) of this subsection applies.
b. Nothing in this subsection shall be construed as prohibiting or otherwise preventing a pet shop from:
(1) purchasing for resale or adoption, selling, or offering for adoption, an animal purchased or otherwise obtained from -
(a) a publicly operated animal control facility,
(b) an animal rescue organization or pound as defined in section 1 of P.L.1941, c.151 (C.4:19-15.1), or
(c) a shelter as defined in section 1 of P.L.1941, c.151 (C.4:19-15.1) whose primary mission and practice is the placement of abandoned, unwanted, neglected, or abused animals and that is also a tax exempt organization under paragraph (3) of subsection (c) of section 501 of the federal Internal Revenue Code (26 U.S.C. s.501), or any subsequent corresponding sections of the federal Internal Revenue Code, as from time to time amended; or
(2) transferring adopted animals to or from any entity enumerated in paragraph (1) of this subsection or to or from any pet shop.
c. Every pet shop shall submit, annually and no later than May 1 of each year, a report to the municipality in which it is located and licensed, providing:
(1) the name, full street address, email address, if available, and USDA license number of --
(a) any breeder from which the pet shop purchased an animal, whether or not the pet shop offered the animal for sale,
(b) any breeder that bred an animal that the pet shop purchased from a broker, whether or not the pet shop offered the animal for sale, and
(c) any broker from which the pet shop purchased an animal, whether or not the pet shop offered the animal for sale;
(2) if a breeder whose identity the pet shop is required to report pursuant to subparagraph (a) or (b) of paragraph (1) of this subsection is required to be licensed in the state in which the breeder is located, the breeder's state license number;
(3) if a broker whose identity the pet shop is required to report pursuant to subparagraph (c) of paragraph (1) of this subsection is different from any breeder whose identity the pet shop is required to report pursuant to subparagraph (a) or (b) of paragraph (1) of this subsection, and the broker is required to be licensed in the state in which the broker is located, the broker's state license number; and
(4) the total number of animals for each breeder and broker for which the pet shop has reporting requirements pursuant to subparagraphs (a), (b), and (c) of paragraph (1) of this subsection.
b. Upon receipt of the certification from the veterinarian, the consumer may report the sickness or death of the animal and the pet shop where the animal was purchased to the local health authority with jurisdiction over the municipality in which the pet shop where the animal was purchased is located, and to the Director of the Division of Consumer Affairs in the Department of Law and Public Safety. The consumer shall provide a copy of the veterinarian certificate with any report. The director shall forward to the appropriate local health authority a copy of any report the division receives. The local health authority shall record and retain the records of any report and documentation submitted by a consumer.
c. By the May 1 immediately following the effective date of this act, and annually thereafter, the local health authority with jurisdiction over pet shops shall review any files it has concerning reports filed pursuant to subsection b. of this section and shall recommend to the municipality in which the pet shop is located the revocation of the license of any pet shop with reports filed as follows:
(1) 15% of the total number of animals sold in a year by the pet shop were certified by a veterinarian to be unfit for purchase due to congenital or hereditary cause or condition, or a sickness brought on by a congenital or hereditary cause or condition;
(2) 25% of the total number of animals sold in a year by the pet shop were certified by a veterinarian to be unfit for purchase due to a non-congenital cause or condition;
(3) 10% of the total number of animals sold in a year by the pet shop died and were certified by a veterinarian to have died from a non-congenital cause or condition; or
(4) 5% of the total number of animals sold in a year by the pet shop died and were certified by a veterinarian to have died from a congenital or hereditary cause or condition, or a sickness brought on by a congenital or hereditary cause or condition.
d. By the May 1 immediately following the effective date of this act, and annually thereafter, the local health authority with jurisdiction over pet shops shall review any files it has concerning reports filed pursuant to subsection b. of this section and shall recommend to the municipality in which the pet shop is located a 90-day suspension of the license of any pet shop with reports filed as follows:
(1) 10% of the total number of animals sold in a year by the pet shop were certified by a veterinarian to be unfit for purchase due to congenital or hereditary cause or condition, or a sickness brought on by a congenital or hereditary cause or condition;
(2) 15% of the total number of animals sold in a year by the pet shop were certified by a veterinarian to be unfit for purchase due to a non-congenital cause or condition;
(3) 5% of the total number of animals sold in a year by the pet shop died and were certified by a veterinarian to have died from a non-congenital cause or condition; or
(4) 3% of the total number of animals sold in a year by the pet shop died and were certified by a veterinarian to have died from a congenital or hereditary cause or condition, or a sickness brought on by a congenital or hereditary cause or condition.
e. Pursuant to the authority and requirements provided in section 8 of P.L.1941, c.151 (C.4:19-15.8), the owner of the pet shop shall be afforded a hearing and, upon the recommendation by the local health authority pursuant to subsection c. or d. of this section, the local health authority, in consultation with the Department of Health, shall set a date for the hearing to be held by the local health authority or the State Department of Health and shall notify the pet shop involved. The municipality may suspend or revoke the license, or part thereof, that authorizes the pet shop to sell cats or dogs after the hearing has been held and as provided in section 8 of P.L.1941, c.151 (C.4:19-15.8). At the hearing, the local health authority or the Department of Health, whichever entity is holding the hearing, shall receive testimony from the pet shop and shall determine if the pet shop: (1) failed to maintain proper hygiene and exercise reasonable care in safeguarding the health of animals in its custody, or (2) sold a substantial number of animals that the pet shop knew, or reasonably should have known, to be unfit for purchase.
f. No provision of subsection c. shall be construed to restrict the local health authority or the Department of Health from holding a hearing concerning any pet shop in the State irrespective of the criteria for recommendation of license suspension or revocation named in subsection c. or d., or from recommending to a municipality the suspension or revocation of the license of a pet shop within its jurisdiction for other violations under other sections of law, or rules and regulations adopted pursuant thereto.
g. No action taken by the local health authority or municipality pursuant to this section or section 8 of P.L.1941, c.151 (C.4:19-15.8) shall be construed to limit or replace any action, hearing or review of complaints concerning the pet shop by the Division of Consumer Affairs in the Department of Law and Public Safety to enforce consumer fraud laws or other protections to which the consumer is entitled.
h. The requirements of this section shall be posted in a prominent place in each pet shop in the State along with the name, address, and telephone number of the local health authority that has jurisdiction over the pet shop, and this information shall be provided in writing at the time of purchase to each consumer and to each licensed veterinarian contracted for services by the pet shop upon contracting the veterinarian.
i. The Director of the Division of Consumer Affairs may investigate and pursue enforcement against any pet shop reported by a consumer pursuant to subsection b. of this section.
"Dealer" means any establishment that advertises, represents or holds itself out as selling, preparing or maintaining food as halal, including, but not limited to, manufacturers, slaughterhouses, wholesalers, stores, restaurants, hotels, catering facilities, butcher shops, summer camps, bakeries, delicatessens, supermarkets, grocery stores, nursing homes, freezer dealers and food plan companies. These establishments may also sell, prepare or maintain food not represented as halal.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety or the director's designee.
"Food" means a food, food product, food ingredient, dietary supplement or beverage.
b. It shall be an unlawful practice for any person to violate the requirements of subsection a. of this section.
"Home solicitation" means any transaction made at the consumer's primary residence, except those transactions initiated by the consumer. A consumer response to an advertisement is not a home solicitation.
"Senior citizen" means an individual who is 60 years of age or older.
"Transaction" means a sale as defined in subsection e. of section 1 of P.L.1960, c.39 (C.56:8-1).
"Excessive price increase" means a price that is excessive as compared to the price at which the consumer good or service was sold or offered for sale by the seller in the usual course of business immediately prior to the state of emergency. A price shall be deemed excessive if:
(1) The price exceeds by more than 10 percent the price at which the good or service was sold or offered for sale by the seller in the usual course of business immediately prior to the state of emergency, unless the price charged by the seller is attributable to additional costs imposed by the seller's supplier or other costs of providing the good or service during the state of emergency;
(2) In those situations where the increase in price is attributable to additional costs imposed by the seller's supplier or additional costs of providing the good or service during the state of emergency, the price represents an increase of more than 10 percent in the amount of markup from cost, compared to the markup customarily applied by the seller in the usual course of business immediately prior to the state of emergency.
"State of emergency" means a natural or man-made disaster or emergency for which a state of emergency has been declared by the President of the United States or the Governor, or for which a state of emergency has been declared by a municipal emergency management coordinator.
(1) In no case shall the underlying funds associated with a gift certificate or gift card expire within the 24 months immediately following the date of sale.
(2) No dormancy fee shall be charged against a gift certificate or a gift card within the 24 months immediately following the date of sale, nor shall one be charged within the 24 months immediately following the most recent activity or transaction in which the certificate or card was used.
(3) A dormancy fee charged against a gift certificate or gift card as permitted by this subsection shall not exceed $2.00 per month.
b. The terms of any expiration date or dormancy fee applicable to a gift certificate or gift card, as permitted by subsection a. of this section, shall be disclosed to a consumer by:
(1) written notice of the expiration date or dormancy fee or both printed in at least 10 point font, on the gift certificate or gift card, or the sales receipt for the certificate or card, or the package for the certificate or card; and
(2) written notice, in at least 10 point font, on the gift certificate or gift card, or the sales receipt for the certificate or card, or the package for the certificate or card, of a telephone number which the consumer may call, for information concerning any expiration date or dormancy fee.
c. Beginning September 1, 2012 if a stored value card deemed a gift card or gift certificate pursuant to section 5 of P.L.2010, c.25 (C.46:30B-42.1) is redeemed and a balance of less than $5 remains on the card after redemption, at the owner's request the merchant or other entity redeeming the card shall refund the balance in cash to the owner.
A merchant or other entity required to comply with the provisions of this subsection shall be liable to a penalty of $500 for each violation plus restitution of the amount of the cash value remaining on the stored value card, provided however that the amount of the penalty shall be trebled for an aggregate of 100 such violations occurring during any 12-month period. Failure to provide requested cash redemption for each stored value card shall be considered a separate violation. Upon receiving evidence of any violation of the provisions of this subsection, the Director of the Division of Consumer Affairs, or the director's designee, is empowered to hold hearings upon those violations and upon finding the violation to have been committed, to assess a penalty against the person alleged to have committed the violation in the amounts provided in this subsection. The director shall thereafter return to the owner of the card the amount of the cash value remaining on the card recovered under this subsection, and this shall be the sole remedy available to the owner for those violations.
This subsection does not impose on an issuer or merchant or other entity required to comply with the provisions of this subsection an obligation to advertise the availability of a refund balance redemption. Notwithstanding the foregoing or any provision in section 3 of P.L.1981, c.454 (C.56:12-16), an issuer, seller or redeemer of stored value cards may elect to include a disclosure or may, in the alternative, include a statement on the stored value card or other marketing materials that the card "is not redeemable for cash except as required by law" or similar statement.
This subsection shall not apply to (1) a non-reloadable stored value card with an initial value of $5 or less; or (2) a stored value card that is not purchased but is provided in lieu of a refund for returned merchandise; or (3) a stored value card that can be redeemed at multiple merchants that are not under common ownership or control, including but not limited to network-branded stored value cards; or (4) a rewards card; or (5) a stored value card that is donated or sold below face value to a nonprofit or charitable organization or an educational organization; or (6) a stored value card that is redeemable for admission to events or venues at a particular location or group of affiliated locations, or for goods or services in conjunction with admission to those events or venues, or both, at the event or venue or at specific locations affiliated with and in geographic proximity to the event or venue.
d. As used in this section:
"Dormancy fee" means a charge imposed against the unused value of a gift card or gift certificate due to inactivity;
"Gift card" means a tangible device, whereon is embedded or encoded in an electronic or other format a value issued in exchange for payment, which promises to provide to the bearer merchandise of equal value to the remaining balance of the device. "Gift card" does not include a prepaid telecommunications or technology card, prepaid bank card or rewards card;
"Gift certificate" means a written promise given in exchange for payment to provide merchandise in a specified amount or of equal value to the bearer of the certificate. "Gift certificate" does not include a prepaid telecommunications or technology card, prepaid bank card or rewards card;
"Merchandise" means and includes any objects, wares, goods, commodities, services or anything offered, directly or indirectly, to the public for sale;
"Prepaid bank card" means a general use, prepaid card or other electronic payment device that is issued by a bank or other financial institution, or a licensed money transmitter, in a pre-denominated amount usable at multiple, unaffiliated merchants or at automated teller machines, or both, but shall not include a card issued by a retail merchant;
"Prepaid telecommunications or technology card" includes, but is not limited to: a prepaid telephone calling card; prepaid technical support card; or prepaid Internet disk distributed to or purchased by a consumer; and
"Rewards card" means a card or certificate distributed by the issuer to a consumer pursuant to an awards, loyalty, rewards or promotional program, without any money or other consideration or thing of value by the consumer in exchange for the card or certificate.
b. A retail mercantile establishment that violates the provisions of this section or section 10 of P.L.2025, c.39 (C.56:8-110.3) shall be subject to a civil penalty of $1,000, which may be collected and enforced by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction of proceedings for the enforcement of the penalty provided by this section.
A violation of this section shall not be considered an unlawful practice in violation of P.L.1960, c.39 (C.56:8-1 et seq.).
c. As used in P.L.2021, c.431 (C.56:8-110.1 et seq.), and section 10 of P.L.2025, c.39 (C.56:8-110.3):
"Gift card" means a tangible device, whereon is embedded or encoded in an electronic or other format a value issued in exchange for payment, which promises to provide to the bearer merchandise of equal value to the remaining balance of the device. A "gift card" shall not include a stored value reloadable card as defined in subsection k. of section 5 of P.L.2010, c.25 (C.46:30B-42.1).
"Merchandise" means any objects, wares, goods, commodities, services, or anything offered, directly or indirectly, to the public for sale.
"Retail mercantile establishment" means any place of business where merchandise is exposed or offered for sale at retail to members of the consuming public.
"Third-Party Gift Card Reseller" means a merchant who, without authorization from or affiliation with the business entity issuing a gift card, is engaged in the business of:
(1) buying gift cards on behalf of consumers; or
(2) reselling gift cards to consumers.
(1) the risk of gift card scams; and
(2) available assistance, including from the Division of Consumer Affairs, a consumer may seek if the consumer suspects they may be a victim of a gift card scam.
b. (1) A retail mercantile establishment may not knowingly sell a gift card to a consumer unless the retail mercantile establishment conspicuously displays a notice in a form as prescribed by the Director of the Division of Consumer Affairs in accordance with subsection a. of this section.
(2) For in-person sales, the notice shall be placed at or near the physical location where the gift card is displayed for sale or where the gift card sales transaction takes place.
(3) For online sales of gift cards, the notice shall be displayed on the webpage where the gift card is offered for sale or before the sale is finalized.
c. Except as otherwise provided in subsection d. of this section, a retail mercantile establishment may not display or sell a gift card unless:
(1) the gift card or its packaging includes in a manner visible to potential purchasers when on display a warning that states "Do not sell or purchase if the gift card or its packaging has been broken or indicates tampering" or that uses substantially similar language;
(2) the gift card, if enclosed in packaging, is sealed in a manner that is not easily opened, removed, or replaced without signs of tampering; and
(3) regardless of whether the gift card is or is not enclosed in packaging, all visible numbers such as a card number, CVV number, or a PIN number that can be used for balance inquiries or manual entry redemption are either fully concealed or covered, or otherwise made unavailable prior to sale or, only if the gift card is enclosed in packaging that is designed to make the gift card more secure than full concealment or covering otherwise would, are partially concealed or covered.
d. A retail mercantile establishment may display or sell a gift card that does not conform to the requirements of paragraphs (2) and (3) of subsection c. of this section if:
(1) the gift card is a chip-enabled, numberless card that is activated by a consumer after registering the card on the card issuer's website;
(2) the gift card is:
(a) sold exclusively by a retail mercantile establishment for use only at the retail mercantile establishment or a group of affiliated retail mercantile establishments for use at the retail mercantile establishments of the affiliated establishments; and
(b) is secured in a physical location within the retail mercantile establishment that is accessible only by an employee, or
(3) the gift card or its packaging:
(a) incorporates technology that is designed to prevent activation if the gift card or its packaging has been subjected to tampering; or
(b) incorporates technology that is designed to detect and prevent unauthorized redemption.
e. (1) When a third-party gift card reseller buys or sells a gift card as part of a transaction occurring in this State, the reseller shall record and, for at least three years, maintain a copy of the following information as applicable:
(a) the date of the transaction;
(b) the name of the person who conducted the transaction;
(c) the name, age, and address of the seller of the gift card;
(d) the seller's and consumer's driver's license number or identification card number;
(e) a description of the purchased gift card, including, but not limited to, the retailer for which the gift card is intended for use and the gift card number;
(f) the specific amount issued on the gift card;
(g) the transaction price;
(h) the signature of the consumer.
(2) The information recorded and maintained pursuant to this section shall be chronologically written in ink or logged into a secure database, software system, or other similar technology platform.
(3) Except as provided in paragraph (4) of this subsection, recorded information may not be destroyed, altered, or erased.
(4) A handwritten correction may be made to an entry of information by drawing a line of ink through the entry in a manner that retains legibility.
(5) Information recorded pursuant to this subsection shall be open to inspection by any duly authorized law enforcement officer in this State during the ordinary business hours of the third-party gift card reseller or at other reasonable time.
f. A third-party gift card reseller, including an agent or employee of the third-party gift card reseller may not:
(1) fail to make an entry of or falsify, destroy, or remove any information required to be recorded and maintained pursuant to this section;
(2) refuse to allow any duly authorized law enforcement officer in this State to inspect a record of information or the gift cards in the reseller's possession; or
(3) fail to maintain a record in pursuant to this section.
g. Upon request of a law enforcement agency conducting an investigation into allegations of theft of one or more gift cards, the issuer of the gift cards or the issuer's agents shall preserve and provide law enforcement with all relevant evidence so requested.
"Safety profession" means the science and art concerned with the preservation of human and material resources through the systematic application of principles drawn from such disciplines as engineering, education, psychology, physiology, enforcement and management for anticipating, identifying and evaluating hazardous conditions and practices; developing hazard control designs, methods, procedures and programs; implementing, administering and advising others on hazard controls and hazard control programs; and measuring, auditing and evaluating the effectiveness of hazard controls and hazard control programs.
"Safety professional certification organization" means a professional organization of safety professionals which has been in existence for at least five years and which has been established to improve the practice and educational standards of the safety profession by certifying individuals who meet its education, experience and examination requirements. The organization shall be accredited by the National Commission of Certifying Agencies (NCCA) or the Council of Engineering and Scientific Specialty Boards (CESB), or a nationally recognized accrediting body which uses certification criteria equal to or greater than that of the NCCA or CESB.
a. Sell any such material or film without first notifying the purchaser that the application of these materials or film to the windshield or the front windows to the left and right of the driver of any motor vehicle registered in the State is a violation of State law and regulation. The notice required under this paragraph shall be given by the conspicuous posting of a sign at the point where the window tinting materials or film are offered for sale. The sign shall state substantially the following:
"NJ STATE LAW PROHIBITS ADD-ON TINTING ON
WINDSHIELDSAND FRONT SIDE WINDOWS"
The notice required under this paragraph shall not apply to catalog sales of motor vehicle tinting materials or film where the purchase and payment are made by mail, telephone or other telecommunications or electronic method; or
b. Install or apply any such material or film on or to the windshield or the windows to the left and right of the driver of any motor vehicle registered in the State unless the purchaser exhibits a certificate or card, issued pursuant to P.L.1999, c.308 (C.39:3-75.1 et seq.), authorizing the installation or application of the material or film on or to the windshield or front windows to the left and right of the driver of that car for medical reasons involving ophthalmic or dermatologic photosensitivity.
a. Pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate rules and regulations to effectuate the purposes of this act; and
b. Develop and undertake a public information program to inform persons engaged in the retail sale and installation of motor vehicle window tinting materials and film and the general public of the provisions of this act.
(1) Have interrupted the public's privacy, family life and home sanctity with unsolicited phone calls to sell products and services;
(2) Cannot be selectively ignored by recipients, since the calls are commonly made by means which do not enable the recipient to use caller I.D. to identify, in advance, a telemarketing call or an emergency;
(3) May arrive at inconvenient times when a resident or family member is retired for the night;
(4) May arrive when a resident or family member is having a meal and the interruption disrupts valuable time when family members are together, where family members are more remote from a telephone and when food may, during the interruption, cool, melt, thicken, dry, or undergo a change in palatability;
(5) May arrive at inconvenient times when a resident or family member is engaged in entertainment, a compelling activity or relaxation;
(6) Use a strategy called "predictive calling" which results in tens of thousands of call recipients rushing to answer phone calls, to find no one is on the line. This results in great aggravation and inconvenience to the public, merely to spare telemarketers (who won't identify themselves as the source of the aggravation) the inconvenience of finding no one home;
(7) Have been made to wireless phone lines resulting in cost to the recipient, and in some cases, endangering the recipient's safety when they may have been driving;
(8) Have been increasing in number, causing increased inconvenience, widespread public outrage and urgent appeals to protect the public from such calls;
(9) Are not the only means for marketers to promote their product or services to prospective customers, although marketers often claim it to be more economical and more productive than other means to provide the benefits of increased competition. Marketers have available mail, email, face to face personal solicitation and various forms of advertising;
(10) Are in some cases beyond the regulatory jurisdiction of this Legislature and any New Jersey statute, because they are forms of speech protected by State and federal constitutional case law.
b. The Legislature further declares it to be the policy of this State to provide the broadest possible protection to protect public privacy and the sanctity of homes and to protect families and individuals from unsolicited interruptions.
c. It is not the intent of the State to restrict telemarketing activity where such activity is protected by State and federal case law, where such restriction is prohibited by State and federal constitutional case law or to restrict purely charitable activities.
"Customer" means an individual who is a resident of this State and a prospective recipient of a telemarketing sales call.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Local exchange telephone company" means a telecommunications carrier authorized by the Board of Public Utilities to provide local telecommunications services.
"Merchandise" means merchandise as defined in subsection (c) of section 1 of P.L.1960, c.39 (C.56:8-1), including an extension of credit.
"No telemarketing call list" or "no call list" means a list of telephone numbers of customers in this State who desire not to receive unsolicited telemarketing sales calls.
"Telemarketer" means any entity, whether an individual proprietor, corporation, partnership, limited liability corporation or any other form of business organization, whether on behalf of itself or others, who makes residential telemarketing sales calls to a customer when the customer is in this State or any person who directly controls or supervises the conduct of a telemarketer.
"Telemarketing" means any plan, program or campaign which is conducted by telephone to encourage the purchase or rental of, or investment in, merchandise, but does not include the solicitation of sales through media other than a telephone call.
"Telemarketing sales call" means a telephone call made by a telemarketer to a customer as part of a plan, program or campaign to encourage the purchase or rental of, or investment in, merchandise, except for continuing services. A telephone call made to an existing customer for the sole purpose of collecting on accounts or following up on contractual obligations shall not be deemed a telemarketing sales call.
"Unsolicited telemarketing sales call" means any telemarketing sales call other than a call made:
(1) in response to an express written request of the customer called; or
(2) to an existing customer, which shall include the ability to collect on accounts and follow up on contractual obligations, unless the customer has stated to the telemarketer that the customer no longer desires to receive the telemarketing sales calls of the telemarketer.
b. Every telemarketer, including telemarketers whose residence or principal place of business is located outside of this State, shall annually register with the director. Application for registration shall be on a form provided by the director and shall include the name and address of the applicant and any other information which the director shall prescribe by rule. The application shall be accompanied by a reasonable fee, set by the director in an amount sufficient to defray the division's expenses incurred in administering and enforcing this act.
a. Every applicant for registration shall file a disclosure statement with the director stating whether the applicant has been convicted of any crime, which for the purposes of this act shall mean a violation of any of the following provisions of the "New Jersey Code of Criminal Justice," Title 2C of the New Jersey Statutes, or the equivalent under the laws of any other jurisdiction:
(1) Any crime of the first degree;
(2) Any crime which is a second or third degree crime and is a violation of chapter 20 or 21 of Title 2C of the New Jersey Statutes; or
(3) Any other crime which is a violation of N.J.S.2C:5-1, N.J.S.2C:5-2, N.J.S.2C:12-3, N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:20-4, N.J.S.2C:20-5, N.J.S.2C:20-7, N.J.S.2C:20-9, N.J.S.2C:21-1, N.J.S.2C:21-2, section 1 of P.L.1983, c.565 (C.2C:21-2.1), section 2 of P.L.1997, c.385 (C.2C:21-2.3), N.J.S.2C:21-3, N.J.S.2C:21-4, N.J.S.2C:21-5, N.J.S.2C:21-6, N.J.S.2C:21-7, N.J.S.2C:21-9 through N.J.S.2C:21-17, N.J.S.2C:21-19, or section 3 of P.L.1994, c.121 (C.2C:21-25),chapter 27 or 28 of Title 2C of the New Jersey Statutes, N.J.S.2C:30-2, or N.J.S.2C:30-3.
b. Each disclosure statement may be reviewed and used by the director as grounds for denying, suspending or revoking registration, except that in cases in which the provisions of P.L.1968, c.282 (C.2A:168A-1 et seq.) apply, the director shall comply with the requirements of that act.
c. An applicant whose registration is denied, suspended or revoked pursuant to this section shall, upon a written request transmitted to the director within 30 calendar days of that action, be afforded an opportunity for a hearing in a manner provided for contested cases pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
d. An applicant shall have the continuing duty to provide any assistance or information requested by the director, and to cooperate in any inquiry, investigation or hearing conducted by the director.
e. If any of the information required to be included in the disclosure statement changes, or if additional information should be added after the filing of the statement, the applicant shall provide that information to the director, in writing, within 30 calendar days of the change or addition.
b. The director, in lieu of revoking a registration, may suspend the registration for a reasonable period of time, or assess a penalty in lieu of suspension, or both, and may issue a new registration, notwithstanding the revocation of a prior registration, if the applicant is found to have become entitled to the new registration.
b. The issuance of a registration to an applicant who is a nonresident of this State shall be deemed to be the applicant's irrevocable consent that service of process in any action or proceeding may be made upon the applicant by service upon the director.
b. The director may also establish that any person required to be registered pursuant to this act file a copy of the bond with the director and a certificate by the surety that the surety will notify the director at least 10 days in advance of the date of any cancellation or material change in the bond.
a. the private vendor meets standards established by the division by regulations that require that the vendor:
(1) is financially sound;
(2) has the capacity to perform the service required;
(3) has a record of past performance; and
(4) does not have a conflict of interest with a telemarketer or an association thereof; and
b. the contract requires the vendor to provide the list in a printed hard copy format, and in any other format, as prescribed by the division.
b. A telemarketer making a telemarketing sales call shall, within the first 30 seconds of the call, accurately identify the telemarketer's name, the name and telephone number of the person on whose behalf the call is being made, and the purpose of the call. In addition to any other penalties provided by law, a violation of this subsection shall constitute a disorderly persons offense.
c. A telemarketer shall be required to disclose the mailing address of the telemarketer, and any company on whose behalf the company is telemarketing, on any website owned or operated by the telemarketer and on any subsequent written communication to a customer.
d. A telemarketer shall not make or cause to be made any unsolicited telemarketing sales call to any customer between the hours of 9:00 p.m. and 8:00 a.m., local time, at the customer's location.
e. A telemarketer shall not intentionally use any method that blocks a caller identification service from displaying caller identification information or otherwise circumvents a customer's use of a telephone caller identification service, including, but not limited to, the use of any technology or method which displays a telephone number or name not associated with the telemarketer or intentionally designed to misrepresent the telemarketer's identity.
f. The requirements of this section shall not apply to any telemarketer who makes a residential marketing call in response to a customer's phone call or contact with the telemarketer's website, in which the customer affirmatively requests a follow-up telemarketing sales call or other contact from the telemarketer.
b. A local exchange telephone company shall include, in every telephone directory published after the effective date of this act, notice concerning the provisions of this act as those provisions relate to the rights of customers with respect to telemarketers and the no telemarketing call list. A local exchange telephone company shall also enclose, at least semiannually, in every telephone bill, a notice concerning the provisions of this act as those provisions relate to the rights of customers with respect to telemarketers and the no telemarketing call list.
b. For the purposes of this section, "commercial mobile service" means a type of mobile telecommunications service as defined in subsection (d) of section 332 of the Communications Act of 1934 (47 U.S.C. s.332(d)); and "commercial mobile service device" means any equipment used for the purpose of providing commercial mobile service.
c. The provisions of this section shall apply to those numbers for commercial mobile service devices which the division is able to distinguish from numbers for devices for telecommunications service, as defined in section 2 of P.L.1991, c.428 (C.48:2-21.17), on the 30th day following certification of such to the Governor and the Legislature.
a. the person has obtained a copy of, and updated quarterly, the no call list and has established and implemented written policies and procedures related to the requirements of this act;
b. the person has trained telemarketers in the person's employ in the requirements of this act;
c. the person maintains records demonstrating compliance with subsections a. and b. of this section and the requirements of this act; and
d. any unsolicited telemarketing sales call is an isolated call made no more than one time in a 12-month period.
The Legislature shall annually appropriate from the fund monies to the division for the payment of costs of producing and distributing educational materials and conducting educational activities relating to the promotion of the no telemarketing call list and all related costs and expenditures incurred in the administration of this act.
a. provisions governing the availability and distribution of the no call list established pursuant to section 9 of this act;
b. any other matters relating to the no call list established pursuant to section 9 of this act that the division deems necessary; and
c. such procedures as may be most effective to ensure that the no call list is up-to-date and accurately reflects the telephone numbers of persons wishing to be on the no call list and procedures to identify telephone numbers that have been reallocated to persons other than those who have indicated that they wish to be on the no call list. Such procedures may include, but not be limited to, establishing a means of matching the no call list with the names and numbers of persons with current listings supplied by the local exchange telephone companies, or establishing a requirement for re-enrollment to the list from time to time.
"Board" means the New Jersey State Board of Home Improvement and Home Elevation Contractors.
"Contractor" means an individual providing home improvement or home elevation services, or both types of services, for a corporation, partnership, association, sole proprietorship, and any other form of business organization or entity that enters into contracts for home improvement, home elevation, or both types of services.
"Contractor business" means a business that is a corporation, partnership, association, sole proprietorship or any other form of business organization or entity that provides home improvement, home elevation, or both types of services with at least one employee who is a licensed contractor, as defined pursuant to this section. An individual who provides services included in the definition of "home improvement" and who earns a maximum of $1,500 per contract and $25,000 on an annual basis for those services shall be required to maintain registration and comply with registration requirements pursuant to section 3 of P.L.2004, c.16 (C.56:8-138), but shall not be required to have at least one employee who is a licensed contractor.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Home elevation" means any home improvement that involves raising an entire residential structure to a higher level above the ground.
"Home elevation contractor" means a contractor who engages in the practice of home elevation and is authorized to perform home improvement services.
"Home improvement" means the remodeling, altering, renovating, repairing, restoring, modernizing, moving, demolishing, or otherwise improving or modifying of the whole or any part of any residential property. Home improvement shall also include insulation, installation, and the conversion of existing commercial structures into residential property. Home improvement shall not include the construction of a new residential property.
"Home improvement contract" means a written agreement, or oral agreement if the cost of services is expected to be $500 or less, for the performance of a home improvement between a home improvement or home elevation contractor business and an owner, tenant or lessee, of a residential property, and includes all agreements under which the contractor is to perform labor or render services for home improvements or for home elevations, or furnish materials in connection therewith.
"Limited specialty services license" means a license issued by the board that authorizes an individual only to perform services in a specialty of home improvement the scope of which shall be determined by the board.
"Limited specialty services licensee" means an individual licensed by the board to provide limited specialty home improvement services.
"Principal home improvement contractor" or "principal home elevation contractor" means a licensed home improvement or home elevation contractor who oversees the performance of services for contracts (1) valued at a minimum of $120,000 and (2) that require the submittal of plans with more than one subcode. A principal home improvement or principal home elevation contractor may also provide services as a home improvement contractor or home elevation contractor if a contract is valued at less than $120,000 or does not require submittal of plans with more than one subcode.
"Residential property" means any single or multi-unit structure used in whole or in part as a place of residence, and all structures appurtenant thereto, and any portion of the lot or site on which the structure is situated which is devoted to the residential use of the structure.
b. Every contractor business shall annually register with the director. Application for registration shall be on a form provided by the division and shall be accompanied by a reasonable fee, set by the director in an amount sufficient to defray the division's expenses incurred in administering and enforcing P.L.2004, c.16 (C.56:8-136 et seq.).
c. Every contractor business required to register under P.L.2004, c.16 (C.56:8-136 et seq.) shall file an amended registration within 20 days after any change in the information required to be included thereon. No fee shall be required for the filing of an amendment.
d. A contractor business that performs home improvement or home elevation services pursuant to a contract (1) valued at minimum of $120,000 and (2) that require the submittal of plans with more than one subcode shall be required to employ at least one licensed principal home improvement contractor or licensed principal home elevation contractor, as applicable.
e. A contractor business that performs home improvement or home elevation services pursuant to contracts valued at less than $120,000 shall be required to employ at least one licensed home improvement or licensed home elevation contractor, as applicable, unless the registered contractor business performs only limited specialty services.
f. A contractor business that performs services pursuant to contracts valued at less than $120,000 and offers only specialty services shall employ at least one individual who holds a limited specialty services license that corresponds to the services that the contractor business offers. A contractor business that does not employ a principal home improvement or principal home elevation contractor or a licensed home improvement or licensed home elevation contractor shall offer services only in the specialties for which the business employs limited specialty services licensees.
g. A contractor business that is required to employ a principal home improvement or principal home elevation contractor pursuant to subsection d. of this section, a licensed home improvement or licensed home elevation contractor pursuant to subsection e. of this section, or a limited specialty services licensee pursuant to subsection f. of this section shall, in its application for initial registration and for registration renewal, disclose the identity of the applicable contractor and update the division within 10 days if the identity of the applicable contractor changes.
h. The provisions of subsections d. through g. of this section shall remain inoperative until the first day of the sixth month next following the promulgation of rules and regulations by the New Jersey State Board of Home Improvement and Home Elevation Contractors.
b. The division shall adopt rules and regulations pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the provisions of P.L.2014, c.34 (C.56:8-138.2 et al.) with regard to registration of home elevation contractor business, and may establish fees for this purpose. Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the Division of Consumer Affairs may adopt immediately upon filing with the Office of Administrative Law rules and regulations for this purpose, which shall be effective for a period not to exceed 270 days following the date of enactment of P.L.2014, c.34 (C.56:8-138.2 et al.), and may thereafter be amended, adopted, or readopted, by the division in accordance with the requirements of the "Administrative Procedure Act".
c. In addition to any other civil or criminal penalty that may apply, any person who makes a false statement in connection with the process for registration as a home elevation contractor business pursuant to this section or in regard to any statement required to be made pursuant to section 7 of P.L.2004, c.16 (C.56:8-142) shall be liable for a civil penalty of not less than $10,000 or more than $25,000. Such penalty may be imposed by the director and shall be collected by summary proceedings instituted in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
d. In addition to any other action that may be authorized by law, the director may suspend or revoke the home improvement contractor business registration and home elevation contractor business registration of any business that violates any provision of P.L.2014, c.34 (C.56:8-138.2 et al.). In the case of a suspension or revocation of a registration of a contractor business, the division shall notify the board.
a. Any person required to register pursuant to "The New Home Warranty and Builders' Registration Act," P.L.1977, c.467
(C.46:3B-1 et seq.);
b. Any person performing a home improvement upon a residential or non-commercial property he owns, or that is owned by a member of his family, a bona fide charity, or other non-profit organization;
c. Any person regulated by the State as an architect, professional engineer, landscape architect, land surveyor, electrical contractor, master plumber, or any other person in any other related profession requiring registration, certification, or licensure by the State, who is acting within the scope of practice of his profession;
d. Any person who is employed by a community association or cooperative corporation;
e. Any public utility as defined under R.S.48:2-13;
f. Any person licensed under the provisions of section 16 of P.L.1960, c.41 (C.17:16C-77); and
g. Any home improvement retailer with a net worth of more than $50,000,000, or employee of that retailer.
a. Every applicant shall file a disclosure statement with the director stating whether the applicant has been convicted of any crime, which for the purposes of P.L.2004, c.16 (C.56:8-136 et seq.) shall mean a violation of any of the following provisions of the "New Jersey Code of Criminal Justice," Title 2C of the New Jersey Statutes, or the equivalent under the laws of any other jurisdiction:
(1) Any crime of the first degree;
(2) Any crime which is a second or third degree crime and is a violation of chapter 20 or 21 of Title 2C of the New Jersey Statutes; or
(3) Any other crime which is a violation of N.J.S.2C:5-1, 2C:5-2, 2C:11-2 through 2C:11-4, 2C:12-1, 2C:12-3, 2C:13-1, 2C:14-2, 2C:15-1, subsection a. or b. of 2C:17-1, subsection a. or b. of 2C:17-2, 2C:18-2, 2C:20-4, 2C:20-5, 2C:20-7, section 1 or 2 of P.L.2023, c.101 (C.2C:20-10.1 or 2C:20-10.2), 2C:20-9, 2C:21-2 through 2C:21-4, 2C:21-6, 2C:21-7, 2C:21-12, 2C:21-14, 2C:21-15, or 2C:21-19, chapter 27 or 28 of Title 2C of the New Jersey Statutes, N.J.S.2C:30-2, 2C:30-3, 2C:35-5, 2C:35-10, 2C:37-1 through 2C:37-4.
b. The director may refuse to issue or may suspend or revoke any registration issued by him upon proof that the applicant or holder of the registration:
(1) Has obtained a registration through fraud, deception or misrepresentation;
(2) Has engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense;
(3) Has engaged in gross negligence, gross malpractice or gross incompetence;
(4) Has engaged in repeated acts of negligence, malpractice or incompetence;
(5) Has engaged in professional or occupational misconduct as may be determined by the director;
(6) Has been convicted of any crime that has a direct and substantial relationship to the activity regulated by P.L.2004, c.16 (C.56:8-136 et seq.) or is of a nature such that registration of the individual would be inconsistent with the public's health, safety, or welfare. For the purpose of this subsection a plea of guilty, non vult, nolo contendere or any other such disposition of alleged criminal activity shall be deemed a conviction;
(7) Has had his authority to engage in the activity regulated by the director revoked or suspended by any other state, agency or authority for reasons consistent with this section;
(8) Has violated or failed to comply with the provisions of any act or regulation administered by the director;
(9) Is incapable, for medical or any other good cause, of discharging the functions of a registrant in a manner consistent with the public's health, safety, and welfare.
c. An applicant whose registration is denied, suspended, or revoked pursuant to this section shall, upon a written request transmitted to the director within 30 calendar days of that action, be afforded an opportunity for a hearing in a manner provided for contested cases pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
d. An applicant shall have the continuing duty to provide any assistance or information requested by the director, and to cooperate in any inquiry, investigation, or hearing conducted by the director.
e. If any of the information required to be included in the disclosure statement changes, or if additional information should be added after the filing of the statement, the applicant shall provide that information to the director, in writing, within 30 calendar days of the change or addition.
f. Notwithstanding the provisions of paragraph (6) of subsection b. of this section, no individual shall be disqualified from registration or shall have registration revoked solely because the person has been convicted of or engaged in acts constituting any crime or offense, unless the crime or offense has a direct or substantial relationship to the activity regulated by P.L.2004, c.16 (C.56:8-136 et seq.) or is of a nature such that registration of the person would be inconsistent with the public's health, safety, or welfare. For the purposes of this section, a judgment of conviction or a plea of guilty, non vult, nolo contendere, or any other such disposition of alleged criminal activity shall be deemed a conviction. In making this determination, an entity shall consider the following:
(a) the nature and seriousness of the crime or offense and the passage of time since its commission;
(b) the relationship of the crime or offense to the purposes of regulating the profession or occupation regulated by the entity;
(c) any evidence of rehabilitation of the person in the period of time following the prior conviction that may be made available to the entity; and
(d) the relationship of the crime or offense to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation regulated by the entity.
b. Every registered contractor business engaged in home improvements whose commercial general liability insurance policy or workers' compensation insurance policy is cancelled or nonrenewed shall submit to the director a copy of the certificate of commercial general liability insurance or workers' compensation insurance for a new or replacement policy which meets the requirements of subsection a. of this section as soon as is practicable following the cancellation or nonrenewal of the former policy, but in no case more than 10 days following the cancellation or nonrenewal of the former policy.
c. Every home elevation contractor business engaged in performing home elevations, in addition to the insurance required pursuant to subsection a. of this section, shall secure and maintain cargo or other insurance that specifically covers home elevation activities, in a minimum amount of $1,000,000 per occurrence to cover damages or other losses to the homeowner, lessee, tenant or other party resulting from a home elevation, except as otherwise provided in this subsection. The Director of the Division of Consumer Affairs in consultation with the Department of Banking and Insurance may promulgate rules and regulations to implement this subsection, which rules and regulations also may require that contractor businesses engaged in home elevations secure and maintain additional insurance of such kind and in such amounts as the director may determine in consultation with the Department of Banking and Insurance.
d. A home elevation contractor business, prior to entering into an agreement to perform a home elevation, shall provide proof of insurance to the homeowner including the issuing insurer, policy number, type, and amount of insurance coverage maintained by the contractor business in accordance with this section.
e. Every contractor business that is engaged in home improvement or home elevation services shall maintain, in effect during the entire period of registration:
(1) a compliance bond issued by one or more sureties authorized to transact business in this State;
(2) an irrevocable letter of credit issued by a bank; or
(3) securities, moneys, or other security acceptable to the division to fulfill the requirements of this section.
f. The principal sum of the compliance bond, letter of credit, or securities, moneys, or other security shall be a minimum of:
(1) $50,000 for the performance of services pursuant to a contract valued at more than $120,000 or for the performance of services, in the previous 12 months, for contracts valued at a minimum of $750,000;
(2) $25,000 for the performance of services pursuant to a contract valued between $10,000 and $120,000 or for the performance of services, in the previous 12 months, for contracts valued between $150,000 and $750,000; and
(3) $10,000 for the performance of services pursuant to a contract valued at less than $10,000 or for the performance of services, in the previous 12 months, for contracts valued less than $150,000.
g. The contractor business shall, from time to time, to the extent that claims are paid, promptly replenish the amount of the compliance bond, letter of credit, securities, moneys, or other security maintained pursuant to paragraphs (1) through (3) of subsection f. of this section.
h. The compliance bond, letter of credit, or securities, moneys, or other security shall cover penalties assessed by the division for violations of P.L.2004, c.16 (C.56:8-136 et seq.).
i. The compliance bond, letter of credit, or securities, moneys, or other security shall not be payable for treble damage claims pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
j. The aggregate liability of the surety, bank, or issuer of securities, moneys, or other security to all individuals for all breaches of the conditions of the compliance bond, letter of credit, or the securities, moneys, or other security shall not exceed the amount of the bond, letter of credit, or the securities, moneys, or other security.
k. Every bond, letter of credit, or securities, moneys, or other security shall provide that cancellation or nonrenewal of the bond, letter of credit, or securities, moneys, or other security shall not be effective unless and until at least 10 days' notice of intention to cancel or nonrenew the bond, letter of credit, or securities, moneys, or other security has been received in writing by the contractor business from the surety, bank, or other issuer.
l. Dollar amounts required pursuant to this section for general liability insurance and for a compliance bond, letter of credit, or securities, moneys, or other securities may be adjusted by the division if a contractor business registered pursuant to section 3 of P.L.2004, c.16 (C.56:8-138) provides only limited specialty services.
b. The director, in lieu of revoking a registration, may suspend the registration for a reasonable period of time, or assess a penalty in lieu of suspension, or both, and may issue a new registration, notwithstanding the revocation of a prior registration, if the applicant is found to have become entitled to the new registration.
b. Any invoice, contract or correspondence given by a registrant to a consumer shall prominently contain the toll-free telephone number provided pursuant to section 14 of this act.
b. In addition to any other penalty provided by law, a person who knowingly violates any of the provisions of P.L.2004, c.16 (C.56:8-136 et seq.) is guilty of a crime of the fourth degree.
b. The director shall provide a toll-free telephone number for consumers making inquiries regarding contractors and contractor businesses.
(1) The legal name, business address, and registration number of the contractor business, any contractor who will provide home improvement services, and the license number of the contractor licensed pursuant to P.L.2023, c.237 (C.45:5AAA-1 et al.);
(2) A copy of the certificate of commercial general liability insurance required of a contractor business pursuant to section 7 of P.L.2004, c.16 (C.56:8-142) and the telephone number of the insurance company issuing the certificate; and
(3) The total price or other consideration to be paid by the owner, including the finance charges.
b. On or after December 31, 2005, a home improvement contract may be cancelled by a consumer for any reason at any time before midnight of the third business day after the consumer receives a copy of it. In order to cancel a contract, the consumer shall notify the contractor business of the cancellation, in writing, by registered or certified mail, return receipt requested, or by personal delivery, to the address specified in the contract. All moneys paid pursuant to the cancelled contract shall be fully refunded within 30 days of receipt of the notice of cancellation. If the consumer has executed any credit or loan agreement through the contractor business to pay all or part of the contract, the agreement or note shall be cancelled without penalty to the consumer and written notice of that cancellation shall be mailed to the consumer within 30 days of receipt of the notice of cancellation. The contract shall contain a conspicuous notice printed in at least 10-point bold-faced type as follows:
"NOTICE TO CONSUMER
YOU MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY AFTER RECEIVING A COPY OF THIS CONTRACT. IF YOU WISH TO CANCEL THIS CONTRACT, YOU MUST EITHER:
SEND A SIGNED AND DATED WRITTEN NOTICE OF CANCELLATION BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED; OR
PERSONALLY DELIVER A SIGNED AND DATED WRITTEN NOTICE OF CANCELLATION TO:
(Name of Contractor Business)
(Address of Contractor Business)
(Phone Number of Contractor Business)
If you cancel this contract within the three-day period, you are entitled to a full refund of your money. Refunds must be made within 30 days of the contractor business's receipt of the cancellation notice."
"Check" means a demand draft drawn on or payable through an office of a depository institution located in the United States that has imprinted on it the account holder's name and the depository institution's name, location and routing number.
"Credit card" means any card, plate, coupon book, or other single credit device that may be used from time to time to obtain credit.
"Unsolicited check" means any check mailed or otherwise delivered to a person for the purpose of drawing on an existing account that is an extension of credit or activating an account to obtain credit other than:
(1) in response to a request or application for a check or account; or
(2) as a substitute for a check or account previously issued to the person to whom the check is mailed or otherwise delivered.
"Unsolicited credit card" means any credit card mailed or otherwise delivered to a person other than:
(1) in response to a request or application for a credit card; or
(2) as a renewal or substitute for a credit card previously issued to the person to whom the credit card is mailed or otherwise delivered.
"Credit card" means a card, plate, charge card, charge plate, or other single credit device that may be used from time to time to obtain credit.
"Goods" means any beverage, chattels, foodstuffs, products, or wares of any type or description but shall not include "motor fuel."
"Motor fuel" means any combustible liquid or gaseous substance used, or suitable, for the generation of power to propel motor vehicles.
"Restaurant" means an establishment in which the principal business is the sale of food or beverages for consumption on or off the premises.
"Seller" means a person who sells, leases, or rents goods or services to a customer.
"Surcharge" means any additional amount imposed by a seller at the time of a credit card transaction that increases a charge to a customer for the use of a credit card.
b. A seller that imposes a surcharge on a customer to process a credit card payment shall disclose the amount of the surcharge to a customer, prior to the customer incurring any charge for goods or services, by, in the case of a seller other than a restaurant, posting clear and conspicuous notice on a sign at the point of entry and point of sale or, in the case of a restaurant, on a sign in the customer service area and on the menu, except:
(1) if the seller is processing a credit card payment for a transaction that will occur through an Internet website, a mobile application, or an electronic kiosk, the seller shall provide clear and conspicuous electronic notice on the checkout page of the Internet website, mobile application, or electronic kiosk prior to processing the transaction; or
(2) if the seller is processing a credit card payment for a transaction that will occur over the telephone, the seller shall provide verbal notice prior to processing the transaction.
c. A violation of this section is an unlawful practice pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
"Existing business relationship" means a relationship formed by a voluntary two-way communication between a person or entity and a residential or business subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase, membership or transaction by the residential or business subscriber regarding products or services offered by such person or entity.
"Nonprofit organization" means a nonprofit organization that is exempt from federal taxation pursuant to Section 501(c)(3) of the federal Internal Revenue Code (26 U.S.C. s. 501(c)(3)) or section 501(c)(6) of the federal Internal Revenue Code (26 U.S.C. s.501(c)(6)).
"Telephone facsimile machine" means equipment which has the capacity to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line or to transcribe text or images, or both, from an electronic signal received over a regular telephone line onto paper.
"Unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.
b. Subsection a. of this section shall not apply where there is an existing business relationship between the sender of the unsolicited advertisement and the residential or business subscriber or where a member of a nonprofit organization including, but not limited to, professional or trade associations, sends an unsolicited advertisement to a member of the same organization, directly and not through a centralized facsimile database or facsimile number list maintained by the organization, provided that such unsolicited advertisement, whether sent pursuant to an existing business relationship between the sender and the residential or business subscriber or whether sent from one member of a nonprofit organization to another member of the same organization, shall provide clear and conspicuous notice on the first page of the unsolicited advertisement. Such notice shall include:
(1) disclosure to the recipient that the recipient may request the sender of the unsolicited advertisement not to send any future unsolicited advertisements to the recipient's telephone facsimile machine; and
(2) the domestic address and facsimile machine number for the recipient to transmit such a request to the sender.
c. A request not to send future unsolicited advertisements to a telephone facsimile machine shall:
(1) identify the telephone number of the telephone facsimile machine to which the request relates;
(2) be made to the sender's domestic address or the facsimile machine number of the sender provided in the notice to the recipient; and
(3) be sent in written form to the sender's domestic address or sent by return facsimile transmission to the sender's facsimile machine number, in order to be effective.
Such request is effective unless subsequently the person making the request provides express invitation or permission to the sender, in written form or by facsimile transmission, to send future unsolicited advertisements to such person at such telephone facsimile machine.
d. Failure to honor a valid request, in written form or by facsimile transmission, not to send future unsolicited advertisements pursuant to subsections c. through g. of this section, as applicable, shall constitute a violation of P.L.2005, c.114 (C.56:8-157 et seq.).
e. Nonprofit organizations, including but not limited to, professional or trade associations, shall be exempt from subsection a. of this section and shall be allowed to send unsolicited advertisements to their new and existing members in furtherance of the organization's purpose, without penalty, provided that the organization provides to each of its prospective new members at the time of membership application or to each of its existing members at the time of membership renewal, as the case may be, clear and conspicuous notice of:
(1) the member's right to request the organization not to send any future unsolicited advertisements to the member's telephone facsimile machine;
(2) the organization's domestic address and facsimile machine number to which its members may transmit such a request to the organization; and
(3) the requirement that any such request to the organization shall be sent in written form to the organization's domestic address or sent by return facsimile transmission to the organization's facsimile number, in order to be effective.
A request by a member to a nonprofit organization not to send future unsolicited advertisements to a member's telephone facsimile machine shall comply with the requirements of this subsection and with the requirements of subsection c. of this section, as applicable. Failure of a nonprofit organization to honor a valid request, in written form or by facsimile transmission, from a member not to send future unsolicited advertisements pursuant to the requirements of this subsection and the requirements of subsection c. of this section, as applicable, shall constitute a violation of P.L.2005, c.114 (C.56:8-157 et seq.).
f. Members of nonprofit organizations, including but not limited to, professional or trade associations, who send unsolicited advertisements to the telephone facsimile machines of other members of the same organization by initially sending such advertisements to a centralized facsimile database or facsimile number list maintained by the organization for the purpose of distributing such advertisements to its membership shall be exempt from subsection a. of this section and shall be allowed to send such unsolicited advertisements through such centralized facsimile database or facsimile number list to other members of the same organization, without penalty, provided that the organization provides to each of its prospective new members at the time of membership application or to each of its existing members at the time of membership renewal, as the case may be, clear and conspicuous notice of:
(1) the member's right to request that the organization not send any future unsolicited advertisements from one or more other members of the same organization through such centralized facsimile database or facsimile number list to the member's telephone facsimile machine;
(2) the organization's domestic address and facsimile machine number to which its members may transmit such a request to the organization; and
(3) the requirement that any such request to the organization shall be sent in written form to the organization's domestic address or sent by return facsimile transmission to the organization's facsimile number, in order to be effective.
A request by a member to a nonprofit organization that the organization not send any future unsolicited advertisements from one or more other members of the same organization through such centralized facsimile database or facsimile number list to a member's telephone facsimile machine shall comply with the requirements of this subsection and with the requirements of subsection c. of this section, as applicable. Failure of the nonprofit organization to honor a valid request, in written form or by facsimile transmission, from a member of the same organization not to send any future unsolicited advertisements from one or more other members through such centralized facsimile database or facsimile number list pursuant to the requirements of this subsection and the requirements of subsection c. of this section, as applicable, shall constitute a violation of P.L.2005, c.114 (C.56:8-157 et seq.).
g. Nonprofit organizations, including but not limited to, professional or trade associations, shall be exempt from subsection a. of this section and shall be allowed to send unsolicited advertisements to the telephone facsimile machine of any person, other than a new or existing member of the sending organization, within this State, without penalty, provided that such advertisements are intended to give the person notice of an event that is in furtherance of the organization's purpose, and further provided that, any such unsolicited advertisements to the person's telephone facsimile machine shall provide clear and conspicuous notice on the first page of the unsolicited advertisement. Such notice shall include:
(1) disclosure to the person that the person may request the organization not to send any such future unsolicited advertisements to the person's telephone facsimile machine;
(2) the domestic address and facsimile machine number for the person to transmit such a request to the organization; and
(3) the requirement that any such request to the organization shall be sent in written form to the organization's domestic address or sent by return facsimile transmission to the organization's facsimile number, in order to be effective.
A request by a person to a nonprofit organization that the organization not send future unsolicited advertisements to the person's telephone facsimile machine shall comply with the requirements of this subsection and with the requirements of subsection c. of this section, as applicable. Failure of a nonprofit organization to honor a valid request, in written form or by facsimile transmission, from a person not to send future unsolicited advertisements pursuant to the requirements of this subsection and the requirements of subsection c. of this section, as applicable, shall constitute a violation of P.L.2005, c.114 (C.56:8-157 et seq.).
b. The court shall proceed in a summary manner and shall, in the event the plaintiff establishes a violation of this act, enter a judgment for the actual damages sustained, or $500 for each violation, whichever amount is greater, together with costs of suit and reasonable attorney's fees.
c. If the plaintiff establishes that the sender was notified by return facsimile or written means of communication to cease and desist transmission of such unsolicited advertisements, the court shall enter a judgment, on account of each subsequent transmission, for actual damages or $1,000 for each transmission, whichever amount is greater, together with costs of suit and reasonable attorney's fees, not to exceed $1,000.
"Breach of security" means unauthorized access to electronic files, media or data containing personal information that compromises the security, confidentiality or integrity of personal information when access to the personal information has not been secured by encryption or by any other method or technology that renders the personal information unreadable or unusable. Good faith acquisition of personal information by an employee or agent of the business for a legitimate business purpose is not a breach of security, provided that the personal information is not used for a purpose unrelated to the business or subject to further unauthorized disclosure.
"Business" means a sole proprietorship, partnership, corporation, association, or other entity, however organized and whether or not organized to operate at a profit, including a financial institution organized, chartered, or holding a license or authorization certificate under the law of this State, any other state, the United States, or of any other country, or the parent or the subsidiary of a financial institution.
"Communicate" means to send a written or other tangible record or to transmit a record by any means agreed upon by the persons sending and receiving the record.
"Customer" means an individual who provides personal information to a business.
"Individual" means a natural person.
"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.
"Personal information" means an individual's first name or first initial and last name linked with any one or more of the following data elements: (1) Social Security number; (2) driver's license number or State identification card number; (3) account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account; or (4) user name, email address, or any other account holder identifying information, in combination with any password or security question and answer that would permit access to an online account. Dissociated data that, if linked, would constitute personal information is personal information if the means to link the dissociated data were accessed in connection with access to the dissociated data.
For the purposes of sections 10 through 15 of P.L.2005, c.226 (C.56:8-161 through C.56:8-166), personal information shall not include publicly available information that is lawfully made available to the general public from federal, state or local government records, or widely distributed media.
"Private entity" means any individual, corporation, company, partnership, firm, association, or other entity, other than a public entity.
"Public entity" includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State. For the purposes of sections 10 through 15 of P.L.2005, c.226 (C.56:8-161 through C.56:8-166), public entity does not include the federal government.
"Publicly post" or "publicly display" means to intentionally communicate or otherwise make available to the general public.
"Records" means any material, regardless of the physical form, on which information is recorded or preserved by any means, including written or spoken words, graphically depicted, printed, or electromagnetically transmitted. Records does not include publicly available directories containing information an individual has voluntarily consented to have publicly disseminated or listed.
b. Any business or public entity that compiles or maintains computerized records that include personal information on behalf of another business or public entity shall notify that business or public entity, who shall notify its New Jersey customers, as provided in subsection a. of this section, of any breach of security of the computerized records immediately following discovery, if the personal information was, or is reasonably believed to have been, accessed by an unauthorized person.
c. (1) Any business or public entity required under this section to disclose a breach of security of a customer's personal information shall, in advance of the disclosure to the customer, report the breach of security and any information pertaining to the breach to the Division of State Police in the Department of Law and Public Safety for investigation or handling, which may include dissemination or referral to other appropriate law enforcement entities.
(2) The notification required by this section shall be delayed if a law enforcement agency determines that the notification will impede a criminal or civil investigation and that agency has made a request that the notification be delayed. The notification required by this section shall be made after the law enforcement agency determines that its disclosure will not compromise the investigation and notifies that business or public entity.
d. For purposes of this section, notice may be provided by one of the following methods:
(1) Written notice;
(2) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in section 101 of the federal "Electronic Signatures in Global and National Commerce Act" (15 U.S.C. s.7001); or
(3) Substitute notice, if the business or public entity demonstrates that the cost of providing notice would exceed $250,000, or that the affected class of subject persons to be notified exceeds 500,000, or the business or public entity does not have sufficient contact information. Substitute notice shall consist of all of the following:
(a) E-mail notice when the business or public entity has an e-mail address;
(b) Conspicuous posting of the notice on the Internet web site page of the business or public entity, if the business or public entity maintains one; and
(c) Notification to major Statewide media.
e. Notwithstanding subsection d. of this section, a business or public entity that maintains its own notification procedures as part of an information security policy for the treatment of personal information, and is otherwise consistent with the requirements of this section, shall be deemed to be in compliance with the notification requirements of this section if the business or public entity notifies subject customers in accordance with its policies in the event of a breach of security of the system.
f. In addition to any other disclosure or notification required under this section, in the event that a business or public entity discovers circumstances requiring notification pursuant to this section of more than 1,000 persons at one time, the business or public entity shall also notify, without unreasonable delay, all consumer reporting agencies that compile or maintain files on consumers on a nationwide basis, as defined by subsection (p) of section 603 of the federal "Fair Credit Reporting Act" (15 U.S.C. s.1681a), of the timing, distribution and content of the notices.
g. (1) Notwithstanding subsection d. of this section, in the case of a breach of security involving a user name or password, in combination with any password or security question and answer that would permit access to an online account, and no other personal information as defined in section 10 of P.L.2005, c.226 (C.56:8-161), the business or public entity may provide the notification in electronic or other form that directs the customer whose personal information has been breached to promptly change any password and security question or answer, as applicable, or to take other appropriate steps to protect the online account with the business or public entity and all other online accounts for which the customer uses the same user name or email address and password or security question or answer.
(2) Any business or public entity that furnishes an email account shall not provide notification to the email account that is subject to a security breach. The business or public entity shall provide notice by another method described in this section or by clear and conspicuous notice delivered to the customer online when the customer is connected to the online account from an Internet Protocol address or online location from which the business or public entity knows the customer customarily accesses the account.
(1) Publicly post or publicly display an individual's Social Security number, or any four or more consecutive numbers taken from the individual's Social Security number;
(2) Print an individual's Social Security number on any materials that are mailed to the individual, unless State or federal law requires the Social Security number to be on the document to be mailed;
(3) Print an individual's Social Security number on any card required for the individual to access products or services provided by the entity;
(4) Intentionally communicate or otherwise make available to the general public an individual's Social Security number;
(5) Require an individual to transmit his Social Security number over the Internet, unless the connection is secure or the Social Security number is encrypted; or
(6) Require an individual to use his Social Security number to access an Internet web site, unless a password or unique personal identification number or other authentication device is also required to access the Internet web site.
b. Nothing in this section shall prevent a public or private entity from using a Social Security number for internal verification and administrative purposes, so long as the use does not require the release of the Social Security number to persons not designated by the entity to perform associated functions allowed or authorized by law.
c. Nothing in this section shall prevent the collection, use or release of a Social Security number, as required by State or federal law.
d. Notwithstanding this section, Social Security numbers may be included in applications and forms sent by mail, including documents sent as part of an application or enrollment process, or to establish, amend or terminate an account, contract or policy, or to confirm the accuracy of the Social Security number. A Social Security number that is permitted to be mailed under this subsection may not be printed, in whole or in part, on a postcard or other mailer not requiring an envelope, or visible on the envelope or without the envelope having been open.
e. Nothing in this section shall apply to documents that are recorded or required to be open to the public pursuant to Title 47 of the Revised Statutes. This section shall not apply to records that are required by statute, case law, or New Jersey Court Rules, to be made available to the public by entities provided for in Article VI of the New Jersey Constitution.
f. Nothing in this section shall apply to the interactive computer service provider's transmissions or routing or intermediate temporary storage or caching of an image, information or data that is otherwise subject to this section.
(2) An authorized person seeking to prohibit the disclosure of the home address or unpublished home telephone number of any covered person consistent with paragraph (1) of this subsection shall provide written notice to the person from whom the authorized person is seeking nondisclosure that the authorized person is an authorized person and requesting that the person cease the disclosure of the information and remove the protected information from the Internet or where otherwise made available.
(3) An immediate family member who has provided notice pursuant to paragraph (2) of this subsection and who no longer resides with the judicial officer, law enforcement officer, child protective investigator in the Division of Child Protection and Permanency, or prosecutor shall provide notice to that effect to the person, business, or association not later than 30 days from the date on which the immediate family member no longer resided with the judicial officer, law enforcement officer, child protective investigator in the Division of Child Protection and Permanency, or prosecutor.
b. A person, business, or association that violates subsection a. of this section shall be liable to the covered person or the covered person's assignee, who may bring a civil action in the Superior Court.
c. The court shall award:
(1) actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of this act;
(2) punitive damages upon proof of willful or reckless disregard of the law;
(3) reasonable attorney's fees and other litigation costs reasonably incurred; and
(4) any other preliminary and equitable relief as the court determines to be appropriate.
d. For the purposes of this section:
"Assignee" means a person or entity to whom or which an authorized person has assigned, in writing, a covered person's right to bring a civil action for a violation of subsection a. of this section.
"Authorized person" means a covered person or any of the following persons hereby authorized to submit or revoke a request for the redaction or nondisclosure of a home address on behalf of a covered person:
(1) on behalf of any federal judge, a designee of the United States Marshals Service or of the clerk of any United States District Court;
(2) on behalf of any covered person who is deceased or medically or psychologically incapacitated, a person acting on behalf of the covered person as a designated trustee, as an estate executor, or pursuant to a written power of attorney or other legal instrument; and
(3) on behalf of any immediate family member who is a minor and who is otherwise entitled to address redaction or nondisclosure pursuant to this act, the parent or legal guardian thereof.
"Covered person" means an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator in the Division of Child Protection and Permanency, as those terms are defined by section 1 of P.L.1995, c.23 (C.47:1A-1.1), or prosecutor, and any immediate family member residing in the same household as such judicial officer, law enforcement officer, child protective investigator in the Division of Child Protection and Permanency, or prosecutor.
"Disclose" shall mean to solicit, sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, post, publish, distribute, circulate, disseminate, present, exhibit, advertise, or offer, and shall include making available or viewable within a searchable list or database, regardless of whether a search of such list or database is actually performed.
"Home telephone number" means any telephone number used primarily for personal communications, including a landline or cellular telephone number.
"Immediate family member" means a spouse, child, or parent of, or any other family member related by blood or by law to, an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator in the Division of Child Protection and Permanency, as those terms are defined by section 1 of P.L.1995, c.23 (C.47:1A-1.1), or prosecutor and who resides in the same household as such judicial officer, law enforcement officer, child protective investigator in the Division of Child Protection and Permanency, or prosecutor.
"News media" means newspapers, magazines, press associations, news agencies, wire services, or other similar printed means of disseminating news to the general public.
"Person" shall not be construed to include in any capacity the custodian of a government record as defined in section 1 of P.L.1995, c.23 (C.47:1A-1.1).
e. This section shall not be construed to prohibit a person, business, or association that has received information as unredacted pursuant to the provisions of sections 1 through 3 of P.L.2021, c.371 (C.47:1B-1 through C.47:1B-3) from making the information available consistent with the purposes for which the person, business, or association received the information. A person, business, or association that uses or makes available the information in a way that is inconsistent with the purposes for which the person, business, or association received the information shall be liable as provided pursuant to subsection c. of this section.
f. Nothing herein shall be construed to impose liability on the news media for failure to remove information from previously printed newspapers, and nothing herein shall be construed to impose liability relating to telephone directories or directory assistance unless the covered person has requested to be unpublished in the directory and directory assistance by the applicable publication deadline.
"Affiliate" means a legal entity that controls, is controlled by, or is under common control with another legal entity. For the purposes of this definition, "control" means: the ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a company; the control in any manner over the election of a majority of the directors or individuals exercising similar functions; or the power to exercise a controlling influence over the management or policies of a company.
"Biometric data" means data generated by automatic or technological processing, measurements, or analysis of an individual's biological, physical, or behavioral characteristics, including, but not limited to, fingerprint, voiceprint, eye retinas, irises, facial mapping, facial geometry, facial templates, and other unique biological, physical, or behavioral patterns or characteristics that are used or intended to be used, singularly or in combination with each other or with other personal data, to identify a specific individual. "Biometric data" shall not include: a digital or physical photograph; an audio or video recording; or any data generated from a digital or physical photograph, or an audio or video recording, unless such data is generated to identify a specific individual.
"Child" shall have the same meaning as provided in COPPA.
"Consent" means a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to allow the processing of personal data relating to the consumer. "Consent" may include a written statement, including by electronic means, or any other unambiguous affirmative action. "Consent” shall not include: acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other unrelated information; hovering over, muting, pausing, or closing a given piece of content; or agreement obtained through the use of dark patterns.
"Consumer" means an identified person who is a resident of this State acting only in an individual or household context. "Consumer" shall not include a person acting in a commercial or employment context.
"Controller" means an individual or legal entity that, alone or jointly with others, determines the purpose and means of processing personal data.
"COPPA" means the federal Children's Online Privacy Protection Act, 15 U.S.C. s.6501 et seq., and any rules, regulations, guidelines, and exceptions thereto, as may be amended from time to time.
"Dark pattern" means a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision making, or choice and includes, but is not limited to, any practice the United States Federal Trade Commission refers to as a "dark pattern."
"Decisions that produce legal or similarly significant effects concerning the consumer" means decisions that result in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health care services, or access to essential goods and services.
"De-identified data" means: data that cannot be reasonably used to infer information about, or otherwise be linked to, an identified or identifiable individual, or a device linked to such an individual, if the controller that possesses the data: (1) takes reasonable measures to ensure that the data cannot be associated with an individual, (2) publicly commits to maintain and use the data only in a de-identified fashion and not to attempt to re-identify the data, and (3) contractually obligates any recipients of the information to comply with the requirements of this paragraph; or data de-identified in accordance with the requirements in 45 C.F.R. Part 164, where any recipients of that data are contractually prohibited from attempting to reidentify the data.
"Designated request address" means an electronic mail address, Internet website, or toll-free telephone number that a consumer may use to request the information required to be provided pursuant to section 3 of P.L.2023, c.266 (C.56:8-166.6).
"Personal data" means any information that is linked or reasonably linkable to an identified or identifiable person. "Personal data" shall not include de-identified data or publicly available information.
"Precise geolocation data" means information derived from technology, including, but not limited to, global positioning system-level latitude and longitude coordinates or other mechanisms, that directly identifies the specific location of an individual with precision and accuracy within a radius of 1,750 feet. "Precise geolocation data" does not include the content of communications or any data generated by or connected to advanced utility metering infrastructure systems or equipment for use by a utility.
"Process" or "processing" means an operation or set of operations performed, whether by manual or automated means, on personal data or on sets of personal data, such as the collection, use, storage, disclosure, analysis, deletion, or modification of personal data, and also includes the actions of a controller directing a processor to process personal data.
"Processor" means a person, private entity, public entity, agency, or other entity that processes personal data on behalf of the controller.
"Profiling" means any form of automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.
"Publicly available information" means information that is lawfully made available from federal, State, or local government records or widely distributed media or information that a controller has a reasonable basis to believe a consumer has lawfully made available to the general public and has not restricted to a specific audience.
"Sale" means the sharing, disclosing, or transferring of personal data for monetary or other valuable consideration by the controller to a third party. "Sale" shall not include:
The disclosure of personal data to a processor that processes the personal data on the controller's behalf;
The disclosure of personal data to a third party for the purposes of providing a product or service requested by the consumer;
The disclosure or transfer of personal data to an affiliate of the controller;
The disclosure of personal data that the consumer intentionally made available to the general public through a mass media channel and did not restrict to a specific audience; or
The disclosure or transfer of personal data to a third party as an asset that is part of a proposed or actual merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the controller's assets.
"Sensitive data" means personal data revealing racial or ethnic origin; religious beliefs; mental or physical health condition, treatment, or diagnosis; financial information, which shall include a consumer's account number, account log-in, financial account, or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a consumer's financial account; sex life or sexual orientation; citizenship or immigration status; status as transgender or non-binary; genetic or biometric data that may be processed for the purpose of uniquely identifying an individual; personal data collected from a known child; or precise geolocation data.
"Targeted advertising" means displaying advertisements to a consumer where the advertisement is selected based on personal data obtained or inferred from that consumer's activities over time and across nonaffiliated Internet web sites or online applications to predict such consumer's preferences or interests. "Targeted advertising" shall not include: advertisements based on activities within a controller's own Internet websites or online applications; advertisements based on the context of a consumer's current search query, visit to an Internet website, or online application; advertisements directed to a consumer in response to the consumer's request for information or feedback; or processing personal data solely to measure or report advertising frequency, performance, or reach.
"Third party" means a person, private entity, public entity, agency, or entity other than the consumer, controller, or affiliate or processor of the controller.
"Trade secret" has the same meaning as section 2 of P.L.2011, c.161 (C.56:15-2).
"Verified request" means the process through which a consumer may submit a request to exercise a right or rights established in P.L.2023, c.266 (C.56:8-166.4 et seq.) and by which a controller can reasonably authenticate the request and the consumer making the request using commercially reasonable means.
a. control or process the personal data of at least 100,000 consumers, excluding personal data processed solely for the purpose of completing a payment transaction; or
b. control or process the personal data of at least 25,000 consumers and the controller derives revenue, or receives a discount on the price of any goods or services, from the sale of personal data.
(1) the categories of the personal data that the controller processes;
(2) the purpose for processing personal data;
(3) the categories of all third parties to which the controller may disclose a consumer's personal data;
(4) the categories of personal data that the controller shares with third parties, if any;
(5) how consumers may exercise their consumer rights, including the controller's contact information and how a consumer may appeal a controller's decision with regard to the consumer's request;
(6) the process by which the controller notifies consumers of material changes to the notification required to be made available pursuant to this subsection, along with the effective date of the notice; and
(7) an active electronic mail address or other online mechanism that the consumer may use to contact the controller.
b. If a controller sells personal data to third parties or processes personal data for the purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer, the controller shall clearly and conspicuously disclose such sale or processing, as well as the manner in which a consumer may exercise the right to opt out of such sale or processing.
c. A controller shall not:
(1) require a consumer to create a new account in order to exercise a right, but may require a consumer to use an existing account to submit a verified request; or
(2) based solely on the exercise of a right and unrelated to feasibility or the value of a service, increase the cost of, or decrease the availability of, the product or service.
b. This section shall not apply to personal data collected prior to the effective date of P.L.2023, c.266 (C.56:8-166.4 et seq.) unless the controller continues to process such information thereafter.
c. If a controller declines to take action regarding the consumer's request, the controller shall inform the consumer without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision.
d. Information provided in response to a consumer request shall be provided by a controller, free of charge, once per consumer during any twelve-month period. If requests from a consumer are manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded, excessive, or repetitive nature of the request.
e. If a controller is unable to authenticate a request to exercise any of the rights afforded under section 5 of P.L.2023, c.266 (C.56:8-166.8) using commercially reasonable efforts, the controller shall not be required to comply with a request to initiate an action pursuant to this section and shall provide notice to the consumer that the controller is unable to authenticate the request to exercise such right or rights until such consumer provides additional information reasonably necessary to authenticate such consumer and such consumer's request to exercise such right or rights. A controller shall not be required to authenticate an opt-out request, but a controller may deny an opt-out request if the controller has a good faith, reasonable, and documented belief that such request is fraudulent. If a controller denies an opt-out request because the controller believes such request is fraudulent, the controller shall send a notice to the person who made such request disclosing that such controller believes such request is fraudulent, why such controller believes such request is fraudulent and that such controller shall not comply with such request.
f. A controller shall establish a process for a consumer to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision. The appeal process shall be conspicuously available and similar to the process for submitting requests to initiate action pursuant to this section. Not later than 45 days after receipt of an appeal, a controller shall inform the consumer in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, the controller shall also provide the consumer with an online mechanism, if available, or other method through which the consumer may contact the Division of Consumer Affairs in the Department of Law and Public Safety to submit a complaint.
(1) confirm whether a controller processes the consumer's personal data and accesses such personal data, provided that nothing in this paragraph shall require a controller to provide the data to the consumer in a manner that would reveal the controller's trade secrets;
(2) correct inaccuracies in the consumer's personal data, taking into account the nature of the information and the purposes of the processing of the information;
(3) delete personal data concerning the consumer;
(4) obtain a copy of the consumer's personal data held by the controller in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another entity without hindrance, provided that nothing in this paragraph shall require a controller to provide the data to the consumer in a manner that would reveal the controller's trade secrets; and
(5) opt out of the processing of personal data for the purposes of (a) targeted advertising; (b) the sale of personal data; or (c) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
b. A controller that has lawfully obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer's request to delete such data pursuant to this subsection by:
(1) retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer's personal data remains deleted from the controller's records and not using such retained information for any other purpose pursuant to the provisions of P.L.2023, c.266 (C.56:8-166.4 et seq.); or
(2) deleting such personal data.
b. (1) Beginning not later than six months following the effective date of P.L.2023, c.266 (C.56:8-166.4 et seq.), a controller that processes personal data for purposes of targeted advertising, or the sale of personal data shall allow consumers to exercise the right to opt out of such processing through a user-selected universal opt-out mechanism.
(2) The platform, technology, or mechanism shall:
(a) not permit its manufacturer to unfairly disadvantage another controller;
(b) not make use of a default setting that opts in a consumer to the processing or sale of personal data, unless the controller has determined that the consumer has selected such default setting and the selection clearly represents the consumer's affirmative, freely given, and unambiguous choice to opt into any processing of such consumer's personal data pursuant to P.L.2023, c.266 (C.56:8-166.4 et seq.);
(c) be consumer-friendly, clearly described, and easy to use by the average consumer;
(d) be as consistent as possible with any other similar platform, technology, or mechanism required by any federal or state law or regulation; and
(e) enable the controller to accurately determine whether the consumer is a resident of this State and whether the consumer has made a legitimate request to opt out of the processing of personal data for the purposes of any sale of such consumer's personal data or targeted advertising.
c. The Division of Consumer Affairs in the Department of Law and Public Safety may adopt rules and regulations that detail the technical specifications for one or more universal opt-out mechanisms that clearly communicate a consumer's affirmative, freely given, and unambiguous choice to opt out of the processing of personal data pursuant to P.L.2023, c.266 (C.56:8-166.4 et seq.), including regulations that permit the controller to accurately authenticate the consumer as a resident of this state and determine that the mechanism represents a legitimate request to opt out of the processing of personal data pursuant to P.L.2023, c.266 (C.56:8-166.4 et seq.). The division may update the rules that detail the technical specifications for the mechanisms from time to time to reflect the means by which consumers interact with controllers.
(1) limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer;
(2) except as otherwise provided in P.L.2023, c.266 (C.56:8-166.4 et seq.), not process personal data for purposes that are neither reasonably necessary to, nor compatible with, the purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent;
(3) take reasonable measures to establish, implement, and maintain administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data and to secure personal data during both storage and use from unauthorized acquisition. The data security practices shall be appropriate to the volume and nature of the personal data at issue;
(4) not process sensitive data concerning a consumer without first obtaining the consumer's consent, or, in the case of the processing of personal data concerning a known child, without processing such data in accordance with COPPA;
(5) not process personal data in violation of the laws of this State and federal laws that prohibit unlawful discrimination against consumers;
(6) provide an effective mechanism for a consumer to revoke the consumer's consent under this section that is at least as easy as the mechanism by which the consumer provided the consumer's consent and, upon revocation of such consent, cease to process the data as soon as practicable, but not later than 15 days after the receipt of such request;
(7) not process the personal data of a consumer for purposes of targeted advertising, the sale of the consumer's personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer without the consumer's consent, under circumstances where a controller has actual knowledge, or willfully disregards, that the consumer is at least 13 years of age but younger than 17 years of age;
(8) specify the express purposes for which personal data are processed; and
(9) not conduct processing that presents a heightened risk of harm to a consumer without conducting and documenting a data protection assessment of each of its processing activities that involve personal data acquired on or after the effective date of P.L.2023, c.266 (C.56:8-166.4 et seq.) that present a heightened risk of harm to a consumer.
b. Data protection assessments shall identify and weigh the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with the processing, as mitigated by safeguards that the controller can employ to reduce the risks. The controller shall factor into this assessment the use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal data will be processed. A controller shall make the data protection assessment available to the Division of Consumer Affairs in the Department of Law and Public Safety upon request. The division may evaluate the data protection assessment for compliance with the duties contained in this section and with other laws. Data protection assessments shall be confidential and exempt from public inspection under P.L.1963 c.3 (C.47:1A-1 et al.). The disclosure of a data protection assessment pursuant to a request from the division under this section shall not constitute a waiver of any attorney-client privilege or work-product protection that might otherwise exist with respect to the assessment and any information contained in the assessment.
c. For the purposes of this section, "heightened risk" includes:
(1) processing personal data for purposes of targeted advertising or for profiling if the profiling presents a reasonably foreseeable risk of: unfair or deceptive treatment of, or unlawful disparate impact on, consumers; financial or physical injury to consumers; a physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers if the intrusion would be offensive to a reasonable person; or other substantial injury to consumers;
(2) selling personal data; and
(3) processing sensitive data.
d. A single data protection assessment may address a comparable set of processing operations that include similar activities.
a. protected health information collected by a covered entity or business associate subject to the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996" (“HIPAA”), Pub.L.104-191, and the "Health Information Technology for Economic and Clinical Health Act," 42 U.S.C. s.17921 et seq.; or information treated like protected health information collected, used, or disclosed by a covered entity or business associate under HIPAA when the information is used or disclosed in accordance with HIPAA and the information is afforded all the privacy protections and security safeguards of the federal laws and implementing regulations under HIPAA;
b. a financial institution, data, or an affiliate of a financial institution that is subject to Title V of the federal "Gramm-Leach-Bliley Act," 15 U.S.C. s.6801 et seq., and the rules and implementing regulations promulgated thereunder;
c. the secondary market institutions identified in 15 U.S.C. s.6809(3)(D) and 12 C.F.R. s.1016.3(l)(3)(iii);
d. an insurance institution subject to P.L.1985, c.179 (C.17:23A-1 et seq.);
e. the sale of a consumer's personal data by the New Jersey Motor Vehicle Commission that is permitted by the federal " Driver’s Privacy Protection Act of 1994," 18 U.S.C. s.2721 et seq.;
f. personal data collected, processed, sold, or disclosed by a consumer reporting agency, as defined in 15 U.S.C. s.1681a(f), if the collection, processing, sale, or disclosure of the personal data is limited, governed, and collected, maintained, disclosed, sold, communicated, or used only as authorized by the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq., and implementing regulations;
g. any State agency as defined in section 2 of P.L.1971, c.182 (C.52:13D-13), any political subdivision, and any division, board, bureau, office, commission, or other instrumentality created by a political subdivision;
h. personal data that is collected, processed, or disclosed, as part of research conducted in accordance with the Federal Policy for the protection of human subjects pursuant to 45 C.F.R. Part 46, human subjects research conducted in accordance with good clinical practice guidelines issued by The International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use, or research conducted in accordance with the protection of human subjects pursuant to 21 C.F.R. Parts 50 and 56;
i. an insurance-support organization as defined in section 2 of P.L.1985, c.179 (C.17:23A-2); or
j. a national securities association registered pursuant to section 15A of the “Securities Exchange Act of 1934,” 15 U.S.C. s.78a et seq., and any rules or regulations promulgated thereunder.
a. re-identify de-identified data;
b. collect, retain, use, link, or combine personal data concerning a consumer that it would not otherwise collect, retain, use, link, or combine in the ordinary course of business.
(1) comply with federal or State law or regulations;
(2) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, State, municipal, or other governmental authorities;
(3) cooperate with law enforcement agencies concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate federal, State, or municipal ordinances or regulations;
(4) investigate, establish, exercise, prepare for, or defend legal claims;
(5) provide a product or service specifically requested by a consumer;
(6) perform under a contract to which a consumer is a party, including fulfilling the terms of a written warranty;
(7) take steps at the request of a consumer prior to entering into a contract;
(8) take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or another individual, and where the processing cannot be manifestly based on another legal basis;
(9) prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity, preserve the integrity or security of systems, or investigate, report, or prosecute those responsible for any such action;
(10) engage in public or peer-reviewed scientific or statistical research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board that determines, or similar independent oversight entities that determine,
(a) whether the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller,
(b) the expected benefits of the research outweigh the privacy risks, and
(c) whether the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with re-identification;
(11) assist another controller, processor, or third party with any of the obligations under P.L.2023, c.266 (C.56:8-166.4 et seq.); or
(12) personal data for reasons of public interest in the area of public health, community health, or population health, but solely to the extent that such processing is
(a) subject to suitable and specific measures to safeguard the rights of the consumer whose personal data is being processed, and
(b) under the responsibility of a professional subject to confidentiality obligations under federal, State, or local law.
b. The obligations imposed on controllers or processors under P.L.2023, c.266 (C.56:8-166.4 et seq.) shall not restrict a controller's or processor's ability to collect, use or retain data for internal use to:
(1) conduct internal research to develop, improve, or repair products, services, or technology;
(2) effectuate a product recall;
(3) identify and repair technical errors that impair existing or intended functionality; or
(4) perform internal operations that are reasonably aligned with the expectations of the consumer or reasonably anticipated based on the consumer's existing relationship with the controller, or are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party. Personal data collected, used, or retained pursuant to this subsection shall, where applicable, take into account the nature and purpose or purposes of such collection, use or retention. Such data shall be subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to such collection, use, or retention of personal data.
c. The obligations imposed on controllers or processors under P.L.2023, c.266 (C.56:8-166.4 et seq.) shall not apply where compliance by the controller or processor with the provisions of law would violate an evidentiary privilege under the laws of this State. Nothing in P.L.2023, c.266 (C.56:8-166.4 et seq.) shall be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of the State as part of a privileged communication.
d. Personal data that are processed by a controller pursuant to an exception provided by this section:
(1) shall not be processed for any purpose other than a purpose expressly listed in this section; and
(2) shall be processed solely to the extent that the processing is necessary, reasonable, and proportionate to the specific purpose or purposes listed in this section.
e. If a controller processes personal data pursuant to an exemption in this section, the controller bears the burden of demonstrating that such processing qualifies for the exemption and complies with the requirements in this section.
f. Processing personal data for the purposes expressly identified in this section shall not solely make a legal entity a controller with respect to such processing if such entity would not otherwise meet the definition of a controller.
b. Processors shall adhere to the instructions of the controller and assist the controller to meet its obligations under this act. Taking into account the nature of processing and the information available to the processor, the processor shall assist the controller by:
(1) taking appropriate technical and organizational measures, insofar as possible, for the fulfillment of the controller's obligation to respond to consumer requests to exercise their rights under this act;
(2) helping to meet the controller's obligations in relation to the security of processing the personal data and in relation to notification of a breach of the security of the system; and
(3) providing information to the controller necessary to enable the controller to conduct and document any data protection assessments required by section 9 of P.L.2023, c.266 (C.56:8-166.12). The controller and processor are each responsible for only the measures allocated to them.
c. Notwithstanding the instructions of the controller, a processor shall:
(1) ensure that each person processing the personal data is subject to a duty of confidentiality with respect to the data; and
(2) engage a subcontractor pursuant to a written contract in accordance with subsection e. of this section that requires the subcontractor to meet the obligations of the processor with respect to the personal data.
d. Taking into account the context of processing, the controller and the processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk and establish a clear allocation of the responsibilities between them to implement the measures.
e. Processing by a processor shall be governed by a contract between the controller and the processor that is binding on both parties and that sets forth:
(1) the processing instructions to which the processor is bound, including the nature and purpose of the processing;
(2) the type of personal data subject to the processing, and the duration of the processing;
(3) the requirements imposed by this subsection and subsections c. and d. of this section; and
(4) the following requirements:
(a) At the discretion of the controller, the processor shall delete or return all personal data to the controller as requested at the end of the provision of services, unless retention of the personal data is required by law;
(b) (i) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations in this act; and
(ii) The processor shall allow for, and contribute to, reasonable assessments and inspections by the controller or the controller's designated assessor. Alternatively, the processor may, with the controller's consent, arrange for a qualified and independent assessor to conduct, at least annually and at the processor's expense, an assessment of the processor's policies and technical and organizational measures in support of the obligations under this act using an appropriate and accepted control standard or framework for the assessment as applicable. The processor shall provide a report of the assessment to the controller upon request.
f. In no event may a contract relieve a controller or a processor from the liabilities imposed on them by virtue of its role in the processing relationship as defined by P.L.2023, c.266 (C.56:8-166.4 et seq.).
g. Determining whether a person is acting as a controller or processor with respect to a specific processing of data shall be a fact-based determination that depends upon the context in which personal data are to be processed. A person that is not limited in its processing of personal data pursuant to a controller's instructions, or that fails to adhere to the instructions, shall be deemed a controller and not a processor with respect to a specific processing of data. A processor that continues to adhere to a controller's instructions with respect to a specific processing of personal data shall remain a processor. If a processor begins, alone or jointly with others, determining the purposes and means of the processing of personal data, it shall be deemed a controller with respect to the processing.
b. Until the first day of the 18th month next following the effective date of P.L.2023, c.266 (C.56:8-166.4 et seq.), prior to bringing an enforcement action before an administrative law judge or a court of competent jurisdiction in this State, the Division of Consumer Affairs in the Department of Law and Public Safety shall issue a notice to the controller if a cure is deemed possible. If the operator controller fails to cure the alleged violation of P.L.2023, c.266 (C.56:8-166.4 et seq.) within 30 days after receiving notice of alleged noncompliance from the division, such enforcement action may be brought.
b. It shall be an unlawful practice for a person who is not registered pursuant to section 3 of P.L.2007, c.166 (C.17:18-21) to offer or issue a vehicle protection product warranty.
a. Residents of this State need to be informed of the potential risks of participating in Internet dating services. There is a public safety need to disclose whether criminal history background screenings have been performed and to increase public awareness of the possible risks associated with Internet dating activities. The primary purpose of this act is to enhance the safety of individuals who use Internet service to facilitate dating.
b. The offer of Internet dating services to residents of this State, and the acceptance of membership fees from residents of this State means that an Internet dating service is conducting business in this State and is subject to regulation by this State and the jurisdiction of the State's courts.
a. "Criminal background screening" means a name search for a person's criminal convictions initiated by an on-line dating service provider and conducted by one of the following means:
(1) By searching available and regularly updated government public record databases for criminal convictions so long as such databases, in the aggregate, provide substantial national coverage; or
(2) By searching a database maintained by a private vendor that is regularly updated and is maintained in the United States with substantial national coverage of criminal history records and sexual offender registries.
b. "Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
c. "Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
d. "Internet dating service" means a person or entity directly or indirectly in the business, for profit, of offering, promoting or providing access to dating, relationship, compatibility, matrimonial or social referral services principally on or through the Internet.
e. "Internet service provider" means any person, business or organization qualified to do business in this State that provides individuals, corporations, or other entities with the ability to connect to the Internet through equipment that is located in this State.
f. "Member" means a customer, client or participant who submits to an Internet dating service information required to access the service for the purpose of engaging in dating, relationship, compatibility, matrimonial or social referral.
g. "New Jersey member" means a member who provides a New Jersey billing address or zip code when registering with the service.
h. "Criminal conviction" means a conviction for any crime including but not limited to any sex offense that would qualify the offender for registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2) or under another jurisdiction's equivalent statute.
a. Provide safety awareness notification that includes, at minimum, a list and description of safety measures reasonably designed to increase awareness of safer dating practices as determined by the service. Examples of such notifications include:
(1) "Anyone who is able to commit identity theft can also falsify a dating profile."
(2) "There is no substitute for acting with caution when communicating with any stranger who wants to meet you."
(3) "Never include your last name, e-mail address, home address, phone number, place of work, or any other identifying information in your Internet profile or initial e-mail messages. Stop communicating with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it."
(4) "If you choose to have a face-to-face meeting with another member, always tell someone in your family or a friend where you are going and when you will return. Never agree to be picked up at your home. Always provide your own transportation to and from your date and meet in a public place with many people around."
b. If an Internet dating service does not conduct criminal background screenings on its members, the service shall disclose, clearly and conspicuously, to all New Jersey members that the Internet dating service does not conduct criminal background screenings. The disclosure shall be provided in two or more of the following forms: when an electronic mail message is sent or received by a New Jersey member, in a "click-through" or other similar presentation requiring a member from this State to acknowledge that they have received the information required by this act, on the profile describing a member to a New Jersey member, and on the web-site pages or homepage of the Internet dating service used when a New Jersey member signs up. A disclosure under this subsection shall be in bold, capital letters in at least 12-point type.
c. If an Internet dating service conducts criminal background screenings on all of its communicating members, then the service shall disclose, clearly and conspicuously, to all New Jersey members that the Internet dating service conducts a criminal background screening on each member prior to permitting a New Jersey member to communicate with another member. The disclosure shall be provided on the website pages used when a New Jersey member signs up. A disclosure under this subsection shall be in bold, capital letters in at least 12-point type.
d. If an Internet dating service conducts criminal background screenings, then the service shall disclose whether it has a policy allowing a member who has been identified as having a criminal conviction to have access to its service to communicate with any New Jersey member; shall state that criminal background screenings are not foolproof; that they may give members a false sense of security; that they are not a perfect safety solution; that criminals may circumvent even the most sophisticated search technology; that not all criminal records are public in all states and not all databases are up to date; that only publicly available convictions are included in the screening; and that screenings do not cover other types of convictions or arrests or any convictions from foreign countries.
"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 purchase any prepaid calling card or service, appearing in any newspaper, magazine, periodical, circular, in-store or out-of-store sign or other written matter placed before the consuming public, or in any radio broadcast, television broadcast, electronic medium or delivered to or through any computer.
"Company" means any entity, corporation, company, association, firm, partnership or other business entity, or individual engaged in the business of a prepaid calling service provider or prepaid calling card distributor in this State.
"Director" means the Director of the Division of Consumer Affairs.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Government fees" means and includes any and all fees, taxes and charges assessed pursuant to State or federal law, regulation or other mandate or requirement, including universal service fees and charges.
"Payphone surcharge" means the surcharge that a provider may charge a customer when that customer places a call with a card from a payphone using a toll-free access number. The payphone surcharge shall be deducted from a card's balance.
"Permitted fee" means the fees and surcharges that a provider may charge to, or deduct from, a card's balance for the use of that card, in addition to the rate per minute to the particular destination called, which includes and is limited to any payphone surcharge, any recharge convenience fee, any directory assistance fee, and any government fees.
"Prepaid calling card" or "card" means any right of use purchased for a sum certain that contains an access number and authorization code that enables a consumer to use a prepaid calling service. Such rights of use may be embodied on a card or other physical object or may be purchased by an electronic or telephonic means through which the purchaser obtains access numbers and authorization codes that are not physically located on a card or other object. "Prepaid calling card" shall not be construed to include cards or other rights of use that provide access to:
(1) telecommunications service if the card or other rights of use and telecommunications service are provided:
(a) for free or at no additional charge as a promotional item accompanying a product or service purchased by a customer; or
(b) pursuant to an awards, loyalty, rebate or promotional program without any separate monetary consideration being given by the customer solely in exchange therefor; or
(2) a wireless telecommunications service account if the purchaser has a pre-existing relationship with the wireless service provider or establishes a carrier-customer relationship via the purchase of the object.
"Prepaid calling card distributor" or "distributor" means and includes: (1) any company that purchases or receives prepaid calling cards from a prepaid calling service provider or distributor and sells or distributes those cards to one or more distributors of prepaid calling cards or to one or more prepaid calling card retailers; and (2) any company that otherwise actively engages in the promotion, advertising or dissemination of prepaid calling cards and which is not a provider. "Prepaid calling card distributor" shall not include any prepaid calling card retailers engaged exclusively in point-of-sale transactions with customers.
"Prepaid calling card retailer" means any company that sells or offers to sell prepaid calling cards directly to customers.
"Prepaid calling service" or "service" means any prepaid telecommunications service that allows customers to originate calls through a local, long distance or toll-free access number and authorization code, whether manually or electronically dialed. "Prepaid calling service" shall not include any service that provides access to a wireless telecommunications service account wherein the purchaser has a pre-existing relationship with the wireless service provider or establishes a carrier-customer relationship via the purchase of the object.
"Prepaid calling service provider" or "provider" means any company, providing prepaid calling service to the public using its own, or a resold telecommunications network, or voice over Internet technology.
"Toll-free number" means an 800 number, or other telephone number widely understood to be toll-free, which, when called as the destination number or as an access number, shall not result in the calling party being assessed, by virtue of completing the call, any fee, charge or higher rate for the call unless such fee, charge or higher rate is disclosed pursuant to subsection a. of section 2 of this act.
(1) The name of the prepaid calling service provider;
(2) The provider's 24 hour customer service telephone number;
(3) The amount and frequency of any permitted fee that may be applicable to the use of the card or service for calls originating within the United States;
(4) Notice that additional or different per minute rates, charges or fees may apply to use of the card or the service for calls to or from international telephone numbers, international cellular and international wireless telephone numbers;
(5) Notice that per minute rates may be higher for calls made via toll-free numbers;
(6) The value of the card or service, in dollars or minutes;
(7) Any applicable policies relating to refund, recharge, decrement and expiration; and
(8) Such additional information as the director may prescribe by regulation, including, but not limited to, information concerning the notice and disclosure of any rates, charges or fees for the use of the card or the service for calls.
b. Prepaid calling service providers and prepaid calling card distributors shall make available through the customer service number, a website or other electronic medium, packaging, if any, or in a clear and conspicuous poster or other writing in plain language at the point of sale such information as the director may prescribe by regulation.
c. All minutes or rates, or both, promoted or advertised on any prepaid calling card, any point of sale material relating to that card or otherwise relating to any prepaid calling service, shall be available and achievable by the customer, and there shall be no limitations on the period of time for which the promoted or advertised minutes or rates, or both, will be available to the customer unless those limitations are clearly and conspicuously disclosed in the same location on the card, advertising or point of sale material where the minutes or rates, or both, are promoted or advertised. All minutes promoted, advertised or disclosed on any voice prompt given to a customer at the time the customer places a call with the card, whether or not required by regulation to be given to the customer, shall be immediately available and achievable by the customer on that call. The customer shall not be charged for any busy signal or unanswered call.
d. A provider may not charge, apply or deduct from a card's balance any fees, taxes, surcharges or other amounts for use of the card, except: (1) the rate per minute for the particular destination called; (2) any permitted fees; and (3) any rate per minute, fee or charge permitted pursuant to paragraph (4) or (5) of subsection a. of this section.
e. If a language other than English is predominantly used on a prepaid calling card, its packaging, or in point of sale advertising or promotion for the prepaid calling card or prepaid calling service, then the disclosures required by this section shall be disclosed in that language on that card, packaging, advertisement or promotion.
f. In the case of a prepaid calling service provider, the company's 24 hour customer service telephone number shall enable the customer to obtain, at no charge, any and all applicable information regarding the rates, any permitted fees, charges and minutes available and remaining on the card for use in a single, uninterrupted call to a single, requested destination through the card and prepaid calling service. Customer service may be provided by a combination of a live operator, interactive voice response, and electronic voice recording of customer inquiries and complaints, but live operator service shall be available 24 hours a day, seven days a week. If an electronic voice recorder is used, the provider shall attempt to contact the customer no later than the next day following the date of the recording.
g. Providers and distributors shall conspicuously display the applicable access numbers for the use of the card on the body of the card itself or on its packaging.
h. A company shall not impose any fee or surcharge that is not disclosed as required by this section or that exceeds the amount disclosed by the company.
"Client" means a resident of this State for whom an international labor matching organization seeks to locate labor assistance from non-citizens residing outside the country or for whom an international matchmaking organization renders dating, matrimonial or social referral services involving citizens of a foreign country.
"Criminal history record background check" means a determination of whether a person has a criminal record by cross-referencing that person's name and fingerprints with those on file with the Federal Bureau of Investigation, Identification Division and the State Bureau of Identification in the Division of State Police.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"International labor matching organization" means a corporation, partnership, sole proprietorship, or other entity that does business in the United States, whose primary purpose is to offer to State residents, opportunities to locate labor assistance from foreign recruits residing outside the country for the purpose of bringing the foreign recruit to the State.
"International matchmaking organization" means a corporation, partnership, sole proprietorship, or other entity that does business in the United States and whose primary purpose is offering, including to State residents, dating, matrimonial, or social referral services involving citizens of a foreign country or countries who are not residing in the United States, such as (1) an exchange of names, telephone numbers, addresses, or statistics; (2) a selection of photographs; or (3) a social environment in a country other than the United States. The term shall not include an on-line personal services organization.
"On-line personal services organization" means a corporation, partnership, sole proprietorship, or other entity that does business in the United States and for profit provides an on-line forum for persons to post personal profiles as a means of self-referral for dating, matrimonial, or other social purpose.
"Recruit" means a noncitizen, nonresident person that is recruited by an international labor matching organization for the purpose of bringing the laborer to the State or by an international matchmaking organization for the purpose of providing dating, matrimonial or social referral services.
b. No person shall own or be employed by an international labor matching organization or an international matchmaking organization unless the division certifies that the person has no criminal history record of a conviction for an offense enumerated in subsection d. of this section.
c. No international labor matching organization or international matchmaking organization shall employ a person who has not been certified pursuant to subsection b. of this section.
d. A person subject to subsection b. of this section whose criminal history record background check reveals a conviction for any of the following crimes and offenses shall be disqualified from owning or being employed by an international labor matching organization or an international matchmaking organization:
(1) If the conviction was in New Jersey for a crime:
(a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or
(b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq. or the "Prevention of Domestic Violence Act," P.L.1991, c.261 (C.2C:25-17 et seq.); or
(c) involving theft as set forth in chapter 20 of Title 2C of the New Jersey Statutes; or
(d) involving any controlled dangerous substance or analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10; or
(e) involving terrorism as set forth in the "September 11th, 2001 Anti-Terrorism Act," P.L.2002, c.26 (C.2C:38-1 et seq.); or
(f) involving prostitution and related offenses as set forth in N.J.S.2C:34-1.
(2) If the conviction was in any other state or jurisdiction for conduct constituting any of the crimes described in paragraph (1) of this subsection.
b. Every owner of an international labor matching organization or an international matchmaking organization shall apply to the director to have certified as qualified any person who will be employed by the enterprise.
c. The owner of an international labor matching organization or an international matchmaking organization shall apply to the director, within 90 days of the effective date of this act, for the certifications of persons employed by the enterprise on the effective date. These persons shall be permitted to continue their employment pending the completion of the certification process.
d. An application for certification shall be accompanied by the fee required to perform a criminal history record background check.
e. The international labor matching organization or international matchmaking organization shall retain a copy of the certification of persons subject to certification under this act. The certifications shall be made available upon request to interested members of the public.
b. The Division of State Police in the Department of Law and Public Safety, upon the request of the director, shall conduct a criminal history record background check requested by the director in accordance with the provisions of this act. The check shall be performed only upon certification by the director that the person has submitted to the director the person's name, address, fingerprints and written consent for a criminal history record background check to be performed.
For the purpose of conducting the criminal history record background check, the State Police shall examine its own files and arrange for a similar examination of federal criminal records. The information obtained as a result of any such check shall be forwarded to the director.
b. Upon receiving the results of a criminal history record background check, the director shall promptly notify any person who has not been convicted of a disqualifying offense. Along with that notice, the director shall forward a certification stating that the person has been subjected to a criminal history record background check and that the check has not revealed any record that the person has been convicted of a disqualifying offense. The certificate shall be in a form and contain any additional information as the director may prescribe by rule and regulation.
c. The director shall promptly notify a person whose criminal history record background check reveals a disqualifying criminal conviction of the results of the background check. The person shall have 30 days from the receipt of that notice to petition the director for a review and cite reasons substantiating the review. If the person successfully challenges the accuracy of the criminal history record information indicating a criminal conviction or the person demonstrates affirmatively to the director clear and convincing evidence of rehabilitation, the director may issue a certificate indicating that the person has successfully cleared a background check.
In determining whether the rehabilitation of a person has been affirmatively demonstrated, the director shall consider:
(1) The nature and seriousness of the offense;
(2) The circumstances under which the offense occurred;
(3) The date of the offense;
(4) The age of the person when the offense was committed;
(5) Whether the offense was repeated;
(6) Social conditions which may have contributed to the offense; and
(7) Any evidence of rehabilitation, including good conduct in the community; counseling, psychological or psychiatric treatment; additional academic or vocational training; or personal recommendations.
d. The director shall not certify a person subject to the provisions of this act who refuses to consent to, or cooperate in, the securing of a criminal history record background check.
b. The Division of State Police shall promptly notify the director if the person who was the subject of a criminal history record background check pursuant to subsection a. of section 2 of this act is convicted of a disqualifying crime or offense in this State after the date the background check was performed.
"Computer" means an electronic, magnetic, optical, electrochemical or other high speed data processing device or another similar device capable of executing a computer program, including arithmetic, logic, memory, data storage or input-output operations and includes any computer equipment connected to such a device, computer system, or computer network.
"Computer equipment" means any equipment or device, including all input, output, processing, storage, software, or communications facilities, intended to interface with a computer.
"Computer network" means the interconnection of communication lines, including microwave or other means of electronic communication, with a computer through remote terminals, or a complex consisting of two or more interconnected computers.
"Computer program" means a series of instructions or statements executable on a computer, which directs the computer system in a manner to produce a desired result.
"Computer software" means a set of computer programs, data, procedures, and associated documentation concerning the operation of a computer system.
"Computer system" means a set of interconnected computer equipment intended to operate as a cohesive system.
"Computerized record" means any record, recorded or preserved on any computer, computer equipment, computer network, computer program, computer software, or computer system.
"End user computer system" means any computer system that is designed to allow end users to access computerized information, computer software, computer programs, or computer networks. End user computer system includes, but is not limited to, desktop computers, laptop computers, tablets or other mobile devices, or removable media.
"Health benefits plan" means a benefits plan which pays or provides hospital and medical expense benefits for covered services, and is delivered or issued for delivery in this State by or through a carrier. Health benefits plan includes, but is not limited to, Medicare supplement coverage and risk contracts to the extent not otherwise prohibited by federal law. For the purposes of this act, health benefits plan shall not include the following plans, policies, or contracts: accident only, credit, disability, long-term care, TRICARE supplement coverage, coverage arising out of a workers' compensation or similar law, automobile medical payment insurance, personal injury protection insurance issued pursuant to P.L.1972, c.70 (C.39:6A-1 et seq.), or hospital confinement indemnity coverage.
"Health insurance carrier" means an insurance company, health service corporation, hospital service corporation, medical service corporation, or health maintenance organization authorized to issue health benefits plans in this State.
"Identifiable health information" means individually identifiable health information as defined in 45 C.F.R. s.160.103.
"Personal information" means an individual's first name or first initial and last name linked with any one or more of the following data elements: (1) Social Security number; (2) driver's license number or State identification card number; (3) address; or (4) identifiable health information. Dissociated data that, if linked, would constitute personal information is personal information if the means to link the dissociated data were accessed in connection with access to the dissociated data.
"Public network" means a network to which anyone, including the general public, has access and through which a person can connect to other networks or the Internet.
"Record" means any material, regardless of the physical form, on which information is recorded or preserved by any means, including written or spoken words, graphically depicted, printed, or electromagnetically transmitted. Record does not include publicly available directories containing information an individual has voluntarily consented to have publicly disseminated or listed.
b. This section shall only apply to end user computer systems and computerized records transmitted across public networks.
b. As used in this section, "escrow agent" means an independent person, including an independent bonded escrow company, an independent financial institution whose accounts are insured by a governmental agency or instrumentality, an independent licensed title insurance agent, or an attorney licensed to practice law in this State, who is responsible for the receipt of any written instrument, money, evidence of title to real or personal property, or other thing of value to be held until the happening of a specified event or the performance of a prescribed condition, when it is then to be delivered in connection with the transfer of real estate.
"Coin redemption machine" means a device that accepts, sorts, and counts coins deposited by a consumer and provides the consumer with a cash refund or refundable voucher.
"Operator" means any person, partnership, corporation or other organization that operates a coin redemption machine.
a. If a fee will be imposed for providing the coin redemption service; and
b. The amount of any fee.
A second violation of section 2 of this act is an unlawful practice under P.L.1960, c.39 (C.56:8-1 et seq.), and for the purposes of this section shall be considered a first offense under P.L.1960, c.39 (C.56:8-1 et seq.).
A third or subsequent violation of section 2 of this act is an unlawful practice under P.L.1960, c.39 (C.56:8-1 et seq.), and for the purposes of this section shall be considered a subsequent offense under P.L.1960, c.39 (C.56:8-1 et seq.).
An action to recover a penalty under this act may not be maintained as a class action.
"Consumer" means a purchaser or lessee of a motor vehicle normally used for personal, family, or household purposes.
"Creditor" means a dealer or lender, or any assignee of a dealer or lender.
"Dealer" means a person who is licensed as a motor vehicle dealer or leasing dealer under R.S.39:10-19 and actively engaged in the business of buying, selling, exchanging, or leasing new or used motor vehicles at retail and who has an established place of business.
"Financing agreement" means an agreement, through a bargained communication or written contract, of an extension of a loan or other line of credit by a lender to a borrower toward the purchase of a motor vehicle.
"Lease agreement" has the same meaning as defined in section 2 of P.L.1988, c.123 (C.56:12-30).
"Lender" means an agent, officer, director, and employee of a lender, or any person who solicits, arranges for, or otherwise participates or assists in the making of loans, or in any way acts as an intermediary between a borrower and a lender in effecting loans related to the sale or lease of a motor vehicle.
"Lessee" has the same meaning as defined in section 2 of P.L.1988, c.123 (C.56:12-30).
"Motor vehicle" has the same meaning as defined in R.S.39:1-1.
"Payment assurance device" means a device installed on a motor vehicle with global positioning system capability, starter interrupt capability allowing for the remote enabling or disabling of the motor vehicle, or both, and which is installed pursuant to a motor vehicle consumer's financing agreement or lease agreement.
b. A creditor may install or have installed a payment assurance device on a motor vehicle only if:
(1) Prior to or at the time the motor vehicle is purchased or leased, the creditor provides, and the consumer acknowledges in writing the receipt of, written notification of the installation of the payment assurance device, which shall include, but is not limited to, a statement in at least 10-point boldface type indicating that the motor vehicle is equipped with a device that the creditor can use to remotely disable the vehicle, advising the consumer of the grace period and warning provided for in paragraphs (3) and (4) of this subsection, and identifying the name, address, and a telephone number of the creditor;
(2) The consumer is not billed or charged a fee for the installation of the device;
(3) The creditor or an agent thereof does not remotely disable the motor vehicle until the consumer is in default on any term under the financing agreement or lease agreement, including but not limited to the periodic payment due on the purchase or lease, for five or more calendar days on a financing agreement or lease agreement whose terms call for at least one weekly payment or for 10 or more calendar days on any other financing agreement or lease agreement;
(4) The consumer is provided a warning no less than 72 hours before the motor vehicle is disabled remotely, and the warning is transmitted by the creditor through at least two modes of communication, such as by email, mail, telephone, text message, or through the payment assurance device or motor vehicle, provided that the warning method shall not violate any applicable State or federal law;
(5) The payment assurance device cannot remotely disable the motor vehicle while it is being operated; and
(6) The consumer in default is provided with the ability to start a remotely disabled motor vehicle and use it for a period of at least 48 hours.
c. A violation of the provisions of subsection a. of this section by a creditor is an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.).
(1) provide end-to-end encryption;
(2) provide Certificate-based Authentication for manufacturer access when obtaining updates, registering, or relaying audio or video between Internet servers;
(3) prohibit unauthenticated access, including prohibiting implied third-party trusted access;
(4) prevent a consumer from disabling security measures; and
(5) include conspicuous and easily understandable instructions supplied by the manufacturer notifying consumers about the proper use of the baby monitor and its security enhancement.
b. It shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) to manufacture, sell, offer for sale, or distribute any baby monitor that does not meet the requirements of subsection a. of this section.
c. The Director of the Division of Consumer Affairs in the Department of Law and Public Safety, in consultation with the Commissioner of Children and Families, shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to effectuate the purposes of this act.
d. For the purposes of this section, "baby monitor" means a device that is marketed exclusively for the purpose of broadcasting audio or video of an infant or child. The term shall not include a multi-functional device such as a smart phone, digital video camera, security camera, or other similar device.
"Deed" means a written instrument entitled to be recorded in the office of a county recording officer which purports to convey or transfer title to a freehold interest in any lands, tenements, or other realty in this State by way of grant or bargain and sale thereof from the named grantor to the named grantee. A leasehold interest for 99 years or more or a proprietary lease of a cooperative unit and any assignment of a proprietary lease of a cooperative unit, shall be treated as a "freehold" for the purpose of this act. Instruments providing for common driveways; for exchanges of easements or rights-of-way; for revocable licenses to use, to adjust, or to clear defects of or clouds on title; to provide for utility service lines such as drainage, sewerage, water, electric, telephone, or other such service lines; or to quitclaim possible outstanding interests, shall not be "deeds" for the purposes of this act.
"Deed procurement services" means the provision by a non-governmental entity of one or more copies of deeds for lands, tenements, or other realty in this State to a property owner, for a fee in excess of the amount authorized under Title 22A of the New Jersey Statutes that the county clerk's office assesses for providing copies of deeds, and not in relation to the transfer or sale of, or the mortgage origination, mortgage servicing, mortgage refinancing, property tax servicing, or other action initiated by or on behalf of the owner with respect to, such lands, tenements, or realty.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
(1) use a written form of communication to solicit clients for deed procurement services unless the written form of communication displays, in a clear, conspicuous, and prominent manner and makes the information stand out from the rest of the text of the communication, the address and telephone number of the appropriate county clerk's office through which the recipient could obtain a copy of the deed directly, the amount of the fee provided for in Title 22A of the New Jersey Statutes that the county clerk's office assesses for providing copies of deeds, and any other language that the director may prescribe by regulation; or
(2) create a false impression in a solicitation for deed procurement services that the recipient is in any way legally required to use the person's services in order to obtain a copy of a deed.
b. Any person who uses a written form of communication to solicit clients for deed procurement services shall, at least 15 days prior to distribution, provide a copy of such written form of communication to the county clerk's office in each of the counties in which the written form of communication will be distributed.
(1) contract for a cat or dog in which the transfer of ownership of the animal is contingent on the making of payments over a period of time subsequent to the transfer of possession of the animal, unless these payments are on an unsecured loan for the purchase of the animal; or
(2) lease agreement that provides for or offers the option of transferring ownership of a cat or dog at the end of the lease term.
b. Notwithstanding the provisions of section 1 of P.L.1966, c.39 (C.56:8-13) to the contrary, a pet dealer who violates this section shall be liable for the following penalties:
(1) for a first offense, a penalty of not more than $10,000; and
(2) for a second or subsequent offense, a penalty of not more than $30,000.
c. In addition to any other remedies provided by P.L.1960, c.39 (C.56:8-1 et seq.) or any other applicable law, a consumer taking possession of a cat or dog pursuant to a contract or lease as described in subsection a. of this section shall be deemed the owner of the cat or dog, shall have a civil cause of action in any court of competent jurisdiction, and shall be entitled to recover all moneys paid by the consumer, litigation costs, and reasonable attorney's fees.
d. The provisions of this section shall not apply to, and shall not prohibit the temporary leasing or rental of the following animals, provided the animals are used in accordance with applicable federal, State and local animal protection laws:
(1) A purebred cat or dog which is leased for the express purpose of breeding pursuant to a written lease recorded with a national purebred dog or cat registry, and which lease is for a specific time and has an established end-date; or
(2) An animal trained or utilized to perform tasks, including, but not limited to, guide dogs, security dogs, law enforcement dogs, and other assistance animals.
"Annual report" means a report filed every year to the Department of the Treasury by a for-profit corporation, a non-profit corporation, limited partnership, limited liability partnership, or limited liability company pursuant to N.J.S.14A:4-5; N.J.S.15A:4-5; section 66 of P.L.1983, c.489 (C.42:2A-69); section 49 of P.L.2000, c.161 (C.42:1A-49); or section 26 of P.L.2012, c.50 (C.42:2C-26).
"Annual report filing services" means the filing of an annual report by a non-governmental entity on behalf of a for-profit corporation, a non-profit corporation, limited partnership, limited liability partnership, or limited liability company for a fee in excess of the amount authorized under the relevant statute.
"Director" means the Director of the Division of Revenue and Enterprise Services in the Department of the Treasury.
(1) use a written form of communication to solicit clients for annual report filing services unless the written form of communication displays, in a clear, conspicuous, and prominent manner and makes the information stand out from the rest of the text of the communication, the URL address of the Department of the Treasury's Internet web site through which the recipient could file an annual report directly, the amount of the fee that the Department of the Treasury's office assesses for filing annual reports, and any other language that the director may prescribe by regulation; or
(2) create a false impression in a solicitation for annual report filing services that the recipient is in any way legally required to use the person's services in order to file an annual report.
b. Any person who uses a written form of communication to solicit clients for annual report filing services shall, at least 15 days prior to distribution, provide a copy of such written form of communication to the Department of the Treasury.
"Covered information" means personally identifiable information or material, or information that is linked to personally identifiable information or material, in any media or format that is not publicly available and is:
created by or provided to an operator by a student, or the student's parent or guardian, in the course of the student's, parent's, or guardian's use of the operator's site, service, or application for K-12 school purposes;
created by or provided to an operator by an employee or agent of a K-12 school or school district for K-12 school purposes; or
gathered by an operator through the operation of its site, service, or application for K-12 school purposes and personally identifies a student, including, but not limited to, information in the student's education record or electronic mail, first and last name, home address, telephone number, electronic mail address, or other information that allows physical or online contact with the student, discipline records, test results, special education data, juvenile dependency records, grades, evaluations, criminal records, medical records, health records, social security number, biometric information, disabilities, socioeconomic information, persistent unique identifiers, food purchases, political affiliations, religious information, text messages, documents, student identifiers, search activity, photographs, voice recordings, or geolocation data.
"De-identified data" means information that is not or can no longer be linked or reasonably linkable to a person or the person's computer, telecommunications device, or wireless telecommunications device, but which may still contain unique records or attributes. "De-identified data" shall not mean covered information.
"Interactive computer service" shall have the same meaning as provided in 47 U.S.C. s.230.
"K-12 school" means a public school that offers any of grades kindergarten to 12 and that is operated by any school district in this State.
"K-12 school purposes" means purposes that are directed by or that customarily take place at the direction of a school district, K-12 school, teacher, or school district or aid in the administration of school activities, including, but not limited to, instruction in the classroom or at home, administrative activities, and collaboration between students, school personnel, or parents or guardians, or are otherwise for the use of a benefit of the school district or K-12 school.
"Online education service" or "service" means an Internet website, online service, online computer application, or mobile application that is used primarily for K-12 school purposes and is designed and marketed for K-12 school purposes.
"Operator" means the operator of an online education service with actual knowledge that the online education service is used primarily for K-12 school purposes and is designed and marketed for K-12 school purposes.
"Persistent unique identifier" means a digital label given to an object, such as a digital file, or entity, such as a person, which is used on the online education service.
"Personally identifiable information" means information that is linked or reasonably linkable to an identified or identifiable person. "Personally identifiable information" shall not include de-identified data or publicly available information.
"Publicly available information" means information that is lawfully made available from federal, State, or local government records.
"Recommendation engine" means software that uses an algorithm to predict and recommend what information, product, or item a student may prefer.
"School district" means any school district established pursuant to Title 18A of the New Jersey Statutes.
"Student" means a minor user of an online education service.
"Targeted advertising" means the presenting of advertisements to a student where the advertisement is selected based on information obtained or inferred over time from that student's online behavior, use of Internet websites, online services, online computer applications, or mobile applications, or covered information. "Targeted advertising" shall not include advertising to a student at an online location based upon that student's current visit to that location, or in response to that student's request for information or feedback, without the retention of the student's online activities or requests over time for the purpose of targeting subsequent advertisements.
(1) use information, including covered information, created or gathered by the operator's online education service, to amass a profile about a student for any purpose other than K-12 school purposes. A profile shall not include the collection and retention of account information that remains under the control of the student, the student's parents or guardian, or K-12 school;
(2) sell or rent a student's information, including covered information. This paragraph shall not apply to the purchase, merger, or other type of acquisition of an operator by another entity if the operator or successor entity complies with this section concerning previously acquired student information, including covered information, or to national assessment providers if the provider secures express written consent of the student or the student's parent or guardian, given in response to clear and conspicuous notice, solely to provide access to employment, educational scholarships, financial aid, or postsecondary educational opportunities;
(3) disclose covered information unless the disclosure is:
(a) made in furtherance of the K-12 school purposes purpose of the service, provided the recipient of the covered information shall not further disclose the information unless done to allow or improve the operability and functionality of the operator's online education service;
(b) required by federal or State law to protect against liability;
(c) made to respond to or participate in a judicial process;
(d) to protect the safety of students or security of the service;
(e) for educational or employment purposes requested by the student's parent or guardian, provided that the covered information is not used or further disclosed for any other purpose not requested by the student's parent or guardian;
(f) to a third party if the operator contractually prohibits the third party from using any covered information for any purpose other than providing the contracted service to or on behalf of the operator, prohibits the third party from disclosing any covered information provided by the operator with subsequent third parties, and requires the third party to implement and maintain reasonable security procedures and practices; or
(g) for legitimate research purposes, subject to the requirements of paragraphs (1) through (3) of this subsection:
(i) as required by federal or State law and subject to the restrictions of the application of federal or State law;
(ii) as allowed by federal or State law and under the direction of a K-12school, school district, or the Department of Education, if no covered information is used for any purpose in furtherance of advertising or to amass a profile on the student for any purpose that is not in furtherance of a K-12 school purpose; or
(iii) for use by a federal, State, or local educational agency, including K-12 schools and school districts, for K-12 school purposes, as permitted by federal or State law; and
(4) engage in targeted advertising on the operator's service, or target advertising on any other Internet website, online service, online computer application, or mobile application if the targeted advertising is based on any information, including covered information, that the operator's service has acquired because of the use of the operator's service for K-12 school purposes.
b. Nothing in this section shall be construed to prohibit the operator's use of covered information for maintaining, developing, supporting, diagnosing, or improving the operator's online education service.
a. implement and maintain reasonable security procedures and practices appropriate to the nature of the covered information;
b. protect that information from unauthorized access, destruction, use, modification, or disclosure; and
c. delete covered information at the request of a K-12 school or a school district overseeing the student's education through the service or a student who has subsequently reached the age of majority, unless a student after having reached the age of majority or parent or guardian requests that the operator maintain the covered information.
a. improve the educational products within the service owned by the operator;
b. demonstrate the effectiveness of the operator's products or services, including their marketing;
c. develop or improve websites, online services, or online or mobile applications for K-12 school purposes;
d. use a recommendation engine to recommend to a student additional content or services concerning an educational or employment opportunity purpose on an Internet website, online service, online computer application, or mobile application if the recommendation is not determined in whole or in part by payment or other consideration from a third party; or
e. respond to a student's request for information or for feedback if the information or response is not determined, in whole or in part, by payment or other consideration from a third party.
a. limit the authority of a law enforcement agency to obtain any content or information from an operator as authorized by law or under a court order;
b. limit the ability of an operator to use student data, including covered information, for adaptive learning or customized student learning purposes;
c. apply to general audience Internet websites, general audience online services, general audience online applications, or general audience mobile applications, even if login credentials created for an operator's website, service, or application may be used to access those general audience websites, services, or applications;
d. limit service providers from providing Internet connectivity to schools or students and their families;
e. prohibit an operator from marketing educational products directly to parents or guardians if the marketing did not result from the use of covered information obtained by the operator through the provision of services pursuant to P.L.2019, c.494 (C.56:8-215 et seq.);
f. impose a duty upon a provider of an electronic store, gateway, marketplace, or other means of purchasing or downloading software or applications to review or enforce compliance with P.L.2019, c.494 (C.56:8-215 et seq.) on the software of applications;
g. impose a duty upon a provider of an interactive computer service to review or enforce compliance with P.L.2019, c.494 (C.56:8-215 et seq.) by a third-party content provider; or
h. prohibit students from downloading, exporting, transferring, saving, or maintaining their own student data or documents.
b. Pursuant to the end of the public health emergency, but the continuation of the state of emergency declared in response to COVID-19, the Legislature seeks to rescind the current restrictions on the return of certain items and clarify that, in the future, the prohibition on the return of certain products shall be limited to a declared public health emergency.
"Groceries and other foodstuffs" means dairy products, meat and delicatessen products, produce products, seafood products, carbonated beverages, coffee and other beverages, snack foods, candy products, baked products, paper products, household cleaning items, health and beauty products, frozen foods, pet foods and supplies, and any other edible product not previously listed.
"Retail food store" means any retail establishment where groceries and other foodstuffs are regularly and customarily sold in a bona fide manner for off-premises consumption.
(1) greater than 20 percent of the cost of the individual order; or
(2) greater than 10 percent of the cost of the individual order, when the order is delivered by an employee of the restaurant or an independent contractor with whom the restaurant has contracted directly.
The provisions of this section shall not be construed to limit the ability of any restaurant to choose to pay up to 25 percent of the cost of the individual order to access additional advertising or other products and services offered by any third-party food takeout and delivery service application or Internet website. However, any restaurant that chooses to pay a service fee that is greater than the fee set forth in the provisions of this section shall be required to affirmatively elect to pay that fee regardless of any contract that is in effect on the effective date of this act unless the contract was entered into prior to the state of emergency declared by the Governor pursuant to Executive Order No. 103 of 2020.
b. The provisions of this section shall supersede and preempt any county or municipal law, ordinance, resolution, or regulation concerning the relationship between third-party food takeout and delivery service applications or Internet websites and any restaurant utilizing its services.
c. As used in this section, "third-party food takeout and delivery service application or Internet website" means any online food ordering and delivery service that allows a consumer to place an order for takeout or delivery from a restaurant.
b. For purposes of this section, "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, or any other legal or commercial entity.
The provisions of this section shall not be construed to prevent a cause of action brought for violation of P.L.1960, c.39 (C.56:8-1 et seq.).
(2) No person shall receive compensation for referring any individual to another person to advise or assist this individual with any veterans benefits matter.
(3) A person seeking to receive compensation for advising or assisting any individual with any veterans benefits matter shall, before rendering any services, memorialize all terms regarding the individual's payment of fees for services rendered in a written agreement, signed by both parties, that adheres to all criteria specified within 38 C.F.R. s.14.636.
(4) No person shall receive any compensation for any services rendered before the date on which a notice of disagreement is filed with respect to the individual's case.
(5) No person shall guarantee, either directly or by implication, that any individual is certain to receive specific veterans benefits or that any individual is certain to receive a specific level, percentage, or amount of veterans benefits.
(6) No person shall receive excessive or unreasonable fees as compensation for advising or assisting any individual with any veterans benefits matter. The factors articulated within 38 C.F.R. s.14.636 shall govern determinations of whether a fee is excessive or unreasonable.
b. (1) No person shall advise or assist for compensation any individual concerning any veterans benefits matter without clearly providing, at the outset of the business relationship, the following disclosure, both orally and in writing:
"This business is not sponsored by, or affiliated with, the United States Department of Veterans Affairs or the New Jersey Department of Military and Veterans Affairs, or any other federally chartered veterans service organization. Other organizations, including but not limited to the New Jersey Department of Military and Veterans Affairs, your local county veterans service agency, and other federally chartered veterans service organizations, may be able to provide you with this service free of charge. Products or services offered by this business are not necessarily endorsed by any of these organizations. You may qualify for other veterans benefits beyond the benefits for which you are receiving services here."
The written disclosure shall appear in at least 12-point font and shall appear in a readily noticeable and identifiable place in the person's agreement with the individual seeking services. The individual shall verbally acknowledge understanding of the oral disclosure and shall sign the document in which the written disclosure appears to represent understanding of these provisions. The person offering services shall retain a copy of the written disclosure while providing veterans benefits services for compensation to the individual and for at least one year after the date on which the service relationship terminates.
(2) No person shall advertise for-compensation services in veterans benefits matters without including the following disclosure:
"This business is not sponsored by, or affiliated with, the United States Department of Veterans Affairs or the New Jersey Department of Military and Veterans Affairs, or any other federally chartered veterans service organization. Other organizations, including but not limited to the New Jersey Department of Military and Veterans Affairs, your local county veterans service agency, and other federally chartered veterans service organizations, may be able to provide you with these services free of charge. Products or services offered by this business are not necessarily endorsed by any of these organizations. You may qualify for other veterans benefits beyond the services that this business offers."
If the advertisement is printed, including but not limited to advertisements visible to Internet users, the disclosure shall appear in a readily visible place on the advertisement. If the advertisement is verbal, the spoken statement of the disclosure shall be clear and intelligible.
c. A violation of the provisions of this act shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.).
d. As used in this section:
"Veterans benefits matter" means the preparation, presentation, or prosecution of any claim affecting any person who has filed or expressed an intent to file a claim for any benefit, program, service, commodity, function, or status, entitlement to which is determined under the laws and regulations administered by the United States Department of Veterans Affairs or the New Jersey Department of Military and Veterans Affairs pertaining to veterans, their dependents, their survivors, and any other individual eligible for such benefits.
"Compensation" means payment of any money, thing of value, or financial benefit.
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(2) Beginning January 1, 2027, no fire department in the State shall use any class B firefighting foam containing intentionally added PFAS.
b. Subsection a. of this section shall not apply to the sale, manufacture, distribution, or use of class B firefighting foam for which the inclusion of PFAS is required by federal law, or by a rule or regulation adopted pursuant thereto, including, but not limited to, 14 C.F.R. s.139.317. If a federal requirement to include PFAS in class B firefighting foam is revoked, subsection a. of this section shall apply one year after the requirement is revoked.
c. Notwithstanding the provisions of subsection a. to the contrary, the owner or operator of a facility that uses a fixed foam fire suppression system for class B fires, which system is designed for 110 percent containment of any expected discharge volume, may use any class B firefighting foam containing intentionally added PFAS until four years after the effective date of P.L.2023, c.243 (C.56:8-229 et al.), provided that the use complies with the provisions of subsection e. of this section. A manufacturer or distributor may manufacture class B firefighting foam for, or distribute or sell class B firefighting foam to, a facility owner or operator for use pursuant to this subsection.
d. (1) Notwithstanding the provisions of subsection a. to the contrary, the owner or operator of an oil refinery or petroleum terminal may use any class B firefighting foam containing intentionally added PFAS for fire suppression on a storage tank for combustible or flammable liquids with a surface area of 120 square meters or greater, or for fire suppression on a fuel-in-depth pool until eight years after the effective date of P.L.2023, c.243 (C.56:8-229 et al.), provided that the use complies with the provisions of subsection e. of this section. A manufacturer or distributor may manufacture class B firefighting foam for, or distribute or sell class B firefighting foam to, a facility owner or operator for use pursuant to this subsection.
(2) The owner or operator of an oil refinery or petroleum terminal that intends to continue the use of class B firefighting foam containing intentionally added PFAS pursuant to paragraph (1) of this subsection shall disclose this information to the Commissioner of Community Affairs no later than two years after the effective date of P.L.2023, c.243 (C.56:8-229 et al.). If, after providing this information to the Commissioner of Community Affairs, the owner or operator of the oil refinery or petroleum terminal intends to transition a facility to PFAS-free firefighting foam, the owner or operator shall inform the Commissioner of Community Affairs no later than 90 days prior to the proposed transition date.
(3) (a) An owner or operator of an oil refinery or petroleum terminal may apply to the Commissioner of Community Affairs for a waiver to extend the exemption provided in paragraph (1) of this subsection.
(b) An owner or operator of an oil refinery or petroleum terminal that anticipates applying for a waiver pursuant to this paragraph shall submit a notice of intent to the Commissioner of Community Affairs no later than five years after the effective date of P.L.2023, c.243 (C.56:8-229 et al.).
(c) The Commissioner of Community Affairs may grant a waiver if the applicant provides:
(i) clear and convincing evidence that there is no commercially available replacement that does not contain intentionally added PFAS and that is capable of suppressing fire for that specific use;
(ii) information on the amount of firefighting foam containing intentionally added PFAS stored, used, or released by the applicant on an annual basis;
(iii) a detailed transition plan, including a timeline, for the owner or operator of the oil refinery or petroleum terminal to transition to firefighting foam that does not contain intentionally added PFAS chemicals for that specific use; and
(iv) a plan for meeting the requirements of subsection e. of this section.
(d) The Commissioner of Community Affairs shall provide an applicant an opportunity to correct deficiencies in an application for a waiver.
(e) The Commissioner of Community Affairs shall not grant a waiver under this paragraph for a specific use if any other oil refinery or petroleum terminal is known to have transitioned to commercially available class B firefighting foam that does not contain intentionally added PFAS chemicals for that specific use. The applicant may provide evidence as to why this subparagraph is inapplicable, including evidence that the specific use is different. In making a decision on a waiver, the Commissioner of Community Affairs shall consider both information provided by the applicant and information provided through public comment.
(f) The term of a waiver under this paragraph shall not exceed two years. A waiver may be extended for one additional consecutive term. All waivers shall expire no later than twelve years after the effective date of P.L.2023, c.243 (C.56:8-229 et al.).
(g) The Commissioner of Community Affairs shall provide an opportunity for public comment during the waiver application and review process.
(h) The owner or operator of an oil refinery or petroleum terminal that has received a waiver may provide and use class B firefighting foam containing intentionally added PFAS chemicals in the form of mutual aid to another oil refinery or petroleum terminal at the request of authorities only if the other oil refinery or petroleum terminal also has a waiver.
(i) The Commissioner of Community Affairs shall notify the waiver applicant of a decision within one year after the date the application is received.
(j) The Department of Community Affairs shall impose a fee on an applicant who requests a waiver or waiver extension pursuant to this paragraph, in an amount not to exceed the reasonable costs of administering the provisions of this paragraph.
e. (1) A person that uses class B firefighting foam containing intentionally added PFAS pursuant to subsection c. or d. of this section shall report the use of the foam to the Commissioner of Community Affairs within five business days after the use, including the identity of the foam, the quantity used, the total PFAS concentration, the application for which the foam was used, and the duration of the fire.
(2) A person that uses, or plans to use, class B firefighting foam containing intentionally added PFAS pursuant to subsection c. or d. of this section shall:
(a) not release PFAS chemicals directly to the environment, such as to unsealed ground, soakage pits, waterways, or uncontrolled drains;
(b) fully contain all releases onsite;
(c) implement containment measures such as bunds and ponds that are controlled, impervious to PFAS chemicals, and do not allow water used for firefighting, wastewater, runoff, or other wastes to be released to the environment, such as to soils, groundwater, waterways, or stormwater;
(d) dispose of all water used for firefighting, wastewater, runoff, and other wastes in a manner that prevents releases to the environment;
(e) in the event of a release of PFAS chemicals, report the identity of the foam, the quantity used, the total PFAS concentration, and the form of any waste that contains PFAS chemicals that is released into the environment immediately to the Department of Environmental Protection; and
(f) document the measures undertaken to comply with the provisions of this paragraph, which documentation shall be retained by the person and made available to any State or local official enforcing the provisions of P.L.2023, c.243 (C.56:8-229 et al.), upon request.
f. No later than one year after the effective date of P.L.2023, c.243 (C.56:8-229 et al.), a manufacturer of class B firefighting foam containing intentionally added PFAS shall notify, in writing, persons that sell the manufacturer's products in the State about the provisions of P.L.2023, c.243 (C.56:8-229 et al.).
g. A manufacturer that manufactures, sells, or distributes class B firefighting foam containing intentionally added PFAS in the State after one year after the effective date of P.L.2023, c.243 (C.56:8-229 et al.), except as authorized pursuant to subsections c. and d. of this section, shall recall the product no later than 27 months after the effective date of P.L.2023, c.243 (C.56:8-229 et al.), and shall reimburse the retailer or any other purchaser for the product. A recall of the product shall include safe transport and storage, and documentation of the amount and storage location of the class B firefighting foam containing intentionally added PFAS, until the Department of Environmental Protection formally identifies a safe disposal technology. The manufacturer shall retain this documentation and shall provide it to any State or local official enforcing the provisions of P.L.2023, c.243 (C.56:8-229 et al.), upon request.
h. After the expiration of any applicable exemption or waiver pursuant to subsections c. or d. of this section, the owner or operator of a facility that uses a fixed foam fire suppression system for class B fires, an oil refinery, or a petroleum terminal, as applicable, shall safely store any remaining class B firefighting foam containing intentionally added PFAS until the Department of Environmental Protection formally identifies a safe disposal technology. Safe storage shall include safe transport and documentation of the amount and storage location of the class B firefighting foam containing intentionally added PFAS. The operator shall retain this documentation and shall provide it to any State or local official enforcing the provisions of P.L.2023, c.243 (C.56:8-229 et al.), upon request.
i. A violation of the provisions of this section shall constitute an unlawful practice for the purposes of P.L.1960, c.39 (C.56:8-1 et seq.), and the violator shall be subject to all remedies and penalties available pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
j. Nothing in this section shall be construed to impose liability on any news media that accepts or publishes advertising for any product that may fall within the scope of the provisions of this section.
k. As used in this section:
"Class B firefighting foam" means foam designed to prevent or extinguish a fire in flammable liquids, combustible liquids, petroleum greases, tars, oils, oil-based paints, solvents, lacquers, alcohols, and flammable gases.
"Fixed foam fire suppression system" means: (1) an engineered or pre-engineered total flooding or local application system consisting of a fixed supply of extinguishing agent permanently connected for fixed agent distribution to fixed nozzles that are arranged to discharge an extinguishing agent into an enclosure, directly onto a hazard, or a combination of both; or (2) an automatic sprinkler system.
"Fuel-in-depth pool" means fuel pooling in an area bounded by contours of land or physical barriers that are at least six inches in height, surround a surface area greater than 500 square meters, and are designed to retain fuel.
"Intentionally added PFAS" means PFAS added to a product or one of the product's components to provide a specific characteristic, appearance, or quality or to perform a specific function. "Intentionally added PFAS" also includes any degradation byproducts of PFAS.
"Perfluoroalkyl and polyfluoroalkyl substances" or "PFAS" means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.
"Petroleum terminal" means: (1) a bulk liquid storage facility exclusively engaged in the merchant wholesale distribution of petroleum products, including liquefied petroleum gas, which contains at least one storage tank containing petroleum products with a surface area of 120 square meters or greater; or (2) a facility engaged in the distribution of crude petroleum from extraction or processing facilities, which includes at least one storage tank containing crude petroleum with a surface area of 120 square meters or greater.
“Firefighting personal protective equipment” means any clothing or wearable items designed, intended, or marketed to be worn by firefighting personnel in the performance of their duties that are designed for use in fire and rescue activities, including, but not limited to, jackets, pants, footwear, gloves, helmets, and respiratory equipment.
“Intentionally added PFAS” means PFAS added to a product or intentionally used during the development of a product or one of its product components to provide a specific characteristic, appearance, or quality, or to perform a specific function. “Intentionally added PFAS” includes any degradation byproducts of PFAS. “Intentionally added PFAS” shall not include any technically unavoidable trace quantity of PFAS, which stems from impurities in the ingredients of the product, or from the manufacturing process, storage, or packaging of the product.
“Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means the same as defined in subsection k. of section 1 of P.L.2023, c.243 (C.56:8-229).
(1) the person manufactures the firefighting personal protective equipment and owns, or is the licensee of, the brand or trademark under which the firefighting personal protective equipment is used in a commercial enterprise, sold, offered for sale, or distributed in the State;
(2) if there is no person in the State who is the producer pursuant to paragraph (1) of this subsection, the producer shall be the owner, or, if the owner is not in the State, the exclusive licensee of, a brand or trademark under which the firefighting personal protective equipment is used in a commercial enterprise, sold, offered for sale, or distributed in the State. As used in this paragraph, "licensee" means a person holding the exclusive right to use a trademark or brand in the State in connection with the manufacture, sale, or distribution of a product; or
(3) if there is no person in the State who is the producer pursuant to paragraphs (1) or (2) of this subsection, the producer shall be the person who first sells the firefighting personal protective equipment in the State.
b. Beginning one year after the effective date of this act, a producer that sells firefighting personal protective equipment containing intentionally added PFAS shall provide written notice to the purchaser at the time of sale stating:
(1) that the firefighting personal protective equipment contains intentionally added PFAS;
(2) the reason for which the firefighting personal protective equipment contains intentionally added PFAS; and
(3) the specific intentionally added PFAS contained within the product, listed by chemical name and abbreviated name.
c. A producer that sells firefighting personal protective equipment containing intentionally added PFAS and the purchaser of the firefighting personal protective equipment containing intentionally added PFAS shall retain a copy of the written notice provided pursuant to subsection b. of this section for at least three years from the date of purchase. Upon request from the Division of Consumer Affairs in the Department of Law and Public Safety or the Division of Fire Safety in the Department of Community Affairs, the producer or purchaser shall furnish the written notice, or a copy of the written notice, and associated sales documentation to the applicable entity within 30 days of the request.
d. A violation of the provisions of subsection b. of this section shall constitute an unlawful practice for the purposes of P.L.1960, c.39 (C.56:8-1 et seq.), and the violator shall be subject to all remedies and penalties available pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
b. A violation of the provisions of subsection a. of this section shall constitute an unlawful practice for the purposes of P.L.1960, c.39 (C.56:8-1 et seq.), and the violator shall be subject to all remedies and penalties available pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).
c. The provisions of this section shall not apply to non-clothing personal protective equipment, including self-contained breathing apparatuses and other respiratory protection products, hearing protection products, and protective communication devices, until January 1, 2030.
“Recovery residence” means a boarding house licensed by the Department of Community Affairs and which provides a sober living environment and alcohol- and drug-free living accommodations to individuals with substance use disorders, or to individuals with co-occurring mental health and substance use disorders, but which does not provide clinical treatment services for mental health or substance use disorders.
“Treatment provider” means a facility licensed in accordance with section 8 of P.L.1975, c.305 (C.26:2B-14) for substance use disorder treatment or services, or a substance use disorder treatment facility issued a certificate of approval pursuant to P.L.1970, c.334 (C.26:2G-21 et seq.).
a. information on the types and methods of services provided;
b. information about the location in which services are provided; and
c. the treatment provider’s or recovery residence’s name and brand name, phone number, mailing address, and business location address.
(1) make a false or misleading statement about the treatment provider’s or recovery residence’s status as an in-network or out-of-network provider;
(2) provide, or direct any other person or entity to provide, false or misleading information about the identity of, or contact information for, any treatment provider or recovery residence;
(3) include false or misleading information about the Internet address of any treatment provider’s or recovery residence’s website, or to surreptitiously direct or redirect a person to another website;
(4) suggest or imply that an affiliation with another treatment provider or recovery residence exists, unless the other treatment provider or recovery residence has provided express, written consent to indicate that affiliation;
(5) make a false or misleading statement about the substance use disorder treatment services the treatment provider or recovery residence provides; or
(6) make a false or misleading statement about the geographic location of the treatment provider or recovery residence, or the geographic location in which the treatment provider or recovery residence provides substance use disorder treatment services.
b. Any treatment provider or recovery residence which violates the provisions of subsection a. of this section shall be liable to a civil penalty of not more than $20,000 for each violation. The civil penalty shall be collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding before the municipal court having jurisdiction.
c. A person who suffers any injury or damages, including, but not limited to, paying for services that were performed in violation of this act, as a result of the use or employment by a treatment provider or recovery residence of any method, act, or practice declared unlawful under this act may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this subsection, the court shall, in addition to any appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, the court shall also award reasonable attorney's fees, filing fees, and reasonable costs of suit.
d. (1) The Office of Licensing in the Department of Health may investigate treatment providers for alleged violations of this act. Upon finding a violation, the Department of Health may suspend or revoke the treatment provider’s license or certification, if applicable, or may impose a civil penalty against the treatment provider. If the Department of Health imposes a civil penalty, the civil penalty shall be not more than $20,000 for each violation.
(2) The Department of Community Affairs may investigate recovery residences for alleged violations of this act. Upon finding a violation, the Department of Community Affairs may suspend or revoke the recovery residence owner’s license or certification, if applicable, or may impose a civil penalty against the recovery residence owner. If the Department of Community Affairs imposes a civil penalty, the civil penalty shall be not more than $20,000 for each violation.
“Secondhand dealer” means any person who engages in the business of purchasing, selling, receiving, trading, consignment selling, or otherwise transferring for value any secondhand property. This term shall not include providers of commercial mobile service, as defined in 47 U.S.C. s.332(d), the provider’s authorized agents and retailers that have contractual relationships with the provider to sell the provider’s authorized products and services, an entity licensed to provide portable electronics insurance, as defined in section 1 of P.L.2012, c.56 (C.17:22A-49), or an affiliate of an entity licensed to provide portable electronics insurance. This term includes an automated kiosk that purchases secondhand property.
“Secondhand property” means any previously owned cellular telephone or wireless communication device.
“Wireless communication device” means any device through which personal wireless services, as defined in 47 U.S.C. s.332(c)(7)(C)(i), are transmitted.
b. (1) At the time of each transaction, a secondhand dealer shall document the description of each cellular telephone or wireless communication device and shall include a device identifier, to mean the Mobile Equipment Identifier, International Mobile Station Equipment Identity, or Electronic Serial Number of the wireless communication device. If the device identifiers are not available at the time of the transaction, the secondhand dealer shall update the description of the device with a device identifier as soon as commercially practicable.
(2) The record maintained pursuant to this subsection also shall include a receipt with the purchase amount and a statement that the person selling the cellular telephone or wireless communication device is of lawful age, that the driver’s license number or other government-issued identification number and all other identifying information provided by the seller are true and correct, and that the person selling the cellular telephone or wireless communication device is the lawful owner of the cellular telephone or wireless communication device with absolute authority to sell the cellular telephone or wireless communication device.
c. It shall be unlawful for any person who sells a cellular telephone or wireless communication device to a secondhand dealer to submit false or fraudulent information to a secondhand dealer on any receipt required under this section.
d. A secondhand dealer shall not sell a cellular telephone or wireless communication device that was knowingly acquired through false or fraudulent information.
e. Prior to purchase, every secondhand dealer shall require two forms of identification to be shown by each person attempting to sell any cellular telephone or wireless communication device. At least one of the two forms of identification shall be photographic identification issued by a federal, state, or local governmental entity. Forms of identification may include, but are not limited to, a state driver’s license, a state identification card, a passport, a military identification card, a credit card, or a utility bill.
If the seller does not have photographic identification issued by a federal, state, or local governmental entity, the secondhand dealer shall:
(1) photograph the seller in color;
(2) ensure the photograph clearly shows the face of the seller sufficient to identify the person; and
(3) on the documentation accompanying the photograph, record the seller’s name, residence address, date of birth, gender, height, and weight.
A photograph that meets the requirements of paragraphs (1) through (3) of this subsection shall be deemed a form of photographic identification for the purposes of this subsection.
An automated kiosk that requires a person attempting to sell a cellular telephone or wireless communication device to provide a government or state-issued identification card is exempt from the identification requirements of this subsection.
f. A secondhand dealer shall not remove, alter, or obliterate any manufacturer’s make, model, or serial number; personal identification number; or identifying marks engraved or etched on a cellular telephone or wireless communication device. A secondhand dealer shall not purchase a cellular telephone or wireless communication device where the manufacturer’s make, model, or serial number; personal identification number; or identifying marks engraved or etched on the device have been removed, altered, or obliterated.
g. (1) The records required pursuant to this section shall be maintained by a secondhand dealer for a period of one year after the purchase of a cellular telephone or wireless communication device by a secondhand dealer and shall, at all times during the secondhand dealer’s business hours, be open to inspection by a member of a State, county, or municipal law enforcement agency.
(2) A secondhand dealer shall make available any records requested for inspection by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
(3) A secondhand dealer shall not sell or share information or data regarding a person who sells a cellular telephone or wireless communication device to the dealer without that person’s written consent and shall securely maintain the information or data pursuant to rules or regulations as may be established by the director.
h. Any person who violates the provisions of this section shall be liable to a civil penalty of not more than $250 for a first offense, not more than $500 for a second offense, and not more than $1,000 for a third or subsequent offense which may be imposed by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety and shall be collected in a summary proceeding before a court of competent jurisdiction pursuant to the provisions of the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). Each transaction in violation of this section shall constitute a separate offense.
A violation of this section shall not be considered an unlawful practice in violation of P.L.1960, c.39 (C.56:8-1 et seq.).
This act may be known and shall be cited as the "New Jersey Antitrust Act."
a. As used in this act, unless the context otherwise requires "person" shall mean any natural person or persons, or any corporation, partnership, company, trust or association of persons.
b. "Trade or commerce" shall include all economic activity involving or relating to any commodity or service.
c. "Commodity" shall mean any kind of real or personal property.
d. "Service" shall mean any activity which is performed in whole or in part for the purpose of financial gain, including but not limited to sale, rental, leasing or licensing for use.
Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, in this State, shall be unlawful.
a. It shall be unlawful for any person to monopolize, or attempt to monopolize, or to combine or conspire with any person or persons, to monopolize trade or commerce in any relevant market within this State.
b. No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition within this State between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community of this State, or tend to create a monopoly of any line of commerce within this State.
c. No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition within this State between such corporations, or any of them, or to restrain such commerce in any section or community of this State, or tend to create a monopoly of any line of commerce within this State.
d. This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Nor shall anything contained in this section prevent a corporation engaged in commerce from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the effect of such formation is not to substantially lessen competition.
e. Nothing contained in this section shall be held to affect or impair any right heretofore legally acquired.
b. No provisions of this act shall be construed to make illegal:
(1) The activities of any labor organization or of individual members thereof which are directed solely to labor objectives which are legitimate under the laws of either the State of New Jersey or the United States;
(2) The activities of any agricultural or horticultural cooperative organization, whether incorporated or unincorporated, or of individual members thereof, which are directed solely to objectives of such cooperative organizations which are legitimate under the laws of either the State of New Jersey or the United States;
(3) The activities of any public utility, as defined in R.S.48:2-13 to the extent that such activities are subject to the jurisdiction of the Board of Public Utilities, the Department of Transportation, the Federal Energy Regulatory Commission, the Federal Communications Commission, the Federal Department of Transportation or the Interstate Commerce Commission, except that this exemption, and that of subsection c. of this section, shall apply to the activities of any electric public utility or gas public utility or any related competitive business segment of an electric public utility or related competitive business segment of a gas public utility, or any public utility holding company or related competitive business segment of a public utility holding company as those terms are defined in section 3 of P.L.1999, c.23 (C.48:3-51), only to the extent such activities are expressly required by and supervised pursuant to State regulation or are required by federal or State law;
(4) The activities, including, but not limited to, the making of or participating in joint underwriting or joint reinsurance arrangements, of any insurer, insurance agent, insurance broker, independent insurance adjuster or rating organization to the extent that such activities are subject to regulation by the Commissioner of Banking and Insurance of this State under, or are permitted, or are authorized by, the "Department of Banking and Insurance Act of 1948," P.L.1948, c.88 (C.17:1-1.1 et al.) and the "Department of Insurance Act of 1970," P.L.1970, c.12 (C.17:1C-1 et seq.), provided, however, the provisions of this paragraph (4) shall not apply to private passenger automobile insurance business, except as provided in section 69 of P.L.1990, c.8 (C.17:33B-31);
(5) The bona fide religious and charitable activities of any not for profit corporation, trust or organization established exclusively for religious or charitable purposes, or for both purposes;
(6) The activities engaged in by securities dealers, issuers or agents who are (I) a. licensed by the State of New Jersey under the "Uniform Securities Law (1967)," P.L.1967, c.93 (C.49:3-47 et seq.); or (ii) members of the National Association of Securities Dealers, or (iii) members of any National Securities Exchange registered with the Securities and Exchange Commission under the "Securities Exchange Act of 1934," as amended, in the course of their business of offering, selling, buying and selling, or otherwise trading in or underwriting securities, as agent, broker, or principal, and activities of any National Securities Exchange so registered, including the establishment of commission rates and schedules of charges;
(7) The activities of any State or national banking institution to the extent that such activities are regulated or supervised by officers of the State government under the "Department of Banking and Insurance Act of 1948," P.L.1948, c.88 (C.17:1-1.1 et al.) or P.L.1970, c.11 (C.17:1B-1 et seq.), or the federal government under the banking laws of the United States;
(8) The activities of any state or federal savings and loan association to the extent that such activities are regulated or supervised by officers of the State government under the "Department of Banking and Insurance Act of 1948," P.L.1948, c.88 (C.17:1-1.1 et al.) or P.L.1970, c.11 (C.17:1B-1 et seq.), or the federal government under the banking laws of the United States;
(9) The activities of any bona fide not for profit professional association, society or board, licensed and regulated by the courts or any other agency of this State, in recommending schedules of suggested fees, rates or commissions for use solely as guidelines in determining charges for professional and technical services; or
(10) The activities permitted under the provisions of chapter 4 of Title 56 of the Revised Statutes, "An act to regulate the retail sale of motor fuels," P.L.1938, c.163 (C.56:6-1 et seq.), the "Unfair Motor Fuels Practices Act," P.L.1953, c.413 (C.56:6-19 et seq.) and the "Unfair Cigarette Sales Act of 1952," P.L.1952, c.247 (C.56:7-18 et seq.).
c. This act shall not apply to any activity directed, authorized or permitted by any law of this State that is in conflict or inconsistent with the provisions of this act, and the enactment of this act shall not be deemed to repeal, either expressly or by implication, any such other law in effect on the date of its enactment.
The Attorney General shall investigate suspected violations of, and institute such proceedings as are hereinafter provided for violation of the provisions of this act. The Attorney General may direct the county prosecutor of any county in which such proceedings may be brought to aid and assist him in the conduct of such investigations and proceedings.
Upon a violation of this act by any corporation or association organized under the laws of this State, or upon failure to comply with the terms of a final judgment or decree rendered by a court of this State for a violation of the provisions of this act, or to comply with a consent judgment or decree rendered by a court of this State concerning an alleged violation of this act, the Attorney General may institute proper proceedings in a court of competent jurisdiction for the forfeiture of charter rights, franchises, privileges and powers, and for the dissolution of the corporation or association, or for the suspension of the privilege to conduct business within the State. The court, in its discretion, and with due consideration of all relevant factors, including relevant public interests and competitive and economic factors, may order the dissolution, suspend the privilege to conduct business for a specific period, deny such relief, or provide other appropriate relief. A dissolution shall be conducted in accordance with the procedures specified by law for either voluntary or involuntary dissolution of the particular type of corporation or association.
Upon a violation of this act by a foreign corporation or association exercising the privilege of conducting business within this State, or upon a failure to comply with the terms of a final judgment or decree rendered by a court of this State issued for a violation of the provisions of this act, or to comply with a consent judgment or decree rendered by a court of this State concerning an alleged violation of this act, the Attorney General may institute appropriate proceedings for the revocation or suspension of franchises, privileges, and powers connected with doing business within the State. The court, in its discretion, and with due consideration of all relevant factors, including relevant public interests and competitive and economic factors, may order the revocation, suspend the privilege to conduct business for a specified period, deny relief, or provide other appropriate relief. A revocation shall have the same effect as a failure to qualify to do business in this State.
a. (1) Whenever the Attorney General, by his own inquiry or as the result of a complaint, suspects that a violation of this act or of the federal antitrust laws is occurring, has occurred or is about to occur, or, whenever the Attorney General believes it to be in the public interest that an investigation be made, the Attorney General or his designee may, prior to the institution of a criminal or civil action thereon, issue in writing and cause to be served upon any person who may have information relevant to such investigation a subpena to appear and be examined under oath before the Attorney General, his designee or a court of record; answer written interrogatories under oath; or produce documents or any other information or materials for inspection or copying.
(2) Any subpena issued pursuant to this subsection shall:
(a) Contain a general statement concerning the subject matter of the investigation;
(b) Contain a statement advising the person subpenaed that he has the right, at any time before the return date of the subpena, to seek a court order determining the validity of the subpena;
(c) Contain a statement advising the person subpenaed that he may have an attorney present when he appears and testifies or otherwise responds to the subpena;
(d) Describe the classes of documentary material to be produced thereunder with sufficient particularity to permit such materials to be reasonably identified;
(e) Prescribe a date and time at which the person subpenaed shall appear to testify, under oath, or by which the person shall answer written interrogatories or produce the documents or other information or materials for inspection or copying; provided that such date shall not be less than 15 days from the date of service of the subpena; and
(f) Specify a place for the taking of testimony or for the submission of answers or for the production of documents or other information or materials and identify the persons who are authorized to receive the return of the subpena.
(3) The powers of subpena and examination contained in this subsection shall not abate or terminate by reason of any action or proceeding brought by the Attorney General under this act.
b. (1) If a person in attendance upon such investigation pursuant to subpena, or if a person required to provide the Attorney General answers in writing under oath or otherwise, personally refuses to answer a question or produce evidence of any other kind or make the required answers on the ground that he may be incriminated thereby, and if the Attorney General or his designee, in a writing directed to the person, orders that person to answer the question or produce the evidence, that person shall comply with the order. After complying therewith, and if but for this section he would have been privileged to withhold the answer given or the evidence produced, such answer, testimony or evidence or any evidence directly or indirectly derived therefrom may not be used against the person in any prosecution for a crime or offense concerning which he gave answer or produced evidence; provided that the answer, testimony or evidence is responsive to the question propounded. However, he may nevertheless be prosecuted or subject to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing evidence or failing to produce evidence in accordance with the order.
(2) Any person who fails to obey the command of a subpena, after being ordered to do so by a court of competent jurisdiction, is guilty of a crime of the fourth degree. In the alternative, if a person fails to obey a subpena after being ordered to do so by a court of competent jurisdiction, the Attorney General may apply to that court to have that person adjudged in contempt and to commit him to jail until such time as he purges himself of contempt by responsively answering, testifying or producing evidence as ordered.
(3) A person shall not be excused from complying with the terms of a subpena on the ground of failure to tender or pay a witness fee for mileage, unless demand therefor is made at the time compliance is about to be made. Payment of a witness fee or mileage shall not apply to any officer, director or person in the employ of any person whose conduct or practices are being investigated.
c. (1) Except as otherwise provided in this subsection, no material produced pursuant to this section or information derived therefrom shall be available for examination, without the consent of the person who produced the material, by any person other than the Attorney General or his designee in connection with the enforcement of this act. However, nothing contained herein shall prevent the legitimate use of such information or materials by the Attorney General or his designee, without the consent of the person who produced the materials, for investigational purposes.
(2) The Attorney General or his designee may disclose, without the consent of the person who produced the material, the material produced pursuant to this section or information derived therefrom to officers and employees of appropriate federal or State law enforcement agencies upon the prior certification of an officer of the federal or State law enforcement agency that the information will be maintained in confidence and will be used only for official law enforcement purposes; provided, however, the Attorney General or his designee shall advise such person of his intent to disclose such material or information derived therefrom 10 days prior to the disclosure.
(3) The Attorney General or his designee may disclose, without the consent of the person who produced the material, material produced pursuant to this section or information derived therefrom to any court or grand jury.
d. Service of a subpena pursuant to this section shall be by any of those methods specified in the New Jersey Rules of Court for service of a summons and complaint in a civil action.
a. The Superior Court shall have jurisdiction to prevent and restrain violations of this act. The Attorney General may institute proceedings to prevent and restrain violations. In addition to granting prohibitory injunctions and other restraints for a period and upon terms and conditions necessary to deter the defendant from, and insure against, the committing of a future violation of this act, the court may grant mandatory injunctions reasonably necessary to restore and preserve competition in the trade or commerce affected by the violation. The court may issue temporary restraining orders or prohibitions and the court may proceed in a summary manner.
b. Any person may institute proceedings for injunctive relief, temporary or permanent in the Superior Court against threatened loss or damage to his property or business by a violation of this act, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. If the court issues a permanent injunction, the plaintiff shall be awarded reasonable attorneys' fees, filing fees and reasonable costs of suit. Reasonable costs of suit may include, but shall not be limited to the expenses of discovery and document reproduction.
c. In addition to injunctive relief authorized pursuant to subsection a of this section, any person who violates the provisions of this act shall be liable to a penalty of not more than the greater of $100,000.00 or $500.00 per day for each and every day of said violation.
b. Any person convicted pursuant to the provisions of subsection a. of this section of a violation involving or affecting trade or commerce of a value less than $1,000,000.00 shall be guilty of a crime of the third degree. Any person convicted pursuant to the provisions of subsection a. of this section of a violation involving or affecting trade or commerce of a value equal to or greater than $1,000,000.00 shall be guilty of a crime of the second degree. Any person convicted pursuant to the provisions of subsection a. of this section of a violation involving bid rigging on public contracts, regardless of the value of trade or commerce involved or affected, shall be guilty of a crime of the second degree.
c. Notwithstanding the provisions of subsections a. and b. of N.J.S.2C:43-3, a person convicted of a crime of the second degree under this section shall be subject to a fine of not less than $50,000.00 nor more than $300,000.00, or, in the case of a corporation, partnership, or other business entity, be subject to a fine of not less than $250,000.00 nor more than $1,000,000.00, or imprisonment, or both, and a person convicted of a crime of the third degree under this section shall be subject to a fine of not less than $25,000.00 nor more than $150,000.00, or, in the case of a corporation, partnership, or other business entity, be subject to a fine of not less than $100,000.00 nor more than $300,000.00, or imprisonment, or both.
b. The State and any of its political subdivisions and public agencies shall be deemed a person within the meaning of this section. The Attorney General, on behalf of the State or any of its political subdivisions or public agencies, or the political subdivision or public agency at the direction of or with the permission of the Attorney General, may institute an action to recover the damages provided for by this section or by any comparable provisions of Federal law, together with reasonable attorneys' fees, filing fees and reasonable costs of suit.
c. In any action pursuant to P.L.1970, c.73 (C.56:9-1 et seq.), the fact that the State, or any political subdivision or public agency of the State or any political subdivision, or any person who has sustained damages by reason of violation of P.L.1970, c.73 (C.56:9-1 et seq.), has not dealt directly with the defendant shall not bar or otherwise limit recovery except as provided in this section. In any action or actions in which claims are asserted against a defendant by both direct and indirect purchasers, the court may take such steps as the court deems appropriate to avoid duplicate recovery of damages and to obtain substantial fairness. In any action in which both direct and indirect purchasers are involved, a defendant shall be entitled to prove as a partial or complete defense to a claim for damages that the illegal overcharge has been passed on to others, including the defendant, who are themselves entitled to recover, so as to avoid duplication of recovery of damages.
d. In the event damages in a class action or an action instituted by the Attorney General remain unclaimed by, or undistributed to, the direct or indirect purchasers, the class representative or the Attorney General, as applicable, the Attorney General may apply to the court and such funds shall escheat to the State upon showing that reasonable efforts made by the State to distribute the funds have been unsuccessful.
A final judgment heretofore or hereafter rendered in any civil or criminal proceeding brought by the State for violation of this act to the effect that a defendant has violated said act shall be prima facie evidence against such defendant in any proceeding brought by any other party against such defendant pursuant to section 12 of this act, as to all matters with respect to which said judgment or decree would be an estoppel as between the parties thereto; provided, that this section shall not apply to consent judgments or decrees entered before any testimony has been taken, or to judgments or decrees entered in actions brought under section 12 of this act.
Any action brought to enforce the provisions of this act shall be barred unless commenced within 4 years after the cause of action arose, or if the cause of action is based upon a conspiracy in violation of this act, within 4 years after the plaintiff discovered, or by the exercise of reasonable diligence should have discovered the facts relied upon for proof of the conspiracy. No cause of action barred on the effective date of this act shall be revived by this act. For the purpose of this section, a cause of action for a continuing violation is deemed to arise at any time during the period of such violation.
Whenever any civil or criminal proceeding shall be commenced by the State to prevent, restrain or punish a violation of this act, but not including an action brought by the State under section 12 of this act, the running of the statute of limitations in respect of every private right of action arising under this act and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for 1 year thereafter; provided that whenever the running of the statute of limitations in respect of a cause of action arising under section 12 shall be suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within 4 years after the cause of action accrued, whichever is later.
The remedies provided in this act shall be cumulative.
The Attorney General may cooperate with officials of the Federal Government and the several states in the enforcement of this act.
This act shall be construed in harmony with ruling judicial interpretations of comparable Federal antitrust statutes and to effectuate, insofar as practicable, a uniformity in the laws of those states which enact it.
There is hereby appropriated out of the General State Fund to the Department of Law and Public Safety for the purpose of this act the sum of $100,000.00 for the period ending June 30, 1971, which sum shall be returned to the General State Fund from the sums derived from litigation instituted by the Attorney General under this act or the antitrust laws of the United States, as determined by the Director of the Division of Budget and Accounting. In addition to the sum hereinabove appropriated, there are hereby appropriated as a revolving fund the sums derived as aforesaid for the purpose of paying any additional expenses incurred by the Attorney General in the administration of this act or litigation instituted under the antitrust laws of the United States, provided, however, that the expenditure of such additional sums shall first be approved by the Director of the Division of Budget and Accounting and the Legislative Budget and Finance Director in the same manner as transfers of appropriations are approved.
This act shall be known and may be cited as the "Franchise Practices Act."
a. "Franchise" means a written arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trade mark, service mark, or related characteristics, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise.
b. "Person" means a natural person, corporation, partnership, trust, or other entity and, in case of an entity, it shall include any other entity which has a majority interest in such entity or effectively controls such other entity as well as the individual officers, directors, and other persons in active control of the activities of each such entity.
c. "Franchisor" means a person who grants a franchise to another person.
d. "Franchisee" means a person to whom a franchise is offered or granted.
e. "Sale, transfer or assignment" means any disposition of a franchise or any interest therein, with or without consideration, to include but not be limited to bequest, inheritance, gift, exchange, lease or license.
f. "Place of business" means a fixed geographical location at which the franchisee displays for sale and sells the franchisor's goods or offers for sale and sells the franchisor's services. Place of business shall not mean an office, a warehouse, a place of storage, a residence or a vehicle, except that with respect to persons who do not make a majority of their sales directly to consumers, "place of business" means a fixed geographical location at which the franchisee displays for sale and sells the franchisor's goods or offers for sale and sells the franchisor's services, or an office or a warehouse from which franchisee personnel visit or call upon customers or from which the franchisor's goods are delivered to customers.
a. to a franchise (1) the performance of which contemplates or requires the franchisee to establish or maintain a place of business within the State of New Jersey, (2) where gross sales of products or services between the franchisor and franchisee covered by such franchise shall have exceeded $35,000.00 for the 12 months next preceding the institution of suit pursuant to this act, and (3) where more than 20% of the franchisee's gross sales are intended to be or are derived from such franchise; or
b. to a franchise for the sale of new motor vehicles as defined in R.S.39:10-2, the performance of which contemplates or requires the franchisee to establish or maintain a place of business within the State of New Jersey.
It shall be a violation of this act for any franchisor directly or indirectly through any officer, agent, or employee to terminate, cancel, or fail to renew a franchise without having first given written notice setting forth all the reasons for such termination, cancellation, or intent not to renew to the franchisee at least 60 days in advance of such termination, cancellation, or failure to renew, except (1) where the alleged grounds are voluntary abandonment by the franchisee of the franchise relationship in which event the aforementioned written notice may be given 15 days in advance of such termination, cancellation, or failure to renew; and (2) where the alleged grounds are the conviction of the franchisee in a court of competent jurisdiction of an indictable offense directly related to the business conducted pursuant to the franchise in which event the aforementioned termination, cancellation or failure to renew may be effective immediately upon the delivery and receipt of written notice of same at any time following the aforementioned conviction. It shall be a violation of this act for a franchisor to terminate, cancel or fail to renew a franchise without good cause. For the purposes of this act, good cause for terminating, canceling, or failing to renew a franchise shall be limited to failure by the franchisee to substantially comply with those requirements imposed upon him by the franchise.
It shall be a violation of this act for any franchisee to transfer, assign or sell a franchise or interest therein to another person unless the franchisee shall first notify the franchisor of such intention by written notice setting forth in the notice of intent the prospective transferee's name, address, statement of financial qualification and business experience during the previous 5 years. The franchisor shall within 60 days after receipt of such notice either approve in writing to the franchisee such sale to proposed transferee or by written notice advise the franchisee of the unacceptability of the proposed transferee setting forth material reasons relating to the character, financial ability or business experience of the proposed transferee. If the franchisor does not reply within the specified 60 days, his approval is deemed granted. No such transfer, assignment or sale hereunder shall be valid unless the transferee agrees in writing to comply with all the requirements of the franchise then in effect.
a. For a franchisor to transfer, assign, or sell an interest in one or more franchise premises which a franchisee who purchases motor fuels and engages in the retail sale thereof has occupied under a lease agreement or agreements for a period of at least three consecutive years, or occupies under a lease agreement for a term of at least three years, unless the franchisor:
(1) makes a bona fide offer to transfer, assign, or sell to the franchisee all of the franchisor's interest in the franchise premises, which offer the franchisee shall have 60 days to accept or reject; and
(2) if applicable, offers the franchisee a right of first refusal on any offer for the transfer, assignment, or sale of the franchise premises presented by another person acceptable to the franchisor as a successor to the franchisor's interest, which offer the franchisee shall have 60 days to accept or reject. If the franchisee accepts an offer by the franchisor made pursuant to this paragraph, the franchisor, as a condition for entering into the contract for the accepted offer, may request as a good faith acknowledgement of the contract, a deposit by the franchisee of up to 10% of the total amount payable under the terms of the contract, which shall be non-refundable if the franchisee willfully defaults on the contract. A franchisor shall not be prohibited from exercising other contractual provisions, and nothing in this paragraph shall be construed to hinder the rights of the franchisor to recover additional damages as provided under the law. Any modification of the offer presented to the franchisor by the other person acceptable to the franchisor as a successor shall require that offer, as modified, to be resubmitted to the franchisee in accordance with the foregoing provisions of this paragraph; except that nothing contained herein shall require the franchisor, having made a bona fide offer or offer under a right of first refusal to transfer, assign, or sell to the franchisee the franchisor's interest in the premises pursuant to paragraph (1) or paragraph (2), respectively, of this subsection, which offer the franchisee has rejected or failed to accept timely, to make a new offer upon the occurrence of a legitimate subsequent change at closing.
b. For any successor owner, following a transfer, assignment, or sale subsequent to the franchisee's rejection of, or failure to accept timely, an offer made by the franchisor pursuant to paragraph (1) or paragraph (2) of subsection a. of this section:
(1) not to maintain the requirements of the franchise arrangement in effect at the time of the transfer, assignment, or sale for each premises, unless that arrangement is changed only by mutual agreement of the franchisee and the successor owner;
(2) not to renew, at the expiration of the franchise arrangement in effect at the time of the transfer, assignment, or sale, the franchise arrangement of the franchisee for the same number of years as the franchise arrangement in effect at the time of the transfer, assignment, or sale, provided the renewal shall not exceed five years; and
(3) to require the franchisee to:
(a) participate in promotional campaigns of the successor owner's products;
(b) meet sales quotas;
(c) sell any product at a price suggested by the successor owner or successor owner's supplier;
(d) keep the premises open and operating during hours which are documented by the franchisee to be unprofitable to the franchisee; or
(e) disclose to the successor owner or successor owner's supplier any financial records of the operation of the franchisee's premises which are not related or necessary to the franchisee's obligations under the franchise arrangement.
Nothing in this subsection shall affect the successor owner's ability to terminate, cancel, or fail to renew a franchise arrangement for good cause shown in accordance with the provisions of the "Franchise Practices Act," P.L.1971, c.356 (C.56:10-1 et seq.).
c. For any successor owner, as set forth in subsection b. of this section, to transfer, assign, or sell an interest in a single franchise premises where a franchisee has engaged in the retail sale of motor fuel that is not part of two or more franchise premises, presented by the successor owner as a package to transfer, assign, or sell, and that the franchisee has occupied under a lease agreement or agreements for a period of three consecutive years, or occupies under a lease agreement for a term of at least three years, unless the successor owner makes an offer to transfer, assign, or sell to the franchisee the successor owner's interest, or offers the franchisee a right of first refusal on an offer presented by another person acceptable to the successor owner as a new successor to the interest, in accordance with the provisions of subsection a. of this section.
a. To require a franchisee at time of entering into a franchise arrangement to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by this act.
b. To prohibit directly or indirectly the right of free association among franchisees for any lawful purpose.
c. To require or prohibit any change in management of any franchisee unless such requirement or prohibition of change shall be for good cause, which cause shall be stated in writing by the franchisor.
d. To restrict the sale of any equity or debenture issue or the transfer of any securities of a franchise or in any way prevent or attempt to prevent the transfer, sale or issuance of equity securities or debentures to employees, personnel of the franchisee, or spouse, child or heir of an owner, as long as basic financial requirements of the franchisor are complied with, and provided any such sale, transfer or issuance does not have the effect of accomplishing a sale or transfer of control, including, but not limited to, change in the persons holding the majority voting power of the franchise. Nothing contained in this subsection shall excuse a franchisee's obligation to provide prior written notice of any change of ownership to the franchisor if that notice is required by the franchise.
e. To impose unreasonable standards of performance upon a franchisee.
f. To provide any term or condition in any lease or other agreement ancillary or collateral to a franchise, which term or condition directly or indirectly violates this act.
a. It shall be a violation of the act to which this act is a supplement for any franchisor, directly or indirectly, through any officer, agent, or employee, to prohibit any franchisee engaged in the retail sale of motor gasoline from purchasing any suitable alternate motor fuel from whatever authorized source that it is available; to reduce allocations of motor gasoline to any franchisee because of the purchase by the franchisee of an alternate motor fuel; or to prohibit the use of franchisor issued credit cards to purchase a suitable alternate motor fuel; provided that:
(1) The franchisee has shown that reasonable efforts to secure adequate supplies of the alternate motor fuel from the franchisor have failed;
(2) The franchisee continues to meet all other terms and conditions of the franchise agreement;
(3) The franchisee shall adequately inform consumers of the alternate motor fuel of the change in type or trade name with reasonable labeling of pumps dispensing the alternate motor fuel to indicate, where appropriate, that such alternate motor fuel is not manufactured, distributed, or sold by such franchisor.
b. As used in this section, "alternate motor fuel" means diesel fuel or any liquid which is the product of the combination of motor gasoline and any other liquid or gaseous substance which is not derivative of petroleum, and which is used for the purpose of operating a mechanical device powered by internal combustion.
a. Notwithstanding the enactment of the "Franchise Practices Act," P.L.1971, c.356 (C.56:10-1 et seq.), and other legislation dealing with the franchisor-franchisee relationship, including, but not limited to, P.L.1982, c.156 (C.56:10-17 et seq.), inequality of bargaining power continues to exist between motor vehicle franchisors and motor vehicle franchisees. This inequality of bargaining power exists even as to motor vehicle franchisees who have had their franchises for many years and who have expended large sums of money in the promotion of their franchises.
b. This inequality of bargaining power enables motor vehicle franchisors to compel motor vehicle franchisees to execute franchises and related leases and agreements that contain terms and conditions that would not routinely be agreed to by the motor vehicle franchisees absent the compulsion and duress that arise out of the inequality of bargaining power. These terms and conditions are detrimental to the interests of the motor vehicle franchisees in that they require the motor vehicle franchisees to relinquish their rights that have been established by the "Franchise Practices Act" and supplemental legislation and other statutes and laws of this State.
c. As a result, motor vehicle franchisees have been denied the opportunity to have disputes with their motor vehicle franchisors arising out of the franchisor-franchisee relationship heard in an appropriate venue, convenient to both parties, by tribunals established by statute for the resolution of these disputes. It is therefore necessary and in the public interest to ensure that motor vehicle franchisees voluntarily determine whether to agree to certain terms and conditions contained in franchises and related leases and agreements presented to them by motor vehicle franchisors and under circumstances unaffected by the compulsion that arises from the inequality of bargaining power.
d. The distribution, sale, and service of new motor vehicles in the State of New Jersey vitally affects the general economy of this State, and there is a compelling public interest in providing a system of new motor vehicle franchisees to foster competition and promote motor vehicle and highway safety by ensuring there are qualified facilities to provide independently owned and operated sales, warranty, open recall, and routine service for motor vehicles.
e. The new motor vehicle franchise system encourages local investment in motor vehicle dealerships, creates jobs and economic activity in virtually every community in this State, and advances the public interest by fostering an extensive network of independent new motor vehicle franchisees who compete for motor vehicle sales and service business, offer ready access to open recall repair service and warranty service, when needed, and provide routine maintenance to ensure motor vehicle and highway safety.
f. There remains, however, a vast disparity in bargaining power between motor vehicle franchisors and their franchisees, which, if left unchecked, will discourage local investment in the motor vehicle franchise system and result in fewer new motor vehicle franchisees, less competition in the motor vehicle marketplace, and diminished consumer access to qualified motor vehicle warranty services, open recall repair services, and routine service facilities.
g. Despite prior enactments, many motor vehicle franchisees have found it either too risky to oppose their supplier or too burdensome to take on a legal challenge to their motor vehicle franchisors, who control the exclusive supply of motor vehicles, parts, and special equipment to motor vehicle franchisees.
h. As a result, it is necessary for the Legislature to further revise the laws pertaining to motor vehicle franchisees to strengthen and clarify certain provisions of existing law intended to protect the public from marketplace behavior that has the potential to restrict competition for sales and threaten highway safety by limiting consumer access to essential warranty and open recall service provided by neighborhood dealers of new motor vehicles.
(1) Requires the motor vehicle franchisee to waive trial by jury in actions involving the motor vehicle franchisor; or
(2) Specifies the jurisdictions, venues or tribunals in which disputes arising with respect to the franchise, lease or agreement shall or shall not be submitted for resolution or otherwise prohibits a motor vehicle franchisee from bringing an action in a particular forum otherwise available under the law of this State; or
(3) Requires that disputes between the motor vehicle franchisor and motor vehicle franchisee be submitted to arbitration or to any other binding alternate dispute resolution procedure; provided, however, that any franchise, lease or agreement may authorize the submission of a dispute to arbitration or to binding alternate dispute resolution if the motor vehicle franchisor and motor vehicle franchisee voluntarily agree to submit the dispute to arbitration or binding alternate dispute resolution at the time the dispute arises.
b. For the purposes of this section, it shall be presumed that a motor vehicle franchisee has been required to agree to a term or condition in violation of this section as a condition of the offer, grant or renewal of a franchise or of any lease or agreement ancillary or collateral to a franchise, if the motor vehicle franchisee, at the time of the offer, grant or renewal of the franchise, lease or agreement is not offered the option of an identical franchise, lease or agreement without the term or condition proscribed by this section.
c. In addition to any remedy provided in the "Franchise Practices Act," any term or condition included in a franchise, or in any lease or agreement ancillary or collateral to a franchise, in violation of this section may be revoked by the motor vehicle franchisee by written notice to the motor vehicle franchisor within 60 days of the motor vehicle franchisee's receipt of the fully executed franchise, lease or agreement. This revocation shall not otherwise affect the validity, effectiveness or enforceability of the franchise, lease or agreement.
a. To impose unreasonable standards of performance or unreasonable facilities, financial, operating or other requirements upon a motor vehicle franchisee.
b. To base the disapproval of the transfer, sale or assignment of a motor vehicle franchise, or any interest therein, on the ground that the proposed transferee is not a natural person.
c. To fail to compensate a motor vehicle franchisee for all reasonable costs incurred by the franchisee in complying with the requirements imposed on the franchisee by the franchisor relating to a product recall.
d. To utilize an arbitrary or unreasonable formula or other calculation or process intended to gauge performance as a basis for making any decision or taking any action governed by P.L.1971, c.356 (C.56:10-1 et seq.).
e. Except as provided pursuant to section 6 of P.L.2015, c.24 (C.56:10-27.1), to own or operate or enter into an agreement with a person, other than an existing motor vehicle franchisee, to operate a retail facility for the servicing of motor vehicles, which is authorized to perform warranty service on motor vehicles manufactured or distributed by the motor vehicle franchisor. The establishment, relocation, reopening or reactivation of such a facility pursuant to an agreement with a motor vehicle franchisee shall be subject to the provisions of P.L.1982, c.156 (C.56:10-16 et seq.), except that paragraph (3) of subsection b. of section 8 of that act (C.56:10-23) shall not be applicable. Notice shall be given to motor vehicle franchisees in the same line make or makes within six miles of the proposed retail facility for the servicing of motor vehicles which is authorized to perform warranty service on motor vehicles manufactured or distributed by the motor vehicle franchisor.
f. To require an unconditional release from a motor vehicle franchisee without permitting the franchisee to except from the release any claims for outstanding financial obligations of the motor vehicle franchisor to the motor vehicle franchisee for which payment will not be made at or before the giving of the release.
g. (1) To require or attempt to require a motor vehicle franchisee to order or purchase a new or used motor vehicle, or any accessory or equipment thereof not required by law; or (2) to require or attempt to require a motor vehicle franchise to accept delivery of any motor vehicle, or any accessory or equipment thereof not required by law, which is not as ordered by the motor vehicle franchisee; or (3) to take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit, as a result of the motor vehicle franchisee's failure or refusal to purchase, order or accept delivery of any such motor vehicle, accessory or equipment. This subsection shall not prevent a motor vehicle franchisor from requiring that a motor vehicle franchisee carry a representative inventory of models offered for sale by the motor vehicle franchisor.
h. To fail or refuse to sell or offer to sell to all motor vehicle franchisees in a line make every motor vehicle sold or offered for sale to any motor vehicle franchisee of the same line make, or to fail or refuse to sell or offer to sell such motor vehicles to all motor vehicle franchisees at the same price for a comparably equipped motor vehicle, on the same terms, with no differential in discount, allowance, credit or bonus, and on reasonable, good faith and non-discriminatory allocation and availability terms. However, the failure to deliver any such motor vehicle shall not be considered a violation of this section if the failure is not arbitrary and is due to a lack of manufacturing capacity or to a strike or labor difficulty, a shortage of materials, a freight embargo or other cause over which the franchisor has no control. A motor vehicle franchisor shall not require a motor vehicle franchisee to purchase unreasonable quantities of advertising materials, purchase special tools not required to properly service a motor vehicle or undertake sales person or service person training unrelated to the motor vehicle or meet unreasonable display requirements as a condition of receiving a motor vehicle.
i. Unless compelled by law or legal process, (1) if the customer has objected thereto in writing, to require a motor vehicle franchisee to publish, release, convey or otherwise provide information obtained with respect to any customers, contracts, products, services or other transactions of the motor vehicle franchisee which is not necessary for the motor vehicle franchisor to meet its obligations to consumers or the motor vehicle franchisee, including vehicle recalls or other requirements imposed by State or federal law, or for complying with the duties or obligations of the respective parties under the franchise; or (2) to release such information which has been provided to it by the motor vehicle franchisees to any third party.
j. To impose or attempt to impose any requirement, limitation or regulation on, or interfere or attempt to interfere with, the manner in which a motor vehicle franchisee utilizes the facilities at which a motor vehicle franchise is operated, including, but not limited to, requirements, limitations or regulations as to the line makes of motor vehicles that may be sold or offered for sale at the facility, or to take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit, as a result of the manner in which the motor vehicle franchisee utilizes his facilities, except that the motor vehicle franchisor may require that the portion of the facilities allocated to or used for the motor vehicle franchise meets the motor vehicle franchisor's reasonable, written space and volume requirements as uniformly applied by the motor vehicle franchisor. The provisions of this subsection shall not apply if the motor vehicle franchisor and the motor vehicle franchisee voluntarily agree to the requirement and separate and valuable consideration therefor is paid.
k. To require or attempt to require a motor vehicle franchisee, or the owner or landlord of property on which a motor vehicle franchise is operated, to give a motor vehicle franchisor or any person under the control of the motor vehicle franchisor an interest in or option with respect to the real property on which the motor vehicle franchise is operated, to restrict the uses to which the facility at which the motor vehicle franchise is operated may be put during or after the term of the franchise, or to take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit, as a result of the failure or refusal of a motor vehicle franchisee, property owner, or landlord to agree to or comply with any such demand or restriction. Nothing in this subsection shall be deemed to bar a voluntary agreement between a motor vehicle franchisor and a motor vehicle franchisee, or the owner or landlord of property on which a motor vehicle franchise is operated, to give the motor vehicle franchisor or the person under the control of the motor vehicle franchisor an interest in or option with respect to the real property on which a motor vehicle franchise is operated, or to restrict the uses to which the facility at which the motor vehicle franchise is operated is put, provided that separate and valuable consideration is paid for such interest, option or restriction.
l. To require or attempt to require a motor vehicle franchisee to relocate his franchise or to implement any facility or operational modification or to take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit as a result of the failure or refusal of such motor vehicle franchisee to agree to any such relocation or modification, unless the motor vehicle franchisor can demonstrate that: (1) funds are generally available to the franchisee for the relocation or modification on reasonable terms; and (2) the motor vehicle franchisee will be able, in the ordinary course of business as conducted by such motor vehicle franchisee, to earn a reasonable return on his total investment in such facility or from such operational modification, and the full return of his total investment in such facility or from such operational modifications within 10 years; or (3) the modification is required so that the motor vehicle franchisee can effectively sell and service a motor vehicle offered by the motor vehicle franchisor based on the specific technology of the motor vehicle. This subsection shall not be construed as requiring a motor vehicle franchisor to guarantee that the return as provided in paragraph (2) of this subsection will be realized.
m. Directly, or through any financial institution having any commonality of ownership with the motor vehicle franchisor, to require or attempt to require, or to take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit, as a result of the failure or refusal of a motor vehicle franchisee to maintain working capital, equity, floor plan financing or other indications of financial condition, greater than the lesser of (1) the minimum required to operate the motor vehicle franchise based on the operations of the franchise over the prior 12-month period; or (2) an increase of no more than 5% over the prior calendar year, unless the motor vehicle franchisor, or the financial institution having any commonality of ownership with a motor vehicle franchisor, can establish that such failure or refusal prevents the franchisee from operating the franchise in the ordinary course of business. This subsection shall not apply if the working capital, equity, floor plan financing or other indication of financial condition is the result of an accommodation by the motor vehicle franchisor, or financial institution with a commonality of ownership with the motor vehicle franchisor, to the motor vehicle franchisee, containing specific terms and deadlines for the restoration of the motor vehicle franchisee's working capital, inventory, floor plan financing or other indication of financial condition, which accommodation is agreed to in writing by the motor vehicle franchisee.
n. To impose or attempt to impose any conditions on the approval of the transfer of a motor vehicle franchise, except as provided in section 6 of P.L.1971, c.356 (C.56:10-6).
o. To amend or modify the franchise of a motor vehicle franchisee, or any lease or agreement ancillary or collateral to such franchise, including in connection with the renewal of a franchise, if such amendment or modification is not in good faith, is not for good cause, or would adversely and substantially alter the rights, obligations, investment or return on investment of the motor vehicle franchisee.
p. To take or withhold or threaten to take or withhold any action, impose or threaten to impose any penalty, or deny or threaten to deny any benefit, because the motor vehicle franchisee sold or leased a motor vehicle to a customer who exported the vehicle to a foreign country or who resold the vehicle, unless the motor vehicle franchisor can establish that the motor vehicle franchisee knew or reasonably should have known, prior to the sale or lease, that the customer intended to export or resell the motor vehicle; provided, however, that it shall be presumed that the motor vehicle franchisee did not know or should not have reasonably known that the vehicle would be exported if the vehicle is titled or registered in any state or the District of Columbia.
q. To require a motor vehicle franchisee, at the time of entering into a franchise arrangement, any lease or agreement ancillary or collateral to a motor vehicle franchise, or any amendment, modification, renewal or termination thereof, to assent to a release, assignment, novation, waiver or estoppel, which would relieve any person from liability imposed by P.L.1971, c.356 (C.56:10-1 et seq.); provided that nothing in this subsection shall be deemed to prohibit a voluntary agreement between the motor vehicle franchisor and the motor vehicle franchisee which contains a release, assignment, novation, waiver or estoppel for which separate and valuable consideration is paid by the motor vehicle franchisor to the motor vehicle franchisee.
r. To provide any term or condition in any motor vehicle franchise, in any lease or other agreement ancillary or collateral to a motor vehicle franchise or in any renewal, amendment or modification thereof, which term or condition directly or indirectly violates P.L.1971, c.356 (C.56:10-1 et seq.).
s. To allocate vehicles to or evaluate the performance of a motor vehicle franchise based on, or offer any discount, incentive, bonus, program, allowance or credit that differentiates between vehicle sales by a motor vehicle franchisee within a territory or geographic area assigned to the motor vehicle franchisee and vehicle sales outside of such territory or geographic area.
This act shall not apply to a franchise granted prior to the effective date of this act, provided, however, that a renewal of a franchise or an amendment to an existing franchise shall not be excluded from the application of this act.
It shall be a defense for a franchisor, to any action brought under this act by a franchisee, if it be shown that said franchisee has failed to substantially comply with requirements imposed by the franchise and other agreements ancillary or collateral thereto.
Any franchisee may bring an action against its franchisor for violation of this act in the Superior Court of the State of New Jersey to recover damages sustained by reason of any violation of this act and, where appropriate, shall be entitled to injunctive relief. Such franchisee, if successful, shall also be entitled to the costs of the action including but not limited to reasonable attorney's fees.
If any provision of this law or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the law which can be given effect without the invalid provision or application, and to this end the provisions of this law are severable.
No liability on the part of and no cause of action of any nature other than as provided by this act shall arise against any franchisor, its officers, agents or employees furnishing information as to reasons for termination, cancellation, intent not to renew, failure to renew, unacceptability of a proposed transferee, or relating to the character, financial ability or business experience of a proposed transferee, or for statements made or evidence submitted at any hearing or trial conducted in connection therewith.
"Motor vehicle franchisor" means a franchisor engaged in the business of manufacturing or assembling new motor vehicles, who will, under normal business conditions during the year, manufacture or assemble at least 10 new motor vehicles, and his motor vehicle distributors;
"Motor vehicle franchisee" means every franchisee actively engaged in the business of buying, selling or exchanging new motor vehicles and who has an established place of business;
"Motor vehicle franchise" means a franchise for the marketing of new motor vehicles;
"New motor vehicle" means only a newly manufactured motor vehicle, and includes all vehicles propelled otherwise than by muscular power, and motorcycles, trailers and tractors, excepting: (1) those vehicles as run only upon rails or tracks and motorized bicycles, and buses, including school buses; and (2) those motor vehicles not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway.
a. the relocation will leave that franchisor without representation in the primary market area of the relocating motor vehicle franchisee;
b. the relocation will have a material adverse effect on an existing motor vehicle franchisee;
c. the place of business to which the motor vehicle franchisee proposes to relocate does not substantially satisfy the reasonable standards for franchise facilities established by the motor vehicle franchisor in writing and made available to its franchisees; or
d. the relocation is determined to be injurious pursuant to P.L.1982, c.156 (C.56:10-16 et seq.).
a. any unused, undamaged and unsold vehicles from current and all prior year inventories with 500 miles or less registered on the odometer, or recreational vehicles that were acquired from the motor vehicle franchisor within 12 months before the effective date of the termination, and any unused, undamaged and unsold parts, supplies and accessories, listed in the franchisor's current price catalog and acquired from the franchisor or a source approved or recommended by the franchisor at the franchisee's net acquisition cost therefor, including transportation, delivery and similar charges paid by the franchisee, plus the franchisee's cost of handling, packing, loading and transporting the vehicle inventory, parts, supplies and accessories for return to the franchisor. For the purposes of this subsection, vehicle inventory, parts, supplies and accessories used by the franchisee or its employees for display, demonstration or other marketing purposes shall be deemed to be unused or unsold.
b. any special tools and signs which were required by the franchisor, at:
(1) the franchisee's net acquisition cost if the item was acquired in the 12 months immediately preceding the effective date of the termination, cancellation or nonrenewal;
(2) the greater of the fair market value or 75% of the franchisee's net acquisition cost if the item was acquired more than 12 but less than 24 months immediately preceding the effective date of the termination, cancellation or nonrenewal;
(3) the greater of the fair market value or 50% of the franchisee's net acquisition cost if the item was acquired more than 24 but less than 36 months immediately preceding the effective date of the termination, cancellation or nonrenewal;
(4) the greater of the fair market value or 25% of the franchisee's net acquisition cost if the item was acquired more than 36 but less than 60 months immediately preceding the effective date of the termination, cancellation or nonrenewal; or
(5) the fair market value if the item was acquired more than 60 months immediately preceding the effective date of the termination, cancellation or nonrenewal; plus the franchisee's cost of handling, packing, loading and transporting the item for return to the franchisor.
Payment shall be made by the motor vehicle franchisor within 30 days after the date on which the motor vehicle franchisee notifies the motor vehicle franchisor in writing that the property is available for repurchase.
Nothing in this section shall prohibit the franchise from containing provisions in addition to, but not inconsistent with, those required by this section.
(1) any change in the ownership, operation or control of all or any part of the franchisor's business, whether by sale or transfer of the assets, corporate stock or other equity interest; assignment; merger; consolidation; combination; reorganization; restructuring; redemption; operation of law or otherwise; or
(2) the termination, suspension or cessation of all or any part of the franchisor's business operations due to the discontinuance of a line make or otherwise, unless the franchisor complies with the provisions of subsections b., c., d. and e. of this section or unless the franchisor, or another motor vehicle franchisor, pursuant to an agreement with the franchisor, offers the franchisee a replacement motor vehicle franchise which takes effect no later than the date of the termination, cancellation or nonrenewal of the franchisee's existing motor vehicle franchise.
b. Within 90 days of the effective date of the termination, cancellation or nonrenewal, the motor vehicle franchisor shall compensate the motor vehicle franchisee in an amount at least equivalent to the fair market value of the motor vehicle franchise on
(1) the day before the date the franchisor announces the action which results in the termination, cancellation or nonrenewal; or
(2) the date on which the notice of termination, cancellation or nonrenewal is issued, whichever amount is higher.
c. The franchisor shall authorize the franchisee to continue servicing and supplying parts, including service and parts pursuant to a warranty issued by the franchisor, for any goods or services marketed by the franchisee pursuant to the motor vehicle franchise for a period of not less than five years from the effective date of the termination, cancellation or nonrenewal and shall continue to reimburse the franchisee for warranty parts and service in an amount and on terms no less favorable than those in effect prior to the termination, cancellation or nonrenewal and in accordance with section 3 of P.L.1977, c.84 (C.56:10-15).
d. The franchisor shall continue to supply the franchisee with replacement parts for any goods or services marketed by the franchisee pursuant to the motor vehicle franchise for a period of not less than five years from the effective date of the termination, cancellation or nonrenewal, at the same price and terms as the franchisor supplied them to the remaining franchisees of the franchisor, or if there are no such remaining franchisees, at a price and on terms no less favorable than those in effect prior to the termination, cancellation or nonrenewal.
e. If the franchisee continues to service motor vehicles and sell parts after the termination, cancellation or nonrenewal, as provided for in subsections c. and d. of this section, the compensation paid to the franchisee pursuant to subsection b. of this section shall be reduced to the extent, if any, of the fair market value of such rights as of the effective date of the termination, cancellation or nonrenewal.
a. at the election of the motor vehicle franchisee, assumes the lease for or acquires the real property on which the motor vehicle franchise is conducted on the same terms as those on which the real property or lease was to be sold or transferred to the acquiring transferee in connection with the sale of the motor vehicle franchise, unless otherwise agreed to by the motor vehicle franchisee and motor vehicle franchisor; and
b. reimburses the acquiring transferee of the motor vehicle franchise for the reasonable expenses paid or incurred by him in evaluating and investigating the motor vehicle franchise and negotiating and pursuing the acquisition of the motor vehicle franchise prior to the motor vehicle franchisor's exercise of the right of first refusal or other right to acquire the motor vehicle franchise. For purposes of this subsection, expenses to evaluate and investigate the motor vehicle franchise means, in addition to any other expenses associated with the evaluation and investigation of the motor vehicle franchise, legal and accounting expenses, and expenses associated with the evaluation and investigation of any real property on which the motor vehicle franchise is conducted, including, but not limited to, expenses associated with title examinations, environmental assessments and other expenses directly related to the acquisition or lease of such real property by the acquiring transferee. Upon reimbursement, any title reports, or other reports or studies received by the acquiring transferee as a result of the evaluation or investigation of the motor vehicle franchise or the real property on which the motor vehicle franchise is conducted shall be provided to the motor vehicle franchisor. The acquiring transferee shall submit an itemized list of the expenses to be reimbursed along with supporting documents, if any, to the motor vehicle franchisor no later than 30 days after receipt of a written request for same from the motor vehicle franchisor. The motor vehicle franchisor shall make payment within 30 days of receipt of the itemized list.
c. For purposes of this section, "acquiring transferee" means the person to whom the motor vehicle franchise would have been transferred had the right of first refusal or other right to acquire the motor vehicle franchise not been exercised by the motor vehicle franchisor.
All motor vehicle franchisors shall indemnify and hold harmless their motor vehicle franchisees from any and all claims, losses, damages, and expenses, including attorneys' fees, resulting from or related to complaints, claims or suits against the motor vehicle franchisee by third parties concerning defects or alleged defects in any of the merchandise or service systems, procedures or methods of the motor vehicle franchisors which are sold or performed by the motor vehicle franchisee. With regards to services rendered by a motor vehicle franchisee, the motor vehicle franchisor shall not be liable to the motor vehicle franchisee by virtue of this section for any claims, losses, expenses or damages arising as a result of negligence or willful malfeasance by the motor vehicle franchisee, but the motor vehicle franchisor shall be liable for damages arising from or in connection with any services rendered by a motor vehicle franchisee in accordance with any service system, procedure or method suggested or required by the motor vehicle franchisor. The foregoing provisions for indemnification shall specifically include, but without limiting the generality of the foregoing, any defects or damages to merchandise occurring in transit from the motor vehicle franchisor to the motor vehicle franchisee in situations in which the motor vehicle franchisor designates the carrier or method of transportation.
a. the motor vehicle franchisor shall reimburse each motor vehicle franchisee for such labor services, including diagnostic work, as are rendered and for such parts as are supplied, in an amount equal to the prevailing retail price calculated pursuant to subsections d., e., and j. of this section. The average retail labor rate, average retail labor time allowance, and parts markup, as declared by the motor vehicle franchisee, shall become effective 30 days following the declaration subject to audit by the motor vehicle franchisor only of the sample submitted by the motor vehicle franchisee. Any proposed adjustment of the average retail labor rate, the average retail labor time allowance, or the parts markup made by the motor vehicle franchisor shall be based only on an audit of that sample;
b. the motor vehicle franchisor shall not by agreement, by restrictions upon reimbursement, or otherwise restrict the nature and extent of labor services to be rendered or parts to be provided so that such restriction prevents the motor vehicle franchisee from satisfying the warranty by rendering labor services in a good and workmanlike manner and providing parts that are required in accordance with generally accepted standards. Any such restriction shall constitute a prohibited practice hereunder;
c. the motor vehicle franchisor shall reimburse the motor vehicle franchisee pursuant to subsection a. of this section, without deduction, for labor services performed on, and parts supplied for, a motor vehicle by the motor vehicle franchisee in good faith and in accordance with generally accepted standards, notwithstanding any requirement that the motor vehicle franchisor accept the return of the motor vehicle or make payment to a consumer with respect to the motor vehicle pursuant to the provisions of P.L.1988, c.123 (C.56:12-29 et seq.);
d. for the purposes of this section, the "prevailing retail price" charged by: (1) a motor vehicle franchisee for parts means the price paid by the motor vehicle franchisee for those parts, including all shipping and other charges, multiplied by the sum of 1.0 and the franchisee's average percentage parts markup over the price paid by the motor vehicle franchisee for parts purchased by the motor vehicle franchisee from the motor vehicle franchisor and sold at retail. The motor vehicle franchisee may establish average percentage parts markup under this section by submitting to the motor vehicle franchisor 100 sequential customer paid service repair orders or 90 days of customer paid service repair orders, whichever is less, covering repairs made no more than 180 days before the submission, and declaring the average percentage parts markup. The average percentage parts markup so declared shall go into effect 30 days following the declaration subject to audit by the motor vehicle franchisor only of the sample submitted by the motor vehicle franchisee. Any proposed adjustment of the average parts markup by the motor vehicle franchisor shall be based only on an audit of that sample. A motor vehicle franchisee shall not request a change in the average percentage parts markup more than twice in one calendar year; and (2) a recreational motor vehicle franchisee for parts means actual wholesale cost, plus a minimum 30 percent handling charge and any freight costs incurred to return the removed parts to the motor vehicle franchisor;
e. (1) if a motor vehicle franchisor supplies, or causes to be supplied, a part or parts for use in a repair rendered under a warranty, an extended warranty, a maintenance plan, a service-related plan, a recall, or other work that is also offered and reimbursed by the motor vehicle franchisor, at no cost or at a reduced cost for use in performing the repair work, the franchisor shall compensate the motor vehicle franchisee in the same manner as the motor vehicle franchisor compensates the motor vehicle franchisee under this section by paying the motor vehicle franchisee for the franchisee’s cost of the part, if any, plus an amount equal to the franchisee’s parts markup multiplied by the wholesale value of the part. The wholesale value of the part shall be the greater of:
(a) the amount the motor vehicle franchisee paid for the part or a substantially identical part;
(b) the cost of the part in a current or prior established price schedule issued by the motor vehicle franchisor or issued by a third party that has previously supplied the part to the motor vehicle franchisee;
(c) the cost of a substantially identical part in a current or prior established price schedule issued by the motor vehicle franchisor or by a third party; or
(d) the reasonable wholesale price for the part.
(2) The requirements of this section shall not apply to electric propulsion batteries, entire engine assemblies, and entire transmission assemblies. In the case of those parts, the motor vehicle franchisor shall reimburse the motor vehicle franchisee in the amount of 30 percent of what the motor vehicle franchisee would have paid the motor vehicle franchisor for the part if the part had not been supplied by the franchisor other than by the sale of that part to the motor vehicle franchisee;
f. the motor vehicle franchisor shall reimburse the motor vehicle franchisee for parts supplied and labor services rendered under a warranty, an extended warranty, a maintenance plan, or a service-related plan offered by the motor vehicle franchisor within 30 days after approval of a claim for reimbursement. All claims for reimbursement shall be approved or disapproved within 30 days after receipt of the claim by the motor vehicle franchisor. When a claim is disapproved, the motor vehicle franchisee shall be notified in writing of the grounds for the disapproval. No claim that has been approved and paid shall be charged back to the motor vehicle franchisee unless it can be shown that the claim was false or fraudulent, that the labor services were not properly performed, that the parts or labor services were unnecessary to correct the defective condition, or that the motor vehicle franchisee failed to reasonably substantiate the claim in accordance with reasonable written requirements of the motor vehicle franchisor, provided that the motor vehicle franchisee had been notified of the requirements prior to the time the claim arose and the requirements were in effect at the time the claim arose. A motor vehicle franchisor shall not audit a claim after the expiration of 12 months following the payment of the claim unless the motor vehicle franchisor has reasonable grounds to believe that the claim was fraudulent;
g. the obligations imposed on motor vehicle franchisors by this section shall apply to any parent, subsidiary, affiliate, or agent of the motor vehicle franchisor, any person under common ownership or control, any employee of the motor vehicle franchisor, and any person holding one percent or more of the shares of any class of securities or other ownership interest in the motor vehicle franchisor, if a warranty or service or repair plan is issued by that person instead of or in addition to one issued by the motor vehicle franchisor;
h. the provisions of this section shall also apply to motor vehicle franchisor-administered service and repair plans:
(1) if the motor vehicle franchisee offers for sale only the motor vehicle franchisor administered service or repair plan; or
(2) if the motor vehicle franchisee is paid its prevailing retail price for all service or repair plans that the motor vehicle franchisee offers for sale to purchasers of new motor vehicles;
(3) for the first 36,000 miles of coverage under the motor vehicle franchisor administered service or repair plan, if the warranty offered by the motor vehicle franchisor on the motor vehicle provides coverage for less than 36,000 miles; or
(4) for motor vehicles covered by a motor vehicle franchisor administered service or repair plan, if the motor vehicle franchisee does not offer for sale the motor vehicle franchisor administered service or repair plan.
With respect to motor vehicle franchisor administered service or repair plans covering only routine maintenance service, this section applies only to those plans sold to customers on or after the effective date of P.L.1999, c.45;
i. a motor vehicle franchisor shall make payment to a motor vehicle franchisee pursuant to incentive, bonus, sales, performance, or other programs within 30 days after receipt of a claim from the motor vehicle franchisee. When a claim is disapproved, the motor vehicle franchisee shall be notified in writing of the grounds for disapproval. No claim shall be disapproved unless it can be shown that the claim was false or fraudulent or that the motor vehicle franchisee failed to reasonably substantiate the claim in accordance with reasonable written requirements of the motor vehicle franchisor, provided that the motor vehicle franchisee had been notified of the requirements prior to the time the claim arose and the requirements were in effect at the time the claim arose. A motor vehicle franchisor shall not audit a claim after the expiration of 12 months following the payment of the claim;
j. (1) a calculation of the retail rate customarily charged by the dealer for parts markup shall not include the following:
(a) discounts for retail customer repairs or special or promotional events offered by a manufacturer, manufacturer branch, distributor, or distributor branch;
(b) parts sold or repairs performed at wholesale;
(c) routine maintenance, including, but not limited to, the replacement of brakes, bulbs, fluids, filters, batteries, and belts that are not provided in the course of or related to a repair;
(d) items that do not have individual part numbers, including, but not limited to, nuts, bolts, and fasteners;
(e) vehicle reconditioning;
(f) accessories;
(g) repairs of conditions caused by a collision, a road hazard, natural forces, vandalism, theft, or negligent or deliberate damage by an owner, operator, or third party;
(h) parts sold or repairs performed for insurance carriers;
(i) vehicle emission inspections required by law;
(j) manufacturer-approved goodwill or policy repairs or replacements;
(k) repairs for a government agency or a service contract provider employed as an agent of a government agency;
(l) repairs with aftermarket parts when calculating a retail parts rate, not when calculating a retail labor rate;
(m) repairs on aftermarket parts;
(n) replacement of tires or work on tires, including wheel alignments or tire rotations; or
(o) repairs of motor vehicles owned by the franchisee or an employee of a franchisee at the time of the repair;
(2) a calculation of the retail labor time allowance customarily charged by the dealer for customer paid repairs shall not include the following:
(a) discounts for retail customer repairs or special or promotional events offered by a manufacturer, manufacturer branch, distributor, or distributor branch;
(b) parts sold or repairs performed at wholesale;
(c) routine maintenance, including, but not limited to, the replacement of brakes, bulbs, fluids, filters, batteries, and belts that are not provided in the course of or related to a repair;
(d) items that do not have individual part numbers, including, but not limited to, nuts, bolts, and fasteners;
(e) vehicle reconditioning;
(f) accessories;
(g) repairs of conditions caused by a collision, a road hazard, natural forces, vandalism, theft, or negligent or deliberate damage by an owner, operator, or third party;
(h) parts sold or repairs performed for insurance carriers;
(i) vehicle emission inspections required by law;
(j) manufacturer-approved goodwill or policy repairs or replacements;
(k) repairs for a government agency or a service contract provider employed as an agent of a government agency;
(l) repairs with aftermarket parts when calculating a retail parts rate, not when calculating a retail labor rate;
(m) repairs on aftermarket parts;
(n) replacement of tires or work on tires, including wheel alignments or tire rotations; or
(o) repairs of motor vehicles owned by the franchisee or an employee of a franchisee at the time of the repair; and
(3) a calculation of the retail labor rate customarily charged by the dealer for customer paid repairs shall not include the following:
(a) discounts for retail customer repairs or special or promotional events offered by a manufacturer, manufacturer branch, distributor, or distributor branch;
(b) parts sold or repairs performed at wholesale;
(c) routine maintenance, including, but not limited to, the replacement of brakes, bulbs, fluids, filters, batteries, and belts that are not provided in the course of or related to a repair;
(d) items that do not have individual part numbers, including, but not limited to, nuts, bolts, and fasteners;
(e) vehicle reconditioning;
(f) accessories;
(g) repairs of conditions caused by a collision, a road hazard, natural forces, vandalism, theft, or negligent or deliberate damage by an owner, operator, or third party;
(h) parts sold or repairs performed for insurance carriers;
(i) vehicle emission inspections required by law;
(j) manufacturer-approved goodwill or policy repairs or replacements;
(k) repairs for a government agency or a service contract provider employed as an agent of a government agency;
(l) repairs with aftermarket parts when calculating a retail parts rate but not when calculating a retail labor rate;
(m) repairs on aftermarket parts;
(n) replacement of tires or work on tires, including wheel alignments or tire rotations; or
(o) repairs of motor vehicles owned by the franchisee or an employee of the franchisee at the time of the repair;
k. (1) a motor vehicle franchisor shall not:
(a) impose unreasonable handling procedures or unreasonable handling charges upon its motor vehicle franchisees for return or disposal of any part, including electric propulsion batteries, dangerous or unexploded air bag units, or seat belt tensioners;
(b) penalize or charge a motor vehicle franchisee for the return of a defective electric propulsion battery that is returned to the motor vehicle franchisor within 60 days of its removal from a vehicle under warranty service, extended warranty service, a maintenance plan, a service-related plan, a recall, or other work that is also offered and reimbursed by the motor vehicle franchisor; or
(c) charge a dealer more for a late return than the wholesale price charged to the dealer for the electric propulsion battery.
(2) A franchisor shall compensate a franchisee for labor time to package and return ship an electric propulsion battery and shall supply the franchisee with appropriate packaging to facilitate the return;
l. for the purposes of this section, the prevailing retail price for labor shall be the average hourly labor rate charged to retail customers. A motor vehicle franchisee may establish its average labor rate under this section by submitting to the motor vehicle franchisor 100 sequential customer paid service repair orders or 90 days of customer paid service repair orders, whichever is less, covering customer paid repairs made no more than 180 days before the submission. The average retail labor rate shall be calculated by multiplying the total labor charges in the sample by 1.0 and dividing that amount by the total number of labor hours in the sample. The average retail labor rate so declared shall go into effect 30 days following the declaration subject to audit by the motor vehicle franchisor only of the sample submitted by the motor vehicle franchisee. Any proposed adjustment of the average retail labor rate made by the motor vehicle franchisor shall be based solely on an audit of that sample;
m. a motor vehicle franchisor shall provide adequate and fair compensation to each motor vehicle franchisee for labor services rendered for a repair in an amount not less than the amount a retail customer pays for the same labor services with regard to labor time. A motor vehicle franchisee may apply to its motor vehicle franchisor to be reimbursed for labor time according to, at the motor vehicle franchisee’s discretion, an established average retail labor time allowance, in lieu of the motor vehicle franchisor’s labor time guide for franchisor-paid repairs or service, by submitting to the motor vehicle franchisor the multiplier established by taking the number of hours billed in 100 sequential customer paid service repair orders or 90 days of customer paid service repair orders, whichever is less, covering repairs made no more than 180 days before the submission, and dividing that by the number of hours permitted by the motor vehicle franchisor for any such repairs under the motor vehicle franchisor’s labor time guide for franchisor-paid repairs or service. The resulting quotient shall be applied to the motor vehicle franchisor’s labor time guide to establish the motor vehicle franchisee’s average retail labor time allowance. The average retail labor time allowance so declared shall go into effect 30 days following the declaration subject to audit by the motor vehicle franchisor only of the sample submitted by the motor vehicle franchisee. Any proposed adjustment of the average labor time allowance made by the motor vehicle franchisor shall be based only on an audit of that sample.
Upon payment of a claim for labor services under this section by the motor vehicle franchisor to the motor vehicle franchisee, the motor vehicle franchisee shall compensate its factory-certified flat rate technicians performing work on a warranty, an extended warranty, a maintenance plan, a service-related plan, a recall, or other work that is also offered and reimbursed by the motor vehicle franchisor;
n. a motor vehicle franchisee shall not request a change in the average percentage parts markup, labor time allowance, or retail labor rate more than twice in one calendar year;
o. a motor vehicle franchisor shall not recover its costs, except as provided in this section, from a motor vehicle franchisee within this State, including, but not limited to, an increase in the wholesale price of a vehicle or a surcharge imposed on a motor vehicle franchisee solely, which increase is intended to recover the cost of reimbursing a motor vehicle franchisee for parts and service pursuant to this section. However, a motor vehicle franchisor shall not be prohibited from increasing prices for vehicles or parts in the normal course of business;
p. a motor vehicle franchisor shall not charge back any claim paid for labor services and parts provided in the performance of a warranty, an extended warranty, a maintenance plan, a service-related plan, a recall, or other work that is also offered and reimbursed by the motor vehicle franchisor for an incentive, bonus, sales, performance, or other program without providing written notice to the motor vehicle franchisee within 30 days from the audit, which explains in detail the basis for each of the proposed chargebacks and the methodology by which the franchisee was selected for audit or review. After all internal dispute resolution processes provided through the motor vehicle franchisor have been resolved, the motor vehicle franchisor shall provide final notice to the motor vehicle franchisee of the final amount of the proposed chargeback. If the motor vehicle franchisee or its representative institutes an administrative or judicial action for a violation of the “Franchise Practices Act,” P.L.1971, c.356 (C.56:10-1 et seq.), challenging the chargeback within 30 days of the receipt of the final notice, the total proposed chargeback amounts shall be stayed, without bond, until the final judgment has been rendered in the action. A motor vehicle franchisor shall not deny or charge back a claim paid for labor services and parts provided in the performance of an open recall, warranty, or other service agreement or for an incentive, bonus, sales, performance, or other program unless the motor vehicle franchisor satisfies its burden of proof that the motor vehicle franchisee did not make a good faith effort to comply with the reasonable written procedures of the motor vehicle franchisor, that the motor vehicle franchisee did not actually perform the work, or that the claim was materially false or fraudulent. A motor vehicle franchisor shall not deny or charge back a claim due to an administrative or scrivener’s error in the submission of the claim; and
q. a motor vehicle franchisor shall not unilaterally reduce or otherwise manipulate the price of parts required for a warranty, an extended warranty, a maintenance plan, a service-related plan, a recall, or other work that is also offered and reimbursed by the motor vehicle franchisor in a manner that unfairly and unilaterally allows the motor vehicle franchisor to reduce the level of compensation paid to motor vehicle franchisees, including changes to price within 60 or fewer days preceding an announcement of a recall, any time after a recall, or after a warranty claim has arisen. A motor vehicle franchisor shall not manipulate the price of parts required for warranty or open recall services by creating a new or additional part number for the same part used in warranty or recall repair in a manner that unfairly and unilaterally allows the motor vehicle franchisor to reduce the level of compensation paid to motor vehicle franchisees for warranty and open recall services that the motor vehicle franchisees provide to consumers.
b. "Franchise" means a written arrangement for a definite or indefinite period in which a motor vehicle franchisor grants a right or license to use a trade name, trademark, service mark or related characteristics and in which there is a community of interest in the marketing of new motor vehicles at retail, by lease agreement or otherwise;
c. "Franchisee" means a natural person, corporation, partnership or entity to whom a franchise is granted by a motor vehicle franchisor;
d. "Motor vehicle" or "new motor vehicle" means only a newly manufactured motor vehicle, except a nonconventional type of motor vehicle, and includes all such vehicles propelled otherwise than by muscular power, and motorcycles, trailers and tractors, excepting such vehicles as run only upon rails or tracks and motorized bicycles; a "nonconventional type of motor vehicle" means every vehicle not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway;
e. "Motor vehicle franchisor" means a natural person, corporation, partnership or entity engaged in the business of manufacturing, assembling or distributing new motor vehicles, who will under normal business conditions during the year, manufacture, assemble or distribute at least 10 new motor vehicles;
f. "Relevant market area" means a geographic area 14 miles in radius from a proposed franchise or business as it relates to the grant, reopening or reactivation of a franchise or the establishment, reopening or reactivation of a business; and a geographic area 8 miles in radius from a relocated franchise or business, but if there are no existing franchisees in the same line make within an 8-mile radius of the relocated franchise or business, then the relevant market area includes the next closest existing franchisee in the same line make within a 14-mile radius. Determining whether an existing franchisee is within the relevant market area of a proposed or relocated franchise or business, and ascertaining any other measurement of distance, shall be made by measuring the distance between the nearest surveyed boundary line of the existing franchise and the nearest surveyed boundary line of the proposed or relocated franchise or business.
There is established in the Executive Branch of the State Government a committee which shall be known as the Motor Vehicle Franchise Committee. The committee shall consist of the Director of the Division of Motor Vehicles, the Commissioner of the Department of Commerce and Economic Development and the Director of the Division of Consumer Affairs. The Director of the Division of Motor Vehicles shall be the chairman of the committee. The committee shall meet from time to time at the call of the chairman, for the purpose of conducting hearings and rendering final determinations as provided for in this act. All papers required to be filed with the committee pursuant to this act shall be filed with the Director of the Division of Motor Vehicles. For purposes of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the committee is allocated within the Department of Law and Public Safety, but notwithstanding that allocation, the committee shall remain independent of any supervision or control by the department or by any personnel thereof.
a. Permit an existing franchisee to relocate his franchise within two miles of the franchisee's existing franchise location, except that a franchise may not be relocated pursuant to this subsection unless at least five years have elapsed since any previous relocation pursuant to this subsection;
b. Reopen or reactivate a franchise or business which has not been in operation for a period of two years or less at a site within two miles of the prior site, provided that the rights accorded to the franchisor herein shall not apply to a successor or assignee of the franchisor of the franchise or business at the time the franchise or business was closed or deactivated; or
c. Permit the purchaser of a controlling interest in the shares or substantially all of the operating assets of an existing franchise to relocate the place of business of the franchise within two miles of the previously approved franchise location within 180 days of the date of purchase.
When a protest has been filed, as provided for in this act, the franchisee may move for a determination by the committee that a prima facie case has been made that the final determination will be in favor of the franchisee. If such a finding is made, the motor vehicle franchisor shall not grant, relocate, reopen or reactivate the proposed franchise or establish, relocate, reopen or reactivate the proposed business until the committee has made a final determination that that action does not violate this act.
(1) The proposed franchise or business would materially enhance the availability of stable, adequate and reliable sales and service to purchasers of vehicles in the same line make in the market area served by the franchisees entitled to notice;
(2) The proposed franchise or business would not affect the stability of existing franchisees in the same line make;
(3) The existing franchisees in the same line make have not provided adequate representation of the line make in their market areas for a period of at least two years based on the availability of motor vehicle sales and service facilities, equipment, supply of motor vehicle parts and qualified service personnel;
(4) The franchisor's action is in good faith.
b. In determining whether the grant, relocation, reopening or reactivation of a franchise or establishment, relocation, reopening or reactivation of a business will be injurious to existing franchisees or to the public interest, it shall be conclusively presumed that the proposed grant, relocation, reopening or reactivation of the franchise or establishment, relocation, reopening or reactivation of the business will be injurious to existing franchisees or to the public interest if:
(1) for the 24-month period prior to notice pursuant to section 4 of P.L.1982, c.156 (C.56:10-19), the average market penetration of the franchisees given notice pursuant to section 4 of P.L.1982, c.156 (C.56:10-19), in the area of primary responsibility or territory assigned to such franchises, is at least equal to the average market penetration of all franchisees in the same line make in this State;
(2) the proposed franchise or business is likely to cause not less than a 25% reduction in new vehicle sales or not less than a 25% reduction in gross income for the protesting franchisee;
(3) the proposed franchise or business will not operate a full service franchise or business at the proposed location; or
(4) an owner or operator of the proposed franchise or business has engaged in materially unfair or deceptive business practices with respect to a motor vehicle franchise or business.
c. The presumption in subsection b. of this section shall not apply to the grant, reopening or reactivation of a franchise or to the establishment, reopening or reactivation of a business if the proposed franchisee is a minority or a woman. For the purposes of this subsection, "minority" means a person who is:
(1) Black, which is a person having origins in any of the black racial groups in Africa; or
(2) Hispanic, which is a person of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race; or
(3) Asian American, which is a person having origins in any of the original peoples of the Far East, Southeast Asia, Indian Subcontinent, Hawaii, or the Pacific Islands; or
(4) American Indian or Alaskan native, which is a person having origins in any of the original peoples of North America.
d. In determining whether the relocation of an existing franchise or business will be injurious to existing franchisees or the public interest, the committee shall consider in making its determination, whether the franchisor has proven, by a preponderance of the evidence, that:
(1) The relocation would materially enhance the availability of stable, adequate and reliable sales and service to purchasers of vehicles in the same line make in the market areas served by the franchisees entitled to notice;
(2) The relocation would not affect the stability of the existing franchises in the same line make;
(3) The existing franchisees in the same line make have not provided adequate representation of the line make in their market areas for a period of at least two years based on the availability of motor vehicle sales and service facilities, equipment, supply of motor vehicle parts and qualified service personnel;
(4) The relocation is in good faith; and
(5) The effect on the relocating dealer of the denial of its relocation outweighs the injury to an existing franchisee.
In any administrative proceeding under this act, each party shall be responsible for his own litigation costs and attorney fees. The committee shall assess and equally apportion among the parties to the hearing, and shall transfer to the Office of Administrative Law, the administrative hearing costs resulting from a protest filed pursuant to this act. Administrative hearing costs shall be based on a billing rate established by the Office of Administrative Law and approved by the Director of Budget and Accounting.
The committee may promulgate such rules and regulations as are necessary to implement the provisions of this act.
"Consumer" means the purchaser, other than for resale, of a motor vehicle.
"Franchise" means a written arrangement for a definite or indefinite period in which a motor vehicle franchisor grants a right or license to use a trade name, trademark, service mark or related characteristics and in which there is a community of interest in the marketing of new motor vehicles at retail, by lease, agreement or otherwise.
"Motor vehicle" means and includes all vehicles propelled otherwise than by muscular power, and motorcycles, trailers and tractors, excepting: (1) those vehicles as run only upon rails or tracks, motorized bicycles, and buses, including school buses; and (2) those motor vehicles not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway.
"Motor vehicle franchisee" means a person to whom a franchise is granted by a motor vehicle franchisor and who or which holds a current valid motor vehicle dealer's license issued pursuant to R.S.39:10-19 and has an established place of business.
"Motor vehicle franchisor" means a person engaged in the business of manufacturing, assembling or distributing new motor vehicles, or importing into the United States new motor vehicles manufactured or assembled in a foreign country, who will under normal business conditions during the year, manufacture, assemble, distribute or import at least 10 new motor vehicles.
"New motor vehicle" means a newly manufactured motor vehicle.
"Person" means a natural person, corporation, partnership, trust, or other entity and, in the case of an entity, it shall include any other entity which has a majority interest in that entity or effectively controls that other entity as well as the individual officers, directors, and other persons in active control of the activities of each such entity.
"Place of business" means a fixed geographical location at which the motor vehicle franchisor's motor vehicles are offered for sale and sold, but shall not include an office, a warehouse, a place of storage, a residence or a vehicle.
"Zero emission vehicle" means a motor vehicle certified as a zero emission vehicle pursuant to the California Air Resources Board zero emission vehicle standards for the applicable model year, but shall not include an advanced technology partial zero emission vehicle, a partial zero emission vehicle, or a hybrid electric vehicle.
b. Subsection a. of this section shall not be construed to prohibit the leasing or assigning of vehicles by a franchisor to its employees or to employees of an affiliate or subsidiary of the franchisor. Such vehicles shall be titled and registered with the Motor Vehicle Commission and shall therefore be eligible to receive a standard issue license plate. A franchisor may elect to title and register the vehicles with the Motor Vehicle Commission or to designate a third party approved by the Motor Vehicle Commission to do so on behalf of the franchisor.
c. A franchisor that has its headquarters in this State may assign, or otherwise lend for use and operation, vehicles to individuals or entities for promotional, testing, marketing, or product familiarity purposes. Any such vehicle that is titled, registered, and insured in the name of the franchisor or its affiliate or subsidiary and shall therefore be eligible to receive a standard issue license plate up to an aggregate of 50 vehicles at any given time for such plate. A franchisor may elect to title and register the vehicles with the Motor Vehicle Commission or to designate a third party approved by the Motor Vehicle Commission to do so on its behalf.
d. A franchisor that has its headquarters in this State may perform service, including, but not limited to, warranty, routine, and recall maintenance on vehicles leased or assigned pursuant to this section, including ordering parts, components, accessories, or any other item needed for the servicing of such motor vehicles. Except as otherwise provided in this section, this subsection shall not be construed to permit a franchisor to perform retail service on motor vehicles sold, leased, or assigned to a consumer by a franchisee or another franchisor.
Such franchisor shall operate such servicing and the servicing facility with the equipment installed therein as shall be requisite for the servicing of motor vehicles in a manner as to make them comply with the laws of this State and with any rules and regulations governing the equipment, use, and operation of motor vehicles within the State. However, such franchisor shall not be required to comply with the provisions of R.S.39:10-19 requiring the maintaining of a place of business with a permanent building of not less than 1,000 square feet in floor space to be used principally for the servicing and display of motor vehicles or to have an exterior sign at the franchisor’s servicing facility.
(1) no more than four places of business in the State; and
(2) at least one retail facility for the servicing, including warranty servicing, of zero emission vehicles sold, offered for sale, or otherwise distributed in this State. This facility shall be furnished with all the equipment required to service a zero emission vehicle.
A franchisor shall not be required to establish or operate a place of business at a retail facility for the servicing of zero emission vehicles.
A motor vehicle franchisee may bring an action against the motor vehicle franchisor which has granted its franchise, or any other person, in the Superior Court to enjoin any violation of this act and to recover, where appropriate, any damages sustained by the franchisee as a result of a violation of this act. The franchisee, if successful, shall also be entitled to costs of the action, including, but not limited to, reasonable attorney fees.
b. A successful motor vehicle franchisee in an action or alternate dispute resolution proceeding to enjoin the termination of a motor vehicle franchise shall be entitled to an injunction barring termination of the motor vehicle franchise in addition to any other relief provided for in section 10 of P.L.1971, c.356 (C.56:10-10).
c. In any action or alternate dispute resolution proceeding with respect to the termination of a motor vehicle franchise, the motor vehicle franchisor shall have the burden of proving that termination of the motor vehicle franchise does not violate section 5 of P.L.1971, c.356 (C.56:10-5). In proving good cause for termination in any such action, the motor vehicle franchisor shall be limited to the grounds for termination set forth in the written notice provided for in section 5 of P.L.1971, c.356 (C.56:10-5).
d. Notwithstanding the giving of notice of termination of a motor vehicle franchise pursuant to section 5 of P.L.1971, c.356 (C.56:10-5), at any time prior to the date on which the termination becomes effective, the motor vehicle franchisee may enter into an agreement for, and submit to the motor vehicle franchisor, notice of the transfer, assignment or sale of the motor vehicle franchise to another person. Thereupon, the motor vehicle franchisor shall proceed as provided for in section 6 of P.L.1971, c.356 (C.56:10-6). Upon approval of the transfer, assignment or sale by the motor vehicle franchisor and upon consummation of same, the notice of termination of the motor vehicle franchise shall be deemed withdrawn, and the transferee shall receive the motor vehicle franchise free and clear of all grounds for termination. Notwithstanding the terms of any notice, any court order or any other provision of law, a motor vehicle franchise termination shall not become effective while a notice of transfer, assignment or sale is pending with a motor vehicle franchisor.
“Chief administrator” means the Chief Administrator of the New Jersey Motor Vehicle Commission.
“Commission” means the New Jersey Motor Vehicle Commission established pursuant to section 4 of P.L.2003, c.13 (C.39:2A-4).
“Do-not-drive notice” means a notification issued by a motor vehicle franchisor, or the National Highway Traffic Safety Administration, to a motor vehicle franchisee, which notice states that certain used motor vehicles in inventory are unsafe to drive and shall not be sold or leased, at either retail or wholesale, due to a recall.
“Manufacturer” means an entity engaged in the business of making or assembling new motor vehicles that manufactures or assembles at least 10 new motor vehicles per year under normal business conditions.
“Motor vehicle franchisee” means the same as that term is defined in section 1 of P.L.1977, c.84 (C.56:10-13).
“Motor vehicle franchisor” means the same as that term is defined in section 1 of P.L.1977, c.84 (C.56:10-13).
“New motor vehicle” means a new motor vehicle, as that term is defined in section 1 of P.L.1977, c.84 (C.56:10-13), that is subject to an open recall, or has been recalled, in accordance with federal law.
“New motor vehicle dealer” means the same as that term is defined pursuant to R.S.39:10-2.
“Open recall” means a recall that has not been corrected or addressed.
“Recall” means a safety or emissions recall on a specific motor vehicle that requires: (1) manufacturer notification pursuant to 49 U.S.C. s.30118, 49 U.S.C. s.30119, or any other federal law or regulation; and (2) repairs or modifications to a motor vehicle by an authorized new motor vehicle dealer or an authorized used motor vehicle dealer.
“Retail” does not include wholesale sales, sales between new motor vehicle dealers or used motor vehicle dealers, or sales to owners or operators of motor vehicle junk businesses or motor vehicle junk yards, as those terms are defined in R.S.39:11-2, or any other person engaged in the business of dismantling, destroying, or recycling motor vehicles.
“Stop-sale notice” means a notification issued by a motor vehicle franchisor to its motor vehicle franchisee stating that certain used motor vehicles in inventory shall not be sold or leased, at either retail or wholesale, due to a recall.
“Used motor vehicle” means the same as that term is defined in R.S.39:10-2.
“Used motor vehicle dealer” means the same as that term is defined pursuant to R.S.39:10-2.
a. at least one of the corporation’s or association’s members has independent standing to sue;
b. the interests that the action seeks to protect are germane to the corporation’s or association’s purpose; and
c. neither the claim asserted nor the relief requested requires any individual members of the corporation or association to participate in the action.
(1) the date that the recall parts or parts necessary to perform recall service are made available; or
(2) the date that the motor vehicle franchisee sells, trades, or otherwise disposes of a used motor vehicle that is subject to a stop-sale notice or do-not-drive notice.
b. The value of a used motor vehicle shall be the average trade-in value for used motor vehicles as indicated in an independent third-party guide for the year, make, and model of the recalled motor vehicle.
c. Subject to the provisions of section 3 of P.L.1977, c.84 (C.56:10-15), it shall be a violation of this section for a motor vehicle franchisor to reduce the amount of compensation otherwise owed to a motor vehicle franchisee through a chargeback, the removal of the motor vehicle franchisee from an incentive program, or a reduction in the amount owed under an incentive program because the motor vehicle franchisee has submitted a claim for reimbursement pursuant to this section. Nothing in this subsection shall prohibit a motor vehicle franchisor from discontinuing an incentive program.
d. All reimbursement claims made by motor vehicle franchisees pursuant to this section for recall remedies or repairs, or for compensation where no part or repair is reasonably available and the motor vehicle is subject to a stop-sale notice or do-not-drive notice, shall be subject to the same limitations and requirements as a warranty reimbursement claim made under section 3 of P.L.1977, c.84 (C.56:10-15). As an alternative, a motor vehicle franchisor may compensate its motor vehicle franchisees under a national recall compensation program, provided that:
(1) compensation under the program is equal to or greater than the compensation provided pursuant to this section; or
(2) the motor vehicle franchisor and motor vehicle franchisee otherwise agree.
e. A motor vehicle franchisor may direct the manner and method in which a motor vehicle franchisee is required to demonstrate the inventory status of an affected used motor vehicle to determine eligibility under this section. However, the manner and method shall not be unduly burdensome and shall not require information that is unduly burdensome to provide.
f. Nothing in this section shall require a motor vehicle franchisor to provide total compensation to a motor vehicle franchisee, which compensation would exceed the total average trade-in value of the affected used motor vehicle as originally determined pursuant to subsection b. of this section.
g. Any remedy provided to a motor vehicle franchisee under this section is exclusive and shall not be combined with any other State or federal recall compensation remedy.
As used in this act:
"Consumer" means a natural person.
"Creditor" means a person, partnership, corporation, association or other entity who, in the ordinary course of business, regularly extends consumer credit.
"Consumer credit" means credit extended to a consumer, primarily for personal, family or household purposes, pursuant to a plan under which the creditor may permit the consumer to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a credit card, check or other device, as the plan may provide.
"Billing error" means the initial occurrence of an error by omission or commission by the creditor in a billing statement given to the consumer by the creditor in (a) posting any debit or credit or (b) the computation of any amount or (c) any similar error of an accounting nature.
This act shall not apply to statements of accounts rendered to customers by public utilities whose billing practices are subject to the jurisdiction and regulation of the Board of Public Utility Commissioners.
If a creditor, having transmitted to a consumer a statement of the consumer's account, receives from the consumer at an address designated therefor by the creditor in accordance with section 5 of this act, within 60 days of the mailing of said statement, a written notice, on a document other than a document provided by the creditor to accompany payment, by mail or other delivery setting forth sufficient information to enable the creditor to identify the consumer and the account, the amount and transaction shown in the statement which the consumer in good faith believes to be a billing error, and the facts providing the basis for the consumer's belief that the statement is in error; the creditor shall:
a. Not later than 30 days after receipt of the notice, mail a written acknowledgment to the consumer; and
b. Not later than 90 days after receipt of the notice and prior to taking any action to collect the amount believed by the consumer to be a billing error, (1) make appropriate corrections in the account of the consumer and mail to the consumer a written notice stating that the amount believed to be in error has been corrected and will be shown on the next statement mailed to the consumer or (2) send a written notice to the consumer setting forth the reasons why the creditor believes the account of the consumer was correctly shown in the statement; and
c. Not communicate unfavorable credit information concerning the consumer to any person, including but not limited to credit bureaus or credit reporting agencies, based upon the consumer's failure to pay the amount believed by him to be a billing error, until the creditor has complied with this section.
Notwithstanding the receipt by a creditor of a notice from a consumer as described in section 3 of this act, a creditor may, subject to the provisions of section 7 of this act, transmit statements of account to the consumer which include an amount believed by the consumer to be a billing error, and the creditor, further, may undertake collection procedures not attributable to such consumer's failure to pay, nor directed at, such disputed amount.
Every statement of account rendered by a creditor to a consumer shall include the address to be used by the consumer in making inquiries concerning his statement.
In the case of any account under a consumer credit plan having an outstanding debit or credit balance of more than $1.00 at or after the close of the creditor's first billing cycle, after October 28, 1975, the procedures to be followed under section 3 of this act (C. 56:11-3) shall be disclosed by the creditor in a notice mailed or delivered to the consumer not later than the time of mailing of the next billing statement. With or before the first billing statement on any consumer credit plan issued or offered to a new consumer after October 28, 1975 and upon each subsequent renewal of a consumer's account a written notice shall be sent (by any means reasonably assuring the receipt thereof by the consumer) which describes the procedures to be followed under section 3 of this act (C. 56:11-3).
Any creditor, having received a notice from a consumer as provided in section 3 of this act, who fails to comply with the requirements of that section:
a. If such an amount is not in fact a billing error, forfeits any rights to collect from the consumer any finance charge or other charge imposed by the creditor in connection with the amount so specified, from the date of the mailing of such notice to the date the creditor complies with section 3 of this act; and
b. If such amount is in fact a billing error, is liable to the consumer in an amount equal to the sum of:
(1) the actual damages sustained by the consumer as a result of the failure of the creditor to comply with such section;
(2) twice the amount of the billing error shown in the statement of the consumer's account except that liability under this paragraph shall not be greater than $100.00; and (3) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney's fee as determined by the court.
c. If such amount is in fact a billing error but the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from bona fide error made despite the maintenance of procedures reasonably adopted to avoid any such error, the creditor shall be liable to the consumer only to the extent of the actual damages sustained by the consumer as a result of the failure of the creditor to comply with such section and the costs of any action brought to enforce collection of such erroneous bill together with a reasonable attorney's fee as determined by the court.
With respect to any inconsistencies between the provisions of this act and the "Fair Credit Billing Act" (Public Law 93-495, 58 Stat. 1511) comprising Title III of the Federal Truth in Lending Act (Public Law 90-321, 82 Stat. 146, 15 U.S.C. 1601 et seq.) conduct in compliance with said Federal law and regulations shall be deemed and construed to be conduct in compliance with the provisions of this act.
The liability of a creditor under this act is in lieu of, and not in addition to, the creditor's liability under the Federal Fair Credit Billing Act. An action brought by a consumer with respect to a violation of this act may not be maintained pursuant to this act if a final judgment has been rendered for or against that consumer with respect to the same violation pursuant to the Federal Fair Credit Billing Act. An action brought by a consumer with respect to a violation of this act shall be abated upon motion by the creditor if an action, with respect to the same conduct, is pending before any court pursuant to the Federal Fair Credit Billing Act. If a final judgment has been rendered in favor of a consumer pursuant to this act and thereafter a final judgment with respect to the same conduct is rendered in favor of the same consumer pursuant to the Federal Fair Credit Billing Act, a creditor liable under both judgments has a cause of action against the consumer for appropriate relief to the extent necessary to avoid double liability with respect to the same conduct.
As used in this act:
"Consumer" means a natural person.
"Credit card" means any instrument or device, whether known as a credit card, credit plate, or by any other name, issued with or without fee by an issuer for the use of the credit card holder in obtaining money, goods, services or anything else of value on credit.
"Credit card holder" means a consumer named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.
"Consumer transaction" means the sale of goods, services or anything of value to a consumer, primarily for personal, family or household purposes.
"Issuer" means the person which issues a credit card or its duly authorized agent.
No person which accepts a credit card for a consumer transaction shall require the credit card holder, as a condition of using a credit card in completing the consumer transaction, to provide for recordation on the credit card transaction form or any other form, any personal identification information that is not required by the issuer to complete the credit card transaction, including, but not limited to, the credit card holder's address or telephone number, or both; provided, however, that the credit card holder's telephone number may be required on a credit card transaction form if the credit card transaction is one for which the credit card issuer does not require authorization.
Any person who violates any provision of this act shall be liable to a civil penalty of not more than $250 for the first offense and not more than $1,000 for the second and each subsequent offense. Any penalty imposed pursuant to this section shall be collected by summary proceedings instituted by the Attorney General in accordance with "the penalty enforcement law," N.J.S.2A:58-1 et seq.
The Attorney General of the State of New Jersey may promulgate regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes of this act.
"Charge card" means a credit card on an account for which no periodic rate is used to compute a finance charge.
"Check" means a demand draft drawn on or payable through an office of a depository institution located in the United States that has imprinted on it the account holder's name and the depository institution's name, location and routing number.
"Consumer" means a natural person.
"Consumer transaction" means the sale of goods, services or anything of value to a consumer, primarily for personal, family or household purposes.
"Credit card" means any card, plate, coupon book, or other single credit device that may be used from time to time to obtain credit.
"Depository institution" means a state or federally chartered bank, savings bank, savings and loan association or credit union.
(1) Requesting a consumer to display a credit card or charge card as a means of identification, or as an indication of credit worthiness or financial responsibility;
(2) Recording on the check the type of credit card or charge card so displayed and the credit card or charge card expiration date.
b. Nothing in this section shall:
(1) Require any person to accept a check in payment for a consumer transaction or to cash a check for a consumer regardless of whether a credit card or charge card is displayed; or
(2) Prohibit a person from recording a credit card number and expiration date on a check as the condition for cashing or accepting that check where that person has agreed with the card issuer to cash or accept checks from the issuer's cardholders and where the issuer guarantees those cardholders' checks.
a. are carbonless;
b. after the transaction is complete, do not render a separate piece of paper, carbon or otherwise, which readily identifies the cardholder by name or number, other than those necessary for use by the seller, credit cardholder and issuer to complete the credit card transaction;
c. are carbonized backed forms that may be retained for recordkeeping purposes of the seller, the seller's agent or subcontractor, the issuer or the credit cardholder; or
d. have a perforated or split carbon, half of which is disposable, and upon completion of the transaction the disposable portion of the carbon renders only half of the cardholder's name and account number.
(1) are carbonless;
(2) after the transaction is complete, do not render a separate piece of paper, carbon or otherwise, which readily identifies the cardholder by name or number, other than those necessary for use by the seller, credit cardholder and issuer to complete the credit card transaction;
(3) are carbonized backed forms that may be retained for recordkeeping purposes of the seller, the seller's agent or subcontractor, the issuer or the credit cardholder; or
(4) have a perforated or split carbon, half of which is disposable, and upon completion of the transaction the disposable portion of the carbon renders only half of the cardholder's name and account number.
b. No person, firm, partnership, association or corporation which accepts credit cards for the transaction of business shall be deemed to have violated the provisions of subsection a. of this section, if that person, firm, partnership, association or corporation shows by a preponderance of evidence that the violation was not intentional and resulted from bona fide error made notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.
c. The provisions of subsection a. of this section shall not apply to forms used for a special purpose incidental to the credit card transaction but related to shipping, delivery or installment of purchased merchandise or special orders.
a. Recent amendments to the federal "Fair Credit Reporting Act," enacted as the "Consumer Credit Reporting Reform Act of 1996," (Subtitle D, Chapter 1, Pub.L.104-208), add important new substantive provisions, some of which strengthen the federal law and its enforcement.
b. Among these amendments is subsection (c) added to the enforcement section, 15 U.S.C. s.1681s, which specifically provides that a state can take action to enjoin a person from violating the provisions of the federal "Fair Credit Reporting Act" and to recover damages for residents of the state for such violations.
c. The designation of a specific agency of the State to have enforcement authority and to be a source of information for consumers about their rights under the federal law and this act will increase the confidence of consumers in the State that credit reporting problems will be vigorously investigated and that persons violating the federal law and the provisions of this act will be prosecuted;
d. While the amendments to the federal "Fair Credit Reporting Act" contained in the "Consumer Credit Reporting Reform Act of 1996" specifically preempt states from establishing requirements or prohibitions with respect to the provisions of certain sections of the federal "Fair Credit Reporting Act," the provisions of the other sections of that act are left subject to actions by states as long as the provisions enacted in state law are not inconsistent with federal law;
e. The purpose of this act therefore is to provide additional consumer protection with respect to consumer credit reports and credit reporting agencies consistent with the provisions of the"Federal Fair Credit Reporting Act."
"Adverse action" has the same meaning as in subsection (k) of section 603 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681a.
"Consumer" means an individual.
"Consumer report" (1) means any written, oral or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:
(a) credit or insurance to be used primarily for personal, family or household purposes;
(b) employment purposes; or
(c) any other purpose authorized under section 4 of this act.
(2) The term "consumer report" does not include:
(a) any:
(i) report containing information solely on transactions or experiences between the consumer and the person making the report;
(ii) communication of that information among persons related by common ownership or affiliated by corporate control; or
(iii) communication of other information among persons related by common ownership or affiliated by corporate control, if it is clearly and conspicuously disclosed to the consumer that the information may be communicated among those persons and the consumer is given the opportunity, before the time that the information is initially communicated, to direct that the information not be communicated among those persons;
(b) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device;
(c) any report in which a person, who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer, conveys his decision with respect to that request, if the third party advises the consumer of the name and address of the person to whom the request was made, and the person makes the disclosures to the consumer required under 15 U.S.C. s.1681m; or
(d) communication excluded from the definition of consumer report pursuant to subsection (o) of section 603 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681a.
"Consumer reporting agency" means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility for the purpose of preparing or furnishing consumer reports.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Employment purposes" means, when used in connection with a consumer report, a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.
"File" means, when used in connection with information on any consumer, all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.
"Investigative consumer report" means a consumer report or a portion thereof in which information on a consumer's character, general reputation, personal characteristics or mode of living is obtained through personal interviews with neighbors, friends or associates of the consumer who is the subject of the report or with others with whom the consumer is acquainted or who may have knowledge concerning any of those items of information. However, this information shall not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when the information was obtained directly from a creditor of the consumer or from the consumer.
"Medical information" means information or records obtained, with the consent of the individual to whom it relates, from licensed physicians or medical practitioners, hospitals, clinics, or other medical or medically related facilities.
"Security freeze" means a notice placed in a consumer's consumer report, at the request of the consumer and subject to certain exceptions, that prohibits the consumer reporting agency from releasing the report or any information from it without the express authorization of the consumer, but does not prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to the consumer report.
(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a State or federal grand jury.
(2) In accordance with the written instructions of the consumer to whom it relates.
(3) To a person which it has reason to believe:
(a) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer;
(b) intends to use the information for employment purposes;
(c) intends to use the information in connection with the underwriting of insurance involving the consumer;
(d) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status;
(e) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or
(f) otherwise has a legitimate business need for the information:
(i) in connection with a business transaction that is initiated by the consumer; or
(ii) to review an account to determine whether the consumer continues to meet the terms of the account.
(4) In response to a request by the head of a State or local child support enforcement agency (or a State or local government official authorized by the head of such an agency), if the person making the request certifies to the consumer reporting agency that:
(a) the consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of those payments;
(b) the paternity of the consumer for the child to which the obligation relates has been established or acknowledged by the consumer in accordance with State laws under which the obligation arises (if required by those laws);
(c) the person has provided at least 10 days' prior notice to the consumer whose report is requested, by certified or registered mail to the last known address of the consumer, that the report will be requested; and
(d) the consumer report will be kept confidential, will be used solely for a purpose described in paragraph (1) of this subsection, and will not be used in connection with any other civil, administrative, or criminal proceeding, or for any other purpose.
(5) To an agency administering a state plan under 42 U.S.C. s.654 for use to set an initial or modified child support award.
b. A consumer reporting agency may furnish a consumer report for employment purposes only if:
(1) the person who obtains the report from the agency certifies to the agency that:
(a) the person has complied with subsection c. of this section with respect to the consumer report, and the person will comply with subsection d. of this section with respect to the consumer report if that subsection becomes applicable; and
(b) information from the consumer report will not be used in violation of any applicable federal or state equal employment opportunity law or regulation; and
(2) the consumer reporting agency provides with the report a summary of the consumer's rights under the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq.
c. A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless:
(1) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(2) the consumer has authorized in writing the procurement of the report by that person.
d. A consumer reporting agency shall not furnish for employment purposes, or in connection with a credit or insurance transaction or a direct marketing transaction, a consumer report that contains medical information about a consumer unless the consumer consents to the furnishing of the report in writing.
e. In using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take an adverse action shall provide to the consumer to whom the report relates:
(1) a copy of the report; and
(2) a description in writing of the rights of the consumer under this act and the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq.
f. Consumer reporting agencies may furnish a consumer report relating to any consumer pursuant to subparagraph (a) or (c) of paragraph (3) of subsection a. of this section in connection with any credit or insurance transaction that is not authorized by the consumer only if the consumer reporting agency complies with the requirements of subsections (c) and (e) of section 604 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681b.
g. A person shall not use or obtain a consumer report for any purpose unless:
(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
(2) the purpose for its use is certified in accordance with section 5 of this act by a prospective user of the report.
b. Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
c. A consumer reporting agency may not prohibit the user of a consumer report furnished by the agency from disclosing the contents of the report to the consumer, if adverse action against the consumer has been taken by the user based in whole or in part on the report.
d. A person may not procure a consumer report for the purpose of reselling the report unless the person discloses to the consumer reporting agency that originally furnishes the report:
(1) the identity of the end-user of the report; and
(2) each permissible purpose under section 4 of this act for which the report is furnished to the end-user of the report.
e. A person who procures a consumer report for the purposes of reselling the report shall:
(1) establish and comply with reasonable procedures designed to ensure that the report is resold by the person only for a purpose for which the report may be furnished under section 4 of this act, including procedures designed to ensure that each person to which the report is resold and that resells or provides the report to any other person:
(a) identifies to the person from whom the report was purchased each end-user of the resold report;
(b) certifies to the person from whom the report was purchased each purpose for which the report will be used; and
(c) certifies to the person from whom the report was purchased that the report will be used for no other purpose; and
(2) before reselling the report, make reasonable efforts to verify the identifications and certifications made under paragraph (1) of this subsection.
f. For the purposes of subsections d. and e. of this section, "report" means the consumer report as furnished by a consumer reporting agency or any information contained in that consumer report.
(1) It is clearly and accurately disclosed in writing to the consumer, prior to requesting the consumer reporting agency to prepare the report, that an investigative consumer report commonly includes information regarding the consumer's character, general reputation, personal characteristics, and mode of living, and the disclosure includes the precise nature and scope of the investigation requested and the right of the consumer to have a copy of the report upon request; and
(2) the consumer provides the person requesting the report written permission to obtain the investigative consumer report prior to the person making the request to the consumer reporting agency.
b. The consumer reporting agency shall, upon the request of the consumer, provide to the consumer a copy of the report upon its completion.
c. No person may be held liable for any violation of any provision of this section if that person proves by a preponderance of the evidence that at the time of the violation reasonable procedures to assure compliance with the provisions of this section were maintained.
a. All information in the consumer's file at the time of the request.
b. The sources of the information; except that the sources of information acquired solely for use in preparing an investigative consumer report and actually used for no other purpose need not be disclosed: provided, that if an action is brought under this act or the federal "Fair Credit Reporting Act," such sources shall be available to the plaintiff under appropriate discovery procedures in the court in which the action is brought.
c. (1) The identification of each person, including each end-user identified under subsections d. and e. of section 5 of this act, who procured a consumer report:
(a) for employment purposes, during the two-year period preceding the date on which the request is made; or
(b) for any other purpose, during the one-year period preceding the date on which the request is made.
(2) An identification of a person under paragraph (1) shall include:
(a) the name of the person, or, if applicable, the trade name written in full under which the person conducts business; and
(b) upon request of the consumer, the address and telephone number of the person.
d. The dates, original payees, and amounts of any checks upon which is based any adverse characterization of the consumer, included in the file at the time of the disclosure.
e. A record of all inquiries received by the agency during the one-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.
A reporting agency that compiles and maintains files on consumers on a nationwide basis shall make the information subject to disclosure pursuant to this section available to a consumer upon the consumer's request in Spanish or any other language that the Director of the Division of Consumer Affairs determines is the first language of a significant number of consumers in the State. This determination shall be, at the discretion of the director, based on the numerical percentages of all consumers in the State for whom English or Spanish is not a first language or in a manner consistent with any regulations promulgated by the director for this purpose. The director shall require that the information is made available in at least the 10 languages other than English and Spanish that are most frequently spoken as a first language by consumers in this State.
A reporting agency that compiles and maintains files on consumers on a nationwide basis shall provide notice, in any language as determined by the director, on its Internet website in a clear and conspicuous location, of the availability of information subject to disclosure pursuant to this section in languages other than English.
As used in this section, "reporting agency that compiles and maintains files on consumers on a nationwide basis" means a consumer reporting agency that regularly engages in the practice of assembling or evaluating, and maintaining, for the purpose of furnishing consumer reports to third parties bearing on a consumer's credit worthiness, credit standing, or credit capacity, each of the following regarding consumers residing nationwide:
(1) Public record information; and
(2) Credit account information from persons who furnish that information regularly and in the ordinary course of business.
b. The disclosures required under section 7 of this act shall be made to the consumer:
(1) in person if the consumer appears in person and furnishes proper identification; or
(2) by telephone if the consumer has made a written request, with proper identification, for telephone disclosure and the toll charge, if any, for the telephone call is prepaid by or charged directly to the consumer.
c. Any consumer reporting agency shall provide trained personnel to explain to the consumer any information furnished to the consumer pursuant to section 7 of this act.
d. The consumer shall be permitted to be accompanied by one other person of the consumer's choosing, who shall furnish reasonable identification. A consumer reporting agency may require the consumer to furnish a written statement granting permission to the consumer reporting agency to discuss the consumer's file in that person's presence.
e. Except as provided in sections 11 and 12 of this act and sections 616 and 617 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681n and 15 U.S.C. s.1681o, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 7 of this act or this section or section 609, 610 or 615 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681g, 15 U.S.C. s.1681h, or 15 U.S.C. s.1681m, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report, except as to false information furnished with malice or willful intent to injure the consumer.
(2) Except as provided in paragraph (3) of this subsection, the 30-day period described in paragraph (1) of this subsection may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.
(3) Paragraph (2) of this subsection shall not apply to any reinvestigation in which, during the 30-day period described in paragraph (1) of this subsection, the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.
b. (1) Before the expiration of the five-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer in accordance with subsection a. of this section, the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer.
(2) The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer after the period referred to in paragraph (1) of this subsection and before the end of the period referred to in subsection a. of this section.
c. (1) Notwithstanding the provisions of subsection a. of this section, a consumer reporting agency may terminate a reinvestigation of information disputed by a consumer under that subsection if the agency reasonably determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure by a consumer to provide sufficient information to investigate the disputed information.
(2) Upon determining that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify the consumer of that determination not later than five business days after making that determination, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency.
(3) A notice under paragraph (2) of this subsection shall include:
(a) the reasons for the determination under paragraph (1) of this subsection; and
(b) the identification of any information required to investigate the disputed information, which may consist of a standardized form describing the general nature of the information.
d. In conducting any reinvestigation under subsection a. of this section with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph (1) of subsection a. of this section with respect to the disputed information.
e. (1) If after any reinvestigation under subsection a. of this section of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall promptly delete that item of information from the consumer's file or modify that item of information, as appropriate, based on the results of the reinvestigation.
(2) (a) If any information is deleted from a consumer's file pursuant to paragraph (1) of this subsection, the information shall not be reinserted in the file by the consumer reporting agency unless the person who furnishes the information certifies that the information is complete and accurate.
(b) If any information that has been deleted from a consumer's file pursuant to paragraph (1) of this subsection is reinserted in the file, the consumer reporting agency shall notify the consumer of the reinsertion in writing not later than five business days after the reinsertion or, if authorized by the consumer for that purpose, by any other means available to the agency.
(c) As part of, or in addition to, the notice under subparagraph (b) of paragraph (2) of this subsection, a consumer reporting agency shall provide to the consumer in writing not later than five business days after the date of the reinsertion:
(i) a statement that the disputed information has been reinserted;
(ii) the business name and address of any furnisher of information contacted and the telephone number of the furnisher, if reasonably available, or of any furnisher of information that contacted the consumer reporting agency, in connection with the reinsertion of the disputed information; and
(iii) a notice that the consumer has the right to add a statement to the consumer's file disputing the accuracy or completeness of the disputed information.
(3) A consumer reporting agency shall maintain reasonable procedures designed to prevent the reappearance in a consumer's file, and in consumer reports on the consumer, of information that is deleted pursuant to this section, other than information that is reinserted in accordance with this section.
(4) Any consumer reporting agency that compiles and maintains files on consumers on a nationwide basis shall implement an automated system through which furnishers of information to a consumer reporting agency may report the results of a reinvestigation that finds incomplete or inaccurate information in a consumer's file to other consumer reporting agencies.
f. (1) A consumer reporting agency shall provide written notice to a consumer of the results of a reinvestigation under this subsection not later than five business days after the completion of the reinvestigation, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency.
(2) As part of, or in addition to, the notice under paragraph (1) of this subsection, a consumer reporting agency shall provide to a consumer in writing before the expiration of the five-day period referred to in paragraph (1) of this subsection:
(a) a statement that the reinvestigation is completed;
(b) a consumer report that is based on the consumer's file as that file is revised as a result of the reinvestigation;
(c) a notice that, if requested by the consumer, a description of the procedure used to determine the accuracy and completeness of the information shall be provided to the consumer by the agency, including the business name and address of any furnisher of information contacted in connection with that information and the telephone number of the furnisher, if reasonably available;
(d) a notice that the consumer has the right to add a statement to the consumer's file disputing the accuracy or completeness of the information; and
(e) a notice that the consumer has the right to request that the consumer reporting agency furnish notifications under subsection k. of this section.
g. A consumer reporting agency shall provide to a consumer a description referred to in subparagraph (c) of paragraph (2) of subsection f. of this section not later than 15 days after receiving a request from the consumer for that description.
h. If a dispute regarding an item of information in a consumer's file at a consumer reporting agency is resolved in accordance with paragraph (1) of subsection e. of this section by the deletion of the disputed information not later than three business days after the date on which the agency receives notice of the dispute from the consumer in accordance with paragraph (1) of subsection a. of this section, then the agency shall not be required to comply with subsections b., f. and g. of this section with respect to that dispute if the agency:
(1) provides prompt notice of the deletion to the consumer by telephone;
(2) includes in that notice, or in a written notice that accompanies a confirmation and consumer report provided in accordance with paragraph (3) of this subsection, a statement of the consumer's right to request that the agency furnish notifications under subsection k. of this section; and
(3) provides written confirmation of the deletion and a copy of a consumer report on the consumer that is based on the consumer's file after the deletion, not later than five business days after making the deletion.
i. If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit a statement to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute.
j. Whenever a statement of a dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof.
k. Following any deletion of information which is found to be inaccurate or whose accuracy can no longer be verified or any notation as to disputed information, the consumer reporting agency shall, at the request of the consumer, furnish notification that the item has been deleted or if disputed, the statement, codification or summary filed or developed pursuant to subsection i. or j. of this section, to any person specifically designated by the consumer who has within two years prior thereto received a consumer report for employment purposes, or within one year prior thereto received a consumer report for any other purpose, which contained the deleted or disputed information.
(1) making a disclosure to the consumer pursuant to section 7 of this act if the request is the second or subsequent request in a 12-month period of time and is not made pursuant to subsection b. of this section; the charge for this disclosure shall not exceed $8 and shall be indicated to the consumer before making the disclosure;
(2) furnishing to a person designated by the consumer pursuant to subsection k. of section 9 of this act a statement, codification, or summary filed or developed under subsection i. or j. of section 9 of this act, after notification of the consumer under subsection f. of section 9 of this act with respect to the reinvestigation; this charge shall not exceed the charge that the agency would impose on each designated recipient for a consumer report and shall be indicated to the consumer before furnishing this information.
b. Each consumer reporting agency that maintains a file on a consumer shall make all disclosures required pursuant to section 7 of this act without charge to the consumer if, not later than 60 days after receipt by the consumer of a notification of an adverse action or notification from a debt collection agency affiliated with the consumer reporting agency stating that the consumer's credit rating may be or has been adversely affected, the consumer makes a request under section 7 of this act.
c. Upon the request of the consumer, a consumer reporting agency shall make all disclosures required pursuant to section 7 of this act once during any 12-month period without charge to the consumer.
d. A consumer reporting agency shall not impose any charge on a consumer for providing any notification required by this act, including but not limited to, the notification required pursuant to subsection k. of section 9 of this act following deletion of information from a consumer's file pursuant to section 9 of this act, or making any disclosure required by this act, except as authorized by subsection a. of this section.
e. Upon request of the consumer, a consumer reporting agency shall make all disclosures required pursuant to section 7 of this act once during any 12-month period without charge to that consumer if the consumer certifies in writing that the consumer:
(1) is unemployed and intends to apply for employment in the 60-day period beginning on the date on which certification is made;
(2) is a recipient of assistance under the Work First New Jersey Program;
(3) has reason to believe that the file on the consumer at the agency contains inaccurate information due to fraud; or
(4) has been a victim of a violation of N.J.S.2C:21-1, section 1 of P.L.1983, c.565 (2C:21-2.1) or N.J.S.2C:21-17 and the court has ordered the deletion of those items of information that were the result of the unlawful use of the victim's personal identifying information.
(1) (a) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or
(b) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.
b. Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose shall be liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000, whichever is greater.
c. Upon a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorneys' fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.
(1) any actual damages sustained by the consumer as a result of the failure; and
(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.
b. On a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorneys' fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.
b. The director shall make every effort to keep the residents of this State informed with respect to their rights under the federal "Fair Credit Reporting Act," and this act, including, but not limited to, press releases upon the establishment of toll-free telephone numbers by the major credit reporting agencies as required under federal law and the provision, on the division's web page, of that same information and other information on basic consumer rights and protections with respect to credit reports under the federal act and this act.
a. The crime of identity theft has become one of the major law enforcement challenges of the new economy, as vast quantities of sensitive, personal information are now vulnerable to criminal interception and misuse; and
b. A number of indicators reveal that, despite increased public awareness of the crime, incidents of identity theft continue to rise; and
c. An integral part of many identity crimes involves the interception of personal financial data or the fraudulent acquisition of credit cards or other financial products in another person's name; and
d. Identity theft is an act that violates the privacy of our citizens and ruins their good names: victims can suffer restricted access to credit and diminished employment opportunities, and may spend years repairing damage to credit histories; and
e. Credit reporting agencies and issuers of credit should have uniform reporting requirements and effective fraud alerts to assist identity theft victims in repairing and protecting their credit; and
f. The Social Security number is the most frequently used record keeping number in the United States. Social Security numbers are used for employee files, medical records, health insurance accounts, credit and banking accounts, university ID cards and many other purposes; and
g. Social Security numbers are frequently used as identification numbers in many computer files, giving access to information an individual may want kept private and allowing an easy way of linking data bases. Therefore, it is wise to limit access to an individual's Social Security number whenever possible; and
h. It is therefore a valid public purpose for the New Jersey Legislature to ensure that the Social Security numbers of the citizens of the State of New Jersey are less accessible in order to detect and prevent identity theft and to enact certain other protections and remedies related thereto and thereby further the public safety.
(1) making a request in writing by certified mail or overnight mail to a consumer reporting agency; or
(2) making a request directly to the consumer reporting agency through a secure electronic mail connection, if an electronic mail connection is provided by the consumer reporting agency.
b. A consumer reporting agency shall place a security freeze on a consumer report no later than five business days after receiving a written request from the consumer.
c. The consumer reporting agency shall send a written confirmation of the security freeze to the consumer within five business days of placing the freeze and at the same time shall provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorization for the release of his credit for a specific party or period of time.
d. If the consumer wishes to allow his consumer report to be accessed for a specific party or period of time while a freeze is in place, he shall contact the consumer reporting agency via certified or overnight mail or secure electronic mail and request that the freeze be temporarily lifted, and provide all of the following:
(1) Information generally deemed sufficient to identify a person;
(2) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection c. of this section; and
(3) The proper information regarding the third party who is to receive the consumer report or the time period for which the consumer report shall be available to users of the consumer report.
e. A consumer reporting agency that receives a request from a consumer to temporarily lift a freeze on a consumer report pursuant to subsection d. of this section shall comply with the request no later than three business days after receiving the request.
f. A consumer reporting agency shall develop procedures involving the use of telephone, fax, the Internet, or other electronic media to receive and process a request from a consumer to temporarily lift a freeze on a consumer report pursuant to subsection d. of this section in an expedited manner. The director shall promulgate regulations necessary to allow the use of electronic media to receive and process a request from a consumer to temporarily lift a security freeze pursuant to subsection d. of this section as quickly as possible, with the goal of processing a request within 15 minutes of that request.
g. A consumer reporting agency shall remove or temporarily lift a freeze placed on a consumer report only in the following cases:
(1) Upon consumer request, pursuant to subsection d. or j. of this section; or
(2) If the consumer report was frozen due to a material misrepresentation of fact by the consumer. If a consumer reporting agency intends to remove a freeze upon a consumer report pursuant to this paragraph, the consumer reporting agency shall notify the consumer in writing at least five business days prior to removing the freeze on the consumer report.
h. If a third party requests access to a consumer report on which a security freeze is in effect, and this request is in connection with an application for credit or any other use, and the consumer does not allow his consumer report to be accessed for that specific party or period of time, the third party may treat the application as incomplete.
i. (1) At any time that a consumer is required to receive a summary of rights required under section 609 of the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681g, the following notice shall be included:
New Jersey Consumers Have the Right to Obtain a Security Freeze
You may obtain a security freeze on your credit report to protect your privacy and ensure that credit is not granted in your name without your knowledge. You have a right to place a "security freeze" on your credit report pursuant to New Jersey law.
The security freeze will prohibit a consumer reporting agency from releasing any information in your credit report without your express authorization or approval.
The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. When you place a security freeze on your credit report, within five business days you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or to temporarily authorize the release of your credit report for a specific party, parties or period of time after the freeze is in place. To provide that authorization, you must contact the consumer reporting agency and provide all of the following:
(i) The unique personal identification number or password provided by the consumer reporting agency;
(ii) Proper identification to verify your identity; and
(iii) The proper information regarding the third party or parties who are to receive the credit report or the period of time for which the report shall be available to users of the credit report.
A consumer reporting agency that receives a request from a consumer to lift temporarily a freeze on a credit report shall comply with the request no later than three business days or less, as provided by regulation, after receiving the request.
A security freeze does not apply to circumstances in which you have an existing account relationship and a copy of your report is requested by your existing creditor or its agents or affiliates for certain types of account review, collection, fraud control or similar activities.
If you are actively seeking credit, you should understand that the procedures involved in lifting a security freeze may slow your own applications for credit. You should plan ahead and lift a freeze, either completely if you are shopping around, or specifically for a certain creditor, a few days before actually applying for new credit.
You have a right to bring a civil action against someone who violates your rights under the credit reporting laws. The action can be brought against a consumer reporting agency or a user of your credit report.
(2) If a consumer requests information about a security freeze, he shall be provided with the notice provided in paragraph (1) of this subsection and with any other information, as prescribed by the director by regulation, about how to place, temporarily lift and permanently lift a security freeze.
j. A security freeze shall remain in place until the consumer requests that the security freeze be removed. A consumer reporting agency shall remove a security freeze within three business days of receiving a request for removal from the consumer, who provides the following:
(1) Proper identification; and
(2) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection c. of this section.
k. A consumer reporting agency shall require proper identification of the person making a request to place or remove a security freeze.
l. The provisions of this section do not apply to the use of a consumer report by the following:
(1) A person, or subsidiary, affiliate, or agent of that person, or an assignee of a financial obligation owing by the consumer to that person, or a prospective assignee of a financial obligation owing by the consumer to that person in conjunction with the proposed purchase of the financial obligation, with which the consumer has or had prior to assignment an account or contract, including a demand deposit account, or to whom the consumer issued a negotiable instrument, for the purposes of reviewing the account or collecting the financial obligation owing for the account, contract, or negotiable instrument. For purposes of this paragraph, "reviewing the account" includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements;
(2) A subsidiary, affiliate, agent, assignee, or prospective assignee of a person to whom access has been granted under subsection d. of this section, for purposes of facilitating the extension of credit or other permissible use;
(3) Any State or local agency, law enforcement agency, trial court, or private collection agency acting pursuant to a court order, warrant, or subpoena;
(4) The Division of Taxation in the Department of the Treasury for the purpose of enforcing the tax laws of this State;
(5) A State or local child support enforcement agency;
(6) The use of credit information for the purposes of prescreening as provided for by the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq.;
(7) Any person or entity administering a credit file monitoring subscription service to which the consumer has subscribed; or
(8) Any person or entity for the purpose of providing a consumer with a copy of the consumer's credit report upon the consumer's request.
m. (1) A consumer reporting agency shall not charge a consumer any fee to place a security freeze on that consumer's consumer report, or to remove or temporarily lift a security freeze on that consumer's consumer report.
(2) (Deleted by amendment, P.L.2018, c.153)
(3) (Deleted by amendment, P.L.2018, c.153)
a. A check services company or fraud prevention services company, which issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payments; and
b. A demand deposit account information service company, which issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse, or similar negative information regarding a consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a demand deposit account at the inquiring bank or financial institution.
b. Any person who is negligent in failing to comply with the requirements of sections 4 through 9 of this amendatory and supplementary act shall be liable to a consumer as provided in section 12 of P.L.1997, c.172 (C.56:11-39).
(1) a copy of a police report filed pursuant to section 3 of P.L.2005, c.226 (C.2C:21-17.6); or
(2) either:
(a) a properly completed copy of a standardized affidavit of identity theft, as established by the Federal Trade Commission pursuant to section 609 of the federal "Fair Credit Reporting Act," Pub.L.91-508 (15 U.S.C. s.1681g); or
(b) a similar, duly executed affidavit concerning the victim's identity theft.
b. The provisions of subsection a. of this section shall not abrogate the right of a creditor to deny credit to, or reduce the credit limit of, a victim of identity theft for any other reason authorized by law.
"Credit" means the right granted by a creditor to a debtor to defer payment of debt, or to incur debt and defer its payment, or to purchase property or services and defer payment therefor.
"Identification card" means a driver's license, issued pursuant to R.S.39:3-10, a probationary license, issued pursuant to section 4 of P.L.1950, c.127 (C.39:3-13.4), a non-driver photo identification card, issued pursuant to section 2 of P.L.1980, c.47 (C.39:3-29.3), or any similar card issued by another state or the District of Columbia for purposes of identification or permitting its holder to operate a motor vehicle.
"Scan" means to access the barcode or any other machine-readable section of a person's identification card with an electronic device capable of deciphering, in an electronically readable format, information electronically encoded on the identification card.
b. A retail establishment shall scan a person's identification card only for the following purposes:
(1) to verify the authenticity of the identification card or to verify the identity of the person if the person pays for goods or services with a method other than cash, returns an item, or requests a refund or an exchange;
(2) to verify the person's age when providing age-restricted goods or services to the person;
(3) to prevent fraud or other criminal activity if the person returns an item or requests a refund or an exchange and the business uses a fraud prevention service company or system;
(4) to prevent fraud or other criminal activity related to a credit transaction to open or manage a credit account;
(5) to establish or maintain a contractual relationship;
(6) to record, retain, or transmit information as required by State or federal law;
(7) to transmit information to a consumer reporting agency, financial institution, or debt collector to be used as permitted by the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq., "Gramm-Leach-Bliley Act," 15 U.S.C. s.6801 et seq., and the "Fair Debt Collection Practices Act," 15 U.S.C. s.1692 et seq.; or
(8) to record, retain, or transmit information by a covered entity governed by the medical privacy and security rules pursuant to Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191.
c. Information collected by scanning a person's identification card pursuant to subsection b. of this section shall be limited to the person's name, address, date of birth, the State issuing the identification card, and identification card number.
d. (1) No retail establishment shall retain information obtained pursuant to paragraphs (1) and (2) of subsection b. of this section.
(2) Any information retained by a retail establishment pursuant to paragraphs (3) through (8)of subsection b. of this section shall be securely stored, and any breach of the security of the information shall be promptly reported to the Division of State Police in the Department of Law and Public Safety and any affected person, in accordance with section 12 of P.L.2005, c.226 (C.56:8-163).
(3) No retail establishment shall sell or disseminate to a third party any information obtained pursuant to this section for any purpose, including marketing, advertising, or promotional activities, except dissemination as permitted by paragraphs (3) through (8) of subsection b. of this section ; provided, however, that nothing in this subsection shall be construed to prevent an automated return fraud system from issuing a reward coupon to a loyal customer.
b. In addition to the penalties described in this section, any person aggrieved by a violation of this act may bring an action in Superior Court to recover damages.
"Collection action" means any action on the part of a medical creditor with respect to a medical debt, and includes, but is not limited to:
selling a patient's debt to another party;
reporting information about the patient to a consumer reporting agency; or
actions related to the collection of a patient's debt to another party that require a legal or judicial process, including, but not limited to, placing a lien on a patient's property, attaching or seizing a patient's bank account or any other personal property, commencing a civil action against a patient, or garnishing a patient's wages.
"Collection action" shall not include: reasonable attempts by a medical creditor to send an invoice or bill to a patient or reminders to pay an invoice or bill; or collecting a copayment, coinsurance, deductible, or payment from the patient at the point of service.
"Consumer reporting agency" means any person or entity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties and which uses any means or facility for the purpose of preparing or furnishing consumer reports.
"Cosmetic medical procedure" means any medical procedure performed on a patient that is primarily directed at improving the procedure subject's appearance and that does not meaningfully promote the proper function of the body or prevent or treat illness or disease and any other cosmetic procedure or service not deemed to be medically necessary, as that term is defined pursuant to section 4 of P.L.2023, c.296 (C.17B:30-55.3). "Cosmetic medical procedure" does not include reconstructive surgery or dentistry.
"Health care facility" means health care facility as defined in section 2 of P.L.1971, c.136 (C.26:2H-2).
"Health care provider" means a person or entity which, acting within the scope of its licensure or certification, provides a health care service. Health care provider includes, but is not limited to, a physician, dentist, and other health care professionals licensed pursuant to Title 45 of the Revised Statutes and a hospital and other health care facilities licensed pursuant to Title 26 of the Revised Statutes.
"Health care service" means the preadmission, outpatient, inpatient, and post-discharge care provided by a health care facility or a health care provider and such other items or services as are necessary for such care, including, but not limited to, medical devices, which are provided for the purpose of health maintenance, diagnosis, or treatment of human disease, pain, injury, disability, deformity, or physical condition, including, but not limited to, nursing service, home care nursing, and other paramedical service, ambulance and other medical transport services, dental and vision services, service provided by an intern, resident in training, or physician whose compensation is provided through agreement with a health care facility, laboratory service, medical social service, drugs, biologicals, supplies, appliances, equipment, and bed and board, including services provided by a health care professional in private practice. "Health care service" shall not include cosmetic medical procedures.
"Medical creditor" means any person or entity that provides health care services and to whom a patient owes money for health care services or the entity that provided health care services and to whom the patient previously owed money if the medical debt has been purchased by one or more debt buyers.
"Medical debt" means a debt arising from the receipt of health care services. "Medical debt" shall not include: debt charged to a credit card unless the credit card is issued under an open-end or closed-end credit plan offered solely for the payment of health care services or goods; debt arising from services provided by a veterinarian; debt charged to a home equity or general purpose line of credit; debt arising from an insurance payment for the health care provider's services, but retained by the subscriber; or secured debt.
"Medical debt buyer" means a person or entity that is engaged in the business of purchasing medical debts for collection purposes, whether it collects the debt itself or hires a third-party billing entity for collection or an attorney-at-law for litigation in order to collect such debt.
"Medical debt collector" means any person or entity that regularly collects or attempts to collect, directly or indirectly, medical debts originally owed, due, or asserted to be owed or due to another. A medical debt buyer is considered to be a medical debt collector for all purposes.
"Patient" means the person who received health care services and, for the purposes of P.L.2024, c.48 (C.56:11-56 et seq.), includes a parent or legal guardian if the patient is a minor, a legal guardian if the patient is an adult under guardianship, or any other person liable or allegedly liable for any financial obligation incurred for health care services.
"Personal property" means real property and movable property not affixed to land, and includes, but is not limited to, bank accounts, motor vehicles, goods, merchandise, and household items.
"Reasonable payment plan" means a structured repayment arrangement that satisfies the following:
monthly payment amounts shall be set at a level that the patient can reasonably afford or not more than three percent of the patient's monthly income, if known by the medical creditor or medical debt collector;
the duration shall allow the patient to repay the debt in full within a reasonable timeframe, which shall include, but not be limited to, a timeframe that is between six months and five years in length, based on the total amount owed and the patient's financial capacity;
the plan shall include provisions for adjusting the payment amounts and duration in response to significant changes in the patient's financial circumstances;
the terms of the payment plan shall be clearly documented in a written agreement provided to the patient, including the total amount owed, the monthly payment amount, the payment schedule, and any interest;
the plan shall provide a grace period of at least 60 days for late payments; and
the plan shall not charge an interest rate on a medical debt of more than three percent per annum.
"Third party billing entity" means a person or entity that is paid by a health care provider or medical debt buyer to process claims or claims payments on behalf of the health care provider.
b. A consumer reporting agency shall not make any consumer report containing a patient's paid medical debt or a medical debt of less than $500 regardless of the date it was incurred.
b. At least 30 days before taking any collection actions, a medical creditor or medical debt collector shall provide to the patient at least one additional bill and a notice containing the following:
(1) identifying the collection actions that will be initiated in order to obtain payment; and
(2) providing a deadline after which such collection actions will be initiated, which date is no earlier than 30 days after the date of the notice.
c. Any communication made by a medical creditor or medical debt collector to a patient in the course of trying to collect a medical debt shall include a statement, in at least 14-point boldface font, that the medical creditor or medical debt collector has not reported the debt to a consumer reporting agency and that if the debt, or any part of it, has been reported to a consumer reporting agency, the portion reported is void.
d. A medical creditor shall not sell a patient's debt to another party unless, prior to the sale, the medical creditor has entered into a legally binding written agreement with the medical debt buyer of the debt pursuant to which the medical debt buyer or collector is prohibited from engaging in any actions in paragraphs (2) and (3) of the definition of "collection action" in section 2 of P.L.2024, c.48 (C.56:11-57) and from otherwise seeking to obtain payment for the health care service.
e. (1) A medical creditor or medical debt collector shall not engage in any collection actions against a patient who accepts and complies with the terms of a reasonable payment plan offered by the medical creditor or medical debt collector pursuant to this section. A medical creditor or medical debt collector shall not charge an interest rate of more than three percent per annum on late payments to a medical debt subject to a reasonable payment plan and shall provide a grace period of at least 60 days for late payments.
(2) Acceptance of a reasonable payment plan pursuant to this section by a patient shall not constitute an admission that the debt is valid. A patient who accepts a reasonable payment plan shall retain any legal defenses that would otherwise be available in a collection action.
a. charge an interest rate on a medical debt of more than three percent per annum. The interest rate that shall apply to any judgment on medical debt shall be calculated pursuant to applicable court rules but shall not exceed three percent; or
b. garnish the wages of a patient with annual income less than 600 percent of the federal poverty level to collect medical debt owed by that patient.
(1) communicate with the patient regarding the unpaid charges for health care services for the purpose of seeking to collect the charges; or
(2) initiate a lawsuit or arbitration proceeding against the patient relative to unpaid charges for health care services.
b. If a medical debt has already been reported to a consumer reporting agency and the medical creditor or medical debt collector who reported the information learns of an internal review, external review, or other appeal of a health insurance decision which provides the basis for a medical debt is pending, or learns that the medical debt has been paid, the medical creditor or medical debt collector shall instruct the consumer reporting agency to delete the information about the debt.
c. A medical creditor that knows about an internal review, external review, or other appeal of a health insurance decision that is pending shall not refer, place, or send the unpaid charges for health care services to a medical debt collector, including by selling the debt to a medical debt buyer.
b. It shall be a violation of P.L.1997, c.172 (C.56:11-28 et seq.) for a medical creditor or medical debt collector to undertake a collection action in violation of the provisions of P.L.2024, c.48 (C.56:11-56 et seq.).
c. In addition to the assessment of civil penalties, the Attorney General or the Attorney General's designee may, after a hearing and upon a finding of a practice in violation of P.L.2024, c.48 (C.56:11-56 et seq.), order that any moneys or property, real or personal, which have been acquired by means of the practice in violation P.L.2024, c.48 (C.56:11-56 et seq.) be restored to any person in interest.
d. Notwithstanding any provision of P.L.1997, c.172 (C.56:11-28 et seq.) to the contrary, the Office of the Attorney General shall have sole and exclusive authority to enforce a violation of P.L.2024, c.48 (C.56:11-56 et seq.) and nothing in P.L.2024, c.48 (C.56:11-56 et seq.) shall be construed as providing the basis for a private right of action arising solely from a violation of P.L.2024, c.48 (C.56:11-56 et seq.).
e. In any instance where the provisions of this section conflict with the provision of P.L.1997, c.172 (C.56:11-28 et seq.), the provisions of this section shall prevail.
"Consumer contract" means a written agreement in which an individual:
a. Leases or licenses real or personal property;
b. Obtains credit;
c. Obtains insurance coverage, except insurance coverage contained in policies subject to the "Life and Health Insurance Policy Language Simplification Act," P.L.1979, c.167 (C.17B:17-17 et seq.);
d. Borrows money;
e. Purchases real or personal property;
f. Contracts for services including professional services;
g. Enters into a service contract, as defined in section 1 of P.L.2013, c.197 (C.56:12-87),
for cash or on credit and the money, property or services are obtained for personal, family or household purposes. "Consumer contract" includes writings required to complete the consumer transaction. "Consumer contract" does not include a written agreement involving a transaction in securities with a broker-dealer registered with the Securities and Exchange Commission, or a transaction in commodities with a futures commission merchant registered with the Commodity Futures Trading Commission.
A consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way. In determining whether a consumer contract has been written in a simple, clear, understandable and easily readable way as a whole, a court, the Attorney General or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), shall take into consideration the guidelines set forth in section 10 of this act. Use of technical terms or words of art shall not in and of itself be a violation of this act.
b. As used in this section:
"Consumer contract" means a written agreement in which an individual contracts for a service, that is obtained for personal, family, or household purposes. "Consumer contract" does not include a written agreement involving a transaction in securities with a broker-dealer registered with the Securities and Exchange Commission, or a transaction in commodities with a futures commission merchant registered with the Commodity Futures Trading Commission.
b. Upon written complaint filed by a consumer with the Division of Consumer Affairs in the Department of Law and Public Safety, a contractor found to be in violation of this provision shall be subject to a $500 penalty for each separate violation to be enforced pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
A creditor, seller, insurer or lessor who fails to comply with section 2 of this act shall be liable to a consumer who is a party to the consumer contract for actual damages sustained, if the violation caused the consumer to be substantially confused about the rights, obligations or remedies of the contract, plus punitive damages in an amount up to $50.00. The creditor, seller, insurer or lessor shall also be liable for the consumer's reasonable attorney's fees and costs, not to exceed $2,500.00.
Class actions may be brought under the provisions of this act, but the amount of punitive damages shall be limited to $10,000.00 against any one seller, lessor, insurer or creditor and the amount of attorney's fees may not exceed $10,000.00.
In addition to the remedies provided in this act, a court reviewing a consumer contract may reform or limit a provision so as to avoid an unfair result if it finds that:
a. a material provision of the contract violates this act;
b. the violation caused the consumer to be substantially confused about any of the rights, obligations or remedies of the contract; and
c. the violation has caused or is likely to cause financial detriment to the consumer.
If the court reforms or limits a provision of a consumer contract, the court shall also make orders necessary to avoid unjust enrichment. Bringing a claim for relief pursuant to this section does not entitle a consumer to withhold performance of an otherwise valid contractual obligation. No relief shall be granted pursuant to this section unless the claim is brought before the obligations of the contract have been fully performed.
There shall be no liability under sections 3 and 4 if: a. both parties to the contract have performed their obligations under the contract, b. the creditor, seller, insurer or lessor attempts in good faith to comply with this act in preparing the consumer contract, c. the contract is in conformity with a rule, regulation, or the opinion or interpretation of the Attorney General or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), or d. the consumer supplied the contract or the portion of the contract to which the consumer objects.
The use of specific language in a consumer contract required, permitted or approved by a law, regulation, rule or published interpretation of a State or Federal agency shall not violate this act.
This act shall not preclude a debtor, buyer, insured or lessee from making any claims which would have been available to him if this act were not in effect.
a. A creditor, seller, insurer, lessor or any person in the business of preparing and selling forms of consumer contracts may request an opinion from the Attorney General, or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), as to whether a consumer contract complies with this act.
The Attorney General or the Commissioner of Insurance, as the case may be, shall furnish the opinion within a reasonable period of time.
b. After reviewing the contract the Attorney General or the Commissioner of Insurance, as the case may be, shall: (1) certify that the contract complies with this act; (2) decline to certify that the contract complies with this act and note his objections to the contractual language; (3) decline to review the contract and refer the party submitting the contract to other previously certified contracts of the same type; (4) decline to review the contract because the contract's compliance with this act is the subject of pending litigation; or (5) decline to review the contract because the contract is not subject to this act.
c. Actions of the Attorney General or the Commissioner of Insurance, as the case may be, pursuant to this section are not appealable.
d. Any consumer contract certified pursuant to this section is deemed to comply with this act. Certification of a consumer contract pursuant to this section is not otherwise an approval of the contract's legality or legal effect.
e. Failure to submit a contract to the Attorney General or the Commissioner of Insurance, as the case may be, for review pursuant to this section does not show a lack of good faith nor does it raise a presumption that the contract violates this act. If pursuant to this section the Attorney General or the Commissioner of Insurance, as the case may be, refers a party to a previously certified contract, that the party chooses not to use the contract does not show a lack of good faith nor does it raise a presumption that a contract used by that party violated this act.
f. The Attorney General or the Commissioner of Insurance, as the case may be, may charge a fee, not to exceed $50.00, for the costs of reviewing a consumer contract pursuant to this section.
The transfer to the Commissioner of Insurance of the power and duty to review and certify contracts of insurance provided for in subsection c. of section 1 of P.L.1980, c. 125 (C. 56:12-1c.) shall not affect any certification made by the Attorney General prior to the effective date of this act.
This act shall not apply to consumer contracts involving amounts of more than $50,000.00, but no dollar limitation shall apply to consumer contracts involving real estate or insurance.
a. To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court, the Attorney General or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), may consider in determining whether a consumer contract as a whole complies with this act:
(1) Cross references that are confusing;
(2) Sentences that are of greater length than necessary;
(3) Sentences that contain double negatives and exceptions to exceptions;
(4) Sentences and sections that are in a confusing or illogical order;
(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;
(6) Frequent use of Old English and Middle English words and Latin and French phrases.
b. The following are examples of guidelines that a court, the Attorney General or the Commissioner of Insurance, in regard to contracts of insurance provided for in subsection c. of section 1 of this act (C. 56:12-1c.), may consider in determining whether the consumer contract as a whole complies with this act:
(1) Sections shall be logically divided and captioned;
(2) A table of contents or alphabetical index shall be used for all contracts with more than 3,000 words;
(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.
No consumer contract shall contain a waiver of any rights under this act. A violation of this act will not render any consumer contract void or voidable, or serve as a defense in an action to enforce the consumer contract for breach thereof.
If any provision of this act, or its application to any person or circumstances, is held invalid, the remainder of the act and its application to other persons or circumstances shall not be affected.
This act shall be known and may be cited as the "Truth-in-Consumer Contract, Warranty and Notice Act."
No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. Consumer means any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes. The provisions of this act shall not apply to residential leases or to the sale of real estate, whether improved or not, or to the construction of new homes subject to "The New Home Warranty and Builders' Registration Act," P.L.1977, c. 467 (C. 46:3B-1 et seq.).
No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.
b. If the Attorney General determines that a manufacturer, seller or lessor is in violation of this section, the Attorney General may impose upon that manufacturer, seller or lessor a civil penalty in an amount up to $5,000 for the first violation and up to $10,000 for each and every subsequent violation, collectible in an action brought in the name of the Attorney General pursuant to the provisions of the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
c. In addition to the penalties described in subsection b. of this section, or any other remedy available under law, any person aggrieved by a violation of this section may bring an action in Superior Court to recover damages.
Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney's fees and court costs. This may be recoverable by the consumer in a civil action in a court of competent jurisdiction or as part of a counterclaim by the consumer against the seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid, who aggrieved him. A consumer also shall have the right to petition the court to terminate a contract which violates the provisions of section 2 of this act and the court in its discretion may void the contract.
The rights, remedies and prohibitions accorded by the provisions of this act are hereby declared to be in addition to and cumulative of any other right, remedy or prohibition accorded by common law, Federal law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.
b. A motor vehicle dealer who violates the provisions of this section shall be subject to a civil penalty of $500 for a first offense, and $1,000 for any subsequent offense, to be collected and enforced by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction over proceedings for the enforcement of the penalty provided by this section.
c. A motor vehicle dealer may charge a reasonable fee for services performed in connection with the requirements of this section. The dealer shall disclose the fee to the consumer prior to performing the service and shall advise the consumer that the consumer may attempt to delete the personal information themselves or through another vendor.
d. As used in this section:
"Motor vehicle" has the same meaning as defined in R.S.39:1-1.
"Motor vehicle dealer" means any business that engages in selling or leasing motor vehicles to consumers.
"Co-manufacturer" means, solely with respect to an authorized emergency vehicle as defined in R.S.39:1-1, any person that fabricates the authorized emergency vehicle utilizing a component or components of a new motor vehicle made by a manufacturer, other than modifying an existing standard model of a vehicle manufactured by a manufacturer, which component or components are obtained by the co-manufacturer from the manufacturer to fabricate the vehicle for use as an authorized emergency vehicle prior to an initial retail sale or lease of the emergency vehicle.
"Consumer" means a buyer or lessee, other than for purposes of resale or sublease, of a motor vehicle; a person to whom a motor vehicle is transferred during the duration of a warranty applicable to the motor vehicle; or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.
"Dealer" means a person who is actively engaged in the business of buying, selling or exchanging motor vehicles at retail and who has an established place of business.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, or his designee.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Informal dispute settlement procedure" means an arbitration process or procedure by which the manufacturer, or, in the case of an authorized emergency vehicle, the manufacturer, co-manufacturer, or post-manufacturing modifier, attempts to resolve disputes with consumers regarding motor vehicle nonconformities and repairs that arise during the vehicle's warranty period.
"Lease agreement" means a contract or other written agreement in the form of a lease for the use of a motor vehicle by a person for a period of time exceeding 60 days, whether or not the lessee has the option to purchase or otherwise become the owner of the motor vehicle at the expiration of the lease.
"Lessee" means a person who leases a motor vehicle pursuant to a lease agreement.
"Lessor" means a person who holds title to a motor vehicle leased to a lessee under a lease agreement or who holds the lessor's rights under such an agreement.
"Lien" means a security interest in a motor vehicle.
"Lienholder" means a person with a security interest in a motor vehicle pursuant to a lien.
"Manufacturer" means a person engaged in the business of manufacturing, assembling or distributing motor vehicles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least 10 new motor vehicles.
"Motor vehicle" means a passenger automobile, farm tractor, authorized emergency vehicle, or motorcycle as defined in R.S.39:1-1 which is purchased or leased in the State of New Jersey or which is registered by the New Jersey Motor Vehicle Commission, except the living facilities of motor homes.
"Nonconformity" means a defect or condition which substantially impairs the use, value or safety of a motor vehicle.
"Post-manufacturing modifier" means, solely with respect to an authorized emergency vehicle as defined in R.S.39:1-1, any person who modifies the configuration of an existing standard model of a motor vehicle purchased from a manufacturer to adapt the vehicle for use as an authorized emergency vehicle prior to an initial retail sale or lease of the vehicle.
"Reasonable allowance for vehicle use" means the mileage at the time the consumer first presents the motor vehicle to the dealer, distributor, manufacturer, co-manufacturer, or post-manufacturing modifier for correction of a nonconformity times the purchase price, or the lease price if applicable, of the vehicle, divided by one hundred thousand miles.
"Warranty" means any warranty, whether express or implied of the manufacturer of a new motor vehicle, or, in the case of a new motor vehicle that is an authorized emergency vehicle, of the manufacturer, co-manufacturer or post-manufacturing modifier, of the vehicle's condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under the warranty.
(1) In the case of a motor vehicle, other than an authorized emergency vehicle as set forth in paragraph (2) of this subsection, the manufacturer shall provide the consumer with a full refund of the purchase price of the original motor vehicle including any stated credit or allowance for the consumer's used motor vehicle, the cost of any options or other modifications arranged, installed, or made by the manufacturer or its dealer within 30 days after the date of original delivery, and any other charges or fees including, but not limited to, sales tax, license and registration fees, finance charges, reimbursement for towing and reimbursement for actual expenses incurred by the consumer for the rental of a motor vehicle equivalent to the consumer's motor vehicle and limited to the period during which the consumer's motor vehicle was out of service due to the nonconformity, less a reasonable allowance for vehicle use.
(2) In the case of an authorized emergency vehicle, the manufacturer, co-manufacturer, or post-manufacturing modifier shall provide the consumer with a full refund of the purchase price of the original emergency vehicle, depending on the source of the nonconformity, including any stated credit or allowance for the consumer's used emergency vehicle, as well as any other charges or fees, including, but not limited to, sales tax, license and registration fees, reimbursement for towing and reimbursement for actual expenses incurred by the consumer for the rental of a substitute emergency vehicle, if applicable, for the period during which the consumer's emergency vehicle was out of service due to the nonconformity.
(3) Nothing in this subsection shall be construed to preclude a manufacturer, co-manufacturer, or post-manufacturing modifier from making an offer to replace the vehicle in lieu of a refund; except that the consumer may, in any case, reject an offer of replacement and demand a refund. Refunds shall be made to the consumer and lienholder, if any, as their interests appear on the records of ownership maintained by the Chief Administrator of the New Jersey Motor Vehicle Commission. In the event that the consumer accepts an offer to replace the motor vehicle in lieu of a refund, it shall be the manufacturer's, co-manufacturer's, or post-manufacturing modifier's responsibility to insure that any lien on the returned motor vehicle is transferred to the replacement vehicle.
b. A consumer who leases a new motor vehicle shall have the same remedies against a manufacturer, co-manufacturer, or post-manufacturing modifier under this section as a consumer who purchases a new motor vehicle. If it is determined that the lessee is entitled to a refund pursuant to subsection a. of this section, the consumer shall return the leased vehicle to the lessor or manufacturer, co-manufacturer, or post-manufacturing modifier, and the consumer's lease agreement with the motor vehicle lessor shall be terminated and no penalty for early termination shall be assessed. The manufacturer, co-manufacturer, or post-manufacturing modifier shall provide the consumer with a full refund of the amount actually paid by the consumer under the lease agreement, including any additional charges as set forth in subsection a. of this section if actually paid by the consumer, less a reasonable allowance for vehicle use. The manufacturer, co-manufacturer, or post-manufacturing modifier shall provide the motor vehicle lessor with a full refund of the vehicle's original purchase price plus any unrecovered interest expense, less the amount actually paid by the consumer under the agreement. Refunds shall be made to the lessor and lienholder, if any, as their interests appear on the records of ownership maintained by the Chief Administrator of the Motor Vehicle Commission.
(1) Substantially the same nonconformity has been subject to repair three or more times by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, other than a nonconformity subject to examination or repair pursuant to paragraph (3) of this subsection because it is likely to cause death or serious bodily injury if the vehicle is driven, and the nonconformity continues to exist;
(2) The motor vehicle is out of service by reason of repair for one or more nonconformities for a cumulative total of 20 or more calendar days, or in the case of a motorhome, 45 or more calendar days, since the original delivery of the motor vehicle and a nonconformity continues to exist; or
(3) A nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven has been subject to examination or repair at least once by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, and the nonconformity continues to exist.
b. The presumption contained in subsection a. of this section shall apply against a manufacturer only if the manufacturer has received written notification, or, in the case of an authorized emergency vehicle, the manufacturer, and co-manufacturer or post-manufacturing modifier, if known, or the dealer or distributor, has received written notification, by or on behalf of the consumer, by certified mail return receipt requested, of a potential claim pursuant to the provisions of this act and has had one opportunity to repair or correct the defect or condition within 10 calendar days following receipt of the notification. Notification by the consumer shall take place any time after the motor vehicle has had substantially the same nonconformity subject to repair two or more times, or has been out of service by reason of repair for a cumulative total of 20 or more calendar days, or in the case of a motorhome, 45 or more calendar days, or with respect to a nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven, the nonconformity has been subject to examination or repair at least once by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, and the nonconformity continues to exist.
c. The two-year term and the 20-day period, or 45-day period for motorhomes, specified in this section shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion or strike, or a fire, flood, or other natural disaster.
d. (1) In the case of a motorhome where two or more manufacturers contributed to the construction of the motorhome, or in the case of an authorized emergency vehicle, it shall not be considered as any examination or repair attempt if the repair facility at which the consumer presented the vehicle is not authorized by the manufacturer, co-manufacturer, or post-manufacturing modifier to provide service on that vehicle.
(2) It shall be considered as one examination or repair attempt for a motorhome if the same nonconformity is addressed more than once due to the consumer's decision to continue traveling and to seek the repair of that same nonconformity at another authorized repair facility, rather than wait for the repair to be completed at the initial authorized repair facility.
(3) Days out of service for reason of repair for a motorhome shall be a cumulative total of 45 or more calendar days.
(1) section 3 of P.L.1988, c.123 (C.56:12-31), concerning the miles of operation of a motor vehicle and time period within which the consumer may report a nonconformity and seek remedies;
(2) sections 4 and 5 of P.L.1988, c.123 (C.56:12-32 and 56:12-33), concerning a manufacturer's, co-manufacturer's, or post-manufacturing modifier's obligations to a consumer based upon the manufacturer's, co-manufacturer's, or post-manufacturing modifier's, or its dealer's or distributor's, inability to repair or correct a nonconformity; and
(3) any other provisions of P.L.1988, c.123 (C.56:12-29 et seq.) the director deems appropriate.
b. Each time a consumer's motor vehicle is returned from being examined or repaired during the period specified in section 3 of P.L.1988, c.123 (C.56:12-31), the manufacturer, or, in the case of an authorized emergency vehicle, the manufacturer, co-manufacturer, or post-manufacturing modifier, through its dealer or distributor, shall provide to the consumer an itemized, legible statement of repair which indicates any diagnosis made and all work performed on the vehicle and provides information including, but not limited to, the following: a general description of the problem reported by the consumer or an identification of the problem reported by the consumer or an identification of the defect or condition and the source of the defect; the amount charged for parts and the amount charged for labor, if paid for by the consumer; the date and the odometer reading when the vehicle was submitted for repair; and the date and odometer reading when the vehicle was made available to the consumer.
c. Failure to comply with the provisions of this section constitutes an unlawful practice pursuant to section 2 of P.L.1960, c.39 (C.56:8-2). The provisions of this subsection shall not apply to any dealer who fails to comply with provisions of this section.
"The Magnuson-Moss Warranty Act, 15 U.S.C. s.2301 et seq., makes it illegal for motor vehicle manufacturers to void a motor vehicle warranty or deny warranty coverage solely because an aftermarket or recycled part has been used to repair the vehicle or someone other than the authorized service provider performed service on the vehicle. This provision does not apply to a new motor vehicle purchased solely for commercial or industrial use.
"Under federal law, a manufacturer may deny warranty coverage and charge for repairs to a vehicle if it is discovered that an aftermarket or recycled part installed on the vehicle is defective or was installed incorrectly and caused damage to another part of the vehicle otherwise covered under warranty. The Federal Trade Commission requires that a manufacturer demonstrate that an aftermarket or recycled part or service performed by a person other than an authorized service provider caused damage to another part of the vehicle otherwise covered under warranty before denying warranty coverage. Additionally, federal law allows a manufacturer to void a motor vehicle warranty or deny warranty coverage if the manufacturer provides the article or service to consumers free of charge under the warranty or the manufacturer has secured a waiver from the Federal Trade Commission."
b. Failure to comply with the provisions of this section constitutes an unlawful practice pursuant to section 2 of P.L.1960, c.39 (C.56:8-2).
c. As used in this section:
"Aftermarket part" means a part that was made by a company other than the motor vehicle manufacturer or the original equipment manufacturer.
"Recycled part" means a part that was made for and installed in a new motor vehicle by the manufacturer or the original equipment manufacturer and later removed from the motor vehicle and made available for resale or reuse.
(1) The manufacturer, co-manufacturer, or post-manufacturing modifier provides to the dealer, distributor, or lessor, and the dealer, distributor or lessor provides to the consumer, the following written statement on a separate piece of paper, in 10-point bold-face type: "IMPORTANT: THIS VEHICLE WAS RETURNED TO THE MANUFACTURER OR OTHER RESPONSIBLE PARTY BECAUSE IT DID NOT CONFORM TO THE MANUFACTURER'S OR OTHER PARTY'S WARRANTY FOR THE VEHICLE AND THE NONCONFORMITY WAS NOT CORRECTED WITHIN A REASONABLE TIME AS PROVIDED BY LAW;"
(2) The dealer, distributor, or lessor obtains from the consumer a signed receipt certifying, in a conspicuous and understandable manner, that the written statement required under this subsection has been provided. The director shall prescribe the form of the receipt. The dealer, distributor, or lessor may fulfill his obligation to obtain a signed receipt under this paragraph by making such a notation, in a conspicuous and understandable manner, on the vehicle buyer order form accompanying the sale or lease of that vehicle; and
(3) The dealer, distributor, or lessor, in accordance with the provisions of section 1 of P.L.1993, c.21 (C.39:10-9.3), notifies the Chief Administrator of the Motor Vehicle Commission of the sale or transfer of ownership of the motor vehicle.
b. Nothing in this section shall be construed as imposing an obligation on a dealer, distributor, or lessor to determine whether a manufacturer, co-manufacturer, or post-manufacturing modifier is in compliance with the terms of this section, nor shall it be construed as imposing liability on a dealer, distributor, or lessor for the failure of a manufacturer, co-manufacturer, or post-manufacturing modifier to comply with the terms of this section.
c. Failure to comply with the provisions of this section constitutes an unlawful practice pursuant to section 2 of P.L.1960, c.39 (C.56:8-2).
b. If a consumer chooses to use a manufacturer's, co-manufacturer's, or post-manufacturing modifier's informal dispute settlement procedure established pursuant to this section, the findings and decisions of the dispute settlement body shall state in writing whether the consumer is entitled to a refund under the presumptions and criteria set out in this act and the findings and decisions shall be admissible against the consumer and the manufacturer, co-manufacturer, or post-manufacturing modifier in any legal action.
c. If the dispute settlement body determines that a consumer is entitled to relief under this act, the consumer shall be entitled to a refund as authorized by section 4 of this act.
d. In any informal dispute settlement procedure established pursuant to this section:
(1) Participating arbitrators shall be trained in arbitration and familiar with the provisions of this act.
(2) Documents shall not be submitted to any dispute settlement body unless the documents have been provided to each of the parties in the dispute at least seven days prior to commencement of the dispute settlement hearing. The parties shall be given the opportunity to comment on the documents in writing or with oral presentation.
(3) No party shall participate in the informal dispute settlement procedure unless all other parties are also present and given an opportunity to be heard, or unless the other parties consent to proceeding without their presence and participation.
(4) A consumer shall be given an adequate opportunity to contest a manufacturer's, co-manufacturer's, or post-manufacturing modifier's assertion that a nonconformity falls within intended specifications for the vehicle by having the basis of this claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement procedure. If the dispute settlement body rules in favor of the consumer, his costs and reasonable attorney's fees shall also be awarded.
(5) A dispute shall not be heard if there has been a recent attempt by the manufacturer, co-manufacturer, or post-manufacturing modifier to repair a consumer's vehicle, but no response has yet been received by the dispute settlement body from the consumer as to whether the repairs were successfully completed. This provision shall not prejudice a consumer's right under this section.
(6) The manufacturer, co-manufacturer, or post-manufacturing modifier shall provide, and the dispute settlement body shall consider, any relevant technical service bulletins which have been issued by the manufacturer, co-manufacturer, or post-manufacturing modifier regarding motor vehicles of the same make and model as the vehicle that is the subject of the dispute.
e. Any manufacturer, co-manufacturer, or post-manufacturing modifier who establishes, or participates in, an informal dispute settlement procedure, whether it meets the requirements of this section or not, shall maintain, and forward to the director at six-month intervals, the following records:
(1) The number of purchase price and lease price refunds requested, the number awarded by the dispute settlement body, the amount of each award and the number of awards satisfied in a timely manner;
(2) The number of awards in which additional repairs or a warranty extension was the most prominent remedy, the amount or value of each award, and the number of awards satisfied in a timely manner;
(3) The number and total dollar amount of awards in which some form of reimbursement for expenses or compensation for losses was the most prominent remedy, the amount or value of each award and the number of awards satisfied in a timely manner; and
(4) The average number of days from the date of a consumer's initial request to use the manufacturer's, co-manufacturer's, or post-manufacturing modifier's informal dispute settlement procedure until the date of the decision and the average number of days from the date of the decision to the date on which performance of the award was satisfied.
b. The director shall review a consumer's application for dispute resolution and accept eligible disputes for referral to the Office of Administrative Law for a summary hearing to be conducted in accordance with special rules adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), by the Office of Administrative Law in consultation with the director. Immediately upon acceptance of a consumer's application for dispute resolution, the director shall contact the parties and arrange for a hearing date with the Clerk of the Office of Administrative Law. The hearing date shall, to the greatest extent possible, be convenient to all parties, but shall be no later than 20 days from the date the consumer's application is accepted, unless a later date is agreed upon by the consumer. The Office of Administrative Law shall render a decision, in writing, to the director within 20 days of the conclusion of the summary hearing. The decision shall provide a brief summary of the findings of fact, appropriate remedies pursuant to this act, and a specific date for completion of all awarded remedies. The director, upon a review of the proposed decision submitted by the administrative law judge, shall adopt, reject, or modify the decision no later than 15 days after receipt of the decision. Unless the director modifies or rejects the decision within the 15-day period, the decision of the administrative law judge shall be deemed adopted as the final decision of the director. If the manufacturer, co-manufacturer, or post-manufacturing modifier unreasonably fails to comply with the decision within the specified time period, that party shall be liable for penalties in the amount of $5,000.00 for each day it unreasonably fails to comply, commencing on the day after the specified date for completion of all awarded remedies.
c. The Office of Administrative Law is authorized to issue subpoenas to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute.
d. A manufacturer, co-manufacturer, or post-manufacturing modifier, or a consumer may appeal a final decision to the Appellate Division of the Superior Court. An appeal by a manufacturer, co-manufacturer, or post-manufacturing modifier shall not be heard unless the petition for the appeal is accompanied by a bond in a principal sum equal to the money award made by the administrative law judge plus $2,500.00 for anticipated attorney's fees and other costs, secured by cash or its equivalent, payable to the consumer. The liability of the surety of any bond filed pursuant to this section shall be limited to the indemnification of the consumer in the action. The bond shall not limit or impair any right of recovery otherwise available pursuant to law, nor shall the amount of the bond be relevant in determining the amount of recovery to which the consumer shall be entitled. If a final decision resulting in a refund to the consumer is upheld by the court, recovery by the consumer shall include reimbursement for actual expenses incurred by the consumer for the rental of a motor vehicle equivalent to the consumer's motor vehicle and limited to the period of time after which the consumer's motor vehicle was offered to the manufacturer, co-manufacturer, or post-manufacturing modifier for return under this act, except in those cases in which that party made a comparable vehicle available to the consumer free of charge during that period. If the court finds that the manufacturer, co-manufacturer, or post-manufacturing modifier had no reasonable basis for its appeal or that the appeal was frivolous, the court shall award treble damages to the consumer. Failure of the Office of Administrative Law to render a written decision within 20 days of the conclusion of the summary hearing as required by subsection b. of this section shall not be a basis for appeal.
e. The Attorney General shall monitor the implementation and effectiveness of this act and report to the Legislature after three years of operation, at which time a recommendation shall be made either to continue under the procedures set forth in this act or to make such modifications as may be necessary to effectuate the purposes of this act.
b. A manufacturer, co-manufacturer, or post-manufacturing modifier shall provide to the division all information on private arbitration or private buy-back programs maintained or instituted by the manufacturer, co-manufacturer, or post-manufacturing modifier. The information shall include the type and number of vehicles to which these programs apply and the reasons for establishing and maintaining the programs. The manufacturer, co-manufacturer, or post-manufacturing modifier shall provide the division with updated information at six-month intervals.
Any party to an action in the Superior Court of this State asserting a claim, counterclaim or defense based upon violations of this act shall mail a copy of the initial or responsive pleading containing the claim, counterclaim or defense to the Attorney General within 10 days after filing the pleading with the court. Upon application to the court in which the matter is pending, the Attorney General may intervene or appear in any status appropriate to this matter.
All fees, penalties and costs collected by the division pursuant to this act shall be appropriated for purposes of offsetting costs associated with the handling and resolution of consumer automotive complaints.
b. Nothing in this act, in the case of an authorized emergency vehicle and notwithstanding any other law to the contrary, shall be construed as creating, establishing or otherwise imposing joint and several liability for any action under P.L.1988, c.123 (C.56:12-29 et seq.), and a manufacturer, co-manufacturer, or post-manufacturing modifier shall only be liable for that percentage of negligence or fault in that action directly attributable to its respective degree of liability.
Nothing in this act shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.
Within 120 days following enactment, the director shall, subject to approval by the Attorney General and pursuant to the provisions of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), adopt rules and regulations necessary to effectuate the purposes of this act.
b. If the Attorney General determines that a manufacturer, dealer or lessor is in violation of this section, the Attorney General may impose upon that manufacturer, dealer or lessor a civil penalty in an amount up to $5,000 for the first violation and up to $10,000 for each and every subsequent violation, collectible in an action brought in the name of the Attorney General pursuant to the provisions of the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
c. In addition to the penalties described in subsection b. of this section, or any other remedy available under law, any person aggrieved by a violation of this section may bring an action in Superior Court to recover damages.
"Adjusted capitalized cost" means the agreed upon amount which serves as the basis for determining the periodic lease payment and a portion of the lessee's early termination liability, computed by subtracting from the gross capitalized cost any capitalized cost reduction.
"Business day" means every day other than a Saturday, a Sunday, or a day on which State-chartered banks in New Jersey are required to be closed.
"Capitalized cost reduction" means any payment made by cash, check, rebates or similar means that are in the nature of down payments made by the lessee and any net trade-in allowance granted by the lessor at the inception of the lease for the purpose of reducing the gross capitalized cost but does not include any periodic lease payments due at the inception of the lease or all of the periodic lease payments if they are paid at the inception of the lease.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Fair market value commercial lease" means a contract or other agreement between a lessor and a lessee in which the vehicle is to be used primarily for business or commercial purposes and which provides an option for the purchase of the vehicle by the lessee from the lessor at its fair market value at the end of the lease term.
"Fleet lease" means a contract or other agreement between a lessor and a lessee entered into after the effective date of this act and in which the vehicles are to be used primarily for business or commercial purposes that is either: a written agreement for the use of at least two vehicles that includes an agreement for an option to use at least one additional motor vehicle; or a written agreement for the lease of five or more vehicles.
"Gross capitalized cost" means the amount, which, when reduced by the amount of the capitalized cost reduction, equals the adjusted capitalized cost. The gross capitalized cost shall include, the cost of the vehicle and, without limitation, taxes, registration, license, acquisition, assignment and other fees and charges for insurance, for a waiver of the contractual obligation to pay certain liability in the event the motor vehicle is damaged, stolen or otherwise lost, for accessories and their installation, for delivering, serving, repairing or improving the motor vehicle and for other services and benefits incidental to the lease. It may also include, with respect to a vehicle or other property traded-in in connection with a lease, the unpaid balance of any amount financed under an outstanding vehicle loan agreement or vehicle retail installment contract or the unpaid portion of the early termination obligation under any other obligation of the lessee.
"Lease" means a contract or other agreement between a lessor and a lessee, other than a fleet lease, a fair market value commercial lease, or a TRAC lease, entered into after the effective date of this act for the use of a motor vehicle by the lessee for a period of time exceeding 120 days, whether or not the lessee has the option to purchase or otherwise become the owner of the motor vehicle at the expiration of the lease. A lease shall not be deemed to be a retail installment contract, as defined in subsection (b) of section 1 of P.L.1960, c.40 (C.17:16C-1), unless the lessee, for no or for a nominal consideration, becomes the owner, or has the option of becoming the owner, of the motor vehicle at the end of the term of the lease.
"Leasing dealer" means a person who, in the ordinary course of business, offers or enters into motor vehicle leases or who in the course of any 12-month period offers or enters into more than three motor vehicle leases. The term "leasing dealer" shall not include a person to whom a lease is assigned by a leasing dealer.
"Lessee" means a person who leases a motor vehicle under a lease.
"Lessor" means a leasing dealer who holds title to a motor vehicle leased to a lessee under a lease or a leasing dealer who holds the lessor's rights under the lease or a person to whom a lease is assigned. "Motor vehicle" or "vehicle" means a motor vehicle as defined in R.S.39:1-1, except the living facilities of motor homes.
"Purchase option price" means total cost to the lessee, excluding sales tax, to purchase the motor vehicle at the end of the lease term. "Residual value" means the projected fair market value of the motor vehicle at the end of the lease term.
"TRAC lease" means a contract or other agreement between a lessor and a lessee which contains a "terminal rental adjustment clause," as that provision is defined in subsection (h) of 26 U.S.C. s.7701.
a. Shall be in writing and contain all of the terms and conditions of the lease agreement between the lessor and the lessee and shall be signed by the lessor and lessee;
b. Shall state the names and addresses of all parties, and the phone number of the leasing dealer. If the dealer knows the identity of the party to whom the leasing dealer intends to assign the lease, the dealer shall include in the lease the name, address and telephone number of the assignee. If the leasing dealer does not include the name, address and telephone number of the assignee in the lease, the dealer or the assignee shall, promptly upon assignment, mail or personally deliver to the lessee the name, address and telephone number of the assignee;
c. Shall state the dates when the lease is executed by the parties;
d. Shall identify the lease with the term "lease" in 14-point bold type and shall be in a style and format to be determined by the director by regulation;
e. Shall be completed in full without any blank spaces to be filled in after the lease is signed by the lessee;
f. Shall specify the periodic basis or intervals when the lease payments shall be payable;
g. Shall provide the following information concerning the conditions of the lease:
(1) Whether or not the lessee has the option to purchase the motor vehicle at the end of the lease term, and if so, either:
(a) the purchase option price, or
(b) the method for ascertaining the purchase option price. If the lease includes a method for determining the purchase option price, and that method is based upon an amount set forth in a publication, the identity of the publication and the classification contained within the publication to be used, shall be included. If the publication ceases to exist, the lessor shall immediately notify the lessee of that fact and inform the lessee of the identity of the comparable publication which will be utilized to ascertain the purchase option price. If a method for ascertaining the purchase option price not set forth in a publication is included in the lease, the lease shall set forth a good faith estimate of the amount, using that method;
(2) The total amount of all payments required at the inception of the lease term, including any refundable security deposit , any trade-in allowance and any nonrefundable payment such as a down payment or capitalized cost reduction, required at the beginning of the lease, or a statement that no payment is required at the beginning of the lease;
(3) The number of periodic payments to be paid during the term of the lease and the amount of each payment;
(4) A description of the standards to be used by the lessor in determining excessive wear or damage, and any liability the lease imposes upon the lessee at the end of the term of the lease, including any liability which may be imposed upon the lessee because of excessive wear or damage of the motor vehicle and any disposition costs imposed upon the lessee;
(5) (a) If the lease contains a purchase option, the total cost of the lease, assuming there is no default and that the lessee exercises the purchase option at the end of the term of the lease , which shall be the sum of: (i) the total amount of all payments required at the beginning of the lease; (ii) the total amount to be paid in periodic payments during the term of the lease; (iii) the amount of any liability the lease imposes upon the lessee at the end of the term of the lease; and (iv) the purchase option price.
(b) If the lease does not contain a purchase option or if the purchase option price is not set forth in the lease, the total fixed cost of the lease , which shall be the sum of (i), (ii) and (iii) of subparagraph (a) of this paragraph.
(c) For purposes of calculating the total cost of the lease under subparagraph (a) of this paragraph or the total fixed cost of the lease under subparagraph (b) of this paragraph , the amount of the refundable security deposit and insurance shall be excluded;
(6) The formula which shall be used by the lessor to calculate the total liability of the lessee if the lease is terminated by the lessee;
(7) The residual value of the vehicle;
(8) The total number of miles or the number of miles per month or year which the vehicle may be driven without additional charge as permitted under the terms of the lease, and the charge per mile for the miles driven in excess of that permissible mileage;
(9) The liability of the lessee in the event the motor vehicle is damaged, stolen or otherwise lost. In the event the motor vehicle is damaged, stolen or lost and is deemed a total loss by the insurance company, and the lease contains a provision whereby the difference between the insurance proceeds and the amount due under the terms of the lease shall be waived if the lessor receives the insurance proceeds and if the lessee has otherwise complied with all other promises contained in the lease (including, where applicable, the requirement that the lessee pay the deductible under any insurance coverage), the lease shall disclose that the lessee shall have no further liability. Otherwise, the lease shall disclose the option on the part of the lessee to purchase from the lessor or from a third party, either insurance or damage waivers, if available, to indemnify him for the difference between the insurance proceeds and the amount due under the terms of the lease;
(10) The gross capitalized cost of the vehicle, the capitalized cost reduction and the adjusted capitalized cost when the cost of the vehicle for the purpose of calculating the gross capitalized cost exceeds the manufacturer's suggested retail price; and
h. Shall provide the following information concerning the motor vehicle to be leased:
(1) If the odometer reads in excess of 1,000 miles, an explanation of the prior use of the motor vehicle using the following terms, as applicable: personal, family or household, demonstrator, livery, daily rental, police, prior wreckage, unknown; provided that the lessor may insert "unknown" only if the lessor does not know the prior use of the motor vehicle;
(2) The odometer reading at the beginning of the lease term;
(3) The make, model, and year;
(4) The number of engine cylinders;
(5) Whether the transmission is automatic or manual;
(6) Whether the brakes and steering mechanism are power assisted or manual;
(7) Whether or not the vehicle is air conditioned;
(8) The vehicle identification number of the vehicle; and
(9) If the vehicle is required to have a Monroney label, the manufacturer's suggested retail price as set forth on the Monroney label.
b. In the event of the death of a lessee before the expiration of a lease, there shall be no default if the lessee's surviving spouse continues to make payments to the lessor in accordance with the terms of the lease notwithstanding the death of the lessee.
b. Within 10 business days of the return of the motor vehicle to the lessor, the lessor shall mail or deliver to the lessee an invoice for amounts claimed by the lessor for excess wear and damage. The invoice shall contain in 10 point bold face type a notice of the lessee's right under subsection a. of this section to obtain an independent appraisal of excess wear and damage. The notice shall also provide that: (i) the lessor must be advised in writing within seven business days following the earlier of the date of the mailing or delivery of the invoice if the lessee elects to obtain an independent appraisal; (ii) any such appraisal must be conducted within ten business days following the date that the lessor is notified of the lessee's election; and (iii) that if the lessee fails to notify the lessor within the time allotted that the lessee has elected an independent appraisal, the lessor's invoice will be deemed to be final and binding on the parties.
c. Within 15 business days after the lessee's obligations under the lease have been determined and satisfied, which shall include but not be limited to, the lessee's liability for excess wear and damage under this section, the lessor shall credit to the lessee's account or mail to the lessee any refund of any security deposit due to the lessee.
d. Nothing in this section shall limit the lessee's obligation for any charge for excess mileage as provided in the lease.
b. (1) No lease shall bind a lessee or lessor unless both the lessee and lessor have had one business day to review the lease contract before the signing of the contract.
(2) No leasing dealer may permit a prospective lessee to take possession of a motor vehicle subject to a lease unless the lessee is provided with a conspicuous notice which provides substantially the following: NOTICE: THE LESSEE AND THE LESSOR SHALL BE ENTITLED TO REVIEW THE CONTRACT FOR ONE BUSINESS DAY BEFORE SIGNING THE CONTRACT IMMEDIATELY ADJACENT TO THE SIGNATURE LINE OF THE CONTRACT.
c. The leasing dealer shall complete the credit check of the prospective lessee within 5 business days of both the leasing dealer and lessee signing the lease.
"Buyer" means a person who buys or leases a motor vehicle under a conditional sale contract.
"Conditional sale contract" means any contract for the leasing of a motor vehicle between a buyer and a seller, with or without accessories, by which the lessee agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the vehicle and its accessories, if any, at the time the contract is executed, and by which it is agreed that the lessee will become, or for no other or for a nominal consideration has the option of becoming, the owner of the vehicle upon full compliance with the terms of the contract.
"Lease contract" means a contract for or in contemplation of the lease for the use of a motor vehicle, and the purchase of services incidental to the lease, for a term exceeding four months primarily for personal, family, household, business or commercial purposes, whether or not it is agreed that the lessee bears the risk of the motor vehicle's depreciation.
"Lessee" includes a bailee and means a person who leases, offers to lease or is offered the lease of a motor vehicle under a lease contract.
"Motor vehicle" means any vehicle required to be registered under Title 39 of the Revised Statutes.
"Person" means an individual, company, firm, association, partnership, trust, corporation, or other legal entity.
"Security agreement" means an agreement that creates and provides for a security interest.
"Security interest" means an interest in personal property which secures the payment or performance of an obligation.
"Seller" means a person engaged in the business of selling or leasing motor vehicles under a conditional sale contract.
b. This prohibition shall not apply to a person who is a party to the lease contract, conditional sale contract or security agreement.
"Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative wheelchair or other assistive device for mobility.
"Consumer" means any of the following:
(1) The purchaser of a motorized wheelchair, if the motorized wheelchair was purchased from a motorized wheelchair dealer or manufacturer for purposes other than resale.
(2) A person to whom the motorized wheelchair is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motorized wheelchair.
(3) A person who may enforce the warranty.
(4) A person who leases a motorized wheelchair from a motorized wheelchair lessor under a written lease.
"Demonstrator" means a motorized wheelchair used primarily for the purpose of demonstration to the public.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Early termination cost" means any expense or obligation that a motorized wheelchair lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer pursuant to section 4 of this act. "Early termination cost" includes a penalty for prepayment under a finance arrangement.
"Early termination savings" means any expense or obligation that a motorized wheelchair lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer pursuant to section 4 of this act. "Early termination savings" includes an interest charge that the motorized wheelchair lessor would have paid to finance the purchase of the motorized wheelchair or, if the motorized wheelchair lessor does not finance the purchase of the motorized wheelchair, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
"Manufacturer" means a person who manufactures or assembles motorized wheelchairs and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's motorized wheelchairs, but does not include a motorized wheelchair dealer.
"Motorized wheelchair" means any motor-driven wheelchair, including a demonstrator, and all accompanying power accessories utilized to operate the wheelchair, that a consumer purchases or accepts transfer of in this State for the purpose of increasing independent mobility, in the activities of daily living, of an individual who has limited or no ambulation abilities, and includes motorized power scooters designed primarily for indoor use and retrofit power units designed to motorize power wheelchairs.
"Motorized wheelchair dealer" or "dealer" means a person who is in the business of selling motorized wheelchairs.
"Motorized wheelchair lessor" or "lessor" means a person who leases a motorized wheelchair to a consumer, or who holds the lessor's rights, under a written lease.
"Nonconformity" means a condition or defect that substantially impairs the use, value or safety of a motorized wheelchair, and that is covered by an express warranty applicable to the motorized wheelchair or to a component of the motorized wheelchair, but does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the motorized wheelchair by a consumer.
"Reasonable attempt to repair" means, within the term of an express warranty applicable to a new motorized wheelchair, or within one year after first delivery of the motorized wheelchair to a consumer, whichever is sooner, that:
(1) A nonconformity within the warranty has been subject to repair by the manufacturer, lessor or any of the manufacturer's authorized dealers at least three times and the nonconformity continues; or
(2) The motorized wheelchair is out of service for an aggregate of at least 20 days due to a nonconformity, after having been returned to the manufacturer, motorized wheelchair lessor or any of the manufacturer's authorized dealers for repair.
a. At the direction of a consumer, other than a consumer who leases a motorized wheelchair from a motorized wheelchair dealer, do either of the following:
(1) Accept return of the motorized wheelchair and replace the motorized wheelchair with a comparable new motorized wheelchair and refund any collateral costs; or
(2) Accept return of the motorized wheelchair and refund to the consumer and to any holder of a perfected security interest in the consumer's motorized wheelchair, as their interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.
b. With respect only to a consumer who has leased a motorized wheelchair from a wheelchair lessor, accept return of the motorized wheelchair, refund to the motorized wheelchair lessor and to any holder of a perfected security interest in the motorized wheelchair, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use.
c. As used in this section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motorized wheelchair dealer's early termination costs and the value of the motorized wheelchair at the lease expiration date, if the lease sets forth that value, less the motorized wheelchair lessor's early termination savings.
d. Pursuant to this section, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer drove the motorized wheelchair before first reporting the nonconformity to the manufacturer, motorized wheelchair lessor or motorized wheelchair dealer.
a. Offer to return the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the motorized wheelchair having the nonconformity; and
b. Offer to transfer possession of the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motorized wheelchair lessor. When the manufacturer provides the refund, the motorized wheelchair lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
b. The director shall review a consumer's application for dispute resolution and accept eligible disputes for referral to the Office of Administrative Law for a summary hearing to be conducted in accordance with special rules adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), by the Office of Administrative Law in consultation with the director. Immediately upon acceptance of a consumer's application for dispute resolution, the director shall contact the parties and arrange for a hearing date with the Office of Administrative Law. The hearing date shall, to the greatest extent possible, be convenient to all parties, but shall be no later than 20 days from the date the consumer's application is accepted, unless a later date is agreed upon by the consumer. The Office of Administrative Law shall render a decision, in writing, to the director within 20 days of the conclusion of the summary hearing. The decision shall provide a brief summary of the findings of fact, appropriate remedies pursuant to this act, and a specific date for completion of all awarded remedies. The director, upon a review of the proposed decision submitted by the administrative law judge, shall adopt, reject, or modify the decision no later than 15 days after receipt of the decision. Unless the director modifies or rejects the decision within the 15-day period, the decision of the administrative law judge shall be deemed adopted as the final decision of the director. If a final decision from the Office of Administrative Law results in a refund to the consumer, recovery by the consumer shall include attorney's fees, fees for expert witnesses and costs of suit, and reimbursement for actual expenses incurred by the consumer for the rental of a motorized wheelchair equivalent to the consumer's motorized wheelchair and limited to the period of time after which the consumer's motorized wheelchair was offered to the manufacturer for return under P.L.1995, c.233 (C.56:12-75 et seq.) except in those cases in which the manufacturer made a comparable motorized wheelchair available to the consumer free of charge during that period. If the manufacturer unreasonably fails to comply with the decision within the specified time period, the manufacturer shall be liable for penalties in the amount of $5,000 for each day the manufacturer unreasonably fails to comply, commencing on the day after the specified date for completion of all awarded remedies.
c. The Office of Administrative Law is authorized to issue subpoenas to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute.
d. A manufacturer or consumer may appeal a final decision to the Appellate Division of the Superior Court. An appeal by a manufacturer shall not be heard unless the petition for the appeal is accompanied by a bond in a principal sum equal to the money award made by the administrative law judge plus $2,500 for anticipated attorney's fees and other costs, secured by cash or its equivalent, payable to the consumer. The liability of the surety of any bond filed pursuant to this section shall be limited to the indemnification of the consumer in the action. The bond shall not limit or impair any right of recovery otherwise available pursuant to law, nor shall the amount of the bond be relevant in determining the amount of recovery to which the consumer shall be entitled. If a final decision resulting in a refund to the consumer is upheld by the court, recovery by the consumer shall include attorney's fees, fees for expert witnesses and costs of suit, and reimbursement for actual expenses incurred by the consumer for the rental of a motorized wheelchair equivalent to the consumer's motorized wheelchair and limited to the period of time after which the consumer's motorized wheelchair was offered to the manufacturer for return under this act, except in those cases in which the manufacturer made a comparable motorized wheelchair available to the consumer free of charge during that period. If the court finds that the manufacturer had no reasonable basis for its appeal or that the appeal was frivolous, the court shall award treble damages to the consumer. Failure of the Office of Administrative Law to render a written decision within 20 days of the conclusion of the summary hearing as required by subsection b. of this section shall not be a basis for appeal.
e. The Attorney General shall monitor the implementation and effectiveness of this act and report to the Legislature after three years of operation, at which time a recommendation shall be made either to continue under the procedures set forth in this act or to make such modifications as may be necessary to effectuate the purposes of this act.
b. Any waiver by a consumer of rights under this act shall be void and unenforceable.
"Administrator" means a person who performs the third-party administration of a service contract, pursuant to the provisions of section 5 of P.L.2013, c.197 (C.56:12-91), on behalf of a provider.
"Consumer" means a natural person who buys other than for purposes of resale any property that is distributed in commerce and that is normally used for personal, family, or household purposes and not for business or research purposes.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Emergency, life safety, or property safety goods" means any goods provided for installation in, as part of, or for addition to, a system designed to prevent, respond to, alert regarding, suppress, control, or extinguish an emergency or the cause of an emergency, or assist evacuation in the event of an emergency, which emergency could threaten life or property. Examples of these systems include fire alarm, fire sprinkler, fire suppression, fire extinguisher, security, gas detection, intrusion detection, access control, video surveillance and recording, mass notification, public address, emergency lighting, patient wandering, infant tagging, and nurse call.
"Leased motor vehicle excess wear and use protection" means the repair, replacement, or maintenance of property, or indemnification for repair, replacement, or maintenance, due to excess wear and use, damage for items such as tires, paint cracks or chips, interior stains, rips or scratches, exterior dents or scratches, windshield cracks or chips, missing interior or exterior parts or excess mileage that results in a lease-end charge, or any other charge for damage that is deemed as excess wear and use by a lessor under a motor vehicle lease.
"Maintenance agreement" means a contract of limited duration that provides for scheduled maintenance only, and does not include repair or replacement of the property subject to the contract.
"Motor vehicle ancillary protection product" means a contract or agreement between a provider and a consumer for a specific duration, for a provider fee or other separately stated consideration, to perform one or more of the following with respect to a motor vehicle:
(1) the repair or replacement of tires or wheels on a motor vehicle damaged as a result of coming into contact with road hazards including but not limited to potholes, rocks, wood debris, metal parts, glass, plastic, curbs, or composite scraps;
(2) the removal of dents, dings, or creases on a motor vehicle that can be repaired using the process of paintless dent removal without affecting the existing paint finish and without replacing vehicle body panels, sanding, bonding, or painting;
(3) the repair of small motor vehicle windshield chips or cracks which may include replacement of the windshield for chips or cracks that cannot be repaired;
(4) the replacement of a motor vehicle key or key-fob in the event that the key or key-fob becomes inoperable or is lost or stolen;
(5) leased motor vehicle excess wear and use protection; or
(6) other services which may be approved by the director, that are consistent with the provisions of P.L.2013, c.197 (C.56:12-87 et seq.).
"Non-original manufacturer's part" means a replacement part not made for or by the original manufacturer of the property, commonly referred to as an "after market part."
"Person" means any natural person, company, corporation, association, society, firm, partnership, or other similar legal entity.
"Premium" means the consideration paid to an insurer for a reimbursement insurance policy, and is subject to any applicable premium tax.
"Provider" means a person who is contractually obligated to the service contract holder under the terms of the service contract.
"Provider fee" means the consideration paid by a consumer for a service contract, and is not subject to any premium tax.
"Public utility" means a public utility as defined in subsection a. of R.S.48:2-13.
"Reimbursement insurance policy" means a policy of insurance issued to a regulated entity to either provide reimbursement to, or payment on behalf of, the regulated entity under the terms of the insured service contracts issued or sold by the regulated entity, or, in the event of the non-performance of a regulated entity, to provide or pay for, on behalf of the regulated entity, all covered contractual obligations incurred by the regulated entity.
"Regulated entity" means a provider or an administrator.
"Service contract" means a contract or agreement between a provider and a consumer for any duration, for a provider fee or other separately stated consideration, to perform, or to provide indemnification for the performance of, the maintenance, repair, replacement, or service of property for the operational or structural failure of the property due to a defect in materials or workmanship or due to normal wear and tear, and which may include additional provisions for incidental payment of indemnity under limited circumstances. In the case of a motor vehicle, such circumstances may include towing, rental, and emergency road services, and other road hazard protections. A service contract may provide for the maintenance, repair, replacement, or service of the property for damage resulting from power surges or interruption, or accidental damage from handling. A service contract also includes a motor vehicle ancillary protection product. Service contracts may provide for leak or repair coverage to house roofing systems. A "service contract" does not include a contract in writing to maintain structural wiring associated with the delivery of cable, telephone, or other broadband communication services or a contract in writing related to the delivery of satellite television or broadband communication services.
"Service contract holder" or "contract holder" means a consumer who is the purchaser of a service contract or is entitled to the contractual benefits under the terms of the contract.
"Warranty" means a warranty made solely by the manufacturer, importer, or seller of property or services without additional consideration, that is incidental to, and not negotiated or separated from, the sale of the property or services, that guarantees indemnity for defective materials, parts, mechanical or electrical breakdown, labor, or workmanship, or provides other remedial measures, including repair or replacement of the property or repetition of services.
b. The following shall be exempt from the provisions of this act:
(1) warranties;
(2) maintenance agreements;
(3) service contracts on property if the property for which the service contract is sold has a purchase price of $250 or less, excluding sales tax;
(4) mechanical breakdown insurance policies offered by licensed insurers pursuant to the insurance laws of this State;
(5) motor club or association membership contracts that primarily provide for roadside assistance and towing services in situations that involve impairment of the operation of a member's motor vehicle, for reasons that include, but are not limited to, mechanical breakdown or adverse road conditions;
(6) newspapers that accept or publish advertising for items that fall within the scope of this act;
(7) service contracts on emergency, life safety, or property safety goods; and
(8) service contracts issued, offered, or sold:
(a) by a public utility to the extent that the public utility is regulated by the Board of Public Utilities, or by a person providing central heating and air conditioning services, but only with respect to a service contract regarding the product sold to a consumer or installed or repaired for the consumer at the consumer's household by a utility , a subsidiary of a utility, or a person providing central heating and air conditioning services; or
(b) to any person other than a consumer.
c. Service contracts are not insurance in this State or otherwise regulated under Title 17 of the Revised Statutes. The making, proposing to make, issuing, marketing, offering, selling, administering of, or providing contractual obligations for, a service contract shall not be construed to be the business of insurance and shall be exempt from regulation as insurance pursuant to Title 17 of the Revised Statutes, however nothing in this act shall be construed to exempt the making, issuing, marketing, offering, or selling of a reimbursement insurance policy from any applicable provisions of Title 17 of the Revised Statutes.
(1) each service contract shall be insured under a reimbursement insurance policy issued by an insurer licensed, registered, or otherwise authorized to transact the business of insurance in this State, and which complies with the provisions of section 6 of P.L.2013, c.197 (C.56:12-92);
(2) a funded reserve account shall be established and maintained for its obligations under each contract issued and outstanding in this State, with reserves calculated at not less than 40% of gross consideration received, then less the amount of claims paid under those contracts. If those reserves fall below the minimum required, the provider has 90 days to come into compliance without violating this section. The reserve account shall be subject to examination and review by the director pursuant to section 10 of P.L.2013, c.197 (C.56:12-96); or
(3) alone or together with the provider's parent or other affiliated corporation, the provider shall maintain a net worth or stockholders' equity of not less than $100,000,000. Upon request by the director, the provider shall provide the director with a copy of the provider's or its parent's or other affiliated corporation's most recent Form 10-K or Form 20-F, or successor form containing substantially the same information, filed with the Securities and Exchange Commission within the last 12-month period, or if the provider, or parent or other affiliated corporation, does not file this form with the Securities and Exchange Commission, a copy of the entity's audited financial statements, which show a net worth of the provider, or parent or other affiliated corporation, of not less than $100,000,000. If the provider's parent's or other affiliated corporation's form or financial statements are filed to meet the provider's means of assuring faithful performance to its contract holders, the parent or other affiliated corporation shall agree to guarantee the obligations of the provider.
b. Except with respect to a provider that complies with paragraph (1) or (3) of subsection a. of this section or with respect to an insurer that the Commissioner of Banking and Insurance has determined meets financial solvency standards established under Title 17 of the New Jersey Statutes, in addition to the requirements set forth in subsection a. of this section, the provider shall maintain a bond, having a value of not less than five percent of the gross consideration received per annum, less claims paid, on the sale of the service contract for all service contracts issued and in force, but not less than $25,000, in order to provide service contracts in this State. The provider shall name the division as a party on the bond, and shall notify the division, in writing, in the event of the cancellation or non-renewal of the bond.
c. In addition to any applicable damages and penalties pursuant to subsection a. of section 10 of P.L.2013, c.197 (C.56:12-96), a person who provides or administers a service contract that is not in compliance with P.L.2013, c.197 (C.56:12-87 et al.) or that is issued by a provider that is not in compliance with P.L.2013, c.197 (C.56:12-87 et al.) shall be jointly and severally liable for all covered contractual obligations arising under the terms of such non-compliant contract or under the terms of any service contract issued at a time when the provider of the contract is non-compliant.
d. A person who administers service contracts in this State is required to comply with one or more means of assuring faithful performance as set forth in paragraph (1) through (3) of subsection a. of this section; or the means of assuring faithful performance of a service contract set forth in subsection a. of this section adopted by the provider of the service contract shall apply to indemnify that person's conduct with respect to administering the service contract.
a. maintaining the accounts, books, papers, documents, and other records concerning the provider's activities and transactions regulated under this act;
b. performing or arranging the collection, maintenance, or disbursement of payments on behalf of the provider, related to any claim arising under the provider's contracts; or
c. participating in the processing or adjustment of any claim arising under the provider's contracts.
(1) be deemed to have received the premium for the insurance upon the payment of the provider fee by a consumer for a service contract issued by an insured provider;
(2) (a) provide reimbursement to, or payment on behalf of, the provider under the terms of the contract; or
(b) in the event of the provider's non-performance, provide or pay for, on behalf of the provider, all covered contractual obligations incurred by the provider;
(3) accept a claim arising under the contract directly from a contract holder, if the provider does not comply with any contractual obligation pursuant to the contract within 60 days of presentation of a valid claim by the contract holder; and
(4) terminate or not renew the policy covering the contract only after a notice of termination or nonrenewal is presented to the director, at least 10 days prior to the termination or nonrenewal of the policy, which termination or nonrenewal shall not reduce the insurer's responsibility for any insured contract issued or sold prior to the date of termination or nonrenewal.
b. This section shall not be construed to limit the right of the insurer to seek indemnification or subrogation against the provider if the insurer provides or pays, or is obligated to provide or pay, for any covered contractual obligation incurred by the provider.
a. the provider's name, principal or other appropriate business address, and telephone number;
b. the administrator's name, principal or other appropriate business address, and telephone number;
c. the service contract holder's name and address, to the extent this information is furnished by the contract holder , provided, however, that a provider that bills a consumer for the provider fee on a periodic basis at a physical or electronic address provided by the service contract holder shall be exempt from the requirement of this subsection;
d. the provider fee, or a reference to any other documentation which contains the provider fee and the terms under which the contract is sold;
e. the property subject to coverage by the service contract, the contractual obligations of the provider with respect to that property , any limitations, exceptions, and exclusions, a toll-free telephone number for claim service, and complete instructions for making a claim for service on or replacement of the property covered by the contract , or for reimbursement for service on or replacement of the property;
f. the amount of any deductible or service fee, as applicable;
g. whether the provider's use of refurbished, reconditioned, or non-original manufacturer's parts is permitted;
h. whether the service contract provides for consequential damages or preexisting conditions;
i. the contractual obligations of the service contract holder, including, but not limited to, the duty of the contract holder to comply with the provisions of the owner's manual for the property and to protect the property against any further damage;
j. the conditions governing the transferability of the service contract;
k. the conditions governing the cancellation of the service contract by the service contract holder, which shall:
(1) permit the contract holder, if the contract holder makes no claim arising under the contract, to cancel the contract:
(a) within 10 days of receipt of the contract, or a longer period specified in the contract, if delivered at the time of purchase; or
(b) within 20 days of the date the contract was sent to the contract holder , or a longer period specified in the contract, if not delivered at the time of purchase; and
(2) if cancelled within the time period specified in subparagraph (a) or (b) of paragraph (1) of this subsection, require the provider to provide the contract holder with the full purchase price or amount paid on the contract by refund or credit to the account of the contract holder, and to additionally pay the contract holder a 10% per month penalty, based upon the purchase price of the contract, if the refund or credit is not completed within 45 days of the cancellation of the contract;
l. the conditions governing cancellation of the service contract by the provider, prior to the expiration of the contract, which shall:
(1) require, except as provided in paragraph (2) of this subsection, that the provider mail a written notice to the contract holder at the contract holder's last known address:
(a) which contains the reason for the cancellation and the effective date of the cancellation; and
(b) is delivered at least five days prior to the effective date of the cancellation; and
(2) explain that a written notice shall not be required if the reason for cancellation is nonpayment of the provider fee, a material misrepresentation or omission, or a substantial breach of contractual obligations concerning the property or its use; and
m. whether the service contract is insured by a reimbursement insurance policy, and:
(1) if insured, the contract shall contain:
(a) the insurer's name, principal or other appropriate business address, and telephone number accompanied by a conspicuous statement in substantially the following form: "Obligations of the provider under this service contract are insured under a service contract reimbursement insurance policy"; and
(b) information concerning the procedure for the contract holder to present a claim arising under the contract directly to the reimbursement insurance company, pursuant to the insurer's obligations set forth in section 6 of this act, in the event that the provider does not comply with any contractual obligation pursuant to the contract within 60 days of presentation of a valid claim by the contract holder; or
(2) if not insured, the contract shall contain a conspicuous statement in substantially the following form: "Obligations of the provider under this service contract are backed by the full faith and credit of the provider."
a. a receipt for, or other written evidence of, the purchase of the service contract to the contract holder; and
b. a copy of the service contract to the service contract holder , which may be presented electronically or in writing, at the point of sale or within a reasonable period of time from the date of purchase.
b. The provider's accounts, books, papers, documents, and other records shall include:
(1) a copy of each contract issued or sold;
(2) the name and address of each service contract holder, to the extent this information is furnished by the contract holder; and
(3) information concerning any claim arising under each contract, which shall include, but not be limited to, the date of claim filing, claim description, and provider's response.
c. (1) Except as provided by paragraph (2) of this subsection, the provider shall retain all records related to a contract required by the provisions of this section for at least one year after the expiration of all contractual obligations under the terms of the contract.
(2) A provider discontinuing business in this State shall maintain the means of assuring faithful performance to its contract holders as required by subsection a. of section 4 of this act and all records related to each contract issued or sold in this State until the provider submits appropriate proof, satisfactory to the director, that it discharged or transferred its contractual obligations for all contracts so issued or sold.
d. The records required and maintained pursuant to this section may be maintained electronically or through other record keeping technology, but if maintained in a format other than by hard copy, the records shall be capable of duplication to legible hard copy at the request of the director.
a. the identities of all of the principals of the regulated entity and, if applicable, of any parent company or other affiliated entity that provides or administers service contracts in the United States;
b. information regarding any litigation or enforcement matters concerning service contracts filed or prosecuted during the prior five years in which a principal identified in subsection a. of this section was named or involved; and
c. information concerning the regulated entity's business operations, which shall include the total amounts collected in provider's fees and the total amounts paid out in claims or charges for services provided under the contract.
b. An advertisement for a service contract that is offered by an entity other than a public utility in a manner that uses a public utility's trade name or other identifying information shall clearly and prominently disclose:
(1) that the service contract is not being offered by the public utility but by a third party entity that is not part of the public utility, and that an entity other than the public utility will be responsible for performing the services advertised;
(2) the name of the provider that offers the service contract and, if applicable, the name of the administrator;
(3) the provider's contact information and, if applicable, the administrator's contact information;
(4) that the communication is an advertisement; and
(5) if applicable, that the billing for the services to be provided will be conducted through a public utility and that the public utility is an entity other than the provider.
c. Nothing in this act shall be construed to impose liability on news media for accepting or publishing advertising that may fall within the scope of this section.
b. The registration application and renewal shall be on a form provided by the division and shall:
(1) disclose the address, ownership, and nature of business of the regulated entity;
(2) be renewed annually on July 1 or other date established by the director; and
(3) be accompanied by a fee of $300 per registration and annual renewal.
c. A registration application or registration renewal shall not be considered filed until all required information and fees are received by the division.
d. Any regulated entity that fails to register prior to the sale of a service contract shall pay a late filing fee of $100 for each 30-day period, or portion thereof, that the registration is late. A regulated entity that fails to timely renew its registration shall pay a late fee of $50 for each 30-day period, or portion thereof, that the annual renewal filing fee is late. The late fees authorized by this subsection shall be in addition to all other penalties authorized by law, including civil penalties for the sale of any service contract while unregistered.
e. The director may refuse to issue or renew, and may revoke or suspend, any registration for failure to comply with, or violation of, the provisions of P.L.2022, c.91 (C.56:12-95.1 et al.) or any regulation promulgated pursuant thereto, or the provisions of P.L.1960, c.39 (C.56:8-1 et seq.). A refusal, revocation, or suspension shall not be made except upon reasonable notice to, and opportunity to be heard, by the applicant registrant.
(1) that unless the consumer cancels the contract, the contract will automatically renew; and
(2) methods by which the consumer may obtain details of the automatic renewal provision and cancellation procedure, whether by contacting the provider at a specified telephone number or address, by referring to the contract, or by any other method. At a minimum, such methods shall include, for each consumer:
(a) an online method for the consumer to cancel the contract and a mailing address to which written cancellation requests may be addressed; or
(b) a telephone number that the consumer may call to cancel the contract.
b. As part of the provider's routine business practice, where the business has failed for any reason to comply with the provisions of this section, the contract holder may cancel the contract and receive the unearned portion of the contract subject to the automatic renewal provision less the amount of claims paid during that automatic renewal period, which amount shall be refunded as of the date on which the provider is notified of the error.
c. The provider shall provide written or electronic notification to the consumer not less than 30 days nor more than 60 days before any change in the procedures required of the consumer to cancel the automatic renewal provision.
d. All cancellation requests are required to be acknowledged within five business days of receipt and honored within 10 business days of receipt, and applied as of the date of receipt or, if permitted by the service contract, applied at the end of the holder's monthly billing cycle. If a cancellation request is honored within five business days of receipt, the acknowledgement requirement of this subsection shall be deemed to have been satisfied.
e. Nothing in this section shall be construed to prevent a contract holder from recovering on a claim that would be valid and covered had the regulated entity acted in compliance with P.L.2022, c.91 (C.56:12-95.1 et al.).
b. In order to enforce the provisions of this act, the director may conduct examinations of any provider, administrator, seller, or other person subject to the provisions of this act. Upon request by the director, a provider, administrator, seller, or other person shall make any accounts, books, papers, documents and other records required and maintained pursuant to section 9 of this act available to the director for inspection which are necessary to enable the director to reasonably determine compliance with this act.
"Bundle contract" means the provision of direct broadcast satellite service and telecommunications service to a residential customer in this State through a contract with a provider of direct broadcast satellite service for those services.
"Provider of direct broadcast satellite service" or "provider" shall have the same meaning as provided in 47 U.S.C. s.335.
"Residential customer" or "customer" means a customer receiving direct broadcast satellite service from a provider of direct broadcast satellite service.
"Telecommunications service" shall have the same meaning as provided in section 2 of P.L.1991, c.428 (C.48:2-21.17).
"Victim of domestic violence" shall have the same meaning as provided in section 3 of P.L.1991, c.261 (C.2C:25-19).
"Cable television service" shall have the same meaning as provided in section 3 of P.L.1972, c.186 (C.48:5A-3).
"Commercial mobile service" shall have the same meaning as provided in 47 U.S.C. s.332.
"Direct broadcast satellite service" means a satellite system with programming offered as a service by a provider of direct broadcast satellite service as defined in 47 U.S.C. s.335.
"Electric generation service" and "gas supply service" shall have the same meaning as provided in section 3 of P.L.1999, c.23 (C.48:3-51).
"Executor" means the executor or administrator of the estate of a customer who is subject to the provisions of P.L.2019, c.188 (C.56:12-99 et seq.) upon the death of that customer.
"Heating oil" means number 2 heating oil, number 4 heating oil, number 6 heating oil, and kerosene used exclusively for residential use.
"Heating oil service" means the delivery of heating oil to a customer but shall not include delivery pursuant to a contract for a term of less than 275 days where the customer had committed to purchase a specified volume of heating oil at a specified price.
"Internet access service" shall have the same meaning as provided in 47 U.S.C. s.231.
"Propane service" shall have the same meaning as "propane services" as defined in section 2 of P.L.2007, c.150 (C.52:27D-510).
"Telecommunications service" shall have the same meaning as provided in section 2 of P.L.1991, c.428 (C.48:2-21.17).
"Voice over Internet Protocol service" shall have the same meaning as provided in section 3 of P.L.2007, c.195 (C.48:17-34).
b. A penalty imposed pursuant to subsection a. of this section shall be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court and municipal court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) in connection with P.L.2019, c.188 (C.56:12-99 et seq.). If the violation is of a continuing nature, each day during which the violation continues shall constitute an additional, separate, and distinct offense.
b. (1) A service provider shall permit a service recipient to pause, without incurring an additional fee, the contract for those services upon the admission of the service recipient to a long-term care facility. The service provider shall not resume charging the service recipient under the contract for a minimum period of 90 days. If the service recipient remains admitted to a long-term care facility after a period of 90 days, the service provider shall cancel the contract without any additional charge.
(2) The service provider shall provide a standard form to the service recipient upon request, which the service recipient and a physician shall utilize when requesting contract pause or cancellation pursuant to the provisions of this section. If the service recipient is unable to submit the standard form and a representative of the service recipient is requesting contract pause or cancellation pursuant to the provisions of this section, the representative shall submit to the service provider the standard form and a copy of the power of attorney, conservatorship, or guardianship documents verifying the representative's authority to act on behalf of the service recipient.
(3) A service provider may require written proof of a service recipient's admission to a long-term care facility. If the service provider requires written proof, then the delivery of a written notice to the service provider of the request pursuant to this subsection and a letter signed by the service recipient's physician attesting that the requirements established pursuant to this subsection are met shall be deemed sufficient proof.
(4) Nothing in P.L.2025, c.3 (C.56:12-102) shall relieve a service recipient of an obligation to return equipment to the service provider or to pay a lawful unreturned equipment charge, nor shall a service recipient be relieved from any amounts owed for any equipment purchased by the service recipient.
c. For purposes of this section:
"Assisted living facility" means an assisted living residence or comprehensive personal care home licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).
"Cable television company" and "cable television service" shall have the same meaning as provided in section 3 of P.L.1972, c.186 (C.48:5A-3).
"Certified mail" shall have the same meaning as provided in R.S.1:1-2.
"Dementia care home" means a community residential facility which: (1) provides services to residents with special needs, including, but not limited to, persons with Alzheimer's disease and related disorders or other forms of dementia; (2) is subject to the licensure authority of the Department of Health as a health care facility pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); and (3) meets the requirements of section 19 of P.L.2015, c.125 (C.26:2H-150).
"Internet service provider" shall have the same meaning as provided in section 3 of P.L.2007, c.272 (C.56:8-170).
"Long-term care facility" means a nursing home, assisted living residence, comprehensive personal care home, residential health care facility, or dementia care home licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).
"Physician" means a physician authorized by law to practice medicine in this or any other state and any other person authorized by law to treat sick and injured human beings in this or any other state.
"Service provider" means a telecommunications service provider, a cable television company, or an Internet service provider.
"Service recipient" means any individual who resides in this State who receives telecommunications service, cable television service, or Internet service from a service provider through equipment that is located in this State.
"Telecommunications service provider" means any person, business, or organization qualified to do business in this State that provides a telecommunications service that is subject to regulation by the Board of Public Utilities pursuant to Title 48 of the Revised Statutes.
"Charge card" means a credit card on an account for which no periodic rate is used to compute a finance charge.
"Credit card" means any card, plate, coupon book, or other single credit device that may be used from time to time to obtain credit.
"Operator" means a person who engages in the business of transporting motor vehicles that are inoperable or parked illegally or otherwise without authorization from public or private property to a site where repairs may be made or the vehicle may be stored and who may also perform motor vehicle repairs.
b. The operator may request additional identification, as determined by the Director of the Division of Consumer Affairs, before proceeding with repairs or towing. Unless the motorist is unable to produce such identification, or the operator has a bona fide reason to believe the card or other identification is fictitious, altered, stolen, expired or revoked or not valid for any other cause or is clearly offered with intent to defraud the issuer, the debit card, charge card or credit card shall be deemed an acceptable form of payment in lieu of cash if the operator ordinarily accepts the card at his place of business. Nothing in this act shall preclude payment by a motorist in the form of check or money order, if this form of payment is acceptable to the operator.
a. While the majority of towing companies in New Jersey are reputable service providers, some unscrupulous towing companies are engaged in predatory practices victimizing persons whose vehicles are parked on public streets and private property;
b. Predatory towing practices include charging unwarranted or excessive fees, particularly in connection with towing vehicles from private parking lots which do not display any warnings to the vehicle owners or operators, or overcharging persons for towing services provided under circumstances where the person has no meaningful opportunity to withhold consent;
c. The legitimate business interests of towing companies and the needs of private property owners for relief from unauthorized parking must be balanced with the interest in providing appropriate protection to persons who own or operate vehicles;
d. Whatever authority exists in the law to regulate towing and towing companies is fragmented among various State agencies and local governments so that inconsistent or inadequate regulation often results, with insufficient recourse provided under the law; and
e. Therefore, it is in the public interest to create a coordinated, comprehensive framework to establish and enforce minimum standards for towing companies.
"Basic towing service" means towing as defined in this section and other ancillary services as may be specified by the director by regulation, which are components of a routine tow.
"Decoupling fee" means a charge by a towing company for releasing a motor vehicle to its owner or operator when the vehicle has been, or is about to be, hooked or lifted by a tow truck, but prior to the vehicle actually having been moved or removed from the property.
"Director" means the Director of the Division of Consumer Affairs.
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
"Motor vehicle" includes all vehicles propelled otherwise 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" includes commercial motor vehicles as defined in R.S.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.
"Person" means an individual, a sole proprietorship, partnership, corporation, limited liability company or any other business entity.
"Private property owner" means the owner or lessee of private property, or an agent of such owner or lessee, but shall not include a private property towing company acting as an agent of such owner or lessee.
"Private property towing" means the non-consensual towing from private property or from a storage facility by a motor vehicle of a 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 section 1 of P.L.1967, c.305 (C.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 section 1 of P.L.1973, c.137 (C.39:4-56.6).
"Private property towing company" means a person offering or performing private property towing services.
"Towing" means the moving or removing, from public or private property or from a storage facility, by a motor vehicle of a motor vehicle that is damaged as a result of an accident or otherwise disabled, is recovered after being stolen, or is parked illegally 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.
"Vehicle" means any device in, upon, or by which a person or property is or may be transported upon a highway.
b. (Deleted by amendment, P.L.2009, c.39)
c. Nothing in this section shall preclude a State agency or political subdivision, or the independent authorities or instrumentalities thereof, from requiring additional or higher liability insurance coverage or amounts with respect to contracts for towing and storage services awarded under the authority of such agency, subdivision, authority or instrumentality.
(1) the person shall have entered into a contract for private property towing with the owner of the property;
(2) there is posted in a conspicuous place at all vehicular entrances to the property which can easily be seen by the public, a sign no smaller than 36 inches high and 36 inches wide stating:
(a) the purpose or purposes for which parking is authorized and the times during which such parking is permitted;
(b) that unauthorized parking is prohibited and unauthorized motor vehicles will be towed at the owner's expense;
(c) the name, address, and telephone number of the towing company that will perform the towing;
(d) the charges for the towing and storage of towed motor vehicles;
(e) the street address of the storage facility where the towed vehicles can be redeemed after payment of the posted charges and the times during which the vehicle may be redeemed; and
(f) such contact information for the Division of Consumer Affairs as may be required by regulation;
(3) the property owner has authorized the person to remove the particular motor vehicle; and
(4) the person tows the motor vehicle to a secure storage facility that is located within a reasonable distance of the property from which the vehicle was towed.
b. No private property owner shall authorize the towing of any motor vehicle parked for an unauthorized purpose or during a time at which such parking is not permitted from the private property owner's property without the consent of the motor vehicle owner or operator, unless:
(1) the private property owner has contracted with a private property towing company for removal of vehicles parked on the property without authorization; and
(2) a sign that conforms to the requirements of paragraph (2) of subsection a. of this section is posted on the property.
c. (Deleted by amendment, P.L.2009, c.39)
d. This section shall not apply to a motor vehicle parked on a lot or parcel on which is situated a single-family unit or an owner occupied multi-unit structure of not more than six units, a motor vehicle parked in front of any driveway or garage entrance where the motor vehicle is blocking access to that driveway or garage entrance, or a motor vehicle in which the towing is authorized by a law enforcement officer of this State, or any political subdivision of the State, while in the actual performance of the officer's duties and as deemed appropriate for public safety.
e. The requirements of paragraph (2) of subsection a. of this section shall not apply to a residential community in which parking spaces are specifically assigned to community residents, provided that:
(1) the assigned spaces are clearly marked as such;
(2) there is specific documented approval by the property owner authorizing the removal of the particular vehicle; and
(3) a sign, which can easily be seen by the public, is posted in a conspicuous place at all vehicular entrances to the residential community property, stating that unauthorized parking in an assigned space is prohibited and unauthorized motor vehicles will be towed at the owner's expense, and providing information or a telephone number enabling the vehicle owner or operator to immediately obtain information as to the location of the towed vehicle.
The exemption in this subsection shall not apply to any private parking lot or parcel owned or assigned to a commercial or other nonresidential entity located in such residential communities.
b. All fees charged for private property or other non-consensual towing services and related storage services shall be reasonable and not excessive. Such fees shall be presumptively unreasonable and excessive if they exceed by more than 25 percent, or a different percentage established by the director by regulation, the usual and customary fee charged by the towing company or storage facility for such services when provided with the consent of the owner or operator of the vehicle, or if they exceed by more than 50 percent, or a different percentage established by the director by regulation, the usual and customary fee charged for such nonconsensual towing or related storage service by other towing companies or storage facilities operating in the municipality from which the vehicle was towed. Notwithstanding the foregoing, such fees may not exceed the maximum amounts that may be charged for such services in accordance with any applicable schedule of fees by municipal ordinance adopted pursuant to section 1 of P.L.1979, c.101 (C.40:48-2.49).
(1) (Deleted by amendment, P.L.2009, c.39)
(2) (Deleted by amendment, P.L.2009, c.39)
(3) (Deleted by amendment, P.L.2009, c.39)
c. (Deleted by amendment, P.L.2009, c.39)
d. (Deleted by amendment, P.L.2009, c.39)
(1) has a business office open to the public between 8 a.m. and 6 p.m. at least five (5) days a week, excluding holidays; and
(2) is secured and, if it is an outdoor storage facility, lighted from dusk to dawn.
b. A towing company shall provide reasonable accommodations for after-hours release of stored motor vehicles.
a. (Deleted by amendment, P.L.2009, c.39)
b. (Deleted by amendment, P.L.2009, c.39)
c. (Deleted by amendment, P.L.2009, c.39)
d. To give any benefit or advantage, including a pecuniary benefit, to any person for providing information about motor vehicles parked for unauthorized purposes on privately owned property or otherwise in connection with private property towing of motor vehicles parked without authorization or during a time at which such parking is not permitted;
e. To fail, when so requested by the owner or operator of a vehicle subject to non-consensual towing, to release a vehicle to the owner or operator that has been, or is about to be, hooked or lifted but has not actually been moved or removed from the property when the vehicle owner or operator returns to the vehicle, unless the vehicle subject to non-consensual towing has been authorized to be towed by a law enforcement officer of this State, or any political subdivision of the State, while in the actual performance of the officer's duties and as deemed appropriate for public safety, or to charge the owner or operator requesting release of the vehicle an unreasonable or excessive decoupling fee. Such a fee shall be presumptively unreasonable and excessive if it exceeds by more than 25 percent, or a different percentage established by the director by regulation, the usual and customary decoupling fee charged by the towing company for a vehicle subject to consensual towing, or if it exceeds by more than 50 percent, or a different percentage established by the director by regulation, the usual and customary decoupling fee charged for vehicles subject to non-consensual towing by other private property towing companies operating in the municipality in which the vehicle was subjected to non-consensual towing;
f. (1) To charge a fee for a private property or other non-consensual towing or related storage service not listed on the schedule of services for which a fee may be charged as established by the director except as may be permitted by the director by regulation; or
(2) To charge an unreasonable or excessive fee;
g. To refuse to accept for payment in lieu of cash or an insurance company check for towing or storage services a debit card, charge card or credit card if the operator ordinarily accepts such card at his place of business, unless such refusal is authorized in accordance with section 4 of P.L.2002, c.67 (C.56:13-4); or
h. To monitor, patrol, or otherwise surveil a private property for the purposes of identifying vehicles parked for unauthorized purposes and towing a motor vehicle parked for an unauthorized purpose from such private property without having been specifically requested to tow such vehicle by the owner of the property.
i. Nothing contained in any provision of the "Predatory Towing Prevention Act," P.L.2007, c.193 (C.56:13-7 et seq.) shall be construed to prevent a towing company from charging a reasonable fee for storage of a vehicle that has been subject to non-consensual towing authorized by a law enforcement officer of this State or by any political subdivision of this State. Nothing contained in any provision of the "Predatory Towing Prevention Act," P.L.2007, c.193 (C.56:13-7 et seq.) shall be construed to prevent a towing company from charging fees for non-consensual towing or related storage services in accordance with a duly-authorized fee schedule established by a municipality or other political subdivision of this State with respect to a vehicle that has been subject to non-consensual towing authorized by a law enforcement officer of this State or the political subdivision, and there shall be a rebuttable presumption that fees charged in accordance with a fee schedule are not unreasonable or excessive.
A towing company shall only require that reasonable fees charged in accordance with a duly authorized fee schedule established by a municipality or other political subdivision of this State for towing, authorized by a law enforcement officer of this State or by a political subdivision of this State, or related storage services be paid by the operator, owner, lessor, or lienholder of the vehicle prior to the towing company's release of the vehicle. In the event the owner or operator of the vehicle defaults on payments to the lessor or lienholder of the vehicle, the lessor or lienholder shall be responsible for these reasonable towing and related storage fees.
Notwithstanding the provisions of P.L.1964, c.81 (C.39:10A-1 et seq.), or any other law, rule, or regulation to the contrary, a towing company shall notify the operator, owner, lessor, and lienholder of a vehicle that has been subject to non-consensual towing, authorized by a law enforcement officer of this State or a political subdivision of this State, and related storage services within 30 days of the vehicle being towed and arriving at the towing company lot. If a towing company fails to notify the operator, owner, lessor, and lienholder of the vehicle within 30 days, the towing company may charge a maximum storage fee of $750, and the towing company shall be responsible for all additional towing or related storage services.
Notwithstanding any provision of this subsection to the contrary, the maximum liability for storage fees for matters pending prior to the date of enactment of P.L.2023, c.132, shall not exceed $5,000. Towing fees for matters pending prior to the date of enactment of P.L.2023, c.132 shall not be subject to any fee limitation, provided that such fees remain reasonable and are charged in accordance with a duly authorized fee schedule established by a municipality or other political subdivision of this State.
For the purposes of this subsection, non-consensual towing shall be considered to be authorized by a law enforcement officer of this State or a political subdivision if the law enforcement officer or an agent or employee of the political subdivision initiates, directs, orders, or requests the non-consensual towing of the vehicle; and a municipal fee schedule shall be considered duly authorized if it has been established by municipal ordinance or resolution or by contract between the municipality and the towing company which conforms to the requirements of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.) and any related regulations.
b. (Deleted by amendment, P.L.2009, c.39)
(1) (Deleted by amendment, P.L.2009, c.39)
(2) (Deleted by amendment, P.L.2009, c.39)
b. The provisions of P.L.2007, c.193 (C.56:13-7 et al.) shall not be deemed to limit the authority of the New Jersey Turnpike Authority or the South Jersey Transportation Authority to establish rules and regulations governing the provision of towing and storage services on the roadways and properties under each entity's respective control.
c. The provisions of P.L.2007, c.193 (C.56:13-7 et al.) shall not be deemed to limit the authority of any law enforcement agency of this State, or political subdivision of the State, from authorizing the towing of a vehicle, at the owner's expense, as deemed appropriate for public safety.
b. In addition to any penalties or other remedies provided in P.L.1960, c.39 (C.56:8-1 et seq.), the director may order a towing company that has billed a person for any nonconsensual towing or related storage an amount determined by the director to be unreasonable to reimburse the person for the excess cost with interest.
(1) the name or names of the animal or animals that produced the fur, as set forth in the Fur Products Name Guide, promulgated by the Federal Trade Commission pursuant to section 7 of the federal "Fur Products Labeling Act," Pub.L.82-110 (15 U.S.C. s.69e); and
(2) the name of the country of origin of any imported furs used.
b. Labeling of a new article of clothing apparel pursuant to this section shall be accomplished by adding the required disclosures to a permanent or temporary tag attached to the clothing apparel, or by affixing in a conspicuous place a sticker listing these disclosures upon the clothing apparel.
c. As used in this section, "fur" means animal skin or part thereof, with hair, fleece, or fibers attached thereto, either in its raw or processed state.
d. A retail merchant shall not be held liable for a violation of this section if a manufacturer or supplier for the merchant certifies to that merchant, in the invoice or other written document describing the clothing apparel, that any tag or label attached by the manufacturer or supplier conforms to the requirements of this section, unless the retail merchant knew, or reasonably should have known, that the certification is false.
e. This section shall only apply to new clothing apparel sold or offered for sale to a retail consumer in the first instance, and shall not apply to the resale of that clothing apparel by any second-hand, consignment, goodwill or similar resale merchant. Additionally, nothing contained in this section shall be construed to apply to the isolated or occasional sale of new clothing apparel by an individual not regularly engaged in the business of selling clothing apparel and who originally purchased the clothing apparel for the individual's personal use.
Each article of clothing apparel that is not marked in accordance with the provisions of this act shall constitute a separate violation.
"Improper means" means the theft, bribery, misrepresentation, breach or inducement of a breach of an express or implied duty to maintain the secrecy of, or to limit the use or disclosure of, a trade secret, or espionage through electronic or other means, access that is unauthorized or exceeds the scope of authorization, or other means that violate a person's rights under the laws of this State.
"Misappropriation" means:
(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(2) Disclosure or use of a trade secret of another without express or implied consent of the trade secret owner by a person who:
(a) used improper means to acquire knowledge of the trade secret; or
(b) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was derived or acquired through improper means; or
(c) before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired through improper means.
"Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
"Proper means" means discovery by independent invention, discovery by reverse engineering, discovery under a license from the owner of the trade secret, observation of the information in public use or on public display, obtaining the trade secret from published literature, or discovery or observation by any other means that is not improper.
"Reverse engineering" means the process of starting with the known product and working backward to find the method by which it was developed so long as the acquisition of the known product was lawful or from sources having the legal right to convey it, such as the purchase of the item on the open market.
"Trade secret" means information, held by one or more people, without regard to form, including a formula, pattern, business data compilation, program, device, method, technique, design, diagram, drawing, invention, plan, procedure, prototype or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
b. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
c. In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
b. If willful and malicious misappropriation exists, the court may award punitive damages in an amount not exceeding twice any award made under subsection a. of this section.
a. willful and malicious misappropriation exists;
b. a claim of misappropriation is made in bad faith; or
c. a motion to terminate an injunction is made or resisted in bad faith.
For purposes of this section, "bad faith" is that which is undertaken or continued solely to harass or maliciously injure another, or to delay or prolong the resolution of the litigation, or that which is without any reasonable basis in fact or law and not capable of support by a good faith argument for an extension, modification or reversal of existing law.
b. This act shall supersede conflicting tort, restitutionary, and other law of this State providing civil remedies for misappropriation of a trade secret.
c. In any action for misappropriation of a trade secret brought against a public entity or public employee, the provisions of the "New Jersey Tort Claims Act" (N.J.S.59:1-1 et seq.) shall supersede any conflicting provisions of this act.
"Autobus" means a privately owned autobus operated over the public highways in this State for the transportation of not more than 40 passengers for hire in intrastate or interstate business except that "autobus" shall not include:
(1) a vehicle engaged in motorbus regular route service as defined in section 3 of P.L.1979, c.150 (C.27:25-3);
(2) a vehicle engaged in the transportation of passengers for hire in the manner and form commonly called taxicab service unless that service becomes or is held out to be regular service between stated termini;
(3) a hotel bus used exclusively for the transportation of hotel patrons to or from local railroad or other common carrier stations, including local airports;
(4) a bus operated for the transportation of enrolled children and adults only when serving as chaperones to or from a school, school-connected activity, day camp, summer day camp, nursery school, child care center, pre-school center, or other similar places of education, including "School Vehicle Type I" and "School Vehicle Type II" as defined in R.S.39:1-1;
(5) an autobus with a carrying capacity of not more than 13 passengers operated under municipal consent upon a route established wholly within the limits of a single municipality or with a carrying capacity of not more than 20 passengers operated under municipal consent upon a route established wholly within the limits of not more than four contiguous municipalities within any county of the fifth or sixth class, which route in either case does not, in whole or in part, parallel upon the same street the line of any street railway or traction railway or any other autobus route;
(6) an autocab, limousine, or livery service as defined in R.S.48:16-13 or section 2 of P.L.1997, c.356 (C.48:16-13.1), unless that service becomes or is held out to be regular service between stated termini;
(7) a vehicle used in a "ridesharing" arrangement, as defined by the "New Jersey Ridesharing Act of 1981," P.L.1981, c.413 (C.27:26-1 et al.);
(8) a motor bus owned by, or operated under a contract with, the New Jersey Transit Corporation;
(9) charter bus operations, as defined in R.S.48:4-1;
(10) a vehicle designed to transport eight or more, but fewer than 16, persons, including the driver, which is used exclusively for the transportation of persons between an off-airport parking facility and an airport;
(11) a special paratransit vehicle, as defined in R.S.48:4-1; or
(12) a vehicle that is owned or leased by a "boarding or nursing home," as defined by section 2 of P.L.1977, c.238 (C.26:2H-37), by an "assisted living facility," as defined by section 1 of P.L.2009, c.61 (C.26:2H-12.56), by an adult day health care facility or pediatric day health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et al.), or by any facility or other entity licensed or approved by the Department of Human Services or the Department of Health to render services to New Jersey residents, and which is used to transport eight or more, but fewer than 16, persons, including the driver, to and from recreational and social activities, shopping, and other health care providers; provided that no charge is assessed each time a patient, resident, or client utilizes the transportation service.
"Bill of Rights for Customers of Certain Autobuses" means the consumer protections, obligations of the owners and operators of autobuses, and basic expectations and guarantees of health, safety, and welfare established pursuant to section 6 of P.L.2013, c.224 (C.56:16-4).
"For hire" means for direct or indirect hire, any service for which the driver of the vehicle is compensated, or which is included in the duties of the person who renders services for compensation, but shall not include transportation services that are provided to patients or residents of a "boarding or nursing home," as defined by section 2 of P.L.1977, c.238 (C.26:2H-37), an "assisted living facility," as defined by section 1 of P.L.2009, c.61 (C.26:2H-12.56), an adult day health care facility or pediatric day health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et al.), or to patients, residents, or clients of any facility or other entity that is licensed or approved by the Department of Human Services or the Department of Health to render services to New Jersey residents, unless a charge is assessed each time a patient, resident, or client utilizes the transportation services.
"Operator" means a person who is in actual physical control of an autobus.
"Owner" means a person who holds the legal title of an autobus, or if an autobus is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or if a mortgagor of an autobus is entitled to possession, then the conditional vendee, lessee, or mortgagor shall be considered the owner.
a. The residents of this State rely on a variety of passenger vehicle transportation options. The provision of safe and lawful transportation options is vital to the economy of the State and to the health and welfare of New Jersey residents.
b. The proliferation of privately-owned autobuses which are operated in intrastate or interstate business over the public highways in this State for the transportation of not more than 40 passengers, often incorrectly referred to as jitneys, as a transportation option in the State has led to an increase in congestion on the roadways, presented public safety issues, engendered passenger service complaints, and posed environmental hazards.
c. In protecting the health, safety, and welfare of the thousands of New Jersey residents who use autobuses and other residents who encounter these autobuses on the highways, it is necessary and proper to ensure that the owners and operators of these autobuses uphold their obligations to provide safe and lawful services to their customers.
d. In order to ensure that autobuses provide safe and lawful services to the people of this State, it is appropriate for this Legislature to enact a bill of rights for customers of certain autobuses that establishes basic rights and guarantees that protect the health, safety, and welfare of customers.
a. The owner of an autobus shall provide clear and conspicuous notice of customer complaint contact information by prominently displaying the telephone number, established by the Division of Consumer Affairs in the Department of Law and Public Safety pursuant to subsection b. of section 7 of P.L.2013, c.224 (C.56:16-5), on the interior and exterior of the autobus.
b. The owner of an autobus shall respond to all complaints in a timely fashion and work to resolve any problems customers encounter regarding unsafe, poor, or inadequate service.
c. The owner of an autobus shall ensure that all operators are well-trained.
d. The operator of an autobus shall not allow an autobus to exceed the number of passengers that the autobus can safely accommodate.
e. The operator of an autobus shall ensure that the autobus is clean, well-maintained, and in good working condition at all times.
f. The operator of an autobus shall not operate an autobus while smoking or using a cellular telephone, or engage in any other action that may endanger the health, safety, or welfare of passengers.
g. The operator of an autobus shall comply with all federal and State laws governing the safe operation of a motor vehicle.
b. The owner or operator shall publish the route schedule, developed pursuant to subsection a. of this section, on the website of the owner or operator and at each transportation facility, station, stop, or stand where the autobus provides fixed route service.
c. In the event that the route schedule, developed pursuant to subsection a. of this section, is changed by the owner or operator, the owner or operator shall update the owner or operator’s website to reflect the changes and post the new route schedule at each transportation facility, station, stop, or stand where the autobus provides fixed route service, within 30 days of the changes to the route schedule taking effect.
a. establish a telephone number where customers may submit complaints regarding service provided by autobus owners and operators; and
b. initiate, investigate, attempt to resolve, and, if necessary, refer to the Attorney General any matter or complaint received concerning a violation of the Bill of Rights for Customers of Certain Autobuses established pursuant to section 6 of P.L.2013, c.224 (C.56:16-4). The division may conduct an investigation and may request in writing the production of documents and records as part of its investigation. Trade secrets and proprietary business information contained in the documents or records received by the division pursuant to a written request or a subpoena shall be confidential and shall not be deemed a "government record" under section 1 of P.L.1995, c.23 (C.47:1A-1.1 et seq.).
If the person of whom such request was made fails to produce the documents or records within 30 days after the date of the request, the division may issue and serve subpoenas to compel the production of those documents and records. If any person refuses to comply with a subpoena issued under this section, the division may petition the Superior Court to enforce the subpoena by means of such sanctions as the court may direct. After completion of the investigation, the division shall either:
(1) dismiss the complaint following a determination that no violation occurred; or
(2) determine that a violation has likely occurred and, if so, shall attempt to resolve the matter by settlement, which may include a monetary settlement to cover the costs incurred by the division. If no settlement is achieved, then the division may take further action, including, if necessary, referring the matter to the Attorney General for further proceedings.
Any records, documents, papers, maps, books, tapes, photographs, files, sound recordings, or other business material, regardless of form or characteristics, obtained by the division pursuant to subpoena shall be confidential. At the conclusion of an investigation, any matter determined by the division, or by a federal or State judicial or administrative body, to be a trade secret or proprietary confidential business information held by the division pursuant to the investigation shall be considered confidential. The materials may be used in any administrative or judicial proceeding as long as the confidential or proprietary nature of the material is maintained.
"Toy gun" means a facsimile or reproduction of a firearm that is marketed as a product intended for children or is substantially similar in appearance, size, and shape to a genuine firearm.
b. A person shall not sell, transfer, or assign a toy gun or imitation firearm as defined in subsection v. of N.J.S.2C:39-1 unless it is:
(1) a color other than black, blue, silver, or aluminum;
(2) marked with a non-removable orange stripe that is at least one inch in width and runs the entire length of the barrel on each side of the barrel; and
(3) equipped with a barrel at least one inch in diameter that is closed at a distance of at least one-half inch from the front end of the barrel with the same material from which the toy gun or imitation firearm is made; or
(4) is regulated under and conforms with the provisions of 15 CFR 272.1 et seq.
c. The provisions of this section shall not apply to the sale of theatrical firearms for which a permit is issued by the Superintendent of the New Jersey State Police. The provisions of paragraph (3) of subsection b. of this section shall not apply to water guns.
d. A person who violates this act shall be subject to a penalty of not more than $500 for the first offense and not more than $1,000 for each subsequent offense, to be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
"Bot" means an automated online account where all or substantially all of the actions or posts of that account are not directly generated by a live natural person.
"Computer or mobile application" means computer application software used by a person operating a computer or mobile device.
"Internet service provider" shall have the same meaning as provided in section 3 of P.L.2007, c.272 (C.56:8-170).
"Online" means appearing on any public-facing Internet website, Internet web application, or computer or mobile application, including a social networking website or publication.
"Online platform" means any public-facing Internet website, Internet web application, or computer or mobile application, including a social networking website or publication.
"Person" means a natural person, corporation, limited liability company, partnership, joint venture, association, estate, trust, government agency, or other legal entity or any combination thereof.
"Social networking website" shall have the same meaning as provided in section 1 of P.L.2012, c.75 (C.18A:3-29).
b. The provisions of P.L.2019, c.486 (C.56:18-1 et seq.) shall not impose a duty on a service provider of an online platform, including, but not limited to, an Internet web hosting service provider or an Internet service provider.
b. In addition to the penalty provided above, if a person violates, P.L.2019, c.486 (C.56:18-1 et seq.), the Attorney General may seek injunctive relief to prohibit and prevent the violation. In any action brought pursuant to this section, the State shall be entitled to recover the costs of investigation, costs of the action, and reasonable attorney fees.
“New Jersey account holder” means a New Jersey resident who has or who creates a social media account on a social media platform.
“Social media account” means a profile created by a person on a social media platform which contains personal information, including name, phone number, email, or other identifying information. “Account” also includes a profile created by a person that only contains pictures or videos that the person owns and shares.
“Social media company” means a person, business, or other legal entity and its agents, assignees, or representatives that provides or operates a social media platform with at least five million account holders worldwide.
“Social media platform” or “platform” means a public or semipublic Internet-based service or application that has users in this State, which service or application: (1) allows users to construct a public or semipublic social media account for the purposes of using the platform, populate a list of other users with whom the user shares a social connection through the platform, and post content viewable by other users of the platform; and (2) is designed to connect users within the platform to facilitate social interactions, except that a service or application that provides email or direct messaging services shall not be considered to meet this criterion solely based on the existence of that functionality. “Social media platform” shall not include an Internet-based service or application for which interactions between users are solely related to the provision of direct messages, commercial and financial transactions, peer-to-peer payments, consumer engagement around products, product reviews, sellers, services, events, or places, or any combination thereof, or an online service, application, or website that consists primarily of news, sports, entertainment, or other information or content that is not user generated, but is preselected by the provider and for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of the content.
b. A social media company shall inform consumers of the authenticated digital channel or mechanism made available pursuant to subsection a. of this section on any email notifications of account security sent to a New Jersey account holder and in a prominent location on the homepage or help page of the social media platform.
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