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In re A-1 Jersey Moving and Storage Inc.

February 23, 1998


Argued: January 16, 1998 (by telephone) Before Judges Muir, Jr., Kestin and Cuff. On appeal from the Board of Public Movers and Warehousemen.

The opinion of the court was delivered by: Kestin, J.A.D.

[9]    A-1 Jersey Moving and Storage, Inc. (A-1) appeals from a December 12, 1996 order of the Board of Public Movers and Warehousemen (Board) revoking A-1's license to engage in the business of public moving and storage, requiring A-1 to reimburse specified amounts to certain shippers, and imposing a $22,500 fine. The Board's order provided that, after one year, with proof of compliance, A-1 could reapply for its license. A-1's motions for a stay pending appeal were denied, first by the Board and then by us. For the reasons stated herein, we affirm the Board's order.

On December 21, 1994, the Board served A-1 with a letter which charged violations of law, for "engag in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense," N.J.S.A. 45:14D-7b, and for "repeatedly fail to discharge contractual obligations to any person contracting for moving or storage services," N.J.S.A. 45:14D-7e. The factual specifications alleged that A-1 had "charged [nine named] consumers a premium for transit insurance when in fact you did not have this insurance."

The letter offered A-1 three choices for proceeding: • avoid the initiation of formaldisciplinary proceedings by signing [anacknowledgement of the allegations] and payinga civil penalty in the amount of $25,000;

• waiv[ing your] right to a hearing andsubmit a written statement or explanationto the Board. The Board will then considerthis statement and render a final decision;

• request a hearing in which case the matterwill be scheduled, and this notice will serveas a complaint. At the hearing you may, eitherpersonally or with the assistance of anattorney, submit such testimony or otherevidence as you may deem necessary in order forthe Board to finally determine whether theunlawful acts set forth herein have beenproven.

The letter went on to state:

You should also be aware that upon final evaluation of the evidence submitted at the hearing, the Board may, if unlawful acts are found to exist, assess civil penalties in an amount greater than that herein offered in settlement. Additionally, the Board may, if the facts are found to so warrant, enter an order requiring the restoration of any monies acquired by unlawful acts, the payment of costs and directing that you cease and desist from continued use of those acts found to be unlawful.

A-1's president, Matthew DiBattista, Jr., chose the second option offered in the Board's letter. He returned a signed certification form dated December 27, 1994, in which he "waive any right ... to a hearing in this matter" and noted the "submi[ssion of] a written statement for the Board's final consideration[.]" Notwithstanding the latter indication, the record contains no separate statement by DiBattista or otherwise on A-1's behalf. A handwritten entry at the bottom of the certification notes: "copy of change of policy." In its subsequent final decision and order entered on February 13, 1996, the Board stated: [A-1] elected to submit a written explanation consisting of only a copy of an unsigned "Request for Change" form addressed to insurance company. The form indicated that [A-1's] policy period began September 14, 1993 and ended September 14, 1994.

The Board went on to note that at the time of its inspection, A-1's spokesman maintained that he was not required to send any premium monies collected from shippers to his insurance broker, Ross and Company, Inc., of Fairfield, New Jersey. Respondent stated that a flat rate of payment for insurance was mutually agreed upon by Respondent and Ross and Company. In addition, Respondent stated that it was permitted to keep any monies collected from shippers for transit insurance.

The decision continued:

At its meeting on January 17, 1995, the Board considered Respondent's explanation and the investigators certified report. The Board accepted Respondent's representation that it was not required to forward the money collected in transit insurance premiums to Respondent's insurance company. However, the Board accepted the representation by Respondent's insurance company that Respondent's policy was canceled for failure to pay the total premium due effective April 5, 1994 and was not reinstated. The Board found that Respondent failed to conform with statutory and regulatory obligations ... and thus it concluded that the violations occurred. However, upon review by the Board it was determined that the assessment of the maximum civil penalty of $2,500 for each violation against the nine separate consumers had actually been calculated based on ten consumers, therefore, the civil penalty was reduced accordingly.

Based on the foregoing findings and Conclusions, A-1 was ordered to pay a total civil penalty of $22,500 within ten days; to refund all insurance premiums collected to each of the nine shippers within fifteen days, and provide proof of repayment within twenty days; and to "cease and desist from engaging in any of the conduct found herein to be unlawful."

After the final decision and order was entered, DiBattista inquired of the Board concerning the basis of the charges. A March 19, 1996 letter from the Board responded to DiBattista's request for information, enclosing pertinent documents, complying with his request even though "the Board is under no mandate to do so, neither are we mandated to keep you informed of your insurance cancellations." A letter from DiBattista, misdated December 28, 1994, acknowledged receipt of the documents, raised some questions, and closed with: "Again, I ...

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