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In the Matter of the Challenge of the New Jersey State Funeral

July 26, 2012

IN THE MATTER OF THE CHALLENGE OF THE NEW JERSEY STATE FUNERAL DIRECTORS ASSOCIATION TO AMENDMENTS
N.J.A.C. 13:36-4.9(C); 13:36-5.17(C) AND 13:36-5.18(A)



On appeal from the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Mortuary Science.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 29, 2012

Before Judges Grall, Alvarez and Skillman.

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

The New Jersey State Funeral Directors Association, Inc. (Association) challenges amendments to N.J.A.C. 13:36-4.9(c), 13:36-5.17(c) and 13:36-5.18(a), adopted by the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Mortuary Science (Board). 43 N.J.R. 2360 (Sept. 6, 2011). The amendments were proposed to "clarify a registered mortuary's responsibilities with respect to the participation of unlicensed persons in the removal and preparation of bodies for disposition." 42 N.J.R. 1674 (Aug. 2, 2010). The responsibility is to "ensure" that unlicensed persons follow "universal precautions" as set forth in N.J.A.C. 13:36-6.4 and "comply with applicable Board rules concerning the handling of human remains." Ibid. The Board proposed the amendments to protect the public health by preventing the spread of infection and disease. Ibid.

The Association does not contend that the Board deviated from the statutorily prescribed procedures for rulemaking, N.J.S.A. 52:14B-1 to -15. Its challenges are to the Board's authority to adopt the regulations affecting unlicensed persons by obligating licensed persons to "ensure" their compliance with the Board's rules. The Association contends:

I. THE AMENDMENTS ARE UNCONSTITUTIONAL BECAUSE THEY EXTEND THE BOARD'S REGULATORY AUTHORITY BEYOND THAT GRANTED TO IT BY THE LEGISLATURE UNDER THE MORTUARY SCIENCE ACT.

II. THE AMENDMENTS ARE ARBITRARY AND UNREASONABLE BECAUSE IT IS IMPOSSIBLE FOR THE REGISTERED MORTUARY TO COMPLY WITH THE OBLIGATION IMPOSED.

III. THE AMENDMENTS ARE INVALID BECAUSE THEY ARE UNCONSTITUTIONALLY VAGUE.

I

The scope of the amendments to the regulations must be understood in order to address the issues the Association raises. In interpreting regulations, we take the same approach we do in construing statutes. US Bank, N.A. v. Hough, 210 N.J. 187, 198-99 (2012). The primary goal is to give regulations the meaning intended by the drafter as revealed by the language of the provision. Id. at 199; DiProspero v. Penn, 183 N.J. 477, 492 (2005). Regulatory provisions adopted together and addressing the same problem are read and understood together. See, e.g., Hough, supra, 210 N.J. at 210-11. Where there is ambiguity, or where a literal reading would lead to an absurd result, a court informs its interpretation with evidence of the meaning the drafter has assigned. Aronberg v. Tolbert, 207 N.J. 587, 598 (2011). In the case of regulations, that intent may be evidenced in the record of the rulemaking process. Hough, supra, 210 N.J. at 199 (noting the relevance of "the meaning given to the particular regulation by the agency charged with its enforcement").

The Legislature has charged the Board with regulatory responsibility for "mortuary science" and defined that term to include both "embalming and funeral directing." N.J.S.A. 45:7-34. Those terms are broadly defined to encompass "the disinfecting or preservation of a dead human body" by various means and "preparation (other than embalming) for burial or disposal and the direction or supervision of burial or disposal of dead human bodies." Ibid.

The Board's regulations generally bar unlicensed persons from participating in mortuary science, but there are exceptions. N.J.A.C. 13:36-4.9, entitled "Participation of unlicensed persons," states the prohibition and the exceptions in paragraphs (a) and (b) as follows:

(a) No unlicensed person shall actively participate in any capacity in the actual funeral arrangements, preservation or disposal of dead human bodies, except that interns may participate in such activities pursuant to the provisions of N.J.S.A. 45:7-47.

(b) No unlicensed person shall actively participate in any capacity in the actual preparation of dead human bodies except for the following:

1. Interns;

2. Persons who perform religious and/or ritual preparations; and

3. Unlicensed persons who perform tasks on behalf of the registered mortuary for which a ...


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