In re Challenge of New Jersey State Funeral Directors Association to Certain N.J.A.C. Amendments, 427 N.J. Super. 268 (App. Div. 2012). This case involved a challenge to amendments to administrative regulations promulgated by the State Board of Mortuary Science. In essence, those amendments required licensed mortuaries who employed unlicensed persons, as permitted under rules that the industry did not challenge, to ensure that those unlicensed persons complied with “universal precautions and applicable Board” rules. Judge Grall’s opinion for the panel rejected the challenge to those amendments by the funeral directors association.
In considering the regulations, the panel took “the same approach [the courts do] in construing statutes. The primary goal is to give regulations the meaning intended by the drafter as revealed by the language of the provision” (citation omitted). Absurd results are to be avoided. Moreover, the standard of review of administrative rules is very deferential, with an “arbitrary and capricious” standard being applicable, since the Legislature “granted the Board broad authority to regulate mortuary science.”
The funeral directors contended that the amendments made mortuaries liable for the conduct of unlicensed persons in their employ “from the point of removal forward without regard to whether the registered mortuary has been entrusted with the body and even when the registered mortuary has no opportunity to act to ensure the unlicensed person’s compliance.” Judge Grall found that the amendments, by their terms, did no such thing, and that the Board, in its response to a comment by the funeral directors association, during the rulemaking process, had made that clear. The amendments merely required registered mortuaries to “make reasonable efforts to ensure that unlicensed persons observe universal precautions and comply with applicable Board rules” while handling bodies. That was plainly consistent with the Board’s statutory duty to regulate in this area.
The funeral directors association’s misperception of the scope of the amendments also doomed their other claims. One of those contentions was that the amendments improperly required mortuaries to do something that they were not physically capable of doing. The other was that the amendments were fatally vague. On the latter issue, Judge Grall observed that this was a facial challenge to the amendments, so that a successful challenge required a showing that the amendments were so vague that “a person of ordinary intelligence is unable to discern what it requires, prohibits, or punishes.” That was not demonstrated here.