Summary
In Brown, supra, the Ohio Supreme Court stated that the legislature intended a broad meaning for the term "home solicitation sale.
Summary of this case from Patterson v. StockertOpinion
No. 80-715
Decided April 15, 1981.
Home solicitation sales — Definition — R.C. 1345.21(E) — Telephone solicitation — Subject to Act, when.
The sale of consumer goods and services, as defined in R.C. 1345.21(E), solely by means of telephone solicitation initiated by the seller at the residence of the buyer constitutes a "home solicitation sale" within the meaning of R.C. 1345.21(A).
APPEAL from the Court of Appeals for Mahoning County.
On November 12, 1975, William J. Brown, Attorney General of Ohio, appellant herein, filed, pursuant to R.C. 1345.07, a complaint in the Court of Common Pleas of Mahoning County seeking, primarily, the issuance of an injunction against Joseph Martinelli of Pittsburgh, Pennsylvania, d.b.a. Magco Company, appellee herein. The complaint essentially averred, as pertinent here, violations of R.C. 1345.21 et seq., arising from the appellee's telephone solicitation of orders for the sale of magazines. After preliminary proceedings not pertinent here, a motion for summary judgment was filed by each party.
The facts before the trial court with respect to the motions were undisputed. Appellee is in the business of selling magazine subscriptions. One method of sale primarily utilized in Ohio is the telephone solicitation of prospective customers by agents of appellee who, after explaining the subscription program, the prices and payment terms, take orders for specified magazines. Within a short time thereafter, the customer is again called and the order verified. One or both calls are taped. The customer is then mailed a payment book and a pamphlet explaining the program, and begins receiving by mail the magazines ordered. Under the above described program, known in the trade as "non-signature agreements," no agent of appellee contacts the customer by an in-person appearance at the customer's residence, no contract is signed by the customer, and no notice of cancellation is given to the customer pursuant to R.C. 1345.23.
On March 23, 1979, the trial court entered a judgment overruling appellant's motion for summary judgment, and sustained appellee's motion for summary judgment upon the authority of the decision of the Court of Appeals for Franklin County in Brown, Atty. Gen., v. Periodical Publishers Service Bureau, Inc. (1977), 9 O.O. 3d 310. Upon appeal to the Court of Appeals for Mahoning County, the judgment was affirmed with one judge dissenting.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. William J. Brown, attorney general, Mr. Alex Shumate and Mr. Michael J. Barney, for appellant.
Messrs. Henderson, Covington, Stein, Donchess Messenger, Mr. James L. Messenger and Mr. Donald J. Barley, for appellee.
The pivotal issue presented for review in this appeal is the applicability of the Home Solicitation Sale Act enacted by the General Assembly in 134 Ohio Laws 43, effective January 1, 1973, as amended in 135 Ohio Laws Pt. II 624, effective September 30, 1974, to the sale of consumer goods solely by telephone solicitation of the buyer at his residence, when such solicitation is initiated by the seller.
The Home Solicitation Sale Act appears in R.C. 1345.21 through 1345.28. These statutes, inter alia, (1) provide to the buyer of consumer goods and services covered by the Act, the absolute right to cancel the sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase (R.C. 1345.22); (2) require every home solicitation sale to be evidenced by a written agreement or offer to purchase, signed by the buyer, which written agreement must provide thereon notice of the right of cancellation (R.C. 1345.23); and (3) provide that failure to comply with the provisions of R.C. 1345.21 to 1345.27 constitutes a deceptive act or practice in connection with a consumer transaction in violation of R.C. 1345.02, making applicable the remedies available to the Attorney General as enumerated in R.C. 1345.07 (R.C. 1345.28). It follows, therefore, that if the sales by appellee by telephone solicitation are "home solicitation" sales as defined in R.C. 1345.21(A), the "no-signature" sales procedure of appellee violate the Act, since such sales are not evidenced by a written agreement signed by the buyer with notice of the right of cancellation appearing thereon.
"Home solicitation sale" is defined in R.C. 1345.21, in pertinent part, as follows:
"As used in sections 1345.21 to 1345.28 of the Revised Code:
"(A) `Home solicitation sale' means a sale of consumer goods or services in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer, including solicitations in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him, or in which the buyer's agreement or offer to purchase is made at a place other than the seller's place of business. It does not include a transaction or transactions in which:
"* * *
"(2) The transaction was conducted and consummated entirely by mail or by telephone if initiated by the buyer, and without any other contact between the seller or his representative prior to the delivery of goods or performance of the service;"
In holding that appellee's "no signature" sales program was not a "home solicitation sale" as defined in R.C. 1345.21, both courts below relied upon Brown v. Periodical Publishers Service Bureau, Inc., supra, the facts of which case are virtually identical to those in the case sub judice. The court in Brown essentially reasoned that the Act was penal in nature and therefore must be strictly construed; that even though R.C. 1345.21 was amended by providing in R.C. 1345.21(A)(2) that a "home solicitation sale" does not include a "transaction conducted and consummated entirely by mail or by telephone if initiated by the buyer * * *," such exclusionary language could not create an inclusion in the definition in R.C. 1345.21(A) which retained, after amendment, the language of engaging "* * * in a personal solicitation of the sale at the residence of the buyer * * *"; and that, therefore, telephone solicitation sales were not subject to the Act. The count did not undertake to determine what the General Assembly intended by the exclusionary language in R.C. 1345.21(A)(2) respecting transactions by telephone "initiated by the buyer."
The Court of Appeals below in its opinion affirming the grant of summary judgment expressly adopted the unarticulated premise underlying the holding in Brown, by concluding that "* * * the statute is meant to cover sales actually made in the home of the buyer and in the physical presence of the sales person * * *." Resolution of the correctness of such conclusion is the crux of this appeal.
There can be no doubt that the extensive 1974 revision of the Ohio Home Solicitation Sale Act by the General Assembly was for the purpose of achieving substantial uniformity between a rule adopted by the Federal Trade Commission, effective June 7, 1974, regulating door to door sales and the Ohio Act. Such is demonstrable by a comparison of the substance of amendatory language of the Act and the related provisions of the rule. With respect to telephone sales, the rule provides that "door to door sales" does not include a transaction:
The Federal Trade Commission rule is captioned "COOLING-OFF PERIOD FOR DOOR-TO-DOOR SALES" and appears in 16 C.F.R. 429.1. In substance, the rule provides for pre-emption as to state laws only when, if door to door sales are permitted by state law, such laws are directly inconsistent with the provisions of the rule. Such pre-emption provisions are explanatory of the reason for the 1974 substantial revision of the Ohio Home Solicitation Sale Act.
"(4) [c]onducted and consummated entirely by mail or telephone; and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services;"
Significantly, the General Assembly in R.C. 1345.21(A)(2) adopted the nearly identical language respecting transactions by telephone, but included, additionally, the phraseology "if initiated by the buyer."
Pursuant to R.C. 1.47(B), it is presumed that in enacting a statute the General Assembly intended the entire law to be effective. Further, this court has held that, in determining legislative intent, "[t]he court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in the legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Wachendorf v. Shaver (1948), 149 Ohio St. 231, paragraph five of the syllabus.
In a like vein, this court has stated that "[t]he primary duty of a court in construing a statute is to give effect to the intention of the Legislature enacting it. In determining that intention, a court should consider the language used and the apparent purpose to be accomplished, and then such a construction should be adopted which permits the statute and its various parts to be construed as a whole and gives effect to the paramount object to be attained." Humphrys v. Winous Co. (1956), 165 Ohio St. 45, 49.
Inasmuch as R.C. 1345.21(A) was amended to its present form in the same Act which enacted R.C. 1345.21(A)(2), both sections becoming effective at the same time and relating to the same subject matter, i.e., what constitutes a "home solicitation sale," they are in pari materia, must be construed together and any apparent contradictions reconciled, if possible. Blackwell v. Bowman (1948), 150 Ohio St. 34, 44; State, ex rel. O'Neil, v. Griffith (1940), 136 Ohio St. 526.
Construing such sections together, as we must, they are readily reconcilable if the General Assembly intended to include within the meaning of "home solicitation sale" those sales which are accomplished solely by telephone solicitation initiated by the seller. We conclude such was the intention of the General Assembly. While, when viewed in the abstract, the phrase "personal solicitation" utilized in R.C. 1345.21(A) can arguably be construed, as did the courts below, as reflecting the intention of the General Assembly to require the physical presence of the soliciting seller, the following reasons negate that construction of such sections.
We note first that in the 1974 revision of the Act the General Assembly manifested a general intention to broaden the definition of "home solicitation sale" by addition of the wording, "or in which the buyer's agreement or offer to purchase is made at a place other than the seller's place of business." More importantly, the General Assembly in declining to adopt in toto the exclusionary language respecting mail and telephone solicitation sales appearing in the Federal Trade Commission rule of which it was clearly aware, and excluding only mail and telephone solicitation sales initiated by the buyer, clearly manifested an intention to give to Ohio consumers greater protection than that afforded under the federal rule by including in the "home solicitation sale" definition telephone solicitation sales initiated by the seller. To conclude otherwise would render nugatory the phrase "initiated by the buyer," since we can perceive of no other logical reason for the insertion of such wording other than to delineate the meaning and scope of the "home solicitation sale" definition in R.C. 1345.21(A). Such conclusion is in accord with the "basic presumption in statutory construction that the General Assembly is not presumed to do a vain or useless thing, and that when language is inserted in a statute it is inserted to accomplish some definite purpose." State, ex rel. Cleveland Electric Illum. Co., v. Euclid (1959), 169 Ohio St. 476, 479.
Finally, we observe that while the evils which the Act endeavors to proscribe may be greater in the context of a consumer sale accomplished by in-person solicitation, such evils nonetheless exist, in a diminished form, when such sale is accomplished through telephone solicitation, a fact apparent in the statutory regulatory scheme adopted by the General Assembly.
Accordingly, the judgment of the Court of Appeals affirming the grant of summary judgment to appellee is reversed, and summary judgment is hereby granted in favor of appellant.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, LOCHER, HOLMES and C. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for SWEENEY, J.