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In re Johnny Popper

June 9, 2010

IN THE MATTER OF JOHNNY POPPER, INC. T/A J.D. BYRIDER T/A FISHER'S FINE AUTOMOBILES,


On appeal from the New Jersey Department of Law and Public Safety, Division of Consumer Affairs, Docket No. 08-029.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 15, 2010

Before Judges Lisa, Baxter and Alvarez.

Appellant is a used car dealer in Clementon. It was cited by the Division of Consumer Affairs (Division) for violating a provision in the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, which provides:

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. [N.J.S.A. 56:8-2.5.]

On the day for which appellant was cited, it had thirty-four used vehicles on its lot. An inventory stock number was posted on each vehicle. However, none of the vehicles had the sale price affixed, nor was there any posting of the vehicle prices anywhere on the lot. Appellant maintained a price list inside its building, which is a converted house. The price list consisted of two letter-size pages, listing each vehicle on the lot, its stock number, and its sale price.

Appellant's principal, Henry Marter, contended the price list was kept on a clipboard which was hung on a wall inside the building, accessible to anyone who entered the sales area. The Division's investigators denied this. They said the price list was not evident when they entered the building, and that Marter did not point it out to them hanging on a wall but retrieved it from the portion of the sales area where the desks were located.

Appellant conceded that sale prices were not affixed to the vehicles, but contended it satisfied the alternative requirement of N.J.S.A. 56:8-2.5 because the price list was in the sales office, which is the "point where the merchandise is offered for sale."

After a hearing over which he presided, the Director of the Division (Director) rejected appellant's contention. He reasoned that the legislative purpose of the CFA dictates that consumers should have independent access to the sale price of merchandise, without the need to encounter a sales person. He therefore concluded that the point where an item is "offered for sale" is the place where the item is located, not where the sale transaction occurs. As a result, he held that if the sale price is not affixed to each vehicle, the alternative provision of the statute requires the price "to be posted at least proximate to where a vehicle is located," and that appellant's practice of maintaining a price list inside the building was "insufficient." The Director credited the investigators' testimony and found that the price list was not hung on the wall and independently accessible to customers. He nevertheless deemed this factual finding inconsequential, concluding that maintaining the price list inside the building violated the statute "whether or not it was hung on the interior wall."

For the CFA violation, appellant was assessed a $1700 civil penalty, see N.J.S.A. 56:8-13, costs of $1484, see N.J.S.A. 56:8-11, and attorney's fees of $2241, see N.J.S.A. 56:8-19; it was also ordered to cease and desist from engaging in the conduct found to be unlawful, see N.J.S.A. 56:8-18. The Division stayed payment of the monetary assessments pending appeal.

Appellant argues that the Division's interpretation of the alternative provision of N.J.S.A. 56:8-2.5 was erroneous, and that its practice of maintaining a price list inside its building satisfies the provision. We disagree with appellant and affirm.

The judicial role in interpreting a statute is to ascribe a meaning that will "effectuate the legislative intent in light of the language used and the objects sought to be achieved." State v. Hoffman, 149 N.J. 564, 578 (1997). The starting point is to examine the language of the statute. State v. Butler, 89 N.J. 220, 226 (1982). "If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act's literal terms to divine the Legislature's intent." Ibid. If the statute is not clear or is susceptible to more than one possible meaning or interpretation, courts look to other sources, such as legislative history, as a guide to determining the Legislature's intent. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553-54 (2009). The judicial "task is often assisted by interpreting a statute consistently with the overall statutory scheme in which it is found." Id. at 554 (citing Merin v. Maglaki, 126 N.J. 430, 436 (1992)).

Relying on dictionary definitions of "offer," the Division argues that the place at which something is "offered for sale" can only mean the place where the consumer finds it. Appellant argues that the term plainly denotes the place where the sale transaction occurs, namely in the sales office inside the building, for it is there that the sale is discussed and consummated. Although the meaning urged by the Director is the more plausible one, we cannot say it is so clear as to be the only possible interpretation. The meaning appellant suggests is also possible. Therefore, because of the ambiguity we must look beyond the statutory language to ascertain what the Legislature intended.

A core purpose of the CFA is to protect consumers from sharp practices and dealings in the marketing of merchandise. Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 263 (1997). The CFA should be liberally construed to accomplish its remedial purpose of rooting out consumer fraud. Id. at 264. This remedial legislation should be construed in favor of consumers if such a construction is reasonable. See Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994). "[T]he Legislature passed the [CFA] 'to permit the Attorney General to combat the increasingly widespread practice of defrauding the consumer.'" Id. at 14 (quoting Senate Committee, Statement to Senate Bill No. 199 (1960)). The Attorney General enforces the CFA through the Division. Lemelledo, supra, 150 N.J. at 264.

Against the backdrop of these broad principles we consider the specific CFA provision at issue here. N.J.S.A. 56:8-2.5 was added to the CFA in 1973. L. 1973, c. 308, ยง 1. Its legislative history includes this pronouncement, which illuminates the issue before us: "Consumers have a right to know the price of all items they wish to purchase before taking them off the shelves. Clear indication of the price of all merchandise will aid in preventing discriminatory sales ...


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