66 Ohio St. 2d 45 | Ohio | 1981
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
“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:
a * * *
“(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
The Court of Appeals below in its opinion affirming the grant of summary judgment expressly adopted the unar-ticulated 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.
“(4) [conducted 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,
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 de-
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.
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.