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In Re Johnny Popper, Inc.

413 N.J. Super. 580, 997 A.2d 257 (App. Div. 2010)

CONSUMER FRAUD; AUTOMOBILES — New Jersey’s Consumer Fraud Act requires an automobile dealership to openly display an automobile’s price where the consumer examines the automobile; a master list inside the business office is not sufficient.

The Division of Consumer Affairs cited an automobile dealership for violating a provision of the Consumer Fraud Act (CFA) requiring retail merchants to show the total selling price of retail merchandise by either affixing the price to the merchandise or by way of display at the point where the merchandise is offered for sale.

An automobile dealership had a practice of posting an inventory stock number on each vehicle, which corresponded to a price listed on a document inside of the on-premises sales office. The automobile dealership’s principal testified that the price list was displayed openly inside the office; meanwhile, the investigator claimed that the list was kept inside a desk.

The Director of the Division of Consumer Affairs, in an administrative hearing, decided that the location of the price list was inconsequential. Instead, he ruled that the price of each vehicle must either be attached to the vehicle, or be posted proximately to where the vehicle is located. The automobile dealership contended that the office was an appropriate location for the price list because that is where the bargain takes place, and is thus where the vehicle is actually offered for sale. In rejecting that argument, the Director noted that the legislature enacted the CFA provision to provide consumers with an independent means of discovering an item’s price without the need for an encounter with a salesperson. The automobile dealership was assessed a civil penalty, costs, and attorney’s fees, and was ordered to cease and desist from similar unlawful conduct.

On appeal, the Appellate Division found that the “offered for sale” language in the CFA was ambiguous, and therefore it looked to the intent of the legislature. The Court noted that the CFA was enacted to protect consumers from sharp practices and dealings in the marketplace, and therefore should be construed liberally to root out consumer fraud. The CFA’s sponsor in 1972 announced that consumers should have a right to know the price of an item prior to removing it from the shelf. In affirming the agency’s decision, the Court found that while not all merchandise is offered for sale on a shelf, the CFA was enacted to prevent this exact behavior by the automobile dealership.

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