Brown v. Martinelli

419 N.E.2d 1081, 66 Ohio St. 2d 45, 20 Ohio Op. 3d 38, 1981 Ohio LEXIS 468
CourtOhio Supreme Court
DecidedApril 15, 1981
DocketNo. 80-715
StatusPublished
Cited by23 cases

This text of 419 N.E.2d 1081 (Brown v. Martinelli) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Martinelli, 419 N.E.2d 1081, 66 Ohio St. 2d 45, 20 Ohio Op. 3d 38, 1981 Ohio LEXIS 468 (Ohio 1981).

Opinion

Stephenson, J.

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 [47]*47by 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:
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 [48]*48undertake 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 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.

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Bluebook (online)
419 N.E.2d 1081, 66 Ohio St. 2d 45, 20 Ohio Op. 3d 38, 1981 Ohio LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-martinelli-ohio-1981.