State Ex Rel. Morrison v. Oshman Sporting Goods Co. Kansas

42 P.3d 197, 30 Kan. App. 2d 383, 2002 Kan. App. LEXIS 255
Court of Appeals of Kansas·Decided March 15, 2002·No. 86,035·Published·Cited by 2 cases

Opinions

Rogg, J.:

Oshman Sporting Goods Co. Kansas (Oshman) appeals the imposition of civil penalties for overcharges on merchandise in violation of the weights and measures statutes, K.S.A. 83-[384]*384201 et seq., and the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. We reverse.

Oshman owned a sporting goods store in Johnson County, Kansas. In 1998, the Kansas Department of Agriculture randomly selected the store as the subject of a price verification test. The price verification test was performed by selecting 100 items in the store, recording their product number, and then entering that number into a cash register, noting any discrepancies between the posted price and the price charged. A score of less than 98% accuracy constituted a failed inspection and prompted the Department to conduct follow-up inspections.

From March 1998 through June 1999, Oshman failed seven price verification tests conducted by the Department’s inspectors. The tests revealed a total of 25 overcharges amounting to $142.65 and 44 undercharges amounting to $435.56. The Johnson County District Attorney filed a petition alleging Oshman had violated the KCPA based on those overcharges.

At a bench trial, the trial court found that Oshman had overcharged for 25 items and each overcharge violated the weights and measures statutes and the KCPA. It imposed a $2,000 fine for each violation, amounting to $50,000 in civil penalties. Oshman appeals.

Statutory interpretation

Oshman contends the trial court’s application of the weights and measures statutes and the KCPA to the facts of this case was based on its erroneous interpretation of K.S.A. 83-201 and K.S.A. 83-219(a)(16). The interpretation of a statute is a question of law, and appellate review is unlimited. See Kleinsorge v. Kleinsorge, 29 Kan. App. 2d 519, 520, 28 P.3d 434, rev. denied 272 Kan. 1418 (2001).

The Kansas Supreme Court has said in reference to statutory interpretation:

“ ‘Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.' [Citation omitted.]” Kenyon v. Kansas Power & Light [385]*385Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (quoting Harris v. Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]).

Definition of measuring device

This case turns on the determination of whether the definition of “measuring device” includes within it a “point-of-sale system.”

The trial court found that the Oshman overcharges violated K.S.A. 83-219(a): “It shall be unlawful for any owner of a commercial weighing or measuring device: . . . (16) to charge or attempt to charge, at the time of the sale of an item or commodity, a value which is more than the price which is advertised, posted, or quoted.” K.S.A. 83-219(d) makes such a practice a violation of the KCPA. Oshman contends K.S.A. 83-219(a) does not apply to its business because it is not the owner of a commercial weighing or measuring device.

A “measuring device” is defined by K.S.A. 83-201(k): “ ‘Measuring device’ includes all weights, scales, beams, measures of every kind, instruments and mechanical devices for weighing or measuring, and any appliances and accessories connected with any or all such instruments.” (Emphasis added.)

Oshman asserts its checkout scanners and registers are not a “measuring device,” but are a “point-of-sale system,” as defined by K.S.A. 83-201(1):

“ ‘Point-of-sale system’ means any combination of a cash register or other devices, or system, such as a scanner, capable of recovering stored information related to the price or computing the price of any individual item which is sold or offered for sale at retail. A point-of-sale system may also include or be attached or connected to a weighing or measuring device.”

We agree with Oshman that under the present ambiguities of the statutory scheme it is less than clear that a point-of-sale system comes within the definition of a measuring device.

Both the State and Oshman point to other definition sections of the applicable statutes to support their interpretation of the definition of a measuring device.

Oshman argues that various definitions indicate a measuring device and a point-of-sale system are exclusive of one another. K.S.A. 83-206(f) and (g) mention both weights and measures and point-[386]*386of-sale systems, suggesting the former classification does not encompass the latter: “[T]he secretary shall ...(f) [i]nspect and test, to ascertain if they are correct, weights and measures and point-of-sale systems .... and (g) [a]pprove for use, and may mark, such weights and measures and point-of-sale systems . . . .” Furthermore, K.S.A. 83-207 refers to weighing and measuring devices and point-of-sale systems separately, giving an additional indication the legislature did not consider a point-of-sale system to be a weighing or measuring device. “[T]he secretary of agriculture shall adopt standards setting forth specifications, tolerances and other technical requirements for all weights, measures and weighing and measuring devices, and point-of-sale systems.”

The State counters Oshman’s argument with the definition of weights and measures found in K.S.A. 83-201(a): “ “Weights and measures’ means all commercial weights or measures of every kind, instruments and devices for weighing and measuring, and any appliance and accessories associated with any or all such instruments and devices and any point-of-sale system.” (Emphasis added.)

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State Ex Rel. Morrison v. Oshman Sporting Goods Co. Kansas, 42 P.3d 197, 30 Kan. App. 2d 383, 2002 Kan. App. LEXIS 255 (kanctapp 2002).

42 P.3d 197 (State Ex Rel. Morrison v. Oshman Sporting Goods Co. Kansas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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