Levin v. Lewis

• Decision Date: 30 April 1981
• Parties: Adam K. LEVIN, Director, Division of Consumer Affairs, Respondent, v. Earl LEWIS, t/a The Restoration Shop, Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 193

179 N.J.Super. 193

431 A.2d 157

Adam K. LEVIN, Director, Division of Consumer Affairs, Respondent, v. Earl LEWIS, t/a The Restoration Shop, Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 30, 1981.

Decided April 30, 1981.

Frank M. Ciuffani, Woodbridge, for appellant (Wilentz, Goldman & Spitzer, Woodbridge, attorneys; Robert J. Cirafesi, Woodbridge, of counsel; Richard M. Brockway, Woodbridge, on the brief).

David S. Griffiths, Deputy Atty. Gen., for respondent (James R. Zazzali, Atty. Gen., attorney; John J. Degnan, former Atty. Gen., and Erminie Conley, Asst. Atty. Gen., of counsel). Before Judges MICHELS, KOLE and ARD.

PER CURIAM.

This is an appeal from a final order issued by the Director of the Division of Consumer Affairs (Director) declaring certain conduct of appellant in violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., and of the Auto Repairs Regulations promulgated thereunder, N.J.A.C. 13:45A-7.1 and 7.2.

The amended complaint charged the appellant with the following: commencement of work without a written estimate or waiver, in violation of N.J.A.C. 13:45A-7.2(a)-7.2(a)(2)-7.2(a)(3) and N.J.S.A. 56:8-1 et seq.; false promises likely to induce a customer to authorize repairs, in violation of N.J.A.C. 13:45A-7.2(a)(5); charging for work in excess of the oral estimate, in violation of N.J.A.C. 13:45A-7.2(a)(6), and failure to perform work despite payment of the agreed price, in violation of N.J.S.A. 56:8-2. After a plenary hearing the administrative law judge made the following findings:

Earl Lewis, t/a The Restoration Shop, a single proprietor, at all relevant times herein was an automotive repair dealer within the meaning of N.J.A.C. 13:45A-7.1.

In the Spring of 1978, Francois Desert brought his 1962 Thunderbird, New York registration, to Respondent's Shop.

Respondent falsely agreed at that time to perform repairs to the car's engine transmission, front and rear ends for $1,500 and to repaint it for $2,000. No written estimate was prepared by Respondent, no waiver of estimate was signed by Desert and no written authorization to perform work was signed by Desert.

In November, 1978, Desert left the car at Respondent's shop during normal working hours for repairs.

The agreed estimate was falsely confirmed at that time by Respondent's employee. No written estimate was prepared by Respondent, no waiver of estimate or written authorization to perform work was signed by Desert. The false agreement induced Desert to leave the car for repairs in reliance thereon.

Desert paid Respondent $3,363.78 in reliance thereon and on account of repairs on October 27, 1978, and $600 more in response to Respondent's demand and in further reliance thereon on April 11, 1979.

Despite the agreed estimate, Respondent deceptively continued to perform services on the car and to charge therefor in excess of estimate without the oral or written consent of Desert. Final charges, though the work is unfinished, were more than double the estimate.

Contrary to his testimony, Respondent did not tell Desert before agreement was struck that the work might exceed the estimate or that Respondent worked only on a time/materials basis.

In the Fall of 1978, Thomas J. Farrell brought his 1925 Chevrolet truck engine, disassembled as he was instructed, to Respondent's shop.

Respondent, through his employee, falsely agreed at that time to overhaul, paint and reassemble the engine for $1,000. Respondent ratified the acts of his employee.

No written estimate was prepared by Respondent; no waiver of estimate or no authorization to perform work was signed by Farrell. The false agreement induced Farrell to leave the engine for repairs in reliance thereon.

Farrell paid Respondent $100 in reliance thereon and on account of repairs on January 30, 1979.

Despite the agreed estimate, Respondent deceptively worked on the engine and performed services in excess of estimate without the oral or written consent of Farrell. Final charges were double the estimate.

Contrary to testimony, Respondent or his employee did not tell Farrell before agreement was struck that the work might exceed the estimate or that Respondent worked only on a time/materials basis.

Based on the aforementioned findings, the judge ordered that Earl Lewis restore the 1962 Thunderbird for Francois Desert without further payment, thus holding appellant to the original agreement. Likewise, Lewis was ordered to return the 1925 engine to Farrell. He was further ordered to refrain from similar practices and required to pay two $2,000 penalties, the maximum permitted pursuant to N.J.S.A. 56:8-3.1. This decision was affirmed by the Director of the Division of Consumer Affairs with one modification. Lewis was ordered to pay Desert $463.78, the difference between the total cash he had given Lewis ($3,963.78) and the original price of $3,500, which he found to be the original bargain.

On appeal Lewis makes the following allegations of error:

POINT I The provisions of N.J.A.C. 13:45A-7.1, governing the practices of automobile repair dealers, are inapplicable to the respondent's business of restoring antique and classic cars;

POINT II Respondent's conduct in this case does not constitute a violation of the Consumer Fraud Act, N.J.S.A. 56:8-2, nor of N.J.A.C. 13:45A-7.2(a)(5);

POINT III If it is determined that provisions of N.J.A.C. 13:45A-7.1 are applicable to respondent's business it is urged that such application should be made prospective only;

POINT IV The circumstances of this case mandate a reduction of the maximum statutory penalty imposed upon respondent.

Our study of the entire record supports the findings and conclusions of the administrative law judge whose decision was affirmed by the Director. In reaching this result, we have considered " 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility ...." Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 93, 312 A.2d 497 (1973).

The initial question of whether N.J.A.C. 13:45A-7.1 is applicable to the business of appellant is answered in the language of the regulation. N.J.A.C. 13:45A-7.1 defines automobile repair dealer as follows:

"Automotive repair dealer" means any person who, for compensation, engages in the business of performing or employing persons who perform maintenance, diagnosis or repair services on a motor vehicle or the replacement of parts including body parts, but excluding those persons who engage in the business of repairing motor vehicles of commercial or industrial establishments or government agencies, under contract or otherwise, but only with respect to such accounts.

"Motor vehicle" means a passenger vehicle that is registered with the Division of Motor Vehicles of New Jersey or of any other comparable agency of any other jurisdiction, and all motorcycles, whether or not registered.

"Repair of motor vehicles" means all maintenance and repairs of motor vehicles performed by an automotive repair dealer but excluding changing tires, lubricating vehicles, changing oil, installing light bulbs, batteries, windshield wiper blades and other minor accessories and services. No service or accessory to be installed shall be excluded for purposes of this rule if the Director determines that performance of the service or the installation of an accessory requires mechanical expertise has given rise to a high incidence of fraud or deceptive practices, or involves a part of the vehicle essential to its safe operation.

Lewis' business clearly falls within the definition and is not the kind or type specifically excluded by the regulation.

We disagree with Lewis' contention that he is not an automobile repair dealer but rather a person engaged in "the restoration and remanufacture of antique automobiles and engines, a highly unique and specialized service, the nature of which makes it impossible for him to comply with the regulations" requiring written estimations or waivers before commencing work and forbidding misleading promises. N.J.A.C. 13:45A-7.2(a)1-2. An analogous California case, confronted with the same argument, held that a businessman was not exempt from a statutory requirement of a written estimate on the theory that the work constituted restoration of a classic car rather than repairs. In Schreiber v. Kelsey, 62 Cal.App.3d Supp. 45, 133 Calif.Reporter 508 (D.Ct.App.1976), the court reasoned as follows:

The Legislature has provided for certain specified exceptions to the requirements of this statute. Business and Professions Code section 9880.1, subdivision (f) defines "repair of motor vehicles" as follows:

"(f) 'Repair of motor vehicles' means all maintenance of and repairs to motor vehicles performed by an automotive repair dealer, but excluding repairing tires, changing tires, lubricating vehicles, installing light bulbs, batteries, windshield wiper blades, and other minor accessories, cleaning, adjusting, and replacing spark plugs, replacing fan belts, oil, and air filters, and other minor services, which the director, by regulation, determines are customarily performed by gasoline service stations."

Restoration is not a stated exception to the statute. The only work specifically eliminated from the requirements of the statute is work of a minor nature and of a type ordinarily performed by gasoline service stations. Such minor repairs were apparently excluded by the Legislature, not because an estimate would be difficult to provide, but because the cost of such repairs is too low to warrant inclusion.

Further, there is no evidence that the work done by plaintiff, although labeled "restoration" in his brief, was anything other than automotive repair. Plaintiff's company name is stated on his invoice as follows: "Schreiber Motors, Foreign Car Repair and Service." In his complaint, plaintiff alleges, at page 2, lines 13-16, that: "... on or about ...