State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 86,035

• Decision Date: 30 May 2003
• Docket Number: No. 86,035,86,035
• Citation: 69 P.3d 1087,275 Kan. 763
• Parties: STATE OF KANSAS, ex rel. PAUL J. MORRISON, DISTRICT ATTORNEY, TENTH JUDICIAL DISTRICT, Appellee v. OSHMAN SPORTING GOODS CO. KANSAS, D/B/A OSHMAN'S SUPERSPORTS USA, Appellant.
• Court: Kansas Supreme Court

275 Kan. 763

69 P.3d 1087

STATE OF KANSAS, ex rel. PAUL J. MORRISON, DISTRICT ATTORNEY, TENTH JUDICIAL DISTRICT, Appellee v. OSHMAN SPORTING GOODS CO. KANSAS, D/B/A OSHMAN'S SUPERSPORTS USA, Appellant.

No. 86,035

Supreme Court of Kansas

Opinion filed May 30, 2003.

Daniel O. Herrington, of Armstrong Teasdale LLP, of Kansas City, Missouri, argued the cause and was on the briefs for appellant.

David L. Harder, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, and Paul J. Morrison, district attorney, were on the brief for appellee.

The opinion of the court was delivered by:

LUCKERT, J.:

Oshman Sporting Goods Co. Kansas, d/b/a Oshman's Supersports USA (Oshman) appealed the district court's imposition of civil penalties for overcharges on merchandise in violation of the weights and measures statutes, K.S.A. 83-201 et seq., and the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The Court of Appeals reversed in a published decision with one judge dissenting, and this court granted the State's petition for review.

Facts

In 1998, the Kansas Department of Agriculture randomly chose Oshman as the subject of a price verification inspection. The inspector randomly selected 100 items to price test, wrote down the product number of each item, manually entered each item into the point-of-sale system, recorded the price retrieved by the point-of-sale system, and then compared it to the advertised price of each item, noting any discrepancies. A 98% accuracy rate, counting both overcharges and undercharges, was considered a passing rate. A score below 98% prompted additional follow-up inspections.

Between March 1998 and June 1999, Oshman failed seven price verification inspections. There were a total of 25 overcharges amounting to $142.64, and a total of 44 undercharges amounting to $435.57. In any single inspection, the highest failure rate was 8 overcharges totaling $49.24 and 14 undercharges totaling $112.03.

On January 13, 2000, the Johnson County District Attorney filed a petition alleging that the price discrepancies discovered during the inspections constituted violations of the KCPA and K.S.A. 83-219. After a bench trial, the trial court found that each of the 25 overcharges constituted a violation of K.S.A. 83-219(a)(16) and that each violation of K.S.A. 83-219(a)(16) was also a violation of the KCPA pursuant to K.S.A. 83-219(d). The court imposed a civil penalty of $2,000 per violation, for a total fine of $50,000. Oshman timely appealed.

The Court of Appeals reversed in a published opinion, with one judge dissenting. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 30 Kan. App. 2d 383, 42 P.3d 197 (2002). The majority ruled that K.S.A. 83-219(a) applied only to the owner of a commercial weighing or measuring device, not the owner of a point-of-sale system; therefore, the statute did not apply to Oshman. 30 Kan. App. 2d at 387. The majority also rejected the State's alternative argument that Oshman's overcharges were violations of the KCPA independent of K.S.A. 83-219(a). The majority held that because an inspection by the Department of Agriculture was not a consumer transaction, no violations of the KCPA had occurred. 30 Kan. App. 2d at 387. This court granted the State's petition for review.

The Trial Court and Court of Appeals Decisions

Oshman principal argument to both the trial court and Court of Appeals was that the State's allegations did not state a claim under K.S.A. 83-219(a). The trial court found that Oshman had violated K.S.A. 83-219(a)(16) which makes it unlawful for "(a) . . . 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." Oshman argued that K.S.A. 83-219(a) did not apply because it was not the owner of a commercial weighing or measuring device; rather, it was the owner of a point-of-sale system that was not included within the definition of a measuring device. The trial court disagreed, finding that the legislature intended a point-of-sale system to be a weighing or measuring device under K.S.A. 83-219.

The Court of Appeals found the pivotal issue in the case to be whether a point-of-sale system was included within the definition of a weighing device. The majority acknowledged the parties' arguments regarding various uses of the terms "weights and measures," "weighing and measuring devices," and "point-of-sale systems" within the weights and measures statutes, finding 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." 30 Kan. App. 2d at 385. The majority focused on legislative amendments to the statutes in 1994 and 1996 as the source of the ambiguity:

"In 1994, the legislature amended K.S.A. 83-201 to include the definition of a point-of-sale system. See L. 1994, ch. 83, § 1. At the same time, the legislature also amended K.S.A. 83-219(a) to include subsections (13) through (16), which seem to address the misuse of point-of-sale systems. See L. 1994, ch. 83, § 4. At the hearing on this bill, the Director of the Division of Inspections of the Kansas Department of Agriculture commented: `The purpose of this bill is to address technology changes in the industry and to provide the agency with clear authority to inspect and regulate point of sale or electronic price scanning equipment (scanners) which are currently used in commerce.' H. B. 3023, attachment 5.

"At the time of the 1994 amendments, the intent of the legislature seems to have been for K.S.A. 83-219(a) to apply to point-of-sale systems. Subsection (a) read: `It shall be unlawful for any person' to commit the unlawful acts. This clarity was clouded in 1996 when the legislature again amended K.S.A. 83-219(a) and changed `person' to `owner of a commercial weighing and measuring device.' See L. 1996, ch. 146, § 24. The legislative history does not explain the reason for this change.

"We find that the legislative intent to include point-of-sale systems in the definition of `weights and measures' after the 1996 amendments is not clear. We find that the trial court erred in applying K.S.A. 83-219(a)(16) to Oshman." 30 Kan. App. 2d at 386-87.

Judge Knudson dissented, finding it was not plausible that the legislature intended to negate the 1994 amendments necessary to inspect and regulate modern pricing computers by its enactment of the 1996 amendment to K.S.A. 83-219(a). Although he found no legislative history to explain the 1996 amendment, he opined that the term "person" may have been thought overly broad, subjecting a mere clerk to civil penalties. He also noted that the legislature had not rescinded K.S.A. 83-219(a) subsections (13) through (16) which address the misuse of point-of-sale systems and that the unifying definition of "weights and measures" at K.S.A. 83-201(a) continued to include point-of-sale systems. 30 Kan. App. 2d at 388-89.

Statutory Interpretation of K.S.A. 83-201 and 83-219

In its petition for review, the State contends that the Court of Appeals' majority erroneously interpreted the weights and measures statutes, K.S.A. 83-201 and 83-219. Specifically, the State disagrees with the majority's findings regarding the legislative history and legislative intent behind the 1994 and 1996 amendments to those statutes.

The interpretation of statutes is a question of law, and this court's review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).

Again, the statute at issue, K.S.A. 83-219(a)(16) makes it unlawful for "any owner of a commercial weighing or measuring device. . . 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." (Emphasis added.) A "measuring device" is defined to include "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.) K.S.A. 83-201(k). The terms "weights" and "measures" are not defined separately, but the definition of the term "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.) K.S.A. 83-201(a).

A "point-of-sale system" is defined as "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." (Emphasis added.) K.S.A. 83-201(l).

These terms are used inconsistently throughout the weights and measures statutes. Given the ambiguity of the terminology and its usage, this court must look to the design and language of the statute as a whole, as well as to external aids, that may reveal the intent of the legislature. Several canons of statutory construction support the conclusion that K.S.A. 83-219(a) was intended to apply to point-of-sale systems even after the 1996 amendment.

First, "[i]n construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]" Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001). "Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the...