State ex rel. Ryles v. Meredith Chevrolet, Inc., 54590

• Decision Date: 03 February 1978
• Docket Number: No. 2,No. 54590,54590,2
• Citation: 145 Ga.App. 8,244 S.E.2d 15
• Parties: STATE of Georgia ex rel. Tim RYLES, Administrator, v. MEREDITH CHEVROLET, INC., et al
• Court: Georgia Court of Appeals

Page 15

244 S.E.2d 15

145 Ga.App. 8

STATE of Georgia ex rel. Tim RYLES, Administrator, v. MEREDITH CHEVROLET, INC., et al.

No. 54590.

Court of Appeals of Georgia,Division No. 2.

Feb. 3, 1978.

Rehearing Denied Feb. 22, 1978.

Arthur K. Bolton, Atty. Gen., Victor M. Baird, Asst. Atty. Gen., Atlanta, for appellant.

Smith & Shiver, Truett Smith, Elberton, Troutman, Sanders, Lockerman & Ashmore, William G. Vance, Frederick E. Link, Atlanta, for appellees.

SHULMAN, Judge.

Appellant brought this action under the Fair Business Practices Act of 1975, Ga.L.1975, p. 376, et seq. (Code Ann. § 106-1201, et seq.) (hereinafter, "FBPA"), alleging that appellees violated the Act by "rolling back" the odometers (changing the reading on the odometer to show fewer miles of operation than have actually occurred) of 78 cars which they sold at private (not open to the general public) auction to retail car dealers. It has been stipulated that no consumers participated directly in these sales by appellees and, for the purposes of this appeal, that appellees did roll back the odometers of the cars in question. This appeal is from a grant of summary judgment for appellees.

1. Although the basis of the grant of summary judgment was a holding that the FBPA is not applicable to transactions between dealers, appellees assert that there are two additional reasons for which the judgment should be sustained.

A. Code Ann. § 106-1205(c) provides that the administrator ". . . shall refer all complaints or inquiries concerning conduct specifically approved or prohibited by (certain enumerated departments) or other appropriate agency or official of this State to that agency or official for initial investigation and corrective action other than litigation." The licensing and regulation of automobile dealers, which appellees are, is entrusted to the Georgia Franchise Practices Commission, which has the authority to censure licensees or suspend or revoke their licenses for enumerated wrongdoings. Code Ann. § 84-6601, et seq. Appellees insist that the admitted failure of the Administrator to make a referral in this case constitutes a bar to the suit because the language of the section is mandatory. We agree that the language is mandatory, but the conduct complained of here has not been ". . . specifically approved or prohibited . . ." by the Franchise Practices Commission. The conduct is made unlawful by an act of our legislature: Ga.L.1975, pp. 754, 755 (Code Ann. § 68-1828(a)). Since the conduct involved here does not fall within the category referred to in § 5(c), there was no requirement that the Administrator refer the complaint or inquiry.

B. Section 7(b) of the FBPA (Code Ann. § 106-1207(b)) provides that the administrator ". . . shall, before initiating any legal proceedings as provided in this section, give notice in writing that such proceedings are contemplated and allow such person a reasonable opportunity to appear before the administrator and execute an assurance of voluntary compliance as in this Chapter provided." In the order granting summary judgment, the trial court found that appellees had tendered an assurance of voluntary compliance which was rejected by the Administrator as inadequate. Appellees contend that § 7(b) is mandatory and that the Administrator had no authority to reject their assurance. This contention is unavailing when the section quoted above is considered along with § 12 of the Act (Code Ann. § 106-1212): "In the administration of this Chapter, the administrator may accept an assurance of voluntary compliance with respect to any act or practice deemed to be violative of the Chapter from any person who has engaged or was about to engage in such act or practice." (Emphasis supplied.) Appellees submit that the permissive wording of this section places it in direct conflict with the mandatory provisions of § 7(b) and that this court should interpret § 12 to be mandatory as well. We disagree.

Adoption of appellees' proposed construction would render § 12 meaningless. "Every part of a statute must be reviewed in connection with the whole to harmonize all parts where practicable, it being presumed that the legislature did not intend for any part of a statute to be without meaning. (Cit.)" City of Gainesville v. Smith, 121 Ga.App. 117, 119, 173 S.E.2d 225, 226. Although the legislature provided for procedures other than litigation (see, e. g., FBPA §§ 5(c), 7(b), and 10(b)) to promote the stated objective that the proscribed conduct ". . . be swiftly stopped . . ." (FBPA § 1(b)), we will not presume that the legislature expected all alleged malefactors to quickly reform themselves upon notice that their conduct had been called into question. If the legislature had chosen to repose so much confidence in the efficacy of administrative procedures, surely they would not have bothered to provide the administrator with the power to bring suit. See FBPA § 7, § 15.

We hold that the reasonable interpretation of the scheme of assurances of voluntary compliance contained in the FBPA is that the administrator must provide an opportunity to execute such an assurance but that he may reject an assurance he deems, in the exercise of his discretion, to be inadequate. The record here clearly shows that the Administrator exercised his discretion. "The law is well settled that, where public officials 'are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen.' (Cit.)" Hudspeth v. Hall, 113 Ga. 4, 7, 38 S.E. 358, 359. Since appellees' motion for summary judgment did not address the issues of fraud, corruption or abuse of discretion, the Administrator's rejection of appellees' assurance of voluntary compliance could not have served as a basis for summary adjudication for appellees.

2. Having disposed of the collateral issues appellees asserted as justification for summary judgment, we turn to consideration of the primary issue of this case: whether the conduct complained of here was within the scope of the FBPA. The trial court ruled that it was not, and we affirm that judgment.

In order for conduct to be actionable under the FBPA, it must be within that class of conduct made unlawful by Code Ann. § 106-1203(a): "Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce . . ." Before determining whether the acts or practices are unfair or deceptive, the inquiry must be directed to the issue of whether the particular activity is within the regulatory scope of the Act, i. e., whether it occurred ". . . in the conduct of consumer transactions and consumer acts or practices . . ."

" (T)he FBPA is no panacea for the congenital ills of the marketplace . . ." Rothschild, "A Guide to Georgia's Fair Business Practices Act of 1975," 10 Ga.L.R. 917 (1976). The legislature has evidenced a clear intent to limit the scope of the Act to the consumer market. The model act on which Code Ann. Ch. 106-12 was based extended its coverage to all commercial dealings,...