HOME SOLICITATION SALES ACT

Holding that the Ohio legislature intended a broad meaning for the term "home

solicitation sale."

A Second District Court of Appeals Case (Montgomery County) wherein the

Court gives a detailed history of the Home Solicitation Sales Act and how courts

are to apply the act.

The basis for treble or statutory damages is the "direct solicitation

rule, found at OAC 109:4-3-11, which incorporates the entire Home

Solicitation Sales Act. Thus, any violation of the HSSA violates this

rule as well, and the consumer should receive treble or statutory

damages. OHIO CONSUMER LAW, 1996 ed. at 137.

3. "Home solicitation is broadly defined at R.C. 1345.21(A). Not only does it cover most door-to-door sales, but it also covers many telephone sales and sales conducted by mail. Ohio Consumer Law, 1998 ed., Westlaw p. 124.

4. Transactions in which the buyer's agreement is made at a place other than the seller's place of business, e.g., a motel or a one-time market, are also covered. Recent amendments to the FTC rule (16 C.F.R. Section 429.0) provide specific examples of the kinds of sales locations covered by that rule, "e.g., sales at the buyer's residence or at facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds and restaurants, or sales at the buyer's workplace or in dormitory lounges." 60 Fed. Reg. 54,186.

5. COVERAGE: The term "consumer goods or services, is defined at R.C. 1345.21(E) as "goods or services purchased, leased, or rented primarily for personal, family, or household purposes, including courses or instruction or training regardless of the purpose for which they are taken."

6. COVERAGE: Pursuant to R.C. 1345.21(A)(4), a sale is initiated by the buyer when the buyer acts in response to advertisement in newspapers magazines, catalogues, radio or television. However, when the buyer responds to mail or telephone solicitation, the sale is considered seller initiated. R.C. 1345.21(A)(2).

 

B. 1345.22 Buyer’s Right to Cancel; Notice

1. The requirements for written notice to cancel are set forth at R.C.

1345.23(B)(1) which provides that a copy of the home solicitation sales contract

must contain a statement in "substantially the following form":

You, the buyer, may cancel this transaction at any time prior to

>midnight of the third business day after the date of this transaction

See attached notice of cancellation for an explanation of this

right.

2. The above statement must meet the following format requirements of R.C.

1345.23(B)(1):

(1) It must appear clearly and conspicuously;

(2) It must be in bold-face type

(3) It must be in at least 10 point type face

(4) It must be in immediate proximity to the space reserved in the contract

for the signature of the buyer.

3. R.C. 1345.23(B)(2) provides that in every home solicitation sale, the seller

must give a second written notice of his right to cancel: the "notice of cancel- lation." It must be (1) given to the buyer in duplicate; (2) attached to the, but

easily detachable from, the contract signed by the buyer; (3) printed in ten

point type; and (4) in the same language as that used in the contract.

4. In addition to the two (2) written notices, R.C. 1345.23(D)(2) requires

the seller to inform each buyer orally, at the time the contract is signed, that

they have a right to cancel. The requirement of an oral notice was enforced

in Celebrezze v. IWS, Inc. (C.P. Champaign, 1-28-83), 1983 WL 197507,

No. 82-CIV-145.

1. REQUIREMENT OF BUYER'S SIGNATURE: The written agreement must

be presented to and signed by the buyer. This requirement was enforced in

Brown v. Swan (C.P. Franklin, 11-30-97), 1977 WL 46023, No. 77CV-08-3303.

2. The seller must leave the buyer a copy of the written agreement signed by the

seller. Sellers were enjoined to obey this mandate in Brown v. Banks (C.P.,

Cuyahoga, 3-12-76), 1976 WL 38808, No. 944618, and Brown v. Associated

Remodelers, Inc. (C.P. Summit, 8-10-76), No. 75 9 2176. Brown v. Banks also

found that failure to abide by these rules constitutes a violation of the Consumer

Sales Practices Act.

3. R.C. 1345.23 sets explicit and exact requirements for the consumer to receive both oral and written notice of the right to cancel. The written requirement has been enforced in many cases, including, Brown v. Koonan (C.P. Greene 7-26-76), 1976 WL 38807, Brown v. Decorator Carpets (C.P. Stark 10-4-76), No. 76-516, Brown v. Foela's Fire Serv. Co. (C.P. Cuyahoga 10-3-77), 1977 WL 46020, No. 943906, and Brown v. Associated Remodelers, Inc. (C.P. Summit, 8-10-76), No. 75 9 2176.

4. In Brown v. Foela's Fire Serv.Co. and Brown v. Banks, (citations above) the court found that failure to include the required notices in the contract constituted a violation of the Ohio Consumer Sales Practices Act.

 

1345. 28 Deceptive sales act or practice

1. Bramley’s Water Conditioning v. Hagen (1985), 27 Ohio App.3d 300,

501 N.E.2d 39.

Holding: By virtue of O.R.C. 1345.28, any violation of the Home

Solicitation Sales Act also constitutes a deceptive act or practice

prohibited by the Consumer Sales Practices Act under O.R.C.

1345.02

2. By virtue of R.C. 1345.28, any violation of the Home Solicitation Sales Act also constitutes a deceptive act or practice prohibited by the Consumer Sales Practices Act under R.C. 1345.02. Bramley's Water Conditioning v. Hagen (1985), 27 Ohio App.3d 300, 501 N.E.2d 38; Rosenfield v. Tombragel (1st Dist. Ct. App., Hamilton 12-31-96) 1996 WL 741988, No. C-950871.

3. Ohio Consumer Law, 1998 ed, Westlaw p. 141, If the seller's act violates a ruling in a decision filed with the Attorney General, then the consumer has an independent basis for treble or statutory damages under R.C. 1345.09(B).