[HISTORY: Adopted by the Town Board of the
Town of Babylon 4-6-1976 by L.L.
No. 2-1976. Amendments noted where applicable.]
A.Â
It is the purpose of the Town Board in enacting this
chapter to safeguard and protect the consumer against any person who
shall engage in a deceptive or unconscionable trade practice in the
sale, lease, rental or loan or in the offering for sale, lease, rental
or loan of any consumer goods or services or in the collection of
consumer debts.
B.Â
The Town Board hereby establishes a Consumer Protection
Board to protect the consumer against these practices.
As used in this chapter, the following terms
shall have the meanings indicated:
The Consumer Protection Board.
A purchaser or lessee or prospective purchaser or lessee
of the consumer goods or services or consumer credit, including a
coobligator or surety.
Those goods, services, credit and debts which are primarily
for personal, household or family purposes.
Any false, falsely disparaging or misleading oral or written
statement, visual description or other representation of any kind
made in connection with the offering for sale, lease, rental or loan
or in connection with the offering for sale, lease, rental or loan
of consumer goods or services or in the extension of consumer credit
or in the collection of consumer debts, which has the capacity, tendency
or effect of deceiving or misleading consumers. "Deceptive trade practices"
include but are not limited to:
Representations that goods or services have
sponsorship, approval, accessories, characteristics, ingredients,
uses, benefits or quantities that they do not have; the supplier has
a sponsorship, approval, status, affiliation or connection that he
does not have; goods are original or new if they are deteriorated,
altered, reconditioned, reclaimed or secondhand; or goods or services
are of a particular standard, quality, grade, style or model if they
are of another.
The use of any oral or written representation
of exaggeration, innuendo or ambiguity as to a material fact or failure
to state a material fact, if such use deceives or tends to deceive.
Disparaging the goods, services or business
of another by false or misleading representations of material facts.
Offering goods or services with intent not to
sell them as offered.
Offering goods or services with intent not to
supply reasonable expectable public demand, unless the offer discloses
to limitation of quantity.
Making false or misleading representations of
fact concerning the reasons for, existence of or amounts of price
reductions or price in comparison to prices of competitors or one's
own price at a past or future time.
Stating that a consumer transaction involves
consumer rights, remedies or obligations that it does not involve.
Stating that services, replacements or repairs
are needed if they are not.
Falsely stating the reasons for offering or
supplying goods or services at scale discount prices.
A seller, lessor, creditor or any other person who makes
available, either directly or indirectly, goods, services or credit
to consumers. "Merchant" shall include manufacturers, wholesalers
and others who are responsible for any act or practice prohibited
by this chapter.
Any act or practice in connection with the sale, lease, rental
or loan or in connection with the offering for sale, lease, rental
or loan of any consumer goods or services; or in the extension of
consumer credit; or in the collection of consumer debts which unfairly
takes advantage of the lack of knowledge, ability, experience or capacity
of a consumer or results in a gross disparity between the value received
by a consumer and the price paid, to the consumer's detriment, provided
that no act or practice shall be deemed unconscionable under this
chapter unless declared unconscionable and described with reasonable
particularity in a local law or in a rule or regulation adopted by
the Town Board. Such rules and regulations shall consider, among other
factors:
Knowledge by merchants engaging in the act or
practice of the inability of consumers to receive properly anticipated
benefits from the goods or services involved.
Gross disparity between the price of goods or
services and their value measured by the price at which similar goods
or services are readily obtained by other consumers.
The fact that acts or practices may enable merchants
to take advantage of the inability of consumers reasonably to protect
their interests by reason of physical or mental infirmities, illiteracy
or inability to understand the language of the agreement, ignorance
or lack of education or similar factors.
The degree to which terms of the transaction
require consumers to waive legal rights.
The degree to which terms of the transaction
require consumers to jeopardize money or property beyond the money
or property immediately at issue in the transaction.
Definitions of unconscionability in statutes,
regulations, rulings and decisions of legislative or judicial bodies
in this state or elsewhere.
The Board may submit to the Town Board for adoption
such rules and regulations as may be necessary to effectuate the purposes
of this chapter, including regulations defining specific deceptive
or unconscionable trade practices. Such rules and regulations may
supplement but shall not be inconsistent with the rules, regulations
and decisions of the Federal Trade Commission and the federal courts
in interpreting the provisions of Section 5(a)(1), or the Federal
Trade Commission Act 15 U.S.C. 45(a)(1), or the decisions of the courts
interpreting General Business Law § 350 and Uniform Commercial
Code § 2-302.
Deceptive trade practice and unconscionable
trade practice in the conduct of any business, trade or commerce or
in the furnishing of any service in the Town of Babylon is hereby
declared unlawful.
[Amended 10-7-2003 by L.L. No. 20-2003; 4-27-2022 by L.L. No. 10-2022]
A.Â
The violation of any provision of this chapter or
of any rule or regulation promulgated hereunder shall be punishable,
upon proof thereof, by the payment of a civil penalty in the sum of
not less than $250 nor more than $1,500 to be recovered in a civil
action in a court of competent jurisdiction.
B.Â
In addition, the violation of any provision of this
chapter or of any rule or regulation promulgated hereunder shall be
an offense punishable, upon conviction thereof, by a fine of not less
than $2,500 nor more than $5,000. Any person or entity found by the
Bureau of Administrative Adjudication to have knowingly violated this
chapter or any rule of regulation promulgated hereunder shall likewise
be subject to a monetary penalty of not less than $2,500 nor more
than $5,000.
C.Â
Upon a finding by the Board of repeated, multiple
or persistent violations of any provision of this chapter or of any
rule or regulation promulgated hereunder, the Town may, except as
hereinafter provided, bring an action to compel the defendant or defendants
in such action to pay into court all moneys, property or other things
or proceeds thereof received as a result of such violations; to direct
that the amount of money or the property or other things recovered
be paid into an account established pursuant to the applicable sections
of the Civil Practice Law and Rules, from which shall be paid over
to any and all persons who purchased the goods or services during
the periods of violation such sum as was paid by them in a transaction
involving the prohibited acts or practices, plus any costs incurred
by such claimants in making and pursuing their complaints, provided
that if such claims exceed the sum recovered into the account, the
awards to consumers shall be prorated according to the value of each
claim proved; to direct that the defendant or defendants, upon conviction,
pay to the Town the costs and disbursements of the action and pay
to the Town for the use of the Board the costs of their investigation
leading to the judgment or, if not recovered from defendants, such
costs are to be deducted by the Town from the grand recovery before
distribution to the consumers; and to direct that any money, property
or other things in the account and unclaimed by any persons with such
claims within one year from the creation of the account be paid to
the Town to be used by the Board for further consumer law enforcement
activities. Consumers making claims against an account established
pursuant to this subsection shall prove their claims to the Board
in a manner and subject to procedures established by the Board for
that purpose. The procedures established in each case for proving
claims shall not be employed until approved by the court, which shall
also establish, by order, the minimum means by which the Board shall
notify potential claimants of the creation of the account. Restitution
pursuant to a judgment in an action under this subsection shall bar,
pro tanto, the recovery of any damages in any other action against
the same defendant or defendants on account of the same acts or practices
which were the basis for such judgment up to the time of the judgment,
by any person to whom such restitution is made. Restitution under
this subsection shall not apply to transactions entered into more
than five years prior to commencement of an action by the Board. Before
instituting an action under this subsection, the Board shall give
the prospective defendant written notice of the possible action and
an opportunity to demonstrate, in writing, within five days, that
no repeated, multiple or persistent violations have occurred.
D.Â
Whenever any person has engaged in any acts or practices
which constitute violations of any provision of this chapter or of
any rule or regulation promulgated thereunder, the Town may make application
to the Supreme Court for an order enjoining such acts or practices
and for an order granting a temporary or permanent injunction, restraining
order or other order enjoining such acts or practices.
E.Â
To establish a cause of action under this section,
it need not be shown that consumers are being or were actually injured.
A.Â
There is hereby established in and for the Town a
Consumer Protection Board consisting of five members appointed by
the Town Board, one of whom shall be designated by the Town Board
as Chairman.
B.Â
Three members, including the Chairman, shall constitute
a quorum of the Board for the transaction of business, but no recommendation
for the modification, suspension or revocation of a license shall
be made except by a majority vote of the entire Board.
C.Â
Board members shall serve voluntarily without salary
or compensation.
D.Â
Services of any member of the Board may be terminated
voluntarily or by the discretion of the Town Board.
A.Â
The Board, in the performance of said functions, shall
be authorized to hold public and private hearings, administer oaths,
take testimony, serve subpoenas, receive evidence; and to receive,
administer, pay over and distribute moneys collected in and as a result
of actions brought for violations of laws relating to deceptive or
unconscionable trade practice or of related laws; and to promulgate,
amend and modify procedures and practices governing such proceedings;
and to recommend to the Town Board legislation, amendments and modifications
necessary to carry out the powers and duties of the Department.
B.Â
Meetings of the Board shall be held monthly or as
often as it is deemed necessary in the opinion of the Chairman or
a majority of the Board for the effective discharge of its business.
A.Â
In lieu of instituting or continuing an action pursuant
to this chapter, the Board may accept written assurance of discontinuance
of any act or practice in violation of this chapter from the person
or persons who have engaged in such acts or practices. Such assurance
may include a stipulation for voluntary payment by the violator of
the costs of investigation by the Board, but may also include a stipulation
for the restitution by the violator to consumers of money, property
or other things received from them, in connection with a violation
of this chapter, including money necessarily expended in the course
of making and pursuing a complaint to the board. All settlements shall
be made a matter of public record. If such stipulation applies to
consumers who have been affected by the violator's practices, but
have not yet complained to the Board, the assurance must be approved
by the court which shall direct the minimum means by which potential
claimants shall be notified of the stipulation. A consumer need not
accept restitution pursuant to such a stipulation; his acceptance
shall bar recovery of any other damages in any action by him against
the defendant or defendants on account of the same acts or practices.
B.Â
Violation of an assurance entered into pursuant to
this section shall be treated as a violation of this chapter and shall
be subject to all the penalties provided therefor.
