[HISTORY: Adopted by the Town Board of the Town of Babylon 4-6-1976 by L.L. No. 2-1976. Amendments noted where applicable.]
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.
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.
- CONSUMER GOODS, SERVICES, CREDIT AND DEBTS
- Those goods, services, credit and debts which are primarily for personal, household or family purposes.
- DECEPTIVE TRADE PRACTICE
- 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:
- A. 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.
- B. 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.
- C. Disparaging the goods, services or business of another by false or misleading representations of material facts.
- D. Offering goods or services with intent not to sell them as offered.
- E. Offering goods or services with intent not to supply reasonable expectable public demand, unless the offer discloses to limitation of quantity.
- F. 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.
- G. Stating that a consumer transaction involves consumer rights, remedies or obligations that it does not involve.
- H. Stating that services, replacements or repairs are needed if they are not.
- I. 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.
- UNCONSCIONABLE TRADE PRACTICE
- 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:
- A. 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.
- B. 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.
- C. 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.
- D. The degree to which terms of the transaction require consumers to waive legal rights.
- E. 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.
- F. 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.
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.
[Amended 10-7-2003 by L.L. No. 20-2003]
The knowing violation of any provision of this chapter or of any rule or regulation promulgated hereunder shall be punishable, upon conviction thereof, by the payment of a civil penalty in the sum of $2,500 or as a violation for which a fine in the sum of $5,000 shall be imposed, or both.
[Amended 10-7-2003 by L.L. No. 20-2003]
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.
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.
To establish a cause of action under this section, it need not be shown that consumers are being or were actually injured.
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.
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.
Board members shall serve voluntarily without salary or compensation.
Services of any member of the Board may be terminated voluntarily or by the discretion of the Town Board.
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.
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.
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.
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.