13:45A-26C.2 Deceptive practices; automotive repairs

		§ 13:45A-26C.2 Deceptive practices; automotive repairs

		(a) Without limiting the prosecution of any other practices which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., the following acts or omissions shall be deceptive practices in the conduct of the business of an automotive repair dealer, whether such act or omission is done by the automotive repair dealer or by any mechanic, employee, partner, officer of member of the automotive repair dealer:

		1. Making or authorizing in any manner or by any means whatever any statement, written or oral, which is untrue or misleading, and which is known, or by which the exercise of reasonable care should be known, to be untrue or misleading.

		2. Commencing work for compensation without securing one of the following:

		i. Specific written authorization from the customer, signed by the customer, which states the nature of the repair requested or problem presented and the odometer reading of the vehicle; or

		ii. If the customer‘s vehicle is presented to the automotive repair dealer during other than normal working hours or by one other than the customer, oral authorization from the customer to proceed with the requested repair or problem presented, evidenced by a notation on the repair order and/or invoice of the repairs requested or problem presented, date, time, name of person granting such authorization, and the telephone number, if any, at which said person was contacted.

		3. Commencing work for compensation without either:

		i. One of the following:

		(1) Providing the customer with a written estimated price to complete the repair, quoted in terms of a not-to-exceed figure; or

		(2) Providing the customer with a written estimated price quoted as a detailed breakdown of parts and labor necessary to complete the repair. If the dealer makes a diagnostic examination, the dealer has the right to furnish such estimate within a reasonable period of time thereafter, and to charge the customer for the cost of diagnosis. Such diagnostic charge must be agreed to in advance by the customer. No cost of diagnosis which would have been incurred in accomplishing the repair shall be billed twice if the customer elects to have the dealer make the repair; or

		(3) Providing the customer with a written estimated price to complete a specific repair, for example, “valve job”; or

		(4) Obtaining from the customer a written authorization to proceed with repairs not in excess of a specific dollar amount. For the purposes of this subchapter, said dollar amount shall be deemed the estimated price of repairs; or

		(5) If the customer waives his right to a written estimate in a written statement, signed by the customer, obtaining from the customer oral approval of an estimated price of repairs, evidenced by a notation on the repair order or invoice of the estimated price of repairs, date, time, name of person approving such estimate, and the telephone number, if any, at which such person was contacted; or

		ii. If the customer‘s vehicle is presented to the automotive repair dealer during other than normal working hours or by one other than the customer, obtaining from the customer either:

		(1) A written authorization to proceed with repairs not in excess of a specific dollar amount. For the purposes of this subchapter, said dollar amount shall be deemed the estimated price of repairs; or

		(2) Oral approval of an estimated price of repairs evidenced by a notation on the repair order or invoice of the estimated price of repairs, date, time, name of person approving such estimate, and the telephone number, if any, at which such person was contacted.

		4. Failure to provide a customer with a copy of any receipt or document signed by him, when he signs it.

		5. Making deceptive or misleading statements or false promises of a character likely to influence, persuade or induce a customer to authorize the repair, service or maintenance of a motor vehicle.

		6. Charging the customer for work done or parts supplied in excess of any estimated price given, without the oral or written consent of the customer, which shall be obtained after it is determined that the estimated price is insufficient and before the work not estimated is done or the parts not estimated are supplied. If such consent is oral, the dealer shall make a notation on the repair order and on the invoice of the date, time, name of person authorizing the additional repairs and the telephone number called, if any, together with a specification of the additional parts and labor and the total additional cost.

		7. Failure to return replaced parts to the customer at the time of completion of the work provided that the customer, before work is commenced, requests such return, and provided that the parts by virtue of their size, weight, or other similar factors are not impractical to return. Those parts and components that are replaced and that are sold on an exchange basis, and those parts that are required to be returned by the automotive repair dealer to the manufacturer or distributor, are exempt from the provisions of this section.

		8. Failure to record on an invoice all repair work performed by an automotive repair dealer for a customer, itemizing separately the charges for parts and labor, and clearly stating whether any new, rebuilt, reconditioned or used parts have been supplied. A legible copy shall be given to the customer.

		9. The failure to deliver to the customer, with the invoice, a legible written copy of all guarantees, itemizing the parts, components and labor represented to be covered by such guaranty, or in the alternative, delivery to the customer of a guaranty covering all parts, components and labor supplied pursuant to a particular repair order. A guaranty shall be deemed false and misleading unless it conspicuously and clearly discloses in writing the following:

		i. The nature and extent of the guaranty including a description of all parts, characteristics or properties covered by or excluded from the guaranty, the duration of the guaranty and what must be done by a claimant before the guarantor will fulfill his obligation (such as returning the product and paying service or labor charges);

		ii. The manner in which the guarantor will perform. The guarantor shall state all conditions and limitations and exactly what the guarantor will do under the guaranty, such as repair, replacement or refund. If the guarantor or recipient has an option as to what may satisfy the guaranty, this must be clearly stated;

		iii. The guarantor‘s identity and address shall be clearly revealed in any documents evidencing the guaranty.

		10. Failure to clearly and conspicuously disclose the fact that a guaranty provides for adjustment on a pro rata basis, and the basis on which the guaranty will be prorated; that is, the time or mileage the part, component or item repaired has been used and in what manner the guarantor will perform. If adjustments are based on a price other than that paid by the customer, clear disclosure must be made of the amount. However, a fictitious price must not be used even where the sum is adequately disclosed.

		11. Failure to post, in a conspicuous place, a sign informing the customer that the automotive repair dealer is obliged to provide a written estimate when the customer physically presents his motor vehicle to the automotive repair dealer during normal working hours and, in any event, before work is commenced. In addition, copies of any receipt or document signed by the customer, a detailed invoice, a written copy of any guaranty and the return of any replaced parts that have been requested must be provided. The sign is to read as follows:

		“A CUSTOMER OF THIS ESTABLISHMENT IS ENTITLED TO:

		1. When a motor vehicle is physically presented during normal working hours and, in any event before work begins, a written estimated price stated either:

		(A) PRICE NOT TO EXCEED $ ..., and given without charge; or

		(B) As an exact figure broken down as to parts and labor. This establishment has the right to charge you for this diagnostic service, although if you then have the repair done here, you will not be charged twice for any part of such charge necessary to make the repair.

		(C) As an exact figure to complete a specific repair.

		2. For your protection, you may waive your right to an estimate only by signing a written waiver.

		3. Require that this establishment not start work on your vehicle until you sign an authorization stating the nature of the repair or problem and the odometer reading of your vehicle if you physically present the vehicle here during normal working hours.

		4. A detailed invoice stating charges for parts and labor separately and whether any new, rebuilt, reconditioned or used parts have been supplied.

		5. The replaced parts, if requested before work is commenced, unless their size, weight or similar factors make return of the parts impractical.

		6. A written copy of the guaranty."

		12. Nothing in this section shall be construed as requiring an automotive repair dealer to provide a written estimate if the dealer does not agree to perform the requested repair.

		13. Any other unconscionable commercial practice prohibited pursuant to N.J.S.A. 56:8-1 et seq.

		HISTORY

		HISTORY:

		As amended, R.1979 d.402, eff. October 12, 1979.

		See: 11 New Jersey Register 255(a), 11 New Jersey Register 581(a).

		Recodified from 13:45A-7.2 and amended by R.1995 d.618, effective December 4, 1995.

		See: 27 New Jersey Register 3566(a), 27 New Jersey Register 4899(b).

		CASE NOTES:

		Automobile repair shop committed “unlawful practice” under Consumer Fraud Act by providing only superficial details on credit card slips and invoice after work was completed. Jiries v. BP Oil, 294 N.J.Super. 225, 682 A.2d 1241 (L.1996).

		Finding of violation noted in beginning work without written authorization and estimate; Consumer Fraud Act mandates treble damages and attorney fees in a private action. Skeer v. EMK Motors, Inc., 187 N.J.Super. 465, 455 A.2d 508 (App.Div.1982).

		Regulation upheld. Levin v. Lewis, 179 N.J.Super. 193, 431 A.2d 157 (App.Div.1981).

		Violation found for failure to provide written estimate, obtain estimate waiver or repair authorization, and supplying and charging for work and parts in excess of verbal estimates without consent (also cited as N.J.A.C. 13:45A-7.1). Levin v. Lewis, 6 N.J.A.R. 85 (1980) affirmed 179 N.J.Super. 193, 431 A.2d 157.

		Chapter Notes

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Consumer Affairs Regs- bad car repair 13:45A-26C.1 Definitions

Consumer Affairs Regs- bad car repair

13:45A-26C.1 Definitions

		The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

		“Automotive repair dealer” means any person who, for compensation, engages in the business of performing or employing persons who perform maintenance, diagnosis or repair services on a motor vehicle or the replacement of parts including body parts, but excluding those persons who engage in the business of repairing motor vehicles of commercial or industrial establishments or government agencies, under contract or otherwise, but only with respect to such accounts.

		“Customer” means the owner or any family member, employee or any other person whose use of the vehicle is authorized by the owner.

		“Director” means the Director of the Division of Consumer Affairs.

		“Motor vehicle” means a passenger vehicle that is registered with the Division of Motor Vehicles of New Jersey or of any other comparable agency of any other jurisdiction, and all motorcycles, whether or not registered.

		“Repair of motor vehicles” means all maintenance and repairs of motor vehicles performed by an automotive repair dealer but excluding changing tires, lubricating vehicles, changing oil, installing light bulbs, batteries, windshield wiper blades and other minor accessories and services. No service or accessory to be installed shall be excluded for purposes of this rule if the Director determines that performance of the service or the installation of an accessory requires mechanical expertise has given rise to a high incidence of fraud or deceptive practices, or involves a part of the vehicle essential to its safe operation.

NJAC 13:45A-16.2 Unlawful practices

NJAC 13:45A-16.2 Unlawful practices

		(a) Without limiting any other practices which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., utilization by a seller of the following acts and practices involving the sale, attempted sale, advertisement or performance of home improvements shall be unlawful hereunder.

		1. Model home representations: Misrepresent or falsely state to a prospective buyer that the buyer‘s residential or noncommercial property is to serve as a “model” or “advertising job”, or use any other prospective buyer lure to mislead the buyer into believing that a price reduction or other compensation will be received by reason of such representations;

		2. Product and material representations: Misrepresent directly or by implication that products or materials to be used in the home improvement:

		i. Need no periodic repainting, finishing, maintenance or other service;

		ii. Are of a specific or well-known brand name, or are produced by a specific manufacturer or exclusively distributed by the seller;

		iii. Are of a specific size, weight, grade or quality, or possess any other distinguishing characteristics or features;

		iv. Perform certain functions or substitute for, or are equal in performance to, other products or materials;

		v. Meet or exceed municipal, state, federal, or other applicable standards or requirements;

		vi. Are approved or recommended by any governmental agency, person, firm or organization, or that they are the users of such products or materials;

		vii. Are of sufficient size, capacity, character or nature to do the job expected or represented;

		viii. Are or will be custom-built or specially designed for the needs of the buyer; or

		ix. May be serviced or repaired within the buyer‘s immediate trade area, or be maintained with replacement and repair parts which are readily available.

		3. Bait selling:

		i. Offer or represent specific products or materials as being for sale, where the purpose or effect of the offer or representation is not to sell as represented but to bait or entice the buyer into the purchase of other or higher priced substitute products or materials;

		ii. Disparage, degrade or otherwise discourage the purchase of products or materials offered or represented by the seller as being for sale to induce the buyer to purchase other or higher priced substitute products or materials;

		iii. Refuse to show, demonstrate or sell products or materials as advertised, offered, or represented as being for sale;

		iv. Substitute products or materials for those specified in the home improvement contract, or otherwise represented or sold for use in the making of home improvements by sample, illustration or model, without the knowledge or consent of the buyer;

		v. Fail to have available a quantity of the advertised product sufficient to meet reasonably anticipated demands; or

		vi. Misrepresent that certain products or materials are unavailable or that there will be a long delay in their manufacture, delivery, service or installation in order to induce a buyer to purchase other or higher priced substitute products or materials from the seller.

		4. Identity of seller:

		i. Deceptively gain entry into the prospective buyer‘s home or onto the buyer‘s property under the guise of any governmental or public utility inspection, or otherwise misrepresent that the seller has any official right, duty or authority to conduct an inspection;

		ii. Misrepresent that the seller is an employee, office or representative of a manufacturer, importer or any other person, firm or organization, or a member of any trade association, or that such person, firm or organization will assume some obligation in fulfilling the terms of the contract;

		iii. Misrepresent the status, authority or position of the sales representative in the organization he represents;

		iv. Misrepresent that the sales representative is an employee or representative of or works exclusively for a particular seller; or

		v. Misrepresent that the seller is part of any governmental or public agency in any printed or oral communication including but not limited to leaflets, tracts or other printed material, or that any licensing denotes approval by the governmental agency.

		5. Gift offers:

		i. Offer or advertise any gift, free item or bonus without fully disclosing the terms or conditions of the offer, including expiration date of the offer and when the gift, free item or bonus will be given; or

		ii. Fail to comply with the terms of such offer.

		6. Price and financing:

		i. Misrepresent to a prospective buyer that an introductory, confidential, close-out, going out of business, factory, wholesale, or any other special price or discount is being given, or that any other concession is made because of a market survey or test, use of materials left over from another job, or any other reason;

		ii. Misrepresent that any person, firm or organization, whether or not connected with the seller, is especially interested in seeing that the prospective buyer gets a bargain, special price, discount or any other benefit or concession;

		iii. Misrepresent or mislead the prospective buyer into believing that insurance or some other form of protection will be furnished to relieve the buyer from obligations under the contract if the buyer becomes ill, dies or is unable to make payments;

		iv. Misrepresent or mislead the buyer into believing that no obligation will be incurred because of the signing of any document, or that the buyer will be relieved of some or all obligations under the contract by the signing of any documents;

		v. Request the buyer to sign a certificate of completion, or make final payment on the contract before the home improvement is completed in accordance with the terms of the contract;

		vi. Misrepresent or fail to disclose that the offered or contract price does not include delivery or installation, or that other requirements must be fulfilled by the buyer as a condition to the performance of labor, services, or the furnishing of products or materials at the offered or contract price;

		vii. Mislead the prospective buyer into believing that the down payment or any other sum constitutes the full amount the buyer will be obligated to pay;

		viii. Misrepresent or fail to disclose that the offered or contract price does not include all financing charges, interest service charges, credit investigation costs, building or installation permit fees, or other obligations, charges, cost or fees to be paid by the buyer;

		ix. Advise or induce the buyer to inflate the value of the buyer‘s property or assets, or to misrepresent or falsify the buyer‘s true financial position in order to obtain credit; or

		x. Increase or falsify the contract price, or induce the buyer by any means to misrepresent or falsify the contract price or value of the home improvement for financing purposes or to obtain additional credit.

		7. Performance:

		i. Deliver materials, begin work, or use any similar tactic to unduly pressure the buyer into a home improvement contract, or make any claim or assertion that a binding contract has been agreed upon where no final agreement or understanding exists;

		ii. Fail to begin or complete work on the date or within the time period specified in the home improvement contract, or as otherwise represented, unless the delay is for reason of labor stoppage; unavailability of supplies or materials, unavoidable casualties, or any other cause beyond the seller‘s control. Any changes in the dates or time periods stated in a written contract shall be agreed to in writing; or

		iii. Fail to give timely written notice to the buyer of reasons beyond the seller‘s control for any delay in performance, and when the work will begin or be completed.

		8. Competitors:

		i. Misrepresent that the work of a competitor was performed by the seller;

		ii. Misrepresent that the seller‘s products, materials or workmanship are equal to or better than those of a competitor; or

		iii. Use or imitate the trademarks, trade names, labels or other distinctive marks of a competitor.

		9. Sales representations:

		i. Misrepresent or mislead the buyer into believing that a purchase will aid or help some public, charitable, religious, welfare or veterans’ organization, or misrepresent the extent of such aid or assistance;

		ii. Knowingly fail to make any material statement of fact, qualification or explanation if the omission of such statement, qualification or explanation causes an advertisement, announcement, statement or representation to be false, deceptive or misleading; or

		iii. Misrepresent that the customer‘s present equipment, material, product, home or a part thereof is dangerous or defective, or in need of repair or replacement.

		10. Building permits:

		i. No seller contracting for the making of home improvements shall commence work until he is sure that all applicable state or local building and construction permits have been issued as required under state laws or local ordinances; or

		ii. Where midpoint or final inspections are required under state laws or local ordinances, copies of inspection certificates shall be furnished to the buyer by the seller when construction is completed and before final payment is due or the signing of a completion slip is requested of the buyer.

		11. Guarantees or warranties:

		i. The seller shall furnish the buyer a written copy of all guarantees or warranties made with respect to labor services, products or materials furnished in connection with home improvements. Such guarantees or warranties shall be specific, clear and definite and shall include any exclusions or limitations as to their scope or duration. Copies of all guarantees or warranties shall be furnished to the buyer at the time the seller presents his bid as well as at the time of execution of the contract, except that separate guarantees or warranties of the manufacturer of products or materials may be furnished at the time such products or materials are installed.

		12. Home improvement contract requirements-writing requirement: All home improvement contracts for a purchase price in excess of $ 500.00, and all changes in the terms and conditions thereof shall be in writing. Home improvement contracts which are required by this subsection to be in writing, and all changes in the terms and conditions thereof, shall be signed by all parties thereto, and shall clearly and accurately set forth in legible form and in understandable language all terms and conditions of the contract, including, but not limited to, the following:

		i. The legal name and business address of the seller, including the legal name and business address of the sales representative or agent who solicited or negotiated the contract for the seller;

		ii. A description of the work to be done and the principal products and materials to be used or installed in performance of the contract. The description shall include, where applicable, the name, make, size, capacity, model, and model year of principal products or fixtures to be installed, and the type, grade, quality, size or quantity of principal building or construction materials to be used. Where specific representations are made that certain types of products or materials will be used, or the buyer has specified that certain types of products are to be used, a description of such products or materials shall be clearly set forth in the contract;

		iii. The total price or other consideration to be paid by the buyer, including all finance charges. If the contract is one for time and materials, the hourly rate for labor and all other terms and conditions of the contract affecting price shall be clearly stated;

		iv. The dates or time period on or within which the work is to begin and be completed by the seller;

		v. A description of any mortgage or security interest to be taken in connection with the financing or sale of the home improvement; and

		vi. A statement of any guarantee or warranty with respect to any products, materials, labor or services made by the seller.

		13. Disclosures and obligations concerning preservation of buyers’ claims and defenses:

		i. If a person other than the seller is to act as the general contractor or assume responsibility for performance of the contract, the name and address of such person shall be disclosed in the oral or written contract, except as otherwise agreed, and the contract shall not be sold or assigned without the written consent of the buyer;

		ii. No home improvement contract shall require or entail the execution of any note, unless such note shall have conspicuously printed thereon the disclosures required by either State law (N.J.S.A. 17:16C-64.2 (consumer note)) or Federal law ( 16 C.F.R. section 433.2) concerning the preservation of buyers’ claims and defenses.

		HISTORY

		HISTORY:

		Petition for Rulemaking: Denied.

		See: 21 N.J.R. 3565(b).

		Amended by R.1990 d.125, effective February 20, 1990.

		See: 21 N.J.R. 3433(b), 22 N.J.R. 662(d).

		Threshold amount at (a)12. changed from $ 25.00 to $ 100.00.

		Amended by R.1995 d.618, effective December 4, 1995.

		See: 27 N.J.R. 3566(a), 27 N.J.R. 4899(b).

		Petition for Rulemaking: Denied.

		See: 31 N.J.R. 2983(a).

		Amended by R.2004 d.418, effective November 1, 2004 (operative November 9, 2004).

		See: 36 N.J.R. 3506(a), 36 N.J.R. 4984(a).

		In (a), substituted "$ 500.00” for "$ 200.00” following “in excess of” and inserted “and in understandable language” following “in legible form” in he introductory paragraph of 12.

		LAW REVIEW AND JOURNAL COMMENTARIES —

		Predatory lending recognized as a basis for civil-rights claims. Mary P. Gallagher, 165 N.J.L.J. 405 (2001).

		Consumer Fraud Act-Attorneys’ Fees. Steven P. Bann, 138 N.J.L.J. No. 3, 45 (1994).

		Case Notes

		Air conditioning subcontractor was not subject to provisions of Consumer Fraud Act (CFA) in suit against homeowner to recover full contract price for installation of air conditioning units into existing house, where owner engaged services of an architect to prepare plans and a general contractor, who hired the subcontractor, homeowner left it to the general contractor to make the choices as to who would perform air conditioning portion of project, and subcontractor dealt directly with homeowner for payment only, at general contractor‘s request, when price dispute arose, after the work had been completed. Messeka Sheet Metal Co., Inc. v. Hodder, 368 N.J. Super. 116, 845 A.2d 646.

		Homeowner was equitably estopped from invoking regulation adopted under Consumer Fraud Act requiring all home improvement contracts in excess $ 200 to be in writing; it was the homeowner who insisted that a written contract was unnecessary and because homeowner was in home improvement business and should have known applicable regulations. D‘Egidio Landscaping v. Apicella, 337 N.J.Super. 252 (A.D.2001).

		Homeowner was not entitled to treble damages for violation of consumer fraud regulation where there was no evidence of damages flowing from failure to specify starting and completion dates. Branigan v. Level on the Level, Inc., 326 N.J.Super. 24, 740 A.2d 643 (N.J.Super.A.D. 1999).

		Unoccupied property having both residential and commercial uses qualified as “residential or noncommercial property” under Consumer Fraud Act; Act precluded enforcement of alleged oral renovation contract between electrical subcontractor and shareholder of property‘s corporate owner. Marascio v. Campanella, 298 N.J.Super. 491, 689 A.2d 852 (A.D.1997).

		“Unlawful” within meaning of Consumer Fraud Act; no person misled or deceived. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994).

		Merchant who agreed to perform home improvement work on residence engaged in “unlawful acts”. Cox v. Sears Roebuck& Co., 138 N.J. 2, 647 A.2d 454 (1994).

		Violation of specific regulation; strict liability. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994).

		Homeowner sustained “ascertainable loss” within meaning of the Consumer Fraud Act. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994).

		Property was residential in character under Consumer Fraud Act, even though part was used as a tavern and liquor store. Blake Const. v. Pavlick, 236 N.J.Super. 73, 564 A.2d 130 (L.1989).

		Regulations did not exceed Consumer Fraud Act authority. Blake Const. v. Pavlick, 236 N.J.Super. 73, 564 A.2d 130 (L.1989).

		Home improvement contract did not comply with Consumer Fraud Act and was enforceable. Blake Const. v. Pavlick, 236 N.J.Super. 73, 564 A.2d 130 (L.1989).

		Finding of N.J.A.C. 13:45A-16.2(a)6v violation upheld; total recovery under the Consumer Fraud Act for compensatory damages in small claims division court may not exceed $ 1,000; judgment reduced to limit. Wisser v. Kaufman Carpet Co., Inc., 188 N.J.Super. 574, 458 A.2d 119 (App.Div.1983).

		Violation of Consumer Fraud Act. Swiss v. Williams, 184 N.J.Super. 243, 445 A.2d 486 (Dist. Ct. of Mercer Co.1982).