402 N.E.2d 527
Nos. 79-159 and 79-178Supreme Court of Ohio.
Decided April 2, 1980.
Consumer Sales Practices Act — Alleged violations — Attorney General’s prior request for assurance of voluntary compliance — R.C. 1345.06 — Not required, when.
APPEALS from the Court of Appeals for Montgomery County.
The facts necessary for the proper understanding of the background of these appeals are set out in Brown v. Borchers Ford (1978), 53 Ohio St.2d 171,[1] in which this court remanded the cause to the Court of Appeals to hear and decide the issue raised therein.
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In response to that remand, the Court of Appeals reversed its earlier decisions and held that the request-for-voluntary-compliance provision of R.C. 1345.06[2]
does not apply in a case which is independently initiated by the Attorney General.[3]
The cause is again before this court pursuant to our allowance of motions to certify the record.
“If, by his own inquiries or as a result of complaints, the director of commerce has probable cause to believe that a supplier has engaged, is engaging, or preparing to engage, in an act or practice that violates sections 1345.01 to 1345.13 of the Revised Code, he may request the attorney general to investigate. For this purpose the attorney general may administer oaths, subpoena witnesses, adduce evidence, and require the production of relevant matter.
“***
“The attorney general may terminate an investigation under this section upon acceptance of a written assurance of voluntary compliance from a supplier suspected of violation. Unless there is reason to believe that the supplier has or is about to remove himself or any of his property from the state, the attorney general shall request such an assurance from the supplier, in writing, at least thirty days prior to commencing an action under section 1345.07 of the Revised Code. Where an injunction is the only relief sought, such thirty-day period does not apply. Acceptance of an assurance may be conditioned upon an undertaking to reimburse or to take other appropriate corrective action with respect to identifiable consumers damaged by an alleged violation of sections 1345.01 to 1345.13 of the Revised Code. An assurance of compliance given by a supplier is not evidence of violation of such sections.”
“(A) The attorney general may, and in consumer transaction cases referred to him by the director of commerce, shall:
“(1) Bring an action to obtain a declaratory judgment that an act or practice violates section 1345.02 or 1345.03 of the Revised Code, or to enjoin a supplier who is violating or threatening to violate such sections. On motion of the attorney general, or on its own motion, the court may impose a penalty of not more than five thousand dollars for each day of violation of a temporary or permanent injunction issued under this section.”
Mr. William J. Brown, attorney general, Mr. Michael E. Zatezalo, Mr. James J. Martin, Ms. Barbara K. Roman and Mr. Robert S. Tongren, for appellee.
Coolidge, Wall, Matusoff, Womsley Lombard Co., L.P.A., Mr. Christopher H. Hoving and Mr. Roger L. Makley, for appellant Borchers Ford, Inc.
Messrs. Slicer, Hall Slicer and Mr. David L. Hall, for appellants White-Allen Chevrolet, Inc., et al.
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Per Curiam.
The Court of Appeals found that the issue before it was whether the Attorney General was required to request assurance of voluntary compliance prior to independently instituting this action for alleged violation of R.C. 1345.01 et seq. The court determined that the only relief sought by the Attorney General in his complaint was an injunction. For that reason, the Court of Appeals held, “the Attorney General was not required to request assurance of voluntary compliance prior to filing this action,” and the trial court erred in dismissing the complaint.[4]
We agree. R.C. 1345.06 clearly provided that, where injunction is the sole relief sought, prior request for written assurance of voluntary compliance is not required. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, LYNCH, LOCHER and HOLMES, JJ., concur.
LYNCH, J., of the Seventh Appellate District, sitting for SWEENEY, J.
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