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Monday, October 14, 2019

Ohio SC: No business-on-business violence

By John O'Brien | Sep 7, 2007

Justice Maureen O'Connor

COLUMBUS, Ohio - Businesses may be sued, as long as it is not by other businesses, under the state's Consumer Sales Practice Act, the Ohio Supreme Court unanimously decided Wednesday.

The justices' ruling in Culbreath v. Golding Enterprises., L.L.C., made two determinations. First, the recipient of an unsolicited fax advertisement may sue the sender for violating the federal Telephone Consumer Protection Act but does not have a private right of action against the sender if it violates technical regulations (including the name and fax number of the sender and the date and time of the transmission).

Second, the Court wrestled with the definition of "individual" and ultimately held that only natural persons, not businesses, are eligible to seek recovery from another business under the OCSPA.

"We are mindful of the annoyance caused by an unsolicited fax, and we certainly can appreciate why Congress said 'enough is enough' when it adopted the TCPA," Justice Maureen O'Connor wrote. "Congress, however, stopped short of giving private citizens the right to bring suit for technical violations of the TCPA, and we are not to create a private right of action where Congress has not expressly authorized one.

"Finally, there is nothing in the OCSPA that supports a conclusion that a business entity has standing to bring suit for receiving a junk fax that is not shown to be unfair, deceptive, or unconscionable."

Dockside Dolls, a night club in Columbus, sent a promotional faxes to several Ohio businesses that offered free admission and detailed the availability of nude female dancers. One of the faxes made it to the law firm Culbreath and Associates, and attorney Stanlee Culbreath filed suit, alleging violations of the OCSPA.

The Franklin County Court of Common Pleas granted Culbreath summary judgment on his claim for transmission of an unauthorized fax, but ruled in favor of the club owners on the alleged violations of the TCPA and OCSPA.

The court ruled the fax was sent to a machine owned by a law firm, not an individual, so Culbreath could not make a claim for recovery. Culbreath appealed twice with no success.

O'Connor even cited a dictionary in the analysis.

"Codified in R.C. Chapter 1345, the OCSPA defines 'consumer transaction' as 'a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things,'" O'Connor wrote.

"Although 'individual' is not defined in this section, it is among several other classifications, including partnership and association, which are included in the definition of 'person' in R.C. 1345.01(B)... In the absence of a statutory definition, we must apply the ordinary and common understanding of the term 'individual.' R.C. 1.42.

"Applying this principle, an 'individual" is commonly understood to mean a single person or human being, in contrast to a group or institution. Webster's Third New International Dictionary (1986) 1152."

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