State v. DeCoster

WATHEN, Chief Justice,

with whom LIPEZ, Justice, joins, concurring in part and dissenting in part:

I agree with the Court that there is no clear error in the Superior Court’s decision that defendant violated the Maine Civil Rights Act and that the issuance of an injunction was within the court’s discretion.

I respectfully dissent, however, from the conclusion that the Unfair Trade Practices Act (UTPA) is not applicable to the relationship between DeCoster and the workers because they are his employees. The fact that the relationship between DeCoster and the workers is not only a landlord-tenant relationship, but also an employer-employee relationship does not remove the transaction from the protection of the UTPA.1 DeCoster’s workers, although employees, are tenants under Maine law and this dispute occurred in the context of the parties’ landlord-tenant relationship. Having declined to create a separate category for “tenancies incident to employment” with respect to property law and the Civil Rights Act, it is particularly illogical to fashion an identical categorical exception for the UTPA.

The fact that DeCoster’s primary business is the production of eggs and not the rental of mobile homes does not negate the fact he has leased housing to the workers. There is nothing in the statutory definition of “trade or commerce” that would justify the conclusion that the UTPA applies only to transactions involving the primary business of the seller. Sellers frequently market goods and services, ancillary to them primary business, to limited and distinct portions of the consuming public. For example, a hospital may lease televisions only to its patients, or a food processor may sell by-products to a cattle feeding operation. Furthermore, sellers are increasingly marketing goods and services to their employees. A recent news article reported this trend and catalogued some of these goods and services: an in-house concierge procures theater tickets and resells them to employees; a company cafeteria prepares and sells party food to employees; a company maintenance worker acts as the corporate home handyman doing repair work and painting for employees; a corporate garage does maintenance jobs and inspections on employee automobiles. Amy Saltzman, Little Conveniences That Make a Hit, U.S. News & World Report, January 16, 1995. These businesses are certainly engaged in trade or commerce notwithstanding the fact that the sales are not made to the general consuming public.

It would be illogical to conclude that a seller is prohibited from engaging in unfair or deceptive practices in its primary business, but free to do so in a subsidiary business, or that he is prohibited from engaging in such practices in his dealings with the public, but free to do so in his dealings with members of the public who also happen to be in his employ. The fact that DeCoster’s workers are only a small portion of the general consuming public and that rental housing is not DeCoster’s primary business does not detract from the workers’ status as consumers of housing. We have stated that consumer protection statutes should be liberally construed to effectuate them “beneficent” purposes. Tangnay v. Seacoast Tractor Sales, Inc., 494 A.2d 1364, 1367 (Me. 1985). This Court’s conclusion that tenants on an employer’s property are not protected under the UTPA needlessly denies those tenants protection from abuse in one of the most basic of consumer goods — housing.

*898Because the Court concluded that the relationship between DeCoster and the workers is not “trade or commerce,” it did not reach the question of whether the UTPA is applicable to leases. I would find that the statutory definition of “trade or commerce” does encompass the leasing of property. The definition explicitly covers the sale of property and leases are nothing more than the sale of an interest in property. This conclusion is confirmed by 14 M.R.S.A. § 6030 (1980 & Supp. 1993), which expressly states that specific leasing practices are unfair and deceptive practices under the UTPA.

I would vacate the judgment dismissing the State’s claim under the Unfair Trade Practices Act, and remand for further proceedings to determine whether defendant’s actions constitute a violation of the UTPA.

. The majority cites Manning v. Zuckerman, 388 Mass. 8, 444 N.E.2d 1262 (1983) to support its determination that the UTPA is inapplicable to this dispute. Robert J. Manning, editor of a magazine owned by Mortimer B. Zuckerman, sought relief when his employer refused to pay additional retirement benefits allegedly due under his employment contract. The court, after determining that Zuckerman and Manning stood only in an employer-employee relationship, found that if the "defendant committed any unfair or deceptive acts, they necessarily occurred in the context of the parties' employment relationship ...” Id. 444 N.E.2d at 1264 (emphasis added). In the instant case, the parties, in addition to being employer and employee, stand in a landlord-tenant relationship, which is subject to protection by the UTPA.