Folands Jewelry Brokers, Inc v. City of Warren
Folands Jewelry Brokers, Inc v. City of Warren
Opinion of the Court
In this declaratory judgment action, plaintiff, Folands Jewelry Brokers, Inc., appeals as of right the grant of summary disposition pursuant to MCR 2.116(0(10) (no genuine issue of material fact) for defendant, City of Warren. We affirm.
Folands operates a licensed precious metal and gem dealership at 4100 Fourteen Mile Road in Warren, Michigan. As a dealer, Folands buys and sells precious metals and gems. Most of the precious metals and gems Folands purchases are sold
The Warren city attorney issued an opinion stating that Folands’ jewelry business constituted pawnbroking and was, therefore, subject to regulation under the city’s pawnbroker ordinance. Folands filed suit, seeking a declaratory judgment that it was not a pawnbroker. In a well-reasóned opinion, the circuit court concluded that Folands was subject to regulation as a pawnbroker.
The sole issue on appeal is whether Folands falls within the statutory definition of a pawnbroker and is, therefore, subject to regulation as a pawnbroker. The Warren Code, art IV, § 30-47, which follows closely the language of §3 of Michigan’s pawnbroker act, MCL 446.203; MSA 19.583, provides as follows:
Any person who loans money on deposit or pledge of personal property or other valuable thing, other than securities or printed evidence of indebtedness, or who deals in the purchasing of personal property or other valuable thing on condition of selling the same back again at a stipulated price, is hereby defined to be a pawnbroker.
As noted, Folands purchases precious metals or gems from customers. At the time of sale, it grants the customer the right to repurchase the item at the full purchase price within fifteen days. However, Folands also extends a second type of repurchase option to certain customers. Within one week after the sale, select customers may buy a thirty-day option to repurchase their precious metal or gem at an eight to eleven percent premium over the original purchase price. The option itself also costs between eight and eleven percent
The city contends that both types of repurchase options constitute pawnbroking because both involve the sale of property "on condition of selling the same back again at a stipulated price.” Warren Code, art IV, § 30-47 and MCL 446.203; MSA 19.583. We agree.
When interpreting a statute, our goal is to ascertain and effectuate the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). We look first to the specific language of the statute, House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993), resorting to judicial construction only where reasonable minds could disagree with regard to the statute’s meaning. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989). Additionally, when considering an ordinance, we apply the same rules of construction as when considering a statute. Albright v Portage, 188 Mich App 342, 350, n 7; 470 NW2d 657 (1991). Finally, our review of the lower court’s construction is de novo. Madison v Detroit, 208 Mich App 356, 358; 527 NW2d 71 (1995).
Turning to the statute and ordinance in issue, we find no express legislative recognition of repurchase transactions such as those conducted by Folands. We are also unaware of any Michigan precedent addressing the question whether these
In Rhodes v City of Hartford, 201 Conn 89; 513 A2d 124 (1986), the Supreme Court of Connecticut was faced with a factual situation remarkably similar to that at hand, and traced the history of "repurchase transactions” to 1911, when they were vilified as "[t]he greatest evil of the small money lending business.” Id., p 97, quoting S. Levine, A Treatise on the Law of Pawnbroking (1911), pp 115-116. That Court concluded as follows:
[T]he legislature indicated that it intended the statutes to regulate not only those transactions that take the classic form of a conventional pawnbroking loan, but also financing arrangements that, in substance if not in form, amount to any economic equivalents of such a loan. Accordingly, the statutes apply to any transaction, regardless of its label or form, in which a pawnbroker gives a customer money and, in return, receives the right to hold the customer’s property and the right to demand payment from the customer for the use of the money before allowing the customer to reclaim his property. (Id., p 96. Emphasis added.)
We conclude that the broad language used by our Legislature in MCL 446.203; MSA 19.583 evinces a similar intent to include activities such as those of Folands within the definition of pawnbroking.
Therefore, regardless of the legerdemain of denominating the transaction in issue a sale rather than pawnbroking, such transactions legally constitute pawnbroking.
We would note in passing that our Supreme Court’s recent decision in People v Lee, 447 Mich 552; 526 NW2d 882 (1994), does not control the matter presently before this Court. In Lee, the Supreme Court decided that transactions such as the ones in issue may not be considered loans, and, accordingly, may not be prosecuted as usurious.
By labeling this transaction a "sale” rather than a "pawn,” our Supreme Court in People v Lee, 447 Mich 552; 526 NW2d 882 (1994), has stated that this chicanery is not usurious.
As noted by the trial court in Rhodes, supra, p 92, “[o]ne should not be able to avoid a tax on shoes by calling shoes slippers.”
We would limit the application of Lee, supra, to criminal cases involving the charge of usury.
Which is to say, what individual would become a pawnbroker, thereby becoming subject to the Byzantine regulation pawnbroking entails, when one could simply engage in the type of transactions conducted by Lee and Folands, and thereby operate essentially unregulated with the freedom to, in effect, exact usurious rates of interest?
Dissenting Opinion
(dissenting). I dissent from the majority opinion because I reluctantly must conclude that our Supreme Court’s recent decision in People v Lee, 447 Mich 552; 526 NW2d 882 (1994), controls the outcome of this case. I believe the majority’s limitation on the application of Lee to criminal usury cases construes Lee too narrowly.
In Lee, the complainant, Lonnie May, approached the defendants, Jeffrey Lee and David Miller, for a loan. As security for the loan, May
The circuit court found that the underlying transaction amounted to either a loan or a pawn and that it was usurious. This Court summarily affirmed the judgment of the circuit court in People v Lee, unpublished memorandum opinion of the Court of Appeals, decided April 22, 1993 (Docket Nos. 149014 and 149015). In rejecting the circuit court’s ruling, the Supreme Court held that no loan existed because May was under no obligation to repurchase the watch.
The majority opinion distinguishes Lee on the basis that it involved a criminal prosecution for usury. I cannot agree. I believe that the definition of a loan announced in Lee governs this case. The majority, relying on the Supreme Court of Connecticut’s reasoning in Rhodes v City of Hartford, 201 Conn 89; 513 A2d 124 (1986), opines that Folands’ business falls within Michigan’s pawnbroking statute, MCL 446.203; MSA 19.583, whether or not repurchase agreements constitute loans. However, in determining that the plaintiff’s
Applying Lee, I would hold that Folands’ business does not constitute pawnbroking because Folands’ customers are not obligated to repurchase the precious metals or gems pursuant to either repurchase option available.
I also believe that Lee construed these loan transactions too narrowly. Customers who "sell” their valuables at a price substantially less than they are worth with an option to repurchase the same for a substantially higher price are actually pledging their property as security for a loan, i.e. pawnbroking.
I would reverse. _
May testified that Lee wanted to avoid the legal ramifications of operating as a pawnbroker.
Chief Justice Cavanagh dissented and was joined by Justices Boyle and Griffin.
See Caudle v City of Fayetteville, 315 Ark 276; 866 SW2d 410 (1993); Rhodes v City of Hartford, 201 Conn 89; 513 A2d 124 (1986); City of Wanatchee v Johnston, 68 Wash App 697; 846 P2d 547 (1993).
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