Criminal Conviction under New Hampshire Consumer Protection Act Upheld

This posting was written by Mark Engstrom, Editor of CCH State Unfair Trade Practices Law.

A roofer who accepted a customer's $4,000 deposit—but failed to purchase roofing materials, produce proof of insurance, obtain a building permit, or otherwise indicate that he would begin work on the customer's home—could not escape a criminal conviction for violating the New Hampshire Consumer Protection Act (CPA), the Supreme Court of New Hampshire has ruled.

Although the roofer argued on appeal that the state had alleged nothing more than a breach of contract, the state had sufficiently alleged that the roofer engaged in an unfair or deceptive act or practice by: (1) knowingly entering into a contract with the customer and accepting money to perform a service; (2) knowingly failing to provide the service despite numerous requests to do so; and (3) knowingly failing to return the customer's money as agreed. These allegations were sufficient to state a criminal violation of the CPA, according to the court.

Moreover, evidence of the roofer's "rascality" was sufficient to prove his guilt beyond a reasonable doubt. Under the "rascality" test, the objectionable conduct must attain a level of "rascality" that would raise an eyebrow of someone inured to the "rough and tumble of the world of commerce."

The court affirmed the jury's conviction, but vacated and remanded the trial court's sentence of twelve months in jail, two years probation, and a $2,000 fine.

The roofer could not be sentenced to probation if the statutory maximum for fines and jail time was imposed, the court explained. In order to impose probation, a trial court was required to retain a portion of its sentencing power as an enforcement mechanism.

The May 16 decision is State of New Hampshire v. Sideris, N.H. S.Ct., CCH State Unfair Trade Practices Law ¶31,583.