On-Time Law Limited in Its Applications

As proposed legislation, California Senate Bill 101 got so much attention last year you’d think it cured cancer or unclogged courts. But it was much more humble: As of Jan. 1, utilities, cable companies and certain retailers must make deliveries or repair calls within four hours of a promised time or risk a small claims court judgment awarding their customer up to $500 in damages.

The bill’s impetus was the personal experience of state Sen. Bill Lockyer (D-Hayward), who had sat in a new apartment waiting for furniture that didn’t come. His experience was unusual only in that he didn’t ask an employee to do his waiting for him, and that when he mutters, “there oughtta be a law,” he can start making one.

Lockyer’s proposal--originally applied to all retailers and allowing only a two-hour time period--provoked a lot of discussion, more angry than technical. There were no statistics behind the bill (e.g., total wages lost annually statewide). It was all anecdotal material gleaned from “stacks of letters from constituents,” Lockyer aide Patricia Wynne says. Lockyer’s own favorite story involved a woman who waited 4 1/2 days for a cable TV serviceman after being promised each afternoon that he really would be there the next day.

To these tales were added the unsolicited testimony of many Sacramento lobbyists, who appeared at hearings on the bill not to represent their employers, but to share their own experiences. “Everyone,” says Wynne, “has at some point in their life been stuck waiting.”

Opponents of the original bill were less anecdotal but no more analytic. The California Retailers Assn. in Sacramento said its members can already meet a four-hour time limit 96% to 98% of the time even though it hadn’t actually surveyed them. Pacific Bell said, like other utilities, it was already well-regulated by the Public Utilities Commission and should be excluded (although there’s no regulation covering the keeping of appointments, according to the PUC.)

Representatives of all three affected industries said that it’s more often the consumer who doesn’t show up and that aggrieved customers could simply take their business to another company. What’s more, they argued, if they had to guarantee a time, they’d have to put on more personnel, and it would end up costing the consumer.

The purpose of the new law is obviously to give consumers more than promises to rest on, but its applications seem very limited. Independent service people--plumbers, electricians, painters--aren’t included at all. As for retailers, only the delivery of goods is affected, not services or repairs, and only if they have more than 25 employees.

Companies are allowed an out for delays “caused by unforeseen or unavoidable occurrences,” if the company made a “diligent effort” to notify the consumer--”conditions which may be difficult to prove or disprove,” says Herschel Elkins, California assistant attorney general in charge of consumer protection. Furthermore, they could make things worse by “rushing through repairs to make their next appointment,” Elkins says, or even refusing to make future appointments at all, saying they’ll call when they can make it.

The consumer’s recourse under the law is also limited. He must take his case to small claims court, thereby losing more time yet, and can recover only for actual financial loss, including lost wages, up to $500.

Apparently it’s just not easy to regulate such mundane personal arrangements. Laws in other states that invite enforcement by government agencies may provide no swifter surer justice. Massachusetts, for example, broadly rules it unfair and deceptive to promise prompt delivery “where delivery is neither prompt nor expeditious,” or to fail to deliver merchandise on the date set unless there were “circumstances beyond (one’s) control.”

New York City, by contrast, has a narrow rule, covering only new, ready-made furniture and major appliances: If a delivery appointment isn’t met and the consumer wasn’t informed ahead of time in writing, he can cancel the order, get his money back and up to $100 in lost wages.

Still, in New York, where the consumer affairs department wields the law “aggressively” because of the number of complaints (500-600 a year on furniture alone, most concerning non-delivery), only 60 consumers a year on average have collected money. And in Massachusetts, a consumer seeking damages for lost time still has to sue the business--probably a rare occurrence given the relatively small amount of money involved, says Edgar Dworsky, spokesman for the state’s executive office of consumer affairs.

Given a state or municipal law, an enforcing agency could take stronger action against an offending company, but only if multiple complaints indicate a pattern of practice. Even then, enforcement is a matter of priorities, and non-delivery of furniture is not a major crime. A legislature can “name a government agency to enforce a law,” says Richard Elbrecht, head of legal services for California’s consumer affairs department, “but unless they fund people to do it, it’s not very effective. Better to let small claims court do it.”

Even in small claims court, supposedly more Populist than higher courts, “most judges would not take it seriously without a statute,” says Elkins. Nor, perhaps, would the general public. Such statutes have an “educative function,” says Elbrecht, “with the practical effect of highlighting something--that the consumer should treat this arrangement a little more seriously. It’s a rallying cry to basic integrity in human relations.”

More specifically, the law, whatever its limits, “provides guidance to what are considered fair business practices,” says Dworsky, “defining when enough is enough. Business will know that if they sidestep these rules, they may be subject to penalties, and it helps the consumer to argue if he can say, ‘The law says . . . ‘ “