CREDIT CARD SURCHARGES - PART 2

People v. Fulvio, 136 Misc. 2d 334 - NY: City Court, Criminal Court 1987:

"Nor, as the People here contend, is the statute saved by the semantic gyration of claiming that it contemplates the establishment of a "regular price" for a product, that a "discount for cash" from that "regular price" is permitted and that it is only the "surcharge", or additional charge, for use of a credit card, which is prohibited. The fact of the matter is that, at least for this product, there is at the "gas" pump, a legally permissible "cash price" and a legally permissible "credit price" — that fact is amply established by the position taken by the People and the evidence in this case, as well as by the authorities above cited. What is intolerable is that the gasoline station operator careful enough or sophisticated enough to always characterize the lower of these prices as a "discount for cash" may enter his automobile at the end of his business day and drive home a free man; however, if the same individual, or his colleague operating the station down the street, or his employee is careless enough to describe the higher price in terms which amount to the "credit price" having been derived from adding a charge to the lower price, he faces the prospect of criminal conviction and possible imprisonment.

Thus, what General Business Law § 518 permits is a price differential, in that so long as that differential is characterized as a discount for payment by cash, it is legally permissible; what General Business Law § 518 prohibits is a price differential, in that so long as that differential is characterized as an additional charge for payment by use of a credit card, it is legally impermissible. In each case the innocent and the criminal conduct is based upon the same factual configuration. General Business Law § 518 creates a distinction without a difference; it is not the act which is outlawed, but the word given that act. The Bard had the phrase (of course) for the defendant's best defense to the surcharge offense alleged here: "Oh, be some other name! What's in a name? That which we call a rose/By any other name would smell as sweet" (Shakespeare, Romeo and Juliet [2.2: 42-44]) or, in this case, as bad.

The motion to dismiss the charge of attempting to violate General Business Law § 518 is granted, the conviction thereon is set aside and dismissed and the defendant is discharged."