SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5381-16T3

HENRY SANCHEZ, on behalf of 

himself and others similarly situated,

Plaintiff-Appellant,

v.

FITNESS FACTORY EDGEWATER,

LLC, FITNESS FACTORY ROCKAWAY,

LLC, THE FITNESS FACTORY GROUP,

LLC, and DENNIS CIERI,

Defendants-Respondents.

____________________________________

Argued November 15, 2018 – Decided April 4, 2019

Before Judges Simonelli, O'Connor and DeAlmeida. 

On appeal from Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-2192-15.

Andrew R. Wolf argued the cause for appellant (The 

Wolf Law Firm, LLC, attorneys; Andrew R. Wolf, 

Matthew S. Oorbeek, Henry P. Wolfe, and Mark A. 

Fisher, on the briefs). 

Ronald L. Israel argued the cause for respondents 

(Chiesa Shahinian & Giantomasi PC, attorneys; Ronald 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

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L. Israel, Daniel D. Barnes, and Brigitte M. Gladis, on 

the briefs).

PER CURIAM

This appeal involves a health club membership contract. Plaintiff Henry 

Sanchez filed a class action against defendants Fitness Factory Edgewater, LLC, 

Fitness Factory Rockaway, LLC, The Fitness Factory Group, LLC and Dennis 

Cieri, alleging the imposition of an initiation fee violated the Retail Installment 

Sales Act (RISA), N.J.S.A. 17:16C-1 to -61, permitting him to proceed with a 

private right of action under the Truth-in-Consumer Contract, Warranty and 

Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, and the Consumer Fraud Act 

(CFA), N.J.S.A. 56:8-1 to -20.

1

 The trial court dismissed the claims pursuant to 

Rule 4:6-2(e). For the reasons that follow, we affirm.

The membership contract granted plaintiff unlimited use of the health club 

facility, including the exercise room, group fitness, equipment, locker rooms,

and sauna. The membership contract was for a twenty-four month term and gave

 

1

 Plaintiff also alleged the initiation fee violated the Health Club Services Act 

(HCSA), N.J.S.A. 56:8-39 to -48, and other alleged violations including 

defendant's failure to provide a total cash price figure in the contract, utilize the 

adequate font and sizing for certain contractual provisions, and charging certain 

penalty fees, as the basis for additional claims under the TCCWNA. However, 

plaintiff has conceded that our Supreme Court's holding in Spade v. Select 

Comfort Corp., 232 N.J. 504 (2018), issued after he filed this appeal, precludes 

him from proceeding with these HCSA claims under the TCCWNA.
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plaintiff the option to pay his membership fee in a lump sum or make monthly 

payments of $39.99, plus tax. The membership contract also imposed a $29.99 

initiation fee if plaintiff opted to pay monthly. At the conclusion of the twentyfour month term, plaintiff had the option to terminate his membership without 

penalty, or continue as a member on a month-to-month basis. Plaintiff elected

to pay his membership fee on a monthly basis and paid the $29.99 initiation fee. 

Plaintiff terminated his membership in accordance with the membership contract 

without penalty.

Plaintiff claimed the initiation fee is not authorized by RISA, and he 

suffered a cognizable injury under the TCCWNA by paying the fee. Plaintiff 

also claimed that requiring payment of the initiation fee is an unconscionable 

commercial practice under the CFA. These claims rest on the predicate that the 

membership contract is subject to RISA. Thus, the issue is whether the 

membership contract is a retail installment contract subject to RISA, such that 

plaintiff's claims are legally tenable and should have survived a Rule 4:6-2(e)

motion to dismiss. Our review of this issue is de novo. Watson v. Dep't of 

Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017). 

The Legislature enacted RISA "to protect consumers from overreaching 

by others, to protect consumers from overextending their own resources and also 
4

A-5381-16T3

to promote the availability of financing to purchase various goods and services." 

Perez v. Rent-A-Center, Inc., 186 N.J. 188, 205 (2006) (quoting Girard 

Acceptance Corp. v. Wallace, 76 N.J. 434, 439 (1978)). The Legislature's 

primary focus was usurious interest rates, and to "protect consumers from 

themselves and rapacious sellers." Id. at 218; see also Turner v. Aldens, Inc., 

179 N.J. Super. 596, 602 (App. Div. 1981) ("We have no doubt that the evil 

sought to be remedied by N.J.S.A. 17:16C-1 [to -61] is the charging of excessive 

interest to New Jersey consumers"). RISA thus "prescribe[s] the general form 

that retail installment contracts should take, N.J.S.A. 17:16C-21 to -25; 

require[s] certain financial disclosures, N.J.S.A. 17:16C-27; detail[s] prohibited 

practices, N.J.S.A. 17:16C-35 to -39; and impose[s]" a "cap on the time price 

differential (interest) chargeable in connection with a sale," N.J.S.A. 17:16C41. Perez, 186 N.J. at 205. 

As the initiation fee here is not one expressly authorized by RISA, 

assuming the statute applies, the fee would be a violation. N.J.S.A. 17:16C-50. 

Because RISA does not afford buyers with a private right of action, see N.J.S.A. 

17:16C-56, plaintiff's alleged RISA violation serves only as a predicate for his

claims under the TCCWNA and CFA, which permit a private right of action for 
5

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the violation of the rights of consumers. N.J.S.A. 56:12-17 (TCCWNA); 

N.J.S.A. 56:8-19 (CFA). 

The TCCWNA applies to contracts, warranties, notices, and signs between 

a consumer and a "seller, lessor, creditor, lender or bailee." N.J.S.A. 56:12-15. 

"Its purpose 'is to prevent deceptive practices in consumer contracts by 

prohibiting the use of illegal terms or warranties in consumer contracts.'" Pisack 

v. B & C Towing, Inc., 455 N.J. Super. 225, 241 (App. Div. 2018) (quoting Kent 

Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 457 (2011)). "In 

enacting the TCCWNA, the Legislature 'did not recognize any new consumer 

rights but merely imposed an obligation on sellers to acknowledge clearly 

established consumer rights and provided remedies for posting or inserting 

provisions contrary to law.'" Ibid. (quoting Dugan v. TGI Fridays, Inc., 231 N.J. 

24, 68 (2017)). Plaintiff thus seeks to use the TCCWNA to provide a remedy 

for the purported RISA violation, taking advantage of the private right of action 

afforded by the TCCWNA, N.J.S.A. 56:12-17. 

"The CFA provides relief to consumers from 'fraudulent practices in the 

market place.'" Pisack, 455 N.J. Super. at 240 (quoting Lee v. Carter-Reed Co., 

203 N.J. 496, 521 (2010) (citation omitted)). The CFA permits a person 

aggrieved by prohibited, unconscionable commercial practices, N.J.S.A. 56:8-
6

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2, to bring an action in Superior Court. N.J.S.A. 56:8-19. "To proceed with a 

private cause of action under the CFA, a consumer must 'show that the merchant 

engaged in an "unlawful practice," . . . and that [he or] she "suffer[ed] [an] 

ascertainable loss . . . as a result of the use or employment" of the unlawful 

practice.'" Pisack, 455 N.J. at 240 (alterations in original) (quoting Lee, 203 

N.J. at 521 (quoting N.J.S.A. 56:8-2, -19)). 

Plaintiff alleges that the membership provided by the membership 

contract is "merchandise" within the CFA's statutory definition, N.J.S.A. 56:8-

1, and the charging of an initiation fee, a violation of RISA, is an unlawful 

commercial practice sufficient to proceed with a private right of action under 

the CFA. N.J.S.A. 56:8-19.

In Mellet v. Aquasid, LLC, 452 N.J. Super. 23, 30 (App. Div. 2017), we

held that "[h]ealth club members are not in the category of consumers RISA is 

designed to protect, because these contracts do not involve the sale of goods. " 

Plaintiff's argument to the contrary, that RISA's very definition of retail 

installment contracts includes installment contracts for "goods or services,"

N.J.S.A. 17:16C-1(b), is specious. Even if RISA applies to some pure services 

contracts, coverage of the membership contract would fall outside the purpose 
7

A-5381-16T3

of the statute, see Perez, 186 N.J. at 209, where there is no charged interest and 

the membership contract itself is arguably not a true installment contract. 

Our holding in Mellet, that RISA does not apply to health club 

membership agreements because they do not involve the sale of goods, 452 N.J. 

Super. at 30, was largely derived from our Supreme Court's decision in Perez

and the analysis of RISA's purpose therein. 

RISA defines a retail installment contract, one covered by the Act's 

protections, as:

[A]ny contract, other than a retail charge account or an 

instrument reflecting a sale pursuant thereto, entered 

into in this State between a retail seller and a retail 

buyer evidencing an agreement to pay the retail 

purchase price of goods or services, which are primarily 

for personal, family or household purposes, or any part 

thereof, in two or more installments over a period of 

time. This term includes a security agreement, chattel 

mortgage, conditional sales contract, or other similar 

instrument and any contract for the bailment or leasing 

of goods by which the bailee or lessee agrees to pay as 

compensation a sum substantially equivalent to or in 

excess of the value of the goods, and by which it is 

agreed that the bailee or lessee is bound to become, or 

has the option of becoming, the owner of such goods 

upon full compliance with the terms of such retail 

installment contract.

[N.J.S.A. 17:16C-1(b) (emphasis added).]
8

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The term "'[s]ervices' means and includes work, labor and services, 

professional and otherwise which are primarily for personal, family or 

household purposes but does not include services which are subject to the 'Home 

Repair Financing Act,' and insurance premiums financing which is subject to the 

'Insurance Premium Finance Company Act.'" N.J.S.A. 17:16C-1(s). Thus, the 

plain language of RISA's definitions of a retail installment contract and services 

do not facially preclude coverage of health club membership agreements. 

Nevertheless, in Mellet, the defendant argued, much like the defendants 

here, that 

RISA does not apply to their membership agreements 

and Perez controls because the entire premise of the 

installment sales contract contemplated by RISA is 

possession and eventual ownership of a specified good 

by a buyer. Defendant argue[d] plaintiffs were paying 

not to eventually own but rather to utilize the gym's 

facilities and equipment, and, thus, the RISA claim was 

properly dismissed.

[452 N.J. Super. at 28-29.]

We agreed. Id. at 29. 

Our holding was rooted in the following passage from Perez, in which the 

Court analyzed the legislative purpose underlying the enactment of RISA:

In enacting RISA, the stated legislative purpose was 

protection of the public interest through the regulation 

of the charges associated with the time sale of goods. 
9

A-5381-16T3

By including conditional sales, chattel mortgages, 

security interests, leases, and similar instruments 

within RISA's protective ambit, the Legislature 

signaled that it intended to sweep into the Act as many 

cognate agreements as possible, even those that did not 

strictly fall within a denominated category. That broad 

mandate, along with the well-established notion that 

remedial statutes like RISA should be liberally 

construed to achieve their salutary aims, require 

questions regarding the applicability of the statute to be 

resolved in favor of consumers for whose protection 

RISA was enacted.

[Perez, 186 N.J. at 209 (citation omitted).]

We concluded that "[t]he thrust of RISA is to 'protect consumers from 

themselves and rapacious sellers.' Thus, the Legislature aimed to protect the 

public interest regarding the sale of goods." Mellet, 452 N.J. Super. at 29 

(citation omitted) (quoting Perez, 186 N.J. at 218). 

We continued:

Although the Perez Court stated RISA should be 

construed broadly, the statute itself refers to the 

following categories: "security agreement, chattel 

mortgage, conditional sales contract or other similar 

instrument." N.J.S.A. 17:16C–1(b). We fail to see how 

a health club membership agreement is similar to any 

of the enumerated instruments. Health club members 

are not in the category of consumers RISA is designed 

to protect, because these contracts do not involve the 

sale of goods. For these reasons, we agree with the trial 

judge RISA does not apply and affirm dismissal of that 

count of plaintiffs' complaint. 
10 A-5381-16T3

[Id. at 30.]

We adopt the above reasoning of Mellet, itself rooted in the Perez Court's 

narrow interpretation of RISA, and reify this court's prior holding that RISA 

does not apply to health club membership contracts. That road leads to the

affirmance of the dismissal of plaintiff's TCCWNA and CFA claims. Ibid.

(affirming the dismissal of the CFA claim "because it is undisputed plaintiffs' 

CFA claim is [dependent] upon their RISA claim"); see also id. at 34 (finding 

plaintiffs' TCCWNA claims derived from RISA "are not independently viable").

For the sake of completeness, we address the inclusion of "services"

within RISA's definition of retail installment contracts, N.J.S.A. 17:16C-1(b), 

as well as plaintiff's various arguments as to why the membership contract falls 

under the purview of RISA. 

To restate for convenience, RISA defines a retail installment contract as:

[A]ny contract, other than a retail charge account or an 

instrument reflecting a sale pursuant thereto, entered 

into in this State between a retail seller and a retail 

buyer evidencing an agreement to pay the retail 

purchase price of goods or services, which are primarily 

for personal, family or household purposes, or any part 

thereof, in two or more installments over a period of 

time. This term includes a security agreement, chattel 

mortgage, conditional sales contract, or other similar 

instrument and any contract for the bailment or leasing 

of goods by which the bailee or lessee agrees to pay as 

compensation a sum substantially equivalent to or in 
11 A-5381-16T3

excess of the value of the goods, and by which it is 

agreed that the bailee or lessee is bound to become, or 

has the option of becoming, the owner of such goods 

upon full compliance with the terms of such retail 

installment contract.

[N.J.S.A. 17:16C-1(b) (emphasis added).]

Nevertheless, the Perez Court found that, 

[t]he first sentence of the Act describes a covered sale. 

Briefly, the contract must be entered into between a 

retail seller and a retail buyer; it must evidence an 

agreement to pay the retail purchase price of goods in 

installments; and the goods must be for personal, family 

or household use.

[Perez, 186 N.J. at 205-06 (emphasis added).] 

And, in its wake, we held in Mellet that "the Legislature aimed to protect the 

public interest regarding the sale of goods." 452 N.J. Super. at 29 (emphasis 

added). 

Plaintiff argues, and we agree, that there has been no analysis of whether 

the inclusion of "services" falls within in the statutory definition of retail 

installment contract. N.J.S.A. 17:16C-1(b). An interpreting court "should try 

to give effect to every word of the statute, and should not assume that the 

Legislature used meaningless language." Medical Soc'y of N.J. v. N.J. Dep't of 

Law and Pub. Safety, 120 N.J. 18, 26 (1990). Further, "[t]he [interpreting] court 

should strive for an interpretation that gives effect to all of the statutory 
12 A-5381-16T3

provisions and does not render any language inoperative, superfluous, void, or 

insignificant." G.S. v. Dep't of Human Servs., 157 N.J. 161, 172 (1999). 

In addition, the second sentence of the statutory definition of retail 

installment contract, "[t]his term includes a security agreement, chattel 

mortgage, conditional sales contract or other similar instrument[,]" N.J.S.A. 

17:16C-1(b), is not an exhaustive list of installment contract types, wherein the 

list only refers to contracts for the installment sale of goods. To the contrary, 

the statutory use of the term "includes" indicates an "illustrative and not 

limitative function of the examples given[.]" Campbell v. Acuff-Rose Music, 

Inc., 510 U.S. 569, 577 (1994) (quotation omitted); see also Black's Law 

Dictionary 880 (10th ed. 2014) ("The participle including typically indicates a 

partial list"). The fact that the exemplary list does not contain installment 

contracts for services does not therefore exclude the possibility thereof. 

Under the above principles of statutory interpretation, the inclusion of 

"services" within the statutory definition of retail installment contract cannot be 

simply disregarded. That is perhaps especially true given the legislative intent, 

as acknowledged by the Perez Court, 

to sweep into the Act as many cognate agreements as 

possible, even those that did not strictly fall within a 

denominated category . . . along with the wellestablished notion that remedial statutes like RISA 
13 A-5381-16T3

should be liberally construed to achieve their salutary 

aims, requir[ing] questions regarding the applicability 

of the statute to be resolved in favor of consumers for 

whose protection RISA was enacted.

[186 N.J. at 209 (citation omitted).] 

See also Mellet, 452 N.J. Super. at 29. 

Nevertheless, even assuming the above to be valid, the membership 

contract does not fall within the ambit of RISA. While the plain language of 

RISA dictates that its coverage includes some services contracts, the services 

contract must still be a true retail installment contract. See N.J.S.A. 1:1-1 ("In

the construction of the laws and statutes of this state . . . words and phrases shall 

be read and construed with their context"). 

The membership contract is not a retail installment contract merely 

because it is billed monthly, as it contains no financing arrangement between 

the parties, the very thrust behind the enactment of RISA. See Turner, 179 N.J. 

Super. at 602 ("the evil sought to be remedied by [RISA] is the charging of 

excessive interest to New Jersey consumers"). 

In Section A of Perez, 186 N.J. at 202-05, the Court examined the impetus 

behind the enactment of RISA, and recognized that, prior to RISA's enactment, 

"the law treated the taking of interest in connection with the sale of goods as 

entirely different from the taking of interest on a loan of money per se." Id. at 
14 A-5381-16T3

202. In essence, the latter was regulated, while the former (the sale of goods) 

was not:

In fact, the charges associated with the credit sale of 

goods went generally unregulated up until the 1950s. 

At that point, in response to the drumbeat of scholarly 

criticism and consumer complaints, some states, 

including New Jersey, recognized that the credit sale of 

goods required regulation and began to adopt retail 

installment sales acts that set interest rate limits on 

credit sales transactions. . . . 

Like other state initiatives, New Jersey's RISA, 

which became law in 1960, was "part of a package of 

laws designed to protect consumers from overreaching 

by others, to protect consumers from overextending 

their own resources and also to promote the availability 

of financing to purchase various goods and services." 

[Id. at 204-05 (quoting Girard, 76 N.J. at 439).]

Thus, to fall within RISA's purview, a contract for the sale of goods or services 

must involve financing. The purpose in enacting RISA was to extend the law's 

protections from only the realm of interest on loans of money into the evergrowing world of financing involved in the purchase of consumer goods and 

services. Id. at 202-05. Absent such financing, a contract is not the sort that 

RISA was enacted to cover and is not subject to its restrictions. 

The issue was touched on, and that same conclusion reached, in the 

unpublished opinion in Venditto v. Vivint, Inc., No. CIV. A-14-4357, 2015 U.S. 
15 A-5381-16T3

DIST. LEXIS 26320 (D.N.J. Mar. 2, 2015), where the federal district court

upheld the dismissal of the plaintiff's RISA-predicated claims for failure to 

demonstrate that the subject alarm monitoring services contract was an 

installment sale of that service because it lacked a financing arrangement: 

To the extent [c]ount [o]ne is premised on the sale of 

the monitoring services, rather than the sale of any 

"goods," the [c]ourt finds that [p]laintiff has failed to 

allege sufficient facts to nudge any such claim across 

the line from conceivable to plausible. In particular, 

[p]laintiff has failed to allege sufficient facts that would 

allow the [c]ourt to draw the reasonable inference that 

[d]efendant's ongoing monitoring services, billed 

monthly, amount to an installment sale of that service. 

"RISA was one of several laws designed to protect 

consumers from over-reaching by others, to protect 

them from over-extending their resources, and to 

promote the availability of financing to purchase 

various goods and services." Green v. Cont'l Rentals, 

292 N.J. Super. 241, 252 (Ch. Div. 1994) (citing Girard 

*[76 N.J. at 439]). There are no facts alleged in the 

[s]econd [a]mended [c]omplaint suggesting any type of 

financing arrangement between the parties for the 

monitoring services. . . .

In light of the foregoing, [p]laintiff has failed to 

allege sufficient facts that would allow the [c]ourt to 

draw the reasonable inference that the misconduct 

alleged in [c]ount [o]ne constitutes a violation of RISA.

[Id. at *14-5 (emphasis added) (citing Turner, 179 N.J. 

Super. at 602).] 
16 A-5381-16T3

While a federal court's decision on a question of New Jersey law is not binding 

on us, see Kavky v. Herbalife Int'l, 359 N.J. Super. 497, 501 (App. Div. 2003), 

we find it instructive. Simply put, absent any financing arrangement between 

the parties here, defendants could not be "rapacious," nor is there the possibility 

for the sort of "evil," usurious interest rates, that the Legislature sought to 

protect against in enacting RISA. 

Plaintiff's arguments that the membership contract is subject to RISA are 

unpersuasive. For example, plaintiff attempts to distinguish Mellet by arguing 

that the membership contract contains an acceleration clause, which provides 

that upon default the entire membership fee would become due and owing, and 

charges an initiation fee for the monthly contract, where the contract in Mellet

did not. Plaintiff's argument does not address the lack of the option of ownership 

of a good or financing, the hallmarks of retail installment contracts. See, e.g., 

Perez, 186 N.J. at 207. Further, plaintiff's claim is flawed because the Mellet

decision acknowledged that the plaintiff was charged, upon default, "three 

months of late fees, a collection fee, administrative fee, and fifteen months of 

dues." Mellet, 452 N.J. Super. at 26. However, the decision does not mention 

payment of an initiation fee at the contract's inception. 
17 A-5381-16T3

Plaintiff also cites a series of out-of-state cases in which the courts 

purportedly labeled health club contracts as retail installment contracts. These 

cases are not binding on us. Meadowlands Basketball Assoc. v. Director, Div. 

of Taxation, 340 N.J. Super. 76, 83 (App. Div. 2001). Further, in some cases, 

the court was not addressing that question on the merits. For example, in Van 

Vels v. Premier Athletic Center, 182 F.R.D. 500 (W.D. Mich. 1998), the court 

only addressed the issue of class certification, and, in that case and in Kriger v. 

European Health Spa, Inc., 56 F.R.D. 104 (E.D. Wis. 1972), the subject matter 

of the dispute was the fraudulent issue of promissory notes or cash discounts, 

not the membership contracts themselves. 

Accordingly, we hold that RISA does not apply to the membership 

contract. No matter the merit of including "services" in RISA's definition of a 

retail installment contract, the Legislature included it. "It is emphatically the 

province and duty of the judicial department to say what the law is," not what it 

perhaps should be. Sherman v. Citibank, 143 N.J. 35, 58 (2005) (quoting 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Finding that the 

membership contract and similarly situated health club services contracts do not 

fall within the ambit of RISA because they lack financing arrangements is true 
18 A-5381-16T3

to the legislative intent leading to the Act's enactment while being faithful to the 

Act's text. 

Affirmed.