No. Such service charges are normal in the wholesale industry. You are taking the card as a favor to the customer and you need to recoup the fee. 3% is also a very reasonable fee and you provided notice. They have the opportunity to accept or decline. It is a contract term between merchants and the other party is bound by those terms.
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I must respectfully XXXXX XXXXX my colleague on this issue.
Cal. Civil Code Section 1761(d) , defines "Consumer" as "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes."
And, Civil Code Section 1748.1(a) provides that "No retailer in any sales, service, or lease transaction with a consumer may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means. A retailer may, however, offer discounts for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, provided that the discount is offered to allprospective buyers."
So, based on the above, whether or not you can charge a fee depends, not upon your business purposes or operations, but rather on the purpose for which the buyer is making the purchase.
And, while you can have the purchaser sign an agreement stating that he/she is not making a consumer purchase, if it turns out that he/she is, then the customer can legally force you to return the surcharge.
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