S.B. 103 Enrolled

CONSUMER PROTECTION AMENDMENTS
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: David L. Buhler
AN ACT RELATING TO COMMERCE AND TRADE; AMENDING THE DEFINITIONS OF
TRANSACTIONAL RESOURCES AND TELEPHONE SOLICITATION AS
OVERSEEN BY THE DIVISION OF CONSUMER PROTECTION.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
13-2-6, as last amended by Chapter 177, Laws of Utah 1994
13-26-2, as last amended by Chapter 26, Laws of Utah 1995
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 13-2-6 is amended to read:
13-2-6. Enforcement powers.
(1) In accordance with Title 63, Chapter 46b, Administrative Procedures Act, the division
shall have authority to convene administrative hearings, issue cease and desist orders, and impose
fines under all the chapters identified in Section 13-2-1.
(2) Any person who intentionally violates a final cease and desist order entered by the
division of which he has notice is guilty of a third degree felony.
(3) If the division has reasonable cause to believe that any person is engaged in violating
any chapter listed in Section 13-2-1, the division may promptly issue the alleged violator a citation
signed by the division's director or his designee.
(a) Each citation shall be in writing and shall:
(i) set forth with particularity the nature of the violation, including a reference to the
statutory or administrative rule provision being violated;
(ii) state that any request for review of the citation must be made in writing and be
received by the division no more than ten days following issuance;
(iii) state the consequences of failing to make a timely request for review; and
(iv) state all other information required by Subsection 63-46b-3(2).

(b) In computing any time period prescribed by this section, the following days may not be
included:
(i) the day a citation is issued by the division;
(ii) the day the division received a request for review of a citation;
(iii) Saturdays and Sundays; and
(iv) a legal holiday set forth in Subsection 63-13-2(1)(a).
(c) If the recipient of a citation makes a timely request for review, within ten days of
receiving the request, the division shall convene an adjudicative proceeding in accordance with Title
63, Chapter 46b, Administrative Procedures Act.
(d) (i) If the presiding officer finds that there is not substantial evidence that the recipient
violated a chapter listed in Section 13-2-1 at the time the citation was issued, the citation may not
become final, and the division shall immediately vacate the citation and promptly notify the recipient
in writing.
(ii) If the presiding officer finds there is substantial evidence that the recipient violated a
chapter listed in Section 13-2-1 at the time the citation was issued, the citation shall become final
and the division may enter a cease and desist order against the recipient.
(e) A citation issued under this chapter may be personally served upon any person upon
whom a summons may be served in accordance with the Utah Rules of Civil Procedure. A citation
also may be served by first-class mail, postage prepaid.
(f) If the recipient fails to make a timely request for review, the citation shall become the
final order of the division. The period to contest the citation may be extended by the director for
good cause shown.
(g) If the chapter violated allows for an administrative fine, after a citation becomes final,
the director may impose the administrative fine.
(4) (a) A person violating a chapter identified in Section 13-2-1 is subject to the division's
jurisdiction if:
(i) the violation or attempted violation is committed either wholly or partly within the state;
(ii) conduct committed outside the state constitutes an attempt to commit a violation within

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the state; or
(iii) transactional resources located within the state are used by the offender to directly or
indirectly facilitate a violation or attempted violation.
(b) As used in this section, "transactional resources" means:
(i) any mail drop or mail box, whether or not located on the premises of a United States Post
Office;
(ii) any telephone or facsimile transmission device;
(iii) any internet connection by a resident or inhabitant of this state with either a resident or
nonresident maintained internet site;
(iv) any business office or private residence used for a business-related purpose;
(v) any account with or services of a financial institution;
(vi) the services of a common or private carrier; or
(vii) the use of any city, county, or state asset or facility, including any road or highway.
(5) The director or his designee, for the purposes outlined in any chapter administered by
the division, may administer oaths, issue subpoenas, compel the attendance of witnesses, and compel
the production of papers, books, accounts, documents, and evidence.
Section 2. Section 13-26-2 is amended to read:
13-26-2. Definitions.
As used in this chapter, unless the context otherwise requires:
(1) "Continuity plan" means a shipment, with the prior express consent of the buyer, at
regular intervals of similar special-interest products. A continuity plan is distinguished from a
subscription arrangement by no binding commitment period or purchase amount.
(2) "Division" means the Division of Consumer Protection.
(3) "Fictitious personal name" means a name other than an individual's true name. An
"individual's true name" is the name taken at birth unless changed by operation of law or by civil
action.
(4) "Material statement" or "material fact" means information that a person of ordinary
intelligence or prudence would consider important in deciding whether or not to accept an offer

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extended through a telephone solicitation.
(5) "Premium" means a gift, bonus, prize, award, certificate, or other document by which
a prospective purchaser is given a right, chance, or privilege to purchase or receive goods or services
with a stated or represented value of $25 or more as an inducement to a prospective purchaser to
purchase other goods or services.
(6) "Subscription arrangements," "standing order arrangements," "supplements," and "series
arrangements" mean products or services provided, with the prior express request or consent of the
buyer, for a specified period of time at a price dependent on the duration of service and to
complement an initial purchase.
(7) (a) "Telephone solicitation," "sale," "selling," or "solicitation of sale" means a sale or
solicitation of goods or services in which:
(i) (A) the seller solicits the sale over the telephone;
(B) the purchaser's agreement to purchase is made over the telephone; and
(C) the purchaser, over the telephone, pays for or agrees to commit to payment for goods
or services prior to or upon receipt by the purchaser of the goods or services;
(ii) the solicitor, not exempt under Section 13-26-4, induces a prospective purchaser over
the telephone, to make and keep an appointment that[: (A) is not a home solicitation sale subject
to Title 70C, Chapter 5, Home Solicitation Sales; and (B) ] directly results in the purchase of goods
or services by the purchaser that would not have occurred without the telephone solicitation and
inducement by the solicitor[.];
(iii) the seller offers or promises a premium to a prospective purchaser if:
(A) the seller induces the prospective purchaser to initiate a telephone contact with the
telephone soliciting business; and
(B) the resulting solicitation meets the requirements of Subsection (7)(a); or
(iv) the solicitor solicits a charitable donation involving the exchange of any premium, prize,
gift, ticket, subscription, or other benefit in connection with any appeal made for a charitable purpose
by an organization that is not otherwise exempt under Subsection 13-26-4(2)(b)(iv).
(b) A solicitation of sale or telephone solicitation is considered complete when made,

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whether or not the person receiving the solicitation agrees to the sale or to make a charitable
donation.
(8) "Telephone soliciting business" means a sole proprietorship, partnership, limited liability
company, corporation, or other association of individuals engaged in a common effort to solicit sales
regulated under this chapter.
(9) "Telephone solicitor" or "solicitor" means a person, partnership, limited liability
company, corporation, or other entity that makes, places, or receives telephone calls for the purpose
of selling or solicitation of sales as defined in Subsection (7) over the telephone, whether the calls
originate in Utah or are received in Utah.

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