S.B. 103

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CONSUMER PROTECTION AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David L. Buhler
5 AN ACT RELATING TO COMMERCE AND TRADE; AMENDING THE DEFINITIONS OF
6 TRANSACTIONAL RESOURCES AND TELEPHONE SOLICITATION AS OVERSEEN
7 BY THE DIVISION OF CONSUMER PROTECTION.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 13-2-6, as last amended by Chapter 177, Laws of Utah 1994
11 13-26-2, as last amended by Chapter 26, Laws of Utah 1995
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 13-2-6 is amended to read:
14 13-2-6. Enforcement powers.
15 (1) In accordance with Title 63, Chapter 46b, Administrative Procedures Act, the division
16 shall have authority to convene administrative hearings, issue cease and desist orders, and impose
17 fines under all the chapters identified in Section 13-2-1.
18 (2) Any person who intentionally violates a final cease and desist order entered by the
19 division of which he has notice is guilty of a third degree felony.
20 (3) If the division has reasonable cause to believe that any person is engaged in violating
21 any chapter listed in Section 13-2-1, the division may promptly issue the alleged violator a citation
22 signed by the division's director or his designee.
23 (a) Each citation shall be in writing and shall:
24 (i) set forth with particularity the nature of the violation, including a reference to the
25 statutory or administrative rule provision being violated;
26 (ii) state that any request for review of the citation must be made in writing and be
27 received by the division no more than ten days following issuance;

1 (iii) state the consequences of failing to make a timely request for review; and
2 (iv) state all other information required by Subsection 63-46b-3(2).
3 (b) In computing any time period prescribed by this section, the following days may not
4 be included:
5 (i) the day a citation is issued by the division;
6 (ii) the day the division received a request for review of a citation;
7 (iii) Saturdays and Sundays; and
8 (iv) a legal holiday set forth in Subsection 63-13-2(1)(a).
9 (c) If the recipient of a citation makes a timely request for review, within ten days of
10 receiving the request, the division shall convene an adjudicative proceeding in accordance with
11 Title 63, Chapter 46b, Administrative Procedures Act.
12 (d) (i) If the presiding officer finds that there is not substantial evidence that the recipient
13 violated a chapter listed in Section 13-2-1 at the time the citation was issued, the citation may not
14 become final, and the division shall immediately vacate the citation and promptly notify the
15 recipient in writing.
16 (ii) If the presiding officer finds there is substantial evidence that the recipient violated a
17 chapter listed in Section 13-2-1 at the time the citation was issued, the citation shall become final
18 and the division may enter a cease and desist order against the recipient.
19 (e) A citation issued under this chapter may be personally served upon any person upon
20 whom a summons may be served in accordance with the Utah Rules of Civil Procedure. A citation
21 also may be served by first-class mail, postage prepaid.
22 (f) If the recipient fails to make a timely request for review, the citation shall become the
23 final order of the division. The period to contest the citation may be extended by the director for
24 good cause shown.
25 (g) If the chapter violated allows for an administrative fine, after a citation becomes final,
26 the director may impose the administrative fine.
27 (4) (a) A person violating a chapter identified in Section 13-2-1 is subject to the division's
28 jurisdiction if:
29 (i) the violation or attempted violation is committed either wholly or partly within the
30 state;
31 (ii) conduct committed outside the state constitutes an attempt to commit a violation

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1 within the state; or
2 (iii) transactional resources located within the state are used by the offender to directly or
3 indirectly facilitate a violation or attempted violation.
4 (b) As used in this section, "transactional resources" means:
5 (i) any mail drop or mail box, whether or not located on the premises of a United States
6 Post Office;
7 (ii) any telephone or facsimile transmission device;
8 (iii) any internet connection by a resident or inhabitant of this state with either a resident
9 or nonresident maintained internet site;
10 (iv) any business office or private residence used for a business-related purpose;
11 (v) any account with or services of a financial institution;
12 (vi) the services of a common or private carrier; or
13 (vii) the use of any city, county, or state asset or facility, including any road or highway.
14 (5) The director or his designee, for the purposes outlined in any chapter administered by
15 the division, may administer oaths, issue subpoenas, compel the attendance of witnesses, and
16 compel the production of papers, books, accounts, documents, and evidence.
17 Section 2. Section 13-26-2 is amended to read:
18 13-26-2. Definitions.
19 As used in this chapter, unless the context otherwise requires:
20 (1) "Continuity plan" means a shipment, with the prior express consent of the buyer, at
21 regular intervals of similar special-interest products. A continuity plan is distinguished from a
22 subscription arrangement by no binding commitment period or purchase amount.
23 (2) "Division" means the Division of Consumer Protection.
24 (3) "Fictitious personal name" means a name other than an individual's true name. An
25 "individual's true name" is the name taken at birth unless changed by operation of law or by civil
26 action.
27 (4) "Material statement" or "material fact" means information that a person of ordinary
28 intelligence or prudence would consider important in deciding whether or not to accept an offer
29 extended through a telephone solicitation.
30 (5) "Premium" means a gift, bonus, prize, award, certificate, or other document by which
31 a prospective purchaser is given a right, chance, or privilege to purchase or receive goods or

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1 services with a stated or represented value of $25 or more as an inducement to a prospective
2 purchaser to purchase other goods or services.
3 (6) "Subscription arrangements," "standing order arrangements," "supplements," and
4 "series arrangements" mean products or services provided, with the prior express request or
5 consent of the buyer, for a specified period of time at a price dependent on the duration of service
6 and to complement an initial purchase.
7 (7) (a) "Telephone solicitation," "sale," "selling," or "solicitation of sale" means a sale or
8 solicitation of goods or services in which:
9 (i) (A) the seller solicits the sale over the telephone;
10 (B) the purchaser's agreement to purchase is made over the telephone; and
11 (C) the purchaser, over the telephone, pays for or agrees to commit to payment for goods
12 or services prior to or upon receipt by the purchaser of the goods or services;
13 (ii) the solicitor, not exempt under Section 13-26-4, induces a prospective purchaser over
14 the telephone, to make and keep an appointment that[: (A) is not a home solicitation sale subject
15 to Title 70C, Chapter 5, Home Solicitation Sales; and (B) ] directly results in the purchase of
16 goods or services by the purchaser that would not have occurred without the telephone solicitation
17 and inducement by the solicitor[.];
18 (iii) the seller offers or promises a premium to a prospective purchaser if:
19 (A) the seller induces the prospective purchaser to initiate a telephone contact with the
20 telephone soliciting business; and
21 (B) the resulting solicitation meets the requirements of Subsection (7)(a); or
22 (iv) the solicitor solicits a charitable donation involving the exchange of any premium,
23 prize, gift, ticket, subscription, or other benefit in connection with any appeal made for a charitable
24 purpose by an organization that is not otherwise exempt under Subsection 13-26-4(2)(b)(iv).
25 (b) A solicitation of sale or telephone solicitation is considered complete when made,
26 whether or not the person receiving the solicitation agrees to the sale or to make a charitable
27 donation.
28 (8) "Telephone soliciting business" means a sole proprietorship, partnership, limited
29 liability company, corporation, or other association of individuals engaged in a common effort to
30 solicit sales regulated under this chapter.
31 (9) "Telephone solicitor" or "solicitor" means a person, partnership, limited liability

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1 company, corporation, or other entity that makes, places, or receives telephone calls for the
2 purpose of selling or solicitation of sales as defined in Subsection (7) over the telephone, whether
3 the calls originate in Utah or are received in Utah.




Legislative Review Note
as of 12-4-96 1:19 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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