1     
RESIDENTIAL SOLAR ENERGY AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Lincoln Fillmore

5     
House Sponsor: Mike Winder

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions relating to residential solar energy systems.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires a solar retailer to provide a written disclosure statement to a potential
13     customer and specifies the timing and content of the disclosure statement; and
14          ▸     provides for the enforcement of the disclosure requirements.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          13-2-1, as last amended by Laws of Utah 2017, Chapter 98
22     ENACTS:
23          13-52-101, Utah Code Annotated 1953
24          13-52-102, Utah Code Annotated 1953
25          13-52-103, Utah Code Annotated 1953
26          13-52-201, Utah Code Annotated 1953
27          13-52-202, Utah Code Annotated 1953
28          13-52-203, Utah Code Annotated 1953

29          13-52-204, Utah Code Annotated 1953
30          13-52-205, Utah Code Annotated 1953
31          13-52-206, Utah Code Annotated 1953
32          13-52-301, Utah Code Annotated 1953
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 13-2-1 is amended to read:
36          13-2-1. Consumer protection division established -- Functions.
37          (1) There is established within the Department of Commerce the Division of Consumer
38     Protection.
39          (2) The division shall administer and enforce the following:
40          (a) Chapter 5, Unfair Practices Act;
41          (b) Chapter 10a, Music Licensing Practices Act;
42          (c) Chapter 11, Utah Consumer Sales Practices Act;
43          (d) Chapter 15, Business Opportunity Disclosure Act;
44          (e) Chapter 20, New Motor Vehicle Warranties Act;
45          (f) Chapter 21, Credit Services Organizations Act;
46          (g) Chapter 22, Charitable Solicitations Act;
47          (h) Chapter 23, Health Spa Services Protection Act;
48          (i) Chapter 25a, Telephone and Facsimile Solicitation Act;
49          (j) Chapter 26, Telephone Fraud Prevention Act;
50          (k) Chapter 28, Prize Notices Regulation Act;
51          (l) Chapter 32a, Pawnshop and Secondhand Merchandise Transaction Information Act;
52          (m) Chapter 34, Utah Postsecondary Proprietary School Act;
53          (n) Chapter 34a, Utah Postsecondary School State Authorization Act;
54          (o) Chapter 39, Child Protection Registry;
55          (p) Chapter 41, Price Controls During Emergencies Act;

56          (q) Chapter 42, Uniform Debt-Management Services Act;
57          (r) Chapter 49, Immigration Consultants Registration Act; [and]
58          (s) Chapter 51, Transportation Network Company Registration Act[.]; and
59          (t) Chapter 52, Residential Solar Energy Disclosure Act.
60          Section 2. Section 13-52-101 is enacted to read:
61     
CHAPTER 52. RESIDENTIAL SOLAR ENERGY DISCLOSURE ACT

62     
Part 1. General Provisions

63          13-52-101. Title.
64          This chapter is known as the "Residential Solar Energy Disclosure Act."
65          Section 3. Section 13-52-102 is enacted to read:
66          13-52-102. Definitions.
67          As used in this chapter:
68          (1) "Customer" means a person who, for primarily personal, family, or household
69     purposes:
70          (a) purchases a residential solar energy system under a system purchase agreement;
71          (b) leases a residential solar energy system under a system lease agreement; or
72          (c) purchases electricity under a power purchase agreement.
73          (2) "Division" means the Division of Consumer Protection, established in Section
74     13-2-1.
75          (3) "Power purchase agreement" means an agreement:
76          (a) between a customer and a solar retailer;
77          (b) for the customer's purchase of electricity generated by a residential solar energy
78     system owned by the solar retailer; and
79          (c) that provides for the customer to make payments over a term of at least five years.
80          (4) "Residential solar energy system":
81          (a) means a solar energy system that:
82          (i) is installed in the state;

83          (ii) generates electricity primarily for on-site consumption for personal, family, or
84     household purposes;
85          (iii) is situated on no more than four units of residential real property; and
86          (iv) has an electricity delivery capacity that exceeds one kilowatt; and
87          (b) does not include a generator that:
88          (i) produces electricity; and
89          (ii) is intended for occasional use.
90          (5) "Solar agreement" means a system purchase agreement, a system lease agreement,
91     or a power purchase agreement.
92          (6) "Solar energy system" means a system or configuration of solar energy devices that
93     collects and uses solar energy to generate electricity.
94          (7) "Solar retailer" means a person who:
95          (a) sells or proposes to sell a residential solar energy system to a customer under a
96     system purchase agreement;
97          (b) owns the residential solar energy system that is the subject of a system lease
98     agreement or proposed system lease agreement; or
99          (c) sells or proposes to sell electricity to a customer under a power purchase agreement.
100          (8) "System lease agreement" means an agreement:
101          (a) under which a customer leases a residential solar energy system from a solar
102     retailer; and
103          (b) that provides for the customer to make payments over a term of at least five years
104     for the lease of the residential solar energy system.
105          (9) "System purchase agreement" means an agreement under which a customer
106     purchases a residential solar energy system from a solar retailer.
107          Section 4. Section 13-52-103 is enacted to read:
108          13-52-103. Applicability of chapter.
109          This chapter:

110          (1) applies to each solar agreement entered into on or after September 3, 2018,
111     including a solar agreement that accompanies the transfer of ownership or lease of real
112     property; and
113          (2) does not apply to:
114          (a) the transfer of title or rental of real property on which a residential solar energy
115     system is or is expected to be located, if the presence of the residential solar energy system is
116     incidental to the transfer of title or rental;
117          (b) a lender, governmental entity, or other third party that enters into an agreement with
118     a customer to finance a residential solar energy system but is not a party to a system purchase
119     agreement, power purchase agreement, or lease agreement;
120          (c) a sale or lease of, or the purchase of electricity from, a solar energy system that is
121     not a residential solar energy system; or
122          (d) the lease of a residential solar energy system or the purchase of power from a
123     residential solar energy system under an agreement providing for payments over a term of less
124     than five years.
125          Section 5. Section 13-52-201 is enacted to read:
126     
Part 2. Disclosure Statement

127          13-52-201. Disclosure statement required.
128          (1) (a) Before entering a solar agreement, a solar retailer shall provide to a potential
129     customer a separate, written disclosure statement as provided in this section and, as applicable,
130     Sections 13-52-202, 13-52-203, 13-52-204, and 13-52-205.
131          (b) (i) The requirement under Subsection (1)(a) may be satisfied by the electronic
132     delivery of a disclosure statement to the potential customer.
133          (ii) An electronic document under Subsection (1)(a) satisfies the font-size standard
134     under Subsection (2)(a) if the required disclosures are displayed in a clear and conspicuous
135     manner.
136          (2) A disclosure statement under Subsection (1) shall:

137          (a) be in at least 12-point font;
138          (b) contain:
139          (i) the name, address, telephone number, and any email address of the potential
140     customer;
141          (ii) the name, address, telephone number, and email address of the solar retailer; and
142          (iii) (A) the name, address, telephone number, email address, and state contractor
143     license number of the person who is expected to install the system that is the subject of the
144     solar agreement; and
145          (B) if the solar retailer selected the person who is expected to provide operations or
146     maintenance support to the potential customer or introduced that person to the potential
147     customer, the name, address, telephone number, email address, and state contractor license of
148     the operations or maintenance support person; and
149          (c) include applicable information and disclosures as provided in Sections 13-52-202,
150     13-52-203, 13-52-204, and 13-52-205.
151          Section 6. Section 13-52-202 is enacted to read:
152          13-52-202. Contents of disclosure statement for any solar agreement.
153          If a solar retailer is proposing to enter any solar agreement with a potential customer,
154     the disclosure statement required in Subsection 13-52-201(1) shall include:
155          (1) a statement indicating that operations or maintenance services are not included as
156     part of the solar agreement, if those services are not included as part of the solar agreement;
157          (2) if the solar retailer provides any written estimate of the savings the potential
158     customer is projected to realize from the system:
159          (a) (i) the estimated projected savings over the life of the solar agreement; and
160          (ii) at the discretion of the solar retailer, the estimated projected savings over any
161     longer period not to exceed the anticipated useful life of the system;
162          (b) any material assumptions used to calculate estimated projected savings and the
163     source of those assumptions, including:

164          (i) if an annual electricity rate increase is assumed, the rate of the increase and the solar
165     retailer's basis for the assumption of the rate increase;
166          (ii) the potential customer's eligibility for or receipt of tax credits or other
167     governmental or utility incentives;
168          (iii) system production data, including production degradation;
169          (iv) the system's eligibility for interconnection under any net metering or similar
170     program;
171          (v) electrical usage and the system's designed offset of the electrical usage;
172          (vi) historical utility costs paid by the potential customer;
173          (vii) any rate escalation affecting a payment between the potential customer and the
174     solar retailer; and
175          (viii) the costs associated with replacing equipment making up part of the system or, if
176     those costs are not assumed, a statement indicating that those costs are not assumed; and
177          (c) two separate statements in capital letters in close proximity to any written estimate
178     of projected savings, with substantially the following form and content:
179          (i) "THIS IS AN ESTIMATE. UTILITY RATES MAY GO UP OR DOWN AND
180     ACTUAL SAVINGS, IF ANY, MAY VARY. HISTORICAL DATA ARE NOT
181     NECESSARILY REPRESENTATIVE OF FUTURE RESULTS. FOR FURTHER
182     INFORMATION REGARDING RATES, CONTACT YOUR LOCAL UTILITY OR THE
183     STATE PUBLIC SERVICE COMMISSION."; and
184          (ii) "TAX AND OTHER FEDERAL, STATE, AND LOCAL INCENTIVES VARY
185     AS TO REFUNDABILITY AND ARE SUBJECT TO CHANGE OR TERMINATION BY
186     LEGISLATIVE OR REGULATORY ACTION, WHICH MAY IMPACT SAVINGS
187     ESTIMATES. CONSULT A TAX PROFESSIONAL FOR MORE INFORMATION.";
188          (3) a notice with substantially the following form and content: "Legislative or
189     regulatory action may affect or eliminate your ability to sell or get credit for any excess power
190     generated by the system, and may affect the price or value of that power.";

191          (4) a notice describing any right a customer has under applicable law to cancel or
192     rescind a solar agreement;
193          (5) a statement describing the system and indicating the system design assumptions,
194     including the make and model of the solar panels and inverters, system size, positioning of the
195     panels on the customer's property, estimated first-year energy production, and estimated annual
196     energy production degradation, including the overall percentage degradation over the term of
197     the solar agreement or, at the solar retailer's option, over the estimated useful life of the system;
198          (6) a description of any warranty, representation, or guarantee of energy production of
199     the system;
200          (7) the approximate start and completion dates for the installation of the system;
201          (8) a statement indicating whether any warranty or maintenance obligations related to
202     the system may be transferred by the solar retailer to a third party and, if so, a statement with
203     substantially the following form and content: "The maintenance and repair obligations under
204     your contract may be assigned or transferred without your consent to a third party who will be
205     bound to all the terms of the contract. If a transfer occurs, you will be notified of any change to
206     the address, email address, or phone number to use for questions or payments or to request
207     system maintenance or repair.";
208          (9) if the solar retailer will not obtain customer approval to connect the system to the
209     customer's utility, a statement to that effect and a description of what the customer must do to
210     interconnect the system to the utility;
211          (10) a description of any roof penetration warranty or other warranty that the solar
212     retailer provides the customer or a statement, in bold capital letters, that the solar retailer does
213     not provide any warranty;
214          (11) a statement indicating whether the solar retailer will make a fixture filing or other
215     notice in the county real property records covering the system, including a Notice of
216     Independently Owned Solar Energy System, and any fees or other costs associated with the
217     filing that may be charged to the customer;

218          (12) a statement in capital letters with substantially the following form and content:
219     "NO EMPLOYEE OR REPRESENTATIVE OF [name of solar retailer] IS AUTHORIZED TO
220     MAKE ANY PROMISE TO YOU THAT IS NOT CONTAINED IN THIS DISCLOSURE
221     STATEMENT CONCERNING COST SAVINGS, TAX BENEFITS, OR GOVERNMENT
222     OR UTILITY INCENTIVES. YOU SHOULD NOT RELY UPON ANY PROMISE OR
223     ESTIMATE THAT IS NOT INCLUDED IN THIS DISCLOSURE STATEMENT.";
224          (13) a statement in capital letters with substantially the following form and content:
225     "[name of solar retailer] IS NOT AFFILIATED WITH ANY UTILITY COMPANY OR
226     GOVERNMENT AGENCY. NO EMPLOYEE OR REPRESENTATIVE OF [name of solar
227     retailer] IS AUTHORIZED TO CLAIM AFFILIATION WITH A UTILITY COMPANY OR
228     GOVERNMENT AGENCY."; and
229          (14) any additional information, statement, or disclosure the solar retailer considers
230     appropriate, as long as the additional information, statement, or disclosure does not have the
231     purpose or effect of obscuring the disclosures required under this part.
232          Section 7. Section 13-52-203 is enacted to read:
233          13-52-203. Contents of disclosure statement for system purchase agreement.
234          If a solar retailer is proposing to enter a system purchase agreement with a potential
235     customer, the disclosure statement required in Subsection 13-52-201(1) shall include:
236          (1) a statement with substantially the following form and content: "You are entering an
237     agreement to purchase an energy generation system. You will own the system installed on your
238     property. You may be entitled to federal tax credits because of the purchase. You should
239     consult your tax advisor.";
240          (2) the price quoted to the potential customer for a cash purchase of the system;
241          (3) (a) the schedule of required and anticipated payments from the customer to the
242     solar retailer and third parties over the term of the system purchase agreement, including
243     application fees, up-front charges, down payment, scheduled payments under the system
244     purchase agreement, payments at the end of the term of the system purchase agreement,

245     payments for any operations or maintenance contract offered by or through the solar retailer in
246     connection with the system purchase agreement, and payments for replacement of system
247     components likely to require replacement before the end of the useful life of the system as a
248     whole; and
249          (b) the total of all payments referred to in Subsection (3)(a);
250          (4) a statement indicating that the cost of insuring the system is not included within the
251     schedule of payments under Subsection (3);
252          (5) a statement, if applicable, with substantially the following form and content: "You
253     are responsible for obtaining insurance coverage for any loss or damage to the system. You
254     should consult an insurance professional to understand how to protect against the risk of loss or
255     damage to the system. You should also consult your home insurer about the potential impact of
256     installing a system."; and
257          (6) information about whether the system may be transferred to a purchaser of the
258     home or real property where the system is located and any conditions for a transfer.
259          Section 8. Section 13-52-204 is enacted to read:
260          13-52-204. Contents of disclosure statement for system lease agreement.
261          If a solar retailer is proposing to enter a system lease agreement with a potential
262     customer, the disclosure statement required in Subsection 13-52-201(1) shall include:
263          (1) a statement with substantially the following form and content: "You are entering an
264     agreement to lease an energy generation system. You will lease (not own) the system installed
265     on your property. You will not be entitled to any federal tax credit associated with the lease.";
266          (2) information about whether the system lease agreement may be transferred to a
267     purchaser of the home or real property where the system is located and, if so, any conditions for
268     a transfer;
269          (3) if the solar retailer will not obtain insurance against damage or loss to the system, a
270     statement to that effect and a description of the consequences to the customer if there is
271     damage or loss to the system; and

272          (4) information about what will happen to the system at the end of the term of the
273     system lease agreement.
274          Section 9. Section 13-52-205 is enacted to read:
275          13-52-205. Contents of disclosure statement for power purchase agreement.
276          If a solar retailer is proposing to enter a power purchase agreement with a potential
277     customer, the disclosure statement required in Subsection 13-52-201(1) shall include:
278          (1) a statement with substantially the following form and content: "You are entering an
279     agreement to purchase power from an energy generation system. You will not own the system
280     installed on your property. You will not be entitled to any federal tax credit associated with the
281     purchase.";
282          (2) information about whether the power purchase agreement may be transferred to a
283     purchaser of the home or real property where the system is located and, if so, any conditions for
284     a transfer;
285          (3) if the solar retailer will not obtain insurance against damage or loss to the system, a
286     statement to that effect and a description of the consequences to the customer if there is
287     damage or loss to the system; and
288          (4) information about what will happen to the system at the end of the term of the
289     power purchase agreement.
290          Section 10. Section 13-52-206 is enacted to read:
291          13-52-206. Good faith estimate allowed.
292          A solar retailer that does not, at the time of providing a disclosure statement required in
293     Subsection 13-52-201(1), have information required under Section 13-52-202, 13-52-203,
294     13-52-204, or 13-52-205 to be included in the disclosure statement may make a good faith
295     estimate of that information, if the solar retailer clearly indicates that the information is an
296     estimate and provides the basis for the estimate.
297          Section 11. Section 13-52-301 is enacted to read:
298     
Part 3. Enforcement


299          13-52-301. Division enforcement authority -- Administrative fine.
300          (1) Subject to Subsection (2), the division may enforce the provisions of this chapter
301     by:
302          (a) conducting an investigation into an alleged violation of this chapter;
303          (b) issuing a cease and desist order against a further violation of this chapter; and
304          (c) imposing an administrative fine of no more than $2,500 per solar agreement on a
305     solar retailer that:
306          (i) materially fails to comply with the disclosure requirements of this chapter; or
307          (ii) violates any other provision of this chapter, if the division finds that the violation is
308     a willful or intentional attempt to mislead or deceive a customer.
309          (2) The division may not commence any enforcement action under this section more
310     than four years after the date of execution of the solar agreement with respect to which a
311     violation is alleged to have occurred.
312          (3) The division shall, in its discretion:
313          (a) deposit an administrative fine collected under Subsection (1)(c) in the Consumer
314     Protection Education and Training Fund created in Section 13-2-8; or
315          (b) distribute an administrative fine collected under Subsection (1)(c) to a customer
316     adversely affected by the solar retailer's failure or violation resulting in a fine under Subsection
317     (1)(c), if the division has conducted an administrative proceeding resulting in a determination
318     of the appropriateness and amount of any distribution to a customer.
319          (4) Nothing in this chapter may be construed to affect:
320          (a) a remedy a customer has independent of this chapter; or
321          (b) the division's ability or authority to enforce any other law or regulation.