1     
CONSUMER PROTECTION AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

5     
House Sponsor: Val L. Peterson

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to consumer protection.
10     Highlighted Provisions:
11          This bill:
12          ▸     clarifies and amends certain requirements related to the Division of Consumer
13     Protection's enforcement powers;
14          ▸     modifies the definition of "educational credentials";
15          ▸     addresses institutions that are exempt from the Utah Postsecondary Proprietary
16     School Act; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          13-2-6, as last amended by Laws of Utah 2010, Chapter 378
25          13-34-103, as last amended by Laws of Utah 2014, Chapter 360
26          13-34-105, as last amended by Laws of Utah 2014, Chapter 360
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 13-2-6 is amended to read:
30          13-2-6. Enforcement powers.
31          (1) In accordance with Title 63G, Chapter 4, Administrative Procedures Act, the
32     division shall have authority to convene administrative hearings, issue cease and desist orders,
33     and impose fines under all the chapters identified in Section 13-2-1.
34          (2) Any person who intentionally violates a final cease and desist order entered by the
35     division of which the person has notice is guilty of a third degree felony.
36          (3) If the division has reasonable cause to believe that any person [is engaged in] has
37     violated or is violating any chapter listed in Section 13-2-1, the division may promptly issue the
38     alleged violator a citation signed by the division's director or the director's designee.
39          (a) Each citation shall be in writing and shall:
40          (i) set forth with particularity the nature of the violation, including a reference to the
41     statutory or administrative rule provision [being] violated;
42          (ii) state that any request for review of the citation shall be made in writing and be
43     received by the division no more than [10] 20 calendar days following issuance;
44          (iii) state the consequences of failing to make a timely request for review; and
45          (iv) state all other information required by Subsection 63G-4-201(2).
46          (b) In computing any time period prescribed by this section, the following days may
47     not be included:
48          (i) the day on which the division issues a citation [is issued by the division]; and
49          (ii) the day on which the division [received] receives a request for review of a
50     citation[;].
51          [(iii) Saturdays and Sundays; and]
52          [(iv) a legal holiday set forth in Subsection 63G-1-301(1)(a).]
53          (c) If the recipient of a citation makes a timely request for review, within [10] 20
54     calendar days [of] after receiving the request, the division shall [convene] initiate an
55     adjudicative proceeding in accordance with Title 63G, Chapter 4, Administrative Procedures
56     Act.
57          (d) (i) If the presiding officer finds that there is not substantial evidence that the
58     recipient violated a chapter listed in Section 13-2-1 [at the time the citation was issued], the
59     citation may not become final, and the division shall immediately vacate the citation and
60     promptly notify the recipient in writing.
61          (ii) If the presiding officer finds that there is substantial evidence that the recipient
62     violated a chapter listed in Section 13-2-1 [at the time the citation was issued], the citation
63     shall become final and the division may enter a cease and desist order against the recipient.
64          (e) A citation issued under this chapter may be personally served upon any person upon
65     whom a summons may be served in accordance with the Utah Rules of Civil Procedure. A
66     citation also may be served by first-class mail, postage prepaid.
67          (f) If the recipient fails to make a timely request for review, the citation shall become
68     the final order of the division. The period to contest the citation may be extended by the
69     director for good cause shown.
70          (g) If the chapter violated allows for an administrative fine, after a citation becomes
71     final, the director may impose the administrative fine.
72          (4) (a) A person [violating] who has violated, is violating, or has attempted to violate a
73     chapter identified in Section 13-2-1 is subject to the division's jurisdiction if:
74          (i) the violation or attempted violation is committed [either] wholly or partly within the
75     state;
76          (ii) conduct committed outside the state constitutes an attempt to commit a violation
77     within the state; or
78          (iii) transactional resources located within the state are used by the offender to directly
79     or indirectly facilitate a violation or attempted violation.
80          (b) As used in this section, "transactional resources" means:
81          (i) any mail drop or mail box, regardless of whether [or not] the mail drop or mail box
82     is located on the premises of a United States Post Office;
83          (ii) any telephone or facsimile transmission device;
84          (iii) any Internet connection by a resident or inhabitant of this state with [either] a
85     resident- or nonresident-maintained internet site;
86          (iv) any business office or private residence used for a business-related purpose;
87          (v) any account with or services of a financial institution;
88          (vi) the services of a common or private carrier; or
89          (vii) the use of any city, county, or state asset or facility, including any road or
90     highway.
91          (5) The director or the director's designee, for the purposes outlined in any chapter
92     administered by the division, may administer oaths, issue subpoenas, compel the attendance of
93     witnesses, [and] or compel the production of papers, books, accounts, documents, [and] or
94     evidence.
95          Section 2. Section 13-34-103 is amended to read:
96          13-34-103. Definitions.
97          As used in this chapter:
98          (1) "Agent" means any person who:
99          (a) owns an interest in or is employed by a proprietary school; and
100          (b) (i) enrolls or attempts to enroll a resident of this state in a proprietary school;
101          (ii) offers to award educational credentials for remuneration on behalf of a proprietary
102     school; or
103          (iii) holds himself out to residents of this state as representing a proprietary school for
104     any purpose.
105          (2) (a) "Certificate of registration" means approval from the division to operate a
106     school or institution in compliance with this chapter and rules adopted under this chapter.
107          (b) "Certificate of registration" does not mean an endorsement of the school or
108     institution by either the division or the state.
109          (3) "Division" means the Division of Consumer Protection.
110          (4) "Educational credentials" means degrees, diplomas, certificates, transcripts, reports,
111     documents, or letters of designation, marks, appellations, series of letters, numbers, or words
112     [which] that signify or appear to signify [enrollment, attendance, progress, or] satisfactory
113     completion of [the requirements or prerequisites] any requirement or prerequisite for any
114     educational program.
115          (5) "Institution" means an individual, corporation, partnership, association,
116     cooperative, or other legal entity.
117          (6) "Offer" means to advertise, publicize, solicit, or encourage any person directly or
118     indirectly.
119          (7) "Operate" in this state means to:
120          (a) maintain a place of business in the state;
121          (b) solicit business in the state;
122          (c) conduct significant educational activities within the state; or
123          (d) offer or provide postsecondary instruction leading to a postsecondary degree or
124     certificate to any number of Utah residents from a location outside the state by correspondence
125     or any telecommunications or electronic media technology.
126          (8) "Ownership" means:
127          (a) the controlling interest in a school, institution, or college; or
128          (b) if an entity holds the controlling interest in the school, institution, or college, the
129     controlling interest in the entity that holds the controlling interest in the school, institution, or
130     college.
131          (9) "Postsecondary education" means education or educational services offered
132     primarily to individuals who:
133          (a) have completed or terminated their secondary or high school education; or
134          (b) are beyond the age of compulsory school attendance.
135          (10) (a) "Proprietary school" means a private institution, including a business,
136     modeling, paramedical, tax preparation, or trade or technical school, that offers postsecondary
137     education:
138          (i) in consideration of the payment of tuition or fees; and
139          (ii) for the attainment of educational, professional, or vocational objectives.
140          (b) "Proprietary school" does not include an institution that is exempt from this chapter
141     under Section 13-34-105.
142          (11) "Utah institution" means a school or institution that:
143          (a) offers postsecondary education; and
144          (b) is headquartered or primarily operates in Utah.
145          Section 3. Section 13-34-105 is amended to read:
146          13-34-105. Exempted institutions.
147          [(1) This chapter does not apply to:]
148          (1) The following institutions are exempt from the provisions of this chapter, if the
149     institution establishes an exemption with the division in accordance with Subsection
150     13-34-107(1)(b)(ii):
151          (a) a Utah institution directly supported, to a substantial degree, with funds provided
152     by:
153          (i) the state;
154          (ii) a local school district; or
155          (iii) any other Utah governmental subdivision;
156          [(b) an institution that offers instruction exclusively at or below the 12th grade level;]
157          [(c)] (b) a lawful enterprise that offers only professional review programs, including
158     C.P.A. and bar examination review and preparation courses;
159          [(d)] (c) a private institution that:
160          (i) provides postsecondary education; and
161          (ii) is owned, controlled, operated, or maintained by a bona fide church or religious
162     denomination, that is exempted from property taxation under the laws of this state;
163          [(e)] (d) [a school or] an institution that is accredited by a regional or national
164     accrediting agency recognized by the United States Department of Education;
165          [(f)] (e) subject to Subsection (4), a business organization, trade or professional
166     association, fraternal society, or labor union that:
167          (i) sponsors or conducts courses of instruction or study predominantly for bona fide
168     employees or members; and
169          (ii) does not advertise as a school;
170          [(g)] (f) an institution that exclusively offers one or more of the following :
171          (i) [(A) exclusively offers] general education [courses or instruction that are]:
172          (A) that is remedial, avocational, nonvocational, or recreational in nature; and
173          (B) for which the institution does not advertise occupation objectives or grant
174     [educational credentials; or] a degree, diploma, or other educational credential commensurate
175     with a degree or diploma ;
176          (ii) [exclusively prepares] preparation for individuals to teach courses or instruction
177     described in Subsection (1)[(g)](f)(i)(A);
178          (iii) courses in English as a second language;
179          (iv) instruction at or below the 12th grade level;
180          (v) nurse aide training programs that are approved by:
181          (A) the Bureau of Health Facility Licensing and Certification; or
182          (B) an entity authorized by the Bureau of Health Facility Licensing and Certification to
183     approve nurse aide certification programs; or
184          (vi) content:
185          (A) that is exclusively available on the Internet;
186          (B) for which the institution charges $1,000 or less in a 12-month period; and
187          (C) for which the institution does not grant educational credentials other than a
188     certificate that indicates completion and that does not represent achievement or proficiency;
189          [(h)] (g) an institution that offers only workshops or seminars:
190          (i) lasting no longer than three calendar days; and
191          (ii) for which academic credit is not awarded;
192          [(i)] (h) an institution that offers programs:
193          (i) in barbering, cosmetology, real estate, or insurance; and
194          (ii) that are regulated and approved by a state or federal governmental agency;
195          [(j)] (i) an education provider certified by the Division of Real Estate under Section
196     61-2c-204.1;
197          [(k)] (j) an institution that offers aviation training if the institution:
198          (i) (A) is approved under Federal Aviation Regulations, 14 C.F.R. Part 141; or
199          (B) provides aviation training under Federal Aviation Regulations, 14 C.F.R. Part 61;
200     and
201          [(ii) exclusively offers aviation training that a student fully receives within 24 hours
202     after the student pays any tuition, fee, or other charge for the aviation training;]
203          (ii) does not collect tuition, fees, membership dues, or other payment more than 24
204     hours before the student receives the aviation training; and
205          [(l)] (k) an institution that provides emergency medical services training if all of the
206     institution's instructors, course coordinators, and courses are approved by the Department of
207     Health[; and].
208          [(m) an institution that exclusively conducts nurse aide training programs that are
209     approved by the State Office of Vocational Education and are subject to the Nurse Aide
210     Registry.]
211          [(2) If available evidence suggests that an exempt institution under this section is not in
212     compliance with the standards of registration under this chapter and applicable division rules,
213     the division shall contact the institution and, if appropriate, the state or federal government
214     agency to request corrective action.]
215          (2) An institution that no longer qualifies for an exemption that the institution
216     established with the division under Subsection 13-34-107(1)(b)(ii) shall comply with the other
217     provisions of Section 13-34-107.
218          (3) An institution, branch, extension, or facility operating within the state that is
219     affiliated with an institution operating in another state shall be separately approved by the
220     affiliate's regional or national accrediting agency to qualify for the exemption described in
221     Subsection (1)[(e)](d).
222          (4) For purposes of Subsection (1)[(f)](e), a business organization, trade or
223     professional association, fraternal society, or labor union is considered to be conducting the
224     course predominantly for bona fide employees or members if [it] the entity hires a majority of
225     the [persons] individuals who:
226          (a) successfully complete [its] the course of instruction or study with a reasonable
227     degree of proficiency; and
228          (b) apply for employment with that same entity.
229          (5) If the United States Department of Education no longer recognizes an institution's
230     accrediting agency, the institution remains exempt under Subsection (1)(d):
231          (a) during any grace period provided by the United States Department of Education for
232     obtaining new accreditation, if the institution demonstrates to the division that the institution is
233     within the grace period; or
234          (b) if the institution demonstrates to the division that the United States Department of
235     Education otherwise considers the institution to have recognized accreditation.




Legislative Review Note
Office of Legislative Research and General Counsel