1     
PRICE CONTROLS DURING EMERGENCIES ACT

2     
AMENDMENTS

3     
2021 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Rex P. Shipp

6     
Senate Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill amends the Price Controls During Emergencies Act.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends the definition of "excessive price";
14          ▸     defines "margin" and "total cost";
15          ▸     amends the conditions under which a person may charge an excessive price;
16          ▸     permits the Division of Consumer Protection to issue a subpoena for certain
17     documents under certain conditions; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          13-41-102, as last amended by Laws of Utah 2013, Chapter 295
26          13-41-201, as enacted by Laws of Utah 2005, Chapter 306
27          13-41-202, as last amended by Laws of Utah 2006, Chapter 153
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 13-41-102 is amended to read:
31          13-41-102. Definitions.
32          For purposes of this chapter:
33          (1) "Consumer" means a person who seeks to acquire or acquires a good or service for
34     consumption.
35          (2) "Division" means the Division of Consumer Protection.
36          (3) (a) "Emergency territory" means the geographical area:
37          (i) for which there has been a state of emergency declared; and
38          (ii) that is directly affected by the events giving rise to a state of emergency.
39          (b) "Emergency territory" does not include a geographical area that is affected by the
40     events giving rise to a state of emergency only by economic market forces.
41          (4) "Excessive price" means:
42          (a) for a person that sold the good or provided the service in the 30-day period
43     immediately preceding the day on which a state of emergency is declared, a price for a good or
44     service that exceeds by more than 10% the [average price charged by that person for that]
45     highest price the person charged for the good or service in the 30-day period immediately
46     preceding the day on which the state of emergency is declared[.]; or
47          (b) for a person that did not sell the good or provide the service in the 30-day period
48     immediately preceding the day on which a state of emergency is declared, a price for a good or
49     service that is more than twice the person's total cost for the good or service.
50          (5) "Good" means any personal property displayed, held, or offered for sale by a
51     merchant that is necessary for consumption or use as a direct result of events giving rise to a
52     state of emergency.
53          (6) "Margin" means the difference between the sale price and the total cost of the good
54     or service.
55          [(6)] (7) "Retail" means the level of distribution where a good or service is typically
56     sold directly, or otherwise provided, to a member of the public who is an end user and does not
57     resell the good or service.
58          [(7)] (8) "Service" means any activity that is performed in whole or in part for the
59     purpose of financial gain including personal service, professional service, rental, leasing, or
60     licensing for use that is necessary for consumption or use as a direct result of events giving rise
61     to a state of emergency.
62          [(8)] (9) "State of emergency" means a declaration of:
63          (a) an emergency or major disaster by the president of the United States of America; or
64          (b) a state of emergency by the governor under Section 53-2a-206.
65          (10) (a) "Total cost" means an amount equal to:
66          (i) the sum of all costs associated with a person obtaining a product or service and
67     providing the product or service to a consumer, including fees, shipping, or employee labor;
68     minus
69          (ii) any trade discount, cash discount, or manufacturer rebate.
70          (b) "Total cost" does not include an amount that incorporates an ongoing cost to
71     operate a business that is not directly associated with a good or service.
72          Section 2. Section 13-41-201 is amended to read:
73          13-41-201. Excessive price prohibited.
74          (1) [Except as provided in Subsection (2), if a state of emergency exists, a] A person
75     may not [charge a consumer an excessive price for goods or services sold or provided] offer for
76     sale, offer to provide, sell, or provide a good or service to a consumer at an excessive price, if:
77          (a) a state of emergency exists; and
78          (b) the person offers for sale, offers to provide, sells, or provides the good or service at
79     retail:
80          [(a) (i)] (i) (A) during the time period for which a state of emergency declared by the
81     governor exists, if the state of emergency described in Subsection (1)(a) is declared by the
82     governor; or
83          [(ii)] (B) for 30 days after the day on which the state of emergency begins, if the state
84     of emergency described in Subsection (1)(a) is declared by the President of the United States;
85     and
86          [(b)] (ii) within the emergency territory.
87          (2) A person may [charge] offer for sale, offer to provide, sell, or provide a good or
88     service at an excessive price as otherwise prohibited under Subsection (1), if:
89          (a) that person's total cost [of obtaining the good or providing the] for the good or
90     service exceeds the average total cost to the person [of obtaining the good or providing the] for
91     the good or service in the 30-day period immediately preceding the day on which the state of
92     emergency is declared; and
93          (b) the excessive price [charged for] at which the person offers for sale, offers to
94     provide, sells, or provides the good or service does not exceed the sum of:
95          (i) [10% above] 110% of the total cost to that person [of obtaining the good or
96     providing the] for the good or service; and
97          (ii) the person's customary [markup] margin.
98          [(3) Upon request of the division, a person allegedly charging an excessive price under
99     Subsection (2) shall provide documentation to the division that the person is in compliance
100     with this chapter.]
101          [(4) If a good or service has not been sold by a person during the 30-day period
102     immediately preceding the day on which the state of emergency is declared, a price is not
103     excessive if it does not exceed 30% above the person's total cost of obtaining the good or
104     providing the service.]
105          Section 3. Section 13-41-202 is amended to read:
106          13-41-202. Enforcement -- Penalty.
107          (1) The division shall enforce this chapter.
108          (2) (a) The division may subpoena a person to provide documentation demonstrating
109     that the person is in compliance with this chapter.
110          (b) A subpoena described in Subsection (2)(a) shall allow the person at least 14 days
111     after the day on which the subpoena is served to provide a response.
112          [(2)] (3) In determining whether to impose penalties against a person who violates this
113     chapter, the division shall consider:
114          (a) the person's cost of doing business not accounted for in the total cost to the person
115     of the good or service, including costs associated with a decrease in the supply available to a
116     person who relies on a high volume of sales;
117          (b) the person's efforts to comply with this chapter;
118          (c) whether the average price [charged by] at which the person offers to sell, offers to
119     provide, sells, or provides a good or service during the 30-day period immediately preceding
120     the day on which the state of emergency is declared is artificially deflated because the good or
121     service was on sale for a lower price than the person customarily [charges] offers for the good
122     or service; and
123          (d) any other factor that the division considers appropriate.
124          [(3)] (4) (a) If the division finds that a person has violated, or is violating, this chapter,
125     the division may:
126          (i) issue a cease and desist order; and
127          (ii) subject to Subsection [(3)] (4)(b), impose an administrative fine of up to $1,000 for
128     each violation of this chapter.
129          (b) Each instance of charging an excessive price under Section 13-41-201 constitutes a
130     separate violation, but in no case shall the administrative fine imposed under Subsection [(3)]
131     (4)(a) exceed $10,000 per day.
132          [(4)] (5) The division may sue in a court of competent jurisdiction to enforce an order
133     under Subsection [(3)] (4).
134          [(5)] (6) In a suit brought under Subsection [(3)] (4), if the division prevails, the court
135     may award the division:
136          (a) court costs;
137          (b) attorney fees; and
138          (c) the division's costs incurred in the investigation of the violation of this chapter.
139          [(6)] (7) All money received through an administrative fine imposed, or judgment
140     obtained, under this section shall be deposited [in] into the Consumer Protection Education and
141     Training Fund created by Section 13-2-8.