HOUSE BILL NO. 469

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Bill Status



H0469......................................................by STATE AFFAIRS
DISASTER - CONSUMER PROTECTION ACT - Amends existing law to provide that it
is a violation of the Consumer Protection Act to take advantage of a
disaster or emergency declared by the Governor or the President of the
United States by selling or offering to sell to a wholesaler, a retailer or
the ultimate consumer, fuel or food, pharmaceuticals or water for human
consumption at an exhorbitant or excessive price for ninety days following
the declaration unless the Governor continues the declaration beyond that
period; to revise factors a court shall take into consideration to
determine whether a price is exorbitant or excessive; and to increase civil
penalties for a violation of the Consumer Protection Act.
                                                                        
01/25    House intro - 1st rdg - to printing
01/26    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 469
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE IDAHO CONSUMER PROTECTION ACT; AMENDING SECTION 48-603,  IDAHO
  3        CODE,  TO PROVIDE THAT IT IS A VIOLATION OF THE CONSUMER PROTECTION ACT TO
  4        TAKE ADVANTAGE OF A DISASTER OR EMERGENCY DECLARED BY THE GOVERNOR OR  THE
  5        PRESIDENT  OF THE UNITED STATES BY SELLING OR OFFERING TO SELL TO A WHOLE-
  6        SALER, A RETAILER OR THE ULTIMATE CONSUMER FUEL OR  FOOD,  PHARMACEUTICALS
  7        OR  WATER  FOR  HUMAN  CONSUMPTION AT AN EXORBITANT OR EXCESSIVE PRICE FOR
  8        NINETY DAYS FOLLOWING THE DECLARATION UNLESS THE  GOVERNOR  CONTINUES  THE
  9        DECLARATION  BEYOND  THAT  PERIOD AND TO REVISE FACTORS A COURT SHALL TAKE
 10        INTO CONSIDERATION TO DETERMINE WHETHER A PRICE IS  EXORBITANT  OR  EXCES-
 11        SIVE;  AND  AMENDING  SECTION 48-606, IDAHO CODE, TO INCREASE CIVIL PENAL-
 12        TIES.
                                                                        
 13    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 14        SECTION 1.  That Section 48-603, Idaho Code, be, and the  same  is  hereby
 15    amended to read as follows:
                                                                        
 16        48-603.  UNFAIR  METHODS  AND  PRACTICES.  The following unfair methods of
 17    competition and unfair or deceptive acts or practices in the  conduct  of  any
 18    trade or commerce are hereby declared to be unlawful, where a person knows, or
 19    in the exercise of due care should know, that he has in the past, or is:
 20        (1)  Passing off goods or services as those of another;
 21        (2)  Causing  likelihood  of  confusion  or  of misunderstanding as to the
 22    source, sponsorship, approval, or certification of goods or services;
 23        (3)  Causing likelihood of confusion or of misunderstanding as to affilia-
 24    tion, connection, or association with, or certification by, another;
 25        (4)  Using deceptive representations or designations of geographic  origin
 26    in connection with goods or services;
 27        (5)  Representing that goods or services have sponsorship, approval, char-
 28    acteristics,  ingredients, uses, benefits, or quantities that they do not have
 29    or that a person has a sponsorship, approval, status, affiliation, connection,
 30    qualifications or license that he does not have;
 31        (6)  Representing that goods are original or new if they are deteriorated,
 32    altered, reconditioned, reclaimed, used, or secondhand;
 33        (7)  Representing that goods or services are  of  a  particular  standard,
 34    quality,  or  grade, or that goods are of a particular style or model, if they
 35    are of another;
 36        (8)  Disparaging the goods, services, or business of another by  false  or
 37    misleading representation of fact;
 38        (9)  Advertising  goods or services with intent not to sell them as adver-
 39    tised;
 40        (10) Advertising goods or services with intent not  to  supply  reasonably
 41    expectable  public  demand, unless the advertisement discloses a limitation of
 42    quantity;
 43        (11) Making false or misleading statements of fact concerning the  reasons
                                                                        
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  1    for, existence of, or amounts of price reductions;
  2        (12) Obtaining  the  signature of the buyer to a contract when it contains
  3    blank spaces to be filled in after it has been signed;
  4        (13) Failing to deliver to the consumer at the time of the consumer's sig-
  5    nature  a legible copy of the contract or of  any  other  document  which  the
  6    seller or lender has required or requested the buyer to sign, and which he has
  7    signed, during or after the contract negotiation;
  8        (14) Making  false  or  misleading  statements of fact concerning the age,
  9    extent of use, or mileage of any goods;
 10        (15) Promising or offering to pay, credit or allow to any buyer or lessee,
 11    any compensation or reward in consideration of his giving  to  the  seller  or
 12    lessor the names of prospective purchasers or lessees, or otherwise aiding the
 13    seller  or  lessor in making a sale or lease to another person, if the earning
 14    of the rebate, discount or other value is contingent upon the occurrence of an
 15    event subsequent to the time the buyer or lessee agrees to buy or lease;
 16        (16) Representing that services, replacements or  repairs  are  needed  if
 17    they  are  not needed, or providing services, replacements or repairs that are
 18    not needed;
 19        (17) Engaging in any act or practice which is otherwise misleading, false,
 20    or deceptive to the consumer;
 21        (18) Engaging in any unconscionable method, act or practice in the conduct
 22    of trade or commerce, as provided in section 48-603C,  Idaho  Code,  provided,
 23    however, that the provisions of this subsection shall not apply to a regulated
 24    lender  as that term is defined in subsection (37) of section 28-41-301, Idaho
 25    Code;
 26        (19) Taking advantage of a disaster or emergency declared by the  governor
 27    under  chapter 10, title 46, Idaho Code, or the president of the United States
 28    under the provisions of the disaster relief act of  1974,  42  U.S.C.  section
 29    5121  et  seq.,  by selling or offering to sell to a wholesaler, a retailer or
 30    the ultimate consumer fuel or food, pharmaceuticals, or water for  human  con-
 31    sumption  at  an exorbitant or excessive price; provided however, this subsec-
 32    tion shall apply only to the location and for the duration of the  declaration
 33    of  emergency for ninety (90) days following the declaration unless the gover-
 34    nor continues such declaration beyond that period. In  determining  whether  a
 35    price  is exorbitant or excessive, the court shall take into consideration the
 36    facts and circumstances including, but not limited to:
 37        (a)  A comparison between the price paid by the alleged violator  for  the
 38        fuel,  food, pharmaceuticals, or water and the price for which the alleged
 39        violator sold those same items to the  wholesaler,  retailer  or  ultimate
 40        consumer immediately before and after the period specified by the disaster
 41        or emergency declaration;
 42        (b)  Additional  costs  of doing business incurred by the alleged violator
 43        because of the disaster or emergency;
 44        (c)  The duration of the disaster or emergency declaration.
 45    Notwithstanding anything to the contrary contained elsewhere in  the  act,  no
 46    private cause of action exists under this subsection.
                                                                        
 47        SECTION  2.  That  Section  48-606, Idaho Code, be, and the same is hereby
 48    amended to read as follows:
                                                                        
 49        48-606.  PROCEEDINGS BY ATTORNEY GENERAL. (1) Whenever the  attorney  gen-
 50    eral  has reason to believe that any person is using, has used, or is about to
 51    use any method, act or practice declared by this chapter to be  unlawful,  and
 52    that  proceedings  would  be in the public interest, he may bring an action in
 53    the name of the state against such person:
                                                                        
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  1        (a)  To obtain a declaratory judgment that a method, act or practice  vio-
  2        lates the provisions of this chapter;
  3        (b)  To enjoin any method, act or practice that violates the provisions of
  4        this  chapter  by issuance of a temporary restraining order or preliminary
  5        or permanent injunction, upon the giving of  appropriate  notice  to  that
  6        person as provided by the Idaho rules of civil procedure;
  7        (c)  To  recover  on  behalf of consumers actual damages or restitution of
  8        money, property or other things received from such consumers in connection
  9        with a violation of the provisions of this chapter;
 10        (d)  To order specific performance by the violator;
 11        (e)  To recover from the alleged violator civil penalties of  up  to  five
 12        ten  thousand dollars ($510,000) per violation for violation of the provi-
 13        sions of this chapter; and
 14        (f)  To recover from the alleged violator reasonable expenses,  investiga-
 15        tive costs and attorney's fees incurred by the attorney general.
 16        (2)  The  action  may  be  brought  in the district court of the county in
 17    which such person resides or has his principal place of business, or with con-
 18    sent of the parties, may be brought in the district court of  Ada  county.  If
 19    the  person  does  not reside in or have a principal place of business in this
 20    state, the action may be brought in any district court in this state. The said
 21    courts are authorized to issue temporary restraining orders or preliminary  or
 22    permanent  injunctions to restrain and prevent violations of the provisions of
 23    this chapter, and such injunctions shall be issued without bond.
 24        (3)  Unless the attorney general finds in writing  that  the  purposes  of
 25    this  chapter will be substantially and materially impaired by delay in insti-
 26    tuting legal proceedings, he shall, before initiating any legal proceedings as
 27    provided in this section, give notice in writing  that  such  proceedings  are
 28    contemplated to the person against whom proceedings are contemplated and allow
 29    such person a reasonable opportunity to appear before the attorney general and
 30    execute  an assurance of voluntary compliance or a consent judgment as in this
 31    chapter provided.
 32        (4)  In lieu of instigating or continuing an  action  or  proceeding,  the
 33    attorney  general  may  accept  a  consent judgment with respect to any act or
 34    practice alleged to be a violation of the provisions of this chapter,  and  it
 35    may  include  a  stipulation  for  the  payment  by  such person of reasonable
 36    expenses, investigative costs and attorney's fees  incurred  by  the  attorney
 37    general.  The consent judgment may also include a stipulation for civil penal-
 38    ties to be paid, not in excess of five ten  thousand  dollars  ($510,000)  per
 39    alleged  violation;  a  stipulation  to  pay to consumers actual damages or to
 40    allow for restitution of money, property or other things  received  from  such
 41    consumers  in  connection  with a violation of the provisions of this chapter;
 42    and/or a stipulation for specific performance.  Before  any  consent  judgment
 43    entered  into pursuant to this section shall be effective, it must be approved
 44    by the district court and an entry made thereof in  the  manner  required  for
 45    making an entry of judgment. Once such approval is received, any breach of the
 46    conditions of such consent judgment shall be treated as a violation of a court
 47    order, and shall be subject to all penalties provided by law therefor, includ-
 48    ing the penalties set forth in section 48-615, Idaho Code.
 49        (5)  All penalties, costs and fees recovered by the attorney general shall
 50    be  remitted  to  the  consumer protection fund which is hereby created in the
 51    state treasury. Moneys in the fund may be  expended  pursuant  to  legislative
 52    appropriation  and shall be used for the furtherance of the attorney general's
 53    duties and activities under this chapter. At  the  beginning  of  each  fiscal
 54    year,  those  moneys  in the consumer protection fund which exceed the current
 55    year's appropriation plus any residual encumbrances made against prior  years'
                                                                        
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  1    appropriations  by  fifty    percent (50%) or more shall be transferred to the
  2    general fund.
  3        (6)  Any moneys collected by the attorney general as trustee for distribu-
  4    tions to injured consumers shall be deposited in the state treasury until such
  5    time as payment is made to an individual or individuals for purposes of resti-
  6    tution or pursuant to a court approved cy pres distribution.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 15640

This legislation amends the Idaho Consumer Protection Act
regarding exorbitant or excessive fuel or food pricing during a 
disaster or emergency declared by the Governor or President of
the United States.

This legislation clarifies that we are addressing actions of a
wholesaler or retailer. It provides a sidebar for the Governor's
declaration as a President's order can be open ended.  The
legislation also raises the potential civil penalty to $10,000
from $5,000.


                           FISCAL NOTE

Providing definition/clarification to the current statutes could
expedite the investigation by the Attorney General.




Contact
Name: Representative Wendy Jaquet 
Phone: 332-1132
Name: Dave Carlson - AAA Idaho
Phone: 658-4401


STATEMENT OF PURPOSE/FISCAL NOTE                         H 469