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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
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN 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 2 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 onlyto the location and for the duration of the declaration33of emergencyfor 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: 3 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 tofive12 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 offiveten 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' 4 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 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