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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 - 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
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 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:
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 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'
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