DAR File No. 28574

Commerce, Consumer Protection

R152-1

Utah Division of Consumer Protection: "Buyer Beware List"

NOTICE OF PROPOSED RULE

DAR File No.: 28574
Filed: 03/24/2006, 01:21
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

These changes make technical corrections and make the rule more consistent with statute.

Summary of the rule or change:

The lists of the statutes enforced by the Division of Consumer Protection are deleted and replaced with cross-references to Section 13-2-1, so changes to that statute automatically will be reflected in the rule. A clarification is made to provide that an individual or business may be placed on the Buyer Beware List as a result of a Final Order by Default or an Order of Adjudication. Section R152-1-5 is deleted because those provisions already exist in statute and are redundant when re-stated in rule. Other redundant language is deleted or modified.

State statutory or constitutional authorization for this rule:

Section 13-2-5; Subsections 13-11-8(2) and 13-15-3(1); and Section 13-16-12

Anticipated cost or savings to:

the state budget:

None--These are primarily technical clarifications, and will not affect the function of state government.

local governments:

None--Local government does not play any role in the administration or enforcement of this rule.

other persons:

None--The substantive requirements for placement on the Buyer Beware List are unchanged.

Compliance costs for affected persons:

None--The substantive requirements for placement on the Buyer Beware List are unchanged.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact to businesses is anticipated as a result of this rule filing, which contains technical corrections and clarifications. Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Thad LeVar at the above address, by phone at 801-530-6929, by FAX at 801-530-6001, or by Internet E-mail at tlevar@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2006

This rule may become effective on:

05/16/2006

Authorized by:

Thad LeVar, Director

RULE TEXT

R152. Commerce, Consumer Protection.

R152-1. Utah Division of Consumer Protection: "Buyer Beware List".

R152-1-1. Purposes, Policies and Rules of Construction.

A. These rules are promulgated pursuant to Subsection 13-2-5(1) [for the purposes of assisting in]to assist the orderly administration of [those chapters of Title 13, Utah Code Annotated, 1953, as amended, which the Division is charged with administering and enforcing and or assisting other state and federal agencies in administering and enforcing, namely:

(1) Title 13, Chapter 5, Unfair Practices Act;

(2) Title 13, Chapter 10a, Music Licensing Practices Act;

(3) Title 13, Chapter 11, Consumer Sales Practices Act;

(4) Title 13, Chapter 15, Business Opportunity Disclosure Act;

(5) Title 13, Chapter 20, New Motor Vehicle Warranties Act;

(6) Title 13, Chapter 21, Credit Services Organizations Act;

(7) Title 13, Chapter 22, Charitable Solicitations Act;

(8) Title 13, Chapter 23, Health Spa Services Protection Act;

(9) Title 13, Chapter 25a, Telephone and Facsimile Solicitation Act;

(10) Title 13, Chapter 26, Telephone Fraud Prevention Act;

(11) Title 13, Chapter 28, Prize Notices Regulation Act; and

(12) Title 13, Chapter 30, Utah Personal Introduction Services Protection Act.]the statutes listed in Utah Code Section 13-2-1.

B.(1) These substantive rules are adopted by the Director of the Division of Consumer Protection pursuant to general authority of Utah Code Section 13-2-5[5 of Chapter 2 of Title 13, Utah Code Annotated, 1953, as amended], and specific authority of the following statutory sections[, namely Subsections]:

(a) Utah Code Subsection 13-11-8(2)[, and];

(b) Utah Code Subsection 13-15-3(1)[,]; and

(c) Utah Code Section Section 13-16-12[, Utah Code Annotated, 1953, as amended].

(2) Without limiting the scope of any [section of any chapter therein or any other]statute or rule, this rule shall be liberally construed and applied to promote its stated purposes and policies. The purposes and policies of this rule are to:

[(1)](a) protect consumers from individuals and businesses who have engaged in and committed deceptive acts or practices, or have engaged in and committed unconscionable acts or practices.

[(2)](b) supply consumers with pertinent information on the nature of those individuals or businesses who may be engaging in and committing deceptive acts or practices, or may be engaging in and committing unconscionable acts or practices, so as to aid consumers in their decision making.

[(3)](c) encourage the development of fair consumer sales practices and wise decision making by consumers in all their consumer purchase decisions.

R152-1-2. Definitions.

A. [Definitions: ]For the purposes of this rule[, the following definitions shall apply and be used in construing this rule]:

(1) "Buyer Beware List" means [a written and compiled]the list of [those ]individuals or business compiled by the Division in accordance with this rule[ and based on the criterion for placement on and removal from said list set forth herein. Such list, for purposes of classification under the Utah Government Records Management Act ("GRAMA") Section 63-2-101, et seq., Utah Code Annotated, 1953 as amended, is classified as a "public" record or document].

(2) "Department" means the Utah Department of Commerce.

(3) "Director" means the director of the Utah Department of Commerce, Division of Consumer Protection.

(4) "Division" means the Utah Department of Commerce, Division of Consumer Protection.

(5) "Emergency" means facts known or presented to the Utah Department of Commerce, Division of Consumer Protection that show:

(a) [that ]an immediate and significant danger to the public health, safety, or welfare exists [as regards the administration of those chapters or one of those chapters of Title 13, Utah Code Annotated, 1953, as amended, which the Division is charged with administering and enforcing]with respect to the statutes listed in Utah Code Section 13-2-1; and

(b) the threat requires immediate action by the Division.

(6) "Executive Director" means the executive director of the Utah Department of Commerce.

(7) "Order[ of Adjudication]" means an order of adjudication or a final order by default issued by the Utah Department of Commerce, Division of Consumer Protection after proper notice and hearing, as applicable, in accordance with [the]Utah Code Title 63, Section 46b, [Utah ]Administrative Procedures Act[, Section 63-46b-1, et. seq., Utah Code Annotated, 1953, as amended].

R152-1-3. Placement on "Buyer Beware List".

A.(1) The Division shall place the name of an individual or business on the "Buyer Beware List" [for the following reason:

(1) Conduct which constitutes a violation of any of the chapters of Title 13, Utah Code Annotated, 1953, as amended, which the Division is charged with administering and enforcing, and which has been reduced to an Order of Adjudication of the Division, namely:

(a) Title 13, Chapter 5, Unfair Practices Act;

(b) Title 13, Chapter 10a, Music Licensing Practices Act;

(c) Title 13, Chapter 11, Consumer Sales Practices Act;

(d) Title 13, Chapter 15, Business Opportunity Disclosure Act;

(e) Title 13, Chapter 20, New Motor Vehicle Warranties Act;

(f) Title 13, Chapter 21, Credit Services Organizations Act;

(g) Title 13, Chapter 22, Charitable Solicitations Act;

(h) Title 13, Chapter 23, Health Spa Services Protection Act;

(i) Title 13, Chapter 25a, Telephone and Facsimile Solicitation Act;

(j) Title 13, Chapter 26, Telephone Fraud Prevention Act;

(k) Title 13, Chapter 28, Prize Notices Regulation Act; and

(l) Title 13, Chapter 30, Utah Personal Introduction Service Protection Act]if the Division concludes through issuance of an order that the individual or business has violated any of the statutes listed in Utah Code Section 13-2-1.

(2) The Division shall provide fifteen (15) business days written notice by certified mail prior to placing an individual or business on the Buyer Beware List unless notice has otherwise been given by a previously issued Division subpoena or written inquiry [properly addressed ]or unless the Director finds that an emergency [is deemed to exist]exists. All individuals and businesses placed on the Buyer Beware List shall be notified in writing of the reasons for the proposed inclusion on the list. They will also be advised of what actions, if any, they can take to remove their name from the list.

B. (1) When the [Division of Consumer Protection believes]Director finds the public interest would be served, the Division may place the name of an individual or business on the "Buyer Beware List" for[ either of the following reasons]:

[(1)](a) [Failure]failure or refusal to respond to an administrative subpoena of the Division; or

[(2)](b) [Failure]failure or refusal to respond to a consumer complaint on file with the Division alleging violation of one or more of the acts administered by the Division after the business or individual has received notification from the Division and had an opportunity to respond to the Division and address the complaint.

(2) Unclaimed, returned or refused certified mail properly addressed to the individual or business [which]that is received back by the Division shall constitute proof of [such ]failure or refusal to respond.

C.(1) Prior to placement on the Buyer Beware List for [either of the reasons]any reason set forth [at]in R152-1-3B[(1) and (2) above] the Division shall[:],[

(1) In accordance with Division policy and procedure] upon receipt of a consumer complaint, make reasonable efforts to communicate with an individual or business [complained against which shall include at a minimum efforts of]identified in the complaint including:

(a) [At]at least one (1) initial written notice by certified mail or facsimile transmission;

(b) [At]at least one (1) initial telephone call; and

(c) [If]if the individual or business [complained against]identified in the complaint is a Utah resident at least one initial (1) face to face contact by a Division representative either at the Division's offices or at the individual's or business' Utah address.

(2)(a) If the initial efforts set forth at R152-1-3C(1) have proven unsuccessful the Division shall provide fifteen (15) business days written notice by certified mail prior to placing an individual or business on the Buyer Beware List unless:

(i) notice has otherwise been given by a previously issued Division subpoena or written inquiry properly addressed; or[ unless]

(ii) the Director finds that an emergency [is deemed to exist]exists.

(b) All individuals and businesses placed on the Buyer Beware List shall be notified in writing of the reasons for the proposed inclusion on the list. They will also be advised of what actions, if any, they can take to remove their name from the list.

D. Each listing on the Buyer Beware List shall contain a listing of the individual's or [business']businesses:

(1) name(s), including "doing businesses as";

(2) address(es);

(3) phone number(s); and

(4) a detailed basis for the individual or business being placed on the list, including whether:

(a) an administrative fine has been assessed and if so what amount; and [or whether]

(b) a cease and desist order has been issued in accordance with Utah Code Section 13-2-6(1)[, Utah Code Annotated, 1953, as amended, has been issued].

E. The Buyer Beware List is a public document under Utah Code Title 63, Chapter 2, Government Records Access and Management Act.

R152-1-4. Removal from "Buyer Beware List".

A. The Division of Consumer Protection shall remove the name of the business or individual from the Buyer Beware List [as follows]if:

(1) [Pursuant to R152-1-3A(1), after ] the individual or business:

(a) has had no other complaints with respect to a statute listed in Utah Code Section 13-2-1 for a period of 90 consecutive days after being placed on the list; and

(b) otherwise complies with all aspects of the [Order of Adjudication]order entered against the individual or business, including the payment of [all]any administrative fines assessed[, if any];

(2) [Pursuant]pursuant to R152-1-3B(1)(a), when a sufficient response is provided to an outstanding Division subpoena; or

(3) [Pursuant]pursuant to R152-1-3B[(2)](1)(b), when a satisfactory response is made to outstanding Division inquiries to which the individual or business previously failed or refused to [be responded to]respond.

[R152-1-5. Enforcement.

A. The Division may be entitled to recover costs, including investigative costs and processing costs incurred in administration of this rule when such are reduced to an Order of Adjudication or otherwise agreed to by the Division and the individual or business.

B. Any payment made to the Division shall be approved by the Executive Director of the Department of Commerce and placed in the Division Consumer Education and Training Fund for the specific purpose of publishing and disseminating the Buyer Beware List.

]

KEY: consumer protection

Date of Enactment or Last Substantive Amendment: [July 30, 2001]2006

Notice of Continuation: October 4, 2005

Authorizing, and Implemented or Interpreted Law: 13-2-5(1); 13-11-8(2); 13-15-3(1); 13-16-12

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Thad LeVar at the above address, by phone at 801-530-6929, by FAX at 801-530-6001, or by Internet E-mail at tlevar@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.