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State2009 Statute Number 2009 Statute Language2010 Statute Number 2010 Statute Language

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Tennessee47-18-101. Short title.

This part shall be known and may be cited as the “Tennessee Consumer Protection Act of 1977.”47-18-101. Short title.

This part shall be known and may be cited as the “Tennessee Consumer Protection Act of 1977.”

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47-18-201. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Beauty pageant” means any contest or competition in which entrants are judged on the basis of physical beauty, skill, talent, poise, and personality, and in which a winner, or winners, are selected as representing an ideal in one (1) or more of these areas. “Beauty pageant” does not include any such contest or competition in which no application fee or entrance charge is made for contestants, to which no admission charge is made for attendance, and in connection with which no tickets or chances are sold;




(2) “Bond” means a surety bond with power of attorney attached, and a Tennessee resident agent;




(3) “Entrant's fee” means any payment of money, or other thing of value, including, but not limited to, the selling of advertisements or tickets, or the obtaining of sponsors, which activity is a precondition to participation in a beauty pageant; and




(4) “Operator” means any person, franchisee, firm or corporation, civic group, or elementary or secondary educational institution, which promotes, organizes, or otherwise operates, a beauty pageant, participation in which is limited to persons paying an entrant's fee.


47-18-201. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Beauty pageant” means any contest or competition in which entrants are judged on the basis of physical beauty, skill, talent, poise, and personality, and in which a winner, or winners, are selected as representing an ideal in one (1) or more of these areas. “Beauty pageant” does not include any such contest or competition in which no application fee or entrance charge is made for contestants, to which no admission charge is made for attendance, and in connection with which no tickets or chances are sold;




(2) “Bond” means a surety bond with power of attorney attached, and a Tennessee resident agent;




(3) “Entrant's fee” means any payment of money, or other thing of value, including, but not limited to, the selling of advertisements or tickets, or the obtaining of sponsors, which activity is a precondition to participation in a beauty pageant; and




(4) “Operator” means any person, franchisee, firm or corporation, civic group, or elementary or secondary educational institution, which promotes, organizes, or otherwise operates, a beauty pageant, participation in which is limited to persons paying an entrant's fee.

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47-18-202. Registration of operators — Bond — Fee — Exemptions.

(a) (1) Every operator shall register with the division of consumer affairs in the department of commerce and insurance on forms prescribed by the division.




(2) The registration form shall contain, but shall not be limited to, the following information:




(A) Name, address, and telephone number of the operator;




(B) Name, address, and telephone number of the individual or officer of the organization having full responsibility for the conducting of the pageant;




(C) Names of pageants customarily promoted by the operator;




(D) Name, address, and telephone number of the financial institution in which the entrants' fee is held; and




(E) The operator's exemption certificate number from the tax imposed by title 67, chapter 6, or the operator's sales tax registration number.




(b) (1) Except as provided in subsection (d), each operator shall, at the time of registration, file and have approved by the division of consumer affairs, a bond in which the candidate for registration shall be the principal obligor in the sum of ten thousand dollars ($10,000).




(2) Such bond shall be payable to the state of Tennessee for the use of the division of consumer affairs and any person who may have a cause of action against the obligor of the bond for any losses caused by a failure to conduct a beauty pageant.




(c) (1) Except as provided in subsection (d), each operator shall, at the time of registration, submit a nonrefundable registration fee of fifty dollars ($50.00).




(2) In order to continue to hold a valid registration in a subsequent year each operator shall annually renew the operator's registration.




(3) Such an annual renewal shall be accompanied by a nonrefundable fifty-dollar ($50.00) fee.




(4) Each registration shall expire on December 31 of each year.




(d) A bona fide civic club in existence for one (1) year, a community fair, a county fair, a district fair or a division fair as defined in § 43-21-104, or any other regional fair, or a religious organization or church, or a local governmental entity or organizations auxiliary to or affiliated with such local governmental entities, including, but not necessarily limited to, school booster clubs, shall be exempt from the requirements of subsections (b) and (c).
47-18-202. Registration of operators — Bond — Fee — Exemptions.

(a) (1) Every operator shall register with the division of consumer affairs in the department of commerce and insurance on forms prescribed by the division.




(2) The registration form shall contain, but shall not be limited to, the following information:




(A) Name, address, and telephone number of the operator;




(B) Name, address, and telephone number of the individual or officer of the organization having full responsibility for the conducting of the pageant;




(C) Names of pageants customarily promoted by the operator;




(D) Name, address, and telephone number of the financial institution in which the entrants' fee is held; and




(E) The operator's exemption certificate number from the tax imposed by title 67, chapter 6, or the operator's sales tax registration number.




(b) (1) Except as provided in subsection (d), each operator shall, at the time of registration, file and have approved by the division of consumer affairs, a bond in which the candidate for registration shall be the principal obligor in the sum of ten thousand dollars ($10,000).




(2) Such bond shall be payable to the state of Tennessee for the use of the division of consumer affairs and any person who may have a cause of action against the obligor of the bond for any losses caused by a failure to conduct a beauty pageant.




(c) (1) Except as provided in subsection (d), each operator shall, at the time of registration, submit a nonrefundable registration fee of fifty dollars ($50.00).




(2) In order to continue to hold a valid registration in a subsequent year each operator shall annually renew the operator's registration.




(3) Such an annual renewal shall be accompanied by a nonrefundable fifty-dollar ($50.00) fee.




(4) Each registration shall expire on December 31 of each year.




(d) A bona fide civic club in existence for one (1) year, a community fair, a county fair, a district fair or a division fair as defined in § 43-21-104, or any other regional fair, or a religious organization or church, or a local governmental entity or organizations auxiliary to or affiliated with such local governmental entities, including, but not necessarily limited to, school booster clubs, shall be exempt from the requirements of subsections (b) and (c).

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47-18-203. Cancellations — Refunds.
(a) If a beauty pageant is cancelled or otherwise does not take place, all entrants' fees shall be refunded by the operator.




(b) The surety shall be liable for any unrefunded entrants' fees in the case of a default by the operator.


47-18-203. Cancellations — Refunds.
(a) If a beauty pageant is cancelled or otherwise does not take place, all entrants' fees shall be refunded by the operator.




(b) The surety shall be liable for any unrefunded entrants' fees in the case of a default by the operator.

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47-18-204. Denial, suspension, revocation of registration — Rules and regulations.


(a) The division of consumer affairs in the department of commerce and insurance may deny, suspend, or revoke a registration for:




(1) A violation of any of the provisions of this part; or




(2) The making of a false statement on the registration application form.




(b) The division of consumer affairs may adopt rules and regulations to administer the provisions of this part. Such rules and regulations shall be adopted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.


47-18-204. Denial, suspension, revocation of registration — Rules and regulations.


(a) The division of consumer affairs in the department of commerce and insurance may deny, suspend, or revoke a registration for:




(1) A violation of any of the provisions of this part; or




(2) The making of a false statement on the registration application form.




(b) The division of consumer affairs may adopt rules and regulations to administer the provisions of this part. Such rules and regulations shall be adopted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

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47-18-205. Exceptions.
(a) The provisions of this part shall not apply to any operator existing as a nonprofit corporation for twenty (20) years or more whose primary function involves the annual organization, promotion, and sponsorship of a statewide talent and beauty pageant in which contestants compete for scholarships, awarded by such operator, as well as for the opportunity of being Tennessee's representative and contestant in an annual nationwide talent and beauty pageant with which such operator is affiliated.




(b) The provisions of this part do not apply to any operator who operates an annual talent and beauty pageant in which the contestants have an opportunity to represent the pageant pursuant to a franchise agreement at a statewide talent and beauty pageant exempted from the provisions of this part under subsection (a).


47-18-205. Exceptions.
(a) The provisions of this part shall not apply to any operator existing as a nonprofit corporation for twenty (20) years or more whose primary function involves the annual organization, promotion, and sponsorship of a statewide talent and beauty pageant in which contestants compete for scholarships, awarded by such operator, as well as for the opportunity of being Tennessee's representative and contestant in an annual nationwide talent and beauty pageant with which such operator is affiliated.




(b) The provisions of this part do not apply to any operator who operates an annual talent and beauty pageant in which the contestants have an opportunity to represent the pageant pursuant to a franchise agreement at a statewide talent and beauty pageant exempted from the provisions of this part under subsection (a).

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47-18-206. Penalty.



A violation of this part is punishable by a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000).


47-18-206. Penalty.



A violation of this part is punishable by a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000).

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47-18-207. Notice of incomplete forms — Missing certificate or registration numbers.

The division of consumer affairs in the department of commerce and insurance shall notify the department of revenue within three (3) working days of any operator whose registration form does not include the operator's exemption certificate number or the operator's sales tax registration number as required by § 47-18-202(a)(2)(E).
47-18-207. Notice of incomplete forms — Missing certificate or registration numbers.

The division of consumer affairs in the department of commerce and insurance shall notify the department of revenue within three (3) working days of any operator whose registration form does not include the operator's exemption certificate number or the operator's sales tax registration number as required by § 47-18-202(a)(2)(E).

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47-18-208. Transfer of registration to division of consumer affairs.

The registration of beauty pageant operators by the secretary of state prior to April 7, 1999, shall be transferred to, and be administered by, the division of consumer affairs in the department of commerce and insurance on and after April 7, 1999.
47-18-208. Transfer of registration to division of consumer affairs.

The registration of beauty pageant operators by the secretary of state prior to April 7, 1999, shall be transferred to, and be administered by, the division of consumer affairs in the department of commerce and insurance on and after April 7, 1999.

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47-18-209. Violations subject to Tennessee Consumer Protection Act. A violation of any of the provisions of this part, relative to beauty pageants, or rules promulgated under this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.47-18-209. Violations subject to Tennessee Consumer Protection Act. A violation of any of the provisions of this part, relative to beauty pageants, or rules promulgated under this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.

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47-18-210. Cease and desist orders — Hearing.
Whenever it appears to the director of the division of consumer affairs that an operator, as defined in § 47-18-201(4), is acting in violation of this part, and the director determines that the public health, safety or welfare is endangered, the director may issue an order to that operator to cease and desist in such violations, without prior notice. The operator shall be afforded an opportunity for a hearing within seven (7) business days to show cause why such order should be lifted, rescinded, or modified.

47-18-210. Cease and desist orders — Hearing.
Whenever it appears to the director of the division of consumer affairs that an operator, as defined in § 47-18-201(4), is acting in violation of this part, and the director determines that the public health, safety or welfare is endangered, the director may issue an order to that operator to cease and desist in such violations, without prior notice. The operator shall be afforded an opportunity for a hearing within seven (7) business days to show cause why such order should be lifted, rescinded, or modified.

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47-18-301. Definitions.



As used in this part, unless the context otherwise requires:




(1) “Buyer” means a purchaser under a health club agreement;




(2) “Commissioner” means the commissioner of commerce and insurance;




(3) “Division” means the consumer affairs division of the department of commerce and insurance;




(4) (A) “Health club” means any enterprise, however styled, which offers on a regular, full-time basis, and pursuant to a health club agreement, services or facilities for the development or preservation of physical fitness through exercise, weight control or athletics;




(B) “Health club” does not include the following:




(i) Any organization primarily operated for the purpose of teaching a particular form of martial arts such as judo or karate;




(ii) Weight loss or control services which do not provide physical exercise services, facilities, or equipment; or




(iii) Any nonprofit health club that is exempt from taxation under the provisions of § 67-6-330(a)(17), or any nonprofit health club operated as part of a licensed nonprofit hospital exempt from taxation under § 67-5-212;




(5) (A) “Health club agreement” means an agreement whereby a buyer purchases, or is obligated to purchase, any right to use health club facilities or services; and such services or facilities are for personal, family, employee, or household use; and




(B) “Health club agreement” does not include the following:




(i) Any agreement for personal training services; or




(ii) Any agreement for tangible products sold by the health club.




(6) “Operator” means any person, firm, corporation, or business entity which operates a health club.


47-18-301. Definitions.



As used in this part, unless the context otherwise requires:




(1) “Buyer” means a purchaser under a health club agreement;




(2) “Commissioner” means the commissioner of commerce and insurance;




(3) “Division” means the consumer affairs division of the department of commerce and insurance;




(4) (A) “Health club” means any enterprise, however styled, which offers on a regular, full-time basis, and pursuant to a health club agreement, services or facilities for the development or preservation of physical fitness through exercise, weight control or athletics;




(B) “Health club” does not include the following:




(i) Any organization primarily operated for the purpose of teaching a particular form of martial arts such as judo or karate;




(ii) Weight loss or control services which do not provide physical exercise services, facilities, or equipment; or




(iii) Any nonprofit health club that is exempt from taxation under the provisions of § 67-6-330(a)(17), or any nonprofit health club operated as part of a licensed nonprofit hospital exempt from taxation under § 67-5-212;




(5) (A) “Health club agreement” means an agreement whereby a buyer purchases, or is obligated to purchase, any right to use health club facilities or services; and such services or facilities are for personal, family, employee, or household use; and




(B) “Health club agreement” does not include the following:




(i) Any agreement for personal training services; or




(ii) Any agreement for tangible products sold by the health club.




(6) “Operator” means any person, firm, corporation, or business entity which operates a health club.

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47-18-302. Certificate of registration.



(a) It is unlawful to operate a health club unless a valid certificate of registration is obtained for each location where health club services or facilities are provided and payment of the fee required for such registration is made.




(b) Each holder of a certificate of registration shall display such certificate in a conspicuous place at the location where health club services or facilities are provided.




(c) Certificates of registration shall be renewed annually.
47-18-302. Certificate of registration.



(a) It is unlawful to operate a health club unless a valid certificate of registration is obtained for each location where health club services or facilities are provided and payment of the fee required for such registration is made.




(b) Each holder of a certificate of registration shall display such certificate in a conspicuous place at the location where health club services or facilities are provided.




(c) Certificates of registration shall be renewed annually.

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47-18-303. Unenforceable health club agreements. A health club agreement shall be unenforceable against the buyer, and the buyer shall be entitled to a refund less that portion of the total price which represents actual use of the facilities and less the cost of goods and services consumed by the buyer if:




(1) The buyer entered into the agreement in reliance upon any false, deceptive, or misleading information, representation, notice, or advertisement;




(2) The health club fails to obtain or fails to maintain a certificate of registration as required by this part; or




(3) The agreement fails to conform with the provisions of this part.
47-18-303. Unenforceable health club agreements. A health club agreement shall be unenforceable against the buyer, and the buyer shall be entitled to a refund less that portion of the total price which represents actual use of the facilities and less the cost of goods and services consumed by the buyer if:

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47-18-305. Requirements for valid agreements.




(a) All health club agreements shall:




(1) Be in writing;




(2) Be signed by the buyer;




(3) Designate the date on which the buyer actually signed the agreement; and




(4) Contain in boldface type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the buyer, the following statement:





Click to view form.




(5) (A) Contain in boldface type of at least ten (10) points, the following statement:




SHOULD YOU (THE BUYER) CHOOSE TO PAY THIS AGREEMENT IN FULL, BE AWARE THAT YOU ARE PAYING FOR FUTURE SERVICES AND MAY BE RISKING LOSS OF YOUR MONEY IN THE EVENT THIS HEALTH CLUB CEASES TO CONDUCT BUSINESS.




(B) Contain in boldface type, the following statements in separated paragraphs:




(i) IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW, IN THE EVENT THIS HEALTH CLUB CEASES OPERATION AND FAILS TO OFFER YOU (THE BUYER) AN ALTERNATE LOCATION WITHIN FIFTEEN (15) MILES, WITH NO ADDITIONAL COST TO YOU, THEN NO FURTHER PAYMENTS SHALL BE DUE TO ANYONE, INCLUDING ANY PURCHASER OF ANY NOTE ASSOCIATED WITH OR CONTAINED IN THIS CONTRACT.




(ii) STATE LAW REQUIRES THAT HEALTH CLUB AGREEMENTS BE PAYABLE ONLY IN THE FOLLOWING MANNER, AND ANY HEALTH CLUB WHICH ENTERS INTO HEALTH CLUB AGREEMENTS SHALL OFFER BOTH PAYMENT OPTIONS AT THE SAME PRICE, EXCLUDING INTEREST OR FINANCE CHARGES OR OTHER EQUIVALENT CHARGES WHICH SHALL NOT EXCEED EIGHTEEN PERCENT (18%) OF THE TOTAL CONTRACT PRICE:




(a) Full payment within ninety (90) days after entering into the health club agreement; or




(b) Equal monthly installments with any down payment (unless exempt as provided by law) limited to thirty percent (30%) of the total cost of the agreement. Prepayment is allowed at any time with full refund of unearned finance charges.




(iii) THIS CONTRACT DOES NOT CONTAIN ANY PAYMENTS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ENROLLMENT FEES, MEMBERSHIP FEES, OR ANY OTHER DIRECT PAYMENTS TO THE HEALTH CLUB, OTHER THAN FULL PAYMENT FOR THE HEALTH CLUB AGREEMENT OR MONTHLY INSTALLMENT PAYMENTS WITH ANY DOWN PAYMENT (UNLESS EXEMPT AS PROVIDED BY LAW) LIMITED TO THIRTY PERCENT (30%) OF THE TOTAL COST OF THE AGREEMENT, AND, IN THE CASE OF INSTALLMENT PAYMENTS WHICH ARE NOT MADE BY ELECTRONIC FUND TRANSFER OR CASH, AN ADMINISTRATIVE CHARGE, NOT TO EXCEED FIVE DOLLARS ($5.00) FOR EACH BILLING PERIOD.




(iv) THERE ARE NO AUTOMATIC OR LIFETIME RENEWALS OF THE TERM INCIDENT TO THE TERM OF THIS CONTRACT. IF THE HEALTH CLUB PROVIDES FOR A RENEWAL OPTION, SUCH OPTION MUST BE AFFIRMATIVELY AGREED TO IN WRITING BY THE BUYER AT THE BEGINNING OF THE RENEWAL PERIOD. IF THE HEALTH CLUB FACILITY IS LESS THAN OR EQUAL TO TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR SEVENTY-FIVE DOLLARS ($75), WHICHEVER IS GREATER. HOWEVER, IF THE HEALTH CLUB FACILITY IS GREATER THAN TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR ONE HUNDRED TWENTY-FIVE DOLLARS ($125), WHICHEVER IS GREATER. PAYMENT OF ANY RENEWAL SHALL BE MADE AS REQUIRED BY TENNESSEE CODE ANNOTATED, SECTION 47-18-305(A)(5)(B)(ii).




(v) A CONTRACT OR AGREEMENT MAY HAVE A CONTINUING PROVISION OR STIPULATION THAT PROVIDES FOR A MONTH TO MONTH CONTINUATION OF THE INITIAL TERM OF THE AGREEMENT PROVIDED THE BUYER HAS THE RIGHT TO CANCEL THE CONTINUING PORTION OF THE AGREEMENT AFTER FULFILLING THE ORIGINAL TERM OF THE AGREEMENT BY TENDERING THIRTY (30) DAYS WRITTEN NOTICE OF SUCH INTENT TO THE OPERATOR BY REGISTERED MAIL. IF SUCH CONTRACTUAL OBLIGATION HAS A CONTINUING PROVISION OR STIPULATION, NOTIFICATION MUST BE SENT BY THE HEALTH CLUB OPERATOR TO CONFIRM THAT THE ORIGINAL OBLIGATION WAS FULFILLED AND TO REAFFIRM THE MONTH TO MONTH OR CONTINUING PROVISION OR STIPULATION. SUCH NOTIFICATION SHALL ALSO INCLUDE NOTICE OF THE BUYER'S RIGHT TO CANCEL THE CONTINUING MONTH-TO-MONTH OBLIGATION UPON THIRTY (30) DAYS' WRITTEN NOTICE SENT BY THE BUYER TO THE OPERATOR BY REGISTERED MAIL.




(vi) ANY RENEWAL RIGHT GRANTED UNDER THIS CONTRACT SHALL EXPIRE ON THE FINAL DAY OF THE AGREEMENT. HOWEVER, THE BUYER SHALL HAVE A THIRTY (30) DAY GRACE PERIOD FROM THE DATE OF THE EXPIRATION OF THE RENEWAL RIGHT IN WHICH TO EXERCISE ANY RENEWAL RIGHT GRANTED TO THE BUYER UNDER THIS CONTRACT. THE OPERATOR SHALL HAVE THE RIGHT TO CHARGE A LATE PENALTY OF UP TO $25 IF THE RENEWAL RIGHTS ARE NOT EXERCISED ON OR BEFORE THE EXPIRATION DATE AS STIPULATED IN THE AGREEMENT OR ANY FUTURE RENEWAL PERIODS.




(b) A health club shall not enter into or offer to enter into a health club agreement unless the health club is fully operational and available to use by prospective buyers. The division shall, upon application by a health club operator, certify that a health club facility is fully operational if all of the promised equipment and services are available for use by prospective buyers. No payment or promise to pay by a prospective buyer may be accepted by any health club operator unless and until the health club facility has been certified by the division to be fully operational as described herein. This subsection shall not apply to any health club that has maintained a satisfactory registration with the division for five (5) consecutive years; provided, that, such health clubs notify the division by certified mail of their intent to enter into agreements for a location not fully operational as otherwise required by this subsection. In order to be eligible to use this exemption, an operator must use the same identification as described in any existing facility registration information as well as use the same federal and state tax accounts for payments of any related taxes due to this extension of operations.




(c) It is unlawful for a health club to offer any cash or discounted pre-payment option that exceeds a reduction of the cash value of the highest stated price for any similar period or service-type of agreement:




(1) By an excess of ten percent (10%) for any term less than two (2) years duration;




(2) By an excess of fourteen percent (14%) for any term of two (2) years duration, but less than three (3) years duration; or




(3) By an excess of eighteen percent (18%) for any term of three (3) years duration.




(d) It shall be unlawful for a health club to offer free or no cost periods of enrollment in addition to the initial paid term of the agreement in order to circumvent the discounting provision of subsection (c).




(e) (1) Notwithstanding this part or any rules promulgated pursuant to this part to the contrary, a health club may enter into or offer to enter into a health club agreement with, or accept payment or a promise of payment from, a prospective buyer prior to certification by the division of its facility as fully operational as set forth in subsection (b); provided, however, that the health club has:




(A) Acquired a property right or interest in this state with respect to the facility;




(B) Filed a registration application with the division as required by § 47-18-309; and




(C) Purchased from a surety company authorized to do business in this state a surety bond in favor of the division in the amount of twenty-five thousand dollars ($25,000).




(2) (A) If the division determines, based on the financial statement required by § 47-18-309(a)(3), that the financial condition of the health club is insufficient to protect prospective buyers, then the division may require that the health club post a surety bond in an amount greater than twenty-five thousand dollars ($25,000) but not to exceed two hundred thousand dollars ($200,000). The health club shall file a copy of the bond with the division.




(B) A buyer who suffers loss of payments made to a health club prior to certification due to the health club's failure to open the facility may recover the amount of the payments from the surety; provided, that the liability of the surety may not exceed the aggregate amount of the bond regardless of the number or amount of claims filed with the surety.




(C) Upon certification by the division that the health club is fully operational, the health club may cancel the surety bond upon thirty (30) days written notice of cancellation from the surety to the division.


47-18-305. Requirements for valid agreements.




(a) All health club agreements shall:




(1) Be in writing;




(2) Be signed by the buyer;




(3) Designate the date on which the buyer actually signed the agreement; and




(4) Contain in boldface type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the buyer, the following statement:





Click to view form.




(5) (A) Contain in boldface type of at least ten (10) points, the following statement:




SHOULD YOU (THE BUYER) CHOOSE TO PAY THIS AGREEMENT IN FULL, BE AWARE THAT YOU ARE PAYING FOR FUTURE SERVICES AND MAY BE RISKING LOSS OF YOUR MONEY IN THE EVENT THIS HEALTH CLUB CEASES TO CONDUCT BUSINESS.




(B) Contain in boldface type, the following statements in separated paragraphs:




(i) IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW, IN THE EVENT THIS HEALTH CLUB CEASES OPERATION AND FAILS TO OFFER YOU (THE BUYER) AN ALTERNATE LOCATION WITHIN FIFTEEN (15) MILES, WITH NO ADDITIONAL COST TO YOU, THEN NO FURTHER PAYMENTS SHALL BE DUE TO ANYONE, INCLUDING ANY PURCHASER OF ANY NOTE ASSOCIATED WITH OR CONTAINED IN THIS CONTRACT.




(ii) STATE LAW REQUIRES THAT HEALTH CLUB AGREEMENTS BE PAYABLE ONLY IN THE FOLLOWING MANNER, AND ANY HEALTH CLUB WHICH ENTERS INTO HEALTH CLUB AGREEMENTS SHALL OFFER BOTH PAYMENT OPTIONS AT THE SAME PRICE, EXCLUDING INTEREST OR FINANCE CHARGES OR OTHER EQUIVALENT CHARGES WHICH SHALL NOT EXCEED EIGHTEEN PERCENT (18%) OF THE TOTAL CONTRACT PRICE:




(a) Full payment within ninety (90) days after entering into the health club agreement; or




(b) Equal monthly installments with any down payment (unless exempt as provided by law) limited to thirty percent (30%) of the total cost of the agreement. Prepayment is allowed at any time with full refund of unearned finance charges.




(iii) THIS CONTRACT DOES NOT CONTAIN ANY PAYMENTS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ENROLLMENT FEES, MEMBERSHIP FEES, OR ANY OTHER DIRECT PAYMENTS TO THE HEALTH CLUB, OTHER THAN FULL PAYMENT FOR THE HEALTH CLUB AGREEMENT OR MONTHLY INSTALLMENT PAYMENTS WITH ANY DOWN PAYMENT (UNLESS EXEMPT AS PROVIDED BY LAW) LIMITED TO THIRTY PERCENT (30%) OF THE TOTAL COST OF THE AGREEMENT, AND, IN THE CASE OF INSTALLMENT PAYMENTS WHICH ARE NOT MADE BY ELECTRONIC FUND TRANSFER OR CASH, AN ADMINISTRATIVE CHARGE, NOT TO EXCEED FIVE DOLLARS ($5.00) FOR EACH BILLING PERIOD.




(iv) THERE ARE NO AUTOMATIC OR LIFETIME RENEWALS OF THE TERM INCIDENT TO THE TERM OF THIS CONTRACT. IF THE HEALTH CLUB PROVIDES FOR A RENEWAL OPTION, SUCH OPTION MUST BE AFFIRMATIVELY AGREED TO IN WRITING BY THE BUYER AT THE BEGINNING OF THE RENEWAL PERIOD. IF THE HEALTH CLUB FACILITY IS LESS THAN OR EQUAL TO TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR SEVENTY-FIVE DOLLARS ($75), WHICHEVER IS GREATER. HOWEVER, IF THE HEALTH CLUB FACILITY IS GREATER THAN TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR ONE HUNDRED TWENTY-FIVE DOLLARS ($125), WHICHEVER IS GREATER. PAYMENT OF ANY RENEWAL SHALL BE MADE AS REQUIRED BY TENNESSEE CODE ANNOTATED, SECTION 47-18-305(A)(5)(B)(ii).




(v) A CONTRACT OR AGREEMENT MAY HAVE A CONTINUING PROVISION OR STIPULATION THAT PROVIDES FOR A MONTH TO MONTH CONTINUATION OF THE INITIAL TERM OF THE AGREEMENT PROVIDED THE BUYER HAS THE RIGHT TO CANCEL THE CONTINUING PORTION OF THE AGREEMENT AFTER FULFILLING THE ORIGINAL TERM OF THE AGREEMENT BY TENDERING THIRTY (30) DAYS WRITTEN NOTICE OF SUCH INTENT TO THE OPERATOR BY REGISTERED MAIL. IF SUCH CONTRACTUAL OBLIGATION HAS A CONTINUING PROVISION OR STIPULATION, NOTIFICATION MUST BE SENT BY THE HEALTH CLUB OPERATOR TO CONFIRM THAT THE ORIGINAL OBLIGATION WAS FULFILLED AND TO REAFFIRM THE MONTH TO MONTH OR CONTINUING PROVISION OR STIPULATION. SUCH NOTIFICATION SHALL ALSO INCLUDE NOTICE OF THE BUYER'S RIGHT TO CANCEL THE CONTINUING MONTH-TO-MONTH OBLIGATION UPON THIRTY (30) DAYS' WRITTEN NOTICE SENT BY THE BUYER TO THE OPERATOR BY REGISTERED MAIL.




(vi) ANY RENEWAL RIGHT GRANTED UNDER THIS CONTRACT SHALL EXPIRE ON THE FINAL DAY OF THE AGREEMENT. HOWEVER, THE BUYER SHALL HAVE A THIRTY (30) DAY GRACE PERIOD FROM THE DATE OF THE EXPIRATION OF THE RENEWAL RIGHT IN WHICH TO EXERCISE ANY RENEWAL RIGHT GRANTED TO THE BUYER UNDER THIS CONTRACT. THE OPERATOR SHALL HAVE THE RIGHT TO CHARGE A LATE PENALTY OF UP TO $25 IF THE RENEWAL RIGHTS ARE NOT EXERCISED ON OR BEFORE THE EXPIRATION DATE AS STIPULATED IN THE AGREEMENT OR ANY FUTURE RENEWAL PERIODS.




(b) A health club shall not enter into or offer to enter into a health club agreement unless the health club is fully operational and available to use by prospective buyers. The division shall, upon application by a health club operator, certify that a health club facility is fully operational if all of the promised equipment and services are available for use by prospective buyers. No payment or promise to pay by a prospective buyer may be accepted by any health club operator unless and until the health club facility has been certified by the division to be fully operational as described herein. This subsection shall not apply to any health club that has maintained a satisfactory registration with the division for five (5) consecutive years; provided, that, such health clubs notify the division by certified mail of their intent to enter into agreements for a location not fully operational as otherwise required by this subsection. In order to be eligible to use this exemption, an operator must use the same identification as described in any existing facility registration information as well as use the same federal and state tax accounts for payments of any related taxes due to this extension of operations.




(c) It is unlawful for a health club to offer any cash or discounted pre-payment option that exceeds a reduction of the cash value of the highest stated price for any similar period or service-type of agreement:




(1) By an excess of ten percent (10%) for any term less than two (2) years duration;




(2) By an excess of fourteen percent (14%) for any term of two (2) years duration, but less than three (3) years duration; or




(3) By an excess of eighteen percent (18%) for any term of three (3) years duration.




(d) It shall be unlawful for a health club to offer free or no cost periods of enrollment in addition to the initial paid term of the agreement in order to circumvent the discounting provision of subsection (c).




(e) (1) Notwithstanding this part or any rules promulgated pursuant to this part to the contrary, a health club may enter into or offer to enter into a health club agreement with, or accept payment or a promise of payment from, a prospective buyer prior to certification by the division of its facility as fully operational as set forth in subsection (b); provided, however, that the health club has:




(A) Acquired a property right or interest in this state with respect to the facility;




(B) Filed a registration application with the division as required by § 47-18-309; and




(C) Purchased from a surety company authorized to do business in this state a surety bond in favor of the division in the amount of twenty-five thousand dollars ($25,000).




(2) (A) If the division determines, based on the financial statement required by § 47-18-309(a)(3), that the financial condition of the health club is insufficient to protect prospective buyers, then the division may require that the health club post a surety bond in an amount greater than twenty-five thousand dollars ($25,000) but not to exceed two hundred thousand dollars ($200,000). The health club shall file a copy of the bond with the division.




(B) A buyer who suffers loss of payments made to a health club prior to certification due to the health club's failure to open the facility may recover the amount of the payments from the surety; provided, that the liability of the surety may not exceed the aggregate amount of the bond regardless of the number or amount of claims filed with the surety.




(C) Upon certification by the division that the health club is fully operational, the health club may cancel the surety bond upon thirty (30) days written notice of cancellation from the surety to the division.

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47-18-306. Duration of agreements.

(a) Unless the buyer is granted a right to cancel the health club agreement as provided in subsection (b), no buyer shall be bound by any health club agreement with a stated initial term greater than thirty-six (36) months.




(b) (1) A health club agreement may include a provision or stipulation that provides for a month-to-month continuation of the agreement, either as an initial agreement between the operator and the buyer or as an extension of an agreement beyond a stated term or duration; provided, that the buyer has the right to cancel the continuing portion of the agreement by providing the health club operator thirty (30) days written notice by registered mail of the buyer's intent to cancel the agreement.




(2) A buyer shall have until midnight of the seventh business day after the date on which the first service under the health club agreement is available to cancel if the health club agreement is subject to a finance charge. “Business day” for the purposes of this subdivision (b)(2) means any day the health club is open unless the seventh day is a day the health club is not open for business to the buyer; provided, however, that if the health club is closed on the seventh day, the buyer shall have until midnight of the next day the health club is open to cancel the health club agreement. Cancellation is evidenced by the buyer giving written notice of cancellation to the health club at the address of any facility available for use by the buyer under the health club agreement. The buyer shall deliver the notice by personal delivery or by certified mail delivery, return receipt requested. Personal delivery is effective when delivered to the health club or to the health club's address, whichever comes first. Notice of cancellation by certified mail delivery shall be effective upon the date of post marking. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the buyer not to be bound by the contract.
47-18-306. Duration of agreements.

(a) Unless the buyer is granted a right to cancel the health club agreement as provided in subsection (b), no buyer shall be bound by any health club agreement with a stated initial term greater than thirty-six (36) months.




(b) (1) A health club agreement may include a provision or stipulation that provides for a month-to-month continuation of the agreement, either as an initial agreement between the operator and the buyer or as an extension of an agreement beyond a stated term or duration; provided, that the buyer has the right to cancel the continuing portion of the agreement by providing the health club operator thirty (30) days written notice by registered mail of the buyer's intent to cancel the agreement.




(2) A buyer shall have until midnight of the seventh business day after the date on which the first service under the health club agreement is available to cancel if the health club agreement is subject to a finance charge. “Business day” for the purposes of this subdivision (b)(2) means any day the health club is open unless the seventh day is a day the health club is not open for business to the buyer; provided, however, that if the health club is closed on the seventh day, the buyer shall have until midnight of the next day the health club is open to cancel the health club agreement. Cancellation is evidenced by the buyer giving written notice of cancellation to the health club at the address of any facility available for use by the buyer under the health club agreement. The buyer shall deliver the notice by personal delivery or by certified mail delivery, return receipt requested. Personal delivery is effective when delivered to the health club or to the health club's address, whichever comes first. Notice of cancellation by certified mail delivery shall be effective upon the date of post marking. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the buyer not to be bound by the contract.

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47-18-307. Provisions contrary to public policy.


Any provision in a health club agreement, or in any document signed by the buyer in connection with such agreement, whereby the buyer agrees to waive any requirement of this part, shall be void as contrary to public policy.


47-18-307. Provisions contrary to public policy.


Any provision in a health club agreement, or in any document signed by the buyer in connection with such agreement, whereby the buyer agrees to waive any requirement of this part, shall be void as contrary to public policy.

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47-18-308. Applicability of provisions.
Acts 1989, ch. 460 does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before January 1, 1990.

47-18-308. Applicability of provisions.
Acts 1989, ch. 460 does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before January 1, 1990.

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47-18-309. Certificate of registration — Application — Issuance.
(a) An application for a certificate of registration shall be submitted on forms furnished by the division and shall be accompanied by:




(1) A registration fee of two hundred fifty dollars ($250) per location;




(2) Copies of all membership and health club agreements offered by the health club; and




(3) A current personal or corporate financial statement prepared by a certified public accountant.




(b) Upon compliance with the provisions of this part by an applicant, the division shall issue a certificate of registration.




(c) No health club operator shall accept payment or a promise to pay pursuant to any health club agreement or pursuant to any subsequent amendment to an existing health club agreement until a copy of the health club agreement or the amendment thereto has been filed with and accepted by the division as being in compliance with the provisions of this chapter. A health club agreement or amendment shall be deemed accepted for use unless the division furnishes the health club operator written notice of rejection of the agreement or amendment within forty-five (45) days of the date of filing with the division.


47-18-309. Certificate of registration — Application — Issuance.
(a) An application for a certificate of registration shall be submitted on forms furnished by the division and shall be accompanied by:




(1) A registration fee of two hundred fifty dollars ($250) per location;




(2) Copies of all membership and health club agreements offered by the health club; and




(3) A current personal or corporate financial statement prepared by a certified public accountant.




(b) Upon compliance with the provisions of this part by an applicant, the division shall issue a certificate of registration.




(c) No health club operator shall accept payment or a promise to pay pursuant to any health club agreement or pursuant to any subsequent amendment to an existing health club agreement until a copy of the health club agreement or the amendment thereto has been filed with and accepted by the division as being in compliance with the provisions of this chapter. A health club agreement or amendment shall be deemed accepted for use unless the division furnishes the health club operator written notice of rejection of the agreement or amendment within forty-five (45) days of the date of filing with the division.

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47-18-310. Certificate of registration — Duration — Renewal.
(a) A certificate of registration shall be valid for one (1) year from the date of issuance and shall be invalid upon expiration until it is renewed.




(b) Application for renewal of a certificate of registration shall be submitted to the division before the expiration date on forms furnished by the division, and shall be accompanied by:




(1) A fee of one hundred fifty dollars ($150) per location; and




(2) Copies of all membership and health club agreements offered by the health club.




(c) Certificates of registration shall be subject to late renewal for thirty (30) days following their expiration date by payment of the prescribed fee plus a penalty of fifty dollars ($50.00).




(d) No renewal application will be accepted more than thirty (30) days from its expiration.




(e) Upon compliance with the provisions of this part by an applicant, the division shall renew a certificate of registration.


47-18-310. Certificate of registration — Duration — Renewal.
(a) A certificate of registration shall be valid for one (1) year from the date of issuance and shall be invalid upon expiration until it is renewed.




(b) Application for renewal of a certificate of registration shall be submitted to the division before the expiration date on forms furnished by the division, and shall be accompanied by:




(1) A fee of one hundred fifty dollars ($150) per location; and




(2) Copies of all membership and health club agreements offered by the health club.




(c) Certificates of registration shall be subject to late renewal for thirty (30) days following their expiration date by payment of the prescribed fee plus a penalty of fifty dollars ($50.00).




(d) No renewal application will be accepted more than thirty (30) days from its expiration.




(e) Upon compliance with the provisions of this part by an applicant, the division shall renew a certificate of registration.

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47-18-311. Certificate of registration — Transferability — Change of ownership.



(a) No certificate of registration shall be transferable to another person.




(b) Upon a change in the information contained in the original application for a certificate of registration or in the most current application for renewal thereof, which reflects a change of ownership of more than forty-nine percent (49%) of a health club or any of its locations, a new certificate of registration shall be applied for and obtained prior to commencing or continuing business.
47-18-311. Certificate of registration — Transferability — Change of ownership.



(a) No certificate of registration shall be transferable to another person.




(b) Upon a change in the information contained in the original application for a certificate of registration or in the most current application for renewal thereof, which reflects a change of ownership of more than forty-nine percent (49%) of a health club or any of its locations, a new certificate of registration shall be applied for and obtained prior to commencing or continuing business.

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47-18-312. Violations.
In addition to any other penalty provided by this part, the following, upon conviction, constitutes a Class A misdemeanor:




(1) The violation of any provision of this part;




(2) Obtaining or attempting to obtain a certificate of registration or a certificate of exemption through material misrepresentation or fraud;




(3) Obtaining an ownership interest in a health club or its assets when such health club is in violation of any provision of this part; or




(4) The willful failure to display conspicuously a proper certificate of registration or certificate of exemption.


47-18-312. Violations.
In addition to any other penalty provided by this part, the following, upon conviction, constitutes a Class A misdemeanor:




(1) The violation of any provision of this part;




(2) Obtaining or attempting to obtain a certificate of registration or a certificate of exemption through material misrepresentation or fraud;




(3) Obtaining an ownership interest in a health club or its assets when such health club is in violation of any provision of this part; or




(4) The willful failure to display conspicuously a proper certificate of registration or certificate of exemption.

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47-18-313. Responsibility for compliance — Change in ownership — Notice.



(a) Any individual, firm, corporation, association, or other legal entity which obtains an ownership interest in a health club or its assets shall be responsible for determining that such health club is in compliance with the provisions of this part.




(b) A health club shall provide written notice to the division by registered or certified mail within ten (10) days after any change in ownership or the sale of a health club or any of its locations.




(c) A health club shall provide written notice to the division within ten (10) days after the health club or any of its locations ceases to conduct business.
47-18-313. Responsibility for compliance — Change in ownership — Notice.



(a) Any individual, firm, corporation, association, or other legal entity which obtains an ownership interest in a health club or its assets shall be responsible for determining that such health club is in compliance with the provisions of this part.




(b) A health club shall provide written notice to the division by registered or certified mail within ten (10) days after any change in ownership or the sale of a health club or any of its locations.




(c) A health club shall provide written notice to the division within ten (10) days after the health club or any of its locations ceases to conduct business.

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47-18-314. Certificates of exemption.

(a) It is unlawful to accept a down payment for a health club agreement in excess of thirty percent (30%) of the total cost of the agreement without a valid certificate of exemption.




(b) Each holder of a certificate of exemption shall display such certificate in a conspicuous place at each location where health club services or facilities are provided.




(c) Certificates of exemption shall be valid for one (1) year from the date of issuance.




(d) Application for renewal of a certificate of exemption shall be submitted before the expiration date on forms furnished by the division, and shall contain a sworn certification by the holder that the requirements for exemption continue to be met, and that the holder is in full compliance with all provisions of this part.




(e) In the event a holder of a certificate of exemption ceases to meet the requirements for exemption, then the certificate of exemption shall be invalid.




(f) Within ten (10) days after any change in the information contained in the original application or the application for renewal, each holder of a certificate of exemption shall notify the division of the change by registered or certified mail.




(g) An application for exemption shall be submitted on forms furnished by the division and shall be accompanied by:




(1) A nonrefundable application fee of fifty dollars ($50.00); and




(2) A current personal or corporate financial statement prepared by a public accountant who holds a valid permit to practice in Tennessee.




(h) A certificate of exemption shall be granted; provided, that the application provides proof satisfactory to the division that the following criteria are met:




(1) The applicant has a net worth in excess of two hundred fifty thousand dollars ($250,000) per location where health club services or facilities are provided; and




(2) The applicant has operated under substantially the same ownership and control for at least five (5) years.




(i) For the purpose of calculating net worth as provided in subsection (h), the following are excluded:




(1) Assets which represent pre-payment for future services; and




(2) Accounts receivable due from health club members for future services.




(j) Any health club which had applied for and obtained an exemption from the bond requirement under prior law shall be exempt from the provisions of this part which prohibit acceptance of a down payment for a health club agreement in an amount in excess of thirty percent (30%) of the total cost of the agreement. The exemption established by this subsection shall only be valid as long as the health club operates under the same or substantially the same ownership and control that existed when the exemption was granted under prior law.
47-18-314. Certificates of exemption.

(a) It is unlawful to accept a down payment for a health club agreement in excess of thirty percent (30%) of the total cost of the agreement without a valid certificate of exemption.




(b) Each holder of a certificate of exemption shall display such certificate in a conspicuous place at each location where health club services or facilities are provided.




(c) Certificates of exemption shall be valid for one (1) year from the date of issuance.




(d) Application for renewal of a certificate of exemption shall be submitted before the expiration date on forms furnished by the division, and shall contain a sworn certification by the holder that the requirements for exemption continue to be met, and that the holder is in full compliance with all provisions of this part.




(e) In the event a holder of a certificate of exemption ceases to meet the requirements for exemption, then the certificate of exemption shall be invalid.




(f) Within ten (10) days after any change in the information contained in the original application or the application for renewal, each holder of a certificate of exemption shall notify the division of the change by registered or certified mail.




(g) An application for exemption shall be submitted on forms furnished by the division and shall be accompanied by:




(1) A nonrefundable application fee of fifty dollars ($50.00); and




(2) A current personal or corporate financial statement prepared by a public accountant who holds a valid permit to practice in Tennessee.




(h) A certificate of exemption shall be granted; provided, that the application provides proof satisfactory to the division that the following criteria are met:




(1) The applicant has a net worth in excess of two hundred fifty thousand dollars ($250,000) per location where health club services or facilities are provided; and




(2) The applicant has operated under substantially the same ownership and control for at least five (5) years.




(i) For the purpose of calculating net worth as provided in subsection (h), the following are excluded:




(1) Assets which represent pre-payment for future services; and




(2) Accounts receivable due from health club members for future services.




(j) Any health club which had applied for and obtained an exemption from the bond requirement under prior law shall be exempt from the provisions of this part which prohibit acceptance of a down payment for a health club agreement in an amount in excess of thirty percent (30%) of the total cost of the agreement. The exemption established by this subsection shall only be valid as long as the health club operates under the same or substantially the same ownership and control that existed when the exemption was granted under prior law.

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47-18-315. Suspension, revocation, and nonrenewal of registration.




(a) Notwithstanding any other provision to the contrary in this chapter, the commissioner or the commissioner's designee may suspend, revoke or refuse to renew any registration held under the provisions of this part.




(b) The commissioner or the commissioner's designee may assess a civil penalty in an amount not to exceed one thousand dollars ($1,000) for each separate violation of this part, the rules promulgated hereunder, or order of the commissioner or the commissioner's designee. Each day of continued violation constitutes a separate violation.




(c) The provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, govern all matters and procedures respecting the hearing and judicial review of any contested case, as defined therein, arising under this part.



47-18-315. Suspension, revocation, and nonrenewal of registration.




(a) Notwithstanding any other provision to the contrary in this chapter, the commissioner or the commissioner's designee may suspend, revoke or refuse to renew any registration held under the provisions of this part.




(b) The commissioner or the commissioner's designee may assess a civil penalty in an amount not to exceed one thousand dollars ($1,000) for each separate violation of this part, the rules promulgated hereunder, or order of the commissioner or the commissioner's designee. Each day of continued violation constitutes a separate violation.




(c) The provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, govern all matters and procedures respecting the hearing and judicial review of any contested case, as defined therein, arising under this part.

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47-18-316. Promulgation of rules


The commissioner may promulgate rules and regulations to administer the provisions of this part. Such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.


47-18-316. Promulgation of rules


The commissioner may promulgate rules and regulations to administer the provisions of this part. Such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

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47-18-320. Violations — Penalties and remedies.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.


47-18-320. Violations — Penalties and remedies.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.

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47-18-322. Cease and desist orders.


Notwithstanding any other provision to the contrary in this chapter, whenever it appears to the commissioner that a person has violated or is violating this part, the rules promulgated under this part or an order of the commissioner, the commissioner may issue an order to the person to cease and desist in those violations, without prior notice. The recipient of the order shall be afforded an opportunity for a hearing within thirty (30) business days to show cause why the order should be lifted, rescinded or modified.


47-18-322. Cease and desist orders.


Notwithstanding any other provision to the contrary in this chapter, whenever it appears to the commissioner that a person has violated or is violating this part, the rules promulgated under this part or an order of the commissioner, the commissioner may issue an order to the person to cease and desist in those violations, without prior notice. The recipient of the order shall be afforded an opportunity for a hearing within thirty (30) business days to show cause why the order should be lifted, rescinded or modified.

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47-18-501. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Business day” means any day other than a Saturday, Sunday, or legal holiday;




(2) “Buyer” or “member” means any status by which any natural person is entitled to any of the benefits of a discount buying organization;




(3) “Buying service,” “buying club,” or “club” means any person, corporation, partnership, unincorporated association, or other business enterprise operating for profit within the state of Tennessee, the primary purpose of which is to provide benefits to members from the cooperative purchase of services or merchandise;




(4) “Contract” means any oral or written agreement by which one becomes a member of a club;




(5) “Division” means the consumer affairs division of the department of commerce and insurance; and




(6) “Prepayment” means any payment greater than fifty dollars ($50.00) for service, merchandise, or membership made before the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract.


47-18-501. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Business day” means any day other than a Saturday, Sunday, or legal holiday;




(2) “Buyer” or “member” means any status by which any natural person is entitled to any of the benefits of a discount buying organization;




(3) “Buying service,” “buying club,” or “club” means any person, corporation, partnership, unincorporated association, or other business enterprise operating for profit within the state of Tennessee, the primary purpose of which is to provide benefits to members from the cooperative purchase of services or merchandise;




(4) “Contract” means any oral or written agreement by which one becomes a member of a club;




(5) “Division” means the consumer affairs division of the department of commerce and insurance; and




(6) “Prepayment” means any payment greater than fifty dollars ($50.00) for service, merchandise, or membership made before the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract.

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47-18-502. Cancellation of membership.




(a) Any person who has elected to become a member of a club may cancel such membership by giving written notice any time before twelve o'clock (12:00) midnight of the third business day following the date on which membership was attained, subject to the provisions of § 47-18-503. Such cancellation shall be without liability on the part of the member and shall entitle the member to a refund of the entire consideration paid for the contract.




(b) Notice of cancellation must be in writing and delivered personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed and postage paid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the member not to be bound by the contract. If delivered personally, the notice is to be accepted by any agent or employee of the club, and a receipt for the notice must be given by that agent or employee to the person cancelling.




(c) The entitled refund shall be delivered to the member within fourteen (14) days after notice of cancellation is given.




(d) Rights of cancellation may not be waived or otherwise surrendered.




(e) Cancellation shall not relieve the member from paying for any merchandise or services purchased or ordered prior to the date of cancellation.


47-18-502. Cancellation of membership.




(a) Any person who has elected to become a member of a club may cancel such membership by giving written notice any time before twelve o'clock (12:00) midnight of the third business day following the date on which membership was attained, subject to the provisions of § 47-18-503. Such cancellation shall be without liability on the part of the member and shall entitle the member to a refund of the entire consideration paid for the contract.




(b) Notice of cancellation must be in writing and delivered personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed and postage paid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the member not to be bound by the contract. If delivered personally, the notice is to be accepted by any agent or employee of the club, and a receipt for the notice must be given by that agent or employee to the person cancelling.




(c) The entitled refund shall be delivered to the member within fourteen (14) days after notice of cancellation is given.




(d) Rights of cancellation may not be waived or otherwise surrendered.




(e) Cancellation shall not relieve the member from paying for any merchandise or services purchased or ordered prior to the date of cancellation.

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47-18-503. Contracts — Notice of right to cancel.


(a) A fully completed copy of every contract shall be delivered to the member at the time the contract is signed. Every contract shall constitute the entire agreement between seller and member, shall be in writing, shall be signed by the member, shall designate the date on which the member signed the contract and shall state, clearly and conspicuously in boldface type of a minimum size of fourteen (14) points, in immediate proximity to the space reserved for the signature of the buyer, the following:






Click to view form.




(b) Until the buying club has complied with this section, the member may cancel the contract by notifying the buying club, in any manner and by any means, of the member's intention to cancel and the member is then entitled to a refund of the entire consideration paid for the contract.




47-18-503. Contracts — Notice of right to cancel.


(a) A fully completed copy of every contract shall be delivered to the member at the time the contract is signed. Every contract shall constitute the entire agreement between seller and member, shall be in writing, shall be signed by the member, shall designate the date on which the member signed the contract and shall state, clearly and conspicuously in boldface type of a minimum size of fourteen (14) points, in immediate proximity to the space reserved for the signature of the buyer, the following:






Click to view form.




(b) Until the buying club has complied with this section, the member may cancel the contract by notifying the buying club, in any manner and by any means, of the member's intention to cancel and the member is then entitled to a refund of the entire consideration paid for the contract.

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47-18-504. Contracts — Nondelivery of goods — Savings claims.

(a) Every contract shall provide that if any goods, except furniture or custom manufactured goods, ordered by the member from the buying club, are not delivered to the member or available for pick up by the member at the location where the order was placed within six (6) weeks from the date the member placed an order for such goods, then any payment by the member for such goods in advance of delivery shall, upon the member's request, be fully refunded, unless a predetermined delivery date has been furnished to the member in writing at the time the member ordered such goods, and the goods are delivered to the member or available for pick up by that date. Every contract must disclose that delivery dates for furniture or custom manufactured goods cannot be predicted, if such is the case.




(b) Every contract shall provide that all savings claims made by the buying club are based on price comparisons with retailers doing business in the trade area in which the claims are made if the same or comparable items are offered for sale in the trade area and with prices at which the merchandise is actually sold or offered for sale.




(c) Any contract which does not comply with subsections (a) and (b) shall be void and unenforceable.
47-18-504. Contracts — Nondelivery of goods — Savings claims.

(a) Every contract shall provide that if any goods, except furniture or custom manufactured goods, ordered by the member from the buying club, are not delivered to the member or available for pick up by the member at the location where the order was placed within six (6) weeks from the date the member placed an order for such goods, then any payment by the member for such goods in advance of delivery shall, upon the member's request, be fully refunded, unless a predetermined delivery date has been furnished to the member in writing at the time the member ordered such goods, and the goods are delivered to the member or available for pick up by that date. Every contract must disclose that delivery dates for furniture or custom manufactured goods cannot be predicted, if such is the case.




(b) Every contract shall provide that all savings claims made by the buying club are based on price comparisons with retailers doing business in the trade area in which the claims are made if the same or comparable items are offered for sale in the trade area and with prices at which the merchandise is actually sold or offered for sale.




(c) Any contract which does not comply with subsections (a) and (b) shall be void and unenforceable.

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47-18-505. Contracts — Duration.


No contract shall be valid for a term longer than eighteen (18) months from the date upon which the contract is signed. However, a club may allow a member to convert such member's contract into a contract for a period longer than eighteen (18) months after the member has been a member of the club for a period of at least six (6) months. The duration of the contract shall be clearly and conspicuously disclosed in the contract in boldface type of a minimum size of fourteen (14) points. No contract shall contain an automatic renewal clause; provided, that such an agreement may provide for the buyer to exercise a renewal.


47-18-505. Contracts — Duration.


No contract shall be valid for a term longer than eighteen (18) months from the date upon which the contract is signed. However, a club may allow a member to convert such member's contract into a contract for a period longer than eighteen (18) months after the member has been a member of the club for a period of at least six (6) months. The duration of the contract shall be clearly and conspicuously disclosed in the contract in boldface type of a minimum size of fourteen (14) points. No contract shall contain an automatic renewal clause; provided, that such an agreement may provide for the buyer to exercise a renewal.

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47-18-506. Exemptions.
This part shall not apply to:




(1) Any buyers club in which the total consideration paid by each buyer in any manner whatsoever under the contract for discount buying services does not exceed fifty dollars ($50.00) over the expected life of the contract;




(2) Any buyers club in which persons receive discount buyer services incidentally as part of a package of services provided to or available to such individuals on account of their membership in such organization, which is not organized for the profit of any person or corporation or which does not have as one (1) of its primary purposes or businesses the provision of discount buying services; and




(3) Any buyers club which files with the director of the division a declaration, executed under penalty of perjury by the owner or manager of such club, stating that the club does not require or, in the ordinary course of business, receive prepayment.



47-18-506. Exemptions.
This part shall not apply to:




(1) Any buyers club in which the total consideration paid by each buyer in any manner whatsoever under the contract for discount buying services does not exceed fifty dollars ($50.00) over the expected life of the contract;




(2) Any buyers club in which persons receive discount buyer services incidentally as part of a package of services provided to or available to such individuals on account of their membership in such organization, which is not organized for the profit of any person or corporation or which does not have as one (1) of its primary purposes or businesses the provision of discount buying services; and




(3) Any buyers club which files with the director of the division a declaration, executed under penalty of perjury by the owner or manager of such club, stating that the club does not require or, in the ordinary course of business, receive prepayment.

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47-18-507. Required disclosures — Unfair or deceptive trade practices.

(a) It is unlawful for any buying club to fail to disclose to a prospective member in writing, prior to the sale of any contract for discount buying services:




(1) That goods or services can only be bought through catalogs with no opportunity to inspect samples if such is the case;




(2) The buyers club's policies regarding warranties or guarantees on goods ordered, return of ordered goods by buyers, procedures for cancellation of merchandise orders by the buyer, and refunds of deposits for the cancellation of orders;




(3) Any charges, such as estimated freight costs, handling fees, credit life or disability insurance, suppliers' and buyers clubs' markup, and other costs incidental to the purchase of goods through the buyers club and which are to be paid by the buyer;




(4) A list of the categories of merchandise which are available to buyers from cooperating suppliers. If the list includes savings claims based on reference prices, the reference prices must be those at which the same or comparable goods are offered or sold in the trade area;




(5) Advice that the contract for discount buying service or incidental retail installments contracts will be transferred, sold, or assigned to a third party if such practice is to be used by the buyers club; and




(6) The percentage of the purchase price required as a down payment on merchandise orders of any nature. This prohibition applies in all cases where rebates are offered, regardless of whether such promised rebates are contingent upon the seller's ability to enroll the referred persons into the buyers club.




(b) It is an unfair or deceptive trade practice for a buying club to:




(1) Represent that it is affiliated with any other buyers club organization or showroom, unless an affiliation in fact exists and unless the prospective buyer would be legally entitled to services from the allegedly affiliated organization as a result of being a buyer of the subject buyers club. If such an affiliation is claimed by the representative of the buyers club, written proof of such a binding legal right must be given the prospective buyer, including a description of the services available from the affiliated club, before the signing of any contract for discount buying services or application;




(2) Represent that the prospective buyer will be entitled to a particular benefit unless that benefit is currently available from the buyers club on a regular basis;




(3) Offer any gifts or consideration of any nature to a prospective buyer as a solicitation for such person to attend a buyers club sales presentation or to sign a membership application or a contract for discount buying services where the club fails to honor or deliver the gift or consideration in accordance with the terms of its promise;




(4) Represent or suggest in any manner that it offers its buyers the lowest prices, excluding freight and service charges, available on all categories of merchandise handled by the club, unless such is true; or




(5) Represent that merchandise is available to the buyer from any particular supplier unless such is true at the time the representation is made. Reference to unavailable suppliers or manufacturers may be made only for purposes of allowing prospective buyers to compare merchandise costs against those manufacturers which are available through the club. No buyers club may represent to a prospective buyer, unless it is true, that the club can purchase any item of merchandise at supplier's cost if the buyer provides the club with the necessary model number for the item.
47-18-507. Required disclosures — Unfair or deceptive trade practices.

(a) It is unlawful for any buying club to fail to disclose to a prospective member in writing, prior to the sale of any contract for discount buying services:




(1) That goods or services can only be bought through catalogs with no opportunity to inspect samples if such is the case;




(2) The buyers club's policies regarding warranties or guarantees on goods ordered, return of ordered goods by buyers, procedures for cancellation of merchandise orders by the buyer, and refunds of deposits for the cancellation of orders;




(3) Any charges, such as estimated freight costs, handling fees, credit life or disability insurance, suppliers' and buyers clubs' markup, and other costs incidental to the purchase of goods through the buyers club and which are to be paid by the buyer;




(4) A list of the categories of merchandise which are available to buyers from cooperating suppliers. If the list includes savings claims based on reference prices, the reference prices must be those at which the same or comparable goods are offered or sold in the trade area;




(5) Advice that the contract for discount buying service or incidental retail installments contracts will be transferred, sold, or assigned to a third party if such practice is to be used by the buyers club; and




(6) The percentage of the purchase price required as a down payment on merchandise orders of any nature. This prohibition applies in all cases where rebates are offered, regardless of whether such promised rebates are contingent upon the seller's ability to enroll the referred persons into the buyers club.




(b) It is an unfair or deceptive trade practice for a buying club to:




(1) Represent that it is affiliated with any other buyers club organization or showroom, unless an affiliation in fact exists and unless the prospective buyer would be legally entitled to services from the allegedly affiliated organization as a result of being a buyer of the subject buyers club. If such an affiliation is claimed by the representative of the buyers club, written proof of such a binding legal right must be given the prospective buyer, including a description of the services available from the affiliated club, before the signing of any contract for discount buying services or application;




(2) Represent that the prospective buyer will be entitled to a particular benefit unless that benefit is currently available from the buyers club on a regular basis;




(3) Offer any gifts or consideration of any nature to a prospective buyer as a solicitation for such person to attend a buyers club sales presentation or to sign a membership application or a contract for discount buying services where the club fails to honor or deliver the gift or consideration in accordance with the terms of its promise;




(4) Represent or suggest in any manner that it offers its buyers the lowest prices, excluding freight and service charges, available on all categories of merchandise handled by the club, unless such is true; or




(5) Represent that merchandise is available to the buyer from any particular supplier unless such is true at the time the representation is made. Reference to unavailable suppliers or manufacturers may be made only for purposes of allowing prospective buyers to compare merchandise costs against those manufacturers which are available through the club. No buyers club may represent to a prospective buyer, unless it is true, that the club can purchase any item of merchandise at supplier's cost if the buyer provides the club with the necessary model number for the item.

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47-18-508. Requirements nonwaivable.

Any waiver by the member of the provisions of this part shall be deemed contrary to public policy and shall be void and unenforceable.
47-18-508. Requirements nonwaivable.

Any waiver by the member of the provisions of this part shall be deemed contrary to public policy and shall be void and unenforceable.

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47-18-509. Violations of part — Penalties.

A violation of this part shall constitute a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.
47-18-509. Violations of part — Penalties.

A violation of this part shall constitute a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.

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47-18-601. Short title.


This part shall be known and may be cited as the “Tennessee Rental-Purchase Agreement Act.”


47-18-601. Short title.


This part shall be known and may be cited as the “Tennessee Rental-Purchase Agreement Act.”

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47-18-602. Legislative findings and purpose.

The general assembly finds that a significant number of consumers have sought to acquire ownership of personal property through rental-purchase agreements. Often, these rental-purchase agreements have been offered without adequate cost disclosures. It is the purpose of this part to assure meaningful disclosure of the terms of rental-purchase agreements, to make consumers aware of the total cost attendant with such agreements, to inform the consumer when ownership will transfer, and to assure accurate disclosures of rental-purchase terms in advertising.
47-18-602. Legislative findings and purpose.

The general assembly finds that a significant number of consumers have sought to acquire ownership of personal property through rental-purchase agreements. Often, these rental-purchase agreements have been offered without adequate cost disclosures. It is the purpose of this part to assure meaningful disclosure of the terms of rental-purchase agreements, to make consumers aware of the total cost attendant with such agreements, to inform the consumer when ownership will transfer, and to assure accurate disclosures of rental-purchase terms in advertising.

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47-18-602. Legislative findings and purpose.

The general assembly finds that a significant number of consumers have sought to acquire ownership of personal property through rental-purchase agreements. Often, these rental-purchase agreements have been offered without adequate cost disclosures. It is the purpose of this part to assure meaningful disclosure of the terms of rental-purchase agreements, to make consumers aware of the total cost attendant with such agreements, to inform the consumer when ownership will transfer, and to assure accurate disclosures of rental-purchase terms in advertising.
47-18-602. Legislative findings and purpose.

The general assembly finds that a significant number of consumers have sought to acquire ownership of personal property through rental-purchase agreements. Often, these rental-purchase agreements have been offered without adequate cost disclosures. It is the purpose of this part to assure meaningful disclosure of the terms of rental-purchase agreements, to make consumers aware of the total cost attendant with such agreements, to inform the consumer when ownership will transfer, and to assure accurate disclosures of rental-purchase terms in advertising.

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47-18-603. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Advertisement” means a commercial message in any medium that aids, promotes, or assists directly or indirectly a rental-purchase agreement;




(2) “Cash price” means the price at which the lessor would have sold the property to the consumer for cash on the date of the rental-purchase agreement;




(3) “Consumer” means a natural person who rents personal property under a rental-purchase agreement;




(4) “Consummation” means the time a consumer becomes contractually obligated on a rental-purchase agreement;




(5) “Division” means the division of consumer affairs in the department of commerce and insurance;




(6) “Lessor” means a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of property under a rental-purchase agreement; and




(7) “Rental-purchase agreement” means an agreement for the use of personal property by a natural person primarily for personal, family, or household purposes, for an initial period of four (4) months or less (whether or not there is any obligation beyond the initial period) that is automatically renewable with each payment and that permits the consumer to become the owner of the property. “Rental-purchase agreement” shall not be construed to be, nor be governed by, any of the following:




(A) A lease or agreement which constitutes a “credit” sale as defined in 12 C.F.R. 226.2(a)(16) and Section 1602(g) of the Truth In Lending Act, 15 U.S.C. § 1601 et seq.;




(B) A lease which constitutes a “consumer lease” as defined in 12 C.F.R. 213.2(a)(6);




(C) Any lease for agricultural, business, or commercial purposes;




(D) Any lease made to an organization;




(E) A lease or agreement which constitutes a “retail installment contract” or “retail installment transaction” as defined in § 47-11-102;




(F) A “security interest” as defined in § 47-1-201; or




(G) A “home solicitation sale” as defined in § 47-18-702.


47-18-603. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Advertisement” means a commercial message in any medium that aids, promotes, or assists directly or indirectly a rental-purchase agreement;




(2) “Cash price” means the price at which the lessor would have sold the property to the consumer for cash on the date of the rental-purchase agreement;




(3) “Consumer” means a natural person who rents personal property under a rental-purchase agreement;




(4) “Consummation” means the time a consumer becomes contractually obligated on a rental-purchase agreement;




(5) “Division” means the division of consumer affairs in the department of commerce and insurance;




(6) “Lessor” means a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of property under a rental-purchase agreement; and




(7) “Rental-purchase agreement” means an agreement for the use of personal property by a natural person primarily for personal, family, or household purposes, for an initial period of four (4) months or less (whether or not there is any obligation beyond the initial period) that is automatically renewable with each payment and that permits the consumer to become the owner of the property. “Rental-purchase agreement” shall not be construed to be, nor be governed by, any of the following:




(A) A lease or agreement which constitutes a “credit” sale as defined in 12 C.F.R. 226.2(a)(16) and Section 1602(g) of the Truth In Lending Act, 15 U.S.C. § 1601 et seq.;




(B) A lease which constitutes a “consumer lease” as defined in 12 C.F.R. 213.2(a)(6);




(C) Any lease for agricultural, business, or commercial purposes;




(D) Any lease made to an organization;




(E) A lease or agreement which constitutes a “retail installment contract” or “retail installment transaction” as defined in § 47-11-102;




(F) A “security interest” as defined in § 47-1-201; or




(G) A “home solicitation sale” as defined in § 47-18-702.

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47-18-604. Required disclosures. (a) For each rental-purchase agreement, the lessor shall disclose the following items as applicable:




(1) A brief description of the leased property, sufficient to identify the property to the consumer and lessor;




(2) The number, amount, and timing of all lease payments necessary to acquire ownership of the property;




(3) The maximum amount of all initial and periodic payments and other charges to acquire ownership of the property pursuant to the ownership provisions of the rental-purchase agreement;




(4) A statement that the consumer will not own the property until the consumer has made the number of payments and the total of payments necessary to acquire ownership;




(5) A statement that the total of payments does not include other charges, such as late payment, default, pickup, and reinstatement fees, and that the consumer should see the contract for an explanation of these charges;




(6) If applicable, a statement that the consumer is responsible for the fair market value of the property if it is lost, stolen, damaged, or destroyed;




(7) A statement indicating whether the property is new or used; however, a statement that indicates new property is used is not a violation of this part;




(8) A statement of the cash price of the property. Where the agreement involves a lease for five (5) or more items, a statement of the aggregate cash price of all items shall satisfy this requirement;




(9) The total of initial payments required to be paid before consummation of the agreement or delivery of the property, whichever is later;




(10) A statement clearly summarizing the terms of the consumer's options to purchase;




(11) A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with the description of that responsibility and a statement that, if any part of a manufacturer's express warranty covers the leased property at the time the consumer acquires ownership of the property, it will be transferred to the consumer, if allowed by the terms of the warranty; and




(12) The date of the transaction and the identities of the lessor and consumer.




(b) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section.




(c) Subsection (a) does not apply to a lessor who complies with the disclosure requirements of Section 182 of the federal Consumer Credit Protection Act, 15 U.S.C. § 1667a, 90 Stat. 258, with respect to a rental-purchase agreement entered into with a consumer.
47-18-604. Required disclosures. (a) For each rental-purchase agreement, the lessor shall disclose the following items as applicable:




(1) A brief description of the leased property, sufficient to identify the property to the consumer and lessor;




(2) The number, amount, and timing of all lease payments necessary to acquire ownership of the property;




(3) The maximum amount of all initial and periodic payments and other charges to acquire ownership of the property pursuant to the ownership provisions of the rental-purchase agreement;




(4) A statement that the consumer will not own the property until the consumer has made the number of payments and the total of payments necessary to acquire ownership;




(5) A statement that the total of payments does not include other charges, such as late payment, default, pickup, and reinstatement fees, and that the consumer should see the contract for an explanation of these charges;




(6) If applicable, a statement that the consumer is responsible for the fair market value of the property if it is lost, stolen, damaged, or destroyed;




(7) A statement indicating whether the property is new or used; however, a statement that indicates new property is used is not a violation of this part;




(8) A statement of the cash price of the property. Where the agreement involves a lease for five (5) or more items, a statement of the aggregate cash price of all items shall satisfy this requirement;




(9) The total of initial payments required to be paid before consummation of the agreement or delivery of the property, whichever is later;




(10) A statement clearly summarizing the terms of the consumer's options to purchase;




(11) A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with the description of that responsibility and a statement that, if any part of a manufacturer's express warranty covers the leased property at the time the consumer acquires ownership of the property, it will be transferred to the consumer, if allowed by the terms of the warranty; and




(12) The date of the transaction and the identities of the lessor and consumer.




(b) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section.




(c) Subsection (a) does not apply to a lessor who complies with the disclosure requirements of Section 182 of the federal Consumer Credit Protection Act, 15 U.S.C. § 1667a, 90 Stat. 258, with respect to a rental-purchase agreement entered into with a consumer.

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47-18-605. Form of disclosures.

(a) The lessor shall disclose to the consumer the information required by this part. In a transaction involving more than one (1) consumer, a lessor need disclose only to one (1) of the consumers who is primarily obligated. In a transaction involving more than one (1) lessor, only one (1) lessor need make the required disclosures.




(b) The disclosures required under this part shall be made no later than the time that the lessor delivers the merchandise to the consumer, or upon consummation of the rental-purchase agreement, whichever is earlier.




(c) (1) The disclosures shall be made using words and phrases of common meaning, in a form that the consumer may keep.




(2) The disclosures required under § 47-18-604 may be made a part of the rental-purchase agreement or provided on a separate form.




(3) The required disclosures shall be set forth clearly and conspicuously. The disclosures shall be placed all together, on the front side of the rental-purchase agreement or on a separate form. The form setting forth the required disclosures must contain spaces for the consumer's signature and the date appearing immediately below the disclosures. The requirements of this section shall not have been complied with unless the consumer signs the statement and receives, at the time disclosures are made, a legible copy of the signed statement. The inclusion in the required disclosures of a statement that the consumer received a legible copy of those disclosures shall create a rebuttable presumption of receipt thereof.




(d) Information required to be disclosed may be given in the form of estimates and shall be identified as such when the lessor does not know the exact information.




(e) If a disclosure becomes inaccurate as the result of any act, occurrence, or agreement after delivery of the required disclosures, the resulting inaccuracy is not a violation of this part.




(f) At the lessor's option, information in addition to that required by § 47-18-604 may be disclosed if the additional information is not stated, utilized, or placed in a manner which will contradict, obscure, or distract attention from the required information.
47-18-605. Form of disclosures.

(a) The lessor shall disclose to the consumer the information required by this part. In a transaction involving more than one (1) consumer, a lessor need disclose only to one (1) of the consumers who is primarily obligated. In a transaction involving more than one (1) lessor, only one (1) lessor need make the required disclosures.




(b) The disclosures required under this part shall be made no later than the time that the lessor delivers the merchandise to the consumer, or upon consummation of the rental-purchase agreement, whichever is earlier.




(c) (1) The disclosures shall be made using words and phrases of common meaning, in a form that the consumer may keep.




(2) The disclosures required under § 47-18-604 may be made a part of the rental-purchase agreement or provided on a separate form.




(3) The required disclosures shall be set forth clearly and conspicuously. The disclosures shall be placed all together, on the front side of the rental-purchase agreement or on a separate form. The form setting forth the required disclosures must contain spaces for the consumer's signature and the date appearing immediately below the disclosures. The requirements of this section shall not have been complied with unless the consumer signs the statement and receives, at the time disclosures are made, a legible copy of the signed statement. The inclusion in the required disclosures of a statement that the consumer received a legible copy of those disclosures shall create a rebuttable presumption of receipt thereof.




(d) Information required to be disclosed may be given in the form of estimates and shall be identified as such when the lessor does not know the exact information.




(e) If a disclosure becomes inaccurate as the result of any act, occurrence, or agreement after delivery of the required disclosures, the resulting inaccuracy is not a violation of this part.




(f) At the lessor's option, information in addition to that required by § 47-18-604 may be disclosed if the additional information is not stated, utilized, or placed in a manner which will contradict, obscure, or distract attention from the required information.

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47-18-606. Prohibited terms of agreement.


A rental-purchase agreement may not contain a provision:




(1) Requiring a confession of judgment;




(2) Requiring a garnishment of wages;




(3) Granting authorization to the lessor or a person acting on the lessor's behalf to enter unlawfully upon the consumer's premises or to commit any breach of the peace in the repossession of goods;




(4) Requiring the consumer to waive any defense, counterclaim, or right of action against the lessor or a person acting on the lessor's behalf in collection of payment under the lease or in the repossession of goods; or




(5) Requiring purchase of insurance from the lessor to cover the merchandise.


47-18-606. Prohibited terms of agreement.


A rental-purchase agreement may not contain a provision:




(1) Requiring a confession of judgment;




(2) Requiring a garnishment of wages;




(3) Granting authorization to the lessor or a person acting on the lessor's behalf to enter unlawfully upon the consumer's premises or to commit any breach of the peace in the repossession of goods;




(4) Requiring the consumer to waive any defense, counterclaim, or right of action against the lessor or a person acting on the lessor's behalf in collection of payment under the lease or in the repossession of goods; or




(5) Requiring purchase of insurance from the lessor to cover the merchandise.

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47-18-607. Termination and reinstatement provisions. (a) Each rental-purchase agreement must:




(1) Provide that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the merchandise upon expiration of any lease term; and




(2) Contain a provision for reinstatement which, at a minimum:




(A) Permits a consumer who fails to make a timely rental payment to reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of all past due rental charges, the reasonable costs of pickup, redelivery, any refurbishing and any applicable late fee within five (5) days of the renewal date if the consumer pays monthly, or within two (2) days of the renewal date if the consumer pays more frequently than monthly;




(B) In the case where a consumer, at the request of the lessor or its agent, has returned or voluntarily surrendered the property, other than through judicial process, permits the consumer to reinstate the agreement during a period of not less than thirty (30) days after the date of the return of the property. In the event the consumer has paid not less than sixty percent (60%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection shall be extended to a total of ninety (90) days after the date of the return of the property. In the event the consumer has paid not less than eighty percent (80%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection shall be extended to a total of one hundred eighty (180) days after the date of the return of the property.




(b) Nothing in this section prevents a lessor from attempting to repossess property during the reinstatement period, but such a repossession does not affect the consumer's right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition.
47-18-607. Termination and reinstatement provisions. (a) Each rental-purchase agreement must:




(1) Provide that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the merchandise upon expiration of any lease term; and




(2) Contain a provision for reinstatement which, at a minimum:




(A) Permits a consumer who fails to make a timely rental payment to reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of all past due rental charges, the reasonable costs of pickup, redelivery, any refurbishing and any applicable late fee within five (5) days of the renewal date if the consumer pays monthly, or within two (2) days of the renewal date if the consumer pays more frequently than monthly;




(B) In the case where a consumer, at the request of the lessor or its agent, has returned or voluntarily surrendered the property, other than through judicial process, permits the consumer to reinstate the agreement during a period of not less than thirty (30) days after the date of the return of the property. In the event the consumer has paid not less than sixty percent (60%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection shall be extended to a total of ninety (90) days after the date of the return of the property. In the event the consumer has paid not less than eighty percent (80%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection shall be extended to a total of one hundred eighty (180) days after the date of the return of the property.




(b) Nothing in this section prevents a lessor from attempting to repossess property during the reinstatement period, but such a repossession does not affect the consumer's right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition.

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47-18-608. Receipts for payments.



A lessor shall provide the consumer with a written receipt for each payment made by cash or money order.


47-18-608. Receipts for payments.



A lessor shall provide the consumer with a written receipt for each payment made by cash or money order.

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47-18-609. Renegotiations — Extensions.


(a) A renegotiation occurs when an existing rental-purchase agreement is satisfied and replaced by a new lease agreement undertaken by the same consumer. A renegotiation is a new agreement requiring new disclosures. However, events such as the following shall not be treated as renegotiations:




(1) The addition or return of property in a multiple item agreement or the substitution of lease property, if in either case the average payment allocable to a payment period is not changed by more than twenty-five percent (25%);




(2) A deferral or extension of one (1) or more periodic payments, or portions of a periodic payment;




(3) A reduction in charges in the agreement;




(4) An agreement involving a court proceeding; and




(5) Any other event described in regulations prescribed by the division.




(b) No disclosures are required for any extension of a rental-purchase agreement.



47-18-609. Renegotiations — Extensions.


(a) A renegotiation occurs when an existing rental-purchase agreement is satisfied and replaced by a new lease agreement undertaken by the same consumer. A renegotiation is a new agreement requiring new disclosures. However, events such as the following shall not be treated as renegotiations:




(1) The addition or return of property in a multiple item agreement or the substitution of lease property, if in either case the average payment allocable to a payment period is not changed by more than twenty-five percent (25%);




(2) A deferral or extension of one (1) or more periodic payments, or portions of a periodic payment;




(3) A reduction in charges in the agreement;




(4) An agreement involving a court proceeding; and




(5) Any other event described in regulations prescribed by the division.




(b) No disclosures are required for any extension of a rental-purchase agreement.

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47-18-610. Advertisements.


(a) If an advertisement for a rental-purchase agreement refers to or states the amount of any payment or the right to acquire ownership for any specific item, the advertisement also must state clearly and conspicuously the following items, as applicable:




(1) That the transaction advertised is a rental-purchase agreement;




(2) The total of payments necessary to acquire ownership; and




(3) That the consumer acquires no ownership rights if the total amount necessary to acquire ownership is not paid.




(b) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section.




(c) Subsection (a) does not apply to an advertisement which does not refer to a specific item of merchandise. The disclosures also need not be made in an advertisement which does not refer to or state the amount of any payment, and which is published in the yellow pages of a telephone directory or any similar directory of business.




(d) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section.


47-18-610. Advertisements.


(a) If an advertisement for a rental-purchase agreement refers to or states the amount of any payment or the right to acquire ownership for any specific item, the advertisement also must state clearly and conspicuously the following items, as applicable:




(1) That the transaction advertised is a rental-purchase agreement;




(2) The total of payments necessary to acquire ownership; and




(3) That the consumer acquires no ownership rights if the total amount necessary to acquire ownership is not paid.




(b) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section.




(c) Subsection (a) does not apply to an advertisement which does not refer to a specific item of merchandise. The disclosures also need not be made in an advertisement which does not refer to or state the amount of any payment, and which is published in the yellow pages of a telephone directory or any similar directory of business.




(d) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section.

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47-18-611. Civil liability.
(a) (1) A lessor who fails to comply with a requirement imposed in § 47-18-604 or §§ 47-18-606 — 47-18-608 with respect to a consumer is liable to the consumer in an amount equal to the greater of:




(A) The actual damages sustained by the customer as a result of the violation; or




(B) (i) In the case of an individual action, twenty-five percent (25%) of the total of payments necessary to acquire ownership but not less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000); or




(ii) In the case of a class action, the amount the court determines to be appropriate with no minimum recovery as to each member. The total recovery in any class action or series of class actions arising out of the same violation may not be more than the lesser of five hundred thousand dollars ($500,000) or one percent (1%) of the net worth of the lessor. In determining the amount of any award in a class action, the court shall consider, among other relevant factors, the amount of actual damages awarded, the frequency and persistence of the violation, the lessor's resources, and the extent to which the lessor's violation was intentional.




(2) Such lessor is also liable to the consumer for the costs of the action and reasonable attorneys' fees as determined by the court.




(b) In the case of an advertisement, any lessor who fails to comply with the requirements of § 47-18-610 with regard to any person is liable to that person for actual damages suffered from the violation, the costs of the action, and reasonable attorneys' fees.




(c) When there are multiple lessors, liability shall be imposed only on the lessor who made the disclosures. When no disclosures have been given, liability shall be imposed on all lessors.




(d) When there are multiple consumers in a rental-purchase agreement, there shall be only one (1) recovery of damages under subsection (a) for a violation of this part.




(e) Multiple violations in connection with a rental-purchase agreement entitle the consumer to a single recovery under this section.




(f) A consumer may not take any action to offset any amount for which a lessor is potentially liable under subsection (a) against any amount owed by the consumer, unless the amount of the lessor's liability has been determined by judgment of a court of competent jurisdiction in an action in which the lessor was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this part as an original action, or as a defense or counterclaim to an action brought by lessor to collect amounts owed by the consumer.




(g) In connection with any transaction covered under this part, the lessor shall preserve evidence of compliance with the provisions of this part for not less than two (2) years from the date of consummation of the agreement.


47-18-611. Civil liability.
(a) (1) A lessor who fails to comply with a requirement imposed in § 47-18-604 or §§ 47-18-606 — 47-18-608 with respect to a consumer is liable to the consumer in an amount equal to the greater of:




(A) The actual damages sustained by the customer as a result of the violation; or




(B) (i) In the case of an individual action, twenty-five percent (25%) of the total of payments necessary to acquire ownership but not less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000); or




(ii) In the case of a class action, the amount the court determines to be appropriate with no minimum recovery as to each member. The total recovery in any class action or series of class actions arising out of the same violation may not be more than the lesser of five hundred thousand dollars ($500,000) or one percent (1%) of the net worth of the lessor. In determining the amount of any award in a class action, the court shall consider, among other relevant factors, the amount of actual damages awarded, the frequency and persistence of the violation, the lessor's resources, and the extent to which the lessor's violation was intentional.




(2) Such lessor is also liable to the consumer for the costs of the action and reasonable attorneys' fees as determined by the court.




(b) In the case of an advertisement, any lessor who fails to comply with the requirements of § 47-18-610 with regard to any person is liable to that person for actual damages suffered from the violation, the costs of the action, and reasonable attorneys' fees.




(c) When there are multiple lessors, liability shall be imposed only on the lessor who made the disclosures. When no disclosures have been given, liability shall be imposed on all lessors.




(d) When there are multiple consumers in a rental-purchase agreement, there shall be only one (1) recovery of damages under subsection (a) for a violation of this part.




(e) Multiple violations in connection with a rental-purchase agreement entitle the consumer to a single recovery under this section.




(f) A consumer may not take any action to offset any amount for which a lessor is potentially liable under subsection (a) against any amount owed by the consumer, unless the amount of the lessor's liability has been determined by judgment of a court of competent jurisdiction in an action in which the lessor was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this part as an original action, or as a defense or counterclaim to an action brought by lessor to collect amounts owed by the consumer.




(g) In connection with any transaction covered under this part, the lessor shall preserve evidence of compliance with the provisions of this part for not less than two (2) years from the date of consummation of the agreement.

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47-18-612. Limitation of actions.
An action under this part may be brought in any court of competent jurisdiction within one (1) year of the date of the occurrence of any violation or within six (6) months of the time the rental-purchase agreement, together with any renewals or extensions thereof, ceases to be in effect, whichever is greater. Notwithstanding the above, an action under this part may be maintained by way of recoupment or counterclaim in an action brought against the consumer by the lessor or its assignee.

47-18-612. Limitation of actions.
An action under this part may be brought in any court of competent jurisdiction within one (1) year of the date of the occurrence of any violation or within six (6) months of the time the rental-purchase agreement, together with any renewals or extensions thereof, ceases to be in effect, whichever is greater. Notwithstanding the above, an action under this part may be maintained by way of recoupment or counterclaim in an action brought against the consumer by the lessor or its assignee.

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47-18-613. Liability — Good faith defenses.


(a) A lessor is not liable under § 47-18-612 for a violation of this part if the lessor shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, even though the lessor maintained procedures reasonably adapted to avoid such an error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors. An error of legal judgment with respect to requirements of this title is not a bona fide error.




(b) A lessor is not liable under this part for any act done or omitted in good faith in conformity with any rule, regulation, or interpretation promulgated by the attorney general and reporter or by the division or by an official duly authorized by the attorney general and reporter or by the division. This rule applies even if, after the act or omission has occurred, the rule, regulation, or interpretation is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.


47-18-613. Liability — Good faith defenses.


(a) A lessor is not liable under § 47-18-612 for a violation of this part if the lessor shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, even though the lessor maintained procedures reasonably adapted to avoid such an error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors. An error of legal judgment with respect to requirements of this title is not a bona fide error.




(b) A lessor is not liable under this part for any act done or omitted in good faith in conformity with any rule, regulation, or interpretation promulgated by the attorney general and reporter or by the division or by an official duly authorized by the attorney general and reporter or by the division. This rule applies even if, after the act or omission has occurred, the rule, regulation, or interpretation is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

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47-18-614. Criminal liability.


A willful and intentional violation of any provision of this part is a Class C misdemeanor.


47-18-614. Criminal liability.


A willful and intentional violation of any provision of this part is a Class C misdemeanor.

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47-18-701. Short title.
This part shall be known and may be cited as the “Tennessee Home Solicitation Sales Act of 1974.”

47-18-701. Short title.
This part shall be known and may be cited as the “Tennessee Home Solicitation Sales Act of 1974.”

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47-18-702. Definitions. As used in this part, unless the context otherwise requires:




(1) “Business day” means any calendar day except Sunday, or the following business holidays: New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day;




(2) “Buyer” means buyer or lessee;




(3) “Goods” means tangible personal property and also includes a merchandise certificate whereby a writing is issued by the seller which is not redeemable in cash and is usable in lieu of cash in exchange for goods or services;




(4) “Home solicitation sale” means a consumer sale or lease of goods (other than farm equipment and/or motor vehicles) or services, other than insurance and securities, in which the seller or a person acting for the seller engages in the personal solicitation of the sale or lease at any residence other than that of the seller, and the buyer's agreement or offer to purchase or lease is there given to the seller or a person acting for the seller. It does not include cash sales of less than twenty-five dollars ($25.00), a sale or lease made pursuant to a preexisting revolving charge account, or a sale or lease made pursuant to prior negotiations between the parties. It does not include real estate sales or listing agreements. It does not include sales of farm animals or produce or similar perishable items; and




(5) “Seller” means seller or lessor.
47-18-702. Definitions. As used in this part, unless the context otherwise requires:




(1) “Business day” means any calendar day except Sunday, or the following business holidays: New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day;




(2) “Buyer” means buyer or lessee;




(3) “Goods” means tangible personal property and also includes a merchandise certificate whereby a writing is issued by the seller which is not redeemable in cash and is usable in lieu of cash in exchange for goods or services;




(4) “Home solicitation sale” means a consumer sale or lease of goods (other than farm equipment and/or motor vehicles) or services, other than insurance and securities, in which the seller or a person acting for the seller engages in the personal solicitation of the sale or lease at any residence other than that of the seller, and the buyer's agreement or offer to purchase or lease is there given to the seller or a person acting for the seller. It does not include cash sales of less than twenty-five dollars ($25.00), a sale or lease made pursuant to a preexisting revolving charge account, or a sale or lease made pursuant to prior negotiations between the parties. It does not include real estate sales or listing agreements. It does not include sales of farm animals or produce or similar perishable items; and




(5) “Seller” means seller or lessor.

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47-18-703. Cancellation — Buyer's rights — Exceptions. Notwithstanding any other provisions of the law to the contrary:




(1) Except as provided in subdivision (5), in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until twelve o'clock midnight (12:00) of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with § 47-18-704;




(2) Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase;




(3) Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid;




(4) Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale;




(5) The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and:




(A) The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation;




(B) In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer; and




(C) The buyer's emergency request is in a dated writing personally signed by the buyer and which expressly states that the buyer understands that the buyer is waiving the buyer's right to cancel the sale under the provisions of this part;




(6) Except as provided in subdivision (5), any waiver or modification of a buyer's right to cancel is void and of no effect. In the event the seller obtains from the buyer a waiver or modification of the buyer's right to cancel, the buyer's right to cancel shall commence on the first business day following the buyer's learning that the waiver or modification is void and of no effect.
47-18-703. Cancellation — Buyer's rights — Exceptions. Notwithstanding any other provisions of the law to the contrary:




(1) Except as provided in subdivision (5), in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until twelve o'clock midnight (12:00) of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with § 47-18-704;




(2) Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase;




(3) Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid;




(4) Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale;




(5) The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and:




(A) The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation;




(B) In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer; and




(C) The buyer's emergency request is in a dated writing personally signed by the buyer and which expressly states that the buyer understands that the buyer is waiving the buyer's right to cancel the sale under the provisions of this part;




(6) Except as provided in subdivision (5), any waiver or modification of a buyer's right to cancel is void and of no effect. In the event the seller obtains from the buyer a waiver or modification of the buyer's right to cancel, the buyer's right to cancel shall commence on the first business day following the buyer's learning that the waiver or modification is void and of no effect.

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47-18-704. Cancellation — Notice to buyer of rights.

(a) In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller must present to the buyer a receipt if it is a cash or credit card sale or, in the case of a credit sale, obtain the buyer's signature to a written agreement or offer to purchase which designates as the date of the transaction the date on which the buyer actually makes payment in whole or in part or signs. Contained on any such receipt, written agreement, or offer to purchase, there shall be a readily legible statement as described in subsection (b).




(b) The statement required in subsection (a) shall:




(1) Appear on the front side of the receipt or contract, or immediately above the buyer's signature, under the conspicuous caption: “BUYER'S RIGHT TO CANCEL”; and






Click to view form.




(c) In lieu of the form of notice required by subsection (b), a seller may comply with the requirements of the federal statutes, rules, or regulations governing the form of notice of the right of cancellation in door-to-door sales.




(d) Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of the buyer's intention to cancel.




(e) A home solicitation sale shall be deemed to be in compliance with the notice requirements of this statute if:




(1) The buyer may at any time:




(A) Cancel the order;




(B) Refuse to accept delivery of the goods without incurring any obligation to pay for them; or




(C) Return the goods to the seller and receive a full refund for any amount the buyer has paid; and




(2) The buyer's right to cancel the order, refuse delivery, or return the goods without obligation or charge at any time is clearly and unmistakably set forth on the face or reverse side of the sales ticket.
47-18-704. Cancellation — Notice to buyer of rights.

(a) In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller must present to the buyer a receipt if it is a cash or credit card sale or, in the case of a credit sale, obtain the buyer's signature to a written agreement or offer to purchase which designates as the date of the transaction the date on which the buyer actually makes payment in whole or in part or signs. Contained on any such receipt, written agreement, or offer to purchase, there shall be a readily legible statement as described in subsection (b).




(b) The statement required in subsection (a) shall:




(1) Appear on the front side of the receipt or contract, or immediately above the buyer's signature, under the conspicuous caption: “BUYER'S RIGHT TO CANCEL”; and






Click to view form.




(c) In lieu of the form of notice required by subsection (b), a seller may comply with the requirements of the federal statutes, rules, or regulations governing the form of notice of the right of cancellation in door-to-door sales.




(d) Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of the buyer's intention to cancel.




(e) A home solicitation sale shall be deemed to be in compliance with the notice requirements of this statute if:




(1) The buyer may at any time:




(A) Cancel the order;




(B) Refuse to accept delivery of the goods without incurring any obligation to pay for them; or




(C) Return the goods to the seller and receive a full refund for any amount the buyer has paid; and




(2) The buyer's right to cancel the order, refuse delivery, or return the goods without obligation or charge at any time is clearly and unmistakably set forth on the face or reverse side of the sales ticket.

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47-18-705. Cancellation — Refund of payments — Lien pending refund.


(a) Except as provided in this section, within ten (10) days after a home solicitation sale has been cancelled or an offer to purchase revoked the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness.




(b) If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.




(c) Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to the buyer by the seller and has a lien on the goods in the buyer's possession or control for any recovery to which the buyer is entitled.


47-18-705. Cancellation — Refund of payments — Lien pending refund.


(a) Except as provided in this section, within ten (10) days after a home solicitation sale has been cancelled or an offer to purchase revoked the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness.




(b) If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.




(c) Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to the buyer by the seller and has a lien on the goods in the buyer's possession or control for any recovery to which the buyer is entitled.

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47-18-706. Cancellation — Return of goods — Compensation for services.



(a) Except as provided in § 47-18-705(c), within a reasonable time after a home solicitation sale has been cancelled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but the buyer is not obligated to tender at any place other than the buyer's residence. If the seller fails to demand possession of goods within twenty (20) days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them.




(b) The buyer has a duty to take reasonable care of the goods in the buyer's possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.




(c) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to compensation only to the extent of the fair market value for any such services performed prior to cancellation.


47-18-706. Cancellation — Return of goods — Compensation for services.



(a) Except as provided in § 47-18-705(c), within a reasonable time after a home solicitation sale has been cancelled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but the buyer is not obligated to tender at any place other than the buyer's residence. If the seller fails to demand possession of goods within twenty (20) days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them.




(b) The buyer has a duty to take reasonable care of the goods in the buyer's possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.




(c) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to compensation only to the extent of the fair market value for any such services performed prior to cancellation.

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47-18-707. Misrepresentation of seller's identity.


Notwithstanding any other provisions of law, if at the time of a home solicitation a seller or the seller's agent should fail to immediately identify such person as a seller or lessor, or should the seller or agent represent or imply that the seller's or agent's purpose at the time of solicitation is anything other than selling or leasing if that is not substantially true, the buyer shall have a total of thirty (30) days to cancel any home solicitation sales contract there entered into in the same manner and to the same extent as otherwise provided by this chapter; provided, that the goods or merchandise are made available for the seller's repossession and are tendered back to the seller in substantially as good condition as when received by the buyer.


47-18-707. Misrepresentation of seller's identity.


Notwithstanding any other provisions of law, if at the time of a home solicitation a seller or the seller's agent should fail to immediately identify such person as a seller or lessor, or should the seller or agent represent or imply that the seller's or agent's purpose at the time of solicitation is anything other than selling or leasing if that is not substantially true, the buyer shall have a total of thirty (30) days to cancel any home solicitation sales contract there entered into in the same manner and to the same extent as otherwise provided by this chapter; provided, that the goods or merchandise are made available for the seller's repossession and are tendered back to the seller in substantially as good condition as when received by the buyer.

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47-18-708. Non-waivable buyer's rights.


(a) No seller shall use a form or contract in providing goods or services that purports to waive a buyer's right to obtain:




(1) Punitive damages;




(2) Exemplary damages;




(3) Treble damages; or




(4) Attorney's fees.




(b) Any form or contract containing a prohibited provision as described above shall be deemed unconscionable and unenforceable as to such provision.


47-18-708. Non-waivable buyer's rights.


(a) No seller shall use a form or contract in providing goods or services that purports to waive a buyer's right to obtain:




(1) Punitive damages;




(2) Exemplary damages;




(3) Treble damages; or




(4) Attorney's fees.




(b) Any form or contract containing a prohibited provision as described above shall be deemed unconscionable and unenforceable as to such provision.

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47-18-801. Short title.


This part shall be known and may be cited as the “Tennessee Equal Consumer Credit Act of 1974.”


47-18-801. Short title.


This part shall be known and may be cited as the “Tennessee Equal Consumer Credit Act of 1974.”

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47-18-802. Unlawful discrimination.


(a) It is unlawful for any creditor or credit card issuer to discriminate between equally qualified individuals, whether male or female, or whether disabled, or to discriminate solely on account of marital status against any individual, with respect to the approval or denial of terms of credit in connection with any consumer credit sale, whether or not under an open end credit plan, any consumer loan, or any other extension of consumer credit, or with respect to the issuance, renewal, denial, or terms of any credit card.




(b) “Disabled,” as used in this section, means any physically disabled person who meets the requirements for disabled drivers established in § 55-21-102(1) and (2), and any other individual not otherwise covered under provisions of this section who is certified as disabled by a physician duly licensed to practice medicine in Tennessee.




(c) Any requirement of a public utility for the continuation of a utility service account in the name of the spouse in whose name the account was originally opened shall not be a violation of this section where both spouses reside in the same household and have the benefit of the utility service.


47-18-802. Unlawful discrimination.


(a) It is unlawful for any creditor or credit card issuer to discriminate between equally qualified individuals, whether male or female, or whether disabled, or to discriminate solely on account of marital status against any individual, with respect to the approval or denial of terms of credit in connection with any consumer credit sale, whether or not under an open end credit plan, any consumer loan, or any other extension of consumer credit, or with respect to the issuance, renewal, denial, or terms of any credit card.




(b) “Disabled,” as used in this section, means any physically disabled person who meets the requirements for disabled drivers established in § 55-21-102(1) and (2), and any other individual not otherwise covered under provisions of this section who is certified as disabled by a physician duly licensed to practice medicine in Tennessee.




(c) Any requirement of a public utility for the continuation of a utility service account in the name of the spouse in whose name the account was originally opened shall not be a violation of this section where both spouses reside in the same household and have the benefit of the utility service.

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47-18-803. Damages and attorney's fees.


Any creditor or credit card issuer who discriminates against any individual in a manner prohibited by § 47-18-802 is liable to such individual in damages in an amount equal to the sum of:




(1) In the case of an individual action, not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000);




(2) In the case of a class action, not more than ten thousand dollars ($10,000); and




(3) In the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney's fee as determined by the court.


47-18-803. Damages and attorney's fees.


Any creditor or credit card issuer who discriminates against any individual in a manner prohibited by § 47-18-802 is liable to such individual in damages in an amount equal to the sum of:




(1) In the case of an individual action, not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000);




(2) In the case of a class action, not more than ten thousand dollars ($10,000); and




(3) In the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney's fee as determined by the court.

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47-18-804. Jurisdiction and limitation of actions.



Any action brought under the provisions of this part may be brought in any court of competent jurisdiction in this state during a period of one (1) year commencing on the date of occurrence of the violation.
47-18-804. Jurisdiction and limitation of actions.



Any action brought under the provisions of this part may be brought in any court of competent jurisdiction in this state during a period of one (1) year commencing on the date of occurrence of the violation.

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47-18-805. Liability of spouse. Where the applicant for credit is married, the spouse of the applicant shall not be liable, other than to the extent common law liability is imposed for furnishing necessaries, for any debts, charges, or accounts where the spouse has not signed the application for credit.47-18-805. Liability of spouse. Where the applicant for credit is married, the spouse of the applicant shall not be liable, other than to the extent common law liability is imposed for furnishing necessaries, for any debts, charges, or accounts where the spouse has not signed the application for credit.

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47-18-901. Rights of recipient. Unless otherwise agreed, where unsolicited goods, wares, or merchandise of a value of less than fifty dollars ($50.00) is delivered by United States mail or United Parcel Service to a person who has not actually ordered or requested it, either orally or in writing, the person has a right to refuse to accept delivery of it, is under no duty to return it to the sender, is under no duty to preserve and safe-keep it, and may at the person's option deem it to be, for all purposes, an outright and unconditional gift and may use or dispose of it in any lawful manner without any obligation on the person's part to the sender.47-18-901. Rights of recipient. Unless otherwise agreed, where unsolicited goods, wares, or merchandise of a value of less than fifty dollars ($50.00) is delivered by United States mail or United Parcel Service to a person who has not actually ordered or requested it, either orally or in writing, the person has a right to refuse to accept delivery of it, is under no duty to return it to the sender, is under no duty to preserve and safe-keep it, and may at the person's option deem it to be, for all purposes, an outright and unconditional gift and may use or dispose of it in any lawful manner without any obligation on the person's part to the sender.

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47-18-902. Defense against action for value or return of goods.

In any action for the monetary value or for the return of such unsolicited goods, wares, or merchandise, it shall be a complete defense that it was delivered voluntarily by the plaintiff and was not actually ordered or requested by the defendant, either orally or in writing.

47-18-902. Defense against action for value or return of goods.

In any action for the monetary value or for the return of such unsolicited goods, wares, or merchandise, it shall be a complete defense that it was delivered voluntarily by the plaintiff and was not actually ordered or requested by the defendant, either orally or in writing.

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47-18-1001. Short title.
This part shall be known and may be cited as the “Tennessee Credit Services Businesses Act.”

47-18-1001. Short title.
This part shall be known and may be cited as the “Tennessee Credit Services Businesses Act.”

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47-18-1002. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Attorney general” means the office of the attorney general and reporter;




(2) “Consumer” means any individual who is solicited to purchase or who purchases the services of a credit services business;




(3) (A) “Consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is furnished or is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:




(i) Credit or insurance to be used primarily for personal, family, or household purposes;




(ii) Employment purposes; or




(iii) Other purposes which shall be limited to the following circumstances:




(a) In response to the order of a court having jurisdiction to issue the order;




(b) In accordance with the written instructions of the consumer to whom the report relates; or




(c) To a person which the agency has reason to believe:




(1) Intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to or review or collection of an account of, the consumer;




(2) Intends to use the information for employment purposes;




(3) Intends to use the information in connection with the underwriting of insurance involving the consumer;




(4) Intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or




(5) Otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer.




(B) “Consumer report” does not include:




(i) Any report containing information solely as to transactions or experiences between the consumer and the person making the report;




(ii) Any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or




(iii) Any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys the person's decision with respect to the request, if the third party advises the consumer of the name and address of the person to whom the request was made, and the person makes the disclosures to the consumer as to the exact nature of the request and the effect of the report on its decision to extend credit.




(4) (A) “Consumer reporting agency” means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and who uses any means or facility of commerce for the purpose of preparing or furnishing consumer reports.




(B) “Consumer reporting agency” does not include a private detective or investigator licensed under the provisions of title 62, chapter 26.




(5) (A) “Credit services business” means any person who, with respect to the extension of credit by others, sells, provides, or performs, or represents that such person can or will sell, provide, or perform any of the following services in return for the payment of money or other valuable consideration:




(i) Improving a consumer's credit record, history, or rating;




(ii) Obtaining an extension of credit for a consumer; or




(iii) Providing advice or assistance to a consumer with regard to either (i) or (ii) of this subdivision (5)(A).




(B) “Credit services business” does not include:




(i) The making, arranging, or negotiating directly for a loan or extension of credit under the laws of this state or the United States;




(ii) Any bank, trust company, savings bank, or savings institution whose deposits or accounts are eligible for insurance by the federal deposit insurance corporation or any credit union organized and chartered under the laws of this state or the United States;




(iii) Any nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3));




(iv) Any person licensed as a real estate broker by this state where the person is acting within the course and scope of that license;




(v) Any person licensed to practice law in this state where the person renders services within the course and scope of that person's practice as a lawyer;




(vi) Any broker-dealer registered with the securities and exchange commission or the commodity futures trading commission where the broker-dealer is acting within the course and scope of that regulation; or




(vii) Any consumer reporting agency as defined in the Federal Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681t).




(6) “Extension of credit” means the right to defer payment of debt or to incur debt and defer its payment, offered or granted primarily for personal, family, or household purposes;




(7) “File,” when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored;




(8) “Investigative consumer report” means a consumer report or portion of it in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom the consumer is acquainted, or who may have knowledge concerning any items of information. However, the information does not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency, when the information was obtained directly from a creditor of the consumer or from the consumer; and




(9) “Person” includes an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity.


47-18-1002. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Attorney general” means the office of the attorney general and reporter;




(2) “Consumer” means any individual who is solicited to purchase or who purchases the services of a credit services business;




(3) (A) “Consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is furnished or is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:




(i) Credit or insurance to be used primarily for personal, family, or household purposes;




(ii) Employment purposes; or




(iii) Other purposes which shall be limited to the following circumstances:




(a) In response to the order of a court having jurisdiction to issue the order;




(b) In accordance with the written instructions of the consumer to whom the report relates; or




(c) To a person which the agency has reason to believe:




(1) Intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to or review or collection of an account of, the consumer;




(2) Intends to use the information for employment purposes;




(3) Intends to use the information in connection with the underwriting of insurance involving the consumer;




(4) Intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or




(5) Otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer.




(B) “Consumer report” does not include:




(i) Any report containing information solely as to transactions or experiences between the consumer and the person making the report;




(ii) Any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or




(iii) Any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys the person's decision with respect to the request, if the third party advises the consumer of the name and address of the person to whom the request was made, and the person makes the disclosures to the consumer as to the exact nature of the request and the effect of the report on its decision to extend credit.




(4) (A) “Consumer reporting agency” means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and who uses any means or facility of commerce for the purpose of preparing or furnishing consumer reports.




(B) “Consumer reporting agency” does not include a private detective or investigator licensed under the provisions of title 62, chapter 26.




(5) (A) “Credit services business” means any person who, with respect to the extension of credit by others, sells, provides, or performs, or represents that such person can or will sell, provide, or perform any of the following services in return for the payment of money or other valuable consideration:




(i) Improving a consumer's credit record, history, or rating;




(ii) Obtaining an extension of credit for a consumer; or




(iii) Providing advice or assistance to a consumer with regard to either (i) or (ii) of this subdivision (5)(A).




(B) “Credit services business” does not include:




(i) The making, arranging, or negotiating directly for a loan or extension of credit under the laws of this state or the United States;




(ii) Any bank, trust company, savings bank, or savings institution whose deposits or accounts are eligible for insurance by the federal deposit insurance corporation or any credit union organized and chartered under the laws of this state or the United States;




(iii) Any nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3));




(iv) Any person licensed as a real estate broker by this state where the person is acting within the course and scope of that license;




(v) Any person licensed to practice law in this state where the person renders services within the course and scope of that person's practice as a lawyer;




(vi) Any broker-dealer registered with the securities and exchange commission or the commodity futures trading commission where the broker-dealer is acting within the course and scope of that regulation; or




(vii) Any consumer reporting agency as defined in the Federal Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681t).




(6) “Extension of credit” means the right to defer payment of debt or to incur debt and defer its payment, offered or granted primarily for personal, family, or household purposes;




(7) “File,” when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored;




(8) “Investigative consumer report” means a consumer report or portion of it in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom the consumer is acquainted, or who may have knowledge concerning any items of information. However, the information does not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency, when the information was obtained directly from a creditor of the consumer or from the consumer; and




(9) “Person” includes an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity.

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47-18-1003. Prohibited practices.



A credit services business, and its salespersons, agents and representatives, and independent contractors who sell or attempt to sell the services of a credit services business, shall not do any of the following:




(1) Charge or receive any money or other valuable consideration prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer, including all representations made orally or in writing. “Full and complete performance” means fulfillment of all items listed in the contract and other solicitations or communications to consumers;




(2) Charge or receive any money or other valuable consideration solely for referral of the consumer to a retail seller or to any other credit grantor who will or may extend credit to the consumer, if the credit that is or will be extended to the consumer is upon substantially the same terms as those available to the general public;




(3) Make, or counsel or advise any consumer to make, any statement that is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer reporting agency or to any person who has extended credit to a consumer or to whom a consumer is applying for an extension of credit, with respect to a consumer's creditworthiness, credit standing, or credit capacity;




(4) Make or use any untrue or misleading representations in the offer or sale of the services of a credit services business or engage, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services business; or




(5) Create, or assist or advise the consumer to create a new credit record by using a different name, address, social security number, or employee identification number;




(6) Provide, in any manner, the services of a credit services business within this state, without registering a bond consistent with the provisions of § 47-18-1011;




(7) Remove, assist or advise the consumer to remove or otherwise alter adverse information from the consumer's credit record which is accurate or not obsolete;




(8) Create, assist or advise the consumer to request that positive information be inserted or included on the consumer's credit record which is false, inaccurate or obsolete;




(9) Use a program or plan which uses or employs installment payments featuring payments charged directly to a credit card prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer; or




(10) Engaging in any violation of the federal Consumer Credit Protection Act.


47-18-1003. Prohibited practices.



A credit services business, and its salespersons, agents and representatives, and independent contractors who sell or attempt to sell the services of a credit services business, shall not do any of the following:




(1) Charge or receive any money or other valuable consideration prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer, including all representations made orally or in writing. “Full and complete performance” means fulfillment of all items listed in the contract and other solicitations or communications to consumers;




(2) Charge or receive any money or other valuable consideration solely for referral of the consumer to a retail seller or to any other credit grantor who will or may extend credit to the consumer, if the credit that is or will be extended to the consumer is upon substantially the same terms as those available to the general public;




(3) Make, or counsel or advise any consumer to make, any statement that is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer reporting agency or to any person who has extended credit to a consumer or to whom a consumer is applying for an extension of credit, with respect to a consumer's creditworthiness, credit standing, or credit capacity;




(4) Make or use any untrue or misleading representations in the offer or sale of the services of a credit services business or engage, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services business; or




(5) Create, or assist or advise the consumer to create a new credit record by using a different name, address, social security number, or employee identification number;




(6) Provide, in any manner, the services of a credit services business within this state, without registering a bond consistent with the provisions of § 47-18-1011;




(7) Remove, assist or advise the consumer to remove or otherwise alter adverse information from the consumer's credit record which is accurate or not obsolete;




(8) Create, assist or advise the consumer to request that positive information be inserted or included on the consumer's credit record which is false, inaccurate or obsolete;




(9) Use a program or plan which uses or employs installment payments featuring payments charged directly to a credit card prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer; or




(10) Engaging in any violation of the federal Consumer Credit Protection Act.

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47-18-1004. Information statement required — Record on file.

(a) Before the execution of a contract or agreement between a consumer and a credit services business or the receipt by the credit services business of any money or other valuable consideration, whichever occurs first, the credit services business shall provide the consumer with an information statement in writing containing all of the information required under § 47-18-1005.




(b) The credit services business shall maintain on file or microfilm for a period of two (2) years from the date of the consumer's acknowledgement an exact copy of the information statement personally signed by the consumer acknowledging receipt of a copy of the information statement.
47-18-1004. Information statement required — Record on file.

(a) Before the execution of a contract or agreement between a consumer and a credit services business or the receipt by the credit services business of any money or other valuable consideration, whichever occurs first, the credit services business shall provide the consumer with an information statement in writing containing all of the information required under § 47-18-1005.




(b) The credit services business shall maintain on file or microfilm for a period of two (2) years from the date of the consumer's acknowledgement an exact copy of the information statement personally signed by the consumer acknowledging receipt of a copy of the information statement.

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47-18-1005. Contents of information statement.


The information statement required under § 47-18-1004 shall include all of the following:




(1) (A) A complete and accurate statement of the consumer's right to review any file on the consumer maintained by any consumer reporting agency, and the right of the consumer to receive a copy of a consumer report containing all information in that file as provided under the Federal Fair Credit Reporting Act (15 U.S.C. § 1681g);




(B) A statement that a copy of the consumer report containing all information in the consumer's file will be furnished free of charge by the consumer reporting agency, if requested by the consumer within thirty (30) days from receipt of the consumer's request; and




(C) A statement that a nominal charge, not to exceed eight dollars ($8.00), may be imposed on the consumer by the consumer reporting agency for a copy of the consumer report containing all information in the consumer's file, if the consumer has not been denied credit within sixty (60) days from receipt of the consumer's request.




(2) A complete and accurate statement of the consumer's right to dispute the completeness or accuracy of any item contained in any file on the consumer that is maintained by any consumer reporting agency, as provided under the Federal Fair Credit Reporting Act (15 U.S.C. § 1681(i));




(3) A complete and detailed description of the services to be performed by the credit services business for or on behalf of the consumer, and the total amount the consumer will have to pay, or become obligated to pay, for the services;




(4) (A) Name and address of the surety company which issued the bond in accordance with § 47-18-1011;




(B) A statement explaining the consumer's right to proceed against the bond; and




(5) A complete and accurate statement of the availability of non-profit credit counseling.
47-18-1005. Contents of information statement.


The information statement required under § 47-18-1004 shall include all of the following:




(1) (A) A complete and accurate statement of the consumer's right to review any file on the consumer maintained by any consumer reporting agency, and the right of the consumer to receive a copy of a consumer report containing all information in that file as provided under the Federal Fair Credit Reporting Act (15 U.S.C. § 1681g);




(B) A statement that a copy of the consumer report containing all information in the consumer's file will be furnished free of charge by the consumer reporting agency, if requested by the consumer within thirty (30) days from receipt of the consumer's request; and




(C) A statement that a nominal charge, not to exceed eight dollars ($8.00), may be imposed on the consumer by the consumer reporting agency for a copy of the consumer report containing all information in the consumer's file, if the consumer has not been denied credit within sixty (60) days from receipt of the consumer's request.




(2) A complete and accurate statement of the consumer's right to dispute the completeness or accuracy of any item contained in any file on the consumer that is maintained by any consumer reporting agency, as provided under the Federal Fair Credit Reporting Act (15 U.S.C. § 1681(i));




(3) A complete and detailed description of the services to be performed by the credit services business for or on behalf of the consumer, and the total amount the consumer will have to pay, or become obligated to pay, for the services;




(4) (A) Name and address of the surety company which issued the bond in accordance with § 47-18-1011;




(B) A statement explaining the consumer's right to proceed against the bond; and




(5) A complete and accurate statement of the availability of non-profit credit counseling.

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47-18-1006. Contract — Cancellation notice.


(a) Every contract between a consumer and a credit services business for the purchase of the services of the credit services business shall be in writing, dated, signed by the consumer, and shall include all of the following:




(1) A conspicuous statement in size equal to at least ten (10) point bold type, in immediate proximity to the space reserved for the signature of the consumer, as follows:





“You, the buyer, may cancel this contract at any time prior to twelve o'clock midnight (12:00) of the fifth business day after the date of the transaction. See the attached notice of cancellation form for an explanation of this right.”;




(2) The terms and conditions of payment, including the total of all payments to be made by the consumer, whether to the credit services business or to some other person;




(3) A complete and detailed description of the services to be performed and the results to be achieved by the credit services business for or on behalf of the consumer, including all guarantees and all promises of full or partial refunds and a list of the adverse information appearing on the consumer's credit report that the credit services business expects to have modified; and




(4) The principal business address of the credit services business and the name and address of its agent in this state authorized to receive service of process.




(b) (1) The contract shall be accompanied by a completed form in duplicate, captioned “NOTICE OF CANCELLATION,” which shall be attached to the contract and easily detachable, and which shall contain in at least ten (10) point bold type the following statement:





Click to view form.




(2) A copy of the fully completed contract and all other documents the credit services business requires the consumer to sign shall be given by the credit services business to the consumer at the time they are signed.


47-18-1006. Contract — Cancellation notice.


(a) Every contract between a consumer and a credit services business for the purchase of the services of the credit services business shall be in writing, dated, signed by the consumer, and shall include all of the following:




(1) A conspicuous statement in size equal to at least ten (10) point bold type, in immediate proximity to the space reserved for the signature of the consumer, as follows:





“You, the buyer, may cancel this contract at any time prior to twelve o'clock midnight (12:00) of the fifth business day after the date of the transaction. See the attached notice of cancellation form for an explanation of this right.”;




(2) The terms and conditions of payment, including the total of all payments to be made by the consumer, whether to the credit services business or to some other person;




(3) A complete and detailed description of the services to be performed and the results to be achieved by the credit services business for or on behalf of the consumer, including all guarantees and all promises of full or partial refunds and a list of the adverse information appearing on the consumer's credit report that the credit services business expects to have modified; and




(4) The principal business address of the credit services business and the name and address of its agent in this state authorized to receive service of process.




(b) (1) The contract shall be accompanied by a completed form in duplicate, captioned “NOTICE OF CANCELLATION,” which shall be attached to the contract and easily detachable, and which shall contain in at least ten (10) point bold type the following statement:





Click to view form.




(2) A copy of the fully completed contract and all other documents the credit services business requires the consumer to sign shall be given by the credit services business to the consumer at the time they are signed.

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47-18-1007. Violations — Proof of exemption. (a) Any breach by a credit services business of a contract under this part, or of any obligation arising under it, constitutes a violation of this part.




(b) Any contract for services from a credit services business that does not comply with the applicable provisions of this part shall be void and unenforceable as contrary to the public policy of this state.




(c) Any waiver by a consumer of any of the provisions of this part shall be deemed void and unenforceable by a credit services business as contrary to public policy of this state, and any attempt by a credit services business to have a consumer waive rights given by this part constitutes a violation of this part.




(d) In any proceeding involving this part, the burden of proving an exemption or an exception from the definition is upon the person claiming it.
47-18-1007. Violations — Proof of exemption. (a) Any breach by a credit services business of a contract under this part, or of any obligation arising under it, constitutes a violation of this part.




(b) Any contract for services from a credit services business that does not comply with the applicable provisions of this part shall be void and unenforceable as contrary to the public policy of this state.




(c) Any waiver by a consumer of any of the provisions of this part shall be deemed void and unenforceable by a credit services business as contrary to public policy of this state, and any attempt by a credit services business to have a consumer waive rights given by this part constitutes a violation of this part.




(d) In any proceeding involving this part, the burden of proving an exemption or an exception from the definition is upon the person claiming it.

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47-18-1008. Damages, private actions.

(a) In any private action, any credit services business, which willfully fails to comply with any requirement imposed under this part with respect to any consumer, is liable to the consumer in an amount equal to the sum of:




(1) Any actual damages sustained by the consumer as a result of the failure, or any amount paid by the person to the credit services business whichever is greater. This remedy is supplemental to any other remedy contained within this chapter.




(2) Such amount of punitive damages as the court may allow.




(b) In any private action, any credit services business which is negligent in failing to comply with any requirement imposed under this part with respect to any consumer is liable to that consumer in an amount equal to the sum of any actual damages sustained by the consumer as a result of the failure.
47-18-1008. Damages, private actions.

(a) In any private action, any credit services business, which willfully fails to comply with any requirement imposed under this part with respect to any consumer, is liable to the consumer in an amount equal to the sum of:




(1) Any actual damages sustained by the consumer as a result of the failure, or any amount paid by the person to the credit services business whichever is greater. This remedy is supplemental to any other remedy contained within this chapter.




(2) Such amount of punitive damages as the court may allow.




(b) In any private action, any credit services business which is negligent in failing to comply with any requirement imposed under this part with respect to any consumer is liable to that consumer in an amount equal to the sum of any actual damages sustained by the consumer as a result of the failure.

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47-18-1009. Limitation of actions.
A private action to enforce any liability created under this part may be brought within two (2) years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this part to be disclosed to a consumer, and the information so misrepresented is material to the establishment of the defendant's liability to that consumer under this part, the action may be brought at any time within two (2) years after discovery by the consumer of the misrepresentation. No action brought by the attorney general and reporter shall be subject to the limitation of actions contained herein.

47-18-1009. Limitation of actions.
A private action to enforce any liability created under this part may be brought within two (2) years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this part to be disclosed to a consumer, and the information so misrepresented is material to the establishment of the defendant's liability to that consumer under this part, the action may be brought at any time within two (2) years after discovery by the consumer of the misrepresentation. No action brought by the attorney general and reporter shall be subject to the limitation of actions contained herein.

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47-18-1010. Violation of Consumer Protection Act — Institution of proceedings.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled at part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.




(b) If the attorney general has reason to believe that any credit services business, or any salesperson, agent, representative, or independent contractor acting on behalf of a credit services business, has violated any provision of this part, the attorney general may institute a proceeding under this chapter.
47-18-1010. Violation of Consumer Protection Act — Institution of proceedings.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled at part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act.




(b) If the attorney general has reason to believe that any credit services business, or any salesperson, agent, representative, or independent contractor acting on behalf of a credit services business, has violated any provision of this part, the attorney general may institute a proceeding under this chapter.

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47-18-1011. Bond.

(1) In order to provide a degree of protection to customers of credit services businesses, each credit services business shall post a bond of one hundred thousand dollars ($100,000) with the department of commerce and insurance. Such bond may be made through deposit of cash, a certificate of deposit, securities, or with a bond issued by a corporate surety acceptable to the commissioner.




(2) The bond must be maintained for two (2) years following the date on which the credit services business ceases to conduct business in this state.




(3) In an action brought by the attorney general and reporter pursuant to § 47-18-1010, the attorney general and reporter shall have the right to request that the total amount of the bond posted by the credit services business be awarded to the state for consumer restitution or civil penalties.




(4) Notwithstanding the provisions of subdivision (1), any credit services business that was registered with the division of consumer affairs in the department of commerce and insurance on May 1, 1998, in this state shall only be required to post a bond in the amount of ten thousand dollars ($10,000) with the department. Such bond may be made through deposit of cash, a certificate of deposit, securities, or with a bond issued by a corporate surety acceptable to the commissioner.
47-18-1011. Bond.

(1) In order to provide a degree of protection to customers of credit services businesses, each credit services business shall post a bond of one hundred thousand dollars ($100,000) with the department of commerce and insurance. Such bond may be made through deposit of cash, a certificate of deposit, securities, or with a bond issued by a corporate surety acceptable to the commissioner.




(2) The bond must be maintained for two (2) years following the date on which the credit services business ceases to conduct business in this state.




(3) In an action brought by the attorney general and reporter pursuant to § 47-18-1010, the attorney general and reporter shall have the right to request that the total amount of the bond posted by the credit services business be awarded to the state for consumer restitution or civil penalties.




(4) Notwithstanding the provisions of subdivision (1), any credit services business that was registered with the division of consumer affairs in the department of commerce and insurance on May 1, 1998, in this state shall only be required to post a bond in the amount of ten thousand dollars ($10,000) with the department. Such bond may be made through deposit of cash, a certificate of deposit, securities, or with a bond issued by a corporate surety acceptable to the commissioner.

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47-18-1201. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Contaminant” or “contamination” means any health-related physical, chemical, biological, or radiological substance or matter in water;




(2) “Person” means any individual, partnership, firm, corporation or association, or any employee or agent thereof; and




(3) “Water treatment device” means any product that:




(A) Is designed to alter the chemical or physical properties or characteristics of drinking water or plumbing, or which the seller, lessor or renter claims can alter the chemical or physical properties or characteristics of drinking water or plumbing; and




(B) Is used or sold, leased or rented for use on residential property.


47-18-1201. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Contaminant” or “contamination” means any health-related physical, chemical, biological, or radiological substance or matter in water;




(2) “Person” means any individual, partnership, firm, corporation or association, or any employee or agent thereof; and




(3) “Water treatment device” means any product that:




(A) Is designed to alter the chemical or physical properties or characteristics of drinking water or plumbing, or which the seller, lessor or renter claims can alter the chemical or physical properties or characteristics of drinking water or plumbing; and




(B) Is used or sold, leased or rented for use on residential property.

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47-18-1202. Prohibited acts.


It is unlawful for any person to do any of the following in connection with the sale, lease, rental, offer to sell, lease, rent or other disposition of water treatment devices:




(1) Make any untrue or misleading oral or written statements regarding the presence of one (1) or more contaminants in drinking water, or the performance of water treatment devices, including, but not limited to, the following oral or written statements:




(A) Any contaminant exists or may exist in the drinking water of any person to whom the statement is directed unless the statement is reasonably based on factual data;




(B) A relationship between water quality and acute or chronic illness exists as a scientific certainty unless that statement is reasonably based on factual data;




(C) The public water system, utility, or treatment plant that supplies drinking water to the person to whom the statement is directed does not test, treat or remove particular contaminants actually present in the water unless the statement is reasonably based on factual data;




(D) The drinking water supplied by the public water system, utility or treatment plant to the person to whom the statement is directed is or may be unsafe to drink unless the statement is reasonably based on factual data;




(E) A water treatment device removes particular contaminants from drinking water unless the statement is reasonably based on factual data in existence at the time the statement is made;




(F) Use news events, reports or descriptions of water problems or health hazards associated with water systems or suppliers in a false or misleading manner;




(G) A water treatment device would provide a health benefit or diminish a health risk unless the statement is reasonably based on factual data; and




(H) A water treatment device will solve or contribute to the solution of any problem unless the statement is reasonably based on factual data;




(2) Make any statement about the ability of a water treatment device to remove particular contaminants in such a manner as to imply falsely that any of those contaminants are present in excess of permitted levels in the drinking water of the person to whom the statement is made;




(3) Perform tests or demonstrations of the individual consumer's drinking water without also clearly informing the consumer of the results, scope and limits of the test or demonstration;




(4) Use pictures, exhibits, graphs, charts, other graphic portrayals, endorsements or testimonials in a false or misleading manner;




(5) Fail to disclose clearly and conspicuously, in writing, to the purchaser, lessee or renter, the importance of maintaining the water treatment device according to the manufacturer's instructions, including, if applicable, the replacement of screens and filters. In addition, a separate printed gummed label, tag or other convenient form of reminder of the importance of proper maintenance shall be provided to the purchaser, lessee or renter;




(6) Represent expressly or implicitly that the person is authorized by, or associated in any manner with, a governmental agency without the express written authorization of that agency; or




(7) Represent an expected life of a water treatment device or component thereof unless it is reasonably based on factual data.


47-18-1202. Prohibited acts.


It is unlawful for any person to do any of the following in connection with the sale, lease, rental, offer to sell, lease, rent or other disposition of water treatment devices:




(1) Make any untrue or misleading oral or written statements regarding the presence of one (1) or more contaminants in drinking water, or the performance of water treatment devices, including, but not limited to, the following oral or written statements:




(A) Any contaminant exists or may exist in the drinking water of any person to whom the statement is directed unless the statement is reasonably based on factual data;




(B) A relationship between water quality and acute or chronic illness exists as a scientific certainty unless that statement is reasonably based on factual data;




(C) The public water system, utility, or treatment plant that supplies drinking water to the person to whom the statement is directed does not test, treat or remove particular contaminants actually present in the water unless the statement is reasonably based on factual data;




(D) The drinking water supplied by the public water system, utility or treatment plant to the person to whom the statement is directed is or may be unsafe to drink unless the statement is reasonably based on factual data;




(E) A water treatment device removes particular contaminants from drinking water unless the statement is reasonably based on factual data in existence at the time the statement is made;




(F) Use news events, reports or descriptions of water problems or health hazards associated with water systems or suppliers in a false or misleading manner;




(G) A water treatment device would provide a health benefit or diminish a health risk unless the statement is reasonably based on factual data; and




(H) A water treatment device will solve or contribute to the solution of any problem unless the statement is reasonably based on factual data;




(2) Make any statement about the ability of a water treatment device to remove particular contaminants in such a manner as to imply falsely that any of those contaminants are present in excess of permitted levels in the drinking water of the person to whom the statement is made;




(3) Perform tests or demonstrations of the individual consumer's drinking water without also clearly informing the consumer of the results, scope and limits of the test or demonstration;




(4) Use pictures, exhibits, graphs, charts, other graphic portrayals, endorsements or testimonials in a false or misleading manner;




(5) Fail to disclose clearly and conspicuously, in writing, to the purchaser, lessee or renter, the importance of maintaining the water treatment device according to the manufacturer's instructions, including, if applicable, the replacement of screens and filters. In addition, a separate printed gummed label, tag or other convenient form of reminder of the importance of proper maintenance shall be provided to the purchaser, lessee or renter;




(6) Represent expressly or implicitly that the person is authorized by, or associated in any manner with, a governmental agency without the express written authorization of that agency; or




(7) Represent an expected life of a water treatment device or component thereof unless it is reasonably based on factual data.

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47-18-1203. Prohibited practices under Consumer Protection Act.
Any violation of this part is a prohibited practice under § 47-18-104.

47-18-1203. Prohibited practices under Consumer Protection Act.
Any violation of this part is a prohibited practice under § 47-18-104.

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47-18-1301. Short title.
This part shall be known and may be cited as the “Kerosene and Motor Fuels Quality Inspection Act of 1989.”

47-18-1301. Short title.
This part shall be known and may be cited as the “Kerosene and Motor Fuels Quality Inspection Act of 1989.”

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47-18-1302. Legislative intent.

It is the intent of the general assembly, through this enactment, to promote and protect the public health, safety and welfare by ensuring that kerosene and motor fuels:




(1) Are adequately labeled and posted; and




(2) Meet or exceed certain minimum standards of quality.




47-18-1302. Legislative intent.

It is the intent of the general assembly, through this enactment, to promote and protect the public health, safety and welfare by ensuring that kerosene and motor fuels:




(1) Are adequately labeled and posted; and




(2) Meet or exceed certain minimum standards of quality.

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47-18-1303. Definitions.
As used in this part, unless the context otherwise requires:




(1) “American Society for Testing and Materials (ASTM)” means the national scientific and technical organization formed for the development of standards on characteristics and performance of materials, products, systems, and services, and the promotion of related knowledge;




(2) “Commissioner” means the Tennessee commissioner of agriculture or a departmental employee designated by the commissioner to act as the commissioner's representative for purposes of this part;




(3) “Convey for consumption in Tennessee” means to commercially refine, blend, store, transport, distribute, retail, or otherwise participate in the preparation or transmittal of kerosene or motor fuels for use by consumers within this state;




(4) “Department” means the Tennessee department of agriculture;




(5) “Diesel fuel” means refined oils commonly used in internal combustion engines where ignition occurs by pressure and not by electric spark, the classification of which shall be defined by the American Society for Testing and Materials;




(6) “Field inspector” means an employee of the department, or an employee of a person contracting with the department, whose duties and responsibilities include the collection of kerosene or motor fuel samples for testing and other activities related to enforcement of this part;




(7) “Gasoline” means a volatile mixture of liquid hydrocarbons generally containing small amounts of additives suitable for use as a fuel in spark-ignition internal combustion engines;




(8) “Gasoline-alcohol blend” means a blend consisting primarily of gasoline and containing by volume at least one percent (1%) ethanol (ethyl alcohol) or methanol (methyl alcohol), or both;




(9) “Kerosene” means a refined oil intended for heating or illuminating use, the classification of which shall be defined by the American Society for Testing and Materials;




(10) “Motor fuel” means any liquid product used for the generation of power in an internal combustion or turbine engine and includes, but is not necessarily limited to, gasoline, diesel fuel and gasoline-alcohol blends; and




(11) “Person” means an individual, partnership, corporation, company, firm, association or other business entity.



47-18-1303. Definitions.
As used in this part, unless the context otherwise requires:




(1) “American Society for Testing and Materials (ASTM)” means the national scientific and technical organization formed for the development of standards on characteristics and performance of materials, products, systems, and services, and the promotion of related knowledge;




(2) “Commissioner” means the Tennessee commissioner of agriculture or a departmental employee designated by the commissioner to act as the commissioner's representative for purposes of this part;




(3) “Convey for consumption in Tennessee” means to commercially refine, blend, store, transport, distribute, retail, or otherwise participate in the preparation or transmittal of kerosene or motor fuels for use by consumers within this state;




(4) “Department” means the Tennessee department of agriculture;




(5) “Diesel fuel” means refined oils commonly used in internal combustion engines where ignition occurs by pressure and not by electric spark, the classification of which shall be defined by the American Society for Testing and Materials;




(6) “Field inspector” means an employee of the department, or an employee of a person contracting with the department, whose duties and responsibilities include the collection of kerosene or motor fuel samples for testing and other activities related to enforcement of this part;




(7) “Gasoline” means a volatile mixture of liquid hydrocarbons generally containing small amounts of additives suitable for use as a fuel in spark-ignition internal combustion engines;




(8) “Gasoline-alcohol blend” means a blend consisting primarily of gasoline and containing by volume at least one percent (1%) ethanol (ethyl alcohol) or methanol (methyl alcohol), or both;




(9) “Kerosene” means a refined oil intended for heating or illuminating use, the classification of which shall be defined by the American Society for Testing and Materials;




(10) “Motor fuel” means any liquid product used for the generation of power in an internal combustion or turbine engine and includes, but is not necessarily limited to, gasoline, diesel fuel and gasoline-alcohol blends; and




(11) “Person” means an individual, partnership, corporation, company, firm, association or other business entity.

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47-18-1304. Labeling and posting — Standards — Waiver of standards or alternative standards.


(a) Kerosene and motor fuels conveyed for consumption in Tennessee shall be labeled and posted in accordance with applicable federal and state law.




(b) Kerosene and motor fuels conveyed for consumption in Tennessee shall meet the standards established for such products in the annual book of ASTM standards, and supplements thereto; provided, that by duly promulgated rule:




(1) The department may adopt alternative volatility standards for gasoline-alcohol blends; provided, that the alternative standards are consistent with the protection and promotion of public health, safety and welfare; and




(2) The department shall adopt as a substitute standard any provision of federal law which imposes requirements in conflict with an ASTM standard.




(c) The commissioner is authorized to waive ASTM standards or to establish alternative standards for a specified period of time when such action is deemed necessary to protect or promote public health, safety and general welfare, and the interests of citizens of Tennessee; provided, that if such waiver or alternative standards remain in effect for more than one (1) year, the commissioner shall promulgate emergency or permanent rules, as the commissioner deems appropriate, pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
47-18-1304. Labeling and posting — Standards — Waiver of standards or alternative standards.


(a) Kerosene and motor fuels conveyed for consumption in Tennessee shall be labeled and posted in accordance with applicable federal and state law.




(b) Kerosene and motor fuels conveyed for consumption in Tennessee shall meet the standards established for such products in the annual book of ASTM standards, and supplements thereto; provided, that by duly promulgated rule:




(1) The department may adopt alternative volatility standards for gasoline-alcohol blends; provided, that the alternative standards are consistent with the protection and promotion of public health, safety and welfare; and




(2) The department shall adopt as a substitute standard any provision of federal law which imposes requirements in conflict with an ASTM standard.




(c) The commissioner is authorized to waive ASTM standards or to establish alternative standards for a specified period of time when such action is deemed necessary to protect or promote public health, safety and general welfare, and the interests of citizens of Tennessee; provided, that if such waiver or alternative standards remain in effect for more than one (1) year, the commissioner shall promulgate emergency or permanent rules, as the commissioner deems appropriate, pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

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47-18-1305. Inspections and testing.


(a) (1) The commissioner shall implement and administer an inspection and testing program to enforce compliance with § 47-18-1304. The commissioner is authorized to contract for the performance of all, or any portion of, required on-site inspections, sample collection, sample transportation and sample testing.




(2) The test results of kerosene and motor fuel analyses shall constitute open records and shall be available for public inspection at the commissioner's office during regular business hours.




(3) At the request of any person, the department may test samples collected and delivered by the person to the department. No such test shall interfere with the testing of samples collected pursuant to subdivision (a)(1). Such tests shall be performed only after payment of a fee determined by the commissioner to be sufficient to reimburse the department for its cost in performing such tests.




(b) (1) The department shall, at least once each year, inspect and collect at least one (1) sample for testing from each location from which a person conveys kerosene or motor fuel for consumption in Tennessee. Subject to availability of resources, the department may inspect any such location more frequently than once each year and may test a greater number of samples. If transactions occurring at a particular location total an average of less than three hundred (300) gallons per month, then annual inspection and testing of the location shall not be required.




(2) When, in the discretion of the commissioner, promotion or protection of the public health, safety, or welfare so necessitates, inspection and testing in addition to the requirements of subdivision (b)(1) shall be performed with regard to:




(A) A person or business location which has been previously found by the department to be in violation of § 47-18-1304; and




(B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(2)(A).




(3) Upon receiving a consumer complaint alleging a violation of § 47-18-1304, which, in the discretion of the commissioner, indicates that the public health, safety or welfare may be threatened, inspection and testing in addition to that required by subdivision (b)(1) shall be performed with regard to:




(A) The person or business location which is the subject of the complaint; and




(B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(3)(A).




(4) The commissioner shall maintain a toll-free telephone line for the purpose of encouraging and receiving consumer complaints pertaining to kerosene and motor fuel quality. The commissioner shall undertake such actions and activities as may be necessary to inform and periodically remind consumers of the existence and purpose of the toll-free telephone number. A log of consumer complaints pertaining to kerosene and motor fuel quality shall be maintained at the commissioner's office. The log shall constitute an open record and shall be available for public inspection during regular business hours.


47-18-1305. Inspections and testing.


(a) (1) The commissioner shall implement and administer an inspection and testing program to enforce compliance with § 47-18-1304. The commissioner is authorized to contract for the performance of all, or any portion of, required on-site inspections, sample collection, sample transportation and sample testing.




(2) The test results of kerosene and motor fuel analyses shall constitute open records and shall be available for public inspection at the commissioner's office during regular business hours.




(3) At the request of any person, the department may test samples collected and delivered by the person to the department. No such test shall interfere with the testing of samples collected pursuant to subdivision (a)(1). Such tests shall be performed only after payment of a fee determined by the commissioner to be sufficient to reimburse the department for its cost in performing such tests.




(b) (1) The department shall, at least once each year, inspect and collect at least one (1) sample for testing from each location from which a person conveys kerosene or motor fuel for consumption in Tennessee. Subject to availability of resources, the department may inspect any such location more frequently than once each year and may test a greater number of samples. If transactions occurring at a particular location total an average of less than three hundred (300) gallons per month, then annual inspection and testing of the location shall not be required.




(2) When, in the discretion of the commissioner, promotion or protection of the public health, safety, or welfare so necessitates, inspection and testing in addition to the requirements of subdivision (b)(1) shall be performed with regard to:




(A) A person or business location which has been previously found by the department to be in violation of § 47-18-1304; and




(B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(2)(A).




(3) Upon receiving a consumer complaint alleging a violation of § 47-18-1304, which, in the discretion of the commissioner, indicates that the public health, safety or welfare may be threatened, inspection and testing in addition to that required by subdivision (b)(1) shall be performed with regard to:




(A) The person or business location which is the subject of the complaint; and




(B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(3)(A).




(4) The commissioner shall maintain a toll-free telephone line for the purpose of encouraging and receiving consumer complaints pertaining to kerosene and motor fuel quality. The commissioner shall undertake such actions and activities as may be necessary to inform and periodically remind consumers of the existence and purpose of the toll-free telephone number. A log of consumer complaints pertaining to kerosene and motor fuel quality shall be maintained at the commissioner's office. The log shall constitute an open record and shall be available for public inspection during regular business hours.

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47-18-1306. Samples for testing — Testing of ethanol or methanol.


(a) Upon request of a field inspector, a person who conveys kerosene or motor fuel for consumption in Tennessee shall immediately provide the department, free of cost, samples of kerosene or motor fuel. Samples shall be pumped, pulled, drawn, or otherwise procured in the presence of the field inspector.




(b) The department shall test the samples for compliance with the requirements of § 47-18-1304.




(c) The department may test ethanol or methanol, intended for blending with gasoline, separate from and prior to the time at which such ethanol or methanol is blended with gasoline.
47-18-1306. Samples for testing — Testing of ethanol or methanol.


(a) Upon request of a field inspector, a person who conveys kerosene or motor fuel for consumption in Tennessee shall immediately provide the department, free of cost, samples of kerosene or motor fuel. Samples shall be pumped, pulled, drawn, or otherwise procured in the presence of the field inspector.




(b) The department shall test the samples for compliance with the requirements of § 47-18-1304.




(c) The department may test ethanol or methanol, intended for blending with gasoline, separate from and prior to the time at which such ethanol or methanol is blended with gasoline.

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47-18-1307. Sanctions for violations — Penalties.


(a) (1) If a person or the person's agent or employee conveys, or offers to convey, kerosene or motor fuel in violation of § 47-18-1304, then the person shall be subject to an administrative fine, to issuance of a stop-sale order, or to both, in the discretion of the commissioner. A stop-sale order shall be issued by the commissioner either as a Class One stop-sale order or as a Class Two stop-sale order. A Class One stop-sale order shall be issued for a specified period of time. A Class Two stop-sale order shall be issued until conditions identified within the order have been remedied.




(2) (A) A Class One stop-sale order may not be issued by the commissioner for a specified period greater than twenty-four (24) hours unless the violation:




(i) Threatens public health or safety;




(ii) Is knowingly and intentionally committed; or




(iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304.




(B) A Class One stop-sale order duly issued by the commissioner for a specified period greater than twenty-four (24) hours may be issued for any period not in excess of two hundred forty (240) hours.




(3) (A) An administrative fine may not be assessed by the commissioner in an amount greater than one thousand dollars ($1,000) unless the violation:




(i) Threatens public health or safety;




(ii) Is knowingly and intentionally committed; or




(iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304.




(B) An administrative fine duly assessed by the commissioner in an amount greater than one thousand dollars ($1,000) may be assessed for any amount not in excess of ten thousand dollars ($10,000).




(b) (1) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, refuses during regular business hours to promptly provide, upon request, a sample for inspection and testing, then the refusal shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a).




(2) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, interferes or attempts to interfere with the reasonable efforts of a field inspector or departmental official or employee to perform any duty or responsibility assigned pursuant to this part, then the interference or attempted interference shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a).




(3) If a person who conveys kerosene or motor fuel for consumption in Tennessee fails to register with the department as required by § 47-18-1304, then the person shall be subject to imposition of the penalties set forth in subsection (a).




(4) If a person who conveys kerosene or motor fuel for consumption in Tennessee violates a rule duly promulgated by the department under the authority of this part, then the violation shall constitute a violation of § 47-18-1304 and shall be subject to imposition of the penalties set forth in subsection (a).




(c) If a person unknowingly receives kerosene or motor fuel that does not comply with the requirements of § 47-18-1304, and if as a result thereof the person is sanctioned pursuant to this section, then such person shall have the right to proceed in civil court to collect damages from those persons who, in violation of § 47-18-1304, conveyed the kerosene or motor fuel for consumption in Tennessee.


47-18-1307. Sanctions for violations — Penalties.


(a) (1) If a person or the person's agent or employee conveys, or offers to convey, kerosene or motor fuel in violation of § 47-18-1304, then the person shall be subject to an administrative fine, to issuance of a stop-sale order, or to both, in the discretion of the commissioner. A stop-sale order shall be issued by the commissioner either as a Class One stop-sale order or as a Class Two stop-sale order. A Class One stop-sale order shall be issued for a specified period of time. A Class Two stop-sale order shall be issued until conditions identified within the order have been remedied.




(2) (A) A Class One stop-sale order may not be issued by the commissioner for a specified period greater than twenty-four (24) hours unless the violation:




(i) Threatens public health or safety;




(ii) Is knowingly and intentionally committed; or




(iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304.




(B) A Class One stop-sale order duly issued by the commissioner for a specified period greater than twenty-four (24) hours may be issued for any period not in excess of two hundred forty (240) hours.




(3) (A) An administrative fine may not be assessed by the commissioner in an amount greater than one thousand dollars ($1,000) unless the violation:




(i) Threatens public health or safety;




(ii) Is knowingly and intentionally committed; or




(iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304.




(B) An administrative fine duly assessed by the commissioner in an amount greater than one thousand dollars ($1,000) may be assessed for any amount not in excess of ten thousand dollars ($10,000).




(b) (1) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, refuses during regular business hours to promptly provide, upon request, a sample for inspection and testing, then the refusal shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a).




(2) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, interferes or attempts to interfere with the reasonable efforts of a field inspector or departmental official or employee to perform any duty or responsibility assigned pursuant to this part, then the interference or attempted interference shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a).




(3) If a person who conveys kerosene or motor fuel for consumption in Tennessee fails to register with the department as required by § 47-18-1304, then the person shall be subject to imposition of the penalties set forth in subsection (a).




(4) If a person who conveys kerosene or motor fuel for consumption in Tennessee violates a rule duly promulgated by the department under the authority of this part, then the violation shall constitute a violation of § 47-18-1304 and shall be subject to imposition of the penalties set forth in subsection (a).




(c) If a person unknowingly receives kerosene or motor fuel that does not comply with the requirements of § 47-18-1304, and if as a result thereof the person is sanctioned pursuant to this section, then such person shall have the right to proceed in civil court to collect damages from those persons who, in violation of § 47-18-1304, conveyed the kerosene or motor fuel for consumption in Tennessee.

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47-18-1308. Officials or employees administering or enforcing part — Reports of interests in conveyances — Restrictions on use of samples.

(a) Each official and employee within the department, and each official and employee of a person contracting with the department, who is directly or indirectly involved in the administration or enforcement of this part, and who has a direct or indirect interest in the conveyance of kerosene or motor fuel for consumption in Tennessee, shall annually file a written statement summarizing the official's or employee's involvement in the administration or enforcement of this part as well as the official's or employee's interest in the conveyance of kerosene or motor fuel for consumption in Tennessee. The statements shall constitute open records, shall be kept on file in the commissioner's office, and shall be available for public inspection during the department's regular business hours.




(b) No official or employee within the department and no official or employee of a person contracting with the department shall take away or appropriate for the official's or employee's own use any sample collected by or submitted to the department for testing. By duly promulgated rule, the department shall establish policies and procedures governing the use, disposal, or sale of any samples remaining unused after testing thereon is completed.
47-18-1308. Officials or employees administering or enforcing part — Reports of interests in conveyances — Restrictions on use of samples.

(a) Each official and employee within the department, and each official and employee of a person contracting with the department, who is directly or indirectly involved in the administration or enforcement of this part, and who has a direct or indirect interest in the conveyance of kerosene or motor fuel for consumption in Tennessee, shall annually file a written statement summarizing the official's or employee's involvement in the administration or enforcement of this part as well as the official's or employee's interest in the conveyance of kerosene or motor fuel for consumption in Tennessee. The statements shall constitute open records, shall be kept on file in the commissioner's office, and shall be available for public inspection during the department's regular business hours.




(b) No official or employee within the department and no official or employee of a person contracting with the department shall take away or appropriate for the official's or employee's own use any sample collected by or submitted to the department for testing. By duly promulgated rule, the department shall establish policies and procedures governing the use, disposal, or sale of any samples remaining unused after testing thereon is completed.

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47-18-1309. Rules and regulations — Contested cases. (a) In accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce the provisions of this part.




(b) Such rules shall include, but shall not necessarily be limited to:




(1) Registration and disclosure procedures and requirements mandated by § 47-18-1304;




(2) Identification and statement of current, applicable federal and state labeling and posting requirements, compliance with which is mandated by § 47-18-1304;




(3) Identification and statement of current, applicable ASTM standards or federal standards, compliance with which is mandated by § 47-18-1304; and




(4) Description of any deviations from ASTM standards, permitted by the department without imposition of sanction, in order to equitably reflect the margin of error for test analyses.




(c) A person who is aggrieved by a proposed departmental order to enforce the provisions of this part, or any rule promulgated under the authority of this part, shall be entitled to a contested case hearing to be conducted in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Except under circumstances in which the public health or safety would be jeopardized by delay, any such hearing shall be conducted prior to the time at which an administrative fine is imposed or a stop-sale order becomes effective.
47-18-1309. Rules and regulations — Contested cases. (a) In accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce the provisions of this part.




(b) Such rules shall include, but shall not necessarily be limited to:




(1) Registration and disclosure procedures and requirements mandated by § 47-18-1304;




(2) Identification and statement of current, applicable federal and state labeling and posting requirements, compliance with which is mandated by § 47-18-1304;




(3) Identification and statement of current, applicable ASTM standards or federal standards, compliance with which is mandated by § 47-18-1304; and




(4) Description of any deviations from ASTM standards, permitted by the department without imposition of sanction, in order to equitably reflect the margin of error for test analyses.




(c) A person who is aggrieved by a proposed departmental order to enforce the provisions of this part, or any rule promulgated under the authority of this part, shall be entitled to a contested case hearing to be conducted in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Except under circumstances in which the public health or safety would be jeopardized by delay, any such hearing shall be conducted prior to the time at which an administrative fine is imposed or a stop-sale order becomes effective.

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47-18-1310. Report to governor and general assembly.
(a) In accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce the provisions of this part.




(b) Such rules shall include, but shall not necessarily be limited to:




(1) Registration and disclosure procedures and requirements mandated by § 47-18-1304;




(2) Identification and statement of current, applicable federal and state labeling and posting requirements, compliance with which is mandated by § 47-18-1304;




(3) Identification and statement of current, applicable ASTM standards or federal standards, compliance with which is mandated by § 47-18-1304; and




(4) Description of any deviations from ASTM standards, permitted by the department without imposition of sanction, in order to equitably reflect the margin of error for test analyses.




(c) A person who is aggrieved by a proposed departmental order to enforce the provisions of this part, or any rule promulgated under the authority of this part, shall be entitled to a contested case hearing to be conducted in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Except under circumstances in which the public health or safety would be jeopardized by delay, any such hearing shall be conducted prior to the time at which an administrative fine is imposed or a stop-sale order becomes effective.


47-18-1310. Report to governor and general assembly.
(a) In accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce the provisions of this part.




(b) Such rules shall include, but shall not necessarily be limited to:




(1) Registration and disclosure procedures and requirements mandated by § 47-18-1304;




(2) Identification and statement of current, applicable federal and state labeling and posting requirements, compliance with which is mandated by § 47-18-1304;




(3) Identification and statement of current, applicable ASTM standards or federal standards, compliance with which is mandated by § 47-18-1304; and




(4) Description of any deviations from ASTM standards, permitted by the department without imposition of sanction, in order to equitably reflect the margin of error for test analyses.




(c) A person who is aggrieved by a proposed departmental order to enforce the provisions of this part, or any rule promulgated under the authority of this part, shall be entitled to a contested case hearing to be conducted in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Except under circumstances in which the public health or safety would be jeopardized by delay, any such hearing shall be conducted prior to the time at which an administrative fine is imposed or a stop-sale order becomes effective.

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47-18-1311. Funding.


Implementation and administration of this part shall be subject to an annual appropriation for such purpose as contained within the general appropriations act. The commissioner of finance and administration shall transfer from highway user tax revenues allocated to the highway fund an amount sufficient to support the annual appropriation for implementation and administration of this part.


47-18-1311. Funding.


Implementation and administration of this part shall be subject to an annual appropriation for such purpose as contained within the general appropriations act. The commissioner of finance and administration shall transfer from highway user tax revenues allocated to the highway fund an amount sufficient to support the annual appropriation for implementation and administration of this part.

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47-18-1401. Short title.




This part shall be known and may be cited as the “Tennessee Consumer Protection Warranty Extension Act.”
47-18-1401. Short title.




This part shall be known and may be cited as the “Tennessee Consumer Protection Warranty Extension Act.”

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47-18-1402. Warranty extension period.

Any written warranty or service contract purchased in this state on or after July 1, 1989, and in effect when there is a failure of the product under such written warranty or service contract shall be extended as follows:




(1) The number of days the consumer is deprived of the use of the product by reason of the product being in repair; plus




(2) Two (2) additional working days.
47-18-1402. Warranty extension period.

Any written warranty or service contract purchased in this state on or after July 1, 1989, and in effect when there is a failure of the product under such written warranty or service contract shall be extended as follows:




(1) The number of days the consumer is deprived of the use of the product by reason of the product being in repair; plus




(2) Two (2) additional working days.

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47-18-1403. Working days — Definition.


For the purposes of this part, working days shall not include Saturdays, Sundays or legal holidays pursuant to § 15-1-101.
47-18-1403. Working days — Definition.


For the purposes of this part, working days shall not include Saturdays, Sundays or legal holidays pursuant to § 15-1-101.

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47-18-1404. Applicability.
The provisions of this part shall not apply to a written warranty or a service contract for a new or used motor vehicle.

47-18-1404. Applicability.
The provisions of this part shall not apply to a written warranty or a service contract for a new or used motor vehicle.

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47-18-1501. Short title — Definitions.


(a) This part shall be known as the “Consumer Telemarketing Protection Act of 1990.”




(b) As used in this part, unless the context otherwise requires:




(1) “ADAD equipment” means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating recorded messages to the numbers so selected or dialed;




(2) “Authority” means the Tennessee regulatory authority, created by § 65-1-201 [§ 65-1-101]; and




(3) “Telephone access line” means any seven-digit telephone number for each call to which a fee is charged.


47-18-1501. Short title — Definitions.


(a) This part shall be known as the “Consumer Telemarketing Protection Act of 1990.”




(b) As used in this part, unless the context otherwise requires:




(1) “ADAD equipment” means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating recorded messages to the numbers so selected or dialed;




(2) “Authority” means the Tennessee regulatory authority, created by § 65-1-201 [§ 65-1-101]; and




(3) “Telephone access line” means any seven-digit telephone number for each call to which a fee is charged.

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47-18-1502. Unlawful use of ADAD equipment — Consent to calls.


(a) It is unlawful for any person to use, to employ or direct another person to use, or to contract for the use of ADAD equipment for the purpose of advertising or offering for sale, lease, rental or as a gift any goods, services or property, either real or personal, primarily for personal, family or household use or for the purpose of conducting polls or soliciting information where:




(1) Consent is not received prior to the initiation of the calls as specified in subsection (b);




(2) Such use is other than between the hours of eight o'clock a.m. (8:00 a.m.) and nine o'clock p.m. (9:00 p.m.);




(3) The ADAD equipment will operate unattended, or is not so designed and equipped with an automatic clock and calendar device that it will not operate unattended, even in the event of power failures;




(4) Such use involves either the random or sequential dialing of telephone numbers;




(5) The telephone number required to be stated in subdivision (a)(7) is not, during normal business hours, promptly and personally answered by someone who:




(A) Is an agent of the person or organization in whose behalf the automatic calls are made; and




(B) Is willing and able to provide information concerning the automatic calls;




(6) The automatic dialing and recorded message player does not automatically and immediately terminate its connection with any telephone call within ten (10) seconds after the person called:




(A) Fails to give consent for the playing of a recorded message; or




(B) Replaces the receiver on the person's telephone;




(7) The recorded message fails to state clearly the name and telephone number of the person or organization initiating the call within the first twenty-five (25) seconds of the call and at the conclusion of the call; or




(8) Such use involves calls to:




(A) Telephone numbers which, at the request of the customer, have been omitted from the telephone directory published by the telephone company or cooperative serving the customer; or




(B) Hospitals, nursing homes, fire protection agencies, or law enforcement agencies.




(b) (1) A person may give consent to a call made with ADAD equipment when a live operator introduces the call and states an intent to play a recorded message. Any such consent shall apply only to a particular call and shall not constitute prior consent to receive further calls through the use of such ADAD equipment.




(2) (A) Any person wishing to receive telephone calls through the use of ADAD equipment shall give written consent to the person using, employing, directing another person to use, or contracting for the use of such ADAD equipment.




(B) Any form used for such written consent by any person using, employing, directing another person to use, or contracting for the use of such ADAD equipment shall clearly and conspicuously state its purpose and effect, and clearly and conspicuously give notice of how such consent may be withdrawn.




(C) A record of such written consent shall be maintained by the person to whom consent is given, and shall be made available to the authority or its authorized representative, without further action, during normal business hours and following reasonable notice.




(D) Such consent shall, unless withdrawn, be valid for a period of two (2) years from the date on which it is executed; and such record of written consent shall be maintained by the person to whom consent is given for at least the same period of time.




(E) Any consent to receive telephone calls through the use of ADAD equipment shall be void and withdrawn on the fifteenth day following the receipt of a letter withdrawing such consent. It is unlawful for any person to whom written consent is given to fail to maintain the record of such written consent for the time required by this subdivision, or to prevent or hinder the authority or its authorized representative from inspecting any such record of written consent.



47-18-1502. Unlawful use of ADAD equipment — Consent to calls.


(a) It is unlawful for any person to use, to employ or direct another person to use, or to contract for the use of ADAD equipment for the purpose of advertising or offering for sale, lease, rental or as a gift any goods, services or property, either real or personal, primarily for personal, family or household use or for the purpose of conducting polls or soliciting information where:




(1) Consent is not received prior to the initiation of the calls as specified in subsection (b);




(2) Such use is other than between the hours of eight o'clock a.m. (8:00 a.m.) and nine o'clock p.m. (9:00 p.m.);




(3) The ADAD equipment will operate unattended, or is not so designed and equipped with an automatic clock and calendar device that it will not operate unattended, even in the event of power failures;




(4) Such use involves either the random or sequential dialing of telephone numbers;




(5) The telephone number required to be stated in subdivision (a)(7) is not, during normal business hours, promptly and personally answered by someone who:




(A) Is an agent of the person or organization in whose behalf the automatic calls are made; and




(B) Is willing and able to provide information concerning the automatic calls;




(6) The automatic dialing and recorded message player does not automatically and immediately terminate its connection with any telephone call within ten (10) seconds after the person called:




(A) Fails to give consent for the playing of a recorded message; or




(B) Replaces the receiver on the person's telephone;




(7) The recorded message fails to state clearly the name and telephone number of the person or organization initiating the call within the first twenty-five (25) seconds of the call and at the conclusion of the call; or




(8) Such use involves calls to:




(A) Telephone numbers which, at the request of the customer, have been omitted from the telephone directory published by the telephone company or cooperative serving the customer; or




(B) Hospitals, nursing homes, fire protection agencies, or law enforcement agencies.




(b) (1) A person may give consent to a call made with ADAD equipment when a live operator introduces the call and states an intent to play a recorded message. Any such consent shall apply only to a particular call and shall not constitute prior consent to receive further calls through the use of such ADAD equipment.




(2) (A) Any person wishing to receive telephone calls through the use of ADAD equipment shall give written consent to the person using, employing, directing another person to use, or contracting for the use of such ADAD equipment.




(B) Any form used for such written consent by any person using, employing, directing another person to use, or contracting for the use of such ADAD equipment shall clearly and conspicuously state its purpose and effect, and clearly and conspicuously give notice of how such consent may be withdrawn.




(C) A record of such written consent shall be maintained by the person to whom consent is given, and shall be made available to the authority or its authorized representative, without further action, during normal business hours and following reasonable notice.




(D) Such consent shall, unless withdrawn, be valid for a period of two (2) years from the date on which it is executed; and such record of written consent shall be maintained by the person to whom consent is given for at least the same period of time.




(E) Any consent to receive telephone calls through the use of ADAD equipment shall be void and withdrawn on the fifteenth day following the receipt of a letter withdrawing such consent. It is unlawful for any person to whom written consent is given to fail to maintain the record of such written consent for the time required by this subdivision, or to prevent or hinder the authority or its authorized representative from inspecting any such record of written consent.

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47-18-1503. Registration requirements — Issuance and revocation of permits.

(a) Prior to the utilization of ADAD equipment to call telephone numbers located in this state, any company or individual utilizing this equipment shall register the following with the authority to receive a permit as provided in this part:




(1) Name, address and telephone number of the company or individual utilizing the equipment;




(2) Name and address of a designated agent for service of process located in Tennessee for the ADAD operator;




(3) A surety bond executed by the ADAD operator from a surety company authorized to do business in this state for the sum of ten thousand dollars ($10,000) to be maintained continuously in full force and effect. The authority may waive the bond requirement for any operator demonstrating financial responsibility by the submission of a letter of credit from an accredited financial institution or by other means as the authority by rule may prescribe.




(b) The authority shall promulgate rules and regulations to govern the issuance of and the revocation or suspension of permits for ADAD operators utilizing equipment to call telephone numbers located in Tennessee.




(c) Failure to obtain a permit from the authority prior to utilization of ADAD equipment to call numbers located in Tennessee, and failure to abide by authority rules governing ADAD operations is a violation of this part.
47-18-1503. Registration requirements — Issuance and revocation of permits.

(a) Prior to the utilization of ADAD equipment to call telephone numbers located in this state, any company or individual utilizing this equipment shall register the following with the authority to receive a permit as provided in this part:




(1) Name, address and telephone number of the company or individual utilizing the equipment;




(2) Name and address of a designated agent for service of process located in Tennessee for the ADAD operator;




(3) A surety bond executed by the ADAD operator from a surety company authorized to do business in this state for the sum of ten thousand dollars ($10,000) to be maintained continuously in full force and effect. The authority may waive the bond requirement for any operator demonstrating financial responsibility by the submission of a letter of credit from an accredited financial institution or by other means as the authority by rule may prescribe.




(b) The authority shall promulgate rules and regulations to govern the issuance of and the revocation or suspension of permits for ADAD operators utilizing equipment to call telephone numbers located in Tennessee.




(c) Failure to obtain a permit from the authority prior to utilization of ADAD equipment to call numbers located in Tennessee, and failure to abide by authority rules governing ADAD operations is a violation of this part.

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47-18-1504. Unlawful to connect ADAD equipment to telephone line without permit — Renewal of permit.

(a) It is unlawful for any person to connect any ADAD equipment to any telephone line in this state for the purpose of making telephone calls to persons in this state through the use of ADAD equipment unless a permit has been issued for such ADAD equipment by the authority.




(b) Any person desiring to use ADAD equipment in this state shall make application for a permit to the authority on forms prescribed by the authority, and shall pay a fee as prescribed by the authority for such permit. Permits shall be renewed biennially as prescribed by the authority and upon payment of a renewal fee. The fees charged shall cover the administrative cost for the issuance of such permits.




(c) Permits shall be subject to suspension or revocation by the authority for any violation of this part.
47-18-1504. Unlawful to connect ADAD equipment to telephone line without permit — Renewal of permit.

(a) It is unlawful for any person to connect any ADAD equipment to any telephone line in this state for the purpose of making telephone calls to persons in this state through the use of ADAD equipment unless a permit has been issued for such ADAD equipment by the authority.




(b) Any person desiring to use ADAD equipment in this state shall make application for a permit to the authority on forms prescribed by the authority, and shall pay a fee as prescribed by the authority for such permit. Permits shall be renewed biennially as prescribed by the authority and upon payment of a renewal fee. The fees charged shall cover the administrative cost for the issuance of such permits.




(c) Permits shall be subject to suspension or revocation by the authority for any violation of this part.

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47-18-1505. Unlawful use of telephone access line.

It is unlawful for any person making use of a telephone access line to use, to employ or direct another person to use, or to contract for the use of ADAD equipment or the United States mail for the purpose of soliciting any person to call such telephone access line.
47-18-1505. Unlawful use of telephone access line.

It is unlawful for any person making use of a telephone access line to use, to employ or direct another person to use, or to contract for the use of ADAD equipment or the United States mail for the purpose of soliciting any person to call such telephone access line.

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47-18-1506. Telephone companies and cooperatives — Withdrawal of access to a telephone access line. No telephone company or cooperative shall provide access to a telephone access line to any person who solicits calls to such number through the use of ADAD equipment or through the use of the United States mail. A telephone company or cooperative shall, upon the order of the authority, withdraw access to a telephone access line from any person if calls to such number are solicited by ADAD equipment or through the use of the United States mail.47-18-1506. Telephone companies and cooperatives — Withdrawal of access to a telephone access line. No telephone company or cooperative shall provide access to a telephone access line to any person who solicits calls to such number through the use of ADAD equipment or through the use of the United States mail. A telephone company or cooperative shall, upon the order of the authority, withdraw access to a telephone access line from any person if calls to such number are solicited by ADAD equipment or through the use of the United States mail.

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47-18-1507. Permissible use of ADAD equipment.


Nothing in this part shall prohibit the use of ADAD equipment to make calls with recorded messages when such calls:




(1) Are made in response to calls initiated by the person to whom the automatic call or recorded message is directed;




(2) Concern goods or services that have been previously ordered or purchased;




(3) Relate to collection of lawful debts; or




(4) Are made by a public school, kindergarten through grade twelve (K-12), as part of a program to regulate and control absenteeism of students.



47-18-1507. Permissible use of ADAD equipment.


Nothing in this part shall prohibit the use of ADAD equipment to make calls with recorded messages when such calls:




(1) Are made in response to calls initiated by the person to whom the automatic call or recorded message is directed;




(2) Concern goods or services that have been previously ordered or purchased;




(3) Relate to collection of lawful debts; or




(4) Are made by a public school, kindergarten through grade twelve (K-12), as part of a program to regulate and control absenteeism of students.

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47-18-1508. Penalty — Criminal.



Any person who violates any provision of §§ 47-18-1502 — 47-18-1504 commits a Class A misdemeanor.


47-18-1508. Penalty — Criminal.



Any person who violates any provision of §§ 47-18-1502 — 47-18-1504 commits a Class A misdemeanor.

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47-18-1509. Injunctive relief — Recovery of damages



(a) The district attorney general of the county in which or from which automated calls in violation of this part are made may seek injunctive relief to enforce this part and recover such statutory damages and attorney's fees as are set out in § 47-18-1510.




(b) Any individual or group of individuals receiving such automated calls may also seek injunctive relief to enforce this part on behalf of others similarly situated.


47-18-1509. Injunctive relief — Recovery of damages



(a) The district attorney general of the county in which or from which automated calls in violation of this part are made may seek injunctive relief to enforce this part and recover such statutory damages and attorney's fees as are set out in § 47-18-1510.




(b) Any individual or group of individuals receiving such automated calls may also seek injunctive relief to enforce this part on behalf of others similarly situated.

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47-18-1510. Penalty — Civil.
(a) If an individual or corporation is found to be in violation of this part in a civil action, a court shall assess a civil penalty against the offending party in the amount of one thousand dollars ($1,000) for each call made in violation of this part.




(b) Any civil penalty collected pursuant to this section shall be paid into the general fund of the state. The prevailing party in the cause shall be entitled to necessary expenses and reasonable attorney's fees.


47-18-1510. Penalty — Civil.
(a) If an individual or corporation is found to be in violation of this part in a civil action, a court shall assess a civil penalty against the offending party in the amount of one thousand dollars ($1,000) for each call made in violation of this part.




(b) Any civil penalty collected pursuant to this section shall be paid into the general fund of the state. The prevailing party in the cause shall be entitled to necessary expenses and reasonable attorney's fees.

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47-18-1511. Offense of using ADAD equipment to intentionally conceal or misrepresent telephone number of the equipment — Exceptions. [Effective January 1, 2011.](a) It is an offense for any person to utilize any ADAD equipment to intentionally:




(1) Dial telephone numbers with area codes within the state; and




(2) Conceal or misrepresent the telephone number utilized by the ADAD equipment on the call recipient's telephone or other equipment that is technically capable of displaying the number by:




(A) Displaying a telephone number other than the telephone number utilized by the ADAD equipment;




(B) Not displaying the telephone number utilized by the ADAD equipment; or




(C) Displaying an “unknown number” message or similar message instead of the telephone number utilized by the ADAD equipment.




(b) A violation of this section is a Class A misdemeanor punishable only by a fine not to exceed two thousand five hundred dollars ($2,500) for each violation. For purposes of criminal liability, a court shall deem each call made in violation of this section as a separate offense.




(c) It shall not be a violation of this section to display a phone number, different from the phone number being utilized by the ADAD equipment, on behalf of a person if:




(1) The phone number displayed on behalf of the person has a Tennessee area code or is a toll-free number;




(2) The phone number displayed on behalf of the person is answered during regular business hours by a designated representative of such person; and




(3) The person's name is displayed along with the phone number described in subdivisions (c)(1) and (2).




(d) The offenses described in this section shall not apply to a telecommunications, broadband, or voice-over-internet services provider acting solely as an intermediary for a transmission of telephone service between a caller and a recipient.

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47-18-1526. Telephone solicitations prohibited.
(a) As used in this section, unless the context otherwise requires:




(1) “Consumer” means an actual or prospective purchaser, lessee or recipient of consumer goods or services;




(2) “Division” means the division of consumer affairs of the department of commerce and insurance;




(3) “Telephone solicitor” means any natural person, firm, organization, partnership, association or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices;




(4) “Telephonic sales call” means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used by the solicitor or a third party for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes or in connection with prizes, gifts or awards presentations; and




(5) “Unsolicited telephonic sales call” means a telephonic sales call other than a call made:




(A) In response to an express request of the person called;




(B) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or




(C) To any person with whom the telephone solicitor has a prior or existing business relationship.




(b) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile or telephonic paging device telephone number unless such person or entity has instituted procedures for maintaining a list of persons who do not wish to receive telephone solicitations made by or on behalf of that person or entity, in compliance with 47 CFR 64 or 16 CFR 310.




(c) (1) No telephonic sales calls shall be made by a telephone solicitor to a consumer from a telephone if the telephone number of the caller is unlisted, or if the telephone solicitor is using telephone equipment which blocks the caller ID function on the telephone or telephone equipment of the number dialed so that the telephone number of the caller is not displayed on the telephone or telephone equipment which is technically capable of displaying the telephone number of the caller.




(2) (A) In addition to any other penalty provided by this section, it is an offense for a person owning or directing the use of telephones or telephone equipment in violation of subdivision (c)(1) to use or intentionally employ or direct a telephone solicitor to use, or to contract for the use of, telephones or telephone equipment to make telephonic sales calls in violation of subdivision (c)(1).




(B) A violation of this subdivision (2) is a Class A misdemeanor, punishable only by a fine not to exceed two thousand five hundred dollars ($2,500) for each violation.




(d) The division shall investigate any complaints received concerning violations of this section pursuant to § 47-18-106. The civil penalty shall not exceed one thousand dollars ($1,000) per violation. This civil penalty may be recovered in any action brought under this part by the division, or the division may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The division or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation. It shall be an affirmative defense in any action brought under this subsection that the defendant has established and implemented reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations established in this section.


47-18-1526. Telephone solicitations prohibited.
(a) As used in this section, unless the context otherwise requires:




(1) “Consumer” means an actual or prospective purchaser, lessee or recipient of consumer goods or services;




(2) “Division” means the division of consumer affairs of the department of commerce and insurance;




(3) “Telephone solicitor” means any natural person, firm, organization, partnership, association or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices;




(4) “Telephonic sales call” means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used by the solicitor or a third party for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes or in connection with prizes, gifts or awards presentations; and




(5) “Unsolicited telephonic sales call” means a telephonic sales call other than a call made:




(A) In response to an express request of the person called;




(B) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or




(C) To any person with whom the telephone solicitor has a prior or existing business relationship.




(b) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile or telephonic paging device telephone number unless such person or entity has instituted procedures for maintaining a list of persons who do not wish to receive telephone solicitations made by or on behalf of that person or entity, in compliance with 47 CFR 64 or 16 CFR 310.




(c) (1) No telephonic sales calls shall be made by a telephone solicitor to a consumer from a telephone if the telephone number of the caller is unlisted, or if the telephone solicitor is using telephone equipment which blocks the caller ID function on the telephone or telephone equipment of the number dialed so that the telephone number of the caller is not displayed on the telephone or telephone equipment which is technically capable of displaying the telephone number of the caller.




(2) (A) In addition to any other penalty provided by this section, it is an offense for a person owning or directing the use of telephones or telephone equipment in violation of subdivision (c)(1) to use or intentionally employ or direct a telephone solicitor to use, or to contract for the use of, telephones or telephone equipment to make telephonic sales calls in violation of subdivision (c)(1).




(B) A violation of this subdivision (2) is a Class A misdemeanor, punishable only by a fine not to exceed two thousand five hundred dollars ($2,500) for each violation.




(d) The division shall investigate any complaints received concerning violations of this section pursuant to § 47-18-106. The civil penalty shall not exceed one thousand dollars ($1,000) per violation. This civil penalty may be recovered in any action brought under this part by the division, or the division may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The division or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation. It shall be an affirmative defense in any action brought under this subsection that the defendant has established and implemented reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations established in this section.

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47-18-1527. Credit card charges by telephone solicitation permitted — Unauthorized charges — Refund.


(a) Credit card companies may offer services charged to a credit card to a cardholder by telephone solicitation and such cardholder may elect to authorize or refuse such services.




(b) If the cardholder does not authorize such services, the cardholder shall notify the credit card company of any unauthorized charges that appear on such cardholder's credit card statement within three (3) months of initial billing for such services.




(c) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company cannot provide proof of authorization by such consumer, the credit card company shall refund an amount equal to a minimum of three (3) months charges for services.




(d) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company is able to prove authorization by such cardholder, no refund shall be issued by the credit card company.
47-18-1527. Credit card charges by telephone solicitation permitted — Unauthorized charges — Refund.


(a) Credit card companies may offer services charged to a credit card to a cardholder by telephone solicitation and such cardholder may elect to authorize or refuse such services.




(b) If the cardholder does not authorize such services, the cardholder shall notify the credit card company of any unauthorized charges that appear on such cardholder's credit card statement within three (3) months of initial billing for such services.




(c) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company cannot provide proof of authorization by such consumer, the credit card company shall refund an amount equal to a minimum of three (3) months charges for services.




(d) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company is able to prove authorization by such cardholder, no refund shall be issued by the credit card company.

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47-18-1701. Short title.


This part shall be known as and may be cited as the “Tennessee Employment Agency Act.”


47-18-1701. Short title.


This part shall be known as and may be cited as the “Tennessee Employment Agency Act.”

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47-18-1702. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Candidate” means any person, whether employed or unemployed, seeking or entering into any arrangement for employment or change of employment through the services of an employment agency;




(2) “Director” means the director of the consumer affairs division;




(3) “Division” means the consumer affairs division;




(4) “Employer” means any person who engages or seeks to engage candidates for employment;




(5) “Employment agency” means any person who, for a fee paid by a candidate or other compensation provided by a candidate:




(A) Places or attempts to place candidates seeking employment where the fee is not paid by the employer;




(B) Recruits or attempts to recruit employees for employers seeking candidates where the fee is not paid by the employer; or




(C) Purports to have access to job leads or compiles and provides lists or information about available jobs, if no fee is charged to the majority of potential employers for inclusion in the listings, and if an office is maintained for the purpose of marketing job information to the public and providing customers with access to that information;




(6) “Fee” means anything of value paid or directed to be paid for the services of an employment agency; and




(7) “Person” means any individual, company, corporation, partnership, association or firm, including any officer, director or employee of a corporation.


47-18-1702. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Candidate” means any person, whether employed or unemployed, seeking or entering into any arrangement for employment or change of employment through the services of an employment agency;




(2) “Director” means the director of the consumer affairs division;




(3) “Division” means the consumer affairs division;




(4) “Employer” means any person who engages or seeks to engage candidates for employment;




(5) “Employment agency” means any person who, for a fee paid by a candidate or other compensation provided by a candidate:




(A) Places or attempts to place candidates seeking employment where the fee is not paid by the employer;




(B) Recruits or attempts to recruit employees for employers seeking candidates where the fee is not paid by the employer; or




(C) Purports to have access to job leads or compiles and provides lists or information about available jobs, if no fee is charged to the majority of potential employers for inclusion in the listings, and if an office is maintained for the purpose of marketing job information to the public and providing customers with access to that information;




(6) “Fee” means anything of value paid or directed to be paid for the services of an employment agency; and




(7) “Person” means any individual, company, corporation, partnership, association or firm, including any officer, director or employee of a corporation.

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47-18-1703. Prohibited acts.
No employment agency, or employer thereof, shall:




(1) Impose any fee on candidates except for furnishing of employment directly or indirectly through the efforts of such employment agency;




(2) Impose any fee on any candidate prior to the time at which that candidate has secured a job;




(3) Engage or attempt to engage in the splitting or sharing of fees with an employer, or an employee of an employer, to whom employment agency services have been furnished;




(4) Impose any fee for employing or training a person as a personnel consultant with such employment agency;




(5) Make, give or cause to be made or given to any candidate any false promise, misrepresentation, or inaccurate or misleading statement or information;




(6) Procure or attempt to procure the discharge of any person from such person's employment;




(7) Induce or attempt to induce any employee placed by the employment agency to leave such employment, except upon request made and initiated by such employee;




(8) Knowingly refer any candidate to employment which is prohibited by law, or deleterious to health or morals;




(9) Refer any candidate for an interview without having first obtained, either orally or in writing, a bona fide job order or recruiting assignment from an employer for an interview;




(10) Make or cause to be made or use any name, sign or advertising device bearing a name which may be reasonably confused with the name of a government agency;




(11) Knowingly publish or cause to be published any false, fraudulent, deceptive or misleading information, representation, permission, notice or advertisement;




(12) Require any candidate to contract with a specified lending agency to pay employment agency service charges; or




(13) Knowingly and willfully violate any law of this state or the United States.


47-18-1703. Prohibited acts.
No employment agency, or employer thereof, shall:




(1) Impose any fee on candidates except for furnishing of employment directly or indirectly through the efforts of such employment agency;




(2) Impose any fee on any candidate prior to the time at which that candidate has secured a job;




(3) Engage or attempt to engage in the splitting or sharing of fees with an employer, or an employee of an employer, to whom employment agency services have been furnished;




(4) Impose any fee for employing or training a person as a personnel consultant with such employment agency;




(5) Make, give or cause to be made or given to any candidate any false promise, misrepresentation, or inaccurate or misleading statement or information;




(6) Procure or attempt to procure the discharge of any person from such person's employment;




(7) Induce or attempt to induce any employee placed by the employment agency to leave such employment, except upon request made and initiated by such employee;




(8) Knowingly refer any candidate to employment which is prohibited by law, or deleterious to health or morals;




(9) Refer any candidate for an interview without having first obtained, either orally or in writing, a bona fide job order or recruiting assignment from an employer for an interview;




(10) Make or cause to be made or use any name, sign or advertising device bearing a name which may be reasonably confused with the name of a government agency;




(11) Knowingly publish or cause to be published any false, fraudulent, deceptive or misleading information, representation, permission, notice or advertisement;




(12) Require any candidate to contract with a specified lending agency to pay employment agency service charges; or




(13) Knowingly and willfully violate any law of this state or the United States.

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47-18-1704. Refund of fees paid in event of termination.

If a candidate accepts candidate-paid fee employment and is terminated by the employer through no cause of the candidate within four (4) weeks after beginning work, the employment agency shall, within thirty (30) days, refund any fee paid by the candidate. During such thirty (30) days, the employment agency shall, if requested, attempt to place the candidate in similar employment.
47-18-1704. Refund of fees paid in event of termination.

If a candidate accepts candidate-paid fee employment and is terminated by the employer through no cause of the candidate within four (4) weeks after beginning work, the employment agency shall, within thirty (30) days, refund any fee paid by the candidate. During such thirty (30) days, the employment agency shall, if requested, attempt to place the candidate in similar employment.

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47-18-1705. Exemptions.
The provisions of this part do not apply to:




(1) Employee trade associations engaged in the procurement of employment for public school teachers and administrators;




(2) Employment services established and operated by this state, any political subdivision of this state or the United States;




(3) Labor union organizations;




(4) Musician booking agencies;




(5) Employee trade associations engaged in the procurement of employment for nurses;




(6) Any health care provider who provides health care services and who is licensed pursuant to title 63 or title 68, chapter 11; or




(7) Any public or private college or university in the state;




provided, that no recruiting fee is exacted from the salary or wages of the employee for services rendered.




47-18-1705. Exemptions.
The provisions of this part do not apply to:




(1) Employee trade associations engaged in the procurement of employment for public school teachers and administrators;




(2) Employment services established and operated by this state, any political subdivision of this state or the United States;




(3) Labor union organizations;




(4) Musician booking agencies;




(5) Employee trade associations engaged in the procurement of employment for nurses;




(6) Any health care provider who provides health care services and who is licensed pursuant to title 63 or title 68, chapter 11; or




(7) Any public or private college or university in the state;




provided, that no recruiting fee is exacted from the salary or wages of the employee for services rendered.

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47-18-1706. Investigators.


Whenever the division has reason to believe that a person is engaging in, has engaged in, or may be about to engage in a violation of this part or has reason to believe it to be in the public interest to conduct an investigation to ascertain whether any person is engaging in, or has engaged in, or is about to engage in such act or practice, the division may conduct an investigation in accordance with the provisions of § 47-18-106.


47-18-1706. Investigators.


Whenever the division has reason to believe that a person is engaging in, has engaged in, or may be about to engage in a violation of this part or has reason to believe it to be in the public interest to conduct an investigation to ascertain whether any person is engaging in, or has engaged in, or is about to engage in such act or practice, the division may conduct an investigation in accordance with the provisions of § 47-18-106.

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47-18-1707. Enforcement actions.



(a) Whenever it appears to the director that a person has engaged in or is about to engage in any act or practice constituting a violation of this part or any rule or order hereunder, the director may, in the director's discretion, bring an action in the chancery court of any county in this state to enjoin the acts or practices and to enforce compliance with this part or any rule or order hereunder.




(b) Upon a proper showing, a permanent or temporary injunction, restraining order, writ of mandamus, discouragement or other proper equitable relief shall be granted.




(c) The court shall not require the director to post a bond.


47-18-1707. Enforcement actions.



(a) Whenever it appears to the director that a person has engaged in or is about to engage in any act or practice constituting a violation of this part or any rule or order hereunder, the director may, in the director's discretion, bring an action in the chancery court of any county in this state to enjoin the acts or practices and to enforce compliance with this part or any rule or order hereunder.




(b) Upon a proper showing, a permanent or temporary injunction, restraining order, writ of mandamus, discouragement or other proper equitable relief shall be granted.




(c) The court shall not require the director to post a bond.

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47-18-1708. Violations — Penalties.
(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by such act.


47-18-1708. Violations — Penalties.
(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by such act.

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47-18-1801. Short title.


This part shall be known and may be cited as the “Foreign Foods Disclosure Act of 1997.”


47-18-1801. Short title.


This part shall be known and may be cited as the “Foreign Foods Disclosure Act of 1997.”

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47-18-1802. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Director” means the director of the division of consumer affairs;




(2) “Food” means any nourishing substance intended to be eaten by human beings;




(3) “Manufacturer” means any person who manufactures, assembles or packages articles containing food of foreign origin. “Manufacturer” does not include wholesalers that repack fresh produce into smaller containers for sale to retail stores or retailers that repack fresh produce into tray-ready packs for sale to consumers; and




(4) “Person” means a natural person, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized.


47-18-1802. Definitions.
As used in this part, unless the context otherwise requires:




(1) “Director” means the director of the division of consumer affairs;




(2) “Food” means any nourishing substance intended to be eaten by human beings;




(3) “Manufacturer” means any person who manufactures, assembles or packages articles containing food of foreign origin. “Manufacturer” does not include wholesalers that repack fresh produce into smaller containers for sale to retail stores or retailers that repack fresh produce into tray-ready packs for sale to consumers; and




(4) “Person” means a natural person, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized.

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47-18-1803. Administration.

The consumer affairs division of the department of commerce and insurance shall administer the provisions of this part.
47-18-1803. Administration.

The consumer affairs division of the department of commerce and insurance shall administer the provisions of this part.

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47-18-1804. Labeling requirements.


It is unlawful for any manufacturer to sell any article containing food of foreign origin to a retail or wholesale establishment in Tennessee or for distribution in Tennessee if such article is not marked in accordance with the requirements of 19 U.S.C. § 1304.


47-18-1804. Labeling requirements.


It is unlawful for any manufacturer to sell any article containing food of foreign origin to a retail or wholesale establishment in Tennessee or for distribution in Tennessee if such article is not marked in accordance with the requirements of 19 U.S.C. § 1304.

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47-18-1805. Injunctive relief.


In addition to any other remedies, the director is authorized to apply to the chancery court of Davidson County, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this part, irrespective of whether or not there exists an adequate remedy at law, without the necessity of posting a bond.


47-18-1805. Injunctive relief.


In addition to any other remedies, the director is authorized to apply to the chancery court of Davidson County, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this part, irrespective of whether or not there exists an adequate remedy at law, without the necessity of posting a bond.

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47-18-1806. Civil penalties.


The director may seek and the court may impose a maximum civil penalty for a violation of this part of not more than ten thousand dollars ($10,000). For purposes of this section, each unmarked or improperly marked article constitutes a separate violation of this part.


47-18-1806. Civil penalties.


The director may seek and the court may impose a maximum civil penalty for a violation of this part of not more than ten thousand dollars ($10,000). For purposes of this section, each unmarked or improperly marked article constitutes a separate violation of this part.

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47-18-1807. Civil actions — Damages — Declaratory judgments — Costs.

(a) Any person who manufactures, assembles or packages articles containing food who has suffered or will suffer an ascertainable loss as a result of a violation of this part may commence a civil action against any manufacturer who is alleged to have violated or to be in violation of the provisions of this part.




(b) The action may be brought in a court of competent jurisdiction in the county where any alleged sale took place, is taking place, or is about to take place, or in the county in which the alleged violator resides, has its principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found.




(c) If the court finds that the violation was a willful or knowing violation, the court shall award three (3) times the actual damages sustained and provide such other relief as it considers necessary and proper.




(d) A person commencing a civil action under this section shall serve a copy of the action on the director. In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding.




(e) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the part or practice violates the provisions of this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed or shall not be continued if the director has commenced or intervened in a proceeding pursuant to § 47-18-1805.




(f) The court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation (including reasonable attorney fees) to the prevailing party. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Tennessee Rules of Civil Procedure.
47-18-1807. Civil actions — Damages — Declaratory judgments — Costs.

(a) Any person who manufactures, assembles or packages articles containing food who has suffered or will suffer an ascertainable loss as a result of a violation of this part may commence a civil action against any manufacturer who is alleged to have violated or to be in violation of the provisions of this part.




(b) The action may be brought in a court of competent jurisdiction in the county where any alleged sale took place, is taking place, or is about to take place, or in the county in which the alleged violator resides, has its principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found.




(c) If the court finds that the violation was a willful or knowing violation, the court shall award three (3) times the actual damages sustained and provide such other relief as it considers necessary and proper.




(d) A person commencing a civil action under this section shall serve a copy of the action on the director. In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding.




(e) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the part or practice violates the provisions of this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed or shall not be continued if the director has commenced or intervened in a proceeding pursuant to § 47-18-1805.




(f) The court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation (including reasonable attorney fees) to the prevailing party. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Tennessee Rules of Civil Procedure.

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47-18-1808. Statute of limitations.
Any action commenced pursuant to this part shall be brought within one (1) year from discovery of the alleged sale of an improperly marked article.


47-18-1808. Statute of limitations.
Any action commenced pursuant to this part shall be brought within one (1) year from discovery of the alleged sale of an improperly marked article.

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47-18-1809. Construction with federal law.


(a) The provisions of this part shall be construed in accordance with 19 U.S.C § 1304 and the regulations promulgated and rulings and decision made thereunder.




(b) Nothing in this part shall alter or amend the applicability to a wholesale or retail grocer of 19 U.S.C. § 1304 and any regulations promulgated thereunder.


47-18-1809. Construction with federal law.


(a) The provisions of this part shall be construed in accordance with 19 U.S.C § 1304 and the regulations promulgated and rulings and decision made thereunder.




(b) Nothing in this part shall alter or amend the applicability to a wholesale or retail grocer of 19 U.S.C. § 1304 and any regulations promulgated thereunder.

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47-18-1901. Minimum service periods — Disclosure required.


In any circumstance in which a written contract for a wireless telecommunications device and service is required by the provider thereof, such contract shall have a separate acknowledgment, either by a separate signature line or by initialing, of any minimum service period.


47-18-1901. Minimum service periods — Disclosure required.


In any circumstance in which a written contract for a wireless telecommunications device and service is required by the provider thereof, such contract shall have a separate acknowledgment, either by a separate signature line or by initialing, of any minimum service period.

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47-18-1902. Penalties.
The penalties provided in part 1 of this chapter shall be applicable to a violation of this part.

47-18-1902. Penalties.
The penalties provided in part 1 of this chapter shall be applicable to a violation of this part.

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47-18-1903. Applicability to regulated utilities.


This part shall not apply to any device or service sold, leased, or offered for sale or lease by any telephone cooperative or by any public utility that is subject to the jurisdiction of, or to regulation by, the Tennessee regulatory authority.


47-18-1903. Applicability to regulated utilities.


This part shall not apply to any device or service sold, leased, or offered for sale or lease by any telephone cooperative or by any public utility that is subject to the jurisdiction of, or to regulation by, the Tennessee regulatory authority.

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47-18-1904. Applicability to personal, family and household uses.
The remedies provided under this chapter with respect to a violation of the provisions of this part shall be available with respect to goods or services purchased by an individual primarily for personal, family or household use or purposes.

47-18-1904. Applicability to personal, family and household uses.
The remedies provided under this chapter with respect to a violation of the provisions of this part shall be available with respect to goods or services purchased by an individual primarily for personal, family or household use or purposes.

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47-18-1905. Applicability to contracts executed after effective date.

This part shall apply to contracts executed after January 1, 1998, and shall not apply to contracts executed prior to that date.
47-18-1905. Applicability to contracts executed after effective date.

This part shall apply to contracts executed after January 1, 1998, and shall not apply to contracts executed prior to that date.

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47-18-2001. Short title.


This part shall be known and may be cited as the “Tennessee Minimum Cigarette Pack Size Act of 1999.”


47-18-2001. Short title.


This part shall be known and may be cited as the “Tennessee Minimum Cigarette Pack Size Act of 1999.”

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47-18-2002. Definitions. As used in this part, unless the context otherwise requires:




(1) “Cigarette retailer” means each and every cigarette vending machine, place, store, booth, concession, truck, vehicle or person that in any way sells or makes available cigarettes or cigarette products directly or indirectly to the ultimate consumer;




(2) “Tobacco product manufacturer” means an entity that, after May 4, 1999, directly (and not exclusively through any affiliate):




(A) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer as that term is defined in the master settlement agreement) that will be responsible for the payments under the master settlement agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the master settlement agreement and that pays the taxes specified in subsection II(z) of the master settlement agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States;




(B) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or




(C) Becomes a successor of an entity described in subdivision (2)(A) or (B); and




(3) “Tobacco product manufacturer” does not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subdivision (2)(A), (B) or (C).
47-18-2002. Definitions. As used in this part, unless the context otherwise requires:




(1) “Cigarette retailer” means each and every cigarette vending machine, place, store, booth, concession, truck, vehicle or person that in any way sells or makes available cigarettes or cigarette products directly or indirectly to the ultimate consumer;




(2) “Tobacco product manufacturer” means an entity that, after May 4, 1999, directly (and not exclusively through any affiliate):




(A) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer as that term is defined in the master settlement agreement) that will be responsible for the payments under the master settlement agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the master settlement agreement and that pays the taxes specified in subsection II(z) of the master settlement agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States;




(B) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or




(C) Becomes a successor of an entity described in subdivision (2)(A) or (B); and




(3) “Tobacco product manufacturer” does not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subdivision (2)(A), (B) or (C).

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47-18-2003. Minimum package contents.


No tobacco product manufacturer or cigarette retailer may directly or indirectly, manufacture, sell or distribute in Tennessee any pack or other container of cigarettes containing fewer than twenty (20) cigarettes or, in the case of roll-your-own tobacco, any package of roll-your-own tobacco, containing less than zero point six zero (0.60) ounces of tobacco.


47-18-2003. Minimum package contents.


No tobacco product manufacturer or cigarette retailer may directly or indirectly, manufacture, sell or distribute in Tennessee any pack or other container of cigarettes containing fewer than twenty (20) cigarettes or, in the case of roll-your-own tobacco, any package of roll-your-own tobacco, containing less than zero point six zero (0.60) ounces of tobacco.

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47-18-2004. Purpose — Liberal construction.

(a) The purpose of this part is to prevent tobacco manufacturers or retailers from manufacturing, selling or distributing cigarettes in packs or containers containing fewer than twenty (20) cigarettes. This measure is designed to deter minors from smoking cigarettes.




(b) The provisions of this part shall be liberally construed to promote such purpose.
47-18-2004. Purpose — Liberal construction.

(a) The purpose of this part is to prevent tobacco manufacturers or retailers from manufacturing, selling or distributing cigarettes in packs or containers containing fewer than twenty (20) cigarettes. This measure is designed to deter minors from smoking cigarettes.




(b) The provisions of this part shall be liberally construed to promote such purpose.

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47-18-2005. Violation of Consumer Protection Act.


Any violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct, trade or commerce and subject to all sanctions, penalties and remedies provided in that act, including attorneys' fees and costs.


47-18-2005. Violation of Consumer Protection Act.


Any violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct, trade or commerce and subject to all sanctions, penalties and remedies provided in that act, including attorneys' fees and costs.

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47-18-2006. Institution of proceedings — Costs of actions.

(a) The attorney general and reporter may bring any appropriate action or proceeding in any court of competent jurisdiction pursuant to the provisions of this part against any cigarette manufacturer or cigarette retailer to seek redress, including injunctive relief, for violations of this part.




(b) No costs shall be taxed against the attorney general and reporter or the state in actions commenced under the provisions of this part.
47-18-2006. Institution of proceedings — Costs of actions.

(a) The attorney general and reporter may bring any appropriate action or proceeding in any court of competent jurisdiction pursuant to the provisions of this part against any cigarette manufacturer or cigarette retailer to seek redress, including injunctive relief, for violations of this part.




(b) No costs shall be taxed against the attorney general and reporter or the state in actions commenced under the provisions of this part.

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47-18-2101. Short title.


This part shall be known and may be cited as the “Tennessee Identity Theft Deterrence Act of 1999.”


47-18-2101. Short title.


This part shall be known and may be cited as the “Tennessee Identity Theft Deterrence Act of 1999.”

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47-18-2102. Definitions.


As used in this part and in the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, unless the context otherwise requires:




(1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist;




(2) “Attorney general” means the office of the Tennessee attorney general and reporter;




(3) “Consumer report” has the meaning ascribed to that term by 15 U.S.C. § 1681a(d);




(4) “Consumer reporting agency” has the meaning ascribed to that term by 15 U.S.C. § 1681a(f);




(5) “Division” means the division of consumer affairs of the department of commerce and insurance;




(6) “Financial document” means any credit card, debit card, check or checking account information or number, savings deposit slip or savings account information or number, or similar financial account or account number, including but not limited to, a money market account, certificate of deposit, or other type of interest generating account with a bank, savings and loan or credit union account, or any other financial institution, mutual fund account, 401K account, individual retirement account, retirement account, or other stock account information, savings bond or other bond, credit line, equity line or other line of credit which the possessor of the account has the right to draw against;




(7) “Identification documents” means any card, certificate or document which identifies or purports to identify the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be a driver license, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services;




(8) “Identity theft” means:




(A) Obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one or more identification documents or personal identification numbers of another person; or




(B) Otherwise obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one (1) or more financial documents of another person;




(9) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized;




(10) “Personal identification number” means any number that is assigned by the government to identify a particular person, including, but not limited to, social security number, federal tax payer identification number, Medicaid, Medicare or TennCare number which identifies a particular person eligible for benefits, any number assigned to a person as part of a licensure or registration process, such as a board of professional responsibility number, driver license number and passport number and any number assigned by an insurance company, health maintenance organization, managed care organization or other health benefit organization, for the purposes of identifying a particular person eligible for services; and




(11) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, as amended, as compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this definition, related statutes include but are not limited to: the Prize and Promotion Act, § 47-18-120; Health Club Act, as compiled in part 3 of this chapter; Buyer's Clubs Act, as compiled in part 5 of this chapter; Home Solicitations Sales Act of 1974, as compiled in part 7 of this chapter; Tennessee Credit Services Businesses Act, as compiled in part 10 of this chapter; Consumer Telemarketing Protection Act of 1990, as compiled in part 15 of this chapter; Unsolicited Telefacsimile Advertising Act, as compiled in part 16 of this chapter; Tennessee Employment Agency Act, as compiled in part 17 of this chapter; and Membership Camping Act, as compiled in title 66, chapter 32, part 3.


47-18-2102. Definitions.


As used in this part and in the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, unless the context otherwise requires:




(1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist;




(2) “Attorney general” means the office of the Tennessee attorney general and reporter;




(3) “Consumer report” has the meaning ascribed to that term by 15 U.S.C. § 1681a(d);




(4) “Consumer reporting agency” has the meaning ascribed to that term by 15 U.S.C. § 1681a(f);




(5) “Division” means the division of consumer affairs of the department of commerce and insurance;




(6) “Financial document” means any credit card, debit card, check or checking account information or number, savings deposit slip or savings account information or number, or similar financial account or account number, including but not limited to, a money market account, certificate of deposit, or other type of interest generating account with a bank, savings and loan or credit union account, or any other financial institution, mutual fund account, 401K account, individual retirement account, retirement account, or other stock account information, savings bond or other bond, credit line, equity line or other line of credit which the possessor of the account has the right to draw against;




(7) “Identification documents” means any card, certificate or document which identifies or purports to identify the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be a driver license, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services;




(8) “Identity theft” means:




(A) Obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one or more identification documents or personal identification numbers of another person; or




(B) Otherwise obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one (1) or more financial documents of another person;




(9) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized;




(10) “Personal identification number” means any number that is assigned by the government to identify a particular person, including, but not limited to, social security number, federal tax payer identification number, Medicaid, Medicare or TennCare number which identifies a particular person eligible for benefits, any number assigned to a person as part of a licensure or registration process, such as a board of professional responsibility number, driver license number and passport number and any number assigned by an insurance company, health maintenance organization, managed care organization or other health benefit organization, for the purposes of identifying a particular person eligible for services; and




(11) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, as amended, as compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this definition, related statutes include but are not limited to: the Prize and Promotion Act, § 47-18-120; Health Club Act, as compiled in part 3 of this chapter; Buyer's Clubs Act, as compiled in part 5 of this chapter; Home Solicitations Sales Act of 1974, as compiled in part 7 of this chapter; Tennessee Credit Services Businesses Act, as compiled in part 10 of this chapter; Consumer Telemarketing Protection Act of 1990, as compiled in part 15 of this chapter; Unsolicited Telefacsimile Advertising Act, as compiled in part 16 of this chapter; Tennessee Employment Agency Act, as compiled in part 17 of this chapter; and Membership Camping Act, as compiled in title 66, chapter 32, part 3.

.





47-18-2103. Prohibited practices.


It is unlawful for any person to directly or indirectly:




(1) Engage in identity theft; or




(2) Engage in any unfair, deceptive, misleading act or practice for the purpose of directly or indirectly engaging in identity theft.




47-18-2103. Prohibited practices.


It is unlawful for any person to directly or indirectly:




(1) Engage in identity theft; or




(2) Engage in any unfair, deceptive, misleading act or practice for the purpose of directly or indirectly engaging in identity theft.

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47-18-2104. Private rights of action.


(a) Any party commencing a private action pursuant to this part must provide a copy of the complaint and all other initial pleadings to the division of consumer affairs and upon entry of any judgment, order or decree of the action, shall mail a copy of such judgment, order or decree to the division of consumer affairs within five (5) days of entry of the judgment, order or decree.




(b) A copy of any notice of appeal shall be served by the appellant upon the director of the division, who in the public interest may intervene.




(c) A private action to enforce any liability created under this part may be brought within two (2) years from the date the liability arises, except that where a defendant has concealed the liability to that person, under this part, the action may be brought within two (2) years after discovery by the person of the liability. No action brought by the division shall be subject to the limitation of actions contained herein.




(d) In any private action commenced under this part, if the private party establishes that identity theft was engaged in willfully or knowingly, the court may award three (3) times the actual damages and may provide such other relief as it considers necessary and proper.




(e) The action may be brought in a court of competent jurisdiction in the county where the identity theft or unfair, deceptive or misleading act or practice took place, is taking place, or is about to take place, or in the county in which such person resides, has such person's principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found.




(f) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the act or practice violates the provisions of this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed once the division has commenced a proceeding pursuant to this part or the Tennessee Consumer Protection Act, as compiled in part 1 of this chapter.




(g) Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorneys' fees and costs.


47-18-2104. Private rights of action.


(a) Any party commencing a private action pursuant to this part must provide a copy of the complaint and all other initial pleadings to the division of consumer affairs and upon entry of any judgment, order or decree of the action, shall mail a copy of such judgment, order or decree to the division of consumer affairs within five (5) days of entry of the judgment, order or decree.




(b) A copy of any notice of appeal shall be served by the appellant upon the director of the division, who in the public interest may intervene.




(c) A private action to enforce any liability created under this part may be brought within two (2) years from the date the liability arises, except that where a defendant has concealed the liability to that person, under this part, the action may be brought within two (2) years after discovery by the person of the liability. No action brought by the division shall be subject to the limitation of actions contained herein.




(d) In any private action commenced under this part, if the private party establishes that identity theft was engaged in willfully or knowingly, the court may award three (3) times the actual damages and may provide such other relief as it considers necessary and proper.




(e) The action may be brought in a court of competent jurisdiction in the county where the identity theft or unfair, deceptive or misleading act or practice took place, is taking place, or is about to take place, or in the county in which such person resides, has such person's principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found.




(f) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the act or practice violates the provisions of this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed once the division has commenced a proceeding pursuant to this part or the Tennessee Consumer Protection Act, as compiled in part 1 of this chapter.




(g) Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorneys' fees and costs.

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47-18-2105. Civil penalties and remedies.

(a) Whenever the division has reason to believe that any person has engaged in, is engaging in, or based upon information received from another law enforcement agency, is about to engage in any act or practice declared unlawful by this part and that proceedings would be in the public interest, the attorney general and reporter, at the request of the division, may bring an action in the name of the state against such person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such act or practice. Additionally, the state may request an asset freeze or any other appropriate and necessary orders against such person.




(b) The action may be brought in the chancery or circuit court in Davidson County or in a court of competent jurisdiction where the alleged violation of this part, identity theft, unfair, misleading or deceptive act or practice took place or is about to take place or in the county in which the person resides, has the person's principal place of business, conducts, transacts or has transacted business or, if the person cannot be found, in any of the locations listed in this subsection (b), in the county in which the person can be found.




(c) The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part or issue any other necessary or appropriate relief or orders. Such orders and injunctions shall be issued without bond to the state of Tennessee.




(d) Notwithstanding any other provision of law, a violation of this part shall be punishable by a civil penalty of whichever of the following is greater: ten thousand dollars ($10,000), five thousand dollars ($5,000) per day for each day that a person's identity has been assumed or ten (10) times the amount obtained or attempted to be obtained by the person using the identity theft. This civil penalty is supplemental, cumulative and in addition to any other penalties and relief available under the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, or other laws, regulations or rules.




(e) In any successful action commenced under this part, any ascertainable loss that a person has incurred as a result of a violation of this part, including, but not limited to, the identity theft or misleading, deceptive or unfair practices used to engage in violations of this part shall be recovered as restitution for each such person. The person shall also be awarded statutory interest on that ascertainable loss.




(f) In any successful action commenced by the division under this part, the court shall also order reimbursement to the division of the reasonable attorneys' fees, costs and expenses of the investigation and prosecution under this part.




(g) No court costs, litigation costs, discretionary costs or attorneys' fees shall be taxed or awarded against the state in an action commenced under this part or under the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter.




(h) Any knowing or willful violation of the terms of an injunction or order issued pursuant to this part in an action commenced by the attorney general and reporter shall be punishable by a civil penalty of not more than five thousand dollars ($5,000) for each and every violation of the order recoverable by the state, in addition to any other appropriate relief, including, but not limited to, contempt sanctions and the awarding of attorneys' fees and costs to the state for any filings relating to violations of any order under this part.




(i) An order or judgment issued as a result of an action commenced by the division shall in no way affect individual rights of action which may exist independent of the recovery of money or property received under such order or judgment. If a particular person receives restitution as a result of an action commenced by the attorney general and reporter, those funds shall act only as a set-off against any award of money received in the person's private right of action proceedings.
47-18-2105. Civil penalties and remedies.

(a) Whenever the division has reason to believe that any person has engaged in, is engaging in, or based upon information received from another law enforcement agency, is about to engage in any act or practice declared unlawful by this part and that proceedings would be in the public interest, the attorney general and reporter, at the request of the division, may bring an action in the name of the state against such person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such act or practice. Additionally, the state may request an asset freeze or any other appropriate and necessary orders against such person.




(b) The action may be brought in the chancery or circuit court in Davidson County or in a court of competent jurisdiction where the alleged violation of this part, identity theft, unfair, misleading or deceptive act or practice took place or is about to take place or in the county in which the person resides, has the person's principal place of business, conducts, transacts or has transacted business or, if the person cannot be found, in any of the locations listed in this subsection (b), in the county in which the person can be found.




(c) The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part or issue any other necessary or appropriate relief or orders. Such orders and injunctions shall be issued without bond to the state of Tennessee.




(d) Notwithstanding any other provision of law, a violation of this part shall be punishable by a civil penalty of whichever of the following is greater: ten thousand dollars ($10,000), five thousand dollars ($5,000) per day for each day that a person's identity has been assumed or ten (10) times the amount obtained or attempted to be obtained by the person using the identity theft. This civil penalty is supplemental, cumulative and in addition to any other penalties and relief available under the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, or other laws, regulations or rules.




(e) In any successful action commenced under this part, any ascertainable loss that a person has incurred as a result of a violation of this part, including, but not limited to, the identity theft or misleading, deceptive or unfair practices used to engage in violations of this part shall be recovered as restitution for each such person. The person shall also be awarded statutory interest on that ascertainable loss.




(f) In any successful action commenced by the division under this part, the court shall also order reimbursement to the division of the reasonable attorneys' fees, costs and expenses of the investigation and prosecution under this part.




(g) No court costs, litigation costs, discretionary costs or attorneys' fees shall be taxed or awarded against the state in an action commenced under this part or under the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter.




(h) Any knowing or willful violation of the terms of an injunction or order issued pursuant to this part in an action commenced by the attorney general and reporter shall be punishable by a civil penalty of not more than five thousand dollars ($5,000) for each and every violation of the order recoverable by the state, in addition to any other appropriate relief, including, but not limited to, contempt sanctions and the awarding of attorneys' fees and costs to the state for any filings relating to violations of any order under this part.




(i) An order or judgment issued as a result of an action commenced by the division shall in no way affect individual rights of action which may exist independent of the recovery of money or property received under such order or judgment. If a particular person receives restitution as a result of an action commenced by the attorney general and reporter, those funds shall act only as a set-off against any award of money received in the person's private right of action proceedings.

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47-18-2106. Violation of Tennessee Consumer Protection Act. (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in that act, in addition to the penalties and remedies set forth in this part.




(c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter.
47-18-2106. Violation of Tennessee Consumer Protection Act. (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in that act, in addition to the penalties and remedies set forth in this part.




(c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter.

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47-18-2107. Release of personal consumer information.


(a) As used in this section, unless the context otherwise requires:




(1) “Breach of the security of the system” means unauthorized acquisition of unencrypted computerized data that materially compromises the security, confidentiality, or integrity of personal information maintained by the information holder. Good faith acquisition of personal information by an employee or agent of the information holder for the purposes of the information holder is not a breach of the security of the system; provided, that the personal information is not used or subject to further unauthorized disclosure;




(2) “Information holder” means any person or business that conducts business in this state, or any agency of the state of Tennessee or any of its political subdivisions, that owns or licenses computerized data that includes personal information; and




(3) (A) “Personal information” means an individual's first name or first initial and last name, in combination with any one (1) or more of the following data elements, when either the name or the data elements are not encrypted:




(i) Social security number;




(ii) Driver license number; or




(iii) Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account; and




(B) “Personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.




(b) Any information holder shall disclose any breach of the security of the system, following discovery or notification of the breach in the security of the data, to any resident of Tennessee whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in subsection (d), or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.




(c) Any information holder that maintains computerized data that includes personal information that the information holder does not own shall notify the owner or licensee of the information of any breach of the security of the data immediately following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person.




(d) The notification required by this section may be delayed, if a law enforcement agency determines that the notification will impede a criminal investigation. The notification required by this section shall be made after the law enforcement agency determines that it will not compromise the investigation.




(e) For purposes of this section, notice may be provided by one (1) of the following methods:




(1) Written notice;




(2) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. § 7001; or




(3) Substitute notice, if the information holder demonstrates that the cost of providing notice would exceed two hundred fifty thousand dollars ($250,000), or that the affected class of subject persons to be notified exceeds five hundred thousand (500,000), or the information holder does not have sufficient contact information. Substitute notice shall consist of all of the following:




(A) E-mail notice, when the information holder has an e-mail address for the subject persons;




(B) Conspicuous posting of the notice on the information holder's internet website page, if the information holder maintains such website page; and




(C) Notification to major statewide media.




(f) Notwithstanding subsection (e), an information holder that maintains its own notification procedures as part of an information security policy for the treatment of personal information, and is otherwise consistent with the timing requirements of this section, shall be deemed to be in compliance with the notification requirements of this section, if it notifies subject persons in accordance with its policies in the event of a breach of security of the system.




(g) In the event that a person discovers circumstances requiring notification pursuant to this section of more than one thousand (1,000) persons at one time, the person shall also notify, without unreasonable delay, all consumer reporting agencies and credit bureaus that compile and maintain files on consumers on a nationwide basis, as defined by 15 U.S.C. § 1681a, of the timing, distribution and content of the notices.




(h) Any customer of an information holder who is a person or business entity, but who is not an agency of the state or any political subdivision of the state, and who is injured by a violation of this section, may institute a civil action to recover damages and to enjoin the person or business entity from further action in violation of this section. The rights and remedies available under this section are cumulative to each other and to any other rights and remedies available under law.




(i) The provisions of this section shall not apply to any person who is subject to the provisions of Title V of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102.


47-18-2107. Release of personal consumer information.


(a) As used in this section, unless the context otherwise requires:




(1) “Breach of the security of the system” means unauthorized acquisition of unencrypted computerized data that materially compromises the security, confidentiality, or integrity of personal information maintained by the information holder. Good faith acquisition of personal information by an employee or agent of the information holder for the purposes of the information holder is not a breach of the security of the system; provided, that the personal information is not used or subject to further unauthorized disclosure;




(2) “Information holder” means any person or business that conducts business in this state, or any agency of the state of Tennessee or any of its political subdivisions, that owns or licenses computerized data that includes personal information; and




(3) (A) “Personal information” means an individual's first name or first initial and last name, in combination with any one (1) or more of the following data elements, when either the name or the data elements are not encrypted:




(i) Social security number;




(ii) Driver license number; or




(iii) Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account; and




(B) “Personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.




(b) Any information holder shall disclose any breach of the security of the system, following discovery or notification of the breach in the security of the data, to any resident of Tennessee whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in subsection (d), or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.




(c) Any information holder that maintains computerized data that includes personal information that the information holder does not own shall notify the owner or licensee of the information of any breach of the security of the data immediately following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person.




(d) The notification required by this section may be delayed, if a law enforcement agency determines that the notification will impede a criminal investigation. The notification required by this section shall be made after the law enforcement agency determines that it will not compromise the investigation.




(e) For purposes of this section, notice may be provided by one (1) of the following methods:




(1) Written notice;




(2) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. § 7001; or




(3) Substitute notice, if the information holder demonstrates that the cost of providing notice would exceed two hundred fifty thousand dollars ($250,000), or that the affected class of subject persons to be notified exceeds five hundred thousand (500,000), or the information holder does not have sufficient contact information. Substitute notice shall consist of all of the following:




(A) E-mail notice, when the information holder has an e-mail address for the subject persons;




(B) Conspicuous posting of the notice on the information holder's internet website page, if the information holder maintains such website page; and




(C) Notification to major statewide media.




(f) Notwithstanding subsection (e), an information holder that maintains its own notification procedures as part of an information security policy for the treatment of personal information, and is otherwise consistent with the timing requirements of this section, shall be deemed to be in compliance with the notification requirements of this section, if it notifies subject persons in accordance with its policies in the event of a breach of security of the system.




(g) In the event that a person discovers circumstances requiring notification pursuant to this section of more than one thousand (1,000) persons at one time, the person shall also notify, without unreasonable delay, all consumer reporting agencies and credit bureaus that compile and maintain files on consumers on a nationwide basis, as defined by 15 U.S.C. § 1681a, of the timing, distribution and content of the notices.




(h) Any customer of an information holder who is a person or business entity, but who is not an agency of the state or any political subdivision of the state, and who is injured by a violation of this section, may institute a civil action to recover damages and to enjoin the person or business entity from further action in violation of this section. The rights and remedies available under this section are cumulative to each other and to any other rights and remedies available under law.




(i) The provisions of this section shall not apply to any person who is subject to the provisions of Title V of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102.

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47-18-2108. Security freeze at the request of the consumer.


(a) A Tennessee consumer may place a security freeze on the consumer report of the Tennessee consumer by making a request in writing by certified mail. Beginning on January 31, 2009, a credit reporting agency shall make available an electronic method for requesting a security freeze. A security freeze shall prohibit the consumer reporting agency from releasing the requesting party's consumer report or credit score relating to the extension of credit without the express authorization of the Tennessee consumer. Nothing in this section shall prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to a particular consumer report.




(b) A consumer reporting agency shall place a security freeze on a consumer report no later than three (3) business days after receiving the written or electronic request from the Tennessee consumer.




(c) The consumer reporting agency shall send a written confirmation of the security freeze to the Tennessee consumer within ten (10) business days of placing the security freeze on the consumer report, and shall provide the Tennessee consumer with a unique personal identification number or password, other than the Tennessee consumer's federal social security number, to be used by the Tennessee consumer when providing authorization for the release of the consumer report for a specific period of time or for permanently removing the security freeze.




(d) If the Tennessee consumer wishes to allow the consumer report to be accessed for a specific period of time while a freeze is in place, the Tennessee consumer shall contact the consumer reporting agency, request that the freeze be temporarily lifted, and provide the following:




(1) Proper identification;




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section; and




(3) The information requested by the consumer reporting agency about the period for which the consumer report is to be available.




(e) A consumer reporting agency shall develop procedures involving the use of telephone, the Internet, or other electronic method to receive and process a request from a Tennessee consumer to temporarily lift a freeze on a credit report pursuant to this section in an expedited manner. A consumer reporting agency may develop procedures involving the use of facsimile for this purpose.




(f) A consumer reporting agency shall comply with a request to temporarily lift a freeze previously placed on a consumer report no later than fifteen (15) minutes after receiving the request through an electronic contact method in accordance with this section and the request is received between 6:00 a.m. and 9:30 p.m., seven (7) days per week, eastern or central standard or daylight time as applicable to the consumer. In requesting a temporary removal of the security freeze, a Tennessee consumer shall provide both of the following:




(1) Proper identification; and




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section.




(g) A consumer reporting agency is not required to temporarily lift a security freeze within the time provided in subsection (f) if:




(1) The consumer fails to meet the requirements of subsection (d); or




(2) The consumer reporting agency's ability to temporarily lift the security freeze within fifteen (15) minutes is prevented by:




(A) An act of God, including fire, earthquakes, hurricanes, storms, or similar natural disaster or phenomenon;




(B) Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations, or similar occurrence;




(C) Operational interruption including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failures inhibiting response time, or similar disruption;




(D) Governmental action, including emergency orders or regulations, judicial or law enforcement action, or similar directives;




(E) Regularly scheduled maintenance, during other than normal business hours, of, or updates to, the consumer reporting agency's systems; or




(F) Commercially reasonable maintenance of or repair to, the consumer reporting agency's systems that is unexpected or unscheduled.




(h) If a third party requests access to a consumer report on which a security freeze is in effect and the Tennessee consumer does not allow the third party access to the consumer report, the third party may treat any applicable credit application made by the consumer as incomplete.




(i) If a Tennessee consumer requests a security freeze pursuant to this section, the consumer reporting agency shall disclose to the Tennessee consumer the process of placing and temporarily lifting a security freeze and the process for allowing access to information from the consumer report for a specific period of time while the security freeze is in place.




(j) Except as provided in subsections (d), (e), and (f), a security freeze shall remain in place until the Tennessee consumer requests that the security freeze be removed permanently. A consumer reporting agency shall permanently remove a security freeze no later than two (2) business days from the receipt of a request by the agency when a Tennessee consumer makes the request by means involving the use of telephone, the Internet, or other electronic media as provided by the consumer reporting agency. In making the request, the Tennessee consumer shall provide both of the following:




(1) Proper identification; and




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section.




(k) If a security freeze is in place, a consumer credit reporting agency shall not change any of the following official information in a consumer credit report without sending a written confirmation of the change to the consumer not later than thirty (30) days of the change being posted to the consumer's file: name, date of birth, social security number, and address. Written confirmation is not required for technical modifications of a consumer's official information, including name and street abbreviations, complete spellings or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and to the former address.




(l) A consumer reporting agency may charge a Tennessee consumer a reasonable fee, not to exceed seven dollars and fifty cents ($7.50), for the placement of a security freeze. A consumer reporting agency may not charge a Tennessee consumer to temporarily lift a security freeze. A consumer reporting agency may charge a consumer a reasonable fee, not to exceed five dollars ($5.00), to permanently remove a security freeze, or to replace a personal identification number or password. A consumer reporting agency may not charge a Tennessee consumer to place or permanently remove a security freeze if that Tennessee consumer is a victim of identity theft as defined in § 47-18-2102 or other Tennessee law or federal law regarding identity theft and presents to the consumer reporting agency, at the time the request is made, a police report or other official document acceptable to the consumer reporting agency detailing the theft. Beginning on January 1, 2010, and on January 1 of each subsequent year, a consumer reporting agency may increase the fees set forth in this section based proportionally on changes to the consumer price index of all urban consumers, as determined by the United States department of labor, with fractional changes rounded to the nearest twenty-five cents (25¢).




(m) This section, including the security freeze, does not apply to the use of a consumer report by the following:




(1) A person, or that person's subsidiary, affiliate, agent or assignee, if the Tennessee consumer has an account, contract, or debtor-creditor relationship with that person, for the purposes of reviewing the account, collecting the financial obligation of the consumer, fraud control or extending additional credit to the Tennessee consumer. For purposes of this subdivision (m)(1), “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements;




(2) A subsidiary, affiliate, agent or assignee of a party or parties for whom a security freeze has been temporarily lifted pursuant to this section for the purpose of facilitating the extension of credit or other permissible use;




(3) Any person, including, but not limited to, a law enforcement entity, collections officer or private collection agency, acting pursuant to a court order, warrant or subpoena authorizing the use of the consumer report, or acting pursuant to a civil investigative demand or request for consumer protection information;




(4) Any department or division of the state that is acting to investigate a child support case, medicaid or TennCare fraud, delinquent taxes or assessments, unpaid court orders or settlements of any sort or type, or to fulfill of any of their statutory or other duties;




(5) For the purposes of prescreening as provided by the federal Fair Credit Reporting Act, compiled in 15 U.S.C. § 1681;




(6) Any person for the purpose of providing a credit file monitoring subscription service to which the Tennessee consumer has subscribed;




(7) A consumer reporting agency for the sole purpose of providing a Tennessee consumer with a copy of the consumer report upon the Tennessee consumer's request;




(8) Any person or entity for the purpose of setting or adjusting a rate, adjusting a claim, or underwriting for insurance purposes;




(9) A pension plan acting to determine the Tennessee consumer's eligibility for plan benefits or payments authorized by law or to investigate fraud;




(10) Any law enforcement entity or its agent acting to investigate a crime or civil law violation, conduct a criminal background check, conduct a presentence investigation in a criminal matter or use the information for supervision of a paroled offender;




(11) A licensed hospital with which the Tennessee consumer has or had a contract or a debtor-creditor relationship for the purpose of reviewing the account or collecting the financial obligation owing for the contract, account, or debt; or




(12) An attorney at law duly licensed in Tennessee representing any person, subsidiary, affiliate, agent, assignee, department, division, or other entity to whom the provisions of this section do not apply.




(n) The following entities are not subject to the requirements of this section; provided, however, that each such entity shall be subject to any security freeze placed on a consumer report by a consumer reporting agency from which it obtains information:




(1) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer credit reporting agencies, and does not maintain a permanent data base of credit information from which new consumer credit reports are produced; however, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer credit report by another consumer reporting agency;




(2) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payments;




(3) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse, or similar negative information regarding a Tennessee consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution; and




(4) A consumer reporting agency's database or file that consists of information concerning, and used for, one (1) or more of the following: criminal record information, fraud prevention or detection, personal loss history information, and employment, tenant, or individual background screening.




(o) Exclusive of all other private and nongovernmental remedies that may be imposed, any person who fails to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of:




(1) (A) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure, or damages of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law; or




(B) In the case of liability of a natural person for obtaining a consumer report under false pretenses without a permissible purpose, ascertainable losses sustained by the consumer as a result of the failure or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law;




(2) An amount of punitive damages that the court may allow in a private right of action or other nongovernmental action; and




(3) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.




(p) Any person who obtains a consumer report, requests a security freeze, requests the temporary lift of a freeze, or the removal of a security freeze from a consumer reporting agency under false pretenses or in an attempt to violate federal or state law shall be liable to the consumer reporting agency for ascertainable losses sustained by the consumer reporting agency or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law.




(q) In addition to any other governmental remedies available at law, any person who is negligent in failing to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of:




(1) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure; and




(2) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.




(r) Upon a finding by the court that an unsuccessful, nongovernmental pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorneys' fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.




(s) Notwithstanding any other provision of this section, the sole power to enforce violations of subsection (f) shall be with the attorney general and reporter.


47-18-2108. Security freeze at the request of the consumer.


(a) A Tennessee consumer may place a security freeze on the consumer report of the Tennessee consumer by making a request in writing by certified mail. Beginning on January 31, 2009, a credit reporting agency shall make available an electronic method for requesting a security freeze. A security freeze shall prohibit the consumer reporting agency from releasing the requesting party's consumer report or credit score relating to the extension of credit without the express authorization of the Tennessee consumer. Nothing in this section shall prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to a particular consumer report.




(b) A consumer reporting agency shall place a security freeze on a consumer report no later than three (3) business days after receiving the written or electronic request from the Tennessee consumer.




(c) The consumer reporting agency shall send a written confirmation of the security freeze to the Tennessee consumer within ten (10) business days of placing the security freeze on the consumer report, and shall provide the Tennessee consumer with a unique personal identification number or password, other than the Tennessee consumer's federal social security number, to be used by the Tennessee consumer when providing authorization for the release of the consumer report for a specific period of time or for permanently removing the security freeze.




(d) If the Tennessee consumer wishes to allow the consumer report to be accessed for a specific period of time while a freeze is in place, the Tennessee consumer shall contact the consumer reporting agency, request that the freeze be temporarily lifted, and provide the following:




(1) Proper identification;




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section; and




(3) The information requested by the consumer reporting agency about the period for which the consumer report is to be available.




(e) A consumer reporting agency shall develop procedures involving the use of telephone, the Internet, or other electronic method to receive and process a request from a Tennessee consumer to temporarily lift a freeze on a credit report pursuant to this section in an expedited manner. A consumer reporting agency may develop procedures involving the use of facsimile for this purpose.




(f) A consumer reporting agency shall comply with a request to temporarily lift a freeze previously placed on a consumer report no later than fifteen (15) minutes after receiving the request through an electronic contact method in accordance with this section and the request is received between 6:00 a.m. and 9:30 p.m., seven (7) days per week, eastern or central standard or daylight time as applicable to the consumer. In requesting a temporary removal of the security freeze, a Tennessee consumer shall provide both of the following:




(1) Proper identification; and




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section.




(g) A consumer reporting agency is not required to temporarily lift a security freeze within the time provided in subsection (f) if:




(1) The consumer fails to meet the requirements of subsection (d); or




(2) The consumer reporting agency's ability to temporarily lift the security freeze within fifteen (15) minutes is prevented by:




(A) An act of God, including fire, earthquakes, hurricanes, storms, or similar natural disaster or phenomenon;




(B) Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations, or similar occurrence;




(C) Operational interruption including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failures inhibiting response time, or similar disruption;




(D) Governmental action, including emergency orders or regulations, judicial or law enforcement action, or similar directives;




(E) Regularly scheduled maintenance, during other than normal business hours, of, or updates to, the consumer reporting agency's systems; or




(F) Commercially reasonable maintenance of or repair to, the consumer reporting agency's systems that is unexpected or unscheduled.




(h) If a third party requests access to a consumer report on which a security freeze is in effect and the Tennessee consumer does not allow the third party access to the consumer report, the third party may treat any applicable credit application made by the consumer as incomplete.




(i) If a Tennessee consumer requests a security freeze pursuant to this section, the consumer reporting agency shall disclose to the Tennessee consumer the process of placing and temporarily lifting a security freeze and the process for allowing access to information from the consumer report for a specific period of time while the security freeze is in place.




(j) Except as provided in subsections (d), (e), and (f), a security freeze shall remain in place until the Tennessee consumer requests that the security freeze be removed permanently. A consumer reporting agency shall permanently remove a security freeze no later than two (2) business days from the receipt of a request by the agency when a Tennessee consumer makes the request by means involving the use of telephone, the Internet, or other electronic media as provided by the consumer reporting agency. In making the request, the Tennessee consumer shall provide both of the following:




(1) Proper identification; and




(2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section.




(k) If a security freeze is in place, a consumer credit reporting agency shall not change any of the following official information in a consumer credit report without sending a written confirmation of the change to the consumer not later than thirty (30) days of the change being posted to the consumer's file: name, date of birth, social security number, and address. Written confirmation is not required for technical modifications of a consumer's official information, including name and street abbreviations, complete spellings or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and to the former address.




(l) A consumer reporting agency may charge a Tennessee consumer a reasonable fee, not to exceed seven dollars and fifty cents ($7.50), for the placement of a security freeze. A consumer reporting agency may not charge a Tennessee consumer to temporarily lift a security freeze. A consumer reporting agency may charge a consumer a reasonable fee, not to exceed five dollars ($5.00), to permanently remove a security freeze, or to replace a personal identification number or password. A consumer reporting agency may not charge a Tennessee consumer to place or permanently remove a security freeze if that Tennessee consumer is a victim of identity theft as defined in § 47-18-2102 or other Tennessee law or federal law regarding identity theft and presents to the consumer reporting agency, at the time the request is made, a police report or other official document acceptable to the consumer reporting agency detailing the theft. Beginning on January 1, 2010, and on January 1 of each subsequent year, a consumer reporting agency may increase the fees set forth in this section based proportionally on changes to the consumer price index of all urban consumers, as determined by the United States department of labor, with fractional changes rounded to the nearest twenty-five cents (25¢).




(m) This section, including the security freeze, does not apply to the use of a consumer report by the following:




(1) A person, or that person's subsidiary, affiliate, agent or assignee, if the Tennessee consumer has an account, contract, or debtor-creditor relationship with that person, for the purposes of reviewing the account, collecting the financial obligation of the consumer, fraud control or extending additional credit to the Tennessee consumer. For purposes of this subdivision (m)(1), “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements;




(2) A subsidiary, affiliate, agent or assignee of a party or parties for whom a security freeze has been temporarily lifted pursuant to this section for the purpose of facilitating the extension of credit or other permissible use;




(3) Any person, including, but not limited to, a law enforcement entity, collections officer or private collection agency, acting pursuant to a court order, warrant or subpoena authorizing the use of the consumer report, or acting pursuant to a civil investigative demand or request for consumer protection information;




(4) Any department or division of the state that is acting to investigate a child support case, medicaid or TennCare fraud, delinquent taxes or assessments, unpaid court orders or settlements of any sort or type, or to fulfill of any of their statutory or other duties;




(5) For the purposes of prescreening as provided by the federal Fair Credit Reporting Act, compiled in 15 U.S.C. § 1681;




(6) Any person for the purpose of providing a credit file monitoring subscription service to which the Tennessee consumer has subscribed;




(7) A consumer reporting agency for the sole purpose of providing a Tennessee consumer with a copy of the consumer report upon the Tennessee consumer's request;




(8) Any person or entity for the purpose of setting or adjusting a rate, adjusting a claim, or underwriting for insurance purposes;




(9) A pension plan acting to determine the Tennessee consumer's eligibility for plan benefits or payments authorized by law or to investigate fraud;




(10) Any law enforcement entity or its agent acting to investigate a crime or civil law violation, conduct a criminal background check, conduct a presentence investigation in a criminal matter or use the information for supervision of a paroled offender;




(11) A licensed hospital with which the Tennessee consumer has or had a contract or a debtor-creditor relationship for the purpose of reviewing the account or collecting the financial obligation owing for the contract, account, or debt; or




(12) An attorney at law duly licensed in Tennessee representing any person, subsidiary, affiliate, agent, assignee, department, division, or other entity to whom the provisions of this section do not apply.




(n) The following entities are not subject to the requirements of this section; provided, however, that each such entity shall be subject to any security freeze placed on a consumer report by a consumer reporting agency from which it obtains information:




(1) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer credit reporting agencies, and does not maintain a permanent data base of credit information from which new consumer credit reports are produced; however, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer credit report by another consumer reporting agency;




(2) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payments;




(3) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse, or similar negative information regarding a Tennessee consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution; and




(4) A consumer reporting agency's database or file that consists of information concerning, and used for, one (1) or more of the following: criminal record information, fraud prevention or detection, personal loss history information, and employment, tenant, or individual background screening.




(o) Exclusive of all other private and nongovernmental remedies that may be imposed, any person who fails to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of:




(1) (A) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure, or damages of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law; or




(B) In the case of liability of a natural person for obtaining a consumer report under false pretenses without a permissible purpose, ascertainable losses sustained by the consumer as a result of the failure or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law;




(2) An amount of punitive damages that the court may allow in a private right of action or other nongovernmental action; and




(3) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.




(p) Any person who obtains a consumer report, requests a security freeze, requests the temporary lift of a freeze, or the removal of a security freeze from a consumer reporting agency under false pretenses or in an attempt to violate federal or state law shall be liable to the consumer reporting agency for ascertainable losses sustained by the consumer reporting agency or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law.




(q) In addition to any other governmental remedies available at law, any person who is negligent in failing to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of:




(1) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure; and




(2) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.




(r) Upon a finding by the court that an unsuccessful, nongovernmental pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorneys' fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.




(s) Notwithstanding any other provision of this section, the sole power to enforce violations of subsection (f) shall be with the attorney general and reporter.

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47-18-2109. Notice to consumer regarding security freeze.

At any time that a Tennessee consumer is required to receive a summary of rights required by 15 U.S.C. § 1681g(d) of the federal Fair Credit Reporting Act, the Tennessee consumer shall also be provided with the following prominent, clear and conspicuous notice in at least twelve (12) point type:





Click to view TENNESSEE CONSUMERS HAVE THE RIGHT TO OBTAIN A SECURITY FREEZE
47-18-2109. Notice to consumer regarding security freeze.

At any time that a Tennessee consumer is required to receive a summary of rights required by 15 U.S.C. § 1681g(d) of the federal Fair Credit Reporting Act, the Tennessee consumer shall also be provided with the following prominent, clear and conspicuous notice in at least twelve (12) point type:





Click to view TENNESSEE CONSUMERS HAVE THE RIGHT TO OBTAIN A SECURITY FREEZE

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47-18-2110. Protecting social security numbers from disclosure.

(a) On and after January 1, 2008, any person, nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, that has obtained a federal social security number for a legitimate business or governmental purpose shall make reasonable efforts to protect that social security number from disclosure to the public. Social security numbers shall not:




(1) Be posted or displayed in public;




(2) Be required to be transmitted over the Internet, unless the Internet connection used is secure or the social security number is encrypted;




(3) Be required to log onto or access an Internet website, unless used in combination with a password or other authentication device;




(4) Be printed on any materials mailed to a consumer, unless the disclosure is required by law, or the document is a form or application; or




(5) Be printed on any card, identification or badge that the consumer must display or present in order to receive a benefit, good, service or other thing of value to which the consumer is entitled based upon the consumer's contract or other agreement with the entity issuing the card, identification or badge.




(b) The requirements established pursuant to subsection (a) do not apply to the disclosure of a federal social security number by an entity so long as the disclosure is for a legitimate business or governmental purpose and occurs pursuant to the terms of a business or governmental contract or other lawful legal obligation.




(c) On and after January 1, 2009, a violation of subsection (a) is a Class B misdemeanor. Each violation of subsection (a) shall constitute a separate offense.




(d) In addition to the criminal offense created pursuant to subsections (a) and (b), on and after January 1, 2009, it is also a civil violation of this part, subject to the penalty provided in this part, for any person, any nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, to violate any of the prohibitions of subsection (a).




(e) Any state agency or nonprofit or for profit business entity engaged in the provision of health care services under Title XIX, including determining eligibility for Title XIX services, shall be exempted from the requirements of subsections (a) and (b).
47-18-2110. Protecting social security numbers from disclosure.

(a) On and after January 1, 2008, any person, nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, that has obtained a federal social security number for a legitimate business or governmental purpose shall make reasonable efforts to protect that social security number from disclosure to the public. Social security numbers shall not:




(1) Be posted or displayed in public;




(2) Be required to be transmitted over the Internet, unless the Internet connection used is secure or the social security number is encrypted;




(3) Be required to log onto or access an Internet website, unless used in combination with a password or other authentication device;




(4) Be printed on any materials mailed to a consumer, unless the disclosure is required by law, or the document is a form or application; or




(5) Be printed on any card, identification or badge that the consumer must display or present in order to receive a benefit, good, service or other thing of value to which the consumer is entitled based upon the consumer's contract or other agreement with the entity issuing the card, identification or badge.




(b) The requirements established pursuant to subsection (a) do not apply to the disclosure of a federal social security number by an entity so long as the disclosure is for a legitimate business or governmental purpose and occurs pursuant to the terms of a business or governmental contract or other lawful legal obligation.




(c) On and after January 1, 2009, a violation of subsection (a) is a Class B misdemeanor. Each violation of subsection (a) shall constitute a separate offense.




(d) In addition to the criminal offense created pursuant to subsections (a) and (b), on and after January 1, 2009, it is also a civil violation of this part, subject to the penalty provided in this part, for any person, any nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, to violate any of the prohibitions of subsection (a).




(e) Any state agency or nonprofit or for profit business entity engaged in the provision of health care services under Title XIX, including determining eligibility for Title XIX services, shall be exempted from the requirements of subsections (a) and (b).

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47-18-2201. Short title. This part shall be known and may be cited as the “Video Consumer Privacy Act.”47-18-2201. Short title. This part shall be known and may be cited as the “Video Consumer Privacy Act.”

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47-18-2202. Legislature findings and intent.


(a) The general assembly finds and declares that the viewing of rented video tapes and movies in the home is a popular and widespread leisure pastime. Innumerable retail establishments in this state commonly record, often by computer, data containing the identities of consumers who have rented video tapes and movies and the titles of the videos rented.




(b) It is the intent of the general assembly by enactment of this part to protect the personal privacy of individuals and their families who rent video cassette tapes and movies and similar audio visual materials, without unreasonably restricting the ability of video tape service providers to collect and use information as is necessary to conducting their business.


47-18-2202. Legislature findings and intent.


(a) The general assembly finds and declares that the viewing of rented video tapes and movies in the home is a popular and widespread leisure pastime. Innumerable retail establishments in this state commonly record, often by computer, data containing the identities of consumers who have rented video tapes and movies and the titles of the videos rented.




(b) It is the intent of the general assembly by enactment of this part to protect the personal privacy of individuals and their families who rent video cassette tapes and movies and similar audio visual materials, without unreasonably restricting the ability of video tape service providers to collect and use information as is necessary to conducting their business.

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47-18-2203. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Consumer” means any renter, purchaser, or subscriber of goods or services from a video tape service provider or video tape seller;




(2) “Informed, written consent of the consumer” means that the video tape service provider, prior to furnishing any video tape services, shall offer the consumer an opportunity to elect not to have personally identifiable information disclosed. Such notice shall be in writing in at least ten point (10 pt.) bold face type, affixed to any membership, subscriber or rental agreement between the consumer and the video tape service provider, and shall be posted on a sign in full and clear view of the consumer at the point of rental transaction, and shall read as follows:




“This video tape service provider from time to time provides to marketers of goods and services, the names and addresses of customers and a description or subject matter of materials rented by video customers. You have the right to elect not to have your name, address or the description or subject matter of any material rented included in such description or subject matter of any material rented included in such lists. This election may be changed by you, in writing, at any time.”;




(3) “Ordinary course of business” means only debt collection activities, order fulfillment, request processing, and the transfer of ownership;




(4) “Personally identifiable information” means any information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider or video tape seller;




(5) “Video tape seller” means any person engaged in the business of selling prerecorded video cassette tapes or similar audio visual materials; and




(6) “Video tape service provider” means any person engaged in the business of rental of prerecorded video cassette tapes or similar audio visual materials.
47-18-2203. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Consumer” means any renter, purchaser, or subscriber of goods or services from a video tape service provider or video tape seller;




(2) “Informed, written consent of the consumer” means that the video tape service provider, prior to furnishing any video tape services, shall offer the consumer an opportunity to elect not to have personally identifiable information disclosed. Such notice shall be in writing in at least ten point (10 pt.) bold face type, affixed to any membership, subscriber or rental agreement between the consumer and the video tape service provider, and shall be posted on a sign in full and clear view of the consumer at the point of rental transaction, and shall read as follows:




“This video tape service provider from time to time provides to marketers of goods and services, the names and addresses of customers and a description or subject matter of materials rented by video customers. You have the right to elect not to have your name, address or the description or subject matter of any material rented included in such description or subject matter of any material rented included in such lists. This election may be changed by you, in writing, at any time.”;




(3) “Ordinary course of business” means only debt collection activities, order fulfillment, request processing, and the transfer of ownership;




(4) “Personally identifiable information” means any information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider or video tape seller;




(5) “Video tape seller” means any person engaged in the business of selling prerecorded video cassette tapes or similar audio visual materials; and




(6) “Video tape service provider” means any person engaged in the business of rental of prerecorded video cassette tapes or similar audio visual materials.

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47-18-2204. Disclosure by seller or service provider of personally identifiable information concerning consumers.

(a) A video tape seller or service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in § 47-18-2205.




(b) (1) A video tape seller or service provider shall disclose personally identifiable information concerning any consumer:




(A) To a grand jury pursuant to a grand jury subpoena;




(B) Pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, or in a criminal proceeding upon a showing of legitimate need for the information that cannot be accommodated by any other means, if:




(i) The consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order;




(ii) The consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure; and




(iii) The court imposes appropriate safeguards against unauthorized disclosure;




(C) To a law enforcement agency pursuant to a warrant lawfully obtained under the laws of this state or the United States; or




(D) To a court pursuant to a civil action commenced by the video tape seller or service provider or to enforce collection of fines for overdue or unreturned video tapes, and then only to the extent necessary to establish the fact of the rental. Notwithstanding the foregoing, a court shall impose appropriate safeguards against unauthorized disclosure.




(2) In addition, if the consumer is a minor under eighteen (18) years of age, a video tape seller or service provider shall disclose to the minor's parent or legal guardian personally identifiable information concerning the minor upon receiving a request from the parent or legal guardian for such information.




(c) A video tape service seller or provider may disclose personally identifiable information concerning any consumer to:




(1) The consumer;




(2) Any person with the informed, written consent of the consumer; or




(3) Any person if the disclosure is incidental to the ordinary course of business of the video tape service provider or seller; and




(4) Any person if the disclosure is for the exclusive use of marketing goods and services directly to the consumer, and the video tape service seller or provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure.




(d) Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the state or any political subdivision thereof.




(e) A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one (1) year from the date the information is no longer necessary for the purpose for which it was collected unless a request or order for access to such information under this part is pending.
47-18-2204. Disclosure by seller or service provider of personally identifiable information concerning consumers.

(a) A video tape seller or service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in § 47-18-2205.




(b) (1) A video tape seller or service provider shall disclose personally identifiable information concerning any consumer:




(A) To a grand jury pursuant to a grand jury subpoena;




(B) Pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, or in a criminal proceeding upon a showing of legitimate need for the information that cannot be accommodated by any other means, if:




(i) The consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order;




(ii) The consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure; and




(iii) The court imposes appropriate safeguards against unauthorized disclosure;




(C) To a law enforcement agency pursuant to a warrant lawfully obtained under the laws of this state or the United States; or




(D) To a court pursuant to a civil action commenced by the video tape seller or service provider or to enforce collection of fines for overdue or unreturned video tapes, and then only to the extent necessary to establish the fact of the rental. Notwithstanding the foregoing, a court shall impose appropriate safeguards against unauthorized disclosure.




(2) In addition, if the consumer is a minor under eighteen (18) years of age, a video tape seller or service provider shall disclose to the minor's parent or legal guardian personally identifiable information concerning the minor upon receiving a request from the parent or legal guardian for such information.




(c) A video tape service seller or provider may disclose personally identifiable information concerning any consumer to:




(1) The consumer;




(2) Any person with the informed, written consent of the consumer; or




(3) Any person if the disclosure is incidental to the ordinary course of business of the video tape service provider or seller; and




(4) Any person if the disclosure is for the exclusive use of marketing goods and services directly to the consumer, and the video tape service seller or provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure.




(d) Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the state or any political subdivision thereof.




(e) A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one (1) year from the date the information is no longer necessary for the purpose for which it was collected unless a request or order for access to such information under this part is pending.

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47-18-2205. Liability for damages.



Any person found to be in violation of this part shall be liable to the aggrieved consumer for all actual damages sustained by such consumer as a result of the violation.


47-18-2205. Liability for damages.



Any person found to be in violation of this part shall be liable to the aggrieved consumer for all actual damages sustained by such consumer as a result of the violation.

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47-18-2401. Notice requirements for unsolicited loans.


Unless otherwise agreed, where unsolicited mail that resembles a check is, upon endorsement by the payee, a loan, the payee is under no duty to repay such loan unless such unsolicited mail has upon its face in boldface letters at least one-half inch (½²) in height the following:




THIS IS A LOAN.


47-18-2401. Notice requirements for unsolicited loans.


Unless otherwise agreed, where unsolicited mail that resembles a check is, upon endorsement by the payee, a loan, the payee is under no duty to repay such loan unless such unsolicited mail has upon its face in boldface letters at least one-half inch (½²) in height the following:




THIS IS A LOAN.

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47-18-2402. Failure to provide notice a defense to collection action.


In any action for the collection of the balance due on an unsolicited loan received by mail that resembles a check, it shall be a complete defense that such unsolicited loan was not actually requested by the defendant and such mail did not have upon its face the language required by § 47-18-2401.


47-18-2402. Failure to provide notice a defense to collection action.


In any action for the collection of the balance due on an unsolicited loan received by mail that resembles a check, it shall be a complete defense that such unsolicited loan was not actually requested by the defendant and such mail did not have upon its face the language required by § 47-18-2401.

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47-18-2403. Violation of part constituting unfair or deceptive trade practice.


A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purposes of the application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and shall be subject to the penalties and remedies as provided in that act.


47-18-2403. Violation of part constituting unfair or deceptive trade practice.


A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purposes of the application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and shall be subject to the penalties and remedies as provided in that act.

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47-18-2404. Notices and obligations — Application — Damages.


(a) (1) Any solicitation to lend money to a person for the consolidation or payment of other indebtedness which will result in that person's owner-occupied residence becoming collateral or security for the loan or payment of money shall clearly state, in bold face type at least as large as any used in the solicitation otherwise, or by a separate clearly stated written notice, in bold face type at least ten (10) points, the following:




(A) Failure to make timely payments or to repay the loan will result in the borrower's home being subject to foreclosure; and




(B) Additional information on debt consolidation loans is available from the department of commerce and insurance, division of consumer affairs at 1-800-342-8385.




(2) Such solicitation shall, in like manner, state either one (1) of the following, as appropriate:




(A) It is the obligation of the lender to make payments to prior lenders; or




(B) It is the obligation of the borrower to make payments to prior lenders.




(b) The provisions of this section shall apply to all solicitations, whether made through the mails, in person, by telephone, fax, or electronically, or through any other agency or medium to a resident of the state. If the solicitation is made in person or by telephone, then the person making the solicitation shall clearly express the notices and obligations required to be given under the provisions of subdivisions (a)(1) and (2).




(c) Failure to comply with the provisions of this section shall subject the lender to damages up to three (3) times the amount of actual damages pursuant to § 47-18-109.




(d) The notices and obligations described in subsection (a) shall be clearly expressed in any debt consolidation contract or loan agreement consolidating such loans, in bold face type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the borrower.




(e) The provisions of this section shall not apply to any state or national bank, credit union, savings and loan, or to any subsidiary or affiliate of any such state or national bank, credit union, savings and loan or any person or entity licensed by or subject to regulation by the department of financial institutions.


47-18-2404. Notices and obligations — Application — Damages.


(a) (1) Any solicitation to lend money to a person for the consolidation or payment of other indebtedness which will result in that person's owner-occupied residence becoming collateral or security for the loan or payment of money shall clearly state, in bold face type at least as large as any used in the solicitation otherwise, or by a separate clearly stated written notice, in bold face type at least ten (10) points, the following:




(A) Failure to make timely payments or to repay the loan will result in the borrower's home being subject to foreclosure; and




(B) Additional information on debt consolidation loans is available from the department of commerce and insurance, division of consumer affairs at 1-800-342-8385.




(2) Such solicitation shall, in like manner, state either one (1) of the following, as appropriate:




(A) It is the obligation of the lender to make payments to prior lenders; or




(B) It is the obligation of the borrower to make payments to prior lenders.




(b) The provisions of this section shall apply to all solicitations, whether made through the mails, in person, by telephone, fax, or electronically, or through any other agency or medium to a resident of the state. If the solicitation is made in person or by telephone, then the person making the solicitation shall clearly express the notices and obligations required to be given under the provisions of subdivisions (a)(1) and (2).




(c) Failure to comply with the provisions of this section shall subject the lender to damages up to three (3) times the amount of actual damages pursuant to § 47-18-109.




(d) The notices and obligations described in subsection (a) shall be clearly expressed in any debt consolidation contract or loan agreement consolidating such loans, in bold face type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the borrower.




(e) The provisions of this section shall not apply to any state or national bank, credit union, savings and loan, or to any subsidiary or affiliate of any such state or national bank, credit union, savings and loan or any person or entity licensed by or subject to regulation by the department of financial institutions.

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47-18-2501. Regulation of unsolicited electronic advertising — Falsification of electronic mail transmission information prohibited — Institution of actions and damages.


(a) No person or entity conducting business in this state shall send by e-mail or cause to be e-mailed, documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless that person or entity shall establish a toll-free telephone number or return e-mail address that a recipient of the unsolicited e-mailed documents may call to notify the sender not to e-mail the recipient any further unsolicited documents.




(b) [Deleted by 2003 amendment.]




(c) Upon notification by a recipient of the recipient's request not to receive any further unsolicited e-mailed documents, no person or entity conducting business in this state shall e-mail or cause to be e-mailed, any unsolicited documents to that recipient.




(d) A person or entity sending an unsolicited email shall establish a toll-free telephone number or valid sender operated return e-mail address that the recipient of the unsolicited documents may call or e-mail to notify the sender not to e-mail any further unsolicited documents.




(e) If e-mail that consists of unsolicited advertising material for the lease, sale, rental, gift offer or other disposition of any realty, goods, services or extension of credit, the subject line of each and every message shall include “ADV:” as the first four (4) characters. If these messages contain information that consists of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen (18) years of age or older, the subject line of each and every message shall include “ADV:ADLT” as the first eight (8) characters.




(f) In the case of unsolicited bulk e-mail, this section shall apply when the unsolicited e-mailed documents are delivered to a Tennessee resident via an electronic mail service provider's service or equipment located in this state. For these purposes, “electronic mail service provider” means any business or organization qualified to do business in this state that provides individuals, corporations, or other entities the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail.




(g) It is unlawful for any person to sell, give or otherwise distribute or possess with the intent to sell, give or distribute software which:




(1) Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;




(2) Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or




(3) Is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.




(h) As used in this section, “e-mail” or “cause to be e-mailed” does not include or refer to the transmission of any documents by the telecommunications utility or Internet service provider to the extent that the telecommunications utility or Internet service provider merely carries that transmission over its network.




(i) (1) Any person whose property or person is injured by reason of a violation of any provision of this section may sue therefor and recover for any damages sustained, and the costs of such suit. Without limiting the generality of the term, “damages” includes loss of profits.




(2) If the injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day. The injured person shall not have a cause of action against the electronic mail service provider that merely transmitted the unsolicited bulk electronic mail over its computer network.




(3) If the injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day.




(4) At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party.




(5) The provisions of this subsection shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.




(j) The provisions of this section shall not be construed to restrict or apply to constitutionally protected communications to and from citizens and their elected representatives.




(k) This section, or any part of this section, shall become inoperative on and after the date that federal law is enacted that prohibits or otherwise regulates the transmission of unsolicited advertising by electronic mail (e-mail).


47-18-2501. Regulation of unsolicited electronic advertising — Falsification of electronic mail transmission information prohibited — Institution of actions and damages.


(a) No person or entity conducting business in this state shall send by e-mail or cause to be e-mailed, documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless that person or entity shall establish a toll-free telephone number or return e-mail address that a recipient of the unsolicited e-mailed documents may call to notify the sender not to e-mail the recipient any further unsolicited documents.




(b) [Deleted by 2003 amendment.]




(c) Upon notification by a recipient of the recipient's request not to receive any further unsolicited e-mailed documents, no person or entity conducting business in this state shall e-mail or cause to be e-mailed, any unsolicited documents to that recipient.




(d) A person or entity sending an unsolicited email shall establish a toll-free telephone number or valid sender operated return e-mail address that the recipient of the unsolicited documents may call or e-mail to notify the sender not to e-mail any further unsolicited documents.




(e) If e-mail that consists of unsolicited advertising material for the lease, sale, rental, gift offer or other disposition of any realty, goods, services or extension of credit, the subject line of each and every message shall include “ADV:” as the first four (4) characters. If these messages contain information that consists of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen (18) years of age or older, the subject line of each and every message shall include “ADV:ADLT” as the first eight (8) characters.




(f) In the case of unsolicited bulk e-mail, this section shall apply when the unsolicited e-mailed documents are delivered to a Tennessee resident via an electronic mail service provider's service or equipment located in this state. For these purposes, “electronic mail service provider” means any business or organization qualified to do business in this state that provides individuals, corporations, or other entities the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail.




(g) It is unlawful for any person to sell, give or otherwise distribute or possess with the intent to sell, give or distribute software which:




(1) Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;




(2) Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or




(3) Is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.




(h) As used in this section, “e-mail” or “cause to be e-mailed” does not include or refer to the transmission of any documents by the telecommunications utility or Internet service provider to the extent that the telecommunications utility or Internet service provider merely carries that transmission over its network.




(i) (1) Any person whose property or person is injured by reason of a violation of any provision of this section may sue therefor and recover for any damages sustained, and the costs of such suit. Without limiting the generality of the term, “damages” includes loss of profits.




(2) If the injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day. The injured person shall not have a cause of action against the electronic mail service provider that merely transmitted the unsolicited bulk electronic mail over its computer network.




(3) If the injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day.




(4) At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party.




(5) The provisions of this subsection shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.




(j) The provisions of this section shall not be construed to restrict or apply to constitutionally protected communications to and from citizens and their elected representatives.




(k) This section, or any part of this section, shall become inoperative on and after the date that federal law is enacted that prohibits or otherwise regulates the transmission of unsolicited advertising by electronic mail (e-mail).

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47-18-2502. Definitions. As used in this part, unless the context otherwise requires:




(1) “Computer network” means a set of related, remotely connected devices and any communications facilities, including more than one (1) computer with the capability to transmit data among them through the communications facilities; and




(2) “Without authority” means a person using the computer network of an electronic mail service provider to transmit unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail.
47-18-2502. Definitions. As used in this part, unless the context otherwise requires:




(1) “Computer network” means a set of related, remotely connected devices and any communications facilities, including more than one (1) computer with the capability to transmit data among them through the communications facilities; and




(2) “Without authority” means a person using the computer network of an electronic mail service provider to transmit unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail.

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47-18-2601. Short title.



This part shall be known and may be cited as the “Structured Settlement Protection Act.”


47-18-2601. Short title.



This part shall be known and may be cited as the “Structured Settlement Protection Act.”

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47-18-2602. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Annuity insurer” means an insurer that has issued an insurance policy or annuity contract used to fund periodic payments under a structured settlement;




(2) “Applicable law” means state or federal statutes of the United States;




(3) “Dependents” includes a payee's spouse and minor children and all other family members and other persons for whom the payee is legally obligated to provide support, including alimony;




(4) “Discounted present value” means the present value of future payments, as determined by discounting such payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the internal revenue service, and the present value of the payments to be transferred by the payee using the actual discount rate applied to the transfer, stated as an annual percentage rate;




(5) “Independent professional advice” means advice of an attorney, certified public accountant, actuary or other licensed professional adviser;




(6) “Interested parties” means, with respect to any structured settlement, the payee, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement;




(7) “Payee” means an individual who is receiving tax-free damage payments under a structured settlement and proposes to make a transfer of payment rights thereunder;




(8) “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of 26 U.S.C. § 130, as amended from time to time;




(9) “Responsible administrative authority” means, with respect to a structured settlement, any government authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement;




(10) “Settled claim” means the original tort claim;




(11) “Structured settlement” means an arrangement for periodic payment of damages for personal injuries established by settlement or judgment in resolution of a tort claim;




(12) “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement, including the rights of the payee to receive periodic payments;




(13) “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing periodic payment obligation to the payee under a structured settlement agreement or a qualified assignment agreement;




(14) “Structured settlement payment rights” means rights to receive periodic payments (including lump sum payments) under a structured settlement, whether from the settlement obligor or the annuity issuer where:




(A) The payee is domiciled in this state;




(B) The structured settlement agreement was approved by a court or responsible administrative authority in this state; or




(C) The structured settlement agreement is governed by the laws of this state;




(15) “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or approval of any court or responsible administrative authority or other government authority authorizing or approving such structured settlement;




(16) “Transfer” means any sale, assignment, pledge, hypothecation, commutation, advance or other form of alienation or encumbrance made by a payee for consideration; and




(17) “Transfer agreement” means the agreement providing for transfer of structured settlement payment rights from a payee to a transferee.


47-18-2602. Definitions.


As used in this part, unless the context otherwise requires:




(1) “Annuity insurer” means an insurer that has issued an insurance policy or annuity contract used to fund periodic payments under a structured settlement;




(2) “Applicable law” means state or federal statutes of the United States;




(3) “Dependents” includes a payee's spouse and minor children and all other family members and other persons for whom the payee is legally obligated to provide support, including alimony;




(4) “Discounted present value” means the present value of future payments, as determined by discounting such payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the internal revenue service, and the present value of the payments to be transferred by the payee using the actual discount rate applied to the transfer, stated as an annual percentage rate;




(5) “Independent professional advice” means advice of an attorney, certified public accountant, actuary or other licensed professional adviser;




(6) “Interested parties” means, with respect to any structured settlement, the payee, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement;




(7) “Payee” means an individual who is receiving tax-free damage payments under a structured settlement and proposes to make a transfer of payment rights thereunder;




(8) “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of 26 U.S.C. § 130, as amended from time to time;




(9) “Responsible administrative authority” means, with respect to a structured settlement, any government authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement;




(10) “Settled claim” means the original tort claim;




(11) “Structured settlement” means an arrangement for periodic payment of damages for personal injuries established by settlement or judgment in resolution of a tort claim;




(12) “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement, including the rights of the payee to receive periodic payments;




(13) “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing periodic payment obligation to the payee under a structured settlement agreement or a qualified assignment agreement;




(14) “Structured settlement payment rights” means rights to receive periodic payments (including lump sum payments) under a structured settlement, whether from the settlement obligor or the annuity issuer where:




(A) The payee is domiciled in this state;




(B) The structured settlement agreement was approved by a court or responsible administrative authority in this state; or




(C) The structured settlement agreement is governed by the laws of this state;




(15) “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or approval of any court or responsible administrative authority or other government authority authorizing or approving such structured settlement;




(16) “Transfer” means any sale, assignment, pledge, hypothecation, commutation, advance or other form of alienation or encumbrance made by a payee for consideration; and




(17) “Transfer agreement” means the agreement providing for transfer of structured settlement payment rights from a payee to a transferee.

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47-18-2603. Transfer agreement — Requirements.



No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction or a responsible administrative authority, and complies with all of the following:




(1) The transfer complies with the requirements of this part and will not contravene other applicable law;




(2) Not less than ten (10) days prior to the date on which the payee executes the transfer agreement, the transferee has provided to the payee a disclosure statement in bold type, no smaller than fourteen (14) points, setting forth:




(A) The amounts and due dates of the structured settlement payments to be transferred;




(B) The aggregate amount of such payments;




(C) The discounted present value of such payments, together with the discount rate used in determining such discounted present value;




(D) The gross amount payable to the payee in exchange for such payments;




(E) An itemized listing of all brokers' commissions, service charges, application fees, processing fees, closing costs, filing fees, administrative fees, notary fees and other commissions, fees, costs, expenses and charges, and a good faith estimate of all legal fees and court costs payable by the payee or deductible from the gross amount otherwise payable to the payee;




(F) The net amount payable to the payee after deduction of all commissions, fees, costs, expenses and charges described in subdivision (2)(E); and




(G) The amount of any penalty and the aggregate amount of any liquidated damages (inclusive of penalties) payable by the payee in the event of any breach of the transfer agreement by the payee;




(3) The payee has established that the transfer is fair and reasonable and in the best interest of the payee;




(4) The payee has been advised by the transferee, in writing, to seek independent professional advice regarding the financial, legal and tax implications of the transfer; and




(5) The transferee has given written notice of the transferee's name, address and taxpayer identification number to the annuity issuer and the structured settlement obligor and has filed a copy of such notice with the court or responsible administrative authority.


47-18-2603. Transfer agreement — Requirements.



No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction or a responsible administrative authority, and complies with all of the following:




(1) The transfer complies with the requirements of this part and will not contravene other applicable law;




(2) Not less than ten (10) days prior to the date on which the payee executes the transfer agreement, the transferee has provided to the payee a disclosure statement in bold type, no smaller than fourteen (14) points, setting forth:




(A) The amounts and due dates of the structured settlement payments to be transferred;




(B) The aggregate amount of such payments;




(C) The discounted present value of such payments, together with the discount rate used in determining such discounted present value;




(D) The gross amount payable to the payee in exchange for such payments;




(E) An itemized listing of all brokers' commissions, service charges, application fees, processing fees, closing costs, filing fees, administrative fees, notary fees and other commissions, fees, costs, expenses and charges, and a good faith estimate of all legal fees and court costs payable by the payee or deductible from the gross amount otherwise payable to the payee;




(F) The net amount payable to the payee after deduction of all commissions, fees, costs, expenses and charges described in subdivision (2)(E); and




(G) The amount of any penalty and the aggregate amount of any liquidated damages (inclusive of penalties) payable by the payee in the event of any breach of the transfer agreement by the payee;




(3) The payee has established that the transfer is fair and reasonable and in the best interest of the payee;




(4) The payee has been advised by the transferee, in writing, to seek independent professional advice regarding the financial, legal and tax implications of the transfer; and




(5) The transferee has given written notice of the transferee's name, address and taxpayer identification number to the annuity issuer and the structured settlement obligor and has filed a copy of such notice with the court or responsible administrative authority.

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47-18-2604. Circuit court jurisdiction — Requirements for notice — Best interest standard — Fees.


(a) The circuit court shall have nonexclusive jurisdiction over any application for authorization under § 47-18-2603 of a transfer of structured settlement payment rights.




(b) Not less than twenty (20) days prior to the scheduled hearing on any application for authorization of a transfer of structured settlement payment rights under § 47-18-2603, the transferee shall file with the court or responsible administrative authority and serve on any other government authority which previously approved the structured settlement, and on all interested parties, a notice of the proposed transfer and the application for its authorization, including in such notice:




(1) A copy of the transferee's application;




(2) A copy of the transfer agreement;




(3) A copy of the disclosure statement required under § 47-18-2603(2);




(4) Notification that any interested party is entitled to support, oppose or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and




(5) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed (which shall be not less than fifteen (15) days after service of the transferee's notice) in order to be considered by the court or responsible administrative authority.




(c) In determining whether the transfer is in the payee's best interest under § 47-18-2603(3), the court should consider:




(1) The terms of the transfer;




(2) Whether the payee has other sources of income, other than the structured settlement payment rights to be transferred;




(3) The effect of the transfer, if any, on the payee's dependents and whether the transfer would be likely to result in financial hardship for such dependents; and




(4) If a payee is currently required by a court order, judgment, or decree to pay child support or alimony, the effect of the transfer on the payee's ability to continue to pay such support or alimony.




(d) The structured settlement obligor and annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments.




(e) The transferee and any assignee shall be liable to the structured settlement obligor and the annuity issuer for any and all taxes and other costs and liabilities, other than costs incurred in opposing the transfer, incurred as a result of complying with the court order approving the transfer.




(f) Neither the annuity issuer nor the structured settlement obligor may be required to divide any structured settlement payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees.




(g) If any party acting in bad faith withholds consent to the transfer, the court may, in its discretion, award the prevailing party reasonable attorney fees and costs.


47-18-2604. Circuit court jurisdiction — Requirements for notice — Best interest standard — Fees.


(a) The circuit court shall have nonexclusive jurisdiction over any application for authorization under § 47-18-2603 of a transfer of structured settlement payment rights.




(b) Not less than twenty (20) days prior to the scheduled hearing on any application for authorization of a transfer of structured settlement payment rights under § 47-18-2603, the transferee shall file with the court or responsible administrative authority and serve on any other government authority which previously approved the structured settlement, and on all interested parties, a notice of the proposed transfer and the application for its authorization, including in such notice:




(1) A copy of the transferee's application;




(2) A copy of the transfer agreement;




(3) A copy of the disclosure statement required under § 47-18-2603(2);




(4) Notification that any interested party is entitled to support, oppose or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and




(5) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed (which shall be not less than fifteen (15) days after service of the transferee's notice) in order to be considered by the court or responsible administrative authority.




(c) In determining whether the transfer is in the payee's best interest under § 47-18-2603(3), the court should consider:




(1) The terms of the transfer;




(2) Whether the payee has other sources of income, other than the structured settlement payment rights to be transferred;




(3) The effect of the transfer, if any, on the payee's dependents and whether the transfer would be likely to result in financial hardship for such dependents; and




(4) If a payee is currently required by a court order, judgment, or decree to pay child support or alimony, the effect of the transfer on the payee's ability to continue to pay such support or alimony.




(d) The structured settlement obligor and annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments.




(e) The transferee and any assignee shall be liable to the structured settlement obligor and the annuity issuer for any and all taxes and other costs and liabilities, other than costs incurred in opposing the transfer, incurred as a result of complying with the court order approving the transfer.




(f) Neither the annuity issuer nor the structured settlement obligor may be required to divide any structured settlement payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees.




(g) If any party acting in bad faith withholds consent to the transfer, the court may, in its discretion, award the prevailing party reasonable attorney fees and costs.

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47-18-2605. Waiver — Failure to satisfy conditions. (a) The provisions of this part may not be waived.




(b) No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee based on any failure of such transfer to satisfy the conditions of § 47-18-2603.
47-18-2605. Waiver — Failure to satisfy conditions. (a) The provisions of this part may not be waived.




(b) No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee based on any failure of such transfer to satisfy the conditions of § 47-18-2603.

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47-18-2606. Other statutory provisions remain valid.


Nothing contained in this part shall be construed to authorize any transfer of structured settlement payment rights in contravention of applicable law or to give effect to any transfer of structured settlement payment rights that is invalid under applicable law.
47-18-2606. Other statutory provisions remain valid.


Nothing contained in this part shall be construed to authorize any transfer of structured settlement payment rights in contravention of applicable law or to give effect to any transfer of structured settlement payment rights that is invalid under applicable law.

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47-18-2607. Applicability.

This part shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after June 23, 2000; provided, that nothing contained herein shall imply that any transfer under a transfer agreement reached prior to June 23, 2000 is ineffective.
47-18-2607. Applicability.

This part shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after June 23, 2000; provided, that nothing contained herein shall imply that any transfer under a transfer agreement reached prior to June 23, 2000 is ineffective.

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47-18-2701. Prohibited activities.


It shall be unlawful and a violation of this part for any person to sell, market, promote, advertise or otherwise distribute any card or other purchasing mechanism or device, which is not insurance, that purports to offer discounts or access to discounts from health care providers in health-related purchases where:




(1) Such card or other purchasing mechanism or device does not expressly provide in bold and prominent type that the discounts are not insurance;




(2) Such discounts are not specifically authorized in a contract with each health care provider listed in conjunction with the card or other purchasing mechanism or device; or




(3) The discounts or access to discounts offered or the range of discounts or access to the range of discounts offered are misleading, deceptive or fraudulent, regardless of the literal wording used.


47-18-2701. Prohibited activities.


It shall be unlawful and a violation of this part for any person to sell, market, promote, advertise or otherwise distribute any card or other purchasing mechanism or device, which is not insurance, that purports to offer discounts or access to discounts from health care providers in health-related purchases where:




(1) Such card or other purchasing mechanism or device does not expressly provide in bold and prominent type that the discounts are not insurance;




(2) Such discounts are not specifically authorized in a contract with each health care provider listed in conjunction with the card or other purchasing mechanism or device; or




(3) The discounts or access to discounts offered or the range of discounts or access to the range of discounts offered are misleading, deceptive or fraudulent, regardless of the literal wording used.

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47-18-2702. Jurisdiction.

(a) Any person subject to liability under this part shall be deemed, as a matter of law, to have purposefully availed themselves of the privileges of conducting activities within Tennessee, sufficient to subject the person to the personal jurisdiction of the circuit or chancery court hearing an action brought pursuant to this part.




(b) An action for violation of this part may be brought:




(1) In the county where the plaintiff resides;




(2) In the county where the plaintiff conducts business; or




(3) In the county where the card or other purchasing mechanism or device was sold, marketed, promoted, advertised or otherwise distributed.




(c) (1) If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this part, it shall enjoin the defendant from a continuance thereof.




(2) In addition to injunctive relief, the plaintiff in the action shall be entitled to recover from the defendant one hundred dollars ($100) per card or other purchasing mechanism or device sold, marketed, promoted, advertised or otherwise distributed within Tennessee, or ten thousand dollars ($10,000), whichever is greater.




(d) The remedies prescribed in this section are cumulative and in addition to the remedies prescribed in title 47, chapter 18, part 1, and any other applicable criminal, civil or administrative penalties.
47-18-2702. Jurisdiction.

(a) Any person subject to liability under this part shall be deemed, as a matter of law, to have purposefully availed themselves of the privileges of conducting activities within Tennessee, sufficient to subject the person to the personal jurisdiction of the circuit or chancery court hearing an action brought pursuant to this part.




(b) An action for violation of this part may be brought:




(1) In the county where the plaintiff resides;




(2) In the county where the plaintiff conducts business; or




(3) In the county where the card or other purchasing mechanism or device was sold, marketed, promoted, advertised or otherwise distributed.




(c) (1) If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this part, it shall enjoin the defendant from a continuance thereof.




(2) In addition to injunctive relief, the plaintiff in the action shall be entitled to recover from the defendant one hundred dollars ($100) per card or other purchasing mechanism or device sold, marketed, promoted, advertised or otherwise distributed within Tennessee, or ten thousand dollars ($10,000), whichever is greater.




(d) The remedies prescribed in this section are cumulative and in addition to the remedies prescribed in title 47, chapter 18, part 1, and any other applicable criminal, civil or administrative penalties.

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47-18-2703. Application.
Nothing in this part shall be construed to apply to:




(1) Eye or vision care services, glasses or contact lenses provided by an optometrist or ophthalmologist; or




(2) Discount cards provided to members of a nonprofit association as an incidental benefit to membership in the association, provided that membership in such association entitles members to apply for insurance that is available only to members of the association.


47-18-2703. Application.
Nothing in this part shall be construed to apply to:




(1) Eye or vision care services, glasses or contact lenses provided by an optometrist or ophthalmologist; or




(2) Discount cards provided to members of a nonprofit association as an incidental benefit to membership in the association, provided that membership in such association entitles members to apply for insurance that is available only to members of the association.

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47-18-2704. Compliance by issuers.

Any person subject to liability under this part shall be required to issue cards complying with the provisions of this section on July 1, 2001, or upon the issuance of a renewed card before July 1, 2002, whichever is later.
47-18-2704. Compliance by issuers.

Any person subject to liability under this part shall be required to issue cards complying with the provisions of this section on July 1, 2001, or upon the issuance of a renewed card before July 1, 2002, whichever is later.

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47-18-2801. Public policy.
Price gouging of vaccines and inoculations during a medical emergency is contrary to the public policy of the state of Tennessee.

47-18-2801. Public policy.
Price gouging of vaccines and inoculations during a medical emergency is contrary to the public policy of the state of Tennessee.

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47-18-2802. Prohibited acts during medical emergency — Defenses.

(a) Upon the proclamation of a medical emergency by the commissioner of health and continuing until such emergency is terminated, it is unlawful, for any person, including, but not limited to, a distributor, supplier, hospital, clinic, pharmacy or other health care provider, to charge any other person a price for a vaccine or inoculation that is grossly in excess of the price generally charged for the same or similar vaccine or inoculation in the usual course of business in the year prior to the year of the proclaimed medical emergency.




(b) It is an affirmative defense to prosecution under this part, which must be proven by a preponderance of the evidence, that such price increase was directly attributable to:




(1) Additional costs for labor or materials used to produce or provide the vaccine or inoculation; or




(2) Additional costs imposed on a hospital, clinic, pharmacy or other health care provider by a manufacturer, distributor or supplier of the vaccine.




(c) A medical emergency shall be terminated by proclamation of the commissioner of health when, in the discretion of the commissioner, the medical emergency has ended.
47-18-2802. Prohibited acts during medical emergency — Defenses.

(a) Upon the proclamation of a medical emergency by the commissioner of health and continuing until such emergency is terminated, it is unlawful, for any person, including, but not limited to, a distributor, supplier, hospital, clinic, pharmacy or other health care provider, to charge any other person a price for a vaccine or inoculation that is grossly in excess of the price generally charged for the same or similar vaccine or inoculation in the usual course of business in the year prior to the year of the proclaimed medical emergency.




(b) It is an affirmative defense to prosecution under this part, which must be proven by a preponderance of the evidence, that such price increase was directly attributable to:




(1) Additional costs for labor or materials used to produce or provide the vaccine or inoculation; or




(2) Additional costs imposed on a hospital, clinic, pharmacy or other health care provider by a manufacturer, distributor or supplier of the vaccine.




(c) A medical emergency shall be terminated by proclamation of the commissioner of health when, in the discretion of the commissioner, the medical emergency has ended.

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47-18-2803. Violations.


A violation of this part, or any rules and regulations promulgated under this part, constitutes an unfair or deceptive act or practice under § 47-18-104(a). A civil action for violation of this part may be brought under part 1 of this chapter.


47-18-2803. Violations.


A violation of this part, or any rules and regulations promulgated under this part, constitutes an unfair or deceptive act or practice under § 47-18-104(a). A civil action for violation of this part may be brought under part 1 of this chapter.

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47-18-2804. Provisions of part supplemental.

The provisions of this part are intended to be in addition to and supplemental to the provisions of part 51 of this chapter.
47-18-2804. Provisions of part supplemental.

The provisions of this part are intended to be in addition to and supplemental to the provisions of part 51 of this chapter.

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47-18-2805. Rules and regulations.

The commissioner of health is authorized to promulgate rules and regulations to effectuate the provisions of this part. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
47-18-2805. Rules and regulations.

The commissioner of health is authorized to promulgate rules and regulations to effectuate the provisions of this part. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

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47-18-2901. Safeguards and procedures for ensuring that confidential information protected on laptop computers and other removable storage devices — Claim for damages.


(a) Each state agency shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the state agency.




(b) All municipalities and counties shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the municipality or county.




(c) Notwithstanding any other law to the contrary, failure to comply with this section shall create a cause of action or claim for damages against the state, municipality, or county if a citizen of this state proves by clear and convincing evidence that the citizen was a victim of identity theft due to a failure to provide safeguards and procedures regarding that citizen's confidential information.


47-18-2901. Safeguards and procedures for ensuring that confidential information protected on laptop computers and other removable storage devices — Claim for damages.


(a) Each state agency shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the state agency.




(b) All municipalities and counties shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the municipality or county.




(c) Notwithstanding any other law to the contrary, failure to comply with this section shall create a cause of action or claim for damages against the state, municipality, or county if a citizen of this state proves by clear and convincing evidence that the citizen was a victim of identity theft due to a failure to provide safeguards and procedures regarding that citizen's confidential information.

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47-18-5001. Creation — Director.


(a) There is hereby created in the department of commerce and insurance the division of consumer affairs.




(b) This division shall be headed by a director of consumer affairs who shall be appointed by, and serve at the pleasure of, the commissioner of commerce and insurance.


47-18-5001. Creation — Director.


(a) There is hereby created in the department of commerce and insurance the division of consumer affairs.




(b) This division shall be headed by a director of consumer affairs who shall be appointed by, and serve at the pleasure of, the commissioner of commerce and insurance.

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47-18-5002. Powers and duties.

The division of consumer affairs has the power to employ such personnel as may be approved by the commissioners of commerce and insurance and finance and administration, and shall:




(1) Enforce the provisions of part 1 of this chapter and this section throughout the state of Tennessee;




(2) Employ within budgetary limitations the necessary professional, investigative, and clerical staff needed to effectuate the provisions of part 1 of this chapter and this section;




(3) Promulgate reasonable procedural rules and regulations needed to carry out the provisions of part 1 of this chapter and this section. These rules shall be adopted in accordance with the provisions of the Uniform Administrative Procedure Act, compiled in title 4, chapter 5. Prior to the promulgation of any rule or regulation having the force or effect of law, such rule or regulation must be submitted to the commerce, labor and agricultural committee of the senate and to the commerce committee of the house for their concurrence. Any rule or regulation which is not acted upon by such committees within thirty (30) days after notice of the filing thereof is given to the chairs of the committees shall become effective notwithstanding subsequent action by the committees;




(4) Conduct investigations and research, hold public hearings, or conduct and publish studies relating to the distribution or furnishing of goods or services to or for the use of consumers when the division or the attorney general and reporter has reason to believe that there are or have been persistent or consistent violations of part 1 of this chapter and this section; provided, that the provisions of § 47-18-106 shall not be applicable to this subdivision;




(5) Serve as the central coordinating agency and clearinghouse for receiving complaints by Tennessee consumers of illegal, fraudulent, deceptive or dangerous practices;




(6) Report annually to the general assembly on the activities of the division. The report shall include, but not be limited to, a statement of the investigatory and enforcement procedures and policies of the division, as well as a statement of the number of complaints filed and of investigations or enforcement proceedings instituted and of their disposition. The report shall not identify any person who has not been otherwise publicly identified in enforcement proceedings unless such person consents to identification. The report may include recommendations for proposed legislation designed to remedy specific unfair or deceptive acts or practices;




(7) Lend assistance to any district attorney general who elects to criminally prosecute any person for any criminal act or practice directed against the consuming public; and




(8) Promote consumer education and inform the public of policies, decisions, and legislation affecting consumers.
47-18-5002. Powers and duties.

The division of consumer affairs has the power to employ such personnel as may be approved by the commissioners of commerce and insurance and finance and administration, and shall:




(1) Enforce the provisions of part 1 of this chapter and this section throughout the state of Tennessee;




(2) Employ within budgetary limitations the necessary professional, investigative, and clerical staff needed to effectuate the provisions of part 1 of this chapter and this section;




(3) Promulgate reasonable procedural rules and regulations needed to carry out the provisions of part 1 of this chapter and this section. These rules shall be adopted in accordance with the provisions of the Uniform Administrative Procedure Act, compiled in title 4, chapter 5. Prior to the promulgation of any rule or regulation having the force or effect of law, such rule or regulation must be submitted to the commerce, labor and agricultural committee of the senate and to the commerce committee of the house for their concurrence. Any rule or regulation which is not acted upon by such committees within thirty (30) days after notice of the filing thereof is given to the chairs of the committees shall become effective notwithstanding subsequent action by the committees;




(4) Conduct investigations and research, hold public hearings, or conduct and publish studies relating to the distribution or furnishing of goods or services to or for the use of consumers when the division or the attorney general and reporter has reason to believe that there are or have been persistent or consistent violations of part 1 of this chapter and this section; provided, that the provisions of § 47-18-106 shall not be applicable to this subdivision;




(5) Serve as the central coordinating agency and clearinghouse for receiving complaints by Tennessee consumers of illegal, fraudulent, deceptive or dangerous practices;




(6) Report annually to the general assembly on the activities of the division. The report shall include, but not be limited to, a statement of the investigatory and enforcement procedures and policies of the division, as well as a statement of the number of complaints filed and of investigations or enforcement proceedings instituted and of their disposition. The report shall not identify any person who has not been otherwise publicly identified in enforcement proceedings unless such person consents to identification. The report may include recommendations for proposed legislation designed to remedy specific unfair or deceptive acts or practices;




(7) Lend assistance to any district attorney general who elects to criminally prosecute any person for any criminal act or practice directed against the consuming public; and




(8) Promote consumer education and inform the public of policies, decisions, and legislation affecting consumers.

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47-18-5101. Legislative intent.
The general assembly finds and declares that:




(1) The threats of terrorism are real and could impose horrific social and economic damage on Tennessee;




(2) Terrorist attacks can dismantle the stability of markets and free trade;




(3) Pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, but when a declared state of emergency results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of consumer goods and services should be discouraged;




(4) Because of the September 11, 2001, terrorist attacks that took place in New York and Arlington, Virginia, some businesses across Tennessee engaged in the economic practice commonly known as price-gouging;




(5) Protecting the public from price-gouging is a vital function of state government in providing for the health, safety, and welfare of consumers;




(6) The intent of the general assembly in enacting this part is to protect citizens from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency for goods and services that are vital or necessary for the consumer. Further, it is the intent of the general assembly that this part be liberally construed so that its beneficial purposes may be served.


47-18-5101. Legislative intent.
The general assembly finds and declares that:




(1) The threats of terrorism are real and could impose horrific social and economic damage on Tennessee;




(2) Terrorist attacks can dismantle the stability of markets and free trade;




(3) Pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, but when a declared state of emergency results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of consumer goods and services should be discouraged;




(4) Because of the September 11, 2001, terrorist attacks that took place in New York and Arlington, Virginia, some businesses across Tennessee engaged in the economic practice commonly known as price-gouging;




(5) Protecting the public from price-gouging is a vital function of state government in providing for the health, safety, and welfare of consumers;




(6) The intent of the general assembly in enacting this part is to protect citizens from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency for goods and services that are vital or necessary for the consumer. Further, it is the intent of the general assembly that this part be liberally construed so that its beneficial purposes may be served.

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47-18-5102. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Building materials” means lumber, construction tools, windows, and anything else used in the building or rebuilding of property;




(2) “Consumer food item” means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal;




(3) “Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers;




(4) “Gasoline” means any fuel used to power any motor vehicle or power tool;




(5) “Goods” has the same meaning as provided in § 47-18-103;




(6) “Housing” means any rental housing leased on a month-to-month term;




(7) “Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products;




(8) “Person” has the same meaning as provided in § 47-18-103;




(9) “Repair or reconstruction services” means services performed by any person for repairs to residential or commercial property of any type that is damaged as a result of a disaster or terrorist attack;




(10) “Services” has the same meaning as provided in § 47-18-103;




(11) “State of emergency” means a natural or man-made disaster or emergency resulting from terrorist attack, war, strike, civil disturbance, tornado, earthquake, fire, flood, or any other natural disaster declared by the president of the United States or by the governor pursuant to title 58, chapter 2, part 1; and




(12) “Transportation, freight, and storage services” means any service that is performed by any company that contracts to move, store, or transport personal or business property or rents equipment for those purposes.
47-18-5102. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Building materials” means lumber, construction tools, windows, and anything else used in the building or rebuilding of property;




(2) “Consumer food item” means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal;




(3) “Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers;




(4) “Gasoline” means any fuel used to power any motor vehicle or power tool;




(5) “Goods” has the same meaning as provided in § 47-18-103;




(6) “Housing” means any rental housing leased on a month-to-month term;




(7) “Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products;




(8) “Person” has the same meaning as provided in § 47-18-103;




(9) “Repair or reconstruction services” means services performed by any person for repairs to residential or commercial property of any type that is damaged as a result of a disaster or terrorist attack;




(10) “Services” has the same meaning as provided in § 47-18-103;




(11) “State of emergency” means a natural or man-made disaster or emergency resulting from terrorist attack, war, strike, civil disturbance, tornado, earthquake, fire, flood, or any other natural disaster declared by the president of the United States or by the governor pursuant to title 58, chapter 2, part 1; and




(12) “Transportation, freight, and storage services” means any service that is performed by any company that contracts to move, store, or transport personal or business property or rents equipment for those purposes.

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47-18-5103. Prohibited acts during state of emergency.
Upon the proclamation of a state of emergency and continuing until the state of emergency is terminated, it is unlawful, in any county or municipality covered by the state of emergency, for any person to charge any other person a price for any consumer food item; repair or construction services; emergency supplies; medical supplies; building materials; gasoline; transportation, freight, and storage services; or housing, that is grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business immediately prior to the events giving rise to the state of emergency. An otherwise grossly excessive price increase shall not be unlawful if the person charging such higher price establishes by prima facie evidence that the increase was directly attributable to additional costs imposed on it by the supplier of the goods or services, or was directly attributable to additional costs for labor or materials used to provide the goods or services.

47-18-5103. Prohibited acts during state of emergency.
Upon the proclamation of a state of emergency and continuing until the state of emergency is terminated, it is unlawful, in any county or municipality covered by the state of emergency, for any person to charge any other person a price for any consumer food item; repair or construction services; emergency supplies; medical supplies; building materials; gasoline; transportation, freight, and storage services; or housing, that is grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business immediately prior to the events giving rise to the state of emergency. An otherwise grossly excessive price increase shall not be unlawful if the person charging such higher price establishes by prima facie evidence that the increase was directly attributable to additional costs imposed on it by the supplier of the goods or services, or was directly attributable to additional costs for labor or materials used to provide the goods or services.

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47-18-5104. Violation — Unfair or deceptive act or practice — Penalties cumulative.

(a) Violation of any provision of this part, or any rules and regulations promulgated hereunder, constitutes an unfair or deceptive act or practice under § 47-18-104(a); provided, that no criminal penalty shall be incurred for violation of this part. A civil action for violation of this part may be brought under part 1 of this chapter.




(b) The remedies and penalties provided in this section are cumulative. Nothing in this part shall preempt any local ordinance prohibiting the same or similar conduct or imposing a more severe penalty for the same conduct prohibited in this part.
47-18-5104. Violation — Unfair or deceptive act or practice — Penalties cumulative.

(a) Violation of any provision of this part, or any rules and regulations promulgated hereunder, constitutes an unfair or deceptive act or practice under § 47-18-104(a); provided, that no criminal penalty shall be incurred for violation of this part. A civil action for violation of this part may be brought under part 1 of this chapter.




(b) The remedies and penalties provided in this section are cumulative. Nothing in this part shall preempt any local ordinance prohibiting the same or similar conduct or imposing a more severe penalty for the same conduct prohibited in this part.

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47-18-5201. Short title.

This part shall be known and may be cited as the “Anti-Phishing Act of 2006.”
47-18-5201. Short title.

This part shall be known and may be cited as the “Anti-Phishing Act of 2006.”

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47-18-5202. Part definitions.
As used in this part, unless the context otherwise requires:




(1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice, even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist;




(2) “Division” means the division of consumer affairs of the department of commerce and insurance;




(3) “Electronic mail message” means a message sent to a unique destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox, commonly referred to as the “local part,” and a reference to an internet domain, commonly referred to as the “domain part,” whether or not displayed, to which an electronic message can be sent or delivered;




(4) “Identification documents” means any card, certificate or document that identifies, or purports to identify, the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be driver licenses, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services;




(5) “Identifying information” means, with respect to an individual, any of the following:




(A) Social security number;




(B) Driver license number;




(C) Bank account number;




(D) Credit card or debit card number;




(E) Personal identification number (PIN);




(F) Biometric data;




(G) Private medical information (PMI);




(H) Fingerprints;




(I) Account password; or




(J) Any other piece of information that can be used to access an individual's financial accounts or obtain identification, act as identification, or obtain goods or services;




(6) “Internet” means the global information system that is logically linked together by a globally unique address space based on the internet protocol (IP), or its subsequent extensions, and that is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high level services layered on communications and related infrastructure;




(7) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized;




(8) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, as compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this subdivision (8), related statutes include, but are not limited to, the Membership Camping Act, compiled in title 66, chapter 32, part 3; and




(9) “Web page” means a location that has a single uniform resource locator or other single location with respect to the Internet.



47-18-5202. Part definitions.
As used in this part, unless the context otherwise requires:




(1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice, even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist;




(2) “Division” means the division of consumer affairs of the department of commerce and insurance;




(3) “Electronic mail message” means a message sent to a unique destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox, commonly referred to as the “local part,” and a reference to an internet domain, commonly referred to as the “domain part,” whether or not displayed, to which an electronic message can be sent or delivered;




(4) “Identification documents” means any card, certificate or document that identifies, or purports to identify, the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be driver licenses, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services;




(5) “Identifying information” means, with respect to an individual, any of the following:




(A) Social security number;




(B) Driver license number;




(C) Bank account number;




(D) Credit card or debit card number;




(E) Personal identification number (PIN);




(F) Biometric data;




(G) Private medical information (PMI);




(H) Fingerprints;




(I) Account password; or




(J) Any other piece of information that can be used to access an individual's financial accounts or obtain identification, act as identification, or obtain goods or services;




(6) “Internet” means the global information system that is logically linked together by a globally unique address space based on the internet protocol (IP), or its subsequent extensions, and that is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high level services layered on communications and related infrastructure;




(7) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized;




(8) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, as compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this subdivision (8), related statutes include, but are not limited to, the Membership Camping Act, compiled in title 66, chapter 32, part 3; and




(9) “Web page” means a location that has a single uniform resource locator or other single location with respect to the Internet.

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47-18-5203. Violation of part.



(a) It shall be unlawful for any person to represent oneself, either directly or by implication, to be another person, without the authorization or permission of such other person, through the use of the Internet, electronic mail messages or any other electronic means, including wireless communication, and to solicit, request, or take any action to induce a resident of this state to provide identifying information or identification documents.




(b) It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to defraud, for such person's own use or the use of a third person, or to sell or distribute the information to another, to:




(1) Fraudulently obtain, record or access identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;




(2) Obtain goods or services through the use of identifying information of such other person; or




(3) Obtain identification documents in such other person's name.




(c) It shall be unlawful for any person with the intent to defraud and without the authorization or permission of the person who is the owner or licensee of a web page or web site to:




(1) Knowingly duplicate or mimic all or any portion of the web site or web page;




(2) Direct or redirect an electronic mail message from the IP address of a person to any other IP address;




(3) Use any trademark, logo, name, or copyright of another person on a web page; or




(4) Create an apparent but false link to a web page of a person that is directed or redirected to a web page or IP address other than that of the person represented.




(d) It shall be unlawful for any person to attempt to commit any of the offenses enumerated in this section.



47-18-5203. Violation of part.



(a) It shall be unlawful for any person to represent oneself, either directly or by implication, to be another person, without the authorization or permission of such other person, through the use of the Internet, electronic mail messages or any other electronic means, including wireless communication, and to solicit, request, or take any action to induce a resident of this state to provide identifying information or identification documents.




(b) It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to defraud, for such person's own use or the use of a third person, or to sell or distribute the information to another, to:




(1) Fraudulently obtain, record or access identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;




(2) Obtain goods or services through the use of identifying information of such other person; or




(3) Obtain identification documents in such other person's name.




(c) It shall be unlawful for any person with the intent to defraud and without the authorization or permission of the person who is the owner or licensee of a web page or web site to:




(1) Knowingly duplicate or mimic all or any portion of the web site or web page;




(2) Direct or redirect an electronic mail message from the IP address of a person to any other IP address;




(3) Use any trademark, logo, name, or copyright of another person on a web page; or




(4) Create an apparent but false link to a web page of a person that is directed or redirected to a web page or IP address other than that of the person represented.




(d) It shall be unlawful for any person to attempt to commit any of the offenses enumerated in this section.

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47-18-5204. Persons allowed to bring an action for damages.
(a) The following persons may bring an action against a person who violates or is in violation of § 47-18-5203:




(1) (A) A person who:




(i) Is engaged in the business of providing internet access service to the public, owns a web page, or owns a trademark; and




(ii) Suffers ascertainable loss by a violation of § 47-18-5203.




(B) An action brought under subdivision (a)(1)(A) may seek to recover the greater of actual damages or five hundred thousand dollars ($500,000); or




(2) (A) An individual who suffers an ascertainable loss by a violation of § 47-18-5203 may bring an action, but only against a person who has directly violated § 47-18-5203.




(B) An action brought under subdivision (a)(2)(A) may seek to enjoin further violations of § 47-18-5203 and to recover the greater of three (3) times the amount of actual damages or five thousand dollars ($5,000), per violation.




(b) The attorney general and reporter or a district attorney general may bring an action against a person who violates or is in violation of § 47-18-5203 to enjoin further violations of § 47-18-5203 and to recover a civil penalty of up to two thousand five hundred dollars ($2,500), per violation.




(c) In an action pursuant to this part, a court may, in addition, do either or both of the following:




(1) Increase the recoverable damages to an amount up to three (3) times the damages otherwise recoverable under subdivision (a) in cases in which the defendant has established a pattern and practice of violating § 47-18-5203; or




(2) Award costs of the suit and reasonable attorney's fees to a prevailing plaintiff.




(d) The remedies provided in this part do not preclude the seeking of remedies, including criminal remedies, under any other applicable provision of the law.




(e) For purposes of subdivision (a)(1), multiple violations of § 47-18-5203 resulting from any single action or conduct shall constitute one (1) violation.




(f) No provider of an interactive computer service may be held liable under this part or any other provision of state law for identifying, removing, or disabling access to content that resides on an Internet web page or other online location that such provider believes in good faith is used to engage in a violation of this part.


47-18-5204. Persons allowed to bring an action for damages.
(a) The following persons may bring an action against a person who violates or is in violation of § 47-18-5203:




(1) (A) A person who:




(i) Is engaged in the business of providing internet access service to the public, owns a web page, or owns a trademark; and




(ii) Suffers ascertainable loss by a violation of § 47-18-5203.




(B) An action brought under subdivision (a)(1)(A) may seek to recover the greater of actual damages or five hundred thousand dollars ($500,000); or




(2) (A) An individual who suffers an ascertainable loss by a violation of § 47-18-5203 may bring an action, but only against a person who has directly violated § 47-18-5203.




(B) An action brought under subdivision (a)(2)(A) may seek to enjoin further violations of § 47-18-5203 and to recover the greater of three (3) times the amount of actual damages or five thousand dollars ($5,000), per violation.




(b) The attorney general and reporter or a district attorney general may bring an action against a person who violates or is in violation of § 47-18-5203 to enjoin further violations of § 47-18-5203 and to recover a civil penalty of up to two thousand five hundred dollars ($2,500), per violation.




(c) In an action pursuant to this part, a court may, in addition, do either or both of the following:




(1) Increase the recoverable damages to an amount up to three (3) times the damages otherwise recoverable under subdivision (a) in cases in which the defendant has established a pattern and practice of violating § 47-18-5203; or




(2) Award costs of the suit and reasonable attorney's fees to a prevailing plaintiff.




(d) The remedies provided in this part do not preclude the seeking of remedies, including criminal remedies, under any other applicable provision of the law.




(e) For purposes of subdivision (a)(1), multiple violations of § 47-18-5203 resulting from any single action or conduct shall constitute one (1) violation.




(f) No provider of an interactive computer service may be held liable under this part or any other provision of state law for identifying, removing, or disabling access to content that resides on an Internet web page or other online location that such provider believes in good faith is used to engage in a violation of this part.

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47-18-5205. Violation of part constituting violation of the Tennessee Consumer Protection Act — Application and construction.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in such act, in addition to the penalties and remedies set forth in this part.




(c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter.
47-18-5205. Violation of part constituting violation of the Tennessee Consumer Protection Act — Application and construction.

(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of the provisions of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in such act, in addition to the penalties and remedies set forth in this part.




(c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter.

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47-18-5301. Short title.
This part shall be known and may be cited as the “Tennessee Truth in Music Advertising Act.”

47-18-5301. Short title.
This part shall be known and may be cited as the “Tennessee Truth in Music Advertising Act.”

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47-18-5302. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Performing group” means a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name;




(2) “Recording group” means a vocal or instrumental group at least one (1) of whose members has previously released a commercial sound recording under that group's name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group; and




(3) “Sound recording” means a work that results from the fixation on a material object of a series of musical, spoken or other sounds regardless of the nature of the material object, such as a disc, tape, or other phono-record, in which the sounds are embodied.
47-18-5302. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Performing group” means a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name;




(2) “Recording group” means a vocal or instrumental group at least one (1) of whose members has previously released a commercial sound recording under that group's name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group; and




(3) “Sound recording” means a work that results from the fixation on a material object of a series of musical, spoken or other sounds regardless of the nature of the material object, such as a disc, tape, or other phono-record, in which the sounds are embodied.

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47-18-5303. Prohibited musical performance or production. No person shall advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association, between a performing group and a recording group. The prohibition contained in this section does not apply if:




(1) The performing group is the authorized registrant and owner of a federal service mark for that group registered in the United States patent and trademark office;




(2) At least one (1) member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;




(3) The live musical performance or production is identified in all advertising and promotion as a salute or tribute, and the name of the vocal or instrumental group performing is not so closely related or similar to that used by the recording group that it would tend to confuse or mislead the public;




(4) The advertising does not relate to a live musical performance or production taking place in this state; or




(5) The performance or production is expressly authorized by the performing group.
47-18-5303. Prohibited musical performance or production. No person shall advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association, between a performing group and a recording group. The prohibition contained in this section does not apply if:




(1) The performing group is the authorized registrant and owner of a federal service mark for that group registered in the United States patent and trademark office;




(2) At least one (1) member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group;




(3) The live musical performance or production is identified in all advertising and promotion as a salute or tribute, and the name of the vocal or instrumental group performing is not so closely related or similar to that used by the recording group that it would tend to confuse or mislead the public;




(4) The advertising does not relate to a live musical performance or production taking place in this state; or




(5) The performance or production is expressly authorized by the performing group.

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47-18-5304. Violations — Application and construction.
(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by that act. The division of consumer affairs in the department of commerce and insurance may assess a civil penalty of not less than five thousand dollars ($5,000) nor more than fifteen thousand dollars ($15,000) for a violation of this part. For purposes of this part, each performance in violation of this part constitutes a separate violation of this part. The civil penalties recoverable by this state under this part are supplemental and cumulative to any other available civil or criminal penalties and relief available under other laws, regulations and rules, including, but not limited to, those available pursuant to § 47-18-108.



47-18-5304. Violations — Application and construction.
(a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act, compiled in part 1 of this chapter.




(b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by that act. The division of consumer affairs in the department of commerce and insurance may assess a civil penalty of not less than five thousand dollars ($5,000) nor more than fifteen thousand dollars ($15,000) for a violation of this part. For purposes of this part, each performance in violation of this part constitutes a separate violation of this part. The civil penalties recoverable by this state under this part are supplemental and cumulative to any other available civil or criminal penalties and relief available under other laws, regulations and rules, including, but not limited to, those available pursuant to § 47-18-108.

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47-18-5401. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Foreclosure-related rescue services” means any service related to or promising assistance in connection with:




(A) Stopping, avoiding or delaying foreclosure proceedings concerning residential real property; or




(B) Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation;




(2) “Foreclosure-rescue consultant” means a person who directly or indirectly makes a solicitation, representation or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services; provided, that a foreclosure-rescue consultant shall not include:




(A) A person acting under the express authority or written approval of the United States department of housing and urban development or other department or agency of the United States or this state to provide foreclosure-related rescue services; provided, that the person does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services except as expressly authorized by federal law, regulation or rule;




(B) A charitable, not-for-profit agency or organization, as determined by the United States internal revenue service under § 501(c)(3) of the Internal Revenue Code, codified in 26 U.S.C. § 501(c)(3), that offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions, and does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related services;




(C) A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction;




(D) A state or national bank or its subsidiary, a state or federal savings institution or its subsidiary, a state or federal credit union, an industrial loan and thrift company or a licensed mortgage loan broker or originator; or




(E) An attorney licensed or otherwise authorized to practice law in this state who is providing legal services to a client;




(3) “Foreclosure-rescue transaction” means a transaction that is designed or intended by the parties to stop, avoid or delay foreclosure proceedings against a homeowner's residential real property;




(4) “Homeowner” means any record title owner of residential real property that is the subject of foreclosure proceedings; and




(5) “Residential real property” means improved real property used or occupied or intended to be used or occupied for residential purposes by the owner.
47-18-5401. Part definitions. As used in this part, unless the context otherwise requires:




(1) “Foreclosure-related rescue services” means any service related to or promising assistance in connection with:




(A) Stopping, avoiding or delaying foreclosure proceedings concerning residential real property; or




(B) Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation;




(2) “Foreclosure-rescue consultant” means a person who directly or indirectly makes a solicitation, representation or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services; provided, that a foreclosure-rescue consultant shall not include:




(A) A person acting under the express authority or written approval of the United States department of housing and urban development or other department or agency of the United States or this state to provide foreclosure-related rescue services; provided, that the person does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services except as expressly authorized by federal law, regulation or rule;




(B) A charitable, not-for-profit agency or organization, as determined by the United States internal revenue service under § 501(c)(3) of the Internal Revenue Code, codified in 26 U.S.C. § 501(c)(3), that offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions, and does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related services;




(C) A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction;




(D) A state or national bank or its subsidiary, a state or federal savings institution or its subsidiary, a state or federal credit union, an industrial loan and thrift company or a licensed mortgage loan broker or originator; or




(E) An attorney licensed or otherwise authorized to practice law in this state who is providing legal services to a client;




(3) “Foreclosure-rescue transaction” means a transaction that is designed or intended by the parties to stop, avoid or delay foreclosure proceedings against a homeowner's residential real property;




(4) “Homeowner” means any record title owner of residential real property that is the subject of foreclosure proceedings; and




(5) “Residential real property” means improved real property used or occupied or intended to be used or occupied for residential purposes by the owner.

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47-18-5402. Marketing of foreclosure-related rescue services — Agreements and cancellation rights.


(a) In the course of offering or providing foreclosure-related rescue services, no foreclosure-rescue consultant shall:




(1) Engage in any unfair, misleading, or deceptive acts or practices during the course of advertising, marketing, offering, selling or contracting for foreclosure-related services;




(2) Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services;




(3) Solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services;




(4) Induce or attempt to induce any consumer to enter into a contract or agreement that does not fully comply in all respects with this part; or




(5) Fail to accept and honor a consumer's request to cancel and provide any related refunds within ten (10) business days.




(b) The written agreement for foreclosure-related rescue services required by subdivision (a)(1) shall be printed in at least 12-point uppercase type and shall be signed by both parties. The agreement shall include the name, physical address, telephone number and electronic mail address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services and the date of the agreement. The date of the agreement shall not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant shall give the homeowner a copy of the agreement to review not less than one (1) business day before the homeowner is to sign the agreement.




(c) The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within three (3) business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant shall be returned to the homeowner within ten (10) business days after receipt of the notice of cancellation.




(d) An agreement for foreclosure-related rescue services shall contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:





Click to view form.




(e) The inclusion of the statement in subsection (d) does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement; provided, that all other requirements of this section are met.




(f) The foreclosure-rescue consultant shall give the homeowner a copy of the signed agreement within three (3) hours after the homeowner signs the agreement.




(g) Any contract or agreement for foreclosure-related services that does not contain the provisions set forth in this section shall be void and unenforceable as a matter of law and public policy.


47-18-5402. Marketing of foreclosure-related rescue services — Agreements and cancellation rights.


(a) In the course of offering or providing foreclosure-related rescue services, no foreclosure-rescue consultant shall:




(1) Engage in any unfair, misleading, or deceptive acts or practices during the course of advertising, marketing, offering, selling or contracting for foreclosure-related services;




(2) Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services;




(3) Solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services;




(4) Induce or attempt to induce any consumer to enter into a contract or agreement that does not fully comply in all respects with this part; or




(5) Fail to accept and honor a consumer's request to cancel and provide any related refunds within ten (10) business days.




(b) The written agreement for foreclosure-related rescue services required by subdivision (a)(1) shall be printed in at least 12-point uppercase type and shall be signed by both parties. The agreement shall include the name, physical address, telephone number and electronic mail address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services and the date of the agreement. The date of the agreement shall not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant shall give the homeowner a copy of the agreement to review not less than one (1) business day before the homeowner is to sign the agreement.




(c) The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within three (3) business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant shall be returned to the homeowner within ten (10) business days after receipt of the notice of cancellation.




(d) An agreement for foreclosure-related rescue services shall contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:





Click to view form.




(e) The inclusion of the statement in subsection (d) does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement; provided, that all other requirements of this section are met.




(f) The foreclosure-rescue consultant shall give the homeowner a copy of the signed agreement within three (3) hours after the homeowner signs the agreement.




(g) Any contract or agreement for foreclosure-related services that does not contain the provisions set forth in this section shall be void and unenforceable as a matter of law and public policy.

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47-18-5501. Short title.
This part shall be known and may be cited as the “Uniform Debt-Management Services Act.”

47-18-5501. Short title.
This part shall be known and may be cited as the “Uniform Debt-Management Services Act.”

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47-18-5502. Part definitions. In this part:




(1) “Administrator” means the commissioner of commerce and insurance;




(2) “Affiliate”:




(A) With respect to an individual, means:




(i) The spouse of the individual;




(ii) A sibling of the individual or the spouse of a sibling;




(iii) An individual or the spouse of an individual who is a lineal ancestor or lineal descendant of the individual or the individual's spouse;




(iv) An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece, or grandnephew, whether related by the whole or the half blood or adoption, or the spouse of any of them; or




(v) Any other individual occupying the residence of the individual; and




(B) With respect to an entity, means:




(i) A person that directly or indirectly controls, is controlled by or is under common control with the entity;




(ii) An officer of, or an individual performing similar functions with respect to, the entity;




(iii) A director of, or an individual performing similar functions with respect to, the entity;




(iv) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year or a person that owns more than ten percent (10%) of, or an individual who is employed by or is a director of, a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year;




(v) An officer or director of, or an individual performing similar functions with respect to, a person described in this subdivision (2)(B);




(vi) The spouse of, or an individual occupying the residence of, an individual described in subdivisions (2)(B)(i)-(v); or




(vii) An individual who has the relationship specified in subdivision (2)(A)(iv) to an individual or the spouse of an individual described in subdivisions (2)(B)(i)-(v);




(3) “Agreement” means an agreement between a provider and an individual for the performance of debt-management services;




(4) “Bank” means a financial institution, including a commercial bank, savings bank, savings and loan association, credit union and trust company, engaged in the business of banking, chartered under federal or state law, and regulated by a federal or state banking regulatory authority;




(5) “Business address” means the physical location of a business, including the name and number of a street;




(6) “Certified counselor” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency;




(7) “Certified debt specialist” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed;




(8) “Concessions” means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor;




(9) “Day” means calendar day;




(10) “Debt-management services” means services as an intermediary between an individual and one (1) or more creditors of the individual for the purpose of obtaining concessions, but does not include:




(A) Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this state;




(B) Accounting services provided in an accountant-client relationship by a certified public accountant licensed to provide accounting services in this state; or




(C) Financial-planning services provided in a financial planner-client relationship by a member of a financial-planning profession whose members the administrator, by rule, determines are:




(i) Licensed by this state;




(ii) Subject to a disciplinary mechanism;




(iii) Subject to a code of professional responsibility; and




(iv) Subject to a continuing-education requirement;




(11) “Entity” means a person other than an individual;




(12) “Good faith” means honesty in fact and the observance of reasonable standards of fair dealing;




(13) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity. The term does not include a public corporation, government or governmental subdivision, agency or instrumentality;




(14) “Plan” means a program or strategy in which a provider furnishes debt-management services to an individual and that includes a schedule of payments to be made by or on behalf of the individual and used to pay debts owed by the individual;




(15) “Principal amount of the debt” means the amount of a debt at the time of an agreement;




(16) “Provider” means a person that provides, offers to provide or agrees to provide debt-management services directly or through others;




(17) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;




(18) “Settlement fee” means a charge imposed on or paid by an individual in connection with a creditor's assent to accept in full satisfaction of a debt an amount less than the principal amount of the debt;




(19) “Sign” means, with present intent to authenticate or adopt a record:




(A) To execute or adopt a tangible symbol; or




(B) To attach to or logically associate with the record an electronic sound, symbol or process;




(20) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and




(21) “Trust account” means an account held by a provider that is:




(A) Established in an insured bank;




(B) Separate from other accounts of the provider or its designee;




(C) Designated as a trust account or other account designated to indicate that the money in the account is not the money of the provider or its designee; and




(D) Used to hold money of one (1) or more individuals for disbursement to creditors of the individuals.
47-18-5502. Part definitions. In this part:




(1) “Administrator” means the commissioner of commerce and insurance;




(2) “Affiliate”:




(A) With respect to an individual, means:




(i) The spouse of the individual;




(ii) A sibling of the individual or the spouse of a sibling;




(iii) An individual or the spouse of an individual who is a lineal ancestor or lineal descendant of the individual or the individual's spouse;




(iv) An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece, or grandnephew, whether related by the whole or the half blood or adoption, or the spouse of any of them; or




(v) Any other individual occupying the residence of the individual; and




(B) With respect to an entity, means:




(i) A person that directly or indirectly controls, is controlled by or is under common control with the entity;




(ii) An officer of, or an individual performing similar functions with respect to, the entity;




(iii) A director of, or an individual performing similar functions with respect to, the entity;




(iv) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year or a person that owns more than ten percent (10%) of, or an individual who is employed by or is a director of, a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year;




(v) An officer or director of, or an individual performing similar functions with respect to, a person described in this subdivision (2)(B);




(vi) The spouse of, or an individual occupying the residence of, an individual described in subdivisions (2)(B)(i)-(v); or




(vii) An individual who has the relationship specified in subdivision (2)(A)(iv) to an individual or the spouse of an individual described in subdivisions (2)(B)(i)-(v);




(3) “Agreement” means an agreement between a provider and an individual for the performance of debt-management services;




(4) “Bank” means a financial institution, including a commercial bank, savings bank, savings and loan association, credit union and trust company, engaged in the business of banking, chartered under federal or state law, and regulated by a federal or state banking regulatory authority;




(5) “Business address” means the physical location of a business, including the name and number of a street;




(6) “Certified counselor” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency;




(7) “Certified debt specialist” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed;




(8) “Concessions” means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor;




(9) “Day” means calendar day;




(10) “Debt-management services” means services as an intermediary between an individual and one (1) or more creditors of the individual for the purpose of obtaining concessions, but does not include:




(A) Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this state;




(B) Accounting services provided in an accountant-client relationship by a certified public accountant licensed to provide accounting services in this state; or




(C) Financial-planning services provided in a financial planner-client relationship by a member of a financial-planning profession whose members the administrator, by rule, determines are:




(i) Licensed by this state;




(ii) Subject to a disciplinary mechanism;




(iii) Subject to a code of professional responsibility; and




(iv) Subject to a continuing-education requirement;




(11) “Entity” means a person other than an individual;




(12) “Good faith” means honesty in fact and the observance of reasonable standards of fair dealing;




(13) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity. The term does not include a public corporation, government or governmental subdivision, agency or instrumentality;




(14) “Plan” means a program or strategy in which a provider furnishes debt-management services to an individual and that includes a schedule of payments to be made by or on behalf of the individual and used to pay debts owed by the individual;




(15) “Principal amount of the debt” means the amount of a debt at the time of an agreement;




(16) “Provider” means a person that provides, offers to provide or agrees to provide debt-management services directly or through others;




(17) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;




(18) “Settlement fee” means a charge imposed on or paid by an individual in connection with a creditor's assent to accept in full satisfaction of a debt an amount less than the principal amount of the debt;




(19) “Sign” means, with present intent to authenticate or adopt a record:




(A) To execute or adopt a tangible symbol; or




(B) To attach to or logically associate with the record an electronic sound, symbol or process;




(20) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and




(21) “Trust account” means an account held by a provider that is:




(A) Established in an insured bank;




(B) Separate from other accounts of the provider or its designee;




(C) Designated as a trust account or other account designated to indicate that the money in the account is not the money of the provider or its designee; and




(D) Used to hold money of one (1) or more individuals for disbursement to creditors of the individuals.

.

47-18-5503. Exempt agreements and persons. This part does not apply to:




(1) An agreement with an individual whom the provider has no reason to know resides in this state at the time of the agreement;




(2) A provider to the extent that the provider:




(A) Provides or agrees to provide debt-management, educational or counseling services to an individual whom the provider has no reason to know resides in this state at the time the provider agrees to provide the services; or




(B) Receives no compensation for debt-management services from or on behalf of the individuals to whom it provides the services or from their creditors; or




(3) The following persons or their employees when the person or the employee is engaged in the regular course of the person's business or profession:




(A) A judicial officer, a person acting under an order of a court or an administrative agency or an assignee for the benefit of creditors;




(B) A bank;




(C) An affiliate, as defined in § 47-18-5502, of a bank if the affiliate is regulated by a federal or state banking regulatory authority;




(D) Any person who is engaged in the credit services business as defined in § 47-18-1002(a) but is not engaged in the business of debt counseling, debt management or debt settlement as defined by this part; provided, that the person is registered as a credit services business with the administrator; or




(E) A title insurer, escrow company or other person that provides bill-paying services if the provision of debt-management services is incidental to the bill-paying services.
47-18-5503. Exempt agreements and persons. This part does not apply to:




(1) An agreement with an individual whom the provider has no reason to know resides in this state at the time of the agreement;




(2) A provider to the extent that the provider:




(A) Provides or agrees to provide debt-management, educational or counseling services to an individual whom the provider has no reason to know resides in this state at the time the provider agrees to provide the services; or




(B) Receives no compensation for debt-management services from or on behalf of the individuals to whom it provides the services or from their creditors; or




(3) The following persons or their employees when the person or the employee is engaged in the regular course of the person's business or profession:




(A) A judicial officer, a person acting under an order of a court or an administrative agency or an assignee for the benefit of creditors;




(B) A bank;




(C) An affiliate, as defined in § 47-18-5502, of a bank if the affiliate is regulated by a federal or state banking regulatory authority;




(D) Any person who is engaged in the credit services business as defined in § 47-18-1002(a) but is not engaged in the business of debt counseling, debt management or debt settlement as defined by this part; provided, that the person is registered as a credit services business with the administrator; or




(E) A title insurer, escrow company or other person that provides bill-paying services if the provision of debt-management services is incidental to the bill-paying services.

.

47-18-5504. Registration required — Maintenance and publication of list of registered providers.

(a) Except as otherwise provided in subsection (b), a provider may not provide debt-management services to an individual whom the provider reasonably should know resides in this state at the time the provider agrees to provide the services, unless the provider is registered under this part.




(b) If a provider is registered under this part, subsection (a) does not apply to an employee or agent of the provider.




(c) The administrator shall maintain and publicize a list of the names of all registered providers.
47-18-5504. Registration required — Maintenance and publication of list of registered providers.

(a) Except as otherwise provided in subsection (b), a provider may not provide debt-management services to an individual whom the provider reasonably should know resides in this state at the time the provider agrees to provide the services, unless the provider is registered under this part.




(b) If a provider is registered under this part, subsection (a) does not apply to an employee or agent of the provider.




(c) The administrator shall maintain and publicize a list of the names of all registered providers.

.



47-18-5505. Application for registration — Form, fee, and accompanying documents.
(a) An application for registration as a provider must be in a form prescribed by the administrator.




(b) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), an application for registration as a provider must be accompanied by:




(1) The fee established by the administrator;




(2) The bond required by § 47-18-5513;




(3) Identification of all trust accounts required by § 47-18-5522 and an irrevocable consent authorizing the administrator to review and examine the trust accounts;




(4) Evidence of insurance in the amount of two hundred fifty thousand dollars ($250,000):




(A) Against the risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;




(B) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator;




(C) With a deductible not exceeding five thousand dollars ($5,000);




(D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and




(E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator;




(5) A record consenting to the jurisdiction of this state containing:




(A) The name, business address and other contact information of its registered agent in this state for purposes of service of process; or




(B) The appointment of the administrator as agent of the provider for purposes of service of process; and




(6) If the applicant is exempt from taxation under the Internal Revenue Code, 26 U.S.C. § 501, evidence of that status.


47-18-5505. Application for registration — Form, fee, and accompanying documents.
(a) An application for registration as a provider must be in a form prescribed by the administrator.




(b) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), an application for registration as a provider must be accompanied by:




(1) The fee established by the administrator;




(2) The bond required by § 47-18-5513;




(3) Identification of all trust accounts required by § 47-18-5522 and an irrevocable consent authorizing the administrator to review and examine the trust accounts;




(4) Evidence of insurance in the amount of two hundred fifty thousand dollars ($250,000):




(A) Against the risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;




(B) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator;




(C) With a deductible not exceeding five thousand dollars ($5,000);




(D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and




(E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator;




(5) A record consenting to the jurisdiction of this state containing:




(A) The name, business address and other contact information of its registered agent in this state for purposes of service of process; or




(B) The appointment of the administrator as agent of the provider for purposes of service of process; and




(6) If the applicant is exempt from taxation under the Internal Revenue Code, 26 U.S.C. § 501, evidence of that status.

.

47-18-5506. Application for registration — Required information.

An application for registration must be signed under oath and include:




(1) The applicant's name, principal business address and telephone number, and all other business addresses in this state, electronic-mail addresses and Internet web site addresses;




(2) All names under which the applicant conducts business;




(3) The address of each location in this state at which the applicant will provide debt-management services or a statement that the applicant will have no such location;




(4) The name and home address of each officer and director of the applicant and each person that owns at least ten percent (10%) of the applicant;




(5) Identification of every jurisdiction in which, during the five (5) years immediately preceding the application:




(A) The applicant or any of its officers or directors has been licensed or registered to provide debt-management services; or




(B) Individuals have resided when they received debt-management services from the applicant;




(6) A statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment or litigation and any material administrative or enforcement action by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners, or agents, or any person who is authorized to have access to the trust account required by § 47-18-5522;




(7) The applicant's financial statements, reviewed by a licensed accountant, for each of the two (2) years immediately preceding the application or, if it has not been in operation for the two (2) years preceding the application, for the period of its existence. If the applicant claims nonprofit or tax exempt status, or if the applicant's business practices involve holding, accessing or directing the funds of an individual, the financial statements required by this part shall be audited by a licensed accountant;




(8) Evidence of accreditation by an independent accrediting organization approved by the administrator;




(9) Evidence that, within twelve (12) months after initial employment, each of the applicant's counselors becomes certified as a certified counselor or certified debt specialist;




(10) A description of the three (3) most commonly used educational programs that the applicant provides or intends to provide to individuals who reside in this state and a copy of any materials used or to be used in those programs;




(11) A description of the applicant's financial analysis and initial budget plan, including any form or electronic model, used to evaluate the financial condition of individuals;




(12) A copy of each form of agreement that the applicant will use with individuals who reside in this state;




(13) The schedule of fees and charges that the applicant will use with individuals who reside in this state;




(14) At the applicant's expense, the results of a criminal records check, including fingerprints, conducted within the immediately preceding twelve (12) months, covering every officer of the applicant and every employee or agent of the applicant who is authorized to have access to the trust account required by § 47-18-5522;




(15) The names and addresses of all employers of each director during the ten (10) years immediately preceding the application;




(16) A description of any ownership interest of at least ten percent (10%) by a director, owner or employee of the applicant in:




(A) Any affiliate of the applicant; or




(B) Any entity that provides products or services to the applicant or any individual relating to the applicant's debt-management services;




(17) If an applicant claims nonprofit or tax exempt status, or if an applicant's business practices involve holding, accessing or directing the funds of an individual, a statement of the amount of compensation of the applicant's five (5) most highly compensated employees for each of the three (3) years immediately preceding the application or, if the applicant has not been in operation for the three (3) years preceding the application, for the period of the applicant's existence;




(18) The identity of each director who is an affiliate, as defined in § 47-18-5502(2)(A) or (2)(B)(i), (ii), (iv), (v), (vi) or (vii), of the applicant; and




(19) Any other information that the administrator reasonably requires to perform the administrator's duties under § 47-18-5509.
47-18-5506. Application for registration — Required information.

An application for registration must be signed under oath and include:




(1) The applicant's name, principal business address and telephone number, and all other business addresses in this state, electronic-mail addresses and Internet web site addresses;




(2) All names under which the applicant conducts business;




(3) The address of each location in this state at which the applicant will provide debt-management services or a statement that the applicant will have no such location;




(4) The name and home address of each officer and director of the applicant and each person that owns at least ten percent (10%) of the applicant;




(5) Identification of every jurisdiction in which, during the five (5) years immediately preceding the application:




(A) The applicant or any of its officers or directors has been licensed or registered to provide debt-management services; or




(B) Individuals have resided when they received debt-management services from the applicant;




(6) A statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment or litigation and any material administrative or enforcement action by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners, or agents, or any person who is authorized to have access to the trust account required by § 47-18-5522;




(7) The applicant's financial statements, reviewed by a licensed accountant, for each of the two (2) years immediately preceding the application or, if it has not been in operation for the two (2) years preceding the application, for the period of its existence. If the applicant claims nonprofit or tax exempt status, or if the applicant's business practices involve holding, accessing or directing the funds of an individual, the financial statements required by this part shall be audited by a licensed accountant;




(8) Evidence of accreditation by an independent accrediting organization approved by the administrator;




(9) Evidence that, within twelve (12) months after initial employment, each of the applicant's counselors becomes certified as a certified counselor or certified debt specialist;




(10) A description of the three (3) most commonly used educational programs that the applicant provides or intends to provide to individuals who reside in this state and a copy of any materials used or to be used in those programs;




(11) A description of the applicant's financial analysis and initial budget plan, including any form or electronic model, used to evaluate the financial condition of individuals;




(12) A copy of each form of agreement that the applicant will use with individuals who reside in this state;




(13) The schedule of fees and charges that the applicant will use with individuals who reside in this state;




(14) At the applicant's expense, the results of a criminal records check, including fingerprints, conducted within the immediately preceding twelve (12) months, covering every officer of the applicant and every employee or agent of the applicant who is authorized to have access to the trust account required by § 47-18-5522;




(15) The names and addresses of all employers of each director during the ten (10) years immediately preceding the application;




(16) A description of any ownership interest of at least ten percent (10%) by a director, owner or employee of the applicant in:




(A) Any affiliate of the applicant; or




(B) Any entity that provides products or services to the applicant or any individual relating to the applicant's debt-management services;




(17) If an applicant claims nonprofit or tax exempt status, or if an applicant's business practices involve holding, accessing or directing the funds of an individual, a statement of the amount of compensation of the applicant's five (5) most highly compensated employees for each of the three (3) years immediately preceding the application or, if the applicant has not been in operation for the three (3) years preceding the application, for the period of the applicant's existence;




(18) The identity of each director who is an affiliate, as defined in § 47-18-5502(2)(A) or (2)(B)(i), (ii), (iv), (v), (vi) or (vii), of the applicant; and




(19) Any other information that the administrator reasonably requires to perform the administrator's duties under § 47-18-5509.

.

47-18-5507. Obligation to update information in application for registration.

An applicant or registered provider shall notify the administrator within ten (10) days after a change in the information specified in § 47-18-5505(b)(4) or (b)(6) or § 47-18-5506(1), (3), (6), (12) or (13).
47-18-5507. Obligation to update information in application for registration.

An applicant or registered provider shall notify the administrator within ten (10) days after a change in the information specified in § 47-18-5505(b)(4) or (b)(6) or § 47-18-5506(1), (3), (6), (12) or (13).

.



47-18-5508. Public information in application for registration.
Except for the information required by § 47-18-5506(7), (14), and (17), and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for registration as a provider available to the public.

47-18-5508. Public information in application for registration.
Except for the information required by § 47-18-5506(7), (14), and (17), and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for registration as a provider available to the public.

.

47-18-5509. Issuance or denial of certificate of registration.

(a) Except as otherwise provided in subsections (c) and (d), the administrator shall issue a certificate of registration as a provider to a person that complies with §§ 47-18-5505 and 47-18-5506.




(b) If an applicant has otherwise complied with §§ 47-18-5505 and 47-18-5506, including a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary certificate of registration. The temporary certificate shall expire no later than one hundred eighty (180) days after issuance.




(c) The administrator may deny registration if:




(1) The application contains information that is materially erroneous or incomplete;




(2) An officer, director or owner of the applicant has been convicted of a crime or suffered a civil judgment involving dishonesty or the violation of state or federal securities laws;




(3) The applicant or any of its officers, directors or owners has defaulted in the payment of money collected for others;




(4) The application is not accompanied by the fee established by the administrator; or




(5) The administrator finds that the financial responsibility, experience, character or general fitness of the applicant or its owners, directors, employees or agents does not warrant belief that the business will be operated in compliance with this part.




(d) The administrator shall deny registration if, with respect to an applicant that is organized as a not-for-profit entity or has obtained tax-exempt status under the Internal Revenue Code, 26 U.S.C. § 501, the applicant's board of directors is not independent of the applicant's employees and agents.




(e) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a board of directors is not independent for purposes of subsection (d) if more than one fourth (¼) of its members:




(1) Are affiliates of the applicant, as defined in § 47-18-5502(2)(A) or (2)(B)(i), (ii), (iv), (v), (vi) or (vii); or




(2) After the date ten (10) years before first becoming a director of the applicant, were employed by or directors of a person that received from the applicant more than twenty-five thousand dollars ($25,000) in either the current year or the preceding year.
47-18-5509. Issuance or denial of certificate of registration.

(a) Except as otherwise provided in subsections (c) and (d), the administrator shall issue a certificate of registration as a provider to a person that complies with §§ 47-18-5505 and 47-18-5506.




(b) If an applicant has otherwise complied with §§ 47-18-5505 and 47-18-5506, including a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary certificate of registration. The temporary certificate shall expire no later than one hundred eighty (180) days after issuance.




(c) The administrator may deny registration if:




(1) The application contains information that is materially erroneous or incomplete;




(2) An officer, director or owner of the applicant has been convicted of a crime or suffered a civil judgment involving dishonesty or the violation of state or federal securities laws;




(3) The applicant or any of its officers, directors or owners has defaulted in the payment of money collected for others;




(4) The application is not accompanied by the fee established by the administrator; or




(5) The administrator finds that the financial responsibility, experience, character or general fitness of the applicant or its owners, directors, employees or agents does not warrant belief that the business will be operated in compliance with this part.




(d) The administrator shall deny registration if, with respect to an applicant that is organized as a not-for-profit entity or has obtained tax-exempt status under the Internal Revenue Code, 26 U.S.C. § 501, the applicant's board of directors is not independent of the applicant's employees and agents.




(e) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a board of directors is not independent for purposes of subsection (d) if more than one fourth (¼) of its members:




(1) Are affiliates of the applicant, as defined in § 47-18-5502(2)(A) or (2)(B)(i), (ii), (iv), (v), (vi) or (vii); or




(2) After the date ten (10) years before first becoming a director of the applicant, were employed by or directors of a person that received from the applicant more than twenty-five thousand dollars ($25,000) in either the current year or the preceding year.

.



47-18-5510. Timing of certificate of registration.


(a) The administrator shall approve or deny an initial registration as a provider within one hundred twenty (120) days after an application is filed. In connection with a request pursuant to § 47-18-5506(19) for additional information, the administrator may extend the one hundred twenty-day period for not more than sixty (60) days. Within seven (7) days after denying an application, the administrator, in a record, shall inform the applicant of the reasons for the denial.




(b) If the administrator denies an application for registration as a provider or does not act on an application within the time prescribed in subsection (a), the applicant may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.




(c) Subject to §§ 47-18-5511(d) and 47-18-5534, a registration as a provider is valid for one (1) year.


47-18-5510. Timing of certificate of registration.


(a) The administrator shall approve or deny an initial registration as a provider within one hundred twenty (120) days after an application is filed. In connection with a request pursuant to § 47-18-5506(19) for additional information, the administrator may extend the one hundred twenty-day period for not more than sixty (60) days. Within seven (7) days after denying an application, the administrator, in a record, shall inform the applicant of the reasons for the denial.




(b) If the administrator denies an application for registration as a provider or does not act on an application within the time prescribed in subsection (a), the applicant may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.




(c) Subject to §§ 47-18-5511(d) and 47-18-5534, a registration as a provider is valid for one (1) year.

.



47-18-5511. Renewal of registration.



(a) A provider must obtain a renewal of its registration annually.




(b) An application for renewal of registration as a provider must be in a form prescribed by the administrator, signed under oath; and:




(1) Be filed no fewer than thirty (30) and no more than sixty (60) days before the registration expires;




(2) Be accompanied by the fee established by the administrator and the bond required by § 47-18-5513;




(3) Contain the matter required for initial registration as a provider by § 47-18-5506(8) and (9) and a financial statement, audited by an accountant licensed to conduct audits, for the applicant's fiscal year immediately preceding the application;




(4) Disclose any changes in the information contained in the applicant's application for registration or its immediately previous application for renewal, as applicable. If an application is otherwise complete and the applicant has made a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary renewal of registration. The temporary renewal shall expire no later than one hundred eighty (180) days after issuance;




(5) Supply evidence of insurance in an amount equal to the larger of two hundred fifty thousand dollars ($250,000) or the highest daily balance in the trust account required by § 47-18-5522 during the six-month period immediately preceding the application:




(A) Against risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;




(B) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator;




(C) With a deductible not exceeding five thousand dollars ($5,000);




(D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and




(E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator;




(6) Disclose the total amount of money received by the applicant pursuant to plans during the preceding twelve (12) months from or on behalf of individuals who reside in this state and the total amount of money distributed to creditors of those individuals during that period;




(7) Disclose, to the best of the applicant's knowledge, the gross amount of money accumulated during the preceding twelve (12) months pursuant to plans by or on behalf of individuals who reside in this state and with whom the applicant has agreements; and




(8) Provide any other information that the administrator reasonably requires to perform the administrator's duties under this section.




(c) Except for the information required by § 47-18-5506(7), (14) and (17) and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for renewal of registration as a provider available to the public.




(d) If a registered provider files a timely and complete application for renewal of registration, the registration remains effective until the administrator, in a record, notifies the applicant of a denial and states the reasons for the denial.




(e) If the administrator denies an application for renewal of registration as a provider, the applicant, within thirty (30) days after receiving notice of the denial, may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. Subject to § 47-18-5534, while the appeal is pending, the applicant shall continue to provide debt-management services to individuals with whom it has agreements. If the denial is affirmed, subject to the administrator's order and § 47-18-5534, the applicant shall continue to provide debt-management services to individuals with whom it has agreements until, with the approval of the administrator, it transfers the agreements to another registered provider or returns to the individuals all unexpended money that is under the applicant's control.


47-18-5511. Renewal of registration.



(a) A provider must obtain a renewal of its registration annually.




(b) An application for renewal of registration as a provider must be in a form prescribed by the administrator, signed under oath; and:




(1) Be filed no fewer than thirty (30) and no more than sixty (60) days before the registration expires;




(2) Be accompanied by the fee established by the administrator and the bond required by § 47-18-5513;




(3) Contain the matter required for initial registration as a provider by § 47-18-5506(8) and (9) and a financial statement, audited by an accountant licensed to conduct audits, for the applicant's fiscal year immediately preceding the application;




(4) Disclose any changes in the information contained in the applicant's application for registration or its immediately previous application for renewal, as applicable. If an application is otherwise complete and the applicant has made a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary renewal of registration. The temporary renewal shall expire no later than one hundred eighty (180) days after issuance;




(5) Supply evidence of insurance in an amount equal to the larger of two hundred fifty thousand dollars ($250,000) or the highest daily balance in the trust account required by § 47-18-5522 during the six-month period immediately preceding the application:




(A) Against risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;




(B) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator;




(C) With a deductible not exceeding five thousand dollars ($5,000);




(D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and




(E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator;




(6) Disclose the total amount of money received by the applicant pursuant to plans during the preceding twelve (12) months from or on behalf of individuals who reside in this state and the total amount of money distributed to creditors of those individuals during that period;




(7) Disclose, to the best of the applicant's knowledge, the gross amount of money accumulated during the preceding twelve (12) months pursuant to plans by or on behalf of individuals who reside in this state and with whom the applicant has agreements; and




(8) Provide any other information that the administrator reasonably requires to perform the administrator's duties under this section.




(c) Except for the information required by § 47-18-5506(7), (14) and (17) and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for renewal of registration as a provider available to the public.




(d) If a registered provider files a timely and complete application for renewal of registration, the registration remains effective until the administrator, in a record, notifies the applicant of a denial and states the reasons for the denial.




(e) If the administrator denies an application for renewal of registration as a provider, the applicant, within thirty (30) days after receiving notice of the denial, may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. Subject to § 47-18-5534, while the appeal is pending, the applicant shall continue to provide debt-management services to individuals with whom it has agreements. If the denial is affirmed, subject to the administrator's order and § 47-18-5534, the applicant shall continue to provide debt-management services to individuals with whom it has agreements until, with the approval of the administrator, it transfers the agreements to another registered provider or returns to the individuals all unexpended money that is under the applicant's control.

.



47-18-5512. Registration in another state.


If a provider holds a license or certificate of registration in another state authorizing it to provide debt-management services, the provider may submit a copy of that license or certificate and the application for it instead of an application in the form prescribed by § 47-18-5505(a), § 47-18-5506 or § 47-18-5511(b). The administrator shall accept the application and the license or certificate from the other state as an application for registration as a provider or for renewal of registration as a provider, as appropriate, in this state if:




(1) The application in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this state;




(2) The applicant provides the information required by § 47-18-5506(1), (3), (10), (12) and (13); and




(3) The applicant, under oath, certifies that the information contained in the application is current or, to the extent it is not current, supplements the application to make the information current.


47-18-5512. Registration in another state.


If a provider holds a license or certificate of registration in another state authorizing it to provide debt-management services, the provider may submit a copy of that license or certificate and the application for it instead of an application in the form prescribed by § 47-18-5505(a), § 47-18-5506 or § 47-18-5511(b). The administrator shall accept the application and the license or certificate from the other state as an application for registration as a provider or for renewal of registration as a provider, as appropriate, in this state if:




(1) The application in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this state;




(2) The applicant provides the information required by § 47-18-5506(1), (3), (10), (12) and (13); and




(3) The applicant, under oath, certifies that the information contained in the application is current or, to the extent it is not current, supplements the application to make the information current.

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47-18-5513. Bond requirement.



(a) Except as otherwise provided in § 47-18-5514, a provider that is required to be registered under this part shall file a surety bond with the administrator, which must:




(1) Be in effect during the period of registration and for two (2) years after the provider ceases providing debt-management services to individuals in this state; and




(2) Run to this state for the benefit of this state and of individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear.




(b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a surety bond filed pursuant to subsection (a) must:




(1) Be in the amount of fifty thousand dollars ($50,000) or other larger or smaller amount that the administrator determines is warranted by the financial condition and business experience of the provider, the history of the provider in performing debt-management services, the risk to individuals and any other factor the administrator considers appropriate;




(2) Be issued by a bonding, surety or insurance company authorized to do business in this state and rated at least “A” by a nationally recognized rating organization; and




(3) Have payment conditioned upon noncompliance of the provider or its agent with this part.




(c) If the principal amount of a surety bond is reduced by payment of a claim or a judgment, the provider shall immediately notify the administrator and, within thirty (30) days after notice by the administrator, file a new or additional surety bond in an amount set by the administrator. The amount of the new or additional bond must be at least the amount of the bond immediately before payment of the claim or judgment. If for any reason a surety terminates a bond, the provider shall immediately file a new surety bond in the amount of fifty thousand dollars ($50,000) or other amount determined pursuant to subsection (b).




(d) The administrator or an individual may obtain satisfaction out of the surety bond procured pursuant to this section if:




(1) The administrator assesses expenses under § 47-18-5532(b)(1), issues a final order under § 47-18-5533(a)(2) or recovers a final judgment under § 47-18-5533(a)(4), (a)(5) or (d); or




(2) An individual recovers a final judgment pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4).




(e) If claims against a surety bond exceed or are reasonably expected to exceed the amount of the bond, the administrator, on the initiative of the administrator or on petition of the surety, shall, unless the proceeds are adequate to pay all costs, judgments and claims, distribute the proceeds in the following order:




(1) To satisfaction of a final order or judgment under § 47-18-5533(a)(2), (a)(4), (a)(5) or (d);




(2) To final judgments recovered by individuals pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4), pro rata;




(3) To claims of individuals established to the satisfaction of the administrator, pro rata; and




(4) If a final order or judgment is issued under § 47-18-5533(a), to the expenses charged pursuant to § 47-18-5532(b)(1).


47-18-5513. Bond requirement.



(a) Except as otherwise provided in § 47-18-5514, a provider that is required to be registered under this part shall file a surety bond with the administrator, which must:




(1) Be in effect during the period of registration and for two (2) years after the provider ceases providing debt-management services to individuals in this state; and




(2) Run to this state for the benefit of this state and of individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear.




(b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a surety bond filed pursuant to subsection (a) must:




(1) Be in the amount of fifty thousand dollars ($50,000) or other larger or smaller amount that the administrator determines is warranted by the financial condition and business experience of the provider, the history of the provider in performing debt-management services, the risk to individuals and any other factor the administrator considers appropriate;




(2) Be issued by a bonding, surety or insurance company authorized to do business in this state and rated at least “A” by a nationally recognized rating organization; and




(3) Have payment conditioned upon noncompliance of the provider or its agent with this part.




(c) If the principal amount of a surety bond is reduced by payment of a claim or a judgment, the provider shall immediately notify the administrator and, within thirty (30) days after notice by the administrator, file a new or additional surety bond in an amount set by the administrator. The amount of the new or additional bond must be at least the amount of the bond immediately before payment of the claim or judgment. If for any reason a surety terminates a bond, the provider shall immediately file a new surety bond in the amount of fifty thousand dollars ($50,000) or other amount determined pursuant to subsection (b).




(d) The administrator or an individual may obtain satisfaction out of the surety bond procured pursuant to this section if:




(1) The administrator assesses expenses under § 47-18-5532(b)(1), issues a final order under § 47-18-5533(a)(2) or recovers a final judgment under § 47-18-5533(a)(4), (a)(5) or (d); or




(2) An individual recovers a final judgment pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4).




(e) If claims against a surety bond exceed or are reasonably expected to exceed the amount of the bond, the administrator, on the initiative of the administrator or on petition of the surety, shall, unless the proceeds are adequate to pay all costs, judgments and claims, distribute the proceeds in the following order:




(1) To satisfaction of a final order or judgment under § 47-18-5533(a)(2), (a)(4), (a)(5) or (d);




(2) To final judgments recovered by individuals pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4), pro rata;




(3) To claims of individuals established to the satisfaction of the administrator, pro rata; and




(4) If a final order or judgment is issued under § 47-18-5533(a), to the expenses charged pursuant to § 47-18-5532(b)(1).

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47-18-5514. Substitute for bond requirement.


(a) Instead of the surety bond required by § 47-18-5513, a provider may deliver to the administrator, in the amount required by § 47-18-5513(b), and, except as otherwise provided in subdivision (a)(2)(A), payable or available to this state and to individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear, if the provider or its agent does not comply with this part:




(1) A certificate of insurance:




(A) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator; and




(B) With no deductible, or if the provider supplies a bond in the amount of five thousand dollars ($5,000), a deductible not exceeding five thousand dollars ($5,000); or




(2) With the approval of the administrator:




(A) An irrevocable letter of credit, issued or confirmed by a bank approved by the administrator, payable upon presentation of a certificate by the administrator stating that the provider or its agent has not complied with this part; or




(B) Bonds or other obligations of the United States or guaranteed by the United States or bonds or other obligations of this state or a political subdivision of this state, to be deposited and maintained with a bank approved by the administrator for this purpose.




(b) If a provider furnishes a substitute pursuant to subsection (a), then § 47-18-5513(a), (c), (d) and (e) apply to the substitute.


47-18-5514. Substitute for bond requirement.


(a) Instead of the surety bond required by § 47-18-5513, a provider may deliver to the administrator, in the amount required by § 47-18-5513(b), and, except as otherwise provided in subdivision (a)(2)(A), payable or available to this state and to individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear, if the provider or its agent does not comply with this part:




(1) A certificate of insurance:




(A) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator; and




(B) With no deductible, or if the provider supplies a bond in the amount of five thousand dollars ($5,000), a deductible not exceeding five thousand dollars ($5,000); or




(2) With the approval of the administrator:




(A) An irrevocable letter of credit, issued or confirmed by a bank approved by the administrator, payable upon presentation of a certificate by the administrator stating that the provider or its agent has not complied with this part; or




(B) Bonds or other obligations of the United States or guaranteed by the United States or bonds or other obligations of this state or a political subdivision of this state, to be deposited and maintained with a bank approved by the administrator for this purpose.




(b) If a provider furnishes a substitute pursuant to subsection (a), then § 47-18-5513(a), (c), (d) and (e) apply to the substitute.

.



47-18-5515. Requirement of good faith.


A provider shall act in good faith in all matters under this part.


47-18-5515. Requirement of good faith.


A provider shall act in good faith in all matters under this part.

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47-18-5516. Customer service.
A provider that is required to be registered under this part shall maintain a toll-free communication system, staffed at a level that reasonably permits an individual to speak to a certified counselor, certified debt specialist or customer-service representative, as appropriate, during ordinary business hours.

47-18-5516. Customer service.
A provider that is required to be registered under this part shall maintain a toll-free communication system, staffed at a level that reasonably permits an individual to speak to a certified counselor, certified debt specialist or customer-service representative, as appropriate, during ordinary business hours.

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47-18-5517. Prerequisites for providing debt-management services.


(a) Before providing debt-management services, a registered provider shall give the individual an itemized list of goods and services and the charges for each. The list must be clear and conspicuous, be in a record the individual may keep whether or not the individual assents to an agreement and describe the goods and services the provider offers:




(1) Free of additional charge if the individual enters into an agreement;




(2) For a charge if the individual does not enter into an agreement; and




(3) For a charge if the individual enters into an agreement, using the following terminology, as applicable, and format:





Click to view form.




(b) A provider may not furnish debt-management services unless the provider, through the services of a certified counselor or certified debt specialist:




(1) Provides the individual with reasonable education about the management of personal finance;




(2) Has prepared a financial analysis; and




(3) If the individual is to make regular, periodic payments to a creditor or provider:




(A) Has prepared a plan for the individual;




(B) Has made a determination, based on the provider's analysis of the information provided by the individual and otherwise available to it, that the plan is suitable for the individual and the individual will be able to meet the payment obligations under the plan; and




(C) Believes that each creditor of the individual listed as a participating creditor in the plan will accept payment of the individual's debts as provided in the plan.




(c) Before an individual assents to an agreement to engage in a plan, a provider shall:




(1) Provide the individual with a copy of the analysis and plan required by subsection (b) in a record that identifies the provider and that the individual may keep whether or not the individual assents to the agreement;




(2) Inform the individual of the availability, at the individual's option, of assistance by a toll-free communication system or in person to discuss the financial analysis and plan required by subsection (b); and




(3) If a plan contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, or if the provider's business practices involve holding, accessing or directing the funds of an individual, with respect to all creditors identified by the individual or otherwise known by the provider to be creditors of the individual, provide the individual with a list of:




(A) Creditors that the provider expects to participate in the plan and grant concessions;




(B) Creditors that the provider expects to participate in the plan but not grant concessions;




(C) Creditors that the provider expects not to participate in the plan; and




(D) All other creditors.




(d) Before an individual assents to an agreement, the provider shall inform the individual, in a separate record that the individual may keep whether or not the individual assents to the agreement:




(1) Of the name and business address of the provider;




(2) That plans are not suitable for all individuals and the individual may ask the provider about other ways, including bankruptcy, to deal with indebtedness;




(3) That establishment of a plan may adversely affect the individual's credit rating or credit scores;




(4) That nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation;




(5) Unless it is not true, that the provider may receive compensation from the creditors of the individual; and




(6) That, unless the individual is insolvent, if a creditor settles for less than the full amount of the debt, the plan may result in the creation of taxable income to the individual, even though the individual does not receive any money.




(e) If a provider may receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.




(f) If a provider will not receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.




(g) If an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.


47-18-5517. Prerequisites for providing debt-management services.


(a) Before providing debt-management services, a registered provider shall give the individual an itemized list of goods and services and the charges for each. The list must be clear and conspicuous, be in a record the individual may keep whether or not the individual assents to an agreement and describe the goods and services the provider offers:




(1) Free of additional charge if the individual enters into an agreement;




(2) For a charge if the individual does not enter into an agreement; and




(3) For a charge if the individual enters into an agreement, using the following terminology, as applicable, and format:





Click to view form.




(b) A provider may not furnish debt-management services unless the provider, through the services of a certified counselor or certified debt specialist:




(1) Provides the individual with reasonable education about the management of personal finance;




(2) Has prepared a financial analysis; and




(3) If the individual is to make regular, periodic payments to a creditor or provider:




(A) Has prepared a plan for the individual;




(B) Has made a determination, based on the provider's analysis of the information provided by the individual and otherwise available to it, that the plan is suitable for the individual and the individual will be able to meet the payment obligations under the plan; and




(C) Believes that each creditor of the individual listed as a participating creditor in the plan will accept payment of the individual's debts as provided in the plan.




(c) Before an individual assents to an agreement to engage in a plan, a provider shall:




(1) Provide the individual with a copy of the analysis and plan required by subsection (b) in a record that identifies the provider and that the individual may keep whether or not the individual assents to the agreement;




(2) Inform the individual of the availability, at the individual's option, of assistance by a toll-free communication system or in person to discuss the financial analysis and plan required by subsection (b); and




(3) If a plan contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, or if the provider's business practices involve holding, accessing or directing the funds of an individual, with respect to all creditors identified by the individual or otherwise known by the provider to be creditors of the individual, provide the individual with a list of:




(A) Creditors that the provider expects to participate in the plan and grant concessions;




(B) Creditors that the provider expects to participate in the plan but not grant concessions;




(C) Creditors that the provider expects not to participate in the plan; and




(D) All other creditors.




(d) Before an individual assents to an agreement, the provider shall inform the individual, in a separate record that the individual may keep whether or not the individual assents to the agreement:




(1) Of the name and business address of the provider;




(2) That plans are not suitable for all individuals and the individual may ask the provider about other ways, including bankruptcy, to deal with indebtedness;




(3) That establishment of a plan may adversely affect the individual's credit rating or credit scores;




(4) That nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation;




(5) Unless it is not true, that the provider may receive compensation from the creditors of the individual; and




(6) That, unless the individual is insolvent, if a creditor settles for less than the full amount of the debt, the plan may result in the creation of taxable income to the individual, even though the individual does not receive any money.




(e) If a provider may receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.




(f) If a provider will not receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.




(g) If an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines:





Click to view form.

.




47-18-5518. Communication by electronic or other means.
(a) In this section:




(1) “Consumer” means an individual who seeks or obtains goods or services that are used primarily for personal, family or household purposes; and




(2) “Federal act” means the electronic signatures in the Global and National Commerce Act, 15 U.S.C. § 7001, et seq.




(b) A provider may satisfy the requirements of § 47-18-5517, § 47-18-5519, or § 47-18-5527 by means of the Internet or other electronic means if the provider obtains a consumer's consent in the manner provided by 15 U.S.C. § 7001(c)(1).




(c) The disclosures and materials required by §§ 47-18-5517, 47-18-5519 and 47-18-5520 shall be presented in a form that is capable of being accurately reproduced for later reference.




(d) With respect to disclosure by means of an Internet web site, the disclosure of the information required by § 47-18-5517(d) must appear on one (1) or more screens that:




(1) Contain no other information; and




(2) The individual must see before proceeding to assent to formation of an agreement.




(e) At the time of providing the materials and agreement required by §§ 47-18-5517(c) and (d), 47-18-5519 and 47-18-5527, a provider shall inform the individual that upon electronic, telephonic or written request, it will send the individual a written copy of the materials and shall comply with a request as provided in subsection (f).




(f) If a provider is requested, before the expiration of ninety (90) days after an agreement is completed or terminated, to send a written copy of the materials required by § 47-18-5517(c) and (d), § 47-18-5519, or § 47-18-5527, the provider shall send them at no charge within three (3) business days after the request is received; but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than ninety (90) days after an agreement is completed or terminated, the provider shall send, within a reasonable time, a written copy of the materials requested.




(g) A provider that maintains an Internet web site shall disclose on the home page of its web site or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents:




(1) Its name and all names under which it does business;




(2) Its principal business address, telephone number and electronic-mail address, if any; and




(3) The names of its principal officers.




(h) Subject to subsection (i), if a consumer who has consented to electronic communication in the manner provided by 15 U.S.C. § 7001 withdraws consent as provided in 15 U.S.C. § 7001, a provider may terminate its agreement with the consumer.




(i) If a provider wishes to terminate an agreement with a consumer pursuant to subsection (h), it shall notify the consumer that it will terminate the agreement unless the consumer, within thirty (30) days after receiving the notification, consents to electronic communication in the manner provided in 15 U.S.C. § 7001(c). If the consumer consents, the provider may terminate the agreement only as permitted by § 47-18-5519(a)(6)(G).



47-18-5518. Communication by electronic or other means.
(a) In this section:




(1) “Consumer” means an individual who seeks or obtains goods or services that are used primarily for personal, family or household purposes; and




(2) “Federal act” means the electronic signatures in the Global and National Commerce Act, 15 U.S.C. § 7001, et seq.




(b) A provider may satisfy the requirements of § 47-18-5517, § 47-18-5519, or § 47-18-5527 by means of the Internet or other electronic means if the provider obtains a consumer's consent in the manner provided by 15 U.S.C. § 7001(c)(1).




(c) The disclosures and materials required by §§ 47-18-5517, 47-18-5519 and 47-18-5520 shall be presented in a form that is capable of being accurately reproduced for later reference.




(d) With respect to disclosure by means of an Internet web site, the disclosure of the information required by § 47-18-5517(d) must appear on one (1) or more screens that:




(1) Contain no other information; and




(2) The individual must see before proceeding to assent to formation of an agreement.




(e) At the time of providing the materials and agreement required by §§ 47-18-5517(c) and (d), 47-18-5519 and 47-18-5527, a provider shall inform the individual that upon electronic, telephonic or written request, it will send the individual a written copy of the materials and shall comply with a request as provided in subsection (f).




(f) If a provider is requested, before the expiration of ninety (90) days after an agreement is completed or terminated, to send a written copy of the materials required by § 47-18-5517(c) and (d), § 47-18-5519, or § 47-18-5527, the provider shall send them at no charge within three (3) business days after the request is received; but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than ninety (90) days after an agreement is completed or terminated, the provider shall send, within a reasonable time, a written copy of the materials requested.




(g) A provider that maintains an Internet web site shall disclose on the home page of its web site or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents:




(1) Its name and all names under which it does business;




(2) Its principal business address, telephone number and electronic-mail address, if any; and




(3) The names of its principal officers.




(h) Subject to subsection (i), if a consumer who has consented to electronic communication in the manner provided by 15 U.S.C. § 7001 withdraws consent as provided in 15 U.S.C. § 7001, a provider may terminate its agreement with the consumer.




(i) If a provider wishes to terminate an agreement with a consumer pursuant to subsection (h), it shall notify the consumer that it will terminate the agreement unless the consumer, within thirty (30) days after receiving the notification, consents to electronic communication in the manner provided in 15 U.S.C. § 7001(c). If the consumer consents, the provider may terminate the agreement only as permitted by § 47-18-5519(a)(6)(G).

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47-18-5519. Form and contents of agreement.
(a) An agreement must:




(1) Be in a record;




(2) Be dated and signed by the provider and the individual;




(3) Include the name of the individual and the address where the individual resides;




(4) Include the name, business address and telephone number of the provider;




(5) Be delivered to the individual immediately upon formation of the agreement; and




(6) Disclose:




(A) The services to be provided;




(B) The amount, or method of determining the amount, of all fees, individually itemized, to be paid by the individual;




(C) The schedule of payments to be made by or on behalf of the individual, including the amount of each payment, the date on which each payment is due and an estimate of the date of the final payment;




(D) If a plan provides for regular periodic payments to creditors:




(i) Each creditor of the individual to which payment will be made, the amount owed to each creditor and any concessions the provider reasonably believes each creditor will offer; and




(ii) The schedule of expected payments to each creditor, including the amount of each payment and the date on which it will be made;




(E) Each creditor that the provider believes will not participate in the plan and to which the provider will not direct payment;




(F) How the provider will comply with its obligations under § 47-18-5527(a);




(G) That the provider may terminate the agreement for good cause, upon return of unexpended money of the individual;




(H) That the individual may cancel the agreement as provided in § 47-18-5520;




(I) That the individual may contact the administrator with any questions or complaints regarding the provider; and




(J) The address, telephone number, and Internet address or web site of the administrator.




(b) For purposes of subdivision (a)(5), delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save and print it and the individual is notified that it is available.




(c) If the administrator supplies the provider with any information required under subdivision (a)(6)(J), the provider may comply with that requirement only by disclosing the information supplied by the administrator.




(d) An agreement must provide that:




(1) The individual has a right to terminate the agreement at any time, without penalty or obligation, by giving the provider written or electronic notice, in which event:




(A) The provider will refund all unexpended money that the provider or its agent has received from or on behalf of the individual for the reduction or satisfaction of the individual's debt;




(B) With respect to an agreement that contemplates that creditors will settle debts for less than the principal amount of debt, the provider will refund sixty-five percent (65%) of any portion of the set-up fee that has not been credited against the settlement fee; and




(C) All powers of attorney granted by the individual to the provider are revoked and ineffective;




(2) The individual authorizes any bank in which the provider or its agent has established a trust account to disclose to the administrator any financial records relating to the trust account; and




(3) The provider will notify the individual within five (5) days after learning of a creditor's final decision to reject or withdraw from a plan and that this notice will include:




(A) The identity of the creditor; and




(B) The right of the individual to modify or terminate the agreement.




(e) An agreement may confer on a provider a power of attorney to settle the individual's debt for no more than fifty percent (50%) of the outstanding amount of the debt. An agreement may not confer a power of attorney to settle a debt for more than fifty percent (50%) of that amount, but may confer a power of attorney to negotiate with creditors of the individual on behalf of the individual. An agreement must provide that the provider will obtain the assent of the individual after a creditor has assented to a settlement for more than fifty percent (50%) of the outstanding amount of the debt.




(f) An agreement may not:




(1) Provide for application of the law of any jurisdiction other than the United States and this state;




(2) Except as permitted by title 29, chapter 5, part 3, or by § 2 of the Federal Arbitration Act, codified in 9 U.S.C. § 2, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this part;




(3) Contain a provision that restricts the individual's remedies under this part or law other than this part; or




(4) Contain a provision that:




(A) Limits or releases the liability of any person for not performing the agreement or for violating this part; or




(B) Indemnifies any person for liability arising under the agreement or this part.




(g) All rights and obligations specified in subsection (d) and § 47-18-5520 exist even if not provided in the agreement. A provision in an agreement that violates subsection (d), (e) or (f) is void.


47-18-5519. Form and contents of agreement.
(a) An agreement must:




(1) Be in a record;




(2) Be dated and signed by the provider and the individual;




(3) Include the name of the individual and the address where the individual resides;




(4) Include the name, business address and telephone number of the provider;




(5) Be delivered to the individual immediately upon formation of the agreement; and




(6) Disclose:




(A) The services to be provided;




(B) The amount, or method of determining the amount, of all fees, individually itemized, to be paid by the individual;




(C) The schedule of payments to be made by or on behalf of the individual, including the amount of each payment, the date on which each payment is due and an estimate of the date of the final payment;




(D) If a plan provides for regular periodic payments to creditors:




(i) Each creditor of the individual to which payment will be made, the amount owed to each creditor and any concessions the provider reasonably believes each creditor will offer; and




(ii) The schedule of expected payments to each creditor, including the amount of each payment and the date on which it will be made;




(E) Each creditor that the provider believes will not participate in the plan and to which the provider will not direct payment;




(F) How the provider will comply with its obligations under § 47-18-5527(a);




(G) That the provider may terminate the agreement for good cause, upon return of unexpended money of the individual;




(H) That the individual may cancel the agreement as provided in § 47-18-5520;




(I) That the individual may contact the administrator with any questions or complaints regarding the provider; and




(J) The address, telephone number, and Internet address or web site of the administrator.




(b) For purposes of subdivision (a)(5), delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save and print it and the individual is notified that it is available.




(c) If the administrator supplies the provider with any information required under subdivision (a)(6)(J), the provider may comply with that requirement only by disclosing the information supplied by the administrator.




(d) An agreement must provide that:




(1) The individual has a right to terminate the agreement at any time, without penalty or obligation, by giving the provider written or electronic notice, in which event:




(A) The provider will refund all unexpended money that the provider or its agent has received from or on behalf of the individual for the reduction or satisfaction of the individual's debt;




(B) With respect to an agreement that contemplates that creditors will settle debts for less than the principal amount of debt, the provider will refund sixty-five percent (65%) of any portion of the set-up fee that has not been credited against the settlement fee; and




(C) All powers of attorney granted by the individual to the provider are revoked and ineffective;




(2) The individual authorizes any bank in which the provider or its agent has established a trust account to disclose to the administrator any financial records relating to the trust account; and




(3) The provider will notify the individual within five (5) days after learning of a creditor's final decision to reject or withdraw from a plan and that this notice will include:




(A) The identity of the creditor; and




(B) The right of the individual to modify or terminate the agreement.




(e) An agreement may confer on a provider a power of attorney to settle the individual's debt for no more than fifty percent (50%) of the outstanding amount of the debt. An agreement may not confer a power of attorney to settle a debt for more than fifty percent (50%) of that amount, but may confer a power of attorney to negotiate with creditors of the individual on behalf of the individual. An agreement must provide that the provider will obtain the assent of the individual after a creditor has assented to a settlement for more than fifty percent (50%) of the outstanding amount of the debt.




(f) An agreement may not:




(1) Provide for application of the law of any jurisdiction other than the United States and this state;




(2) Except as permitted by title 29, chapter 5, part 3, or by § 2 of the Federal Arbitration Act, codified in 9 U.S.C. § 2, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this part;




(3) Contain a provision that restricts the individual's remedies under this part or law other than this part; or




(4) Contain a provision that:




(A) Limits or releases the liability of any person for not performing the agreement or for violating this part; or




(B) Indemnifies any person for liability arising under the agreement or this part.




(g) All rights and obligations specified in subsection (d) and § 47-18-5520 exist even if not provided in the agreement. A provision in an agreement that violates subsection (d), (e) or (f) is void.

.




47-18-5520. Cancellation of agreement — Waiver.



(a) An individual may cancel an agreement before midnight of the third business day after the individual assents to it, unless the agreement does not comply with subsection (b) or § 47-18-5519 or § 47-18-5528, in which event the individual may cancel the agreement within thirty (30) days after the individual assents to it. To exercise the right to cancel, the individual must give notice in a record to the provider. Notice by mail is given when mailed.




(b) An agreement must be accompanied by a form that contains in boldface type, surrounded by bold black lines:





Click to view form.




(c) If a personal financial emergency necessitates the disbursement of an individual's money to one (1) or more of the individual's creditors before the expiration of three (3) days after an agreement is signed, an individual may waive the right to cancel. To waive the right, the individual must send or deliver a signed, dated statement in the individual's own words describing the circumstances that necessitate a waiver. The waiver must explicitly waive the right to cancel. A waiver by means of a standard-form record is void.



47-18-5520. Cancellation of agreement — Waiver.



(a) An individual may cancel an agreement before midnight of the third business day after the individual assents to it, unless the agreement does not comply with subsection (b) or § 47-18-5519 or § 47-18-5528, in which event the individual may cancel the agreement within thirty (30) days after the individual assents to it. To exercise the right to cancel, the individual must give notice in a record to the provider. Notice by mail is given when mailed.




(b) An agreement must be accompanied by a form that contains in boldface type, surrounded by bold black lines:





Click to view form.




(c) If a personal financial emergency necessitates the disbursement of an individual's money to one (1) or more of the individual's creditors before the expiration of three (3) days after an agreement is signed, an individual may waive the right to cancel. To waive the right, the individual must send or deliver a signed, dated statement in the individual's own words describing the circumstances that necessitate a waiver. The waiver must explicitly waive the right to cancel. A waiver by means of a standard-form record is void.

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47-18-5521. Required language.


Unless the administrator, by rule, provides otherwise, the disclosures and documents required by this part must be in English. If a provider communicates with an individual primarily in a language other than English, the provider must furnish a translation into the other language of the disclosures and documents required by this part.


47-18-5521. Required language.


Unless the administrator, by rule, provides otherwise, the disclosures and documents required by this part must be in English. If a provider communicates with an individual primarily in a language other than English, the provider must furnish a translation into the other language of the disclosures and documents required by this part.

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47-18-5522. Trust account.



(a) All money paid to a provider by or on behalf of an individual for distribution to creditors pursuant to a plan is held in trust. Within two (2) business days after receipt, the provider shall deposit the money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services.




(b) Money held in trust by a provider is not property of the provider or its designee. The money is not available to creditors of the provider or designee, except an individual from whom or on whose behalf the provider received money, to the extent that the money has not been disbursed to creditors of the individual.




(c) A provider shall:




(1) Maintain separate records of account for each individual to whom the provider is furnishing debt-management services;




(2) Disburse money paid by or on behalf of the individual to creditors of the individual as disclosed in the agreement, except that:




(A) The provider may delay payment to the extent that a payment by the individual is not final; and




(B) If a plan provides for regular periodic payments to creditors, the disbursement must comply with the due dates established by each creditor; and




(3) Promptly correct any payments that are not made or that are misdirected as a result of an error by the provider or other person in control of the trust account and reimburse the individual for any costs or fees imposed by a creditor as a result of the failure to pay or misdirection.




(d) A provider may not commingle money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services with money of other persons.




(e) A trust account must at all times have a cash balance equal to the sum of the balances of each individual's account.




(f) If a provider has established a trust account pursuant to subsection (a), the provider shall reconcile the trust account at least once a month. The reconciliation must compare the cash balance in the trust account with the sum of the balances in each individual's account. If the provider or its designee has more than one (1) trust account, each trust account must be individually reconciled.




(g) If a provider discovers, or has a reasonable suspicion of, embezzlement or other unlawful appropriation of money held in trust, the provider immediately shall notify the administrator by a method approved by the administrator. Unless the administrator by rule provides otherwise, within five (5) days thereafter, the provider shall give notice to the administrator describing the remedial action taken or to be taken.




(h) If an individual terminates an agreement or it becomes reasonably apparent to a provider that a plan has failed, the provider shall promptly refund to the individual all money paid by or on behalf of the individual that has not been paid to creditors, less fees that are payable to the provider under § 47-18-5523.




(i) Before relocating a trust account from one bank to another, a provider shall inform the administrator of the name, business address and telephone number of the new bank. As soon as practicable, the provider shall inform the administrator of the account number of the trust account at the new bank.
47-18-5522. Trust account.



(a) All money paid to a provider by or on behalf of an individual for distribution to creditors pursuant to a plan is held in trust. Within two (2) business days after receipt, the provider shall deposit the money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services.




(b) Money held in trust by a provider is not property of the provider or its designee. The money is not available to creditors of the provider or designee, except an individual from whom or on whose behalf the provider received money, to the extent that the money has not been disbursed to creditors of the individual.




(c) A provider shall:




(1) Maintain separate records of account for each individual to whom the provider is furnishing debt-management services;




(2) Disburse money paid by or on behalf of the individual to creditors of the individual as disclosed in the agreement, except that:




(A) The provider may delay payment to the extent that a payment by the individual is not final; and




(B) If a plan provides for regular periodic payments to creditors, the disbursement must comply with the due dates established by each creditor; and




(3) Promptly correct any payments that are not made or that are misdirected as a result of an error by the provider or other person in control of the trust account and reimburse the individual for any costs or fees imposed by a creditor as a result of the failure to pay or misdirection.




(d) A provider may not commingle money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services with money of other persons.




(e) A trust account must at all times have a cash balance equal to the sum of the balances of each individual's account.




(f) If a provider has established a trust account pursuant to subsection (a), the provider shall reconcile the trust account at least once a month. The reconciliation must compare the cash balance in the trust account with the sum of the balances in each individual's account. If the provider or its designee has more than one (1) trust account, each trust account must be individually reconciled.




(g) If a provider discovers, or has a reasonable suspicion of, embezzlement or other unlawful appropriation of money held in trust, the provider immediately shall notify the administrator by a method approved by the administrator. Unless the administrator by rule provides otherwise, within five (5) days thereafter, the provider shall give notice to the administrator describing the remedial action taken or to be taken.




(h) If an individual terminates an agreement or it becomes reasonably apparent to a provider that a plan has failed, the provider shall promptly refund to the individual all money paid by or on behalf of the individual that has not been paid to creditors, less fees that are payable to the provider under § 47-18-5523.




(i) Before relocating a trust account from one bank to another, a provider shall inform the administrator of the name, business address and telephone number of the new bank. As soon as practicable, the provider shall inform the administrator of the account number of the trust account at the new bank.

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47-18-5523. Fees and other charges.


(a) A provider may not impose directly or indirectly a fee or other charge on an individual or receive money from or on behalf of an individual for debt-management services except as permitted by this section.




(b) A provider may not impose charges or receive payment for debt-management services until the provider and the individual have signed an agreement that complies with §§ 47-18-5519 and 47-18-5528.




(c) If an individual assents to an agreement, a provider may not impose a fee or other charge for educational or counseling services, or the like, except as otherwise provided in this subsection (c) and § 47-18-5528(d). The administrator may authorize a provider to charge a fee based on the nature and extent of the educational or counseling services furnished by the provider.




(d) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), the following rules apply:




(1) If an individual assents to a plan that contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may charge:




(A) A fee not exceeding fifty dollars ($50.00) for consultation, obtaining a credit report, setting up an account, and the like; and




(B) A monthly service fee, not to exceed ten dollars ($10.00) times the number of creditors remaining in a plan at the time the fee is assessed, but not more than fifty dollars ($50.00) in any month;




(2) If an individual assents to an agreement that contemplates that creditors will settle debts for less than the principal amount of the debt, a provider may charge:




(A) Subject to § 47-18-5519(d), a fee for consultation, obtaining a credit report, setting up an account, and the like, in an amount not exceeding the lesser of four hundred dollars ($400) or four percent (4%) of the debt in the plan at the inception of the plan; and




(B) A monthly service fee, not to exceed ten dollars ($10.00) times the number of creditors remaining in a plan at the time the fee is assessed, but not more than fifty dollars ($50.00) in any month;




(3) A provider may not impose or receive fees under both subdivisions (d)(1) and (2); and




(4) Except as otherwise provided in § 47-18-5528(d), if an individual does not assent to an agreement, a provider may receive for educational and counseling services it provides to the individual a fee not exceeding one hundred dollars ($100) or, with the approval of the administrator, a larger fee. The administrator may approve a fee larger than one hundred dollars ($100) if the nature and extent of the educational and counseling services warrant the larger fee.




(e) If, before the expiration of ninety (90) days after the completion or termination of educational or counseling services, an individual assents to an agreement, the provider shall refund to the individual any fee paid pursuant to subdivision (d)(4).




(f) Except as otherwise provided in subsections (c) and (d), if an agreement contemplates that creditors will settle an individual's debts for less than the principal amount of the debt, compensation for services in connection with settling a debt may not exceed the applicable settlement fee limits in subdivisions (f)(1) and (2), the terms of which shall be clearly disclosed in the agreement.




(1) With respect to an agreement that provides for a flat settlement fee based on the overall amount of included debt, the total aggregate amount of fees charged to any individual under this part, including fees charged under subdivisions (d)(2)(A) and (B), may not exceed seventeen percent (17%) of the principal amount of debt included in the agreement at the inception of the agreement. The flat settlement fee authorized under this subdivision (f)(1) shall be assessed in equal monthly payments over at least half the length of the plan, as estimated at the plan's inception, unless the payment of fees is voluntarily accelerated by the individual in a separate record and at least half of the overall amount of outstanding debt covered by the agreement has been settled.




(2) With respect to agreements in which fees are calculated as a percentage of the amount saved by an individual, a settlement fee may not exceed thirty percent (30%) of the excess of the outstanding amount of each debt over the amount actually paid to the creditor, as calculated at the time of settlement. Settlement fees authorized under this subdivision (f)(2) shall become billable only as debts are settled, and the total aggregate amount of fees charged to any individual under this part, including fees charged under subdivisions (d)(2)(A) and (B), may not exceed twenty percent (20%) of the principal amount of debt included in the agreement at the agreement's inception.




(3) A provider may not impose or receive fees under both subdivisions (f)(1) and (2).




(g) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a payment to a provider by an individual under this part is dishonored, a provider may impose a reasonable charge on the individual, not to exceed the lesser of twenty-five dollars ($25.00) and the amount permitted by law other than this part.


47-18-5523. Fees and other charges.


(a) A provider may not impose directly or indirectly a fee or other charge on an individual or receive money from or on behalf of an individual for debt-management services except as permitted by this section.




(b) A provider may not impose charges or receive payment for debt-management services until the provider and the individual have signed an agreement that complies with §§ 47-18-5519 and 47-18-5528.




(c) If an individual assents to an agreement, a provider may not impose a fee or other charge for educational or counseling services, or the like, except as otherwise provided in this subsection (c) and § 47-18-5528(d). The administrator may authorize a provider to charge a fee based on the nature and extent of the educational or counseling services furnished by the provider.




(d) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), the following rules apply:




(1) If an individual assents to a plan that contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may charge:




(A) A fee not exceeding fifty dollars ($50.00) for consultation, obtaining a credit report, setting up an account, and the like; and




(B) A monthly service fee, not to exceed ten dollars ($10.00) times the number of creditors remaining in a plan at the time the fee is assessed, but not more than fifty dollars ($50.00) in any month;




(2) If an individual assents to an agreement that contemplates that creditors will settle debts for less than the principal amount of the debt, a provider may charge:




(A) Subject to § 47-18-5519(d), a fee for consultation, obtaining a credit report, setting up an account, and the like, in an amount not exceeding the lesser of four hundred dollars ($400) or four percent (4%) of the debt in the plan at the inception of the plan; and




(B) A monthly service fee, not to exceed ten dollars ($10.00) times the number of creditors remaining in a plan at the time the fee is assessed, but not more than fifty dollars ($50.00) in any month;




(3) A provider may not impose or receive fees under both subdivisions (d)(1) and (2); and




(4) Except as otherwise provided in § 47-18-5528(d), if an individual does not assent to an agreement, a provider may receive for educational and counseling services it provides to the individual a fee not exceeding one hundred dollars ($100) or, with the approval of the administrator, a larger fee. The administrator may approve a fee larger than one hundred dollars ($100) if the nature and extent of the educational and counseling services warrant the larger fee.




(e) If, before the expiration of ninety (90) days after the completion or termination of educational or counseling services, an individual assents to an agreement, the provider shall refund to the individual any fee paid pursuant to subdivision (d)(4).




(f) Except as otherwise provided in subsections (c) and (d), if an agreement contemplates that creditors will settle an individual's debts for less than the principal amount of the debt, compensation for services in connection with settling a debt may not exceed the applicable settlement fee limits in subdivisions (f)(1) and (2), the terms of which shall be clearly disclosed in the agreement.




(1) With respect to an agreement that provides for a flat settlement fee based on the overall amount of included debt, the total aggregate amount of fees charged to any individual under this part, including fees charged under subdivisions (d)(2)(A) and (B), may not exceed seventeen percent (17%) of the principal amount of debt included in the agreement at the inception of the agreement. The flat settlement fee authorized under this subdivision (f)(1) shall be assessed in equal monthly payments over at least half the length of the plan, as estimated at the plan's inception, unless the payment of fees is voluntarily accelerated by the individual in a separate record and at least half of the overall amount of outstanding debt covered by the agreement has been settled.




(2) With respect to agreements in which fees are calculated as a percentage of the amount saved by an individual, a settlement fee may not exceed thirty percent (30%) of the excess of the outstanding amount of each debt over the amount actually paid to the creditor, as calculated at the time of settlement. Settlement fees authorized under this subdivision (f)(2) shall become billable only as debts are settled, and the total aggregate amount of fees charged to any individual under this part, including fees charged under subdivisions (d)(2)(A) and (B), may not exceed twenty percent (20%) of the principal amount of debt included in the agreement at the agreement's inception.




(3) A provider may not impose or receive fees under both subdivisions (f)(1) and (2).




(g) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a payment to a provider by an individual under this part is dishonored, a provider may impose a reasonable charge on the individual, not to exceed the lesser of twenty-five dollars ($25.00) and the amount permitted by law other than this part.

.



47-18-5524. Voluntary contributions.


A provider may not solicit a voluntary contribution from an individual or an affiliate of the individual for any service provided to the individual. A provider may accept voluntary contributions from an individual but, until thirty (30) days after completion or termination of a plan, the aggregate amount of money received from or on behalf of the individual may not exceed the total amount the provider may charge the individual under § 47-18-5523.


47-18-5524. Voluntary contributions.


A provider may not solicit a voluntary contribution from an individual or an affiliate of the individual for any service provided to the individual. A provider may accept voluntary contributions from an individual but, until thirty (30) days after completion or termination of a plan, the aggregate amount of money received from or on behalf of the individual may not exceed the total amount the provider may charge the individual under § 47-18-5523.

.



47-18-5525. Voidable agreements.


(a) If a provider imposes a fee or other charge or receives money or other payments not authorized by § 47-18-5523 or § 47-18-5524, the individual may void the agreement and recover as provided in § 47-18-5535.




(b) If a provider is not registered as required by this part when an individual assents to an agreement, the agreement is voidable by the individual.




(c) If an individual voids an agreement under subsection (b), the provider does not have a claim against the individual for breach of contract or for restitution.


47-18-5525. Voidable agreements.


(a) If a provider imposes a fee or other charge or receives money or other payments not authorized by § 47-18-5523 or § 47-18-5524, the individual may void the agreement and recover as provided in § 47-18-5535.




(b) If a provider is not registered as required by this part when an individual assents to an agreement, the agreement is voidable by the individual.




(c) If an individual voids an agreement under subsection (b), the provider does not have a claim against the individual for breach of contract or for restitution.

.

47-18-5526. Termination of agreements.

(a) If an individual who has entered into an agreement fails for sixty (60) days to make payments required by the agreement, a provider may terminate the agreement.




(b) If a provider or an individual terminates an agreement, the provider shall immediately return to the individual:




(1) Any money of the individual held in trust for the benefit of the individual; and




(2) Sixty-five percent (65%) of any portion of the set-up fee received pursuant to § 47-18-5523(d)(2) that has not been credited against settlement fees.
47-18-5526. Termination of agreements.

(a) If an individual who has entered into an agreement fails for sixty (60) days to make payments required by the agreement, a provider may terminate the agreement.




(b) If a provider or an individual terminates an agreement, the provider shall immediately return to the individual:




(1) Any money of the individual held in trust for the benefit of the individual; and




(2) Sixty-five percent (65%) of any portion of the set-up fee received pursuant to § 47-18-5523(d)(2) that has not been credited against settlement fees.

.

47-18-5527. Periodic reports and retention of records. (a) A provider shall provide the accounting required by subsection (b):




(1) Upon cancellation or termination of an agreement; and




(2) Before cancellation or termination of any agreement:




(A) At least once each month; and




(B) Within five (5) business days after a request by an individual, but the provider need not comply with more than one (1) request in any calendar month.




(b) A provider, in a record, shall provide each individual for whom it has established a plan an accounting of the following information:




(1) The amount of money received from the individual since the last report;




(2) The amounts and dates of disbursements made on the individual's behalf, or by the individual upon the direction of the provider, since the last report to each creditor listed in the plan;




(3) The amounts deducted from the amount received from the individual;




(4) The amount held in reserve; and




(5) If, since the last report, a creditor has agreed to accept as payment in full an amount less than the principal amount of the debt owed by the individual:




(A) The total amount and terms of the settlement;




(B) The amount of the debt when the individual assented to the plan;




(C) The amount of the debt when the creditor agreed to the settlement; and




(D) The calculation of a settlement fee.




(c) A provider shall maintain records for each individual for whom it provides debt-management services for five (5) years after the final payment made by the individual and produce a copy of them to the individual within a reasonable time after a request for them. The provider may use electronic or other means of storage of the records.
47-18-5527. Periodic reports and retention of records. (a) A provider shall provide the accounting required by subsection (b):




(1) Upon cancellation or termination of an agreement; and




(2) Before cancellation or termination of any agreement:




(A) At least once each month; and




(B) Within five (5) business days after a request by an individual, but the provider need not comply with more than one (1) request in any calendar month.




(b) A provider, in a record, shall provide each individual for whom it has established a plan an accounting of the following information:




(1) The amount of money received from the individual since the last report;




(2) The amounts and dates of disbursements made on the individual's behalf, or by the individual upon the direction of the provider, since the last report to each creditor listed in the plan;




(3) The amounts deducted from the amount received from the individual;




(4) The amount held in reserve; and




(5) If, since the last report, a creditor has agreed to accept as payment in full an amount less than the principal amount of the debt owed by the individual:




(A) The total amount and terms of the settlement;




(B) The amount of the debt when the individual assented to the plan;




(C) The amount of the debt when the creditor agreed to the settlement; and




(D) The calculation of a settlement fee.




(c) A provider shall maintain records for each individual for whom it provides debt-management services for five (5) years after the final payment made by the individual and produce a copy of them to the individual within a reasonable time after a request for them. The provider may use electronic or other means of storage of the records.

.



47-18-5528. Prohibited acts and practices.
(a) A provider may not, directly or indirectly:




(1) Misappropriate or misapply money held in trust;




(2) Settle a debt on behalf of an individual for more than fifty percent (50%) of the outstanding amount of the debt owed a creditor, unless the individual assents to the settlement after the creditor has assented;




(3) Take a power of attorney that authorizes it to settle a debt, unless the power of attorney expressly limits the provider's authority to settle debts for not more than fifty percent (50%) of the outstanding amount of the debt owed a creditor;




(4) Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;




(5) Initiate a transfer from an individual's account at a bank or with another person unless the transfer is:




(A) A return of money to the individual; or




(B) Before termination of an agreement, properly authorized by the agreement and this part, and for:




(i) Payment to one (1) or more creditors pursuant to an agreement; or




(ii) Payment of a fee;




(6) Offer a gift or bonus, premium, reward or other compensation to an individual for executing an agreement;




(7) Offer, pay or give a gift or bonus, premium, reward or other compensation to a person for referring a prospective customer, if the person making the referral has a financial interest in the outcome of debt-management services provided to the customer, unless neither the provider nor the person making the referral communicates to the prospective customer the identity of the source of the referral;




(8) Receive a bonus, commission or other benefit for referring an individual to a person;




(9) Structure a plan in a manner that would result in a negative amortization of any of an individual's debts, unless a creditor that is owed a negatively amortizing debt agrees to refund or waive the finance charge upon payment of the principal amount of the debt;




(10) Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;




(11) Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification by the creditor that the payment is in full settlement of the debt or is part of a payment plan, the terms of which are included in the certification, that upon completion, will lead to full settlement of the debt;




(12) Make a representation that:




(A) The provider will furnish money to pay bills or prevent attachments;




(B) Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or




(C) Participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction or loss of employment;




(13) Misrepresent that it is authorized or competent to furnish legal advice or perform legal services;




(14) Represent in its agreements, disclosures required by this part, advertisements or Internet web site that it is:




(A) A not-for-profit entity unless it is organized and properly operating as a not-for-profit entity under the law of the state in which it was formed; or




(B) A tax-exempt entity unless it has received certification of tax-exempt status from the internal revenue service and is properly operating as a not-for-profit entity under the law of the state in which it was formed;




(15) Take a confession of judgment or power of attorney to confess judgment against an individual; or




(16) Employ an unfair, unconscionable or deceptive act or practice, including the knowing omission of any material information.




(b) If a provider furnishes debt-management services to an individual, the provider may not, directly or indirectly:




(1) Purchase a debt or obligation of the individual;




(2) Receive from or on behalf of the individual:




(A) A promissory note or other negotiable instrument other than a check or a demand draft; or




(B) A post-dated check or demand draft;




(3) Lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual;




(4) Obtain a mortgage or other security interest from any person in connection with the services provided to the individual;




(5) Except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual's creditors, except to:




(A) The administrator, upon proper demand;




(B) A creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or




(C) The extent necessary to administer the plan;




(6) Except as otherwise provided in § 47-18-5523(f), provide the individual less than the full benefit of a compromise of a debt arranged by the provider;




(7) Charge the individual for or provide credit or other insurance, coupons for goods or services, membership in a club, access to computers or the Internet, or any other matter not directly related to debt-management services or educational services concerning personal finance except to the extent such services are expressly authorized by the administrator; or




(8) Furnish legal advice or perform legal services, unless the person furnishing that advice to or performing those services for the individual is licensed to practice law.




(c) This part does not authorize any person to engage in the practice of law.




(d) A provider may not receive a gift or bonus, premium, reward or other compensation, directly or indirectly, for advising, arranging or assisting an individual in connection with obtaining an extension of credit or other service from a lender or service provider, except for educational or counseling services required in connection with a government-sponsored program.




(e) Unless a person supplies goods, services or facilities generally and supplies them to the provider at a cost no greater than the cost the person generally charges to others, a provider may not purchase goods, services or facilities from the person if an employee or a person that the provider should reasonably know is an affiliate of the provider:




(1) Owns more than ten percent (10%) of the person; or




(2) Is an employee or affiliate of the person.


47-18-5528. Prohibited acts and practices.
(a) A provider may not, directly or indirectly:




(1) Misappropriate or misapply money held in trust;




(2) Settle a debt on behalf of an individual for more than fifty percent (50%) of the outstanding amount of the debt owed a creditor, unless the individual assents to the settlement after the creditor has assented;




(3) Take a power of attorney that authorizes it to settle a debt, unless the power of attorney expressly limits the provider's authority to settle debts for not more than fifty percent (50%) of the outstanding amount of the debt owed a creditor;




(4) Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;




(5) Initiate a transfer from an individual's account at a bank or with another person unless the transfer is:




(A) A return of money to the individual; or




(B) Before termination of an agreement, properly authorized by the agreement and this part, and for:




(i) Payment to one (1) or more creditors pursuant to an agreement; or




(ii) Payment of a fee;




(6) Offer a gift or bonus, premium, reward or other compensation to an individual for executing an agreement;




(7) Offer, pay or give a gift or bonus, premium, reward or other compensation to a person for referring a prospective customer, if the person making the referral has a financial interest in the outcome of debt-management services provided to the customer, unless neither the provider nor the person making the referral communicates to the prospective customer the identity of the source of the referral;




(8) Receive a bonus, commission or other benefit for referring an individual to a person;




(9) Structure a plan in a manner that would result in a negative amortization of any of an individual's debts, unless a creditor that is owed a negatively amortizing debt agrees to refund or waive the finance charge upon payment of the principal amount of the debt;




(10) Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;




(11) Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification by the creditor that the payment is in full settlement of the debt or is part of a payment plan, the terms of which are included in the certification, that upon completion, will lead to full settlement of the debt;




(12) Make a representation that:




(A) The provider will furnish money to pay bills or prevent attachments;




(B) Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or




(C) Participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction or loss of employment;




(13) Misrepresent that it is authorized or competent to furnish legal advice or perform legal services;




(14) Represent in its agreements, disclosures required by this part, advertisements or Internet web site that it is:




(A) A not-for-profit entity unless it is organized and properly operating as a not-for-profit entity under the law of the state in which it was formed; or




(B) A tax-exempt entity unless it has received certification of tax-exempt status from the internal revenue service and is properly operating as a not-for-profit entity under the law of the state in which it was formed;




(15) Take a confession of judgment or power of attorney to confess judgment against an individual; or




(16) Employ an unfair, unconscionable or deceptive act or practice, including the knowing omission of any material information.




(b) If a provider furnishes debt-management services to an individual, the provider may not, directly or indirectly:




(1) Purchase a debt or obligation of the individual;




(2) Receive from or on behalf of the individual:




(A) A promissory note or other negotiable instrument other than a check or a demand draft; or




(B) A post-dated check or demand draft;




(3) Lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual;




(4) Obtain a mortgage or other security interest from any person in connection with the services provided to the individual;




(5) Except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual's creditors, except to:




(A) The administrator, upon proper demand;




(B) A creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or




(C) The extent necessary to administer the plan;




(6) Except as otherwise provided in § 47-18-5523(f), provide the individual less than the full benefit of a compromise of a debt arranged by the provider;




(7) Charge the individual for or provide credit or other insurance, coupons for goods or services, membership in a club, access to computers or the Internet, or any other matter not directly related to debt-management services or educational services concerning personal finance except to the extent such services are expressly authorized by the administrator; or




(8) Furnish legal advice or perform legal services, unless the person furnishing that advice to or performing those services for the individual is licensed to practice law.




(c) This part does not authorize any person to engage in the practice of law.




(d) A provider may not receive a gift or bonus, premium, reward or other compensation, directly or indirectly, for advising, arranging or assisting an individual in connection with obtaining an extension of credit or other service from a lender or service provider, except for educational or counseling services required in connection with a government-sponsored program.




(e) Unless a person supplies goods, services or facilities generally and supplies them to the provider at a cost no greater than the cost the person generally charges to others, a provider may not purchase goods, services or facilities from the person if an employee or a person that the provider should reasonably know is an affiliate of the provider:




(1) Owns more than ten percent (10%) of the person; or




(2) Is an employee or affiliate of the person.

.

47-18-5529. Notice of litigation.

No later than thirty (30) days after a provider has been served with notice of a civil action for violation of this part by or on behalf of an individual who resides in this state at either the time of an agreement or the time the notice is served, the provider shall notify the administrator in a record that it has been sued.
47-18-5529. Notice of litigation.

No later than thirty (30) days after a provider has been served with notice of a civil action for violation of this part by or on behalf of an individual who resides in this state at either the time of an agreement or the time the notice is served, the provider shall notify the administrator in a record that it has been sued.

.

47-18-5530. Advertising.

(a) If the agreements of a provider contemplate that creditors will reduce finance charges or fees for late payment, default or delinquency and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, that using a debt-management plan may make it harder for the individual to obtain credit.




(b) If the agreements of a provider contemplate that creditors will settle for less than the full principal amount of debt and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, the information specified in § 47-18-5517(d)(3) and (4).
47-18-5530. Advertising.

(a) If the agreements of a provider contemplate that creditors will reduce finance charges or fees for late payment, default or delinquency and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, that using a debt-management plan may make it harder for the individual to obtain credit.




(b) If the agreements of a provider contemplate that creditors will settle for less than the full principal amount of debt and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, the information specified in § 47-18-5517(d)(3) and (4).

.



47-18-5531. Liability for the conduct of other persons.


If a provider delegates any of its duties or obligations under an agreement or this part to another person, including an independent contractor, the provider is liable for conduct of the person that, if done by the provider, would violate the agreement or this part.



47-18-5531. Liability for the conduct of other persons.


If a provider delegates any of its duties or obligations under an agreement or this part to another person, including an independent contractor, the provider is liable for conduct of the person that, if done by the provider, would violate the agreement or this part.

.

47-18-5532. Powers of administrator.

(a) The administrator may act on its own initiative or in response to complaints and may receive complaints, take action to obtain voluntary compliance with this part, refer cases to the attorney general and reporter, or a district attorney general or other appropriate law enforcement official, and seek or provide remedies as provided in this part.




(b) The administrator may investigate and examine, in this state or elsewhere, by subpoena or otherwise, the activities, books, accounts and records of a person that provides or offers to provide debt-management services, or a person to which a provider has delegated its obligations under an agreement or this part, to determine compliance with this part. Information that identifies individuals who have agreements with the provider shall not be disclosed to the public. In connection with the investigation, the administrator may:




(1) Charge the person the reasonable expenses necessarily incurred to conduct the examination;




(2) Require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated; and




(3) Seek a court order authorizing seizure from a bank at which the person maintains a trust account required by § 47-18-5522, any or all money, books, records, accounts and other property of the provider that is in the control of the bank and relates to individuals who reside in this state.




(c) The administrator may promulgate rules to administer this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.




(d) The administrator may enter into cooperative arrangements with any other federal or state agency having authority over providers and may exchange with any of those agencies information about a provider, including information obtained during an examination of the provider.




(e) The administrator, by rule, shall establish reasonable fees to be paid by providers for the expense of administering this part.




(f) The administrator, by rule, shall adopt dollar amounts instead of those specified in §§ 47-18-5502, 47-18-5505, 47-18-5509, 47-18-5513, 47-18-5523, 47-18-5533 and 47-18-5535 to reflect inflation, as measured by the United States bureau of labor statistics consumer price index for all urban consumers or, if that index is not available, another index adopted by rule by the administrator. The administrator shall adopt a base year and adjust the dollar amounts, effective on July 1 of each year, if the change in the index from the base year, as of December 31 of the preceding year, is at least ten percent (10%). The dollar amount must be rounded to the nearest one hundred dollars ($100), except that the amounts in § 47-18-5523 must be rounded to the nearest dollar.




(g) The administrator shall notify registered providers of any change in dollar amounts made pursuant to subsection (f) and make that information available to the public.




(h) The administrator shall prescribe fees and penalties under this part such that all fees collectively shall sustain the requirements of this part pursuant to the requirements of § 4-29-121.
47-18-5532. Powers of administrator.

(a) The administrator may act on its own initiative or in response to complaints and may receive complaints, take action to obtain voluntary compliance with this part, refer cases to the attorney general and reporter, or a district attorney general or other appropriate law enforcement official, and seek or provide remedies as provided in this part.




(b) The administrator may investigate and examine, in this state or elsewhere, by subpoena or otherwise, the activities, books, accounts and records of a person that provides or offers to provide debt-management services, or a person to which a provider has delegated its obligations under an agreement or this part, to determine compliance with this part. Information that identifies individuals who have agreements with the provider shall not be disclosed to the public. In connection with the investigation, the administrator may:




(1) Charge the person the reasonable expenses necessarily incurred to conduct the examination;




(2) Require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated; and




(3) Seek a court order authorizing seizure from a bank at which the person maintains a trust account required by § 47-18-5522, any or all money, books, records, accounts and other property of the provider that is in the control of the bank and relates to individuals who reside in this state.




(c) The administrator may promulgate rules to administer this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.




(d) The administrator may enter into cooperative arrangements with any other federal or state agency having authority over providers and may exchange with any of those agencies information about a provider, including information obtained during an examination of the provider.




(e) The administrator, by rule, shall establish reasonable fees to be paid by providers for the expense of administering this part.




(f) The administrator, by rule, shall adopt dollar amounts instead of those specified in §§ 47-18-5502, 47-18-5505, 47-18-5509, 47-18-5513, 47-18-5523, 47-18-5533 and 47-18-5535 to reflect inflation, as measured by the United States bureau of labor statistics consumer price index for all urban consumers or, if that index is not available, another index adopted by rule by the administrator. The administrator shall adopt a base year and adjust the dollar amounts, effective on July 1 of each year, if the change in the index from the base year, as of December 31 of the preceding year, is at least ten percent (10%). The dollar amount must be rounded to the nearest one hundred dollars ($100), except that the amounts in § 47-18-5523 must be rounded to the nearest dollar.




(g) The administrator shall notify registered providers of any change in dollar amounts made pursuant to subsection (f) and make that information available to the public.




(h) The administrator shall prescribe fees and penalties under this part such that all fees collectively shall sustain the requirements of this part pursuant to the requirements of § 4-29-121.

.

47-18-5533. Administrative remedies.

(a) The administrator may enforce this part and rules adopted under this part by taking one (1) or more of the following actions:




(1) Ordering a provider or a director, employee or other agent of a provider to cease and desist from any violations;




(2) Ordering a provider or a person that has caused a violation to correct the violation, including making restitution of money or property to a person aggrieved by a violation;




(3) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), imposing on a provider or a person that has caused a violation a civil penalty not exceeding ten thousand dollars ($10,000) for each violation;




(4) Prosecuting a civil action to:




(A) Enforce an order;




(B) Obtain restitution or an injunction or other equitable relief, or both; or




(5) Intervening in an action brought under § 47-18-5535.




(b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a person violates or knowingly authorizes, directs or aids in the violation of a final order issued under subdivision (a)(1) or (a)(2), the administrator may impose a civil penalty not exceeding twenty thousand dollars ($20,000) for each violation.




(c) The administrator may maintain an action to enforce this part in any county.




(d) The administrator may recover the reasonable costs of enforcing this part under subsections (a)-(c), including attorney's fees based on the hours reasonably expended and the hourly rates for attorneys of comparable experience in the community.




(e) In determining the amount of a civil penalty to impose under subsection (a) or (b), the administrator shall consider the seriousness of the violation, the good faith of the violator, any previous violations by the violator, the deleterious effect of the violation on the public and any other factor the administrator considers relevant to the determination of the civil penalty.

47-18-5533. Administrative remedies.

(a) The administrator may enforce this part and rules adopted under this part by taking one (1) or more of the following actions:




(1) Ordering a provider or a director, employee or other agent of a provider to cease and desist from any violations;




(2) Ordering a provider or a person that has caused a violation to correct the violation, including making restitution of money or property to a person aggrieved by a violation;




(3) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), imposing on a provider or a person that has caused a violation a civil penalty not exceeding ten thousand dollars ($10,000) for each violation;




(4) Prosecuting a civil action to:




(A) Enforce an order;




(B) Obtain restitution or an injunction or other equitable relief, or both; or




(5) Intervening in an action brought under § 47-18-5535.




(b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a person violates or knowingly authorizes, directs or aids in the violation of a final order issued under subdivision (a)(1) or (a)(2), the administrator may impose a civil penalty not exceeding twenty thousand dollars ($20,000) for each violation.




(c) The administrator may maintain an action to enforce this part in any county.




(d) The administrator may recover the reasonable costs of enforcing this part under subsections (a)-(c), including attorney's fees based on the hours reasonably expended and the hourly rates for attorneys of comparable experience in the community.




(e) In determining the amount of a civil penalty to impose under subsection (a) or (b), the administrator shall consider the seriousness of the violation, the good faith of the violator, any previous violations by the violator, the deleterious effect of the violation on the public and any other factor the administrator considers relevant to the determination of the civil penalty.

.




47-18-5534. Suspension, revocation or nonrenewal of registration.



(a) In this section, “insolvent” means:




(1) Having generally ceased to pay debts in the ordinary course of business other than as a result of good faith dispute;




(2) Being unable to pay debts as they become due; or




(3) Being insolvent within the meaning of the federal bankruptcy law, 11 U.S.C. § 101 et seq.




(b) The administrator may suspend, revoke or deny renewal of a provider's registration if:




(1) A fact or condition exists that, if it had existed when the registrant applied for registration as a provider, would have been a reason for denying registration;




(2) The provider has committed a material violation of this part or a rule or order of the administrator under this part;




(3) The provider is insolvent;




(4) The provider or an employee or affiliate of the provider has refused to permit the administrator to make an examination authorized by this part, failed to comply with § 47-18-5532(b)(2) within fifteen (15) days after request or made a material misrepresentation or omission in complying with § 47-18-5532(b)(2); or




(5) The provider has not responded within a reasonable time and in an appropriate manner to communications from the administrator.




(c) If a provider does not comply with § 47-18-5522(f) or if the administrator otherwise finds that the public health or safety or general welfare requires emergency action, the administrator may order a summary suspension of the provider's registration, effective on the date specified in the order.




(d) If the administrator suspends, revokes or denies renewal of the registration of a provider, the administrator may seek a court order authorizing seizure of any or all of the money in a trust account required by § 47-18-5522, books, records, accounts and other property of the provider that are located in this state.




(e) If the administrator suspends or revokes a provider's registration, the provider may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.



47-18-5534. Suspension, revocation or nonrenewal of registration.



(a) In this section, “insolvent” means:




(1) Having generally ceased to pay debts in the ordinary course of business other than as a result of good faith dispute;




(2) Being unable to pay debts as they become due; or




(3) Being insolvent within the meaning of the federal bankruptcy law, 11 U.S.C. § 101 et seq.




(b) The administrator may suspend, revoke or deny renewal of a provider's registration if:




(1) A fact or condition exists that, if it had existed when the registrant applied for registration as a provider, would have been a reason for denying registration;




(2) The provider has committed a material violation of this part or a rule or order of the administrator under this part;




(3) The provider is insolvent;




(4) The provider or an employee or affiliate of the provider has refused to permit the administrator to make an examination authorized by this part, failed to comply with § 47-18-5532(b)(2) within fifteen (15) days after request or made a material misrepresentation or omission in complying with § 47-18-5532(b)(2); or




(5) The provider has not responded within a reasonable time and in an appropriate manner to communications from the administrator.




(c) If a provider does not comply with § 47-18-5522(f) or if the administrator otherwise finds that the public health or safety or general welfare requires emergency action, the administrator may order a summary suspension of the provider's registration, effective on the date specified in the order.




(d) If the administrator suspends, revokes or denies renewal of the registration of a provider, the administrator may seek a court order authorizing seizure of any or all of the money in a trust account required by § 47-18-5522, books, records, accounts and other property of the provider that are located in this state.




(e) If the administrator suspends or revokes a provider's registration, the provider may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

.



47-18-5535. Private enforcement.


(a) If an individual voids an agreement pursuant to § 47-18-5525(b), the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except amounts paid to creditors, in addition to the recovery under subdivisions (c)(3) and (4).




(b) If an individual voids an agreement pursuant to § 47-18-5525(a), the individual may recover in a civil action three (3) times the total amount of the fees, charges, money and payments made by the individual to the provider, in addition to the recovery under subdivision (c)(4).




(c) Subject to subsection (d), an individual with respect to whom a provider violates this part may recover in a civil action from the provider and any person that caused the violation:




(1) Compensatory damages for injury, including noneconomic injury, caused by the violation;




(2) Except as otherwise provided in subsection (d) and subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), with respect to a violation of § 47-18-5517, § 47-18-5519, § 47-18-5520, § 47-18-5521, § 47-18-5522, § 47-18-5523, § 47-18-5524, § 47-18-5527 or § 47-18-5528(a), (b), or (d), the greater of the amount recoverable under subdivision (c)(1) or five thousand dollars ($5,000);




(3) Punitive damages; and




(4) Reasonable attorney's fees and costs.




(d) In a class action, except for a violation of § 47-18-5528(a)(5), the minimum damages provided in subdivision (c)(2) do not apply.




(e) In addition to the remedy available under subsection (c), if a provider violates an individual's rights under § 47-18-5520, the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except for amounts paid to creditors.




(f) A provider is not liable under this section for a violation of this part if the provider proves that the violation was not intentional and resulted from a good faith error notwithstanding the maintenance of procedures reasonably adapted to avoid the error. An error of legal judgment with respect to a provider's obligations under this part is not a good faith error. If, in connection with a violation, the provider has received more money than authorized by an agreement or this part, the defense provided by this subsection (f) is not available unless the provider refunds the excess within two (2) business days of learning of the violation.




(g) The administrator shall assist an individual in enforcing a judgment against the surety bond or other security provided under § 47-18-5513 or § 47-18-5514.


47-18-5535. Private enforcement.


(a) If an individual voids an agreement pursuant to § 47-18-5525(b), the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except amounts paid to creditors, in addition to the recovery under subdivisions (c)(3) and (4).




(b) If an individual voids an agreement pursuant to § 47-18-5525(a), the individual may recover in a civil action three (3) times the total amount of the fees, charges, money and payments made by the individual to the provider, in addition to the recovery under subdivision (c)(4).




(c) Subject to subsection (d), an individual with respect to whom a provider violates this part may recover in a civil action from the provider and any person that caused the violation:




(1) Compensatory damages for injury, including noneconomic injury, caused by the violation;




(2) Except as otherwise provided in subsection (d) and subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), with respect to a violation of § 47-18-5517, § 47-18-5519, § 47-18-5520, § 47-18-5521, § 47-18-5522, § 47-18-5523, § 47-18-5524, § 47-18-5527 or § 47-18-5528(a), (b), or (d), the greater of the amount recoverable under subdivision (c)(1) or five thousand dollars ($5,000);




(3) Punitive damages; and




(4) Reasonable attorney's fees and costs.




(d) In a class action, except for a violation of § 47-18-5528(a)(5), the minimum damages provided in subdivision (c)(2) do not apply.




(e) In addition to the remedy available under subsection (c), if a provider violates an individual's rights under § 47-18-5520, the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except for amounts paid to creditors.




(f) A provider is not liable under this section for a violation of this part if the provider proves that the violation was not intentional and resulted from a good faith error notwithstanding the maintenance of procedures reasonably adapted to avoid the error. An error of legal judgment with respect to a provider's obligations under this part is not a good faith error. If, in connection with a violation, the provider has received more money than authorized by an agreement or this part, the defense provided by this subsection (f) is not available unless the provider refunds the excess within two (2) business days of learning of the violation.




(g) The administrator shall assist an individual in enforcing a judgment against the surety bond or other security provided under § 47-18-5513 or § 47-18-5514.

.

47-18-5536. Violation of Consumer Protection Act.

If an act or practice of a provider violates both this part and the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter, an individual may not recover under both for the same act or practice.
47-18-5536. Violation of Consumer Protection Act.

If an act or practice of a provider violates both this part and the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter, an individual may not recover under both for the same act or practice.

.




47-18-5537. Statute of limitations.
(a) An action or proceeding brought pursuant to § 47-18-5533(a), (b) or (c) must be commenced within four (4) years after the conduct that is the basis of the administrator's complaint.




(b) An action brought pursuant to § 47-18-5535 must be commenced within two (2) years after the latest of:




(1) The individual's last transmission of money to a provider;




(2) The individual's last transmission of money to a creditor at the direction of the provider;




(3) The provider's last disbursement to a creditor of the individual;




(4) The provider's last accounting to the individual pursuant to § 47-18-5527(a);




(5) The date on which the individual discovered or reasonably should have discovered the facts giving rise to the individual's claim; or




(6) Termination of actions or proceedings by the administrator with respect to a violation of the part.




(c) The period prescribed in subdivision (b)(5) is tolled during any period during which the provider or, if different, the defendant has materially and willfully misrepresented information required by this part to be disclosed to the individual, if the information so misrepresented is material to the establishment of the liability of the defendant under this part.



47-18-5537. Statute of limitations.
(a) An action or proceeding brought pursuant to § 47-18-5533(a), (b) or (c) must be commenced within four (4) years after the conduct that is the basis of the administrator's complaint.




(b) An action brought pursuant to § 47-18-5535 must be commenced within two (2) years after the latest of:




(1) The individual's last transmission of money to a provider;




(2) The individual's last transmission of money to a creditor at the direction of the provider;




(3) The provider's last disbursement to a creditor of the individual;




(4) The provider's last accounting to the individual pursuant to § 47-18-5527(a);




(5) The date on which the individual discovered or reasonably should have discovered the facts giving rise to the individual's claim; or




(6) Termination of actions or proceedings by the administrator with respect to a violation of the part.




(c) The period prescribed in subdivision (b)(5) is tolled during any period during which the provider or, if different, the defendant has materially and willfully misrepresented information required by this part to be disclosed to the individual, if the information so misrepresented is material to the establishment of the liability of the defendant under this part.

.

47-18-5538. Uniformity of application and construction.

In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
47-18-5538. Uniformity of application and construction.

In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

.



47-18-5539. Relation to Electronic Signatures in Global And National Commerce Act.



This part modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit or supersede § 101(c) of that act, codified in 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, codified in 15 U.S.C. § 7003(b).


47-18-5539. Relation to Electronic Signatures in Global And National Commerce Act.



This part modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit or supersede § 101(c) of that act, codified in 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, codified in 15 U.S.C. § 7003(b).

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47-18-5540. Transitional provisions — Application to existing transactions.
Transactions entered into before this part takes effect and the rights, duties and interests resulting from them may be completed, terminated or enforced as required or permitted by a law amended, repealed or modified by this part as though the amendment, repeal or modification had not occurred.

47-18-5540. Transitional provisions — Application to existing transactions.
Transactions entered into before this part takes effect and the rights, duties and interests resulting from them may be completed, terminated or enforced as required or permitted by a law amended, repealed or modified by this part as though the amendment, repeal or modification had not occurred.

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47-18-5541. Severability.


If any provision of this part or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part that can be given effect without the invalid provision or application, and to this end the provisions of this part are severable.


47-18-5541. Severability.


If any provision of this part or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part that can be given effect without the invalid provision or application, and to this end the provisions of this part are severable.