|State||2013 Statute Number||2013 Statute Language|
|Kentucky||Ky. Rev. Stat. Ann. § 367.110|
|As used in KRS 367.170 to 367.300: |
(1) "Person" means natural persons, corporations, trusts, partnerships,
incorporated or unincorporated associations, and any other legal entity.
(2) "Trade" and "commerce" means the advertising, offering for sale, or distribution
of any services and any property, tangible or intangible, real, personal or
mixed, and any other article, commodity, or thing of value, and shall include
any trade or commerce directly or indirectly affecting the people of this
(3) "Documentary material" means the original or a copy of any book, record,
report, memorandum, paper, communication, tabulation, map, chart,
photograph, mechanical transcription, or other tangible document or recording.
(4) "Examination" of documentary material shall include the inspection, study, or
copying of any such material, and the taking of testimony under oath or
acknowledgment in respect of any such documentary material or copy thereof.
|Ky. Rev. Stat. Ann. § 367.120|
Legislative Intent --Title.
|(1) The General Assembly finds that the public health, welfare and interest require a strong and effective consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services; toward this end, a Consumers' Advisory Council and a Division of Consumer Protection of the Department of Law are hereby created for the purpose of aiding in the development of preventive and remedial consumer protection programs and enforcing consumer protection statutes.|
(2) KRS 367.110 to 367.300 may be cited as the "Consumer Protection Act."
|Ky. Rev. Stat. Ann. § 367.130|
Consumers' Advisory Council -- Members -- Appointment.
|(1) The members of the Consumers' Advisory Council shall be sixteen (16) in|
number and shall be appointed by the Governor and shall include citizens of
Kentucky generally knowledgeable in consumer affairs.
(2) In addition to the members appointed by the Governor, the Attorney General
shall be an ex officio member and shall serve as the chairman of the
Consumers' Advisory Council.
(3) The members of the council other than the Attorney General shall be appointed
or reappointed by the Governor within sixty (60) days after July 1, 2000. Each
member shall serve for a three (3) year term, except that of the members first
appointed or reappointed after July 1, 2000, six (6) shall be appointed for a
term of one (1) year, five (5) shall be appointed for a term of two (2) years, and
five (5) shall be appointed for a term of three (3) years. Members of the council
shall be eligible for reappointment by the Governor.
(4) Each member of the Consumers' Advisory Council shall be a resident of
Kentucky, and except for the Attorney General, shall not be in the employ of
the Commonwealth, except as a faculty member or on the staff of a school.
|Ky. Rev. Stat. Ann. § 367.140|
Consumers' Advisory Council -- Meetings -- Quorum -- Compensation.
|(1) The Consumers' Advisory Council shall be attached for administrative|
purposes to the Department of Law, with such duties and responsibilities to act
in an advisory capacity on consumer affairs as the council deems necessary
and as directed by the Governor, the Attorney General or the legislative branch
(2) The Consumers' Advisory Council shall meet at least four (4) times each year
at such times and places as shall be designated by its chairman, and shall hold
such other meetings as shall be called by the chairman. Seven (7) members of
the council shall constitute a quorum. The members of the council shall receive
twenty-five dollars ($25) per day for attending each meeting and shall receive
their reasonable and necessary expenses in connection with the performance
of their duties, to be paid out of sums appropriated to the Department of Law.
(3) The Consumers' Advisory Council shall prepare and publish annually a report
on the state of consumer affairs in Kentucky.
|Ky. Rev. Stat. Ann. § 367.150|
Functions, powers and duties of Department of Law.
|The Department of Law shall have the following functions, powers and duties:|
(1) To promote the coordination of consumer protection activities of all
departments, divisions and branches of state, county and city government,
concerned with activities involving consumer interests;
(2) To assist, advise and cooperate with federal, state and local agencies and
officials to protect and promote the interests of the consumer public; to advise
the Governor and the legislature in all matters concerning consumer affairs;
(3) To conduct investigations, research, studies and analysis of matters affecting
health, safety, the human environment, the marketplace and all other
consumer affairs, and take appropriate action; to communicate the view of the
consumer to state, county, and city agencies and officials;
(4) To study the operation of all laws, rules, regulations, orders, and state policies
affecting consumers and to recommend to the Governor and to the Legislature,
new legislation, rules, regulations, orders, and policies in the consumers'
(5) To organize and hold conferences on problems affecting consumers; to
undertake activities to encourage business, industry, the professions, and
others offering goods or services to maintain high standards of honesty, fair
business practices, and public responsibility in the production, promotion and
sale of consumer goods and services;
(6) To provide a central clearing house of information for all citizens of the
Commonwealth by collecting and compiling consumer complaints and inquiries,
and forwarding them to the proper governmental agencies if appropriate; it
shall be the further responsibility of the department to maintain records
indicating the final disposition by the agency of any matter so referred;
(7) To organize, promote and conduct consumer education programs within the
Commonwealth; to cooperate with and establish necessary liaison with
(8) (a) To appear before any federal, state or local governmental branch,
commission, department, rate-making or regulatory body or agency, to
represent and be heard on behalf of consumers' interests; and
(b) To be made a real party in interest to any action on behalf of consumer
interests involving a quasijudicial or rate-making proceeding of any state
or local governmental branch, commission, department, agency, or
rate-making body whenever deemed necessary and advisable in the
consumers' interest by the Attorney General.
(9) To perform such other acts as may be incidental to the exercise of the
functions, powers and duties set forth in KRS 367.120 to 367.300.
|Ky. Rev. Stat. Ann. § 367.152|
Attorney General's concurrent authority to enforce bait advertising statute.
|The Attorney General shall have concurrent authority with the county attorney for the enforcement of the following statute: KRS 517.040, Bait advertising.|
|Ky. Rev. Stat. Ann. § 367.160|
Cooperation of state agencies -- Access to material evidence and information by utility and health insurance intervenors.
|(1) All departments, agencies, officers, and employees of the Commonwealth shall|
fully cooperate with the Attorney General in carrying out the functions of KRS
367.120 to 367.300.
(2) The persons designated by the Attorney General as utility consumer
intervenors shall have the same access to material evidence and information of
the Public Service Commission relating to any case before it as other parties to
(3) The persons designated by the Attorney General as health insurance
consumer intervenors shall have the same access to material evidence and
information of the commissioner of the Department of Insurance relating to any
health insurance rate hearings before it as other parties to the hearing.
|Ky. Rev. Stat. Ann. § 367.170|
|(1) Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.|
(2) For the purposes of this section, unfair shall be construed to mean unconscionable.
|Ky. Rev. Stat. Ann. § 367.175|
Other unlawful acts.
|(1) Every contract, combination in the form of trust and otherwise, or conspiracy, in|
restraint of trade or commerce in this Commonwealth shall be unlawful.
(2) It shall be unlawful for any person or persons to monopolize, or attempt to
monopolize or combine or conspire with any other person or persons to
monopolize any part of the trade or commerce in this Commonwealth.
(3) The sale, delivery, holding, or offering for sale of any self-testing kits designed
to tell persons their status concerning human immunodeficiency virus or
acquired immunodeficiency syndrome or related disorders, and any advertising
of such kits, shall be prohibited.
(4) In addition to any other penalties, violations of this section shall also be a Class
|Ky. Rev. Stat. Ann. § 367.176|
Construction of KRS 367.175.
|(1) No provision of KRS 367.175 shall be construed to make illegal the activities of any person or organization, including but not limited to any labor organization, agricultural or horticultural cooperative organization, or consumer organization, or of individual members thereof which are legitimate under the laws of this Commonwealth or the United States, or of any utility as defined in KRS 278.010(3).|
(2) KRS 367.175 shall not apply to activities authorized or approved under any federal or state statute or regulation.
|Ky. Rev. Stat. Ann. § 367.178|
Collection of donated clothing, household items, or other items for resale.
| Repealed, 2013.|
|Ky. Rev. Stat. Ann. § 367.180|
Knowledge required in violation by publisher.
|KRS 367.170 shall not apply to the owner or publisher of newspapers, magazines or|
publications wherein such advertisements appear, or to the owner or operator of a
radio or television station which disseminates such advertisement when the owner,
publisher or operator has no knowledge that such advertisement may be in violation
of KRS 367.170
|Ky. Rev. Stat. Ann. § 367.190|
Injunction -- Hearing.
|Whenever the Attorney General has reason to believe that any person is using,|
has used, or is about to use any method, act or practice declared by KRS
367.170 to be unlawful, and that proceedings would be in the public interest, he
may immediately move in the name of the Commonwealth in a Circuit Court for
a restraining order or temporary or permanent injunction to prohibit the use of
such method, act or practice. The action may be brought in the Circuit Court of
the county in which such person resides or has his principal place of business
or in the Circuit Court of the county in which the method, act or practice
declared by KRS 367.170 to be unlawful has been committed or is about to be
committed; or with consent of the parties may be brought in the Franklin Circuit
(2) Upon application of the Attorney General, a restraining order shall be granted
whenever it reasonably appears that any person will suffer immediate harm,
loss or injury from a method, act or practice prohibited by KRS 367.170. If the
defendant moves for the dissolution of a restraining order issued under this
section, the court shall hold a hearing within five (5) business days of the date
of service of the defendant's motion to dissolve, unless a delay in hearing the
cause is requested by, or otherwise caused by the defendant. If such a hearing
is not held within five (5) business days, the restraining order will automatically
(3) In order to obtain a temporary or permanent injunction, it shall not be
necessary to allege or prove that an adequate remedy at law does not exist.
Further, it shall not be necessary to allege or prove that irreparable injury, loss
or damage will result if the injunctive relief is denied.
|Ky. Rev. Stat. Ann. § 367.200|
Restoration of property -- Appointment of receiver.
|The court may make such additional orders or judgments as may be necessary to|
restore to any person in interest any moneys or property, real or personal, which
may have been paid out as a result of any practice declared to be unlawful by KRS
367.130 to 367.300, including the appointment of a receiver or the revocation of a
license or certificate authorizing any person to engage in business in the
Commonwealth, or both
|Ky. Rev. Stat. Ann. § 367.210|
Powers of receiver -- Distribution of assets.
|Whenever a receiver is appointed by the court pursuant to KRS 367.110 to 367.300,|
he shall have the power to sue for, collect, receive and take into his possession all
the goods and chattels, rights and credits, moneys and effects, lands and
tenements, books, records, documents, papers, choses in action, bills, notes and
property of every description, derived by means of any practice declared to be illegal
and prohibited by KRS 367.110 to 367.300, including property with which such
property has been mingled if it cannot be identified in kind because of such
commingling, and to sell, convey, and assign the same and hold and dispose of the
proceeds thereof under the direction of the court. Any person who has suffered
damages as a result of the use or employment of any unlawful practices and submits
proof to the satisfaction of the court that he has in fact been damaged, may
participate with general creditors in the distribution of the assets to the extent he has
sustained out-of-pocket losses. In the case of a partnership or business entity, the
receiver shall settle the estate and distribute the assets under the direction of the
court. The court shall have jurisdiction of all questions arising in such proceedings
and may make such orders and judgments therein as may be required.
|Ky. Rev. Stat. Ann. § 367.220|
Action for recovery of money or property -- When action may be brought.
(1) Any person who purchases or leases goods or services primarily for personal,
family or household purposes and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the use or employment by
another person of a method, act or practice declared unlawful by KRS 367.170,
may bring an action under the Rules of Civil Procedure in the Circuit Court in
which the seller or lessor resides or has his principal place of business or is
doing business, or in the Circuit Court in which the purchaser or lessee of
goods or services resides, or where the transaction in question occurred, to
recover actual damages. The court may, in its discretion, award actual
damages and may provide such equitable relief as it deems necessary or
proper. Nothing in this subsection shall be construed to limit a person's right to
seek punitive damages where appropriate.
(2) Upon commencement of any action brought under subsection (1) of this
section, the clerk of the court shall mail a copy of the complaint or other initial
pleading to the Attorney General and, upon entry of any judgment or decree in
the action, shall mail a copy of such judgment or decree to the Attorney
(3) In any action brought by a person under this section, the court may award, to
the prevailing party, in addition to the relief provided in this section, reasonable
attorney's fees and costs.
(4) Any permanent injunction, judgment or order of the court made under KRS
367.190 shall be prima facie evidence in an action brought under this section
that the respondent used or employed a method, act or practice declared
unlawful by KRS 367.170.
(5) Any person bringing an action under this section must bring such action within
one (1) year after any action of the Attorney General has been terminated or
within two (2) years after the violation of KRS 367.170, whichever is later.
|Ky. Rev. Stat. Ann. § 367.230|
Assurance of voluntary compliance.
|In the administration of KRS 367.110 to 367.300, the Attorney General may accept|
an assurance of voluntary compliance with respect to any method, act, or practice
deemed to be violative of KRS 367.110 to 367.300 from any person who has
engaged or was about to engage in that method, act, or practice. This assurance
shall be in writing and shall be filed with and subject to the approval of the Circuit
Court in which the alleged violator resides or has his principal place of business, or
the Franklin Circuit Court. An assurance of voluntary compliance shall not be
considered an admission of violation for any purpose. It shall be a willful violation of
KRS 367.170 if a person who enters into an assurance of voluntary compliance fails
to comply. Matters thus closed may at any time be reopened by the Attorney
General for further proceedings in the public interest, pursuant to KRS 367.190.
|Ky. Rev. Stat. Ann. § 367.240|
Investigation -- Demand for information or evidence.
|(1) When the Attorney General has reason to believe that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by KRS 367.110 to 367.300, or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any act or practice declared to be unlawful by KRS 367.110 to 367.300, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation, an investigative demand requiring such person to furnish, under oath or otherwise, a report in writing setting forth the relevant facts and circumstances of which he has knowledge, or to appear and testify or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation. Provided however, that no person who has a place of business in Kentucky shall be required to appear or present documentary material or physical evidence outside of the county where he has his principal place of business within the Commonwealth.|
(2) At any time before the return date specified in an investigative demand, or within twenty (20) days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, may be filed in the Circuit Court where the person served with the demand resides or has his principal place of business or in the Franklin Circuit Court.
|Ky. Rev. Stat. Ann. § 367.250|
Subpoenas -- Oath -- Confidential information.
|To accomplish the objectives and to carry out the duties prescribed by KRS 367.110|
to 367.300, the Attorney General, in addition to other powers conferred upon him by
KRS 367.110 to 367.300, may issue subpoenas to any person, administer an oath or
affirmation to any person, or conduct hearings in aid of any investigation or inquiry,
provided that information obtained pursuant to the powers conferred by KRS
367.110 to 367.300 shall not be made public or disclosed by the Attorney General or
his employees beyond the extent necessary for law enforcement purposes in the
|Ky. Rev. Stat. Ann. § 367.260|
|Any person may apply to a Circuit Court for an appropriate order to protect such person from any unreasonable investigative action taken pursuant to KRS 367.110 to 367.300.|
|Ky. Rev. Stat. Ann. § 367.270|
Impounding of evidence in matter under investigation.
|Whenever the Attorney General has probable cause to believe that a person has engaged in, or is engaging in, any practice declared by KRS 367.110 to 367.300 to be unlawful and whenever the Attorney General has probable cause to believe that information will not be obtainable pursuant to KRS 367.240 and 367.250 during the course of any investigation, he may apply to a Circuit Court ex parte for an order impounding any record, book, document, account, paper or sample of merchandise which is material to the practice under investigation. Such motion shall state in writing the grounds which the Attorney General believes constitute probable cause. The Circuit Court shall specify by order the length of time for copy or inspection.|
|Ky. Rev. Stat. Ann. § 367.280|
Service of subpoena -- Service upon persons outside Commonwealth.
|(1) To the fullest extent permitted by the Constitution of the United States, service|
of a subpoena or a demand pursuant to KRS 367.240 and 367.250 may be had
in the manner prescribed by the Kentucky Revised Statutes and the Kentucky
Rules of Civil Procedure.
(2) Personal service of any process, subpoena or investigative demand pursuant
to KRS 367.110 to 367.300 may be made upon any person outside of the
Commonwealth if such person has engaged in conduct in violation of KRS
367.110 to 367.300 in the Commonwealth. Such persons shall be deemed to
have thereby submitted themselves to the jurisdiction of the courts of the
Commonwealth within the meaning of this section.
|Ky. Rev. Stat. Ann. § 367.290|
Failure to obey subpoena or investigative demand of Attorney General -- Revocation of corporate charter -- Revocation of licenses.
|(1) If any person fails or refuses to file any statement or report, or to obey any|
subpoena or investigative demand issued by the Attorney General, the
Attorney General may, after notice, apply to a Circuit Court and, after hearing
thereon, request an order:
(a) Granting injunctive relief to restrain the person from engaging in the
advertising or sale of any merchandise or the conduct of any trade or
commerce that is involved in the alleged or suspected violation; and
(b) Vacating, annulling, or suspending the corporate charter of a corporation
created by or under the laws of this Commonwealth or revoking or
suspending the certificate of authority to do business in this
Commonwealth of a foreign corporation or revoking or suspending any
other licenses, permits or certificates issued pursuant to law to such
person which are used to further the allegedly unlawful practice; and
(c) Granting such other relief as may be required, until the person files the
statement or report, or obeys the subpoena or investigative demand.
(2) Prior to issuance of any final order the person charged with failing to answer
the investigative demand or subpoena pursuant to KRS 367.240 or 367.250
shall be afforded an opportunity for a hearing on the merits of the demand or
subpoena. Any disobedience of any final order entered under this section by
any court shall be punished as a contempt thereof.
|Ky. Rev. Stat. Ann. § 367.300|
Assistance to Attorney General -- Reporting.
| It shall be the duty of the Commonwealth and the county attorneys to lend to the Attorney General such assistance as the Attorney General may request in the commencement and prosecution of court actions pursuant to KRS 367.110 to 367.300, or the Commonwealth or county attorney with prior approval of the Attorney General may institute and prosecute actions hereunder in the same manner as provided for the Attorney General; provided that if an action is prosecuted by a Commonwealth attorney or county attorney alone, he shall make a full report thereon to the Attorney General, including the final disposition of the matter.|
|Ky. Rev. Stat. Ann. § 367.310|
Consumer reporting agency records restriction.
|No consumer reporting agency shall maintain any information in its files relating to any charge in a criminal case, in any court of this Commonwealth, unless the charge has resulted in a conviction.|
|Ky. Rev. Stat. Ann. § 367.320|
Processing of payments by servicer of high-cost home loan.
| (1) As used in this section, "servicer" means any person or entity who currently collects or processes payments on a high-cost home loan, as that term is defined in KRS 360.100, regardless of whether that person or entity is the owner, the holder, the assignee, the nominee for the loan, the beneficiary of a trust, or any person acting on behalf of such person.|
(2) A servicer shall:
(a) Apply payments promptly upon receipt, so long as the residential mortgage loan is still being actively processed. If a payment is received on a Saturday, a Sunday, or any day when the servicer's principal place of business is not open or after 1 p.m. on a business day, it shall be considered promptly applied if applied on the next regular business day;
(b) Apply payments first to interest and principal currently due, then to late fees currently due, then to other fees and charges currently due, and then to additional principal, as applicable;
(c) Assess any fee which is otherwise legal under this section within thirty (30) days of the date on which the fee was accrued and disclose any assessed fee clearly and conspicuously in the next periodic statement provided to the borrower;
(d) Charge no late fee, if a payment is otherwise a full payment for the applicable period and is paid on its due date or within an applicable grace period, and the only delinquency or insufficiency of payment is attributable to any late fee or delinquency charge assessed on any earlier payment; and
(e) Make all payments from the escrow account held for the borrower for insurance, taxes, and other charges with respect to the property in a timely manner so as to ensure that no late penalties are assessed or other negative consequences result, regardless of whether the loan is delinquent unless there are not sufficient funds in the account to cover the payments, and disclose any payments from the escrow account clearly and conspicuously in the next periodic statement provided to the borrower.
|Ky. Rev. Stat. Ann. § 367.350|
Rebate of sale or lease price contingent on referral of additional customer prohibited.
|With respect to a credit sale, cash sale or lease to a consumer, the seller or lessor may not give or offer to give a rebate or discount or otherwise pay or offer to pay value to the buyer or lessee as an inducement for a sale or lease in consideration of his giving to the seller or lessor the names of prospective purchasers or lessees, or otherwise aiding the seller or lessor in making a sale or lease to another person, if the earning of the rebate, discount or other value is contingent upon the occurrence of an event subsequent to the time the buyer or lessee agrees to buy or lease. If a buyer or lessee is induced by a violation of this section to enter into a cash or credit consumer sale or consumer lease, the agreement is unenforceable by the seller or lessor and the buyer or lessee, at his option, may rescind the agreement or retain the goods delivered and the benefit of any services performed, without any obligation to pay for them.|
|Ky. Rev. Stat. Ann. § 367.360|
Subpoenas -- Oaths -- Hearings -- Confidential information.
|To accomplish the objectives and to carry out the duties prescribed by KRS 367.350 the Attorney General, in addition to other powers conferred upon him by KRS 367.990(5), may issue subpoenas to any person, administer an oath or affirmation to any person, or conduct hearings in aid of any investigation or inquiry, provided that information obtained pursuant to the powers conferred by this section shall not be made public or disclosed by the Attorney General or his employees beyond the extent necessary for law enforcement purposes in the public interest.|
|Ky. Rev. Stat. Ann. § 367.363|
Definitions for KRS 367.363 to 367.365.
|As used in KRS 367.363 to 367.365, unless the context requires otherwise:|
(1) "Clear and proper identification" means information generally deemed sufficient to identify a person. If the consumer is unable to reasonably identify himself or herself with such information, a consumer reporting agency may require additional information to verify his or her identity;
(2) "Consumer report" means a consumer report, as defined in the federal Fair Credit Reporting Act, 15 U.S.C. sec. 1681a(d);
(3) "Consumer reporting agency" means a consumer reporting agency as defined by the federal Fair Credit Reporting Act, 15 U.S.C. sec. 1681a(f). "Consumer reporting agency" shall not mean a check acceptance service which provides check approval and guarantees services to merchants; and
(4) "Security freeze" means a notice placed on a consumer file, at the request of the consumer and subject to certain exceptions, that prohibits a consumer reporting agency from releasing the consumer's consumer report or credit score relating to the extension of credit without the express authorization of the consumer.
|Ky. Rev. Stat. Ann. § 367.364|
Persons not required to place a security freeze on a consumer report.
|The following persons are not required to place a security freeze on a consumer report in accordance with KRS 367.363 to 367.365:|
(1) A check services or fraud prevention services company, which 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;
(2) A deposit account information service company, which issues reports regarding account closures due to fraud, substantial overdrafts, automated teller machine (ATM) abuse, or similar negative information regarding a 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;
(3) A reseller of credit information that assembles or merges information contained in the database of another consumer reporting agency or multiple consumer reporting agencies, and does not maintain a permanent database of credit information from which new consumer reports are produced;
(4) Any database or file which consists solely of any information adverse to the interests of the consumer, including but not limited to criminal record information, which is used for fraud prevention or detection, tenant screening, employment screening, or any purpose permitted by the federal Fair Credit Reporting Act, 15 U.S.C. sec. 1681b;
(5) A person to the extent such person offers fraud prevention services that issues reports on incidents of fraud or reports used primarily in the detection or prevention of fraud;
(6) A bank, as defined in 12 U.S.C. sec. 1813(a) or Subtitles 1, 2, and 3 of KRS Chapter 286;
(7) A credit union, as defined in 12 U.S.C. sec. 1752 or Subtitle 6 of KRS Chapter 286;
(8) A savings association, as defined in 12 U.S.C. sec. 1813(b), or an association, as defined in Subtitle 5 of KRS Chapter 286;
(9) An insurer, as defined in KRS Chapter 304; and
(10) A retail establishment selling its own inventory.
|Ky. Rev. Stat. Ann. § 367.365|
Consumer's election regarding security freeze on consumer report -- Subsequent access -- Duties of consumer reporting agency -- Duration of security freeze -- Inapplicability to certain consumer reports -- Permitted charges for security freeze -- Changes to official consumer report information -- Penalties for section's violation.
|(1) (a) A consumer may elect to place a security freeze on the consumer's consumer report by written request, sent by certified mail, that includes clear and proper identification, to a consumer reporting agency at an address designated by the consumer reporting agency to receive such request. A consumer reporting agency shall place a security freeze on a consumer's consumer report no later than ten (10) business days after receiving a written request for the security freeze from the consumer.|
(b) When a security freeze is in place, information from a consumer's consumer report shall not be released to a third party without prior express authorization from the consumer. This subsection does not prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to the consumer's consumer report.
(2) The consumer reporting agency shall, no later than ten (10) business days after the date the agency receives the request for a security freeze, provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorization for the access to his or her credit file for a specific period of time. In addition, the consumer reporting agency shall simultaneously provide to the consumer in writing the process of placing, removing, and temporarily lifting a security freeze and the process for allowing access to information from the consumer's credit file for a specific period while the security freeze is in effect.
(3) A consumer may request in writing a replacement personal identification number or password. The request shall comply with the requirements for requesting a security freeze under subsection (1) of this section. The consumer reporting agency shall, not later than the tenth business day after the date the agency receives the request for a replacement personal identification number or password, provide the consumer with a new, unique personal identification number or password to be used by the consumer instead of the number or password that was provided under subsection (2) of this section.
(4) If a third party requests access to a consumer report on which a security freeze is in effect, and this request is in connection with an application for credit, the third party may treat the application as incomplete.
(5) If the consumer wishes to allow his consumer report or credit score to be accessed for a specific period of time while a freeze is in place, the consumer shall contact the consumer reporting agency and request that the freeze be temporarily lifted and provide the following:
(a) Clear and proper identification;
(b) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection (2) or (3) of this section; and
(c) The proper information regarding the time period for which the report shall be available to users of the consumer report.
(6) A consumer reporting agency that receives a request from a consumer to temporarily lift a freeze on a consumer report pursuant to subsection (5) of this section shall comply with the request no later than three (3) business days after receiving the request. A consumer reporting agency may develop procedures involving the use of telephone, fax, the Internet, or other electronic media to receive and process a request from a consumer to temporarily lift a freeze on a consumer report or credit score pursuant to subsection (5) of this section in an expedited manner.
(7) A consumer reporting agency shall remove or temporarily lift a freeze placed on a consumer's consumer report only in the following cases:
(a) Upon consumer request as provided in this section; or
(b) If the consumer's consumer report was frozen due to a material misrepresentation of fact by the consumer. If a consumer reporting agency intends to remove a freeze upon a consumer's consumer report pursuant to this paragraph, the consumer reporting agency shall notify the consumer in writing prior to removing the freeze on the consumer's consumer report.
(8) A security freeze shall remain in place until the consumer requests that the security freeze be removed, but no longer than seven (7) years from the date the security freeze was put in place. A consumer reporting agency shall remove a security freeze within three (3) business days of receiving a request for removal from the consumer, who provides both of the following:
(a) Clear and proper identification; and
(b) The unique personal identification number or password provided by the consumer reporting agency.
(9) A security freeze does not apply to a consumer report provided to:
(a) A federal, state, or local governmental entity, including a law enforcement agency, or court, or their agents or assigns;
(b) A private collection agency for the sole purpose of assisting in the collection of an existing debt of the consumer who is the subject of the consumer report requested;
(c) A person or entity, or a subsidiary, affiliate, or agent of that person or entity, or an assignee of a financial obligation owing by the consumer to that person or entity, or a prospective assignee of a financial obligation owing by the consumer to that person or entity in conjunction with the proposed purchase of the financial obligation, with which the consumer has or had prior to assignment an account or contract, including a demand deposit account, or to whom the consumer issued a negotiable instrument, for the purposes of reviewing the account or collecting the financial obligation owing for the account, contract, or negotiable instrument. For purposes of this paragraph, "reviewing the account" includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements;
(d) A subsidiary, affiliate, agent, assignee, or prospective assignee of a person to whom access has been granted under subsection (5) of this section for the purposes of facilitating the extension of credit;
(e) A person, for the purposes of prescreening as provided by the federal Fair Credit Reporting Act;
(f) A consumer reporting agency for the purposes of providing a consumer with a copy of his own report on his request;
(g) A child support enforcement agency;
(h) 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 credit reporting agencies and does not maintain a permanent database of credit information from which new consumer reports are produced. However, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer report by another consumer reporting agency;
(i) A check services or fraud prevention services company, which 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;
(j) A deposit account information service company, which issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse, or similar negative information regarding a 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;
(k) Any person or entity using a consumer report in preparation for a civil or criminal action, or an insurance company in investigation of a claim; or
(l) Any insurance company for setting or adjusting a rate or underwriting for property and casualty insurance purposes.
(10) A consumer reporting agency may impose a reasonable charge on a consumer for initially placing, temporarily lifting, or removing a security freeze on a consumer file. The amount of the charge may not exceed ten dollars ($10). On January 1 of each year, a consumer reporting agency may increase the charge for placing a security alert. The increase shall be based proportionally on changes to the Consumer Price Index for All Urban Consumers as determined by the United States Department of Labor with fractional changes rounded to the nearest twenty-five cents ($0.25). An exception shall be allowed whereby the consumer will be charged zero dollars by the consumer reporting agency placing the security freeze if the consumer is a victim of identity theft and, upon the request of the consumer reporting agency, provides the consumer reporting agency with a valid police report.
(11) If a security freeze is in place, a consumer reporting agency shall not change any of the following official information in a consumer report without sending a written confirmation of the change to the consumer within thirty (30) days of the change being posted to the consumer's file:
(b) Date of birth;
(c) Social Security number; and
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.
(12) Any person who willfully fails to comply with any requirement imposed under this section with respect to any consumer is liable to that consumer in an amount equal to the sum of:
(a) Any actual damages sustained by the consumer as a result of the failure;
(b) Any liquidated damages of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000);
(c) Any punitive damages as the court may allow; and
(d) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
(13) Any person, other than the named individual or individuals in the report, 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 actual damages sustained by the consumer reporting agency or one thousand dollars ($1,000), whichever is greater.
(14) Any person who is negligent in failing to comply with any requirement imposed under this section with respect to any consumer is liable to that consumer in an amount equal to the sum of:
(a) Any actual damages sustained by the consumer as a result of the failure; and
(b) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
(15) Nothing in KRS 367.363 to 367.365 shall be construed to limit or restrict the exercise of powers or the performance of the duties of the Attorney General authorized under any other provision of law to bring or seek redress for persons that violate KRS 367.363 to 367.365.
|Ky. Rev. Stat. Ann. § 367.370|
Funds recovered in legal action for state handled in accordance with KRS 48.005.
|KRS 367.190, 367.200, 367.210, 367.220 and KRS 367.110 to 367.360 to the contrary notwithstanding, if funds of any kind or nature whatsoever are recovered by or on behalf of the Commonwealth in a legal action, including an ex rel. action in which the Attorney General has entered an appearance or is a party under statutory or common law authority, those funds recovered shall be handled in accordance with KRS 48.005.|
|Ky. Rev. Stat. Ann. § 367.372|
Definitions for KRS 367.372 to 367.378.
|As used in KRS 367.372 to 367.378, unless the context requires otherwise:|
(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 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 in KRS 355.2-105;
(6) "Housing" means any rental housing and includes any housing provided by a hotel or motel;
(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 in KRS 446.010;
(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 natural or man-made disaster or emergency resulting from an event referred to in subsection (11) of this section;
(10) "Services" means work, labor, or services, including services furnished in connection with the sale or repair of goods or real property or improvements thereto;
(11) "State of emergency" means a natural or man-made disaster resulting from a tornado, earthquake, flood, fire, riot, storm, act of war, threat of war, military action, the time of instability following a terrorist attack, or any other event for which a state of emergency has been proclaimed by the President of the United States or declared by the Governor. It shall also include the duration of a Condition Red as declared by the United States Department of Homeland Security under the Homeland Security Advisory System; and
(12) "Transportation, freight, and storage services" means any service that is performed by a person that contracts to move, store, or transport personal or business property or rents equipment for those purposes.
|Ky. Rev. Stat. Ann. § 367.374|
Sale or rental of goods and services during declared state of emergency -- Thirty-day prohibition against grossly excessive prices -- Application of section.
|(1) (a) When a Condition Red has been declared by the United States Department of Homeland Security under the Homeland Security Advisory System or the Governor has declared a state of emergency under KRS 39A.100, the Governor may implement this section by executive order for a period of thirty (30) days from notification of implementation, as required by KRS 367.376. The order implementing this section shall be limited to the geographical area indicated in the declaration of emergency.|
(b) No person shall sell, rent, or offer to sell or rent, regardless of whether an actual sale or rental occurs, a good or service listed in this paragraph or any repair or reconstruction service for a price which is grossly in excess of the price prior to the declaration and unrelated to any increased cost to the seller. Goods and services to which this section applies are:
1. Consumer food items;
2. Goods or services used for emergency cleanup;
3. Emergency supplies;
4. Medical supplies;
5. Home heating oil;
6. Building materials;
8. Transportation, freight, and storage services; and
9. Gasoline or other motor fuels.
(c) A person who increases a price does not violate this subsection if the price increase is attributable to an additional cost imposed by a supplier of a good or other costs of providing the good or service, including an additional cost for labor or materials used to provide a service.
(2) The provisions of this section may be extended for an additional period, not to exceed thirty (30) days, by the Governor if necessary to protect the lives, property, or welfare of the citizens.
(3) If a person sold or rented a good or service listed in subsection (1) of this section at a reduced price in the thirty (30) days prior to the Governor's implementation of this section, the price at which that person usually sells or rents the good or service in the area for which the declaration was issued shall be used in determining if the person is in violation of this section.
(4) If a person did not sell or rent or offer to sell or rent a good or service listed in subsection (1) of this section prior to the Governor's implementation of this section, the price at which a good or service was generally available in the area for which the declaration was issued shall be used in determining if the person is in violation of this section.
|Ky. Rev. Stat. Ann. § 367.376|
Notice of Governor's implementation of KRS 367.372 to 367.378 -- Renewal and termination notice.
|Upon the Governor's implementation of the provisions of KRS 367.374, renewal of|
the implementation, or termination of the implementation, the Division of Emergency
Management shall immediately notify the public and those registered with the
division for the purpose of receiving notice of the implementation, renewal, or
termination. The division shall notify the public by any means available, including the
division's Web site, news media, and electronic mail. Any person or trade
association may register with the division for the purpose of receiving notification.
|Ky. Rev. Stat. Ann. § 367.378|
Penalties -- Applicability of chapter -- Powers of Attorney General.
|(1) A willful violation of KRS 367.374 is punishable by a civil penalty of an amount|
not to exceed five thousand dollars ($5,000) for the first violation and an
amount not to exceed ten thousand dollars ($10,000) for each subsequent
(2) All of the remedies, powers, and duties provided by KRS Chapter 367 shall
apply with equal force and effect to an act declared unlawful by KRS 367.374.
(3) Nothing in KRS 367.372 to 367.378 shall be construed to limit or restrict the
exercise of powers or the performance of the duties of the Attorney General
which he or she is authorized to exercise or perform under any other provision
|Ky. Rev. Stat. Ann. § 367.390|
Right to refinance consumer loan or consumer credit transaction -- Conditions -- Exception.
|(1) With respect to a consumer loan or consumer credit transaction, other than one primarily for an agricultural purpose or one pursuant to a revolving loan account or a revolving charge account, if any scheduled payment is more than twice as large as the average of earlier scheduled payments, the debtor has the right to refinance the amount of that payment at the time it is due without penalty. The terms of the refinancing shall be no less favorable to the debtor than the terms of the original loan or consumer credit transaction. These provisions do not apply to the extent that the payment schedule is adjusted to the seasonal or irregular income of the debtor.|
(2) Notwithstanding any other provision of this section, this section shall not apply to a consumer loan or consumer credit transaction directly between a debtor and a financial institution in connection with the purchase or construction of residential property where payment of such loan or transaction is secured by a mortgage lien upon such property.
|Ky. Rev. Stat. Ann. § 367.393|
Certificates of deposit -- Renewal term and rate -- Violation and penalties.
|(1) As used in this section, "financial institution" means a bank, trust company, savings and loan association, or credit union authorized by law to do business in this state.|
(2) (a) A financial institution that issues a certificate of deposit that is subject to automatic renewal at maturity shall, upon automatic renewal, renew the certificate of deposit for a like term at the best available rate of interest as posted at the issuing financial institution for similarly issued certificates of like term.
(b) Any notice sent by the financial institution to the holder of a certificate of deposit subject to automatic renewal prior to maturity which notifies the holder of the holder's options upon renewal shall disclose that if the certificate of deposit automatically renews it will be renewed for a like term at the best available rate of interest as posted at the issuing financial institution for similarly issued certificates of like term.
(3) (a) Any violation of this section shall be an unfair, false, misleading, and deceptive act or practice in the conduct of trade or commerce in violation of KRS 367.170.
(b) All of the remedies, powers, and duties provided for the Attorney General in KRS 367.190 to 367.300, and all of the penalties provided in KRS 367.990, pertaining to acts declared unlawful by KRS 367.170, shall apply to acts and practices declared unlawful in this section.
|Ky. Rev. Stat. Ann. § 367.395|
|As used in KRS 367.397 to 367.407, unless the context requires otherwise:|
(1) "Club" means any buying club or vacation club.
(2) "Contract" means any oral or written agreement by which one becomes a member of a club.
(3) "Buying club" means any person, corporation, unincorporated association, or other organization which for a consideration provides or purports to provide its members or the members of any other buying club with the ability to purchase goods or services at discount prices; except that such organization shall not include any buying club in which persons receive discount buying services incidentally as part of a package of services provided to, or available to, such individuals on account of membership in such organization which is not organized for the profit of any person or corporation or which does not have as one of its primary purposes or businesses the provision of discount buying services.
(4) "Member" or "membership" means a status by which any natural person is entitled to any of the benefits of a club.
(5) "Prepayment" means any payment for service or merchandise made before the service is rendered or the merchandise is received. It is not a prepayment if a payment for service is made on the same day 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.
(6) "Vacation club" means any person, corporation, unincorporated association, or other organization which for a consideration provides or purports to provide its members or the members of any other vacation club with any vacation, vacation plan, or services connected with the scheduling of a vacation at discount prices.
|Ky. Rev. Stat. Ann. § 367.397|
Cancellation of club membership.
|(1) Any person who has elected to become a member of a club may cancel such membership by giving written notice any time before midnight of the third business day following the date on which the person signs a contract containing the notice of "Members' Right to Cancel" required by KRS 367.399. 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.|
(2) Notice of cancellation shall 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 shall be given by that agent or employee to the person canceling.
(3) The entitled refund shall be delivered to the member within ten (10) days after notice of cancellation is given.
(4) Rights of cancellation may not be waived or otherwise surrendered.
(5) Cancellation shall not relieve the member from paying for any vacation or merchandise actually used by the consumer prior to the date of cancellation.
|Ky. Rev. Stat. Ann. § 367.399|
Membership contract requirements -- Disclosure of cancellation rights.
|(1) A copy of every contract shall be delivered to the member at the time the contract is signed. Every contract 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, the following:|
"MEMBERS' RIGHT TO CANCEL" ...................
"KENTUCKY LAW GIVES YOU THREE (3) DAYS TO CANCEL YOUR AGREEMENT WITH US. If you wish to cancel this contract, you may cancel by delivering or mailing a written notice to the company. Certified mail would provide greater protection than first-class mail, but is not necessary. If you deliver the notice personally, you are entitled to a receipt. Your notice must make known that you do not wish to be bound by the contract. If the notice is delivered or mailed before midnight of the third business day after you sign this contract, you are entitled to a refund of the entire consideration paid for the contract. The notice must be delivered or mailed to (insert name and mailing address of company). If you cancel, the club is required to return, within ten (10) days of the date on which you give notice of cancellation, any payments you have made."
(2) Until the buying club or vacation club has complied with this section, the member may cancel the contract by notifying the club in any manner and by any means of the member's intention to cancel and is then entitled to a refund of the entire consideration paid for the contract.
|Ky. Rev. Stat. Ann. § 367.401|
Disclosure of refund requirement and that savings claims are based on comparisons with retailers doing business in area.
|(1) Every contract shall provide that if any goods ordered by the member from the buying club are not delivered to the member or available for pickup by the member at a location within his county of residence within six (6) weeks from the date the member placed an order for such goods, then any moneys paid 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 he or she ordered such goods and the goods are delivered to the member or are available for pickup by that date.|
(2) 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 and with prices at which the merchandise is actually sold.
(3) Any contract which does not comply with subsections (1) and (2) of this section shall be void and unenforceable.
|Ky. Rev. Stat. Ann. § 367.403|
|(1) Every club that has a membership fee in excess of thirty-five dollars ($35) shall maintain a bond of fifty thousand dollars ($50,000) issued by a surety company admitted to do business in this state.|
(2) The bond required by this section shall be in favor of the Attorney General of the Commonwealth of Kentucky for the benefit of any member who suffers loss of prepayment made pursuant to a contract entered into after July 15, 1982, due to insolvency of the club or the cessation of business by the club, or failure by the club to perform under any contract. A copy of the bond shall be filed with the Attorney General prior to the making of any membership contract by a club. Any person claiming against the bond may maintain an action at law against the club and the surety. Failure to so maintain a bond as required by this section shall make the principals of any club personally liable for the claims of members.
(3) The aggregate liability of the surety to all persons for all breaches of the conditions of the bonds provided herein shall in no event exceed the amount of the bond.
|Ky. Rev. Stat. Ann. § 367.405|
Remedies, powers and duties of Attorney General.
|(1) All of the remedies, powers, and duties provided for the Attorney General by KRS 367.190 to 367.300 appertaining to acts declared unlawful by KRS 367.170 shall apply with equal force and effect to acts declared unlawful by KRS 367.397 to 367.405.|
(2) Nothing in KRS 367.397 to 367.407 shall be construed to limit or restrict the exercise of powers or the performance of the duties of the Attorney General which he is authorized to exercise or perform under any other provision of law.
|Ky. Rev. Stat. Ann. § 367.407|
Exemptions -- Conditions.
|Any organization which is not organized for the profit of any person or corporation may file an application with the office of Attorney General to seek exemption from the provisions of KRS 367.397 to 367.403. The Attorney General shall grant an exemption to any applicant organization which:|
(1) Is chartered or operated on a cooperative not-for-profit basis primarily for the benefit of its members who are the ultimate consumers of such goods, services, or facilities produced or furnished by the organization;
(2) Makes such goods, services or facilities available to its members on a not-for-profit basis;
(3) Allocates or distributes its net savings to all its members or patrons or retains net savings for the expansion of its services or for the reduction of charges to its patrons; and
(4) Restricts its voting control to members on a one (1) vote per person basis.
|Ky. Rev. Stat. Ann. § 367.410|
Definition of home solicitation sale.
|As used in KRS 367.410 to 367.450, unless the context otherwise requires:|
"Home solicitation sale" means a sale of goods or services, including consumer loans, in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him. It does not include a sale made pursuant to prior negotiations between the parties, by telephone initiated by the buyer or at a business establishment at a fixed location where goods or services, including loans, are offered or exhibited for sale.
|Ky. Rev. Stat. Ann. § 367.420|
Buyer's right to cancel home solicitation sale -- Method of cancellation.
|Buyer's right to cancel home solicitation sale -- Method of cancellation.|
(1) Except for home solicitation sales on loans in which a security interest is taken in the principal dwelling of the buyer as provided in subsection (6) of this section, and except as provided in subsection (5) for other goods and services, including all other consumer loans, in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with this part.
(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, and
(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.
(6) For home solicitation sales on loans in which a security interest is taken in the principal dwelling of the buyer, the buyer shall have the right to rescind or cancel the transaction until midnight of the tenth business day following the later of the consummation of the loan transaction or the delivery of the material disclosures required under the Truth in Lending Act, 15 U.S.C. 1601 et seq.
|Ky. Rev. Stat. Ann. § 367.430|
Notice of buyer's right to cancel home solicitation sale -- Emergency sales exempted.
|(1) In a home solicitation sale, unless the buyer requests the seller to provide goods or services in an emergency, the seller must present to the buyer and obtain his signature to a written agreement or offer to purchase which designates as the date of the transaction the date on which the buyer actually signs and contains a statement of the buyer's rights which complies with subsection (2).|
(2) The statement must:
(a) Appear under the conspicuous caption: "BUYER'S RIGHT TO CANCEL," and
(b) Read as follows: "If this agreement was solicited to your residence and you do not want the goods or services, you may cancel this agreement by mailing a notice to the seller. The notice must say that you do not want the goods or services and must be mailed before midnight of the third business day after you sign this agreement. The notice must be mailed to: ..................... ......................"
(3) Until the seller has complied with this section the buyer may cancel the home solicitation by notifying the seller in any manner and by any means of his intention to cancel.
|Ky. Rev. Stat. Ann. § 367.440|
Return of evidence of sale to buyer after cancellation.
|(1) Within ten (10) days after a home solicitation sale has been canceled 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.|
(2) 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.
(3) Until the seller has complied with the obligations imposed by this section the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.
|Ky. Rev. Stat. Ann. § 367.450|
Return of goods to seller after cancellation -- Time and place of return -- Seller's compensation -- Application of statute.
|(1) Except as provided by the provisions on retention of goods by the buyer in KRS 367.440(3), within a reasonable time after a home solicitation sale has been canceled 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 he is not obligated to tender at any place other than his residence. If the seller fails to demand possession of goods within a reasonable time after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them. For the purpose of this section, 40 days is presumed to be a reasonable time.|
(2) The buyer has a duty to take reasonable care of the goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.
(3) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to no compensation.
(4) KRS 367.410 to 367.450 shall not apply to sales under $25.00 or any type of insurance sale or sales.
|Ky. Rev. Stat. Ann. § 367.460|
Status of waiver of rights provided under KRS 367.410 to 367.450 by buyer.
|Any waiver by the buyer of rights provided in KRS 367.410 to 367.450 is null and void, and will not operate to relieve the seller of any obligation placed upon him by KRS 367.410 to 367.450 or this section.|
|Ky. Rev. Stat. Ann. § 367.461|
Conditions for use of automated calling equipment.
|(1) As used in KRS 367.461 to 367.469, "automated calling equipment" means any device or combination of devices which is used to select or dial telephone numbers and to deliver recorded messages to the numbers so selected or dialed.|
(2) Unless the conditions set out in paragraphs (a) to (f) of this subsection are met, no person shall use automated calling equipment, or cause it to be used, for conducting polls, for soliciting information, or for advertising goods, services, or property:
(a) The person receiving the call consents to it, as specified in KRS 367.463;
(b) The recorded message clearly states the name and telephone number of the person or organization initiating the call within the first twenty-five (25) seconds of the message and at the conclusion of the message. That telephone number given in the recorded message shall, during normal office hours, be answered promptly and personally by an agent of the person or organization on whose behalf the automatic calls are made, who is able to provide information concerning the automatic calls;
(c) The automated calling equipment terminates its connection with any telephone call within ten (10) seconds after the person called either fails to consent to hear a recorded message or hangs up the telephone;
(d) The use does not involve either the random or sequential dialing of telephone numbers, does not call telephone numbers which are omitted from the telephone directory at the customer's request, and does not call hospitals, nursing homes, fire protection agencies, or law enforcement agencies;
(e) Calls using the automated calling equipment are made only between 8:00 a.m. and 9:00 p.m.; and
(f) The automated calling equipment operates only when it is attended and is designed or installed so that it does not operate without an attendant, even in the event of power failures.
(3) Nothing in this section prohibits the use of automated calling equipment to make calls with recorded messages when the calls:
(a) Are made in response to calls initiated by the person to whom the automatic call or recorded message is directed;
(b) Concern goods or services, or the availability of same which were previously ordered or purchased;
(c) Relate to collection of lawful debts;
(d) Are made by a public school as part of a program to regulate and control absenteeism of students; or
(e) Are reminders and notices of meetings and activities of organizations of which the person called is a member or a subscribed consumer of the services of the organization, or are made to a person with whom there is an existing business relationship.
|Ky. Rev. Stat. Ann. § 367.463|
Consent to calls made with automated calling equipment -- Written consent -- Withdrawal of written consent -- Period of validity of written consent.
|(1) A person may consent to a call made with automated calling equipment when:|
(a) A live operator introduces the call and states an intent to play a recorded message; or
(b) By using the telephone keypad to provide a consent response.
Consent obtained pursuant to this subsection applies only to the particular call and does not constitute prior consent to receive further calls through automated calling equipment.
(2) A person may consent to receive telephone calls through automated calling equipment by giving written consent to the person using automated calling equipment or causing it to be used.
(a) Any form used to obtain written consent shall state clearly and conspicuously its purpose and effect and shall clearly and conspicuously give notice of how the consent can be withdrawn.
(b) A record of written consent shall be maintained by the person to whom consent is given and shall be made available to the Attorney General or his authorized representative during normal business hours and upon twenty-four (24) hours' notice.
(c) A written consent to receive telephone calls through automated calling equipment shall be void on and after the fifteenth day after receipt of a letter withdrawing the consent.
(d) Unless withdrawn, a written consent shall be valid for two (2) years from the date on which it is executed; the record of written consent shall be maintained by the person to whom consent is given for at least the same period of time.
|Ky. Rev. Stat. Ann. § 367.465|
Prohibitions relating to use of automated calling equipment to solicit calls for telephone fee lines.
|(1) As used in this section, "telephone fee line" means a telephone number with a charge attached to calling it, whereby the telephone company as billing agent charges the caller an amount for accessing the line in addition to applicable rates, if any, for the telephone call.|
(2) No person shall use automated calling equipment, or cause it to be used, to solicit persons to call a telephone fee line under his control.
(3) No telephone company shall knowingly provide a telephone fee line to a person who solicits calls to that line through the use of automated calling equipment. A telephone company shall, on order of the Attorney General, withdraw control of a telephone fee line from any person if calls to that line are solicited by automated calling equipment.
|Ky. Rev. Stat. Ann. § 367.467|
Applicability of remedies of Consumer Protection Act.
|(1) Any violation of KRS 367.461, 367.463, or 367.465 shall be an unfair, false, misleading, and deceptive act or practice in the conduct of trade or commerce in violation of KRS 367.170.|
(2) All of the remedies, powers, and duties provided for the Attorney General in KRS 367.190 to 367.300, and all of the penalties provided in KRS 367.990, pertaining to acts declared unlawful by KRS 367.170, shall apply to acts and practices declared unlawful in KRS 367.461, 367.463, and 367.465.
|Ky. Rev. Stat. Ann. § 367.469|
Requirement of permit from Attorney General -- Surety bond -- Authority to promulgate administrative regulations
|(1) Unless covered by one (1) of the exceptions in KRS 367.461(3), and prior to using automated calling equipment to call telephone numbers in this Commonwealth, a person or company shall first obtain a permit from the Attorney General. The application for permit shall include:|
(a) Name, address, and telephone number of the company or person utilizing the equipment;
(b) If the address required by paragraph (a) of this subsection is not in Kentucky, the name and address of a designated agent for the automated calling equipment operator located in Kentucky;
(c) A surety bond executed by the automated calling equipment operator from a surety company authorized to do business in this Commonwealth for the sum of ten thousand dollars ($10,000), to be maintained continuously in full force and effect. The Attorney General may accept an alternate form of surety, such as a letter of credit, for an operator demonstrating financial responsibility.
(2) The Attorney General shall promulgate administrative regulations to govern the issuance, revocation, suspension, or reissuance of permits for automated calling equipment operators utilizing equipment to call telephone numbers located in Kentucky. The Attorney General may revoke permits for any violation of KRS 367.461, 367.463, or 367.465, following an administrative hearing conducted in accordance with KRS Chapter 13B.
|Ky. Rev. Stat. Ann. § 367.46951|
Definitions for KRS 367.46951 to 367.46999 and 367.990.
|As used in KRS 367.46951 to 367.46999 and 367.990, unless the context otherwise requires:|
(1) "Telephone solicitation" means:
(a) A live or recorded communication sent by a telephone or message sent by a facsimile machine to a residential, mobile, or telephone paging device telephone number, including a call made by an automatic dialing or recorded message device, for the purpose of:
1. Soliciting a sale of consumer goods or services, offering an investment, business, or employment opportunity, or offering a consumer loan to the person called;
2. Obtaining information that will or may be used for the solicitation of a sale of consumer goods or services, the offering of an investment, business, or employment opportunity, or the offering of a consumer loan to the person called;
3. Offering the person called a prize, gift, or anything else of value, if payment of money or other consideration is required in order to receive the prize or gift, including the purchase of other merchandise or services or the payment of any processing fees, delivery charges, shipping and handling fees, or other fees or charges; or
4. Offering the person called a prize, gift, or other incentive to attend a sales presentation for consumer goods or services, an investment or business opportunity, or a consumer loan; or
(b) A live or recorded communication sent by telephone, facsimile machine, mobile telephone, or telephone paging device in response to inquiries generated by unrequested notifications sent by the merchant to persons who have not previously purchased goods or services from the merchant or telemarketer or who have not previously requested credit from the merchant, to a prospective purchaser if the merchant or telemarketer represents or implies to the recipient of the notification that any of the following applies:
1. That the recipient has in any manner been specially selected to receive the notification or the offer contained in the notification;
2. That the recipient will receive a prize or gift if the recipient calls the merchant or telemarketer; or
3. That if the recipient buys one (1) or more items from the merchant or telemarketer, the recipient will also receive additional or other items of the same or a different type at no additional cost or for less than the regular price of the items;
(2) "Telephone solicitation" does not mean the following:
(a) A telephone call made in response to an express request of a person called, unless the request was made during a prior telephone solicitation;
(b) A telephone call made to the debtor or a party to the contract in connection with the payment or performance of an existing debt or contract, the payment or performance of which has not been completed at the time of the call;
(c) A telephone call to any person with whom the telemarketer or merchant has a prior or existing business relationship, including but not limited to the solicitation of contracts for the maintenance or repair of items previously purchased from the person making the solicitation or on whose behalf the solicitation is made;
(d) A telephone call made by the following:
1. A merchant or telemarketer located in Kentucky to a location outside of the Commonwealth of Kentucky;
2. A telephone call made by one (1) merchant to another;
(3) "Consumer goods or services" means goods, services, or interests in real property used by natural persons primarily for personal, family, or household purposes;
(4) "Consumer loan" means any extension of credit, including credit cards and other forms of revolving credit, to a natural person primarily for the purposes of purchasing consumer goods or services or for paying existing personal, family, or household debts;
(5) "Consumer" means a natural person who receives a telephone solicitation;
(6) "Legal name of the merchant" means the real name of the merchant, as defined in KRS 365.015(1), or the assumed name of the merchant for which all proper certificates have been filed pursuant to KRS 365.015;
(7) "Merchant" means the individual or business entity offering the consumer goods or services, an investment, business, or employment opportunity, or a consumer loan;
(8) "Caller" or "sales person" means the individual making the call or operating the automatic dialing or recorded message device and causing the call to be made;
(9) "Division" means the Consumer Protection Division of the Office of the Attorney General;
(10) "Automated calling equipment" means any device or combination of devices used to select or dial telephone numbers and to deliver recorded messages to those numbers without the use of a live operator;
(11) "Telemarketer" means any person who under contract with a merchant or in connection with a telephone solicitation initiates or receives telephone calls to or from a consumer of goods and services. A telemarketer includes but is not limited to any such person that is an owner, operator, officer, director, or partner to the management activities of a business;
(12) "Publicly traded corporation" means an issuer or subsidiary of an issuer that has a class of securities which is:
(a) Subject to Section 12 of the Securities Exchange Act of 1934 (15 U.S.C. sec. 78l) and which is registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G), or (H) of subsection (g)(2) of that section;
(b) Listed on the New York Stock Exchange, the American Stock Exchange, or the NASDAQ National Market System; or
(c) A reported security within the meaning of subparagraph (4) of Regulation Section 240.11Aa3-1.(a) under the Securities Exchange Act of 1934. A subsidiary of an issuer that qualifies for exemption under this paragraph shall not itself be exempt unless at least sixty percent (60%) of the voting power of its shares is owned by the qualifying issuer;
(13) "Telemarketing company" means a company whose primary business is to engage in telephone solicitation; and
(14) "Zero call list" means the national Do Not Call Registry maintained by the United States Federal Trade Commission containing the residential or wireless telephone numbers of the individuals that indicate their preference not to receive telephone solicitations.
|Ky. Rev. Stat. Ann. § 367.46953|
Requirements for making telephone solicitation.
|A caller making a telephone solicitation shall:|
(1) Immediately upon making contact by telephone with the consumer, state his actual name, the merchant's legal name, a telephone number or address at which the merchant may be contacted, and the town or city and state where the caller is physically located;
(2) Within the first thirty (30) seconds of the call, identify the goods, services, interest in real estate, investment or business opportunity, or type of credit being offered and inquire whether the consumer is interested in listening to a sales presentation; and
(3) Immediately discontinue the solicitation if the consumer responds in the negative.
|Ky. Rev. Stat. Ann. § 367.46955|
Prohibited telephone solicitation acts and practices.
|It is a prohibited telephone solicitation act or practice and a violation of KRS 367.46951 to 367.46999 for any person making a telephone solicitation to engage in the following conduct:|
(1) Advertising or representing that registration as a telemarketer equals an endorsement or approval by any government or governmental agency;
(2) Requesting a fee in advance to remove derogatory information from or improve a person's credit history or credit record;
(3) Requesting or receiving a payment in advance from a person to recover or otherwise aid in the return of money or any other item lost by the consumer in a prior telephone solicitation transaction;
(4) Requesting or receiving payment of any fee or consideration in advance of obtaining a loan or other extension of credit when the telemarketing company has guaranteed or represented a high likelihood of success in obtaining or arranging a loan or other extension of credit for a person;
(5) Obtaining or submitting for payment a check, draft, or other form of negotiable paper drawn on a person's checking, savings, or bond or other account without the consumer's express written authorization, or charging a credit card account or making electronic transfer of funds except in conformity with KRS 367.46963;
(6) Procuring the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected;
(7) Assisting, supporting, or providing substantial assistance to any telemarketer when the telemarketing company knew or should have known that the telemarketer was engaged in any act or practice prohibited under this section;
(8) Making a telephone solicitation to anyone under eighteen (18) years of age. When making a telephone solicitation the telemarketer shall inquire as to whether the person is eighteen (18) years of age or older and the answer shall be presumed to be correct;
(9) Utilizing any method to block or otherwise circumvent the use of a caller identification service when placing an unsolicited telephone solicitation call;
(10) Directing or permitting employees to use a fictitious name or not to use their name while making a telephone solicitation;
(11) Threatening, intimidating, or using profane or obscene language;
(12) Causing the telephone to ring more than thirty (30) seconds in an intended telephone solicitation;
(13) Engaging any person repeatedly or continuously with behavior a reasonable person would deem to be annoying, abusive, or harassing;
(14) Initiating a telephone solicitation call to a person, when that person has stated previously that he or she does not wish to receive solicitation calls from that seller;
(15) Making or causing to be made an unsolicited telephone solicitation call if the residential number for that telephone appears in the current publication of the national Do Not Call Registry maintained by the United States Federal Trade Commission;
(16) Making telephone solicitations to a person's residence at any time other than between 10 a.m. -- 9 p.m. local time, at the called person's location;
(17) Selling or making available for economic gain any information revealed during a telephone solicitation without the express written consent of the consumer;
(18) Making a telephone solicitation to any residential telephone using an artificial or prerecorded voice to deliver a message, unless the call is initiated for emergency purposes by schools regulated by the Kentucky Department of Education or the call is made with the prior express consent of the called party; or
(19) Engaging in any unfair, false, misleading, or deceptive practice or act as part of a telephone solicitation.
|Ky. Rev. Stat. Ann. § 367.46957|
Contract or agreement voidable by consumer if resulting from nonconforming telephone solicitation.
|A contract or agreement made as a result of a telephone solicitation violating KRS 367.46951 to 367.46999 is voidable by the consumer for any reason at any time and shall not be enforced against the consumer.|
|Ky. Rev. Stat. Ann. § 367.46961|
Cancellation of contract not reduced to writing -- Exception.
|(1) Unless the contract is reduced to writing in compliance with subsection (4) of this section, a consumer may cancel a contract made as a result of a telephone solicitation and obtain a full refund of all money paid, by returning the goods, if any, undamaged and unused, or canceling services within the later of:|
(a) Fourteen (14) calendar days following receipt of the goods; or
(b) Fourteen (14) calendar days following receipt of two (2) copies of a written notice of cancellation rights containing the following language in no less than ten (10) point, bold-faced type: NOTICE OF CANCELLATION RIGHTS
BECAUSE YOU AGREED TO BUY THESE GOODS (or services or other appropriate description) AS A RESULT OF AN UNSOLICITED TELEPHONE CALL, KENTUCKY LAW GIVES YOU FOURTEEN (14) DAYS TO CANCEL YOUR AGREEMENT WITH US. IF YOU WANT TO CANCEL, YOU MUST SIGN YOUR NAME BELOW AND RETURN A COPY OF THIS NOTICE, TOGETHER WITH ANY GOODS YOU HAVE RECEIVED, SO THEY ARE POSTMARKED NO LATER THAN MIDNIGHT OF THE FOURTEENTH DAY FOLLOWING THE DATE YOU RECEIVED THE GOODS OR AGREED TO THE SERVICES, OR THE FOURTEENTH DAY FOLLOWING THE DATE YOU RECEIVED THIS NOTICE, WHICHEVER IS LATER. THE NOTICE AND GOODS MUST BE ADDRESSED AS FOLLOWS:
(Name and address of Merchant)
I want to cancel my agreement to purchase.
(Name of Consumer--Printed)
(Address of Consumer--Printed)
(Address--City, State, Zip)
(2) The consumer shall be deemed to have complied with subsection (1) of this section if the cancellation notice and goods, if any, are returned to the merchant and are postmarked by midnight of the fourteenth day.
(3) The merchant shall process the refund due any consumer within thirty (30) days of receiving the merchandise returned by the consumer or the written cancellation provided in subsection (1) of this section.
(4) The cancellation period provided in subsection (1) of this section shall not apply to a written contract signed by the consumer that:
(a) Complies with all applicable federal and state laws and regulations:
(b) Contains a description of the goods, services, investment or business opportunity, extension of credit, or interest in realty matching the description used in the telephone solicitation;
(c) Contains the name, address, and telephone number of the merchant, the total price of the contract, including any finance or interest charges, and a detailed description of the goods, services, credit, or interest in realty being offered;
(d) Contains all oral or written representations made to the consumer in connection with the transaction; and
(e) Sets out in at least ten (10) point, bold-face type, immediately preceding the signature, the following statement:
YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONTRACT AND RETURN IT TO THE MERCHANT.
|Ky. Rev. Stat. Ann. § 367.46963|
Requirements to be met before accepting payment from or charging consumer.
| No caller or merchant making or causing to be made a telephone solicitation shall request or accept payment from a consumer or make or submit any charge to the consumer's credit or bank account until either:|
(1) The merchant receives from the consumer a signed copy of a written contract complying with KRS 367.46961(4); or
(2) The cancellation period provided in KRS 367.46961(1) has expired, and the consumer has not exercised his right to cancel.
|Ky. Rev. Stat. Ann. § 367.46967|
Violation as unfair or deceptive trade practice -- Powers of Attorney General.
|(1) A violation by a telemarketing company, telemarketer, caller, or merchant of KRS 367.46951 to 367.46999 shall constitute an unfair, false, misleading, or deceptive act or practice in the conduct of trade or commerce in violation of KRS 367.170.|
(2) All of the remedies, powers, and duties provided for the Attorney General by KRS 367.190 to 367.300 and the penalties provided in KRS 367.990, relating to acts and practices violating KRS 367.170 shall apply with equal force and effect to acts and practices declared unlawful by KRS 367.46951 to 367.46999.
(3) Nothing in KRS 367.46951 to 367.46999 shall be construed to limit or restrict the exercise of powers or the performance of the duties of the Attorney General authorized under any other provision of law.
|Ky. Rev. Stat. Ann. § 367.46971|
Registration of telemarketing companies doing business in this state -- Filing fee -- Renewal -- Addendum -- Written confirmation of receipt of filing -- Posting of registration statement.
|(1) At least ten (10) days prior to doing business in this state, a telemarketing company shall register with the division by filing the information described below and paying a filing fee of three hundred dollars ($300). A telemarketing company shall be deemed to do business in this state if the telemarketing company solicits prospective purchasers from locations in this state or solicits prospective purchasers who are located in this state. The information required by this section shall be submitted on a form provided by the Attorney General and shall be verified by a declaration signed by each principal of the telemarketing company, under penalty of perjury. The declaration shall specify the date and location of signing. Information submitted pursuant to KRS 367.46951 to 367.46999 shall be clearly identified and appended to the filing.|
(2) Registration of a telemarketing company shall be valid for one (1) year from the effective date thereof and may be renewed annually by making the filing required by this section and paying a filing fee of fifty dollars ($50).
(3) If, prior to expiration of a telemarketing company's annual registration, there is a material change in the information required by KRS 367.46951 to 367.46999, the telemarketing company shall, within ten (10) days, file an addendum updating the information with the division. However, changes in salespersons soliciting on behalf of a telemarketing company shall be updated by filing addenda, if necessary, in quarterly intervals computed from the effective date of registration. The addendum shall include the required information for all salespersons currently soliciting or having solicited on behalf of the telemarketing company at any time during the period between the filing of the registration, or the last addendum, and the current addendum, and shall include information on salespersons no longer soliciting for the telemarketing company as of the date of the filing of the current addendum.
(4) Upon receiving the filing and the filing fee pursuant to this section, the division shall send the telemarketing company a written confirmation of receipt of the filing. If the telemarketing company has more than one (1) business location, the written confirmation shall be sent to the telemarketing company's principal business location as identified in the telemarketing company's filing in sufficient numbers so that the telemarketing company can meet the requirements of this subsection. Within ten (10) days of receipt of the confirmation, the telemarketing company shall post in a conspicuous place at each of the telemarketing company's business locations within this state a copy of the entire registration statement which has been filed with the division. Until confirmation of receipt of filing is received and posted, the telemarketing company shall post in a conspicuous place at each of the telemarketing company's business locations within this state a copy of the first page of the registration form sent to the department. The telemarketing company shall also post in close proximity to either the confirmation of receipt of filing or the first page of the submitted registration form the name of the individual in charge of each location from which the telemarketing company does business in this state.
|Ky. Rev. Stat. Ann. § 367.46973|
Contents of filing.
|Each filing pursuant to KRS 367.46971 shall contain the following information:|
(1) The name or names of the telemarketing company, including the name under which the telemarketing company is doing or intends to do business, if different from the name of the telemarketing company, and the name of any parent or affiliated organization that will engage in business transactions with purchasers relating to sales solicited by the telemarketing company, or that accepts responsibility for statements made by, or acts of, the telemarketing company relating to sales solicited by the telemarketing company;
(2) The telemarketing company's business form and place of organization and, if the telemarketing company is a corporation, a copy of its articles of incorporation and bylaws and amendments to those, or, if a partnership, a copy of the partnership agreement, or if operating under a fictitious business name, the location where the fictitious name has been registered, along with a copy of the registration documents. The same information shall be included for any parent or affiliated organization disclosed pursuant to subsection (1) of this section;
(3) The complete street address of all locations designating the principal location from which the telemarketing company will be conducting business. If the principal business location of the telemarketing company is not in this state, then the telemarketing company shall also designate which of its locations within this state is its main location;
(4) A listing of all telephone numbers to be used by the telemarketing company and the address where each telephone using each of these telephone numbers is located;
(5) The name of and the office held by the telemarketing company's officers, directors, trustees, general and limited partners, sole proprietor, and owners and the names of persons having management responsibilities in the telemarketing company's business activities;
(6) The principal residence, the date of birth, and the driver's license number and state of issuance of each person named pursuant to subsection (5) of this section;
(7) The name and principal residence of each person the telemarketing company leaves in charge at each location in which the telemarketing company does business in this state, and the business location at which each of these persons is in charge;
(8) A statement, meeting the requirements of this subsection, as to both the telemarketing company, whether a corporation, partnership, firm, association, joint venture, or any other type of business entity and as to any person identified pursuant to subsection (5) or (7) of this section who:
(a) Has been convicted of a felony or a misdemeanor involving a violation of this article, or fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property. For purposes of this paragraph, a plea of nolo contendere shall be considered a conviction;
(b) Has had entered against him a final judgment or order in a civil or administrative action, including a stipulated judgment or order, if the complaint or petition in the civil or administrative action alleged acts constituting a violation of KRS 367.46951 to 367.46999, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, the use of untrue or misleading representations in an attempt to sell or dispose of real or personal property, or the use of unfair, unlawful, or deceptive business practices;
(c) Is subject to an injunction or restrictive court order relating to business activity as the result of an action brought by a federal, state, or local public agency or unit of that agency, including but not limited to an action affecting any vocational license; or
(d) Has during the previous seven (7) tax years filed in bankruptcy, been adjudged a bankrupt, been reorganized due to insolvency, or been a principal, director, officer, trustee, general or limited partner, or had management responsibilities of any other corporation, partnership, joint venture, or business entity that has so filed or was so adjudicated or reorganized, during or within one (1) year after the period that the person held that position.
The statement required by paragraphs (a), (b), and (c) of this subsection shall identify the telemarketing company or person, the court or administrative agency rendering the conviction, judgment, or order, the docket number of the matter, the date of the conviction, judgment, or order, and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order. For purposes of paragraph (d) of this section, the statement required shall include the name and location of the telemarketing company or person filing in bankruptcy, adjudged a bankrupt, or reorganized due to insolvency, and shall include the date thereof, the court which exercised jurisdiction, and the docket number of the matter;
(9) A list of the names, driver's license numbers and states of issuance, principal residence addresses, and telephone numbers of salespersons who solicit on behalf of the telemarketing company, and any names the salesperson uses while soliciting;
(10) A description of the items the telemarketing company is offering for sale and a copy of all sales scripts the telemarketing company requires salespersons to use when soliciting prospective purchasers. If no sales script is required to be used, a statement to that effect shall be included;
(11) A copy of all sales information and literature including but not limited to scripts, outlines, instructions, and information regarding how to conduct telephonic sales, sample introductions, sample closings, product information, and contest or premium-award information provided by the telemarketing company to salespersons or of which the telemarketing company informs salespersons, and a copy of all written materials the telemarketing company sends to any prospective or actual purchaser;
(12) (a) If the telemarketing company represents or implies, or directs salespersons to represent or imply, to purchasers that the purchaser will receive certain specific items, including a certificate of any type which the purchaser must redeem to obtain the item described in the certificate, or one (1) or more items among designated items, whether the items are denominated as gifts, premiums, bonuses, prizes, or otherwise, the filing shall include the following:
1. A list of the items offered;
2. The actual value or worth of each item described to prospective purchasers and the basis for the valuation; and
3. The price paid by the telemarketing company to its supplier for each of these items and the name, address, and telephone number of each item's supplier;
(b) If the purchaser is to receive fewer than all of the items described by the telemarketing company, the filing shall include the following:
1. The manner in which the telemarketing company decides which item each prospective purchaser is to receive;
2. The odds a single prospective purchaser has of receiving each described item;
3. The name and address of each recipient who has, during the preceding twelve (12) months, or if the telemarketing company has not been in business that long, during the period the telemarketing company has been in business, received the item having the greatest value and the item with the smallest odds of being received; and
4. All rules, regulations, terms, and conditions a prospective purchaser must meet in order to receive the item; and
(13) If the telemarketing company is offering an investment, business, or employment opportunity, the filing shall include the following:
(a) The number of consumers or investors who have participated to date;
(b) The actual experience of the consumers or investors as measured by standards used in the sales presentations; and
(c) If the opportunity is so recent that no actual performance experience exists, that fact shall be disclosed in all sales presentations, and no other representation of performance shall be made in sales presentations.
|Ky. Rev. Stat. Ann. § 367.46977|
Disclosure requirements for sale presentations.
|(1) If the merchant or telemarketer represents or implies that the consumer will receive a prize, award, or similar item of value from a number of such prizes or awards, all sales presentations shall include the actual number of individuals who have received the item having the greatest value, a description of the item, the market value of the item, the number of prizes to be awarded, the conditions to receive the item, the odds of winning, the statement that no purchase is necessary to win the prize or to participate in the promotion, and the actual number of individuals who have received the item with the least value within the preceding twelve (12) months or since the merchant or telemarketer has been in business if less than twelve (12) months.|
(2) If the merchant or telemarketer is offering real estate, an investment, business, or employment opportunity, the sales presentation shall include the following:
(a) The number of consumers or investors who have participated to date;
(b) The actual experience of the consumers or investors as measured by the standards used in the sales presentations; and
(c) The price of the real estate or investment;
(d) The location of the real estate or investment;
(e) Regarding an investment or business opportunity, the reasonable likelihood of success and a notice of the risk; and
(f) If the opportunity is so recent that no actual performance experience exists, that fact shall be disclosed in all sales presentations, and no other representation of performance shall be made in sales presentations.
(3) If the sales presentation includes representations of prices below those usually charged for items, the sales presentation shall include the name of the manufacturer, importer, or supplier of such items and the locations within the merchant's or telemarketer's calling state or this state at which the items are offered at usual prices. If the item has never been sold in the merchant's or telemarketer's calling state or this state no representation of usual selling price shall be made.
(4) If presenting information on merchandise or service, the total cost of the goods or services that are the subject of the call shall be given.
(5) If any restrictions, limitations, or conditions for the purchase or investment exist, these shall be disclosed during the telephone sales presentation.
(6) Terms for refunds, cancellation, exchange, or repurchase of the subject of the sales presentation shall be disclosed during the telephone sales presentation.
|Ky. Rev. Stat. Ann. § 367.46981|
Bond required for telemarketing companies -- Notification to Attorney General of promotion offering premium.
|(1) Every telemarketing company shall maintain a bond issued by a surety company admitted to do business in this state. The bond shall be in the amount of fifty thousand dollars ($50,000) in favor of the Attorney General for the benefit of any person suffering injury or loss by reason of any violation of KRS 367.46951 to 367.46999 to be paid under the terms of any order of a court of competent jurisdiction obtained by the Attorney General, as a result of any violation of KRS 367.46951 to 367.46999. A copy of the bond shall be filed with the division.|
(2) At least ten (10) days prior to the inception of any promotion offering a premium with an actual market value or advertised value of five hundred dollars ($500) or more, the telemarketing company shall notify the Attorney General in writing of the details of the promotion, describing the premium and its current market value, the value at which it is advertised or held out to the customer, the date the premium shall be awarded, and the conditions under which the award shall be made. The telemarketing company shall maintain an additional bond for the greater of the current total market value or the advertised value of the premiums held out or advertised to be available to a purchaser or recipient. A copy of the bond shall be filed with the division. The bond, or a portion of it necessary to cover the cost of the award, shall be forfeited if the premium is not awarded to a bona fide customer within thirty (30) days of the date disclosed as the time of award or the time otherwise required by law. The proceeds of the bond shall be paid to any person suffering injury or loss by reason of any violation of KRS 367.46951 to 367.46999 or shall be paid pursuant to the terms of any order of a court of competent jurisdiction obtained by the Attorney General, Commonwealth's attorney, or county attorney as a result of any violation of KRS 367.46951 to 367.46999. The bond shall be maintained until the telemarketing company files with the Attorney General proof that the premium was awarded.
|Ky. Rev. Stat. Ann. § 367.46983|
Authority for administrative regulations.
|The Attorney General may promulgate administrative regulations necessary for the proper administration and enforcement of KRS 367.46951 to 367.46999.|
|Ky. Rev. Stat. Ann. § 367.46987|
Person using electronic equipment for solicitation deemed to have accepted Kentucky law.
|Any merchant, caller, or other person who uses electronic equipment within this Commonwealth for purposes of telephone solicitation shall, as a condition of that use, be deemed to have accepted the provisions of KRS 367.46951 to 367.46999 and of KRS Chapter 526.|
|Ky. Rev. Stat. Ann. § 367.46991|
Burden of proving exemption or defense on claimant.
|In a civil proceeding alleging a violation of KRS 367.46951 to 367.46999, the burden of proving an exemption shall be on the person claiming the exemption, and in a criminal proceeding alleging a violation of KRS 367.46951 to 367.46999, the burden of producing evidence to support a defense based on an exemption shall be on the person claiming the exemption.|
|Ky. Rev. Stat. Ann. § 367.46993|
Telemarketer prohibited from contacting credit card issuer to obtain account number -- Issuer prohibited from providing account number.
|(1) A telemarketer shall not contact a credit card issuer, in writing or by telephone, facsimile, computer, or by any other means, for the purpose of obtaining a consumer's credit card account number.|
(2) A credit card issuer shall not provide a consumer's credit card account number to a telemarketer.
|Ky. Rev. Stat. Ann. § 367.46994|
Transfer of numbers on zero call list to national Do Not Call Registry -- Consumer education materials -- Publication of materials by telephone companies.
| (1) The Office of the Attorney General immediately shall request that the Federal Trade Commission include on the national Do Not Call Registry the residential numbers that were placed on the zero call list on or before June 26, 2007. If the Federal Trade Commission denies the request, then those households whose residential numbers will be purged from the zero call list shall be informed by the Office of the Attorney General on how to place their telephone number on the national Do Not Call Registry.|
(2) Persons whose telephone numbers appear on the zero call list shall not receive telephone solicitations except in accordance with the provisions of KRS 367.46951 to 367.46999.
(3) Information contained in a database established for the purpose of administering the zero call list shall be used only for the purpose of implementing the zero call program in conformance with KRS 367.46951 to 367.46999.
(4) The Kentucky Public Service Commission shall produce consumer education materials that:
(a) Describe Kentucky's telemarketing laws;
(b) Describe the consumer's rights and responsibilities regarding the receipt of telephone solicitation;
(c) Explain how consumers can apply to be placed on any federal Do Not Call Registry established by the Federal Communications Commission and the Federal Trade Commission;
(d) Explain how to apply to be placed on company-specific and industrywide no solicitation calls list, including those lists provided by the Direct Marketing Association (DMA) and the Telephone Preference Service (TPS); and
(e) Describe how a consumer can file a complaint if the consumer receives calls after being placed on the Do Not Call Registry established by the Federal Communications Commission and the Federal Trade Commission.
(5) The Public Service Commission shall require that, once a year, telephone companies under the jurisdiction of the Public Service Commission shall include the customer education material or portions thereof, at the discretion of the companies, in either the billing inserts, billing messages, or in the Customer Guide pages of their telephone directories.
|Ky. Rev. Stat. Ann. § 367.46995|
Claims alleging calls made to persons on zero call list -- Defenses.
|(1) Any claim or action alleging the making of a call to a person on the zero call list in violation of KRS 367.46955 shall be in writing and verified by the claimant.|
(2) In any action or claim alleging the making of a call to a person on the zero call list, it shall be a defense that the defendant obtains the current zero call list in a timely manner and makes reasonable efforts to avoid calling persons whose telephone numbers appear on the list.
(3) It shall be a defense in any action or proceeding brought under KRS 367.46951 to 367.46999 that the defendant has established and implemented, with due care, reasonable practices and procedures to prevent telephone solicitations in violation of KRS 367.46951 to 367.46999.
|Ky. Rev. Stat. Ann. § 367.46999|
Penalty for violation -- Concurrent enforcement powers of Attorney General.
|Any person, including, but not limited to, a merchant, a telemarketer, a salesperson, agent or representative of the merchant, or an independent contractor, who knowingly violates any provision of KRS 367.46951 to 367.46999 or engages in any act, practice, or course of business which operates or would operate as fraud or deceit upon any person in connection with a sale shall be guilty of a Class D felony, except that any person who violates KRS 367.46955(7) to (16) shall be guilty of a Class B misdemeanor for the first offense and a Class A misdemeanor for any subsequent offense. The Office of the Attorney General shall have concurrent enforcement powers as to such felonies and misdemeanors.|
|Ky. Rev. Stat. Ann. § 367.650|
Definitions for KRS 367.650 to 367.670.
|As used in KRS 367.650 to 367.670 unless the context requires otherwise:|
(1) "Charitable or civic purpose" means any purpose or activity which holds itself out to be benevolent, educational, philanthropic, humane, patriotic, religious, eleemosynary or fraternal, or to be established for a social welfare or advocacy, public health, environmental conservation, or civic purpose, or is designed to serve the welfare of society generally, or any class or group to which society is morally obligated, or a specific community or to preserve or improve the culture thereof or environment enjoyed thereby.
(2) "Charitable organization" means any person determined by the Internal Revenue Service to be a tax exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code; or a person who is or holds himself out to be established for a charitable or civic purpose; or a person who employs a charitable or civic appeal as the basis of a solicitation, or employs an appeal that suggests there is a charitable or civic purpose to a solicitation.
(3) "Contribution" means the grant, promise, or pledge of money, credit, property, financial assistance, or other thing of any kind or value in response to a solicitation for a charitable or civic purpose. It does not include:
(a) Bona fide fees, dues, or assessments paid by members, if that membership is not conferred solely as consideration for making a contribution in response to a solicitation; or
(b) Money, property, or compensated services received from any governmental authority.
(4) "Solicit" and "solicitation" mean, respectively, to engage in, and the act of, requesting, directly or indirectly, that an addressed person or limited audience or the public generally make a contribution. Solicitation shall be deemed to have taken place when the request is made, whether or not the requested contribution is made.
(5) "Person" means any individual, corporation, trust, partnership, organization, foundation, society, or other legal entity.
(6) "Professional solicitor" means a person who for compensation or other financial consideration solicits contributions in this state, directly or indirectly, for or on behalf of a charitable organization. A person qualifies as a professional solicitor if he is hired on a fee, commission, or percentage basis and the work is performed by him or his agents or the employees or volunteers of the benefitting charitable organization under the direction, supervision, or instruction of the solicitor. A professional solicitor conducts or supervises specific fundraising activities or events in which gifts are solicited, received, and deposited by the professional solicitor or his agents, expenses are paid, and net proceeds delivered to the charitable organization. A bona fide salaried officer, employee, or volunteer of a charitable organization shall not be deemed to be a professional solicitor, unless he is employed or engaged as a fundraising consultant or a professional solicitor by another charitable organization.
(7) "Fundraising consultant" means any person who, for compensation, plans, manages, advises, consults, or develops material for or with respect to the solicitation for any charitable organization. A fundraising consultant shall not, at any time, have custody of contributions from a solicitation or solicit contributions, directly or indirectly. If a fundraising consultant's fee is related to the amount of contributions received from a solicitation in which he took part, the consultant is considered a professional solicitor. A fundraising consultant shall not employ, procure, or otherwise engage any compensated person to solicit contributions. A bona fide salaried officer, employee, or volunteer of a charitable organization shall not be deemed to be a fundraising consultant, unless he is employed or engaged as a fundraising consultant or a professional solicitor by another charitable organization.
(8) "Religious organization" means any organization, the activity of which is protected by Section 1(2) of the Constitution of Kentucky and the First Amendment to the Constitution of the United States.
(9) "Solicitor" means a natural person who, by personal contact, transmitted oral communication or writing which identifies that person, requests a specific person to make a contribution for charitable or civic purposes.
|Ky. Rev. Stat. Ann. § 367.652|
Registration of professional solicitors and fundraising consultants -- Prohibitions -- Background check.
|(1) A professional solicitor shall file a registration statement with, and obtain the approval of, the Attorney General before acting as a professional solicitor. The registration statement shall be attested to by the professional solicitor, if an individual, or by the principal officer of the professional solicitor, if the solicitor is a business entity. The statement shall be accompanied by a fee of three hundred dollars ($300), plus the costs of a background investigation to the Attorney General's office. The funds shall be placed in a trust or agency account pursuant to KRS 45.253. If a professional solicitor is a corporation or partnership, a single fee shall cover all its partners, members, employees, directors, agents, or officers.|
(2) Each registration shall expire on December 31 of the calendar year in which it is filed and may be renewed by reapplying and paying the prescribed fee.
(3) At the time of filing the registration statement, a professional solicitor shall file with and have approved by the Attorney General a full cash or surety bond in the amount of twenty-five thousand dollars ($25,000). The bond shall be in favor of the Attorney General and shall be held for any person having prevailed in a cause of action against the solicitor for liabilities resulting from the solicitor's violation of KRS 367.650 to 367.670 or any administrative regulation promulgated pursuant to these sections. The bond shall be in a form prescribed by the Attorney General. If a surety bond is issued, it shall be issued by an insurer authorized to transact surety insurance in this state pursuant to KRS Chapter 304. The Attorney General may require that any cash offered as security for a full cash bond be held in escrow by a financial institution located in the state, subject to an escrow agreement approved by the Attorney General.
(4) The registration statement shall be filed in a form prescribed by the Attorney General and shall include:
(a) The name, address, and telephone number of the professional solicitor and the agent authorized to accept service of process in this state;
(b) The names in which the professional solicitor is doing business in Kentucky and any names used in the past;
(c) The names and addresses of any charity sharing in the charitable contributions received in this state;
(d) A copy of any articles of incorporation and by-laws of the solicitor, fund raising consultant, and the charitable organization, and any tax-exempt status letter from the Internal Revenue Service;
(e) The names, addresses, and occupations of persons employed by or who have contracted with the professional solicitor and a statement of whether those persons have been convicted of a felony or a misdemeanor involving moral turpitude or arising from their conduct as solicitors for a charitable organization or purpose;
(f) A copy of the financial statement for the professional solicitor's preceding fiscal year, which shall set out the total profits and revenue from all fundraising activities, the balance sheet, the kind and amounts of funds raised, specific costs in raising funds, the percentage of funds raised on behalf of the charitable organization which are actually paid to the organization for charitable purposes, and the location of the original financial records;
(g) A statement of whether the professional solicitor has ever been enjoined by any court or otherwise prohibited from soliciting contributions in any jurisdiction;
(h) A statement indicating the method by which the solicitation is made, a description of the promotional plan together with copies of all advertisements, the location of all telephones being used, and the time period during and the areas in which the solicitations are made; and
(i) Any other information which may be required by the Attorney General for the public interest or for the protection of contributors.
(5) A fundraising consultant shall file a registration statement with and obtain the approval of the Attorney General before acting as a consultant. The registration statement shall be attested to by the fundraising consultant, if the consultant is an individual, or by the principal officer of the fundraising consultant, if the consultant is a business entity. The statement shall be accompanied by a fee of fifty dollars ($50), plus the costs of a background investigation. The fees shall be placed in a trust or agency account pursuant to KRS 45.253. If a fundraising consultant is a corporation or partnership, a single fee shall cover all its partners, members, employees, directors, agents, or officers.
(6) Each registration shall expire on December 31 of the calendar year in which it is filed and may be renewed by reapplying and paying the fee.
(7) The professional solicitor and fundraising consultant shall report in writing to the Attorney General any material change in the registration statement occurring after filing. The report shall be filed within seven (7) calendar days after the change occurs.
(8) No person shall act as a professional solicitor or fundraising consultant if he, his officers, directors, or any person with a controlling interest in the business, or any person the professional solicitor or fundraising consultant employs or procures to solicit for compensation or to advise, consult, plan, or manage in regards to the solicitation campaign, has been convicted by a court of any state or the United States of a felony or a misdemeanor involving moral turpitude or arising from his conduct as a solicitor or consultant for a charitable organization or purpose. A background check on each person set out in this subsection shall be performed by the Attorney General's office. The actual cost of the investigation shall be added to the registration fee.
|Ky. Rev. Stat. Ann. § 367.653|
Contracts -- Requirements -- Filing of contract and promotion registration statement -- Violability of contract with unregistered party.
|(1) A contract between a charitable organization and a professional solicitor or a charitable organization and a fundraising consultant shall be in writing. The contract shall be signed by two (2) authorized officials of the charitable organization, one (1) of whom shall be a member of the organization's governing body and the authorized contracting officer for the professional solicitor or fundraising consultant.|
(2) The contract shall clearly state:
(a) The respective obligations of each party;
(b) The percentage of the gross revenue from the campaign that the charitable organization will receive;
(c) The goods or services to be offered to the public;
(d) The geographic area where the campaign will take place;
(e) The date the campaign will begin and end;
(f) A fundraising budget; and
(g) Provisions for a final accounting.
The contract shall also identify the services to be provided by the professional solicitor or the fundraising consultant and shall indicate whether the solicitor or the consultant will, at any time, have custody of any contributions. The contract may further be defined by administrative regulations promulgated by the Attorney General pursuant to this section.
(3) At least fourteen (14) calendar days prior to the performance of any service pursuant to the contract, a professional solicitor or fundraising consultant shall file with the Attorney General a copy of the contract. No solicitation pursuant to the contract shall begin until the Attorney General has certified that the contract meets the statutory requirements.
(4) When filing the contract, a professional solicitor shall also file a written promotion registration statement with the Attorney General. The statement shall be attested to by the professional solicitor's authorized contracting officer and shall be in the form as prescribed by the Attorney General in administrative regulations. The contract filed by a professional solicitor shall be valid only if it complies with this section and is accompanied by a promotion registration statement.
(5) No professional solicitor or fundraising consultant shall contract with a charitable organization unless the professional solicitor or fundraising consultant is registered with the Attorney General. A contract with an unregistered professional solicitor or fundraising consultant shall be violable at the option of the charitable organization.
|Ky. Rev. Stat. Ann. § 367.656|
Nonacceptance, revocation, suspension, or refusal to renew registration -- Judicial review -- Civil action.
|(1) (a) A filing pursuant to KRS 367.653 and this section shall be accepted unless the Attorney General notifies the professional solicitor or fundraising consultant otherwise, within fourteen (14) calendar days of the receipt of filing. If a filing is not accepted, the Attorney General shall notify the affected charity at the time of rejection. Within seven (7) calendar days after receiving a notice that the filing requirements are not satisfied, the professional solicitor or fundraising consultant may request a hearing. The hearing shall be held in accordance with KRS Chapter 13B.|
(b) A professional solicitor or fundraising consultant may submit an amended filing upon receiving notice that his prior filing has not been accepted.
(2) The Attorney General may revoke, suspend, or refuse to renew the registration of a professional solicitor or fundraising consultant if:
(a) He has violated any provision of KRS 367.650 to 367.670 or any administrative regulations promulgated by the Attorney General pursuant to those sections;
(b) He or any of his principal officers have refused or failed, after notice, to produce any records or disclose any information required pursuant to KRS 367.650 to 367.670, or any administrative regulations promulgated by the Attorney General pursuant to those sections.
(c) He has made a material false statement in an application, statement, or report required to be filed under KRS 367.650 to 367.670.
(3) Any party to a hearing who is aggrieved by the final order may seek judicial review by filing an appeal in the Franklin Circuit Court in accordance with KRS Chapter 13B.
(4) The Attorney General may bring a civil action directly in the Franklin Circuit Court or in the Circuit Court of any county in which the fundraising campaign involving the professional solicitor or fundraising consultant is being conducted to revoke or suspend the registration statement for any of the grounds set forth in this section.
|Ky. Rev. Stat. Ann. § 367.657|
Filing of federal Form 990 fulfills reporting requirement.
|(1) Prior to any solicitation, every charitable organization required by the Internal Revenue Service to file a federal Form 990 and soliciting contributions in the Commonwealth, or for which contributions are solicited shall file with the Attorney General a copy of its most recent federal Form 990 unless exempted by KRS 367.660.|
(2) If a charitable organization is newly formed and a Form 990 has not yet been filed with the Internal Revenue Service, a notice of intent to solicit, in a form prescribed pursuant to administrative regulations promulgated by the Attorney General, shall be filed prior to any solicitation. Each chapter, branch, or affiliate of a charitable organization shall file a separate notice of intent or report the necessary information to its parent charitable organization that shall then file a consolidated notice of intent to solicit. If a consolidated notice of intent is filed, information arising out of the activities of each chapter, branch, or affiliate of the charitable organization in this state shall be covered in the notice. A separate notice of intent shall be filed for each chapter, branch, or affiliate upon the request of the Attorney General. The notice shall expire on December 31 of the calendar year in which it was filed.
(3) The Form 990 shall be filed with the Attorney General each year in which contributors are solicited in the Commonwealth at the same time the form is filed with the Internal Revenue Service. If a Form 990 is not filed with the Internal Revenue Service, a new notice of intent to solicit shall be filed with the Attorney General.
|Ky. Rev. Stat. Ann. § 367.658|
Financial report of campaign -- Filing -- Audit.
|Within ninety (90) days after the completion of a solicitation campaign or on the anniversary of the commencement of a solicitation campaign lasting more than one (1) year, a professional solicitor shall file with the Attorney General a financial report of the campaign, including gross revenues and an itemization of all expenses incurred. This report shall be attested to by the authorized contracting agent for the professional solicitor and two (2) authorized officials of the charitable organization and shall be completed on a form prescribed by the Attorney General. This financial report shall be audited at the request of the Attorney General's office.|
|Ky. Rev. Stat. Ann. § 367.830|
|Unless the context otherwise requires:|
(1) "Participant" shall include, but is not limited to, those who give consideration in order to participate in the pyramid distribution plan;
(2) "Person" means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, or any other legal entity;
(3) "Promotes" means inducing one (1) or more other persons to become a participant;
(4) "Pyramid distribution plan" means any plan, program, device, scheme, or other process by which a participant gives consideration for the opportunity to receive compensation or things of value in return for inducing other persons to become participants in the program;
(5) "Compensation" means payment of any money, thing of value, or financial benefit conferred in return for inducing others to become participants in the pyramid distribution plan. Compensation does not include payment based on sales of goods or services by the person or by other participants in the plan to anyone, including a participant in the plan, who is purchasing the goods or services for actual use or consumption; and
(6) "Consideration" means the payment of cash or the purchase of goods, services, or intangible property but does not include the purchase of goods or services furnished at cost to be used in making sales and not for resale, nor does it include time and effort spent in pursuit of sales or recruiting activities.
|Ky. Rev. Stat. Ann. § 367.832|
Pyramid distribution plan prohibited.
|(1) It is hereby declared unlawful for any person to establish, promote, operate, or participate in any pyramid distribution plan.|
(2) A limitation as to the number of persons who may participate or the presence of additional conditions affecting eligibility for the opportunity to receive compensation under the plan does not change the identity of the plan as a pyramid distribution plan nor is it a defense under this section that a participant, on giving consideration, obtains goods, services or intangible property in addition to the right to receive compensation.
|Ky. Rev. Stat. Ann. § 367.834|
Powers of Attorney General -- Powers of Commonwealth or its agencies not limited.
|(1) All of the remedies and powers granted to the Attorney General by KRS 367.190 to 367.300 and 367.990 for enforcement of KRS 367.170 shall be granted to the Attorney General with equal force and effect for enforcement of KRS 367.832.|
(2) Nothing in this chapter limits the power of any agency of the Commonwealth of Kentucky to enforce criminal or civil provisions of any other chapter of the Kentucky Revised Statutes or the right of any person to bring civil actions granted by any other chapter of the Kentucky Revised Statutes and based upon conduct prohibited herein and nothing in this chapter limits the power of the Commonwealth of Kentucky to punish any person for any conduct which constitutes a crime by statute or at common law.
|Ky. Rev. Stat. Ann. § 367.836|
|KRS 367.830 to 367.834 may be cited as the "Pyramid Sales Act."|
|Ky. Rev. Stat. Ann. § 367.840|
KRS 367.841 to 367.844 to be construed liberally -- Purposes.
|NOTE: PROPOSED LEGISLATION IS PENDING FOR 2013 - 2013 KY H.B. 77 (NS) - ORIGINAL LANGUAGE STILL IN EFFECT AS OF 4/21/2013: "KRS 367.841 to 367.844 shall be liberally construed and applied to promote the underlying purposes of KRS 367.841 to 367.844, which purposes are:|
(1) To protect consumers who buy or lease new motor vehicles that do not conform to applicable warranties by holding manufacturers accountable for certain nonconformities;
(2) To limit the number of attempts and the amount of times that a manufacturer or its agents shall have to cure such nonconformities; and
(3) To require manufacturers to provide, in as expeditious a manner as possible, a refund, not to exceed the amount in KRS 367.842, or replacement vehicle that is acceptable to the aggrieved consumer when the manufacturer or its agents fail to cure any nonconformity within the specified limits."
|Ky. Rev. Stat. Ann. § 367.841|
|NOTE PROPOSED LEGISLATION WILL CHANGE LANGUAGE - 2013 KY H.B. 77 (NS) - ORIGINAL LANGUAGE STILL IN EFFECT AS OF 4/21/2013 |
(1) "Buyer" means any resident person who buys, contracts to buy, or leases a new motor vehicle in the Commonwealth of Kentucky. In the case of the lease of a new motor vehicle, "buyer" shall mean the lessor, lessee, or both.
(2) "Manufacturer" means any person or corporation, resident or nonresident, who manufactures or assembles new motor vehicles, including new conversion van manufacturers, which are sold in the Commonwealth of Kentucky.
(3) "Motor vehicle" means every vehicle which is self-propelled, and which is intended primarily for use and operation on the public highways and required to be registered or licensed in the Commonwealth prior to such use or operation; however, "motor vehicle" shall not include:
(a) Any vehicle substantially altered after its initial sale from a dealer to an individual;
(b) Motor homes;
(e) Farm tractors and other machines used in the production, harvesting, and care of farm products; or
(f) Vehicles which have more than two (2) axles.
(4) "New motor vehicle" means a motor vehicle which has been finally and completely assembled and is in the possession of a manufacturer, factory branch, distributor, wholesaler, or an authorized motor vehicle dealer operating under a valid sales and service agreement, franchise, or contract for the sale of such vehicle granted by the manufacturer, factory branch, distributor, or wholesaler which is, in fact, new and on which the original title has never been issued.
(5) "Express warranty" or "warranty" means the written warranty, so labeled, of the manufacturer of a new automobile, including any terms or conditions precedent to the enforcement of obligations under the warranty.
(6) "Nonconformity" means a failure to conform with an express warranty in a manner which substantially impairs the use, value, or safety of the motor vehicle.
(7) "Reasonable allowance for use" means the amount directly attributable to a consumer's use of the vehicle other than those time periods when the vehicle is out of service due to the nonconformity.
|Ky. Rev. Stat. Ann. § 367.842|
Options of buyer if manufacturer unable to repair nonconformity in new motor vehicle -- Rights of lienholder -- Resolution of disputes -- Dealer not liable.
|(1) If, after a reasonable number of attempts, the manufacturer or its agents are|
unable to repair the nonconformity in the motor vehicle to the express warranty
during the first twelve thousand (12,000) miles of operation or during the first
twelve (12) months following the date of delivery to the buyer, whichever is the
earlier date, that buyer shall report the nonconformity, in writing, to the
(2) If, within the period specified in subsection (1) of this section, the manufacturer
or its agents, are unable to repair or correct any nonconformity or defect that
substantially impairs the use, value, or safety of the motor vehicle, after a
reasonable number of attempts, the manufacturer, at the option of the buyer,
shall replace the motor vehicle with a comparable motor vehicle, or accept
return of the vehicle from the buyer and refund to the buyer the full purchase
price. The full purchase price shall include the amount paid for the motor
vehicle, finance charge, all sales tax, license fee, registration fee, and any
similar governmental charges plus all collateral charges, less a reasonable
allowance for the buyer's use of the vehicle. Refunds shall be made to the
buyer and lienholder, if any, as their interests may appear on the records of
ownership kept by the Department of Vehicle Regulation. The provisions of this
section shall not affect the interests of a lienholder, unless the lienholder
consents to the replacement of the lien with a corresponding lien on the
automobile accepted by the consumer in exchange for the automobile having a
nonconformity, the lienholder shall be paid in full the amount due on the lien,
including finance charges and other charges, before an exchange of
automobiles or a refund to the consumer is made. It shall be an affirmative
defense to any claim under this section that:
(a) The nonconformity, defect, or condition does not substantially impair the
use, value, or safety of the motor vehicle; or
(b) The nonconformity, defect, or condition is the result of abuse, neglect, or
unauthorized modification or alteration of the motor vehicle by the buyer.
(3) It shall be presumed that a reasonable number of attempts have been
undertaken to conform a motor vehicle to the applicable express warranty if,
within the first twelve thousand (12,000) miles of operation or during the period
of twelve (12) months following the date of original delivery of the motor vehicle
to the buyer, whichever is the earlier date:
(a) The same nonconformity, defect, or condition has been subject to repair
four (4) or more times by the manufacturer, but such nonconformity,
defect, or condition continues to exist; or
(b) The vehicle is out of service/use by reason of repair of the same
nonconformity, defect, or condition for a cumulative total of at least thirty
(30) calendar days. The time period described in this paragraph shall be
extended by a reasonable time when a vehicle cannot be repaired due to
the unavailability of parts or supplies as a result of war, invasion, civil
unrest, fire, flood, or natural disaster.
(4) Disputes arising under subsection (2) of this section concerning refund or replacement shall be resolved through the dispute resolution system established under either KRS 367.860 to 367.870, or 16 C.F.R. part 703. Such
remedy shall be pursued prior to seeking any judicial relief under KRS 367.843.
(5) Nothing in this chapter may be construed as imposing any liability on a dealer
or creating a cause of action by a consumer against a dealer.
(6) Nothing in this section shall in any way limit the rights or remedies which are
otherwise available to a buyer under any other law.
(7) Any agreement entered into by a buyer for the purchase of a new motor
vehicle which waives, limits, or disclaims the rights set forth in this section shall
be void as contrary to public policy.
(8) Any action brought pursuant to this section shall be commenced within two (2)
years after the date of original delivery of the new motor vehicle to the buyer.
(9) A court may award reasonable attorney's fees to a prevailing plaintiff.
|Ky. Rev. Stat. Ann. § 367.843|
Action for relief by purchaser.
|Any person who purchases a motor vehicle and thereby suffers any ascertainable loss of money or property, real or personal, as a result of a violation of KRS 367.842, may bring an action under the provisions of KRS 367.220 for relief.|
|Ky. Rev. Stat. Ann. § 367.844|
Manufacturer prohibited from exposing franchised dealer to liability.
|No manufacturer shall, directly or indirectly, by any means or methods, expose or attempt to expose any franchised dealer to liability as forbidden in KRS 367.842(4) and (5). Any violation of this section shall be subject to all applicable provisions of the law, including but not limited to the provisions of KRS 190.062(2).|
|Ky. Rev. Stat. Ann. § 367.845|
Enforcement of provisions of KRS 367.842 to 367.844 by Attorney General.
|Noncompliance with the provisions of KRS 367.842 to 367.844 by a manufacturer shall be unlawful. The Attorney General shall have authority to enforce KRS 367.842 to 367.844 in accordance with powers provided by KRS 367.190 and 367.230, pertaining to acts declared unlawful by KRS 367.170. Any expenses accruing to the Attorney General from the provisions of KRS 367.842 to 367.844 shall be assessed by his office upon the motor vehicle manufacturer involved in any action cited in the provisions herein.|
|Ky. Rev. Stat. Ann. § 367.846|
Application of KRS 367.840 to 367.845.
|KRS 367.840 to 367.845 shall apply to new motor vehicles purchased after July 15, 1986, and to motor vehicles leased after July 15, 1998.|
|Ky. Rev. Stat. Ann. § 367.890|
"Gift card" defined -- Earliest permissible expiration dates -- Extra charges and fees prohibited -- Liability of violator.
|(1) "Gift card," as used in this section, means a certificate, electronic card, or other medium issued by a merchant that evidences the giving of consideration in exchange for the right to redeem the certificate, electronic card, or other medium for goods, food, services, credit, or money of at least an equal value. "Gift card" includes any electronic card issued by a merchant with a monetary value where the issuer has received payment for the full monetary value for the future purchase or delivery of goods or services and any certificate issued by a merchant where the issuer has received payment for the full monetary face value of the certificate for the future purchase or delivery of goods and services. "Gift card" does not include a prepaid calling card used to make telephone calls, or a general-use, prepaid card or other electronic payment device that is issued by a bank or other financial institution that is usable at multiple, unaffiliated merchants, or at automated teller machines, or both, or a gift card issued by a merchant for a promotional program for which no separate monetary consideration is given.|
(2) Subject to subsection (5) of this section, no person or entity shall sell a gift card containing an expiration date that is less than one (1) year after the date the gift card is issued.
(3) No person or entity shall charge service charges or fees relative to that gift card, including dormancy fees, latency fees, or administrative fees, that have the effect of reducing the total amount for which the holder of the gift card may redeem the gift card until the expiration date on the card has expired.
(4) A gift card sold without an expiration date printed on the front or back of the card is valid until redeemed or replaced with a new gift card.
(5) If the expiration date on the card is not less than one hundred twenty (120) days from the date of issue, subsection (2) of this section does not apply to any of the following gift cards:
(a) Sold below face value at a volume discount to employers or to nonprofit and charitable organizations for fundraising purposes;
(b) Sold by a nonprofit or charitable organization for fundraising purposes; or
(c) Given by an employer to an employee, if use of the card is limited to the employer's business establishment. As used in this paragraph, business establishment may include a group of merchants that are affiliated with that business establishment.
(6) Any person who violates subsection (3) of this section is liable to the holder of the card for any amount that the redemption value of the gift card was reduced, any court costs incurred, and reasonable attorney's fees.