1 | State | 2018 Statute Number | 2018 Statute Language |
|---|---|---|---|
2 | Tennessee | Ten. Code Ann. 47-18-101 Short title. | This part shall be known and may be cited as the “Tennessee Consumer Protection Act of 1977.” |
3 | Ten. Code Ann. 47-18-102 Purpose. | This part shall be liberally construed to promote the following policies: (1) To simplify, clarify, and modernize state law governing the protection of the consuming public and to conform these laws with existing consumer protection policies; (2) To protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state; (3) To encourage and promote the development of fair consumer practices; (4) To declare and to provide for civil legal means for maintaining ethical standards of dealing between persons engaged in business and the consuming public to the end that good faith dealings between buyers and sellers at all levels of commerce be had in this state; and (5) To promote statewide consumer education. | |
4 | Ten. Code Ann. 47-18-103 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Bait and switch” or “switch” means advertising items to lure consumers, then inducing the consumers to buy different and more expensive items by failing to make available the goods or services advertised, or by disparaging the less expensive product. Provision of accurate factual information shall not be considered disparagement; (2) “Consumer” means any natural person who seeks or acquires by purchase, rent, lease, assignment, award by chance, or other disposition, any goods, services, or property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated or any person who purchases or to whom is offered for sale a franchise or distributorship agreement or any similar type of business opportunity; (3) “Contract for home improvement services” means a contractual agreement, written or oral, between a person performing home improvement services and a residential owner, and includes all labor, services and materials to be furnished and performed under such agreement; (4) “Covered file-sharing program” means a computer program, application, or software that enables the computer on which such program, application, or software is installed to designate files as available for searching by and copying to one (1) or more other computers, to transmit such designated files directly to one (1) or more other computers, and to request the transmission of such designated files directly from one (1) or more other computers. “Covered file-sharing program” does not mean a program, application, or software designed primarily to operate as a server that is accessible over the Internet using the Internet domain name system, to transmit or receive email messages, instant messaging, real-time audio or video communications, or real-time voice communications, or to provide network or computer security, network management, hosting and backup services, maintenance, diagnostics, technical support or repair, or to detect or prevent fraudulent activities; (5) “Division” means the division of consumer affairs in the department of commerce and insurance; (6) “Documentary material” means the original or copy of any book, record, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated; (7) “Goods” means any tangible chattels leased, bought, or otherwise obtained for use by an individual primarily for personal, family, or household purposes or a franchise, distributorship agreement, or similar business opportunity; (8) “Home improvement services” means the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to any residential property, and includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to driveways, swimming pools, porches, garages, landscaping, fences, fall-out shelters, and roofing; (9) “Home improvement services provider” means any person or entity, whether or not licensed pursuant to title 62, chapter 6, who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct, or in any manner assume charge of the home improvement service for a fee. “Home improvement services provider” specifically includes but is not limited to a “residential contractor” as defined in § 62-6-102 when performing home improvement services and a “home improvement contractor” as defined in § 62-6-501; (10) “Knowingly” or “knowing” means actual awareness of the falsity or deception, but actual awareness may be inferred where objective manifestations indicate that a reasonable person would have known or would have had reason to know of the falsity or deception; (11) “Local telephone directory” means a telephone directory that is distributed by a telephone company or directory publisher, or provided as a service to subscribers located in the local exchanges contained in the directory. “Local telephone directory” includes: (A) A classified advertising directory, commonly referred to as the yellow pages; (B) A directory of individual telephone listings, commonly referred to as the white pages, whether identified as “business listings” or combined in listings of residences and businesses in a directory that does not have separate residence and business listings; (C) A directory that includes listings of more than one (1) telephone company; or (D) A directory assistance database or similar service, commonly used by dialing “411” and speaking with a live person or through an automated system; (12) “Local telephone number” means a telephone number that has the three (3) number prefix used by the provider of telephone service for telephones physically located within the area covered by the local telephone directory in which the number is listed. “Local telephone number” does not include long distance numbers or 800, 888, or 900 exchange numbers listed in a local telephone directory; (13) “Person” means a natural person, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized; (14) “Physical address” means the mailing address, including a zip code, which details the actual location of a person or entity, but does not include a post office box; (15) “Possession” means actual care, custody, control, or management of residential property, but shall not include occupancy of residential property through a lease or rental agreement; (16) “Residential owner” means a person who has possession of residential real property, including any person authorized by such residential owner to act on the residential owner's behalf; (17) “Residential property” means the building structure where a person abides, lodges, resides or establishes a living accommodation or where a residential owner intends to abide, lodge, reside or establish a living accommodation following the completion of home improvement services made pursuant to a contract for home improvement services and includes the land on or adjacent to such building structure; (18) “Services” means any work, labor, or services including services furnished in connection with the sale or repair of goods or real property or improvements thereto; and (19) “Trade,” “commerce,” or “consumer transaction” means the advertising, offering for sale, lease or rental, or distribution of any goods, services, or property, tangible or intangible, real, personal, or mixed, and other articles, commodities, or things of value wherever situated. | |
5 | Ten. Code Ann. 47-18-104 Unfair or deceptive acts prohibited. | (a) Unfair or deceptive acts or practices affecting the conduct of any trade or commerce constitute unlawful acts or practices and are Class B misdemeanors. (b) The following unfair or deceptive acts or practices affecting the conduct of any trade or commerce are declared to be unlawful and in violation of this part: (1) Falsely passing off goods or services as those of another; (2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services. This subdivision (b)(2) does not prohibit the private labeling of goods and services; (3) Causing likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another. This subdivision (b)(3) does not prohibit the private labeling of goods or services; (4) Using deceptive representations or designations of geographic origin in connection with goods or services; (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship approval, status, affiliation or connection that such person does not have; (6) Representing that goods are original or new if they are deteriorated, altered to the point of decreasing the value, reconditioned, reclaimed, used or secondhand; (7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (8) Disparaging the goods, services or business of another by false or misleading representations of fact; (9) Advertising goods or services with intent not to sell them as advertised; (10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity; (11) Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; (12) Representing that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law; (13) Representing that a service, replacement or repair is needed when it is not; (14) Causing confusion or misunderstanding with respect to the authority of a salesperson, representative or agent to negotiate the final terms of a consumer transaction; (15) Failing to disclose that a charge for the servicing of any goods in whole or in part is based on a predetermined rate or charge, or guarantee or warranty, instead of the value of the services actually performed; (16) Disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge, except as provided for in § 39-14-132(b); (17) Advertising of any sale by falsely representing that a person is going out of business; (18) Using or employing a chain referral sales plan in connection with the sale or offer to sell of goods, merchandise, or anything of value, which uses the sales technique, plan, arrangement or agreement in which the buyer or prospective buyer is offered the opportunity to purchase goods or services and, in connection with the purchase, receives the seller's promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the seller the names of other prospective buyers if the receipt of compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods; (19) Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve; provided, that nothing in this subdivision (b)(19) shall be construed to alter the implied warranty of merchantability as defined in § 47-2-314; (20) Selling or offering to sell, either directly or associated with the sale of goods or services, a right of participation in a pyramid distributorship. As used in this subdivision (b)(20), a “pyramid distributorship” means any sales plan or operation for the sale or distribution of goods, services or other property wherein a person for a consideration acquires the opportunity to receive a pecuniary benefit, which is not primarily contingent on the volume or quantity of goods, services or other property sold or delivered to consumers, and is based upon the inducement of additional persons, by such person or others, regardless of number, to participate in the same plan or operation; (21) Using statements or illustrations in any advertisement which create a false impression of the grade, quality, quantity, make, value, age, size, color, usability or origin of the goods or services offered, or which may otherwise misrepresent the goods or services in such a manner that later, on disclosure of the true facts, there is a likelihood that the buyer may be switched from the advertised goods or services to other goods or services; (22) Using any advertisement containing an offer to sell goods or services when the offer is not a bona fide effort to sell the advertised goods or services. An offer is not bona fide, even though the true facts are subsequently made known to the buyer, if the first contact or interview is secured by deception; (23) Representing in any advertisement a false impression that the offer of goods has been occasioned by a financial or natural catastrophe when such is not true, or misrepresenting the former price, savings, quality or ownership of any goods sold; (24) Assessing a penalty for the prepayment or early payment of a fee or charge for services by a utility or company which has been issued a franchise license by a municipal governing body to provide services. Nothing in this subdivision (b)(24) shall be construed to prohibit a discount from being offered for early payment of the applicable fee or charge for services. This subdivision (b)(24) does not apply to a utility or company whose billing statement reflects charges both for service previously rendered and in advance of services provided; (25) Discriminating against any disabled individual, as defined by §§ 47-18-802(b) and 55-21-102(3), in violation of the Tennessee Equal Consumer Credit Act of 1974, compiled in part 8 of this chapter. This subdivision (b)(25) does not apply to any creditor or credit card issuer regulated by the department of financial institutions. The division shall refer any complaint against such a creditor or credit card issuer involving the Equal Consumer Credit Act to such department for investigation and disposition; (26) Violating § 65-5-106; (27) Engaging in any other act or practice which is deceptive to the consumer or to any other person; provided, however, that enforcement of this subdivision (b) (27) is vested exclusively in the office of the attorney general and reporter and the director of the division; (28)(A)(i) Failing of a motor vehicle repair facility to return to a customer any parts which were removed from the motor vehicle and replaced during the process of repair if the customer, at the time repair work was authorized, requested return of such parts; provided, that any part retained by the motor vehicle repair facility as part of a trade-in agreement or core charge agreement for a reconditioned part need not be returned to the customer unless the customer agrees to pay the facility the additional core charge or other trade-in fee; and provided further, that any part required to be returned to a manufacturer or distributor under a warranty agreement or any part required by any federal or state statute or rule or regulation to be disposed of by the facility need not be returned to the customer; or (ii) Failing of a motor vehicle repair facility to permit inspection of any parts retained by the repair facility if the customer, at the time repair work was authorized, expressed the customer's desire to inspect such parts; provided, that if, after inspection, the customer requests return of such parts, the restrictions set forth in subdivision (b)(28)(A)(i) shall apply; (B)(i) Failing of a motor vehicle repair facility to post in a prominent location notice of the provisions of this subdivision (b)(28); or (ii) Failing of a motor vehicle repair facility to print on the repair contract notice of the provisions of this subdivision (b)(28); (C) The motor vehicle repair facility need not retain any parts not returned to the customer after the motor vehicle has been returned to the customer; (29) Advertising that a business is “going out of business” more than ninety (90) days before such business ceases to operate; (30) Failing to comply with §§ 6-55-401 -- 6-55-413, where a municipality has adopted the regulations of liquidation sales pursuant to § 6-55-413; (31) Offering lottery winnings in exchange for making a purchase or incurring a monetary obligation pursuant to § 47-18-120; (32)(A) The act of misrepresenting the geographic location of a person through a business name or listing in a local telephone directory or on the Internet is an unfair or deceptive act or practice affecting the conduct of trade or commerce, if: (i) The name misrepresents the person's geographic location; or (ii) The listing fails to clearly and conspicuously identify the locality and state of the person's business; (iii) Calls to the listed telephone number are routinely forwarded or otherwise transferred to a person's business location that is outside the calling area covered by the local telephone directory, or that is outside the local calling area for the telephone number that is listed on the Internet; (iv) The person's business location is located in a county that is not contiguous to a county in the calling area covered by the local telephone directory, or is located in a county that is not contiguous to a county in the local calling area for the telephone number that is listed on the Internet; and (v) The person does not have a business location or branch, or an affiliate or subsidiary of the person does not have a business location or branch, in the calling area or county contiguous to the local calling area. (B) This subdivision (b)(32) shall not apply: (i) To a telecommunications service provider, an Internet service provider, or to the publisher or distributor of a local telephone directory unless the act is on behalf of the Internet or telecommunications service provider or on behalf of the publisher or distributor of the local telephone directory; or (ii) To the act of listing a number for a call center. For purposes of this subdivision (b)(32)(B)(ii), “call center” means a location that utilizes telecommunication services for activities related to an existing customer relationship, including, but not limited to, customer services, reactivating dormant accounts or receiving reservations. (C) Notwithstanding any other law to the contrary, and without limiting the scope of § 47-18-104, a violation of this subdivision (b)(32) shall be punishable by a nonremedial civil penalty of a minimum of one thousand dollars ($1,000) to a maximum of five thousand dollars ($5,000) per violation. Civil penalties assessed under this subdivision (b)(32) are separate and apart from the remedial civil penalties authorized in § 47-18-108(b)(3). (D) This subdivision (b)(32) applies only to information supplied to a telephone directory published after July 1, 2008, information that is published on the Internet after July 1, 2008, or to information supplied for entry into a directory assistance database after July 1, 2008; (33) Advertising that a person is an electrician for hire when such person has not been licensed by a local jurisdiction to perform electrical work within such jurisdiction or by the state as a limited licensed electrician or contractor, as appropriate or, if no such licenses are then available, such person is not registered with the state; (34) Unreasonably raising prices or unreasonably restricting supplies of essential goods, commodities or services in direct response to a crime, act of terrorism, war, or natural disaster, regardless of whether such crime, act of terrorism, war, or natural disaster occurred in the state of Tennessee; (35) Representing that a person is a licensed contractor when such person has not been licensed as required by § 62-6-103 or § 62-6-502; or, acting in the capacity of a contractor as defined in § 62-6-102(4)(A), § 62-6-102(7) or § 62-6-501, and related rules and regulations of the state of Tennessee, or any similar statutes, rules and regulations of another state, while not licensed; (36)(A) Using any advertisement for a workshop, seminar, conference, or other meeting that contains a reference to a living trust or a revocable living trust, or that otherwise offers advice or counsel on estate taxation unless such advertisement also includes the information required in this subdivision (b)(36); (B) An advertisement as provided in this subdivision (b)(36) shall, at a minimum, include the following: (i) The maximum exclusion for federal estate tax purposes and the maximum exemption for state inheritance tax purposes for the year in which the advertisement appears; (ii) Includes a statement that certain property, including real property, insurance proceeds, deposit accounts, stocks and retirement fund, may be taxable or not taxable, depending on how legal title is held or beneficiary designation is made, or both; (iii) Includes a statement that certain property may be transferred through several different means including, but not limited to, joint ownership of property with rights of survivorship, joint deposit accounts, beneficiary designations or elections permitted under retirement plans, insurance policies, trusts, or wills; and (iv) A statement that before creating any transfer through a living trust, revocable living trust, or otherwise, the individual should seek advice from an attorney, accountant or other tax professional to determine the true tax impact and ensure that assets are properly transferred into any trust; (C) The disclosure required in this subdivision (b)(36) shall be printed in not less than 10-point type; (D) This subdivision (b)(36) shall not apply to an advertisement by any attorney, law firm, bank, savings institution, trust company, or registered securities broker-dealer which is directed to clients or customers of such person with whom such person has had a client or customer relationship within the prior two (2) years. This subdivision (b)(36) shall also not apply to any continuing education seminars or conferences conducted for the benefit of bankers, attorneys, accountants, or other professional financial advisors; (37) Refusing to accept the return of clothing or accessories sold at retail directly to a purchaser, who seeks to return the same for any reason for refund or credit; provided, that: (A) The purchaser presents the clothing or accessories within the retailer's prescribed period for return of merchandise; (B) The purchaser presents satisfactory proof of purchase; (C) The merchandise is, in no way, damaged and exhibits no sign of wear or cleaning; (D) All tags and stickers affixed or attached to the merchandise at the time of sale remain affixed or attached at the time of return; and (E) The sale of the merchandise was not marked, advertised or otherwise characterized as “final”, “no return”, “no refunds”, or in any manner reasonably indicating that the merchandise would not be accepted for return; (38)(A) Requiring the purchaser to present that purchaser's driver license as a prerequisite for accepting the return of clothing or accessories for refund or credit, notwithstanding compliance with the conditions set forth in subdivision (b)(37), unless such a requirement is for the purpose of preventing fraud and abuse; (B) Notwithstanding any provision of subdivision (b)(37) or (b)(38)(A) to the contrary, return denials are permitted for the purpose of preventing fraud and abuse; (39) Representing that a person, or such person's agent, authorized designee or delegee for hire, has conducted a foreclosure on real property, when such person knew or should have known that a foreclosure was not actually conducted on the real property; (40)(A) Selling or offering to sell a secondhand mattress in this state or importing secondhand mattresses into this state for the purpose of resale in violation of § 68-15-203(b); (B) Subdivision (b)(40)(A) shall apply to a mattress manufacturer, wholesaler or retailer. Subdivision (b)(40)(A) shall not apply to an institution or organization that has received a determination of exemption from the internal revenue service under 26 U.S.C. § 501(c)(3), and as described in § 67-6-348. The exemption provided in this subdivision (b)(40)(B) shall be limited to institutions or organizations that are not organized or operated for profit, and no part of the net earnings of which inures to the benefit of any private shareholder or individual; (41)(A) Knowingly advertising or marketing for sale a newly constructed residence as having more bedrooms than are permitted by the newly constructed residence's subsurface sewage disposal system permit, as defined in § 68-221-402, unless prior to the execution of any sales agreement the permitted number of bedrooms is disclosed in writing to the buyer. The real estate licensee representing the owner may rely upon information furnished by the owner; (B) If a newly constructed residence is marketed for sale as having more bedrooms than are permitted by the subsurface sewage disposal system permit and no disclosure of the actual number of bedrooms permitted occurs prior to the execution of a sales agreement, then the buyer shall have the right to rescind the sales agreement and may recover treble damages as provided in § 47-18-109; (C) A subsurface sewage disposal system permit issued in the name of the owner of a newly constructed residence shall serve as constructive notice to that owner of the newly constructed residence for the purpose of establishing knowledge as to the number of bedrooms of the newly constructed residence for the purpose of finding a violation of this subdivision (b)(41). A real estate licensee representing the owner must have actual knowledge transmitted from the owner to the real estate licensee to be in violation of this subdivision (b)(41); (42) Offering, through the mail or by other means, a check that contains an obligation to advertise with a person upon the endorsement of the check. The obligation is effective upon the check being signed and deposited into the consumer's bank account; (43) The act or practice of directly or indirectly: (A) Making representations that a person will pay or reimburse for a motor vehicle traffic citation for any person who purchases a device or mechanism, passive or active, that can detect or interfere with a radar, laser or other device used to measure the speed of motor vehicles; (B) Advertising, promoting, selling or offering for sale any radar jamming device that includes any active or passive device, instrument, mechanism, or equipment that interferes with, disrupts, or scrambles the radar or laser that is used by law enforcement agencies and officers to measure the speed of motor vehicles; or (C) Advertising, promoting, selling or offering for sale any good or service that is illegal or unlawful to sell in the state; (44) Violating § 47-18-5402; (45)(A) Installing, offering to install, or making available for installation, reinstallation or update a covered file-sharing program onto a computer without being an authorized user of that computer or without first providing clear and conspicuous notice to the authorized user of the computer that the files on that computer will be made available to the public, obtaining consent of the authorized user to installation of the program, and requiring affirmative steps by the authorized user to activate any feature on the program that will make files on that computer available to the public; or (B) Preventing reasonable efforts to disable or remove, or to block the installation or execution of, a covered file-sharing program on a computer; (46)(A) The act or practice of directly or indirectly advertising, promoting, selling, or offering for sale international driver's licenses. It is a per se violation of this subdivision (b)(46) to: (i) Misrepresent that any international driver's license sold or offered for sale confers a privilege to operate a motor vehicle on the streets and highways in this state; or (ii) Represent that any international driver's license sold or offered for sale is of a particular standard, quality or grade; (B) For purposes of this subdivision (b)(46), unless the context otherwise requires: (i) “International driver's license” means a document that purports to confer a privilege to operate a motor vehicle on the streets and highways in this state and is not issued by a governmental entity. Such document may be an imitation of an international driving permit; and (ii) “International driving permit” means the document issued by a duly authorized automobile association to a holder of a valid driver license which grants such holder the privilege to operate a motor vehicle in countries or international bodies that are signatory parties to Article 24 of the 1949 United Nations Convention on Road Traffic, pursuant to 3 U.S.T. § 3008; (C) Notwithstanding any other law to the contrary, and without limiting the scope of this section, a violation of this subdivision (b)(46) shall be punishable by a non-remedial civil penalty of a minimum of one thousand dollars ($1,000) to a maximum of three thousand dollars ($3,000) per violation. Civil penalties assessed under this subdivision (b)(46) are separate and apart from the remedial civil penalties authorized in § 47-18-108(b)(3); (47) A home improvement services provider: (A) Entering into a contract for home improvement services without providing to the residential owner in written form: (i) That it is a criminal offense for the person entering into the contract for home improvement services with a residential owner to do any of the prohibited acts set out in § 39-14-154(b), by writing out the text of each prohibited act, and providing the penalty and available relief for such; and (ii) The true and correct name, physical address and telephone number of the home improvement services provider; or (B) Having complied with subdivision (b)(47)(A), failing to provide to the residential owner in written form a correct current or forwarding address if the person changes the physical address initially provided to the residential owner and any or all work to be performed under the contract has not been completed; (48) Failing to comply with title 62, chapter 6, part 6; (49) Engaging in a Ponzi scheme, defined as a fraudulent investment scheme in which money placed by later investors pays artificially high dividends to the original investor, thereby attracting even larger investments; and (50) Making fraudulent statements or intentional omissions in order to induce a consumer to sell securities or other things of value to fund an investment. (c) The following are among the acts or practices which will be considered in determining if an offer to sell goods or services is not bona fide: (1) Refusal to reasonably show, demonstrate or sell the goods or services offered in accordance with the terms of the offer; (2) Disparagement by acts or words of the advertised goods or services or disparagement with respect to the guarantee, credit terms, availability of service, repairs or parts, or in any other respect, in connection with the advertised goods or services; (3) Failure to make available at all outlets listed in the advertisement a sufficient quantity of the advertised goods or services to meet reasonably expectable public demand, unless the advertisement clearly and conspicuously discloses that the availability of a particular good is limited and/or the goods or services are available only at designated outlets, or unless the advertisement discloses that a particular good is to be closed out or offered for a limited time. In the event of an inadequate inventory, issuing of “rain checks” for goods or offering comparable or better goods at the sale price may be considered a good faith effort to make the advertised goods available, unless there is a pattern of inadequate inventory or unless the inadequate inventory was intentional. If rain checks are offered, the goods must be delivered within a reasonable time; (4) Refusal to take orders or give rain checks for the advertised goods or services, when the advertisement does not disclose their limited quantity or availability to be delivered within a reasonable period of time; (5) Showing or demonstrating goods or services which are defective, unusable or impractical for the purpose represented or implied in the advertisement when such defective, unusable or impractical nature is not fairly and adequately disclosed in the advertisement; and (6) Use of a sales plan or method of compensating or penalizing salespersons designed to prevent or discourage them from selling the advertised goods or services. This does not prohibit compensating salespersons by use of a commission. (d) The fact that a seller occasionally sells the advertised goods or services at the advertised price does not constitute a defense when the seller's overall purpose is to engage in bait and switch tactics. (e) Nothing in § 47-18-103(1) or subdivisions (b)(21)-(23) and subsections (c) and (d) shall prevent a seller from advertising goods and services with the hope that consumers will buy goods or services in addition to those advertised. (f) For the purposes of subsection (b), investment does not include a security defined in § 48-1-102 or any insurance or annuity contract. | |
6 | Ten. Code Ann. 47-18-105 Repealed by 1981 Pub.Acts, c. 58, § 1 | ||
7 | Ten. Code Ann. 47-18-106 Investigations -- Requests for information -- Penalties for noncompliance. | (a) Whenever the division has reason to believe that a person is engaging in, has engaged in, or, based upon information received from another law enforcement agency, is about to engage in any act or practice declared to be unlawful by this part, or has reason to believe it to be in the public interest to conduct an investigation to ascertain whether any person is engaging in, has engaged in, or is about to engage in such act or practice, the division upon the approval of the attorney general and reporter or through the office of the attorney general and reporter may: (1) Require the person to file a statement or report in writing, under oath or otherwise, as to all the facts and circumstances concerning the alleged violation and to furnish and make available for examination whatever documentary material and information are relevant to the subject matter of the investigation; (2) Examine under oath any person in connection with the alleged violation; and (3) Examine any merchandise or any sample of merchandise deemed relevant to the subject matter of the investigation. (b) At any time prior to the return date specified in the division's request for information pursuant to subsection (a), or within ten (10) days following notice of such a request, whichever is shorter, any person from whom information has been requested may petition the circuit or chancery court of Davidson County, stating good cause, for a protective order to extend the return date for a reasonable time, or to modify or set aside the request. The division shall receive at least one (1) day's notice of such a petition and shall be given an opportunity to respond. (c) If no protective order from the court is secured and the written request by the division is not complied with by its return date, the division, upon notice to the person requested to provide information, may apply to a court of competent jurisdiction for an order compelling compliance with the request made pursuant to subsection (a). (d) Any court of competent jurisdiction in this state, upon a showing by the division that there are reasonable grounds to believe that this part is being, has been, or is about to be violated; that the persons who are committing, have committed, or are about to commit such acts or practices or who possess the relevant documentary material have left the state or are about to leave the state; and that such an order is necessary for the enforcement of this part, may order such persons to comply with subsection (a) whether the division has made a prior request for information or not. The court may also, notwithstanding any provision to the contrary, immediately and without notice, forbid the removal from any place, concealment, withholding, destruction, mutilation, falsification, or alteration by any other means of any documentary material in the possession, custody, or control of any person believed by the division to be connected with acts or practices which violate this part. (e) Any person who has received notice of a request for information pursuant to subsection (a), or of an order pursuant to subsection (c) or (d), and with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigation or order under this part, removes from any place, conceals, withholds, destroys, mutilates, falsifies or by any other means alters any documentary material in the possession, custody, or control of any person subject to such notice, shall be subject to a civil penalty of not more than one thousand dollars ($1,000), recoverable by the state in addition to any other appropriate sanction. (f) Documentary material or merchandise requested pursuant to this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person possessing such documentary material or merchandise, or at such other time and place as may be agreed upon by the possessor and the division. (g) No documentary material, merchandise, or other information, including trade secrets, obtained pursuant to a request under this section, unless otherwise ordered by the court for good cause shown, shall be produced for inspection, copied by, or its contents disclosed to, any person other than an authorized representative of the division or other proper law enforcement official for the purpose of prosecution without the consent of the person who produced the material or information. The division may use copies of the documentary material produced in accordance with this section and merchandise impounded under a court order as it determines necessary in the enforcement of this part, including the presentation before any court; provided, that none of the powers conferred upon the division by this part shall be used for the purpose of compelling any natural person to furnish testimony or evidence which may be protected by such person's right against self-incrimination. (h) In conducting an inquiry pursuant to this section, the division, whenever such aid is determined to be necessary and desirable, may request the aid of any agency of the state; and any agency, as requested, shall give full aid, support, and cooperation to the division in such investigation. (i) Service of any notice, order, or request for information by the division may be made in compliance with the Tennessee Rules of Civil Procedure or by: (1) Delivering a duly executed copy of the notice, order, or request for information to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of that person; (2) Mailing by registered or certified mail a duly executed copy of the notice, order, or request for information addressed to the person, to be served at the person's principal place of business in this state, or if the person has no place of business within this state, to the person's principal office, place of business, home, or last known address; or (3) Personal service, pursuant to §§ 20-2-214--20-2-220. | |
8 | Ten. Code Ann. 47-18-107 Assurance of voluntary compliance -- Penalty for violation. | (a) In the administration of this part, the attorney general and reporter, at the request of the division, may negotiate and accept an assurance of voluntary compliance with respect to any act or practice considered to violate this part, from any person who allegedly is engaging in, has engaged in, or, based upon information received from another law enforcement agency, is about to engage in the act or practice. The assurance shall be in writing and shall be filed with and subject to the approval of the circuit or chancery court of Davidson County. (b) The acceptance of an assurance of voluntary compliance may be conditioned on the stipulation that the person considered to be in violation of this part restore to any person in interest any money or property, real, personal, or mixed, which may have been acquired by means of acts or practices which are considered to violate this part. (c) An assurance of voluntary compliance shall not be considered an admission of prior violation of this part. However, unless an assurance has been rescinded by agreement of the parties or voided by a court for good cause, subsequent failure to comply with the terms of the assurance is prima facie evidence of a violation of this part. (d) Matters closed by the filing of an assurance of voluntary compliance may be reopened for cause by the division at any time. (e) Assurance of voluntary compliance shall in no way affect individual rights of action which may exist independent of the recovery of money or property received pursuant to a stipulation in voluntary compliance under subsection (b). (f) Any knowing violation of the terms of an agreement of voluntary compliance, unless it has been rescinded by agreement of the parties or voided by a court for good cause, shall be punishable by a civil penalty of not more than one thousand dollars ($1,000), recoverable by the state for each violation, in addition to any other appropriate sanction. | |
9 | Ten. Code Ann. 47-18-108 Restraining orders or injunctions -- Penalty for violation. | (a)(1) Whenever the division has reason to believe that any person has engaged in, is engaging in, or, based upon information received from another law enforcement agency, is about to engage in any act or practice declared unlawful by this part and that proceedings would be in the public interest, the attorney general and reporter, at the request of the division, may bring an action in the name of the state against such person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such act or practice. (2) Unless the division determines in writing that the purposes of this part will be substantially impaired by delay in instituting legal proceedings, it shall, at least ten (10) days before instituting legal proceedings as provided for in this section, give notice to the person against whom proceedings are contemplated and give such person an opportunity to present reasons why such proceedings should not be instituted. (3) The action may be brought in a court of competent jurisdiction in the county where the alleged unfair or deceptive act or practice took place or is about to take place or in the county in which such person resides, has such person's principal place of business, conducts, transacts, or has transacted business or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found. (4) The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part, and such orders and injunctions shall be issued without bond. (5) Whenever any permanent injunction is issued by a court in connection with any action which has become final, reasonable costs shall be awarded to the state. (b)(1) The court may make such orders or render such judgments as may be necessary to restore to any person who has suffered any ascertainable loss by reason of the use or employment of such unlawful method, act, or practice, any money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, which may have been acquired by means of any act or practice declared to be unlawful by this part. (2) The court may also enter an order temporarily or permanently revoking a license or certificate authorizing that person to engage in business in this state, if evidence has been presented to the court establishing knowing and persistent violations of this part. (3) The court may also order payment to the state of a civil penalty of not more than one thousand dollars ($1,000) for each violation. (4) The court may also order reimbursement to the state for the reasonable costs and expenses of investigation and prosecution of actions under this part, including attorneys' fees. (c) Any knowing violation of the terms of an injunction or order issued pursuant to subsection (a) or (b) shall be punishable by a civil penalty of not more than two thousand dollars ($2,000), recoverable by the state for each violation, in addition to any other appropriate relief. | |
10 | Ten. Code Ann. 47-18-109 Private right of action -- Damages -- Notice to division. | (a)(1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages. (2) The action may be brought in a court of competent jurisdiction in the county where the alleged unfair or deceptive act or practice took place, is taking place, or is about to take place, or in the county in which such person resides, has such person's principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found. (3) If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained and may provide such other relief as it considers necessary and proper, except that the court may not award exemplary or punitive damages for the same unfair or deceptive practice. (4) In determining whether treble damages should be awarded, the trial court may consider, among other things: (A) The competence of the consumer or other person; (B) The nature of the deception or coercion practiced upon the consumer or other person; (C) The damage to the consumer or other person; and (D) The good faith of the person found to have violated this part. (5) This subsection (a) does not apply with respect to alleged violations of the Tennessee Equal Consumer Credit Act of 1974, compiled in part 8 of this chapter. (b) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the act or practice violates this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed once the division has commenced a proceeding pursuant to § 47-18-107 or § 47-18-108. (c)(1) Any person who has been affected by an act or practice declared to be a violation of this part may accept any written reasonable offer of settlement made by the person or persons considered to have violated this part; provided, that the tender of acceptance of such a settlement offer shall not abate any proceeding commenced by the division pursuant to § 47-18-107 or § 47-18-108. (2) Such a settlement may be set aside by a court of competent jurisdiction at the request of the affected person or of the division if such a request is made within one (1) year from the date of the settlement agreement and if the court finds the settlement to be unreasonable. (3) In determining the reasonableness of a settlement, the court shall consider: (A) The competence of the consumer or other person; (B) The nature of the deception or coercion practiced upon the consumer or other person; (C) The value of the consideration received; and (D) The nature and extent of the legal advice received by the consumer or other person. If the consumer or other person was not represented by legal counsel at the time of the offer of settlement, the person claiming the benefit of the settlement shall have the burden of establishing that it is reasonable. (4) In any private action commenced under this section, the court may, upon the introduction of proof that the person against whom the action is filed has made a written, reasonable offer of settlement which has been communicated to the affected party, limit the amount of recovery to the terms of the offer of settlement. (d) Any permanent injunction, judgment, or final court order made pursuant to § 47-18-108, or assurance of voluntary compliance entered into pursuant to § 47-18-107, which has not been complied with, shall be prima facie evidence of the violation of this part in any action brought pursuant to this section. (e)(1) Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorney's fees and costs. (2) In any private action commenced under this section, upon finding that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may require the person instituting the action to indemnify the defendant for any damages incurred, including reasonable attorney's fees and costs. (3) This subsection (e) does not apply to an action initiated by the division. (f)(1) Upon the commencement of any action brought under subsections (a) and (b), the clerk of the court shall mail a copy of the complaint or other initial pleading to the division and, upon the entry of any judgment, order, or decree in the action, shall mail a copy of such judgment, order or decree to the division. (2) A copy of any notice of appeal shall be served by the appellant upon the director of the division and attorney general and reporter, who in the public interest may intervene on appeal. (g) No class action lawsuit may be brought to recover damages for an unfair or deceptive act or practice declared to be unlawful by this part. (h) No private right of action shall be commenced under this section for any alleged unfair or deceptive act or practice involving the marketing or sale of a security as defined in the Tennessee Securities Act, § 48-1-102. | |
11 | Ten. Code Ann. 47-18-110 Limitation of Actions. | Any action commenced pursuant to § 47-18-109 shall be brought within one (1) year from a person's discovery of the unlawful act or practice, but in no event shall an action under § 47-18-109 be brought more than five (5) years after the date of the consumer transaction giving rise to the claim for relief. | |
12 | Ten. Code Ann. 47-18-111 Exempted activities. | (a) This part does not apply to: (1) Acts or transactions required or specifically authorized under the laws administered by, or rules and regulations promulgated by, any regulatory bodies or officers acting under the authority of this state or of the United States; (2) A publisher, broadcaster, or other person principally engaged in the preparation or dissemination of information or the reproduction of printed or pictorial matter, who has prepared or disseminated such information or matter on behalf of others without notification from the division that the information or matter violates or is being used as a means to violate this part; (3) Credit terms of a transaction which may be otherwise subject to this part, except insofar as the Tennessee Equal Consumer Credit Act of 1974, compiled in part 8 of this chapter may be applicable; or (4) A retailer who has in good faith engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that such claims violated this part. (b) The burden of proving an exemption from this part, as provided in this section, shall be upon the person claiming the exemption. | |
13 | Ten. Code Ann. 47-18-112 Supplementary law. | The powers and remedies provided in this part shall be cumulative and supplementary to all other powers and remedies otherwise provided by law. The invocation of one power or remedy herein shall not be construed as excluding or prohibiting the use of any other available remedy. | |
14 | Ten. Code Ann. 47-18-113 Waiver of rights -- Restrictions on jurisdiction or venue prohibited. | (a) No provision of this part may be limited or waived by contract, agreement, or otherwise, notwithstanding any other law to the contrary; provided, that this part shall not alter, amend, or repeal the provisions of the Uniform Commercial Code relative to express or implied warranties or the exclusion or modification of such warranties. (b) Any provision in any agreement or stipulation, verbal or written, restricting jurisdiction or venue to a forum outside this state or requiring the application of the laws of another state with respect to any claim arising under or relating to the Tennessee Consumer Protection Act of 1977 and related acts set forth in this title is void as a matter of public policy. Further, no action of a consumer or other person can alter, amend, obstruct or abolish the right of the attorney general and reporter to proceed to protect the state of Tennessee and consumers or other persons within this state or from other states who are victims of illegal practices of persons located, wholly or in part, in Tennessee's borders. (c)(1) No other right or benefit conferred on consumers by any other provision of this code may be waived or otherwise varied except as provided for in this section. (2) Any waiver of a right or benefit described in this subsection (c) must be knowingly and intelligently made. (3) The competence of the consumer, the consumer's actual knowledge of the rights or benefits being waived, or lack thereof, the manner in which the right or benefit was pointed out to the consumer at the time of the consumer transaction, the nature of the deception or coercion practiced upon the consumer, the nature and extent of the legal advice received by the consumer, and the value of consideration received are relevant to the issue of whether the waiver was knowingly and intelligently made. (4) If the consumer was not specifically informed of the effect of the waiver and did not specifically waive such consumer's rights or benefits at the time of the consumer transaction, the party claiming waiver shall have the burden of establishing that the waiver was knowingly and intelligently made. | |
15 | Ten. Code Ann. 47-18-114 Powers of attorney general. | The attorney general and reporter, at the request of the division, may bring any appropriate action or proceeding in any court of competent jurisdiction pursuant to this part. | |
16 | Ten. Code Ann. 47-18-115 Construction. | This part, being deemed remedial legislation necessary for the protection of the consumers of the state of Tennessee and elsewhere, shall be construed to effectuate the purposes and intent. It is the intent of the general assembly that this part shall be interpreted and construed consistently with the interpretations given by the federal trade commission and the federal courts pursuant to § 5(A)(1) of the Federal Trade Commission Act, codified in 15 U.S.C. § 45(a)(1). | |
17 | Ten. Code Ann. 47-18-116 Costs. | No costs shall be taxed against the division in actions commenced under this part. | |
18 | Ten. Code Ann. 47-18-117 Out-of-state liquor advertisers -- Warning. | (a) Any publication of general circulation, at least twenty percent (20%) of the published copies of which are sold or distributed in the state of Tennessee, which publishes any advertisement by or on behalf of any person, firm or corporation selling or distributing alcoholic beverages at retail in a state other than Tennessee, shall publish a notice to consumers as a part of, or immediately adjacent to, each such advertisement. (b) The notice shall read as follows: WARNING: The importation or transportation of alcoholic beverages into the State of Tennessee by any person not possessing a permit from the Tennessee Alcoholic Beverage Commission is a CRIMINAL OFFENSE which could be punished by FINE or IMPRISONMENT or BOTH. (c) The notice shall be printed in a space equal to or greater than thirty percent (30%) of the total space devoted to each such advertisement in print no smaller than the largest print type employed in such advertisement. | |
19 | Ten. Code Ann. 47-18-118 Failure to respond to request for information. | Upon receipt of a written request from the division, failing to submit written answers concerning the basis upon which the approximate verifiable retail value was determined pursuant to the requirements of § 47-18-120(c)(1)(D) and (E), including supplying the division with copies of invoices, receipts, or other business records that would substantiate the disclosed retail value, shall be a violation of this part. | |
20 | Ten. Code Ann. 47-18-119 New passenger motor vehicle. | For the purposes of § 47-18-104(b)(6), any passenger motor vehicle which meets the requirements of the definition for a new passenger car in § 55-5-106(e)(5) shall be construed to be new. | |
21 | Ten. Code Ann. 47-18-120 Definitions -- Prizes offered as inducements -- Unfair or deceptive practices. | (a) As used in this section, unless the context otherwise requires: (1) “Accepts,” “accepted,” or “acceptance” means the positive indication by a consumer or person, in response to an offer, that such person agrees to incur a monetary obligation or otherwise begins performance of the terms of the offer; (2) “Initial offer” means the first contact with a consumer or person, whether verbally or in writing; (3) “Prize” means prize, gift, award, incentive promotion or any thing of value. “Prize” includes, but is not limited to, any thing of value offered in a sweepstakes, contest, drawing, incentive offer, premium promotion or similar promotional offer by whatever name the company uses; and (4) “Travel service” means travel-related or tourist-related services, whether for individuals or groups, through vacation or tour packages, or through lodging or travel certificates, vouchers or other devices. (b) This section applies to: (1) Any person engaged in trade or commerce, directly or indirectly, by any means, including, but not limited to, by mail, by telephone, by advertisement, or in person, who offers to a consumer or other person, or represents or leads a consumer or person to believe, that the consumer or person will or may receive any prize as an inducement to purchase a good, service or other product or otherwise incur a monetary obligation, visit a business, attend or listen to a sales presentation or otherwise contact a salesperson; or (2) Any person engaged in trade or commerce, directly or indirectly, by any means, who offers to sell travel services, at wholesale or retail, to a consumer or other person. (c) In addition to and without limiting the prohibitions contained in § 47-18-104, the following unfair or deceptive acts or practices are declared unlawful and in violation of this part: (1) In an initial offer, the offeror is in violation of this part if the offeror: (A) Fails to clearly and conspicuously state the name and street address of the person making the offer; (B) Represents or leads a person to believe that, when, in fact, the offer is simply a promotional plan designed to make contact with prospective buyers, the person: (i) Is or could be a winner, if those contacted have not won or are not eligible to win; or (ii) Has been “selected” or is otherwise part of a select or special group eligible to receive, claim, or otherwise obtain the prize or travel service, if that person has not been selected or is not part of a select or special group; (C) Represents that a person has won or could win a prize or travel service, has been selected or is eligible to win a prize or travel service or will receive a prize or travel service, if the receipt of the prize or travel service is conditioned upon listening to or observing a sales promotional effort, making a purchase, or incurring any monetary obligation, unless it is clearly and conspicuously disclosed, at the time of the initial offer of the prize or travel service, that an attempt will be made to induce the consumer or person to incur a monetary obligation, including the amount of that monetary obligation; (D) Fails to clearly and conspicuously disclose the approximate verifiable retail price of each prize or travel service or the price of any product offered for sale through the promotional program in a position immediately adjacent to the item when the initial offer is in writing. The approximate verifiable retail value is the price at which the person offering the item can substantiate that a substantial number of these items have been sold at retail by another person or, in the event such substantiation is unavailable, an amount equal to no more than three (3) times the amount actually paid by the sponsor or promoter for the item; (E) Fails to clearly and conspicuously disclose each item's approximate verifiable retail value as defined in subdivision (c)(1)(D), when the initial offer is verbal; (F) Fails to clearly and conspicuously disclose, immediately adjacent to each prize or travel service offered, a statement of the odds, if applicable, in arabic numerals, of receiving each item offered, when the initial offer is in writing. The offeror must also give the recipient a written statement, if applicable, that those offers are not exclusive to the recipient and must disclose to such recipient whether all prizes or travel services will be awarded; (G) Fails to clearly and conspicuously disclose a statement of odds, if applicable, in arabic numerals, of receiving each item offered if the initial offer is verbal. The offeror must make a verbal statement, if applicable, that those offers are not exclusive to the recipient and must disclose to such recipient whether all prizes or travel services will be awarded; (H) Fails to give a recipient a general description of the types and categories of restrictions, qualifications, or other conditions, that must be satisfied before the consumer or person is entitled to receive or use the prize or travel service, or product or service offered; (I) Fails to give a recipient an approximate total of all costs, fees or other monetary obligations that must be satisfied before the consumer or person is entitled to receive or use the prize or travel service, or product or service offered; or (J) Offers lottery winnings to a consumer in exchange for incurring a monetary obligation or making a purchase; (2) Either in an initial offer or, at a minimum, before an offer can be accepted, the offeror is in violation of this part if the offeror fails to clearly and conspicuously state verbally, or in writing, and upon request, in writing: (A) A general description of the types and categories of restrictions, qualifications, or other conditions, that must be satisfied before the consumer or person is entitled to receive or use the prize or travel service, or product or service offered, including: (i) Any deadline by which the recipient must visit the business, attend or listen to the sales presentation or otherwise respond in order to receive the prize or travel service, or product or service offered; (ii) The date or dates on or before which the prize or travel service, product or service offer will terminate or expire and, if applicable, when the prizes or travel services will be awarded; (iii) The approximate duration of any mandatory sales presentation or tour, if applicable; (iv) Any other conditions, such as minimum or maximum age qualifications, financial qualifications, or requirements that, if the recipient is married, both husband and wife must be present or respond in order to receive the prize or travel service, or product or service offered; and (v) All other material rules, terms or restrictions governing an offer that is an inducement to purchase a good, service or other product or to otherwise incur a monetary obligation; (B) The refund, exchange or return policies in regard to any offer that is an inducement to purchase a good, service or other product or otherwise incur a monetary obligation; and (C) The approximate total of costs, fees or other monetary obligations that must be satisfied before the consumer or person is entitled to receive or use the prize or travel service, or product or service offered, including, but not limited to, handling, shipping, delivery, freight, postage or processing fees, charges or other additional costs for the receipt or use of the prize or travel service, or product or service offered. This subdivision (c)(2)(C) shall not be construed to require that foreign tax rates be included; (3) The offeror is in violation of this part if at any time the offeror: (A) Misrepresents in any manner the rules, terms, restrictions, monetary obligations or conditions of participation in the promotional plan or offer; (B) Represents that the prize or travel service offered or any product offered for sale through the promotional plan possesses particular features or benefits if it does not, or is of a particular standard, quality, grade, or model, if it is of another; (C) Makes the receipt of an offered prize or travel service contingent upon the consent of individual winners or recipients to allow their names to be used for promotional purposes, or failing to obtain the express written or oral consent of individual winners or recipients before their names are used for a promotional purpose in connection with a mailing to a third person; (D) Refuses to disclose or make available, upon request, the names of the recipients of any prizes or travel services within the geographic area wherein the promotional offers were made; or (E) Fails to award and distribute the prize or travel service, or product or service offered in accordance with the rules, terms and conditions of the offer or promotional program as stated or disclosed in accordance with the above subdivisions; (4)(A) Either in an initial offer for a prize or travel service or, at a minimum, before an offer can be accepted, the offeror is in violation of this part if the offeror fails to clearly and conspicuously state verbally, or in writing, and upon request in writing, uses or makes a statement or representation in the main, primary or emphasized portion of the text of a solicitation, promotion, advertisement or other offering that is contradicted in a disclosure that is not easily read, readily noticeable or presented in small or fine print. (B) If a motor vehicle dealer is in compliance with the advertising regulations of the Tennessee motor vehicle commission, as such regulations exist on July 1, 2003, and as amended from time to time thereafter, subdivision (c)(4)(A) shall not apply to such dealer. (d) In addition to, and without limiting, the foregoing provisions: (1) It is unlawful to require the consumer or person to incur any monetary obligation, excluding nominal postage costs, in order to determine which, if any, prize or travel service the consumer or person is offered or will receive, or to continue to remain eligible to receive any prize or travel service; and (2) Acceptance of an offer is not valid and binding on the consumer unless all of the disclosures required in subsection (c) have been made. (e) Subdivisions (c)(1)(D), (E), and (I), and (c)(2)(B) and (C) do not apply in a promotion for books, records, videos or magazines when the person has the right to review the merchandise without obligation for at least seven (7) days and the right to return without charge any undamaged merchandise. (f) This section does not apply to: (1) Advertising and promotional plans of persons covered by the Tennessee Time-Share Act of 1981, compiled in title 66, chapter 32, part 1, and the Membership Camping Act, compiled in title 66, ch. 32, part 3; and (2) Retail promotions which offer savings on consumer goods or services, including “one-cent sales,” “two-for-the-price-of-one sales,” or a manufacturer's “cents-off” coupons, when the consumer accepts the offer on-site. The burden of proving these exemptions is upon the person claiming the exemption. (g) Notwithstanding any other law, a violation of this section constitutes an unfair deceptive act or practice, and without limiting the scope of § 47-18-104 shall be punishable by a civil penalty of a minimum of one thousand dollars ($1,000) to a maximum of ten (10) times the amount collected or requested by the offeror for each violation. | |
22 | Ten. Code Ann. 47-18-122 47-18-122. | (a) Any motor vehicle dealer not currently licensed as a motor vehicle dealer by the state of Tennessee, or any advertising cooperative composed of such unlicensed motor vehicle dealers, shall comply with all advertising requirements of title 55, chapter 17, including any regulations promulgated under that chapter. An unlicensed motor vehicle dealer shall be responsible for any advertising copy bearing its name. (b) A violation of this section constitutes a violation of the Consumer Protection Act of 1977, compiled in this chapter. | |
23 | Ten. Code Ann. 47-18-122 Applicability to violations of part 2. | For the purpose of application of this part, any violation of part 2 of this chapter shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by this part. | |
24 | Ten. Code Ann. 47-18-123 Products, services or memberships purchased by negotiation of unsolicited negotiable instruments. | (a) Any person who purchases, subscribes to or receives products, services or membership in any organization by negotiating an unsolicited negotiable instrument shall have thirty (30) days from the date of the first statement or bill for such services, products, membership or subscription to: (1) Cancel the services if services have not been rendered; (2) Return the products if products are unused and in the condition received; (3) Cancel the subscription; or (4) Cancel the membership if services have not been rendered pursuant to such membership. (b) Subsection (a) does not apply to the execution of an unsolicited negotiable instrument that creates a loan or line of credit through a credit or lending institution with which the person has an existing relationship. (c) For purposes of this section, “unsolicited negotiable instrument” means an unconditional order or promise to pay a specific amount of money, signed by the maker or drawer, payable on demand or at a specific time, payable to order or to the bearer which was received by the bearer without prior notice from the maker or drawer. (d) A violation of this section constitutes a violation of this part. For purposes of applying this part to this section, a violation of this section shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce, subject to the penalties and remedies provided in this part. | |
25 | Ten. Code Ann. 47-18-124 Prizes -- Unfair or deceptive practices. | (a) As used in this section, unless the context otherwise requires: (1) “Prize” means a gift, award, incentive promotion, or other item or service of value. “Prize” includes, but is not limited to, anything of value that is offered or awarded to a participant in a real or purported contest, competition, sweepstakes, puzzle, drawing, incentive offer, premium promotion or similar promotional offer by whatever name the company uses, scheme, plan, or other selection process; (2) “Retail value” of a prize includes: (A) A price at which the sponsor can substantiate that a substantial number of the goods or services which constitute the prizes have been sold to the public in Tennessee in the preceding year; or (B) If the sponsor is unable to satisfy the requirement in subdivision (a)(2)(A), then no more than one and one-half (1.5) times the amount the sponsor paid for the prize in a bona fide purchase from an unaffiliated seller; and (3) “Sponsor” includes a corporation, partnership, limited liability company, sole proprietorship, or natural person, that requires a person in Tennessee to pay the sponsor money as a condition of awarding the person a prize, or as a condition of allowing the person to receive, use, compete for, or obtain information about a prize, or that creates the reasonable impression that such a payment is required. (b) No sponsor shall require a person in Tennessee to pay the sponsor money as a condition of awarding the person a prize, or as a condition of allowing the person to receive, use, compete for, or obtain information about a prize, nor shall a sponsor use any solicitation that creates the reasonable impression that a payment is required, unless the person has first received a written prize notice containing the information required in subsections (c) and (d). (c) A written prize notice must contain each of the following: (1) The true name or names of the sponsor and the address of the sponsor's actual principal place of business; (2) The retail value of each prize the person receiving the notice has been selected to receive or may be eligible to receive; (3) A statement of the person's odds of receiving each prize identified in the notice; (4) Any requirement that the person pay shipping or handling fees or any other charges to obtain or use a prize, including the nature and amount of the charges; (5) If receipt of the prize is subject to a restriction, a statement that a restriction applies, and a description of the restriction; (6) Any limitations on eligibility; and (7) If a sponsor represents that the person is a “winner,” is a “finalist,” has been “specially selected,” is in “first place,” or is otherwise among a limited group of persons with an enhanced likelihood of receiving a prize, the written prize notice must contain a statement of the maximum number of persons in the group or purported group with this enhanced likelihood of receiving a prize. (d) The information required by subsection (c) must be presented in the following form: (1) The retail value and the statement of odds required under subdivisions (c)(2) and (3) must be stated in immediate proximity to each identification of a prize on the written notice, and must be in the same size and boldness of type as the reference to the prize; (2) The statement of odds must include for each prize, the total number of prizes to be given away and the total number of written prize notices to be distributed. The number of prizes and written prize notices must be stated in Arabic numerals. The statement of odds must be in the following form: “___ (number of prizes) out of ___ notices distributed”. (3) A statement required under subdivision (c)(7) must appear in immediate proximity to each representation that the person is among a group of persons with an enhanced likelihood of receiving a prize, and must be in the same size and boldness of type as the representation. (e) A sponsor who represents to a person that the person has been awarded a prize shall, not later than thirty (30) days after making the representation, provide the person with the prize, or with a voucher, certificate, or other document giving the person the unconditional right to receive the prize, or shall provide the person with either of the following items selected by the person: (1) Any other prize listed in the written prize notice that is available and that is of equal or greater value; or (2) The retail value of the prize, as stated in the written notice, in the form of cash, a money order, or a certified check. (f) Nothing in this section creates liability for acts by the publisher, owner, agent, or employee of a newspaper, periodical, radio station, advertising medium arising out of the publication or dissemination of a solicitation, notice, or promotion governed by this section, unless the publisher, owner, agent, or employee had knowledge that the solicitation, notice, or promotion violated the requirements of this section, or had financial interest in the solicitation, notice, or promotion governed by this section. (g) This section does not apply to: (1) Advertising and promotional plans of persons covered by the Tennessee Time-Share Act of 1981, compiled in title 66, chapter 32, part 1, or the Membership Camping Act, compiled in title 66, chapter 32, part 3; (2)(A) Retail promotions which offer savings on consumer goods or services, including “one-cent sales,” “two-for-the-price-of-one sales,” or a manufacturer's “cents-off” coupons, when the consumer accepts the offer on-site. (B) The burden of proving these exemptions is upon the person claiming the exemption; and (3) This section does not apply to solicitations or representations in connection with the sale or purchase of books, recordings, videocassettes, periodicals, and similar goods through a membership group or club which is regulated by the federal trade commission or to contractual plans or arrangements such as continuity plans, subscription arrangements, standing order arrangements, supplements, single sales, and series arrangements, under which the seller periodically ships merchandise to a consumer who has consented in advance to receive the merchandise on a periodic basis. (h) Notwithstanding any other law, a violation of this section constitutes an unfair deceptive act or practice and, without limiting the scope of § 47-18-104, shall be punishable by a civil penalty of a minimum of one thousand dollars ($1,000) to a maximum of ten (10) times the amount collected or requested by the offeror for each violation. | |
26 | Ten. Code Ann. 47-18-125 Protection of elder persons; cumulative, additional and supplemental penalties. | (a) Any person who knowingly uses, or has knowingly used, a method, act or practice which targets elderly persons and is in violation of this part is liable to the state for a civil penalty of not more than ten thousand dollars ($10,000) for each violation. Each violation may include but is not limited to, each elder person solicited, each advertisement that was distributed, each misrepresentation or deceptive statement that appeared on a solicitation, each time that an advertisement appeared on television or on radio, each contact, i.e., telephone call, direct mail solicitation or in person solicitation with an elder person to promote or solicit using unfair, misleading or deceptive acts or practices. (b) In addition, when determining the amount of the civil penalty to be imposed pursuant to this part, the court may consider: (1) The good or bad faith of the violator as it relates to the violations; (2) The injury to the public; (3) The violator's ability to pay; (4) The public's interest in eliminating the benefits derived by the violator from the violations; and (5) The necessity of vindicating the authority of the state and the strong need to defer future violations. (c) The civil penalties recoverable by the state under this part are supplemental and cumulative to any other available civil penalties and relief available under other laws, regulations and rules, including, but not limited to, those available pursuant to § 47-18-108. (d) As used in this section, unless the context otherwise requires: (1) “Elder person” means any person who is sixty (60) years of age or older. The elder person need not be a citizen of Tennessee if the company or individual is operating from Tennessee or the court otherwise has jurisdiction over the company or individual for engaging in an unfair, misleading or deceptive act or practice from Tennessee. (2) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, compiled in this part and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this definition, related statutes include, but are not limited to: § 47-18-120; part 3 of this chapter; part 5 of this chapter; Home Solicitations Sales Act of 1974, compiled in part 7 of this chapter; Tennessee Credit Services Businesses Act, compiled in part 10 of this chapter; Consumer Telemarketing Protection Act of 1990, compiled in part 15 of this chapter; Unsolicited Telefacsimile Advertising Act; Tennessee Employment Agency Act, compiled in part 17 of this chapter; and Membership Camping Act, compiled in title 66, chapter 32, part 3. | |
27 | Ten. Code Ann. 47-18-126 Electronically printed receipts for credit and debit cards -- Violations -- Application. | (a) Except as otherwise provided in subsection (b), no person that accepts credit cards or debit cards for the transaction of business shall print or cause to be printed more than five (5) digits of the card number or the expiration date upon either the receipt retained by the merchant or the receipt provided to the cardholder at the point of the sale or transaction. (b) This section shall apply only to receipts that are electronically printed, and shall not apply to transactions in which the sole means of recording a credit card or debit card account number is by handwriting or by an imprint or copy of the card. (c) A violation of this section is an unfair and deceptive trade practice and punished as provided in this part. (d)(1) Effective May 13, 2005, this section shall apply to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that was first put into use on or after January 1, 2005. (2) Effective January 1, 2007, this section shall apply to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that was in use prior to January 1, 2005. | |
28 | Ten. Code Ann. 47-18-127 Gift certificates. | (a) Subject to subsection (d), no person or entity shall sell a gift certificate to a purchaser containing an expiration date that is less than two (2) years after the date the gift certificate is issued or shall charge a fee for the issuance of a gift certificate. (b) No person or entity, within two (2) years after a gift certificate is issued, shall charge service charges or fees relative to the gift certificate, including dormancy fees, latency fees, or administrative fees that have the effect of reducing the total amount for which the holder of the gift certificate may redeem the gift certificate. (c) A gift certificate or prepaid card, as defined in subsection (e), sold without an expiration date is valid until redeemed or replaced with a new gift certificate or prepaid card. (d) Subsections (a) and (b) shall not apply to a gift certificate that is: (1) Distributed by the issuer to a consumer pursuant to an awards, loyalty, or promotional program without any money or anything of value being given in exchange for the gift certificate by the consumer; (2) Sold below face value at a volume discount to employers or given or sold below face value to nonprofit or charitable organizations for fundraising purposes; (3) Sold by a nonprofit or charitable organization for fundraising purposes; (4) Given to an employee by an employer, if use of the gift certificate is limited to the employer's business establishment, which may include a group of merchants that are affiliated with the business establishment; or (5) Issued by an employer to an employee in recognition of services performed by the employee. (e) A gift certificate does not include a prepaid calling card used to make telephone calls or a prepaid card usable at multiple, unaffiliated merchants or at automated teller machines, or both. | |
29 | Ten. Code Ann. 47-18-128 Disclosure of holds on debit cards. | (a) Any person providing goods or services who initiates a preauthorized debit card transaction that is more than twenty-five percent (25%) of the actual transaction amount, or fifty dollars ($50.00), whichever is greater, shall disclose at the time and point of sale that a hold will be placed on the customer's debit card account. The person initiating the hold shall disclose the dollar amount of the hold, if the amount is known. If the hold is initiated at an unmanned remote terminal, service device, or gas pump, the disclosure shall be made in conspicuous type at a location proximate to the point of payment. If the hold initiated is subject to a contractual agreement, order of the purchaser, or other written document, the notice shall be placed in conspicuous type in a segregated box on the front of the document. (b) A violation of this section constitutes an unfair and deceptive act or practice. | |
30 | Ten. Code Ann. 47-18-129 Sale or gift of certain novelty lighters prohibited. | (a) No supplier of novelty cigarette lighters in this state, including a manufacturer, distributor, importer, retailer or anyone giving away lighters as prizes or promotions, shall sell or give away an operable novelty lighter. This prohibition does not apply to the transportation of novelty lighters through this state or the storage of novelty lighters in a warehouse or distribution center in this state that is closed to the public for purposes of retail sales. (b) This section shall not apply to cigarette lighters that were made before January 1, 1980, or that are considered to be collectable items. (c) “Novelty lighter” means a mechanical or electrical device typically used for lighting cigarettes, cigars, or pipes that has entertaining audio or visual effects, or that resembles, in physical form or function, articles commonly recognized as appealing to or intended for use by children ten (10) years of age or younger. This includes, but is not limited to, lighters that resemble cartoon characters, toys, guns, watches, musical instruments, vehicles, toy animals, food or beverages, or that play musical notes or have flashing lights or other entertaining features. A novelty lighter may operate on any fuel, including butane or liquid fuel. (d) Any violation of this section is a prohibited practice under § 47-18-104. (e) The commissioner of commerce and insurance is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. | |
31 | Ten. Code Ann. 47-18-130 Expired | Acts 2009, ch. 591, § 2 expired under Acts 2009, ch. 591, § 3(b), effective June 30, 2014. | |
32 | Ten. Code Ann. 47-18-201 Part definitions. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
33 | Ten. Code Ann. 47-18-202 Registration of operators -- Bond -- Fee -- Exemptions. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
34 | Ten. Code Ann. 47-18-203 Cancellations -- Refunds. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
35 | Ten. Code Ann. 47-18-204 Denial, suspension, revocation of registration -- Rules and regulations. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
36 | Ten. Code Ann. 47-18-205 Exceptions. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
37 | Ten. Code Ann. 47-18-206 Penalty. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
38 | Ten. Code Ann. 47-18-207 Notice of incomplete forms -- Missing certificate or registration numbers. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
39 | Ten. Code Ann. 47-18-208 Transfer of registration to division of regulatory boards. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
40 | Ten. Code Ann. 47-18-209 Violations subject to Tennessee Consumer Protection Act of 1977. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
41 | Ten. Code Ann. 47-18-210 Cease and desist orders -- Hearing. | Repealed by 2018 Pub.Acts, c. 834, § 1, eff. April 27, 2018 | |
42 | Ten. Code Ann. 47-18-301 Part Definitions. | As used in this part, unless the context otherwise requires:
(1) "Buyer" means a purchaser under a health club agreement; (2) "Commissioner" means the commissioner of commerce and insurance; (3) [Deleted by 2015 amendment.] (4) (A) "Health club" means any enterprise, however styled, which offers on a regular, full-time basis, and pursuant to a health club agreement, services or facilities for the development or preservation of physical fitness through exercise, weight control or athletics; (B) "Health club" does not include the following: (i) Any organization primarily operated for the purpose of teaching a particular form of martial arts such as judo or karate; (ii) Weight loss or control services which do not provide physical exercise services, facilities, or equipment; or (iii) Any nonprofit health club that is exempt from taxation under § 67-6-330(a)(17), or any nonprofit health club operated as part of a licensed nonprofit hospital exempt from taxation under § 67-5-212; (5) (A) "Health club agreement" means an agreement whereby a buyer purchases, or is obligated to purchase, any right to use health club facilities or services; and such services or facilities are for personal, family, employee, or household use; and (B) "Health club agreement" does not include the following: (i) Any agreement for personal training services; or (ii) Any agreement for tangible products sold by the health club. (6) "Operator" means any person, firm, corporation, or business entity which operates a health club. | |
43 | Ten. Code Ann. 47-18-302 Certificate of registration. | Repealed by 2016 Pub.Acts, c. 858, § 3, eff. July 1, 2016 | |
44 | Ten. Code Ann. 47-18-303 Unenforceable health club agreements. | A health club agreement shall be unenforceable against the buyer, and the buyer shall be entitled to a refund less that portion of the total price which represents actual use of the facilities and less the cost of goods and services consumed by the buyer if: (1) The buyer entered into the agreement in reliance upon any false, deceptive, or misleading information, representation, notice, or advertisement; (2) The health club fails to obtain or fails to maintain a certificate of registration as required by this part; or (3) The agreement fails to conform with this part. | |
45 | Ten. Code Ann. 47-18-304 Administration of registration transferred to division of regulatory boards. | Repealed by 2016 Pub.Acts, c. 858, § 4, eff. July 1, 2016. | |
46 | Ten. Code Ann. 47-18-305 Requirements for valid agreements. | (a) All health club agreements shall:
(1) Be in writing; (2) Be signed by the buyer; (3) Designate the date on which the buyer actually signed the agreement; and (4) Contain in boldface type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the buyer, the following statement: BUYER'S RIGHT TO CANCEL YOU (THE BUYER) MAY CANCEL THIS AGREEMENT BY SENDING NOTICE OF YOUR WISH TO CANCEL TO THE HEALTH CLUB BEFORE MIDNIGHT OF THE THIRD DAY (EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS) OR, IF THE AGREEMENT IS SUBJECT TO A FINANCE CHARGE, THE SEVENTH DAY AFTER THE DAY YOU SIGNED THE AGREEMENT. THIS NOTICE MUST BE SENT BY REGISTERED MAIL TO THE FOLLOWING ADDRESS: ___________________ ___________________ ___________________ WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THE NOTICE OF CANCELLATION, THE HEALTH CLUB WILL RETURN ANY PAYMENTS MADE AND ANY NOTE EXECUTED BY YOU IN CONNECTION WITH THE AGREEMENT. (5) (A) Contain in boldface type of at least ten (10) points, the following statement: SHOULD YOU (THE BUYER) CHOOSE TO PAY THIS AGREEMENT IN FULL, BE AWARE THAT YOU ARE PAYING FOR FUTURE SERVICES AND MAY BE RISKING LOSS OF YOUR MONEY IN THE EVENT THIS HEALTH CLUB CEASES TO CONDUCT BUSINESS. (B) Contain in boldface type, the following statements in separated paragraphs: (i) IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW, IN THE EVENT THIS HEALTH CLUB CEASES OPERATION AND FAILS TO OFFER YOU (THE BUYER) AN ALTERNATE LOCATION WITHIN FIFTEEN (15) MILES, WITH NO ADDITIONAL COST TO YOU, THEN NO FURTHER PAYMENTS SHALL BE DUE TO ANYONE, INCLUDING ANY PURCHASER OF ANY NOTE ASSOCIATED WITH OR CONTAINED IN THIS CONTRACT. (ii) STATE LAW REQUIRES THAT HEALTH CLUB AGREEMENTS BE PAYABLE ONLY IN THE FOLLOWING MANNER, AND ANY HEALTH CLUB WHICH ENTERS INTO HEALTH CLUB AGREEMENTS SHALL OFFER BOTH PAYMENT OPTIONS AT THE SAME PRICE, EXCLUDING INTEREST OR FINANCE CHARGES OR OTHER EQUIVALENT CHARGES WHICH SHALL NOT EXCEED EIGHTEEN PERCENT (18%) OF THE TOTAL CONTRACT PRICE: (a) Full payment within ninety (90) days after entering into the health club agreement; or (b) Equal monthly installments with any down payment (unless exempt as provided by law) limited to thirty percent (30%) of the total cost of the agreement. Prepayment is allowed at any time with full refund of unearned finance charges. (iii) THIS CONTRACT DOES NOT CONTAIN ANY PAYMENTS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ENROLLMENT FEES, MEMBERSHIP FEES, OR ANY OTHER DIRECT PAYMENTS TO THE HEALTH CLUB, OTHER THAN FULL PAYMENT FOR THE HEALTH CLUB AGREEMENT OR MONTHLY INSTALLMENT PAYMENTS WITH ANY DOWN PAYMENT (UNLESS EXEMPT AS PROVIDED BY LAW) LIMITED TO THIRTY PERCENT (30%) OF THE TOTAL COST OF THE AGREEMENT, AND, IN THE CASE OF INSTALLMENT PAYMENTS WHICH ARE NOT MADE BY ELECTRONIC FUND TRANSFER OR CASH, AN ADMINISTRATIVE CHARGE, NOT TO EXCEED FIVE DOLLARS ($5.00) FOR EACH BILLING PERIOD. (iv) THERE ARE NO AUTOMATIC OR LIFETIME RENEWALS OF THE TERM INCIDENT TO THE TERM OF THIS CONTRACT. IF THE HEALTH CLUB PROVIDES FOR A RENEWAL OPTION, SUCH OPTION MUST BE AFFIRMATIVELY AGREED TO IN WRITING BY THE BUYER AT THE BEGINNING OF THE RENEWAL PERIOD. IF THE HEALTH CLUB FACILITY IS LESS THAN OR EQUAL TO TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR SEVENTY-FIVE DOLLARS ($75), WHICHEVER IS GREATER. HOWEVER, IF THE HEALTH CLUB FACILITY IS GREATER THAN TEN THOUSAND (10,000) SQUARE FEET (GROSS) OF BUILDING SPACE, THEN THE ANNUAL COST OF SUCH RENEWAL SHALL NOT BE LESS THAN THIRTY PERCENT (30%) OF THE ANNUALIZED COST OF THE BASE MEMBERSHIP CONTRACT OR ONE HUNDRED TWENTY-FIVE DOLLARS ($125), WHICHEVER IS GREATER. PAYMENT OF ANY RENEWAL SHALL BE MADE AS REQUIRED BY TENNESSEE CODE ANNOTATED, SECTION 47-18-305(a)(5)(B)(ii). (v) A CONTRACT OR AGREEMENT MAY HAVE A CONTINUING PROVISION OR STIPULATION THAT PROVIDES FOR A MONTH TO MONTH CONTINUATION OF THE INITIAL TERM OF THE AGREEMENT PROVIDED THE BUYER HAS THE RIGHT TO CANCEL THE CONTINUING PORTION OF THE AGREEMENT AFTER FULFILLING THE ORIGINAL TERM OF THE AGREEMENT BY TENDERING THIRTY (30) DAYS WRITTEN NOTICE OF SUCH INTENT TO THE OPERATOR BY REGISTERED MAIL. IF SUCH CONTRACTUAL OBLIGATION HAS A CONTINUING PROVISION OR STIPULATION, NOTIFICATION MUST BE SENT BY THE HEALTH CLUB OPERATOR TO CONFIRM THAT THE ORIGINAL OBLIGATION WAS FULFILLED AND TO REAFFIRM THE MONTH TO MONTH OR CONTINUING PROVISION OR STIPULATION. SUCH NOTIFICATION SHALL ALSO INCLUDE NOTICE OF THE BUYER'S RIGHT TO CANCEL THE CONTINUING MONTH-TO-MONTH OBLIGATION UPON THIRTY (30) DAYS' WRITTEN NOTICE SENT BY THE BUYER TO THE OPERATOR BY REGISTERED MAIL. (vi) ANY RENEWAL RIGHT GRANTED UNDER THIS CONTRACT SHALL EXPIRE ON THE FINAL DAY OF THE AGREEMENT. HOWEVER, THE BUYER SHALL HAVE A THIRTY (30) DAY GRACE PERIOD FROM THE DATE OF THE EXPIRATION OF THE RENEWAL RIGHT IN WHICH TO EXERCISE ANY RENEWAL RIGHT GRANTED TO THE BUYER UNDER THIS CONTRACT. THE OPERATOR SHALL HAVE THE RIGHT TO CHARGE A LATE PENALTY OF UP TO $25 IF THE RENEWAL RIGHTS ARE NOT EXERCISED ON OR BEFORE THE EXPIRATION DATE AS STIPULATED IN THE AGREEMENT OR ANY FUTURE RENEWAL PERIODS. (b) (1) A health club shall not enter into or offer to enter into a health club agreement unless the health club is fully operational and available to use by prospective buyers. The commissioner shall, upon application by a health club operator, certify that a health club facility is fully operational if all of the promised equipment and services are available for use by prospective buyers. No payment or promise to pay by a prospective buyer may be accepted by any health club operator unless and until the health club facility has been certified by the commissioner to be fully operational as described in this part. (2) (A) This subsection (b) shall not apply to any health club that has maintained a satisfactory registration with the commissioner for five (5) consecutive years; provided, that those health clubs notify the commissioner by certified mail of their intent to enter into agreements for a location not fully operational as otherwise required by this subsection (b). (B) A health club's maintenance of satisfactory registration with the consumer affairs division of the department of commerce and insurance prior to July 1, 2015, shall satisfy the requirement for maintenance of satisfactory registration with the commissioner in subdivision (b)(2)(A), if: (i) The health club maintained satisfactory registration with the division for five (5) consecutive years prior to July 1, 2015; or (ii) The health club maintained satisfactory registration with the division for a period of time that was less than five (5) years immediately preceding a period of time that the health club maintained satisfactory registration with the commissioner, which, when both periods of time are added together, total five (5) consecutive years. (C) In order to be eligible to use this exemption, an operator shall use the same identification as described in any existing facility registration information as well as use the same federal and state tax accounts for payments of any related taxes due to this extension of operations. (c) It is unlawful for a health club to offer any cash or discounted pre-payment option that exceeds a reduction of the cash value of the highest stated price for any similar period or service-type of agreement: (1) By an excess of ten percent (10%) for any term less than two (2) years duration; (2) By an excess of fourteen percent (14%) for any term of two (2) years duration, but less than three (3) years duration; or (3) By an excess of eighteen percent (18%) for any term of three (3) years duration. (d) It shall be unlawful for a health club to offer free or no cost periods of enrollment in addition to the initial paid term of the agreement in order to circumvent the discounting provision of subsection (c). (e) (1) Notwithstanding this part or any rules promulgated pursuant to this part to the contrary, a health club may enter into or offer to enter into a health club agreement with, or accept payment or a promise of payment from, a prospective buyer prior to certification by the commissioner of its facility as fully operational as set forth in subsection (b); provided, that the health club has: (A) Acquired a property right or interest in this state with respect to the facility; (B) Filed a registration application with the commissioner as required by § 47-18-309; and (C) Purchased from a surety company authorized to do business in this state a surety bond in favor of the state of Tennessee in the amount of twenty-five thousand dollars ($25,000). (2) (A) If the commissioner determines, based on the financial statement required by § 47-18-309(a)(3), that the financial condition of the health club is insufficient to protect prospective buyers, then the commissioner may require that the health club post a surety bond in an amount greater than twenty-five thousand dollars ($25,000), but not to exceed two hundred thousand dollars ($200,000). The health club shall file a copy of the bond with the commissioner. (B) A buyer who suffers loss of payments made to a health club prior to certification due to the health club's failure to open the facility may recover the amount of the payments from the surety; provided, that the liability of the surety may not exceed the aggregate amount of the bond regardless of the number or amount of claims filed with the surety. (C) Upon certification by the commissioner that the health club is fully operational, the health club may cancel the surety bond upon thirty (30) days written notice of cancellation from the surety to the commissioner. | |
47 | Ten. Code Ann. 47-18-306 Duration of agreements. | (a) Unless the buyer is granted a right to cancel the health club agreement as provided in subsection (b), no buyer shall be bound by any health club agreement with a stated initial term greater than thirty-six (36) months. (b)(1) A health club agreement may include a provision or stipulation that provides for a month-to-month continuation of the agreement, either as an initial agreement between the operator and the buyer or as an extension of an agreement beyond a stated term or duration; provided, that the buyer has the right to cancel the continuing portion of the agreement by providing the health club operator thirty (30) days written notice by registered mail of the buyer's intent to cancel the agreement. (2) A buyer shall have until midnight of the seventh business day after the date on which the first service under the health club agreement is available to cancel if the health club agreement is subject to a finance charge. “Business day” for the purposes of this subdivision (b)(2) means any day the health club is open unless the seventh day is a day the health club is not open for business to the buyer; provided, however, that if the health club is closed on the seventh day, the buyer shall have until midnight of the next day the health club is open to cancel the health club agreement. Cancellation is evidenced by the buyer giving written notice of cancellation to the health club at the address of any facility available for use by the buyer under the health club agreement. The buyer shall deliver the notice by personal delivery or by certified mail delivery, return receipt requested. Personal delivery is effective when delivered to the health club or to the health club's address, whichever comes first. Notice of cancellation by certified mail delivery shall be effective upon the date of post marking. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the buyer not to be bound by the contract. | |
48 | Ten. Code Ann. 47-18-307 Provisions contrary to public policy. | Any provision in a health club agreement, or in any document signed by the buyer in connection with such agreement, whereby the buyer agrees to waive any requirement of this part, shall be void as contrary to public policy. | |
49 | Ten. Code Ann. 47-18-308 Applicability of provisions. | Chapter 460 of the Public Acts of 1989 does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before January 1, 1990. | |
50 | Ten. Code Ann. 47-18-309 Certificate of registration -- Application -- Issuance. | Repealed by 2016 Pub.Acts, c. 858, § 7, eff. July 1, 2016. | |
51 | Ten. Code Ann. 47-18-310 Certificate of registration -- Duration -- Renewal. | Repealed by 2016 Pub.Acts, c. 858, § 8, eff. July 1, 2016 | |
52 | Ten. Code Ann. 47-18-311 Certificate of registration -- Non-Transferability -- Change of ownership. | Repealed by 2016 Pub.Acts, c. 858, § 9, eff. July 1, 2016. | |
53 | Ten. Code Ann. 47-18-312 Violations. | In addition to any other penalty provided by this part, the following, upon conviction, constitutes a Class A misdemeanor: (1) The violation of any provision of this part; (2) Obtaining or attempting to obtain a certificate of registration or a certificate of exemption through material misrepresentation or fraud; (3) Obtaining an ownership interest in a health club or its assets when such health club is in violation of any provision of this part; or (4) The willful failure to display conspicuously a proper certificate of registration or certificate of exemption. | |
54 | Ten. Code Ann. 47-18-313 Responsibility for compliance -- Change in ownership -- Notice. | (a) Any individual, firm, corporation, association, or other legal entity which obtains an ownership interest in a health club or its assets shall be responsible for determining that such health club is in compliance with this part.
(b) A health club shall provide written notice to the commissioner by registered or certified mail within ten (10) days after any change in ownership or the sale of a health club or any of its locations. (c) A health club shall provide written notice to the commissioner within ten (10) days after the health club or any of its locations ceases to conduct business. | |
55 | Ten. Code Ann. 47-18-314 Certificates of exemption. | (a) It is unlawful to accept a down payment for a health club agreement in excess of thirty percent (30%) of the total cost of the agreement without a valid certificate of exemption.
(b) Each holder of a certificate of exemption shall display the certificate in a conspicuous place at each location where health club services or facilities are provided. (c) Certificates of exemption shall be valid for one (1) year from the date of issuance. (d) Application for renewal of a certificate of exemption shall be submitted before the expiration date on forms furnished by the commissioner, and shall contain a sworn certification by the holder that the requirements for exemption continue to be met, and that the holder is in full compliance with this part. (e) In the event a holder of a certificate of exemption ceases to meet the requirements for exemption, then the certificate of exemption shall be invalid. (f) Within ten (10) days after any change in the information contained in the original application or the application for renewal, each holder of a certificate of exemption shall notify the commissioner of the change by registered or certified mail. (g) An application for exemption shall be submitted on forms furnished by the commissioner and shall be accompanied by: (1) A nonrefundable application fee in an amount as set by the commissioner; provided, however, that if no amount has been set by rule, then the fee shall be fifty dollars ($50.00); and (2) A current personal or corporate financial statement prepared by a public accountant who holds a valid permit to practice in this state. (h) A certificate of exemption shall be granted; provided, that the application provides proof satisfactory to the commissioner that the following criteria are met: (1) The applicant has a net worth in excess of two hundred fifty thousand dollars ($250,000) per location where health club services or facilities are provided; and (2) The applicant has operated under substantially the same ownership and control for at least five (5) years. (i) For the purpose of calculating net worth as provided in subsection (h), the following are excluded: (1) Assets which represent prepayment for future services; and (2) Accounts receivable due from health club members for future services. (j) Any health club which had applied for and obtained an exemption from the bond requirement under prior law shall be exempt from the provisions of this part that prohibit acceptance of a down payment for a health club agreement in an amount in excess of thirty percent (30%) of the total cost of the agreement. The exemption established by this subsection (j) shall be valid only as long as the health club operates under the same or substantially the same ownership and control that existed when the exemption was granted under prior law. | |
56 | Ten. Code Ann. 47-18-315 Suspension, revocation, and nonrenewal of registration. | Repealed by 2016 Pub.Acts, c. 858, § 13, eff. July 1, 2016. | |
57 | Ten. Code Ann. 47-18-316 Promulgation of rules. | Repealed by 2016 Pub.Acts, c. 858, § 14, eff. July 1, 2016. | |
58 | Ten. Code Ann. 47-18-317 Violations. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. (b) For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act. | |
59 | Ten. Code Ann. 47-18-318 Surety bond -- Applicability -- Filing of audited financial statement. | (a) (1) In order to provide a degree of protection to members of health clubs, each health club shall post a bond in an amount as determined by the commissioner for each location conducting business in this state. The bond shall be made with a bond issued by a corporate surety acceptable to the commissioner.
(2) If the commissioner has not promulgated a rule setting the required level of bonding, then the bond shall be in the amount of twenty-five thousand dollars ($25,000) for each location doing business in this state. (b) The bond shall be maintained for two (2) years following the date on which the health club location ceases to conduct business in this state. (c) In an action brought by the attorney general and reporter pursuant to part 1 of this chapter, the attorney general and reporter shall have the right to request that the total amount of the bond posted by the health club be awarded to the state for consumer restitution. Any person who has entered a health club agreement that is not fulfilled by the operator may make a claim against the bond. (d) This section shall not apply to any health club or health club operator that has, for at least seven (7) consecutive years, operated under substantially the same ownership and control and maintained a satisfactory registration with the department of commerce and insurance. (e) (1) In lieu of the surety bond required in this section, a health club may file with the department of commerce and insurance a current audited financial statement prepared by a certified public accountant licensed in this state that demonstrates to the department that either the health club or the health club operator has a financial net worth of at least ten million dollars ($10,000,000) available to satisfy any claims imposed by the department. (2) Any health club that files an audited financial statement in lieu of posting the surety bond required by this section shall annually file an updated audited financial statement that complies with subdivision (e)(1). Within thirty (30) calendar days of receiving information that would render the health club ineligible for exemption from the surety bond requirement under this subsection (e), the health club or the health club operator shall notify the department of commerce and insurance of the change in the health club's financial status and post the required surety bond with the department. | |
60 | Ten. Code Ann. 47-18-319 Cease and desist orders. | Repealed by 2016 Pub.Acts, c. 858, § 16, eff. July 1, 2016. | |
61 | Ten. Code Ann. 47-18-320. Transferred to § 47-18-317 by the Code Commission in 2013. | ||
62 | Ten. Code Ann. 47-18-321 Transferred to § 47-18-318 by the Code Commission in 2013. | ||
63 | Ten. Code Ann. 47-18-322. Transferred to § 47-18-319 by the Code Commission in 2013. | ||
64 | Ten. Code Ann. 47-18-501 Part definitions. | As used in this part, unless the context otherwise requires: (1) “Business day” means any day other than a Saturday, Sunday, or legal holiday; (2) “Buyer” or “member” means any status by which any natural person is entitled to any of the benefits of a discount buying organization; (3) “Buying service,” “buying club,” or “club” means any person, corporation, partnership, unincorporated association, or other business enterprise operating for profit within the state of Tennessee, the primary purpose of which is to provide benefits to members from the cooperative purchase of services or merchandise; (4) “Contract” means any oral or written agreement by which one becomes a member of a club; (5) “Division” means the consumer affairs division of the department of commerce and insurance; and (6) “Prepayment” means any payment greater than fifty dollars ($50.00) for service, merchandise, or membership made before the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract. | |
65 | Ten. Code Ann. 47-18-502 Cancellation of membership. | (a) Any person who has elected to become a member of a club may cancel such membership by giving written notice any time before twelve o'clock (12:00) midnight of the third business day following the date on which membership was attained, subject to § 47-18-503. Such cancellation shall be without liability on the part of the member and shall entitle the member to a refund of the entire consideration paid for the contract. (b) Notice of cancellation must be in writing and delivered personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed and postage paid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the member not to be bound by the contract. If delivered personally, the notice is to be accepted by any agent or employee of the club, and a receipt for the notice must be given by that agent or employee to the person cancelling. (c) The entitled refund shall be delivered to the member within fourteen (14) days after notice of cancellation is given. (d) Rights of cancellation may not be waived or otherwise surrendered. (e) Cancellation shall not relieve the member from paying for any merchandise or services purchased or ordered prior to the date of cancellation. | |
66 | Ten. Code Ann. 47-18-503 Contracts -- Notice of right to cancel. | (a) A fully completed copy of every contract shall be delivered to the member at the time the contract is signed. Every contract shall constitute the entire agreement between seller and member, shall be in writing, shall be signed by the member, shall designate the date on which the member signed the contract and shall state, clearly and conspicuously in boldface type of a minimum size of fourteen (14) points, in immediate proximity to the space reserved for the signature of the buyer, the following: MEMBER'S RIGHT TO CANCEL 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 twelve o'clock midnight (12:00) 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 fourteen (14) days of the date on which you give notice of cancellation, any payments you have made. (b) Until the buying club has complied with this section, the member may cancel the contract by notifying the buying club, in any manner and by any means, of the member's intention to cancel and the member is then entitled to a refund of the entire consideration paid for the contract. | |
67 | Ten. Code Ann. 47-18-504 Contracts -- Nondelivery of goods -- Savings claims. | (a) Every contract shall provide that if any goods, except furniture or custom manufactured goods, ordered by the member from the buying club, are not delivered to the member or available for pick up by the member at the location where the order was placed within six (6) weeks from the date the member placed an order for such goods, then any payment by the member for such goods in advance of delivery shall, upon the member's request, be fully refunded, unless a predetermined delivery date has been furnished to the member in writing at the time the member ordered such goods, and the goods are delivered to the member or available for pick up by that date. Every contract must disclose that delivery dates for furniture or custom manufactured goods cannot be predicted, if such is the case. (b) Every contract shall provide that all savings claims made by the buying club are based on price comparisons with retailers doing business in the trade area in which the claims are made if the same or comparable items are offered for sale in the trade area and with prices at which the merchandise is actually sold or offered for sale. (c) Any contract which does not comply with subsections (a) and (b) shall be void and unenforceable. | |
68 | Ten. Code Ann. 47-18-505 Duration. | No contract shall be valid for a term longer than eighteen (18) months from the date upon which the contract is signed. However, a club may allow a member to convert such member's contract into a contract for a period longer than eighteen (18) months after the member has been a member of the club for a period of at least six (6) months. The duration of the contract shall be clearly and conspicuously disclosed in the contract in boldface type of a minimum size of fourteen (14) points. No contract shall contain an automatic renewal clause; provided, that such an agreement may provide for the buyer to exercise a renewal. | |
69 | Ten. Code Ann. 47-18-506 Exemptions. | This part shall not apply to: (1) Any buyers club in which the total consideration paid by each buyer in any manner whatsoever under the contract for discount buying services does not exceed fifty dollars ($50.00) over the expected life of the contract; (2) Any buyers club in which persons receive discount buyer services incidentally as part of a package of services provided to or available to such individuals on account of their membership in such organization, which is not organized for the profit of any person or corporation or which does not have as one (1) of its primary purposes or businesses the provision of discount buying services; and (3) Any buyers club which files with the director of the division a declaration, executed under penalty of perjury by the owner or manager of such club, stating that the club does not require or, in the ordinary course of business, receive prepayment. | |
70 | Ten. Code Ann. 47-18-507 Required disclosures -- Unfair or deceptive trade practices. | (a) It is unlawful for any buying club to fail to disclose to a prospective member in writing, prior to the sale of any contract for discount buying services: (1) That goods or services can only be bought through catalogs with no opportunity to inspect samples if such is the case; (2) The buyers club's policies regarding warranties or guarantees on goods ordered, return of ordered goods by buyers, procedures for cancellation of merchandise orders by the buyer, and refunds of deposits for the cancellation of orders; (3) Any charges, such as estimated freight costs, handling fees, credit life or disability insurance, suppliers' and buyers clubs' markup, and other costs incidental to the purchase of goods through the buyers club and which are to be paid by the buyer; (4) A list of the categories of merchandise which are available to buyers from cooperating suppliers. If the list includes savings claims based on reference prices, the reference prices must be those at which the same or comparable goods are offered or sold in the trade area; (5) Advice that the contract for discount buying service or incidental retail installments contracts will be transferred, sold, or assigned to a third party if such practice is to be used by the buyers club; and (6) The percentage of the purchase price required as a down payment on merchandise orders of any nature. This prohibition applies in all cases where rebates are offered, regardless of whether such promised rebates are contingent upon the seller's ability to enroll the referred persons into the buyers club. (b) It is an unfair or deceptive trade practice for a buying club to: (1) Represent that it is affiliated with any other buyers club organization or showroom, unless an affiliation in fact exists and unless the prospective buyer would be legally entitled to services from the allegedly affiliated organization as a result of being a buyer of the subject buyers club. If such an affiliation is claimed by the representative of the buyers club, written proof of such a binding legal right must be given the prospective buyer, including a description of the services available from the affiliated club, before the signing of any contract for discount buying services or application; (2) Represent that the prospective buyer will be entitled to a particular benefit unless that benefit is currently available from the buyers club on a regular basis; (3) Offer any gifts or consideration of any nature to a prospective buyer as a solicitation for such person to attend a buyers club sales presentation or to sign a membership application or a contract for discount buying services where the club fails to honor or deliver the gift or consideration in accordance with the terms of its promise; (4) Represent or suggest in any manner that it offers its buyers the lowest prices, excluding freight and service charges, available on all categories of merchandise handled by the club, unless such is true; or (5) Represent that merchandise is available to the buyer from any particular supplier unless such is true at the time the representation is made. Reference to unavailable suppliers or manufacturers may be made only for purposes of allowing prospective buyers to compare merchandise costs against those manufacturers which are available through the club. No buyers club may represent to a prospective buyer, unless it is true, that the club can purchase any item of merchandise at supplier's cost if the buyer provides the club with the necessary model number for the item. | |
71 | Ten. Code Ann. 47-18-508 Requirements nonwaivable. | Any waiver by the member of this part shall be deemed contrary to public policy and shall be void and unenforceable. | |
72 | Ten. Code Ann. 47-18-509 Violations of part -- Penalties. | A violation of this part shall constitute a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act. | |
73 | Ten. Code Ann. 47-18-601 Short title. | This part shall be known and may be cited as the “Tennessee Rental-Purchase Agreement Act.” | |
74 | Ten. Code Ann. 47-18-602 Legislative findings and purpose. | The general assembly finds that a significant number of consumers have sought to acquire ownership of personal property through rental-purchase agreements. Often, these rental-purchase agreements have been offered without adequate cost disclosures. It is the purpose of this part to assure meaningful disclosure of the terms of rental-purchase agreements, to make consumers aware of the total cost attendant with such agreements, to inform the consumer when ownership will transfer, and to assure accurate disclosures of rental-purchase terms in advertising. | |
75 | Ten. Code Ann. 47-18-603 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Advertisement” means a commercial message in any medium that aids, promotes, or assists directly or indirectly a rental-purchase agreement; (2) “Cash price” means the price at which the lessor would have sold the property to the consumer for cash on the date of the rental-purchase agreement; (3) “Consumer” means a natural person who rents personal property under a rental-purchase agreement; (4) “Consummation” means the time a consumer becomes contractually obligated on a rental-purchase agreement; (5) “Division” means the division of consumer affairs in the department of commerce and insurance; (6) “Lessor” means a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of property under a rental-purchase agreement; and (7) “Rental-purchase agreement” means an agreement for the use of personal property by a natural person primarily for personal, family, or household purposes, for an initial period of four (4) months or less (whether or not there is any obligation beyond the initial period) that is automatically renewable with each payment and that permits the consumer to become the owner of the property. “Rental-purchase agreement” shall not be construed to be, nor be governed by, any of the following: (A) A lease or agreement which constitutes a “credit” sale as defined in 12 CFR 226.2(a)(16) and § 1602(g) of the Truth In Lending Act, compiled in 15 U.S.C. § 1601 et seq.; (B) A lease which constitutes a “consumer lease” as defined in 12 CFR 213.2(e); (C) Any lease for agricultural, business, or commercial purposes; (D) Any lease made to an organization; (E) A lease or agreement which constitutes a “retail installment contract” or “retail installment transaction” as defined in § 47-11-102; (F) A “security interest” as defined in § 47-1-201; or (G) A “home solicitation sale” as defined in § 47-18-702. | |
76 | Ten. Code Ann. 47-18-604 Required disclosures. | (a) For each rental-purchase agreement, the lessor shall disclose the following items as applicable: (1) A brief description of the leased property, sufficient to identify the property to the consumer and lessor; (2) The number, amount, and timing of all lease payments necessary to acquire ownership of the property; (3) The maximum amount of all initial and periodic payments and other charges to acquire ownership of the property pursuant to the ownership provisions of the rental-purchase agreement; (4) A statement that the consumer will not own the property until the consumer has made the number of payments and the total of payments necessary to acquire ownership; (5) A statement that the total of payments does not include other charges, such as late payment, default, pickup, and reinstatement fees, and that the consumer should see the contract for an explanation of these charges; (6) If applicable, a statement that the consumer is responsible for the fair market value of the property if it is lost, stolen, damaged, or destroyed; (7) A statement indicating whether the property is new or used; however, a statement that indicates new property is used is not a violation of this part; (8) A statement of the cash price of the property. Where the agreement involves a lease for five (5) or more items, a statement of the aggregate cash price of all items shall satisfy this requirement; (9) The total of initial payments required to be paid before consummation of the agreement or delivery of the property, whichever is later; (10) A statement clearly summarizing the terms of the consumer's options to purchase; (11) A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with the description of that responsibility and a statement that, if any part of a manufacturer's express warranty covers the leased property at the time the consumer acquires ownership of the property, it will be transferred to the consumer, if allowed by the terms of the warranty; and (12) The date of the transaction and the identities of the lessor and consumer. (b) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section. (c) Subsection (a) does not apply to a lessor who complies with the disclosure requirements of Section 182 of the federal Consumer Credit Protection Act, 15 U.S.C. § 1667a, 90 Stat. 258, with respect to a rental-purchase agreement entered into with a consumer. | |
77 | Ten. Code Ann. 47-18-605 Form of disclosures. | (a) The lessor shall disclose to the consumer the information required by this part. In a transaction involving more than one (1) consumer, a lessor need disclose only to one (1) of the consumers who is primarily obligated. In a transaction involving more than one (1) lessor, only one (1) lessor need make the required disclosures. (b) The disclosures required under this part shall be made no later than the time that the lessor delivers the merchandise to the consumer, or upon consummation of the rental-purchase agreement, whichever is earlier. (c)(1) The disclosures shall be made using words and phrases of common meaning, in a form that the consumer may keep. (2) The disclosures required under § 47-18-604 may be made a part of the rental-purchase agreement or provided on a separate form. (3) The required disclosures shall be set forth clearly and conspicuously. The disclosures shall be placed all together, on the front side of the rental-purchase agreement or on a separate form. The form setting forth the required disclosures must contain spaces for the consumer's signature and the date appearing immediately below the disclosures. The requirements of this section shall not have been complied with unless the consumer signs the statement and receives, at the time disclosures are made, a legible copy of the signed statement. The inclusion in the required disclosures of a statement that the consumer received a legible copy of those disclosures shall create a rebuttable presumption of receipt thereof. (d) Information required to be disclosed may be given in the form of estimates and shall be identified as such when the lessor does not know the exact information. (e) If a disclosure becomes inaccurate as the result of any act, occurrence, or agreement after delivery of the required disclosures, the resulting inaccuracy is not a violation of this part. (f) At the lessor's option, information in addition to that required by § 47-18-604 may be disclosed if the additional information is not stated, utilized, or placed in a manner which will contradict, obscure, or distract attention from the required information. | |
78 | Ten. Code Ann. 47-18-606 Prohibited terms of agreement. | A rental-purchase agreement may not contain a provision: (1) Requiring a confession of judgment; (2) Requiring a garnishment of wages; (3) Granting authorization to the lessor or a person acting on the lessor's behalf to enter unlawfully upon the consumer's premises or to commit any breach of the peace in the repossession of goods; (4) Requiring the consumer to waive any defense, counterclaim, or right of action against the lessor or a person acting on the lessor's behalf in collection of payment under the lease or in the repossession of goods; or (5) Requiring purchase of insurance from the lessor to cover the merchandise. | |
79 | Ten. Code Ann. 47-18-607 Termination and reinstatement provisions. | (a) Each rental-purchase agreement must: (1) Provide that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the merchandise upon expiration of any lease term; and (2) Contain a provision for reinstatement which, at a minimum: (A) Permits a consumer who fails to make a timely rental payment to reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of all past due rental charges, the reasonable costs of pickup, redelivery, any refurbishing and any applicable late fee within five (5) days of the renewal date if the consumer pays monthly, or within two (2) days of the renewal date if the consumer pays more frequently than monthly; (B) In the case where a consumer, at the request of the lessor or its agent, has returned or voluntarily surrendered the property, other than through judicial process, permits the consumer to reinstate the agreement during a period of not less than thirty (30) days after the date of the return of the property. In the event the consumer has paid not less than sixty percent (60%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection (a) shall be extended to a total of ninety (90) days after the date of the return of the property. In the event the consumer has paid not less than eighty percent (80%) of the amount called for under the contract to obtain ownership, the reinstatement period under this subsection (a) shall be extended to a total of one hundred eighty (180) days after the date of the return of the property. (b) Nothing in this section prevents a lessor from attempting to repossess property during the reinstatement period, but such a repossession does not affect the consumer's right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition. | |
80 | Ten. Code Ann. 47-18-608 Receipts for payments. | A lessor shall provide the consumer with a written receipt for each payment made by cash or money order. | |
81 | Ten. Code Ann. 47-18-609 Renegotiations -- Extensions. | (a) A renegotiation occurs when an existing rental-purchase agreement is satisfied and replaced by a new lease agreement undertaken by the same consumer. A renegotiation is a new agreement requiring new disclosures. However, events such as the following shall not be treated as renegotiations: (1) The addition or return of property in a multiple item agreement or the substitution of lease property, if in either case the average payment allocable to a payment period is not changed by more than twenty-five percent (25%); (2) A deferral or extension of one (1) or more periodic payments, or portions of a periodic payment; (3) A reduction in charges in the agreement; (4) An agreement involving a court proceeding; and (5) Any other event described in regulations prescribed by the division. (b) No disclosures are required for any extension of a rental-purchase agreement. | |
82 | Ten. Code Ann. 47-18-610 Advertisements. | (a) If an advertisement for a rental-purchase agreement refers to or states the amount of any payment or the right to acquire ownership for any specific item, the advertisement also must state clearly and conspicuously the following items, as applicable: (1) That the transaction advertised is a rental-purchase agreement; (2) The total of payments necessary to acquire ownership; and (3) That the consumer acquires no ownership rights if the total amount necessary to acquire ownership is not paid. (b) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section. (c) Subsection (a) does not apply to an advertisement which does not refer to a specific item of merchandise. The disclosures also need not be made in an advertisement which does not refer to or state the amount of any payment, and which is published in the yellow pages of a telephone directory or any similar directory of business. (d) With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with such act satisfies the requirements of this section. | |
83 | Ten. Code Ann. 47-18-611 Civil liability. | (a)(1) A lessor who fails to comply with a requirement imposed in § 47-18-604 or §§ 47-18-606--47-18-608 with respect to a consumer is liable to the consumer in an amount equal to the greater of: (A) The actual damages sustained by the customer as a result of the violation; or (B)(i) In the case of an individual action, twenty-five percent (25%) of the total of payments necessary to acquire ownership but not less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000); or (ii) In the case of a class action, the amount the court determines to be appropriate with no minimum recovery as to each member. The total recovery in any class action or series of class actions arising out of the same violation may not be more than the lesser of five hundred thousand dollars ($500,000) or one percent (1%) of the net worth of the lessor. In determining the amount of any award in a class action, the court shall consider, among other relevant factors, the amount of actual damages awarded, the frequency and persistence of the violation, the lessor's resources, and the extent to which the lessor's violation was intentional. (2) Such lessor is also liable to the consumer for the costs of the action and reasonable attorneys' fees as determined by the court. (b) In the case of an advertisement, any lessor who fails to comply with the requirements of § 47-18-610 with regard to any person is liable to that person for actual damages suffered from the violation, the costs of the action, and reasonable attorneys' fees. (c) When there are multiple lessors, liability shall be imposed only on the lessor who made the disclosures. When no disclosures have been given, liability shall be imposed on all lessors. (d) When there are multiple consumers in a rental-purchase agreement, there shall be only one (1) recovery of damages under subsection (a) for a violation of this part. (e) Multiple violations in connection with a rental-purchase agreement entitle the consumer to a single recovery under this section. (f) A consumer may not take any action to offset any amount for which a lessor is potentially liable under subsection (a) against any amount owed by the consumer, unless the amount of the lessor's liability has been determined by judgment of a court of competent jurisdiction in an action in which the lessor was a party. This subsection (f) does not bar a consumer then in default on the obligation from asserting a violation of this part as an original action, or as a defense or counterclaim to an action brought by lessor to collect amounts owed by the consumer. (g) In connection with any transaction covered under this part, the lessor shall preserve evidence of compliance with this part for not less than two (2) years from the date of consummation of the agreement. | |
84 | Ten. Code Ann. 47-18-612 Limitation of actions. | An action under this part may be brought in any court of competent jurisdiction within one (1) year of the date of the occurrence of any violation or within six (6) months of the time the rental-purchase agreement, together with any renewals or extensions thereof, ceases to be in effect, whichever is greater. Notwithstanding the above, an action under this part may be maintained by way of recoupment or counterclaim in an action brought against the consumer by the lessor or its assignee. | |
85 | Ten. Code Ann. 47-18-613 Liability -- Good faith defenses. | (a) A lessor is not liable under § 47-18-612 for a violation of this part if the lessor shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, even though the lessor maintained procedures reasonably adapted to avoid such an error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors. An error of legal judgment with respect to requirements of this title is not a bona fide error. (b) A lessor is not liable under this part for any act done or omitted in good faith in conformity with any rule, regulation, or interpretation promulgated by the attorney general and reporter or by the division or by an official duly authorized by the attorney general and reporter or by the division. This rule applies even if, after the act or omission has occurred, the rule, regulation, or interpretation is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. | |
86 | Ten. Code Ann. 47-18-614 Criminal liability. | A willful and intentional violation of this part is a Class C misdemeanor. | |
87 | Ten. Code Ann. 47-18-701 Short title. | This part shall be known and may be cited as the “Tennessee Home Solicitation Sales Act of 1974.” | |
88 | Ten. Code Ann. 47-18-702 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Business day” means any calendar day except Sunday, or the following business holidays: New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day; (2) “Buyer” means buyer or lessee; (3) “Goods” means tangible personal property and also includes a merchandise certificate whereby a writing is issued by the seller which is not redeemable in cash and is usable in lieu of cash in exchange for goods or services; (4) “Home solicitation sale” means a consumer sale or lease of goods (other than farm equipment and/or motor vehicles) or services, other than insurance and securities, in which the seller or a person acting for the seller engages in the personal solicitation of the sale or lease at any residence other than that of the seller, and the buyer's agreement or offer to purchase or lease is there given to the seller or a person acting for the seller. It does not include cash sales of less than twenty-five dollars ($25.00), a sale or lease made pursuant to a preexisting revolving charge account, or a sale or lease made pursuant to prior negotiations between the parties. It does not include real estate sales or listing agreements. It does not include sales of farm animals or produce or similar perishable items; and (5) “Seller” means seller or lessor. | |
89 | Ten. Code Ann. 47-18-703 Cancellation -- Buyer's rights -- Exceptions. | Notwithstanding any other law to the contrary: (1) Except as provided in subdivision (5), in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until twelve o'clock midnight (12:00) of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with § 47-18-704; (2) Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase; (3) Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid; (4) Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale; (5) The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency, and: (A) The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation; (B) In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer; and (C) The buyer's emergency request is in a dated writing personally signed by the buyer and which expressly states that the buyer understands that the buyer is waiving the buyer's right to cancel the sale under this part; (6) Except as provided in subdivision (5), any waiver or modification of a buyer's right to cancel is void and of no effect. In the event the seller obtains from the buyer a waiver or modification of the buyer's right to cancel, the buyer's right to cancel shall commence on the first business day following the buyer's learning that the waiver or modification is void and of no effect. | |
90 | Ten. Code Ann. 47-18-704 Cancellation -- Notice to buyer of rights. | (a) In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller must present to the buyer a receipt if it is a cash or credit card sale or, in the case of a credit sale, obtain the buyer's signature to a written agreement or offer to purchase which designates as the date of the transaction the date on which the buyer actually makes payment in whole or in part or signs. Contained on any such receipt, written agreement, or offer to purchase, there shall be a readily legible statement as described in subsection (b). (b) The statement required in subsection (a) shall: (1) Appear on the front side of the receipt or contract, or immediately above the buyer's signature, under the conspicuous caption: “BUYER'S RIGHT TO CANCEL”; and (2) Read as follows: “If this agreement was solicited at 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 twelve o'clock midnight (12:00) of the third business day after you sign this agreement. The notice must be mailed to: ..........” (insert name and mailing address of seller). (c) In lieu of the form of notice required by subsection (b), a seller may comply with the requirements of the federal statutes, rules, or regulations governing the form of notice of the right of cancellation in door-to-door sales. (d) Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of the buyer's intention to cancel. (e) A home solicitation sale shall be deemed to be in compliance with the notice requirements of this statute if: (1) The buyer may at any time: (A) Cancel the order; (B) Refuse to accept delivery of the goods without incurring any obligation to pay for them; or (C) Return the goods to the seller and receive a full refund for any amount the buyer has paid; and (2) The buyer's right to cancel the order, refuse delivery, or return the goods without obligation or charge at any time is clearly and unmistakably set forth on the face or reverse side of the sales ticket. | |
91 | Ten. Code Ann. 47-18-705 Cancellation -- Refund of payments -- Lien pending refund. | (a) Except as provided in this section, within ten (10) days after a home solicitation sale has been cancelled or an offer to purchase revoked the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness. (b) If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement. (c) Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to the buyer by the seller and has a lien on the goods in the buyer's possession or control for any recovery to which the buyer is entitled. | |
92 | Ten. Code Ann. 47-18-706 Cancellation -- Return of goods -- Compensation for services. | (a) Except as provided in § 47-18-705(c), within a reasonable time after a home solicitation sale has been cancelled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but the buyer is not obligated to tender at any place other than the buyer's residence. If the seller fails to demand possession of goods within twenty (20) days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them. (b) The buyer has a duty to take reasonable care of the goods in the buyer's possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk. (c) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to compensation only to the extent of the fair market value for any such services performed prior to cancellation. | |
93 | Ten. Code Ann. 47-18-707 Misrepresentation of seller's identity. | Notwithstanding any other law, if at the time of a home solicitation a seller or the seller's agent should fail to immediately identify such person as a seller or lessor, or should the seller or agent represent or imply that the seller's or agent's purpose at the time of solicitation is anything other than selling or leasing if that is not substantially true, the buyer shall have a total of thirty (30) days to cancel any home solicitation sales contract there entered into in the same manner and to the same extent as otherwise provided by this chapter; provided, that the goods or merchandise are made available for the seller's repossession and are tendered back to the seller in substantially as good condition as when received by the buyer. | |
94 | Ten. Code Ann. 47-18-708 Nonwaivable buyer's rights. | (a) No seller shall use a form or contract in providing goods or services that purports to waive a buyer's right to obtain: (1) Punitive damages; (2) Exemplary damages; (3) Treble damages; or (4) Attorney's fees. (b) Any form or contract containing a prohibited provision as described above shall be deemed unconscionable and unenforceable as to such provision. | |
95 | Ten. Code Ann. 47-18-801 Short title. | This part shall be known and may be cited as the “Tennessee Equal Consumer Credit Act of 1974.” | |
96 | Ten. Code Ann. 47-18-802 Unlawful discrimination. | (a) It is unlawful for any creditor or credit card issuer to discriminate between equally qualified individuals, whether male or female, or whether disabled, or to discriminate solely on account of marital status against any individual, with respect to the approval or denial of terms of credit in connection with any consumer credit sale, whether or not under an open end credit plan, any consumer loan, or any other extension of consumer credit, or with respect to the issuance, renewal, denial, or terms of any credit card. (b) “Disabled,” as used in this section, means any physically disabled person who meets the requirements for disabled drivers established in § 55-21-102(3) and (4), and any other individual not otherwise covered under this section who is certified as disabled by a physician duly licensed to practice medicine in Tennessee. (c) Any requirement of a public utility for the continuation of a utility service account in the name of the spouse in whose name the account was originally opened shall not be a violation of this section where both spouses reside in the same household and have the benefit of the utility service. | |
97 | Ten. Code Ann. 47-18-803 Damages and attorney's fees. | Any creditor or credit card issuer who discriminates against any individual in a manner prohibited by § 47-18-802 is liable to such individual in damages in an amount equal to the sum of: (1) In the case of an individual action, not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); (2) In the case of a class action, not more than ten thousand dollars ($10,000); and (3) In the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney's fee as determined by the court. | |
98 | Ten. Code Ann. 47-18-804 Jurisdiction and limitation of actions. | Any action brought under this part may be brought in any court of competent jurisdiction in this state during a period of one (1) year commencing on the date of occurrence of the violation. | |
99 | Ten. Code Ann. 47-18-805 Liability of spouse. | Where the applicant for credit is married, the spouse of the applicant shall not be liable, other than to the extent common law liability is imposed for furnishing necessaries, for any debts, charges, or accounts where the spouse has not signed the application for credit. | |
100 | Ten. Code Ann. 47-18-901 Rights of recipient. | Unless otherwise agreed, where unsolicited goods, wares, or merchandise of a value of less than fifty dollars ($50.00) is delivered by United States mail or United Parcel Service to a person who has not actually ordered or requested it, either orally or in writing, the person has a right to refuse to accept delivery of it, is under no duty to return it to the sender, is under no duty to preserve and safe-keep it, and may at the person's option deem it to be, for all purposes, an outright and unconditional gift and may use or dispose of it in any lawful manner without any obligation on the person's part to the sender. | |
101 | Ten. Code Ann. 47-18-902 Defense against action for value or return of goods. | In any action for the monetary value or for the return of such unsolicited goods, wares, or merchandise, it shall be a complete defense that it was delivered voluntarily by the plaintiff and was not actually ordered or requested by the defendant, either orally or in writing. | |
102 | Ten. Code Ann. 47-18-1001 Short title. | This part shall be known and may be cited as the “Tennessee Credit Services Businesses Act.” | |
103 | Ten. Code Ann. 47-18-1002 Part definitions. | As used in this part, unless the context otherwise requires:
(1) "Attorney general" means the office of the attorney general and reporter; (2) "Commissioner" means the commissioner of commerce and insurance; (3) "Consumer" means any individual who is solicited to purchase or who purchases the services of a credit services business; (4) (A) "Consumer report" means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is furnished or is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for: (i) Credit or insurance to be used primarily for personal, family, or household purposes; (ii) Employment purposes; or (iii) Other purposes which shall be limited to the following circumstances: (a) In response to the order of a court having jurisdiction to issue the order; (b) In accordance with the written instructions of the consumer to whom the report relates; or (c) To a person which the agency has reason to believe: (1) Intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to or review or collection of an account of, the consumer; (2) Intends to use the information for employment purposes; (3) Intends to use the information in connection with the underwriting of insurance involving the consumer; (4) Intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or (5) Otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer; (B) "Consumer report" does not include: (i) Any report containing information solely as to transactions or experiences between the consumer and the person making the report; (ii) Any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or (iii) Any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys the person's decision with respect to the request, if the third party advises the consumer of the name and address of the person to whom the request was made, and the person makes the disclosures to the consumer as to the exact nature of the request and the effect of the report on its decision to extend credit; (5) (A) "Consumer reporting agency" means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and who uses any means or facility of commerce for the purpose of preparing or furnishing consumer reports; (B) "Consumer reporting agency" does not include a private detective or investigator licensed under title 62, chapter 26; (6) (A) "Credit services business" means any person who, with respect to the extension of credit by others, sells, provides, or performs, or represents that such person can or will sell, provide, or perform any of the following services in return for the payment of money or other valuable consideration: (i) Improving a consumer's credit record, history, or rating; (ii) Obtaining an extension of credit for a consumer; or (iii) Providing advice or assistance to a consumer with regard to either (i) or (ii) of this subdivision (6)(A); (B) "Credit services business" does not include: (i) The making, arranging, or negotiating directly for a loan or extension of credit under the laws of this state or the United States; (ii) Any bank, trust company, savings bank, or savings institution whose deposits or accounts are eligible for insurance by the federal deposit insurance corporation or any credit union organized and chartered under the laws of this state or the United States; (iii) Any nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)); (iv) Any person licensed as a real estate broker by this state where the person is acting within the course and scope of that license; (v) Any person licensed to practice law in this state where the person renders services within the course and scope of that person's practice as a lawyer; (vi) Any broker-dealer registered with the securities and exchange commission or the commodity futures trading commission where the broker-dealer is acting within the course and scope of that regulation; or (vii) Any consumer reporting agency as defined in the Federal Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681t); (7) "Extension of credit" means the right to defer payment of debt or to incur debt and defer its payment, offered or granted primarily for personal, family, or household purposes; (8) "File," when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored; (9) "Investigative consumer report" means a consumer report or portion of it in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom the consumer is acquainted, or who may have knowledge concerning any items of information. However, the information does not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency, when the information was obtained directly from a creditor of the consumer or from the consumer; and (10) "Person" includes an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity. | |
104 | Ten. Code Ann. 47-18-1003 Prohibited practices. | A credit services business, and its salespersons, agents and representatives, and independent contractors who sell or attempt to sell the services of a credit services business, shall not do any of the following: (1) Charge or receive any money or other valuable consideration prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer, including all representations made orally or in writing. “Full and complete performance” means fulfillment of all items listed in the contract and other solicitations or communications to consumers; (2) Charge or receive any money or other valuable consideration solely for referral of the consumer to a retail seller or to any other credit grantor who will or may extend credit to the consumer, if the credit that is or will be extended to the consumer is upon substantially the same terms as those available to the general public; (3) Make, or counsel or advise any consumer to make, any statement that is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer reporting agency or to any person who has extended credit to a consumer or to whom a consumer is applying for an extension of credit, with respect to a consumer's creditworthiness, credit standing, or credit capacity; (4) Make or use any untrue or misleading representations in the offer or sale of the services of a credit services business or engage, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services business; or (5) Create, or assist or advise the consumer to create a new credit record by using a different name, address, social security number, or employee identification number; (6) Provide, in any manner, the services of a credit services business within this state, without registering a bond consistent with § 47-18-1011; (7) Remove, assist or advise the consumer to remove or otherwise alter adverse information from the consumer's credit record which is accurate or not obsolete; (8) Create, assist or advise the consumer to request that positive information be inserted or included on the consumer's credit record which is false, inaccurate or obsolete; (9) Use a program or plan which uses or employs installment payments featuring payments charged directly to a credit card prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer; or (10) Engaging in any violation of the federal Consumer Credit Protection Act. | |
105 | Ten. Code Ann. 47-18-1004 Information statement required -- Record on file. | A credit services business, and its salespersons, agents and representatives, and independent contractors who sell or attempt to sell the services of a credit services business, shall not do any of the following: (1) Charge or receive any money or other valuable consideration prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer, including all representations made orally or in writing. “Full and complete performance” means fulfillment of all items listed in the contract and other solicitations or communications to consumers; (2) Charge or receive any money or other valuable consideration solely for referral of the consumer to a retail seller or to any other credit grantor who will or may extend credit to the consumer, if the credit that is or will be extended to the consumer is upon substantially the same terms as those available to the general public; (3) Make, or counsel or advise any consumer to make, any statement that is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer reporting agency or to any person who has extended credit to a consumer or to whom a consumer is applying for an extension of credit, with respect to a consumer's creditworthiness, credit standing, or credit capacity; (4) Make or use any untrue or misleading representations in the offer or sale of the services of a credit services business or engage, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services business; or (5) Create, or assist or advise the consumer to create a new credit record by using a different name, address, social security number, or employee identification number; (6) Provide, in any manner, the services of a credit services business within this state, without registering a bond consistent with § 47-18-1011; (7) Remove, assist or advise the consumer to remove or otherwise alter adverse information from the consumer's credit record which is accurate or not obsolete; (8) Create, assist or advise the consumer to request that positive information be inserted or included on the consumer's credit record which is false, inaccurate or obsolete; (9) Use a program or plan which uses or employs installment payments featuring payments charged directly to a credit card prior to full and complete performance of the services that the credit services business has agreed to perform for or on behalf of the consumer; or (10) Engaging in any violation of the federal Consumer Credit Protection Act. | |
106 | Ten. Code Ann. 47-18-1005 Contents of information statement. | The information statement required under § 47-18-1004 shall include all of the following: (1)(A) A complete and accurate statement of the consumer's right to review any file on the consumer maintained by any consumer reporting agency, and the right of the consumer to receive a copy of a consumer report containing all information in that file as provided under the federal Fair Credit Reporting Act (15 U.S.C. § 1681g); (B) A statement that a copy of the consumer report containing all information in the consumer's file will be furnished free of charge by the consumer reporting agency, if requested by the consumer within thirty (30) days from receipt of the consumer's request; and (C) A statement that a nominal charge, not to exceed eight dollars ($8.00), may be imposed on the consumer by the consumer reporting agency for a copy of the consumer report containing all information in the consumer's file, if the consumer has not been denied credit within sixty (60) days from receipt of the consumer's request. (2) A complete and accurate statement of the consumer's right to dispute the completeness or accuracy of any item contained in any file on the consumer that is maintained by any consumer reporting agency, as provided under the federal Fair Credit Reporting Act (15 U.S.C. § 1681i); (3) A complete and detailed description of the services to be performed by the credit services business for or on behalf of the consumer, and the total amount the consumer will have to pay, or become obligated to pay, for the services; (4)(A) Name and address of the surety company which issued the bond in accordance with § 47-18-1011; (B) A statement explaining the consumer's right to proceed against the bond; and (5) A complete and accurate statement of the availability of nonprofit credit counseling. | |
107 | Ten. Code Ann. 47-18-1006 Contract -- Cancellation notice. | (a) Every contract between a consumer and a credit services business for the purchase of the services of the credit services business shall be in writing, dated, signed by the consumer, and shall include all of the following: (1) A conspicuous statement in size equal to at least ten (10) point bold type, in immediate proximity to the space reserved for the signature of the consumer, as follows: “You, the buyer, may cancel this contract at any time prior to twelve o'clock midnight (12:00) of the fifth business day after the date of the transaction. See the attached notice of cancellation form for an explanation of this right.”; (2) The terms and conditions of payment, including the total of all payments to be made by the consumer, whether to the credit services business or to some other person; (3) A complete and detailed description of the services to be performed and the results to be achieved by the credit services business for or on behalf of the consumer, including all guarantees and all promises of full or partial refunds and a list of the adverse information appearing on the consumer's credit report that the credit services business expects to have modified; and (4) The principal business address of the credit services business and the name and address of its agent in this state authorized to receive service of process. (b)(1) The contract shall be accompanied by a completed form in duplicate, captioned “NOTICE OF CANCELLATION,” which shall be attached to the contract and easily detachable, and which shall contain in at least ten (10) point bold type the following statement: NOTICE OF CANCELLATION You may cancel this contract, without any penalty or obligation, at any time prior to twelve o'clock midnight (12:00) of the fifth business day after the date the contract is signed. If you cancel, any payment made by you under this contract will be returned within ten (10) days following receipt by the seller of your cancellation notice. To cancel this contract, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, to __________ (Name of Seller) at __________ (Address of Seller) __________ (Place of Business) not later than twelve o'clock midnight (12:00) __________ (Date) I HEREBY CANCEL THIS TRANSACTION. Date (Buyer's Signature) (2) A copy of the fully completed contract and all other documents the credit services business requires the consumer to sign shall be given by the credit services business to the consumer at the time they are signed. | |
108 | Ten. Code Ann. 47-18-1007 Violations -- Proof of exemption. | (a) Any breach by a credit services business of a contract under this part, or of any obligation arising under it, constitutes a violation of this part. (b) Any contract for services from a credit services business that does not comply with the applicable provisions of this part shall be void and unenforceable as contrary to the public policy of this state. (c) Any waiver by a consumer of any of the provisions of this part shall be deemed void and unenforceable by a credit services business as contrary to public policy of this state, and any attempt by a credit services business to have a consumer waive rights given by this part constitutes a violation of this part. (d) In any proceeding involving this part, the burden of proving an exemption or an exception from the definition is upon the person claiming it. | |
109 | Ten. Code Ann. 47-18-1008 Damages, private actions. | (a) In any private action, any credit services business, which willfully fails to comply with any requirement imposed under this part with respect to any consumer, is liable to the consumer in an amount equal to the sum of: (1) Any actual damages sustained by the consumer as a result of the failure, or any amount paid by the person to the credit services business whichever is greater. This remedy is supplemental to any other remedy contained within this chapter. (2) Such amount of punitive damages as the court may allow. (b) In any private action, any credit services business which is negligent in failing to comply with any requirement imposed under this part with respect to any consumer is liable to that consumer in an amount equal to the sum of any actual damages sustained by the consumer as a result of the failure. | |
110 | Ten. Code Ann. 47-18-1009 Limitation of actions. | A private action to enforce any liability created under this part may be brought within two (2) years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this part to be disclosed to a consumer, and the information so misrepresented is material to the establishment of the defendant's liability to that consumer under this part, the action may be brought at any time within two (2) years after discovery by the consumer of the misrepresentation. No action brought by the attorney general and reporter shall be subject to the limitation of actions contained herein. | |
111 | Ten. Code Ann. 47-18-1010 Violation of Consumer Protection Act -- Institution of proceedings. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and subject to the penalties and remedies as provided by that act. (b) If the attorney general has reason to believe that any credit services business, or any salesperson, agent, representative, or independent contractor acting on behalf of a credit services business, has violated any provision of this part, the attorney general may institute a proceeding under this chapter. | |
112 | Ten. Code Ann. 47-18-1011 Bond. | (a) (1) In order to provide a degree of protection to customers of credit services businesses, each credit services business shall post a bond in an amount as determined by the commissioner with the department of commerce and insurance for each location conducting business in this state. The bond shall be made with a bond issued by a corporate surety acceptable to the commissioner. (2) If the commissioner has not promulgated a rule setting the required level of bonding, then the bond shall be in the amount of one hundred thousand dollars ($100,000). (b) The bond shall be maintained for two (2) years following the date on which the credit services business ceases to conduct business in this state. (c) In an action brought by the attorney general and reporter pursuant to § 47-18-1010, the attorney general and reporter shall have the right to request that the total amount of the bond posted by the credit services business be awarded to the state for consumer restitution or civil penalties. Further, any person who has been awarded damages for a private action under this part may make a claim against the bond. (d) Notwithstanding subsection (a), any credit services business that was registered with the division of consumer affairs in the department of commerce and insurance on or before May 1, 1998, shall only be required to post a bond in the amount of ten thousand dollars ($10,000) with the department. The bond may be made through a deposit of cash, a certificate of deposit, securities, or with a bond issued by a corporate surety acceptable to the commissioner. (e) Receipt of bonds for credit services businesses posted under this part shall be transferred to the division of regulatory boards in the department of commerce and insurance on and after July 1, 2015. (f) The commissioner may prescribe fees for the filing of a bond with the department of commerce and insurance pursuant to this part. The fees shall be in an amount that provides for the cost of administering the receipt of bonds for credit services businesses. Fees may be adjusted as necessary to provide that the administration of bonds for credit services businesses is fiscally self-sufficient and that revenues from fees do not exceed necessary and required expenditures. | |
113 | Ten. Code Ann. 47-18-1201 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Contaminant” or “contamination” means any health-related physical, chemical, biological, or radiological substance or matter in water; (2) “Person” means any individual, partnership, firm, corporation or association, or any employee or agent thereof; and (3) “Water treatment device” means any product that: (A) Is designed to alter the chemical or physical properties or characteristics of drinking water or plumbing, or which the seller, lessor or renter claims can alter the chemical or physical properties or characteristics of drinking water or plumbing; and (B) Is used or sold, leased or rented for use on residential property. | |
114 | Ten. Code Ann. 47-18-1202 Prohibited acts. | It is unlawful for any person to do any of the following in connection with the sale, lease, rental, offer to sell, lease, rent or other disposition of water treatment devices: (1) Make any untrue or misleading oral or written statements regarding the presence of one (1) or more contaminants in drinking water, or the performance of water treatment devices, including, but not limited to, the following oral or written statements: (A) Any contaminant exists or may exist in the drinking water of any person to whom the statement is directed unless the statement is reasonably based on factual data; (B) A relationship between water quality and acute or chronic illness exists as a scientific certainty unless that statement is reasonably based on factual data; (C) The public water system, utility, or treatment plant that supplies drinking water to the person to whom the statement is directed does not test, treat or remove particular contaminants actually present in the water unless the statement is reasonably based on factual data; (D) The drinking water supplied by the public water system, utility or treatment plant to the person to whom the statement is directed is or may be unsafe to drink unless the statement is reasonably based on factual data; (E) A water treatment device removes particular contaminants from drinking water unless the statement is reasonably based on factual data in existence at the time the statement is made; (F) Use news events, reports or descriptions of water problems or health hazards associated with water systems or suppliers in a false or misleading manner; (G) A water treatment device would provide a health benefit or diminish a health risk unless the statement is reasonably based on factual data; and (H) A water treatment device will solve or contribute to the solution of any problem unless the statement is reasonably based on factual data; (2) Make any statement about the ability of a water treatment device to remove particular contaminants in such a manner as to imply falsely that any of those contaminants are present in excess of permitted levels in the drinking water of the person to whom the statement is made; (3) Perform tests or demonstrations of the individual consumer's drinking water without also clearly informing the consumer of the results, scope and limits of the test or demonstration; (4) Use pictures, exhibits, graphs, charts, other graphic portrayals, endorsements or testimonials in a false or misleading manner; (5) Fail to disclose clearly and conspicuously, in writing, to the purchaser, lessee or renter, the importance of maintaining the water treatment device according to the manufacturer's instructions, including, if applicable, the replacement of screens and filters. In addition, a separate printed gummed label, tag or other convenient form of reminder of the importance of proper maintenance shall be provided to the purchaser, lessee or renter; (6) Represent expressly or implicitly that the person is authorized by, or associated in any manner with, a governmental agency without the express written authorization of that agency; or (7) Represent an expected life of a water treatment device or component thereof unless it is reasonably based on factual data. | |
115 | Ten. Code Ann. 47-18-1203 Prohibited practices under Consumer Protection Act. | Any violation of this part is a prohibited practice under § 47-18-104. | |
116 | Ten. Code Ann. 47-18-1301 Short title. | This part shall be known and may be cited as the “Kerosene and Motor Fuels Quality Inspection Act of 1989.” | |
117 | Ten. Code Ann. 47-18-1302 Legislative intent. | It is the intent of the general assembly, through this enactment, to promote and protect the public health, safety and welfare by ensuring that kerosene and motor fuels: (1) Are adequately labeled and posted; and (2) Meet or exceed certain minimum standards of quality. | |
118 | Ten. Code Ann. 47-18-1303 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “American Society for Testing and Materials (ASTM)” means the national scientific and technical organization formed for the development of standards on characteristics and performance of materials, products, systems, and services, and the promotion of related knowledge; (2) “Commissioner” means the Tennessee commissioner of agriculture or a departmental employee designated by the commissioner to act as the commissioner's representative for purposes of this part; (3) “Convey for consumption in Tennessee” means to commercially refine, blend, store, transport, distribute, retail, or otherwise participate in the preparation or transmittal of kerosene or motor fuels for use by consumers within this state; (4) “Department” means the Tennessee department of agriculture; (5) “Diesel fuel” means refined oils commonly used in internal combustion engines where ignition occurs by pressure and not by electric spark, the classification of which shall be defined by the American Society for Testing and Materials; (6) “Field inspector” means an employee of the department, or an employee of a person contracting with the department, whose duties and responsibilities include the collection of kerosene or motor fuel samples for testing and other activities related to enforcement of this part; (7) “Gasoline” means a volatile mixture of liquid hydrocarbons generally containing small amounts of additives suitable for use as a fuel in spark-ignition internal combustion engines; (8) “Gasoline-alcohol blend” means a blend consisting primarily of gasoline and containing by volume at least one percent (1%) ethanol (ethyl alcohol) or methanol (methyl alcohol), or both; (9) “Kerosene” means a refined oil intended for heating or illuminating use, the classification of which shall be defined by the American Society for Testing and Materials; (10) “Motor fuel” means any liquid product used for the generation of power in an internal combustion or turbine engine and includes, but is not necessarily limited to, gasoline, diesel fuel and gasoline-alcohol blends; and (11) “Person” means an individual, partnership, corporation, company, firm, association or other business entity. | |
119 | Ten. Code Ann. 47-18-1304 Labeling and posting — Standards — Waiver of standards or alternative standards. | (a) Kerosene and motor fuels conveyed for consumption in Tennessee shall be labeled and posted in accordance with applicable federal and state law. (b) Kerosene and motor fuels conveyed for consumption in Tennessee shall meet the standards established for such products in the annual book of ASTM standards, and supplements thereto; provided, that by duly promulgated rule: (1) The department may adopt alternative volatility standards for gasoline-alcohol blends; provided, that the alternative standards are consistent with the protection and promotion of public health, safety and welfare; and (2) The department shall adopt as a substitute standard any provision of federal law which imposes requirements in conflict with an ASTM standard. (c) The commissioner is authorized to waive ASTM standards or to establish alternative standards for a specified period of time when such action is deemed necessary to protect or promote public health, safety and general welfare, and the interests of citizens of Tennessee; provided, that if such waiver or alternative standards remain in effect for more than one (1) year, the commissioner shall promulgate emergency or permanent rules, as the commissioner deems appropriate, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. | |
120 | Ten. Code Ann. 47-18-1305 Inspections and testing. | (a)(1) The commissioner shall implement and administer an inspection and testing program to enforce compliance with § 47-18-1304. The commissioner is authorized to contract for the performance of all, or any portion of, required on-site inspections, sample collection, sample transportation and sample testing. (2) The test results of kerosene and motor fuel analyses shall constitute open records and shall be available for public inspection at the commissioner's office during regular business hours. (3) At the request of any person, the department may test samples collected and delivered by the person to the department. No such test shall interfere with the testing of samples collected pursuant to subdivision (a)(1). Such tests shall be performed only after payment of a fee determined by the commissioner to be sufficient to reimburse the department for its cost in performing such tests. (b)(1) The department shall, at least once each year, inspect and collect at least one (1) sample for testing from each location from which a person conveys kerosene or motor fuel for consumption in Tennessee. Subject to availability of resources, the department may inspect any such location more frequently than once each year and may test a greater number of samples. If transactions occurring at a particular location total an average of less than three hundred (300) gallons per month, then annual inspection and testing of the location shall not be required. (2) When, in the discretion of the commissioner, promotion or protection of the public health, safety, or welfare so necessitates, inspection and testing in addition to the requirements of subdivision (b)(1) shall be performed with regard to: (A) A person or business location which has been previously found by the department to be in violation of § 47-18-1304; and (B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(2)(A). (3) Upon receiving a consumer complaint alleging a violation of § 47-18-1304, which, in the discretion of the commissioner, indicates that the public health, safety or welfare may be threatened, inspection and testing in addition to that required by subdivision (b)(1) shall be performed with regard to: (A) The person or business location which is the subject of the complaint; and (B) Any person or business location which refines, blends, stores, transports, or distributes kerosene or motor fuel to or for the person or business location referred to in subdivision (b)(3)(A). (4) The commissioner shall maintain a toll-free telephone line for the purpose of encouraging and receiving consumer complaints pertaining to kerosene and motor fuel quality. The commissioner shall undertake such actions and activities as may be necessary to inform and periodically remind consumers of the existence and purpose of the toll-free telephone number. A log of consumer complaints pertaining to kerosene and motor fuel quality shall be maintained at the commissioner's office. The log shall constitute an open record and shall be available for public inspection during regular business hours. | |
121 | Ten. Code Ann. 47-18-1306 Samples for testing -- Testing of ethanol or methanol. | (a) Upon request of a field inspector, a person who conveys kerosene or motor fuel for consumption in Tennessee shall immediately provide the department, free of cost, samples of kerosene or motor fuel. Samples shall be pumped, pulled, drawn, or otherwise procured in the presence of the field inspector. (b) The department shall test the samples for compliance with the requirements of § 47-18-1304. (c) The department may test ethanol or methanol, intended for blending with gasoline, separate from and prior to the time at which such ethanol or methanol is blended with gasoline. | |
122 | Ten. Code Ann. 47-18-1307 Sanctions for violations -- Penalties. | (a)(1) If a person or the person's agent or employee conveys, or offers to convey, kerosene or motor fuel in violation of § 47-18-1304, then the person shall be subject to an administrative fine, to issuance of a stop-sale order, or to both, in the discretion of the commissioner. A stop-sale order shall be issued by the commissioner either as a Class One stop-sale order or as a Class Two stop-sale order. A Class One stop-sale order shall be issued for a specified period of time. A Class Two stop-sale order shall be issued until conditions identified within the order have been remedied. (2)(A) A Class One stop-sale order may not be issued by the commissioner for a specified period greater than twenty-four (24) hours unless the violation: (i) Threatens public health or safety; (ii) Is knowingly and intentionally committed; or (iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304. (B) A Class One stop-sale order duly issued by the commissioner for a specified period greater than twenty-four (24) hours may be issued for any period not in excess of two hundred forty (240) hours. (3)(A) An administrative fine may not be assessed by the commissioner in an amount greater than one thousand dollars ($1,000) unless the violation: (i) Threatens public health or safety; (ii) Is knowingly and intentionally committed; or (iii) Reflects a continuing and repetitive pattern of disregard for the requirements of § 47-18-1304. (B) An administrative fine duly assessed by the commissioner in an amount greater than one thousand dollars ($1,000) may be assessed for any amount not in excess of ten thousand dollars ($10,000). (b)(1) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, refuses during regular business hours to promptly provide, upon request, a sample for inspection and testing, then the refusal shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a). (2) If a person who conveys kerosene or motor fuel for consumption in Tennessee, or an agent or employee of such person, interferes or attempts to interfere with the reasonable efforts of a field inspector or departmental official or employee to perform any duty or responsibility assigned pursuant to this part, then the interference or attempted interference shall constitute a knowing and intentional violation of § 47-18-1304, and the person shall be subject to imposition of the appropriate penalties set forth in subsection (a). (3) If a person who conveys kerosene or motor fuel for consumption in Tennessee fails to register with the department as required by § 47-18-1304, then the person shall be subject to imposition of the penalties set forth in subsection (a). (4) If a person who conveys kerosene or motor fuel for consumption in Tennessee violates a rule duly promulgated by the department under the authority of this part, then the violation shall constitute a violation of § 47-18-1304 and shall be subject to imposition of the penalties set forth in subsection (a). (c) If a person unknowingly receives kerosene or motor fuel that does not comply with the requirements of § 47-18-1304, and if as a result thereof the person is sanctioned pursuant to this section, then such person shall have the right to proceed in civil court to collect damages from those persons who, in violation of § 47-18-1304, conveyed the kerosene or motor fuel for consumption in Tennessee. | |
123 | Ten. Code Ann. 47-18-1308 Officials or employees administering or enforcing part -- Reports of interests in conveyances -- Restrictions on use of samples. | (a) Each official and employee within the department, and each official and employee of a person contracting with the department, who is directly or indirectly involved in the administration or enforcement of this part, and who has a direct or indirect interest in the conveyance of kerosene or motor fuel for consumption in Tennessee, shall annually file a written statement summarizing the official's or employee's involvement in the administration or enforcement of this part as well as the official's or employee's interest in the conveyance of kerosene or motor fuel for consumption in Tennessee. The statements shall constitute open records, shall be kept on file in the commissioner's office, and shall be available for public inspection during the department's regular business hours. (b) No official or employee within the department and no official or employee of a person contracting with the department shall take away or appropriate for the official's or employee's own use any sample collected by or submitted to the department for testing. By duly promulgated rule, the department shall establish policies and procedures governing the use, disposal, or sale of any samples remaining unused after testing thereon is completed. | |
124 | Ten. Code Ann. 47-18-1309 Rules and regulations — Contested cases. | (a) In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall promulgate such rules as may be necessary to effectively and efficiently administer and enforce this part. (b) Such rules shall include, but shall not necessarily be limited to: (1) Registration and disclosure procedures and requirements mandated by § 47-18-1304; (2) Identification and statement of current, applicable federal and state labeling and posting requirements, compliance with which is mandated by § 47-18-1304; (3) Identification and statement of current, applicable ASTM standards or federal standards, compliance with which is mandated by § 47-18-1304; and (4) Description of any deviations from ASTM standards, permitted by the department without imposition of sanction, in order to equitably reflect the margin of error for test analyses. (c) A person who is aggrieved by a proposed departmental order to enforce this part, or any rule promulgated under the authority of this part, shall be entitled to a contested case hearing to be conducted in accordance with the Uniform Administrative Procedures Act. Except under circumstances in which the public health or safety would be jeopardized by delay, any such hearing shall be conducted prior to the time at which an administrative fine is imposed or a stop-sale order becomes effective. | |
125 | Ten. Code Ann. 47-18-1310 Report to governor and general assembly. | Each year, on or before September 15, the commissioner shall distribute to the governor and to the chairs of the transportation committee of the house of representatives and the transportation and safety committee of the senate a report entitled, “Annual Report on the Quality of Kerosene and Motor Fuel in Tennessee.” The report shall summarize, for the preceding fiscal year, the activities of the department in performing the duties and responsibilities assigned by this part. The report shall identify: (1) The total number of inspections performed and samples collected by the department; (2) The total number of inspections performed and samples respectively collected from refiners, blenders, storage facilities, transporters, wholesalers, retailers and others; (3) The results of inspections and tests conducted, including the number and categories of violations as well as enforcement activities undertaken with respect to such violations; (4) The geographical distribution by county of violations; (5) The number and categories of consumer complaints, alleging violations of this part, received by the department; (6) A summary of investigations conducted in response to consumer complaints; (7) The costs of conducting the inspection and testing program; (8) Legislative recommendations for improving compliance with this part; (9) Other information that would be useful in evaluating the quality of kerosene and motor fuel in Tennessee; and (10) Other information that would be useful in evaluating programmatic effectiveness and efficiency. | |
126 | Ten. Code Ann. 47-18-1311 Funding. | Implementation and administration of this part shall be subject to an annual appropriation for such purpose as contained within the general appropriations act. The commissioner of finance and administration shall transfer from highway user tax revenues allocated to the highway fund an amount sufficient to support the annual appropriation for implementation and administration of this part. | |
127 | Ten. Code Ann. 47-18-1401 Short title. | This part shall be known and may be cited as the “Tennessee Consumer Protection Warranty Extension Act.” | |
128 | Ten. Code Ann. 47-18-1402 Warranty extension period. | Any written warranty or service contract purchased in this state on or after July 1, 1989, and in effect when there is a failure of the product under such written warranty or service contract shall be extended as follows: (1) The number of days the consumer is deprived of the use of the product by reason of the product being in repair; plus (2) Two (2) additional working days. | |
129 | Ten. Code Ann. 47-18-1403 Working days — Definition. | For the purposes of this part, working days shall not include Saturdays, Sundays or legal holidays pursuant to § 15-1-101. | |
130 | Ten. Code Ann. 47-18-1404 Applicability. | This part shall not apply to a written warranty or a service contract for a new or used motor vehicle. | |
131 | Ten. Code Ann. 47-18-1501 Short title -- Part definitions. | (a) This part shall be known as the “Consumer Telemarketing Protection Act of 1990.” (b) As used in this part, unless the context otherwise requires: (1) “ADAD equipment” means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating recorded messages to the numbers so selected or dialed; (2) “Authority” means the Tennessee regulatory authority, created by § 65-1-101; and (3) “Telephone access line” means any seven-digit telephone number for each call to which a fee is charged. | |
132 | Ten. Code Ann. 47-18-1502 Unlawful use of ADAD equipment -- Consent to calls. | (a) It is unlawful for any person to use, to employ or direct another person to use, or to contract for the use of ADAD equipment for the purpose of advertising or offering for sale, lease, rental or as a gift any goods, services or property, either real or personal, primarily for personal, family or household use or for the purpose of conducting polls or soliciting information where: (1) Consent is not received prior to the initiation of the calls as specified in subsection (b); (2) Such use is other than between the hours of eight o'clock a.m. (8:00 a.m.) and nine o'clock p.m. (9:00 p.m.); (3) The ADAD equipment will operate unattended, or is not so designed and equipped with an automatic clock and calendar device that it will not operate unattended, even in the event of power failures; (4) Such use involves either the random or sequential dialing of telephone numbers; (5) The telephone number required to be stated in subdivision (a)(7) is not, during normal business hours, promptly and personally answered by someone who: (A) Is an agent of the person or organization in whose behalf the automatic calls are made; and (B) Is willing and able to provide information concerning the automatic calls; (6) The automatic dialing and recorded message player does not automatically and immediately terminate its connection with any telephone call within ten (10) seconds after the person called: (A) Fails to give consent for the playing of a recorded message; or (B) Replaces the receiver on the person's telephone; (7) The recorded message fails to state clearly the name and telephone number of the person or organization initiating the call within the first twenty-five (25) seconds of the call and at the conclusion of the call; or (8) Such use involves calls to: (A) Telephone numbers which, at the request of the customer, have been omitted from the telephone directory published by the telephone company or cooperative serving the customer; or (B) Hospitals, nursing homes, fire protection agencies, or law enforcement agencies. (b)(1) A person may give consent to a call made with ADAD equipment when a live operator introduces the call and states an intent to play a recorded message. Any such consent shall apply only to a particular call and shall not constitute prior consent to receive further calls through the use of such ADAD equipment. (2)(A) Any person wishing to receive telephone calls through the use of ADAD equipment shall give written consent to the person using, employing, directing another person to use, or contracting for the use of such ADAD equipment. (B) Any form used for such written consent by any person using, employing, directing another person to use, or contracting for the use of such ADAD equipment shall clearly and conspicuously state its purpose and effect, and clearly and conspicuously give notice of how such consent may be withdrawn. (C) A record of such written consent shall be maintained by the person to whom consent is given, and shall be made available to the authority or its authorized representative, without further action, during normal business hours and following reasonable notice. (D) Such consent shall, unless withdrawn, be valid for a period of two (2) years from the date on which it is executed; and such record of written consent shall be maintained by the person to whom consent is given for at least the same period of time. (E) Any consent to receive telephone calls through the use of ADAD equipment shall be void and withdrawn on the fifteenth day following the receipt of a letter withdrawing such consent. It is unlawful for any person to whom written consent is given to fail to maintain the record of such written consent for the time required by this subdivision (b)(2)(E), or to prevent or hinder the authority or its authorized representative from inspecting any such record of written consent. | |
133 | Ten. Code Ann. 47-18-1503 Registration requirements -- Issuance and revocation of permits. | (a) Prior to the utilization of ADAD equipment to call telephone numbers located in this state, any company or individual utilizing this equipment shall register the following with the authority to receive a permit as provided in this part: (1) Name, address and telephone number of the company or individual utilizing the equipment; (2) Name and address of a designated agent for service of process located in Tennessee for the ADAD operator; (3) A surety bond executed by the ADAD operator from a surety company authorized to do business in this state for the sum of ten thousand dollars ($10,000) to be maintained continuously in full force and effect. The authority may waive the bond requirement for any operator demonstrating financial responsibility by the submission of a letter of credit from an accredited financial institution or by other means as the authority by rule may prescribe. (b) The authority shall promulgate rules and regulations to govern the issuance of and the revocation or suspension of permits for ADAD operators utilizing equipment to call telephone numbers located in Tennessee. (c) Failure to obtain a permit from the authority prior to utilization of ADAD equipment to call numbers located in Tennessee, and failure to abide by authority rules governing ADAD operations is a violation of this part. | |
134 | Ten. Code Ann. 47-18-1504 Unlawful to connect ADAD equipment to telephone line without permit -- Renewal of permit. | (a) It is unlawful for any person to connect any ADAD equipment to any telephone line in this state for the purpose of making telephone calls to persons in this state through the use of ADAD equipment unless a permit has been issued for such ADAD equipment by the authority. (b) Any person desiring to use ADAD equipment in this state shall make application for a permit to the authority on forms prescribed by the authority, and shall pay a fee as prescribed by the authority for such permit. Permits shall be renewed biennially as prescribed by the authority and upon payment of a renewal fee. The fees charged shall cover the administrative cost for the issuance of such permits. (c) Permits shall be subject to suspension or revocation by the authority for any violation of this part. | |
135 | Ten. Code Ann. 47-18-1505 Unlawful use of telephone access line. | It is unlawful for any person making use of a telephone access line to use, to employ or direct another person to use, or to contract for the use of ADAD equipment or the United States mail for the purpose of soliciting any person to call such telephone access line. | |
136 | Ten. Code Ann. 47-18-1506 Telephone companies and cooperatives -- Withdrawal of access to a telephone access line. | No telephone company or cooperative shall provide access to a telephone access line to any person who solicits calls to such number through the use of ADAD equipment or through the use of the United States mail. A telephone company or cooperative shall, upon the order of the authority, withdraw access to a telephone access line from any person if calls to such number are solicited by ADAD equipment or through the use of the United States mail. | |
137 | Ten. Code Ann. 47-18-1507 Permissible use of ADAD equipment. | Nothing in this part shall prohibit the use of ADAD equipment to make calls with recorded messages when such calls: (1) Are made in response to calls initiated by the person to whom the automatic call or recorded message is directed; (2) Concern goods or services that have been previously ordered or purchased; (3) Relate to collection of lawful debts; or (4) Are made by a public school, kindergarten through grade twelve (K-12), as part of a program to regulate and control absenteeism of students. | |
138 | Ten. Code Ann. 47-18-1508 Penalty -- Criminal. | Any person who violates any provision of §§ 47-18-1502--47-18-1504 commits a Class A misdemeanor. | |
139 | Ten. Code Ann. 47-18-1509 Injunctive Relief--Recovery of Damages. | (a) The district attorney general of the county in which or from which automated calls in violation of this part are made may seek injunctive relief to enforce this part and recover such statutory damages and attorney's fees as are set out in § 47-18-1510. (b) Any individual or group of individuals receiving such automated calls may also seek injunctive relief to enforce this part on behalf of others similarly situated. | |
140 | Ten. Code Ann. 47-18-1510 Civil Penalties. | (a) If an individual or corporation is found to be in violation of this part in a civil action, a court shall assess a civil penalty against the offending party in the amount of one thousand dollars ($1,000) for each call made in violation of this part. (b) Any civil penalty collected pursuant to this section shall be paid into the general fund of the state. The prevailing party in the cause shall be entitled to necessary expenses and reasonable attorney's fees. | |
141 | Ten. Code Ann. 47-18-1511 Offense of using ADAD equipment to intentionally conceal or misrepresent telephone number of the equipment -- Exceptions. | (a) It is an offense for any person to utilize any ADAD equipment to intentionally: (1) Dial telephone numbers with area codes within the state; and (2) Conceal or misrepresent the telephone number utilized by the ADAD equipment on the call recipient's telephone or other equipment that is technically capable of displaying the number by: (A) Displaying a telephone number other than the telephone number utilized by the ADAD equipment; (B) Not displaying the telephone number utilized by the ADAD equipment; or (C) Displaying an “unknown number” message or similar message instead of the telephone number utilized by the ADAD equipment. (b) A violation of this section is a Class A misdemeanor punishable only by a fine not to exceed two thousand five hundred dollars ($2,500) for each violation. For purposes of criminal liability, a court shall deem each call made in violation of this section as a separate offense. (c) It shall not be a violation of this section to display a phone number, different from the phone number being utilized by the ADAD equipment, on behalf of a person if: (1) The phone number displayed on behalf of the person has a Tennessee area code or is a toll-free number; (2) The phone number displayed on behalf of the person is answered during regular business hours by a designated representative of such person; and (3) The person's name is displayed along with the phone number described in subdivisions (c)(1) and (2). (d) The offenses described in this section shall not apply to a telecommunications, broadband, or voice-over-Internet services provider acting solely as an intermediary for a transmission of telephone service between a caller and a recipient. | |
142 | Ten. Code Ann. 47-18-1526 Telephone solicitations prohibited. | (a) As used in this section, unless the context otherwise requires: (1) “Consumer” means an actual or prospective purchaser, lessee or recipient of consumer goods or services; (2) “Division” means the division of consumer affairs of the department of commerce and insurance; (3) “Telephone solicitor” means any natural person, firm, organization, partnership, association or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices; (4) “Telephonic sales call” means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used by the solicitor or a third party for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes or in connection with prizes, gifts or awards presentations; and (5) “Unsolicited telephonic sales call” means a telephonic sales call other than a call made: (A) In response to an express request of the person called; (B) Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of such call; or (C) To any person with whom the telephone solicitor has a prior or existing business relationship. (b) No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile or telephonic paging device telephone number unless such person or entity has instituted procedures for maintaining a list of persons who do not wish to receive telephone solicitations made by or on behalf of that person or entity, in compliance with 47 CFR 64 or 16 CFR 310. (c)(1) No telephonic sales calls shall be made by a telephone solicitor to a consumer from a telephone if the telephone number of the caller is unlisted, or if the telephone solicitor is using telephone equipment which blocks the caller ID function on the telephone or telephone equipment of the number dialed so that the telephone number of the caller is not displayed on the telephone or telephone equipment which is technically capable of displaying the telephone number of the caller. (2)(A) In addition to any other penalty provided by this section, it is an offense for a person owning or directing the use of telephones or telephone equipment in violation of subdivision (c)(1) to use or intentionally employ or direct a telephone solicitor to use, or to contract for the use of, telephones or telephone equipment to make telephonic sales calls in violation of subdivision (c)(1). (B) A violation of this subdivision (c)(2) is a Class A misdemeanor, punishable only by a fine not to exceed two thousand five hundred dollars ($2,500) for each violation. (d) The division shall investigate any complaints received concerning violations of this section pursuant to § 47-18-106. The civil penalty shall not exceed one thousand dollars ($1,000) per violation. This civil penalty may be recovered in any action brought under this part by the division, or the division may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The division or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation. It shall be an affirmative defense in any action brought under this subsection (d) that the defendant has established and implemented reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations established in this section. | |
143 | Ten. Code Ann. 47-18-1527 Credit card charges by telephone solicitation permitted -- Unauthorized charges -- Refund. | (a) Credit card companies may offer services charged to a credit card to a cardholder by telephone solicitation and such cardholder may elect to authorize or refuse such services. (b) If the cardholder does not authorize such services, the cardholder shall notify the credit card company of any unauthorized charges that appear on such cardholder's credit card statement within three (3) months of initial billing for such services. (c) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company cannot provide proof of authorization by such consumer, the credit card company shall refund an amount equal to a minimum of three (3) months charges for services. (d) If the cardholder notifies the credit card company during the three-month period that such consumer did not authorize the services and the credit card company is able to prove authorization by such cardholder, no refund shall be issued by the credit card company. | |
144 | Ten. Code Ann. 47-18-1701 Short title. | This part shall be known as and may be cited as the “Tennessee Employment Agency Act.” | |
145 | Ten. Code Ann. 47-18-1702 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Candidate” means any person, whether employed or unemployed, seeking or entering into any arrangement for employment or change of employment through the services of an employment agency; (2) “Director” means the director of the consumer affairs division; (3) “Division” means the consumer affairs division; (4) “Employer” means any person who engages or seeks to engage candidates for employment; (5) “Employment agency” means any person who, for a fee paid by a candidate or other compensation provided by a candidate: (A) Places or attempts to place candidates seeking employment where the fee is not paid by the employer; (B) Recruits or attempts to recruit employees for employers seeking candidates where the fee is not paid by the employer; or (C) Purports to have access to job leads or compiles and provides lists or information about available jobs, if no fee is charged to the majority of potential employers for inclusion in the listings, and if an office is maintained for the purpose of marketing job information to the public and providing customers with access to that information; (6) “Fee” means anything of value paid or directed to be paid for the services of an employment agency; and (7) “Person” means any individual, company, corporation, partnership, association or firm, including any officer, director or employee of a corporation. | |
146 | Ten. Code Ann. 47-18-1703 Prohibited acts. | No employment agency, or employer thereof, shall: (1) Impose any fee on candidates except for furnishing of employment directly or indirectly through the efforts of such employment agency; (2) Impose any fee on any candidate prior to the time at which that candidate has secured a job; (3) Engage or attempt to engage in the splitting or sharing of fees with an employer, or an employee of an employer, to whom employment agency services have been furnished; (4) Impose any fee for employing or training a person as a personnel consultant with such employment agency; (5) Make, give or cause to be made or given to any candidate any false promise, misrepresentation, or inaccurate or misleading statement or information; (6) Procure or attempt to procure the discharge of any person from such person's employment; (7) Induce or attempt to induce any employee placed by the employment agency to leave such employment, except upon request made and initiated by such employee; (8) Knowingly refer any candidate to employment which is prohibited by law, or deleterious to health or morals; (9) Refer any candidate for an interview without having first obtained, either orally or in writing, a bona fide job order or recruiting assignment from an employer for an interview; (10) Make or cause to be made or use any name, sign or advertising device bearing a name which may be reasonably confused with the name of a government agency; (11) Knowingly publish or cause to be published any false, fraudulent, deceptive or misleading information, representation, permission, notice or advertisement; (12) Require any candidate to contract with a specified lending agency to pay employment agency service charges; or (13) Knowingly and willfully violate any law of this state or the United States. | |
147 | Ten. Code Ann. 47-18-1704 Refund of fees paid in event of termination. | If a candidate accepts candidate-paid fee employment and is terminated by the employer through no cause of the candidate within four (4) weeks after beginning work, the employment agency shall, within thirty (30) days, refund any fee paid by the candidate. During such thirty (30) days, the employment agency shall, if requested, attempt to place the candidate in similar employment. | |
148 | Ten. Code Ann. 47-18-1705 Exemptions. | This part does not apply to: (1) Employee trade associations engaged in the procurement of employment for public school teachers and administrators; (2) Employment services established and operated by this state, any political subdivision of this state or the United States; (3) Labor union organizations; (4) Musician booking agencies; (5) Employee trade associations engaged in the procurement of employment for nurses; (6) Any health care provider who provides health care services and who is licensed pursuant to title 63 or title 68, chapter 11; or (7) Any public or private college or university in the state; provided, that no recruiting fee is exacted from the salary or wages of the employee for services rendered. | |
149 | Ten. Code Ann. 47-18-1706 Investigators. | Whenever the division has reason to believe that a person is engaging in, has engaged in, or may be about to engage in a violation of this part or has reason to believe it to be in the public interest to conduct an investigation to ascertain whether any person is engaging in, or has engaged in, or is about to engage in such act or practice, the division may conduct an investigation in accordance with § 47-18-106. | |
150 | Ten. Code Ann. 47-18-1707 Enforcement actions. | (a) Whenever it appears to the director that a person has engaged in or is about to engage in any act or practice constituting a violation of this part or any rule or order hereunder, the director may, in the director's discretion, bring an action in the chancery court of any county in this state to enjoin the acts or practices and to enforce compliance with this part or any rule or order hereunder. (b) Upon a proper showing, a permanent or temporary injunction, restraining order, writ of mandamus, discouragement or other proper equitable relief shall be granted. (c) The court shall not require the director to post a bond. | |
151 | Ten. Code Ann. 47-18-1708 Violations -- Penalties. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. (b) For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by such act. | |
152 | Ten. Code Ann. 47-18-1801 Short title. | This part shall be known and may be cited as the “Foreign Foods Disclosure Act of 1997.” | |
153 | Ten. Code Ann. 47-18-1802 Parts Definitions. | As used in this part, unless the context otherwise requires: (1) “Director” means the director of the division of consumer affairs; (2) “Food” means any nourishing substance intended to be eaten by human beings; (3) “Manufacturer” means any person who manufactures, assembles or packages articles containing food of foreign origin. “Manufacturer” does not include wholesalers that repack fresh produce into smaller containers for sale to retail stores or retailers that repack fresh produce into tray-ready packs for sale to consumers; and (4) “Person” means a natural person, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized. | |
154 | Ten. Code Ann. 47-18-1803 Administration. | The consumer affairs division of the department of commerce and insurance shall administer this part. | |
155 | Ten. Code Ann. 47-18-1804 Labeling requirements. | It is unlawful for any manufacturer to sell any article containing food of foreign origin to a retail or wholesale establishment in Tennessee or for distribution in Tennessee if such article is not marked in accordance with the requirements of 19 U.S.C. § 1304. | |
156 | Ten. Code Ann. 47-18-1805 Injunctive relief. | In addition to any other remedies, the director is authorized to apply to the chancery court of Davidson County, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this part, irrespective of whether or not there exists an adequate remedy at law, without the necessity of posting a bond. | |
157 | Ten. Code Ann. 47-18-1806 Civil penalties. | The director may seek and the court may impose a maximum civil penalty for a violation of this part of not more than ten thousand dollars ($10,000). For purposes of this section, each unmarked or improperly marked article constitutes a separate violation of this part. | |
158 | Ten. Code Ann. 47-18-1807 Civil actions — Damages, Declaratory Actions, Costs. | (a) Any person who manufactures, assembles or packages articles containing food who has suffered or will suffer an ascertainable loss as a result of a violation of this part may commence a civil action against any manufacturer who is alleged to have violated or to be in violation of this part. (b) The action may be brought in a court of competent jurisdiction in the county where any alleged sale took place, is taking place, or is about to take place, or in the county in which the alleged violator resides, has its principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found. (c) If the court finds that the violation was a willful or knowing violation, the court shall award three (3) times the actual damages sustained and provide such other relief as it considers necessary and proper. (d) A person commencing a civil action under this section shall serve a copy of the action on the director. In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding. (e) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the part or practice violates this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed or shall not be continued if the director has commenced or intervened in a proceeding pursuant to § 47-18-1805. (f) The court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation (including reasonable attorney fees) to the prevailing party. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Tennessee Rules of Civil Procedure. | |
159 | Ten. Code Ann. 47-18-1808 Statute of limitations. | Any action commenced pursuant to this part shall be brought within one (1) year from discovery of the alleged sale of an improperly marked article. | |
160 | Ten. Code Ann. 47-18-1809 Construction with federal law. | (a) This part shall be construed in accordance with 19 U.S.C § 1304 and the regulations promulgated and rulings and decisions made thereunder. (b) Nothing in this part shall alter or amend the applicability to a wholesale or retail grocer of 19 U.S.C. § 1304 and any regulations promulgated thereunder. | |
161 | Ten. Code Ann. 47-18-1901 Minimum service periods -- Disclosure required. | In any circumstance in which a written contract for a wireless telecommunications device and service is required by the provider thereof, such contract shall have a separate acknowledgment, either by a separate signature line or by initialing, of any minimum service period. | |
162 | Ten. Code Ann. 47-18-1902 Penalties. | The penalties provided in part 1 of this chapter shall be applicable to a violation of this part. | |
163 | Ten. Code Ann. 47-18-1903 Applicability to regulated utilities. | This part shall not apply to any device or service sold, leased, or offered for sale or lease by any telephone cooperative or by any public utility that is subject to the jurisdiction of, or to regulation by, the Tennessee regulatory authority. | |
164 | Ten. Code Ann. 47-18-1904 Applicability to personal, family and household uses. | The remedies provided under this chapter with respect to a violation of this part shall be available with respect to goods or services purchased by an individual primarily for personal, family or household use or purposes. | |
165 | Ten. Code Ann. 47-18-1905 Applicability to contracts executed after effective date. | This part shall apply to contracts executed after January 1, 1998, and shall not apply to contracts executed prior to that date. | |
166 | Ten. Code Ann. 47-18-2001 Short title. | This part shall be known and may be cited as the “Tennessee Minimum Cigarette Pack Size Act of 1999.” | |
167 | Ten. Code Ann. 47-18-2002 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Cigarette retailer” means each and every cigarette vending machine, place, store, booth, concession, truck, vehicle or person that in any way sells or makes available cigarettes or cigarette products directly or indirectly to the ultimate consumer; and (2)(A) “Tobacco product manufacturer” means an entity that, after May 4, 1999, directly (and not exclusively through any affiliate): (i) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer as that term is defined in the master settlement agreement) that will be responsible for the payments under the master settlement agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the master settlement agreement and that pays the taxes specified in subsection II(z) of the master settlement agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States; (ii) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or (iii) Becomes a successor of an entity described in subdivision (2)(A)(i) or (2)(A)(ii); and (B) “Tobacco product manufacturer” does not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subdivision (2)(A)(i), (2)(A)(ii) or (2)(A)(iii). | |
168 | Ten. Code Ann. 47-18-2003 Minimum package contents. | No tobacco product manufacturer or cigarette retailer may directly or indirectly, manufacture, sell or distribute in Tennessee any pack or other container of cigarettes containing fewer than twenty (20) cigarettes or, in the case of roll-your-own tobacco, any package of roll-your-own tobacco, containing less than zero point six zero (0.60) ounces of tobacco. | |
169 | Ten. Code Ann. 47-18-2004 Purpose -- Liberal construction. | (a) The purpose of this part is to prevent tobacco manufacturers or retailers from manufacturing, selling or distributing cigarettes in packs or containers containing fewer than twenty (20) cigarettes. This measure is designed to deter minors from smoking cigarettes. (b) This part shall be liberally construed to promote such purpose. | |
170 | Ten. Code Ann. 47-18-2005 Violation of Consumer Protection Act. | Any violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct, trade or commerce and subject to all sanctions, penalties and remedies provided in that act, including attorneys' fees and costs. | |
171 | Ten. Code Ann. 47-18-2006 Institution of proceedings — Costs of actions. | (a) The attorney general and reporter may bring any appropriate action or proceeding in any court of competent jurisdiction pursuant to this part against any cigarette manufacturer or cigarette retailer to seek redress, including injunctive relief, for violations of this part. (b) No costs shall be taxed against the attorney general and reporter or the state in actions commenced under this part. | |
172 | Ten. Code Ann. 47-18-2101 Short title. | This part shall be known and may be cited as the “Tennessee Identity Theft Deterrence Act of 1999.” | |
173 | Ten. Code Ann. 47-18-2102 Definitions. | As used in this part and in the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter, unless the context otherwise requires: (1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist; (2) “Attorney general” means the office of the Tennessee attorney general and reporter; (3) “Consumer report” has the meaning ascribed to that term by 15 U.S.C. § 1681a(d); (4) “Consumer reporting agency” has the meaning ascribed to that term by 15 U.S.C. § 1681a(f); (5) “Division” means the division of consumer affairs of the department of commerce and insurance; (6) “Financial document” means any credit card, debit card, check or checking account information or number, savings deposit slip or savings account information or number, or similar financial account or account number, including but not limited to, a money market account, certificate of deposit, or other type of interest generating account with a bank, savings and loan or credit union account, or any other financial institution, mutual fund account, 401K account, individual retirement account, retirement account, or other stock account information, savings bond or other bond, credit line, equity line or other line of credit which the possessor of the account has the right to draw against; (7) “Identification documents” means any card, certificate or document which identifies or purports to identify the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be a driver license, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services; (8) “Identity theft” means: (A) Obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one (1) or more identification documents or personal identification numbers of another person; or (B) Otherwise obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one (1) or more financial documents of another person; (9) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized; (10) “Personal identification number” means any number that is assigned by the government to identify a particular person, including, but not limited to, social security number, federal tax payer identification number, Medicaid, Medicare or TennCare number which identifies a particular person eligible for benefits, any number assigned to a person as part of a licensure or registration process, such as a board of professional responsibility number, driver license number and passport number and any number assigned by an insurance company, health maintenance organization, managed care organization or other health benefit organization, for the purposes of identifying a particular person eligible for services; and (11) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, as amended, compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act of 1977. Without limiting the scope of this definition, related statutes include, but are not limited to: § 47-18-120; part 3 of this chapter; part 5 of this chapter; Home Solicitations Sales Act of 1974, compiled in part 7 of this chapter; Tennessee Credit Services Businesses Act, compiled in part 10 of this chapter; Consumer Telemarketing Protection Act of 1990, compiled in part 15 of this chapter; Unsolicited Telefacsimile Advertising Act; Tennessee Employment Agency Act, compiled in part 17 of this chapter; and Membership Camping Act, compiled in title 66, chapter 32, part 3. | |
174 | Ten. Code Ann. 47-18-2103 Prohibited practices. | It is unlawful for any person to directly or indirectly: (1) Engage in identity theft; or (2) Engage in any unfair, deceptive, misleading act or practice for the purpose of directly or indirectly engaging in identity theft. | |
175 | Ten. Code Ann. 47-18-2104 Private rights of action. | (a) Any party commencing a private action pursuant to this part must provide a copy of the complaint and all other initial pleadings to the division of consumer affairs and upon entry of any judgment, order or decree of the action, shall mail a copy of such judgment, order or decree to the division of consumer affairs within five (5) days of entry of the judgment, order or decree. (b) A copy of any notice of appeal shall be served by the appellant upon the director of the division, who in the public interest may intervene. (c) A private action to enforce any liability created under this part may be brought within two (2) years from the date the liability arises, except that where a defendant has concealed the liability to that person, under this part, the action may be brought within two (2) years after discovery by the person of the liability. No action brought by the division shall be subject to the limitation of actions contained herein. (d) In any private action commenced under this part, if the private party establishes that identity theft was engaged in willfully or knowingly, the court may award three (3) times the actual damages and may provide such other relief as it considers necessary and proper. (e) The action may be brought in a court of competent jurisdiction in the county where the identity theft or unfair, deceptive or misleading act or practice took place, is taking place, or is about to take place, or in the county in which such person resides, has such person's principal place of business, conducts, transacts, or has transacted business, or, if the person cannot be found in any of the foregoing locations, in the county in which such person can be found. (f) Without regard to any other remedy or relief to which a person is entitled, anyone affected by a violation of this part may bring an action to obtain a declaratory judgment that the act or practice violates this part and to enjoin the person who has violated, is violating, or who is otherwise likely to violate this part; provided, that such action shall not be filed once the division has commenced a proceeding pursuant to this part or the Tennessee Consumer Protection Act. (g) Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorneys' fees and costs. | |
176 | Ten. Code Ann. 47-18-2105 Civil penalties and remedies. | (a) Whenever the division has reason to believe that any person has engaged in, is engaging in, or based upon information received from another law enforcement agency, is about to engage in any act or practice declared unlawful by this part and that proceedings would be in the public interest, the attorney general and reporter, at the request of the division, may bring an action in the name of the state against such person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such act or practice. Additionally, the state may request an asset freeze or any other appropriate and necessary orders against such person. (b) The action may be brought in the chancery or circuit court in Davidson County or in a court of competent jurisdiction where the alleged violation of this part, identity theft, unfair, misleading or deceptive act or practice took place or is about to take place or in the county in which the person resides, has the person's principal place of business, conducts, transacts or has transacted business or, if the person cannot be found, in any of the locations listed in this subsection (b), in the county in which the person can be found. (c) The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part or issue any other necessary or appropriate relief or orders. Such orders and injunctions shall be issued without bond to the state of Tennessee. (d) Notwithstanding any other law, a violation of this part shall be punishable by a civil penalty of whichever of the following is greater: ten thousand dollars ($10,000), five thousand dollars ($5,000) per day for each day that a person's identity has been assumed or ten (10) times the amount obtained or attempted to be obtained by the person using the identity theft. This civil penalty is supplemental, cumulative and in addition to any other penalties and relief available under the Tennessee Consumer Protection Act, or other laws, regulations or rules. (e) In any successful action commenced under this part, any ascertainable loss that a person has incurred as a result of a violation of this part, including, but not limited to, the identity theft or misleading, deceptive or unfair practices used to engage in violations of this part shall be recovered as restitution for each such person. The person shall also be awarded statutory interest on that ascertainable loss. (f) In any successful action commenced by the division under this part, the court shall also order reimbursement to the division of the reasonable attorneys' fees, costs and expenses of the investigation and prosecution under this part. (g) No court costs, litigation costs, discretionary costs or attorneys' fees shall be taxed or awarded against the state in an action commenced under this part or under the Tennessee Consumer Protection Act. (h) Any knowing or willful violation of the terms of an injunction or order issued pursuant to this part in an action commenced by the attorney general and reporter shall be punishable by a civil penalty of not more than five thousand dollars ($5,000) for each and every violation of the order recoverable by the state, in addition to any other appropriate relief, including, but not limited to, contempt sanctions and the awarding of attorneys' fees and costs to the state for any filings relating to violations of any order under this part. (i) An order or judgment issued as a result of an action commenced by the division shall in no way affect individual rights of action which may exist independent of the recovery of money or property received under such order or judgment. If a particular person receives restitution as a result of an action commenced by the attorney general and reporter, those funds shall act only as a set-off against any award of money received in the person's private right of action proceedings. | |
177 | Ten. Code Ann. 47-18-2106 Violation of Tennessee Consumer Protection Act. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act. (b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in that act, in addition to the penalties and remedies set forth in this part. (c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter. | |
178 | Ten. Code Ann. 47-18-2107 Release of personal consumer information. | (a) As used in this section, unless the context otherwise requires: (1) “Breach of the security of the system” means unauthorized acquisition of unencrypted computerized data that materially compromises the security, confidentiality, or integrity of personal information maintained by the information holder. Good faith acquisition of personal information by an employee or agent of the information holder for the purposes of the information holder is not a breach of the security of the system; provided, that the personal information is not used or subject to further unauthorized disclosure; (2) “Information holder” means any person or business that conducts business in this state, or any agency of the state of Tennessee or any of its political subdivisions, that owns or licenses computerized data that includes personal information; and (3)(A) “Personal information” means an individual's first name or first initial and last name, in combination with any one (1) or more of the following data elements, when either the name or the data elements are not encrypted: (i) Social security number; (ii) Driver license number; or (iii) Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account; and (B) “Personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records. (b) Any information holder shall disclose any breach of the security of the system, following discovery or notification of the breach in the security of the data, to any resident of Tennessee whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in subsection (d), or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system. (c) Any information holder that maintains computerized data that includes personal information that the information holder does not own shall notify the owner or licensee of the information of any breach of the security of the data immediately following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person. (d) The notification required by this section may be delayed, if a law enforcement agency determines that the notification will impede a criminal investigation. The notification required by this section shall be made after the law enforcement agency determines that it will not compromise the investigation. (e) For purposes of this section, notice may be provided by one (1) of the following methods: (1) Written notice; (2) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. § 7001; or (3) Substitute notice, if the information holder demonstrates that the cost of providing notice would exceed two hundred fifty thousand dollars ($250,000), or that the affected class of subject persons to be notified exceeds five hundred thousand (500,000), or the information holder does not have sufficient contact information. Substitute notice shall consist of all of the following: (A) E-mail notice, when the information holder has an e-mail address for the subject persons; (B) Conspicuous posting of the notice on the information holder's Internet web site page, if the information holder maintains such web site page; and (C) Notification to major statewide media. (f) Notwithstanding subsection (e), an information holder that maintains its own notification procedures as part of an information security policy for the treatment of personal information, and is otherwise consistent with the timing requirements of this section, shall be deemed to be in compliance with the notification requirements of this section, if it notifies subject persons in accordance with its policies in the event of a breach of security of the system. (g) In the event that a person discovers circumstances requiring notification pursuant to this section of more than one thousand (1,000) persons at one time, the person shall also notify, without unreasonable delay, all consumer reporting agencies and credit bureaus that compile and maintain files on consumers on a nationwide basis, as defined by 15 U.S.C. § 1681a, of the timing, distribution and content of the notices. (h) Any customer of an information holder who is a person or business entity, but who is not an agency of the state or any political subdivision of the state, and who is injured by a violation of this section, may institute a civil action to recover damages and to enjoin the person or business entity from further action in violation of this section. The rights and remedies available under this section are cumulative to each other and to any other rights and remedies available under law. (i) This section shall not apply to any person who is subject to Title V of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102.1 | |
179 | Ten. Code Ann. 47-18-2108 Security freeze at the request of the consumer. | (a) A Tennessee consumer may place a security freeze on the consumer report of the Tennessee consumer by making a request in writing by certified mail. Beginning on January 31, 2009, a credit reporting agency shall make available an electronic method for requesting a security freeze. A security freeze shall prohibit the consumer reporting agency from releasing the requesting party's consumer report or credit score relating to the extension of credit without the express authorization of the Tennessee consumer. Nothing in this section shall prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to a particular consumer report. (b) A consumer reporting agency shall place a security freeze on a consumer report no later than three (3) business days after receiving the written or electronic request from the Tennessee consumer. (c) The consumer reporting agency shall send a written confirmation of the security freeze to the Tennessee consumer within ten (10) business days of placing the security freeze on the consumer report, and shall provide the Tennessee consumer with a unique personal identification number or password, other than the Tennessee consumer's federal social security number, to be used by the Tennessee consumer when providing authorization for the release of the consumer report for a specific period of time or for permanently removing the security freeze. (d) If the Tennessee consumer wishes to allow the consumer report to be accessed for a specific period of time while a freeze is in place, the Tennessee consumer shall contact the consumer reporting agency, request that the freeze be temporarily lifted, and provide the following: (1) Proper identification; (2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section; and (3) The information requested by the consumer reporting agency about the period for which the consumer report is to be available. (e) A consumer reporting agency shall develop procedures involving the use of telephone, the Internet, or other electronic method to receive and process a request from a Tennessee consumer to temporarily lift a freeze on a credit report pursuant to this section in an expedited manner. A consumer reporting agency may develop procedures involving the use of facsimile for this purpose. (f) A consumer reporting agency shall comply with a request to temporarily lift a freeze previously placed on a consumer report no later than fifteen (15) minutes after receiving the request through an electronic contact method in accordance with this section and the request is received between six o’clock a.m. (6:00 a.m.) and nine-thirty p.m. (9:30 p.m.), seven (7) days per week, eastern or central standard or daylight time as applicable to the consumer. In requesting a temporary removal of the security freeze, a Tennessee consumer shall provide both of the following: (1) Proper identification; and (2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section. (g) A consumer reporting agency is not required to temporarily lift a security freeze within the time provided in subsection (f) if: (1) The consumer fails to meet the requirements of subsection (d); or (2) The consumer reporting agency's ability to temporarily lift the security freeze within fifteen (15) minutes is prevented by: (A) An act of God, including fire, earthquakes, hurricanes, storms, or similar natural disaster or phenomenon; (B) Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations, or similar occurrence; (C) Operational interruption including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failures inhibiting response time, or similar disruption; (D) Governmental action, including emergency orders or regulations, judicial or law enforcement action, or similar directives; (E) Regularly scheduled maintenance, during other than normal business hours, of, or updates to, the consumer reporting agency's systems; or (F) Commercially reasonable maintenance of or repair to, the consumer reporting agency's systems that is unexpected or unscheduled. (h) If a third party requests access to a consumer report on which a security freeze is in effect and the Tennessee consumer does not allow the third party access to the consumer report, the third party may treat any applicable credit application made by the consumer as incomplete. (i) If a Tennessee consumer requests a security freeze pursuant to this section, the consumer reporting agency shall disclose to the Tennessee consumer the process of placing and temporarily lifting a security freeze and the process for allowing access to information from the consumer report for a specific period of time while the security freeze is in place. (j) Except as provided in subsections (d), (e), and (f), a security freeze shall remain in place until the Tennessee consumer requests that the security freeze be removed permanently. A consumer reporting agency shall permanently remove a security freeze no later than two (2) business days from the receipt of a request by the agency when a Tennessee consumer makes the request by means involving the use of telephone, the Internet, or other electronic media as provided by the consumer reporting agency. In making the request, the Tennessee consumer shall provide both of the following: (1) Proper identification; and (2) The unique personal identification number or password provided by the consumer reporting agency to the Tennessee consumer pursuant to this section. (k) If a security freeze is in place, a consumer credit reporting agency shall not change any of the following official information in a consumer credit report without sending a written confirmation of the change to the consumer not later than thirty (30) days of the change being posted to the consumer's file: name, date of birth, social security number, and address. Written confirmation is not required for technical modifications of a consumer's official information, including name and street abbreviations, complete spellings or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and to the former address. (l) A consumer reporting agency may charge a Tennessee consumer a reasonable fee, not to exceed seven dollars and fifty cents ($7.50), for the placement of a security freeze. A consumer reporting agency may not charge a Tennessee consumer to temporarily lift a security freeze. A consumer reporting agency may charge a consumer a reasonable fee, not to exceed five dollars ($5.00), to permanently remove a security freeze, or to replace a personal identification number or password. A consumer reporting agency may not charge a Tennessee consumer to place or permanently remove a security freeze if that Tennessee consumer is a victim of identity theft as defined in § 47-18-2102 or other Tennessee law or federal law regarding identity theft and presents to the consumer reporting agency, at the time the request is made, a police report or other official document acceptable to the consumer reporting agency detailing the theft. Beginning on January 1, 2010, and on January 1 of each subsequent year, a consumer reporting agency may increase the fees set forth in this section based proportionally on changes to the consumer price index of all urban consumers, as determined by the United States department of labor, with fractional changes rounded to the nearest twenty-five cents (25¢). (m) This section, including the security freeze, does not apply to the use of a consumer report by the following: (1) A person, or that person's subsidiary, affiliate, agent or assignee, if the Tennessee consumer has an account, contract, or debtor-creditor relationship with that person, for the purposes of reviewing the account, collecting the financial obligation of the consumer, fraud control or extending additional credit to the Tennessee consumer. For purposes of this subdivision (m)(1), “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements; (2) A subsidiary, affiliate, agent or assignee of a party or parties for whom a security freeze has been temporarily lifted pursuant to this section for the purpose of facilitating the extension of credit or other permissible use; (3) Any person, including, but not limited to, a law enforcement entity, collections officer or private collection agency, acting pursuant to a court order, warrant or subpoena authorizing the use of the consumer report, or acting pursuant to a civil investigative demand or request for consumer protection information; (4) Any department or division of the state that is acting to investigate a child support case, medicaid or TennCare fraud, delinquent taxes or assessments, unpaid court orders or settlements of any sort or type, or to fulfill any of their statutory or other duties; (5) For the purposes of prescreening as provided by the federal Fair Credit Reporting Act, codified in 15 U.S.C. § 1681; (6) Any person for the purpose of providing a credit file monitoring subscription service to which the Tennessee consumer has subscribed; (7) A consumer reporting agency for the sole purpose of providing a Tennessee consumer with a copy of the consumer report upon the Tennessee consumer's request; (8) Any person or entity for the purpose of setting or adjusting a rate, adjusting a claim, or underwriting for insurance purposes; (9) A pension plan acting to determine the Tennessee consumer's eligibility for plan benefits or payments authorized by law or to investigate fraud; (10) Any law enforcement entity or its agent acting to investigate a crime or civil law violation, conduct a criminal background check, conduct a presentence investigation in a criminal matter or use the information for supervision of a paroled offender; (11) A licensed hospital with which the Tennessee consumer has or had a contract or a debtor-creditor relationship for the purpose of reviewing the account or collecting the financial obligation owing for the contract, account, or debt; or (12) An attorney at law duly licensed in Tennessee representing any person, subsidiary, affiliate, agent, assignee, department, division, or other entity to whom this section does not apply. (n) The following entities are not subject to the requirements of this section; provided, however, that each such entity shall be subject to any security freeze placed on a consumer report by a consumer reporting agency from which it obtains information: (1) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer credit reporting agencies, and does not maintain a permanent data base of credit information from which new consumer credit reports are produced; however, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer credit report by another consumer reporting agency; (2) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payments; (3) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse, or similar negative information regarding a Tennessee consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution; and (4) A consumer reporting agency's database or file that consists of information concerning, and used for, one (1) or more of the following: criminal record information, fraud prevention or detection, personal loss history information, and employment, tenant, or individual background screening. (o) Exclusive of all other private and nongovernmental remedies that may be imposed, any person who fails to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of: (1)(A) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure, or damages of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law; or (B) In the case of liability of a natural person for obtaining a consumer report under false pretenses without a permissible purpose, ascertainable losses sustained by the consumer as a result of the failure or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law; (2) An amount of punitive damages that the court may allow in a private right of action or other nongovernmental action; and (3) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court. (p) Any person who obtains a consumer report, requests a security freeze, requests the temporary lift of a freeze, or the removal of a security freeze from a consumer reporting agency under false pretenses or in an attempt to violate federal or state law shall be liable to the consumer reporting agency for ascertainable losses sustained by the consumer reporting agency or one thousand dollars ($1,000), whichever is greater, in addition to any other governmental remedies available at law. (q) In addition to any other governmental remedies available at law, any person who is negligent in failing to comply with any requirement imposed under this section with respect to any Tennessee consumer is liable to that Tennessee consumer in an amount equal to the sum of: (1) Any ascertainable losses sustained by the Tennessee consumer as a result of the failure; and (2) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court. (r) Upon a finding by the court that an unsuccessful, nongovernmental pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorneys' fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper. (s) Notwithstanding any other provision of this section, the sole power to enforce violations of subsection (f) shall be with the attorney general and reporter. | |
180 | Ten. Code Ann. 47-18-2109 Notice to consumer regarding security freeze. | At any time that a Tennessee consumer is required to receive a summary of rights required by 15 U.S.C. § 1681g(d) of the federal Fair Credit Reporting Act, the Tennessee consumer shall also be provided with the following prominent, clear and conspicuous notice in at least twelve (12) point type: TENNESSEE CONSUMERS HAVE THE RIGHT TO OBTAIN A SECURITY FREEZE You have a right to place a “security freeze” on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified mail or by electronic means as provided by a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. If you are actively seeking a new credit, loan, utility, or telephone account, you should understand that the procedures involved in lifting a security freeze may slow your applications for credit. You should plan ahead and lift a freeze in advance of actually applying for new credit. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place. To provide that authorization you must contact the consumer reporting agency and provide all of the following: (1) The personal identification number or password; (2) Proper identification to verify your identity; and (3) The proper information regarding the period of time for which the report shall be available. A consumer reporting agency must authorize the release of your credit report no later than fifteen (15) minutes after receiving the above information. A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account, that requests information in your credit report for the purposes of fraud control, or reviewing or collecting the account. Reviewing the account includes activities related to account maintenance. You should consider filing a complaint regarding your identity theft situation with the federal trade commission and the Tennessee department of commerce and insurance, division of consumer affairs, either in writing or via their web sites. You have a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, misuses file data, or fails to correct inaccurate file data. Unless you are a victim of identity theft with a police report, or other official document acceptable to a consumer reporting agency to verify the crimes, a consumer reporting agency has the right to charge you up to seven dollars and fifty cents ($7.50) to place a freeze on your credit report, but may not charge you to temporarily lift a freeze on your credit report. A consumer reporting agency may charge a consumer a reasonable fee not to exceed five dollars ($5.00) to permanently remove a security freeze, or to replace a personal identification number or password. A consumer reporting agency may increase these fees annually based on changes to a common measure of consumer prices. A consumer reporting agency may not charge a Tennessee consumer to place or permanently remove a security freeze if that Tennessee consumer is a victim of identity theft as defined in Tennessee law or federal law regarding identity theft and presents to the consumer reporting agency, at the time the request is made, a police report or other official document acceptable to the consumer reporting agency detailing the theft. | |
181 | Ten. Code Ann. 47-18-2110 Protecting social security numbers from disclosure. |
(a) On and after January 1, 2008, any person, nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, that has obtained a federal social security number for a legitimate business or governmental purpose shall make reasonable efforts to protect that social security number from disclosure to the public. Social security numbers shall not: (1) Be posted or displayed in public; (2) Be required to be transmitted over the Internet, unless the Internet connection used is secure or the social security number is encrypted; (3) Be required to log onto or access an Internet web site, unless used in combination with a password or other authentication device; (4) Be printed on any materials mailed to a consumer, unless the disclosure is required by law, or the document is a form or application; or (5) Be printed on any check, card, identification, or badge that the consumer must display or present in order to receive a benefit, good, service or other thing of value to which the consumer is entitled based upon the consumer's contract or other agreement with the entity issuing the check, card, identification, or badge. (b) The requirements established pursuant to subsection (a) shall not apply: (1) To the disclosure of a federal social security number by an entity so long as the disclosure is for a legitimate business or governmental purpose and occurs pursuant to the terms of a business or governmental contract or other lawful legal obligation; or (2) If the: (A) Person gives permission, in writing; (B) Disclosure is authorized or required under state or federal law; or (C) Disclosure is made: (i) To a consumer reporting agency as defined by the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.); (ii) To a financial institution subject to the privacy provisions of the federal Gramm-Leach-Bliley Act (15 U.S.C. § 6802); or (iii) To a financial institution subject to the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 (31 U.S.C. § 5311 et seq.). (c) On and after January 1, 2009, a violation of subsection (a) is a Class B misdemeanor. Each violation of subsection (a) shall constitute a separate offense. (d) In addition to the criminal offense created pursuant to subsections (a) and (b), on and after January 1, 2009, it is also a civil violation of this part, subject to the penalty provided in this part, for any person, any nonprofit or for profit business entity in this state, including, but not limited to, any sole proprietorship, partnership, limited liability company, or corporation, engaged in any business, including, but not limited to, health care, to violate any of the prohibitions of subsection (a). (e) Any state agency or nonprofit or for profit business entity engaged in the provision of health care services under Title XIX, including determining eligibility for Title XIX services, shall be exempted from the requirements of subsections (a) and (b). | |
182 | Ten. Code Ann. 47-18-2111. Protected consumer security freeze. | (a) As used in this section:
(1) "Protected consumer" means: (A) An individual who is under sixteen (16) years of age at the time a request for the placement of a security freeze under this section is made; or (B) An incapacitated person for whom a guardian or conservator has been appointed pursuant to title 34; (2) "Protected consumer security freeze" means: (A) If a consumer reporting agency does not have a consumer report pertaining to the protected consumer, a restriction that: (i) Is placed on the protected consumer's record in accordance with this section; and (ii) Prohibits the consumer reporting agency from releasing the protected consumer's record except as provided in this section; or (B) If a consumer reporting agency has a consumer report pertaining to the protected consumer, a restriction that: (i) Is placed on the protected consumer's consumer report in accordance with this section; and (ii) Prohibits the consumer reporting agency from releasing the protected consumer's consumer report or any information derived from the protected consumer's consumer report except as provided in this section; (3) "Record" means a compilation of information that: (A) Identifies a protected consumer; (B) Is created by a consumer reporting agency solely for the purpose of complying with this section; and (C) Shall not be created or used to consider the protected consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living; (4) "Representative" means a person who provides to a consumer reporting agency sufficient proof of authority to act on behalf of a protected consumer; (5) "Sufficient proof of authority": (A) Means documentation that shows a representative has authority to act on behalf of a protected consumer; and (B) Includes: (i) An order issued by a court of law; (ii) A lawfully executed and valid power of attorney; and (iii) A written, notarized statement signed by a representative that expressly describes the authority of the representative to act on behalf of a protected consumer; and (6) "Sufficient proof of identification": (A) Means information or documentation that identifies a protected consumer or the protected consumer's representative; and (B) Includes: (i) A social security number or a copy of a social security card issued by the social security administration; (ii) A certified or official copy of a certificate of birth issued by the entity authorized to issue the certificate of birth pursuant to title 68, chapter 3, part 3; (iii) A copy of a valid driver license or any other government-issued identification; or (iv) A copy of a bill, including a bill for telephone, sewer, septic tank, water, electric, oil, or natural gas services, that shows a name and home address. (b) This section does not apply to: (1) A person administering a consumer report monitoring subscription service to which: (A) The protected consumer has subscribed; or (B) The protected consumer's representative has subscribed on behalf of the protected consumer; (2) A person providing the protected consumer or the protected consumer's representative with a copy of the protected consumer's consumer report on request of the protected consumer or the protected consumer's representative; (3) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer reporting agencies, and does not maintain a permanent database of credit information from which new consumer credit reports are produced; provided, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer credit report by another consumer reporting agency; (4) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payments; (5) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, automatic teller machine 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; or (6) A consumer reporting agency database or file that consists entirely of consumer information concerning, and used solely for: (A) Criminal record information; (B) Personal loss history information; (C) Fraud prevention or detection; (D) Employment screening; or (E) Tenant screening. (c) A consumer reporting agency shall place a protected consumer security freeze for a protected consumer if: (1) The consumer reporting agency receives a request from the protected consumer's representative for the placement of the security freeze under this section; and (2) The protected consumer's representative: (A) Submits the request to the consumer reporting agency at the address or other point of contact and in the manner specified by the consumer reporting agency; (B) Provides to the consumer reporting agency sufficient proof of identification of the protected consumer and the representative; (C) Provides to the consumer reporting agency sufficient proof of authority to act on behalf of the protected consumer; and (D) Pays to the consumer reporting agency a fee as provided in subsection (j). (d) If a consumer reporting agency does not have a consumer report pertaining to a protected consumer when the consumer reporting agency receives a request under subdivision (c)(2), the consumer reporting agency shall create a record for the protected consumer. (e) Within thirty (30) days after receiving a request that meets the requirements of subdivision (c)(2), a consumer reporting agency shall place a protected consumer security freeze. (f) Unless a protected consumer security freeze is removed in accordance with subsection (h) or (k), a consumer reporting agency shall not release the protected consumer's consumer report, any information derived from the protected consumer's consumer report, or any record created for the protected consumer. (g) A protected consumer security freeze placed under subsection (e) shall remain in effect until: (1) The protected consumer or the representative requests the consumer reporting agency to remove the protected consumer security freeze in accordance with subsection (h); or (2) The protected consumer security freeze is removed in accordance with subsection (k). (h) If a protected consumer or the representative wishes to remove a protected consumer security freeze, the protected consumer or the representative shall: (1) Submit a request for the removal of the protected consumer security freeze to the consumer reporting agency at the address or other point of contact and in the manner specified by the consumer reporting agency; (2) Provide to the consumer reporting agency: (A) In the case of a request by the protected consumer: (i) Proof that the sufficient proof of authority for the representative to act on behalf of the protected consumer is no longer valid; and (ii) Sufficient proof of identification of the protected consumer; or (B) In the case of a request by the representative: (i) Sufficient proof of identification of the protected consumer and the representative; and (ii) Sufficient proof of authority to act on behalf of the protected consumer; and (3) Pay to the consumer reporting agency a fee as provided in subsection (j). (i) Within thirty (30) days after receiving a request that meets the requirements of subsection (h), the consumer reporting agency shall remove the protected consumer security freeze. (j) (1) Except as provided in subdivision (j)(2), a consumer reporting agency shall not charge any fee for any service performed under this section. (2) A consumer reporting agency may charge a reasonable fee, not exceeding ten dollars ($10.00), for each placement or removal of a protected consumer security freeze. (3) Notwithstanding subdivision (j)(2), a consumer reporting agency shall not charge any fee under this section if: (A) The protected consumer's representative: (i) Has obtained a police report of alleged identity fraud as described in § 39-14-150, and the protected consumer is the alleged victim; and (ii) Provides a copy of the police report to the consumer reporting agency; or (B) A request for the placement or removal of a protected consumer security freeze is for a protected consumer who is under sixteen (16) years of age at the time of the request and the consumer reporting agency has a consumer report pertaining to the protected consumer. (k) A consumer reporting agency may remove a protected consumer security freeze or delete a record of a protected consumer if the protected consumer security freeze was placed, or the record was created, based on a material misrepresentation of fact by the protected consumer or the representative. (l) If a consumer reporting agency negligently violates subsection (f) by releasing credit information that has been placed under a protected consumer security freeze, the affected protected consumer and representative shall be entitled to all remedies set out in § 47-18-2108 in addition to any other remedies provided for by law. (m) The division shall prepare a notice for the office of vital records to distribute on and after January 1, 2016, pursuant to § 68-3-314, that explains: (1) How to request a consumer reporting agency to place a security freeze on a report or record relating to an individual who is under sixteen (16) years of age; and (2) The benefits of having a security freeze on a credit report or record relating to an individual who is under sixteen (16) years of age. (n) With regard to security freezes as described in this section, this section supersedes § 47-18-2108. | |
183 | Ten. Code Ann. 47-18-2201 Short title. | This part shall be known and may be cited as the “Video Consumer Privacy Act.” | |
184 | Ten. Code Ann. 47-18-2202 Legislative findings and intent. | (a) The general assembly finds and declares that the viewing of rented video tapes and movies in the home is a popular and widespread leisure pastime. Innumerable retail establishments in this state commonly record, often by computer, data containing the identities of consumers who have rented video tapes and movies and the titles of the videos rented. (b) It is the intent of the general assembly by enactment of this part to protect the personal privacy of individuals and their families who rent video cassette tapes and movies and similar audio visual materials, without unreasonably restricting the ability of video tape service providers to collect and use information as is necessary to conducting their business. | |
185 | Ten. Code Ann. 47-18-2203 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Consumer” means any renter, purchaser, or subscriber of goods or services from a video tape service provider or video tape seller; (2) “Informed, written consent of the consumer” means that the video tape service provider, prior to furnishing any video tape services, shall offer the consumer an opportunity to elect not to have personally identifiable information disclosed. Such notice shall be in writing in at least ten point (10 pt.) bold face type, affixed to any membership, subscriber or rental agreement between the consumer and the video tape service provider, and shall be posted on a sign in full and clear view of the consumer at the point of rental transaction, and shall read as follows: “This video tape service provider from time to time provides to marketers of goods and services, the names and addresses of customers and a description or subject matter of materials rented by video customers. You have the right to elect not to have your name, address or the description or subject matter of any material rented included in such description or subject matter of any material rented included in such lists. This election may be changed by you, in writing, at any time.”; (3) “Ordinary course of business” means only debt collection activities, order fulfillment, request processing, and the transfer of ownership; (4) “Personally identifiable information” means any information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider or video tape seller; (5) “Video tape seller” means any person engaged in the business of selling prerecorded video cassette tapes or similar audio visual materials; and (6) “Video tape service provider” means any person engaged in the business of rental of prerecorded video cassette tapes or similar audio visual materials. | |
186 | Ten. Code Ann. 47-18-2204 Disclosure by seller or service provider of personally identifiable information concerning consumers. | (a) A video tape seller or service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in § 47-18-2205. (b)(1) A video tape seller or service provider shall disclose personally identifiable information concerning any consumer: (A) To a grand jury pursuant to a grand jury subpoena; (B) Pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, or in a criminal proceeding upon a showing of legitimate need for the information that cannot be accommodated by any other means, if: (i) The consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; (ii) The consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure; and (iii) The court imposes appropriate safeguards against unauthorized disclosure; (C) To a law enforcement agency pursuant to a warrant lawfully obtained under the laws of this state or the United States; or (D) To a court pursuant to a civil action commenced by the video tape seller or service provider or to enforce collection of fines for overdue or unreturned video tapes, and then only to the extent necessary to establish the fact of the rental. Notwithstanding the foregoing, a court shall impose appropriate safeguards against unauthorized disclosure. (2) In addition, if the consumer is a minor under eighteen (18) years of age, a video tape seller or service provider shall disclose to the minor's parent or legal guardian personally identifiable information concerning the minor upon receiving a request from the parent or legal guardian for such information. (c) A video tape service seller or provider may disclose personally identifiable information concerning any consumer to: (1) The consumer; (2) Any person with the informed, written consent of the consumer; or (3) Any person if the disclosure is incidental to the ordinary course of business of the video tape service provider or seller; and (4) Any person if the disclosure is for the exclusive use of marketing goods and services directly to the consumer, and the video tape service seller or provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure. (d) Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the state or any political subdivision thereof. (e) A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one (1) year from the date the information is no longer necessary for the purpose for which it was collected unless a request or order for access to such information under this part is pending. | |
187 | Ten. Code Ann. 47-18-2205 Liability for damages. | Any person found to be in violation of this part shall be liable to the aggrieved consumer for all actual damages sustained by such consumer as a result of the violation. | |
188 | Ten. Code Ann. 47-18-2401 Notice requirements for unsolicited loans. | Unless otherwise agreed, where unsolicited mail that resembles a check is, upon endorsement by the payee, a loan, the payee is under no duty to repay such loan unless such unsolicited mail has upon its face in boldface letters at least one-half inch ( ½ ″) in height the following: | |
189 | Ten. Code Ann. 47-18-2402 Failure to provide notice a defense to collection action. | In any action for the collection of the balance due on an unsolicited loan received by mail that resembles a check, it shall be a complete defense that such unsolicited loan was not actually requested by the defendant and such mail did not have upon its face the language required by § 47-18-2401. | |
190 | Ten. Code Ann. 47-18-2403 Violation of part constituting unfair or deceptive trade practice. | A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. For the purposes of the application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of any trade or commerce and shall be subject to the penalties and remedies as provided in that act. | |
191 | Ten. Code Ann. 47-18-2404 Notices and obligations -- Application -- Damages. | (a)(1) Any solicitation to lend money to a person for the consolidation or payment of other indebtedness which will result in that person's owner-occupied residence becoming collateral or security for the loan or payment of money shall clearly state, in bold face type at least as large as any used in the solicitation otherwise, or by a separate clearly stated written notice, in bold face type at least ten (10) points, the following: (A) Failure to make timely payments or to repay the loan will result in the borrower's home being subject to foreclosure; and (B) Additional information on debt consolidation loans is available from the department of commerce and insurance, division of consumer affairs at 1-800-342-8385. (2) Such solicitation shall, in like manner, state either one (1) of the following, as appropriate: (A) It is the obligation of the lender to make payments to prior lenders; or (B) It is the obligation of the borrower to make payments to prior lenders. (b) This section shall apply to all solicitations, whether made through the mails, in person, by telephone, fax, or electronically, or through any other agency or medium to a resident of the state. If the solicitation is made in person or by telephone, then the person making the solicitation shall clearly express the notices and obligations required to be given under subdivisions (a)(1) and (2). (c) Failure to comply with this section shall subject the lender to damages up to three (3) times the amount of actual damages pursuant to § 47-18-109. (d) The notices and obligations described in subsection (a) shall be clearly expressed in any debt consolidation contract or loan agreement consolidating such loans, in bold face type of at least ten (10) points, in immediate proximity to the space reserved for the signature of the borrower. (e) This section shall not apply to any state or national bank, credit union, savings and loan, or to any subsidiary or affiliate of any such state or national bank, credit union, savings and loan or any person or entity licensed by or subject to regulation by the department of financial institutions. | |
192 | Ten. Code Ann. 47-18-2501 Regulation of unsolicited electronic advertising -- Falsification of electronic mail transmission information prohibited -- Institution of actions and damages. | (a) No person or entity conducting business in this state shall send by e-mail or cause to be e-mailed, documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless that person or entity shall establish a toll-free telephone number or return e-mail address that a recipient of the unsolicited e-mailed documents may call to notify the sender not to e-mail the recipient any further unsolicited documents. (b) Upon notification by a recipient of the recipient's request not to receive any further unsolicited e-mailed documents, no person or entity conducting business in this state shall e-mail or cause to be e-mailed, any unsolicited documents to that recipient. (c) A person or entity sending an unsolicited email shall establish a toll-free telephone number or valid sender operated return e-mail address that the recipient of the unsolicited documents may call or e-mail to notify the sender not to e-mail any further unsolicited documents. (d) If e-mail that consists of unsolicited advertising material for the lease, sale, rental, gift offer or other disposition of any realty, goods, services or extension of credit, the subject line of each and every message shall include “ADV:” as the first four (4) characters. If these messages contain information that consists of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen (18) years of age or older, the subject line of each and every message shall include “ADV:ADLT” as the first eight (8) characters. (e) In the case of unsolicited bulk e-mail, this section shall apply when the unsolicited e-mailed documents are delivered to a Tennessee resident via an electronic mail service provider's service or equipment located in this state. For these purposes, “electronic mail service provider” means any business or organization qualified to do business in this state that provides individuals, corporations, or other entities the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail. (f) It is unlawful for any person to sell, give or otherwise distribute or possess with the intent to sell, give or distribute software which: (1) Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information; (2) Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or (3) Is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information. (g) As used in this section, “e-mail” or “cause to be e-mailed” does not include or refer to the transmission of any documents by the telecommunications utility or Internet service provider to the extent that the telecommunications utility or Internet service provider merely carries that transmission over its network. (h)(1) Any person whose property or person is injured by reason of a violation of any provision of this section may sue therefor and recover for any damages sustained, and the costs of such suit. Without limiting the generality of the term, “damages” includes loss of profits. (2) If the injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day. The injured person shall not have a cause of action against the electronic mail service provider that merely transmitted the unsolicited bulk electronic mail over its computer network. (3) If the injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars ($10.00) for each and every unsolicited bulk electronic mail message transmitted in violation of this section, or five thousand dollars ($5,000) per day. (4) At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party. (5) This subsection (h) shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law. (i) This section shall not be construed to restrict or apply to constitutionally protected communications to and from citizens and their elected representatives. (j) This section, or any part of this section, shall become inoperative on and after the date that federal law is enacted that prohibits or otherwise regulates the transmission of unsolicited advertising by electronic mail (e-mail). | |
193 | Ten. Code Ann. 47-18-2502 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Computer network” means a set of related, remotely connected devices and any communications facilities, including more than one (1) computer with the capability to transmit data among them through the communications facilities; and (2) “Without authority” means a person using the computer network of an electronic mail service provider to transmit unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail. | |
194 | Ten. Code Ann. 47-18-2601 Short title. | This part shall be known and may be cited as the “Structured Settlement Protection Act.” | |
195 | Ten. Code Ann. 47-18-2602 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Annuity insurer” means an insurer that has issued an insurance policy or annuity contract used to fund periodic payments under a structured settlement; (2) “Applicable law” means state or federal statutes of the United States; (3) “Dependents” includes a payee's spouse and minor children and all other family members and other persons for whom the payee is legally obligated to provide support, including alimony; (4) “Discounted present value” means the present value of future payments, as determined by discounting such payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the internal revenue service, and the present value of the payments to be transferred by the payee using the actual discount rate applied to the transfer, stated as an annual percentage rate; (5) “Independent professional advice” means advice of an attorney, certified public accountant, actuary or other licensed professional adviser; (6) “Interested parties” means, with respect to any structured settlement, the payee, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement; (7) “Payee” means an individual who is receiving tax-free damage payments under a structured settlement and proposes to make a transfer of payment rights thereunder; (8) “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of 26 U.S.C. § 130, as amended from time to time; (9) “Responsible administrative authority” means, with respect to a structured settlement, any government authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement; (10) “Settled claim” means the original tort claim; (11) “Structured settlement” means an arrangement for periodic payment of damages for personal injuries established by settlement or judgment in resolution of a tort claim; (12) “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement, including the rights of the payee to receive periodic payments; (13) “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing periodic payment obligation to the payee under a structured settlement agreement or a qualified assignment agreement; (14) “Structured settlement payment rights” means rights to receive periodic payments (including lump sum payments) under a structured settlement, whether from the settlement obligor or the annuity issuer where: (A) The payee is domiciled in this state; (B) The structured settlement agreement was approved by a court or responsible administrative authority in this state; or (C) The structured settlement agreement is governed by the laws of this state; (15) “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or approval of any court or responsible administrative authority or other government authority authorizing or approving such structured settlement; (16) “Transfer” means any sale, assignment, pledge, hypothecation, commutation, advance or other form of alienation or encumbrance made by a payee for consideration; and (17) “Transfer agreement” means the agreement providing for transfer of structured settlement payment rights from a payee to a transferee. | |
196 | Ten. Code Ann. 47-18-2603 Transfer agreement -- Requirements. | No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction or a responsible administrative authority, and complies with all of the following: (1) The transfer complies with the requirements of this part and will not contravene other applicable law; (2) Not less than ten (10) days prior to the date on which the payee executes the transfer agreement, the transferee has provided to the payee a disclosure statement in bold type, no smaller than fourteen (14) points, setting forth: (A) The amounts and due dates of the structured settlement payments to be transferred; (B) The aggregate amount of such payments; (C) The discounted present value of such payments, together with the discount rate used in determining such discounted present value; (D) The gross amount payable to the payee in exchange for such payments; (E) An itemized listing of all brokers' commissions, service charges, application fees, processing fees, closing costs, filing fees, administrative fees, notary fees and other commissions, fees, costs, expenses and charges, and a good faith estimate of all legal fees and court costs payable by the payee or deductible from the gross amount otherwise payable to the payee; (F) The net amount payable to the payee after deduction of all commissions, fees, costs, expenses and charges described in subdivision (2)(E); and (G) The amount of any penalty and the aggregate amount of any liquidated damages (inclusive of penalties) payable by the payee in the event of any breach of the transfer agreement by the payee; (3) The payee has established that the transfer is fair and reasonable and in the best interest of the payee; (4) The payee has been advised by the transferee, in writing, to seek independent professional advice regarding the financial, legal and tax implications of the transfer; and (5) The transferee has given written notice of the transferee's name, address and taxpayer identification number to the annuity issuer and the structured settlement obligor and has filed a copy of such notice with the court or responsible administrative authority. | |
197 | Ten. Code Ann. 47-18-2604 Circuit court jurisdiction -- Requirements for notice -- Best interest standard -- Fees. | (a) The circuit court shall have nonexclusive jurisdiction over any application for authorization under § 47-18-2603 of a transfer of structured settlement payment rights. (b) Not less than twenty (20) days prior to the scheduled hearing on any application for authorization of a transfer of structured settlement payment rights under § 47-18-2603, the transferee shall file with the court or responsible administrative authority and serve on any other government authority which previously approved the structured settlement, and on all interested parties, a notice of the proposed transfer and the application for its authorization, including in such notice: (1) A copy of the transferee's application; (2) A copy of the transfer agreement; (3) A copy of the disclosure statement required under § 47-18-2603(2); (4) Notification that any interested party is entitled to support, oppose or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and (5) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed (which shall be not less than fifteen (15) days after service of the transferee's notice) in order to be considered by the court or responsible administrative authority. (c) In determining whether the transfer is in the payee's best interest under § 47-18-2603(3), the court should consider: (1) The terms of the transfer; (2) Whether the payee has other sources of income, other than the structured settlement payment rights to be transferred; (3) The effect of the transfer, if any, on the payee's dependents and whether the transfer would be likely to result in financial hardship for such dependents; and (4) If a payee is currently required by a court order, judgment, or decree to pay child support or alimony, the effect of the transfer on the payee's ability to continue to pay such support or alimony. (d) The structured settlement obligor and annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments. (e) The transferee and any assignee shall be liable to the structured settlement obligor and the annuity issuer for any and all taxes and other costs and liabilities, other than costs incurred in opposing the transfer, incurred as a result of complying with the court order approving the transfer. (f) Neither the annuity issuer nor the structured settlement obligor may be required to divide any structured settlement payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees. (g) If any party acting in bad faith withholds consent to the transfer, the court may, in its discretion, award the prevailing party reasonable attorney fees and costs. | |
198 | Ten. Code Ann. 47-18-2605 Waiver -- Failure to satisfy conditions. | (a) The provisions of this part may not be waived. (b) No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee based on any failure of such transfer to satisfy the conditions of § 47-18-2603. | |
199 | Ten. Code Ann. 47-18-2606 Other statutory provisions remain valid. | Nothing contained in this part shall be construed to authorize any transfer of structured settlement payment rights in contravention of applicable law or to give effect to any transfer of structured settlement payment rights that is invalid under applicable law. | |
200 | Ten. Code Ann. 47-18-2607 Applicability. | This part shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after June 23, 2000; provided, that nothing contained herein shall imply that any transfer under a transfer agreement reached prior to June 23, 2000 is ineffective. | |
201 | Ten. Code Ann. 47-18-2701 Prohibited activities. | It shall be unlawful and a violation of this part for any person to sell, market, promote, advertise or otherwise distribute any card or other purchasing mechanism or device, which is not insurance, that purports to offer discounts or access to discounts from health care providers in health-related purchases where: (1) Such card or other purchasing mechanism or device does not expressly provide in bold and prominent type that the discounts are not insurance; (2) Such discounts are not specifically authorized in a contract with each health care provider listed in conjunction with the card or other purchasing mechanism or device; or (3) The discounts or access to discounts offered or the range of discounts or access to the range of discounts offered are misleading, deceptive or fraudulent, regardless of the literal wording used. | |
202 | Ten. Code Ann. 47-18-2702 Jurisdiction. | (a) Any person subject to liability under this part shall be deemed, as a matter of law, to have purposefully availed themselves of the privileges of conducting activities within Tennessee, sufficient to subject the person to the personal jurisdiction of the circuit or chancery court hearing an action brought pursuant to this part. (b) An action for violation of this part may be brought: (1) In the county where the plaintiff resides; (2) In the county where the plaintiff conducts business; or (3) In the county where the card or other purchasing mechanism or device was sold, marketed, promoted, advertised or otherwise distributed. (c)(1) If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this part, it shall enjoin the defendant from a continuance thereof. (2) In addition to injunctive relief, the plaintiff in the action shall be entitled to recover from the defendant one hundred dollars ($100) per card or other purchasing mechanism or device sold, marketed, promoted, advertised or otherwise distributed within Tennessee, or ten thousand dollars ($10,000), whichever is greater. (d) The remedies prescribed in this section are cumulative and in addition to the remedies prescribed in the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter and any other applicable criminal, civil or administrative penalties. | |
203 | Ten. Code Ann. 47-18-2703 Application. | Nothing in this part shall be construed to apply to: (1) Eye or vision care services, glasses or contact lenses provided by an optometrist or ophthalmologist; or (2) Discount cards provided to members of a nonprofit association as an incidental benefit to membership in the association; provided, that membership in such association entitles members to apply for insurance that is available only to members of the association. | |
204 | Ten. Code Ann. 47-18-2704 Compliance by issuers. | Any person subject to liability under this part shall be required to issue cards complying with the provisions of this section on July 1, 2001, or upon the issuance of a renewed card before July 1, 2002, whichever is later. | |
205 | Ten. Code Ann. 47-18-2801 Public policy. | Price gouging of vaccines and inoculations during a medical emergency is contrary to the public policy of the state of Tennessee. | |
206 | Ten. Code Ann. 47-18-2802 Prohibited acts during medical emergency -- Defenses. | (a) Upon the proclamation of a medical emergency by the commissioner of health and continuing until such emergency is terminated, it is unlawful, for any person, including, but not limited to, a distributor, supplier, hospital, clinic, pharmacy or other health care provider, to charge any other person a price for a vaccine or inoculation that is grossly in excess of the price generally charged for the same or similar vaccine or inoculation in the usual course of business in the year prior to the year of the proclaimed medical emergency. (b) It is an affirmative defense to prosecution under this part, which must be proven by a preponderance of the evidence, that such price increase was directly attributable to: (1) Additional costs for labor or materials used to produce or provide the vaccine or inoculation; or (2) Additional costs imposed on a hospital, clinic, pharmacy or other health care provider by a manufacturer, distributor or supplier of the vaccine. (c) A medical emergency shall be terminated by proclamation of the commissioner of health when, in the discretion of the commissioner, the medical emergency has ended. | |
207 | Ten. Code Ann. 47-18-2803 Violations. | A violation of this part, or any rules and regulations promulgated under this part, constitutes an unfair or deceptive act or practice under § 47-18-104(a). A civil action for violation of this part may be brought under part 1 of this chapter. | |
208 | Ten. Code Ann. 47-18-2804 Provisions of part supplemental. | This part is intended to be in addition to and supplemental to part 51 of this chapter.1 | |
209 | Ten. Code Ann. 47-18-2805 Rules and regulations. | The commissioner of health is authorized to promulgate rules and regulations to effectuate this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. | |
210 | Ten. Code Ann. 47-18-2901 Safeguards and procedures for ensuring that confidential information protected on laptop computers and other removable storage devices -- Claim for damages. | (a) Each state agency shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the state agency. (b) All municipalities and counties shall create safeguards and procedures for ensuring that confidential information regarding citizens is securely protected on all laptop computers and other removable storage devices used by the municipality or county. (c) Notwithstanding any other law to the contrary, failure to comply with this section shall create a cause of action or claim for damages against the state, municipality, or county if a citizen of this state proves by clear and convincing evidence that the citizen was a victim of identity theft due to a failure to provide safeguards and procedures regarding that citizen's confidential information. | |
211 | Ten. Code Ann. 47-18-5001 Creation -- Director. | (a) There is hereby created in the department of commerce and insurance the division of consumer affairs. (b) This division shall be headed by a director of consumer affairs who shall be appointed by, and serve at the pleasure of, the commissioner of commerce and insurance. | |
212 | Ten. Code Ann. 47-18-5002 Powers and duties. | The division of consumer affairs has the power to employ such personnel as may be approved by the commissioners of commerce and insurance and finance and administration, and shall: (1) Enforce part 1 of this chapter and this section throughout the state of Tennessee; (2) Employ within budgetary limitations the necessary professional, investigative, and clerical staff needed to effectuate part 1 of this chapter and this section; (3) Promulgate reasonable procedural rules and regulations needed to carry out part 1 of this chapter and this section. These rules shall be adopted in accordance with the Uniform Administrative Procedure Act, compiled in title 4, chapter 5. Prior to the promulgation of any rule or regulation having the force or effect of law, such rule or regulation must be submitted to the commerce and labor committee of the senate and to the consumer and human resources committee of the house of representatives for their concurrence. Any rule or regulation which is not acted upon by such committees within thirty (30) days after notice of the filing thereof is given to the chairs of the committees shall become effective notwithstanding subsequent action by the committees; (4) Conduct investigations and research, hold public hearings, or conduct and publish studies relating to the distribution or furnishing of goods or services to or for the use of consumers when the division or the attorney general and reporter has reason to believe that there are or have been persistent or consistent violations of part 1 of this chapter and this section; provided, that § 47-18-106 shall not be applicable to this subdivision (4); (5) Serve as the central coordinating agency and clearinghouse for receiving complaints by Tennessee consumers of illegal, fraudulent, deceptive or dangerous practices; (6) Report annually to the general assembly on the activities of the division. The report shall include, but not be limited to, a statement of the investigatory and enforcement procedures and policies of the division, as well as a statement of the number of complaints filed and of investigations or enforcement proceedings instituted and of their disposition. The report shall not identify any person who has not been otherwise publicly identified in enforcement proceedings unless such person consents to identification. The report may include recommendations for proposed legislation designed to remedy specific unfair or deceptive acts or practices; (7) Lend assistance to any district attorney general who elects to criminally prosecute any person for any criminal act or practice directed against the consuming public; and (8) Promote consumer education and inform the public of policies, decisions, and legislation affecting consumers. | |
213 | Ten. Code Ann. 47-18-5101 Legislative intent. | The general assembly finds and declares that: (1) The threats of terrorism are real and could impose horrific social and economic damage on Tennessee; (2) Terrorist attacks can dismantle the stability of markets and free trade; (3) Pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, but when a declared state of emergency results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of consumer goods and services should be discouraged; (4) Because of the September 11, 2001, terrorist attacks that took place in New York and Arlington, Virginia, some businesses across Tennessee engaged in the economic practice commonly known as price-gouging; (5) Protecting the public from price-gouging is a vital function of state government in providing for the health, safety, and welfare of consumers; (6) The intent of the general assembly in enacting this part is to protect citizens from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency for goods and services that are vital or necessary for the consumer. Further, it is the intent of the general assembly that this part be liberally construed so that its beneficial purposes may be served. | |
214 | Ten. Code Ann. 47-18-5102 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Building materials” means lumber, construction tools, windows, and anything else used in the building or rebuilding of property; (2) “Consumer food item” means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal; (3) “Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soap, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers; (4) “Gasoline” means any fuel used to power any motor vehicle or power tool; (5) “Goods” has the same meaning as provided in § 47-18-103; (6) “Housing” means any rental housing leased on a month-to-month term; (7) “Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products; (8) “Person” has the same meaning as provided in § 47-18-103; (9) “Repair or reconstruction services” means services performed by any person for repairs to residential or commercial property of any type that is damaged as a result of a disaster or terrorist attack; (10) “Services” has the same meaning as provided in § 47-18-103; (11) “State of emergency” means a natural or man-made disaster or emergency resulting from terrorist attack, war, strike, civil disturbance, tornado, earthquake, fire, flood, or any other natural disaster declared by the president of the United States or by the governor pursuant to title 58, chapter 2, part 1; and (12) “Transportation, freight, and storage services” means any service that is performed by any company that contracts to move, store, or transport personal or business property or rents equipment for those purposes. | |
215 | Ten. Code Ann. 47-18-5103 Prohibited acts during state of emergency. | Upon the proclamation of a state of emergency and continuing until the state of emergency is terminated, it is unlawful, in any county or municipality covered by the state of emergency, for any person to charge any other person a price for any consumer food item; repair or construction services; emergency supplies; medical supplies; building materials; gasoline; transportation, freight, and storage services; or housing, that is grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business immediately prior to the events giving rise to the state of emergency. An otherwise grossly excessive price increase shall not be unlawful if the person charging such higher price establishes by prima facie evidence that the increase was directly attributable to additional costs imposed on it by the supplier of the goods or services, or was directly attributable to additional costs for labor or materials used to provide the goods or services. | |
216 | Ten. Code Ann. 47-18-5104 Violation -- Unfair or deceptive act or practice -- Penalties cumulative. | (a) Violation of any provision of this part, or any rules and regulations promulgated hereunder, constitutes an unfair or deceptive act or practice under § 47-18-104(a); provided, that no criminal penalty shall be incurred for violation of this part. A civil action for violation of this part may be brought under part 1 of this chapter. (b) The remedies and penalties provided in this section are cumulative. Nothing in this part shall preempt any local ordinance prohibiting the same or similar conduct or imposing a more severe penalty for the same conduct prohibited in this part. | |
217 | Ten. Code Ann. 47-18-5201 Short title. | This part shall be known and may be cited as the “Anti-Phishing Act of 2006.” | |
218 | Ten. Code Ann. 47-18-5202 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Ascertainable loss” means an identifiable deprivation, detriment or injury arising from the identity theft or from any unfair, misleading or deceptive act or practice, even when the precise amount of the loss is not known. Whenever a violation of this part has occurred, an ascertainable loss shall be presumed to exist; (2) “Division” means the division of consumer affairs of the department of commerce and insurance; (3) “Electronic mail message” means a message sent to a unique destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox, commonly referred to as the “local part,” and a reference to an Internet domain, commonly referred to as the “domain part,” whether or not displayed, to which an electronic message can be sent or delivered; (4) “Identification documents” means any card, certificate or document that identifies, or purports to identify, the bearer of such document, whether or not intended for use as identification, and includes, but is not limited to, documents purporting to be driver licenses, nondriver identification cards, birth certificates, marriage certificates, divorce certificates, passports, immigration documents, social security cards, employee identification cards, cards issued by the government to provide benefits of any sort, health care benefit cards, or health benefit organization, insurance company or managed care organization cards for the purpose of identifying a person eligible for services; (5) “Identifying information” means, with respect to an individual, any of the following: (A) Social security number; (B) Driver license number; (C) Bank account number; (D) Credit card or debit card number; (E) Personal identification number (PIN); (F) Biometric data; (G) Private medical information (PMI); (H) Fingerprints; (I) Account password; or (J) Any other piece of information that can be used to access an individual's financial accounts or obtain identification, act as identification, or obtain goods or services; (6) “Internet” means the global information system that is logically linked together by a globally unique address space based on the Internet protocol (IP), or its subsequent extensions, and that is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high level services layered on communications and related infrastructure; (7) “Person” means a natural person, consumer, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized; (8) “Tennessee Consumer Protection Act” means the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter and related statutes. Related statutes specifically include any statute that indicates within the law, regulation or rule that a violation of that law, regulation or rule is a violation of the Tennessee Consumer Protection Act. Without limiting the scope of this subdivision (8), related statutes include, but are not limited to, the Membership Camping Act, compiled in title 66, chapter 32, part 3; and (9) “Web page” means a location that has a single uniform resource locator or other single location with respect to the Internet. | |
219 | Ten. Code Ann. 47-18-5203. Violation of part. | (a) It shall be unlawful for any person to represent oneself, either directly or by implication, to be another person, without the authorization or permission of such other person, through the use of the Internet, electronic mail messages or any other electronic means, including wireless communication, and to solicit, request, or take any action to induce a resident of this state to provide identifying information or identification documents. (b) It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to defraud, for such person's own use or the use of a third person, or to sell or distribute the information to another, to: (1) Fraudulently obtain, record or access identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person; (2) Obtain goods or services through the use of identifying information of such other person; or (3) Obtain identification documents in such other person's name. (c) It shall be unlawful for any person with the intent to defraud and without the authorization or permission of the person who is the owner or licensee of a web page or web site to: (1) Knowingly duplicate or mimic all or any portion of the web site or web page; (2) Direct or redirect an electronic mail message from the IP address of a person to any other IP address; (3) Use any trademark, logo, name, or copyright of another person on a web page; or (4) Create an apparent but false link to a web page of a person that is directed or redirected to a web page or IP address other than that of the person represented. (d) It shall be unlawful for any person to attempt to commit any of the offenses enumerated in this section. | |
220 | Ten. Code Ann. 47-18-5204 Persons allowed to bring an action for damages. . | (a) The following persons may bring an action against a person who violates or is in violation of § 47-18-5203: (1)(A) A person who: (i) Is engaged in the business of providing Internet access service to the public, owns a web page, or owns a trademark; and (ii) Suffers ascertainable loss by a violation of § 47-18-5203. (B) An action brought under subdivision (a)(1)(A) may seek to recover the greater of actual damages or five hundred thousand dollars ($500,000); or (2)(A) An individual who suffers an ascertainable loss by a violation of § 47-18-5203 may bring an action, but only against a person who has directly violated § 47-18-5203. (B) An action brought under subdivision (a)(2)(A) may seek to enjoin further violations of § 47-18-5203 and to recover the greater of three (3) times the amount of actual damages or five thousand dollars ($5,000), per violation. (b) The attorney general and reporter or a district attorney general may bring an action against a person who violates or is in violation of § 47-18-5203 to enjoin further violations of § 47-18-5203 and to recover a civil penalty of up to two thousand five hundred dollars ($2,500), per violation. (c) In an action pursuant to this part, a court may, in addition, do either or both of the following: (1) Increase the recoverable damages to an amount up to three (3) times the damages otherwise recoverable under subsection (a) in cases in which the defendant has established a pattern and practice of violating § 47-18-5203; or (2) Award costs of the suit and reasonable attorney's fees to a prevailing plaintiff. (d) The remedies provided in this part do not preclude the seeking of remedies, including criminal remedies, under any other applicable law. (e) For purposes of subdivision (a)(1), multiple violations of § 47-18-5203 resulting from any single action or conduct shall constitute one (1) violation. (f) No provider of an interactive computer service may be held liable under this part or any other state law for identifying, removing, or disabling access to content that resides on an Internet web page or other online location that such provider believes in good faith is used to engage in a violation of this part. | |
221 | Ten. Code Ann. 47-18-5205 Violation of part constituting violation of the Tennessee Consumer Protection Act -- Application and construction. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act. (b) For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in such act, in addition to the penalties and remedies set forth in this part. (c) If the division has reason to believe that any person has violated any provision of this part, the attorney general and reporter, at the request of the division, may institute a proceeding under this chapter. | |
222 | Ten. Code Ann. 47-18-5301 Short title. | This part shall be known and may be cited as the “Tennessee Truth in Music Advertising Act.” | |
223 | Ten. Code Ann. 47-18-5302 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Performing group” means a vocal or instrumental group seeking to use the name of another group that has previously released a commercial sound recording under that name; (2) “Recording group” means a vocal or instrumental group at least one (1) of whose members has previously released a commercial sound recording under that group's name and in which the member or members have a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group; and (3) “Sound recording” means a work that results from the fixation on a material object of a series of musical, spoken or other sounds regardless of the nature of the material object, such as a disc, tape, or other phono-record, in which the sounds are embodied. | |
224 | Ten. Code Ann. 47-18-5303 Prohibited musical performance or production. | No person shall advertise or conduct a live musical performance or production in this state through the use of a false, deceptive, or misleading affiliation, connection, or association, between a performing group and a recording group. The prohibition contained in this section does not apply if: (1) The performing group is the authorized registrant and owner of a federal service mark for that group registered in the United States patent and trademark office; (2) At least one (1) member of the performing group was a member of the recording group and has a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group; (3) The live musical performance or production is identified in all advertising and promotion as a salute or tribute, and the name of the vocal or instrumental group performing is not so closely related or similar to that used by the recording group that it would tend to confuse or mislead the public; (4) The advertising does not relate to a live musical performance or production taking place in this state; or (5) The performance or production is expressly authorized by the performing group. | |
225 | Ten. Code Ann. 47-18-5304 Violations -- Application and construction. | (a) A violation of this part constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter. (b) For the purpose of application of the Tennessee Consumer Protection Act of 1977, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce and subject to the penalties and remedies as provided by that act. The division of consumer affairs in the department of commerce and insurance may assess a civil penalty of not less than five thousand dollars ($5,000) nor more than fifteen thousand dollars ($15,000) for a violation of this part. For purposes of this part, each performance in violation of this part constitutes a separate violation of this part. The civil penalties recoverable by this state under this part are supplemental and cumulative to any other available civil or criminal penalties and relief available under other laws, regulations and rules, including, but not limited to, those available pursuant to § 47-18-108. | |
226 | Ten. Code Ann. 47-18-5401 Part Definitions. | As used in this part, unless the context otherwise requires: (1) “Foreclosure-related rescue services” means any service related to or promising assistance in connection with: (A) Stopping, avoiding or delaying foreclosure proceedings concerning residential real property; or (B) Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation; (2) “Foreclosure-rescue consultant” means a person who directly or indirectly makes a solicitation, representation or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services; provided, that a foreclosure-rescue consultant shall not include: (A) A person acting under the express authority or written approval of the United States department of housing and urban development or other department or agency of the United States or this state to provide foreclosure-related rescue services; provided, that the person does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services except as expressly authorized by federal law, regulation or rule; (B) A charitable, not-for-profit agency or organization, as determined by the United States internal revenue service under § 501(c)(3) of the Internal Revenue Code, codified in 26 U.S.C. § 501(c)(3), that offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions, and does not solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related services; (C) A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction; (D) A state or national bank or its subsidiary, a state or federal savings institution or its subsidiary, a state or federal credit union, an industrial loan and thrift company or a licensed mortgage loan broker or originator; or (E) An attorney licensed or otherwise authorized to practice law in this state who is providing legal services to a client; (3) “Foreclosure-rescue transaction” means a transaction that is designed or intended by the parties to stop, avoid or delay foreclosure proceedings against a homeowner's residential real property; (4) “Homeowner” means any record title owner of residential real property that is the subject of foreclosure proceedings; and (5) “Residential real property” means improved real property used or occupied or intended to be used or occupied for residential purposes by the owner. | |
227 | Ten. Code Ann. 47-18-5402 Marketing of foreclosure-related rescue services -- Agreements and cancellation rights. | (a) In the course of offering or providing foreclosure-related rescue services, no foreclosure-rescue consultant shall: (1) Engage in any unfair, misleading, or deceptive acts or practices during the course of advertising, marketing, offering, selling or contracting for foreclosure-related services; (2) Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services; (3) Solicit, charge, receive or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services; (4) Induce or attempt to induce any consumer to enter into a contract or agreement that does not fully comply in all respects with this part; or (5) Fail to accept and honor a consumer's request to cancel and provide any related refunds within ten (10) business days. (b) The written agreement for foreclosure-related rescue services required by subdivision (a)(1) shall be printed in at least 12-point uppercase type and shall be signed by both parties. The agreement shall include the name, physical address, telephone number and electronic mail address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services and the date of the agreement. The date of the agreement shall not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant shall give the homeowner a copy of the agreement to review not less than one (1) business day before the homeowner is to sign the agreement. (c) The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within three (3) business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant shall be returned to the homeowner within ten (10) business days after receipt of the notice of cancellation. (d) An agreement for foreclosure-related rescue services shall contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following: HOMEOWNER'S RIGHT OF CANCELLATION YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS AGREEMENT IS SIGNED BY YOU. THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE. TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELLING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO _________________________ (NAME) AT ______________________________ (PHYSICAL ADDRESS) ______________________________ OR (E-MAIL ADDRESS) ______________________________ NO LATER THAN MIDNIGHT OF _________________________ (DATE). IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE. (e) The inclusion of the statement in subsection (d) does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement; provided, that all other requirements of this section are met. (f) The foreclosure-rescue consultant shall give the homeowner a copy of the signed agreement within three (3) hours after the homeowner signs the agreement. (g) Any contract or agreement for foreclosure-related services that does not contain the provisions set forth in this section shall be void and unenforceable as a matter of law and public policy. | |
228 | Ten. Code Ann. 47-18-5501 Short title. | This part shall be known and may be cited as the “Uniform Debt-Management Services Act.” | |
229 | Ten. Code Ann. 47-18-5502 Part Definitions. | In this part: (1) “Administrator” means the commissioner of commerce and insurance; (2) “Affiliate”: (A) With respect to an individual, means: (i) The spouse of the individual; (ii) A sibling of the individual or the spouse of a sibling; (iii) An individual or the spouse of an individual who is a lineal ancestor or lineal descendant of the individual or the individual's spouse; (iv) An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece, or grandnephew, whether related by the whole or the half blood or adoption, or the spouse of any of them; or (v) Any other individual occupying the residence of the individual; and (B) With respect to an entity, means: (i) A person that directly or indirectly controls, is controlled by or is under common control with the entity; (ii) An officer of, or an individual performing similar functions with respect to, the entity; (iii) A director of, or an individual performing similar functions with respect to, the entity; (iv) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year or a person that owns more than ten percent (10%) of, or an individual who is employed by or is a director of, a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year; (v) An officer or director of, or an individual performing similar functions with respect to, a person described in this subdivision (2)(B); (vi) The spouse of, or an individual occupying the residence of, an individual described in subdivisions (2)(B)(i)--(v); or (vii) An individual who has the relationship specified in subdivision (2)(A)(iv) to an individual or the spouse of an individual described in subdivisions (2)(B) (i)-(v); (3) “Agreement” means an agreement between a provider and an individual for the performance of debt-management services; (4) “Bank” means a financial institution, including a commercial bank, savings bank, savings and loan association, credit union and trust company, engaged in the business of banking, chartered under federal or state law, and regulated by a federal or state banking regulatory authority; (5) “Business address” means the physical location of a business, including the name and number of a street; (6) “Certified counselor” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency; (7) “Certified debt specialist” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed; (8) “Concessions” means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor; (9) “Day” means calendar day; (10) “Debt-management services” means services as an intermediary between an individual and one (1) or more creditors of the individual for the purpose of obtaining concessions, but does not include: (A) Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this state; (B) Accounting services provided in an accountant-client relationship by a certified public accountant licensed to provide accounting services in this state; or (C) Financial-planning services provided in a financial planner-client relationship by a member of a financial-planning profession whose members the administrator, by rule, determines are: (i) Licensed by this state; (ii) Subject to a disciplinary mechanism; (iii) Subject to a code of professional responsibility; and (iv) Subject to a continuing-education requirement; (11) “Entity” means a person other than an individual; (12) “Good faith” means honesty in fact and the observance of reasonable standards of fair dealing; (13) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity. The term does not include a public corporation, government or governmental subdivision, agency or instrumentality; (14) “Plan” means a program or strategy in which a provider furnishes debt-management services to an individual and that includes a schedule of payments to be made by or on behalf of the individual and used to pay debts owed by the individual; (15) “Principal amount of the debt” means the amount of a debt at the time of an agreement; (16) “Provider” means a person that provides, offers to provide or agrees to provide debt-management services directly or through others; (17) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (18) “Settlement fee” means a charge imposed on or paid by an individual in connection with a creditor's assent to accept in full satisfaction of a debt an amount less than the principal amount of the debt; (19) “Sign” means, with present intent to authenticate or adopt a record: (A) To execute or adopt a tangible symbol; or (B) To attach to or logically associate with the record an electronic sound, symbol or process; (20) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and (21) “Trust account” means an account held by a provider that is: (A) Established in an insured bank; (B) Separate from other accounts of the provider or its designee; (C) Designated as a trust account or other account designated to indicate that the money in the account is not the money of the provider or its designee; and (D) Used to hold money of one (1) or more individuals for disbursement to creditors of the individuals. | |
230 | Ten. Code Ann. 47-18-5503 Exempt agreements and persons. | This part does not apply to: (1) An agreement with an individual whom the provider has no reason to know resides in this state at the time of the agreement; (2) A provider to the extent that the provider: (A) Provides or agrees to provide debt-management, educational or counseling services to an individual whom the provider has no reason to know resides in this state at the time the provider agrees to provide the services; or (B) Receives no compensation for debt-management services from or on behalf of the individuals to whom it provides the services or from their creditors; or (3) The following persons or their employees when the person or the employee is engaged in the regular course of the person's business or profession: (A) A judicial officer, a person acting under an order of a court or an administrative agency or an assignee for the benefit of creditors; (B) A bank; (C) An affiliate, as defined in § 47-18-5502, of a bank if the affiliate is regulated by a federal or state banking regulatory authority; (D) Any person who is engaged in the credit services business as defined in § 47-18-1002 but is not engaged in the business of debt counseling, debt management or debt settlement as defined by this part; provided, that the person is registered as a credit services business with the administrator; or (E) A title insurer, escrow company or other person that provides bill-paying services if the provision of debt-management services is incidental to the bill-paying services. | |
231 | Ten. Code Ann. 47-18-5504 Registration required -- Maintenance and publication of list of registered providers. | (a) Except as otherwise provided in subsection (b), a provider may not provide debt-management services to an individual whom the provider reasonably should know resides in this state at the time the provider agrees to provide the services, unless the provider is registered under this part. (b) If a provider is registered under this part, subsection (a) does not apply to an employee or agent of the provider. (c) The administrator shall maintain and publicize a list of the names of all registered providers. | |
232 | Ten. Code Ann. 47-18-5505 Application for registration -- Form, fee, and accompanying documents. | (a) An application for registration as a provider must be in a form prescribed by the administrator. (b) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), an application for registration as a provider must be accompanied by: (1) The fee established by the administrator; (2) The bond required by § 47-18-5513; (3) Identification of all trust accounts required by § 47-18-5522 and an irrevocable consent authorizing the administrator to review and examine the trust accounts; (4) Evidence of insurance in the amount of two hundred fifty thousand dollars ($250,000): (A) Against the risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant; (B) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator; (C) With a deductible not exceeding five thousand dollars ($5,000); (D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and (E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator; (5) A record consenting to the jurisdiction of this state containing: (A) The name, business address and other contact information of its registered agent in this state for purposes of service of process; or (B) The appointment of the administrator as agent of the provider for purposes of service of process; and (6) If the applicant is exempt from taxation under the Internal Revenue Code, 26 U.S.C. § 501, evidence of that status. | |
233 | Ten. Code Ann. 47-18-5506 Application for registration -- Required informatio | An application for registration must be signed under oath and include:
(1) The applicant's name, principal business address and telephone number, and all other business addresses in this state, electronic-mail addresses and Internet web site addresses; (2) All names under which the applicant conducts business; (3) The address of each location in this state at which the applicant will provide debt-management services or a statement that the applicant will have no such location; (4) The name and home address of each officer and director of the applicant and each person that owns at least ten percent (10%) of the applicant; (5) Identification of every jurisdiction in which, during the five (5) years immediately preceding the application: (A) The applicant or any of its officers or directors has been licensed or registered to provide debt-management services; or (B) Individuals have resided when they received debt-management services from the applicant; (6) A statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment or litigation and any material administrative or enforcement action by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners, or agents, or any person who is authorized to have access to the trust account required by § 47-18-5522; (7) The applicant's financial statements, reviewed by a licensed accountant, for each of the two (2) years immediately preceding the application or, if it has not been in operation for the two (2) years preceding the application, for the period of its existence. If the applicant claims nonprofit or tax exempt status, or if the applicant's business practices involve holding, accessing or directing the funds of an individual, the financial statements required by this part shall be audited by a licensed accountant; (8) Evidence of accreditation by an independent accrediting organization approved by the administrator; (9) Evidence that, within twelve (12) months after initial employment, each of the applicant's counselors becomes certified as a certified counselor or certified debt specialist; (10) A description of the three (3) most commonly used educational programs that the applicant provides or intends to provide to individuals who reside in this state and a copy of any materials used or to be used in those programs; (11) A description of the applicant's financial analysis and initial budget plan, including any form or electronic model, used to evaluate the financial condition of individuals; (12) A copy of each form of agreement that the applicant will use with individuals who reside in this state; (13) The schedule of fees and charges that the applicant will use with individuals who reside in this state; (14) (A) At the applicant's expense, the results of a state and national fingerprint-based criminal history records check conducted by the federal bureau of investigation (FBI) or the Tennessee bureau of investigation (TBI), covering every officer of the applicant and every employee or agent of the applicant who is authorized to have access to the trust account required by § 47-18-5522; (B) The applicant shall obtain electronically-scanned fingerprints placed on standard FBI or TBI applicant cards through a company that has contracted with the state to provide a fingerprinting service; provided, however, that the administrator may allow the applicant to instead provide the administrator with three (3) sets of classifiable fingerprints on standard FBI or TBI applicant cards for processing by the FBI or TBI for good cause; (C) In the event the state no longer contracts with any company to provide an electronic fingerprinting service, the applicant shall submit three (3) classifiable TBI and FBI fingerprint cards to be processed at the applicant's expense; (15) The names and addresses of all employers of each director during the ten (10) years immediately preceding the application; (16) A description of any ownership interest of at least ten percent (10%) by a director, owner or employee of the applicant in: (A) Any affiliate of the applicant; or (B) Any entity that provides products or services to the applicant or any individual relating to the applicant's debt-management services; (17) If an applicant claims nonprofit or tax exempt status, or if an applicant's business practices involve holding, accessing or directing the funds of an individual, a statement of the amount of compensation of the applicant's five (5) most highly compensated employees for each of the three (3) years immediately preceding the application or, if the applicant has not been in operation for the three (3) years preceding the application, for the period of the applicant's existence; (18) The identity of each director who is an affiliate, as defined in § 47-18-5502(2)(A) or (2)(B)(i), (ii), (iv), (v), (vi) or (vii), of the applicant; and (19) Any other information that the administrator reasonably requires to perform the administrator's duties under § 47-18-5509. | |
234 | Ten. Code Ann. 47-18-5507 Obligation to update information in application for registratio | An applicant or registered provider shall notify the administrator within ten (10) days after a change in the information specified in § 47-18-5505(b)(4) or (b)(6) or § 47-18-5506(1), (3), (6), (12) or (13). | |
235 | Ten. Code Ann. 47-18-5508 Public information in application for registration. | Except for the information required by § 47-18-5506(7), (14), and (17), and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for registration as a provider available to the public. | |
236 | Ten. Code Ann. 47-18-5509 Issuance or denial of certificate of registration. | (a) Except as otherwise provided in subsections (c) and (d), the administrator shall issue a certificate of registration as a provider to a person that complies with §§ 47-18-5505 and 47-18-5506.
(b) If an applicant has otherwise complied with §§ 47-18-5505 and 47-18-5506, including a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary certificate of registration. The temporary certificate shall expire no later than one hundred eighty (180) days after issuance. (c) The administrator may deny registration if: (1) The application contains information that is materially erroneous or incomplete; (2) An officer, director, or owner of the applicant has been convicted of a crime or suffered a civil judgment involving dishonesty, or the violation of state or federal securities laws; (3) The applicant or any of its officers, directors, or owners has defaulted in the payment of money collected for others; (4) The application is not accompanied by the fee established by the administrator; (5) The administrator finds that the financial responsibility, experience, character, or general fitness of the applicant or its owners, directors, employees, or agents does not warrant belief that the business will be operated in compliance with this part; (6) The applicant or any of its officers, directors, or owners has violated this part or any rule promulgated pursuant to this part; or (7) The applicant or any of its officers, directors, or owners has engaged in any act or violation for which the administrator could suspend or revoke a registration under this part. (d) The administrator shall deny registration if, with respect to an applicant that is organized as a not-for-profit entity or has obtained tax-exempt status under the Internal Revenue Code, 26 U.S.C. § 501, the applicant's board of directors is not independent of the applicant's employees and agents. (e) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a board of directors is not independent for purposes of subsection (d) if more than one fourth (1/4) of its members: (1) Are affiliates of the applicant, as defined in § 47-18-5502(2)(A) or § 47-18-5502(2)(B)(i), (ii), (iv), (v), (vi) or (vii); or (2) After the date ten (10) years before first becoming a director of the applicant, were employed by or directors of a person that received from the applicant more than twenty-five thousand dollars ($25,000) in either the current year or the preceding year. | |
237 | Ten. Code Ann. 47-18-5510 Timing of certificate of registration. | (a) The administrator shall approve or deny an initial registration as a provider within one hundred twenty (120) days after an application is filed. In connection with a request pursuant to § 47-18-5506(19) for additional information, the administrator may extend the one hundred twenty-day period for not more than sixty (60) days. Within seven (7) days after denying an application, the administrator, in a record, shall inform the applicant of the reasons for the denial.
(b) If the administrator does not act on an application within the time prescribed in subsection (a), the applicant may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. (c) Subject to §§ 47-18-5511(d) and 47-18-5534, a registration as a provider is valid for one (1) year. | |
238 | Ten. Code Ann. 47-18-5511 Renewal of registration. | (a) A provider must obtain a renewal of its registration annually.
(b) An application for renewal of registration as a provider must be in a form prescribed by the administrator, signed under oath; and: (1) Be filed no more than sixty (60) days before the registration expires; (2) Be accompanied by the fee established by the administrator and the bond required by § 47-18-5513; (3) Contain the matter required for initial registration as a provider by § 47-18-5506(8) and (9) and a financial statement, audited by an accountant licensed to conduct audits, for the applicant's fiscal year immediately preceding the application; (4) Disclose any changes in the information contained in the applicant's application for registration or its immediately previous application for renewal, as applicable. If an application is otherwise complete and the applicant has made a timely effort to obtain the information required by § 47-18-5506(14), but the information has not been received, the administrator may issue a temporary renewal of registration. The temporary renewal shall expire no later than one hundred eighty (180) days after issuance; (5) Supply evidence of insurance in an amount equal to the larger of two hundred fifty thousand dollars ($250,000) or the highest daily balance in the trust account required by § 47-18-5522 during the six-month period immediately preceding the application: (A) Against risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant; (B) Issued by an insurance company authorized to do business in this state and rated at least "A" or equivalent by a nationally recognized rating organization approved by the administrator; (C) With a deductible not exceeding five thousand dollars ($5,000); (D) Payable for the benefit of the applicant, this state and individuals who are residents of this state, as their interests may appear; and (E) Not subject to cancellation by the applicant or the insurer until sixty (60) days after written notice has been given to the administrator; (6) Disclose the total amount of money received by the applicant pursuant to plans during the preceding twelve (12) months from or on behalf of individuals who reside in this state and the total amount of money distributed to creditors of those individuals during that period; (7) Disclose, to the best of the applicant's knowledge, the gross amount of money accumulated during the preceding twelve (12) months pursuant to plans by or on behalf of individuals who reside in this state and with whom the applicant has agreements; and (8) Provide any other information that the administrator reasonably requires to perform the administrator's duties under this section. (c) Except for the information required by § 47-18-5506(7), (14) and (17) and the addresses required by § 47-18-5506(4), the administrator shall make the information in an application for renewal of registration as a provider available to the public. (d) If a registered provider files a timely and complete application for renewal of registration, the registration remains effective until the administrator, in a record, notifies the applicant of a denial and states the reasons for the denial. (e) If the administrator denies an application for renewal of registration as a provider, the applicant, within thirty (30) days after receiving notice of the denial, may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. Subject to § 47-18-5534, while the appeal is pending, the applicant shall continue to provide debt-management services to individuals with whom it has agreements. If the denial is affirmed, subject to the administrator's order and § 47-18-5534, the applicant shall continue to provide debt-management services to individuals with whom it has agreements until, with the approval of the administrator, it transfers the agreements to another registered provider or returns to the individuals all unexpended money that is under the applicant's control. | |
239 | Ten. Code Ann. 47-18-5512 Registration in another state. | If a provider holds a license or certificate of registration in another state authorizing it to provide debt-management services, the provider may submit a copy of that license or certificate and the application for it instead of an application in the form prescribed by § 47-18-5505(a), § 47-18-5506 or § 47-18-5511(b). The administrator shall accept the application and the license or certificate from the other state as an application for registration as a provider or for renewal of registration as a provider, as appropriate, in this state if: (1) The application in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this state; (2) The applicant provides the information required by § 47-18-5506(1), (3), (10), (12) and (13); and (3) The applicant, under oath, certifies that the information contained in the application is current or, to the extent it is not current, supplements the application to make the information current. | |
240 | Ten. Code Ann. 47-18-5513 Bond requirement. | (a) Except as otherwise provided in § 47-18-5514, a provider that is required to be registered under this part shall file a surety bond with the administrator, which must: (1) Be in effect during the period of registration and for two (2) years after the provider ceases providing debt-management services to individuals in this state; and (2) Run to this state for the benefit of this state and of individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear. (b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a surety bond filed pursuant to subsection (a) must: (1) Be in the amount of fifty thousand dollars ($50,000) or other larger or smaller amount that the administrator determines is warranted by the financial condition and business experience of the provider, the history of the provider in performing debt-management services, the risk to individuals and any other factor the administrator considers appropriate; (2) Be issued by a bonding, surety or insurance company authorized to do business in this state and rated at least “A” by a nationally recognized rating organization; and (3) Have payment conditioned upon noncompliance of the provider or its agent with this part. (c) If the principal amount of a surety bond is reduced by payment of a claim or a judgment, the provider shall immediately notify the administrator and, within thirty (30) days after notice by the administrator, file a new or additional surety bond in an amount set by the administrator. The amount of the new or additional bond must be at least the amount of the bond immediately before payment of the claim or judgment. If for any reason a surety terminates a bond, the provider shall immediately file a new surety bond in the amount of fifty thousand dollars ($50,000) or other amount determined pursuant to subsection (b). (d) The administrator or an individual may obtain satisfaction out of the surety bond procured pursuant to this section if: (1) The administrator assesses expenses under § 47-18-5532(b)(1), issues a final order under § 47-18-5533(a)(2) or recovers a final judgment under § 47-18-5533(a)(4), (a)(5) or (d); or (2) An individual recovers a final judgment pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4). (e) If claims against a surety bond exceed or are reasonably expected to exceed the amount of the bond, the administrator, on the initiative of the administrator or on petition of the surety, shall, unless the proceeds are adequate to pay all costs, judgments and claims, distribute the proceeds in the following order: (1) To satisfaction of a final order or judgment under § 47-18-5533(a)(2), (a)(4), (a)(5) or (d); (2) To final judgments recovered by individuals pursuant to § 47-18-5535(a), (b), (c)(1), (c)(2) or (c)(4), pro rata; (3) To claims of individuals established to the satisfaction of the administrator, pro rata; and (4) If a final order or judgment is issued under § 47-18-5533(a), to the expenses charged pursuant to § 47-18-5532(b)(1). | |
241 | Ten. Code Ann. 47-18-5514 Substitute for bond requirement. | (a) Instead of the surety bond required by § 47-18-5513, a provider may deliver to the administrator, in the amount required by § 47-18-5513(b), and, except as otherwise provided in subdivision (a)(2)(A), payable or available to this state and to individuals who reside in this state when they agree to receive debt-management services from the provider, as their interests may appear, if the provider or its agent does not comply with this part: (1) A certificate of insurance: (A) Issued by an insurance company authorized to do business in this state and rated at least “A” or equivalent by a nationally recognized rating organization approved by the administrator; and (B) With no deductible, or if the provider supplies a bond in the amount of five thousand dollars ($5,000), a deductible not exceeding five thousand dollars ($5,000); or (2) With the approval of the administrator: (A) An irrevocable letter of credit, issued or confirmed by a bank approved by the administrator, payable upon presentation of a certificate by the administrator stating that the provider or its agent has not complied with this part; or (B) Bonds or other obligations of the United States or guaranteed by the United States or bonds or other obligations of this state or a political subdivision of this state, to be deposited and maintained with a bank approved by the administrator for this purpose. (b) If a provider furnishes a substitute pursuant to subsection (a), then § 47-18-5513(a), (c), (d) and (e) apply to the substitute. | |
242 | Ten. Code Ann. 47-18-5515 Requirement of good faith. | A provider shall act in good faith in all matters under this part. | |
243 | Ten. Code Ann. 47-18-5516 Customer service. | A provider that is required to be registered under this part shall maintain a toll-free communication system, staffed at a level that reasonably permits an individual to speak to a certified counselor, certified debt specialist or customer-service representative, as appropriate, during ordinary business hours. | |
244 | Ten. Code Ann. 47-18-5517 Prerequisites for providing debt-management services. | (a) Before providing debt-management services, a registered provider shall give the individual an itemized list of goods and services and the charges for each. The list must be clear and conspicuous, be in a record the individual may keep whether or not the individual assents to an agreement and describe the goods and services the provider offers: (1) Free of additional charge if the individual enters into an agreement; (2) For a charge if the individual does not enter into an agreement; and (3) For a charge if the individual enters into an agreement, using the following terminology, as applicable, and format: Set-up fee Dollar amount of fee Monthly service fee Dollar amount of fee or method of determining amount Settlement fee Dollar amount of fee or method of determining amount Goods and services in addition to those provided in connection with a plan: __________ (item) Dollar amount of fee or method of determining amount __________ (item) Dollar amount of fee or method of determining amount (b) A provider may not furnish debt-management services unless the provider, through the services of a certified counselor or certified debt specialist: (1) Provides the individual with reasonable education about the management of personal finance; (2) Has prepared a financial analysis; and (3) If the individual is to make regular, periodic payments to a creditor or provider: (A) Has prepared a plan for the individual; (B) Has made a determination, based on the provider's analysis of the information provided by the individual and otherwise available to it, that the plan is suitable for the individual and the individual will be able to meet the payment obligations under the plan; and (C) Believes that each creditor of the individual listed as a participating creditor in the plan will accept payment of the individual's debts as provided in the plan. (c) Before an individual assents to an agreement to engage in a plan, a provider shall: (1) Provide the individual with a copy of the analysis and plan required by subsection (b) in a record that identifies the provider and that the individual may keep whether or not the individual assents to the agreement; (2) Inform the individual of the availability, at the individual's option, of assistance by a toll-free communication system or in person to discuss the financial analysis and plan required by subsection (b); and (3) If a plan contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, or if the provider's business practices involve holding, accessing or directing the funds of an individual, with respect to all creditors identified by the individual or otherwise known by the provider to be creditors of the individual, provide the individual with a list of: (A) Creditors that the provider expects to participate in the plan and grant concessions; (B) Creditors that the provider expects to participate in the plan but not grant concessions; (C) Creditors that the provider expects not to participate in the plan; and (D) All other creditors. (d) Before an individual assents to an agreement, the provider shall inform the individual, in a separate record that the individual may keep whether or not the individual assents to the agreement: (1) Of the name and business address of the provider; (2) That plans are not suitable for all individuals and the individual may ask the provider about other ways, including bankruptcy, to deal with indebtedness; (3) That establishment of a plan may adversely affect the individual's credit rating or credit scores; (4) That nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation; (5) Unless it is not true, that the provider may receive compensation from the creditors of the individual; and (6) That, unless the individual is insolvent, if a creditor settles for less than the full amount of the debt, the plan may result in the creation of taxable income to the individual, even though the individual does not receive any money. (e) If a provider may receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines: IMPORTANT INFORMATION FOR YOU TO CONSIDER (1) Debt-management plans are not right for all individuals, and you may ask us to provide information about other ways, including bankruptcy, to deal with your debts. (2) Using a debt-management plan may make it harder for you to obtain credit. (3) We may receive compensation for our services from your creditors. ________________________________________ Name and business address of provider (f) If a provider will not receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines: IMPORTANT INFORMATION FOR YOU TO CONSIDER (1) Debt-management plans are not right for all individuals, and you may ask us to provide information about other ways, including bankruptcy, to deal with your debts. (2) Using a debt-management plan may make it harder for you to obtain credit. ________________________________________ Name and business address of provider (g) If an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed, a provider may comply with subsection (d) by providing the following disclosure, surrounded by black lines: IMPORTANT INFORMATION FOR YOU TO CONSIDER (1) Our program is not right for all individuals, and you may ask us to provide information about bankruptcy and other ways to deal with your debts. (2) Nonpayment of your debts under our program may: (A) Hurt your credit rating or credit scores; (B) Lead your creditors to increase finance and other charges; and (C) Lead your creditors to undertake activity, including lawsuits, to collect the debts. (3) Reduction of debt under our program may result in taxable income to you, even though you will not actually receive any money. ________________________________________ Name and business address of provider | |
245 | Ten. Code Ann. 47-18-5518 Communication by electronic or other means. | (a) In this section: (1) “Consumer” means an individual who seeks or obtains goods or services that are used primarily for personal, family or household purposes; and (2) “Federal act” means the electronic signatures in the Global and National Commerce Act, compiled in 15 U.S.C. § 7001 et seq. (b) A provider may satisfy the requirements of § 47-18-5517, § 47-18-5519, or § 47-18-5527 by means of the Internet or other electronic means if the provider obtains a consumer's consent in the manner provided by 15 U.S.C. § 7001(c)(1). (c) The disclosures and materials required by §§ 47-18-5517, 47-18-5519 and 47-18-5520 shall be presented in a form that is capable of being accurately reproduced for later reference. (d) With respect to disclosure by means of an Internet web site, the disclosure of the information required by § 47-18-5517(d) must appear on one (1) or more screens that: (1) Contain no other information; and (2) The individual must see before proceeding to assent to formation of an agreement. (e) At the time of providing the materials and agreement required by §§ 47-18-5517(c) and (d), 47-18-5519 and 47-18-5527, a provider shall inform the individual that upon electronic, telephonic or written request, it will send the individual a written copy of the materials and shall comply with a request as provided in subsection (f). (f) If a provider is requested, before the expiration of ninety (90) days after an agreement is completed or terminated, to send a written copy of the materials required by § 47-18-5517(c) and (d), § 47-18-5519, or § 47-18-5527, the provider shall send them at no charge within three (3) business days after the request is received; but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than ninety (90) days after an agreement is completed or terminated, the provider shall send, within a reasonable time, a written copy of the materials requested. (g) A provider that maintains an Internet web site shall disclose on the home page of its web site or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents: (1) Its name and all names under which it does business; (2) Its principal business address, telephone number and electronic-mail address, if any; and (3) The names of its principal officers. (h) Subject to subsection (i), if a consumer who has consented to electronic communication in the manner provided by 15 U.S.C. § 7001 withdraws consent as provided in 15 U.S.C. § 7001, a provider may terminate its agreement with the consumer. (i) If a provider wishes to terminate an agreement with a consumer pursuant to subsection (h), it shall notify the consumer that it will terminate the agreement unless the consumer, within thirty (30) days after receiving the notification, consents to electronic communication in the manner provided in 15 U.S.C. § 7001(c). If the consumer consents, the provider may terminate the agreement only as permitted by § 47-18-5519(a)(6)(G). | |
246 | Ten. Code Ann. 47-18-5519 Form and contents of agreement. | (a) An agreement must: (1) Be in a record; (2) Be dated and signed by the provider and the individual; (3) Include the name of the individual and the address where the individual resides; (4) Include the name, business address and telephone number of the provider; (5) Be delivered to the individual immediately upon formation of the agreement; and (6) Disclose: (A) The services to be provided; (B) The amount, or method of determining the amount, of all fees, individually itemized, to be paid by the individual; (C) The schedule of payments to be made by or on behalf of the individual, including the amount of each payment, the date on which each payment is due and an estimate of the date of the final payment; (D) If a plan provides for regular periodic payments to creditors: (i) Each creditor of the individual to which payment will be made, the amount owed to each creditor and any concessions the provider reasonably believes each creditor will offer; and (ii) The schedule of expected payments to each creditor, including the amount of each payment and the date on which it will be made; (E) Each creditor that the provider believes will not participate in the plan and to which the provider will not direct payment; (F) How the provider will comply with its obligations under § 47-18-5527(a); (G) That the provider may terminate the agreement for good cause, upon return of unexpended money of the individual; (H) That the individual may cancel the agreement as provided in § 47-18-5520; (I) That the individual may contact the administrator with any questions or complaints regarding the provider; and (J) The address, telephone number, and Internet address or web site of the administrator. (b) For purposes of subdivision (a)(5), delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save and print it and the individual is notified that it is available. (c) If the administrator supplies the provider with any information required under subdivision (a)(6)(J), the provider may comply with that requirement only by disclosing the information supplied by the administrator. (d) An agreement must provide that: (1) The individual has a right to terminate the agreement at any time, without penalty or obligation, by giving the provider written or electronic notice, in which event: (A) The provider will refund all unexpended money that the provider or its agent has received from or on behalf of the individual for the reduction or satisfaction of the individual's debt; (B) With respect to an agreement that contemplates that creditors will settle debts for less than the principal amount of debt, the provider will refund sixty-five percent (65%) of any portion of the set-up fee that has not been credited against the settlement fee; and (C) All powers of attorney granted by the individual to the provider are revoked and ineffective; (2) The individual authorizes any bank in which the provider or its agent has established a trust account to disclose to the administrator any financial records relating to the trust account; and (3) The provider will notify the individual within five (5) days after learning of a creditor's final decision to reject or withdraw from a plan and that this notice will include: (A) The identity of the creditor; and (B) The right of the individual to modify or terminate the agreement. (e) An agreement may confer on a provider a power of attorney to settle the individual's debt for no more than fifty percent (50%) of the outstanding amount of the debt. An agreement may not confer a power of attorney to settle a debt for more than fifty percent (50%) of that amount, but may confer a power of attorney to negotiate with creditors of the individual on behalf of the individual. An agreement must provide that the provider will obtain the assent of the individual after a creditor has assented to a settlement for more than fifty percent (50%) of the outstanding amount of the debt. (f) An agreement may not: (1) Provide for application of the law of any jurisdiction other than the United States and this state; (2) Except as permitted by title 29, chapter 5, part 3, or by § 2 of the Federal Arbitration Act, codified in 9 U.S.C. § 2, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this part; (3) Contain a provision that restricts the individual's remedies under this part or law other than this part; or (4) Contain a provision that: (A) Limits or releases the liability of any person for not performing the agreement or for violating this part; or (B) Indemnifies any person for liability arising under the agreement or this part. (g) All rights and obligations specified in subsection (d) and § 47-18-5520 exist even if not provided in the agreement. A provision in an agreement that violates subsection (d), (e) or (f) is void. | |
247 | Ten. Code Ann. 47-18-5520 Cancellation of agreement -- Waiver. | (a) An individual may cancel an agreement before midnight of the third business day after the individual assents to it, unless the agreement does not comply with subsection (b) or § 47-18-5519 or § 47-18-5528, in which event the individual may cancel the agreement within thirty (30) days after the individual assents to it. To exercise the right to cancel, the individual must give notice in a record to the provider. Notice by mail is given when mailed. (b) An agreement must be accompanied by a form that contains in boldface type, surrounded by bold black lines: Notice of Right to Cancel You may cancel this agreement, without any penalty or obligation, at any time before midnight of the third business day that begins the day after you agree to it by electronic communication or by signing it. To cancel this agreement during this period, send an e-mail to ___________________________________ or mail or deliver a signed, dated copy E-mail address of provider of this notice, or any other written notice to _ Name of provider at ___________________________________ before midnight on _. Address of provider Date If you cancel this agreement within the 3-day period, we will refund all money you already have paid us. You also may terminate this agreement at any later time, but we may not be required to refund fees you have paid us. I cancel this agreement, Print your name Signature Date (c) If a personal financial emergency necessitates the disbursement of an individual's money to one (1) or more of the individual's creditors before the expiration of three (3) days after an agreement is signed, an individual may waive the right to cancel. To waive the right, the individual must send or deliver a signed, dated statement in the individual's own words describing the circumstances that necessitate a waiver. The waiver must explicitly waive the right to cancel. A waiver by means of a standard-form record is void. | |
248 | Ten. Code Ann. 47-18-5521 Required language. | Unless the administrator, by rule, provides otherwise, the disclosures and documents required by this part must be in English. If a provider communicates with an individual primarily in a language other than English, the provider must furnish a translation into the other language of the disclosures and documents required by this part. | |
249 | Ten. Code Ann. 47-18-5522 Trust account. | (a) All money paid to a provider by or on behalf of an individual for distribution to creditors pursuant to a plan is held in trust. Within two (2) business days after receipt, the provider shall deposit the money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services. (b) Money held in trust by a provider is not property of the provider or its designee. The money is not available to creditors of the provider or designee, except an individual from whom or on whose behalf the provider received money, to the extent that the money has not been disbursed to creditors of the individual. (c) A provider shall: (1) Maintain separate records of account for each individual to whom the provider is furnishing debt-management services; (2) Disburse money paid by or on behalf of the individual to creditors of the individual as disclosed in the agreement, except that: (A) The provider may delay payment to the extent that a payment by the individual is not final; and (B) If a plan provides for regular periodic payments to creditors, the disbursement must comply with the due dates established by each creditor; and (3) Promptly correct any payments that are not made or that are misdirected as a result of an error by the provider or other person in control of the trust account and reimburse the individual for any costs or fees imposed by a creditor as a result of the failure to pay or misdirection. (d) A provider may not commingle money in a trust account established for the benefit of individuals to whom the provider is furnishing debt-management services with money of other persons. (e) A trust account must at all times have a cash balance equal to the sum of the balances of each individual's account. (f) If a provider has established a trust account pursuant to subsection (a), the provider shall reconcile the trust account at least once a month. The reconciliation must compare the cash balance in the trust account with the sum of the balances in each individual's account. If the provider or its designee has more than one (1) trust account, each trust account must be individually reconciled. (g) If a provider discovers, or has a reasonable suspicion of, embezzlement or other unlawful appropriation of money held in trust, the provider immediately shall notify the administrator by a method approved by the administrator. Unless the administrator by rule provides otherwise, within five (5) days thereafter, the provider shall give notice to the administrator describing the remedial action taken or to be taken. (h) If an individual terminates an agreement or it becomes reasonably apparent to a provider that a plan has failed, the provider shall promptly refund to the individual all money paid by or on behalf of the individual that has not been paid to creditors, less fees that are payable to the provider under § 47-18-5523. (i) Before relocating a trust account from one bank to another, a provider shall inform the administrator of the name, business address and telephone number of the new bank. As soon as practicable, the provider shall inform the administrator of the account number of the trust account at the new bank. | |
250 | Ten. Code Ann. 47-18-5523 Fees and other charges. | (a) A provider may not impose directly or indirectly a fee or other charge on an individual or receive money from or on behalf of an individual for debt-management services except as permitted by this section.
(b) A provider may not impose charges or receive payment for debt-management services until the provider and the individual have signed an agreement that complies with §§ 47-18-5519 and 47-18-5528. (c) If an individual assents to an agreement, a provider may not impose a fee or other charge for educational or counseling services, or the like, except as otherwise provided in this subsection (c) and § 47-18-5528(d). The administrator may authorize a provider to charge a fee based on the nature and extent of the educational or counseling services furnished by the provider. (d) Subject to adjustment of dollar amounts pursuant to § 47-18-5532(f), the following rules apply: (1) If an individual assents to a plan that contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may charge: (A) A fee not exceeding fifty dollars ($50.00) for consultation, obtaining a credit report, setting up an account, and the like; and (B) A monthly service fee, not to exceed ten dollars ($10.00) times the number of creditors remaining in a plan at the time the fee is assessed, but not more than fifty dollars ($50.00) in any month; (2) [Deleted by 2014 amendment, effective July 1, 2014.] (3) [Deleted by 2014 amendment, effective July 1, 2014.] (4) Except as otherwise provided in § 47-18-5528(d), if an individual does not assent to an agreement, a provider may receive for educational and counseling services it provides to the individual a fee not exceeding one hundred dollars ($100) or, with the approval of the administrator, a larger fee. The administrator may approve a fee larger than one hundred dollars ($100) if the nature and extent of the educational and counseling services warrant the larger fee. (e) If, before the expiration of ninety (90) days after the completion or termination of educational or counseling services, an individual assents to an agreement, the provider shall refund to the individual any fee paid pursuant to subdivision (d)(4). (f) If an individual assents to an agreement that contemplates that creditors will settle debts for less than the amount of the debt owed at the time of settlement, a provider may not request or receive payment of any fee or consideration until and unless: (1) The provider has renegotiated, settled, reduced or otherwise altered the terms of at least one (1) debt pursuant to a settlement agreement or other valid contractual agreement executed by the individual; (2) The individual has made at least one (1) payment pursuant to that settlement agreement or other valid contractual agreement between the individual and the creditor or debt collector; and (3) To the extent that debts enrolled in a service are renegotiated, settled, reduced or otherwise altered individually, the fee or consideration either: (A) Bears the same proportional relationship to the total fee for renegotiating, settling, reducing or otherwise altering the terms of the entire debt balance as the individual debt amount bears to the entire debt amount. The individual debt amount and the entire debt amount are those owed at the time the debt was enrolled in the service; or (B) Is a percentage of the amount saved as a result of the renegotiation, settlement, reduction or alteration. The percentage charged cannot change from one individual debt to another. The amount saved is the difference between the amount owed at the time the debt was enrolled in the service and the amount actually paid to satisfy the debt. (g) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a payment to a provider by an individual under this part is dishonored, a provider may impose a reasonable charge on the individual, not to exceed the lesser of twenty-five dollars ($25.00) and the amount permitted by law other than this part. | |
251 | Ten. Code Ann. 47-18-5524 Voluntary contributions. | A provider may not solicit a voluntary contribution from an individual or an affiliate of the individual for any service provided to the individual. A provider may accept voluntary contributions from an individual but, until thirty (30) days after completion or termination of a plan, the aggregate amount of money received from or on behalf of the individual may not exceed the total amount the provider may charge the individual under § 47-18-5523. | |
252 | Ten. Code Ann. 47-18-5525 Voidable agreements. | (a) If a provider imposes a fee or other charge or receives money or other payments not authorized by § 47-18-5523 or § 47-18-5524, the individual may void the agreement and recover as provided in § 47-18-5535. (b) If a provider is not registered as required by this part when an individual assents to an agreement, the agreement is voidable by the individual. (c) If an individual voids an agreement under subsection (b), the provider does not have a claim against the individual for breach of contract or for restitution. | |
253 | Ten. Code Ann. 47-18-5526 Termination of agreement. | (a) If an individual who has entered into an agreement fails for sixty (60) days to make payments required by the agreement, a provider may terminate the agreement. (b) If a provider or an individual terminates an agreement, the provider shall immediately return to the individual: (1) Any money of the individual held in trust for the benefit of the individual; and (2) Sixty-five percent (65%) of any portion of the set-up fee received pursuant to § 47-18-5523(d)(2) that has not been credited against settlement fees. | |
254 | Ten. Code Ann. 47-18-5527 Periodic reports and retention of records. | (a) A provider shall provide the accounting required by subsection (b): (1) Upon cancellation or termination of an agreement; and (2) Before cancellation or termination of any agreement: (A) At least once each month; and (B) Within five (5) business days after a request by an individual, but the provider need not comply with more than one (1) request in any calendar month. (b) A provider, in a record, shall provide each individual for whom it has established a plan an accounting of the following information: (1) The amount of money received from the individual since the last report; (2) The amounts and dates of disbursements made on the individual's behalf, or by the individual upon the direction of the provider, since the last report to each creditor listed in the plan; (3) The amounts deducted from the amount received from the individual; (4) The amount held in reserve; and (5) If, since the last report, a creditor has agreed to accept as payment in full an amount less than the principal amount of the debt owed by the individual: (A) The total amount and terms of the settlement; (B) The amount of the debt when the individual assented to the plan; (C) The amount of the debt when the creditor agreed to the settlement; and (D) The calculation of a settlement fee. (c) A provider shall maintain records for each individual for whom it provides debt-management services for five (5) years after the final payment made by the individual and produce a copy of them to the individual within a reasonable time after a request for them. The provider may use electronic or other means of storage of the records. | |
255 | Ten. Code Ann. 47-18-5528 Prohibited acts and practices. | (a) A provider may not, directly or indirectly: (1) Misappropriate or misapply money held in trust; (2) Settle a debt on behalf of an individual for more than fifty percent (50%) of the outstanding amount of the debt owed a creditor, unless the individual assents to the settlement after the creditor has assented; (3) Take a power of attorney that authorizes it to settle a debt, unless the power of attorney expressly limits the provider's authority to settle debts for not more than fifty percent (50%) of the outstanding amount of the debt owed a creditor; (4) Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement; (5) Initiate a transfer from an individual's account at a bank or with another person unless the transfer is: (A) A return of money to the individual; or (B) Before termination of an agreement, properly authorized by the agreement and this part, and for: (i) Payment to one (1) or more creditors pursuant to an agreement; or (ii) Payment of a fee; (6) Offer a gift or bonus, premium, reward or other compensation to an individual for executing an agreement; (7) Offer, pay or give a gift or bonus, premium, reward or other compensation to a person for referring a prospective customer, if the person making the referral has a financial interest in the outcome of debt-management services provided to the customer, unless neither the provider nor the person making the referral communicates to the prospective customer the identity of the source of the referral; (8) Receive a bonus, commission or other benefit for referring an individual to a person; (9) Structure a plan in a manner that would result in a negative amortization of any of an individual's debts, unless a creditor that is owed a negatively amortizing debt agrees to refund or waive the finance charge upon payment of the principal amount of the debt; (10) Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements; (11) Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification by the creditor that the payment is in full settlement of the debt or is part of a payment plan, the terms of which are included in the certification, that upon completion, will lead to full settlement of the debt; (12) Make a representation that: (A) The provider will furnish money to pay bills or prevent attachments; (B) Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or (C) Participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction or loss of employment; (13) Misrepresent that it is authorized or competent to furnish legal advice or perform legal services; (14) Represent in its agreements, disclosures required by this part, advertisements or Internet web site that it is: (A) A not-for-profit entity unless it is organized and properly operating as a not-for-profit entity under the law of the state in which it was formed; or (B) A tax-exempt entity unless it has received certification of tax-exempt status from the internal revenue service and is properly operating as a not-for-profit entity under the law of the state in which it was formed; (15) Take a confession of judgment or power of attorney to confess judgment against an individual; or (16) Employ an unfair, unconscionable or deceptive act or practice, including the knowing omission of any material information. (b) If a provider furnishes debt-management services to an individual, the provider may not, directly or indirectly: (1) Purchase a debt or obligation of the individual; (2) Receive from or on behalf of the individual: (A) A promissory note or other negotiable instrument other than a check or a demand draft; or (B) A post-dated check or demand draft; (3) Lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual; (4) Obtain a mortgage or other security interest from any person in connection with the services provided to the individual; (5) Except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual's creditors, except to: (A) The administrator, upon proper demand; (B) A creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or (C) The extent necessary to administer the plan; (6) Except as otherwise provided in § 47-18-5523(f), provide the individual less than the full benefit of a compromise of a debt arranged by the provider; (7) Charge the individual for or provide credit or other insurance, coupons for goods or services, membership in a club, access to computers or the Internet, or any other matter not directly related to debt-management services or educational services concerning personal finance except to the extent such services are expressly authorized by the administrator; or (8) Furnish legal advice or perform legal services, unless the person furnishing that advice to or performing those services for the individual is licensed to practice law. (c) This part does not authorize any person to engage in the practice of law. (d) A provider may not receive a gift or bonus, premium, reward or other compensation, directly or indirectly, for advising, arranging or assisting an individual in connection with obtaining an extension of credit or other service from a lender or service provider, except for educational or counseling services required in connection with a government-sponsored program. (e) Unless a person supplies goods, services or facilities generally and supplies them to the provider at a cost no greater than the cost the person generally charges to others, a provider may not purchase goods, services or facilities from the person if an employee or a person that the provider should reasonably know is an affiliate of the provider: (1) Owns more than ten percent (10%) of the person; or (2) Is an employee or affiliate of the person. | |
256 | Ten. Code Ann. 47-18-5529 Notice of litigation. | No later than thirty (30) days after a provider has been served with notice of a civil action for violation of this part by or on behalf of an individual who resides in this state at either the time of an agreement or the time the notice is served, the provider shall notify the administrator in a record that it has been sued. | |
257 | Ten. Code Ann. 47-18-5530 Advertising. | (a) If the agreements of a provider contemplate that creditors will reduce finance charges or fees for late payment, default or delinquency and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, that using a debt-management plan may make it harder for the individual to obtain credit. (b) If the agreements of a provider contemplate that creditors will settle for less than the full principal amount of debt and the provider advertises debt-management services, it shall disclose, in an easily comprehensible manner, the information specified in § 47-18-5517(d)(3) and (4). | |
258 | Ten. Code Ann. 47-18-5531 Liability for the conduct of other persons. | If a provider delegates any of its duties or obligations under an agreement or this part to another person, including an independent contractor, the provider is liable for conduct of the person that, if done by the provider, would violate the agreement or this part. | |
259 | Ten. Code Ann. 47-18-5532 Powers of administrator. | (a) The administrator may act on its own initiative or in response to complaints and may receive complaints, take action to obtain voluntary compliance with this part, refer cases to the attorney general and reporter, or a district attorney general or other appropriate law enforcement official, and seek or provide remedies as provided in this part. (b) The administrator may investigate and examine, in this state or elsewhere, by subpoena or otherwise, the activities, books, accounts and records of a person that provides or offers to provide debt-management services, or a person to which a provider has delegated its obligations under an agreement or this part, to determine compliance with this part. Information that identifies individuals who have agreements with the provider shall not be disclosed to the public. In connection with the investigation, the administrator may: (1) Charge the person the reasonable expenses necessarily incurred to conduct the examination; (2) Require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated; and (3) Seek a court order authorizing seizure from a bank at which the person maintains a trust account required by § 47-18-5522, any or all money, books, records, accounts and other property of the provider that is in the control of the bank and relates to individuals who reside in this state. (c) The administrator may promulgate rules to administer this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. (d) The administrator may enter into cooperative arrangements with any other federal or state agency having authority over providers and may exchange with any of those agencies information about a provider, including information obtained during an examination of the provider. (e) The administrator, by rule, shall establish reasonable fees to be paid by providers for the expense of administering this part. (f) The administrator, by rule, shall adopt dollar amounts instead of those specified in §§ 47-18-5502, 47-18-5505, 47-18-5509, 47-18-5513, 47-18-5523, 47-18-5533 and 47-18-5535 to reflect inflation, as measured by the United States bureau of labor statistics consumer price index for all urban consumers or, if that index is not available, another index adopted by rule by the administrator. The administrator shall adopt a base year and adjust the dollar amounts, effective on July 1 of each year, if the change in the index from the base year, as of December 31 of the preceding year, is at least ten percent (10%). The dollar amount must be rounded to the nearest one hundred dollars ($100),except that the amounts in § 47-18-5523 must be rounded to the nearest dollar. (g) The administrator shall notify registered providers of any change in dollar amounts made pursuant to subsection (f) and make that information available to the public. (h) The administrator shall prescribe fees and penalties under this part such that all fees collectively shall sustain the requirements of this part pursuant to the requirements of § 4-29-121. | |
260 | Ten. Code Ann. 47-18-5533 Administrative remedies. | (a) The administrator may enforce this part and rules adopted under this part by taking one (1) or more of the following actions:
(1) Ordering a provider or a director, employee or other agent of a provider to cease and desist from any violations; (2) Ordering a provider or a person that has caused a violation to correct the violation, including making restitution of money or property to a person aggrieved by a violation; (3) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), imposing on a provider or a person who has caused a violation a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this part or any rule promulgated pursuant to this part; (4) Prosecuting a civil action to: (A) Enforce an order; (B) Obtain restitution or an injunction or other equitable relief, or both; or (5) Intervening in an action brought under § 47-18-5535. (b) Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), if a person violates or knowingly authorizes, directs or aids in the violation of a final order issued under subdivision (a)(1) or (a)(2), the administrator may impose a civil penalty not exceeding twenty thousand dollars ($20,000) for each violation. (c) The administrator may maintain an action to enforce this part in any county. (d) The administrator may recover the reasonable costs of enforcing this part under subsections (a)-(c), including attorney's fees based on the hours reasonably expended and the hourly rates for attorneys of comparable experience in the community. (e) In determining the amount of a civil penalty to impose under subsection (a) or (b), the administrator shall consider the seriousness of the violation, the good faith of the violator, any previous violations by the violator, the deleterious effect of the violation on the public and any other factor the administrator considers relevant to the determination of the civil penalty. | |
261 | Ten. Code Ann. 47-18-5534 Suspension, revocation, or nonrenewal of registration. | (a) In this section, “insolvent” means: (1) Having generally ceased to pay debts in the ordinary course of business other than as a result of good faith dispute; (2) Being unable to pay debts as they become due; or (3) Being insolvent within the meaning of the federal bankruptcy law, 11 U.S.C. § 101 et seq. (b) The administrator may suspend, revoke or deny renewal of a provider's registration if: (1) A fact or condition exists that, if it had existed when the registrant applied for registration as a provider, would have been a reason for denying registration; (2) The provider has committed a material violation of this part or a rule or order of the administrator under this part; (3) The provider is insolvent; (4) The provider or an employee or affiliate of the provider has refused to permit the administrator to make an examination authorized by this part, failed to comply with § 47-18-5532(b)(2) within fifteen (15) days after request or made a material misrepresentation or omission in complying with § 47-18-5532(b)(2); or (5) The provider has not responded within a reasonable time and in an appropriate manner to communications from the administrator. (c) If a provider does not comply with § 47-18-5522(f) or if the administrator otherwise finds that the public health or safety or general welfare requires emergency action, the administrator may order a summary suspension of the provider's registration, effective on the date specified in the order. (d) If the administrator suspends, revokes or denies renewal of the registration of a provider, the administrator may seek a court order authorizing seizure of any or all of the money in a trust account required by § 47-18-5522, books, records, accounts and other property of the provider that are located in this state. (e) If the administrator suspends or revokes a provider's registration, the provider may appeal and request a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. | |
262 | Ten. Code Ann. 47-18-5535 Private enforcement. | (a) If an individual voids an agreement pursuant to § 47-18-5525(b), the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except amounts paid to creditors, in addition to the recovery under subdivisions (c)(3) and (4). (b) If an individual voids an agreement pursuant to § 47-18-5525(a), the individual may recover in a civil action three (3) times the total amount of the fees, charges, money and payments made by the individual to the provider, in addition to the recovery under subdivision (c)(4). (c) Subject to subsection (d), an individual with respect to whom a provider violates this part may recover in a civil action from the provider and any person that caused the violation: (1) Compensatory damages for injury, including noneconomic injury, caused by the violation; (2) Except as otherwise provided in subsection (d) and subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), with respect to a violation of § 47-18-5517, § 47-18-5519, § 47-18-5520, § 47-18-5521, § 47-18-5522, § 47-18-5523, § 47-18-5524, § 47-18-5527 or § 47-18-5528(a), (b), or (d), the greater of the amount recoverable under subdivision (c)(1) or five thousand dollars ($5,000); (3) Punitive damages; and (4) Reasonable attorney's fees and costs. (d) In a class action, except for a violation of § 47-18-5528(a)(5), the minimum damages provided in subdivision (c)(2) do not apply. (e) In addition to the remedy available under subsection (c), if a provider violates an individual's rights under § 47-18-5520, the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except for amounts paid to creditors. (f) A provider is not liable under this section for a violation of this part if the provider proves that the violation was not intentional and resulted from a good faith error notwithstanding the maintenance of procedures reasonably adapted to avoid the error. An error of legal judgment with respect to a provider's obligations under this part is not a good faith error. If, in connection with a violation, the provider has received more money than authorized by an agreement or this part, the defense provided by this subsection (f) is not available unless the provider refunds the excess within two (2) business days of learning of the violation. (g) The administrator shall assist an individual in enforcing a judgment against the surety bond or other security provided under § 47-18-5513 or § 47-18-5514. | |
263 | Ten. Code Ann. 47-18-5536 Violation of Consumer Protection Act. | If an act or practice of a provider violates both this part and the Tennessee Consumer Protection Act of 1977, compiled in part 1 of this chapter, an individual may not recover under both for the same act or practice. | |
264 | Ten. Code Ann. 47-18-5537 Statute of limitations. | (a) An action or proceeding brought pursuant to § 47-18-5533(a), (b), or (c) shall be commenced within four (4) years after the administrator opens a complaint.
(b) An action brought pursuant to § 47-18-5535 must be commenced within two (2) years after the latest of: (1) The individual's last transmission of money to a provider; (2) The individual's last transmission of money to a creditor at the direction of the provider; (3) The provider's last disbursement to a creditor of the individual; (4) The provider's last accounting to the individual pursuant to § 47-18-5527(a); (5) The date on which the individual discovered or reasonably should have discovered the facts giving rise to the individual's claim; or (6) Termination of actions or proceedings by the administrator with respect to a violation of the part. (c) The period prescribed in subdivision (b)(5) is tolled during any period during which the provider or, if different, the defendant has materially and willfully misrepresented information required by this part to be disclosed to the individual, if the information so misrepresented is material to the establishment of the liability of the defendant under this part. | |
265 | Ten. Code Ann. 47-18-5538 Uniformity of application and construction. | In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. | |
266 | Ten. Code Ann. 47-18-5539 Relation to Electronic Signatures in Global And National Commerce Act. | This part modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit or supersede § 101(c) of that act, codified in 15 U. S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, codified in 15 U.S.C. § 7003(b). | |
267 | Ten. Code Ann. 47-18-5540 Transitional provisions -- Application to existing transactions. | Transactions entered into before this part takes effect and the rights, duties and interests resulting from them may be completed, terminated or enforced as required or permitted by a law amended, repealed or modified by this part as though the amendment, repeal or modification had not occurred. | |
268 | Ten. Code Ann. 47-18-5541 Severability. | If any provision of this part or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this part that can be given effect without the invalid provision or application, and to this end the provisions of this part are severable. | |
269 | Ten. Code Ann. 47-18-5542. Transfer of administration to division of regulatory boards. | Beginning on July 1, 2015, administration of this part on behalf of the administrator shall be attached to the division of regulatory boards in the department of commerce and insurance. |