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PAG LIN 1 1 Section 1. Section 9C.1, Code 1995, is amended to read as 1 2 follows: 1 3 9C.1 DEFINITIONS. 1 4The term "transient"Transient merchant" as usedherein1 5shall mean and includein this chapter includes every 1 6 merchant, whether an individual person, a firm, corporation, 1 7 partnership, or association, and whether owner, agent, bailee, 1 8 consignee, or employee, who shall bring or cause to be brought 1 9 within the state of Iowa any goods, wares, or merchandise of 1 10 any kind, nature, or description, with the intention of 1 11 temporarily or intermittently selling or offering to sell at 1 12 retail such goods, wares, or merchandise within the state of 1 13 Iowa.The term "transient"Transient merchant"shallalso 1 14mean and includeincludes every merchant, whether an 1 15 individual person, a firm, corporation, partnership, or an 1 16 association, who shall by itself, or by agent, consignee, or 1 17 employee temporarily or intermittently engage in or conduct at 1 18 one or more locations a business within the state of Iowa for 1 19 the sale at retail of any goods, wares, or merchandise of any 1 20 nature or description. A merchant engaging in business shall 1 21 be presumed to be temporarily or intermittently in business 1 22 unless it is the intention ofsuchthe merchant to remain 1 23 continuously in business at each location where the merchant 1 24 is engaged in business within the state of Iowa as a merchant 1 25 for a period of more than sixty days. The provisions of this 1 26 chapter shall not be construed to apply to persons selling at 1 27 wholesale to merchants,nor totransient vendors of drugs,nor1 28topersons running a huckster wagon, or selling or 1 29 distributing livestock feeds, fresh meats, fish, fruit, or 1 30 vegetables,nor toor persons selling their own work or 1 31 production either by themselves or employees. 1 32 "Merchandise" means as defined in section 714.16. 1 33 Sec. 2. Section 554.9402, subsection 2, unnumbered 1 34 paragraph 1, Code 1995, is amended to read as follows: 1 35 A financing statement which otherwise complies with 2 1 subsection 1 is sufficient when it is signed by the secured 2 2 party instead of the debtor ifita previously recorded 2 3 financing statement exists which was executed by the debtor in 2 4 favor of that secured party and if the financing statement 2 5 signed by the secured party is filed to perfect a security 2 6 interest in 2 7 Sec. 3. Section 714.16, subsection 4, paragraphs b and c, 2 8 Code 1995, are amended by striking the paragraphs and 2 9 inserting in lieu thereof the following: 2 10 b. Subject to paragraph "c", information, documents, 2 11 testimony, or other evidence provided the attorney general by 2 12 a person pursuant to subsection 3 and paragraph "a" of this 2 13 subsection, or provided by a person as evidence in any civil 2 14 action brought pursuant to this section, shall not be admitted 2 15 in evidence, or used in any manner whatsoever, in any criminal 2 16 prosecution or forfeiture proceeding against that person. If 2 17 a criminal prosecution or forfeiture proceeding is initiated 2 18 in a state court against a person who has provided information 2 19 pursuant to paragraph "c", the state shall have the burden of 2 20 proof that the information provided was not used in any manner 2 21 to further the criminal investigation, prosecution, or 2 22 forfeiture proceeding. 2 23 c. Paragraph "b" shall not apply unless the person has 2 24 first asserted a right against self-incrimination and the 2 25 attorney general has elected to provide the person with a 2 26 written statement that the information, documents, testimony, 2 27 or other evidence at issue are subject to paragraph "b". 2 28 After a person has been provided such written statement by the 2 29 attorney general, a claim of privilege against self- 2 30 incrimination is not a defense to any action or proceeding to 2 31 obtain the information, documents, testimony, or other 2 32 evidence. Nothing in this section limiting the use of 2 33 evidence in a criminal proceeding shall apply to any 2 34 prosecution or proceeding for perjury or contempt of court 2 35 committed in the course of the giving or production of the 3 1 information, documents, testimony, or other evidence. 3 2 Sec. 4. Section 714.16, subsections 5 and 6, Code 1995, 3 3 are amended to read as follows: 3 4 5. Service by the attorney general of any notice requiring 3 5 a person to file a statement or report, or of a subpoena upon 3 6 any person, shall be made personally within this state or by 3 7 certified mail to the last known place of business, residence, 3 8 or abode within this state of such person, but if such cannot 3 9 be obtained, substituted servicethereforof the notice or 3 10 subpoena may be made in any of the followingmannermanners: 3 11 a. Personal servicethereofof the notice or subpoena 3 12 without this state; or. 3 13 b. The mailingthereofof the notice or subpoena by 3 14registeredcertified mail to the last known place of business, 3 15 residence, or abode within or without this state of such 3 16 person for whom thesamenotice or subpoena is intended; or. 3 17 c. As to any person other than a natural person, in the 3 18 manner provided in the Rules of Civil Procedure as if a 3 19 petition had been filed; or. 3 20 d. Such service as a district court may direct in lieu of 3 21 personal service or service by certified mail within this 3 22 state. 3 23 6. If any person fails or refuses to file any statement or 3 24 report, or obey any subpoena issued by the attorney general, 3 25 the attorney general may, after notice, apply toathe Polk 3 26 county district court or the district court for the county in 3 27 which the person resides or is located and, after hearing 3 28thereof, request an order doing any of the following: 3 29 a. Granting injunctive relief, restraining the sale or 3 30 advertisement of any merchandise by such persons;. 3 31 b. Dissolving a corporation created by or under the laws 3 32 of this state or revoking or suspending the certificate of 3 33 authority to do business in this state of a foreign 3 34 corporation or revoking or suspending any other licenses, 3 35 permits, or certificates issued pursuant to law to such person 4 1 which are used to further the allegedly unlawful practice;4 2and. 4 3 c. Granting such other relief as may be required; until 4 4 the person files the statement or report, or obeys the 4 5 subpoena. 4 6 Sec. 5. Section 714.16, Code 1995, is amended by adding 4 7 the following new subsection: 4 8 NEW SUBSECTION. 15. The attorney general may bring an 4 9 action on behalf of the residents of this state, or as parens 4 10 patriae, under the federal telemarketing and consumer fraud 4 11 and abuse prevention Act, Pub. L. No. 103-297, and pursue any 4 12 and all enforcement options available under that Act. 4 13 Subsequent amendments to that Act which do not substantially 4 14 alter its structure and purpose shall not be construed to 4 15 affect the authority of the attorney general to pursue an 4 16 action pursuant to this section, except to the extent the 4 17 amendments specifically restrict the authority of the attorney 4 18 general. 4 19 Sec. 6. Section 714.16A, subsection 1, Code 1995, is 4 20 amended to read as follows: 4 21 1. If a person violates section 714.16, and the violation 4 22 is committed against an older person, in an action brought by 4 23 the attorney general, in addition to any other civil penalty, 4 24 the court may impose an additional civil penalty not to exceed 4 25 five thousand dollars for each such violation. Additionally, 4 26 the attorney general may accept a civil penalty as determined 4 27 by the attorney general in settlement of an investigation of a 4 28 violation of section 714.16, regardless of whether an action 4 29 has been filed pursuant to section 714.16. 4 30 A civil penalty imposed by a court or determined and 4 31 accepted by the attorney general pursuant to this section 4 32 shall be paid to the treasurer of state, who shall deposit the 4 33 money in the elderly victim fund, a separate fund created in 4 34 the state treasury and administered by the attorney general 4 35 for the investigation and prosecution of frauds against the 5 1 elderly. Notwithstanding section 8.33, any balance in the 5 2 fund on June 30 of any fiscal year shall not revert to the 5 3 general fund of the state. An award of reimbursement pursuant 5 4 to section 714.16 has priority over a civil penalty imposed by 5 5 the court pursuant to this subsection. 5 6 Sec. 7. Section 725.12, Code 1995, is amended by adding 5 7 the following new unnumbered paragraph: 5 8 NEW UNNUMBERED PARAGRAPH. A violation of this section is a 5 9 violation of section 714.16, subsection 2, paragraph "a". 5 10 EXPLANATION 5 11 This bill amends provisions relating to certain consumer 5 12 protections. 5 13 Section 9C.1 is amended to define "merchandise" which is 5 14 sold by transient merchants as the same as provided for in 5 15 section 714.16, subsection 1. 5 16 Section 554.9402, which relates to financing statements 5 17 under the uniform commercial code, is amended to provide that 5 18 a financing statement which is signed by the secured party 5 19 instead of the debtor and is otherwise sufficient under the 5 20 section, is sufficient only if there exists a previously 5 21 recorded financing statement executed by the debtor in favor 5 22 of the secured party. 5 23 Section 714.16, subsection 4, is amended by striking 5 24 current paragraphs "b" and "c", which provide limited immunity 5 25 from criminal prosecution to a person providing information in 5 26 a civil action brought by the attorney general under section 5 27 714.16, and rewriting those paragraphs to provide that such 5 28 immunity shall not arise unless the person providing the 5 29 information has first asserted a right against self- 5 30 incrimination and the attorney general provides a written 5 31 statement that information provided by the person will not be 5 32 used in a subsequent criminal action. 5 33 Section 714.16, subsection 5, is amended to provide that 5 34 the notice requiring a person to file a statement or report, 5 35 or of a subpoena, which currently must be made personally when 6 1 made within this state, may now also be made by certified mail 6 2 to the last known place of business, residence, or abode of 6 3 the person within the state. Certified mail is defined in 6 4 Code section 618.15. Section 714.16, subsection 6, is amended 6 5 to provide that the attorney general may commence an action 6 6 under section 714.16 against a person who fails to respond to 6 7 a subpoena or other formal investigation request of the 6 8 attorney general in the Polk county district court, as well as 6 9 the district court in the county in which the person resides 6 10 or is located. 6 11 Section 714.16 is amended by adding a new subsection which 6 12 provides that the attorney general may bring an action on 6 13 behalf of the residents of this state under the federal 6 14 Telemarketing and Consumer Fraud and Abuse Prevention Act. 6 15 Section 714.16A is amended to provide that the attorney 6 16 general may establish and accept a settlement amount related 6 17 to an investigation of a consumer fraud allegedly committed 6 18 against an older person which does not proceed to court. 6 19 Section 725.12, which relates to illegal lotteries, is 6 20 amended to provide that a violation of that section is also a 6 21 violation of section 714.16, subsection 2, paragraph "a", 6 22 relating to fraudulent and deceptive advertising. 6 23 LSB 1170SC 76 6 24 mj/jw/5
Text: SSB00180 Text: SSB00182 Text: SSB00100 - SSB00199 Text: SSB Index Bills and Amendments: General Index Bill History: General Index
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