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Text: SSB00151                          Text: SSB00153
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Senate Study Bill 152

Bill Text

  1  1    Section 1.  Section 714.16, subsection 4, paragraphs b and
  1  2 c, Code 1997, are amended by striking the paragraphs and
  1  3 inserting in lieu thereof the following:
  1  4    b.  Subject to paragraph "c", information, documents,
  1  5 testimony, or other evidence provided to the attorney general
  1  6 by a person pursuant to paragraph "a" or subsection 3, or
  1  7 provided by a person as evidence in any civil action brought
  1  8 pursuant to this section, shall not be admitted in evidence,
  1  9 or used in any manner whatsoever, in any criminal prosecution
  1 10 or forfeiture proceeding against that person.  If a criminal
  1 11 prosecution or forfeiture proceeding is initiated in a state
  1 12 court against a person who has provided information pursuant
  1 13 to paragraph "a" or subsection 3, the state shall have the
  1 14 burden of proof that the information provided was not used in
  1 15 any manner to further the criminal investigation, prosecution,
  1 16 or forfeiture proceeding.
  1 17    c.  Paragraph "b" does not apply unless the person has
  1 18 first asserted a right against self-incrimination and the
  1 19 attorney general has elected to provide the person with a
  1 20 written statement that the information, documents, testimony,
  1 21 or other evidence at issue are subject to paragraph "b".
  1 22 After a person has been provided with such a written statement
  1 23 by the attorney general, a claim of privilege against self-
  1 24 incrimination is not a defense to any action or proceeding to
  1 25 obtain the information, documents, testimony, or other
  1 26 evidence.  The limitation on the use of evidence in a criminal
  1 27 proceeding contained in this section does not apply to any
  1 28 prosecution or proceeding for perjury or contempt of court
  1 29 committed in the course of the giving or production of the
  1 30 information, documents, testimony, or other evidence.
  1 31    Sec. 2.  Section 714.16, subsections 5 and 6, Code 1997,
  1 32 are amended to read as follows:
  1 33    5.  Service by the attorney general of any a notice
  1 34 requiring a person to file a statement or report, or of a
  1 35 subpoena upon any person, shall be made personally within this
  2  1 state or by certified mail to the last known place of
  2  2 business, residence, or abode within this state of such
  2  3 person, but if such cannot be obtained, substituted service
  2  4 therefor of the notice or subpoena may be made in pursuant to
  2  5 any of the following manner:
  2  6    a.  Personal service thereof of the notice or subpoena
  2  7 without this state; or.
  2  8    b.  The mailing thereof of the notice or subpoena by
  2  9 registered certified mail to the last known place of business,
  2 10 residence, or abode within or without this state of such the
  2 11 person for whom the same notice or subpoena is intended; or.
  2 12    c.  As to any person other than a natural person, in the
  2 13 manner provided in the Rules of Civil Procedure as if a
  2 14 petition had been filed; or.
  2 15    d.  Such service as a district court may direct in lieu of
  2 16 personal service or service by certified mail within this
  2 17 state.
  2 18    6.  If any a person fails or refuses to file any a
  2 19 statement or report, or obey any subpoena issued by the
  2 20 attorney general, the attorney general may, after notice,
  2 21 apply to a the Polk county district court or the district
  2 22 court for the county in which the person resides or is located
  2 23 and, after hearing thereof, request an order:
  2 24    a.  Granting injunctive relief, restraining the sale or
  2 25 advertisement of any merchandise by such persons;.
  2 26    b.  Dissolving a corporation created by or under the laws
  2 27 of this state or revoking or suspending the certificate of
  2 28 authority to do business in this state of a foreign
  2 29 corporation or revoking or suspending any other licenses,
  2 30 permits, or certificates issued pursuant to law to such person
  2 31 which are used to further the allegedly unlawful practice;
  2 32 and.
  2 33    c.  Granting such other relief as may be required; until
  2 34 the person files the statement or report, or obeys the
  2 35 subpoena.
  3  1    Sec. 3.  Section 714.16, Code 1997, is amended by adding
  3  2 the following new subsection:
  3  3    NEW SUBSECTION.  15.  The attorney general may bring an
  3  4 action on behalf of the residents of this state, or as parens
  3  5 patriae, under the federal Telemarketing and Consumer Fraud
  3  6 and Abuse Prevention Act, Pub. L. No. 103-297, and pursue any
  3  7 and all enforcement options available under that Act.
  3  8 Subsequent amendments to that Act which do not substantially
  3  9 alter its structure and purpose shall not be construed to
  3 10 affect the authority of the attorney general to pursue an
  3 11 action pursuant to this section, except to the extent the
  3 12 amendments specifically restrict the authority of the attorney
  3 13 general.
  3 14    Sec. 4.  Section 714.16A, subsection 1, Code 1997, is
  3 15 amended to read as follows:
  3 16    1.  If a person violates section 714.16, and the violation
  3 17 is committed against an older person, in an action brought by
  3 18 the attorney general, in addition to any other civil penalty,
  3 19 the court may impose an additional civil penalty not to exceed
  3 20 five thousand dollars for each such violation.  Additionally,
  3 21 the attorney general may accept a civil penalty as determined
  3 22 by the attorney general in settlement of an investigation of a
  3 23 violation of section 714.16, regardless of whether an action
  3 24 has been filed pursuant to section 714.16.
  3 25    A civil penalty imposed by a court or determined and
  3 26 accepted by the attorney general pursuant to this section
  3 27 shall be paid to the treasurer of state, who shall deposit the
  3 28 money in the elderly victim fund, a separate fund created in
  3 29 the state treasury and administered by the attorney general
  3 30 for the investigation and prosecution of frauds against the
  3 31 elderly.  Notwithstanding section 8.33, any balance in the
  3 32 fund on June 30 of any fiscal year shall not revert to the
  3 33 general fund of the state.  An award of reimbursement pursuant
  3 34 to section 714.16 has priority over a civil penalty imposed by
  3 35 the court pursuant to this subsection.  
  4  1                           EXPLANATION
  4  2    This bill amends provisions of the consumer fraud law.
  4  3    Section 714.16, subsection 4, is amended by striking
  4  4 existing paragraphs "b" and "c", which provide limited
  4  5 immunity from criminal prosecution to a person providing
  4  6 information in a civil action brought by the attorney general
  4  7 under section 714.16, and rewriting those paragraphs to
  4  8 provide that such immunity shall not arise unless the person
  4  9 providing the information has first asserted a right against
  4 10 self-incrimination and the attorney general provides a written
  4 11 statement that information provided by the person will not be
  4 12 used in a subsequent criminal action.
  4 13    Section 714.16, subsection 5, is amended to provide that
  4 14 the notice requiring a person to file a statement or report,
  4 15 or of a subpoena, which currently must be made personally when
  4 16 made within this state, may now also be made by certified mail
  4 17 to the last known place of business, residence, or abode of
  4 18 the person within the state.  Section 714.16, subsection 6, is
  4 19 amended to provide that the attorney general may commence an
  4 20 action under section 714.16 against a person who fails to
  4 21 respond to a subpoena or other formal investigation request of
  4 22 the attorney general in the Polk county district court, as
  4 23 well as the district court in the county in which the person
  4 24 resides or is located.
  4 25    Section 714.16 is amended by adding a new subsection which
  4 26 provides that the attorney general may bring an action on
  4 27 behalf of the residents of this state under the federal
  4 28 Telemarketing and Consumer Fraud and Abuse Prevention Act.
  4 29    Section 714.16A is amended to provide that the attorney
  4 30 general may establish and accept a settlement amount related
  4 31 to an investigation of a consumer fraud allegedly committed
  4 32 against an older person which does not proceed to court.  
  4 33 LSB 1123DP 77
  4 34 mj/cf/24.1

Text: SSB00151                          Text: SSB00153
Text: SSB00100 - SSB00199               Text: SSB Index
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