Text: HSB00148                          Text: HSB00150
Text: HSB00100 - HSB00199               Text: HSB Index
Bills and Amendments: General Index     Bill History: General Index



House Study Bill 149

Bill Text

PAG LIN
  1  1    Section 1.  Section 502.202, subsection 12, paragraph b,
  1  2 unnumbered paragraph 1, Code 1999, is amended to read as
  1  3 follows:
  1  4    A mutual or cooperative organization, including a
  1  5 cooperative association organized in good faith under and for
  1  6 any of the purposes enumerated in chapters 497, 498, and 499,
  1  7 and 501 that deals in commodities or supplies goods or
  1  8 services in transactions primarily with and for the benefit of
  1  9 its members, if:
  1 10    Sec. 2.  Section 502.302, subsection 3, Code 1999, is
  1 11 amended to read as follows:
  1 12    3.  Every applicant for initial or renewal registration as
  1 13 a broker-dealer or investment adviser shall pay a filing fee
  1 14 of two hundred dollars.  Every applicant for initial or
  1 15 renewal registration as an agent or investment adviser
  1 16 representative shall pay a filing fee of thirty dollars.
  1 17 However, an investment adviser representative is not required
  1 18 to pay a filing fee, if the investment adviser is a sole
  1 19 proprietorship or the substantial equivalent and the
  1 20 investment adviser representative is the same individual as
  1 21 the investment adviser.  A filing fee is not refundable.
  1 22 Every person acting as a federal covered adviser in this
  1 23 state, except with respect to federal covered advisers whose
  1 24 only clients are those described in section 502.301,
  1 25 subsection 3, paragraph "b", shall pay an initial and renewal
  1 26 notice filing fee of one hundred dollars.
  1 27    Sec. 3.  Section 502.304, subsection 5, Code 1999, is
  1 28 amended to read as follows:
  1 29    5.  Withdrawal from registration as a broker-dealer, agent,
  1 30 investment adviser, or investment adviser representative
  1 31 becomes effective thirty days after receipt of an application
  1 32 to withdraw or within such shorter period of time as the
  1 33 administrator may by order determine, unless a proceeding to
  1 34 deny, suspend, or revoke a registration is pending when the
  1 35 application is filed or a proceeding to deny, suspend, or
  2  1 revoke a registration, or to impose conditions upon the
  2  2 withdrawal is instituted within thirty days after the
  2  3 application is filed.  If a proceeding is pending or
  2  4 instituted, withdrawal becomes effective at such time and upon
  2  5 such conditions as the administrator by order determines.  If
  2  6 no proceeding is pending or instituted and withdrawal
  2  7 automatically becomes effective, the administrator may
  2  8 nevertheless institute a revocation or suspension proceeding
  2  9 under subsection 1, paragraph "b", within one year after
  2 10 withdrawal became effective and enter a revocation or
  2 11 suspension order as of the last date on which registration was
  2 12 effective.
  2 13    Sec. 4.  Section 502.304, Code 1999, is amended by adding
  2 14 the following new subsection:
  2 15    NEW SUBSECTION.  5A.  A person who directly or indirectly
  2 16 controls a broker-dealer or agent is subject to the same
  2 17 sanctions applicable to an applicant or registrant under this
  2 18 section, unless the person proves that the person did not
  2 19 know, and was not grossly negligent in failing to know, of the
  2 20 existence of facts by reason of which the liability is alleged
  2 21 to exist.
  2 22    Sec. 5.  Section 502.305, Code 1999, is amended to read as
  2 23 follows:
  2 24    502.305  EXAMINATION OF INVESTMENT ADVISER REPRESENTATIVE
  2 25 AND EXEMPTION FROM EXAMINATION.
  2 26    The administrator may adopt rules requiring the passage of
  2 27 an examination by an individual who is required to be
  2 28 registered under this chapter as an investment adviser
  2 29 representative.  However, a person who is registered as an
  2 30 investment adviser representative between January 1, 1999, and
  2 31 December 31, 2000 1999, shall not be required to pass an
  2 32 examination for as long as the person maintains a continuous
  2 33 registration.
  2 34    Sec. 6.  Section 502.503, subsection 1, Code 1999, is
  2 35 amended to read as follows:
  3  1    1.  Affiliates of a person liable under section 502.401,
  3  2 502.501, 502.502, or 502.502A, or 502.604, partners, principal
  3  3 executive officers or directors of such person, persons
  3  4 occupying a similar status or performing similar functions for
  3  5 such person, persons (whether employees of such person or
  3  6 otherwise) who materially aid and abet in the act or
  3  7 transaction constituting the violation, and broker-dealers or
  3  8 agents who materially aid and abet in the act or transaction
  3  9 constituting the violation, are also liable jointly and
  3 10 severally with and to the same extent as such person, unless
  3 11 one of the following applies:
  3 12    a.  With respect to section 502.501, section 502.502,
  3 13 subsections 1 and 5, or section 502.502A, any a person liable
  3 14 hereunder under this subsection proves that the person did not
  3 15 know, and in the exercise of reasonable care could not have
  3 16 known, of the existence of the facts by reason of which the
  3 17 liability is alleged to exist; and.
  3 18    b.  With respect to section 502.401, section 502.502,
  3 19 subsections 2 and 3, and section 502.604 any a person liable
  3 20 hereunder under this subsection proves that the person did not
  3 21 know, and was not grossly negligent in failing to know, of the
  3 22 existence of the facts by reason of which the liability is
  3 23 alleged to exist.
  3 24    Sec. 7.  Section 502.504, Code 1999, is amended by adding
  3 25 the following new subsection:
  3 26    NEW SUBSECTION.  7.  This section shall not apply to
  3 27 actions filed by the administrator pursuant to section
  3 28 502.604.
  3 29    Sec. 8.  Section 502.604, subsection 2, Code 1999, is
  3 30 amended to read as follows:
  3 31    2.  Bring an action in the district court to enjoin the act
  3 32 or practice and to enforce compliance with this chapter or a
  3 33 rule or order adopted or issued pursuant to this chapter.
  3 34 Upon a proper showing, the court may do all of the following:
  3 35    a.  Grant a permanent or temporary injunction, restraining
  4  1 order, or asset freeze, accounting, writ of attachment, writ
  4  2 of general or special execution, writ of mandamus shall be
  4  3 granted and a, or other equitable or ancillary relief.
  4  4    b.  Appoint a receiver or conservator may be appointed for
  4  5 the defendant or the defendant's assets.  In addition, upon a
  4  6 proper showing by the administrator, the court may enter an
  4  7 order of
  4  8    c.  Order the administrator to take charge and control of a
  4  9 party's property, including but not limited to managing rents
  4 10 and profits, collecting debts, and acquiring and disposing of
  4 11 property.
  4 12    d.  Order the rescission, restitution, or disgorgement
  4 13 directed at any person who has engaged in an act constituting
  4 14 a violation of this chapter, or a rule or order adopted or
  4 15 issued pursuant to this chapter, and may order.
  4 16    e.  Order the payment of prejudgment and postjudgment
  4 17 interest.
  4 18    PARAGRAPH DIVIDED.  The administrator shall not be required
  4 19 to post a bond.
  4 20    Sec. 9.  Section 523B.2, subsection 10, paragraph a,
  4 21 subparagraph 9, Code 1999, is amended to read as follows:
  4 22    (9)  The seller does not have a minimum net worth of
  4 23 twenty-five fifty thousand dollars, as determined in
  4 24 accordance with generally accepted accounting principles.  A
  4 25 seller may submit a surety bond in lieu of the net worth
  4 26 requirement.  The administrator may by rule or order increase
  4 27 the amount of the net worth or bond for the protection of
  4 28 purchasers and may require the seller to file reports of all
  4 29 sales in this state to determine the appropriate amount of the
  4 30 net worth requirement.  The surety bond shall be for the
  4 31 period of the registration, issued by a surety company
  4 32 authorized to do business in this state and for the benefit of
  4 33 any purchaser.
  4 34    Sec. 10.  Section 523C.6, Code 1999, is amended to read as
  4 35 follows:
  5  1    523C.6  NET WORTH REQUIREMENT.
  5  2    A service company that has issued or renewed in the
  5  3 aggregate one thousand or less residential service contracts
  5  4 during the preceding calendar year shall maintain a minimum
  5  5 net worth of forty thousand dollars, and the minimum net worth
  5  6 to be maintained shall be increased by an additional twenty
  5  7 thousand dollars for each additional five hundred contracts or
  5  8 fraction thereof issued or renewed, up to a maximum required
  5  9 net worth of four hundred thousand dollars.  At least twenty
  5 10 thousand dollars of net worth shall consist of paid-in
  5 11 capital.
  5 12    For purposes of this chapter, "net worth" means the excess
  5 13 of all assets over all liabilities including required reserves
  5 14 computed in accordance with generally accepted accounting
  5 15 principles.  At least twenty thousand dollars of net worth
  5 16 shall consist of paid-in capital.
  5 17    Sec. 11.  Section 523C.8, Code 1999, is amended to read as
  5 18 follows:
  5 19    523C.8  REBATES AND COMMISSIONS.
  5 20    1.  A Except as provided in subsection 2, a service company
  5 21 shall not pay a commission or any other consideration to any
  5 22 person as an inducement or compensation for the issuance,
  5 23 purchase, or acquisition of a residential service contract.
  5 24 However, this
  5 25    2.  This section does not prohibit any of the following:
  5 26    a.  The payment of an override commission or marketing fee
  5 27 to an employee or commission sales agent who is a marketing or
  5 28 sales representative of the service company or its parent
  5 29 company, subsidiary, or affiliate on the sale or marketing of
  5 30 a residential service contract, provided the employee or
  5 31 commission sales agent is not a real estate licensee sharing
  5 32 in or entitled to share in, or affiliated with, a company or
  5 33 organization which is entitled to share in any real estate
  5 34 commission generated by the underlying real property
  5 35 transaction.  This section also does not prohibit fees,
  6  1    b.  Fees, payments, or reimbursements for a bona fide
  6  2 inspections inspection, if an inspection of the property to be
  6  3 the subject of a residential service contract is required by a
  6  4 service company and if the inspection fee is reasonably
  6  5 related to the services performed.
  6  6    3.  The division may adopt rules identifying types of fees,
  6  7 payments, or reimbursements that do not constitute an
  6  8 inducement or compensation for the issuance, purchase, or
  6  9 acquisition of a residential service contract.
  6 10    Sec. 12.  Section 523E.1, subsection 6, Code 1999, is
  6 11 amended to read as follows:
  6 12    6.  This section does not apply to payments for merchandise
  6 13 delivered to the purchaser.  Delivery includes storage in a
  6 14 warehouse under the control of the seller or any other
  6 15 warehouse or storage facility approved by the commissioner
  6 16 when a receipt of ownership in the name of the purchaser is
  6 17 delivered to the purchaser, the merchandise is insured against
  6 18 loss, the merchandise is protected against damage, title has
  6 19 been transferred to the purchaser, the merchandise is
  6 20 appropriately identified and described in a manner that it can
  6 21 be distinguished from other similar items of merchandise
  6 22 unless this identification requirement with respect to bronze
  6 23 merchandise is waived by the commissioner by rule, the method
  6 24 of storage allows for visual audits of the merchandise, and
  6 25 the annual reporting requirements of section 523E.2,
  6 26 subsection 1, are satisfied.  
  6 27                           EXPLANATION 
  6 28    This bill amends a number of provisions regulating entities
  6 29 under the authority of the insurance division, including
  6 30 securities, business opportunities, cemetery merchandise, and
  6 31 residential service contracts.
  6 32    Code section 502.202 exempts certain entities from
  6 33 registration and filing requirements of the securities law.
  6 34 The bill exempts cooperatives organized under Code chapter
  6 35 501.
  7  1    Code section 502.302 imposes a registration fee upon
  7  2 investment advisers and investment adviser representatives.
  7  3 The bill provides that in the case of a sole proprietorship an
  7  4 investment adviser representative is not required to pay a fee
  7  5 if the person is also the investment adviser.
  7  6    Code section 502.304 provides for the denial, revocation,
  7  7 or suspension of registration as a broker-dealer or agent.
  7  8 The section provides that the division may institute a
  7  9 revocation or suspension proceeding following withdrawal from
  7 10 registration within one year after withdrawal.  The bill
  7 11 provides that the disciplinary action may be based on any
  7 12 action that could have supported disciplinary action prior to
  7 13 the withdrawal.
  7 14    Code section 502.304 provides that a person directly or
  7 15 indirectly controlling a broker-dealer or agent is subject to
  7 16 the same penalties as the broker-dealer or agent guilty of
  7 17 committing a violation, unless the person proves that the
  7 18 person did not know the facts creating the violation and was
  7 19 not grossly negligent in failing to know the facts.
  7 20    Code section 502.305 requires that a person registered as
  7 21 an investment advisor representative between January 1, 1999,
  7 22 and December 31, 2000, is not required to pass an examination
  7 23 in order to be registered.  The bill reduces that period to
  7 24 December 31, 1999.
  7 25    Code section 502.503 provides that a person who aids and
  7 26 abets in an effort to commit fraud is liable to the same
  7 27 extent as the person who commits the fraud.
  7 28    Code section 502.504 provides time limits for rights of
  7 29 action brought under the chapter.  The bill provides that the
  7 30 section does not apply to actions filed by the division
  7 31 necessary in order to enjoin the act or practice and to
  7 32 enforce compliance with Code chapter 502 or a rule or order
  7 33 adopted or issued pursuant to the chapter.
  7 34    Code section 502.604 provides that the district court may
  7 35 enjoin an act or practice and enforce compliance with Code
  8  1 chapter 502 or rules adopted under that chapter.  The bill
  8  2 provides that the court may grant an asset freeze, accounting,
  8  3 writ of attachment, writ of general or special execution, or
  8  4 other equitable or ancillary relief.  The bill also provides
  8  5 that the court may order the division to take charge and
  8  6 control of a party's property, including but not limited to
  8  7 managing rents and profits, collecting debts, and acquiring
  8  8 and disposing of property.
  8  9    Code section 523B.2 provides that it is unlawful to offer
  8 10 or sell a business opportunity in this state unless the
  8 11 business opportunity is registered or exempt from registration
  8 12 under Code chapter 523B.  The section provides that the
  8 13 division may issue an order suspending or revoking the
  8 14 registration if the administrator finds that the seller does
  8 15 not have a minimum net worth of $25,000.  This bill increases
  8 16 the net worth requirement to $50,000.
  8 17    Code section 523C.6 requires a service company to maintain
  8 18 a minimum net worth.  The section defines "net worth" as the
  8 19 excess of all assets over all liabilities including required
  8 20 reserves computed in accordance with generally accepted
  8 21 accounting principles.  The bill eliminates this definition.
  8 22    Code section 523C.8 prohibits a service company from paying
  8 23 a commission or other consideration as an inducement or
  8 24 compensation for the issuance, purchase, or acquisition of a
  8 25 residential service contract.  The bill provides that the
  8 26 division may adopt rules identifying types of fees, payments,
  8 27 or reimbursements that would not be determined to constitute
  8 28 an inducement or compensation.
  8 29    Code section 523E.6 provides that the seller of cemetery
  8 30 merchandise must comply with Code chapter 555A regulating
  8 31 door-to-door sales.  Code section 523E.1 provides that certain
  8 32 requirements relating to placing funds in trust from the sale
  8 33 of cemetery merchandise do not apply to payments for
  8 34 merchandise delivered to the purchaser.  The bill eliminates a
  8 35 number of conditions required for delivery.  
  9  1 LSB 1307DP 78
  9  2 da/jw/5.1
     

Text: HSB00148                          Text: HSB00150
Text: HSB00100 - HSB00199               Text: HSB Index
Bills and Amendments: General Index     Bill History: General Index

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