DAR File No. 39273

Commerce, Consumer Protection

Rule R152-1

Utah Division of Consumer Protection: "Buyer Beware List"

Notice of Proposed Rule

(Amendment)

DAR File No.: 39273
Filed: 04/14/2015 03:33:26 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is: to clarify existing provisions; to eliminate from the rule definitions that are duplicative of statutory provisions or are otherwise unnecessary; and to eliminate from the rule language that is informational, but that does not create a duty or prohibition for regulated persons.

Summary of the rule or change:

The rule is renumbered. Existing provisions are edited for concision and clarity. Definitions that duplicate statutory provisions and are otherwise unnecessary are deleted. Existing provisions are deleted where: 1) the language describes how the Division will interact with persons who are identified for inclusion in the buyer beware list; and 2) the language does not set forth a substantive obligation or prohibition governing a regulated person. Finally, the circumstances that constitute failure to respond to a Division deadline are expanded, as are the circumstances that warrant a person's being removed from the buyer beware list.

State statutory or constitutional authorization for this rule:

• Subsection 13-2-5(1)
• Subsection 13-15-3(1)
• Subsection 13-11-8(2)

Anticipated cost or savings to:

the state budget:

The Division has the budget in place to maintain the buyer beware list. This amendment does not change or add administrative duties. No fiscal impact to the state budget is anticipated.

local governments:

Local governments are not required to maintain the buyer beware list and are not included in it. No fiscal impact to local governments is anticipated.

small businesses:

The substance of this rule has been in place for some time. The changes proposed in this filing are primarily for clarity and concision. No new duties or obligations are imposed on small businesses. Therefore, no fiscal impact to small businesses is anticipated.

persons other than small businesses, businesses, or local governmental entities:

The substance of this rule has been in place for some time. The changes proposed in this filing are primarily for clarity and concision. No new duties or obligations are imposed on affected persons. Therefore, no fiscal impact to affected persons is anticipated.

Compliance costs for affected persons:

Affected persons are placed on the buyer beware list for failure to comply with a Division subpoena or order. Once placed on the list, no new form of compliance is required. Persons that wish to be removed from the list must comply with the outstanding subpoena or order, which generally includes payment of an administrative fine. However, this rule in and of itself does not require any form of compliance and, therefore, does not create compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

This filing updates and clarifies the circumstances in which a person may be included in the Utah buyer beware list and the circumstances in which a person may request to be removed from the list. In order to be removed, a business must pay any outstanding fines that have been assessed through an administrative proceeding. Otherwise, no fiscal impact to businesses is anticipated.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Consumer Protection
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Jennie Jonsson at the above address, by phone at 801-530-6706, by FAX at 801-526-4387, or by Internet E-mail at jjonsson@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/01/2015

This rule may become effective on:

06/08/2015

Authorized by:

Daniel O'Bannon, Director

R152. Commerce, Consumer Protection.

R152-1. Utah Division of Consumer Protection[: "]Buyer Beware List["].

R152-1-1. [Purposes, Policies and Rules of Construction.]Buyer Beware List.

[A.](1) Authority and purpose.

(a) [These rules are]This rule is promulgated pursuant to :

(i) the Division's general authority as set forth in Utah Code Section [Subsection ]13-2-5[(1) to assist the orderly administration of the statutes listed in Utah Code Section 13-2-1.

B.(1) These substantive rules are adopted by the Director of the Division of Consumer Protection pursuant to general authority of Utah Code Section 13-2-5,]; and

(ii) specific authority granted to the Division in[of the following statutory sections]:

[(a)](A) Utah Code Section[Subsection] 13-11-8(2); and

[(b)](B) Utah Code Section[Subsection] 13-15-3(1)[; and

(c) Utah Code Section Section 13-16-12].

[(2)](b) [Without limiting the scope of any statute or rule, this rule is intended to promote its stated purposes and policies. ]The purposes[and policies] of this rule are to:

[(a)](i) protect consumers from individuals and businesses who have engaged in and committed deceptive acts or practices, or have engaged in and committed unconscionable acts or practices[.];

[(b)](ii) supply consumers with pertinent information [on]about the nature of deceptive acts or practices committed or engaged in by certain persons against whom the Division has taken action; and[those individuals or businesses who may be engaging in and committing deceptive acts or practices, or may be engaging in and committing unconscionable acts or practices, so as to aid consumers in their decision making.]

[(c)](iii) encourage the development of fair consumer sales practices and wise decision making by consumers[in all their consumer purchase decisions].

[

R152-1-2. Definitions.

A. For the purposes of this rule:

(1) "Buyer Beware List" means the list of individuals or business compiled by the Division in accordance with this rule.

(2) "Department" means the Utah Department of Commerce.

(3) "Director" means the director of the Utah Department of Commerce, Division of Consumer Protection.

(4) "Division" means the Utah Department of Commerce, Division of Consumer Protection.

(5) "Emergency" means facts known or presented to the Utah Department of Commerce, Division of Consumer Protection that show:

(a) an immediate and significant danger to the public health, safety, or welfare exists with respect to the statutes listed in Utah Code Section 13-2-1; and

(b) the threat requires immediate action by the Division.

(6) "Executive Director" means the executive director of the Utah Department of Commerce.

(7) "Order" means an order of adjudication or a final order by default issued by the Utah Department of Commerce, Division of Consumer Protection after proper notice and hearing, as applicable, in accordance with Utah Code Title 63G, Chapter 4, Administrative Procedures Act.

 

R152-1-3. Placement on "Buyer Beware List".

A.(1) The Division shall place the name of an individual or business on the "Buyer Beware List" if the Division concludes through issuance of an order that the individual or business has violated any of the statutes listed in Utah Code Section 13-2-1.

(2) The Division shall provide fifteen (15) business days written notice by certified mail prior to placing an individual or business on the Buyer Beware List unless notice has otherwise been given by a previously issued Division subpoena or written inquiry or unless the Director finds that an emergency exists. All individuals and businesses placed on the Buyer Beware List shall be notified in writing of the reasons for the proposed inclusion on the list. They will also be advised of what actions, if any, they can take to remove their name from the list.

B. (1) When the Director finds the public interest would be served, the Division may place the name of an individual or business on the "Buyer Beware List" for:]

(2) Placement on the Buyer Beware List.

(a) The following circumstances warrant a person's being placed on the Buyer Beware List:

([a]i) failure or refusal to respond to an administrative subpoena of the Division;[or]

([b]ii) after notification and opportunity to respond, failure or refusal to respond to a consumer complaint on file with the Division [alleging violation of one or more of the acts administered by the Division after the business or individual has received notification from the Division and had an opportunity to respond to the Division and address the complaint.]establishing a reasonable basis from which the Division may assert jurisdiction;

(iii) failure to comply with an order issued by the Division, including a default order; or

(iv) breach of a settlement agreement, stipulation, assurance of voluntary compliance, or similar instrument entered into with the Division.

([2]b) Failure or refusal to respond is evidenced:

(i) where certified mail, properly addressed, is returned to the Division as [U]unclaimed[, returned] or refused ;[certified mail properly addressed to the individual or business that is received back by the Division shall constitute proof of failure or refusal to respond.]

(ii) where the person who is responsible to respond:

(A) allows a compliance deadline, as set forth in a statute, rule, or in a properly served order, citation, or notice, to pass without taking action or communicating with the Division; or

(B) indicates to the Division that the person does not intend to comply; or

(iii) in any circumstances comparable to those set forth in this subsection (2)(b)(i)-(ii).

[C.(1) Prior to placement on the Buyer Beware List for any reason set forth in R152-1-3B the Division shall, upon receipt of a consumer complaint, make reasonable efforts to communicate with an individual or business identified in the complaint including:

(a) at least one (1) initial written notice by certified mail or facsimile transmission;

(b) at least one (1) initial telephone call; and

(c) if the individual or business identified in the complaint is a Utah resident at least one initial (1) face to face contact by a Division representative either at the Division's offices or at the individual's or business' Utah address.

(2)(a) If the initial efforts set forth at R152-1-3C(1) have proven unsuccessful the Division shall provide fifteen (15) business days written notice by certified mail prior to placing an individual or business on the Buyer Beware List unless:

(i) notice has otherwise been given by a previously issued Division subpoena or written inquiry properly addressed; or

(ii) the Director finds that an emergency exists.

(b) All individuals and businesses placed on the Buyer Beware List shall be notified in writing of the reasons for the proposed inclusion on the list. They will also be advised of what actions, if any, they can take to remove their name from the list.

D. Each listing on the Buyer Beware List shall contain a listing of the individual's or businesses:

(1) name(s), including "doing businesses as";

(2) address(es);

(3) phone number(s); and

(4) a detailed basis for the individual or business being placed on the list, including whether:

(a) an administrative fine has been assessed and if so what amount; and

(b) a cease and desist order has been issued in accordance with Utah Code Section 13-2-6(1).

E. The Buyer Beware List is a public document under Utah Code Title 63G, Chapter 2, Government Records Access and Management Act.

 

R152-1-4. Removal from "Buyer Beware List".

A. The Division of Consumer Protection shall remove the name of the business or individual from the Buyer Beware List if]

(3) Removal from Buyer Beware List.

A person whose name is included in the Buyer Beware List may qualify to have the listing removed by:

[(1) the individual or business:

](a)(i) demonstrating that the person has had no [other ]complaints [with respect to a statute listed in Utah Code Section 13-2-1]filed against the person with the Division for a period of 90 consecutive days after being placed on the list; and

[(b) otherwise complies](ii) complying with all aspects of the order entered against the [individual or business]person by the Division, including [the]full payment of any administrative fines assessed;

[(2) pursuant to R152-1-3B(1)(a), when](b) providing a sufficient response [is provided ]to an outstanding Division subpoena;[ or]

[(3) pursuant to R152-1-3B(1)(b), when](c) providing a satisfactory response [is made ]to outstanding Division inquiries[ to which the individual or business previously failed or refused to respond.]; or

(d) entering into a stipulated settlement with the Division that:

(i) resolves all allegations raised by the Division in its action; and

(ii) supersedes any previous order issued by the Division in the action.

 

KEY: consumer protection, buyer beware list

Date of Enactment or Last Substantive Amendment: [January 21, 2010]2015

Notice of Continuation: April 28, 2010

Authorizing, and Implemented or Interpreted Law: 13-2-5(1); 13-11-8(2); 13-15-3(1); 13-16-12