Bill Text: DE HB247 | 2009-2010 | 145th General Assembly | Draft
Bill Title: An Act To Amend Title 6, Title 25 And Title 29 Of The Delaware Code Relating To Consumer Protection.
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Enrolled - Dead) 2010-04-28 - HS 1 for HB 247 - Passed by Senate. Votes: Passed 19 YES 0 NO 0 NOT VOTING 2 ABSENT 0 VACANT [HB247 Detail]
Download: Delaware-2009-HB247-Draft.html
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SPONSOR: |
Rep. Keeley & Sen. McBride |
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Reps. Brady, Hudson, Mitchell |
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HOUSE OF REPRESENTATIVES 145th GENERAL ASSEMBLY |
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HOUSE BILL NO. 247 |
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AN ACT TO AMEND TITLE 6, TITLE 25 AND TITLE 29 OF THE DELAWARE CODE RELATING TO CONSUMER PROTECTION. |
Section 1.Amend Chapter 25, Title 6 of the Delaware Code by striking Subchapter I in its entirety and replacing it as follows:
"Subchapter I.General Provisions.
§ 2501. Purpose; construction.
(a) The purpose of this chapter is to protect consumers and legitimate business enterprises from consumer fraud, misrepresentation, false advertising, and unfair or deceptive merchandising practices in the conduct of any trade or commerce in part or wholly within this State.
(b) It is the intent of the General Assembly that such practices be swiftly stopped and that this chapter be liberally construed and applied to promote its underlying purposes and policies.
§ 2502. Definitions.
As used in this chapter, unless the context otherwise requires:
(1) "Advertisement" means the attempt by publication, dissemination, solicitation or circulation to induce, directly or indirectly, any person to enter into any obligation or acquire any title or interest in any merchandise.
(2)
"Attorney General" means the Attorney General of the State of
(3) "Director" means the Director of the Consumer Protection Unit of the Department of Justice, or his or her designee.
(4) "Lease" means any lease, offer to lease or attempt to lease any merchandise for any consideration.
(5) "Merchandise" means any objects, wares, goods, commodities, intangibles, real estate or services.
(6) "Person" means an individual, corporation, government, or governmental subdivision or agency, statutory trust, business trust, estate, trust, partnership, unincorporated association, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
(7) "
(8) "Unit" means the Consumer Protection Unit of the Department of Justice.
(9) "Willful violation" means the person committing the violation knew or should have known that the conduct was of the nature prohibited by this chapter.
§ 2503. Private cause of action for consumer fraud; attorney's fees.
(a)A private cause of action shall be available to any person who alleges he or she has been harmed by a violation of § 2522 of this title. Such cause of action for compensatory and punitive damages may be brought in any court of competent jurisdiction in this State without prior action by the Attorney General or Director.
(b)In any action brought under this section or under § 2504, the Court may award reasonable attorney's fees to the prevailing party. Costs and attorney's fees may be assessed against a defendant only if the court finds that defendant has engaged in a willful violation.Costs and attorney's fees may be assessed against a plaintiff only if the court finds that the plaintiff brought the action in bad faith.
(c) The relief provided in this chapter is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State.
§ 2504. Private equitable claim for deceptive trade practices.
Any person who is likely to be harmed by a deceptive trade practice may be granted relief in the Court of Chancery, including temporary or permanent prohibition of the unfair or deceptive conduct, upon terms that the Court considers reasonable.Proof of monetary damage, loss of profits, or intent to deceive is not required. If damages are awarded to any aggrieved person under this subsection, such damages awarded shall be treble the amount of the actual damages proved regardless of the availability of other remedies.
§ 2505. Court of competent jurisdiction; administrative appeals.
(a)For the purposes of this chapter, a claim brought by the Attorney General or the Director for a violation of any provision of this chapter may be brought in the Justice of the Peace Courts, the Court of Common Pleas, or the Superior Court, where the amount in controversy is within the jurisdictional limit of the Court.
(b)For the purposes of this chapter, a claim brought by a private litigant for a violation of § 2522 of this title may be brought in the Justice of the Peace Courts, the Court of Common Pleas, or the Superior Court, where the amount in controversy is within the jurisdictional limit of the Court.
(c)For purposes of this chapter, a claim brought by the Attorney General or the Director for a violation of any provision of this chapter may be brought in the Court of Chancery where any equitable remedy is sought, including but not limited to the appointment of a receiver, for any violation of this chapter or accompanying claims.
(d)For purposes of this chapter, a claim brought by a private litigant for a violation of § 2523 of this title may be brought in the Court of Chancery where any equitable remedy is sought, including but not limited to the appointment of a receiver for any unlawful violation of this chapter or accompanying claims.
(e)For the purposes of this chapter, any appeal from an administrative order shall be to the Superior Court.
§ 2506. Defenses.
It is a defense to charges of violating a provision of this chapter that:
(1) The conduct was in compliance with a controlling statute, rule or order of a federal or state agency; or
(2) That the alleged violators are publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matter who published, broadcast, or reproduced an advertisement or other material without knowledge of the intent, design or purpose of the advertiser or of its deceptive character.
§ 2507.Limitation of actions.
No action shall be initiated after the expiration of 5 years from the time the cause of action accrued; however, §§ 8117 and 8118 of Title 10 and any applicable tolling or savings provisions created under the common law shall apply.
§ 2508. Appointment of receiver.
If it should appear to the Court of Chancery, after a hearing, that a receiver should be appointed in cases of substantial and willful violations, the Court may appoint such receiver, who shall have the authority to perform the following acts:
(1)To settle the estate and distribute the assets under the direction of the Court;
(2)To sue for, collect, receive and take possession of all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, chosen in action, bills, notes and property of every description, acquired by means of any practice declared to be unlawful by this subchapter, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the Court; and
(3)To distribute the proceeds and assets, subject to the approval of the Court, to any person who has suffered damages as a result of any such unlawful acts or practices and submits proof of damages in an equitable share with general creditors having claims of out-of-pocket losses.
§ 2509. Council on Manufactured Housing.
(a) The Council on Manufactured Housing shall advise the Consumer Protection Unit on matters relating to mobile home owners and tenants, manufactured housing and mobile home parks. The Council may consider matters referred to it by the Unit, and may, on its own motion, consider any issue or matter within its field of expertise. The Council shall report directly and exclusively to the Unit.All funding for the Council shall be determined by the Unit.
(b) The Council on Manufactured Housing shall be composed of 14 members, 12 of whom shall be appointed by the Governor: Six members representing the manufactured housing industry; and 6 members representing persons who live in mobile home parks, both those who own the mobile homes in which they reside and those who do not own the mobile homes in which they reside (at least 1 from each county). In the event a member ceases to be an owner or employee of a mobile home park, or a resident of a mobile home park, such person's membership shall cease upon the occurrence of such event. In addition to the 12 voting members appointed by the Governor, a representative of the Consumer Protection Unit appointed by the Director, and a representative of the Department of Justice, appointed by the Attorney General, shall serve as nonvoting ex officio members.
(c) Each member shall serve for a term for 2 years, and may successively serve for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member shall successively serve for only 1 additional full term. Any person appointed to fill a vacancy on the Council shall hold office for the remainder of the unexpired term of the former member.
(d) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council. A Chairperson of the Council shall be chosen by members of the Council from among its members, shall serve in that capacity for a term of 1 year, and shall be eligible for reelection."
Section 2. Amend Chapter 25, Title 6 of the Delaware Code by striking Subchapter II in its entirety and replacing it as follows:
"Subchapter II. Consumer Protection Unit; Enforcement Authority; Administrative Process, Remedies and Appeals.
§ 2510. Consumer Protection Unit.
(a) There is established within the Department of Justice a Consumer Protection Unit.
(b) The Consumer Protection Unit shall protect the general public against consumer fraud and unfair or deceptive trade practices through enforcement of state statutes (and, where authorized and appropriate, federal statutes), consumer education, and coordinated governmental action.
(c) The Attorney General shall appoint a Deputy Attorney General to be designated as the Director of the Consumer Protection Unit, who shall be charged with the furtherance of the programs and functions thereof.
§ 2511. Enforcement authority.
Among other powers, the Director of Consumer Protection shall have the authority to:
(1) investigate matters that may reveal violations of this chapter or other unlawful conduct;
(2) issue cease and desist orders, either summarily or after a hearing;
(3) seek administrative remedies for violations of the statutes the Consumer Protection Unit is charged to enforce;
(4) initiate and prosecute civil or criminal actions related to the purposes of this chapter in any court of competent jurisdiction;
(5) seek restitution, rescission, reformation of contract, recoupment, disgorgement of profits or any monies improperly obtained, or otherwise prevent unjust enrichment against violators of this chapter and on behalf of consumers;
(6) promulgate rules and regulations;
(7) under the direction of the Attorney General, maintain and supervise the deposits and expenditures into and out of the Consumer Protection Fund;
(8) hold fact-finding, rulemaking or adjudicative hearings and issue opinions, orders or reports based thereon; and
(9) take any other lawful action to enforce the consumer protection statutes and to carry out their purposes.
§ 2512. Rules and regulations.
(a)The Director shall have the authority to promulgate rules and regulations as deemed necessary or appropriate to interpret the statutes that the Consumer Protection Unit is charged to enforce or otherwise to carry out the purposes of those statutes.
(b)The rules and regulations of the Consumer Protection Unit shall be entitled to substantial deference in connection with any judicial review or case determination.
§ 2513. Proceedings; judicial remedies.
(a)The Attorney General and the Director shall have standing to seek, on behalf of the State, any remedy in this chapter whenever it appears that a person has violated or is about to violate any provision of this chapter, or any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, and Chapter 70 of Title 25, §841, § 914, § 915 of Title 11, and § 915A of Title 11, or any other law or regulation that the Consumer Protection Unit is authorized to enforce.The Attorney General or the Director may initiate an investigation, administrative proceeding, or court proceeding to swiftly enjoin or sanction the unlawful conduct.
(b)If, in any court proceeding brought under subsection (a) above, any person is found to have committed a willful violation, the Court shall order the violator to pay to the State a civil penalty of not more than $10,000 for each violation.
(c)Where a willful violation is found, any court entertaining the action may additionally order the violator to cease and desist the unlawful conduct prospectively, return any monies obtained unlawfully, and when appropriate freeze designated assets of the violator, order restitution, rescission, recoupment, reformation of any contract or disgorgement of profits or any monies that would constitute unjust enrichment.
(d)In any action brought by the Director under the provisions of this chapter in which any person is found to have violated any provision of this chapter, the court shall award attorney's fees and costs to the State.
§ 2514. Investigative demands; Attorney General's subpoena.
(a) Whenever the Director has reason to believe that a person has engaged in, is engaging in, or is about to engage in any practice declared by this chapter to be unlawful, the Director may issue and cause to be served upon such person an investigative demand requiring such person to:
(1) File a statement or report in writing under oath on such forms as the Attorney General may prescribe as to all the facts and circumstances concerning the sale, lease or advertisement of merchandise by such person;
(2) Answer oral interrogatories under oath at such places and times as the Director may reasonably specify as to all facts and circumstances concerning the sale, lease or advertisement of merchandise by such person; and
(3) Produce for examination the original or copy of any advertisement, merchandise or sample thereof, record, book, document, tabulation, map, chart, photograph, report, memorandum, communication, mechanical transcription, account, paper or computer record as the Director may specify in the demand.
(b)Each investigative demand shall be in writing and shall: (1) state the nature of the conduct constituting the alleged violation under investigation and the provision of law applicable thereto; (2) sufficiently describe the material to be produced in order to fairly identify the materials demanded; (3) include a return date that reasonably permits time to assemble the materials for inspection and copying or reproduction; and (4) identify the official to whom the material shall be made available or the official before whom such oral examination shall take place or with whom such written reports shall be filed.
(c)The investigative demand shall not make or require: (1) unreasonable demands, or (2) production of evidence which would be protected from disclosure as privileged.
(d)In his or her discretion, the Director may apply to any court of competent jurisdiction for an order judicially authorizing the issuance and service of an investigative demand.
(e)Upon motion promptly made, any person seeking relief from an investigative demand may, upon motion and good cause shown, file in Superior Court for a protective order.If the Director determines that it would not be in the best interests of the investigation to disclose the evidence relied upon to establish the belief that unlawful conduct has occurred, is occurring or is about to occur, the Director may request, and the Court shall examine, in camera, the evidence upon which the Director relied.
(f)Nothing in this chapter may be construed to limit the Director's authority to issue an Attorney General's subpoena as an alternative to an investigative demand.
§ 2515. Service of demand.
Service of any demand by the Attorney General or the Director under this chapter shall be made personally within this State, if the person can be found therein; but if such service cannot be made, substituted service may be made in the following manner:
(1)personal service outside this State;
(2) service by registered mail to the last known place of business, residence or abode within or outside this State of the person to whom such demand is directed;
(3)as to any person other than a natural person, in the manner provided in § 321 or §§ 371 to 385 of Title 8; or
(4) such service as the court may direct, if the demand was issued pursuant to court order, in lieu of personal service within this State.
§ 2516. Failure to comply; penalties.
(a)If any person fails to comply with any investigative
demand or Attorney General's subpoena issued by the Director, the Director may,
after due notice, apply to the Superior Court, and the Court, after a hearing
on said application, may enter an order:
(1) Requiring said person to comply with the demand;
(2) Adjudging such person in contempt of Court; and
(3) Granting such other relief or imposing any other penalty or fine as may be determined by the Court in its discretion to be appropriate to obtain compliance with the investigative demand or Attorney General's subpoena.
(b)In addition to the remedies listed in subsection (a) above, the Director may apply to the Court of Chancery, and the Court, after a hearing on said application, may enter an order:
(1) Granting injunctive relief restraining any practice or act declared by this chapter to be unlawful; and
(2) Vacating, annulling or suspending the corporate charter of a corporation created by or under the laws of this State or revoking or suspending the certificate of authority to do business in this State of a foreign corporation, or revoking or suspending any other charters, licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly unlawful practice.
§ 2517. Administrative process and appeals.
(a)The Director of the Consumer Protection Unit may initiate administrative charges against any person who appears to have violated or about to violate any provision of this chapter, or any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, and Chapter 70 of Title 25, or any other law or regulation that the Consumer Protection Unit is authorized to enforce. Such charges shall provide notice as to the nature of the violation and state the remedies that are sought.
(b) The Attorney General shall appoint a Deputy Attorney General to act as the administrative hearing officer to adjudicate charges brought by the Director of the Consumer Protection Unit against any person.Such hearing officer shall be a Deputy Attorney General who is not assigned to the Consumer Protection Unit.
(c)Upon finding a violation, the hearing officer may order any of the administrative remedies authorized in § 2518 below.Upon finding a violation or a threat of a violation, the hearing officer may issue or affirm the issuance of a cease and desist order authorized by subsection 2518(a) below.
(d) Any party, including the Director, who is aggrieved by the hearing officer's final order may appeal the order to Superior Court within 30 days after the date the order is issued.The hearing officer shall file the administrative record with the Court within 60 days after receipt of the notice of appeal.The administrative order shall be affirmed by the Court if its findings are supported by substantial evidence.
(e) Any monies that are received by the State after an administrative hearing and order, other than for consumer victims, shall be credited to the General Fund.Any monies received pursuant to a written agreement in settlement of administrative charges, at any stage of the proceeding, shall be credited to the Consumer Protection Fund.
§ 2518. Administrative remedies.
(a)After due notice and an administrative hearing, any violation or apparent threat of violation of any provision of this chapter, or of any law or regulation the Consumer Protection Unit is charged to enforce, may be sanctioned by the issuance of a cease and desist order.
(b) After due notice and an administrative hearing, any willful violation of § 2522 or § 2523 of this title, or of a lawful cease and desist order of the Director or the hearing officer, may be sanctioned by an administrative penalty up to $5000 per violation, a cease and desist order, and an order of restitution, rescission, recoupment, reformation of contract, or disgorgement of monies obtained by unlawful conduct or other monies that would constitute unjust enrichment.
(c) After the expiration of the 30-day appeal period in which no appeal has been filed, if the violator fails to pay all penalties and restitution or other amounts administratively determined, the Director may file a complaint in any court of competent jurisdiction and obtain a judgment for the amounts that have not been paid.The amounts shall be treated by the Court as an unpaid debt, and the merits of the administrative findings may not be relitigated.
§519. Cease and desist orders.
(a) By agreement.
At any time after it appears to the Director that a person has engaged in, is engaging in or is about to engage in any practice declared by this chapter to be unlawful, as well as by Chapter 35 of Title 6,Chapters 51 through 67 of title 25, and Chapter 70 of Title 25, and all other laws and regulations which the Consumer Protection Unit is authorized to enforce, the Director may issue a cease and desist order pursuant to an agreement with the person who is alleged to have engaged in, is engaged in, or is about to engage in an activity declared by this chapter to be unlawful. Each such agreement may provide for:
(1) The immediate discontinuance of each practice set forth in the agreement;
(2) Any such relief, remedies, penalties, fines or recoveries authorized by this chapter; and
(3) Any other action deemed by the Director to be necessary to remedy such practice or practices.
(b) By administrative order.
Upon the finding of a violation of any provision of this chapter, or of any law or regulation the Consumer Protection Unit is charged to enforce, after due notice and a hearing, the Director or the designated hearing officer may issue a cease and desist order against the violator.Such cease and desist order may provide for any relief as indicated in subsection (a) above.
(c) By summary administrative order.
(1) Where the Director in his or her discretion perceives a threat to the public interest as a result of a violation of any provision of this chapter, or of any law or regulation the Consumer Protection Unit is charged to enforce, the Director may issue a summary cease and desist order ordering an immediate discontinuance of the unlawful practice identified in the order.
(2) A complaint detailing the specific allegations against the alleged violator shall accompany any summary cease and desist order served upon the alleged violator.The Consumer Protection Unit shall provide a hearing on the charges in the complaint within 14 days after the issuance of the complaint and the cease and desist order.A written opinion and order, containing findings of fact and conclusions of law, shall issue within 14 days after the close of the hearing.The order issued after the hearing may provide for any administrative remedy contained in § 2518 of this chapter.Any person aggrieved by the order shall have 30 days to appeal the order to the Superior Court, as provided in § 2517(d) of this chapter.
(3) Any person who willfully violates a cease and desist order may be punished as provided in § 2518(b) or § 2520 of this chapter.
§ 2520. Violation of order or injunction; penalty.
(a) The Director may petition any court of competent jurisdiction to obtain recovery of a civil penalty as provided pursuant to this section.Such petition may be made whenever it appears to the Director that a person subject to any order, issued pursuant to any provision of this chapter or any other law or regulation which the Consumer Protection Unit is charged to enforce, has willfully violated such order orbreached a material term of an agreement forming the basis for a cease and desist order.
(b) A person who willfully violates any such order or any such agreement shall forfeit and pay to the State a civil penalty of not less than $1000 per violation nor more than $25,000 per violation.
(c) Any court in which the petition is brought may order the offender, if a violation is found, to cease and desist the unlawful practice.Any subsequent violation of the court's order may be punished by a sanction for contempt in addition to enhanced civil penalties.
(d) Nothing in this section shall prevent the Attorney General or the Director from initiating any additional or alternative enforcement action under their lawful powers.
§ 2521. Consumer Protection Fund
(a) All money received by the State as a result of actions brought by the Attorney General or Director pursuant to this chapter or state or federal antitrust laws shall be credited by the State Treasurer to a fund to be known as the "Consumer Protection Fund."
(b) The Consumer Protection Fund will be a revolving fund and shall consist of funds transferred to the revolving fund pursuant to actions brought by the Attorney General or Director pursuant to this chapter or state or federal antitrust laws gifts or grants made to the revolving fund; provided, however, that to the extent that such funds constitute reimbursement for expenses directly paid from constitutionally dedicated funds, such recoveries shall be transferred to the constitutionally dedicated fund.Moreover, any funds obtained pursuant to an administrative order shall be credited as directed by § 2517(e) of this title.
(c) The Attorney
General and the Director are authorized to expend from the Consumer Protection
Fund such monies as are necessary for the payment of salaries, costs, expenses
and charges incurred in connection with the activities under the consumer
protection and antitrust statutes they are authorized to enforce.
(d) When any person has a legal right to
a portion of funds in the Consumer Protection Fund, the Attorney General and
the Director are authorized to approve release of such funds to that person.
(e) From time to time as determined by the Delaware State Clearinghouse Committee, the Attorney General shall submit a detailed report to members of the Committee of revenues, expenditures and program measures for the fiscal period in question.Such report shall also be sufficiently descriptive in nature so as to be concise and informative.The committee may cause the Attorney General to appear before the Committee and to answer such questions as the Committee may require.
Section 3. Amend Chapter 25, Title 6 of the Delaware Code by striking Subchapter III in its entirety and replacing it as follows:
"Subchapter
§ 2522. Consumer fraud.
(a) The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale, lease or advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby, is an unlawful practice.
(b) Any failure to disclose information that is required to be disclosed under federal or state law in connection with the sale, lease or advertisement of any merchandise constitutes a violation of this section.
(c) Any failure to disclose the absence of a license by a person who is required to have a license in connection with the sale, lease or advertisement of any merchandise constitutes a violation of this section.
(d) This section shall not apply to matters subject to the jurisdiction of the Public Service Commission, or of the Insurance Commissioner of this State.
§ 2523. Unfair or deceptive trade practices.
(a) A person engages in an unfair or deceptive trade practice when, in the course of a business, vocation, or occupation, that person:
(1) Passes off goods or services as those of another;
(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;
(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;
(5) Represents 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 the person does not have;
(6) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
(7) Represents 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) Disparages the goods, services, or business of another by false or misleading representation of fact;
(9) Advertises goods or services with intent not to sell them as advertised;
(10) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(11) Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of, price reductions; or
(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
(b) In order to prevail in an action under this chapter, a complainant need not prove competition between the parties or actual confusion or misunderstanding.
(c) This section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this State.
§ 2524. Falsely advertising goods as property of an insolvent or as damaged.
No person engaged in the sale of any goods, wares or merchandise within the State shall publicly and falsely, and with intent to deceive the general buying public, advertise or otherwise represent that the goods, wares or merchandise are or were either in whole or in part the property of any insolvent or bankrupt or the assignee of any insolvent or bankrupt, or that such goods, wares or merchandise were either in whole or in part damaged by fire or accident of any kind.
§ 2525. Price discrimination; penalty.
Whoever, doing business in this State and engaged in the production, manufacture or distribution of any commodity in general use, intentionally, for the purpose of destroying the competition of any regular, established dealer in such commodity or to prevent competition of any person who in good faith intends or attempts to become such dealer, discriminates between different sections, communities, or cities of this State, by selling the commodity at a lower rate in 1 section, community, or city, or any portion thereof, than in another, after making due allowance for any difference in the grade or quality and in the cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be fined not less than $200, nor more than $5,000 or imprisoned not more than 1 year, or both.
§ 2526. Delivery of unsolicited merchandise.
Where unsolicited merchandise is delivered to a person for whom it is intended, such person has a right to refuse to accept delivery of this merchandise or such person may deem it to be a gift and use it or dispose of it in any manner without any obligation to the sender.
§ 2527. Advertising of tobacco products on or in school properties prohibited.
(a) No person, firm, corporation, partnership or other organization shall advertise or cause to be advertised any tobacco products within 200 feet of any public or private school, excluding institutions of higher education. This section shall not apply to advertisements inside of a commercial establishment, except outward-facing advertisements placed in windows.
(b) This section shall not be construed to prohibit the display of any message or advertisement opposing the use of tobacco products. Any message or advertisement opposing the use of tobacco products that is placed within 200 feet of a school may not contain the brand name of any tobacco product or the name of any tobacco company.
(c) This section shall not be construed to prohibit an advertisement stating that a commercial establishment sells tobacco products, provided that the advertisement is on the premises or property of the commercial establishment and does not identify any tobacco product brand or any tobacco product manufacturer by name.
(d) The Attorney General may file a complaint administratively or in the Court of Chancery or Superior Court for the county in which the alleged unlawful practice has been or is to be partially or completely performed. The Court of Chancery may enjoin any person, firm, corporation, partnership or other organization from the commission of any such act, and may award damages and costs. Whoever is found to be in violation of this section by the Superior Court shall be fined not more than $1,000 for the first offense and not more than $5,000 for each subsequent offense."
Section 4.Amend Chapter 25, Title 6 of the Delaware Code by striking Subchapter XI in its entirety.
Section 5.Amend Chapter 25, Title 29 of the Delaware Code by striking sections 2517, 2518 and 2519 in their entirety.
Section 6.Amend Title 6 of the Delaware Code by striking all references to "§ 2513" of Title 6, contained in §§ 2562, 2590(b), 2506A(d), 2507A(a), 2505B(b), 2506B(b), and § 5009 of Title 6, and add in lieu thereof"§ 2522."
Section 7.Amend Chapter 25 of Title 6 of the Delaware Code by strikingthe term "§ 2527" within subparagraph (b) of § 2581 of this title and adding in lieu thereof "§ 2521".
Section 8.Amend Chapter 25, Title 6 of the Delaware Code by striking subparagraph (a) of § 2590 and adding in lieu thereof the following: "(a) The Attorney General shall have the same authority in enforcing, remedying, and otherwise carrying out the provisions of this subchapter as is provided by subchapter II of Chapter 25 of this title."
Section 9.Amend Chapter 25, Title 6 of the Delaware Code by striking subparagraph (a) of§ 2597 and adding in lieu thereof the following: "(a) The Attorney General shall have the same authority in enforcing, remedying, and otherwise carrying out the provisions of this subchapter as is provided by subchapter II of this title."
Section 10.Amend Chapter 25, Title 6 of the Delaware Code by striking subparagraph (b) of § 2597 and adding in lieu thereof the following: "(b) Any violation of § 2595 of this title shall be deemed an unlawful practice in violation of § 2522 of this title and willful violations of § 2595 of this title shall be punishable in accordance with § 2522 and/or § 2581 of this title."
Section 11.Amend Chapter 25A of Title 6 of the Delaware Code by striking "§ 2511" in each instance where it appears in § 2502A of this title and by adding in lieu thereof "§ 2502".
Section 12.Amend Chapter 25A of Title 6 of the Delaware Code by striking the term "§ 2532" in subparagraph (e) of § 2506A and adding in lieu thereof the term "§ 2523".
Section 13.Amend Chapter 25A, Title 6 of the Delaware Code by striking the text of § 2509A and adding in lieu thereof the following: "All enforcement actions under this chapter by the Attorney General shall be undertaken in accordance with subchapter II of Chapter 25 of this title."
Section 14.Amend Chapter 25B, Title 6 of the Delaware Code by striking this clause within § 2504B: "Section2513(b)(2) of this title notwithstanding, in connection with any door-to-door sale of a residential water treatment system, it is an unlawful practice within the meaning of § 2513 of this title for any seller to:" and adding in lieu thereof the following: "In connection with any door-to-door sale of a residential water treatment system, it is an unlawful practice within the meaning of § 2522 of this title for any seller to:".
Section 15.Amend Chapter 25B, Title 6 of the Delaware Code by striking the text of subparagraph (a) of § 2506B and adding in lieu thereof the following: "(a) The Attorney General shall have the same authority in enforcing, remedying, and otherwise carrying out the provisions of this subchapter as is provided by subchapter II of this title."
Section 16.Amend Chapter 28, Title 6 of the Delaware Code by striking the text of § 2829 and adding in lieu thereof the following: "Violations of this subchapter shall be within the scope of the enforcement duties and powers of the Department of Justice Consumer Protection Unit, as provided by subchapter II of Chapter 25 of this title."
Section 17.Amend Chapter 36 of Title 6 of the Delaware Code by striking subparagraph (b) of § 3603 and adding in lieu thereof the following "(b) Failure to comply with a buyer's valid request to escrow under § 3602 of this title shall constitute an unlawful practice in violation of § 2522 of this title and willful violations of § 3602 of this title shall be punishable in accordance with § 2522 and/or § 2581 of this title.The Attorney General shall have the same authority to enforce, remedy, and carry out this subchapter as is provided by subchapter II of Chapter 25 of this title."
Section 18.Amend Chapter 42 of Title 6 of the Delaware Code by striking the term "§ 2517 of Title 29" in subparagraph (c) of § 4203 and adding in lieu thereof the following: "subchapter II of Chapter 25 of this title".
Section 19.Amend Chapter 42, Title 6 of the Delaware Code by striking the text of § 4222 and adding in lieu thereof the following: "A violation of this chapter shall be within the scope of the enforcement duties and powers of the Department of Justice Consumer Protection Unit, as provided by subchapter II of Chapter 25 of this title."
Section 20.Amend Chapter 44, Title 6 of the Delaware Code by striking this clause within § 4404: "Section2513(b)(2) of this title notwithstanding, in connection with any door-to-door sale, it is an unlawful practice within the meaning of § 2513 of this title for any seller to:" and adding in lieu thereof the following: "In connection with any door-to-door sale, it is an unlawful practice within the meaning of § 2522 of this title for any seller to:".
Section 21.Amend Chapter 44, Title 6 of the Delaware Code by striking the text of § 4405 and adding in lieu thereof the following: "A violation of this chapter shall be within the scope of the enforcement duties and powers of the Department of Justice Consumer Protection Unit, as provided by subchapter II of Chapter 25 of this title."
Section 22.Amend Chapter 49A, Title 6 of the Delaware Code by striking subparagraph (a) of § 4909A and adding in lieu thereof the following: "(a) The Attorney General shall have the same authority in enforcing, remedying, and otherwise carrying out the provisions of this chapter as is provided by subchapter II of Chapter 25 of this title."
Section 23.Amend Chapter 49A, Title 6 of the Delaware Code by striking the text of subparagraph (b) of § 4909A and adding in lieu thereof the following: "(b) Any violation of § 4903A of this title shall be deemed an unlawful practice in violation of § 2522 of this title and willful violations of § 4903A of this title shall be punishable in accordance with § 2522 and/or § 2581 of this title."
Section 24.Amend Chapter 76, Title 6 of the Delaware Code by striking the text of § 7616 and adding in lieu thereof the following: "A violation of this chapter shall be within the scope of the enforcement duties and powers of the Department of Justice Consumer Protection Unit, as provided by subchapter II of Chapter 25 of this title."
Section 25.Amend Chapter 53 of Title 25 of the Delaware Code by striking the phrase "§ 2517 of Title 29" in subparagraph (b) of § 5310 and adding in lieu thereof "§ 2519 of Title 6".
SYNOPSIS
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This bill presents extensive revisions to Chapter 25 of Title 6, and to Chapter 25 of Title 29, pertaining to consumer protection, in order to bring greater clarity and consistency to the statute and to strengthen and increase the enforcement authority of the Department of Justice.Specifically, the bill adds new administrative powers to give the Director of the Consumer Protection Unit of the Department of Justice similar authority to what is provided to the Securities Commissioner in Chapter 73 of Title 6.Several sections contained in Chapter 25 of Title 29 have been revised and transferred to Chapter 25 of Title 6, so that the consumer protection statutes are all in one location in the Code. Section 1 contains a new Subchapter I that has been amended to place general provisions pertaining to purpose, definitions, private causes of action and remedies, courts of competent jurisdiction, defenses, and a statute of limitations at the beginning of the Chapter.Previously, Subchapter I was a collection of miscellaneous provisions. Section 2 contains a new Subchapter II that clarifies the rulemaking authority of the Director of the Consumer Protection Unit and adds new administrative powers.The Director shall have the authority to issue cease and desist orders for any violation of the Chapter.For consumer fraud and deceptive trade practice violations, the Director is authorized to initiate an administrative proceeding in which civil penalties up to $5000 per violation are authorized.Section 2 also authorizes the Attorney General to appoint a hearing officer, who shall be a Deputy Attorney General not assigned to the Consumer Protection Unit, to adjudicate such proceedings.Additionally, in court proceedings where a violation has been shown by the Consumer Protection Unit, it shall be entitled to attorney's fees. Section 3 contains a new Subchapter III that prohibits consumer fraud and unfair or deceptive trade practices.These sections closely match the language previously contained in former sections 2513 and 2532. Section 4 repeals Subchapter XI of Title 6, which consists of one section pertaining to enforcement.The substance of this provision has been moved to Subchapter II, which contains enforcement-related sections. Section 5 repeals the sections in Chapter 25 of Title 29 pertaining to consumer protection, so that the consumer protection statutes are all located in Title 6. Sections 6 through 25 amend various references throughout Title 6 (as well as one change in Title 25) to the old consumer protection statutory provisions to update those references for consistency with the new section numbers. All sections of this Act become effective upon enactment. |
