Senate Bill No. 494

(By Senators McCabe, Redd, Unger, Sprouse and McKenzie)


[Originating in the Committee on the Judiciary;

reported February 23, 2000.]


A BILL to amend and reenact section one hundred two, article six, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article ten, chapter sixty-one of said code by adding thereto a new section, designated section thirty-two, all relating to creating the criminal offense of scalping admission tickets to entertainment and athletic events; penalties; defining ticket scalping as an unfair or deceptive act or practice subject to state consumer protection laws; and exemptions.

Be it enacted by the Legislature of West Virginia:
That section one hundred two, article six, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that article ten, chapter sixty-one of said code be amended by adding thereto a new section, designated section thirty-two, all to read as follows:


§46A-6-102. Definitions.

When used in this article, the following words, terms and phrases and any variations thereof required by the context shall have the meaning ascribed to them in this article, except where the context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or circulation of any matter, oral or written, including labeling, which tends to induce, directly or indirectly, any person to enter into any obligation, sign any contract or acquire any title or interest in any goods or services and includes every word device to disguise any form of business solicitation by using such terms as "renewal", "invoice", "bill", "statement" or "reminder", to create an impression of existing obligation when there is none, or other language to mislead any person in relation to any sought-after commercial transaction.
(b) "Consumer" means a natural person to whom a sale or lease is made in a consumer transaction, and a "consumer transaction" means a sale or lease to a natural person or persons for a personal, family, household or agricultural purpose.
(c) "Merchantable" means, in addition to the qualities prescribed in section three hundred fourteen, article two, chapter forty-six of this code, that the goods conform in all material respects to applicable state and federal statutes and regulations establishing standards of quality and safety of goods and, in the case of goods with mechanical, electrical or thermal components, that the goods are in good working order and will operate properly in normal usage for a reasonable period of time.
(d) "Sale" includes any sale, offer for sale or attempt to sell any goods for cash or credit or any services or offer for services for cash or credit.
(e) "Trade" or "commerce" means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state.
(f) "Unfair methods of competition and unfair or deceptive acts or practices" means and includes, but is not limited to, any one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another;
(4) Using deceptive representations or designations of geographic origin in connection with goods or services;
(5) Representing 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 he or she does not have;
(6) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) Representing 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) Disparaging the goods, services or business of another by false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them as advertised;
(10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any deception, fraud, false pretense, false promise or 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 or advertisement of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised, printed, displayed, published, distributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extension of consumer credit including the rates, terms or conditions for the sale of such goods or the extension of such credit, which is false, misleading or deceptive or which omits to state material information which is necessary to make the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a group of prizes or any other thing of value, if receipt of the prize or thing of value is contingent upon any payment of a service charge, mailing charge, handling charge or any other similar charge by the person or upon mandatory attendance by the person at a promotion or sales presentation at the sellers place of business or any other location: Provided, That a person may be offered one item or the choice of several items conditioned on the person listening to a sales promotion or entering a consumer transaction if the true retail value and an accurate description of the item or items are clearly and conspicuously disclosed along with the person's obligations upon accepting the item or items; such description and disclosure shall be typewritten or printed in at least eight-point regular type, in upper or lower case, where appropriate; or
(16) Violating any provision or requirement of article six-b of this chapter; or
(17) Engaging in ticket scalping as defined in section thirty-two, article ten, chapter sixty-one of this code.
(g) "Warranty" means express and implied warranties described and defined in sections three hundred thirteen, three hundred fourteen and three hundred fifteen, article two, chapter forty-six of this code and expressions or actions of a merchant which assure the consumer that the goods have described qualities or will perform in a described manner.

§61-10-32. Ticket scalping; penalty.
(a) No person may resell, offer for resale or attempt to resell any ticket, privilege or license of admission to an entertainment event, including, but not limited to, any place of amusement, stadium, theater, performance, sport, exhibition or athletic contest given in this state, at a price greater than the price, including tax, printed thereon, or a price greater than the price fixed for admission, including tax, and a reasonable service charge for services actually rendered not to exceed ten percent of the price fixed for admission. The owner or operator of the property on which the entertainment event is to be held or is being held or the person or entity presenting the event may authorize in writing any person to sell such ticket, privilege or license of admission at a price in excess of that authorized under this section. A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars. The sale of each ticket, privilege or license of admission in violation of the provisions of this section constitutes a separate offense.
(b) For purposes of this section, "resale, offer for resale or attempt to resell" means any sale of a ticket other than a sale by the operator or the operator's agent who is expressly authorized to sell such tickets. "Resale" shall also include a sale or attempted sale by any method, including in person, or by telephone, mail, newspaper advertisement, delivery service, facsimile or other electronic device, where either the buyer or the seller is located in this state.

(c) The provisions of this section do not apply to tickets which are auctioned for bonafide charitable purposes.