ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 4267
(By Delegates Amores, Coleman, Pino, Kominar,
Staton, Smirl and L. White)
(Originating in the
Committee on the Judiciary)
[March 5, 1998]
A BILL to amend and reenact sections one hundred four, four hundred
sixteen and four hundred seventeen, article three, chapter
forty-six of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
two hundred seven and two hundred eight, article four of said
chapter; to amend chapter forty-six-a of said code by adding
thereto a new article, designated article six-e; and to amend
and reenact section five, article four, chapter sixty-one of
said code, all relating to the regulation of telemarketing
activities generally; defining the term "demand draft"; making
transfer warranties applicable to demand drafts transferred by
a person for consideration; making presentment warranties
applicable to demand drafts; making transfer warranties
applicable to demand drafts transferred by a customer or
collecting bank; making presentment warranties applicable to
demand drafts presented to the drawee for payment; defining certain terms related to the regulation of telemarketing;
exempting certain persons and entities from telemarketing
registration; requiring the registration of telemarketers;
requiring surety bond upon application for registration;
levying of civil administrative penalty for failing to
register or meet security requirement; requiring a
telemarketer to keep records related to telemarketing
activities; mandating disclosures which a telemarketer must
make when communicating with a consumer; requiring a minimum
policy on accepting returns or canceling services; describing
unfair or deceptive acts or practices; establishing causes of
action for unfair or deceptive acts or practices; creating the
felony offense of operating a criminal recovery service and
establishing the penalty therefor; describing abusive acts or
practices; providing for civil remedies; providing that
remedies are not exclusive; providing for service of process
on certain nonresidents; and making the creation of a
fraudulent demand draft a felony forgery offense subject to
criminal penalties.
Be it enacted by the Legislature of West Virginia:
That sections one hundred four, four hundred sixteen and four
hundred seventeen, article three, chapter forty-six of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that sections two hundred seven and two hundred eight, article four of said chapter be amended and
reenacted; that chapter forty-six-a of said code be amended by
adding thereto a new article, designated article six-e; and that
section five, article four, chapter sixty-one of said code be
amended and reenacted, all to read as follows:
CHAPTER 46. UNIFORM COMMERCIAL CODE.
ARTICLE 3. NEGOTIABLE INSTRUMENTS.
§46-3-104. Negotiable instrument.
(a) Except as provided in subsections (c) and (d),
"negotiable instrument" means an unconditional promise or order to
pay a fixed amount of money, with or without interest or other
charges described in the promise or order, if it:
(1) Is payable to bearer or to order at the time it is issued
or first comes into possession of a holder;
(2) Is payable on demand or at a definite time; and
(3) Does not state any other undertaking or instruction by
the person promising or ordering payment to do any act in addition
to the payment of money, but the promise or order may contain (i)
an undertaking or power to give, maintain or protect collateral to
secure payment, (ii) an authorization or power to the holder to
confess judgment or realize on or dispose of collateral or (iii) a
waiver of the benefit of any law intended for the advantage or
protection of an obligor.
(b) "Instrument" means a negotiable instrument.
(c) An order that meets all of the requirements of subsection
(a), except paragraph (1), and otherwise falls within the
definition of "check" in subsection (f) is a negotiable instrument
and a check.
(d) A promise or order other than a check is not an
instrument if, at the time it is issued or first comes into
possession of a holder, it contains a conspicuous statement,
however expressed, to the effect that the promise or order is not
negotiable or is not an instrument governed by this article.
(e) An instrument is a "note" if it is a promise and is a
"draft" if it is an order. If an instrument falls within the
definition of both "note" and "draft," a person entitled to enforce
the instrument may treat it as either.
(f) "Check" means (i) a draft, other than a documentary
draft, payable on demand and drawn on a bank or (ii) a cashier's
check or teller's check. An instrument may be a check even though
it is described on its face by another term, such as "money order."
(g) "Cashier's check" means a draft with respect to which the
drawer and drawee are the same bank or branches of the same bank.
(h) "Teller's check" means a draft drawn by a bank (i) on
another bank or (ii) payable at or through a bank.
(i) "Traveler's check" means an instrument that (i) is
payable on demand, (ii) is drawn on or payable at or through a
bank, (iii) is designated by the term "traveler's check" or by a substantially similar term and (iv) requires, as a condition to
payment, a countersignature by a person whose specimen signature
appears on the instrument.
(j) "Certificate of deposit" means an instrument containing
an acknowledgment by a bank that a sum of money has been received
by the bank and a promise by the bank to repay the sum of money.
A certificate of deposit is a note of the bank.
(k) "Demand draft" means a writing that is not signed by a
customer, as defined in subdivision five, subsection (a), section
one hundred four, article four of this chapter, and that is created
by a third party under the purported authority of the customer for
the purpose of charging the customer's account with a bank. A
demand draft does not include a check drawn by a fiduciary, as
defined in section three hundred seven of this article. A demand
draft may contain any or all of the following:
(1) The customer's printed or typewritten name or account
number;
(2) A notation that the customer authorized the draft; and
(3) The statement "No signature required," "Authorization on
file," "Signature on file," or words to that effect.
§46-3-416. Transfer warranties.
(a) A person who transfers an instrument for consideration
warrants to the transferee and, if the transfer is by indorsement,
to any subsequent transferee that:
(1) The warrantor is a person entitled to enforce the
instrument;
(2) All signatures on the instrument are authentic and
authorized;
(3) The instrument has not been altered;
(4) The instrument is not subject to a defense or claim in
recoupment of any party which can be asserted against the
warrantor;
and
(5) The warrantor has no knowledge of any insolvency
proceeding commenced with respect to the maker or acceptor or, in
the case of an unaccepted draft, the drawer
.; and
(6) If the instrument is a demand draft, the creation of the
instrument according to the terms on its face was authorized by the
person identified as drawer.
(b) A person to whom the warranties under subsection (a) are
made and who took the instrument in good faith may recover from the
warrantor as damages for breach of warranty an amount equal to the
loss suffered as a result of the breach, but not more than the
amount of the instrument plus expenses and loss of interest
incurred as a result of the breach.
(c) The warranties stated in subsection (a) cannot be
disclaimed with respect to checks. Unless notice of a claim for
breach of warranty is given to the warrantor within thirty days
after the claimant has reason to know of the breach and the identity of the warrantor, the liability of the warrantor under
subsection (b) is discharged to the extent of any loss caused by
the delay in giving notice of the claim.
(d) A
(cause of action) cause of action for breach of
warranty under this section accrues when the claimant has reason to
know of the breach.
(e) If the warranty under subdivision six, subsection (a) is
not given by a transferor under applicable conflict of law rules,
the warranty is not given to that transferor when that transferor
is a transferee.
§46-3-417. Presentment warranties.
(a) If an unaccepted draft is presented to the drawee for
payment of acceptance and the drawee pays or accepts the draft, (i)
the person obtaining payment or acceptance, at the time of
presentment and (ii) a previous transferor of the draft, at the
time of transfer, warrant to the drawee making payment or accepting
the draft in good faith that:
(1) The warrantor is, or was, at the time the warrantor
transferred the draft, a person entitled to enforce the draft or
authorized to obtain payment or acceptance of the draft on behalf
of a person entitled to enforce the draft;
(2) The draft has not been altered;
and
(3) The warrantor has no knowledge that the signature of the
drawer of the draft is unauthorized
.; and
(4) If the instrument is a demand draft, the creation of the
draft according to the terms on its face was authorized by the
person identified as drawer.
(b) A drawee making payment may recover from any warrantor
damages for breach of warranty equal to the amount paid by the
drawee less the amount the drawee received or is entitled to
receive from the drawer because of the payment. In addition, the
drawee is entitled to compensation for expenses and loss of
interest resulting from the breach. The right of the drawee to
recover damages under this subsection is not affected by any
failure of the drawee to exercise ordinary care in making payment.
If the drawee accepts the draft, breach of warranty is a defense to
the obligation of the acceptor. If the acceptor makes payment with
respect to the draft, the acceptor is entitled to recover from any
warrantor for breach of warranty the amounts stated in this
subsection.
(c) If a drawee asserts a claim for breach of warranty under
subsection (a) based on an unauthorized indorsement of the draft or
an alteration of the draft, the warrantor may defend by proving
that the indorsement is effective under section 3-404 or 3-405 or
the drawer is precluded under section 3-406 or 4-406 from asserting
against the drawee the unauthorized indorsement or alteration.
(d) If (i) a dishonored draft is presented for payment to the
drawer or an indorser or (ii) any other instrument is presented for payment to a party obliged to pay the instrument and (iii) payment
is received, the following rules apply:
(1) The person obtaining payment and prior transferor of the
instrument warrant to the person making payment in good faith that
the warrantor is, or was, at the time the warrantor transferred the
instrument, a person entitled to enforce the instrument or
authorized to obtain payment on behalf of a person entitled to
enforce the instrument.
(2) The person making payment may recover from any warrantor
for breach of warranty an amount equal to the amount paid plus
expenses and loss of interest resulting from the breach.
(3) The warranties stated in subsections (a) and (d) cannot
be disclaimed with respect to checks. Unless notice of a claim for
breach of warranty is given to the warrantor within thirty days
after the claimant has reason to know of the breach and the
identity of the warrantor, the liability of the warrantor under
subsection (b) or (d) is discharged to the extent of any loss
caused by the delay in giving notice of the claim.
(e) A
(cause of action) cause of action for breach of
warranty under this section accrues when the claimant has reason to
know of the breach.
(f) If the warranty under subdivision four, subsection (a) is
not given by a transferor under applicable conflict of law rules,
the warranty is not given to that transferor when that transferor is a transferee.
ARTICLE 4. BANK DEPOSITS AND COLLECTIONS.
§46-4-207. Transfer warranties.
(a) A customer or collecting bank that transfers an item and
receives a settlement or other consideration warrants to the
transferee and to any subsequent collecting bank that:
(1) The warrantor is a person entitled to enforce the item;
(2) All signatures on the item are authentic and authorized;
(3) The item has not been altered;
(4) The item is not subject to a defense or claim in
recoupment (section 3-305(a)) of any party that can be asserted
against the warrantor;
and
(5) The warrantor has no knowledge of any insolvency
proceeding commenced with respect to the maker or acceptor or, in
the case of an unaccepted draft, the drawer
.; and
(6) If the item is a demand draft, the creation of the item
according to the terms on its face was authorized by the person
identified as drawer.
(b) If an item is dishonored, a customer or collecting bank
transferring the item and receiving settlement or other
consideration is obliged to pay the amount due on the item (i)
according to the terms of the item at the time it was transferred
or (ii) if the transfer was of an incomplete item, according to its
terms when completed as stated in sections 3-115 and 3-407. The obligation of a transferor is owed to the transferee and to any
subsequent collecting bank that takes the item in good faith. A
transferor cannot disclaim its obligation under this subsection by
an indorsement stating that it is made "without recourse" or
otherwise disclaiming liability.
(c) A person to whom the warranties under subsection (a) are
made and who took the item in good faith may recover from the
warrantor as damages for breach of warranty an amount equal to the
loss suffered as a result of the breach, but not more than the
amount of the item plus expenses and loss of interest incurred as
a result of the breach.
(d) The warranties stated in subsection (a) cannot be
disclaimed with respect to checks. Unless notice of a claim for
breach of warranty is given to the warrantor within thirty days
after the claimant has reason to know of the breach and the
identity of the warrantor, the warrantor is discharged to the
extent of any loss caused by the delay in giving notice of the
claim.
(e ) A cause of action for breach of warranty under this
section accrues when the claimant has reason to know of the breach.
(f) If the warranty under subdivision six, subsection (a) is
not given by a transferor or collecting bank under applicable
conflict of law rules, the warranty is not given to that
transferor when that transferor is a transferee or to any prior collecting bank of that transferee.
§46-4-208. Presentment warranties.
(a) If an unaccepted draft is presented to the drawee for
payment or acceptance and the drawee pays or accepts the draft, (i)
the person obtaining payment or acceptance, at the time of
presentment and (ii) a previous transferor of the draft, at the
time of transfer, warrant to the drawee that pays or accepts the
draft in good faith that:
(1) The warrantor is, or was, at the time the warrantor
transferred the draft, a person entitled to enforce the draft or
authorized to obtain payment or acceptance of the draft on behalf
of a person entitled to endorse the draft;
(2) The draft has not been altered;
and
(3) The warrantor has no knowledge that the signature of the
purported drawer of the draft is unauthorized
.; and
(4) If the instrument is a demand draft, the creation of the
draft according to the terms on its face was authorized by the
person identified as drawer.
(b) A drawee making payment may recover from a warrantor
damages for breach of warranty equal to the amount paid by the
drawee less the amount the drawee received or is entitled to
receive from the drawer because of the payment. In addition, the
drawee is entitled to compensation for expenses and loss of
interest resulting from the breach. The right of the drawee to recover damages under this subsection is not affected by any
failure of the drawee to exercise ordinary care in making payment.
If the drawee accepts the draft, (i) breach of warranty is a
defense to the obligation of the acceptor and (ii) if the acceptor
makes payment with respect to the draft, the acceptor is entitled
to recover from a warrantor for breach of warranty the amounts
stated in this subsection.
(c) If a drawee asserts a claim for breach of warranty under
subsection (a) based on an unauthorized indorsement of the draft or
an alteration of the draft, the warrantor may defend by proving
that the indorsement is effective under section 3-404 or 3-405 or
the drawer is precluded under section 3-406 or 4-406 from asserting
against the drawee the unauthorized indorsement or alteration.
(d) If, (i) a dishonored draft is presented for payment to
the drawer or an indorser or (ii) any other item is presented for
payment to a party obliged to pay the item, and the item is paid,
the person obtaining payment and a prior transferor of the item
warrant to the person making payment in good faith that the
warrantor is, or was, at the time the warrantor transferred the
item, a person entitled to enforce the item or authorized to obtain
payment on behalf of a person entitled to enforce the item. The
person making payment may recover from any warrantor for breach of
warranty an amount equal to the amount paid plus expenses and loss
of interest resulting from the breach.
(e) The warranties stated in subsections (a) and (d) cannot
be disclaimed with respect to checks. Unless notice of a claim for
breach of warranty is given to the warrantor within thirty days
after the claimant has reason to know of the breach and the
identity of the warrantor, the warrantor is discharged to the
extent of any loss caused by the delay in giving notice of the
claim.
(f) A cause of action for breach of warranty under this
section accrues when the claimant has reason to know of the breach.
(g) If the warranty under subdivision four, subsection (a) is
not given by a transferor under applicable conflict of law rules,
the warranty is not given to that transferor when that transferor
is a transferee.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT.
ARTICLE 6E. TELEMARKETING.
Part I. Definitions.
§46A-6E-101. Applicability of definitions.
For the purposes of this article, the words or terms defined
in this part have the meanings ascribed to them. These definitions
are applicable unless a different meaning clearly appears from the
context.
§46A-6E-102. Chance promotion.
"Chance promotion" means any plan in which premiums are
distributed by random or chance selection.
§46A-6E-103. Consumer; purchaser.
"Consumer" or "purchaser" means a person who is solicited to
become or does become obligated to pay for consumer goods or
services offered by a telemarketer through telemarketing.
§46A-6E-104. Consumer goods or services.
"Consumer goods or services" means:
(1) Any property or services offered or sold to a natural
person primarily for personal, family, household or agricultural
purposes;
(2) Any property or service offered or sold for the purpose
of providing a profit or investment opportunity; or
(3) Any property intended to be attached to or installed in
any real property, without regard to whether it is so attached or
installed, as well as timeshare estates and licenses, resort and
campground memberships, and any services related to such property.
§46A-6E-105. Division.
"Division" means the consumer protection division of the
office of the attorney general.
§46A-6E-106. Individual.
"Individual" means a single human being and does not mean a
firm, association of individuals, corporation, partnership, joint
venture, sole proprietorship, or any other entity.
§46A-6E-107. Investment opportunity.
"Investment opportunity" means anything tangible or intangible, that is offered for sale, sold or traded based, wholly
or in part, on representations, either express or implied, about
past, present or future income, profit or appreciation.
§46A-6E-108. Material aspect or element.
"Material aspect or element" means any factor likely to affect
a person's choice of, or conduct regarding, goods or services and
includes currency values and comparative expressions of value
including, but not limited to, percentages or multiples.
§46A-6E-109. Person.
"Person" includes any individual, group of individuals, firm,
association, corporation, partnership, joint venture, sole
proprietorship, or any other business entity.
§46A-6E-110. Prize, gift or award.
"Prize, gift or award" means anything offered or given, or
purportedly offered or given, to a consumer as part of a prize
promotion.
§46A-6E-111. Prize promotion.
"Prize promotion" means:
(1) A sweepstakes or other game of chance; or
(2) An oral or written express or implied representation that
a person has won, has been selected to receive, or may be eligible
to receive a prize, gift or award.
§46A-6E-112. Salesperson.
(a) "Salesperson" means any person employed, appointed, or authorized by a telemarketer to solicit the sale of consumer goods
or services to a consumer on behalf of the telemarketer.
(b) A person is a salesperson within the meaning of this
section regardless of whether the telemarketer refers to the person
as a seller, agent, representative, or independent contractor if,
in exchange for consideration, the person:
(1) Provides consumer goods or services to a consumer;
(2) Offers to provide consumer goods or services to a
consumer; or
(3) Arranges for others to provide consumer goods or services
to a consumer.
(c) A salesperson does not include individuals exempted from
this part by section two hundred one of this article or employees
or agents of persons exempted from this part by section two hundred
one of this article, or companies and individuals under contract
with persons exempted from this part by section two hundred one of
this article when liability is assumed by the exempt entity.
§46A-6E-113. Telemarketing solicitation.
(a) "Telemarketing solicitation" means and includes any
communication between a telemarketer and a prospective purchaser
for the purpose of selling or attempting to sell the purchaser any
consumer goods or services, if it is intended by the telemarketer
that an agreement to purchase the consumer goods or services will
be made after any of the following events occur:
(1) The telemarketer makes an unsolicited telephone call to
a consumer, attempting to sell consumer goods or services to the
consumer, when the consumer has not previously expressed an
interest to the telemarketer in purchasing, investing in, or
obtaining information regarding, the consumer goods or services
offered by the telemarketer; or
(2) The telemarketer communicates with a consumer by any
means and invites or directs the consumer to respond by any means
to the telemarketer's communications, and the telemarketer intends
to enter into an agreement with the consumer for the purchase of
consumer goods or services at some time during the course of one or
more subsequent telephone communications with the consumer.
(b) For purposes of this article, "communication" means a
written or oral notification or advertisement transmitted from a
telemarketer to a consumer by any means.
§46A-6E-114. Telemarketer.
(a) "Telemarketer" means any person who initiates or receives
telephone calls to or from a consumer in this state for the purpose
of making a telemarketing solicitation as defined in section one
hundred thirteen of this article.
(b) A telemarketer may initiate or receive a communication
that constitutes a telemarketing solicitation on his own behalf,
through a salesperson, or through an automated dialing machine.
(c) A telemarketer does not include any of the persons or entities exempted pursuant to Part II of this article.
(d) A telemarketer does not include a salesperson as defined
in section one hundred fourteen of this article.
(e) A telemarketer includes, but is not limited to, owners,
operators, officers, directors, partners, or other individuals
engaged in the management activities of a business entity that is
subject to licensing and registration pursuant to this article.
Part II. Exempt persons or entities.
§46A-6E-201. Inapplicability of article.
(a) Except as otherwise provided in subsection (b) of this
section, the provisions of this article do not apply to the persons
or entities identified in this part II.
(b) The following persons or entities are subject to the
provisions of this article, except that they are only exempt from
the provisions of this article that require registration and
bonding:
(1) A charitable organization making a telemarketing
solicitation if that charitable organization is exempt from filing
an annual registration statement with the secretary of state under
the provisions of section six, article nineteen, chapter twenty- nine of this code; and
(2) A person or entity making a telemarketing solicitation
when the seller and buyer or lessor and lessee, as the case may be,
are both persons or entities operating for commercial purposes.
§46A-6E-202. Inapplicability of article to licensed securities,
commodities, or investment broker, dealer, or
investment adviser.
The provisions of this article do not apply to any licensed
securities, commodities, or investment broker, dealer, or
investment adviser, when soliciting within the scope of his
license. As used in this section, "licensed securities,
commodities, or investment broker, dealer, or investment adviser"
means a person who is licensed or registered as such by the
securities and exchange commission, by the national association of
securities dealers or some other self-regulatory organization as
defined by the Securities Exchange Act of 1934 (15 U.S.C. § 781),
or by an official or agency of this state or of any state of the
United States.
§46A-6E-203. Inapplicability of article to licensed associated
person of a securities, commodities, or investment
broker, dealer, or investment adviser
.
The provisions of this article do not apply to any licensed
associated person of a securities, commodities, or investment
broker, dealer, or investment adviser, when soliciting within the
scope of his license. As used in this section, "licensed
associated person of a securities, commodities, or investment
broker, dealer, or investment adviser" means any associated person
registered or licensed by the National Association of Securities Dealers or other self-regulatory organization as defined by the
Securities Exchange Act of 1934 (15 U.S.C. §781) or by an official
or agency of this state or of any state of the United States.
§46A-6E-204. Inapplicability of article to person who does not
make the major sales presentation.
The provisions of this article do not apply to a person who
does not make the major sales presentation during the telephone
solicitation and who does not intend to, and does not actually,
complete or obtain provisional acceptance of a sale during the
telephone solicitation, but who makes the major sales presentation
and completes the sale at a later face-to-face meeting between the
seller and the prospective consumer in accordance with the home
solicitation provisions in this chapter and as a home solicitation
sale as defined by section one hundred two, article one of this
chapter. However, if a seller, in violation of subdivision (4)
subsection (a) section five hundred one of this article, causes an
individual to go to the prospective consumer for the primary
purpose of collecting payment or delivering any item purchased,
this exemption does not apply.
§46A-6E-205. Inapplicability of article to person who solicits
sales by catalog.
The provisions of this article do not apply to a person who
solicits sales by periodically publishing and delivering a catalog
of a seller's merchandise to prospective purchasers, if the catalog:
(1) Contains a written description or illustration of each
item offered for sale;
(2) Includes the business address or home address of the
seller;
(3) Includes at least twenty pages of written material and
illustrations and is distributed in more than one state; and
(4) Has an annual circulation, by mailing, of not less than
one hundred fifty thousand catalogs.
§46A-6E-206. Inapplicability of article to person who solicits
contracts for the maintenance or repair of goods.
The provisions of this article do not apply to a person who
solicits contracts for the maintenance or repair of goods
previously purchased from the person making the solicitation or on
whose behalf the solicitation is made.
§46A-6E-207. Inapplicability of article to person soliciting a
transaction regulated by the Commodity Futures
Trading Commission.
The provisions of this article do not apply to a person
soliciting a transaction regulated by the federal commodity futures
trading commission if the person is registered or temporarily
licensed for this activity with the commodity futures trading
commission under the Commodity Exchange Act (7 U.S.C. §1 et seq.)
and the registration or license has not expired or been suspended or revoked.
§46A-6E-208. Inapplicability of article to supervised financial
organization.
The provisions of this article do not apply to any supervised
financial organization or regulated consumer lender while
conducting activities subject to regulation by the commissioner of
banking or a federal agency charged with regulating such supervised
financial organizations or regulated consumer lenders. As used in
this section, the terms "supervised financial organization" and
"regulated consumer lender" shall have the same meanings as
ascribed to them in section one hundred two, article one of this
chapter.
§46A-6E-209. Inapplicability of article to licensed insurance
broker, agent, customer representative, or
solicitor.
The provisions of this article do not apply to any licensed
insurance broker, agent, customer representative, or solicitor when
soliciting within the scope of his or her license. As used in this
section, "licensed insurance broker, agent, customer
representative, or solicitor" means any insurance broker, agent,
customer representative, or solicitor licensed by an official or
agency of this state pursuant to subsection (a), section one,
article twelve, chapter thirty-three of this code, or of any state
of the United States.
§46A-6E-210. Inapplicability of article to person soliciting the
sale of services provided by a cable television
system.
The provisions of this article do not apply to a person
soliciting the sale of services provided by a cable television
system operating under authority of a franchise or permit.
§46A-6E-211. Inapplicability of article to certain telephone and
communications companies.
The provisions of this article do not apply to any of the
following entities to the extent that its acts or practices are
subject to the jurisdiction or regulation of the West Virginia
public service commission or the federal communications commission:
(1) A telephone company, or any affiliate or agent of a
telephone company; or
(2) Any provider of commercial mobile service, as defined by
the communications act of 1934, as amended by the
telecommunications act of 1966 (47 U.S.C. §151, et seq.).
§46A-6E-212. Inapplicability of article to persons maintaining
continuing business locations for sales of
consumer goods or services.
The provisions of this article do not apply to a person who
offers to sell consumer goods or services through telemarketing
activities if the person maintains a permanent business location
under the same exact name as that used in connection with the telemarketing sales, and both of the following activities occur on
a continuing basis:
(1) The identical consumer goods or services offered for sale
by the person through telemarketing activities are offered for sale
at the person's business location; and
(2) More than fifty percent of all the of the consumer goods
or services offered for sale by the person are provided to
consumers at the person's business location rather than through
telemarketing sales.
§46A-6E-213. Inapplicability of article to issuer of certain
securities.
The provisions of this article do not apply to an issuer or a
subsidiary of an issuer that has a class of securities which is
subject to §12 of the Securities Exchange Act of 1934 (15 U.S.C.§
781) and which is either registered or exempt from registration
under paragraphs (A), (B), (C), (E), (F), (G), or (H) of subsection
(g)(2) of that section.
§46A-6E-214. Inapplicability of article to book, video, record, or
multimedia club.
The provisions of this article do not apply to a book, video,
record, or multimedia club or contractual plan or arrangement:
(1) Under which the seller provides the consumer with a form
which the consumer may use to instruct the seller not to ship the
offered merchandise;
(2) That is regulated by the Federal trade commission trade
regulation concerning use of negative option plans by sellers in
commerce; or
(3) That provides for the sale of books, records, videos,
multimedia products or other goods that are not covered under
subdivisions (1) or (2) of this section, including continuity
plans, subscription arrangements, standing order arrangements
supplements, and series arrangements under which the seller
periodically ships merchandise to a consumer who has consented in
advance to receive such merchandise on a periodic basis.
§46A-6E-215. Inapplicability of article to registered developer
or a real estate salesperson or broker.
The provisions of this article do not apply to a person who is
licensed as a real estate broker, associate broker, or real estate
salesperson, in accordance with the provisions of article twelve,
chapter forty-seven of this code, when such person is acting within
the scope of their license.
§46A-6E-216. Inapplicability of article to person soliciting the
sale of electric or natural gas energy or related
goods or services.
The provisions of this article do not apply to a person
soliciting on behalf of an entity that sells electric or natural
gas energy, or an affiliate of such an entity, if the solicitation
is for the sale of electric or natural gas energy or related goods and services, and the transaction is governed and regulated by the
public service commission or the federal energy regulatory
commission.
Part III. Registration, security and record keeping.
§46A-6E-301. Registration of telemarketers.
(a) No person shall act as a telemarketer without first
having registered with the department of tax and revenue.
(b) The initial application for registration shall be made at
least sixty days prior to offering consumer goods or services, or
offering for sale consumer goods or services through any medium,
and an application for renewal shall be made on an annual basis
thereafter.
(c) The application for a certificate of registration or
renewal shall include, but not be limited to, the following
information:
(1) The true name, mailing address, telephone number and
physical address of the telemarketer, including each name under
which the telemarketer intends to engage in telemarketing;
(2) Each occupation or business that the telemarketer's
principal owner has engaged in for two years immediately preceding
the date of the application,
(3) Whether any principal or manager has been convicted, or
pled guilty to, or is being prosecuted by indictment for,
racketeering, any violations of state or federal securities laws, a theft offense, or any consumer protection law or telemarketing
law;
(4) Whether there has been entered against any principal or
manager an injunction, temporary restraining order or a final
judgment in any civil or administrative action, involving fraud,
theft, racketeering, embezzlement, fraudulent conversion,
misappropriation of property, or any consumer protection law or
telemarketing law, including any pending litigation against the
applicant;
(5) Whether the telemarketer, at any time during the previous
seven years, has filed for bankruptcy, been adjudged bankrupt or
been reorganized because of insolvency;
(6) The true name, current home address, date of birth,
social security number and all other names of the following:
(A) Each person participating in or responsible for the
management of the seller's business;
(B) Each person, office manager, or supervisor principally
responsible for the management of the seller's business.
(7) The name, address and account number of every institution
where banking or any other monetary transactions are done by the
seller.
§46A-6E-302. Security requirement.
(a) An application for registration or renewal shall be
accompanied by a continuing surety bond executed by a
corporation that is licensed to transact the business of fidelity and surety
insurance in the state of West Virginia. The bond must be approved
by the commissioner of tax and revenue before a certificate of
registration is issued in accordance with the provisions of section
three hundred one of this article. A separate bond
in the amount
of one hundred thousand dollars
may be filed for each telemarketing
location, including each principal office and each branch office
thereof, or a single bond in the amount of five hundred thousand
dollars may be filed
for all locations of the telemarketer.
(b) The bond shall provide that the telemarketer will pay all
damages to the State or a private person resulting from any
unlawful act or action by the telemarketer or its agent in
connection with the conduct of telemarketing activities.
(c) The registration of any telemarketer shall be void upon
termination of the bond of the surety company, unless, prior to
such termination, a new bond has been filed with the commissioner.
The surety, for any cause, may cancel the bond upon giving a sixty
day written notice by certified mail to the telemarketer and to the
department of tax and revenue. Unless the bond is replaced by that
of another surety before the expiration of the sixty day notice of
cancellation, the registration of the telemarketer shall be treated
as lapsed.
(d) The surety bond shall remain in effect for four years
from the period the telemarketing business ceases to operate in this state.
(e) Any business required under this article to file a bond
with a registration application, may file, in lieu thereof, a
certificate of deposit, cash or Government bond in the same amount
as would be required for the bond. The department of tax and
revenue shall hold such cash, certificate of deposit or government
bond for three years from the period the telemarketing business
ceases to operate or registration lapses, in order to pay claims
made against the telemarketing business during its period of
operation.
(f) The registration of the telemarketing business will be
treated as lapsed if at any time, the amount of the bond, cash,
certificate of deposit or government bond falls below the amount
required by this section.
(g) Should the license of any surety company to transact
business in this state be terminated, all bonds given pursuant to
this article upon which such company is surety shall thereupon be
suspended, and the commissioner shall immediately notify each
affected licensee of such suspension and require that a new bond be
filed. This notice shall be by registered or certified mail,
return receipt requested, and shall be addressed to the
telemarketer at his or its principal place of business as shown by
the commissioner's records. The failure of any telemarketer to
file a bond with new or additional surety within thirty days after being advised in writing by the commissioner of the necessity to do
so shall be cause for the commissioner to revoke the telemarketer's
registration.
(h)
An action may be brought in any court of competent
jurisdiction upon the bond by any person to whom the licensee fails
to account and pay as set forth in such bond.
The aggregate
liability of the surety company to all persons injured by a
telemarketer's violations may not exceed the amount of the bond.
§46A-6E-303. Failure to register or meet security requirement;
remedies.
(a) Any person is subject to a civil administrative penalty,
to be levied by the commissioner of tax and revenue, of not more
than five thousand dollars if the person:
(1) Acts as a telemarketer without first registering pursuant
to section three hundred one of this article;
(2) Acts as a telemarketer without first meeting the security
requirements set forth in section three hundred two of this
article;
(3) Acts as a telemarketer after failing to maintain a
certificate of registration accompanied by a surety bond as
required by sections three hundred one and three hundred two of
this article;
(4) Includes any material information on a registration
application that is false or misleading; or
(5) Misrepresents that a telemarketer is registered.
In assessing a civil administrative penalty, the commissioner
shall take into account the seriousness of the violation, any good
faith efforts to comply with applicable requirements, any benefit
obtained by the act or omission, and any other appropriate factors
as may be established by the commissioner by rules promulgated
pursuant to this article in accordance with the provisions of
article three, chapter twenty-nine-a of this code.
(b) No assessment shall be levied pursuant to subsection (a)
of this section until after the alleged violator has been notified
by certified mail or personal service. The notice shall include:
(1) A reference to this section, sections three hundred one
and three hundred two of this article, and any legislative rule
that was allegedly violated;
(2) A concise statement of the facts alleged to constitute
the violation;
(3) A statement of the amount of the administrative penalty
to be imposed; and
(4) A statement of the alleged violator's right to an
informal hearing.
(c) The alleged violator has twenty calendar days from
receipt of the notice within which to deliver to the commissioner
a written request for a hearing. If no hearing is requested, the
notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, the commissioner shall inform
the alleged violator of the time and place of the hearing. The
commissioner may appoint an assessment officer to conduct the
hearing and then make a written recommendation to the commissioner
concerning the assessment of a civil administrative penalty.
Within thirty days following the hearing, the commissioner shall
issue and furnish to the violator a written decision, and the
reasons therefor, concerning the assessment of a civil
administrative penalty. The authority to levy an administrative
penalty is in addition to all other enforcement provisions of this
article and the payment of any assessment does not affect the
availability of any other enforcement provision in connection with
the violation for which the assessment is levied. No assessment
levied pursuant to this section becomes due and payable until the
procedures for review of such assessment as set out in this
subsection have been completed.
(d) The commissioner may seek an injunction, or may institute
a civil action against any person allegedly in violation of the
provisions of this section, sections three hundred one and three
hundred two of this article. In seeking an injunction, it is not
necessary for the commissioner to post bond nor to allege or prove
at any stage of the proceeding that irreparable damage will occur
if the injunction is not issued or that the remedy at law is
inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted
notwithstanding the fact that all administrative remedies provided
for in this article have not been exhausted or invoked against the
person or persons against whom such relief is sought. Upon request
of the commissioner, the division or the prosecuting attorney of
the county in which the violation occurs shall assist the
commissioner in any civil action under this section.
(e) Independently of the commissioner, with respect to any
action brought by the division or a private citizen regarding
unfair or deceptive acts or practices, or abusive acts or practices
under the provisions of this article or under other applicable
consumer protection laws set forth in this code,
the division or a
private citizen may also apply to the court for appropriate relief
under this section against a person violating the provisions of
sections three hundred one and three hundred two of this article
,
pending final determination of the proceedings.
§46A-6E-304. Record keeping requirements.
(a) A telemarketer shall keep for a period of four years from
the date the record is produced the following records related to
its telemarketing activities:
(1) All advertisements, brochures and promotional materials;
(2) The name and last known address of each prize recipient
and the prize awarded for prizes that are represented, directly or
by implication, to have a value of twenty-five dollars or more;
(3) The name and last known address of each customer, the
goods or services purchased, the date such goods or services were
shipped or provided, and the amount paid by the customer for the
goods or services;
(4) The name, last known home address and telephone number,
and the job title for all current and former employees directly
involved in telephone sales;
(5) All verifiable authorizations required to be provided or
received under this article; and
(6) A copy of all scripts, outlines or presentation material
the seller will require the telemarketer to use when soliciting, as
well as all sales information to be provided by the seller to a
purchaser in connection with any solicitation.
(b) A seller or telemarketer may keep the records required by
subsection (a) of this section in any form, and in any manner,
format, or place as they keep such records in the ordinary course
of business. Failure to keep all records required by subsection
(a) of this section shall be a violation of this article.
(c) The telemarketer is responsible for complying with the
above provisions.
(d) In the event of any dissolution or termination of the
seller's or telemarketer's business, the principal of that
telemarketer shall maintain all records as required under this
section. In the event of any sale, assignment or other change in ownership of the seller's business, the successor shall maintain
all records required under this section.
(e) (1) The division may require a telemarketer to file true
copies of all scripts, outlines and promotional material and any
modifications thereto with the division of consumer protection for
a time period to be determined by the division. Such filing may be
required upon a finding by the division that:
(A) A telemarketer or salesperson is using scripts, outlines
or presentation material that contain material misrepresentations
or that fail to state material facts; or
(B) A telemarketer or salesperson is deviating from scripts,
outlines or presentation material so as to make material
misrepresentations or to fail to state material facts.
Part IV. Disclosures and contract requirements.
§46A-6E-401. Mandatory disclosures.
(a) A telemarketer or salesperson shall promptly disclose, in
a clear and conspicuous manner, the following material information
when making a telemarketing communication with a consumer:
(1) The true identity of the telemarketer and the
salesperson;
(2) That the purpose of the call is to sell consumer goods or
services; and
(3) The nature of the goods or services offered for sale.
(b) Before a consumer pays for the goods or services offered for sale, the telemarketer or salesperson shall disclose, in a
clear and conspicuous manner, the following material information:
(1) The total costs to purchase, receive or use the consumer
goods or services that are the subject of the telemarketing
communication;
(2) The quantity of the consumer goods or services that are
the subject of the telemarketing solicitation;
(3) All material restrictions, limitations or conditions to
purchase, receive, or use the consumer goods or services that are
the subject of the telemarketing solicitation;
(4) All material aspects of the performance, quality,
efficacy, nature or basic characteristics of the consumer goods or
services that are the subject of the telemarketing solicitation;
(5) All material aspects of the nature or terms of the
telemarketer's refund, cancellation, exchange or repurchase
policies;
(6) All material aspects of a prize promotion, disclosed
prior to requesting the consumer to enter into a sale or lease,
including, but not limited to, the following:
(A) A description of the prizes, gifts or awards offered or
to be given to consumers participating in the prize promotion;
(B) A statement of the true retail value of each prize,
gift or award offered or to be given to participating consumers;
(C) A clear identification of the person or entity on whose behalf the contest or promotion is conducted;
(D) A description of all material conditions which a
participant must satisfy
(E) A clear and unequivocal statement that the consumer is
not required to make any purchase, lease or rental of consumer
goods or services in order to qualify for any prize, gift or
award or to otherwise participate in the prize promotion;
(F) A clear and unequivocal statement that the consumer is
not required to pay any handling or shipping costs or to make any
other payment of any kind in order to win or receive a prize,
gift or award or to otherwise participate in the prize promotion;
(G) The actual numbers of the prizes, gifts or awards to be
awarded;
(H) The odds of receiving a prize, gift or award; and
(I) A clear explanation of the no-purchase/no-payment
method of participating in the prize promotion, with instructions
on how to participate.
(7) All material aspects of any investment opportunity being
offered, including but not limited to a description of the
following factors:
(A) Risk;
(B) Liquidity;
(C) Earnings potential;
(D) Profitability;
(E) Benefits; and
(F) If applicable, the value, price and location of any real
or personal property that the consumer will acquire by investing.
§46A-6E-402. Accepting returns or canceling services.
(a) Every telemarketer shall, at a minimum, have the
following policy:
(1) Accepting returns or canceling services for a period of
not less than seven days after receipt by the consumer and
providing a cash refund for a cash purchase or issuing a credit for
a credit purchase, which credit is applied to the account to which
the purchase was debited in connection with the return of its
unused and undamaged merchandise or canceled services;
(2) Disclosing the telemarketer's return and refund policy to
the buyer, orally by telephone or in writing with advertising,
promotional material, or with delivery of the products or service;
and
(3) Restoring such payment or issuing such credit, as
required under subdivision (1) of this section, within thirty days
after the date on which the telemarketer receives returned
merchandise or notice of cancellation of services. A seller who
discloses, in writing, that a sale is made or provided
"satisfaction guaranteed," with "free inspection," "no risk
guarantee," or similar words or phrases, shall be deemed to meet
the requirements of the review and return for refund policy set forth in this subparagraph.
(b) Failure to comply with the provisions of this section is
unfair or deceptive act or practice
Part V. Unfair or deceptive acts or practices; Penalties.
§46A-6E-501. Unfair or deceptive acts or practices.
(a) It is an unfair or deceptive act or practice and a
violation of this article for any seller or telemarketer to engage
in the following conduct:
(1) To advertise or represent that registration as a
telemarketer equals an endorsement or approval by the state or any
governmental agency of the state;
(2) To request or receive payment of any fee or consideration
for goods or services represented to remove derogatory information
from, or improve, a person's credit history, credit record, or
credit rating until:
(A) The time frame in which the seller has represented all of
the goods or services will be provided to that person has expired;
and
(B) The seller has provided the person with documentation in
the form of a consumer report from a consumer reporting agency
demonstrating that the promised results have been achieved, such
report having been issued more than six months after the results
were achieved;
(3) To obtain or submit for payment a check, draft, or other form of negotiable paper drawn on a person's checking, savings,
share, or similar account, without that person's express verifiable
authorization. Such authorization shall be deemed verifiable if
any of the following means are employed:
(A) Express written authorization by the customer, which may
include the customer's signature on the negotiable instrument; or
(B) Express oral authorization which is tape recorded and
made available upon request to the customer's bank and which
evidences clearly both the customer's authorization of payment for
the goods and services that are the subject of the sales offer and
the customer's receipt of all of the following information:
(i) The date of the draft(s);
(ii) The amount of the draft(s);
(iii) The payor's name;
(iv) The number of draft payments (if more than one);
(v) A telephone number for customer inquiry that is answered
during normal business hours; and
(vi) The date of the customer's oral authorization.
(C) Written confirmation of the transaction, sent to the
customer prior to submission for payment of the customer's check,
draft, or other form of negotiable paper, that includes:
(i) All of the information contained in subparagraphs(i)
through (vi), paragraph (B), subdivision (3) of this subsection;
and
(ii) The procedures by which the customer can obtain a refund
from the seller or telemarketer in the event the confirmation is
inaccurate.
(4) To procure the services of any professional delivery,
courier or other pick-up service to obtain immediate receipt and
possession of a consumer's payment unless:
(A) Such service is requested by the consumer;
(B) The consumer is informed that he or she can inspect the
goods or services prior to payment and may refuse to accept the
goods or services; and
(C) The consumer is actually afforded an opportunity inspect
the goods or services prior to payment.
(5) To engage in any other unfair or deceptive conduct which
will create a likelihood of confusion or misunderstanding to any
reasonable consumer.
(6) To misrepresent the requirements of this section.
(7) To provide substantial assistance or support to any
seller or telemarketer when that person knows or consciously avoids
knowing that the seller or telemarketer is engaged in any act or
practice that violates this section.
(8) To engage in any "unfair methods of competition and
unfair or deceptive acts or practices" as specified in subsection
(f), section one hundred two, article six of this chapter and made
unlawful by the provisions of section one hundred four, article six of this chapter.
§46A-6E-502. Causes of action arising out of unfair or deceptive
acts or practices; limitation of actions.
(1) If a telemarketer violates the provisions of section five
hundred one of this article, the consumer has a cause of action to
recover actual damages and, in addition, a right to recover from
the violator a penalty in an amount, to be determined by the court,
of not less than one hundred dollars nor more than one thousand
dollars. No action brought pursuant to the provisions of this
subsection may be brought more than two years after the date upon
which the violation occurred or the due date of the last scheduled
payment of the agreement, whichever is later.
(2) If a telemarketer violates the provisions of section five
hundred one of this article, any sale or lease of consumer goods or
services is void and the consumer is not obligated to pay either
the principal or any finance charge. If the consumer has paid any
part of the principal or of the finance charge, he or she has a
right to recover the payment from the violator or from any assignee
of the violator's rights who undertakes direct collection of
payments or enforcement of rights arising from the debt.
(3) A consumer is not obligated to pay a charge in excess of
that allowed by this article, and if the consumer has paid an
excess charge, he or she has a right to a refund. A refund may be
made by reducing the consumer's obligation by the amount of the excess charge. If the consumer has paid an amount in excess of the
lawful obligation under the agreement, the consumer may recover in
an action the excess amount from the person who made the excess
charge or from an assignee of that person's rights who undertakes
direct collection of payments from or enforcement of rights against
the consumer arising from the debt.
(4) If a telemarketer has contracted for or received a charge
in excess of that allowed by this chapter, the consumer may, in
addition to recovering such excess charge, also recover from the
telemarketer or the person liable in an action a penalty in an
amount determined by the court not less than one hundred dollars
nor more than three thousand dollars. No action brought pursuant
to the provisions of this subsection may be brought more than two
years after the date upon which the violation occurred or the due
date of the last scheduled payment of the agreement, whichever is
later.
(5) A telemarketer has no liability for a penalty under
subsection (1) or subsection (4) of this section if, within fifteen
days after discovering an error, and prior to the institution of an
action under this section or the receipt of written notice of the
error, the telemarketer notifies the consumer of the error and
corrects the error.
(6) If the telemarketer establishes by a preponderance of
evidence that a violation is unintentional or the result of a bona fide error of fact notwithstanding the maintenance of procedures
reasonably adapted to avoid any such violation or error, no
liability is imposed under subsections (1), (2) and (4) of this
section, and the validity of the transaction is not affected.
§46A-6E-503. Operating a criminal recovery service; penalties.
(a) A person is guilty of operating a criminal recovery
service when the person:
(1) Makes a representation that he will recover all or any
portion of the consideration that a consumer has paid to a
telemarketer in response to a telemarketing solicitation;
(2) Does not intend to make such recovery or has no
reasonable expectation to anticipate that recovery will be made;
and,
(3) Receives any remuneration from the consumer before a
recovery of consideration is made.
(b) Any person who violates the provisions of this section is
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than one year nor more than
ten years, or fined not more than five thousand dollars and
confined in the penitentiary not less than one year nor more than
ten years.
Part VI. Abusive Acts or practices; Penalties.
§46A-6E-601. Abusive acts or practices.
(a) It is an abusive telemarketing act or practice and a violation of this act for any seller or telemarketer to engage in
the following conduct:
(1) Threaten, intimidate or use profane or obscene language;
(2) Engage any person repeatedly or continuously with
behavior a reasonable person would deem to be annoying, abusive or
harassing;
(3) Initiate an outbound telephone call to a person when that
person previously has stated that he or she does not wish to
receive an outbound telephone call made by or on behalf of the
seller whose goods or services are being offered.
(4) Engage in telemarketing to a person's residence at any
time other than between eight a.m. and nine p.m. local time, Monday
through Saturday, at the called person's location, or
(5) Engage in any other conduct which would be considered
abusive to any reasonable consumer.
(b) A telemarketer will not be liable for violating
subdivision three, subsection (a), of this section if:
(1) It has established and implemented written procedures to
avoid outbound telephone calls to persons who have previously
stated that they do not wish to receive such calls;
(2) It has trained its personnel in the procedures
established pursuant to subdivision one of this subsection;
(3) The telemarketer has maintained and recorded lists of
persons who have previously stated that they do not wish to receive such calls; and
(4) Any subsequent call is the result of error.
Part VII. Remedies.
§46A-6E-701. Civil remedies.
(a) Any consumer that suffers a loss or harm as a result of
an unfair or deceptive act or practice may recover actual damages,
court costs, and any other remedies provided by law.
(b) Any consumer that suffers harm as a result of any abusive
act or practice shall receive injunctive or declaratory relief.
(c) The state, on behalf of its residents who have suffered
a loss or harm as a result of a violation of this article, may seek
injunctive or declaratory relief, actual damages, consumer
restitution, civil penalties, forfeiture of bond, attachment of
property, costs, attorneys fees and any other remedies available to
the division under the provisions of this chapter or otherwise
provided by law.
(d) In any action brought under this article where damages
are awarded to a consumer, the court may adjust the damages to
account for inflation from the first day of July, one thousand nine
hundred ninety-eight, to the time of the award of damages, in an
amount determined by the application of data from the consumer
price index. Consumer price index means the last consumer price
index for all consumers published by the United States department
of labor.
§46A-6E-702. Remedies not exclusive.
Nothing contained in this article shall be construed to
adversely alter or affect a right or benefit accruing to a consumer
or the state in accordance with other provisions of this chapter,
or to limit any civil or criminal remedy otherwise provided for by
law. In the case of provisions contained in this article that
exempt a person from the requirements of this article or that
otherwise limit the applicability of this article to a person,
those provisions are exclusive to this article and shall not be
construed to otherwise exempt a person or to limit the
applicability of any other provisions of this code.
§46A-6E-703. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation
authorized to do business in this state pursuant to the provisions
of chapter thirty-one of this code, who directs telemarketing
solicitations to persons residing in this state, shall be
conclusively presumed to have appointed the secretary of state as
his attorney-in-fact with authority to accept service of notice and
process in any action or proceeding brought against him arising out
of such consumer credit sale, consumer lease or consumer loan. A
person shall be considered a nonresident hereunder if he is a
nonresident at the time such service of notice and process is
sought. No act of such person appointing the secretary of state
shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice
two copies for each defendant shall be furnished the secretary of
state with the original notice or process, together with the fee
required by section two, article one, chapter fifty-nine of this
code, the secretary of state shall file in his office a copy of
such process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy of
such process or notice by registered or certified mail, return
receipt requested, to such person at his address, which address
shall be stated in such process or notice:
Provided, That such
return receipt shall be signed by such person or an agent or
employee of such person if a corporation, or the registered or
certified mail so sent by said secretary of state is refused by the
addressee and the registered or certified mail is returned to said
secretary of state, or to his office, showing thereon the stamp of
the U.S. postal service that delivery thereof has been refused, and
such return receipt or registered or certified mail is appended to
the original process or notice and filed therewith in the clerk's
office of the court from which such process or notice was issued.
But no process or notice shall be served on the secretary of state
or accepted fewer than ten days before the return date thereof.
The court may order such continuances as may be reasonable to
afford each defendant opportunity to defend the action or
proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a bar
to the plaintiff in any action from having process or notice in
such action served in any other mode and manner provided by law.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 4. FORGERY AND CRIMES AGAINST THE CURRENCY.
§61-4-5. Forging or uttering other writing; penalty; creation of
unauthorized demand draft.
(a) If any person forge any writing, other than such as is
mentioned in the first and third sections of this article, to the
prejudice of another's right, or utter or attempt to employ as true
such forged writing, knowing it to be forged, he shall be guilty of
a felony, and, upon conviction, shall be confined in the
penitentiary not less than one nor more than ten years, or, in the
discretion of the court, be confined in jail not more than one year
and be fined not exceeding five hundred dollars.
(b) It is a violation of this section to create a demand
draft under the purported authority of another person for the
purpose of charging the other person's account with a bank or other
financial institution, or to utter or attempt to employ as true
such demand draft, if the demand draft is created with the intent
to defraud, and either or both of the following elements is
present:
(1) The person does not, in fact, have the authority to
charge the other person's account; or
(2) The amount of the demand draft exceeds the amount
authorized to be charged.
(c) If a person creates a demand draft without authority or
which exceeds the amount authorized to be charged to an account,
and the demand draft contains the account holder's printed or
typewritten name or account number, or a notation that the account
holder authorized the draft, or a statement "No signature
required," "Authorization on file," "Signature on file," or words
to that effect, the demand draft is the equivalent of a check on
which the drawer's signature is forged or altered.
(d) For purposes of this section, the term "demand draft"
shall have the meaning ascribed to it in section one hundred four,
article three, chapter forty-six of this code.
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