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title-10•Title 10 — Commerce and Trade
Official Code of Georgia Annotated — Title 10. Commerce and Trade
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
This article shall be known and may be cited as “The Retail Installment and Home Solicitation Sales Act.”
(a) As used in this article, the term:
(1) “Cash sale price” means the price for which the seller would have sold or furnished to the buyer and the buyer would have bought or obtained from the seller the goods or services which are the subject matter of the retail installment transaction if such sale had been a sale for cash. The cash sale price may include any applicable taxes and charges for delivery, installation, servicing, repairs, alterations, or improvements.
(2) “Goods” means all personalty when purchased primarily for personal, family, or household use, including certificates or coupons issued by a retail seller exchangeable for personalty or services, but not including motor vehicles. The term “goods” includes such personalty which is furnished or used at the time of sale or subsequently in the modernization, rehabilitation, repair, alteration, improvement, or construction of real property so as to become a part thereof, whether or not severable therefrom.
(3) “Holder” of a retail installment contract means the retail seller of the goods or services under the contract or, if the contract is purchased by a sales finance company or other assignee, the sales finance company or other assignee at the time of the determination.
(4) “Home solicitation sale” means a consumer credit sale in which the purchase price is payable in installments and the seller or his representative solicits the sale in person and the buyer's agreement or offer to purchase is made at a home other than that of the person soliciting the sale and the contract is signed at the time of such solicitation.
(5) “Motor vehicle” means any device or vehicle operated over the public highways and streets of this state and propelled by other than muscular power but does not include traction engines, road rollers, implements of husbandry and other agricultural equipment, and such vehicles as run only upon a track.
(6) “Official fees” means the fees prescribed by law for filing, recording, or otherwise perfecting or releasing or satisfying any title or lien retained or taken by a seller in connection with a retail installment transaction.
(7) “Person” means an individual, partnership, corporation, association, and any other group however organized.
(8) “Retail buyer” or “buyer” means a person who buys goods or obtains services from a retail seller in a retail installment transaction and not principally for the purpose of resale.
(9) “Retail installment contract” or “contract” means an instrument or instruments reflecting one or more retail installment transactions entered into in this state pursuant to which goods or services may be paid for in installments. The term includes a series of transactions made pursuant to an instrument or instruments providing for the addition of the amount financed plus the time price differential for the current sale to an existing balance. It does not include a revolving account or an instrument reflecting a sale pursuant thereto.
(10) “Retail installment transaction” or “transaction” means any transaction to sell or furnish or the sale of or the furnishing of goods or services evidenced by a retail installment contract or a revolving account.
(11) “Retail seller” or “seller” means a person regularly engaged in, and whose business consists to a substantial extent of, selling goods or services to a retail buyer. The term also includes a seller who regularly grants credit to retail buyers for the purpose of purchasing goods or services from any other person pursuant to a retail installment contract or a revolving charge account.
(12) “Revolving account” or “account” means an instrument or instruments prescribing the terms of retail installment transactions which may be made thereafter from time to time pursuant thereto, under which the buyer's total unpaid balance, whenever incurred, is payable in installments over a period of time and under the terms of which a time price differential or finance charge is to be computed in relation to the buyer's balance from time to time.
(13) “Sales finance company” means a person engaged in the business of purchasing retail installment contracts from one or more retail sellers. The term includes but is not limited to a bank, trust company, or installment loan company, if so engaged. The term does not include the pledge of an aggregate number of such contracts to secure a bona fide loan thereon.
(14) “Services” means:
(A) Work, labor, or other personal services furnished for personal, family, or household use, whether or not furnished in connection with the delivery, installation, servicing, repair, or improvement of goods, and includes such work, labor, or personal services furnished in connection with the modernization, rehabilitation, repair, alteration, improvement, or construction upon or in connection with real property;
(B) Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, and the like; and
(C) Insurance provided in connection with a retail installment transaction.
(15) “Time price differential” means the amount, however denominated or expressed, paid or payable for the privilege of purchasing goods or services to be paid for by the buyer in installments; it does not include the amounts, if any, charged for insurance premiums, delinquency charges, attorneys' fees, court costs, or official fees.
(b) The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to this article.
(a) Every retail installment contract shall be in writing and shall be completed as to all essential provisions prior to the signing thereof by the buyer, except as provided in subsection (f) of this Code section. The printed portion of the contract, other than instructions for completion, shall be in at least six-point type. The contract shall contain substantially the following notice in clear and conspicuous type:
“Notice to the Buyer
Do not sign this before you read it or if it contains any blank spaces. You are entitled to an exact copy of the paper you sign. You have the right to pay in advance the full amount due and under certain conditions to obtain a partial refund of the time price differential.”
The contract shall contain the names of the seller and the buyer, the place of business of the seller, and the residence or place of business of the buyer as specified by the buyer.
(b) The maximum number of payments and the amount and date of each payment need not be separately listed if the payments are stated in terms of a series of scheduled amounts and if the amount of the final payment does not exceed by more than 50 percent the scheduled amount of any of the preceding installments; in such cases, the amount of the scheduled final payment shall be stated as the remaining unpaid balance. The initial date for the payment of the first installment may be a calendar date or may refer to the time of delivery or installation.
(c) A retail installment contract need not be contained in a single document. If the contract is contained in more than one document, then one such document may be an original document applicable to purchases of goods or services to be made by the retail buyer from time to time.
(d)(1) Notwithstanding any other law, the seller under a retail installment contract may charge, receive, and collect a time price differential, which shall not exceed 13¢ per $1.00 per year on the unpaid balance.
(2) The time price differential under this subsection shall be computed on the unpaid balance of each transaction on contracts payable in successive monthly payments substantially equal in amount for the period from the date of the contract to and including the date when the final installment thereunder is payable. When a retail installment contract is payable other than in successive monthly payments substantially equal in amount, the time price differential may be at the effective rate provided in this subsection, having due regard for the schedule of payments. The time price differential may be computed on the basis of a full month for any fractional month period in excess of ten days. Notwithstanding the other provisions of this subsection, a minimum time price differential not in excess of the following amounts may be charged on any retail installment contract: $12.00 on any retail installment contract involving an initial unpaid balance of $50.00 or more, $7.50 on a retail installment contract involving an initial unpaid balance of more than $25.00 and less than $50.00, and $5.00 on a retail installment contract involving an initial unpaid balance of $25.00 or less. As used in this subsection, “unpaid balance” shall be determined in accordance with Section 226.8(c) of Regulation Z promulgated by the Board of Governors of the Federal Reserve System pursuant to Title I (Truth in Lending Act) and Title V (General Provisions) of the Consumer Credit Protection Act (Public Law 90-321; 82 Stat. 146, et seq.) as the same existed upon its becoming effective on July 1, 1969.
(e) The seller shall present a completed copy of the retail installment contract to the buyer at the time it is signed by the buyer. Any acknowledgment by the buyer of receipt of a copy of the contract shall be in clear and conspicuous type and, if contained in the contract, shall appear directly above the buyer's signature.
(f) No retail installment contract shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed, except that, if delivery of the goods or services is not made at the time of execution of the contract, the identification of the goods or services and the due date of the first installment may be left blank and later inserted by the seller in the seller's counterpart of the contract after it has been signed by the buyer. The buyer's written acknowledgment, conforming to the requirements of subsection (e) of this Code section, of delivery of a copy of a contract shall be presumptive proof in any action or proceeding of such delivery and that the contract, when signed, did not contain any blank spaces as provided in this subsection.
(g) The seller under any retail installment contract shall, within 30 days after execution of the contract, deliver or mail or cause to be delivered or mailed to the buyer at his or her aforesaid address any policy or policies of insurance the seller has agreed to purchase in connection therewith or in lieu thereof a certificate or certificates of such insurance. The amount, if any, included for insurance shall not exceed the applicable premiums chargeable in accordance with the rates filed with the Department of Insurance; if any such insurance is canceled, unearned insurance premium refunds received by the holder shall be credited to the final maturing installment of the contract except to the extent applied toward the payment for similar insurance protecting the interests of the seller and the holder or either of them. Nothing in this article shall impair or abrogate the right of a buyer to procure insurance from an agent and company of his or her own selection, as provided by the insurance laws of this state; and nothing contained in this article shall modify, alter, or repeal any of the insurance laws of this state.
(h) If the buyer so requests, the holder shall give or forward to the buyer a receipt for any payment when made in cash.
(i) Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may prepay in full at any time before maturity the unpaid balance of any retail installment contract and in so paying the unpaid balance shall receive a refund credit thereon for such anticipation of payments. The amount of the refund shall represent at least as great a proportion of the time price differential after first deducting therefrom an acquisition cost of $20.00 as the sum of the monthly time balances, beginning one month after prepayment is made, bears to the sum of all the monthly time balances under the schedule of payments in the contract. This method of refund upon prepayment is commonly referred to as the “Rule of 78” or the “Sum of the Digits” refund method. Where the amount of the refund credit is less than $1.00, no refund need be made.
(j) In a retail installment transaction involving the modernization, rehabilitation, repair, alteration, improvement, or construction of real property, the buyer may be charged for and there may be collected from him or there may be added to the cash sale price the reasonable fees and costs actually to be paid for construction authorizations and similar permits issued by public agencies.
(a) Every revolving account shall be in writing and shall be completed prior to the signing thereof by the retail buyer. The printed portion, other than instructions for completion, of any revolving account shall be in at least six-point type. Any such account shall contain the names of the seller and the buyer, the place of business of the seller, and the residence or place of business of the buyer as specified by the buyer, and substantially the following notice in clear and conspicuous type:
“Notice to the Buyer
Do not sign this before you read it or if it contains any blank spaces. You are entitled to an exact copy of the paper you sign. You have the right to pay in advance the full amount due.”
A copy of any such account shall be delivered or mailed to the retail buyer by the retail seller prior to the date on which the first payment is due thereunder. Any acknowledgment by the buyer of delivery of a copy of the account shall be in clear and conspicuous type and, if contained in the account, shall appear directly above the buyer's signature. No account shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed. The buyer's acknowledgment, conforming to the requirements of this subsection, of delivery of a copy of an account shall be presumptive proof in any action or proceeding of such delivery and that the account, when signed, did not contain any blank spaces as provided in this subsection. A revolving account shall be presumed to be signed or accepted by the buyer if, after a request for a revolving account, such revolving account or application for a revolving account is in fact signed by the buyer or if such revolving account is used by the buyer or if such revolving account is used by another person authorized by the buyer to use it. The revolving account is not effective until: the buyer has received the disclosures required pursuant to the federal Truth in Lending Act, 15 U.S.C. Section 1601, et seq., as amended; the buyer or a person authorized by the buyer uses the revolving account; and the seller or its assignee extends credit to the buyer for transactions on the revolving account.
(b) Notwithstanding any other law, the seller under a revolving account may charge, receive, and collect a time price differential which shall not exceed 17.5¢ per $10.00 per month computed on all amounts unpaid thereunder from month to month (which need not be a calendar month) or other regular period. If the amount of time price differential so computed shall be less than $1.00 for any such month, a time price differential of $1.00 for any such month may be charged, received, and collected. If the regular period is other than such monthly period or if the unpaid amount is less than or greater than $10.00, the permitted time price differential shall be computed proportionately. Such time price differential may be computed for all unpaid balances within a range of not in excess of $10.00 on the basis of the median amount within such range if as so computed such time price differential is applied to all unpaid balances within such range.
Retail installment contracts negotiated and entered into by mail or telephone without personal solicitation by salesmen or other representatives of the seller, where a catalogue of the seller or other printed solicitation of business which is distributed and made available generally to the public clearly sets forth the cash price and other terms of sales to be made through such medium, may be made as provided in this Code section. All of the provisions of this article relating to contracts shall apply to such sales, except that the seller shall not be required to deliver a copy of the contract to the buyer as provided in subsection (e) of Code Section 10-1-3; and, if the contract when received by the seller contains any blank spaces, the seller may insert in the appropriate blank space the amounts of money and other terms which are set forth in the seller's catalogue or other printed solicitation which is then in effect. In lieu of presenting the buyer with a copy of the contract as provided in subsection (e) of Code Section 10-1-3, the seller shall furnish to the buyer a written statement of any items inserted in the blank spaces in the contract received from the buyer.
(a) The buyer shall have a right to cancel a home solicitation sale agreement until 12:00 Midnight of the third business day after the day on which the buyer signs the agreement.
(b) Notice of cancellation under this Code section shall be given to the seller at the place of business as set forth in the agreement by certified mail or statutory overnight delivery, return receipt requested, which shall be posted not later than 12:00 Midnight on the third business day following execution of the agreement.
(c) In the event of cancellation pursuant to this Code section, the installment seller shall refund to the buyer within ten days after the cancellation all deposits, including any down payment made under the agreement, and redeliver any goods traded in to the seller on account or in contemplation of the home solicitation sale agreement.
(d) In the event of cancellation pursuant to this Code section, the seller shall have the right to charge the buyer 5 percent of the gross sales price of the merchandise purchased by the buyer or $25.00, whichever is less, as liquidated damages. The seller shall also be entitled to reclaim and the buyer shall return, whenever possible, the home solicitation sale agreement. The buyer shall incur no additional liability for cancellation pursuant to this Code section.
(e) If the buyer has received the merchandise sold, the buyer must return that merchandise unused, in the same condition as received by the buyer. The seller shall pick up the merchandise at the place sold within a reasonable time after notice of cancellation; and the seller shall receive from the buyer at that time the actual cost of picking up the merchandise or $5.00, whichever is less.
(f) Notice of cancellation given by the buyer need not take any particular form and, however expressed, is effective if it indicates the intention of the buyer not to be bound by the home solicitation sale.
(a) A retail installment contract or a revolving account may provide for payment by the buyer of a delinquency charge on any installment which is not paid within ten days from the date the payment is due. The charge may not exceed $25.00. A delinquent charge shall not be collected more than once for the same default. A retail installment contract or a revolving account may provide for the payment of reasonable attorneys' fees, if referred for collection to an attorney not a salaried employee of the retail seller, and for the payment of court costs.
(b) A retail installment contract or a revolving account may provide that if the buyer submits to the retail seller as payment for an unpaid balance, or portion thereof, in that account or pursuant to that contract, a check, draft, or order for the payment of money on any bank or other depository, which check, draft, or order is not honored by the drawee, then a delinquency charge as specified in subsection (a) of this Code section may be charged; and a bad instrument fee not to exceed the amount specified in subsection (j) of Code Section 16-9-20 and Code Section 13-6-15 may be charged to the buyer and added to the unpaid balance on the buyer's account if ten days have elapsed since the retail seller has mailed to the buyer at his or her last known address written notice of the failure to honor the check, draft, or order without the check, draft, or order having been made good. A fee authorized by this Code section shall not be deemed to be time price differential, interest, or any other type of finance charge and shall not be included in determining whether any limitations on time price differential, interest, or other finance charges have been exceeded.
(a) Any security interest taken pursuant to a retail installment contract or revolving account shall not be taken with respect to clothing, softwares, and other nondurable items. Each payment with respect to a revolving account shall be applied to goods and services as follows: first to unpaid time price differential or finance charge; then, as to goods purchased on different dates, the first purchased shall be deemed first paid for; as to goods purchased on the same date, the lowest priced shall be deemed first paid for.
(b) Nothing contained in subsection (a) of this Code section shall prevent the parties from agreeing in writing for the payments to be otherwise applied; provided, however, that this Code section shall be construed consistently with Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.” Nothing in this Code section shall be deemed to authorize any act or practice which would otherwise be deemed unfair and deceptive under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.”
(a) Any retail seller may assign, pledge, hypothecate, or otherwise transfer a retail installment contract or revolving account to any person, firm, or corporation on such terms and conditions and for such price as may be mutually agreed upon. Unless the buyer has notice of the assignment, payment thereunder made by the buyer to the last known owner of the contract or account shall be binding on all subsequent owners thereof.
(b) In no event will any such assignment bar any right of action against the seller arising as a result of this article, nor will any such assignment bar any defense against the sales finance company or other assignee arising as a result of subsection (b) of Code Section 10-1-15.
When any goods have been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after said repossession he forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his rights of redemption, as well as his right to demand a public sale of the repossessed goods. In the event the buyer exercises his right to demand a public sale of the goods, he shall in writing so advise the seller or holder of his election by registered or certified mail or statutory overnight delivery addressed to the seller or holder at the address from which the seller's or holder's notice emanated, within ten days after the posting of the original seller's or holder's notice.
In the event of election of such public sale by the buyer, the seller or holder shall dispose of the repossessed goods at a public sale as provided by law, to be held in the state and county where the original sale took place or the state and county of the buyer's residence, at the seller's election.
This Code section is cumulative of Part 6 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing in this Code section shall be deemed to repeal said part.
Nothing contained in this article shall be construed so as to amend, modify, supersede, or repeal Article 2 of Chapter 4 of Title 7, relating to charges and interest on loans secured by secondary security deeds, as now or hereafter amended, nor shall any of the provisions of the loan or interest statutes of this state affect or apply to any retail installment and home solicitation sale.
This article shall not make unlawful contracts or accounts in effect prior to October 1, 1967.
Any waiver of this article shall be unenforceable and void.
(a) No action shall be brought under this article more than four years after the person bringing the action knew or should have known of the occurrence of the alleged violation.
(b) The period of time specified by this Code section shall only apply to violations of this article which occur after July 1, 1979.
(a) Any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and shall be punished as for a misdemeanor for each subsequent offense.
(b) A violation of subsection (d) of Code Section 10-1-3 shall bar recovery of any finance charge, delinquency, or collection charge on the contract. A violation of subsection (b) of Code Section 10-1-4 shall bar recovery of any finance charge, delinquency, or collection charge stated on or collected in connection with the statement on which any such violation shall occur.
(c) In case of a willful violation of any provision of this article, with respect to any transaction, the retail buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) a minimum of $100.00 or double the time price differential and any delinquency charge and any attorneys' fees and court costs charged and paid with respect to such transaction; but the retail seller may recover from the retail buyer an amount equal to the cash price of the goods or services in such transaction and the cost of any insurance purchased by the retail seller for the retail buyer in connection therewith.
(d) Notwithstanding this Code section, any failure to comply with any provisions of subsection (d) of Code Section 10-1-3 may be corrected within ten days after the date of execution of the retail installment contract by the buyer; and, if so corrected, neither the seller nor the holder is subject to any penalty under this Code section.
(e) A seller or holder shall not be held liable in any action brought under this Code section for a violation of this article if the seller or holder shows by clear and convincing evidence that the violation was not intentional and resulted from a bona fide clerical or typographical error.
(f) The penalties under this Code section shall be the sole remedy for violations of this article and a claim of violation of this article may be asserted in an individual action only.
This article shall not apply to the University System of Georgia or its educational units, to private colleges and universities in this state and associations thereof, or to student loan transactions of such educational entities, which educational entities and student loan transactions thereof are expressly exempted from the operation of its provisions.
This article shall be known and may be cited as the “Georgia Door-to-Door Sales Act.”
As used in this article, unless the context otherwise requires, the term:
(1) “Business days” means any calendar day except Saturdays, Sundays, and any federal holiday.
(2)(A) “Door-to-door sale” means a sale, lease, or rental of goods or services:
(i) Solicited in person by the seller or seller's representative, including, but not limited to, solicitations in response to or following an invitation by the buyer;
(ii) For which the buyer's agreement or offer to purchase is made at a place other than the seller's place of business; and
(iii) That includes the following three components:
(I) Payments of $10,000.00 or more;
(II) A lease, financing arrangement, or other agreement with a term of more than 120 months; and
(III) Is eligible, or is alleged by the seller or seller's representative to be eligible, for federal tax credits.
(B) “Door-to door sale” shall not include a transaction:
(i) Conducted without any in-person contact between the buyer and the seller or seller's representative prior to delivery of the goods or performance of the services;
(ii) In which the buyer has initiated the contact and specifically requested the seller or seller's representative to visit the buyer's home for the purpose of repairing or performing maintenance upon the buyer's property. If, in the course of such a visit, the seller sells the buyer the right to receive additional goods or services, other than replacement parts necessarily used in performing maintenance or making repairs, the sale of those additional goods or services would not fall under this exclusion; or
(iii) Pertaining to the sale or rental of real property or to the sale of insurance.
(3) “Place of business” means the main or permanent branch, office, or local address of a seller.
(4) “Purchase price” means the total price paid or to be paid for the goods or services, including all interest and service charges.
(a) The seller shall furnish the buyer with a fully completed receipt of the purchase price or copy of the contract pertaining to any door-to-door sale at the time of its execution. Such receipt or contract shall:
(1) Be in each language used in the oral sale presentation and the in-person interaction between seller and buyer;
(2) Show the date of the transaction and contain the name and address of the seller;
(3) Be in at least ten-point boldface type;
(4) Have adjacent to the contract's signature lines, or on the front page of the receipt if a contract is not used, the following statement:
“You, the buyer, may cancel this transaction at any time prior to midnight of the thirtieth business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.”; and
(5) Provide the buyer with a duplicate notice of cancellation as outlined in Code Section 10-1-23.
(b) In the event of cancellation, the buyer must be able to retain a complete copy of the receipt or contract.
(a) The seller in a door-to-door sale shall provide to each buyer, at the time the buyer signs the door-to-door sales contract or otherwise agrees to buy goods or services from the seller, a notice of cancellation form meeting the requirements of subsection (b) of this Code section that may be used by the buyer.
(b) The form shall be captioned “NOTICE OF CANCELLATION” and shall provide the following information in at least ten-point boldface type:
(1) That the buyer has 30 business days to cancel the sale;
(2) That upon cancellation all of the buyer's payments will be returned within ten business days;
(3) That the buyer may keep or dispose of the goods if the seller fails to pick them up within 20 business days of the date of the notice of cancellation;
(4) The seller's name and the address or email address to which notices of cancellation must be sent;
(5) That the buyer has until midnight of the thirtieth business day to cancel the transaction; and
(6) A signature and date line for the buyer.
(c) The seller shall inform the buyer orally, at the time that the buyer signs the contract or purchases the goods or services, of the buyer's right to cancel.
(d) The seller shall notify the buyer within ten days of receipt of the buyer's notice of cancellation whether the seller intends to repossess or to abandon any shipped, delivered, or installed goods.
The seller in a door-to-door sale shall not negotiate, transfer, sell, or assign any note or other evidence of indebtedness to a finance company or other third party prior to midnight on the second day following the end of the period during which the buyer has a right to cancel pursuant to this article.
The use of the forms and notices of the right to cancel prescribed by the Federal Trade Commission's trade regulation rule, 16 C.F.R. Part 429, establishing a cooling-off period for door-to-door sales, may be used to comply with Code Sections 10-1-22 and 10-1-23; provided, however, that they are altered to accurately reflect the provisions of such Code sections and are in compliance with all provisions of this article.
The rights of buyers in a door-to-door sale shall be not limited to those provided for in this article. Buyers in a door-to-door sale shall also have all applicable rights and remedies afforded under any other state or federal laws.
(a) The requirements of this article shall not apply to sellers of automobiles, vans, trucks, motorized farm equipment, or other motor vehicles that are sold at auctions, tent sales, or other temporary places of business, provided that the seller is a seller of vehicles with a permanent place of business.
(b) The requirements of this article shall not apply to sellers of arts, crafts, food, beverages, or other goods or services that are sold at fairs, carnivals, festivals, or other community events.
(c) The requirements of this article shall not apply to sellers of goods or services that are sold at events sponsored, licensed, or hosted by this state, any local government, a church, or a public charity.
This article shall be known and may be cited as the “Motor Vehicle Sales Finance Act.”
(a) As used in this article, the term:
(1) “Cash sale price” means the price stated in a retail installment contract for which the seller would have sold to the buyer and the buyer would have bought from the seller the motor vehicle which is the subject matter of the retail installment contract if such sale had been a sale for cash instead of a retail installment transaction. The cash sale price may include any taxes; registration, certificate of title, license, and other fees; and charges for accessories and their installation and for delivery, servicing, repairing, or improving the motor vehicle. The cash sale price may also include any amount paid to the buyer or to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on the motor vehicle which is the subject of a retail installment transaction under this article.
(2) “Finance charge” means the amount agreed upon between the buyer and the seller, as limited in this article, to be added to the cash sale price, the amount, if any, included for insurance and other benefits, if a separate charge is made therefor, and official fees, in determining the time sale price.
(3) “Holder” of a retail installment contract means the retail seller of the motor vehicle under the contract or, if the contract is purchased by a sales finance company or another assignee, the sales finance company or other assignee at the time of the determination.
(4) “Motor vehicle” means any device or vehicle including automobiles, motorcycles, motor trucks, trailers, and all other vehicles operated over the public highways and streets of this state and propelled by power other than muscular power but does not include traction engines, road rollers, implements of husbandry and other agricultural equipment, and such vehicles as run only upon a track.
(5) “Official fees” means the fees prescribed by law for filing, recording, or otherwise perfecting and releasing or satisfying a retained title or a lien created by a retail installment contract.
(6) “Person” means an individual, partnership, corporation, association, or any other group however organized.
(7) “Purchase price” means the time balance shown in the contract plus the down payment.
(8) “Retail buyer” or “buyer” means a person who buys a motor vehicle from a retail seller not principally for the purpose of resale and who executes a retail installment contract in connection therewith or a person who succeeds to the rights and obligations of such person.
(9) “Retail installment contract” or “contract” means an instrument or instruments creating a purchase money security interest.
(10) “Retail installment seller” or “seller” means a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions.
(11) “Retail installment transaction” means any transaction evidenced by a retail installment contract.
(12) “Sales finance company” means a person engaged in the business of purchasing retail installment contracts from one or more retail sellers. The term includes but is not limited to a bank, trust company, or installment loan company, if so engaged. The term does not include the pledge of an aggregate number of such contracts to secure a bona fide loan thereon.
(13) “Time sale price” means the cash sale price of a motor vehicle, the amount included for insurance and other benefits if a separate charge is made therefor, official fees, and finance charges. The time sale price may also include, if it has not been included in the cash sale price, any amount paid to the buyer or to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on the motor vehicle which is the subject of a retail installment transaction under this article.
(b) The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to this article.
(a) A retail installment contract shall be in writing, shall be signed by both the buyer and the seller, and shall be completed as to all essential provisions prior to the signing of the contract by the buyer.
(b) The printed portion of the contract, other than instructions for completion, shall be in at least six-point type. The contract shall contain, in clear and conspicuous type, the following:
(1) A specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case; and
(2) The following notice:
“Notice to the Buyer
Do not sign this contract before you read it or if it contains any blank spaces. You are entitled to an exact copy of the contract you sign.”
(c) The seller shall present a completed copy of the contract to the buyer at the time it is signed by the buyer. Unless the seller does so, a buyer who has not accepted delivery of the motor vehicle shall have the right to rescind his agreement and to receive a refund of all payments made and return of all goods traded in to the seller on account of or in contemplation of the contract or, if such goods cannot be returned, the value thereof. Any acknowledgment by the buyer of receipt of a copy of the contract shall be in clear and conspicuous type and, if contained in the contract, shall appear directly above the buyer's signature. This subsection provides cumulative additional rights and is cumulative of Code Section 11-2-302.
(d) The contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer, and a description of the motor vehicle, including its make, year model, model, and identification number or marks.
(e)(1) If any insurance is purchased by the holder of the retail installment contract, the amount charged therefor shall not exceed the applicable premiums chargeable in accordance with the rates filed with the Department of Insurance. If dual interest insurance on the motor vehicle is purchased by the holder, it shall, within 30 days after execution of the retail installment contract, send or cause to be sent to the buyer a policy or policies or certificate of insurance, written by an insurance company authorized to do business in this state, clearly setting forth the amount of the premium, the kind or kinds of insurance, the coverages, and all the terms, exceptions, limitations, restrictions, and conditions of the contract or contracts of insurance.
(2) Nothing in this article shall impair or abrogate the right of a buyer, as defined in Code Section 10-1-31, to procure insurance from an agent and company of his own selection as provided by the insurance laws of this state; and nothing contained in this article shall modify, amend, alter, or repeal any of the insurance laws of the state.
(f) If any insurance is canceled or the premium adjusted, unearned insurance premium refunds received by the holder shall be credited to the final maturing installment of the contract except to the extent applied toward payment for a similar insurance protecting the interests of the buyer and the holder or either of them.
(g) The holder may, if the contract or refinancing agreement so provides, collect a delinquency charge on any installment which is not paid within ten days from the date the payment is due. Such charge may not exceed 5 percent of the installment or $50.00, whichever is less; provided, however, that if the contract or refinancing agreement is related to a truck with a gross vehicle weight rating (GVWR) exceeding 6,000 pounds (size Class 3 and above), truck tractor, trailer, or semitrailer used primarily for business or commercial purposes, such delinquency charge may not exceed 5 percent of the installment. A delinquent charge shall not be collected more than once for the same default. In addition to the delinquency and collection charge, the contract may provide for the payment of reasonable attorneys' fees where the contract is referred for collection to an attorney not a salaried employee of the holder of the contract, plus the court costs.
(h) No retail installment contract shall be signed by any party thereto when it contains blank spaces to be filled in after it has been signed except that, if delivery of the motor vehicle is not made at the time of the execution of the contract, the identifying numbers or marks of the motor vehicle or similar information and the due date of the first installment may be left blank and later inserted by the seller in the seller's counterpart of the contract after it has been signed by the buyer. The buyer's written acknowledgment, conforming to the requirements of subsection (c) of this Code section, of delivery of a copy of a contract shall be presumptive proof of such delivery in any action or proceeding by or against the holder of the contract and that the contract, when signed, did not contain any blank spaces except as provided in this subsection.
(i) If the buyer so requests, the holder shall give or forward to the buyer a receipt for any payment when made in cash.
(a) Notwithstanding any other law, the finance charge, exclusive of insurance and other benefits and official fees, shall not exceed the following rates:
Class 1. Any new motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made and all vehicles not previously titled--$10.00 per $100.00 per year.
Class 2. Any new motor vehicle not in Class 1 and any used motor vehicle designated by the manufacturer by a year model of the same or not more than two years prior to the year in which the sale is made--$13.00 per $100.00 per year.
Class 3. Any used motor vehicle not in Class 2 and designated by the manufacturer by a year model not more than four years prior to the year in which the sale is made--$15.00 per $100.00 per year.
Class 4. Any used motor vehicle not in Class 2 or Class 3 and designated by the manufacturer by a year model more than four years prior to the year in which the sale is made--$17.00 per $100.00 per year.
(b) Such finance charge shall be computed on the unpaid balance on contracts payable in successive monthly payments substantially equal in amount. Such finance charge may be computed on the basis of a full month for any fractional month period in excess of ten days. A minimum finance charge of $25.00 may be charged on any retail installment transaction. As used in this subsection, the term “unpaid balance” shall be determined in accordance with Section 226.8(c) of Regulation Z promulgated by the Board of Governors of the Federal Reserve System pursuant to Title I (Truth in Lending Act) and Title V (General Provisions) of the Consumer Credit Protection Act (Public Law 90-321, 82 Stat. 146, et seq.), as the same existed upon its becoming effective on July 1, 1969.
(c) When a retail installment contract provides for unequal or irregular installment payments, the finance charge may be at a rate which will provide the same yield as is permitted on monthly payment contracts under subsections (a) and (b) of this Code section, having due regard for the schedule of payments. Notwithstanding the foregoing, a seller who computes a finance charge on an actuarial basis may charge a finance charge, exclusive of insurance and other benefits and official fees, which, when calculated according to the actuarial method, does not exceed the yield which would have been permitted on monthly contracts under subsections (a) and (b) of this Code section, having due regard for the schedule of payments; provided, however, that when a seller computes the finance charge according to the actuarial method, then for purposes of computing the rate the entire term of the contract shall be considered to be the number of whole months within the scheduled payment period, disregarding any odd days.
(d) Notwithstanding the provisions of subsection (a) of this Code section, a buyer and a seller may establish any finance charge agreed upon in writing by the parties where the amount financed is more than $5,000.00.
(e) Any sales finance company may purchase or acquire or agree to purchase or acquire from any seller any contract on such terms and conditions as may be agreed upon between them. Unless the buyer has notice of the assignment of his contract, payment thereunder made by the buyer to the last known holder of such contract shall be binding upon all subsequent holders.
(f) In no event will any such assignment bar any right of action against the seller arising as a result of this article nor will any such assignment bar any defense against the sales finance company or other assignee arising as a result of subsection (b) of Code Section 10-1-38.
A retail installment seller may advance money to a buyer or pay money to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on a motor vehicle which is the subject of a retail installment transaction under this article. Any amount so advanced or paid may be financed as part of a retail installment contract and shall not be considered a loan. The transaction and the seller making such advance or payment shall be exempt from the provisions of Chapter 3 of Title 7, relating to installment loans, from the provisions of Chapter 4 of Title 7, relating to interest and usury, and from any other provision of Georgia law regulating loans.
Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may pay in full at any time before maturity the debt of any retail installment contract and, in so paying the debt, shall receive a refund credit thereon for the anticipation of payments. The amount of the refund shall represent at least as great a proportion of the finance charge as the sum of the monthly time balance after the month in which prepayment is made bears to the sum of all the monthly time balances under the schedule of payments in the contract. This method of refund upon prepayment is commonly referred to as the “Rule of 78” or the “Sum of the Digits” refund method. Where the amount of credit is less than $1.00, no refund need be made. This Code section shall not apply to credit upon anticipation of payments or upon acceleration in those cases where the seller or holder of the contract has computed finance charges according to the actuarial method as set forth in Code Section 10-1-33.
The holder of a contract, upon request by the buyer, may extend the scheduled due date of all or any part of any installment or installments or deferred payment or payments or renew or restate the unpaid time balance of such contract, the amount of the installments, and the time schedule therefor and may collect for such extension, deferment, renewal, or restatement a refinance charge computed as follows: In the event the unpaid time balance of the contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge on such amount by adding to the unpaid time balance the cost for insurance and other benefits incidental to the refinancing plus any accrued delinquency and collection charges after deducting any refund which may be due the buyer at the time of the renewal or restatement by prepayment pursuant to Code Section 10-1-34, at the rate of the finance charge specified in subsection (a) of Code Section 10-1-33, and by reclassifying the motor vehicle by its then year model, for the term of the refinancing agreement, but otherwise subject to the provisions of this article governing computation of the original finance charge. The provisions of this article relating to minimum finance charges under subsection (b) of Code Section 10-1-33 and acquisition costs under the refund schedule in Code Section 10-1-34 shall not apply in calculating refinance charges on the contract extended, deferred, renewed, or restated. If all unpaid installments are deferred for not more than two months, the holder may, at his election, charge and collect for such deferment an amount equal to the difference between the refund required for prepayment in full under Code Section 10-1-34 as of the scheduled due date of the first deferred installment and the refund required for prepayment in full as of one month prior to said date times the number of months in which no scheduled payment is made.
(a) When any motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his or her rights of redemption, as well as his or her right to demand a public sale of the repossessed motor vehicle. In the event the buyer exercises his or her right to demand a public sale of the goods, he or she shall in writing so advise the seller or holder of his or her election by registered or certified mail or statutory overnight delivery addressed to the seller or holder at the address from which the seller's or holder's notice emanated within ten days after the posting of the original seller's or holder's notice.
(b) In the event of election of such public sale by the buyer, the seller or holder shall dispose of said repossessed motor vehicle at a public sale as provided by law, to be held in the state and county where the original sale took place, or the state and county where the motor vehicle was repossessed, or the state and county of the buyer's residence, at the seller's election.
(c) This Code section is cumulative of Part 6 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing herein shall be deemed to repeal said part.
(a) A claim of violation on any loan or contract secured by an interest in a motor vehicle may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law.
(b) Nothing contained in this Code section shall apply to class actions involving mobile homes or manufactured homes pending in any courts of this state, including any United States courts, on February 22, 1985, as to the parties to and subject matter then before such courts.
Any waiver of this article shall be unenforceable and void.
(a) Any person who shall willfully and intentionally violate this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and shall be punished as for a misdemeanor for each subsequent offense.
(b) A violation of Code Section 10-1-33 by the seller or holder shall bar recovery of any finance charge, delinquency, or collection charge on the contract.
(c) In case of a willful violation of this article with respect to any transaction, the buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) a minimum of $100.00 or double the time price differential and any delinquency charge and any attorneys' fees and court costs charged and paid with respect to such transaction, but the seller may recover from the buyer an amount equal to the cash price of the goods or services in such transaction and the cost of any insurance purchased by the seller for the buyer in connection therewith.
(d) Notwithstanding this Code section, any failure to comply with Code Section 10-1-33 may be corrected within ten days after the date of execution of the retail installment contract by the buyer; and, if so corrected, neither the seller nor the holder is subject to any penalty under this Code section.
In addition to the definitions provided for in Code Section 10-1-31, as used in Code Sections 10-1-40 through 10-1-42, the term:
(1) “Induce” means to cause a buyer of a motor vehicle under a retail installment contract or a lessee of a motor vehicle under a motor vehicle lease contract to sublease the subject motor vehicle or to arrange for or cause such a buyer or lessee to be so induced.
(2) “Lessee” means a person who obtains possession and use of a motor vehicle through a motor vehicle lease contract.
(3) “Lessor” means any person who in the regular course of business or as a part of regular business activity leases motor vehicles under motor vehicle lease contracts or purchases motor vehicle lease contracts or any sales finance company that purchases motor vehicle lease contracts.
(4) “Motor vehicle lease contract” means an agreement between a lessor and a lessee whereby the lessee obtains the possession and use of a motor vehicle for such period of time, for such purposes, and for such consideration as set forth in the agreement.
(5) “Subject motor vehicle” means the motor vehicle sold to a buyer under a retail installment contract or the motor vehicle obtained by a lessee under a motor vehicle lease contract.
(6) “Sublease” means:
(A) To transfer possession of a motor vehicle which is the subject of a retail installment contract to a person who is not a party to that contract or to transfer or assign any of the buyer's rights or interests under the retail installment contract to such a person, whether or not such transfer or assignment is effective; or
(B) To transfer possession of a motor vehicle which is the subject of a motor vehicle lease contract to a person who is not a party to that contract or to transfer or assign any of the lessee's or lessor's rights or interests under the motor vehicle lease contract to such a person, whether or not such transfer or assignment is effective.
(a) It is unlawful for any person to induce the buyer of a motor vehicle under a retail installment contract to sublease the subject motor vehicle to that person or to any other sublessee without first obtaining written consent to the sublease from the holder of the retail installment contract.
(b) It is unlawful for any person to induce the lessee of a motor vehicle under a motor vehicle lease contract to sublease the subject motor vehicle to that person or to any other sublessee without first obtaining written consent to the sublease from the lessor under the motor vehicle lease contract.
(c) It is unlawful for any person who is the sublessee of a motor vehicle to offer the motor vehicle for hire or to offer it to another person to offer for hire if such person induced the sublease of the motor vehicle in violation of subsection (a) or (b) of this Code section or if such person knew or reasonably should have known that the sublease of the motor vehicle was induced in violation of subsection (a) or (b) of this Code section.
(d) Any person who violates any provision of subsection (a), (b), or (c) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
(a) Any one or more of the following persons may suffer damage as a result of a violation of subsection (a) or (b) of Code Section 10-1-40:
(1) The holder of a retail installment contract;
(2) The lessor of a motor vehicle under a motor vehicle lease contract;
(3) The buyer of a motor vehicle under a retail installment contract or the lessee of a motor vehicle under a motor vehicle lease contract;
(4) The sublessee of the subject motor vehicle when such sublessee did not know and could not reasonably be expected to have known that the sublease of the motor vehicle was induced in violation of subsection (a) or (b) of Code Section 10-1-40.
(b) A person who suffers damage as described in subsection (a) of this Code section may bring an action against the person who induced the sublease of the subject motor vehicle in violation of subsection (a) or (b) of Code Section 10-1-40. The person who suffers damage may recover or obtain against the person who induced such sublease any of the following:
(1) Actual damages;
(2) Equitable relief, including, but not limited to, an injunction or restitution of money and property;
(3) Punitive damages;
(4) Reasonable attorney's fees and costs; and
(5) Any other relief which the court deems proper.
(c) The rights and remedies provided for in this Code section are in addition to any other rights and remedies provided by law.
A lessor or the entity which sells the motor vehicle to the lessor for lease to a lessee may advance money to a lessee or pay money to a third party on behalf of the lessee to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on a motor vehicle which is the subject of a motor vehicle lease contract. Any amount so advanced or paid may be included in the gross capitalized cost under the motor vehicle lease contract and shall not be considered a loan. Such advance and the seller or lessor making such advance or payment shall be exempt from the provisions of Chapter 3 of Title 7, relating to installment loans, from the provisions of Chapter 4 of Title 7, relating to interest and usury, and from any other provision of Georgia law regulating loans.
(a) As used in this Code section, the term “person” shall have the meaning as provided in Code Section 10-1-2.
(b) No person shall, in any manner or by any means, offer for sale goods, wares, or merchandise where the offer includes the voluntary and unsolicited sending of such goods, wares, or merchandise not actually ordered or requested by the recipient, either orally or in writing. The receipt of any such goods, wares, or merchandise shall for all purposes be deemed an unconditional gift to the recipient, who may use or dispose of such goods, wares, or merchandise, unless such goods, wares, or merchandise were delivered to the recipient as a result of a bona fide mistake, in any manner he or she sees fit without any obligation to the sender.
(c) No person shall require payment for the continued provision of any goods, wares, or merchandise following the expiration of a trial period during which similar goods, wares, or merchandise were provided free of charge unless the recipient of such goods, wares, or merchandise provides affirmative oral, written, or electronic assent to the continued receipt thereof on a paid basis. In the absence of any such assent, the receipt of any such goods, wares, or merchandise following such trial period shall for all purposes be deemed an unconditional gift to the recipient, who may use or dispose of such goods, wares, or merchandise, unless such goods, wares, or merchandise were delivered to the recipient as a result of a bona fide mistake, in any manner he or she sees fit without any obligation to the sender.
(d) Any violation of this Code section shall be considered a violation of Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.” Any remedy available under such part shall be available to any recipient under this Code section, and any action by the Attorney General authorized under such part for a violation thereof shall be authorized for a violation of this Code section.
If a person is a member of an organization which makes retail sales of any goods, wares, or merchandise to its members and the person notifies the organization of his termination of membership by certified mail or statutory overnight delivery, return receipt requested, any unordered goods, wares, or merchandise which are sent to the person after 30 days following execution of the return receipt for the certified letter by the organization shall for all purposes be deemed unconditional gifts to the person, who may use or dispose of the goods, wares, or merchandise in any manner he sees fit without any obligation on his part to the organization.
If the termination of a person's membership in such organization breaches any agreement with the organization, nothing in this Code section shall relieve the person from liability for damages to which he might be otherwise subjected to pursuant to law; but he shall not be subject to any damages with respect to any goods, wares, or merchandise which are deemed unconditional gifts to him under this Code section.
If, after any receipt deemed to be an unconditional gift under this Code section, the sender continues to send bill statements or requests for payment with respect thereto, an action may be brought by the recipient to enjoin such conduct, in which action there may also be awarded reasonable attorneys' fees and costs to the prevailing party.
(a) It shall be unlawful for any person, firm, or corporation engaged in the business of selling any type of merchandise in the State of Georgia to promise a consideration, either cash or otherwise, to a buyer of such merchandise for providing the names or other information relative to other prospective purchasers of such merchandise, unless the promise of such consideration is contained in the contract of sale between the seller and the buyer.
(b) Any person, firm, or corporation violating subsection (a) of this Code section shall be guilty of a misdemeanor.
As used in this article, the term:
(1) “Rebuilt” means the reconditioning of a motor, engine, well pump, or other mechanical item by the replacement of parts of the motor, engine, well pump, or other mechanical item without changing the original size, shape, or tolerance of the item except by the use of parts therefor.
(2) “Remanufactured” means the changing of the size, shape, or tolerance in any motor, engine, well pump, or other mechanical item by machinery grinding or cutting away of the original item.
Any remanufactured item sold at retail in the State of Georgia shall be labeled “Remanufactured.” Such label shall be placed adjacent to and shall be of the same size and type of marking as the old marking on the remanufactured item.
Any rebuilt item sold at retail in the State of Georgia shall be labeled “Rebuilt.” Such label shall be placed adjacent to and shall be of the same size and type of marking as the old marking on the rebuilt item.
Noncompliance with this article shall be a misdemeanor, and punishment shall be as provided by law.
Residents of the State of Georgia may purchase rifles and shotguns in any state of the United States, provided such residents conform to applicable provisions of statutes and regulations of the United States, of the State of Georgia, and of the state in which the purchase is made.
Residents of any state of the United States may purchase rifles and shotguns in the State of Georgia, provided such residents conform to applicable provisions of statutes and regulations of the United States, of the State of Georgia, and of the state in which such persons reside.
The term “paint,” as used in this article, shall include white lead basic, carbonate, or sublimate, in any kind of oil, or any compound intended for the same use, paste or semipaste, and liquid or mixed paint ready for use.
The director of the Georgia Drugs and Narcotics Agency is charged with the proper enforcement of this article and is empowered to formulate and promulgate such rules and regulations as may be necessary in carrying out the purposes of this article.
The labels on containers of paints shall clearly and distinctly state the name and residence of the manufacturer of the paint or the distributor thereof or of the party for whom the same is manufactured. The label shall also clearly state the quantity contained in the package; the quantity, in the case of liquid or mixed paints, to be designated in United States standard gallons or fraction thereof and, in the case of paste or semipaste paints, such as are commonly sold by weight, to be shown by weight avoirdupois. Said labels shall be printed in the English language in plain, legible type.
No person, firm, corporation, or agent or employee of any person, firm, or corporation shall manufacture for sale or offer or expose for sale any flaxseed or linseed oil unless the same shall answer all the chemical tests for purity recognized in the United States Pharmacopoeia or offer or expose for sale any flaxseed or linseed oil as “boiled linseed oil” unless in its manufacture the same shall have been put to a temperature of 225 degrees Fahrenheit.
No person, firm, corporation, or agent or employee of any person, firm, or corporation shall sell or expose or offer for sale any flaxseed or linseed oil unless it shall be done under its true name; and each tank car, tank, barrel, keg, or any vessel of such oil shall have distinctly and durably printed, stamped, stenciled, or labeled thereon the true name of such oil and in ordinary boldface capital letters the words “PURE LINSEED OIL RAW” or “PURE LINSEED OIL BOILED” and the name and address of the manufacturer thereof or of the party for whom the same is manufactured and under whose brand the same is sold.
Possession by any person, firm, or corporation, or agent or employee of any person, firm, or corporation dealing in said articles, of any article described in Code Sections 10-1-120 through 10-1-124 and not properly labeled shall be considered prima-facie evidence that the same is kept by such person, firm, or corporation in violation of this article and punishable under it.
(a) It shall be unlawful for any person, firm, or corporation to distribute, sell, or offer for sale within this state any paint used specifically for marking timber if such paint will not remain effective for a period of at least 12 months if applied to timber in a nondiluted state. The label on the container of any such paint sold in this state shall have clearly printed thereon in bold type the following: “EFFECTIVE FOR A MINIMUM OF 12 MONTHS IF USED IN A NONDILUTED STATE.”
(b) As used in this Code section, the term “paint” means any substance or mixture of substances, liquid, powder, or paste intended for use primarily for marking timber.
(c) Any person violating this Code section shall be guilty of a misdemeanor.
(d) In addition to the remedies provided in this Code section, the director and drug agents of the Georgia Drugs and Narcotics Agency may apply to an appropriate court for, and such court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating this Code section irrespective of whether or not there exists an adequate remedy at law.
Whoever shall sell or offer or expose for sale any paint which shall be labeled or marked in such manner as to tend to deceive the purchaser as to its nature or composition or which shall not be accurately labeled as required in this article shall be guilty of a misdemeanor and, upon conviction thereof, for each offense shall be punished by a fine of not less than $25.00 and not more than $100.00 or by imprisonment in the county jail not exceeding 60 days.
As used in this part, the term:
(1) “Gasoline” means gasoline, naphtha, benzol, and other products of petroleum, under whatever name designated, used for heating or power purposes.
(2) “Kerosene” means kerosene and other products of petroleum, under whatever name designated, used for illuminating, heating, or cooking purposes.
(3) “Lubricating oils” means rerefined, reprocessed, or reconditioned used oils as well as virgin petroleum oils or blends thereof.
The term “petroleum products,” as used in this part, shall in no way be construed to include liquefied petroleum gas as defined in Code Section 10-1-262.
The Commissioner of Agriculture is required to appoint, in accordance with Chapter 20 of Title 45, a chemist, who shall be an expert oil analyst, to be designated as the state oil chemist, whose duty it shall be to analyze all samples of gasoline and kerosene and all fluids purporting to be substitutes therefor or motor fuel improvements or other like products of petroleum, under whatever name they may be designated, and used for illuminating, heating, cooking, power, or lubricating purposes, submitted by the Commissioner of Agriculture or any duly authorized inspector or inspectors.
The Commissioner of Agriculture is authorized to employ, in accordance with Chapter 20 of Title 45, oil inspectors as he deems necessary to enforce this part. Oil inspectors so appointed shall be allowed such expenses as shall be approved by the Commissioner of Agriculture.
In addition to the expenses of inspectors as provided for in Code Section 10-1-143, there shall be allowed such further sums for the purchase of equipment, supplies, and clerical help and to pay any other expenses incident to and necessary for the enforcement of this part as may hereafter be appropriated. The Commissioner of Agriculture is constituted chief oil inspector for the purpose of the enforcement of this part.
The compensation of the state oil chemist and state oil inspectors and the expenses of enforcing this part shall be paid in the same manner as compensation and expenses of other employees of the Department of Agriculture are paid.
The Commissioner of Agriculture is authorized to have the state oil chemist and state oil inspectors bonded for the faithful performance of their respective duties at the expense of the Department of Agriculture if and to the extent he deems it necessary for the proper protection of the state and the public.
The Commissioner of Agriculture is authorized to fill any vacancies which may occur in the offices of state oil chemist and oil inspector on account of death, resignation, or other cause.
In the performance of their duties, the Commissioner of Agriculture or any of his duly authorized agents shall have free access at all reasonable hours to any store, warehouse, factory, storage house, or railway depot where petroleum products are kept or otherwise stored, for the purpose of examination or inspection and drawing samples. If such access shall be refused by the owner of such premises or his agent or other persons occupying and using the same, the Commissioner of Agriculture or his duly authorized inspectors or agents may apply for a search warrant, which shall be obtained in the same manner as provided for obtaining search warrants in other cases. Their refusal to admit an inspector to any of the above-mentioned premises during reasonable hours shall be construed as prima-facie evidence of a violation of this part.
For the purpose of this part, all gasoline and kerosene sold or offered or exposed for sale shall be subject to inspection and analysis as provided in this part. All manufacturers, refiners, wholesalers, and jobbers, before selling or offering for sale any gasoline or kerosene or like products, under whatever name designated, for power, lubricating, illuminating, heating, or cooking purposes, shall file with the Commissioner of Agriculture a declaration or statement that they desire to sell such products in this state and shall furnish the name, brand, or a trademark of the product which they desire to sell, together with the name and address of the manufacturer thereof, and that all such products are in conformity with the specifications established pursuant to this part by the state oil chemist and approved by the Commissioner of Agriculture.
All materials, fluids, or substances offered or exposed for sale, purporting to be substitutes for or improvers of fuels or other motor fuels to be used for power, cooking, or heating purposes, shall, before being sold or exposed or offered for sale, be submitted to the Commissioner of Agriculture for examination and inspection and shall receive the approval of the state oil chemist and the Commissioner of Agriculture and shall be sold or offered for sale only when properly labeled with a label, the form and contents of which shall have been approved by the state oil chemist and the Commissioner of Agriculture.
It shall be illegal to sell or offer for sale any gasoline or kerosene which is described and designated in this part and which is used or intended to be used for power, lubricating, illuminating, cooking, or heating purposes, when sold under whatever name, and which falls below the standard provided in this part. Any such gasoline or kerosene shall be subject to confiscation and destruction by order of the Commissioner of Agriculture.
It shall be unlawful for any person to produce, offer for sale, or sell any biodiesel fuel to be used in blending such biodiesel fuel with petroleum diesel fuel to create a blended fuel for subsequent sale for use in diesel engines unless the biodiesel fuel meets the specifications of American Society for Testing and Materials Standard D 6751.
Every person, firm, or corporation delivering at wholesale or retail any gasoline in this state shall deliver the same to the purchaser only in tanks, barrels, casks, cans, or other containers having the word “gasoline” plainly stenciled or labeled thereon in vermilion red, in English. Such dealers shall not deliver kerosene oil in any barrel, cask, can, or other container which shall have been so stenciled or labeled or that has ever contained gasoline unless such barrel, cask, can, or other container shall have been thoroughly cleaned and all traces of gasoline removed. Every purchaser of gasoline for use or sale shall procure and keep the same only in tanks, barrels, casks, cans, or other containers stenciled or labeled as provided in this Code section. Every person delivering at wholesale or retail any kerosene in this state shall deliver same to the purchaser only in tanks, barrels, casks, cans, or other containers having the word “kerosene” in English, plainly stenciled or labeled thereon in vermilion red; and every person purchasing same for use or sale shall procure and keep the same only in tanks, barrels, casks, cans, or other containers stenciled or labeled as provided in this Code section. Nothing in this Code section shall prohibit the delivery of gasoline by hose or pipe from a tank directly into the tank of any automobile or other motor. In cases where gasoline or kerosene is sold in bottles, cans, or other containers of not more than one gallon, for cleaning and other similar purposes, such bottles, cans, or other containers shall bear a label with the words “unsafe when exposed to heat or fire.”
When gasoline or kerosene or other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes are shipped into this state in any manner whatsoever, the manufacturer, refiner, or jobber shall promptly give notice to the Commissioner of Agriculture of the date of shipment and shall furnish a sample of such size as designated by the Commissioner of Agriculture, but not in excess of 16 ounces, of the gasoline or kerosene and other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes shipped and labeled, giving the tank car number, truck number, or other container number, with the name and address of the person, company, firm, or corporation to whom it is sent and the number of gallons contained in the shipment made. In each instance where gasoline or kerosene and other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes are shipped in tank cars, the record of the capacity of each tank car furnished by the railroad company shall be accepted.
Any person purchasing any gasoline or illuminating or heating oils from any manufacturer, refiner, jobber, or vendor for his own use may submit fair samples of said gasoline or illuminating or heating oils to the Commissioner of Agriculture to be tested or analyzed by the state oil chemist. In order to protect the manufacturer or vendor from the submission of spurious samples, the person selecting the same shall do so in the presence of two or more disinterested persons, which samples shall be not less than one pint in quantity and shall be bottled, corked, and sealed in the presence of said witnesses and the sample shall be placed in the hands of a disinterested person, who shall forward the same at the expense of the purchaser to the Commissioner of Agriculture. Upon the receipt by the Commissioner of any such sample he shall have the state oil chemist promptly test and analyze the sample. The Commissioner shall return to such purchaser or purchasers a certificate of analysis, which, when verified by the affidavit of the state oil chemist, shall be competent evidence in any court of law or equity.
(a) The Commissioner of Agriculture shall have authority to prescribe such rules and regulations, consistent with the terms, intent, and purposes of this part, as he finds necessary for the proper administration and enforcement thereof. He shall establish by regulation specifications for the various petroleum products used for heating, cooking, illuminating, power, or lubricating purposes in this state so as to provide quality control and suitability for the intended use of such products and the effective enforcement of the laws pertaining to the sale, distribution, or use of such products and shall have authority to change such specifications, but only after giving a 60 days' notice and a public hearing in regard to such changes to refiners and distributors doing business in this state.
(b) Any manufacturer, refiner, wholesaler, jobber, or vendor who shall violate this Code section or any regulation issued pursuant thereto prescribing specifications for the various petroleum products regulated by this part shall be guilty of a misdemeanor.
Whenever the Commissioner of Agriculture shall find any person willfully marketing petroleum products in this state which are regulated by this part and which do not comply with the prescribed specifications therefor or otherwise willfully marketing petroleum products in violation of this part and rules and regulations promulgated pursuant to this part, the Commissioner shall be authorized to apply to the superior court having jurisdiction over the offender for an injunction against the continuance of any such violations. The appropriate superior court shall have jurisdiction, upon hearing and for cause shown, to grant such temporary or permanent injunction restraining further violations as the circumstances appear to require.
The Commissioner of Agriculture shall, from time to time, collect or cause to be collected samples of all petroleum products subject to regulation under this part which are sold, offered, or exposed for sale in this state and cause such samples to be tested or analyzed by the state oil chemist. The Department of Agriculture shall have the power to implement rules and regulations necessary to carry out inspection of gasoline samples as provided for by this Code section.
Every dealer in gasoline, before selling or exposing or offering for sale any gasoline, and annually thereafter, shall be required to register and shall make known to the Commissioner of Agriculture his desire to sell gasoline giving the name and manner and kind of pump or pumps he will use and the location of same, and shall keep the certificate or certificates of registration issued by the Commissioner of Agriculture posted in a prominent and accessible place in his place of business where such gasoline is sold. The form of such certificate shall be designated by the Commissioner of Agriculture.
(a) It shall be the duty of the inspectors provided for in this part to familiarize themselves with the accuracy and adjusting devices on the various makes of self-measuring pumps in use; and they shall carefully inspect all of such pumps located in the territory assigned to them.
(b) All such pumps found to be giving accurate measure within the tolerance established by regulations of the Commissioner of Agriculture shall have the adjusting device sealed with an official lead and wire seal applied by an inspector duly authorized by the Commissioner of Agriculture in such a manner that the adjustment cannot be altered without breaking the seal.
(c) If any pump shall be found to be giving inaccurate measure in excess of the tolerance established by regulations of the Commissioner of Agriculture, the inspector shall then and there notify the operator of the pump, whether owner or lessee, to make the necessary adjustments, the inspector to lend his assistance with the standard measure provided for testing such pumps. After the adjustments have been made, the adjusting devices shall be sealed in the manner provided for those pumps found originally accurate. The inspector shall notify the operator, whether owner or lessee, of every pump that apparently has been altered for the purpose of giving short measure in excess of eight ounces on a measure of five gallons or that cannot be adjusted within a range of eight ounces, either over or under, on a measure of five gallons that it must immediately be adjusted, the inspector to lend his assistance with the standard measure for testing such pumps. Should the operator fail or refuse to then and there make such adjustments as shall be necessary to bring the measure within the allowed variation, the same shall be condemned and rendered inoperable immediately by the inspector examining the same; and such pump shall not again be operated without the written consent of the Commissioner of Agriculture. Inspectors shall be required to report to the Commissioner of Agriculture immediately the name and number of all pumps condemned and rendered inoperable.
(d) When any pump shall be condemned under this part by any inspector, it shall be the duty of the inspector immediately to make affidavit before the judge of the probate court of the county in which the pump is located that the pump is being operated by the person who shall be named in the affidavit, contrary to law. Thereupon the judge of the probate court shall issue an order to the person named in the affidavit to show cause before him on the day named in the order, not more than ten days nor less than three days from the issuance of the order, why the pump should not be confiscated and dismantled. On the day named in the order, it shall be the duty of the judge of the probate court to hear the respective parties and to determine whether or not the pump has been operated contrary to the provisions of this part. If the judge of the probate court shall find that the pump has been so operated, he shall forthwith issue an order adjudging the pump to be forfeited and confiscated to the state and direct the sheriff of the county to dismantle the pump and take it into his possession, and, after ten days' notice by posting or publication, as the court may direct, to sell the pump to the highest bidder for cash. The proceeds of sale, or as much thereof as may be necessary, shall be used by the sheriff, first, to pay the costs, which shall be the same as in cases of attachment, and the sheriff shall thereupon pay over and deliver the residue, if any, to the person from whose possession the pump has been taken.
(e) It shall be unlawful to install or operate any self-measuring pump which can be secretly manipulated in such manner as to give short measure. Such inaccurate self-measuring pump shall be condemned as provided in this Code section, and thereafter it shall be unlawful for any person to sell any kerosene or gasoline from such pump until such pump has been made or altered to comply with this part and has been inspected and approved for service by the inspector.
(f) It shall be unlawful for anyone to break a seal applied by an inspector to a pump without first securing consent of the Commissioner of Agriculture, which consent may be given through one of the duly authorized inspectors.
(g) The Department of Agriculture shall have the power to implement rules and regulations necessary to carry out inspections of self-measuring pumps provided for by this Code section.
The Commissioner of Agriculture is authorized to prescribe regulations governing the calibration of tank trucks, meters, containers, and other measures used in dispensing petroleum products subject to regulation under this part; and, when any such measure is found giving inaccurate measure and such condition cannot be or is not adjusted to the requirements of the regulations, then such measures shall be seized by the Commissioner or his agents and subject to condemnation in a manner similar to that prescribed in subsections (c) and (d) of Code Section 10-1-159 or destroyed if the court shall find that the measure cannot be properly adjusted.
(a) As used in this Code section and in Code Section 10-1-163, the term “person” means natural persons; partnerships, firms, associations, joint-stock companies, syndicates, and corporations; any receiver, trustee, conservator, or other officer appointed by any state or federal court; counties, municipalities, or other political subdivisions of this state, singular or plural; and the State of Georgia. The use of the singular number shall include the plural number.
(b) No person shall store, sell, expose, or offer for sale any liquid fuels, lubricating oils, greases, or other similar products:
(1) In or from any container, receptacle, tank, pump, or other distributing device other than those products manufactured or distributed by the manufacturer or distributor indicated by the trademark, trade name, name, symbol, sign, or other distinguishing mark or device displayed upon the container, receptacle, tank, pump, or other distributing device in or from which such products are stored, sold, exposed, or offered for sale or distributed; or
(2) Under any trademark, trade name, name, symbol, sign, or other distinguishing mark or device other than those products manufactured or distributed by the manufacturer or distributor marketing such products under such trademark, trade name, name, symbol, sign, or other distinguishing mark or device; or
(3) In any manner whatsoever which may deceive or have the effect of deceiving the purchaser of such products as to the nature, price, quality, or quantity of the products so stored, sold, exposed, or offered for sale.
(c) No person shall store, sell, expose, or offer for sale any previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants unless such person shall at all times have each and every container or item of equipment in or through which any of such products are sold, kept for sale, displayed, or dispensed plainly labeled “reprocessed or rerefined.” No person shall cause to be published, displayed, or circulated any advertising matter offering for sale any previously used or previously used and reclaimed, used, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants unless he shall state in such advertising the fact that such products have been previously used. Nothing in this Code section shall apply to the sale of unfiltered crankcase drainings, and nothing in this Code section shall apply to the sale of crankcase drainings for use on livestock.
(d) Any person dealing in previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants without having each and every container or item of equipment in or through which any of such products are sold, kept for sale, displayed, or dispensed plainly labeled as required in this Code section or advertising any of such products for sale without inserting in such advertising a statement as required in this Code section may upon proper hearing be enjoined from selling any of such products or offering, displaying, or advertising any of the same for sale. Action for such injunction may be brought in any court having jurisdiction to hear and decide equity cases in the county in which the defendant resides and may be brought either by the Attorney General of this state or by the district attorney in and for such county. The authority granted by this Code section shall be in addition to and not in lieu of authority to prosecute criminally any person for a violation of this Code section. The granting or enforcing of any injunction under this Code section is a preventive measure for the protection of the people of this state, not a punitive measure; and the fact that a person has been charged or convicted of a violation of this Code section shall not prevent the issuance of a writ of injunction to prevent further unlawful dealing in previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants, nor shall the fact that a writ of injunction has been granted under this Code section preclude the institution of criminal prosecution or punishment.
(e) No person shall disguise or camouflage his equipment by imitating the trademark, trade name, name, symbol, sign, or other distinguishing mark or device under which recognized brands of liquid fuels, lubricating oils, greases, or other similar products are generally marketed.
(f) No person shall mix, blend, or compound the liquid fuels, lubricating oils, greases, or similar products of a manufacturer or distributor with the products of any other manufacturer or distributor or adulterate the same or store, sell, expose, or offer for sale such mixed, blended, or compounded products under the trademark, trade name, name, symbol, sign, or other distinguishing mark or device of either of said manufacturer or distributor or as the adulterated products of such manufacturer or distributor.
(g) No person shall aid or assist any other person in violating any of the provisions of this Code section by depositing or delivering into any container, receptacle, tank, pump, or other distributing device any liquid fuels, lubricating oils, greases, or other similar products other than those intended to be stored therein as indicated by the name of the manufacturer or distributor or the trademark, trade name, name, symbol, sign, or other distinguishing mark or device of the product displayed on the container, receptacle, tank, pump, or other distributing device used in connection therewith or shall by any other means aid or assist another in the violation of any of the provisions of this Code section.
(h) Nothing in this Code section shall prevent the lawful owner thereof from applying his or its own trademark, trade name, name, symbol, sign, or other distinguishing mark or device to any product or material.
(i) The state oil chemist and all law enforcement officers in the State of Georgia are charged with the enforcement of this Code section.
(a) Any person who shall violate any of the provisions of Code Section 10-1-162 for preventing deception, substitution, and misbranding of liquid fuel, oil, grease, and similar products shall be guilty of a misdemeanor.
(b) If any partnership, firm, association, joint-stock company, syndicate, or corporation violates any of the provisions of Code Section 10-1-162, every director, officer, agent, employee, or member participating in, aiding, or authorizing the act or acts constituting the violation of Code Section 10-1-162 shall be guilty of a misdemeanor.
(a) Any sign or placard or other means used to advertise the price of motor fuel for sale at retail for use in motor vehicles may contain a separate listing of the price and a separate listing of each tax thereon, but must contain a total of such price and taxes which shall be at least as large as the listing of the price or any tax thereon. Numbers used to advertise the total price of such motor fuel shall be of uniform size; and, where fractions are used, the numerator and denominator thereof combined shall be of the same size as any whole numbers used. It shall not be necessary that a denominator be used to indicate fractions; but, if one is not used, the numerator must be at least half the size of the whole number used. If the price of motor fuel is advertised on any sign, billboard, placard, or other advertising medium, it shall be unlawful to place a higher price on any pump dispensing such motor fuel or to charge a higher price for such motor fuel. Any person dispensing motor fuel shall not be precluded from giving a discount from the posted or advertised price if the purchaser of the motor fuel buys additional merchandise.
<Text of subsec. (a.1) effective January 1, 2025>
(a.1) For purposes of this Code section, the term “motor fuel” means automotive gasoline and blended fuel, as such terms are defined in Code Section 10-1-232.
(b) It shall be unlawful for any person dispensing motor fuel to advertise upon the purchase of motor fuel either free:
(1) Gifts or other products unless such person has sufficient number of gifts or products on hand to supply the reasonably expectable demand or the advertisement discloses a limitation of quantity; or
(2) Car washes or other services unless such person is prepared, in the absence of causes beyond the reasonable control of the offerer, to perform such car washes or the services advertised at the time of the purchase at such person's place of business or at a place of business affiliated by trademark or agreement with such person. If the free car washes or other services advertised are to be performed at a place of business affiliated by trademark or agreement but in a separate location, such fact shall be so stated on the sign, billboard, placard, or other advertising medium used.
(c) Nothing in this Code section shall preclude posting on any pumps dispensing motor fuel a separate statement of taxes included in the total purchase price for the purpose of complying with Chapter 8 of Title 48.
(d) The state oil chemist and any and all law enforcement officers in the State of Georgia are charged with enforcement of this Code section.
(e) Any person, firm, association, or corporation violating this Code section shall be guilty of a misdemeanor.
(a) Any owner or operator of a gasoline station which sells gasoline at one price when an employee of the station dispenses the gasoline into a motor vehicle and at a lower price when the customer dispenses the gasoline on a self-service basis shall comply with this Code section. Any such owner or operator shall conduct the operations of the station so that the holder of a special disability permit provided for in subsection (e) of Code Section 40-2-74.1 will, upon request, have gasoline dispensed by an employee of the station at the self-service pump and will be allowed to purchase such gasoline at the price otherwise charged for gasoline purchased on a self-service basis if:
(1) The holder of the permit is driving the motor vehicle into which the gasoline is to be dispensed; and
(2) The holder of the permit is not accompanied by another person 16 years of age or older who is not mobility impaired or blind. However, in such cases, the employee shall not be required to provide any other service.
(b) Any owner or operator who violates subsection (a) of this Code section shall be guilty of a misdemeanor.
Any person violating any provision of:
(1) This part relating to the inspection and sale of gasoline, kerosene, and other petroleum products; or
(2) Code Section 10-1-164 providing for the regulation of signs advertising the price of motor fuel which are displayed by retailers of motor fuel; or
(3) Any rule, regulation, or standard promulgated or adopted by the Commissioner of Agriculture or the Department of Agriculture under the provisions of any of the above
shall be liable to a civil penalty not to exceed $1,000.00 for such violation. The Commissioner, after a hearing, shall determine whether any person has violated this Code section and upon a proper finding may issue his order imposing a civil penalty as provided in this Code section. All hearings and proceedings under this Code section shall be held and taken under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
Any chemist or inspector who, while in office, shall be interested directly or indirectly in the manufacture or vending of any gasoline shall be guilty of a misdemeanor.
Any person, company, firm, or corporation who shall operate any pump, without the written consent of the Commissioner of Agriculture, which has been condemned by a duly authorized inspector as provided for in this part because of giving short measure in excess of the tolerance established by regulation of the Commissioner shall be guilty of a misdemeanor.
Any person, company, firm, or corporation who shall install or operate a self-measuring pump which has a device or other mechanical means used for the purpose of giving short measure shall be guilty of a misdemeanor.
Any person or association of persons, firm, or corporation who shall violate any of the provisions of this part relating to inspection, labeling, sale, etc., of gasoline, kerosene, and other petroleum products or any rule or regulation promulgated by the Commissioner of Agriculture for the enforcement of this part shall be guilty of a misdemeanor.
As used in this part, the term:
(1) “Brake fluid” means the liquid medium through which force is transmitted in the hydraulic brake system of any motor vehicle operated in this state.
(2) “Chemist” means the state oil chemist.
(3) “Commissioner” means the Commissioner of Agriculture.
Brake fluid shall be deemed to be adulterated unless it meets the minimum standard for brake fluid as provided in this part. Brake fluid shall also be deemed to be adulterated if it contains any substance which will render it injurious to the hydraulic brake system of any motor vehicle or that will impair the normal operation of the hydraulic brake system.
A brake fluid shall be deemed to be misbranded:
(1) If its labeling is false or misleading in any particular;
(2) If in package form it does not bear a label containing the name and place of business of the manufacturer, packer, seller, or distributor; an accurate statement of quantity of the contents in terms of weight or measure; and the words “brake fluid” and “heavy duty”; and if such information is not plainly and clearly stated on the outside of the package or container.
No person shall sell, have for sale, offer for sale, give, donate, distribute, or add to the hydraulic brake system of a motor vehicle in this state any brake fluid which is misbranded or adulterated.
The Commissioner shall establish by rule or regulation the minimum standard and specifications for brake fluid. The Commissioner shall not adopt a minimum standard or specification that is below the minimum standard and specifications established by the Society of Automotive Engineers for heavy-duty type brake fluids No. 70R1.
Before any brake fluid shall be sold, exposed for sale, or stored, packed, or held with intent to sell within this state, a sample thereof must be inspected or approved by the state oil chemist. Upon application of the manufacturer, packer, seller, or distributor and the payment of a license or inspection fee of $25.00 for each brand or type of brake fluid submitted, the state oil chemist shall subject to inspection or analysis the brake fluid so submitted. If the brake fluid is not adulterated or misbranded and meets the standards established and promulgated by the Commissioner and is not such a type or kind that is in violation of this part, the Commissioner may issue the applicant a written license or permit authorizing the sale of such brake fluid in this state for the calendar year in which the license or inspection fee is paid, which license or permit shall be subject to renewal annually upon payment of a $25.00 renewal fee. If, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” the Commissioner shall find that any brake fluid has been materially altered or adulterated or a change has been made in the name, brand, or trademark under which the brake fluid is sold or that it violates this part, he shall notify the applicant; and the license or permit shall be canceled forthwith. No license or permit for the sale of brake fluid in this state shall be issued until application has been made as provided by this part and such samples of the brake fluid as may be necessary for the state oil chemist to inspect it have been submitted and until the state oil chemist notifies the Commissioner that said brake fluid meets the specifications adopted by the Commissioner.
(a) The Commissioner shall administer and enforce this part by inspections, chemical analyses, or by any other appropriate methods. All quantities or samples of brake fluid submitted for inspection or analysis shall be taken from stocks in this state or intended for sale in this state; or the Commissioner, through his agents, may call upon the manufacturer or distributor applying for an inspection or analysis of brake fluid to supply such sample thereof for inspection or analysis. The Commissioner, through his agents or inspectors, shall have free access during business hours to all places of business, buildings, vehicles, cars, and vessels used in the manufacture, transportation, sale, or storage of any brake fluid; and the Commissioner, acting through his agents, may open any box, carton, parcel, package, or container holding, containing, or supposed to contain any brake fluid and may take therefrom samples for analysis.
(b) If it appears that any of the provisions of this part have been violated, the Commissioner, acting through his authorized agents, inspectors, or representatives, is authorized to issue a “stop-sale” order which shall prohibit further sale or gift of any brake fluid being sold, exposed for sale, or held with intent to sell within this state in violation of this part until this part has been complied with.
(c) Any brake fluid not in compliance with this part shall be subject to seizure upon complaint of the Commissioner or any of his agents, inspectors, or representatives to a superior court in the county in which said brake fluid is located. In the event the court finds that any brake fluid is adulterated or misbranded, it may order the condemnation of said brake fluid; and such brake fluid shall be disposed of in any manner consistent with the rules and regulations of the Commissioner and the laws of this state, provided that in no instance shall the disposition of said brake fluid be ordered by the court without first giving the claimant or owner of same an opportunity to apply to the court for the release of said brake fluid or for permission to process or label said brake fluid so as to bring it into compliance with this part.
(d) In case any “stop-sale” order shall be issued under this part, the agents, inspectors, or representatives of the Commissioner shall release the brake fluid so withdrawn from sale when the requirements of this part have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.
The Commissioner shall have authority to establish and promulgate such rules and regulations as are necessary promptly and efficiently to enforce this part. All authority vested in the Commissioner by virtue of this part may, with like force and effect, be executed by such employees, agents, inspectors, and representatives of the Commissioner as he may, from time to time, designate for such purpose. The Commissioner may publish in print or electronically or furnish, upon request, a list of the brands and classes or types of brake fluid inspected by the chemist which have been found to be in accord with this part and for which a license or permit for sale has been issued; and it shall be lawful for any manufacturer, packer, seller, or distributor of brake fluid to show, by advertising, in any manner, that his or its brand of brake fluid has been inspected, analyzed, and licensed for sale by the Commissioner, acting through the state oil chemist. It shall be unlawful for any manufacturer, packer, seller, or distributor of brake fluid to advertise, in any manner, that such brake fluid so advertised for sale has been approved by the Commissioner.
Any person, firm, association, or corporation violating or failing to comply with this part or any rule, regulation, standard, or specification issued pursuant to this part shall be guilty of a misdemeanor; and each day that any violation of this part shall exist shall be deemed to be a separate offense. Whenever the Commissioner or his agents or representatives shall discover that any brake fluid is being sold or has been sold in violation of this part, the Commissioner or his agents or representatives may furnish the facts to the prosecuting attorney of the court having jurisdiction in the county in which such violation occurred; and it shall be the duty of such prosecuting attorney promptly to institute appropriate legal proceedings.
As used in this part, the term:
(1) “Antifreeze” means all substances and preparations intended for use as the cooling medium or to be added to the cooling liquid in the cooling system of internal combustion engines to prevent freezing of the cooling liquid or to lower its freezing point.
(2) “Person” means individuals, partnerships, corporations, companies, and associations.
An antifreeze shall be deemed to be adulterated:
(1) If it consists in whole or in part of any substance which will render it injurious to the cooling system of an internal combustion engine or will make the operation of the engine dangerous to the user;
(2) If its strength, quality, or purity falls below the standard of strength, quality, or purity under which it is sold; or
(3) If it consists of or is compounded with calcium chloride, magnesium chloride, petroleum distillates, or other chemicals or substances in quantities harmful to the cooling system of internal combustion engines.
An antifreeze shall be deemed to be misbranded:
(1) If its labeling is false or misleading in any particular; or
(2) If in package form it does not bear a label containing the name and place of business of the manufacturer, packer, or distributor and an accurate statement of quantity of the contents in terms of weight or measure and they are not plainly and correctly stated on the outside of the package or container.
(a) Antifreeze sold in this state that is manufactured after July 1, 2012, containing more than 10 percent ethylene glycol shall include denatonium benzoate at a minimum of 30 parts per million and a maximum of 50 parts per million as an aversive agent to render the antifreeze unpalatable.
(b) The requirements of subsection (a) of this Code section shall apply only to manufacturers, packagers, distributors, recyclers, or sellers of antifreeze and shall apply to recyclers notwithstanding the provisions of Code Section 10-1-208.1.
(c) The requirements of subsection (a) of this Code section shall not apply to the sale of a motor vehicle, as defined in Code Section 40-1-1, that contains antifreeze or to wholesale containers containing 55 gallons or more of antifreeze.
(d) A manufacturer, packager, distributor, recycler, or seller of antifreeze that is required to contain denatonium benzoate pursuant to this Code section shall not be liable to any person for personal injury, death, property damage, damage to the environment including without limitation natural resources, or economic loss that results solely from the inclusion of denatonium benzoate in the antifreeze; provided, however, that such limitation on liability shall only be applicable if denatonium benzoate is included in antifreeze in the concentrations mandated by subsection (a) of this Code section. Such limitation on liability shall not apply to a particular liability to the extent that the cause of that liability is unrelated to the inclusion of denatonium benzoate in antifreeze.
(e) In any criminal prosecution under this part or civil action for damages relating to the requirements of this part, a distributor or seller of antifreeze who is not the manufacturer, packager, or recycler of such antifreeze and who sells or distributes antifreeze that is labeled as containing denatonium benzoate shall not be criminally responsible for, and shall be immune from civil liability for, failure to include denatonium benzoate in such labeled package, bill of lading, receipt, or container of antifreeze; provided, however, that if such distributor or seller of antifreeze has actual knowledge that the labeled product does not contain denatonium benzoate in the concentrations mandated by subsection (a) of this Code section, such distributor or seller shall not receive the immunity provided by this subsection.
Before any antifreeze shall be sold, exposed for sale, or stored, packed, or held with intent to sell within this state, a current certified test report thereof prepared by an independent laboratory recognized by the Department of Agriculture to do such testing must be submitted and evaluated under the supervision of the state oil chemist in the Department of Agriculture. Upon application of the manufacturer or packer or distributor, submission of container label, and the payment of a license fee of $50.00 for each brand or type of antifreeze submitted, the state oil chemist shall evaluate the test report so submitted. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1. If the antifreeze is not adulterated or misbranded, if it meets the standards established and promulgated by the Commissioner of Agriculture, and if the antifreeze is not a type or kind that is in violation of this part, the Commissioner shall issue the applicant a written license or permit authorizing the wholesale and retail sale by the applicant and by others of such antifreeze in this state for the fiscal year in which the license is issued, which license or permit shall be subject to renewal annually. If the Commissioner shall find at a later date that the antifreeze product or substance to be sold, exposed for sale, or held with intent to sell has been materially altered or adulterated or that a change has been made in the name, brand, or trademark under which the antifreeze is sold or that it violates this part, the Commissioner is authorized to revoke or suspend the license or permit issued under this part of the licensee found in violation of this part after notice and hearing before the Commissioner. No license or permit for the sale of antifreeze in this state shall be issued until the application, fee, and label submission have been made as provided by this part, the certified test report has been evaluated by the state oil chemist, and the state oil chemist notifies the Commissioner of Agriculture that said antifreeze meets the requirements of this part.
It shall be the duty of the Commissioner of Agriculture to administer and enforce this part by inspections, chemical analysis, or any other appropriate methods and to utilize any employee of the Department of Agriculture in the performance of his duties under this part. All quantities or samples of antifreeze submitted for inspection or analysis shall be taken from stocks in this state or intended for sale in this state, or the Commissioner may require the manufacturer or distributor applying for an inspection of antifreeze to supply such sample thereof for analysis. The Commissioner and his inspectors shall have free access during business hours to all places of business, buildings, vehicles, cars, and vessels used in the manufacture, transportation, sale, or storage of any antifreeze and may open any box, carton, parcel, package, or container holding or containing or supposed to contain any antifreeze and may take therefrom samples for analysis. If it appears that any provisions of this part have been violated, the Commissioner and his inspectors or representatives are authorized to issue a “stop-sale” order which shall prohibit further sale of any antifreeze being sold, exposed for sale, or held with intent to sell within this state in violation of this part until this part has been complied with or said violation has otherwise been legally disposed of. In case any “stop-sale” order shall be issued under this part, the Commissioner shall release the antifreeze so withdrawn from sale when this part has been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.
Any antifreeze not in compliance with this part shall be subject to seizure upon complaint of the Commissioner of Agriculture or his inspectors or representatives to the superior court in the county in which said antifreeze is located. In the event the superior court finds said antifreeze to be in violation of this part, it may order the condemnation of said antifreeze; and the same shall be disposed of in any manner consistent with the rules and regulations of the Department of Agriculture and the laws of this state, provided that in no instance shall the disposition of the antifreeze be ordered by the court without first affording the claimant or owner of the antifreeze an opportunity to apply to the court for the release of the antifreeze or for permission to process or relabel the antifreeze so as to bring it into compliance with this part.
The Commissioner of Agriculture may publish in print or electronically or furnish upon request a list of the brands and classes or types of antifreeze inspected by the state oil chemist during the fiscal year which have been found to be in compliance with this part and for which a license or permit for sale has been issued. It shall be lawful for any manufacturer, packer, or distributor of antifreeze to show, by advertising, in any manner, that its brand of antifreeze has been inspected, analyzed, or licensed for sale by the Commissioner of Agriculture acting through the state oil chemist. It shall be unlawful for any manufacturer, packer, or distributor of antifreeze to advertise in any manner that such antifreeze so advertised for sale has been “approved” by the Commissioner of Agriculture.
When any manufacturer, packer, or distributor applies to the Commissioner of Agriculture for a license or permit to sell antifreeze in this state, the Commissioner may require the manufacturer, packer, or distributor to furnish to the state oil chemist a statement of the formula or contents of the antifreeze, which statements shall conform to rules and regulations established by the Commissioner, provided that the statement of the formula or contents need not include the inhibitor ingredients if such inhibitor ingredients total less than 5 percent by weight of the antifreeze and if in lieu thereof the manufacturer, packer, or distributor furnishes to the state oil chemist satisfactory evidence, other than by disclosure of the inhibitor ingredients, that the antifreeze is not adulterated as defined in Code Section 10-1-201. All statements of contents, formula, or trade secrets furnished under this Code section shall be privileged and confidential and shall not be subject to subpoena nor shall the same be exhibited or disclosed before any administrative or judicial tribunal by virtue of any order or subpoena of such tribunal unless with the consent of the person, firm, association, or corporation owning or furnishing to the state oil chemist such statement of contents.
This part shall not apply to recycled, reclaimed, or reprocessed antifreeze processed in Georgia which meets standards of suitability for automobile or other vehicle engine cooling systems, which has conspicuous labeling or notice of its nature as “recycled,” and which is dispensed in an approved manner in bulk or by replenishing during servicing. The department shall establish by regulation such standards, testing requirements, labeling and notice requirements, and manner of dispensing. Each sale or other dispersal of a product which fails to meet such standards, which does not have the proper labeling or on which adequate notice is not given, or which is dispensed in an unapproved manner shall constitute a separate violation of this Code section.
The Commissioner of Agriculture shall be authorized to promulgate rules and regulations to implement this part and to accomplish its purpose.
In addition to the remedies provided in this part and notwithstanding the existence of any other remedy at law and notwithstanding the pendency of any criminal prosecution, the Commissioner of Agriculture is authorized to apply to the superior court in the appropriate county; and such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction or ex parte restraining order enjoining or restraining any person from violating or continuing to violate any of this part or for the failure or refusal to comply with this part or any rule or regulation promulgated under this part.
Any person who violates any provision of this part or the rules and regulations promulgated hereunder shall be guilty of a misdemeanor.
As used in this article, the term:
(1) “Commissioner” means the Commissioner of Agriculture.
(2) “Department” means the Department of Agriculture.
(3) “Digital network” means internet enabled technology or digital media, including, but not limited to, consumer applications accessible through computers or mobile electronic devices, offered or used by an electric vehicle charging provider that allows a user to initiate a retail transaction to deliver electricity from an electric vehicle charging station to an electric vehicle.
(4) “Electric vehicle” means a vehicle that is propelled by one or more electric motors fueled by energy stored in the form of a rechargeable battery.
(5) “Electric vehicle charging provider” means the owner of an electric vehicle charging station.
(6) “Electric vehicle charging station” means any device or group of devices that delivers electricity from a power source outside an electric vehicle into one or more electric vehicles and that is located somewhere other than a residence.
(7) “Residence” means a single-family dwelling, multifamily dwelling, or a building which is an extended stay rental, as such term is defined in Code Section 48-13-50.3, where a device delivers electricity to an electric vehicle from a power source upon the property of such a dwelling or building for purposes other than commercial or for the exclusive use of certain persons located upon such property.
(a) The administration of this article shall be vested in the Commissioner of Agriculture.
(b) The Commissioner shall be authorized to employ, in accordance with Chapter 20 of Title 45, electric vehicle charging station inspectors to enforce this article. Such inspectors shall be allowed expenses to be approved by the Commissioner. There shall be allowed such further sums for the purchase of equipment, supplies, and clerical help and to pay any other expenses incident to and necessary for the enforcement of this article as may hereafter be appropriated.
(c) The Commissioner shall be authorized to require electric vehicle charging inspectors to be bonded for the faithful performance of their duties at the expense of the department if and to the extent such Commissioner deems it necessary for the proper protection of the state and the public.
(d) The Commissioner shall be authorized to appoint and employ investigators who shall have, in any case that there is reason to believe a violation of this article has occurred or is about to occur, the right and power to serve subpoenas and to swear out and execute search warrants and arrest warrants.
(e) The Commissioner may promulgate such rules and regulations, not inconsistent with the provisions of this article, necessary for the administration and enforcement of this article. Such rules and regulations shall take into consideration and provide for consistency with any rules and regulations of the National Institute for Standards and Technology of the United States Department of Commerce. Such rules and regulations shall be promulgated in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(f) The Commissioner and the Department of Revenue shall be authorized to share information necessary to efficiently administer and enforce the provisions of this article and Article 1 of Chapter 9 of Title 48, the “Motor Fuel Tax Law.” Any confidential information furnished pursuant to this Code section shall retain its character as confidential and privileged information. Any person who divulges confidential information obtained pursuant to this Code section shall be subject to the same penalties as provided under Code Section 48-7-61 for unlawful divulgence of confidential tax information.
(a) All electric vehicle charging stations shall be capable of accurately measuring and prominently displaying the amount of electricity delivered to each electric vehicle on a per kilowatt-hour basis, either directly upon the station or remotely through the use of a digital network. Such stations shall be further equipped with meters to record the total kilowatt-hours dispensed.
(b) All electric vehicle charging stations shall be subject to inspection as provided for in this article. Prior to operation of any electric vehicle charging station and annually thereafter, an electric vehicle charging provider shall register with the Commissioner in the form and manner prescribed by such Commissioner. Such registration shall include the location of the electric vehicle charging station; the name, brand, or manufacturer of the type of electric vehicle charging station, together with the name and address thereof; and certification that the electric vehicle charging station is in conformity with the specifications established pursuant to this article by the Commissioner. Certificates of registration issued by the Commissioner pursuant to this Code section shall be posted in a prominent and accessible place upon the electric vehicle charging station.
Whenever the Commissioner shall find any person willfully marketing the delivery of electricity for use in electric vehicles in violation of the laws of this state, of prescribed specifications of this article, or rules and regulations promulgated pursuant to this article, the Commissioner shall be authorized to apply to the superior court having jurisdiction over the offender for an injunction against the continuance of any such violations. The appropriate superior court shall have jurisdiction, upon hearing and for cause shown, to grant such temporary or permanent injunction restraining further violations as the circumstances appear to require.
(a) Electric vehicle charging station inspectors shall inspect all electric vehicle charging stations located in the territory assigned to them.
(b) All electric vehicle charging stations found to be giving accurate measure of the amount of electricity delivered within the tolerance established by regulations of the Commissioner shall have the electric vehicle charging station sealed with an official seal applied by an inspector duly authorized by the Commissioner.
(c) If any electric vehicle charging station shall be found to be giving inaccurate measure of the amount of electricity delivered in excess of the tolerance established by regulations of the Commissioner, the inspector shall then and there notify the electric vehicle charging provider, whether owner or lessee. Should the electric vehicle charging provider fail or refuse to then and there make such adjustments as shall be necessary to bring the measure within the allowed variation, the same shall be condemned and rendered inoperable immediately by the inspector examining the same; and such electric vehicle charging station shall not again be operated without the written consent of the Commissioner. Inspectors shall be required to report to the Commissioner immediately the name and number of any electric vehicle charging station condemned and rendered inoperable.
(d) When any electric vehicle charging station is condemned under this article by any inspector, it shall be the duty of the inspector immediately to make affidavit before the judge of the probate court of the county in which the electric vehicle charging station is located that such station is being operated contrary to law by the electric vehicle charging provider who shall be named in the affidavit. Thereupon the judge of the probate court shall issue an order to the electric vehicle charging provider named in the affidavit to show cause before him or her on the day named in the order, not more than ten days nor fewer than three days from the issuance of the order, why the electric vehicle charging station should not be forfeited, confiscated to the state, and dismantled. On such day named in the order, it shall be the duty of the judge of the probate court to hear the respective parties and to determine whether or not the electric vehicle charging station has been operated contrary to the provisions of this article. If the judge of the probate court finds that the electric vehicle charging station has been so operated, he or she shall forthwith issue an order adjudging the electric vehicle charging station to be forfeited and confiscated to the state and directing the sheriff of the county to dismantle the electric vehicle charging station and take it into his or her possession, and, after ten days' notice by posting or publication, as the court may direct, to sell the electric vehicle charging station to the highest bidder for cash. The proceeds of sale, or as much thereof as may be necessary, shall be used by the sheriff, first, to pay the costs associated with sale, which shall be the same as in cases of attachment, and the sheriff shall thereupon pay over and deliver the residue, if any, to the person from whose possession the electric vehicle charging station has been taken.
(e) It shall be unlawful to install or operate any electric vehicle charging station which can be secretly manipulated in such manner as to give short measure. Such inaccurate electric vehicle charging station shall be condemned as provided in this Code section, and thereafter it shall be unlawful for any person to resell any electricity from such electric vehicle charging station until such station has been made or altered to comply with this article and has been inspected and approved for service by the inspector.
(f) It shall be unlawful for anyone to remove a seal applied by an inspector to an electric vehicle charging station without first securing consent of the Commissioner, whose consent may be given through one of the duly authorized inspectors.
(g) The department shall have the power to implement rules and regulations necessary to carry out the inspections of electric vehicle charging stations as provided for by this Code section.
(a) Any sign or placard or other means used to advertise the price of electricity for sale at retail through an electric vehicle charging station may contain a separate listing of the price and a separate listing of each tax thereon, but must contain a total of such price and taxes which shall be at least as large as the listing of the price or any tax thereon. Numbers used to advertise the total price of such electricity shall be of uniform size; and, where fractions are used, the numerator and denominator thereof combined shall be of the same size as any whole numbers used. It shall not be necessary that a denominator be used to indicate fractions; but, if one is not used, the numerator must be at least half the size of the whole number used. When the price of electricity for sale at retail through an electric vehicle charging station is advertised on any sign, billboard, placard, or other advertising medium, it shall be unlawful to place a higher price on any electric vehicle charging station delivering such electricity or to charge a higher price for such electricity. Any electric vehicle charging provider shall not be precluded from giving a discount from the posted or advertised price if the purchaser of the electricity buys additional merchandise.
(b) It shall be unlawful for any electric vehicle charging provider to advertise upon the purchase of electricity either free:
(1) Gifts or other products unless such provider has sufficient number of gifts or products on hand to supply the reasonably expectable demand or the advertisement discloses a limitation of quantity; or
(2) Car washes or other services unless such provider is prepared, in the absence of causes beyond the reasonable control of the offerer, to perform such car washes or the services advertised at the time of the purchase at such provider's place of business or at a place of business affiliated by trademark or agreement with such provider. If the free car washes or other services advertised are to be performed at a place of business affiliated by trademark or agreement but in a separate location, such fact shall be so stated on the sign, billboard, placard, or other advertising medium used.
(c) Nothing in this Code section shall preclude posting on any electric vehicle charging station a separate statement of taxes included in the total purchase price for the purpose of complying with Chapter 8 of Title 48.
(d) Electric vehicle charging inspectors and any and all law enforcement officers in this state are charged with enforcement of this Code section.
(e) Any person, firm, association, or corporation violating this Code section shall be guilty of a misdemeanor.
Any person violating any provision of:
(1) This article relating to the inspection of electric vehicle charging stations and the resale of electricity;
(2) Code Section 10-1-225 providing for the regulation of signs advertising the price for the resale of electricity by electric vehicle charging providers; or
(3) Any rule, regulation, or standard promulgated or adopted by the Commissioner or the department under the provisions of this article
shall be liable for a civil penalty not to exceed $1,000.00 for each violation. The Commissioner, after a hearing, shall determine whether any person has violated this Code section and upon a proper finding may issue his or her order imposing a civil penalty as provided in this Code section. All hearings and proceedings under this Code section shall be held and taken under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
Any electric vehicle charging station inspector who, while in office, shall be interested directly or indirectly in the manufacture or vending of any electric vehicle charging station shall be guilty of a misdemeanor and shall be disqualified from providing services as an electric vehicle charging station inspector until such interest no longer exists.
Any person or association of persons, firm, or corporation that violates any of the provisions of this article relating to inspection of electric vehicle charging stations and the resale of electricity or any rule or regulation promulgated by the Commissioner for the enforcement of this article shall be guilty of a misdemeanor.
This article shall be known and may be cited as the “Gasoline Marketing Practices Act.”
The General Assembly finds and declares that the distribution and sales through marketing agreements of gasoline in the State of Georgia vitally affects the general economy of the state, the public interest, and public welfare and that it is necessary, therefore, in the public interest to define the relationships and responsibilities of the parties to such agreements.
As used in this article, the term:
(1) “Automotive gasoline” or “gasoline” means octane rated fuels made from petroleum products for use in the propulsion of motor vehicles.
(2) “Automotive gasoline dealer” or “gasoline dealer” means any person or firm engaged primarily in the retail sale of automotive gasoline and related products and services under a marketing agreement entered into with an automotive gasoline distributor.
(3) “Automotive gasoline distributor” or “gasoline distributor” means any person or firm engaged, whether as a jobber or supplier, in the sale, consignment, or distribution of gasoline to automotive gasoline dealers pursuant to marketing agreements.
(3.1) “Blended fuel” means a mixture composed of automotive gasoline and another liquid, other than a de minimis amount of a product such as carburetor detergent or oxidation inhibitor, that can be used as a fuel in a motor vehicle.
(3.2) “Blender” means a person or firm which produces blended fuel outside a terminal transfer system.
(3.3) “Fuel alcohol” means alcohol or fuel grade ethanol.
(3.4) “Gasohol” means a blended fuel composed of gasoline and fuel grade ethanol.
(3.5) “Jobber” means an automotive gasoline distributor which is not a supplier.
(4) “Marketing agreement” or “agreement” means a written agreement, including a franchise, and all related written agreements between an automotive gasoline distributor and an automotive gasoline dealer under which such dealer is supplied automotive gasoline for retail sale or an agreement between an automotive gasoline distributor and an automotive gasoline dealer under which the automotive gasoline dealer is granted the right to occupy premises owned, leased, or controlled by the automotive gasoline distributor for the purpose of engaging in the retail sale of gasoline of the automotive gasoline distributor.
(4.1) “Position holder” means a person or firm which holds the inventory position in automotive gasoline in a terminal, as reflected on the records of the terminal operator. A person or firm holds the inventory position in automotive gasoline when that person or firm has a contract with the terminal operator for the use of storage facilities and terminaling services for gasoline at the terminal. The term includes a terminal operator which owns gasoline in the terminal.
(4.2) “Rack” means a mechanism for delivering automotive gasoline from a refinery, a terminal, or a bulk plant into a transport truck, a railroad tank car, or another means of transfer that is outside the terminal transfer system.
(4.3) “Refiner” means a person or firm which owns, operates, or controls a refinery, wherever located.
(4.4) “Refinery” means a facility used to process crude oil, unfinished oils, natural gas liquids, or other hydrocarbons into automotive gasoline and from which automotive gasoline may be removed by pipeline or vessel or at a rack. The term does not include a facility that produces only blended fuel or gasohol.
(4.5) “Removal” means a physical transfer other than by evaporation, loss, or destruction. A physical transfer to a transport truck or another means of conveyance outside a terminal transfer system is complete upon delivery into the means of conveyance.
(5) “Retail sale of automotive gasoline” means the sale thereof for consumption, and not for resale, at a retail outlet serving the motoring public.
(6) “Supplier” means:
(A) A position holder or a person or firm which receives automotive gasoline pursuant to a two-party exchange; or
(B) A refiner.
(7) “Terminal” means an automotive gasoline storage and distribution facility that has been assigned a terminal control number by the United States Internal Revenue Service, is supplied by pipeline or marine vessel, and from which automotive gasoline may be removed at a rack.
(8) “Terminal operator” means a person or firm which owns, operates, or otherwise controls a terminal.
(9) “Terminal transfer system” means an automotive gasoline distribution system consisting of refineries, pipelines, marine vessels, and terminals. The term has the same meaning as “bulk transfer/terminal system” under 26 C.F.R. Section 48.4081-1.
(10) “Two-party exchange” means a transaction in which automotive gasoline is transferred from one licensed supplier to another licensed supplier pursuant to an exchange agreement under which the supplier that is the position holder agrees to deliver automotive gasoline to the other supplier or the other supplier's customer at the rack of the terminal at which the delivering supplier is the position holder.
It shall be a violation of this article for any gasoline distributor who has a marketing agreement with a gasoline dealer, directly or indirectly, through any officer, agent, or employee, to commit any of the following acts:
(1) To terminate or cancel such marketing agreement without good cause prior to the expiration date;
(2) To terminate or cancel an existing marketing agreement prior to this expiration date or to fail to enter into subsequent agreements without having first given written notice setting forth all the reasons for such action to the gasoline dealer at least 60 days in advance of such termination, cancellation, or expiration of the existing agreement; provided, however, that such notice shall not be required of a gasoline distributor acting with reasonable cause to believe the dealer is maliciously and willfully damaging the property rights of the gasoline distributor or if the dealer has voluntarily abandoned the marketing relationship or after five days' notice has failed to pay his just debts when due to the distributor;
(3) By the use of coercion, intimidation, or threats, to force or induce such gasoline dealer to deal exclusively in products manufactured, distributed, or sponsored by the gasoline distributor or to participate in promotions. Hours of operation which are set in any written agreement in effect prior to July 1, 1978, can only be changed by mutual consent. It shall also be the duty of the distributor to advise the dealer in writing prior to execution of the agreement the projected potential gallonage and the dealer shall acknowledge same in writing prior to execution of the marketing agreement that he is willing to accept same;
(4) To engage in any acts which have the purpose, intent, or effect of fixing or maintaining prices or of forcing or inducing adherence to prices at which such gasoline distributor's products are to be resold by such gasoline dealers, provided that nothing in this paragraph shall be deemed to prohibit recommendation, suggestion, urging, or discussion;
(5) To require a gasoline dealer, at the time of entering into a marketing agreement, to assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability imposed by this article;
(6) To require or prohibit any change in management of any gasoline dealer unless such requirement or prohibition of change shall be for good cause, which cause shall be stated in writing by the gasoline distributor;
(7) To impose standards of performance upon the gasoline dealer other than those in the marketing agreement;
(8) To provide any term or condition in any marketing agreement, or other agreement ancillary or collateral thereto, which term or condition directly or indirectly violates this article;
(9) After July 1, 1978, to require operation in excess of a six-day week or in excess of a 12 hour day if the dealer can prove it results in substantially lessening the profits earned in his entire operation to the extent that it is not economically feasible to continue said operation; provided, however, that this paragraph shall in no way impair the obligation of contracts made prior to July 1, 1978; and provided, further, that this paragraph shall not impair the writing of a contract for hours in excess of the hours expressed in this paragraph or impair the right to enforce the hours contained in any contract until sufficient evidence is available to a dealer to exercise the rights provided in this article; and provided, further, that this paragraph shall not be applicable to dealers or distributors who operate a food or convenience store in conjunction with the retail sale of automotive gasoline and related products.
It shall be an unlawful predatory and unfair business practice for an automotive gasoline distributor who controls a product supply, controls the price of that product and has the power to require the purchase of that product by another automotive gasoline distributor or an automotive gasoline dealer doing business in this state to sell said product at prevailing automotive gasoline distributor prices at any time to another automotive gasoline distributor for resale to automotive gasoline dealers with the purpose or intent that said product will be sold at retail by said automotive gasoline distributor and fails to offer its automotive gasoline dealers an opportunity to purchase an equal volume of product upon the same terms and conditions, excepting expenses for advertising, credit cards, and other expenses relative to its automotive gasoline dealers, when said automotive gasoline distributor is selling said product at distress prices to other automotive gasoline dealers in the dealer's marketing area. As used in this Code section, the term “distress prices” shall not be construed to include or embrace a price established for the purpose of meeting competition.
Regardless of other products offered, any supplier which, pursuant to a marketing agreement, supplies gasoline from a terminal in this state to a gasoline distributor shall offer to supply such party with gasoline that has not been blended with, but is suitable for blending with, fuel alcohol. No supplier shall prevent or inhibit a gasoline distributor in this state from being a blender or from qualifying for any federal or state tax credit due to blenders. If a supplier supplies gasoline to a gasoline distributor pursuant to this Code section which is then blended, the gasoline distributor shall indemnify and hold harmless such supplier against any losses or damages arising out of claims, costs, judgments, and expenses, including reasonable attorney's fees, or suits relating to or arising out of such blending.
(a) Any automotive gasoline dealer may bring an action against its automotive gasoline distributor for violation of this article in the superior court of the county where such distributor resides or, if the distributor is a corporation, in accordance with Title 14, to recover damages sustained by reason of any violation of this article, provided that the dealer shall show as a prerequisite to recovery under this Code section that he has:
(1) Complied with the reasonable requirements of the marketing agreement; and
(2) Has acted in good faith in carrying out the terms of the marketing agreement.
(b) The court may grant such equitable relief as is proper, including declaratory judgment and injunctive relief.
(c) Attorneys' fees shall be controlled by Code Section 13-6-11.
Upon receipt of notice to cancel or terminate an existing lease prior to expiration date, it shall be the duty of the dealer to notify the distributor within 30 days thereof of his intention to hold over and to set forth in writing to the distributor his reasons and justifications therefor and thereafter within ten days to file his complaint or application for injunction in the court of proper jurisdiction; and the judge of said court shall within 15 days conduct a hearing in said matter and thereafter within five days hand down a ruling based upon evidence presented as to the granting of a temporary injunction; and, upon the judge's failure to grant the injunction, the dealer shall vacate the premises all according to the lease agreement.
Any gasoline distributor may bring action against the dealer for failing to fulfill the marketing agreement. Attorneys' fees shall be controlled by Code Section 13-6-11.
No action shall be brought under Code Section 10-1-235 or Code Section 10-1-238 unless commenced within two years after the cause of action shall have accrued.
This article shall apply to all marketing agreements as defined in paragraph (4) of Code Section 10-1-232 that are granted, renewed, or amended to extend the lease period on or after July 1, 2009.
This article is not intended to alter or change the present law or regulations pertaining to the sale or transfer of title to real property, and the owner may at any time enter into a contract for the bona fide sale of his property.
This article shall be known and may be cited as the “Below Cost Sales Act.”
As used in this article, the term:
(1) “Person” means an individual, partnership, association, corporation, joint-stock company, or business trust.
(2) “Product” means octane or cetane rated fuels for use in the propulsion of motor vehicles.
(3) “Purchase” includes any acceptance or receipt of product by a person from a related entity.
(4) “Related entity” of a person means any person who, directly or through an affiliated person, holds more than 50 percent of the assets or voting securities of such person.
(5) “Sale” or “to sell” includes any transfer or delivery of product to a person from a related entity.
For the purposes of this article, a transfer price from a related entity to a person is reasonable (1) if it is the same or greater than the price that such related entity contemporaneously charges unrelated persons at the same level of distribution and in the same geographic area as the person for a similar volume of product of like grade and quality or (2) if it is arrived at by including all uniform costs imposed upon purchasers in the operation of the retail business as determined pursuant to generally accepted accounting principles.
For the purposes of this article, “cost” shall be computed as follows:
(1)(A) When product is purchased by a person from an independent entity, the lowest invoice cost to the person from the independent entity for product of like grade and quality within 15 days prior to the date of resale of the product by the person; or
(B) When product is purchased by a person from a related entity, the lowest transfer price charged to the person for product of like grade and quality within 15 days prior to the date of resale of the product by the person, provided that the transfer price is reasonable; or
(C) If neither subparagraph (A) nor (B) of this paragraph applies, the lowest posted or published wholesale price of all sellers of product of like grade and quality normally serving the geographic area in which the person is located during the 15 days prior to the date of resale of the product by the person; plus
(2) A reasonable cost of doing business as determined pursuant to generally accepted accounting principles; plus
(3) Freight charges and any credit against federal or state motor fuel or sales tax not already included in the invoice cost, transfer price, or lowest posted or published wholesale price of the product; less
(4) All trade discounts, allowances, or rebates actually granted to the person on the product; provided, however, such trade discounts, allowances, or rebates are received on proportionally equal terms by all other customers competing in the distribution of such products.
(a) It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, either directly or indirectly:
(1) To sell product below cost; or
(2) To discriminate in price between different purchasers of product of like grade and quality, where either or any of the purchases involved in such discrimination is in commerce in this state,
and where the effect of such below-cost sale or discrimination may be substantially to lessen competition or tend to create a monopoly, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such below-cost sale or discrimination, or with customers of either of them. Nothing contained in this Code section shall prevent differentials which make only a due allowance for differences in the cost of refining, sale, or delivery resulting from the differing methods or quantities in which such product is sold or delivered to such purchasers. Nothing contained in this Code section shall prevent persons from selecting their own customers in bona fide transactions and not in restraint of trade. Nothing contained in this Code section shall prevent price changes, from time to time, which are in response to changing conditions affecting the market for or the marketability of product of the grade and quality concerned, such as, but not limited to, imperfect or damaged product, obsolescence of product, distress sales under court process, or sales in good faith in discontinuance of business at a particular location or with respect to the product itself.
(b) Upon proof being made in any action to enforce this article that there has been a below-cost sale or discrimination, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this article. Nothing contained in this article shall prevent a seller from rebutting the prima-facie case thus made by showing that such seller's below-cost sale or lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor.
(c) It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, to pay, grant, receive, or accept any thing of value as a commission or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of product, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf of or is subject to the direct or indirect control of any party to such transaction other than the person by whom such compensation is granted or paid.
(d) It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state to pay or contract for the payment of any thing of value to or for the benefit of a customer of such person in the course of such sales as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of product refined, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such product.
(e) It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, to discriminate in favor of one purchaser against another purchaser or purchasers of product bought for resale, with or without processing, by contracting to furnish, furnishing, or contributing to the furnishing of any services or facilities connected with the processing, handling, sale, or offering for sale of such product so purchased upon terms not accorded to all purchasers on proportionally equal terms.
(f) It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, knowingly to induce or receive a below-cost or discriminatory price which is prohibited by this article.
(a) Any person who sustains or is threatened with competitive injury by reason of a violation of this article may maintain an action in any superior court of this state having jurisdiction over the defendant to enjoin such violation. A successful petitioner shall be entitled to recover reasonable attorneys' fees and costs of litigation.
(b) In addition to the action provided in subsection (a) of this Code section, any person who sustains a competitive injury by reason of a violation of this article may maintain an action in any court of this state having jurisdiction over the defendant to recover the actual, or special, damages sustained thereby including, but not limited to, reasonable attorneys' fees and costs of litigation. A successful claimant under this subsection shall be awarded punitive damages not to exceed $1,000.00 for each day on which the defendant continued to commit the violation of this article resulting in competitive injury after having received from the plaintiff a written notice that the defendant was engaging in such violation. The maximum amount of such punitive damages which may be awarded to any one plaintiff from any one defendant, however, shall be $200,000.00.
(c) A claim for damages for violation of this article may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law. It is the intention of the General Assembly that this prohibition against class actions is an integral substantive provision of this article, and that its unenforceability for any reason in any action shall preclude the recovery of damages in such action.
(d) At any time subsequent to the filing of an action for damages under this article, and prior to any award of such damages, the defendant may make a written tender of settlement to the complaining person. If the complaining person is awarded no damages or less damages than the amount of the written tender of settlement, the complaining person shall under no circumstances be entitled to recover any costs of the litigation, including attorneys' fees, that were incurred after the date of the written tender of settlement. All written tenders of settlement that are made pursuant to this subsection shall be presumed to be offered without prejudice in compromise of a disputed matter.
(e) Any action brought under this article must be brought within two years of the date of the alleged violation. All other actions are forever barred.
It is the intent of the General Assembly that, in construing Code Section 10-1-254, due consideration and great weight be given to the interpretation of the federal courts relating to Section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. Sections 13(a)-(f).
This article shall be known and may be cited as the “Liquefied Petroleum Safety Act of Georgia.”
The General Assembly of Georgia finds, determines, and declares that this article is necessary for the immediate preservation of the public peace, health, and safety.
As used in this article, the term “liquefied petroleum gas” means any material which is composed predominantly of any of the following hydrocarbons or mixtures of the same: propane, propylene, butanes (normal butane or isobutane), and butylenes.
The state fire marshal, ex officio, shall be designated as the officer charged with the duty and authority of enforcing this article.
The state fire marshal is authorized to appoint and employ such assistants and employees, fix their salaries, and assign and delegate such duties and responsibilities as he or she may deem necessary to carry out this article in an efficient manner.
(a) The state fire marshal shall make, promulgate, adopt, and enforce rules and regulations setting forth minimum general standards covering the design, construction, location, installation, and operation of equipment for storing, handling, transporting by tank truck or tank trailer, and utilizing liquefied petroleum gases and specifying the odorization of said gases and the degree thereof. Said rules and regulations shall be such as are reasonably necessary for the protection of the health, welfare, and safety of the public and persons using such materials and shall be based upon reasonable substantial conformity with the generally accepted standards of safety concerning the same subject matter.
(b) Rules and regulations promulgated by the state fire marshal based upon reasonable substantial conformity with the published standards of the National Board of Fire Underwriters for the design, installation, and construction of containers and pertinent equipment for the storage and handling of liquefied petroleum gases as recommended by the National Fire Protection Association shall be deemed to be in substantial conformity with the generally accepted standards of safety concerning the subject matter.
The state fire marshal is authorized and empowered to issue a license or permit to such person, firm, or corporation qualifying under the terms of this article and such rules and regulations as may be adopted by the state fire marshal. For such license or permit issued on or after July 1, 1990, a one-time fee of not less than $100.00 nor more than $500.00 shall be charged on a graduated capacity scale for each installation of such person, firm, or corporation doing business in Georgia. All fees, assessments, and collections made by the state fire marshal shall be paid into the general fund of the state treasury. The license or permit of any licensee or permittee who had paid an annual license or permit fee on or after January 1, 1990, but prior to July 1, 1990, shall be valid for the remainder of the period of time covered by such payment and, upon the expiration of such period of time, the licensee or permittee shall become subject to the one-time fee requirement provided in this Code section.
The state fire marshal is authorized and empowered as a prerequisite to a license or permit to require the applicant for such license or permit to furnish insurance, surety bond, or a personal bond with security in such amounts and terms as the state fire marshal may deem advisable and expedient for the protection of the general public and to indemnify for losses and damages which proximately result from any act of negligence of the principal, his agents, or employees while he or they may be engaged in the performance of duties with reference to the liquefied petroleum business. The state fire marshal is also authorized to adopt and enforce reasonable rules and regulations governing such insurance and bonds. Such regulations shall be adopted by the state fire marshal only after a public hearing thereon.
(a) Every entity licensed to sell or distribute liquefied petroleum gas in this state shall have located within the State of Georgia storage capacity for a minimum of 30,000 water gallons of liquefied petroleum gas, except that entities initially licensed prior to July 1, 1990, may continue to operate with the previously approved 18,000 gallons minimum storage capacity. If the 30,000 gallons (water capacity) storage consists of more than one container, then no storage container used to meet this requirement shall be of a size less than 6,000 gallons (water capacity).
(b) The storage capacity required by subsection (a) of this Code section shall be within close proximity to the area serviced.
(c) The state fire marshal, in his discretion and in accordance with such rules and regulations as have been or may be duly promulgated and adopted under this article, may waive the minimum bulk storage facility requirement of subsection (a) of this Code section.
(d) If the storage capacity required by subsection (a) of this Code section is leased or rented, then such storage capacity must be dedicated to the exclusive use of the lessee and must include separate piping and loading/unloading facilities.
The state fire marshal, upon ten days' written notice in the form of a show cause order to the licensee stating his contemplated action and in general the grounds therefor and after giving the licensee a reasonable opportunity to be heard, subject to the right to review provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” may, by order in writing, suspend or revoke any license issued under this article or, in lieu thereof, may assess a penalty against said licensee in an amount not to exceed $1,000.00, if the state fire marshal shall find:
(1) That the licensee has failed to pay the license fee or any fee required under this article or any penalty imposed under the article; or
(2) That the licensee knowingly has violated any of the provisions of this article or any of the rules and regulations promulgated under this article; provided, however, that any such suspension or revocation or imposition of penalty shall not become final, pending and subject to the right of review provided in Chapter 13 of Title 50, but the court shall have and is granted power to enter such order as justice shall require pending hearing on the appeal; and provided, further, the court upon the appeal may tax the cost, including the cost of the hearing before the state fire marshal, against the losing party.
No municipality or other political subdivision of this state shall adopt or enforce any ordinance, rule, or regulation in conflict with this article or with the rules and regulations adopted and promulgated by the state fire marshal under the terms and authority of this article.
The state fire marshal is authorized to enter into reciprocal agreements with another state to effectuate the purposes of this article.
Any person, firm, association, or corporation violating this article or any of the rules and regulations of the state fire marshal made under this article shall be guilty of a misdemeanor.
This article shall be known as the “Georgia Motion Picture Fair Competition Act.”
The intent of this article is to establish fair and open procedures for the bidding and negotiation for the right to exhibit motion pictures within the state in order to prevent unfair and deceptive acts or practices and unreasonable restraints of trade in the business of motion picture distribution within the state, to promote fair and effective competition in that business, and to ensure that exhibitors have the opportunity to view a motion picture and know its contents before committing themselves to exhibiting it in their municipalities or towns.
As used in this article, the term:
(1) “Bid” means a written offer or proposal by an exhibitor to a distributor in response to an invitation to bid for the right to exhibit a motion picture, stating the terms under which the exhibitor will agree to exhibit a motion picture.
(2) “Blind bidding” means the bidding for, negotiating for, or offering or agreeing to terms for the licensing or exhibition of a motion picture at any time before the motion picture has either been trade screened within the state or before the motion picture, at the option of the distributor, otherwise has been made available for viewing within the state by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.
(3) “Distributor” means any person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sale, or licensing.
(4) “Exhibit” or “exhibition” means showing a motion picture to the public for a charge.
(5) “Exhibitor” means any person engaged in the business of operating one or more theaters.
(6) “Invitation to bid” means a written or oral solicitation or invitation by a distributor to one or more exhibitors to bid for the right to exhibit a motion picture.
(7) “License agreement” means any contract, agreement, understanding, or condition between a distributor and an exhibitor relating to the licensing or exhibition of a motion picture by the exhibitor.
(8) “Person” means one or more individuals, partnerships, associations, societies, trusts, organizations, or corporations.
(9) “Run” means the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A “first run” is the first exhibition of a picture in the designated area; a “second run” is the second exhibition; and “subsequent runs” are subsequent exhibitions after the second run. “Exclusive run” is any run limited to a single theater in a defined geographic area, and a “nonexclusive run” is any run in more than one theater in a defined geographic area.
(10) “Theater” means any establishment in which motion pictures are exhibited to the public regularly for a charge.
(11) “Trade screening” means the showing of a motion picture by a distributor at the location of the film exchange that distributes his picture in Georgia, which is open to any exhibitor from whom the distributor intends to solicit bids or with whom the distributor intends to negotiate for the right to exhibit the motion picture.
(a) Blind bidding is prohibited within the state. No bids shall be returnable, no negotiations for the exhibition or licensing of a motion picture shall take place, and no license agreement or any of its terms shall be agreed to, for the exhibition of any motion picture before the motion picture has either been trade screened or before the motion picture, at the option of the distributor, otherwise has been made available for viewing within the state by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.
(b) A distributor shall provide reasonable and uniform notice of the trade screening of any motion picture to those exhibitors within the state from whom he intends to solicit bids or with whom he intends to negotiate for the right to exhibit that motion picture.
(c) Any purported waiver of the prohibition against blind bidding in this article shall be void and unenforceable.
In any civil action for damages against a person for violation of this article, the court may award damages to the prevailing party and reasonable attorneys' fees. This article may be enforced by injunction or any other available equitable or legal remedy.
(a) As used in this article, the term:
(1) “Corporate authorized reseller” means any person or entity authorized by the corporate issuer or a corporate issuer agent to sell the stored value cards of a corporate issuer.
(2) “Corporate issuer” means a company that issues or contracts with an affiliate or third party to issue stored value cards that may be used by the cardholder to purchase goods or services at the retail locations of the corporate issuer or its affiliates or online from the corporate issuer or its affiliates.
(3) “Corporate issuer agent” means a third party authorized by the corporate issuer to facilitate the sale of its stored value cards by corporate authorized resellers.
(4) “Stored value card” means any “gift certificate” or “store gift card,” as such terms are defined in subparagraph (b)(33)(B) of Code Section 10-1-393, issued with or without a fee for the use of the cardholder to obtain money, goods, services, or anything else of value. The term shall not include a “general use gift card” as such term is defined in subparagraph (b)(33)(B) of Code Section 10-1-393, demand deposit account, share draft account, savings account, prepaid debit card, or any card sold by a financial institution or access device associated therewith.
(5) “Third-party card” means a stored value card for which the merchant buying or selling the card is neither the corporate issuer, a corporate issuer agent, nor a corporate authorized reseller.
(6) “Third-party card dealer” means a merchant in the business of buying and selling third-party cards.
(b) When a third-party card dealer makes a sale or purchase of a stored value card, including any transaction that occurs in this state, such third-party card dealer shall record the information provided for in subsection (c) of this Code section and maintain a copy of such record for at least three years.
(c) Third-party card dealers shall maintain a permanent record in which shall be entered in legible English at the time of each purchase of a third-party card:
(1) The date of the transaction;
(2) The name of the person conducting the transaction;
(3) The name, age, and address of the seller and the distinctive number from the customer's driver's license or other similar identification card;
(4) An identification of the purchased stored value card, including the retailer for which the stored value card is intended and the stored value card number;
(5) The amount of stored value on the stored value card;
(6) The price paid; and
(7) The signature of the customer.
(d) Entries shall appear in ink or be logged into a secure data base, software system, or other technology platform and shall be in chronological order. No obliterations, alterations, or erasures may be made. If handwritten corrections are made, such corrections shall be made by drawing a line of ink through the entry without destroying its legibility. The permanent record shall be open to the inspection of any duly authorized law enforcement officer during the ordinary hours of business or at any reasonable time.
(e) Any third-party card dealer and any clerk, agent, or employee of such third-party card dealer who knowingly:
(1) Fails to make an entry of any material matter in his or her permanent record;
(2) Makes any false entry therein;
(3) Falsifies, obliterates, destroys, or removes from his or her place of business such permanent record;
(4) Refuses to allow any duly authorized law enforcement officer who is certified by the Georgia Peace Officer Standards and Training Council, or who is a federal officer, to inspect his or her permanent record or any stored value cards in his or her possession during the ordinary hours of business or at any reasonable time; or
(5) Fails to maintain a record of each stored value card transaction for at least three years shall be guilty of a misdemeanor.
(f) Upon filing an official report to a law enforcement agency of competent jurisdiction by any person alleging to be a victim of theft of one or more stored value cards with an aggregate value exceeding $500.00, such law enforcement agency may request that the issuer or its agents preserve and provide to law enforcement all relevant evidence reasonably foreseeable to assist in future criminal actions in accordance with the laws of evidence in criminal proceedings.
It shall be unlawful for any distributor of any book, magazine, periodical, or newspaper to refuse to sell to any dealer for his subsequent sale at retail any book, magazine, periodical, or newspaper if the distributor predicates his refusal to sell the publications desired solely upon the dealer's refusal to purchase from the distributor other books, magazines, periodicals, or newspapers not originally requested by the dealer.
Any person, firm, or corporation violating this article shall be guilty of a misdemeanor.
As used in this article, the term:
(1) “Aluminum property” means aluminum forms designed to shape concrete.
(2) “Burial object” means any product manufactured for or used for identifying or permanently decorating a grave site, including, without limitation, monuments, markers, benches, and vases and any base or foundation on which they rest or are mounted.
(3) “Business license” means a business license, an occupational tax certificate, and other document required by a county or municipal corporation and issued by the appropriate agency of such county or municipal corporation to engage in a profession or business.
(4) “Coil” means any copper, aluminum, or aluminum-copper condensing coil or evaporation coil including its tubing or rods. The term shall not include coil from a window air-conditioning system, if contained within the system itself, or coil from an automobile condenser.
(5) “Copper property” means any copper wire, copper tubing, copper pipe, or any item composed completely of copper.
(6) “Copper wire” means any wires, cables, bus bars, or waveguides containing any portion of copper, whether or not coated with insulation.
(7) “Deliverer” means any individual who takes or transports the regulated metal property to the secondary metals recycler.
(8) “Ferrous metals” means any metals containing significant quantities of iron or steel.
(9) “Law enforcement officer” means any duly constituted peace officer of the State of Georgia or of any county, municipality, or political subdivision thereof.
(10) “Nonferrous metals” means stainless steel beer kegs and metals not containing significant quantities of iron or steel, including, without limitation, copper, brass, aluminum, bronze, lead, zinc, nickel, and alloys thereof.
(11) “Person” means an individual, partnership, corporation, joint venture, trust, association, or any other legal entity.
(12) “Personal identification card” means a current and unexpired driver's license or identification card issued by the Department of Driver Services or a similar card issued by another state, a military identification card, or a current work authorization issued by the federal government, which shall contain the individual's name, address, and photograph.
(13) “Purchase transaction” means a transaction in which the secondary metals recycler gives consideration in exchange for regulated metal property.
(14) “Registered agent” means an individual who has been listed on a secondary metals recycler registration form at a Georgia sheriff's office as the affiant and completes and executes the registration form in accordance with Code Section 10-1-359.1.
(15) “Regulated metal property” means any item composed primarily of any ferrous metals or nonferrous metals and includes aluminum property, copper property, and catalytic converters but shall not include aluminum beverage containers, used beverage containers, or similar beverage containers.
(16) “Secondary metals recycler” means any person who is engaged, from a fixed location or otherwise, in the business in this state of paying compensation for regulated metal property that has served its original economic purpose, whether or not engaged in the business of performing the manufacturing process by which regulated metal property is converted into raw material products consisting of prepared grades and having an existing or potential economic value.
(17) “Seller” means the rightful owner of the regulated metal property or the individual authorized by the rightful owner of the regulated metal property to conduct the purchase transaction.
(18) “Used communications copper” means utility-grade copper that is commonly used by a lawful provider of telecommunications services for providing telecommunications services, including, without limitation, utility-grade wires or cables, bus bars, and waveguides.
(19) “Used utility wire” means any wire or cable containing aluminum or copper, or any ferrous metals or other nonferrous metals, that is commonly used by a utility that provides electric or telecommunications service.
(a) No secondary metals recycler shall purchase any coil unless it is purchased from:
(1) A contractor licensed pursuant to Chapter 14 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
(2) A seller with verifiable documentation, such as a receipt or work order, indicating that such coil is the result of a replacement of condenser coils or a heating or air-conditioning system performed by a contractor licensed pursuant to Chapter 14 of Title 43; or
(3) A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such coil was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
(b) No secondary metals recycler shall purchase any copper wire which appears to have been exposed to heat, charred, or burned in an attempt to remove insulation surrounding it unless it is purchased from:
(1) A contractor licensed pursuant to Chapter 14 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
(2) A seller with a copy of a police report showing that such seller's real property was involved in a fire; or
(3) A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such copper wire was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
(c) No secondary metals recycler shall purchase a catalytic converter unless such catalytic converter is:
(1) Attached to a vehicle; or
(2) Purchased from:
(A) A used motor vehicle dealer or used motor vehicle parts dealer licensed pursuant to Chapter 47 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
(B) A new motor vehicle dealer that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
(C) A motor vehicle repairer that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
(D) A manufacturer or distributor of catalytic converters that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
(E) A seller with:
(i) Verifiable documentation, such as a receipt or work order, indicating that the catalytic converter is the result of a replacement of a catalytic converter performed by a used motor vehicle dealer, new motor vehicle dealer, or motor vehicle repairer. Such documentation shall include a notation as to the make, model, and year of the vehicle in which such catalytic converter was replaced; and
(ii) A copy of a certificate of title or registration showing ownership of or interest in the vehicle in which the catalytic converter was replaced; or
(F) A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such catalytic converter was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
(d)(1) As used in this subsection, the term “used, detached catalytic converter” means motor vehicle exhaust system parts that are used for controlling the exhaust emissions from motor vehicles and that contain a catalyst metal, but shall not include a catalytic converter that has been tested, certified, and labeled for reuse, in accordance with applicable federal Clean Air Act regulations, as may from time to time be amended.
(2) It shall be unlawful for any person to purchase or to solicit or advertise for the purchase of a used, detached catalytic converter, or any nonferrous metal parts of a catalytic converter, unless such person is a registered secondary metals recycler in accordance with Code Section 10-1-359.1 and in full compliance with all requirements prescribed by this article.
(3) It shall be unlawful for any person to purchase, possess, transport, or sell a used, detached catalytic converter, or any nonferrous metal parts of a catalytic converter, unless such person is authorized to purchase, possess, transport, or sell catalytic converters pursuant to subsection (c) of this Code section and is in possession of the licenses, registrations, or other documentation required by subsection (c) of this Code section.
(4) Each unlawfully possessed or obtained used, detached catalytic converter shall be considered a separate offense.
No secondary metals recycler shall purchase a burial object unless it is purchased from:
(1) A funeral director licensed pursuant to Chapter 18 of Title 43 or by another state who provides a copy of his or her valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
(2) A cemetery owner registered pursuant to Code Section 10-14-4 or with another state that provides a copy of such valid registration at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied registration is on file with the secondary metals recycler;
(3) A manufacturer or distributor of burial objects that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler;
(4) A seller with verifiable documentation, such as a receipt from or contract with a licensed funeral director, registered cemetery owner, or manufacturer or distributor of burial objects, evidencing that such person is the rightful owner of the burial object; or
(5) A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such burial object was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
(a) Except as provided in subsection (c) of this Code section, a secondary metals recycler shall maintain a legible record of all purchase transactions. Such record shall include the following information:
(1) The name and address of the secondary metals recycler;
(2) The date of the transaction;
(3) The weight, quantity, or volume and a description of the type of regulated metal property purchased in a purchase transaction. For purposes of this paragraph, the term “type of regulated metal property” shall include a general physical description, such as wire, tubing, extrusions, or castings;
(4) A digital photograph or photographs or a digital video image or images of the regulated metal property which shows the regulated metal property in a reasonably clear manner;
(5) The amount of consideration given in a purchase transaction for the regulated metal property and a copy of the check or voucher or documentation evidencing the cash or electronic funds transfer given as consideration for such purchase transaction;
(6) A signed statement from the seller stating that such person is the rightful owner of the regulated metal property or has been authorized to sell the regulated metal property being sold;
(7) A signed statement from the seller stating that he or she understands that: “A secondary metals recycler is any person who is engaged, from a fixed location or otherwise, in the business in this state of paying compensation for regulated metal property that has served its original economic purpose, whether or not engaged in the business of performing the manufacturing process by which regulated metal property is converted into raw material products consisting of prepared grades and having an existing or potential economic value. No ferrous metals, nonferrous metals, aluminum property, copper property, or catalytic converters (aluminum beverage containers, used beverage containers, or similar beverage containers are exempt) may be purchased by a secondary metals recycler unless such secondary metals recycler is registered pursuant to Article 14 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated”;
(8) A scanned or photocopied copy of a valid personal identification card of the seller and of the deliverer, if such person is different from the seller;
(9) The type of and distinctive number from the personal identification card of the seller and of the deliverer, if such person is different from the seller;
(10) The name and date of birth of the seller and of the deliverer, if such person is different from the seller;
(11) A photograph, videotape, or digital recording depicting a recognizable facial image of the seller and of the deliverer, if such person is different from the seller, employing technology allowing the image to be retained in electronic storage and in a transferable format;
(12) The vehicle license tag number or vehicle identification number, state of issue, and the make, model, and color of the vehicle used to deliver the regulated metal property to the secondary metals recycler; and
(13) A scanned or photocopied copy of the verifiable documentation, reports, licenses, certificates, and registrations required pursuant to Code Sections 10-1-351 and 10-1-352.
(b) A secondary metals recycler shall maintain or cause to be maintained the information required by subsection (a) of this Code section for not less than two years from the date of the purchase transaction.
(c) When the regulated metal property being purchased is a vehicle, the secondary metals recycler shall:
(1) If Code Section 40-3-36 is applicable, purchase such vehicle in compliance with such Code section and shall not be required to maintain a record of the purchase transaction as provided in subsection (a) of this Code section or to provide such record to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5; or
(2) If Code Section 40-3-36 is not applicable, maintain a record of such purchase transaction as provided in subsection (a) of this Code section and provide such record to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
(d) It shall be a violation of this article to sign the statement required by either paragraph (6) or (7) of subsection (a) of this Code section knowing it to be false, and such violation shall subject the seller to the civil and criminal liability provided in Code Section 10-1-359.2.
During the usual and customary business hours of a secondary metals recycler, a law enforcement officer shall, after properly identifying himself or herself as a law enforcement officer, have the right to inspect:
(1) Any and all regulated metal property in the possession of the secondary metals recycler; and
(2) Any and all records required to be maintained under Code Section 10-1-353.
<Text of section effective Jan. 1, 2024 until Jan. 1, 2026. See, also, text of sections 10-1-355 effective until Jan. 1, 2024 and effective Jan. 1, 2026.>
(a) A secondary metals recycler shall pay only by check, electronic funds transfer, cash, or voucher for regulated metal property and shall make any such payment as specifically provided for in this Code section.
(b) Any check, electronic funds transfer, or voucher shall be payable only to the person recorded as the seller of the regulated metal property to the secondary metals recycler.
(c) Any voucher shall be provided to the seller at the time of the purchase transaction or mailed to the seller at the address indicated on the personal identification card of the seller presented at the time of such transaction. If the voucher is provided to the seller at the time of the purchase transaction and not mailed to the seller, the secondary metals recycler shall not redeem the voucher for three days from the date of the purchase transaction. The voucher shall include the date of purchase, name of the seller, the amount paid for the regulated metal property, a detailed description of the regulated metal property purchased, information as to whether the voucher was mailed or provided at the time of the purchase transaction, the first date on which the voucher may be redeemed, and the date on which the voucher expires. The voucher may only be redeemed for cash by the person whose name appears on the voucher as the seller or by such person's heirs or legal representative. If a voucher is not redeemed by the person whose name appears on the voucher as the seller or by such person's heirs or legal representative within six months of the date of the transaction, the voucher shall expire and the secondary metals recycler shall not be required to honor the voucher after the expiration date.
(d) No secondary metals recycler shall:
(1) Pay to any seller more than $100.00 in cash for any transaction or complete more than two transactions per seller, per day, per registered secondary metals recycler location;
(2) Pay cash to any seller for used, detached catalytic converters or coils;
(3) Pay cash to any seller for used utility wire;
(4) Pay cash to any seller for used communications copper;
(5) Pay cash to any seller for copper wire; or
(6) Pay cash to any seller for a battery.
(e) A secondary metals recycler shall be prohibited from: (1) redeeming or cashing any check or electronic funds transfer paid to a seller for regulated metal property; and (2) providing or permitting any mechanism on the premises of the secondary metals recycler for the redemption or cashing of any check or electronic funds transfer.
(f) The provisions of this Code section shall not apply to any transaction, other than a transaction related to used, detached catalytic converters, between business entities.
(a) Whenever a law enforcement officer has reasonable cause to believe that any item of regulated metal property in the possession of a secondary metals recycler has been stolen, the law enforcement officer may issue a hold notice to the secondary metals recycler. The hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metal property that are believed to have been stolen and that are subject to the notice, and shall inform the secondary metals recycler of the information contained in this Code section. Upon receipt of the notice issued in accordance with this Code section, the secondary metals recycler receiving the notice shall not process or remove the items of regulated metal property identified in the notice, or any portion thereof, from the premises of or place of business of the secondary metals recycler for 15 calendar days after receipt of the notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
(b) No later than the expiration of the 15 day period, a law enforcement officer may issue a second hold notice to the secondary metals recycler, which shall be an extended hold notice. The extended hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metal property that are believed to have been stolen and that are subject to the extended hold notice, and shall inform the secondary metals recycler of the information contained in this Code section. Upon receipt of the extended hold notice issued in accordance with this Code section, the secondary metals recycler receiving the extended hold notice shall not process or remove the items of regulated metal property identified in the notice, or any portion thereof, from the premises of or place of business of the secondary metals recycler for 30 calendar days after receipt of the extended hold notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
(c) At the expiration of the hold period or, if extended in accordance with this Code section, at the expiration of the extended hold period, the hold is automatically released and the secondary metals recycler may dispose of the regulated metal property unless other disposition has been ordered by a court of competent jurisdiction.
(a) If the secondary metals recycler contests the identification or ownership of the regulated metal property, the party other than the secondary metals recycler claiming ownership of any regulated metal property in the possession of a secondary metals recycler may, provided that a timely report of the theft of the regulated metal property was made to the proper authorities, bring an action in the superior or state court of the county in which the secondary metals recycler is located. The petition for such action shall include a description of the means of identification of the regulated metal property utilized by the petitioner to determine ownership of the regulated metal property in the possession of the secondary metals recycler.
(b) When a lawful owner recovers stolen regulated metal property from a secondary metals recycler who has complied with the provisions of this article, and the seller or deliverer is convicted of theft by taking, theft by conversion, a violation of this article, theft by receiving stolen property, or criminal damage to property in the first degree, the court shall order the defendant to make full restitution, including, without limitation, attorneys' fees, court costs, and other expenses to the secondary metals recycler or lawful owner, as appropriate.
This article shall not apply to purchases of regulated metal property, other than used, detached catalytic converters, from:
(1) Organizations, corporations, or associations registered with the state as charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school-sponsored organizations or associations or from any nonprofit corporations or associations;
(2) A law enforcement officer acting in an official capacity;
(3) A trustee in bankruptcy, executor, administrator, or receiver who has presented proof of such status to the secondary metals recycler;
(4) Any public official acting under judicial process or authority who has presented proof of such status to the secondary metals recycler;
(5) A sale on the execution, or by virtue, of any process issued by a court if proof thereof has been presented to the secondary metals recycler; or
(6) A manufacturing, industrial, or other commercial vendor that generates and sells regulated metal property in the ordinary course of its business, provided that such vendor is not a secondary metals recycler.
The provisions of this article shall not apply to a vehicle purchased in compliance with Code Section 40-3-36 by a used motor vehicle dealer or used motor vehicle parts dealer licensed pursuant to Chapter 47 of Title 43.
It shall be unlawful for:
(1) A secondary metals recycler to engage in the purchase or sale of regulated metal property between the hours of 7:00 P.M. and 7:00 A.M.; and
(2) Any person to give a false or altered personal identification card, vehicle license tag number, or vehicle identification number to a secondary metals recycler as part of a purchase transaction.
(a) It shall be unlawful for any secondary metals recycler to purchase regulated metal property in any amount without being registered pursuant to this Code section. If the secondary metals recycler is a person other than an individual, such person shall register with the sheriff of each county in which the secondary metals recycler maintains a place of business. If the secondary metals recycler is an individual, he or she shall register with the sheriff of the county in which he or she resides or if such individual is a nonresident of this state, he or she shall register with the sheriff of the county in Georgia where he or she primarily engages or intends to primarily engage in business as a secondary metals recycler. The secondary metals recycler shall declare on a form promulgated by the Secretary of State and provided by the sheriff that such secondary metals recycler is informed of and will comply with the provisions of this article. The forms and information required for such registration shall be promulgated by the Secretary of State. The sheriff shall register the secondary metals recycler and shall keep a record of each registration. Each registration shall be valid for a 12 month period beginning January 1, 2024, and shall be renewed annually by January 1 of each year.
(b) The record of each registration shall be entered into an electronic data base accessible state wide. Such data base shall be established through coordination with the Secretary of State and shall be searchable by all law enforcement agencies in this state.
(c) The sheriff shall be authorized to:
(1) Assess and require payment of $200.00 for a new registration and an annual registration renewal for a secondary metals recycler;
(2) If applicable, require a secondary metals recycler to submit a current and valid business license in the county or municipality that is associated with the address on the registration form prior to approving the registration or registration renewal;
(3) Require the registered agent of a secondary metals recycler to submit to a criminal background check and fingerprinting for a new registration with the costs paid by the secondary metals recycler in an amount not to exceed $75.00;
(4) Deny the new registration or registration renewal of a secondary metals recycler if such person's registration has been revoked in another Georgia county, information submitted on the registration form has been determined to be invalid or false, or it is determined by the criminal background check that such person has been convicted of a felony offense under this article more than three times in the previous five years;
(5) Revoke the registration of a secondary metals recycler's registered agent if the registered agent has been convicted of a felony offense in the previous five years under this article while serving as a registered agent;
(6) Require secondary metals recyclers to provide on the registration form the customer identification number for the current data base contractor maintained by the Georgia Bureau of Investigation;
(7) Require a secondary metals recycler to submit a signed and sworn statement that such person has not had such secondary metals recycler's registration or business license revoked during the previous year and that the registered agent has not been convicted of a metal theft offense in the previous year;
(8) Delegate to personnel in the sheriff's office the registration of secondary metals recyclers and entering into the data base of the records of such registrations; and
(9) Enter into contracts with the governing authority of a county, municipality, or consolidated government for such governing authority to provide for the registration of secondary metals recyclers and the entering into the data base of the records of such registrations by other law enforcement agencies or by staff of the governing authority. Any such contract shall provide for reimbursement to such governing authority for the registrations or entry of the records of such registrations into the data base.
(d) A secondary metals recycler's registered agent shall be ineligible to obtain a new registration or registration renewal if such person is under indictment for a felony offense for violation of this article or has been convicted of a felony offense in the past five years under this article.
(e) Any secondary metals recycler convicted of violating this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
(a) Except as provided for in subsection (e) of Code Section 10-1-359.1, any person who buys or sells regulated metal property in violation of any provision of this article:
(1) For a first offense, shall be guilty of a misdemeanor;
(2) For a second offense, shall be guilty of a misdemeanor of a high and aggravated nature; and
(3) For a third or subsequent offense or when such regulated metal property is unlawfully obtained and results in property damage exceeding $1,500.00, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years.
Each unlawfully possessed or obtained used, detached catalytic converter, as such term is defined in subsection (d) of Code Section 10-1-351, shall be considered a separate offense under this Code section.
(b) Any person who buys or sells regulated metal property in violation of any provision of this article shall be liable in a civil action to any person who was the victim of a crime involving such regulated metal property for the full value of the regulated metal property, any repairs and related expenses incurred as a result of such crime, litigation expenses, and reasonable attorneys' fees.
(a) As used in this Code section, the term:
(1) “Crime” means:
(A) Theft by taking in violation of Code Section 16-8-2, theft by conversion in violation of Code Section 16-8-4, or theft by receiving stolen property in violation of Code Section 16-8-7 if the subject of the theft was regulated metal property;
(B) Criminal damage to property in the first degree in violation of paragraph (2) of subsection (b) of Code Section 16-7-22; or
(C) A criminal violation of this article.
(2) “Proceeds” shall have the same meaning as set forth in Code Section 16-13-49.
(3) “Property” shall have the same meaning as set forth in Code Section 16-13-49.
(b) The following are declared to be contraband, and no person shall have a property right in them:
(1) Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a crime and any proceeds derived or realized therefrom;
(2) Any weapon possessed, used, or available for use in any manner to facilitate a crime; and
(3) Any used, detached catalytic converter, as such term is defined in subsection (d) of Code Section 10-1-351, possessed in violation of subsection (d) of Code Section 10-1-351 and any vehicle used in the transportation of such used, detached catalytic converter, provided that any civil forfeiture proceedings for any vehicle seized pursuant to this subsection, including the reporting requirements set forth in Code Section 9-16-7, shall be stayed during the pendency of criminal proceedings unless otherwise agreed to by the owner or interest holder of such vehicle.
(c) Any property subject to forfeiture pursuant to subsection (b) of this Code section shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
(a) The General Assembly finds that this article is a matter of state-wide concern. This article supersedes and preempts all rules, regulations, codes, ordinances, and other laws adopted by any county, municipality, consolidated government, or other local governmental agency regarding the sale or purchase of regulated metal property except as allowed in this Code section.
(b) Political subdivisions of this state may enact rules, regulations, codes, ordinances, and other laws:
(1) Affecting the land use and zoning relating to secondary metals recyclers; and
(2) Issuing occupational tax certificates to secondary metals recyclers, imposing occupational taxes, imposing regulatory fees as allowed in Code Section 48-13-9, or revoking their occupational tax certificates.
(a)(1) Each secondary metals recycler shall provide to the Georgia Bureau of Investigation or its designee for each purchase transaction which takes place on or after July 1, 2015, all of the information required by subsection (a) of Code Section 10-1-353, except for the amount of consideration given in a purchase transaction for the regulated metal property specified in paragraph (5) of subsection (a) of such Code section, and a statement as to whether such secondary metals recycler's registration or business license has been revoked, suspended, or canceled in the previous year. A secondary metals recycler who maintains on file with the Georgia Bureau of Investigation or its designee a copy of the statement forms such secondary metals recycler requires each seller to sign pursuant to paragraphs (6) and (7) of subsection (a) of Code Section 10-1-353 may satisfy the requirements of such paragraphs by providing to the Georgia Bureau of Investigation or its designee a copy of the individual seller's signature and shall not be required to provide the actual statement signed by each seller, provided the actual statements are maintained by the secondary metals recycler pursuant to subsection (b) of Code Section 10-1-353 and available for inspection pursuant to Code Section 10-1-354. The information required to be provided by the secondary metals recyclers to the Georgia Bureau of Investigation or its designee pursuant to this subsection shall be provided electronically.
(2) Each secondary metals recycler shall electronically submit to the Georgia Bureau of Investigation a record of the receipt of each purchase of a used, detached catalytic converter as defined in subsection (d) of Code Section 10-1-351, or any nonferrous metal parts of a catalytic converter, from an industrial account or a secondary metals recycler. Such report shall include:
(A) The name and address of the seller;
(B) The date, time, and place of the transaction; and
(C) The number of used, detached catalytic converters or pounds of catalyst metal purchased.
(b) The Georgia Bureau of Investigation or its designee shall establish and maintain a data base of all information required to be provided pursuant to subsection (a) of this Code section. Such information shall be considered to be a trade secret and shall be exempt from disclosure under the provisions of Article 4 of Chapter 18 of Title 50; provided, however, that such exemption shall not relieve the secondary metals recycler of the obligation or requirement to provide such information to the Georgia Bureau of Investigation or its designee.
(c) The data base shall be accessible and searchable by:
(1) All law enforcement agencies in this state; and
(2) Employees of electric suppliers, as defined in Code Section 46-3-3, and employees of telecommunications companies, as defined in Code Section 46-5-162, provided that such employees have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the “Georgia Peace Officer Standards and Training Act.”
(d)(1) It shall be unlawful to use the data base established pursuant to subsection (b) of this Code section for any purpose other than the investigation of an alleged crime.
(2) Any person who violates or conspires to violate paragraph (1) of this subsection shall be guilty of a felony and, upon conviction, shall receive the following punishment:
(A) Upon a first conviction, imprisonment for not less than one nor more than five years or a fine of not more than $5,000.00, or both; or
(B) Upon a second or subsequent conviction, imprisonment for not less than five nor more than ten years or a fine of not more than $40,000.00, or both.
(e) The Georgia Bureau of Investigation shall promulgate rules and regulations and establish procedures necessary to carry into effect, implement, and enforce the provisions of this Code section and ensure compliance with applicable federal and state laws. Such rules and regulations shall include, but shall not be limited to:
(1) The time, manner, and method of the transmittal of the information by the secondary metals recyclers to the Georgia Bureau of Investigation;
(2) The manner and method by which employees of electric suppliers and telecommunications companies may access and search the data base and any prerequisites thereto; and
(3) The specific information the employees of the electric suppliers and telecommunications companies may access and search within the data base.
(a) As used in this Code section, the term:
(1)(A) “Flea market” means any event:
(i) At which two or more persons offer personal property for sale or exchange; and
(ii) At which a fee is charged for the privilege of offering or displaying personal property for sale or exchange; or
(iii) At which a fee is charged to prospective buyers for admission to the area where personal property is offered or displayed for sale or exchange; or
(iv) Regardless of the number of persons offering or displaying personal property or the absence of fees, at which used personal property is offered or displayed for sale or exchange if the event is held more than six times in any 12 month period.
(B) The term “flea market” is interchangeable with and applicable to “swap meet,” “indoor swap meet,” or other similar terms regardless of whether these events are held inside a building or outside in the open. The primary characteristic is that these activities involve a series of sales sufficient in number, scope, and character to constitute a regular course of business.
(C) The term “flea market” shall not mean and shall not apply to:
(i) An event which is organized for the exclusive benefit of any community chest, fund, foundation, association, or corporation organized and operated for religious, educational, or charitable purposes, provided that no part of any admission fee or parking fee charged vendors or prospective purchasers or the gross receipts or net earnings from the sale or exchange of personal property, whether in the form of a percentage of the receipts or earnings, as salary, or otherwise, inures to the benefit of any private shareholder or person participating in the organization or conduct of the event; or
(ii) Any event at which all of the personal property offered for sale or displayed is new, and all persons selling, exchanging, or offering or displaying personal property for sale or exchange are manufacturers or licensed retail or wholesale merchants.
(2) “Nonregistered vendor” means a person who, without a certificate of registration issued by the state revenue commissioner pursuant to Chapter 8 of Title 48, engages in the retail sale of personal property to the general public.
(3) “Used personal property” includes personal property which has previously been sold or delivered to a retailer prior to being acquired by a vendor when the vendor's cost exceeds $50.00 per item.
(4) “Vendor” means a person who engages in the retail sale of personal property at a flea market.
(b) Every nonregistered vendor and vendor shall maintain a permanent record book in which shall be entered in ink and in legible English at the time any property is acquired for the purpose of retail sale:
(1) The date of the transaction;
(2) The name, age, and address of the person, corporation, or entity from whom the property was acquired, a description of the general appearance of any such person, and the distinctive number from such person's driver's license or other similar identification card;
(3) An identification and description of the property acquired including, if reasonably available, the serial, model, or other number and all identifying marks inscribed thereon;
(4) The price paid for such property; and
(5) The signature of the seller.
All entries shall appear in ink and shall be in chronological order. No blank lines may be left between entries. No obliterations, alterations, or erasures may be made. Corrections shall be made by drawing a line of ink through the entry without destroying the legibility. Such record book shall be open to the inspection of any law enforcement officer during the ordinary hours of business or at any reasonable time.
(c) The record of each purchase transaction provided for in this Code section shall be maintained for a period of not less than two years and shall be kept by the nonregistered vendor or vendor and made available during any period at which such person is open for business or is offering property for sale.
(d) Any nonregistered vendor or vendor required to maintain a record book under the provisions of this Code section who shall:
(1) Fail to make an entry of any material matter in his or her permanent record book;
(2) Make any false entry therein;
(3) Falsify, obliterate, destroy, or remove such record book from his or her place of business during any time such record book is required to be present;
(4) Refuse to allow any law enforcement officer to inspect his or her permanent record book or any goods or property in his or her possession during the ordinary hours of business or at any reasonable time; or
(5) Fail to maintain the records required by this Code section for at least two years
shall be guilty of a misdemeanor.
(e) This Code section shall apply to property purchased or acquired on or after July 1, 1994.
This article shall not apply to the following:
(1) The sale of a motor vehicle or trailer required to be registered or subject to a certificate of title law of this state;
(2) The sale of food products, agricultural products, or forestry products;
(3) Business conducted at any industry or association trade show;
(4) The sale of arts or crafts by the person who produced such arts or crafts.
Nothing in this article shall prohibit ordinances or resolutions by counties and municipal corporations which provide regulations that are as stringent or more stringent than the requirements of this article.
This part shall be known and may be cited as the “Uniform Deceptive Trade Practices Act.”
As used in this part, the term:
(1) “Article” means a product as distinguished from its trademark, label, or distinctive dress in packaging.
(2) “Certification mark” means a mark used in connection with the goods or services of a person other than the certifier to indicate geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of the goods or services or to indicate that the work or labor on the goods or services was performed by members of a union or other organization.
(3) “Collective mark” means a mark used by members of a cooperative, association, or other collective group or organization to identify goods or services and distinguish them from those of others or to indicate membership in the collective group or organization.
(4) “Mark” means a word, name, symbol, device, or any combination of the foregoing in any form or arrangement.
(5) “Person” means an individual, corporation, government, or governmental subdivision or agency, 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.
(6) “Service mark” means a mark used by a person to identify services and to distinguish them from the services of others.
(7) “Trademark” means a mark used by a person to identify goods and to distinguish them from the goods of others.
(8) “Trade name” means a word, name, symbol, device, or any combination of the foregoing in any form or arrangement used by a person to identify his business, vocation, or occupation and distinguish it from the business, vocation, or occupation of others.
(a) A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
(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 he 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 part, a complainant need not prove competition between the parties or actual confusion or misunderstanding.
(c) This Code section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.
(a) A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.
(b) Costs shall be allowed to the prevailing party unless the court otherwise directs. The court, in its discretion, may award attorney's fees to the prevailing party if:
(1) The party complaining of a deceptive trade practice has brought an action which he knew to be groundless; or
(2) The party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.
(c) The relief provided in this Code section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
(a) This part does not apply to:
(1) Conduct in compliance with the orders or rules of or a statute administered by a federal, state, or local governmental agency;
(2) Publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast, or reproduce material without knowledge of its deceptive character; or
(3) Actions or appeals pending on March 19, 1968.
(b) Paragraphs (2) and (3) of subsection (a) of Code Section 10-1-372 do not apply to the use of a service mark, trademark, certification mark, collective mark, trade name, or other trade identification that was used and not abandoned before March 19, 1968, if the use was in good faith and is otherwise lawful except for this part.
This part shall be construed to effectuate its general purpose to make uniform the law of those states which enact it.
As used in this article, the term “Attorney General” means the Attorney General or his or her designee.
(a) The Attorney General may file in the superior court of the county in which a person under order resides, or in the county in which the violation occurred, or, if the person is a corporation, in the county in which the corporation maintains its principal place of business, a certified copy of a final order issued pursuant to this article by the Attorney General which is unappealed from or a final order of an administrative law judge issued pursuant to this article which is unappealed from or a final order of an administrative law judge issued pursuant to this article which is affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by the court.
(b) The Attorney General may file in the superior court of the county in which the person obligated to pay funds over to the Attorney General resides, or in the county in which the violation or alleged violation occurred, or, if the person is a corporation, in the county in which the corporation maintains its principal place of business, a certified copy of any document under which funds are due to the Attorney General based on obligations created in the administration of this article, whether obtained through official action, compromise, settlement, assurance of voluntary compliance, or otherwise, and are delinquent according to the terms of the document creating the obligation, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by the court.
(c) The court shall specify that any funds to be collected under the judgment shall be disbursed by the Attorney General in accordance with the terms of the original order or in accordance with the terms of the original document creating the obligation, subject to the provisions of Code Section 10-1-382. Such funds may have been designated in the original order or in the original document to be applied to consumer restitution, to reimbursement of funds from which investigative expenses were paid, to civil penalties to be disbursed into the consumer preventive education plan, to civil penalties to be disbursed into the state general fund, or any combination thereof.
(d) In original orders or original documents the Attorney General may designate that civil penalties shall be applied to the consumer preventive education plan; in that event, such funds shall not be applied in an aggregate amount which is any greater than the amount of funds appropriated for the consumer preventive education plan. Any amount of civil penalties which exceeds the appropriation for the consumer preventive education plan shall be disbursed into the state general fund.
(e) All judgments obtained pursuant to this Code section shall be considered delinquent if unpaid 30 calendar days after the judgment is rendered.
(f) The Attorney General is authorized to establish a consumer preventive education plan.
In addition to any amount owed under a judgment rendered under Code Section 10-1-381 or 10-1-397, a delinquent party shall be responsible by operation of law for a collection fee equal to 40 percent of the amount of the judgment as if such collection fee had been included as part of the judgment. The Attorney General may contract with collection attorneys to collect all or any remaining part of such amounts due under a judgment rendered under Code Section 10-1-381 or 10-1-397. All funds collected by any such collection attorneys shall be remitted to the Attorney General for disbursement.
This part shall be known and may be cited as the “Fair Business Practices Act of 1975.”
(a) The purpose of this part shall be to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce in part or wholly in the state. It is the intent of the General Assembly that such practices be swiftly stopped, and this part shall be liberally construed and applied to promote its underlying purposes and policies.
(b) It is the intent of the General Assembly that this part be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended.
(a) As used in this part, the term:
(1) “Attorney General” means the Attorney General or his or her designee.
(2) “Campground membership” means any arrangement under which a purchaser has the right to use, occupy, or enjoy a campground membership facility.
(3) “Campground membership facility” means any campground facility at which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased the right periodically to use the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.
(4) “Career consulting firm” means any person providing services to an individual in conjunction with a career search and consulting program for the individual, including, but not limited to, counseling as to the individual's career potential, counseling as to interview techniques, and the identification of prospective employers. A “career consulting firm” shall not guarantee actual job placement as one of its services. A “career consulting firm” shall not include any person who provides these services without charging a fee to applicants for those services or any employment agent or agency regulated under Chapter 10 of Title 34.
(5) “Child support enforcement” means the action, conduct, or practice of enforcing a child support order issued by a court or other tribunal.
(6) “Consumer” means a natural person.
(7) “Consumer acts or practices” means acts or practices intended to encourage consumer transactions.
(8) “Consumer report” means any written or other communication of any information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, or credit capacity which is used or intended to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:
(A) Credit or insurance to be used primarily for personal, family, or household purposes; or
(B) Employment consideration.
(9) “Consumer reporting agency” or “agency” means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
(10) “Consumer transactions” means the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.
(11) “Department” means the Department of Human Services.
(12) “Documentary material” means the original or a copy, whether printed, filmed, or otherwise preserved or reproduced, by whatever process, including electronic data storage and retrieval systems, of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or record wherever situate.
(13) “Examination” of documentary material means inspection, study, or copying of any such material and the taking of testimony under oath or acknowledgment with respect to any such documentary material.
(14) “File” means, when used in connection with information on any consumer, all of the information on that consumer recorded or retained by a consumer reporting agency regardless of how the information is stored.
(14.1) “Food” means articles used for food or drink for human consumption, chewing gum, and articles used for components of any such article.
(15) “Going-out-of-business sale” means any offer to sell to the public or sale to the public of goods, wares, or merchandise on the implied or direct representation that such sale is in anticipation of the termination of a business at its present location or that the sale is being held other than in the ordinary course of business and includes, without being limited to, any sale advertised either specifically or in substance to be a sale because the person is going out of business, liquidating, selling his or her entire stock or 50 percent or more of his or her stock, selling out to the bare walls, selling because the person has lost his or her lease, selling out his or her interest in the business, or selling because everything in the business must be sold or that the sale is a trustee's sale, bankruptcy sale, save us from bankruptcy sale, insolvency sale, assignee's sale, must vacate sale, quitting business sale, receiver's sale, loss of lease sale, forced out of business sale, removal sale, liquidation sale, executor's sale, administrator's sale, warehouse removal sale, branch store discontinuance sale, creditor's sale, adjustment sale, or defunct business sale.
(16) “Health spa” means an establishment which provides, as one of its primary purposes, services or facilities which are purported to assist patrons to improve their physical condition or appearance through change in weight, weight control, treatment, dieting, or exercise. The term includes an establishment designated as a “reducing salon,” “health spa,” “spa,” “exercise gym,” “health studio,” “health club,” or by other terms of similar import. A health spa shall not include any of the following:
(A) Any nonprofit organization;
(B) Any facility wholly owned and operated by a licensed physician or physicians at which such physician or physicians are engaged in the actual practice of medicine; or
(C) Any such establishment operated by a health care facility, hospital, intermediate care facility, or skilled nursing care facility.
(16.1) “Kosher food disclosure statement” means a statement which:
(A) Discloses to consumers practices relating to the preparation, handling, and sale of any unpackaged food, or food packaged at the premises where it is sold to consumers, if the food is represented to be kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision; and
(B) Complies with the provisions of subsections (b) through (e) of Code Section 10-1-393.11.
(17) “Marine membership” means any arrangement under which a purchaser has a right to use, occupy, or enjoy a marine membership facility.
(18) “Marine membership facility” means any boat, houseboat, yacht, ship, or other floating facility upon which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased a right to use periodically, occupy, or enjoy the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.
(19) “Obligee” means a resident of this state who is identified in an order for child support issued by a court or other tribunal as the payee to whom an obligor owes child support.
(20) “Obligor” means a resident of this state who is identified in an order for child support issued by a court or other tribunal as required to make child support payments.
(21) “Office” means any place where business is transacted, where any service is supplied by any person, or where any farm is operated.
(22) “Office supplier” means any person who sells, rents, leases, or ships, or offers to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm.
(23) “Office supply transactions” means the sale, lease, rental, or shipment of, or offer to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm but shall not include transactions in which the goods, services, or property is purchased, leased, or rented by the office or farm for purposes of reselling them to other persons.
(24) “Person” means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.
(24.1) “Presealed kosher food package” means a food package which bears a kosher symbol insignia and is sealed by the manufacturer, processor, or wholesaler at premises other than the premises where the food is to be sold to the public.
(25) “Private child support collector” means an individual or nongovernmental entity that solicits and contracts directly with obligees to provide child support collection services for a fee or other compensation but shall not include attorneys licensed to practice law in this state unless such attorney is employed by a private child support collector.
(26) “Prize” means a gift, award, or other item intended to be distributed or actually distributed in a promotion.
(27) “Promotion” means any scheme or procedure for the promotion of consumer transactions whereby one or more prizes are distributed among persons who are required to be present at the place of business or are required to participate in a seminar, sales presentation, or any other presentation, by whatever name denominated, in order to receive the prize or to determine which, if any, prize they will receive. Promotions shall not include any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote if such condition is clearly and conspicuously disclosed in the promotional advertising and literature and the receipt of the prize does not involve an element of chance. Any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote or upon the payment of money and where the receipt of that prize involves an element of chance shall be deemed to be a lottery under Code Section 16-12-20; provided, however, that nothing in this definition shall be construed to include a lottery operated by the State of Georgia or the Georgia Lottery Corporation as authorized by law; provided, further, that any deposit made in connection with an activity described by subparagraph (b)(22)(B) of Code Section 10-1-393 shall not constitute the payment of money.
(27.1) “Representation regarding kosher food” means any direct or indirect statement, whether oral or written, including but not limited to an advertisement, sign, or menu and any letter, word, sign, emblem, insignia, or mark which could reasonably lead a consumer to believe that a representation is being made that the final food product sold to the consumer is kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision.
(28) “Trade” and “commerce” mean the advertising, distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services, or any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value wherever situate and shall include any trade or commerce directly or indirectly affecting the people of this state.
(b) An “intentional violation” occurs when the person committing the act or practice knew that his or her conduct was in violation of this part. Maintenance of an act or practice specifically designated as unlawful in subsection (b) of Code Section 10-1-393 after the Attorney General gives notice that the act or practice is in violation of the part shall be prima-facie evidence of intentional violation. For the purposes of this subsection, the Attorney General gives notice that an act or practice is in violation of this part by the adoption of specific rules promulgated pursuant to subsection (a) of Code Section 10-1-394 and by notice in writing to the alleged violator of a violation, if such written notice may be reasonably given without substantially or materially altering the purposes of this part; provided, however, that no presumption of intention shall arise in the case of an alleged violator who maintains a place of business within the jurisdiction of this state with sufficient assets to respond to a judgment under this part, unless such alleged violator has received written notice. The burden of showing no reasonable opportunity to give written notice shall be upon the Attorney General.
(a) Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.
(b) By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices are declared unlawful:
(1) Passing off goods or services as those of another;
(2) Causing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) Causing actual confusion or actual misunderstanding as to affiliation, connection, or association with or certification by another;
(4)(A) Using deceptive representations or designations of geographic origin in connection with goods or services. Without limiting the generality of the foregoing, it is specifically declared to be unlawful:
(i) For any nonlocal business to cause to be listed in any local telephone directory a local telephone number for the business if calls to the local telephone number are routinely forwarded or otherwise transferred to the nonlocal business location that is outside the calling area covered by such local telephone directory or to a toll-free number which does not have a local address and the listing fails to state clearly the principal place of business of the nonlocal business;
(ii) For any person operating a business to cause to be listed in any local telephone directory a toll-free number for the business if the listing fails to state clearly the principal place of business of such business; or
(iii) For any person to use an assumed or fictitious name in the conduct of such person's business, if the use of such name could reasonably be construed to be a misrepresentation of the geographic origin or location of such person's business.
(B) For purposes of this paragraph, the term:
(i) “Local” or “local area” means the area in which any particular telephone directory is distributed or otherwise provided free of charge to some or all telecommunications services subscribers.
(ii) “Local telephone directory” means any telecommunications services directory, directory assistance data base, or other directory listing which is distributed or otherwise provided free of charge to some or all telecommunications services subscribers in any area of this state and includes such directories distributed by telecommunications companies as well as such directories distributed by other parties.
(iii) “Local telephone number” means any telecommunications services number which is not clearly identifiable as a long-distance telecommunications services number and which has a three-number prefix typically used by the local telecommunications company for telecommunications services devices physically located within the local area.
(iv) “Nonlocal business” means any business which does not have within the local area a physical place of business providing the goods or services which are the subject of the advertisement or listing in question.
(v) “Telecommunications company” shall have the same meaning as provided in Code Section 46-5-162.
(vi) “Telecommunications services” shall have the same meaning as provided in Code Section 46-5-162.
(vii) “Telecommunications services subscriber” means a person or entity to whom telecommunications services, either residential or commercial, are provided;
(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, 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 goods, services, or business of another by false or misleading representation;
(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 concerning the reasons for, existence of, or amounts of price reductions;
(12) Failing to comply with the provisions of Code Section 10-1-393.2 concerning health spas;
(13) Failure to comply with the following provisions concerning career consulting firms:
(A) A written contract shall be employed which shall constitute the entire agreement between the parties, a fully completed copy of which shall be furnished to the consumer at the time of its execution which shows the date of the transaction and the name and address of the career consulting firm;
(B) The contract or an attachment thereto shall contain a statement in boldface type which complies substantially with the following:
“The provisions of this agreement have been fully explained to me and I understand that the services to be provided under this agreement by the seller do not include actual job placement.”
The statement shall be signed by both the consumer and the authorized representative of the seller;
(C) Any advertising offering the services of a career consulting firm shall contain a statement which contains the following language: “A career consulting firm does not guarantee actual job placement as one of its services.”;
(14) Failure of a hospital or long-term care facility to deliver to an inpatient who has been discharged or to his or her legal representative, not later than six business days after the date of such discharge, an itemized statement of all charges for which the patient or third-party payor is being billed;
(15) Any violation of 49 U.S.C. Sections 32702 through 32704 and any violation of regulations prescribed under 49 U.S.C. Section 32705. Notwithstanding anything in this part to the contrary, all such actions in violation of such federal statutes or regulations shall be consumer transactions and consumer acts or practices in trade or commerce;
(16) Failure to comply with the following provisions concerning promotions:
(A) For purposes of this paragraph, the term:
(i) “Conspicuously,” when referring to type size, means either a larger or bolder type than the adjacent and surrounding material.
(ii) “In conjunction with and in immediate proximity to,” when referring to a listing of verifiable retail value and odds for each prize, means that such value and odds must be adjacent to that particular prize with no other printed or pictorial matter between the value and odds and that listed prize.
(iii) “Notice” means a communication of the disclosures required by this paragraph to be given to a consumer that has been selected, or has purportedly been selected, to participate in a promotion. If the original notice is in writing, it shall include all of the disclosures required by this paragraph. If the original notice is oral, it shall include all of the disclosures required by this paragraph and shall be followed by a written notice to the consumer of the same disclosures. In all cases, written notice shall be received by the consumer before any agreement or other arrangement is entered into which obligates the consumer in any manner.
(iv) “Participant” means a person who is offered an opportunity to participate in a promotion.
(v) “Promoter” means the person conducting the promotion.
(vi) “Sponsor” means the person on whose behalf the promotion is conducted in order to promote or advertise the goods, services, or property of that person.
(vii) “Verifiable retail value,” when referring to a prize, means:
(I) The price at which the promoter or sponsor can substantiate that a substantial number of those prizes have been sold at retail by someone other than the promoter or sponsor; or
(II) In the event that substantiation as described in subdivision (I) of this division is not readily available to the promoter or sponsor, no more than three times the amount which the promoter or sponsor has actually paid for the prize.
(A.1) Persons who are offered an opportunity to participate in a promotion must be given a notice as required by this paragraph. The written notice must be given to the participant either prior to the person's traveling to the place of business or, if no travel by the participant is necessary, prior to any seminar, sales presentation, or other presentation, by whatever name denominated. Written notices may be delivered by hand, by mail, by newspaper, by periodical, or by electronic mail or any other form of electronic, digital, or Internet based communication. Any offer to participate made through any other medium must be preceded by or followed by the required notice at the required time. It is the intent of this paragraph that full, clear, and meaningful disclosure shall be made to the participant in a manner such that the participant can fully study and understand the disclosure prior to deciding whether to travel to the place of participation or whether to allow a presentation to be made in the participant's home; and that this paragraph be liberally construed to effect this purpose. The notice requirements of this paragraph shall be applicable to any promotion offer made by any person in the State of Georgia or any promotion offer made to any person in the State of Georgia;
(B) The promotion must be an advertising and promotional undertaking, in good faith, solely for the purpose of advertising the goods, services, or property, real or personal, of the sponsor. The notice shall contain the name and address of the promoter and of the sponsor, as applicable. The promoter and the sponsor may be held liable for any failure to comply with the provisions of this paragraph;
(C) A promotion shall be a violation of this paragraph if a person is required to pay any money including, but not limited to, payments for service fees, mailing fees, or handling fees payable to the sponsor or seller or furnish any consideration for the prize, other than the consideration of traveling to the place of business or to the presentation or of allowing the presentation to be made in the participant's home, in order to receive any prize; provided, however, that the payment of any deposit made in connection with an activity described in subparagraph (B) of paragraph (22) of this subsection shall not constitute a requirement to pay any money under this subparagraph;
(D) Each notice must state the verifiable retail value of each prize which the participant has a chance of receiving. Each notice must state the odds of the participant's receiving each prize if there is an element of chance involved. The odds must be clearly identified as “odds.” Odds must be stated as the total number of that particular prize which will be given and of the total number of notices. The total number of notices shall include all notices in which that prize may be given, regardless of whether it includes notices for other sponsors. If the odds of winning a particular prize would not be accurately stated on the basis of the number of notices, then the odds may be stated in another manner, but must be clearly stated in a manner which will not deceive or mislead the participant regarding the participant's chance of receiving the prize. The verifiable retail value and odds for each prize must be stated in conjunction and in immediate proximity with each listing of the prize in each place where it appears on the written notice and must be listed in the same size type and same boldness as the prize. Odds and verifiable retail values may not be listed in any manner which requires the participant to refer from one place in the written notice to another place in the written notice to determine the odds and verifiable retail value of the particular prize. Verifiable retail values shall be stated in Arabic numerals;
(E) Upon arriving at the place of business or upon allowing the sponsor to enter the participant's home, the participant must be immediately informed which, if any, prize the participant will receive prior to any seminar, sales presentation, or other presentation; and the prize, or any voucher, certificate, or other evidence of obligation in lieu of the prize, must be given to the participant at the time the participant is so informed;
(F) No participant shall be required or invited to view, hear, or attend any sales presentation, by whatever name denominated, unless such requirement or invitation has been conspicuously disclosed to the participant in the written notice in at least ten-point boldface type;
(G) Except in relation to an activity described in subparagraph (B) of paragraph (22) of this subsection, in no event shall any prize be offered or given which will require the participant to purchase additional goods or services, including shipping fees, handling fees, or any other charge by whatever name denominated, from any person in order to make the prize conform to what it reasonably appears to be in the mailing or delivery, unless such requirement and the additional cost to the participant is clearly disclosed in each place where the prize is listed in the written notice using a statement in the same size type and boldness as the prize listed;
(H) Any limitation on eligibility of participants must be clearly disclosed in the notice;
(I) Substitutes of prizes shall not be made. In the event the represented prize is unavailable, the participant shall be presented with a certificate which the sponsor shall honor within 30 days by shipping the prize, as represented in the notice, to the participant at no cost to the participant. In the event a certificate cannot be honored within 30 days, the sponsor shall mail to the participant a valid check or money order for the verifiable retail value which was represented in the notice;
(J) In the event the participant is presented with a voucher, certificate, or other evidence of obligation as the participant's prize, or in lieu of the participant's prize, it shall be the responsibility of the sponsor to honor the voucher, certificate, or other evidence of obligation, as represented in the notice, if the person who is named as being responsible for honoring the voucher, certificate, or other evidence of obligation fails to honor it as represented in the notice;
(K) The geographic area covered by the notice must be clearly stated. If any of the prizes may be awarded to persons outside of the listed geographical area or to participants in promotions for other sponsors, these facts must be clearly stated, with a corresponding explanation that every prize may not be given away by that particular sponsor. If prizes will not be awarded or given if the winning ticket, token, number, lot, or other device used to determine winners in that particular promotion is not presented to the promoter or sponsor, this fact must be clearly disclosed;
(L) Upon request of the Attorney General, the sponsor or promoter must within ten days furnish to the Attorney General the names, addresses, and telephone numbers of persons who have received any prize;
(M) A list of all winning tickets, tokens, numbers, lots, or other devices used to determine winners in promotions involving an element of chance must be prominently posted at the place of business or distributed to all participants if the seminar, sales presentation, or other presentation is made at a place other than the place of business. A copy of such list shall be furnished to each participant who so requests;
(N) Any promotion involving an element of chance which does not conform with the provisions of this paragraph shall be considered an unlawful lottery as defined in Code Section 16-12-20. Except as provided in Code Section 16-12-35 and Article 3 of Chapter 27 of Title 50, any promotion involving an element of chance which involves the playing of a game on a computer, mechanical device, or electronic device at a place of business in this state shall be considered an unlawful lottery as defined in Code Section 16-12-20 and shall not be permitted under this chapter. Any promotion involving the playing of a no-skill game on a computer, mechanical device, or electronic device at a place of business in this state shall be considered an unlawful lottery as defined in Code Section 16-12-20. The Attorney General may prosecute persons who promote and sponsor promotions which constitute an unlawful lottery or may seek and shall receive the assistance of the prosecuting attorneys of this state in the commencement and prosecution of such persons;
(N.1) All prizes offered and awarded shall be noncash prizes only and shall not be redeemable for cash;
(O) Any person who participates in a promotion and does not receive an item which conforms with what that person, exercising ordinary diligence, reasonably believed that person should have received based upon the representations made to that person may bring the private action provided for in Code Section 10-1-399 and, if that person prevails, shall be awarded, in addition to any other recovery provided under this part, a sum which will allow that person to purchase an item at retail which reasonably conforms to the prize which that person, exercising ordinary diligence, reasonably believed that person would receive; and
(P) In addition to any other remedy provided under this part, where a contract is entered into while participating in a promotion which does not conform with this paragraph, the contract shall be voidable by the participant for ten business days following the date of the participant's receipt of the prize. In order to void the contract, the participant must notify the sponsor in writing within ten business days following the participant's receipt of the prize;
(17) Failure to furnish to the buyer of any campground membership or marine membership at the time of purchase a notice to the buyer allowing the buyer seven days to cancel the purchase. The notice shall be on a separate sheet of paper with no other written or pictorial material, in at least ten-point boldface type, double spaced, and shall read as follows:
“Notice to the Buyer
Please read this form completely and carefully. It contains valuable cancellation rights.
The buyer or buyers may cancel this transaction at any time prior to 5:00 P.M. of the seventh day following receipt of this notice.
This cancellation right cannot be waived in any manner by the buyer or buyers.
Any money paid by the buyer or buyers must be returned by the seller within 30 days of cancellation.
To cancel, sign this form, and mail by certified mail or statutory overnight delivery, return receipt requested, by 5:00 P.M. of the seventh day following the transaction. Be sure to keep a photocopy of the signed form and your post office receipt.
| | _____________________________________________ | | --- | --- | | | Seller's Name | | | _____________________________________________ | | | Address to which cancellation is to be mailed | | | _____________________________________________ | | | I (we) hereby cancel this transaction. | | | _____________________________________________ | | | Buyer's Signature | | | _____________________________________________ | | | Buyer's Signature | | | _____________________________________________ | | | Date | | | _____________________________________________ | | | Printed Name(s) of Buyer(s) | | | _____________________________________________ | | | Street Address | | | _____________________________________________ | | | City, State, ZIP Code” |
(18) Failure of the seller of a campground membership or marine membership to fill in the seller's name and the address to which cancellation notices should be mailed on the form specified in paragraph (17) of this subsection;
(19) Failure of the seller of a campground membership or marine membership to cancel according to the terms specified in the form described in paragraph (17) of this subsection;
(20)(A) Representing that moneys provided to or on behalf of a debtor, as defined in Code Section 44-14-162.1 in connection with property used as a dwelling place by said debtor, are a loan if in fact they are used to purchase said property and any such misrepresentation upon which is based the execution of a quitclaim deed or warranty deed by that debtor shall authorize that debtor to bring an action to reform such deed into a deed to secure debt in addition to any other right such debtor may have to cancel the deed pursuant to Code Section 23-2-2, 23-2-60, or any other applicable provision of law.
(B) Advertising to assist debtors whose loan for property the debtors use as a dwelling place is in default with intent not to assist them as advertised or making false or misleading representations to such a debtor about assisting the debtor in connection with said property.
(C) Failing to comply with the following provisions in connection with the purchase of property used as a dwelling place by a debtor whose loan for said property is in default and who remains in possession of this property after said purchase:
(i) A written contract shall be employed by the buyer which shall summarize and incorporate the entire agreement between the parties, a fully completed copy of which shall be furnished to the debtor at the time of its execution. Said contract shall show the date of the transaction and the name and address of the parties; shall state, in plain and bold language, that the subject transaction is a sale; and shall indicate the amount of cash proceeds and the amount of any other financial benefits that the debtor will receive;
(ii) This contract shall contain a statement in boldface type which complies substantially with the following:
“The provisions of this agreement have been fully explained to me. I understand that under this agreement I am selling my house to the other undersigned party.”
This statement shall be signed by the debtor and the buyer;
(iii) If a lease or rental agreement is executed in connection with said sale, it shall set forth the amount of monthly rent and shall state, in plain and bold language, that the debtor may be evicted for failure to pay said rent. Should an option to purchase be included in this lease, it shall state, in plain and bold language, the conditions that must be fulfilled in order to exercise it; and
(iv) The buyer shall furnish to the seller at the time of closing a notice to the seller allowing the seller ten days to cancel the purchase. This right to cancel shall not limit or otherwise affect the seller's right to cancel pursuant to Code Section 23-2-2, 23-2-60, or any other applicable provision of law. The notice shall serve as the cover sheet to the closing documents. It shall be on a separate sheet of paper with no other written or pictorial material, in at least ten-point boldface type, double spaced, and shall read as follows:
“Notice to the Seller
Please read this form completely and carefully. It contains valuable cancellation rights.
The seller or sellers may cancel this transaction at any time prior to 5:00 P.M. of the tenth day following receipt of this notice.
This cancellation right cannot be waived in any manner by the seller or sellers.
Any money paid to the seller or sellers must be returned by the seller within 30 days of cancellation.
To cancel, sign this form, and return it to the buyer by 5:00 P.M. of the tenth day following the transaction. It is best to mail it by certified mail or statutory overnight delivery, return receipt requested, and to keep a photocopy of the signed form and your post office receipt.
| | _____________________________________________ | | --- | --- | | | Buyer's name | | | _____________________________________________ | | | Address to which cancellation is to be returned. | | | _____________________________________________ | | | I (we) hereby cancel this transaction. | | | _____________________________________________ | | | Seller's Signature | | | _____________________________________________ | | | Seller's Signature | | | _____________________________________________ | | | Date | | | _____________________________________________ | | | Printed name(s) of seller(s) | | | _____________________________________________ | | | Street address | | | _____________________________________________ | | | City, State, ZIP Code” |
(D) The provisions of subparagraph (C) of this paragraph shall only apply where all three of the following conditions are present:
(i) A loan on the property used as a dwelling place is in default;
(ii) The debtor transfers the title to the property by quitclaim deed, limited warranty deed, or general warranty deed; and
(iii) The debtor remains in possession of the property under a lease or as a tenant at will;
(21) Advertising a telephone number the prefix of which is 976 and which when called automatically imposes a per-call charge or cost to the consumer, other than a regular charge imposed for long-distance telephone service, unless the advertisement contains the name, address, and telephone number of the person responsible for the advertisement and unless the person's telephone number and the per-call charge is printed in type of the same size as that of the number being advertised;
(22) Representing, in connection with a vacation, holiday, or an item described by terms of similar meaning, or implying that:
(A) A person is a winner, has been selected or approved, or is in any other manner involved in a select or special group for receipt of an opportunity or prize, or that a person is entering a contest, sweepstakes, drawing, or other competitive enterprise from which a winner or select group will receive an opportunity or prize, when in fact the enterprise is designed to make contact with prospective customers, or in which all or a substantial number of those entering such competitive enterprise receive the same prize or opportunity; or
(B) In connection with the types of representations referred to in subparagraph (A) of this paragraph, representing that a vacation, holiday, or an item described by other terms of similar meaning, is being offered, given, awarded, or otherwise distributed unless:
(i) The item represented includes all transportation, meals, and lodging;
(ii) The representation specifically describes any transportation, meals, or lodging which is not included; or
(iii) The representation discloses that a deposit is required to secure a reservation, if that is the case.
The provisions of this paragraph shall not apply where the party making the representations is in compliance with paragraph (16) of this subsection;
(23) Except in relation to an activity which is in compliance with paragraph (16) or (22) of this subsection, stating, in writing or by telephone, that a person has won, is the winner of, or will win or receive anything of value, unless the person will receive the prize without obligation;
(24)(A) Conducting a going-out-of-business sale for more than 90 days.
(B) After the 90 day time limit in subparagraph (A) of this paragraph has expired, continuing to do business in any manner contrary to any representations which were made regarding the nature of the going-out-of-business sale.
(C) The prohibitions of this paragraph shall not extend to any of the following:
(i) Sales for the estate of a decedent by the personal representative or the personal representative's agent, according to law or by the provisions of the will;
(ii) Sales of property conveyed by security deed, deed of trust, mortgage, or judgment or ordered to be sold according to the deed, mortgage, judgment, or order;
(iii) Sales of all agricultural produce and livestock arising from the labor of the seller or other labor under the seller's control on or belonging to the seller's real or personal estate and not purchased or sold for speculation;
(iv) All sales under legal process;
(v) Sales by a pawnbroker or loan company which is selling or offering for sale unredeemed pledges of chattels as provided by law; or
(vi) Sales of automobiles by an auctioneer licensed under the laws of the State of Georgia;
(25) The issuance of a check or draft by a lender in connection with a real estate transaction in violation of Code Section 44-14-13;
(26) With respect to any individual or facility providing personal care services or assisted living care:
(A) Any person or entity not duly licensed or registered as a personal care home or assisted living community formally or informally offering, advertising to, or soliciting the public for residents or referrals; or
(B) Any personal care home, as defined in subsection (a) of Code Section 31-7-12, or any assisted living community, as defined in Code Section 31-7-12.2, offering, advertising, or soliciting the public to provide services:
(i) Which are outside the scope of personal care services or assisted living care, respectively; and
(ii) For which it has not been specifically authorized.
Nothing in this subparagraph prohibits advertising by a personal care home or assisted living community for services authorized by the Department of Community Health under a waiver or variance pursuant to subsection (b) of Code Section 31-2-7.
For purposes of this paragraph, “personal care” means protective care and watchful oversight of a resident who needs a watchful environment but who does not have an illness, injury, or disability which requires chronic or convalescent care including medical and nursing services, and “assisted living care” includes services provided for in Code Section 31-7-12.2. The provisions of this paragraph shall be enforced following consultation with the Department of Community Health which shall retain primary responsibility for issues relating to licensure of any individual or facility providing personal care services;
(27) Mailing any notice, notification, or similar statement to any consumer regarding winning or receiving any prize in a promotion, and the envelope or other enclosure for the notice fails to conspicuously identify on its face that the contents of the envelope or other enclosure is a commercial solicitation and, if there is an element of chance in winning a prize, the odds of winning as “odds”;
(28) Any violation of the rules and regulations promulgated by the Department of Driver Services pursuant to subsection (e) of Code Section 40-5-83 which relates to the consumer transactions and business practices of DUI Alcohol or Drug Use Risk Reduction Programs, except that the Department of Driver Services shall retain primary jurisdiction over such complaints;
(29) With respect to any consumer reporting agency:
(A) Any person who knowingly and willfully obtains information relative to a consumer from a consumer reporting agency under false pretenses shall be guilty of a misdemeanor;
(B) Any officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be guilty of a misdemeanor; and
(C) Each consumer reporting agency which compiles and maintains files on consumers on a nation-wide basis shall furnish to any consumer who has provided appropriate verification of his or her identity two complete consumer reports per calendar year, upon request and without charge;
(29.1) With respect to any credit card issuer:
(A) A credit card issuer who mails an unsolicited offer or solicitation to apply for a credit card and who receives by mail a completed application in response to the solicitation which lists an address that is not substantially the same as the address on the solicitation may not issue a credit card based on that application until steps have been taken to verify the applicant's valid address to the same extent required by regulations prescribed pursuant to subsection (l) of 31 U.S.C. Section 5318. Any person who violates this paragraph commits an unlawful practice within the meaning of this Code section; and
(B) Notwithstanding subparagraph (A) of this paragraph, a credit card issuer, upon receiving an application, may issue a credit card to a consumer or commercial customer with whom it already has a business relationship provided the address to which the card is mailed is a valid address based upon information in the records of the credit card issuer or its affiliates;
(30) With respect to any individual or facility providing home health services:
(A) For any person or entity not duly licensed by the Department of Community Health as a home health agency to regularly hold itself out as a home health agency; or
(B) For any person or entity not duly licensed by the Department of Community Health as a home health agency to utilize the words “home health” or “home health services” in any manner including but not limited to advertisements, brochures, or letters. Unless otherwise prohibited by law, nothing in this subparagraph shall be construed to prohibit persons or entities from using the words “home health” or “home health services” in conjunction with the words “equipment,” “durable medical equipment,” “pharmacy,” “pharmaceutical services,” “prescription medications,” “infusion therapy,” or “supplies” in any manner including but not limited to advertisements, brochures, or letters. An unlicensed person or entity may advertise under the category “home health services” in any advertising publication which divides its advertisements into categories, provided that:
(i) The advertisement is not placed in the category with the intent to mislead or deceive;
(ii) The use of the advertisement in the category is not part of an unfair or deceptive practice; and
(iii) The advertisement is not otherwise unfair, deceptive, or misleading.
For purposes of this paragraph, the term “home health agency” shall have the same definition as contained in Code Section 31-7-150, as now or hereafter amended. The provisions of this paragraph shall be enforced by the Attorney General;
(30.1) Failing to comply with the following provisions in connection with a contract for health care services between a physician and an insurer which offers a health benefit plan under which such physician provides health care services to enrollees:
(A) As used in this paragraph, the term:
(i) “Enrollee” means an individual who has elected to contract for or participate in a health benefit plan for that individual or for that individual and that individual's eligible dependents and includes that enrollee's eligible dependents.
(ii) “Health benefit plan” means any hospital or medical insurance policy or certificate, health care plan contract or certificate, qualified higher deductible health plan, health maintenance organization subscriber contract, any health benefit plan established pursuant to Article 1 of Chapter 18 of Title 45, or any managed care plan.
(iii) “Insurer” means a corporation or other entity which is licensed or otherwise authorized to offer a health benefit plan in this state.
(iv) “Patient” means a person who seeks or receives health care services under a health benefit plan.
(v) “Physician” means a person licensed to practice medicine under Article 2 of Chapter 34 of Title 43.
(B) Every contract between a physician and an insurer which offers a health benefit plan under which that physician provides health care services shall be in writing and shall state the obligations of the parties with respect to charges and fees for services covered under that plan when provided by that physician to enrollees under that plan. Neither the insurer which provides that plan nor the enrollee under that plan shall be liable for any amount which exceeds the obligations so established for such covered services.
(C) Neither the physician nor a representative thereof shall intentionally collect or attempt to collect from an enrollee any obligations with respect to charges and fees for which the enrollee is not liable and neither such physician nor a representative thereof may maintain any action at law against such enrollee to collect any such obligations.
(D) The provisions of this paragraph shall not apply to the amount of any deductible or copayment which is not covered by the health benefit plan.
(E) This paragraph shall apply to only such health benefit plan contracts issued, delivered, issued for delivery, or renewed in this state on or after July 2, 2001;
(31) With respect to telemarketing sales:
(A) For any seller or telemarketer to use any part of an electronic record to attempt to induce payment or attempt collection of any payment that the seller or telemarketer claims is due and owing to it pursuant to a telephone conversation or series of telephone conversations with a residential subscriber. Nothing in this paragraph shall be construed to:
(i) Prohibit the seller or telemarketer from introducing, as evidence in any court proceeding to attempt collection of any payment that the seller or telemarketer claims is due and owing to it pursuant to a telephone conversation or series of telephone conversations with a residential subscriber, an electronic record of the entirety of such telephone conversation or series of telephone conversations; or
(ii) Expand the permissible use of an electronic record made pursuant to 16 C.F.R. Part 310.3(a)(3), the Federal Telemarketing Sales Rule.
(B) For purposes of this paragraph, the term:
(i) “Covered communication” shall have the same meaning as the term “telemarketing” in subsection (a) of Code Section 10-1-393.5.
(ii) “Electronic record” means any recording by electronic device of, in part or in its entirety, a telephone conversation or series of telephone conversations with a residential subscriber that is initiated by a seller or telemarketer in order to induce the purchase of goods, services, or property. This term shall include, without limitation, any subsequent telephone conversations in which the seller or telemarketer attempts to verify any alleged agreement in a previous conversation or previous conversations.
(iii) “Residential subscriber” means any person who has subscribed to residential phone service from a local exchange company or the other persons living or residing with such person.
(iv) “Seller or telemarketer” means any person or entity making a covered communication to a residential subscriber for the purpose of inducing the purchase of goods, services, or property by such subscriber. This term shall include, without limitation, any agent of the seller or telemarketer, whether for purposes of conducting calls to induce the purchase, for purposes of verifying any calls to induce the purchase, or for purposes of attempting to collect on any payment under the purchase;
(32) Selling, marketing, promoting, advertising, providing, or distributing any card or other purchasing mechanism or device that is not insurance or evidence of insurance coverage and that purports to offer or provide discounts or access to discounts on purchases of health care goods or services from providers of the same or making any representation or statement that purports to offer or provide discounts or access to discounts on purchases of health care goods or services from providers of the same, when:
(A) Such card or other purchasing mechanism or device does not contain a notice expressly and prominently providing in boldface type that such discounts are not insurance; or
(B) Such discounts or access to such discounts are not specifically authorized under a separate contract with a provider of health care goods or services to which such discounts are purported to be applicable;
<Text of subsec. (b)(33) effective until January 1, 2024>
(33)(A) For any person, firm, partnership, association, or corporation to issue a gift certificate, store gift card, or general use gift card without:
(i) Including the terms of the gift certificate, store gift card, or general use gift card in the packaging which accompanies the certificate or card at the time of purchase, as well as making such terms available upon request; and
(ii) Conspicuously printing the expiration date, if applicable, on the certificate or card and conspicuously printing the amount of any dormancy or nonuse fees on:
(I) The certificate or card; or
(II) A sticker affixed to the certificate or card.
A gift certificate, store gift card, or general use gift card shall be valid in accordance with its terms in exchange for merchandise or services.
(B) As used in this paragraph, the term:
(i) “General use gift card” means a plastic card or other electronic payment device which is usable at multiple, unaffiliated merchants or service providers; is issued in an amount which amount may or may not be, at the option of the issuer, increased in value or reloaded if requested by the holder; is purchased or loaded on a prepaid basis by a consumer; and is honored upon presentation by merchants for goods or services.
(ii) “Gift certificate” means a written promise that is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and cannot be increased in value on the face thereof; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo.
(iii) “Store gift card” means a plastic card or other electronic payment device which is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and may or may not be increased in value or reloaded; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo; and
<Text of subsec. (b)(33) effective January 1, 2024>
(33)(A) For any person, firm, partnership, association, or corporation to issue a gift certificate, store gift card, or general use gift card without:
(i) Including the terms of the gift certificate, store gift card, or general use gift card in the packaging which accompanies the certificate or card at the time of purchase, as well as making such terms available upon request; and
(ii) Conspicuously printing the expiration date, if applicable, on the certificate or card and conspicuously printing the amount of any dormancy or nonuse fees on:
(I) The certificate or card; or
(II) A sticker affixed to the certificate or card.
A gift certificate, store gift card, or general use gift card shall be valid in accordance with its terms in exchange for merchandise or services.
(B) As used in this paragraph, the term:
(i) “General use gift card” means a plastic card or other electronic payment device which is usable at multiple, unaffiliated merchants or service providers; is issued in an amount which amount may or may not be, at the option of the issuer, increased in value or reloaded if requested by the holder; is purchased or loaded on a prepaid basis by a consumer; and is honored upon presentation by merchants for goods or services.
(ii) “Gift certificate” means a written promise that is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and cannot be increased in value on the face thereof; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo.
(iii) “Store gift card” means a plastic card or other electronic payment device which is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and may or may not be increased in value or reloaded; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo;
<Text of subsec. (b)(34) effective until January 1, 2024>
(34) For any person, firm, partnership, business, association, or corporation to willfully and knowingly accept or use an individual taxpayer identification number issued by the Internal Revenue Service for fraudulent purposes and in violation of federal law.
<Text of subsec. (b)(34) effective January 1, 2024>
(34) For any person, firm, partnership, business, association, or corporation to willfully and knowingly accept or use an individual taxpayer identification number issued by the Internal Revenue Service for fraudulent purposes and in violation of federal law; and
<Text of subsec. (b)(35) effective January 1, 2024>
(35) Failure to comply with the provisions of Code Section 10-6A-9 or 10-6A-10 regarding brokerage engagements and options to enter into brokerage engagements.
(c) A seller may not by contract, agreement, or otherwise limit the operation of this part notwithstanding any other provision of law.
(d)(1) Notwithstanding any other provision of the law to the contrary, the names, addresses, telephone numbers, social security numbers, or any other information which could reasonably serve to identify any person making a complaint about unfair or deceptive acts or practices shall be confidential. However, the complaining party may consent to public release of his or her identity by giving such consent expressly, affirmatively, and directly to the Attorney General or the Attorney General's employees.
(2) Nothing contained in this subsection shall be construed:
(A) To prevent the Attorney General from disclosing the complainant's identity if the Attorney General believes that disclosure will aid in resolution of the complaint;
(B) To prohibit any valid discovery under the relevant discovery rules; or
(C) To prohibit the lawful subpoena of such information.
(a) Unfair or deceptive acts or practices by an office supplier in the conduct of office supply transactions in trade or commerce are declared unlawful.
(b) By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices by office suppliers in the conduct of office supply transactions are declared unlawful:
(1) Passing off goods or services as those of another;
(2) Falsely representing to any person that the office supplier is the usual supplier of goods, services, or property purchased by that person;
(3) Falsely representing to any person that the goods, services, or property sold, leased, rented, or shipped by the office supplier are the same brand as that person usually uses;
(4) Misrepresenting in any manner, including the use of a confusingly similar name, the manufacturer, supplier, or seller of the goods, services, or property;
(5) Representing that the prices an office supplier charges are less than a person usually pays for goods, services, or property, unless the goods, services, or property compared are identical and the representation is true;
(6) Shipping or supplying an amount or quantity of goods, services, or property to a person which is substantially greater than the amount or quantity which the person actually orders;
(7) Misrepresenting in any manner, including but not limited to failure to disclose material facts regarding the value of, any gift, prize, or award which will be given by an office supplier in conjunction with any office supply transaction;
(8) Falsely representing that there is an imminent price increase;
(9) Substituting any brand or quality of goods, services, or property for that actually ordered without prior approval of such substitution from the person ordering; or
(10)(A) Solicitation for inclusion in the listing of a telephone classified advertising directory unless such solicitation form has prominently printed therein at least one inch apart from any other text on the form and in type size and boldness equal to or greater than any other type size and boldness on the form the words:
“THIS IS NOT A BILL. THIS IS A SOLICITATION.”
(B) For the purposes of this paragraph, the term “telephone classified advertising directory” refers to any telephone classified advertising directory which is distributed to some or all telephone subscribers in any area of the state and includes such directories distributed by telephone service companies as well as such directories distributed by other parties.
(c) An office supplier may not by contract, agreement, or otherwise limit the operation of this part, notwithstanding any other provision of law.
(a) Health spas shall comply with the provisions of this Code section.
(b) A written contract shall be employed which shall constitute the entire agreement between the parties, a fully completed copy of which shall be furnished to the consumer at the time of its execution and which shall show the date of the transaction and the name and address of the seller; provided, however, that no contract shall be valid which has a term in excess of 36 months. Contracts may be renewable at the end of each 36 month period of time at the option of both parties to the contract.
(c) The contract or an attachment thereto shall state clearly any rules and regulations of the seller which are applicable to the consumer's use of the facilities or receipt of its services.
(d) The contract shall state clearly on its face the cancellation and refund policies of the seller.
(e) The health spa member shall have the right to cancel the contract within seven business days after the date of the signing of the contract by notifying the seller in writing of such intent and by either mailing the notice before 12:00 Midnight of the seventh business day after the date of the signing of the contract or by hand delivering the notice of cancellation to the health spa before 12:00 Midnight of the seventh business day following the date of the signing of the contract. The notice must be accompanied by the contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to the buyer. If the health spa member so cancels, any payments made under the contract will be refunded and any evidence of indebtedness executed by the health spa member will be canceled by the seller, provided that the member shall be liable for the fair market value of services actually received, which in no event shall exceed $100.00. The preparation of any documents shall not be construed to be services; provided, however, that any documents prepared which are merely ancillary to services which are actually rendered shall not prevent the health spa from charging for such services actually rendered up to the limits specified in this subsection. Each health spa contract shall contain the following paragraphs separated from all other paragraphs:
“You (the buyer) have seven business days to cancel this contract. To cancel, mail or hand deliver a letter to the following address:
Name of health spa
Street address
City, State, ZIP Code
Do not sign this contract if there are any blank spaces above. In the event optional services are offered, be sure that any options you have not selected are lined through or that it is otherwise indicated that you have not selected these options. It is recommended that you send your cancellation notice by registered or certified mail or statutory overnight delivery, return receipt requested, in order to prove that you did cancel. If you do hand deliver your cancellation, be sure to get a signed statement from an official of the spa acknowledging your cancellation.
To be effective, your cancellation must be postmarked by midnight, or hand delivered by midnight on (date), ___, and must include all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to you.”
The health spa shall fill in the blank spaces in the above paragraph before the consumer signs the contract. In the event a consumer fails to provide with the cancellation notice all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered, the health spa shall either cancel the contract or provide written notice by certified mail or statutory overnight delivery to the consumer that such documents must be provided within 30 days in order for the cancellation to be effective. In the event that the consumer provides the documents within 30 days, the contract shall be canceled as of the date on which the cancellation notice was delivered; provided, however, that should the consumer continue to use the facilities or services during the 30 day period, the cancellation shall be effective on the first business day following the last day on which the consumer uses the facilities or services.
(f) In the event a health spa no longer offers a substantial service which was offered at the time of the initiation of the contract, or in the event a health spa which previously limited its membership to members of one sex should become coeducational or one which was previously coeducational should become limited to members of one sex, the member shall have 30 days from the time the member knew or should have known of the change to cancel the remainder of the membership and receive a refund. The refund shall be calculated by dividing the total cost of the membership by the total number of months under the membership and refunding the monthly cost for any months or fractions of months remaining under the membership. The contract shall contain a clause in at least ten-point boldface type which reads as follows:
“You (the buyer) may cancel this agreement within 30 days from the time you knew or should have known of any substantial change in the services or programs available at the time you joined. Substantial changes include, but are not limited to, changing from being coed to being exclusively for one sex and vice versa. To cancel, send written notice of your cancellation to the address provided in this contract for sending a notice of cancellation. The best way to cancel is by keeping a photocopy and sending the cancellation by registered or certified mail or statutory overnight delivery, return receipt requested.”
The provisions of this subsection shall not apply in any instance where a court has ordered that a change be made in the sexual character of the health spa. The Attorney General is authorized upon petition to issue a declaratory ruling under Code Section 50-13-11 as to whether any planned change in a health spa is a substantial change or whether alternate locations are substantially similar under this Code section. Such declaratory rulings shall be subject to review as under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(g) Every contract for health spa services shall contain a clause providing that if the member becomes totally and permanently disabled during the membership term, he or she may cancel his or her contract and that the health spa is entitled to a reasonable predetermined fee in such event in addition to an amount equal to the value of services made available for use. This amount shall be computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months expired under the membership term. The health spa shall have the right to require and verify reasonable evidence of total and permanent disability. For purposes of this subsection, “total and permanent disability” means a condition which has existed or will exist for more than 45 days and which will prevent the member from using the facility to the same extent as the member used it before commencement of the condition.
(h) The health spa contract shall state that if a consumer has a history of heart disease, he should consult a physician before joining a spa.
(i) Every health spa contract shall comply with either paragraph (1) or paragraph (2) of this subsection:
(1)(A) The written contract used shall contain the following clause: “Under this contract, no further payments shall be due to anyone, including any purchaser of any note associated with or contained in this contract, in the event the health spa at which the contract is entered into ceases operation and fails to offer an alternate location, substantially similar, within ten miles.”
(B) All payments due under the contract must be in equal monthly installments spread over the entire term of the contract.
(C) There can be no payments of any type, including, but not limited to, down payments, enrollment fees, membership fees, or any other direct payment to the health spa, other than the equal monthly installment payments.
(D) There can be no complimentary, compensatory, or other extensions of the term incident to the term of the contract, including but not limited to a promise of lifetime renewal for a minimal annual fee, provided that an agreement of both parties to extend the term of the contract to compensate for time during which the member could not fully utilize the spa due to a temporary physical or medical condition arising after the member joined shall not be considered to bring the spa into noncompliance under this paragraph; or
(2)(A) The written contract used shall contain the following clause: “Under this contract, no further payments shall be due to anyone, including any purchaser of any note associated with or contained in this contract, in the event the health spa at which the contract is entered into ceases operation and fails to offer an alternate location, substantially similar, within ten miles.”
(B) The written contract shall contain the following statement in boldface type which is larger and bolder than any other type which is in the contract and in at least 14 point boldface, which statement must be separately signed by the consumer:
“NOTICE
State law requires that we inform you that should you (the buyer) choose to pay for any part of this agreement in advance, be aware that you are paying for future services and may be risking loss of your money in the event this health spa ceases to conduct business. Health spas do not post a bond, and there may be no other protections provided to you should you choose to pay in advance.”
(j) An alternate location for a health spa shall not be considered substantially similar if:
(1) The original facility was limited to use by members of one sex and the alternate facility is used by members of both sexes;
(2) The original facility was for use by members of both sexes and the alternate facility's use is limited to members of one sex; or
(3) The size, facilities, equipment, or services available to the member at the alternate location are not substantially equal to or do not exceed the size, facilities, equipment, or services available to the member at the health spa location at which the contract was entered into.
(k) Every contract for health spa services shall contain a clause providing that if the member dies during the membership term or any renewal term, his or her estate may cancel the contract and that the health spa is entitled to a reasonable predetermined fee in such event in addition to an amount computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months expired under the membership term. The contract may require the member's estate seeking relief under this subsection to provide reasonable proof of death.
(l)(1) A health spa shall not enter or offer to enter into a health spa agreement with a consumer unless the health spa is fully operational and available for use.
(2) For purposes of this subsection, “fully operational and available for use” means that all of the facilities, equipment, or services which are promised at the time of entering into the membership contract are operational and available for use at that time. Nothing contained in this subsection shall be construed to prohibit a health spa from selling a membership for existing services and facilities at a location under construction which can be converted at a later date to a membership for additional services and facilities, provided that:
(A) The additional services and facilities are fully operational and available for use at the time of the conversion;
(B) Additional consideration, other than just a nominal consideration, is required from the consumer under the terms of the conversion; and
(C) The member has until seven days following the date the additional consideration or a part of the additional consideration becomes due and owing to cancel the remainder of the contract and receive a refund computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months remaining under the membership term.
(3) The provisions of this subsection shall not apply if all of the following conditions are met:
(A) The health spa has submitted forms prescribed by the Attorney General requiring, in addition to whatever other information the Attorney General may require, as much detail as to the size, facilities, equipment, or services to be provided as the Attorney General may require;
(B) The health spa has obtained the approval in writing of the Attorney General to sell memberships to a health spa before it is fully operational and available for use;
(C) The health spa has agreed in writing with the Attorney General, on forms prescribed by the Attorney General, to deposit all funds obtained by selling memberships before a health spa is fully operational and available for use in a single account in a bank or trust company domiciled in the State of Georgia. Such deposits are to be held in safekeeping for release only upon authorization of the Attorney General. The bank or trust company must be approved by the Attorney General. The Attorney General may consult with the commissioner of banking and finance or with any of the employees of the commissioner of banking and finance regarding whether the bank or trust company should be approved and may disapprove the bank or trust company if he or she has reason to believe any deposits into the account might not be secure;
(D) Each deposit to the single account established under this paragraph shall be identified by the name and address of the individual who purchased the membership. The bank or trust company and the health spa shall maintain a list of the deposits, their amount, and the name and address of the membership purchaser, which list shall be available to the Attorney General or for inspection or copying by the Attorney General;
(E) The condition of the account established under this paragraph shall be that no funds shall be released from the account to any person unless the Attorney General has certified in writing to the bank or trust company that either the health spa is fully operational and available for use or that the health spa has not complied and does not appear likely to comply with its obligation to make the health spa fully operational and available for use in accordance with the documents submitted to the Attorney General or in accordance with representations made to membership purchasers. No action may be maintained in any court against the Attorney General or any of his or her employees for any determination or as a consequence of any determination made by the Attorney General under this subparagraph. Nothing contained or implied in this subparagraph shall operate or be construed or applied to deprive the Attorney General or any employee of any immunity, indemnity, benefits of law, rights, or any defense otherwise available by law;
(F) If the Attorney General certifies to the bank or trust company that the health spa is fully operational and available for use, then the funds in the account shall be released to the health spa, along with any accrued interest. If the Attorney General certifies to the bank or trust company that the health spa has not complied and does not appear likely to comply with its obligation to make the health spa fully operational and available for use, then the funds in the account shall be released to the Attorney General on behalf of the individuals who purchased memberships prior to the health spa's being fully operational and available for use. Any accrued interest on the account shall be paid on a pro rata basis to the membership purchasers;
(G) Any costs imposed by the bank or trust company for administering the account shall be borne by the health spa; and
(H) The member shall have until seven business days following the date upon which the health spa becomes fully operational and available for use to cancel the contract and receive a full refund of any payments and the cancellation of any evidence of indebtedness, provided that the member shall be liable for the fair market value of any services actually received, which in no event shall exceed $50.00. The preparation of any documents shall not be construed to be services; provided, however, that all documents prepared which are merely ancillary to services which are actually rendered shall not prevent the health spa from charging for such services actually rendered up to the limits specified in this subparagraph.
(m) All moneys due the consumer under contracts canceled for the reasons contained in this Code section shall be refunded within 30 days of receipt of such notice of cancellation. The notice must be accompanied by the contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to the buyer, except in the case of a deceased member. In the event a consumer fails to provide with the cancellation notice all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered, the health spa shall either cancel the contract or provide written notice by certified mail or statutory overnight delivery to the consumer that such documents must be provided within 30 days in order for the cancellation to be effective. In the event that the consumer provides the documents within 30 days, the contract shall be canceled as of the date on which the cancellation notice was delivered; provided, however, that should the consumer continue to use the facilities or services during the 30 day period, the cancellation shall be effective on the first business day following the last day on which the consumer uses the facility or services.
(n) Any contract which does not comply with this Code section shall be void and unenforceable; no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note or to report the buyer as delinquent to any consumer reporting or consumer credit reporting agency if there has been any violation by the health spa of subsections (b) through (m) or of subsection (o) of this Code section. Any attempt by any purchaser or by any agent of any purchaser to collect on the note or to report the buyer as delinquent as described in this subsection shall be considered an unfair and deceptive act or practice as provided in Code Section 10-1-393.
(o) After November 15, 1989, no health spa contract shall be valid or enforceable unless the health spa operator has on file a statement signed by the Attorney General certifying that a copy of the contract is on file with the Attorney General and is in compliance with this part. Health spas may begin submitting a copy of their contract for approval by the Attorney General on July 1, 1989, and shall submit all contract changes thereafter for approval prior to entering or offering to enter into that contract with a consumer. In addition to any action which may be taken by the Attorney General under this part, and in addition to any recovery of a consumer in the private action provided for under this part, any consumer who has entered into a contract which has not been approved by the Attorney General prior to the date of the contract shall be entitled to recover as an additional penalty an amount equal to any amount paid plus any amount claimed owing on the contract.
(p) In addition to any other penalties provided for in this part, any person who operates or aids or assists in the operation of a health spa in violation of any of the provisions of subsection (i) or (o) of this Code section shall be guilty of a misdemeanor. Each day of operation of a health spa in violation of subsection (i) or (o) shall be considered a separate and distinct violation. In addition to any other penalties provided in this part, any person who violates subsection (l) of this Code section shall be guilty of a felony. Each sale of a membership in violation of subsection (l) of this Code section shall be considered a separate and distinct violation. Each failure to place properly all of the funds generated from a particular membership agreement into a properly approved and established trust account shall be considered a separate and distinct violation.
(a) As used in this Code section, the term “merchant” means any person who offers goods, wares, merchandise, or services for sale to the public and shall include an employee of a merchant.
(b) A merchant shall be prohibited from requiring a purchaser to provide the purchaser's personal or business telephone number as a condition of purchase when payment for the transaction is made by credit card.
(c) A merchant shall be prohibited from using a purchaser's credit card to imprint the information contained on the credit card on the face or back of a check or draft from the purchaser as a condition of acceptance of such check or draft as payment for a purchase.
(d) A merchant shall be prohibited from recording in any manner the number of a purchaser's credit card as a condition of acceptance of a check or draft of the purchaser as payment for a purchase.
(e) Any merchant who violates the provisions of this Code section shall be subject to the penalties provided in this part.
(f) This Code section shall not prohibit a merchant from:
(1) Recording a credit card number and expiration date as a condition to cashing or accepting a check where the merchant has agreed with the credit card issuer to cash or accept such checks as a service to the issuer's cardholders and the issuer has agreed with the merchant to guarantee payment of all cardholder checks cashed or accepted by the merchant;
(2) Requesting a purchaser to display a credit or charge card as a means of identification or as an indication of credit worthiness or financial responsibility;
(3) Recording on the check or elsewhere the type of credit or charge card displayed for the purposes of paragraph (2) of this subsection and the credit or charge card expiration date; or
(4) Recording the address or telephone number of a credit cardholder if the information is necessary for the shipping, delivery, or installation of consumer goods or for special orders of consumer goods or services.
(g) This Code section shall not require acceptance of a check or draft because a credit card is presented.
(a) It shall be an unlawful, unfair, and deceptive trade practice for any person, firm, or corporation doing business in any area in which a state of emergency, as such term is defined in Code Section 38-3-3, has been declared, for so long as such state of emergency exists, to sell or offer for sale at retail any goods or services identified by the Governor in the declaration of the state of emergency necessary to preserve, protect, or sustain the life, health, or safety of persons or their property at a price higher than the price at which such goods were sold or offered for sale immediately prior to the declaration of a state of emergency; provided, however, that such price may be increased only in an amount which accurately reflects an increase in cost of the goods or services to the person selling the goods or services or an increase in the cost of transporting the goods or services into the area.
(b) Notwithstanding the provisions of subsection (a) of this Code section, a retailer may increase the price of goods or services during a state of emergency if the price charged for those goods or services is no greater than the cost to the retailer of those goods or services, plus the retailer's average markup percentage applied during the ten days immediately prior to the declaration of a state of emergency.
(a) For purposes of this Code section, the term “telemarketing” shall have the same meaning which it has under 16 Code of Federal Regulations Part 310, the Telemarketing Sales Rule of the Federal Trade Commission, except that the term “telemarketing” shall also include those calls made in intrastate as well as interstate commerce.
(b) Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, it shall be unlawful for any person who is engaged in telemarketing, any person who is engaged in any activity involving or using a computer or computer network, or any person who is engaged in home repair work or home improvement work to:
(1) Employ any device, scheme, or artifice to defraud a person, organization, or entity;
(2) Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon a person, organization, or entity; or
(3) Commit any offense involving theft under Code Sections 16-8-2 through 16-8-9.
(b.1)(1) As used in this subsection, the term:
(A) “Photograph” means a photograph of a subject individual that was taken in this state by an arresting law enforcement agency.
(B) “Subject individual” means an individual who was arrested and had his or her photograph taken and:
(i) Access to his or her case or charges was restricted pursuant to Code Section 3-3-23.1, 15-1-20, 16-13-2, 35-3-37, or 42-8-62.1;
(ii) Prior to indictment, accusation, or other charging instrument, his or her case was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency and the offense against such individual was closed by the arresting law enforcement agency;
(iii) Prior to indictment, accusation, or other charging instrument, the statute of limitations expired;
(iv) Prior to indictment, accusation, or other charging instrument, his or her case was referred to the prosecuting attorney but was later dismissed;
(v) Prior to indictment, accusation, or other charging instrument, the grand jury returned two no bills;
(vi) After indictment or accusation, all charges were dismissed or nolle prossed;
(vii) After indictment or accusation, the individual pleaded guilty to or was found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug and was sentenced in accordance with the provisions of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation; or
(viii) The individual was acquitted of all of the charges by a judge or jury.
(2) Any person who is engaged in any activity involving or using a computer or computer network who publishes on such person's publicly available website a subject individual's arrest booking photograph for purposes of commerce shall be deemed to be transacting business in this state. Within 30 days of the sending of a written request by a subject individual, including his or her name, date of birth, date of arrest, and the name of the arresting law enforcement agency, such person shall, without fee or compensation, remove from such person's website the subject individual's arrest booking photograph. Such written request shall be transmitted via certified mail, return receipt requested, or statutory overnight delivery, to the registered agent, principal place of business, or primary residence of the person who published the website. Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, a failure to comply with this paragraph shall be unlawful.
(c) In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section.
(d) Any person who intentionally targets an elder or disabled person, as defined in Article 31 of this chapter, in a violation of subsection (b) of this Code section shall be subject to an additional civil penalty, as provided in Code Section 10-1-851.
(e) Persons employed full time or part time for the purpose of conducting potentially criminal investigations under this article shall be certified peace officers and shall have all the powers of a certified peace officer of this state when engaged in the enforcement of this article, including but not limited to the power to obtain, serve, and execute search warrants. Such Georgia certified peace officers shall be subject to the requirements of Chapter 8 of Title 35, the “Georgia Peace Officer Standards and Training Act,” and are specifically required to complete the training required for peace officers by that chapter. Such certified peace officers shall be authorized, upon completion of the required training, with the written approval of the Attorney General, and notwithstanding Code Sections 16-11-126 and 16-11-129, to carry firearms of a standard police issue when engaged in detecting, investigating, or preventing crimes under this article.
(f) The Attorney General shall be authorized to promulgate procedural rules relating to his or her enforcement duties under this Code section.
(a) For purposes of this Code section, the term “telemarketing” shall have the same meaning which it has under Code Section 10-1-393.5.
(b) Without otherwise limiting the definition of unfair or deceptive acts or practices under this part and without limiting any other Code section under this part, it shall be unlawful for any person to:
(1) In connection with a telemarketing transaction, request a fee in advance to remove derogatory information from or improve a person's credit history or credit record;
(2) Request or receive payment in advance from a person to recover, or otherwise aid in the return of, money or any other item lost by the consumer in a prior telemarketing transaction; provided, however, that this paragraph shall not apply to goods or services provided to a person by a licensed attorney; or
(3) In connection with a telemarketing transaction, procure the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected.
(c) In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section.
(a) Without otherwise limiting the definition of unfair or deceptive acts or practices under this part, it shall be unlawful for any person to solicit another during such other's final illness or during the final illness of any other person for the purpose of persuading a person who is suffering from his or her final illness or a person acting on behalf of such person to seek refund of moneys paid for an existing preneed contract for burial services or merchandise or funeral services or merchandise.
(b) In addition to any other penalty imposed for the violation of this Code section, the administrative agency which issues a finding of violation shall order the violator to pay restitution in the amount of the refund to the person, corporation, partnership, or other legal entity which refunded moneys paid for an existing preneed contract for burial services or merchandise or funeral services or merchandise.
(a) Except as otherwise provided in this Code section, a person, firm, or corporation shall not:
(1) Publicly post or publicly display in any manner an individual's social security number. As used in this Code section, “publicly post” or “publicly display” means to intentionally communicate or otherwise make available to the general public;
(2) Require an individual to transmit his or her social security number over the Internet, unless the connection is secure or the social security number is encrypted; or
(3) Require an individual to use his or her social security number to access an Internet website, unless a password or unique personal identification number or other authentication device is also required to access the Internet website.
(b) This Code section shall not apply to:
(1) The collection, release, or use of an individual's social security number as required by state or federal law;
(2) The inclusion of an individual's social security number in an application, form, or document sent by mail, electronically transmitted, or transmitted by facsimile:
(A) As part of an application or enrollment process;
(B) To establish, amend, or terminate an account, contract, or policy; or
(C) To confirm the accuracy of the individual's social security number;
(3) The use of an individual's social security number for internal verification or administrative purposes; or
(4) An interactive computer service provider's or a telecommunications provider's transmission or routing of, or intermediate temporary storage or caching of, an individual's social security number.
(c) This Code section shall not impose a duty on an interactive computer service provider or a telecommunications provider actively to monitor its service or to affirmatively seek evidence of the transmission of social security numbers on its service.
(d) Notwithstanding the provisions of this Code section, the clerks of superior court of this state and the Georgia Superior Court Clerks' Cooperative Authority shall be held harmless for filing, publicly posting, or publicly displaying any document containing an individual's social security number that the clerk is otherwise required by law to file, publicly post, or publicly display for public inspection.
(a) Private child support collectors shall register with the Secretary of State and shall provide information as requested by the Secretary of State, including, but not limited to, the name of the private child support collector, the office address and telephone number for such entity, and the registered agent in this state on whom service of process is to be made in a proceeding against such private child support collector.
(b) An application for registration shall be accompanied by a surety bond filed, held, and approved by the Secretary of State, and the surety bond shall be:
(1) Issued by a surety authorized to do business in this state;
(2) In the amount of $50,000.00;
(3) In favor of the state for the benefit of a person damaged by a violation of this Code section; and
(4) Conditioned on the private child support collector's compliance with this Code section and Code Section 10-1-393.10 and the faithful performance of the obligations under the private child support collector's agreements with its clients.
(c) In lieu of a surety bond, the Secretary of State may accept a deposit of money in the amount of $50,000.00. The Secretary of State shall deposit any amounts received under this subsection in an insured depository account designated for that purpose.
(a) Any contract for the collection of child support between a private child support collector and an obligee shall be filed by the private child support collector with the office of the Attorney General.
(b) Any contract for the collection of child support between a private child support collector and an obligee shall be in writing, in at least ten-point type, and signed by such private child support collector and obligee. The contract shall include:
(1) An explanation of the nature of the services to be provided;
(2) An explanation of the amount to be collected from the obligor by the private child support collector and a statement of a sum certain of the total amount that is to be collected by the private child support collector that has been engaged by the obligee;
(3) An explanation in dollar figures of the maximum amount of fees which could be collected under the contract and an example of how fees are calculated and deducted;
(4) A statement that fees shall only be charged for collecting past due child support, although the contract may include provisions to collect current and past due child support;
(5) A statement that a private child support collector shall not retain fees from collections that are primarily attributable to the actions of the department and that a private child support collector shall be required by law to refund any fees improperly retained;
(6) An explanation of the opportunities available to the obligee or private child support collector to cancel the contract or other conditions under which the contract terminates;
(7) The mailing address, telephone numbers, facsimile numbers, and e-mail address of the private child support collector;
(8) A statement that the private child support collector shall only collect money owed to the obligee and not child support assigned to the State of Georgia;
(9) A statement that the private child support collector is not a governmental entity and that the department provides child support enforcement services at little or no cost to the obligee; and
(10) A statement that the obligee may continue to use or pursue services through the department to collect child support.
(c) A private child support collector shall not:
(1) Improperly retain fees from collections that are primarily attributable to the actions of the department. If the department or an obligee notifies a private child support collector of such improper fee retention, such private child support collector shall refund such fees to the obligee within seven business days of the notification of the improper retention of fees and shall not be liable for such improper fee retention. A private child support collector may require documentation that the collection was primarily attributable to the actions of the department prior to issuing any refund;
(2) Charge fees in excess of one-third of the total amount of child support payments collected;
(3) Solicit obligees using marketing materials, advertisements, or representations reasonably calculated to create a false impression or mislead an obligee into believing the private child support collector is affiliated with the department or any other governmental entity;
(4) Use or threaten to use violence or other criminal means to cause harm to an obligor or the property of the obligor;
(5) Falsely accuse or threaten to falsely accuse an obligor of a violation of state or federal laws;
(6) Take or threaten to take an enforcement action against an obligor that is not authorized by law;
(7) Represent to an obligor that the private child support collector is affiliated with the department or any other governmental entity authorized to enforce child support obligations or fail to include in any written correspondence to an obligor the statement that “This communication is from a private child support collector. The purpose of this communication is to collect a child support debt. Any information obtained will be used for that purpose.”;
(8) Communicate to an obligor's employer, or his or her agent, any information relating to an obligor's indebtedness other than through proper legal action, process, or proceeding;
(9) Communicate with an obligor whenever it appears the obligor is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondences, return telephone calls, or discuss the obligation in question, or unless the attorney and the obligor consent to direct communication;
(10) Contract with an obligee who is owed less than three months of child support arrearages; or
(11) Contract with an obligee for a sum certain to be collected which is greater than the total sum of arrearages and the statutory interest owed as of the date of execution of the contract.
(d) In addition to any other cancellation or termination provisions provided in the contract between a private child support collector and an obligee, the contract shall be cancelled or terminate if:
(1) The obligee requests cancellation in writing within 30 days of signing the contract;
(2) The obligee requests cancellation in writing after any 12 consecutive months in which the private child support collector fails to make a collection;
(3) The private child support collector breaches any term of the contract or violates any provision contained within this Code section; or
(4) The amount to be collected pursuant to the contract has been collected.
(e) When it reasonably appears to the Attorney General that a private child support collector has contracted with obligees on or after July 1, 2009, using a contract that is not in compliance with this Code section, the Attorney General may demand pursuant to Code Section 10-1-403 that such private child support collector produce a true and accurate copy of each such contract. If such private child support collector fails to comply or the contracts are determined by the Attorney General to not be compliant with the provisions of this Code section, the Attorney General may utilize any of the powers vested in this part to ensure compliance.
(f) Upon the request of an obligee, the entity within the department authorized to enforce support orders shall forward child support payments made payable to the obligee to any private child support collector that is in compliance with the provisions of this Code section and Code Section 10-1-393.9.
(g) The remedies provided in this part shall be cumulative and shall be in addition to any other procedures, rights, or remedies available under any other law.
(h) Any waiver of the rights, requirements, and remedies provided by this Code section that are contained in a contract between a private child support collector and an obligee violates public policy and shall be void.
(a) A person who makes a representation regarding kosher food shall prominently and conspicuously display on the premises on which the food is sold, in a location readily visible to the consumer, a completed kosher food disclosure statement which shall be updated within 14 days of any changes in the information required by subsections (b) through (e) of this Code section.
(b) A kosher food disclosure statement shall set forth the name and address of the establishment to which it applies and the date on which it was completed.
(c) A kosher food disclosure statement shall state in the affirmative or negative whether the person:
(1) Operates under rabbinical or other kosher supervision;
(2) Sells or serves only food represented as kosher;
(3) Sells or serves food represented as kosher, as well as food not represented as kosher;
(4) Sells or serves meat, dairy, and pareve food;
(5) Sells or serves only meat and pareve food;
(6) Sells or serves only dairy and pareve food;
(7) Sells or serves meat and poultry represented as kosher only if it is slaughtered under rabbinical or other kosher supervision and identified at the slaughterhouse to be sold as kosher;
(8) Represents kosher meat sold as “Glatt kosher” or “Glatt”;
(9) Sells or serves seafood only if it has or had fins and removable scales;
(10) Keeps separate meat represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
(11) Uses separate utensils for meat represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
(12) Uses separate work areas for meat and poultry represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
(13) Sells or serves wine represented as kosher only if it has rabbinical supervision;
(14) Sells or serves cheese represented as kosher only if it has rabbinical supervision;
(15) Sells or serves food represented as kosher for Passover;
(16) Uses separate utensils for food represented as kosher for Passover and food not represented as kosher for Passover;
(17) Uses separate work areas for food represented as kosher for Passover and food not represented as kosher for Passover;
(18) Keeps food represented as kosher for Passover free from and not in contact with food not represented as kosher for Passover; and
(19) Prepares food represented as kosher for Passover under rabbinical or other kosher supervision.
(d) If a kosher food disclosure statement has an affirmative response to the question contained in paragraph (15) of subsection (c) of this Code section, responses to the questions contained in paragraphs (16) through (19) shall be required; otherwise, such responses shall not be required.
(e) A person who represents to the public that any unpackaged food for sale or a place of business is under rabbinical or other kosher supervision shall also provide in the kosher food disclosure statement the following information about the rabbinical or other kosher supervision:
(1) The name of the supervising rabbi, agency, or other person;
(2) The address of the supervising rabbi, agency, or other person;
(3) The telephone number of the supervising rabbi, agency, or other person;
(4) The frequency with which the supervising rabbi, agency, or other person visits the establishment; and
(5) Any relevant affiliations of the supervising rabbi, agency, or other person that the person making the disclosure wishes to disclose.
(f) The Attorney General shall promulgate a form for the kosher food disclosure statement and any additional information that the Attorney General deems reasonable and necessary for full and complete disclosure. The completion and prominent and conspicuous display of such form shall constitute compliance with subsections (b) through (e) of this Code section.
(g) No person shall display a kosher food disclosure statement or other written document stating that a rabbi, agency, or other person certifies food or a place of business as kosher or kosher for Passover if no such certification is being provided. The person making the display shall remove the statement or document if the rabbi, agency, or other person sends a notice via certified mail or statutory overnight delivery directed to the person making the display that no such certification is being provided.
(h) It shall be unlawful for any person to:
(1) Fail to complete and prominently and conspicuously display a kosher food disclosure statement as required by this Code section;
(2) Otherwise fail to comply with this Code section; or
(3) Knowingly or intentionally, with intent to defraud, make a false affirmation or disclosure in a kosher food disclosure statement.
(i) This Code section shall not apply to:
(1) Food sold in a presealed kosher food package; or
(2) Food represented as “kosher-style” or “kosher-type.”
(a) As used in this Code section, the term:
(1) “Residential real estate” means a new or existing building constructed for habitation by one to four families, including detached garages.
(2) “Residential roofing contractor” means a person or entity in the business of contracting or offering to contract with an owner or possessor of residential real estate to repair or replace roof systems.
(3) “Roof system” means a roof covering, roof sheathing, roof weatherproofing, roof framing, roof ventilation system, and insulation.
(b) A person who has entered into a written contract with a residential roofing contractor to provide goods or services to be paid from the proceeds of a property and casualty insurance policy may cancel the contract prior to midnight on the fifth business day after the insured has received written notice from the insurer that all or any part of the claim or contract is not a covered loss under such insurance policy. Cancellation shall be evidenced by the insured giving written notice of cancellation to the residential roofing contractor at the address stated in the contract. Notice of cancellation, if given by mail, shall be effective upon deposit into the United States mail, postage prepaid and properly addressed to the residential roofing contractor. Notice of cancellation need not take a particular form and shall be sufficient if it indicates, by any form of written expression, the intention of the insured not to be bound by the contract.
(c) Before entering a contract as provided in subsection (b) of this Code section, the residential roofing contractor shall:
(1) Furnish the insured a statement in boldface type of a minimum size of ten points, in substantially the following form:
“You may cancel this contract at any time before midnight on the fifth business day after you have received written notification from your insurer that all or any part of the claim or contract is not a covered loss under the insurance policy. This right to cancel is in addition to any other rights of cancellation which may be found in state or federal law or regulation. See attached notice of cancellation form for an explanation of this right”; and
(2) Furnish each insured a fully completed form in duplicate, captioned “NOTICE OF CANCELLATION,” which shall be attached to the contract but easily detachable, and which shall contain in boldface type of a minimum size of ten points the following statement:
“NOTICE OF CANCELLATION”
If you are notified by your insurer that all or any part of the claim or contract is not a covered loss under the insurance policy, you may cancel the contract by mailing or delivering a signed and dated copy of this cancellation notice or any other written notice to (name of contractor) at (address of contractor's place of business) at any time prior to midnight on the fifth business day after you have received such notice from your insurer.
I HEREBY CANCEL THIS TRANSACTION
Date
Insured's signature
(d) In circumstances in which payment may be made from the proceeds of a property and casualty insurance policy, a residential roofing contractor shall not require any payments from an insured until the five-day cancellation period has expired. If, however, the residential roofing contractor has performed any emergency services, acknowledged by the insured in writing to be necessary to prevent damage to the premises, the residential roofing contractor shall be entitled to collect the amount due for the emergency services at the time they are rendered. Any provision in a contract as provided in subsection (b) of this Code section that requires the payment of any fee for anything except emergency services shall not be enforceable against any insured who has canceled a contract under this Code section.
(e) A residential roofing contractor shall not represent or negotiate, or offer or advertise to represent or negotiate, on behalf of an owner or possessor of residential real estate on any insurance claim in connection with the repair or replacement of roof systems. This subsection shall not apply to a public adjuster licensed under Chapter 23 of Title 33.
(a) As used in this Code section, the term:
(1) “ADAD equipment” means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating prerecorded messages to the numbers so selected or dialed.
(2) “Business” means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, trust, or other legal entity.
(3) “Caller identification service” means a type of telephone service which permits subscribers to see the telephone number of incoming telephone calls.
(4) “In this state” means the call:
(A) Originates from this state; or
(B) Is directed by the caller to this state and received at the place to which it is directed.
(5) “Subscriber” means a person or business that has subscribed to telephone service from a local exchange company or mobile, wireless, or other telephone service provider or other persons living, residing, or working with such person or business.
(6) “Telephone solicitation” means any voice communication from a live operator, through the use of ADAD equipment or by other means, over a telephone line or computer network for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services or donation to any organization, but shall not include communications:
(A) To any subscriber with that subscriber's prior express invitation or permission;
(B) By or on behalf of any person or entity with whom a subscriber has a prior or current business or personal relationship; or
(C) Which convey a political message.
(b) Without otherwise limiting the definition of unfair or deceptive acts or practices under this part and without limiting any other Code section under this part, in connection with a telephone solicitation:
(1) At the beginning of such call, the person or entity making the call shall state clearly the identity of the person or entity initiating the call;
(2) No person or entity who makes a telephone solicitation to the telephone line of a subscriber in this state shall knowingly utilize any method to block or otherwise circumvent such subscriber's use of a caller identification service;
(3) The telephone number displayed on the caller identification service shall be a working telephone number capable of receiving incoming calls at the time the call is placed; and
(4) The identity of the caller displayed on the caller identification service shall accurately reflect the identity of the caller.
(c) Notwithstanding Code Section 10-1-399, a claim of a violation of this Code section may be brought in a representative capacity and may be the subject of a class action under Code Section 9-11-23. Damages for such violation shall be the greater of actual damages or $10.00 per violation.
(a) As used in this Code section, the term:
(1) “Adverse effect” means:
(A) A denial of employment;
(B) Any other decision for employment purposes that negatively affects any current or prospective employee; or
(C) A denial or cancellation of, an increase in any charge for, or any other adverse or unfavorable change in the terms of any license.
(2) “Consumer report” means any written, oral, or other communication of any information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for purposes of credit, insurance, or employment.
(3) “Consumer reporting agency” means any person or entity which, for monetary fees or dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
(4) “Employment purposes” means used for the purpose of evaluating a consumer for employment, promotion, reassignment, retention as an employee, or licensing.
(b) A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall:
(1) At the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
(2) Maintain strict procedures designed to ensure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, and convictions shall be considered up to date if the current public record status of the item at the time of the report is reported.
(c) A consumer reporting agency shall be considered to be conducting business in this state if it provides information to any individual, partnership, corporation, association, or any other group however organized that is domiciled within this state or whose principal place of business is within this state.
(d) A consumer reporting agency that provides a consumer report for employment purposes that is in compliance with the federal Fair Credit Reporting Act in existence on March 11, 2015, shall be deemed to have complied with this Code section.
(a) For purposes of this Code section, the term “instrument conveying real estate” means any documentary material evidencing an interest in real property required under law to be recorded with the superior court in the county in which the land is located, including, but not limited to, a deed to secure debt, a mortgage, a deed under power, and a lien.
(b) Any person who mails a solicitation for services to obtain a copy of an instrument conveying real estate shall include, in at least 16 point Helvetica font at the top of and at least two inches apart from any other text on such solicitation, the words:
“THIS IS NOT A BILL OR OFFICIAL GOVERNMENT DOCUMENT. THIS IS A SOLICITATION.”
No text on the solicitation shall be larger than the above required words.
(c) Failure to comply with the provisions of this Code section shall be considered an unfair or deceptive act or practice which is unlawful and which shall be punishable by the provisions of this part.
(a) For purposes of this Code section, the term “corporate filings” means any documents required by law to be filed with the Secretary of State pursuant to Title 14.
(b) Any written solicitation relating to corporate filings or employment or labor posters or notices shall include, in at least 16 point Helvetica font:
(1) At the top of and at least two inches apart from any other text on such solicitation, the words:
“THIS IS A SOLICITATION. THIS IS NOT A BILL OR OFFICIAL GOVERNMENT DOCUMENT AND HAS NOT BEEN SENT BY THE GEORGIA SECRETARY OF STATE'S OFFICE OR THE GEORGIA DEPARTMENT OF LABOR.”
No text on the solicitation shall be larger than the above required words.
(2) On front of the envelope or, if there is no envelope, on the part of the written solicitation that bears the postage stamp or amount, the word:
“SOLICITATION”
(c) Failure to comply with the provisions of this Code section shall be considered an unfair or deceptive act or practice which is unlawful and which shall be punishable by the provisions of this part; provided, however, that notwithstanding Code Section 10-1-399, a claim of a violation of this Code section may be brought in a representative capacity and may be the subject of a class action under Code Section 9-11-23; and provided, further, that damages for such violation shall be the actual damages or $200.00 per violation, whichever is greater.
(a) As used in this part, the term:
(1) “Performing group” means a vocal or instrumental act consisting of one or more members that intends to advertise or appear under the name of a recording group or a name substantially similar to a recording group.
(2) “Recording group” means a vocal or instrumental act that consists of one or more members of which:
(A) At least one has previously released a sound recording commercially under such act's name; and
(B) At least one has a legal right to such act's name by virtue of use or operation under such act's name without having abandoned such name or affiliation with such act.
(3) “Service mark” means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify the services of such person and to distinguish such services from the services of others.
(4) “Sound recording” means a work that results from the fixation of a series of musical, spoken, or other sounds, regardless of the nature of the material object, such as a phonograph, disc, tape, wire, digital storage, or other medium in which the sounds are embodied.
(b) It shall be unlawful for a person to advertise or conduct a vocal or instrumental performance or production in this state by using any false, deceptive, or misleading affiliation, connection, or association between a performing group and a recording group without the express authorization of the recording group unless:
(1) Such person or performing group is the authorized registrant and owner of a service mark for the recording group that is registered in the United States Patent and Trademark Office;
(2) At least one member of the performing group was a member of the recording group and such member of the recording group has a legal right to use or operate under the name of the recording group;
(3) The performance or production is identified in all advertising and promotion as a salute or tribute and the name of the performing group is not so closely related or similar to the name used by the recording group that it would tend to confuse or mislead the public; or
(4) The advertisement does not relate to a live performance or production taking place in, streamed into, or broadcasted in this state.
(c) Each advertisement, performance, or production in violation of this Code section shall constitute a separate violation.
(a) As used in this Code section, the term:
(1) “Accounts receivable purchase transaction” means a transaction in which a business forwards or otherwise sells to a person all or a portion of the business's accounts, as defined in Code Section 11-9-102, or payment intangibles, as defined in Code Section 11-9-102, at a discount to the accounts' or payment intangibles' expected value.
(2) “Advance fee” means any consideration which is assessed or collected prior to the closing of a commercial financing transaction by a broker.
(3) “Broker” means a person who, for compensation or the expectation of compensation, arranges a commercial financing transaction between a third party and a business in the state that would, if executed, be binding upon that third party and communicates that offer to a business located in this state. Such term excludes a “provider,” and any individual or entity whose compensation is not based or dependent upon on the terms of the specific commercial financing transaction obtained or offered.
(4) “Business” means a private enterprise carried on for the purpose of gain or economic profit.
(5)(A) “Business purpose transaction” means a transaction from which the resulting proceeds that a business receives are:
(i) Provided to the business; or
(ii) Intended to be used to carry on the business.
(B) Such term shall not include a transaction from which the resulting proceeds are intended to be used for personal, family, or household purposes.
(C) For purposes of determining whether a transaction is a business purpose transaction, a provider may rely on a written statement of intended purpose, signed by an individual authorized to sign on behalf of the business. Such written statement may be contained in an application, agreement, or other document signed by an individual authorized to sign on behalf of the business.
(6) “Commercial financing transaction” means a business purpose transaction:
(A) Under which a person extends a business a commercial loan or a commercial open-end credit plan; or
(B) That is an accounts receivable purchase transaction.
(7) “Commercial loan” means a loan to a business, regardless of whether the loan is secured.
(8) “Commercial open-end credit plan” means commercial financing extended to a business on terms under which:
(A) The creditor reasonably contemplates repeat transactions; and
(B) Subject to any limit set by the creditor, the amount of financing that the creditor may extend to the business during the term of the plan is made available to the extent that any outstanding balance is repaid.
(9) “Motor vehicle dealer” means a dealer as defined in Code Section 40-2-39 or a used motor vehicle dealer as defined in Code Section 43-47-2.
(10) “Provider” means a person who consummates more than five commercial financing transactions in this state during any calendar year and includes, but is not limited to, a person who, under a written agreement with a depository institution, offers one or more commercial financing products provided by the depository institution via an online platform that the person administers.
(b) The provisions of this Code section shall not apply to:
(1) A provider that is a federally insured depository financial institution;
(2) A provider that is:
(A) A subsidiary, an affiliate, or a holding company of a federally insured depository financial institution; or
(B) A service corporation for a federally insured depository financial institution;
(3) A provider that is regulated under the federal Farm Credit Act, 12 U.S.C. Section 2001, et seq.;
(4) A provider that is licensed as a money transmitter in accordance with Article 4 of Chapter 1 of Title 7;
(5) A provider that consummates five or fewer commercial financing transactions in the state during any 12 month period;
(6) A commercial financing transaction secured by real property;
(7) A commercial financing transaction that is a lease as defined in Code Section 11-2A-103;
(8) A commercial financing transaction that is a purchase money obligation as defined in Code Section 11-9-103;
(9) A commercial financing transaction that:
(A) Involves a commercial loan or a commercial open-end credit plan;
(B) Is $50,000.00 or more; and
(C) Extends the commercial loan or the commercial open-end credit plan to:
(i) A motor vehicle dealer or the motor vehicle dealer's affiliate; or
(ii) A motor vehicle rental company as defined in Code Section 40-2-167 or the motor vehicle rental company's affiliate;
(10) A commercial financing transaction offered by a person in connection with the sale or lease of a product or service that:
(A) The person manufactures, licenses, or distributes; or
(B) The person's parent company or any of such parent company's directly or indirectly owned and controlled subsidiaries manufactures, licenses, or distributes;
(11) A commercial financing transaction of more than $500,000.00; or
(12) A commercial financing product that is a factoring transaction, purchase, sale, advance, or similar of accounts receivables owed to a healthcare provider because of a patient's personal injury treated by the healthcare provider.
(c) For purposes of Chapter 1 of Title 7, a provider's characterization of an accounts receivable purchase transaction as a purchase shall be conclusive that the accounts receivable purchase transaction is not a loan or a transaction for the use, forbearance, or detention of money.
(d) For purposes of Chapter 1 of Title 7, a provider extending a specific offer for a commercial financing transaction on behalf of a depository institution shall not be construed to mean that the provider engaged in lending or financing or originated that loan or financing.
(e)(1) Before consummating a commercial financing transaction, a provider shall disclose the terms of the commercial financing transaction in accordance with this Code section.
(2) Only one disclosure must be provided for each commercial financing transaction, and a disclosure is not required as a result of the modification, forbearance, or change to a consummated commercial financing transaction.
(3) A provider shall disclose the following information in connection with each commercial financing transaction:
(A) The total amount of funds provided to the business under the terms of the commercial financing transaction;
(B) The total amount of funds disbursed to the business under the terms of the commercial financing transaction, if less than the amount described in subparagraph (A) of this paragraph, as a result of any fees deducted or withheld at disbursement, any amount paid to the provider to satisfy a prior balance, and any amount paid to a third party on behalf of the business;
(C) The total amount to be paid to the provider under the terms of the commercial financing transaction;
(D) The total dollar cost of the commercial financing transaction, calculated by finding the difference between:
(i) The amount described in subparagraph (A) of this paragraph; and
(ii) The amount described in subparagraph (C) of this paragraph;
(E)(i) The manner, frequency, and amount of each payment; or
(ii) If the amount of each payment may vary, the manner, frequency, and estimated amount of the initial payment; and
(F) A statement of whether there are any costs or discounts associated with prepayment under the commercial financing transaction, including a reference to the paragraph in the commercial financing transaction agreement that creates each cost or discount.
(4) The commercial financing transaction agreement shall include a description of the methodology for calculating any variable payment amount and the circumstances that may cause a payment amount to vary.
(5) The provisions of this subsection shall apply to any commercial financing transaction consummated on or after January 1, 2024.
(f) No broker shall:
(1) Assess, collect, or solicit an advance fee from a business to provide services as a broker; provided, however, that nothing contained in this paragraph shall preclude a broker from soliciting a potential business to pay for, or preclude a potential business from paying for, actual services necessary to apply for a commercial financing transaction, including, but not limited to, a credit check or an appraisal of security, where such payment is made by check or money order payable to a party independent of the broker;
(2) Make or use any false or misleading representations or omit any material fact in the offer or sale of the services of a broker or engage, directly or indirectly, in any act that operates or would operate as fraud or deception upon any person in connection with the offer or sale of the services of a broker, notwithstanding the absence of reliance by the buyer; or
(3) Make or use any false or deceptive representation in its business dealings.
(g) The Attorney General may:
(1) Receive and act on complaints;
(2) Take action designed to obtain voluntary compliance with this Code section; and
(3) Commence administrative or judicial proceedings on the Attorney General's own initiative to enforce compliance with this Code section.
(h) A person who violates a provision of this Code section is subject to a civil penalty of $500.00 per violation, not to exceed $20,000.00 for all violations arising from the use of the same transaction documentation or materials.
(i) A person who violates a provision of this Code section after receiving written notice of a prior violation is subject to a civil penalty of $1,000.00 per violation, not to exceed $50,000.00 for all violations arising from the use of the same transaction documentation or materials.
(j) Nothing in this Code section creates a private right of action against any person based on failure to comply with the provisions of this Code section.
(k) A violation of this Code section shall not affect the enforceability of any underlying agreement.
(a) Any unsolicited written inquiry or mailing by any person or entity that is not licensed or regulated pursuant to the provisions of Chapter 40 or Chapter 41 of Title 43 or Chapter 19 of Title 15 that expresses an interest in buying real property, or an option to buy real property, from the addressee or in buying the real property to which such written inquiry or mailing is addressed or that offers services relating to the sale of real estate shall include:
(1)(A) At the top of and at least two inches apart from any other text on such written inquiry or mailing, the following notice in capital letters:
“THIS IS A SOLICITATION. THE SENDER IS CONTACTING YOU TO INQUIRE AS TO YOUR INTEREST IN SELLING YOUR HOME OR OTHER REAL ESTATE. YOU ARE UNDER NO OBLIGATION TO RESPOND.”
(B) No text contained in such solicitation shall be larger than the text required in subparagraph (A) of this paragraph.
(2) On front of the envelope or, if there is no envelope, on the part of the written inquiry or mailing that bears the postage stamp or postage amount, the following notice in capital letters:
“SOLICITATION. YOU ARE UNDER NO OBLIGATION TO OPEN OR TO RESPOND.”
(3) The notices required in paragraphs (1) and (2) of this subsection shall be:
(A) Of a font that is the same as the majority of the text of the written inquiry or mailing;
(B) Of a size which is no smaller than the text of the written inquiry or mailing, and in no event no smaller than 16 point font; and
(C) Displayed in a distinctly contrasting color.
(b) Failure to comply with the provisions of this Code section shall be considered an unfair or deceptive act or practice which is unlawful and shall therefore be punishable by the provisions of this part; provided, however, that notwithstanding Code Section 10-1-399, a claim of a violation of this Code section may be brought in a representative capacity and may be the subject of a class action under Code Section 9-11-23; and provided, further, that damages for such violation shall be the actual damages or $200.00 per violation, whichever is greater.
(a) The Attorney General is authorized to adopt reasonable rules, regulations, and standards appropriate to effectuate the purposes of this part and prohibit specific acts or practices that are deemed to be a violation of this part. The Attorney General is also authorized to adopt as substantive rules that prohibit specific acts or practices in violation of Code Section 10-1-393 those rules and regulations of the Federal Trade Commission interpreting Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended.
(b) Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” shall apply to the promulgation of rules and regulations by the Attorney General pursuant to subsection (a) of this Code section and in taking testimony pursuant to Code Sections 10-1-403 and 10-1-404.
(a) The Attorney General shall have the necessary powers and authority to carry out the duties vested in him or her pursuant to this title. Any authority, power, or duty vested in the Attorney General by any provision of this title and Code Section 46-5-27 may be exercised, discharged, or performed by any employee of the office of the Attorney General acting in the Attorney General's name and by his or her delegated authority. The Attorney General shall be responsible for the official acts of such persons who act in his or her name and by his or her authority.
(b)(1) A Consumer Advisory Board is created whose duty it shall be to advise and make recommendations to the Attorney General. The board shall consist of 15 members. Appointments of members of this board made after July 1, 2015, shall be made by the Attorney General; however, the Attorney General shall not be an appointee. One member shall be appointed from each congressional district and the remaining members shall be appointed from the state at large. At least four members shall be attorneys representing consumers' interests and two of these consumers' attorneys shall represent Georgia Indigent Legal Services or any other legal aid society. At least four members shall be representatives of the business community, two of which are recommended by the Georgia Retail Association and two recommended for appointment by the Business Council of Georgia, Inc.
(2) All members appointed to the board by the Attorney General shall be appointed for terms of three years and until their successors are appointed and qualified. In the event of a vacancy during the term of any member by reason of death, resignation, or otherwise, the appointment of a successor by the Attorney General shall be for the remainder of the unexpired term of such member.
(3) The board shall elect its chairman and shall meet not less than once every four calendar months at a time and place specified in writing by the Attorney General. The board may also meet from time to time upon its own motion as deemed necessary by a majority of the members thereof for the purpose of conducting routine or special business. Each member of the board shall serve without pay but shall receive standard state per diem for expenses and receive standard travel allowance while attending meetings and while in the discharge of his or her responsibilities.
(4) The board shall assist the Attorney General in an advisory capacity in carrying out the duties and functions of the office concerning:
(A) Policy matters relating to consumer interests; and
(B) The effectiveness of the state consumer programs and operations.
(5) The board shall make recommendations concerning:
(A) The improvement of state consumer programs and operations;
(B) The elimination of duplication of effort;
(C) The coordination of state consumer programs and operations with other local and private programs related to consumer interests;
(D) Legislation needed in the area of consumer protection; and
(E) Avoidance of unnecessary burdens on business, if any, resulting from the administration of this part.
(c) The Attorney General shall receive all complaints under this part and shall refer all complaints or inquiries concerning conduct specifically approved or prohibited by the Department of Agriculture, Commissioner of Insurance, Public Service Commission, Department of Natural Resources, Department of Banking and Finance, or other appropriate agency or official of this state to that agency or official for initial investigation and corrective action other than litigation.
(d) Any official of this state receiving a complaint or inquiry as provided in subsection (c) of this Code section shall advise the Attorney General of his or her action with respect to the complaint or inquiry.
(e) All officials and agencies of this state having responsibility under this part are authorized and directed to consult and assist one another in maintaining compliance with this part.
(f) In the event a person holding a professional license as defined in Chapter 4 of Title 26 or in Title 43 shall be determined by the Attorney General to be operating a business or profession intentionally, persistently, and notoriously in a manner contrary to this part, the Secretary of State, at the instruction of the Attorney General, shall begin proceedings to revoke such professional license.
(g) The Attorney General shall not be authorized to exercise any powers granted in this part against a person regulated by an agency or department listed in subsection (c), subsection (d), or subsection (e) of this Code section with regard to conduct specifically approved or prohibited by such agency or department if such agency or department certifies to the Attorney General that the exercise of such powers would not be in the public interest.
(h) Nothing contained in this part shall be construed as repealing, limiting, or otherwise affecting the existing powers of the various regulatory agencies of the State of Georgia except that all agencies of this state, in making determinations as to whether actions or proposed actions of persons subject to their jurisdiction and control are in the public interest, shall consider the situation in the light of the policies expressed by this part.
Nothing in this part shall apply to:
(1) Actions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States;
(2) Acts done by the publisher, owner, agent, or employee of a newspaper, periodical, radio station or network, or television station or network in the publication or dissemination in print or electronically of:
(A) News or commentary; or
(B) An advertisement of or for another person, when the publisher, owner, agent, or employee did not have actual knowledge of the false, misleading, or deceptive character of the advertisement, did not prepare the advertisement, or did not have a direct financial interest in the sale or distribution of the advertised product or service.
(a) As used in this Code section, the term:
(1) “Call” means any communication, message, signal, or transmission.
(2) “Telecommunications company” shall have the same meaning as provided in Code Section 46-5-162.
(3) “Telecommunications services” shall have the same meaning as provided in Code Section 46-5-162.
(b) Whenever it may appear to the Attorney General that any person is using, has used, or is about to use any method, act, or practice declared by this part or by regulations made under Code Section 10-1-394 to be unlawful and that proceedings would be in the public interest, whether or not any person has actually been misled, the Attorney General may:
(1) Subject to notice and opportunity for hearing in accordance with Code Section 10-1-398, unless the right to notice is waived by the person against whom the sanction is imposed, take any or all of the following actions:
(A) Issue a cease and desist order prohibiting any unfair or deceptive act or practice against any person;
(B) Issue an order against a person who willfully violates this part, imposing a civil penalty of up to a maximum of $2,000.00 per violation; or
(C) Issue an order requiring a person whose actions are in violation of this part to pay restitution to any person or persons adversely affected by such actions; or
(2) Without regard as to whether the Attorney General has issued any orders under this Code section, upon a showing by the Attorney General in any superior court of competent jurisdiction that a person has violated or is about to violate this part, a rule promulgated under this part, or an order of the Attorney General, the court may enter or grant any or all of the following relief:
(A) A temporary restraining order or temporary or permanent injunction;
(B) A civil penalty of up to a maximum of $5,000.00 per violation of this part;
(C) A declaratory judgment;
(D) Restitution to any person or persons adversely affected by a defendant's actions in violation of this part;
(E) The appointment of a receiver, auditor, or conservator for the defendant or the defendant's assets; or
(F) Other relief as the court deems just and equitable.
(c) Unless the Attorney General determines that a person subject to this part designs quickly to depart from this state or to remove his or her property therefrom or to conceal himself or herself or his or her property therein or that there is immediate danger of harm to citizens of this state or of another state, the Attorney General shall, unless he or she seeks a temporary restraining order to redress or prevent an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, before initiating any proceedings as provided in this Code section, give notice in writing that such proceedings are contemplated and allow such person a reasonable opportunity to appear before the Attorney General and execute an assurance of voluntary compliance as provided in this part. The determination of the Attorney General under this subsection shall be final and not subject to judicial review.
(d) With the exception of consent judgments entered before any testimony is taken, a final judgment under this Code section shall be admissible as prima-facie evidence of such specific findings of fact as may be made by the court which enters the judgment in subsequent proceedings by or against the same person or his or her successors or assigns.
(e) When a receiver is appointed by the court pursuant to this part, he or she shall have the power to sue for, collect, receive, and take into his or her possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes, and property of every description derived by means of any practice declared to be illegal and prohibited by this part, 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. In the case of a partnership or business entity, the receiver may, in the discretion of the court, be authorized to dissolve the business and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
(f)(1) Whenever the Attorney General issues a cease and desist order to any person regarding the use of a telephone number which when called automatically imposes a per-call charge or other costs to the consumer, other than a regular charge imposed for long distance service, including, but not limited to, a telephone number in which the local prefix is 976 or in which the long distance prefix is 900, the Attorney General may certify to the appropriate local or long distance telecommunications company responsible for billing consumers for the charges that billing for the charges or for certain of the charges should be suspended. The telecommunications company shall then suspend such billing with reasonable promptness to preserve the assets of consumers in accordance with the certification, without incurring any liability to any person for doing so. For the purposes of this Code section, “reasonable promptness to preserve the assets of consumers” shall mean to act as quickly as the telecommunications company would act to preserve its own assets, provided that the telecommunications company cannot be required to make any changes to its existing systems, technologies, or methods used for billing, other than any minimal procedural changes necessary to actually suspend the billing. The telecommunications company shall not be made a party to any proceedings under this part for complying with this requirement but shall have a right to be heard as a third party in any such proceedings.
(2) The suspension of billing under this subsection shall remain in effect until the Attorney General certifies to the telecommunications company that the matter has been resolved. The Attorney General shall certify to the telecommunications company with reasonable promptness when the matter has been resolved. In this certification, the Attorney General shall advise the telecommunications company to collect none of, all of, or any designated part of the billings in accordance with the documents or orders which resolved the matter. The telecommunications company shall collect or not collect the billings in the manner so designated and shall not incur any liability to any person for doing so.
(3) Nothing contained in this subsection shall limit or restrict the right of the telecommunications company to place its own restrictions, guidelines, or criteria, by whatever name denominated, upon the use of such telecommunications services, provided such restrictions, guidelines, or criteria do not conflict with the provisions of this subsection.
The Attorney General is authorized to initiate or intervene as a matter of right or otherwise appear in any federal court or administrative agency to implement the provisions of this article.
(a) Any person receiving a cease and desist order from the Attorney General, and who demonstrates in any superior court of competent jurisdiction, after petition to the court and notice to the Attorney General, that such order will unlawfully cause him or her irreparable harm, shall receive a temporary stay of the order pending the court's review of that order. Such temporary stay shall not exceed 30 days, during which time the court will review the order to determine if an interlocutory stay will be issued pending a final judicial determination of the issues.
(b) Where the Attorney General has issued any order prohibiting any unfair or deceptive act or practice, he or she shall promptly send by certified or registered mail or statutory overnight delivery or by personal service to the person or persons so prohibited a notice of opportunity for hearing. Hearings shall be conducted pursuant to this Code section by the Attorney General or his or her designated representative. Such notice shall state:
(1) The order which has issued and which is proposed to be issued;
(2) The ground for issuing such order and proposed order;
(3) That the person to whom such notice is sent will be afforded a hearing upon request if such request is made within ten days after receipt of the notice; and
(4) That the person to whom such notice is sent may obtain a temporary stay of the order upon a showing of irreparable harm in any superior court of competent jurisdiction.
(c) Whenever a person requests a hearing in accordance with this Code section, there shall promptly be set a date, time, and place for such hearing and the person requesting such hearing shall be notified thereof. The date set for such hearings shall be within 15 days, but not earlier than five days after the request for hearing has been made, unless otherwise agreed to by the Attorney General and the person requesting the hearing.
(d) In the case of any hearing conducted under this Code section, the Attorney General or his or her designated representative may conduct the hearing.
(e) The Attorney General shall have authority to do the following:
(1) Administer oaths and affirmations;
(2) Sign and issue subpoenas;
(3) Rule upon offers of proof;
(4) Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs;
(5) Dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground;
(6) Dispose of motions to amend or to intervene;
(7) Provide for the taking of testimony by deposition or interrogatory; and
(8) Reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency.
(f) Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the hearing is being heard for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court.
(g) A record shall be kept in each contested case and shall include:
(1) All pleadings, motions, and intermediate rulings;
(2) A summary of the oral testimony plus all other evidence received or considered except that oral proceedings or any part thereof shall be transcribed or recorded upon request of any party. Upon written request therefor, a transcript of the oral proceedings or any part thereof shall be furnished to any party of the proceedings. The Attorney General shall set a uniform fee for such service;
(3) A statement of matters officially noticed;
(4) Questions and offers of proof and rulings thereon;
(5) Proposed findings and exceptions;
(6) Any decision, including any initial, recommended, or tentative decision, opinion, or report by the officer presiding at the hearing; and
(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
(h) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(i) If the Attorney General does not receive a request for a hearing within the prescribed time where he or she has issued an order prohibiting any unfair or deceptive act or practices, he or she may permit an order previously entered to remain in effect or he or she may enter a proposed order. If a hearing is requested and conducted as provided in this Code section, the Attorney General shall issue a written order which shall:
(1) Set forth his or her findings with respect to the matters involved; and
(2) Enter an order in accordance with his or her findings.
(j) The Attorney General may promulgate such procedural rules and regulations as may be necessary for the effective administration of the authority granted to the Attorney General under this Code section.
Any person who has exhausted all administrative remedies available and who is aggrieved by a final decision in a contested case is entitled to judicial review in accordance with the procedures, standards, and requirements set forth in Code Section 50-13-19.
(a) Any person who suffers injury or damages as a result of a violation of Chapter 5B of this title, as a result of consumer acts or practices in violation of this part, as a result of office supply transactions in violation of this part or whose business or property has been injured or damaged as a result of such violations may bring an action individually, but not in a representative capacity, against the person or persons engaged in such violations under the rules of civil procedure to seek equitable injunctive relief and to recover his or her general and exemplary damages sustained as a consequence thereof in any court having jurisdiction over the defendant; provided, however, exemplary damages shall be awarded only in cases of intentional violation. Notwithstanding any other provisions of law, a debtor seeking equitable relief to redress an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, upon facts alleged showing a likelihood of success on the merits, may not, within the discretion of the court, be required to make a tender. Nothing in this subsection or paragraph (20) of subsection (b) of Code Section 10-1-393 shall be construed to interfere with the obligation of the debtor to a lender who is not in violation of paragraph (20) of subsection (b) of Code Section 10-1-393. A claim under this Code section may also be asserted as a defense, setoff, cross-claim, or counterclaim or third-party claim against such person.
(b) At least 30 days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be delivered to any prospective respondent. Any person receiving such a demand for relief who, within 30 days of the delivering of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning this rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. The demand requirements of this subsection shall not apply if the prospective respondent does not maintain a place of business or does not keep assets within the state. The 30 day requirement of this subsection shall not apply to a debtor seeking a temporary restraining order to redress or prevent an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, provided that said debtor gives, or attempts to give the written demand required by this subsection at least 24 hours in advance of the time set for the hearing of the application for the temporary restraining order. Such respondent may otherwise employ the provisions of this Code section by making a written offer of relief and paying the rejected tender into court as soon as practicable after receiving notice of an action commenced under this Code section. All written tenders of settlement such as described in this subsection shall be presumed to be offered without prejudice in compromise of a disputed matter.
(c) Subject to subsection (b) of this Code section, a court shall award three times actual damages for an intentional violation.
(d) If the court finds in any action that there has been a violation of this part, the person injured by such violation shall, in addition to other relief provided for in this Code section and irrespective of the amount in controversy, be awarded reasonable attorneys' fees and expenses of litigation incurred in connection with said action; provided, however, the court shall deny a recovery of attorneys' fees and expenses of litigation which are incurred after the rejection of a reasonable written offer of settlement made within 30 days of the mailing or delivery of the written demand for relief required by this Code section; provided, further, that, if the court finds the action continued past the rejection of such reasonable written offer of settlement in bad faith or for the purposes of harassment, the court shall award attorneys' fees and expenses of litigation to the adverse party. Any award of attorneys' fees and expenses of litigation shall become a part of the judgment and subject to execution as the laws of Georgia allow.
(e) Any manufacturer or supplier of merchandise whose act or omission, whether negligent or not, is the basis for action under this part shall be liable for the damages assessed against or suffered by retailers charged under this part. A claim of such liability may be asserted by cross-claim, third-party complaint, or by separate action.
(f) It shall not be a defense in any action under this part that others were, are, or will be engaged in like practices.
(g) In any action brought under this Code section the Attorney General shall be served by certified or registered mail or statutory overnight delivery with a copy of the initial complaint and any amended complaint within 20 days of the filing of such complaint. The Attorney General shall be entitled to be heard in any such action, and the court where such action is filed may enter an order requiring any of the parties to serve a copy of any other pleadings in an action upon the Attorney General.
In any action in which damages are demanded under Code Section 10-1-399, recovery will be limited to the amount, if any, by which the injured party suffered injury or damage caused by the violation if the adverse party proves that the violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error and that such error was not the result of negligence in the maintenance of such procedures.
(a) No private right of action shall be brought under this part:
(1) More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
(2) More than two years after the termination of any proceeding or action by the State of Georgia, whichever is later.
(b) Damages or penalties to which a person is entitled pursuant to this part may be set off against the allegation of the person to the seller and may be raised as a defense to a suit on the obligation without regard to the time limitations prescribed by this Code section.
In the administration of this part the Attorney General may accept an assurance of voluntary compliance with respect to any act or practice deemed to be violative of this part from any person who has engaged or was about to engage in such act or practice. Any such assurance shall be in writing and be filed with the clerk of the superior court of the county in which the alleged violator resides or has his or her principal place of business or with the clerk of the Superior Court of Fulton County. Such assurance of voluntary compliance shall not be considered an admission of violation for any purpose. Matters thus processed may at any time be reopened by the Attorney General for further proceedings in the public interest, pursuant to Code Section 10-1-397. This Code section shall not bar any claim against any person who has engaged in any act or practice in violation of this part.
(a) When it reasonably appears to the Attorney General that a person has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by this part or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in, or is about to engage in any act or practice declared to be unlawful by this part, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation an investigative demand requiring such person to furnish, under oath or otherwise, a report in writing setting forth the relevant facts and circumstances of which he has knowledge or to appear and testify or to produce relevant documentary material or physical evidence for examination at such reasonable time and place as may be stated in the investigative demand, concerning the advertisement, sale, or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation.
(b) If a matter that the Attorney General makes the subject of an investigative demand is located outside the state, the person receiving the investigative demand may either make it available to the Attorney General at a convenient location within this state or pay the reasonable and necessary expenses for the Attorney General or his or her representative to examine the matter at the place where it is located. The Attorney General may designate representatives, including officials of the state in which the matter is located, to inspect the matter on his or her behalf, and may respond to similar requests from officials of other states.
(c)(1) Each such investigative demand shall state the nature of the conduct constituting the alleged violation of this part which is under investigation and the provision of law applicable thereto; describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified; describe the nature, scope, and purpose of the investigation with such definiteness and certainty as to permit any person whose testimony is sought to be fairly appraised of the subject matter of the inquiry; prescribe a return date which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying or reproduction and the person or persons whose testimony is sought may prepare for the same; and identify the person to whom such material shall be made available.
(2) No such investigative demand shall:
(A) Contain any requirement which would be held to be unreasonable as contained in a subpoena for the production of documentary evidence issued by a court of this state in aid of a grand jury investigation of such alleged violation; or
(B) Require the production of any documentary evidence or oral testimony which would be privileged from disclosure if demanded by a subpoena for the production of documentary evidence issued by a court of this state in aid of a grand jury investigation of such alleged violation;
provided, however, that the limitations on the scope of demand contained in this paragraph do not require as a condition to the issuance of an investigative demand that the alleged violation be of sufficient seriousness as to constitute a violation of the criminal laws of this state, as opposed to the civil provisions of this part.
(a) To carry out the duties prescribed by Code Sections 10-1-394, 10-1-395, 10-1-397, 10-1-398, and 10-1-403, the Attorney General, in addition to other powers conferred upon him or her by this part, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, prescribe such forms, and promulgate such procedural rules and regulations as may be necessary, which procedural rules and regulations shall have the force of law.
(b) The recipient of an investigative demand or subpoena may file an objection with the Attorney General within the reasonable time allotted for responding on grounds that it fails to comply with this part or upon any constitutional or other legal right or privilege of such person. Upon failure of a person without lawful excuse to obey an investigative demand or subpoena, the Attorney General may apply to a superior court having jurisdiction for an order compelling compliance. The court may issue an order directing compliance with the original demand or subpoena or modifying or setting aside such demand or subpoena based on any objection that was raised before the Attorney General.
(c) The Attorney General may request that a natural person who refuses to testify or to produce relevant matter on the ground that the testimonial matter may incriminate him be ordered by the court to provide the testimonial matter. With the exception of a prosecution for perjury and an action under Code Section 10-1-397, 10-1-398, 10-1-399, or 10-1-405, a natural person who complies with the court order to provide a testimonial matter after asserting a privilege against self-incrimination to which he is entitled by law shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise.
(d)(1) Information obtained pursuant to investigative demands, subpoenas, oaths, affirmations, or hearings enforced by this part shall not be made public or, except as authorized in paragraph (2) of this subsection, disclosed by the Attorney General or his or her employees beyond the extent necessary for the enforcement of this part.
(2) The Attorney General or his or her employees shall be authorized to provide to any federal, state, or local law enforcement agency any information acquired under this part which is sought pursuant to an investigative demand or subpoena by such agency. State or local law enforcement agencies shall be authorized to provide any information to the Attorney General when the Attorney General issues an investigative demand or subpoena for such information.
(a) Any person who violates the terms of an injunction issued under Code Section 10-1-397 shall forfeit and pay to the state a civil penalty of not more than $25,000.00 per violation. For purposes of this Code section, the superior court issuing an injunction shall retain jurisdiction and the cause shall be continued and in such cases the Attorney General, acting in the name of the state, may petition for recovery of civil penalties.
(b) In the case of a continuing violation under this part, each day shall be regarded as a separate violation.
(c) Any intentional violation by a corporation, partnership, or association shall be deemed to be also that of the individual directors, officers, partners, employees, or agents of the corporation, partnership, or association who knew or should have known of the acts constituting the violation and who directly authorized, supervised, ordered, or did any of the acts constituting in whole or in part the violation; provided, however, no such individual directors, officers, partners, employees, or agents shall have any individual liability under this subsection unless the corporation, partnership, or association, as the case may be, which has committed the intentional violation shall fail to pay into the court within 30 days after judgment sufficient moneys or assets to satisfy the judgment.
(d) The Attorney General shall have the authority to compromise or settle claims for penalty brought under this Code section.
Whenever an investigation has been conducted under this article and such investigation reveals conduct which constitutes a criminal offense, the Attorney General shall have the authority to prosecute the case or forward the results of such investigation to a prosecuting attorney of this state who shall commence any criminal prosecution that such prosecuting attorney deems appropriate.
This part is cumulative with other laws and is not exclusive. The rights or remedies provided for in this part shall be in addition to any other procedures, rights, remedies, or duties provided for in any other law or in decisions of the courts of this state dealing with the subject matter.
Rules, orders, actions, and regulations previously adopted which relate to functions performed by the administrator appointed pursuant to the Fair Business Practices Act of 1975 which were transferred under this article to the Attorney General shall remain of full force and effect as rules, orders, actions, and regulations of the Attorney General until amended, repealed, or superseded by rules or regulations adopted by the Attorney General.
As used in this part, the term:
(1) “Agreement” means any agreement relating to a business opportunity or multilevel distribution company, including, but not limited to, the contract.
(2)(A) “Business opportunity” means the sale or lease of, or offer to sell or lease, any products, equipment, supplies, or services for the purpose of enabling the purchaser to start a business and in which the seller or company represents:
(i) That the seller or company will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases or other similar devices, or currency operated amusement machines or devices. For purposes of this subparagraph, “assist the purchaser in finding locations” includes but is not limited to supplying the purchaser with names of locator companies, contracting with the purchaser to provide assistance or supply names, or collecting a fee on behalf of or for a locator company;
(ii) That the seller or company will purchase any or all products made, produced, fabricated, grown, bred, or modified by the purchaser using, in whole or in part, the supplies, services, or chattels sold to the purchaser; or
(iii) That the company, in conjunction with any agreement which requires a total initial payment of an amount exceeding $500.00, will provide a sales program or marketing program; provided, however, that this subparagraph shall not apply to the sale of a sales program or a marketing program made in conjunction with the licensing of a registered trademark or service mark.
(B) The term “business opportunity” does not include:
(i) The sale of an ongoing business when the owner of that business sells and intends to sell only that one business opportunity;
(ii) Any relationship created solely by or involving:
(I) The relationship between an employer and an employee or among general business partners; or
(II) Membership in a bona fide cooperative association or transactions between bona fide cooperative associations and their members. As used in this subdivision, the term “cooperative association” means either (1) an association of producers of agricultural products organized pursuant to Article 3 of Chapter 10 of Title 2 or statutes similar thereto enacted by other states, or (2) an organization operated on a cooperative basis by and for independent retailers which wholesales goods or furnishes services primarily to its member-retailers;
(iii) Any agribusiness corporation;
(iv) Any insurance agency;
(v) Any offer or sale of a business opportunity where the seller has a net worth on a consolidated basis of not less than $15 million as determined on the basis of the seller's most recent audited financial statement; and where the seller satisfies all of the following conditions or is a wholly owned subsidiary of a company that satisfies all of the following conditions:
(I) Seller is a publicly traded company;
(II) Seller has a class of securities registered pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934 1 and has timely filed all reports required under Sections 13 and 14 of the Securities Exchange Act of 1934 2 for a period of 36 months;
(III) Seller has not failed to pay any dividend or defaulted on any loan payment in the last five fiscal years;
(IV) Seller has an annual trading volume of stock of 3,000,000 shares or more; and
(V) Seller has an aggregate market value of the voting stock held by nonaffiliates of $100 million or more; or
(vi) A landlord, property manager, or owner who licenses or leases pushcarts or kiosks within or adjacent to a retail center containing divided retail floor space and common areas which will be used by any such licensee or lessee to sell goods or services not supplied by the landlord, property manager, or owner or any entity affiliated or associated with the landlord, property manager, or owner. For the purposes of this division, the term “pushcart” means a mobile retail unit from which goods or services are sold in the common area of a retail center, and the term “kiosk” means a temporary retail unit from which goods or services are sold in the common area of a retail center.
(3) “Business opportunity seller or company” means any corporation, whether domestic or foreign, or any business, whether a partnership, limited partnership, sole proprietorship, joint venture, association, trust, unincorporated organization, or other entity, which shall solicit, advertise, offer, or contract for any business opportunity or cause to be solicited, advertised, offered, or contracted for any business opportunity in this state, or which has a principal place of business in this state, even if solicitations are of nonresidents of Georgia.
(4) “Company” means any multilevel distribution company or business opportunity company or seller.
(5) “Initial payment” means the total amount which a purchaser or participant is obligated or agrees to pay under the terms of an agreement before or at the time of delivery of the goods or services to the purchaser or participant and which a purchaser or participant is obligated to pay within six months of the date that the purchaser or participant commences operation of the business. If the agreement states a total price and provides that the total price is to be paid partially as an initial cash payment and the remainder in specific monthly payments, the term means the total price. The term does not include any amount required by the seller to be deposited as security for the performance by a purchaser or participant of the operation of the business or that secures an extension of credit. If purchasers or participants may enter a multilevel distribution company or business opportunity at different levels, “initial payment” means the total sum the purchaser or participant is obligated to pay to enter at the level chosen by the purchaser or participant.
(6) “Multilevel distribution company” means any person, firm, corporation, or other business entity which sells, distributes, or supplies for a valuable consideration goods or services through independent agents, contractors, or distributors at different levels wherein such participants may recruit other participants and wherein commissions, cross-commissions, bonuses, refunds, discounts, dividends, or other considerations in the program are or may be paid as a result of the sale of such goods or services or the recruitment, actions, or performances of additional participants. The term shall not include licensed insurance agents, insurance agencies, licensed real estate brokers, licensed real estate agents, licensed real estate agencies, licensed securities dealers, licensed limited securities dealers, licensed securities salesmen, or licensed limited securities salesmen. Any multilevel distribution company which operates in any of the forms precluded by paragraphs (1) through (4) of subsection (a) of Code Section 10-1-411 shall be considered an unlawful pyramid club under Code Section 16-12-38.
(7) “Participant” means anyone who participates at any level in a multilevel distribution company.
(8) “Person” means any individual, corporation, partnership, joint venture, association, trust, unincorporated organization, or other entity and shall include any other person that has a substantive interest in or effectively controls such person as well as the individual officers, directors, general partners, trustees, or other individuals in control of the activities of such person.
(9) “Purchaser” means any person who is solicited to become obligated, or does become obligated, under any agreement.
(10) “Seller” means any multilevel distribution company or it means any person who offers to sell to individuals any business opportunity, either directly or through any agent.
1 15 U.S.C.A. § 78l(b) or (g).
2 15 U.S.C.A. §§ 78m and 78n.
(a) No multilevel distribution company or participant in its marketing program shall:
(1) Operate or, directly or indirectly, participate in the operation of any multilevel marketing program wherein the financial gains to the participants are primarily dependent upon the continued, successive recruitment of other participants and where sales to nonparticipants are not required as a condition precedent to realization of such financial gains;
(2) Offer to pay, pay, or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend, or other consideration to any participant in a multilevel marketing program solely for the solicitation or recruitment of other participants therein;
(3) Offer to pay, pay, or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend, or other consideration to any participant in a multilevel marketing program in connection with the sale of any product or service unless the participant performs a bona fide supervisory, distributive, selling, or soliciting function in the sale or delivery of such product or services to the ultimate consumer;
(4) Offer to pay, pay, or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend, or other consideration to any participant:
(A) Where payment thereof is or would be dependent on the element of chance dominating over the skill or judgment of such participant;
(B) Where no amount of judgment or skill exercised by the participant has any appreciable effect upon any finder's fee, bonus, refund, override, commission, cross-commission, dividend, or other consideration which the participant may receive; or
(C) Where the participant is without that degree of control over the operation of such plan as to enable him substantially to affect the amount of finder's fee, bonus, refund, override, commission, cross-commission, dividend, or other consideration which he may receive or be entitled to receive; or
(5) Represent, directly or by implication, that participants in a multilevel marketing program will earn or receive any stated gross or net amount or represent in any manner the past earnings of participants except as may be permitted under this part; provided, however, that a written or verbal description of the manner in which the marketing plan operates shall not, standing alone, constitute a representation of earnings, past or future. Multilevel distribution companies shall not represent, directly or by implication, that it is relatively easy to secure or retain additional distributors or sales personnel or that most participants will succeed.
(b) At least 48 hours prior to the time the purchaser signs a business opportunity contract or at least 48 hours prior to the receipt of any consideration by the seller, whichever occurs first, the seller must provide the prospective purchaser a written document, the cover sheet of which is entitled in at least ten-point boldface capital letters: “DISCLOSURES REQUIRED BY GEORGIA LAW.” Under this title shall appear the statement in at least ten-point type that:
“The State of Georgia has not reviewed and does not approve, recommend, endorse, or sponsor any business opportunity. The information contained in this disclosure has not been verified by the state. If you have any questions about this investment, see an attorney before you sign a contract or agreement.”
Nothing except the title and required statement shall appear on the cover sheet. The disclosure document shall contain the following information:
(1) The name of the company; whether the company is doing business as a proprietorship, partnership, or corporation; the names under which the company has done, is doing, or intends to do business; and the name of any parent or affiliated company that will engage in business transactions with purchasers or which takes responsibility for statements made by the seller;
(2) The names, addresses, and titles of the company's officers, directors, trustees, general partners, general managers, principal executives, and any other persons charged with responsibility for the company's business activities relating to the sale of business opportunities;
(3) The length of time the company has:
(A) Sold business opportunities; and
(B) Sold business opportunities involving the products, equipment, supplies, or services currently offered to the purchaser;
(4) A full and detailed description of the actual services that the seller or company undertakes to perform for the purchaser;
(5) A copy of a current (not older than 13 months) financial statement of the company, updated to reflect any material changes in the company's financial condition;
(6) If training of any type is promised by the seller or company, a complete description of the training and the length of the training;
(7) If the seller or company promises services to be performed in connection with the placement of equipment, product, or supplies at various locations, the full nature of those services as well as the nature of the agreements to be made with the owners or managers of those locations where the purchaser's equipment, product, or supplies will be placed;
(8) If the company is required to secure a bond or establish a trust deposit pursuant to Code Section 10-1-412, either of the following statements:
| (A) “As required by Georgia law, the company has secured a bond issued | | --- | | by _______________________________________________________________________________________________, | | (name and address of surety company) |
a surety company authorized to do business in this state. Before signing a contract to purchase this business opportunity, you should check with the surety company to determine the bond's current status.”; or
| (B) “As required by Georgia law, the company has established a trust | | --- | | account _______________________________________________________________ with | | (number of account) | | ____________________________________________________________. Before signing | | (name and address of bank or savings institution) |
a contract to purchase this business opportunity, you should check with the bank or savings institution to determine the current status of the trust account.”;
(9) The following statement:
“If the company fails to deliver the product, equipment, or supplies necessary to begin substantial operation of the business within 45 days of the delivery date stated in your contract, you may notify the company in writing and demand that the contract be canceled.”;
(10) If the seller or company makes any statement concerning sales or earnings or range of sales or earnings that may be made through this business opportunity, the following disclosures:
(A) The total number of purchasers of business opportunities involving the product, equipment, supplies, or services being offered who, to the company's knowledge, have actually received earnings in the amount or range specified within three years prior to the date of the disclosure statement; and
(B) The total number of purchasers of business opportunities involving the product, equipment, supplies, or services being offered within three years prior to the date of the disclosure statement;
(11) The following statement:
“The company selling a business opportunity or the seller shall collect no more than 15 percent of the purchase price. The balance of the purchase price shall be paid into an escrow account, established with a bank or an attorney, which is agreed upon by both parties. The balance in escrow shall be paid to the company 60 days after the date the purchaser commences operation of the business or upon complete compliance with the terms of the contract, whichever happens first.”; and
(12) The seller's principal business address and the name and address of its agent in this state authorized to receive service of process.
(c) In lieu of the disclosures required by paragraphs (1) through (7), (9), and (10) of subsection (b) of this Code section, a seller may utilize the documents prescribed by the Federal Trade Commission, pursuant to Title 16, Chapter 1, Subchapter D, Trade Regulation Rules, Part 436--Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, provided that the seller shall provide the prospective purchaser with a separate written cover sheet which is entitled in at least ten-point boldface capital letters: “DISCLOSURES REQUIRED BY GEORGIA LAW.” Under this title shall appear the statement in at least ten-point type that:
“The State of Georgia has not reviewed and does not approve, recommend, endorse, or sponsor any business opportunity. The information contained in this disclosure has not been verified by the state. If you have any questions about this investment, see an attorney before you sign a contract or agreement.”
Nothing except the title and required statement shall appear on the cover sheet.
(a) Any business opportunity seller or company which represents, in conjunction with any agreement which requires a total initial payment of an amount exceeding $500.00, that the seller or company will refund all or part of the price paid for the business opportunity or will repurchase any of the products, equipment, supplies, or chattels supplied by the seller or company if the purchaser is dissatisfied with the business opportunity and any multilevel distribution company must either have obtained a surety bond issued by a surety company authorized to do business in this state or have established a trust account with a licensed and insured bank or savings institution located in this state. For purposes of this subsection, deposits shall not be considered part of the price paid for the business opportunity. The amount of the bond or trust account shall be an amount not less than $75,000.00. The bond or trust account shall be in favor of the state for the benefit of any person who is damaged by any violation of this part or by the seller's or company's breach of the contract or agreement or of any obligation arising therefrom. Such person may bring an action against the bond or trust account to recover damages suffered; provided, however, that the aggregate liability of the surety or trustee shall be only for actual damages and in no event shall exceed the amount of the bond or trust account. A multilevel distribution company which requires an initial payment of less than $500.00 from each participant shall be exempt from the requirements of this Code section.
(b) In any sale of a business opportunity, the seller shall collect no more than 15 percent of the total purchase price, with the balance to be placed in an independent escrow account agreed upon by both parties. The balance in the escrow account shall be paid to the seller 60 days after the date the purchaser commences operation of the business or upon complete compliance with the terms of the contract, whichever happens first.
(a) Every multilevel distribution company intending to have participants in this state, with an agreement made in this state, or with its principal place of business in this state shall have readily available to any potential participants, prior to obtaining any participants in this state or elsewhere, a copy of the contract and of any material incorporated by reference into the contract to be used with participants. In every instance in which a multilevel distribution company solicits any initial payment in excess of $500.00, the multilevel distribution company shall also have readily available to the particular potential participant or participants, prior to signing the contract, a disclosure statement containing the following:
(1) The name and principal business address of the company; whether the company is doing business as a proprietorship, partnership, or corporation; the names under which the company has done, is doing, or intends to do business; and the name of any parent or affiliated company that will engage in business transactions with participants;
(2) The names, addresses, and titles of the company's officers, directors, and trustees;
(3) The length of time the company has:
(A) Been engaged in multilevel distribution; and
(B) Been engaged in multilevel distributions involving the types of products, equipment, supplies, or services currently offered to the purchaser; and
(4) A detailed description of the levels of distribution in the multilevel program, the manner in which participants will be compensated, and the extent or amount of any compensation.
(b) Every seller shall update the disclosures required by subsection (b) of Code Section 10-1-411 and by subsection (a) of Code Section 10-1-413 as often as any material change in the required information occurs, but not less than annually.
(c) Whenever a multilevel distribution company must provide the disclosure statement required by subsection (a) of this Code section, the multilevel distribution company, prior to obtaining any participant, shall provide that participant with an 8 1/2 inch by 11 inch document in at least ten-point type, which reads as follows:
“NOTICE REQUIRED BY STATE LAW REGARDING DISCLOSURES
State law requires that a multilevel distribution company shall make available certain disclosures regarding the company prior to obtaining participants. This is your official notice that you have a right to request to see these disclosures prior to entering into any agreement with a multilevel distribution company. This will be the only notice you receive regarding your rights to see these disclosures. If you waive these rights, you are giving up an important consumer protection that the State of Georgia has found you should be provided. If you wish to exercise these rights, please indicate below that you want to see the disclosures before agreeing to be a participant, then do not agree to become a participant until the disclosures have been made available to you.
SIGN ONLY ONE OF THE FOLLOWING STATEMENTS:
I wish to see the disclosures required by law before I agree to become a participant. _______________________________________________
| | Date: ___________________________ | | --- | --- |
I do not wish to see the disclosures required by law; I understand that I will not be seeing important information which might affect my decision to participate in this multilevel distribution company. ______________________________
| | Date: _________________________” | | --- | --- |
(d) Every multilevel distribution company shall maintain on file all of the statements as described in subsection (c) of this Code section for a period of two years from the date such statements are signed.
(e) Every seller shall include the following regarding each officer, director, principal, and owner in the disclosures required by subsection (b) of Code Section 10-1-411 and by subsection (a) of Code Section 10-1-413:
(1) Whether he or she has at any time during the previous seven fiscal years been convicted of a felony or pleaded nolo contendere to a felony charge if the felony involved fraud, including violation of any franchise law, unfair or deceptive acts or practices law, business opportunity law, multilevel distributing law, or pyramid law; embezzlement; fraudulent conversion; misappropriation of property; or restraint of trade;
(2) Whether he or she has at any time during the previous seven fiscal years been held liable in a civil action resulting in a final judgment or has settled out of court any civil action or is a party to any civil action involving fraud, including violation of any franchise law, unfair or deceptive acts or practices law, business opportunity law, multilevel distributing law, or pyramid law; embezzlement; fraudulent conversion; misappropriation of property; or restraint of trade;
(3) Whether he or she is currently subject to any state or federal agency or court injunctive or restrictive order or is a party to a proceeding currently pending in which such an order is sought relating to fraud, including violation of any franchise law, unfair or deceptive acts or practices law, business opportunity law, multilevel distributing law, or pyramid law; embezzlement; fraudulent conversion; misappropriation of property; or restraint of trade; and
(4) Whether he or she has at any time during the previous seven fiscal years filed in bankruptcy, been adjudged bankrupt, or been reorganized due to insolvency or has been a principal, director, executive officer, or partner of any other person that has so filed or was so adjudged or reorganized during or within one year after the period that such person held such position in such other person.
(f) The disclosures required under subsection (e) of this Code section shall include any of the following which are applicable:
(1) The identity and location of the court or agency;
(2) The date of conviction, judgment, or decision;
(3) The penalty imposed;
(4) The damages assessed;
(5) The terms of settlement or the terms of the order and the date, nature, and issuer of each such order or ruling; and
(6) The name and principal business address of any other person which filed, was adjudged, or was reorganized in bankruptcy.
Sellers shall not:
(1) Represent that a business opportunity or multilevel program provides income or earning potential of any kind unless the seller has documented data to substantiate the claims of income or earning potential, which data shall be furnished to the Attorney General or his or her representatives upon request;
(2) Use the trademark, service mark, trade name, logotype, advertising, or other commercial symbol of any business which does not either control the ownership interest in the seller or accept responsibility for all representations made by the seller unless it is clear from the circumstances that the owner of the commercial symbol is not involved in the business opportunity or multilevel distribution company; or
(3) Make or authorize the making of any reference to its compliance with this part in any advertisement or other contract with purchasers or participants or in any manner represent, explicitly or implicitly, that the State of Georgia or any department, agency, officer, or employee has reviewed, approved, sanctioned, or endorsed a business opportunity or multilevel program.
(a) Every business opportunity or multilevel distribution contract shall be in writing, and a copy shall be given to the purchaser or participant at the time he or she signs the contract.
(b) Every contract or any material incorporated therein by reference shall include the following:
(1) The terms and conditions of payment, including but not limited to compensation paid to a participant by the company and any payments to be made by the participant to the company within the first six months of the agreement;
(2) A full and detailed description of the acts or services that the seller undertakes to perform for the purchaser or participant, including a specific description of the product or service being marketed;
(3) The seller's principal business address. For purposes of this paragraph, a post office box shall not be considered a principal place of business; and
(4) The approximate delivery date of any products, equipment, supplies, or services that the seller is to deliver to the purchaser or participant.
(c) In addition to the information required in subsection (b) of this Code section, every multilevel distribution contract, or an addendum thereto, shall contain the following:
(1) If training of any type is promised by the seller or company, a complete description of the training and the length of the training;
(2) If a bond is required under Code Section 10-1-412, the following statement, with all blanks properly filled:
“As required by Georgia law, the company has secured a bond or established a trust account for your protection. This bond or trust account can be identified as #__________ in the name of __________, provided by the following bonding company or trust company: __________, which is located at the following address: __________ in the City of __________, State of __________.”;
(3) A participant in a multilevel marketing plan has a right to cancel at any time, regardless of reason. If a participant will be under an obligation to make any payment after the agreement has been entered into, a statement in ten-point boldface type as follows must appear in the contract or an addendum thereto:
“A participant in this multilevel marketing plan has a right to cancel at any time, regardless of reason. Cancellation must be submitted in writing to the company at its principal business address.”; and
(4) A description of any cancellation rights.
(d) Cancellation rights pursuant to paragraph (4) of subsection (c) of this Code section must, at a minimum, provide the following:
(1) If the participant has purchased products or paid for administrative services while the contract of participation was in effect, the seller shall repurchase all unencumbered products, sales aids, literature, and promotional items which are in a reasonably resalable or reusable condition and which were acquired by the participant from the seller; such repurchase shall be at a price not less than 90 percent of the original net cost to the participant of the goods being returned. For purposes of this paragraph, “original net cost” means the amount actually paid by the participant for the goods, less any consideration received by the participant for purchase of the goods which is attributable to the specific goods now being returned. Goods shall be deemed “resalable or reusable” if the goods are in an unused, commercially resalable condition at the time the goods are returned to the seller. Goods which are no longer marketed by a company shall be deemed “resalable or reusable” if the goods are in an unused, commercially resalable condition and are returned to the seller within one year from the date the company discontinued marketing the goods; provided, however, that goods which are no longer marketed by a multilevel distribution company shall not be deemed “resalable or reusable” if the goods are sold to participants as nonreturnable, discontinued, or seasonal items and the nonreturnable, discontinued, or seasonal nature of the goods was clearly disclosed to the participant seeking to return the goods prior to the purchase of the goods by the participant. Notwithstanding anything to the contrary contained in this paragraph, a multilevel distribution company may not assert that any more than 15 percent of its total yearly sales per calendar year to participants in dollars are from nonreturnable, discontinued, or seasonal items;
(2) The repayment of all administrative fees or consideration paid for other services shall be at not less than 90 percent of the costs to the participant of such fees or services and shall reflect all other administrative services that have not, at the time of termination, been provided to the participant; and
(3) The participant may be held responsible for all shipping expenses incurred in returning sales aids or products to the company but only if such responsibility of a canceling participant is disclosed in the written description of the cancellation rights.
(a) Each seller numbering among its participants or purchasers any resident of this state, which has agreements made in this state, or which has its principal place of business in this state, shall irrevocably appoint the Secretary of State of this state as its agent for service of process for any alleged violation of this part and shall pay a $10.00 filing fee. Compliance with this Code section shall not in and of itself subject any seller to the provisions or consequences of any other statute of this state.
(b) Any seller which numbers among its participants or purchasers any resident of this state, which has agreements made in this state, or which has its principal place of business in this state, and which fails to comply with subsection (a) of this Code section shall be deemed to have thereby irrevocably appointed the Secretary of State as its agent for service of process for any alleged violation of this part.
(c) Service shall be made by delivering to and leaving with the Secretary of State duplicate copies of such process, notice, or demand, together with an affidavit giving the last known post office address of such seller; and such service shall be sufficient if notice thereof and a copy of the process, notice, or demand are forwarded by registered mail or certified mail or statutory overnight delivery addressed to such seller at the address given in such affidavit.
(a) If a business opportunity seller or multilevel distribution company uses any untrue or misleading statements; or fails to comply with Code Section 10-1-411; or fails to deliver the equipment, supplies, or products necessary to begin substantial operation within 45 days of the delivery date stated in the contract; or if the business opportunity seller or multilevel distribution company does not comply with the requirements of Code Sections 10-1-410 through 10-1-416, then, within one year of the date of the contract, upon written notice to the seller, the purchaser or participant may void the contract and shall be entitled to receive from the seller all sums paid to the seller. Upon receipt of such sums, the purchaser or participant shall make available to the seller at the purchaser's or participant's address or at the places at which they are located at the time notice is given, all products, equipment, or supplies received by the purchaser or participant. However, the purchaser or participant shall not be entitled to unjust enrichment by exercising the remedies provided for in this subsection.
(b) The violation of any provision of this part shall constitute an unfair or deceptive act or practice in the conduct of a consumer act or practice or consumer transactions under Part 2 of this article, the “Fair Business Practices Act of 1975,” and shall authorize an affected participant or purchaser to seek the remedies provided for in Code Section 10-1-399 and in subsection (a) of Code Section 10-1-417.
(c) Nothing contained in this part shall be construed to limit, modify, or repeal any provisions of Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008,” including, but not limited to, the definition of the term “security” as contained in paragraph (31) of Code Section 10-5-2.
(d) Any person who fails to comply with this part shall be guilty of a misdemeanor of a high and aggravated nature. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; and, if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have actual knowledge of the acts violating this part.
(a) No person, firm, or corporation shall offer for sale merchandise, commodities, or services by making, publishing, disseminating, circulating, or placing before the public within this state in a newspaper or other publication, or in the form of a book, notice, handbill, poster, sign, billboard, bill, circular, pamphlet, letter, photograph, motion picture, or by radio, loud-speaker, telephone, television, telegraph, or in any other way, or advertise merchandise, commodities, or services with intent, design, or purpose not to sell the merchandise, commodities, or services so advertised or offered for sale at the price or upon the terms stated therein or otherwise communicated, or with intent not to sell the merchandise, commodities, or services so advertised.
(b) Any disclaimer that merchandise, commodities, or services advertised for sale may not be available or that availability may be limited or any statement containing the conditions of a lease or rental agreement shall be in the same style as the advertisement and, if in written or printed form, such disclaimer and any asterisk or other symbol directing the attention of the reader to such disclaimer shall be not smaller than one-fifth of the type size used in the main body of the advertisement, provided that the minimum type size shall be not smaller than six-point type in Helvetica font.
(c) Any person, firm, or corporation violating this Code section shall be guilty of a misdemeanor.
(a) No person, firm, corporation, or association or any employee thereof, with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or to do anything of any nature whatsoever to induce the public to enter into any obligation relating thereto, shall make or disseminate or cause to be made or disseminated before the public in this state, in any newspaper or other publication, radio, television, or advertising device or by public outcry or proclamation or any other manner or means whatever, any statement concerning such real or personal property or services, professional or otherwise, or concerning any circumstances or matter of fact connected with the proposed performance or disposition thereof which is untrue or fraudulent and which is known or which by the exercise of reasonable care should be known to be untrue or fraudulent.
(b) Nothing in this Code section shall apply to any visual or sound broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of printed advertising who broadcasts, telecasts, publishes, or prints such advertisement in good faith without knowledge of its false or fraudulent character.
(c) Whoever violates this Code section shall be fined not less than $200.00 nor more than $1,000.00 or imprisoned not more than 20 days, or both.
(a)(1) Each individual who uses the term “Doctor” or “Dr.” in conjunction with his name in any letter, business card, advertisement, sign, public listing, display, or circular of any nature shall designate:
(A) The degree to which he is entitled by reason of his diploma of graduation from a school or other entity, professional or otherwise;
(B) The degree as honorary when an honorary acknowledgment has been made;
(C) “No degree” if he is not entitled to any such recognition.
(2) The designation required by this subsection shall not be necessary:
(A) If the term is a part of the person's legal name;
(B) In the case of the use in a corporate charter of the name of a professional association or professional corporation organized in this state as provided by law.
(b) Any person willfully violating, with intent to defraud, subsection (a) of this Code section shall be guilty of a misdemeanor.
Any person, firm, or corporation offering through advertising merchandise, commodities, or services for sale in violation of Code Section 10-1-420, 10-1-421, or 10-1-422 may be enjoined from such advertising by the superior court having jurisdiction, upon the suit of any person aggrieved or about to be aggrieved thereby.
It shall be unlawful:
(1) For any person, firm, association, or corporation to misrepresent the true nature of its business by use of the words “manufacturer,” “wholesaler,” “retailer,” or words of similar import; or
(2) For any person, firm, association, or corporation to represent itself as selling at wholesale or use the word “wholesale” in any form of sale or advertising,
unless such person, firm, association, or corporation is actually selling at wholesale those items advertised for the purpose of resale. For the purpose of this Code section the term “wholesale” means a sale made for the purpose of resale and not one made to the consuming purchaser.
(a) As used in this Code section, the term:
(1) “Duly licensed attorney at law” means a person authorized to provide legal services in this state.
(2) “Legal services” means acts recited in Code Section 15-19-50 and in subsection (a) of Code Section 15-19-51.
(3) “Media” means any publication, including, but not limited to, any radio or television advertising device, public outcry, proclamation, Internet search engine ad, or any other such manner or means of public outreach.
(4) “Solicit” means actions taken directly or indirectly to perform or to do anything of any nature whatsoever to induce the public to enter into any obligation relating thereto.
(b) It shall be unlawful for any person, firm, association, or corporation to solicit in any media regarding the provision of legal services by:
(1) Misrepresenting the true nature of its business by use of the words “legal services,” “practice of law,” “law firm,” “attorney,” “attorney at law,” “lawyer,” or equivalent terms in any language in such manner as to convey the impression that such person, firm, association, or corporation is entitled to practice law or is entitled to furnish legal advice, services, or counsel;
(2) Representing itself as providing legal services or use the words “practice of law,” “law firm,” “attorney,” “attorney at law,” “lawyer,” or equivalent terms in any language in such manner as to convey the impression that such person, firm, association, or corporation is entitled to practice law or is entitled to furnish legal advice, services, or counsel, unless such person is a duly licensed attorney at law;
(3) Representing that any person featured in media for legal services is admitted to the Georgia bar or may offer legal services in this state when such person in such media is not a duly licensed attorney at law, even if such representation is made by a person featured in such media, who is not a duly licensed attorney at law, employs a person who is duly licensed attorney at law; or
(4) Otherwise failing to disclose or otherwise provide qualifying language that accurately reflects the legal services, abilities, practice areas, scope of work, success rate, claim or case management and oversight, or fees of a person.
It shall be unlawful for any person, firm, association, or corporation to misrepresent the true ownership of a business for the purpose of carrying on a liquidation sale, auction sale, or other sale which represents that the firm is going out of business; and any person, firm, association, or corporation which advertises in any manner whatever a liquidation sale, auction sale, or going-out-of-business sale shall clearly state the true name and permanent address of the actual owner or owners of such business in any and all such advertising.
Any person, firm, association, or corporation violating any of the provisions of Code Section 10-1-424, 10-1-424.1, or 10-1-425 shall be guilty of a misdemeanor. Nothing in Code Section 10-1-424, 10-1-424.1, or 10-1-425 or this Code section shall apply to any visual or sound broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of online or printed advertising who broadcasts, telecasts, publishes, or prints such advertisement in good faith without knowledge of its false or fraudulent character.
(a) As used in this Code section, the term:
(1) “Duly licensed attorney at law” means a person authorized to provide legal services in this state.
(2) “Legal services” means acts recited in Code Section 15-19-50 and in subsection (a) of Code Section 15-19-51.
(3) “Media” means any publication, including, but not limited to, any radio or television advertising device, public outcry, proclamation, Internet search engine ad, or any other such manner or means of public outreach.
(4) “Misleading statement” means any communication that is untrue, fraudulent, or deceptive and is known, or which by the exercise of reasonable judgment, should be known to be untrue, fraudulent, or deceptive. Such term shall include, but shall not be limited to, communications that:
(A) Contain a material misrepresentation of fact or law;
(B) Omit a fact or law resulting in the information conveyed being a material misrepresentation or unsubstantiated;
(C) Are presented with such specificity as would lead a reasonable person to conclude that the claim or comparison can be substantiated, but cannot; or
(D) Are substantially likely to lead a reasonable person to:
(i) Formulate erroneous conclusions:
(I) About the legal services, abilities, practice areas, scope of work, success rate, claim or case management and oversight, or fees of a duly licensed attorney at law;
(II) Regarding comparing a duly licensed attorney at law to another or similarly situated duly licensed attorney at law; or
(III) To take action to preserve such person's rights or claims when, in fact, no action is required; or
(ii) Have an unjustifiable expectation of future success based on prior performances;
(E) Fail to disclose or otherwise provide qualifying language to preclude a person from being deceived or otherwise having a mistaken impression.
(F) Falsely portray individuals as clients; or
(G) Falsely portray individual circumstantial outcomes in a light where an ordinary person would be misled to believe hiring such duly licensed attorney at law would create or lead to a similar outcome.
(5) “Person” means an individual or a firm, corporation, or association, or any employee thereof.
(6) “Solicit” means actions taken directly or indirectly to perform or to do anything of any nature whatsoever to induce the public to enter into any obligation relating thereto.
(b) No duly licensed attorney at law shall solicit in any media by any misleading statement concerning legal services or concerning any circumstances or matter of fact connected with the proposed performance of legal services.
(c) Nothing in this Code section shall apply to any visual or sound broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of printed advertising who broadcasts, telecasts, publishes, or prints such advertisement in good faith without knowledge of its false, fraudulent, deceptive, or misleading character.
(d) The Attorney General is authorized and empowered, upon the receipt of a complaint or upon his or her own initiative, to investigate any advertising which might be in violation of subsection (b) of this Code section. If the Attorney General determines that any advertising is in violation of subsection (b) of this Code section, he or she is authorized and empowered, after providing the offender with reasonable notice and an opportunity for a hearing, to issue a public reprimand, to issue a cease and desist order against the offender, to report any such action to any board, agency, commission, association, or other entity governing or supervising the legal profession, and to publicize any such action in a medium or media likely to reach the recipients of the improper advertising. Any person against whom the Attorney General issues an adverse decision may, as his or her sole remedy in equity or at law, seek a restraining order against such adverse decision in the superior court.
(e) Any person who violates a cease and desist order issued pursuant to subsection (d) of this Code section shall be guilty of a misdemeanor in the county in which such person resides. Nothing in this subsection shall prohibit any board, agency, commission, association, or other entity governing or supervising the legal profession from taking any lawful action against such person as a result of such improper practices. Each publication of an advertisement in violation of any such cease and desist order shall constitute a separate offense.
As used in this part, the term:
(1) “Art dealer” means a person who is in the business of dealing exclusively or nonexclusively in fine art multiples, a person who by his occupation holds himself out as having knowledge or skill peculiar to fine art multiples or persons to whom that knowledge or skill may be attributed by his employment of an agent or other intermediary who by his occupation holds himself out as having that knowledge or skill, or an auctioneer who sells fine art multiples at public auction. The term shall not include consignors or principals of auctioneers unless such consignors or principals are otherwise specifically defined as art dealers by this paragraph.
(2) “Artist” means the person who created the image which is contained in or constitutes the master or who conceived of and approved the image which is contained in or constitutes the master.
(3) “Fine art multiple” or “multiple” means any print, positive or negative photograph, or similar art object produced in more than one copy. The term includes pages or sheets taken from books or magazines but shall not include books or magazines.
(4) “Limited edition” means fine art multiples produced from a master all of which are the same image and which bear numbers or other markings to denote the limited production thereof to a stated maximum number of multiples or which are otherwise held out as limited to a maximum number of multiples.
(5) “Master” means a printing plate, stone, block, screen, photographic negative, or other device which contains an image and is used to produce fine art objects in multiples.
(6) “Person” means an individual, partnership, corporation, association, or other entity.
(7) “Print” means a multiple produced by, but not limited to, engraving, etching, woodcutting, lithography, and serigraphy and a multiple produced or developed from photographic negatives.
(8) “Proofs” means multiples which are the same as and which are produced in a limited edition from the same master as the multiples but which, whether so designated or not, are set aside from and are in addition to the limited edition to which they relate.
(9) “Signed” means autographed by the artist's own hand, and not by mechanical means of reproduction, after the multiple is produced.
(10) “Written instrument” means a written or printed agreement, bill of sale, invoice, certificate of authenticity, catalogue, note, memorandum, or label describing a multiple which is to be sold, exchanged, or consigned by an art dealer.
(a) An art dealer shall not sell or consign a multiple in, into, or out of this state unless a written instrument is furnished to the purchaser or consignee prior to the sale or consignment which sets forth as to each multiple the descriptive information required by Code Section 10-1-432. If a prospective purchaser so requests, the information shall be transmitted to him prior to the payment or placing of an order for a multiple. If payment is made by a purchaser prior to delivery of such a multiple, this information shall be supplied at the time of or prior to delivery. With respect to auctions, this information may be furnished in catalogues or other written materials which are made readily available for consultation and purchase prior to sale, provided that a bill of sale, receipt, or invoice describing the transaction is then provided which makes reference to the catalogue and lot number in which this information is supplied. Information supplied pursuant to this subsection shall be clearly, specifically, and distinctly addressed to each of the items listed in Code Section 10-1-432 unless the required data is not applicable. This Code section is applicable to transactions by and between art dealers and others considered to be art dealers for the purposes of this part.
(b)(1) An art dealer shall not cause a catalogue, prospectus, flyer, or other written material or advertisement to be distributed in, into, or from this state which solicits a direct sale, by inviting transmittal of payment for a specific multiple, unless it clearly sets forth, in close physical proximity to the place in such material where the multiple is described, the descriptive information required by Code Section 10-1-432. In lieu of this required information, the written material or advertising may set forth the material contained in the following quoted passage, or the passage itself, if the art dealer then supplies the required information prior to or with delivery of the multiple. The nonobservance of the terms within the following passage shall constitute a violation of this part:
“Georgia law provides for disclosure in writing of information concerning certain fine prints and photographs prior to effecting a sale of them. This law requires disclosure of such matters as the identity of the artist, the artist's signature, the medium, whether the multiple is a reproduction, the time when the multiple was produced, use of the plate which produced the multiple, and the number of multiples in a ‘limited edition.’ If a prospective purchaser so requests, the information shall be transmitted to him prior to payment or the placing of an order for a multiple. If payment is made by a purchaser prior to delivery of the multiple, this information will be supplied at the time of or prior to delivery, in which case the purchaser is entitled to a refund if, for reasons related to matter contained in such information, he returns the multiple in the condition in which received within 30 days of receiving it. In addition, if after payment and delivery, it is ascertained that the information provided is incorrect, the purchaser may be entitled to certain remedies, including refund upon return of the multiple in the condition in which received.”
(2) This requirement is not applicable to general written material or advertising which does not constitute an offer to effect a specific sale.
(c) In each place of business in the state where an art dealer is regularly engaged in sales of multiples, the art dealer shall post in a conspicuous place, a sign which, in a legible format, contains the information included in the following passage:
“Georgia law provides for the disclosure in writing of certain information concerning prints and photographs. This information is available to you, and you may request to receive it prior to purchase.”
(d) If an art dealer offering multiples by means of a catalogue, prospectus, flyer, or other written material or advertisement distributed in, into, or from this state disclaims knowledge as to any relevant detail referred to in Code Section 10-1-432, he shall so state specifically and categorically with regard to each such detail to the end that the purchaser shall be able to judge the degree of uniqueness or scarcity of each multiple contained in the edition so offered. Describing the edition as an edition of “reproductions” eliminates the need to furnish further informational details unless the edition was allegedly published in a signed, numbered, or limited edition, or any combination thereof, in which case all of the informational details are required to be furnished.
(e) Whenever an artist sells or consigns a multiple of his own creation or conception, the artist shall disclose the information required by Code Section 10-1-432, but an artist shall not otherwise be regarded as an art dealer.
(a) Except as provided in subsections (c), (d), and (e) of this Code section, the following information shall be provided as required by Code Section 10-1-431:
(1) The name of the artist;
(2) If the artist's name appears on the multiple, a statement whether the multiple was signed by the artist; or if the multiple was not signed by the artist, a statement of the source of the artist's name on the multiple, such as whether the artist placed his signature on the multiple or on the master, whether his name was stamped or estate stamped on the multiple or on the master, or was from some other source or in some other manner placed on the multiple or on the master;
(3) A description of the medium or process, and where pertinent to photographic processes, the material used in producing the multiple, such as whether the multiple was produced through the etching, engraving, lithographic, serigraphic, or a particular method or material used in photographic developing processes. If an established term, in accordance with the usage of the trade, cannot be employed accurately to describe the medium or process, a brief, clear description shall be made;
(4) If the multiple or the image on or in the master constitutes a photomechanical or photographic type of reproduction of an image produced in a different medium, for a purpose other than the creation of the multiple being described, a statement of this information and the respective mediums;
(5) If paragraph (4) of this subsection is applicable, and the multiple is not signed, a statement whether the artist authorized or approved in writing the multiple or the edition of which the multiple being described is one;
(6) If the purported artist was deceased at the time the master was made which produced the multiple, this shall be stated;
(7) If the multiple is a “posthumous” multiple, that is, if the master was created during the life of the artist but the multiple was produced after the artist's death, this shall be stated;
(8) If the multiple was made from a master which produced a prior limited edition, or from a master which constitutes or was made from a reproduction of a prior multiple or the master which produced the prior limited edition, this shall be stated as shall the total number of multiples, including proofs, of all other editions produced from that master;
(9) As to multiples produced after 1949, the year or approximate year the multiple was produced shall be stated. As to multiples produced prior to 1950, state the year, approximate year, or period when the master was made which produced the multiple and when the particular multiple being described was produced. The requirements of this paragraph shall be satisfied when the year stated is approximately accurate;
(10) Whether the edition is being offered as a limited edition, and if so the authorized maximum number of signed or numbered impressions, or both, in the edition; the authorized maximum number of unsigned or unnumbered impressions, or both, in the edition; the authorized maximum number of artist's, publisher's, or other proofs, if any, outside of the regular edition; and the total size of the edition; and
(11) Whether or not the master has been destroyed, effaced, altered, defaced, or canceled after the current edition.
(b) If the multiple is part of a limited edition and was printed after July 1, 1986, the statement of the size of the limited edition, as stated pursuant to paragraph (10) of subsection (a) of this Code section, shall also constitute an express warranty that no additional multiples of the same image, including proofs, have been produced in this or in any other limited edition.
(c) If the multiple was produced in the period from 1950 to July 1, 1986, the information required to be supplied need not include the information required by paragraphs (5) and (8) of subsection (a) of this Code section.
(d) If the multiple was produced in the period from 1900 to 1949, the information required to be supplied need only consist of the information required by paragraphs (1), (2), (3), and (9) of subsection (a) of this Code section.
(e) If the multiple was produced before the year 1900, the information to be supplied need only consist of the information required by paragraphs (1), (3), and (9) of subsection (a) of this Code section.
(a)(1) Except as provided in paragraph (2) of this subsection, whenever an art dealer furnishes information as required by Code Section 10-1-432, such information shall be a part of the basis of the bargain and shall create express warranties as to the information provided. Such warranties shall not be negated or limited because the art dealer in the written instrument did not use formal words such as “warrant” or “guarantee” or because the art dealer did not have a specific intention or authorization to make a warranty or because any required statement is or purports to be the art dealer's opinion. The existence of a basis in fact for information warranted by virtue of this subsection shall not be a defense in an action to enforce such warranty.
(2) With respect to photographic multiples produced prior to 1950 and other multiples produced prior to 1900, the information required by paragraph (3) of subsection (a) of Code Section 10-1-432 shall be deemed to be correct if a reasonable basis in fact exists for the information provided.
(b) When information is not supplied, this shall constitute the express warrant that such information is not required to be disclosed.
(c) Whenever an art dealer disclaims knowledge as to a particular item about which information is required, such disclaimer shall be ineffective unless clearly, specifically, and categorically stated as to the particular item and contained in the physical context of other language setting forth the required information as to a specific multiple.
(a) The rights, liabilities, and remedies created by this part shall be construed to be in addition to and not in substitution, exclusion, or displacement of other rights, liabilities, and remedies provided by law.
(b) Whenever an artist sells or consigns a multiple of his own creation, the artist shall incur the obligations prescribed by this part for an art dealer.
(c) An artist or merchant who consigns a multiple to an art dealer for the purpose of effecting a sale of the multiple shall have no liability to a purchaser under this part if such consignor, as to the consignee, has complied with the provisions of this part.
(d) When an art dealer has agreed to sell a multiple on behalf of a consignor who is not an art dealer or when an artist has not consigned a multiple to an art dealer, but the art dealer has agreed to act as the agent for an artist for the purpose of supplying the information required by this part, such art dealer shall incur the liabilities of other art dealers prescribed by this part as to a purchaser.
(e) When an art dealer is liable to a purchaser pursuant to the provisions of this part, as a result of providing information in the situations referred to in this Code section, as well as when such an art dealer purchased such a multiple from another art dealer, if the art dealer can establish that his liability results from incorrect information which was provided by the consignor, artist, or art dealer to him in writing, and the art dealer who is liable in good faith relied on such information, the consignor, artist, or art dealer shall similarly incur such liabilities as to the purchaser and such art dealer.
(a) An art dealer, including a dealer consignee, who offers or sells a multiple in, into, or from this state without providing the information required in Code Sections 10-1-431 and 10-1-432 or who provides information which is mistaken, erroneous, or untrue, except for harmless errors such as typographical errors, shall be liable to the purchaser of the multiple. The art dealer's liability shall consist of the consideration paid by the purchaser for the multiple, with interest at the legal rate thereon, upon the return of the multiple in the condition in which received by the purchaser.
(b) In any case in which an art dealer, including a dealer consignee, willfully offers or sells a multiple in violation of this part, the person purchasing such multiple may recover from the art dealer, including a dealer consignee, who offers or sells such multiple an amount equal to three times the amount required under subsection (a) of this Code section.
(c) No action shall be maintained to enforce any liability under this Code section unless brought within one year after discovery of the violation upon which it is based and in no event more than three years after the multiple was sold.
(d) In any action to enforce any provision of this part, the court may allow the prevailing purchaser the costs of the action together with reasonable attorneys' and expert witnesses' fees. In the event, however, the court determines that an action to enforce was brought in bad faith, it may allow such expenses to the seller as it deems appropriate.
(e) These remedies shall not bar or be deemed inconsistent with a claim for damages or with the exercise of additional remedies otherwise available to the purchaser.
(f) In any proceeding in which an art dealer relies upon a disclaimer of knowledge as to any relevant information set forth in Code Section 10-1-432 for any time period, such disclaimer shall be effective unless the claimant is able to establish that the art dealer failed to make reasonable inquiries, according to the custom and usage of the trade, to ascertain the relevant information or that such relevant information would have been ascertained as a result of such reasonable inquiries.
(a) Whenever the Attorney General or any district attorney has reason to believe that any person is violating any provision of this part, he may bring an action against such person to restrain or enjoin continued violations. With the exception of consent judgments entered before any testimony is taken, a final judgment under this Code section is admissible as prima-facie evidence of such specific findings of fact as may be made by the court which enters the judgment in subsequent proceedings by or against the same person or his successors or assigns.
(b) Any person who violates any provision of this part may be liable for a civil penalty not to exceed $500.00 for each violation. Such penalty may be assessed and recovered in a civil action brought by the Attorney General or any district attorney.
(a) This part shall not apply to any fine art multiple when offered for sale or sold at wholesale or retail for $100.00 or less, exclusive of any frame.
(b) Any charitable organization which conducts a sale or auction of fine art multiples shall be exempt from the disclosure requirements of this part if it posts in a conspicuous place, at the site of the sale or auction, a disclaimer of any knowledge of the information specified in Code Section 10-1-432 and includes such a disclaimer in a catalogue, if any, distributed by the organization with respect to the sale or auction of fine art multiples. If a charitable organization uses or employs an art dealer to conduct a sale or auction of fine art multiples, the art dealer shall be subject to all disclosure requirements otherwise required of an art dealer under this part.
(a) As used in this part, the term:
(1) “Attorney General” means the Attorney General or his or her designee.
(2) “Disaster related violation” means any violation of Part 1, 2, or 4 of this article, which violation involves:
(A) The sale or offer for sale of supplies for use in the salvage, repair, or rebuilding of a structure damaged as a result of a natural disaster; or
(B) The performance of or offer to perform services for the salvage, repair, or rebuilding of a structure damaged as a result of a natural disaster.
(3) “Natural disaster” means any natural disaster for which a state of emergency is proclaimed by the Governor.
(b) Whenever the Attorney General or any court is imposing a penalty for any violations of Part 1, 2, or 4 of this article and the violation is a disaster related violation, in addition to any other applicable penalty there may be imposed an additional civil penalty not to exceed $10,000.00 for each transaction.
(c) Any person who suffers damage or injury as a result of a disaster related violation shall have a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney's fees. Amounts recovered in such an action shall have priority over a civil penalty imposed under this Code section.
This part shall be known and may be cited as the “Georgia Firearms Industry Nondiscrimination Act.”
As used in this part, the term:
(1) “Financial services” means any service or product offered to the consumer or business market by a bank, trust company, building and loan association, credit union as defined by Code Section 7-1-4, any merchant acquirer limited purpose bank as defined in paragraph (7) of Code Section 7-9-2, or a federally chartered banking institution that accepts state deposits.
(2) “Person” means one or more individuals, partnerships, associations, limited liability companies, corporations, unincorporated organizations, mutual companies, joint stock companies, trusts, agents, legal representatives, trustees, trustees in bankruptcy, receivers, labor organizations, public bodies, and public corporations and the State of Georgia and all political subdivisions and agencies thereof. Such term shall include federally chartered banking institutions that accept state deposits.
(3) “Trade association” means any corporation, unincorporated association, federation, business league, or professional or business organization not organized or operated for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual; that is an organization described in Section 501(c)(6) of Title 26 of the United States Code and exempt from tax under Section 501(a) of such title; and two or more members of which are manufacturers or sellers of a qualified product as defined by Section 7903(4) of Title 15 of the United States Code.
Unless otherwise precluded by law, regulation, or membership eligibility, it shall be an unlawful discriminatory practice for any person to refuse to provide financial services of any kind to, to refrain from continuing to provide existing financial services to, to terminate existing financial services with, or to otherwise discriminate in the provision of financial services against a person or trade association solely because such person or trade association is engaged in the lawful commerce of firearms or ammunition products and is licensed pursuant to Chapter 44 of Title 18 of the United States Code or is a trade association.
Whenever the Attorney General has reason to believe that any person is engaging, has engaged, or is about to engage in any act or practice declared unlawful by this part, the Attorney General shall, upon written request or by his or her own initiative, investigate and, upon finding a probable violation of this part, bring an action in the name of the state against such person to:
(1) Obtain a declaratory judgment that the act or practice violates the provisions of this part;
(2) Enjoin any act or practice that violates the provisions of this part by issuance of a temporary restraining order or preliminary or permanent injunction, without bond, upon the giving of appropriate notice; and
(3) Recover civil penalties of up to $10,000.00 per violation of this part or any injunction, judgment, or consent order issued or entered into under the provisions of this chapter and reasonable expenses, investigative costs, and attorney's fees.
The provisions of this part shall not apply to any bank, trust company, credit union, or merchant acquirer limited purpose bank that is chartered under the laws of this state or any other state to the extent that federal law precludes or preempts or has been determined to preclude or preempt the application of the provisions of this part to any federally chartered bank, trust company, credit union, or merchant acquirer limited purpose bank.
This part shall be known and may be cited as the “Georgia Online Automatic Renewal Transparency Act.”
(a) The purpose of this part shall be to stop the practice of creating unnecessary barriers for customers who wish to cancel automatic renewal or continuous service subscriptions online, particularly when such subscriptions are offered online. It is the intent of the General Assembly that such practice be swiftly stopped, and this part shall be liberally construed and applied to promote its underlying purposes and policies.
(b) It is the further intent of the General Assembly that this part be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended.
As used in this part, the term:
(1) “Automatic renewal” means a plan or arrangement in which an online paid subscription or purchasing agreement is automatically renewed at the end of a definite term of more than 31 days for a subsequent definite term of more than 31 days.
(2) “Consumer” means a natural person residing in this state who enters into a transaction primarily for personal, family, or household purposes.
(3) “Continuous service” means a plan or arrangement for a paid definite term of more than 31 days renewing for a subsequent definite term of more than 31 days in which an online subscription or purchasing agreement continues until the consumer cancels such service.
(4) “Offer terms” means the following clear and conspicuous disclosures to the consumer:
(A) The description of the cancellation policy as applicable to the automatic renewal offer or arrangement;
(B) The recurring charges to be charged to the consumer's credit or debit card or payment account with a third-party payment account as part of the online automatic renewal plan or arrangement, and that the amount of such charge may change, and the amount to which such charge will change, if known;
(C) The length of the automatic renewal term or an indication that the service is continuous, unless the length of the term is chosen by the consumer; and
(D) The minimum purchase obligation, if any.
(a) Notwithstanding any law to the contrary, any business that allows a consumer to accept an automatic renewal or continuous service offer online shall allow a consumer to cancel the automatic renewal or continuous service online. The business shall provide a method of cancellation that is available online, which may include:
(1) A clear and conspicuous link to a website or other online cancellation service; or
(2) A cancellation email formatted and provided by the business that a consumer can send to the business without additional information.
(b) Notwithstanding subsection (a) of this Code section, a business that allows a consumer to accept an automatic renewal or continuous service offer online may require a consumer to enter account information or otherwise authenticate their account online before online cancellation of the automatic renewal or continuous service if the consumer has an account with the business. A consumer who is unwilling or unable to enter account information or otherwise authenticate online before online cancellation of the automatic renewal or continuous service shall not be precluded from cancelling the automatic renewal or continuous service offline using an alternate method pursuant to subsection (c) of this Code section.
(c) A business that allows a consumer to accept an automatic renewal or continuous service offer online shall provide a toll-free telephone number, email address, postal address if the seller directly bills the consumer, or another cost-effective, timely, and easy-to-use mechanism for cancellation that shall be described in an acknowledgment that includes the automatic renewal offer terms or continuous service offer terms, cancellation policy, and information regarding how to cancel.
(d) The requirements of this Code section apply to the automatic renewal terms and continuous service terms of the contract entered into online, and the remaining provisions of the contract shall continue to be governed by all applicable laws and regulations.
(a) It shall be unlawful in this state for any business that allows a consumer to accept an automatic renewal or continuous service offer online to:
(1) Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consumer consent to the offer;
(2) Charge the consumer's credit or debit card, or the consumer's third-party payment account for an automatic renewal or continuous service without first obtaining the consumer's consent to the agreement containing such automatic renewal offer terms or continuous service offer terms;
(3) Fail to provide an acknowledgment that includes the automatic renewal offer terms or continuous service offer terms. Such acknowledgment may be from the business's own website or it may be provided via a link to a separate resource that provides instructions for unique platforms and services or other means that provide such offer terms in a manner easily retained by the consumer; or
(4) Fail to provide a consumer with notice pursuant to subsection (b) of this Code section.
(b) A business that allows a consumer to accept an automatic renewal or continuous service offer online shall provide the consumer with a notice prior to or within three days after charging the consumer's credit or debit card or payment account with a third party, provided that the consumer has not opted out of receiving such notice. Such notice shall clearly and conspicuously state:
(1) That the automatic renewal or continuous service shall automatically renew unless it is canceled by the consumer;
(2) The length and any additional terms of the renewal period;
(3) If sent electronically, the notice shall include either a link or another reasonably accessible electronic method that directs the consumer to the cancellation process; and
(4) Contact information for the business.
(c) In the case of a material change in the terms of the online automatic renewal offer or continuous service offer that has been accepted by a consumer in this state, a business shall provide the consumer with a clear and conspicuous notice of the material change and shall provide information to the consumer regarding how to cancel such automatic renewal offer or continuous service offer in a manner that is easily retained by the consumer.
When a business that allows a consumer to accept an automatic renewal or continuous service offer online sends any goods, wares, merchandise, or products to a consumer under an automatic renewal of purchase or a continuous service agreement, without first obtaining the consumer's consent pursuant to paragraph (2) of subsection (a) of Code Section 10-1-439.9, such goods, wares, merchandise, or products shall for all purposes be deemed an unconditional gift to the consumer, who may use or dispose of such goods, wares, merchandise, and products in any manner he or she sees fit without obligation to the business, including, but not limited to, bearing the cost of, or responsibility for shipping any goods, wares, merchandise, or products to the business.
The requirements of this part shall apply only prior to the completion of the initial order for the online automatic renewal or continuous service; provided, however, that an acknowledgment that includes the automatic renewal offer terms or continuous service offer terms, cancellation policy, and information regarding how to cancel, and the notice required pursuant to subsection (b) of Code Section 10-1-439.9 may be fulfilled after the completion of the initial order.
The following are exempt from the requirements of this part:
(1) Any service provided by a business or its affiliate when either the business or its affiliate is doing business as a franchise issued by a political subdivision of this state;
(2) Any service provided by a business or its affiliate when either the business or its affiliate is regulated by the Georgia Public Service Commission, the Georgia Department of Agriculture, the Federal Communications Commission, or the Federal Energy Regulatory Commission;
(3) Any entity regulated by the Office of Insurance and Safety Fire Commissioner;
(4) Any financial institution as defined in Code Section 7-1-4 or any subsidiary or affiliate of such institution, or any bank holding company as defined in Code Section 7-1-605; and
(5) Any foreign bank maintaining a branch or agency licensed under federal law or under the laws of any state of the United States.
(a) The Attorney General shall be authorized to bring an action under this part to obtain a temporary or permanent injunction prohibiting the use of any method, act, or practice in violation of this part and to obtain restitution for consumers who are residents of this state and who incurred a loss of money or property as the direct result of a violation of this part.
(b) If a business that allows a consumer to accept an automatic renewal or continuous service offer online complies with the provisions of this part in good faith, it shall not be subject to civil penalty or damages.
(c) There shall be no private right of action for a violation of this part, nor shall a violation of this part serve as the basis for a private right of action under any other provision of law.
(d) If any provision of this part or its application to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this part that can be given effect without the invalid provision or application. To this end, the provisions of this part are severable.
This part shall be known and may be cited as the “Georgia Online Third-Party Delivery Service Transparency Act.”
The purpose of this part shall be to stop the practice of third-party delivery services taking orders for or arranging for the pickup, transportation, or delivery of ready-to-eat food from a food service establishment and from using such establishment's name, likeness, registered trademark, or intellectual property without prior written consent from such establishment.
As used in this part, the term:
(1) “Customer” means the person, business, or other entity placing or receiving an order, for remuneration, for the pickup, transportation, or delivery of ready-to-eat food from a food service establishment through a third-party delivery service.
(2) “Food service establishment” shall have the same meaning as provided in Code Section 26-2-370.
(3) “Ready-to-eat food” means food in a form that is edible without additional preparation to render it safe for consumption.
(4) “Third-party delivery service” means a business, other than a food service establishment, that, for remuneration, operates a platform, website, mobile application, or other electronic service through which the order, pickup, transportation, or delivery of ready-to-eat food from a food service establishment to a customer is arranged.
A third-party delivery service shall not:
(1) Take an order for or arrange for the pickup, transportation, or delivery of an order from a food service establishment to a customer without such establishment's prior written consent expressly authorizing such service to take such orders or arrange for the pickup, transportation, and delivery of such orders from such establishment to a customer; or
(2) Use a food service establishment's name, likeness, registered trademark, or intellectual property on such service's platform, website, mobile application, or other electronic service or other public-facing materials in a manner that implies association, sponsorship, or endorsement without obtaining such establishment's prior written consent.
(a) An aggrieved food service establishment alleging a third-party delivery service is in violation of this part may seek judicial enforcement of the requirements of this part in an action brought against such service in the county in which the violation occurred. The following civil penalties shall be imposed for a violation of this part: for the first violation, $1,000.00; for the second violation, $2,000.00; and for a third and any subsequent violation, $10,000.00.
(b) In addition to the penalties provided for in subsection (a) of this Code section, an aggrieved food service establishment may bring an action to enjoin a third-party delivery service's violation of this part. If the court finds a violation of this part, the court shall issue an injunction against such service and may require such service to pay the injured establishment all profits derived from or damages resulting from the wrongful acts; provided, however, that, if the court finds that such service committed a wrongful act in bad faith, in the court's discretion, the court shall enter a judgment in an amount not to exceed three times the amount of profits derived and damages resulting from such wrongful acts and award reasonable attorney's fees to such establishment.
(a) As used in this part, the term:
(1) “Applicant” means the person filing an application for registration of a trademark or service mark under this part and the legal representatives, successors, or assigns of the person filing an application for registration of a trademark or service mark under this part.
(2) “Person” means any individual, firm, partnership, corporation, association, union, or other organization.
(3) “Registrant” means the person to whom the registration of a trademark or service mark under this part is issued and the legal representatives, successors, or assigns of the person to whom the registration of a trademark or service mark under this part is issued.
(4) “Service mark” means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify the services of one person and to distinguish them from the services of others.
(5) “Trademark” means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others.
(b) For the purposes of this part, a trademark shall be deemed to be “used” in this state when it is placed in any manner on the goods or their containers or on the tags or labels affixed thereto and such goods are sold or otherwise distributed in this state.
(c) For the purposes of this part, a service mark shall be deemed to be “used” in this state when it is used to identify the services of one person and to distinguish them from the services of others and such services are sold or otherwise rendered in this state.
A trademark or service mark shall be entitled to registration unless it:
(1) Consists of or comprises immoral, deceptive, or scandalous matter; or
(2) Consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols or bring them into contempt or disrepute; or
(3) Consists of or comprises the flag or coat of arms or other insignia of the United States or of any state, county, or municipality or of any foreign nation or any simulation thereof, except that a county, municipality, or board of education shall be entitled to have registered its own service mark for use by that county, municipality, or board of education; or
(4) Consists of or comprises the name, signature, or portrait of any living individual, except with his or her written consent; or
(5) Consists of a mark which:
(A) When applied to the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them; or
(B) When applied to the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them; or
(C) Is primarily merely a surname; or
(6) Consists of or comprises a trademark or service mark which so resembles a trademark or service mark registered in this state or a trademark or service mark or trade name previously used in this state by another and not abandoned as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive; or
(7) Consists of or comprises a trademark or service mark which so resembles a trademark or service mark registered in the United States Patent Office by another and not abandoned as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive;
provided, however, that, should the applicant prove that the applicant is the owner of a concurrent registration in the United States Patent Office of a trademark or service mark covering an area including this state, the applicant may register such trademark or service mark under this part.
(a) Subject to the limitations set forth in this part, any person who adopts and uses a trademark or service mark in this state may file in the office of the Secretary of State, on a form to be furnished by the Secretary of State, an application for registration of such trademark or service mark setting forth, but not limited to:
(1) The name and business address of the person applying for such registration and, if a corporation, the state of incorporation;
(2) A description of the goods or services in connection with which the mark is used and the mode or manner in which the mark is used in connection with such goods or services and the class in which such goods or services fall; and
(3) The date when the trademark or service mark was first used anywhere, as well as the date when it was first used in this state by the applicant or his predecessor in business.
(b) The application shall be signed and verified by the applicant and shall be accompanied by a specimen or facsimile of such trademark or service mark in triplicate and a filing fee of $15.00, payable to the Secretary of State.
(a) The following general classes of goods are established for convenience of administration of this part, but not to limit or extend the applicant's or registrant's rights; and a single application for registration of a trademark may include any or all goods upon which the trademark is actually being used comprised in a single class; but in no event shall a single application include goods upon which the trademark is being used which fall within different classes of goods. The classes are as follows:
(1) Raw or partly prepared materials;
(2) Receptacles;
(3) Baggage, animal equipments, portfolios, and pocketbooks;
(4) Abrasives and polishing materials;
(5) Adhesives;
(6) Chemicals and chemical compositions;
(7) Cordage;
(8) Smokers' articles, not including tobacco products;
(9) Explosives, firearms, equipments, and projectiles;
(10) Fertilizers;
(11) Inks and inking materials;
(12) Construction materials;
(13) Hardware and plumbing and steamfitting supplies;
(14) Metals and metal castings and forgings;
(15) Oils and greases;
(16) Paints and painters' materials;
(17) Tobacco products;
(18) Medicines and pharmaceutical preparations;
(19) Vehicles;
(20) Linoleum and oiled cloth;
(21) Electrical apparatus, machines, and supplies;
(22) Games, toys, and sporting goods;
(23) Cutlery, machinery, and tools, and parts thereof;
(24) Laundry appliances and machines;
(25) Locks and safes;
(26) Measuring and scientific appliances;
(27) Horological instruments;
(28) Jewelry and precious metal ware;
(29) Brooms, brushes, and dusters;
(30) Crockery, earthenware, and porcelain;
(31) Filters and refrigerators;
(32) Furniture and upholstery;
(33) Glassware;
(34) Heating, lighting, and ventilating apparatus;
(35) Belting, hose, machinery packing, and nonmetallic tires;
(36) Musical instruments and supplies;
(37) Paper and stationery;
(38) Prints and publications;
(39) Clothing;
(40) Fancy goods, furnishings, and notions;
(41) Canes, parasols, and umbrellas;
(42) Knitted, netted, and textile fabrics and substitutes therefor;
(43) Thread and yarn;
(44) Dental, medical, and surgical appliances;
(45) Soft drinks and carbonated waters;
(46) Foods and ingredients of foods;
(47) Wines;
(48) Malt beverages and liquors;
(49) Distilled alcoholic liquors;
(50) Merchandise not otherwise classified;
(51) Cosmetics and toilet preparations;
(52) Detergents and soaps.
(b) The following general classes of services are established for convenience of administration of this part, but not to limit or extend the applicant's or registrant's rights; and a single application for registration of a service mark may include any or all services in connection with which the service mark is actually being used comprised in a single class; but in no event shall a single application include services in connection with which the service mark is being used which fall within different classes of services. The classes are as follows:
(1) Miscellaneous;
(2) Advertising and business;
(3) Insurance and financial;
(4) Construction and repair;
(5) Communication;
(6) Transportation and storage;
(7) Material treatment;
(8) Education and entertainment.
Upon compliance by the applicant with the requirements of this part, the Secretary of State shall cause a certificate of registration to be issued and delivered to the applicant. The certificate of registration shall be issued under the signature of the Secretary of State and the seal of the state and it shall show the name and business address and, if a corporation, the state of incorporation, of the person claiming ownership of the trademark or service mark; the date claimed for the first use of the trademark or service mark anywhere and the date claimed for the first use of the trademark or service mark in this state; the class of goods or services and a description of the goods or services on which the trademark or service mark is used; a reproduction of the trademark or service mark; the registration date; and the term of the registration.
(a) Registration of a trademark or service mark under this part shall be effective for a term of ten years from the date of registration; and, upon application filed within six months prior to the expiration of such term on a form to be furnished by the Secretary of State, the registration may be renewed for a like term. A renewal fee of $15.00, payable to the Secretary of State, shall accompany the application for renewal of the registration.
(b) A trademark or service mark registration may be renewed for successive periods of ten years in like manner.
(c) The Secretary of State shall notify registrants of trademarks or service marks under this part of the necessity of renewal within the year next preceding the expiration of the ten years from the date of registration by writing to the last known address of the registrants.
Any trademark or service mark and its registration under this part shall be assignable with the good will of the business in which the trademark or service mark is used or with that part of the good will of the business connected with the use of and symbolized by the trademark or service mark. Assignment shall be by instruments in writing duly executed and may be recorded with the Secretary of State upon the payment of a fee of $15.00, payable to the Secretary of State, who, upon recording of the assignment, shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under this part shall be ineffective as against a subsequent purchaser for value without notice unless it is recorded with the Secretary of State prior to the subsequent purchase.
The Secretary of State shall keep for public examination a record of all trademarks or service marks registered or renewed under this part.
(a) The Secretary of State shall cancel from the register:
(1) Any registration concerning which the Secretary of State shall receive a voluntary request for cancellation thereof from the registrant or the assignee of record;
(2) All registrations granted under this part and not renewed in accordance with the provisions of this part;
(3) Any registration concerning which a court of competent jurisdiction shall find that:
(A) The registered trademark or service mark has been abandoned;
(B) The registrant is not the owner of the trademark or service mark;
(C) The registration was granted improperly;
(D) The registration was obtained fraudulently; or
(E) The registered trademark or service mark is so similar to a trademark or service mark registered by another person in the United States Patent Office prior to the date of the filing of the application for registration by the registrant under this part, and not abandoned, as to be likely to cause confusion or mistake or to deceive; provided, however, that, should the registrant prove he is the owner of a concurrent registration of his trademark or service mark in the United States Patent Office covering an area including this state, the registration under this part shall not be canceled; or
(4) Any registration which a court of competent jurisdiction shall order canceled.
(b) A fee of $15.00, payable to the Secretary of State, shall accompany any voluntary request for cancellation.
Any person who shall for himself or on behalf of any person procure the filing or registration of any trademark or service mark in the office of the Secretary of State under the provisions of this part, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.
Subject to Code Section 10-1-452, any person who shall:
(1) Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a trademark or service mark registered under this part in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
(2) Reproduce, counterfeit, copy, or colorably imitate any such trademark or service mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this state of such goods or services;
shall be liable to a civil action by the owner of such registered trademark or service mark for liquidated damages in the amount of $10,000.00, if such act has been committed with knowledge that the trademark or service mark has been registered under this part and such act has been committed without previously obtaining the consent of the owner thereof, and for any or all of the remedies provided in subsection (a) of Code Section 10-1-451, except that actual damages shall not be recoverable when liquidated damages are sought, and except that under paragraph (2) of this Code section the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such trademark or service mark is intended to be used to cause confusion or mistake or to deceive.
(a) Any owner of a trademark or service mark registered under this part may proceed by action to enjoin the manufacture, use, display, or sale of any counterfeits or imitations thereof; and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display, or sale as may be by the court deemed just and reasonable and may require the defendants to pay to such owner all profits derived from such wrongful manufacture, use, display, or sale, and all damages suffered by reason of such wrongful manufacture, use, display, or sale, or both profits and damages. The enumeration of any right or remedy in this part shall not affect a registrant's right to prosecute under any penal law of this state.
(b) Every person, association, or union of working men adopting and using a trademark, trade name, label, or form of advertisement may proceed by action; and all courts having jurisdiction thereof shall grant injunctions to enjoin subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement if there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the trademark, trade name, label, or form of advertisement of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services, except that this Code section shall not deprive any party of any vested lawful rights acquired prior to March 4, 1955.
(c) If, in any action brought under this Code section, the court determines that a trademark or service mark is counterfeit, the court may order the destruction of all such trademarks or service marks and all goods, articles, or other matter bearing the trademarks or service marks, which are in the possession or control of the court or any party to the action; or, after obliteration of the counterfeit trademark or service mark, the court may order the disposal of any of those materials to the State of Georgia, a civil claimant, an eleemosynary institution, or any appropriate private person other than the person from whom the materials were obtained.
(d)(1) The court, upon motion or upon ex parte application by a plaintiff in an action to enjoin the manufacture, use, display, or sale of counterfeits, may order seizure of the counterfeit goods from persons manufacturing, displaying for sale, or selling the goods, upon a showing of good cause and a probability of success on the merits and upon the posting of bond. The amount of the bond shall be set in accordance with the probable recovery of damages and costs under subsection (e) of this Code section if it were ultimately determined that the goods seized were not counterfeit. If it appears from an ex parte application that there is good reason for proceeding without notification to the defendant, the court may, for good cause shown, waive the requirement of notice for the ex parte proceeding. The order of seizure shall be served at the time of seizure upon any person from whom seizure is effected. The order shall specifically set forth:
(A) The date or dates on which the seizure is ordered to take place;
(B) A description of the counterfeit goods to be seized;
(C) The identity of the persons or class of persons to effect seizure;
(D) A description of the location or locations at which seizure is to occur; and
(E) A hearing date not more than ten court days after the last date on which seizure is ordered at which any person from whom goods are seized may appear and seek release of the seized goods.
(2) The order shall include a statement advising the person from whom the goods are seized that bond has been filed, informing the person of the right to object to the bond on the grounds that the surety or the amount of the bond is insufficient, and advising the person from whom the goods are seized that such objection to the bond shall be made within 30 days after the date of seizure.
(e)(1) Any person who causes seizure of goods which are not counterfeits shall be liable in an amount equal to the following:
(A) Any damages proximately caused to any person having a financial interest in the seized goods by the seizure of goods which are not counterfeit;
(B) Costs incurred in defending against seizure of noncounterfeit goods; and
(C) Upon a showing that the person causing the seizure to occur acted in bad faith, expenses, including reasonable attorneys' fees expended in defending against the seizure of any noncounterfeit or noninfringing goods.
(2) A person seeking a recovery pursuant to this subsection may join any surety on a bond posted pursuant to subsection (d) of this Code section, and any judgment of liability shall bind the person liable and the surety jointly and severally, but the liability of the surety shall be limited to the amount of the bond.
(3) Any person entitled to seek recovery under this subsection may, within 30 days after the date of seizure, object to the bond on the grounds that the surety or the amount of bond is insufficient.
Nothing in this part shall adversely affect the rights or the enforcement of rights in trademarks or service marks acquired in good faith at any time at common law.
Any firm, person, corporation, or association who shall use the name or seal of any other person, firm, corporation, or association, in and about the sale of goods or otherwise, not being authorized to use the same, knowing that such use is unauthorized, with intent to deceive the public in the sale of goods, shall be guilty of a misdemeanor.
(a) As used in this Code section, the term “forged or counterfeited trademark, service mark, or copyrighted or registered design” means any mark or design which is identical to, substantially indistinguishable from, or an imitation of a trademark, service mark, or copyrighted or registered design which is registered for those types of goods or services with the Secretary of State pursuant to this part or registered on the Principal Register of the United States Patent and Trademark Office or registered under the laws of any other state or protected by the federal Amateur Sports Act of 1978, 36 U.S.C. Section 380, whether or not the offender knew such mark or design was so registered or protected, if the use of such trademark, service mark, or copyrighted or registered design has not been authorized by the owner thereof. The unregistered symbols, emblems, trademarks, insignias, and words covered by the federal Amateur Sports Act of 1978, 36 U.S.C. Section 380, shall be afforded protection under the trademark law in the same manner as registered trademarks, service marks, and copyrighted or registered designs.
(b) Any person who knowingly and willfully forges or counterfeits any trademark, service mark, or copyrighted or registered design, without the consent of the owner of such trademark, service mark, or copyrighted or registered design, or who knowingly possesses any tool, machine, device, or other reproduction instrument or material with the intent to reproduce any forged or counterfeited trademark, service mark, or copyrighted or registered design shall be guilty of the offense of trademark, service mark, or copyrighted or registered design counterfeiting and, upon conviction, shall be punished as follows:
(1) If the goods or services to which the forged or counterfeit trademarks, service marks, or copyrighted or registered designs are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail sale value of $100,000.00 or more, such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine not to exceed $200,000.00 or twice the retail sale value of the goods or services, whichever is greater;
(2) If the goods or services to which the forged or counterfeit trademarks, service marks, or copyrighted or registered designs are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail sale value of $10,000.00 or more but less than $100,000.00, such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than two nor more than ten years and by a fine not to exceed $20,000.00 or twice the retail sale value of the goods or services, whichever is greater;
(3) If the goods or services to which the forged or counterfeit trademarks, service marks, or copyrighted or registered designs are attached or affixed, or in connection with which they are used, or to which the offender intended they be attached or affixed, or in connection with which the offender intended they be used, have, in the aggregate, a retail sale value of less than $10,000.00, such person shall be guilty of a misdemeanor of a high and aggravated nature; or
(4) If a person who violates this subsection previously has been convicted of another violation of this subsection, such person shall be guilty of a felony and, upon conviction of the second or subsequent such violation, shall be punished by imprisonment for not less than ten nor more than 20 years and by a fine not to exceed $200,000.00 or twice the retail sale value of the goods or services, whichever is greater.
(c) Any person who sells or resells or offers for sale or resale or who purchases and keeps or has in his or her possession with the intent to sell or resell any goods he or she knows or should have known bear a forged or counterfeit trademark or copyrighted or registered design or who sells or offers for sale any service which is sold or offered for sale in conjunction with a forged or counterfeit service mark or copyrighted or registered design, knowing the same to be forged or counterfeited, shall be guilty of the offense of selling or offering for sale counterfeit goods or services and, upon conviction, shall be punished as follows:
(1) If the goods or services sold or offered for sale to which the forged or counterfeit trademarks, service marks, or copyrighted or registered designs are attached or affixed, or in connection with which they are used, have, in the aggregate, a retail sale value of $10,000.00 or more, such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years and by a fine not to exceed $50,000.00 or twice the retail sale value of the goods or services, whichever is greater;
(2) If the goods or services to which the forged or counterfeit trademarks, service marks, or copyrighted or registered designs are attached or affixed, or in connection with which they are used, have, in the aggregate, a retail sale value of less than $10,000.00, such person shall be guilty of a misdemeanor of a high and aggravated nature; or
(3) If a person who violates this subsection previously has been convicted of another violation of paragraph (1) of this subsection, such person shall be guilty of a felony and, upon conviction of the second or subsequent such violation, shall be punished by imprisonment for not less than five nor more than ten years and by a fine not to exceed $100,000.00 or twice the retail sale value of the goods or services, whichever is greater.
(d)(1) The State of Georgia finds and declares that the citizens of this state have a right to receive those goods and services which they reasonably believe they are purchasing or for which they contract. The state further finds that the manufacture and sale of counterfeit goods or goods which are not what they purport to be and the offering of services through the use of counterfeit service marks constitutes a fraud on the public and results in economic disruption to the legitimate businesses of this state. In order to protect the citizens and businesses of this state it is necessary to take appropriate actions to remove counterfeit goods from the channels of commerce and prevent the manufacture, sale, and distribution of such goods or the offering of such services through the use of counterfeit service marks.
(2) As used in this subsection, the terms “proceeds” and “property” shall have the same meanings as set forth in Code Section 9-16-2.
(3) Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them.
(4) Any property subject to forfeiture pursuant to paragraph (3) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
(e) An owner, officer, employee, or agent who provides, rents, leases, licenses, or sells real property upon which a violation of this Code section occurs shall not be subject to a criminal penalty pursuant to this Code section unless he or she sells or possesses for sale articles such person knows bear a counterfeit trademark or copyrighted or registered design or offers services through the use of a counterfeit service mark or copyrighted or registered design in violation of this Code section. This subsection shall not be construed to abrogate or limit any civil rights or remedies for a trademark or service mark violation.
No person or organization shall assume, use, adopt, become incorporated under, or continue to use the name and style or emblems of any benevolent, fraternal, social, humane, or charitable organization previously existing in this state, and which has been incorporated under the laws of this or any other state or of the United States, or a name and style or emblem so nearly resembling the name and style of such incorporated organization as to be a colorable imitation thereof. In all cases where two or more of such societies, associations, or corporations claim the right to the same name or to names substantially similar as above provided, the organization which was first organized and used the name and first became incorporated under the laws of the United States or of any state, whether incorporated in this state or not, shall be entitled in this state to the prior and exclusive use of such name; and the rights of such societies, associations, or corporations and of their individual members shall be fixed and determined accordingly.
Whenever there shall be an actual or threatened violation of Code Section 10-1-470, the organization entitled to the exclusive use of the name in question under the terms of said Code section shall have the right to apply to the proper court for an injunction to restrain the infringement of its name and the use of its emblems; and, if it shall be made to appear to the court that the defendants are in fact infringing or about to infringe on the name and style of a previously existing benevolent, fraternal, social, humane, or charitable organization in the manner prohibited in said Code section or that the defendant or the defendants are wearing or using the badge, insignia, or emblems of said organization without the authority thereof and in violation of said Code section, an injunction may be issued by the court under the principles of equity without requiring proof that any person has been in fact misled or deceived by the infringement of such name or the use of such emblem.
Any person who shall wear a badge, button, or other emblem or shall use the name or claim to be a member of any benevolent, fraternal, social, humane, or charitable organization which is entitled to the exclusive use of such name and emblems under Code Section 10-1-470, either in the identical form or in such near resemblance thereto as to be a colorable imitation of such emblem or name, unless entitled to do so under the laws, rules, and regulations of such organization, shall be guilty of a misdemeanor.
(a) Every person, firm, or partnership carrying on in this state any trade or business under any trade name or partnership name or other name which does not disclose the individual ownership of the trade, business, or profession carried on under such name shall, within 30 days from March 29, 1937, or thereafter before commencing to do business, file in the office of the clerk of the superior court of the county in which the business is chiefly carried on or, in the case of a domestic corporation using any name other than its corporate name, in the county of its legal domicile, a registration statement, verified by affidavit, setting forth the name or names and addresses of the person, persons, firm, or partnership owning and carrying on said trade or business and stating the nature of the business being carried on and the trade, partnership, or other name used and shall, upon any change of ownership, likewise file a new and amended statement of registration. Notice of such filing giving the names and addresses of each person, firm, or partnership to engage in business under such trade name or partnership name shall be published in the paper in which the sheriff's advertisements are printed once a week for two weeks. No person, firm, or partnership already registered shall be required to reregister except in the event of a change of ownership.
(b) The clerk shall register the same by filing the verified statement in his office and shall keep an alphabetical index of all such registrations in a permanent record book to be kept in his office, the index to show the trade, partnership, or other name registered and in connection therewith the names of the owners. The applicant for registration shall accompany each registration statement with the fee prescribed by Code Section 15-6-77, relating to fees of clerks of the superior courts, as amended.
The effect of this part shall be that no contract or undertaking entered into by any person, firm, or corporation, whether heretofore or hereafter entered into, shall be invalidated or declared illegal on the ground that the same was entered into in a trade or partnership name not filed or registered in accordance with the laws in force at the time such contract or undertaking was entered into; but all such contracts and undertakings are expressly validated as against any such objection; and no action heretofore or hereafter instituted by any such person, firm, partnership, or corporation, whether sounding in contract or tort, shall be defeated because of any such failure to register. But the party who has failed to register his trade or partnership name at the time action is filed, as required by this part, shall be cast with court costs.
This part shall not apply to corporations doing business under their corporate names, to limited partnerships doing business under their limited partnership names, or to limited liability companies doing business under their limited liability company names which have been filed for record pursuant to Chapter 9, 9A, or 11 of Title 14, as amended, or to persons practicing any profession under a partnership name.
Any person, firm, partnership, or corporation carrying on any trade or business subject to registration under Code Section 10-1-490 without filing such registration as required by Code Section 10-1-490 shall be guilty of a misdemeanor but shall suffer no other or further penalty or forfeiture on account of any such failure to register, except costs as provided in Code Section 10-1-491.
(a) As used in this Code section, the term:
(1) “Artist” means the creator of a work of fine art.
(2) “Customer” means a person who contracts to have a printer duplicate a work of fine art.
(3) “Duplicate” means to print, copy, or otherwise reproduce.
(4) “Fine art” means a painting, sculpture, drawing, photograph, craft work, fiber art, or work of graphic art, except a work that a customer had specifically created as a work for hire pursuant to federal copyright laws.
(5) “Fine print” includes, but is not limited to, an engraving, etching, woodcut, lithograph, monoprint, or serigraph but does not include industrial designs.
(6) “Industrial design” means the aesthetic appearance of an article used in commerce.
(6.1) “Person” means an individual, partnership, corporation, association, entity, or other group, however organized.
(7) “Printer” means a person who contracts to duplicate a work of fine art for a customer.
(8) “Work of fine art” means any work of visual or graphic art of any media, including, but not limited to, fine art, fine print, or film.
(b) Whenever a work of fine art is sold or otherwise transferred by or on behalf of the artist who created it, or the heirs or personal representatives thereof, the right of reproduction thereof is reserved to the grantor until the right passes into the public domain pursuant to federal copyright laws unless the right is sooner expressly transferred by an instrument, note, or memorandum in writing signed by the owner of the rights conveyed or the duly authorized agent thereof. Nothing contained in this Code section is intended to prohibit the fair use, as defined in the federal copyright law (17 U.S.C. Section 107), of such work of fine art.
(c) Whenever an exclusive or nonexclusive conveyance of any right to reproduce, prepare derivative works based on, distribute copies of, or display publicly a work of fine art is made by or on behalf of the artist who created it or the owner at the time of the conveyance, ownership of the physical work of fine art shall remain with and be reserved to the artist or owner, as the case may be, unless such right of ownership is expressly transferred by an instrument, note, memorandum, or other writing signed by the artist, the owner, or the duly authorized agent thereof.
(d) Whenever an exclusive or nonexclusive conveyance of any right to reproduce, prepare derivative works based on, distribute copies of, or publicly display a work of fine art is made by or on behalf of the artist who created it or the owner at the time of the conveyance, any ambiguity with respect to the nature or extent of the rights conveyed shall be resolved in favor of the reservation of rights by the artist or owner unless in any given case the federal copyright law (17 U.S.C. Section 1, et seq.) provides the contrary.
(e) Whenever a customer shall present to a printer for duplication information or images that include a work of fine art stored or duplicated as electronic data or in any digital form or that is transmitted to the printer as electronic data or in any digital form, it shall be the sole responsibility of the customer to provide a signed statement in compliance with the provisions of subsection (h) of this Code section to the printer that the customer has the legal right or license authorizing such duplication or that those rights have passed into the public domain pursuant to federal copyright laws.
(f) Except as provided in subsection (e) of this Code section, no printer shall enter into any agreement with any customer to duplicate a work of fine art when that customer's aggregate paid and unpaid obligations to that printer for all such prior or current duplications of that work of fine art exceed $2,000.00 unless the printer obtains, at the time such aggregate obligation first exceeds $2,000.00, a signed statement from the customer that the customer has the legal right or license authorizing such duplication or that those rights have passed into the public domain pursuant to federal copyright laws.
(g) Any printer who duplicates a work of fine art in reliance upon a statement obtained pursuant to subsection (e) or (f) of this Code section will incur no liability for damages under subsection (j) of this Code section.
(h) The statement required by subsections (e) and (f) of this Code section:
(1) Does not have to be sworn;
(2) May be included on the invoice, purchase order, proposed form, or other document;
(3) May be signed one time and kept on file for all duplications for the same customer;
(4) May be signed by any employee or agent of the customer on the customer's behalf; and
(5) Shall be in substantially the following form:
“STATEMENT
The undersigned customer has obtained in writing the legal right or license which authorizes the duplication of the work of fine art which has been requested by the undersigned or those rights have passed into the public domain pursuant to federal copyright law. A printer to whom this statement is presented may rely upon it in performing the requested duplication of the work of fine art.
| | _________________________________________________ | | --- | --- | | | (Customer's Signature) | | | _________________________________________________ | | | (Date)” |
(i) Except for subsection (e) of this Code section, this Code section applies to sales, transfers, and conveyances made on or after July 1, 1990, and applies to agreements to duplicate a work of fine art made on or after July 1, 1991. Subsection (e) of this Code section applies to agreements made on or after July 1, 1996, to duplicate fine art stored, transmitted, or duplicated as electronic data or in a digital form.
(j) Any person who violates subsection (e) or (f) of this Code section or who signs the statement provided for therein knowing it to be false shall be civilly liable therefor and the person damaged thereby may recover trebled actual damages, court costs, and attorney's fees.
This article shall be known and may be cited as the “Georgia Consignment of Art Act.”
As used in this article, the term:
(1) “Art dealer” means a person engaged in the business of selling works of art, other than a person exclusively engaged in the business of selling goods at public auction, and other than a nonprofit organization.
(2) “Artist” means the person who creates a work of art, or, if such person is deceased, such person's heir, legatee, or personal representative.
(3) “Consignment” means that no title to, estate in, or right to possession of the work of art superior to that of the consignor shall vest in the consignee, notwithstanding the consignee's power or authority to transfer and convey to a third person all of the right, title, and interest of the consignor in and to such work of art.
(4) “Cooperative” means an association or group of artists which:
(A) Engages in the business of selling only works of art which are produced or created by such artists;
(B) Jointly owns, operates, and markets such business; and
(C) Accepts such works of art from its members on consignment.
(5) “Person” means an individual, partnership, corporation, association, entity, or other group, however organized.
(6) “Value of the work of art” means an amount agreed upon by written contract as the monetary worth of a work of art which amount shall be used in determining damages in the instance of a violation of this article by an art dealer and shall not be used for any other purpose.
(7) “Work of art” means an original art work which is:
(A) A visual rendition, including a painting, drawing, sculpture, mosaic, or photograph;
(B) A work of calligraphy;
(C) A work of graphic art, including an etching, lithograph, offset print, or silk screen;
(D) A craft work in materials, including clay, textile, fiber, wood, metal, plastic, or glass; or
(E) A work in mixed media, including a collage or a work consisting of any combination of subparagraphs (A) through (D) of this paragraph.
Notwithstanding any custom, practice, or usage of the trade to the contrary, whenever an artist delivers or causes to be delivered a work of art of the artist's own creation to an art dealer in this state for the purpose of exhibition or sale, or both, on a commission, fee, or other basis of compensation, the delivery to and acceptance of such work of art by the art dealer shall constitute a consignment, unless the delivery to the art dealer is pursuant to an outright sale for which the artist receives or has received full compensation for the work of art upon delivery.
(a) An art dealer may accept a work of art on a fee, commission, or other compensation basis on consignment from the artist who created the work of art only if prior to or at the time of acceptance the art dealer enters into a written contract with the artist establishing:
(1) The value of the work of art;
(2) The time within which the proceeds of the sale are to be paid to the artist if the work of art is sold; and
(3) The minimum price for the sale of the work of art.
(b) If an art dealer violates this Code section, a court may, at the request of the artist, void the obligation of the artist to that art dealer or to a person to whom the obligation is transferred other than a holder in due course.
A consignment of a work of art shall result in all of the following:
(1) The art dealer, after delivery of the work of art, shall constitute an agent of the artist for the purpose of sale or exhibition of the consigned work of art within this state;
(2) The work of art shall constitute property held in trust by the consignee for the benefit of the consignor and shall not be subject to claim by a creditor of the consignee;
(3) The consignee shall be responsible for the loss of, or damage to, the work of art; and
(4) The proceeds from the sale of the work of art shall constitute funds held in trust by the consignee for the benefit of the consignor. Such proceeds shall first be applied to pay any balance due to the consignor, unless the consignor expressly agrees otherwise in writing.
(a) A work of art received as a consignment shall remain trust property, notwithstanding the subsequent purchase thereof by the consignee directly or indirectly for the consignee's own account, until the price is paid in full to the consignor. If such work is thereafter resold to a bona fide purchaser before the consignor has been paid in full, the proceeds of the resale received by the consignee shall constitute funds held in trust for the benefit of the consignor to the extent necessary to pay any balance still due to the consignor and such trusteeship shall continue until the fiduciary obligation of the consignee with respect to such transaction is discharged in full.
(b) No such trust property or trust funds shall be or become subject or subordinate to any claims, liens, or security interests of any kind or nature whatsoever of the consignee's creditors, anything in Code Section 11-2-326 or any other provision of Title 11 to the contrary notwithstanding.
Any cooperative may contract with its members to waive liability for the loss of or damage to works of art consigned to such cooperative. Any other provision of a contract or an agreement whereby the consignor purports to waive any provision of this article is void.
An art dealer who accepts a work of art on a fee, commission, or other compensation basis on consignment from the artist who created the work of art may use or display the work of art or a photograph of the work of art or permit the use or display of the work of art or a photograph of the work of art only if:
(1) Notice is given to users or viewers that the work of art is the work of the artist; and
(2) The artist gives prior written consent to the particular use or display.
This article shall not apply to a written contract executed prior to July 1, 1995, unless either the parties agree by mutual written consent that this article shall apply or such contract is extended or renewed after July 1, 1995.
Any art dealer who violates this article is liable to the artist in an amount equal to:
(1) Fifty dollars; and
(2) The actual damages, if any, including the incidental and consequential damages sustained by the artist by reason of the violation and reasonable attorney's fees.
This article shall be known and may be cited as the “Georgia Museum Property Act.”
As used in this article, the term:
(1) “Archives repository” means a nonprofit organization or a public agency whose primary functions include selecting, preserving, and making available records of historical or enduring value and that is open to the public on a regular basis. Archives repository does not include a public library.
(2) “Loan” means the placement of property with a museum or archives repository that is not accompanied by a transfer of title of the property to the museum or archives repository and for which there is some record that the owner intended to retain title to the property. Loan does not include transfers between museums, between archives repositories, or between museums and archives repositories unless the transferring institution specifically provides in writing that the transfer is a loan under this article.
(3) “Museum” means a nonprofit organization or a public agency that is operated primarily for the purpose of collecting, cataloging, preserving, or exhibiting property of educational, scientific, historic, cultural, or aesthetic interest and that is open to the public on a regular basis. Museum does not include a public library.
(4) “Property” means personal property.
(a) Each museum or archives repository shall keep accurate records of all property on loan to the museum or archives repository, including the name and address of the owner, if known, and the beginning and ending date of the loan period. At the time that a person makes a loan to a museum or archives repository, the museum or archives repository shall give the owner of the property a copy of this article. If a museum or archives repository is notified of a change in the ownership of any property loaned to a museum or archives repository, the museum or archives repository shall inform the new owner of the provisions of the loan agreement and shall send the new owner a copy of this article. Not less than 90 days before a museum or archives repository changes its address or dissolves, the museum or archives repository shall notify all owners of that change of address or dissolution. If a museum or archives repository becomes the owner of property under Code Section 10-1-529.4 or 10-1-529.5, the museum or archives repository shall maintain any records that the museum or archives repository has regarding the property for not less than two years after the date on which the museum or archives repository becomes the owner of the property.
(b) The owner of property loaned to a museum or archives repository shall provide the museum or archives repository with written notice of any change of the owner's address, of the owner's designated agent, of the designated agent's address, and of the name and address of the new owner if there is a change in the ownership of the property loaned to the museum or archives repository.
(a) Property loaned to a museum or archives repository whose loan has an expiration date is abandoned when there has not been written contact between the owner and the museum or archives repository for at least seven years after that expiration date. If the loan has no expiration date, the property is abandoned when there has not been written contact between the owner and the museum or archives repository or their successors or assigns for at least seven years after the museum or archives repository took possession of the property.
(b)(1) If a museum or archives repository wishes to acquire title to abandoned property, the museum or archives repository shall, not less than 60 days after property is abandoned under subsection (a) of this Code section, send a notice by certified mail or statutory overnight delivery to the owner's last known address. A copy of such notice shall be simultaneously sent to any known lienholder at such lienholder's last known address. The notice shall contain all of the following:
(A) A statement that the loan is terminated and that the property is abandoned;
(B) A description of the property;
(C) A statement that the museum or archives repository will become the owner of the property if the present owner does not submit a written claim to the property to the museum or archives repository within 60 days after receipt of the notice; and
(D) A statement that the museum or archives repository will make arrangements with the owner to return the property to the owner or dispose of the property as the owner requests if the owner submits a written claim to the property to the museum or archives repository within 60 days after receipt of the notice.
(2) The notice provided for in subsection (a) of this Code section shall be substantially in the following form:
NOTICE OF ABANDONMENT OF PROPERTY
To: __________ (name of owner)
__________ (address of owner)
Please be advised that the loan agreement is terminated for the following property (describe the property in sufficient detail to identify the property):
The above-described property that you loaned to __________ (name and address of museum or archives repository) will be considered abandoned by you and will become the property of __________ (name of museum or archives repository) if you fail to submit to the museum or archives repository a written claim to the property within 60 days after receipt of this notice. If you do submit a written claim to the property within 60 days after receipt of this notice, __________ (name of museum or archives repository) will arrange to return the property to you or dispose of the property as you request. The cost of returning the property to you or disposing of the property is your responsibility unless you have made other arrangements with the museum or archives repository.__________(name of person to contact at museum or archives repository and address of museum or archives repository).
(c) If the notice sent by the museum or archives repository under subsection (b) of this Code section is returned to the museum or archives repository undelivered, the museum or archives repository shall give notice of the abandoned property by publication once a week for two consecutive weeks in the official county organs of the county in which the museum or archives repository is situated and the county of the owner's last known address, and on the organization's website, if applicable, containing the following:
(1) The name and last known address of the present owner;
(2) A description of the property;
(3) A statement that the property is abandoned and that the museum or archives repository will become the owner of the property if no person can prove ownership of the property;
(4) A statement that a person claiming ownership of the property shall notify the museum or archives repository in writing of that claim within 60 days after publication of the last legal notice; and
(5) The name and mailing address of the person who may be contacted at the museum or archives repository if a person wants to submit a written claim to the property.
(d) If the museum or archives repository receives a timely written claim for the property from the owner or the owner's agent in response to the notice provided under subsection (b) or (c) of this Code section the museum or archives repository shall return the property to the owner or dispose of the property as the owner requests. The owner shall advise the museum or archives repository in writing as to how the property shall be disposed of or returned to the owner. Costs of returning the property or disposing of the property shall be the responsibility of the owner unless the owner and the museum or archives repository have made other arrangements.
(e) If the museum or archives repository receives a timely written claim for the property from a person other than the person who loaned the property to the museum or archives repository in response to the notice provided under subsection (b) or (c) of this Code section, the museum or archives repository shall, within 60 days after receipt of the written claim, determine if the claim is valid. A claimant shall submit proof of ownership with the claim. If more than one person submits a timely written claim, the museum or archives repository may delay its determination of ownership until the competing claims are resolved by agreement or legal action. If the museum or archives repository determines that the claim is valid or if the competing claims are resolved by agreement or judicial action, the museum or archives repository shall return the property to the claimant submitting the valid claim or dispose of the property as the valid claimant requests. Costs of returning the property or disposing of the property shall be the responsibility of the valid claimant.
(f) If the museum or archives repository does not receive a timely written claim to the property or if the museum or archives repository determines that no valid timely claim to the property was submitted, the museum or archives repository becomes the owner of the property. The museum or archives repository becomes the owner of the property on the day after the period for submitting a written claim ends or on the day after the museum or archives repository determines that no valid timely written claim was submitted. The museum or archives repository owns the property free from all claims.
(a) Property in the possession of a museum or archives repository which the museum or archives repository has reason to believe may be on loan and for which the museum or archives repository does not know the owner or have any reasonable means of determining the owner becomes the property of the museum or archives repository if no person has claimed the property within seven years after the museum or archives repository or a predecessor or assignor of such museum or archives repository took possession of the property. The museum or archives repository becomes the owner of the property on the day after the seven-year period ends and after following the notification process outlined in subsection (b) of this Code section free from all claims.
(b) The museum or archives repository that wishes to acquire title to undocumented property described in subsection (a) of this Code section shall provide public notice in the manner described in Code Section 10-1-529.4.
(c) On or after July 1, 2006, property that:
(1) Is found in or on property controlled by the museum;
(2) Is from an unknown source; and
(3) Might reasonably be assumed to have been intended as a gift to the museum
is conclusively presumed to be a gift to the museum if ownership of the property is not claimed by a person within 90 days of its discovery.
(a) Unless there is a written loan agreement to the contrary, a museum or archives repository may apply conservation measures to property on loan to the museum or archives repository without the lender's permission or formal notice if action is required to protect the property on loan or other property in the custody of the museum or archives repository or the property on loan is a hazard to the health and safety of the public or the museum or archives repository staff, and either:
(1) The museum or archives repository is unable to reach the lender at the lender's last known address within three days before the time the museum or archives repository determines action is necessary; or
(2) The lender does not respond or will not agree to the protective measures the museum or archives repository recommends and does not terminate the loan and retrieve the property within three days.
(b) If a museum or archives repository applies conservation measures to property under this article, or with the agreement of the lender, unless the agreement provides otherwise, the museum or archives repository acquires a lien on the property in the amount of the costs incurred by the museum or archives repository.
(c) The museum or archives repository is not liable for injury to or loss of the property if the museum or archives repository:
(1) Had a reasonable belief at the time the action was taken that the action was necessary to protect the property on loan or other property in the custody of the museum or archives repository or that the property on loan was a hazard to the health and safety of the public or the museum or archives repository staff; and
(2) Exercised reasonable care in the choice and application of conservation measures.
This article shall not apply to objects held by museums pursuant to Part 1 of Article 7 of Chapter 12 of Title 44, relating to American Indian human remains and burial objects held by museums.
Any auctioneer who may sell or dispose of any horse or mule shall be held responsible to the purchaser for damages in the event it is shown and proved that the horse or mule so sold by him was stolen.
This article shall be known and may be cited as “The Common Day of Rest Act of 1974.”
As used in this article, the term:
(1) “Two consecutive days of Saturday and Sunday” means the time between 12:00 Midnight on Friday and 12:00 Midnight on Saturday and from 12:00 Midnight on Saturday to 12:00 Midnight on Sunday.
(2) “Two rest days” means the time between 12:00 Midnight on Friday and 12:00 Midnight on Saturday and from 12:00 Midnight on Saturday to 12:00 Midnight on Sunday.
The purpose of this article is to promote the health, recreation, welfare, repose, and religious liberty of each individual of this state. This article is not designed to be discriminatory in any way or to any group but rather to provide the public with necessary benefits and services at all times, while at the same time protecting the lawful humanitarian, social, and religious rights of each individual.
Any business or industry which operates on either of the two rest days (Saturday or Sunday) and employs those whose habitual day of worship has been chosen by the employer as a day of work shall make all reasonable accommodations to the religious, social, and physical needs of such employees so that those employees may enjoy the same benefits as employees in other occupations.
This article is not applicable to and shall not prohibit:
(1) Casual transactions between persons, none of whom are thereby carrying on a business or business transactions;
(2) Agricultural operations such as farming, animal and poultry husbandry, forestry, and allied activity;
(3) The conduct of the businesses and activities referred to in Code Sections 10-1-575 and 10-1-576;
(4) The practice of the healing arts by persons licensed or otherwise authorized to practice the healing arts under the laws of Georgia.
The prohibitions of this article are not applicable to a person, nonprofit organization, or nonprofit corporation if its activity is conducted solely for charitable or religious purposes.
The prohibitions of this article are not applicable to any federal, state, county, municipal, or other local government department or agency in the conduct of its official duties nor to the employees thereof in the discharge of their official employment.
This article shall be known and may be cited as the “Buying Services Act of 1975.”
As used in this article, the term:
(1) “Attorney General” means the Attorney General or his or her designee.
(2) “Business day” means any day other than a Saturday, Sunday, or legal holiday.
(3) “Buying service,” “buying club,” or “club” means any corporation, partnership, unincorporated association, or other business enterprise which is organized with the primary purpose of providing benefits to members from the cooperative purchase of service or merchandise and which desires to effect such purpose through direct solicitation or other business activity in this state.
(4) “Contract” means any contract or agreement by which a person becomes a member of a buying service or club.
(5) “Member” means any natural person who is entitled to any of the benefits of a buying service or buying club.
No buying service or club nor any officer, official, employee, or agent thereof shall sell, advertise, or solicit the sale or purchase of memberships or contracts within this state without having first obtained a license to do business in this state from the Attorney General.
As a condition to the issuance or retention of a license required by this article, each buying service or club shall:
(1) Comply with such reasonable conditions for the issuance of a license as may be required by the Attorney General pursuant to this article;
(2) Maintain a bond in the amount of $25,000.00 with a surety company duly authorized to do business in this state or post a cash bond in such amount, payable to the Governor; in either case, such bond shall be for the use and benefit of any person who has entered into a contract for membership in a buying service or club. Such bond shall be conditioned to pay all losses, damages, and expenses that may be sustained by such member by reason of any fraudulent misrepresentation or by reason of any breach of contract by the club; and
(3) Furnish, if the buying service or club operates buying service activities at more than one physical location in this state, a surety bond for each location of buying service activity, each bond to be in the amount and subject to the conditions stated in paragraph (2) of this Code section.
(a) Application for a license as a buying service or club shall be made on forms prescribed by the Attorney General and shall contain such information and supporting documents as he may require.
(b) Licenses shall be issued for a period of one year and shall be renewable within 90 days preceding the expiration thereof.
(c) The fee for a license or for the renewal thereof shall be $50.00, payable to the Attorney General for deposit by the Office of the State Treasurer in the general fund of the state.
(a) Licenses issued under this article may be revoked, suspended, or not renewed by the Attorney General for:
(1) Any violation of the substantive provisions of this article;
(2) A violation of any rule or regulation issued by the Attorney General pursuant to this article; or
(3) A violation of any law of this state.
(b) Licenses shall be revoked or suspended by the Attorney General only following notice and hearing pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
No contract of membership shall be used by any buying service or club unless such contract is first approved by the Attorney General as to form. Any contract or agreement used in violation of this Code section shall be null, void, and of no effect.
(a) Any person who has elected to become a member of a club may cancel such membership by giving written notice of cancellation any time before 12:00 Midnight of the third business day following the date on which membership was attained.
(b) Notice of cancellation may be given personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed and postage prepaid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the member not to be bound by the contract.
(c) Cancellation shall be without liability on the part of the member. The member will be entitled to a total refund, within ten days after notice of cancellation is given, of the entire consideration paid for the contract.
(d) Rights of cancellation may not be waived or otherwise surrendered.
(a) A copy of every contract shall be delivered to the member at the time the contract is signed.
(b) Every contract must be in writing, must be signed by the member, must designate the date on which the member signed the contract, and must state, clearly and conspicuously in boldface type of a minimum size of 14 points, the following:
“MEMBER'S RIGHT TO CANCEL
If you wish to cancel this contract, you may cancel by delivering or mailing a written notice to the club. To prove that you canceled, it is recommended that you send the notice by certified mail or statutory overnight delivery. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before 12:00 Midnight of the third business day after you sign this contract. The notice must be delivered or mailed to: (insert name and mailing address of club). If you cancel, the club will return, within ten days of the date on which you give notice of cancellation, a total refund. It is recommended that you mail the notice of cancellation by certified mail or statutory overnight delivery, return receipt requested; check with your post office as to the time when you will be able to mail a certified letter. Be sure to keep a photocopy of the notice of cancellation which you mail.”
(c) Every contract which does not contain the notice specified in subsection (b) of this Code section may be canceled by the member at any time, without liability, by giving notice of cancellation by any means. Nothing contained in this Code section shall be construed to require that a member's cancellation notice be sent by certified mail or statutory overnight delivery in order to effect a cancellation.
No contract shall be valid for a term longer than 18 months from the date upon which the contract is signed. However, a club may allow a member to convert his or her contract into a contract for a period longer than 18 months after the member has been a member of the club for a period of at least six months. The duration of the contract shall be clearly and conspicuously disclosed in the contract in boldface type of a minimum size of 14 points.
(a) Each buying service or club licensed in this state shall keep and maintain:
(1) Accurate accounts, books, and records of all transactions in this state;
(2) Copies of all agreements;
(3) Dates and amounts of payments made and accepted thereon; and
(4) The names and addresses of all members in this state.
(b) Such accounts, books, and records shall be open for inspection by the Attorney General during normal business hours on all normal business days.
The Attorney General is authorized to promulgate, adopt, and issue rules, regulations, and orders necessary or convenient to carry out the provisions and purposes of this article. Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” shall apply to the promulgation of rules and regulations by the Attorney General pursuant to this Code section.
Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” shall apply to all actions and proceedings of an administrative nature taken by the Attorney General pursuant to this article, except where the Attorney General is acting under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.” A violation of this article shall also be considered a violation of Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.”
In addition to any other proceedings authorized by this article, the Attorney General may bring a civil action in the superior courts to enjoin any violation or threatened violation of any provision of this article or any rule, regulation, or order issued or enforced by the Attorney General pursuant to this article.
(a) In order to enforce this article or any orders, rules, and regulations promulgated pursuant thereto, the Attorney General may issue an administrative order imposing a penalty not to exceed $1,000.00 for each violation, whenever he or she determines, after a hearing, that any person has violated any provisions of this article or any rules, regulations, or orders promulgated under this article.
(b) The hearing and any administrative review thereof shall be conducted in accordance with the procedure for contested cases under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by a final order or action of the Attorney General shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” All penalties recovered as provided in this Code section shall be paid into the state treasury.
(c) The Attorney General may file, in the superior court of the county in which the person under an order resides, or if the person is a corporation, in the superior court of the county in which the corporation under an order maintains its principal place of business, or in the superior court of the county in which the violation occurred, a certified copy of the final order of the Attorney General unappealed from or of a final order of the Attorney General affirmed upon appeal. Thereupon, the court shall render judgment in accordance therewith and shall notify the parties. Such judgment shall have the same effect and proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by such court.
(d) The penalty prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available to the Attorney General with respect to any violation of this article and any order, rules, or regulations promulgated pursuant thereto.
Any person, firm, corporation, organization, partnership, entity, buying club, or buying service violating any provision of this article shall be guilty of a misdemeanor.
Rules, orders, actions, and regulations previously adopted which relate to functions performed by the administrator appointed pursuant to the Fair Business Practices Act of 1975 which were transferred under this article to the Attorney General shall remain of full force and effect as rules, orders, actions, and regulations of the Attorney General until amended, repealed, or superseded by rules or regulations adopted by the Attorney General.
This article shall be known and may be cited as the “Georgia Motor Vehicle Franchise Practices Act.”
The General Assembly finds and declares that:
(1) The distribution and sale of motor vehicles within this state are vital to the general economy of this state and to the public interest and public welfare;
(2) The provision for warranty service and the repair of predelivery transportation damages to motor vehicles is of substantial concern to the people of this state;
(3) The maintenance of full and fair competition among dealers and others is in the public interest; and
(4) The maintenance of strong and sound dealerships is essential to provide continuing and necessary reliable services to the consuming public in this state and to provide stable employment to the citizens of this state.
As used in this article, the term:
(.1) “Consumer data” means “nonpublic personal information” as such term is defined in 15 U.S.C. Section 6809(4) as it existed on January 1, 2019, that is:
(A) Collected by a dealer; and
(B) Provided by the dealer directly to a manufacturer or third party acting on behalf of a manufacturer. Such term shall not include the same or similar data obtained by a manufacturer from any source other than the dealer or dealer's data management system.
(.2) “Data management system” means a computer hardware or software system that:
(A) Is owned, leased, or licensed by a dealer, including a system of web based applications, computer software, or computer hardware;
(B) Is located at the dealership or hosted remotely; and
(C) Stores and provides access to consumer data collected or stored by a dealer.
Such term shall include, but shall not be limited to, dealership management systems and customer relations management systems.
(1) “Dealer” means any person engaged in the business of selling, offering to sell, soliciting, or advertising the sale of new motor vehicles and who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such sales. The term “dealer” shall also include any person who engages exclusively in the repair of motor vehicles, except motor homes, if such repairs are performed pursuant to the terms of a franchise or other agreement with a franchisor or such repairs are performed as part of a manufacturer's or franchisor's warranty. The term “dealer” shall not mean any person engaged solely in the business of selling used motor vehicles.
(2) “Dealership” means:
(A) The dealer, if the dealer is a corporation, partnership, or other business organization; or
(B) All business assets used in connection with the dealer's business pursuant to the franchise including, but not limited to, the dealership facilities, the franchise, inventory, accounts receivable, and good will if the dealer is an individual.
(3) “Dealership facilities” means the location at which a dealer, pursuant to a franchise, maintains a permanent showroom for new motor vehicles.
(4) “Designated successor” means any person or child who, in the case of the owner's death, is entitled to inherit the ownership interest in the dealership under the owner's will or who, in the case of an incapacitated owner, has been appointed by a court as the legal representative of the owner's property or has been otherwise lawfully nominated or constituted to manage the dealership on behalf of the owner. A “designated successor” may also mean a person specifically named in the franchise agreement or any addendum to the franchise agreement.
(5) “Distributor” means any person, resident or nonresident, who directly or indirectly in the ordinary course of business and on a recurring basis sells such new motor vehicles to a dealer for resale if such person is the principal supplier of any make of motor vehicle for two or more dealers.
(6) “Franchise” means the written agreement or contract between any franchisor and any dealer which purports to fix the legal rights and liabilities of the parties to such agreement or contract and pursuant to which the dealer purchases and resells motor vehicles or leases or rents the dealership facilities. A franchisor is prohibited from effectuating through any letter, memo, or other document or electronic communication any action or terms that this article makes unlawful when included in a franchise agreement.
(7) “Franchisor” means:
(A) Any person, resident or nonresident, who directly or indirectly licenses or otherwise authorizes one or more dealers to use a trademark or service mark associated with a make of motor vehicle in connection with the retail sale of new motor vehicles bearing such trademark or service mark;
(B) Any person who in the ordinary course of business and on a recurring basis sells such new motor vehicles to a dealer for resale; and
(C) Any person, other than a person who finances the purchase or lease of motor vehicles, who is controlled by a franchisor or more than 10 percent owned by a franchisor, as that term is defined in subparagraphs (A) and (B) of this paragraph.
(8) “Good faith” means honesty in fact and the observation of reasonable commercial standards of fair dealing in the trade as defined in Code Section 11-1-201.
(8.1) “Line-make” is a collection of models, series, or groups of motor vehicles manufactured by or for a particular manufacturer, distributor, or importer that are offered for sale, lease, or distribution pursuant to a common brand name or mark; provided, however:
(A) Multiple brand names or marks may constitute a single line-make, but only when included in a common dealer agreement and the manufacturer, distributor, or importer offers such vehicles bearing the multiple names or marks together only, and not separately, to its authorized dealers; and
(B) Motor vehicles bearing a common brand name or mark may constitute separate line-makes when pertaining to motor vehicles subject to separate dealer agreements or when such vehicles are intended for different types of use.
(9) “Manufacturer” means any person who performs the major portion of the assembly of a new motor vehicle.
(10) “Motor vehicle” means every self-propelled vehicle intended primarily for use and operation on the public highways, except farm tractors and other machines and tools used in the production, harvesting, and care of farm products, construction equipment, and recreational vehicles as defined in paragraph (5) of subsection (a) of Code Section 10-1-679.
(11) “New motor vehicle” means a motor vehicle on which the original motor vehicle title has not been issued.
(12) “Owner” means any person holding an ownership interest in a dealership.
(13) “Person” means every natural person, partnership, corporation, association, trust, estate, or any other legal entity.
(13.1) “Relevant market area” means the area located within an eight-mile radius of an existing dealership.
(14) “Warrantor” means any person who gives a warranty in connection with a new motor vehicle.
(15) “Warranty” means a written document signed or authorized by the party on whose behalf it is given which is made or given incident to the sale or lease of a new motor vehicle which contains either statements or promises that said new motor vehicle meets or will meet certain standards or promises to perform certain repairs or other services in connection with said new motor vehicle if necessary. Such term does not include service contracts, mechanical or other insurance, or “extended warranties” sold for separate consideration by a dealer or other person not controlled by a manufacturer or distributor.
(a) Notwithstanding the terms, provisions, or conditions of any agreement or franchise or other terms or provisions of any novation, waiver, or other written instrument, any person who is or may be injured by a violation of a provision of this article or any party to a franchise who is so injured in his or her business or property by a violation of a provision of this article relating to that franchise or any person so injured because he or she refuses to accede to a proposal for an arrangement which, if consummated, would be in violation of this article may file a petition with the Department of Revenue as provided in Code Section 10-1-667 or may bring an action in any court of competent jurisdiction for damages and equitable relief including injunctive relief. Said person may recover damages therefor in any amount equal to the greater of (1) the actual pecuniary loss or (2) three times the actual pecuniary loss, not to exceed $750,000.00. In addition, said person may recover costs and reasonable attorney's fees as damages. Upon a prima-facie showing by the person filing the petition or cause of action that a violation of this article has occurred, the burden of proof shall then be upon the opposing party to prove that such violation did not occur.
(b) If the franchisor engages in aggravated or continued multiple intentional violations of a provision or provisions of this article, the court may award punitive damages in addition to any other damages authorized under this part.
(c) A dealer, owner, or other party, if he has not suffered any loss of money, property, employment rights, or business opportunity, may obtain final equitable relief if it can be shown that the violation of a provision of this article by a franchisor may have the effect of causing such loss of money, property, employment rights, or business opportunity.
(d) This Code section shall not prevent a dealer from voluntarily entering into a valid release agreement to resolve a specific claim, dispute, or action between the franchisor and the dealer or when separate and adequate consideration is offered and accepted, provided that the renewal of a franchise shall not by itself constitute separate and adequate consideration.
(e) Any corporation or association which is primarily owned by or comprised of dealers and which primarily represents the interests of dealers shall have standing to file a petition or cause of action with the Department of Revenue or with any court of competent jurisdiction for itself or by, for, or on behalf of any dealer or group of dealers for an alleged violation of this article or for the determination of any rights created by this article.
(f) In addition to any county in which venue is proper in accordance with any provision of the Constitution of this state or any other provision of this Code, in any cause of action brought against a manufacturer, franchisor, or distributor which is a corporation by a dealer for any alleged breach of the franchise agreement or alleged violation of this article or for the determination of any rights created by the franchise agreement or this article, venue shall be proper in the county in which the dealer engaged in the business of selling the products or services of such manufacturer, franchisor, or distributor, and the manufacturer, franchisor, or distributor which is a corporation shall be deemed to reside in such county for venue purposes. Any provision of a franchise or other agreement, under which the parties determine, agree to, control, restrict, establish, limit, or direct the venue in which a cause of action under this article shall be brought, shall be void.
(a) Any person who engages directly or indirectly in purposeful contacts within this state in connection with the offering of advertising for sale or has business dealings with respect to a new motor vehicle sale within this state shall be subject to the provisions of this article and shall be subject to the jurisdiction of the courts of this state.
(b) The applicability of this article shall not be affected by a choice of law clause in any franchise, agreement, waiver, novation, or any other written instrument.
(c) Any provision of any franchise, agreement, waiver, novation, or any other written instrument executed, modified, extended, or renewed after July 1, 1983, which is in violation of any Code section of this article, and any amendments thereto, shall be deemed null and void and without force and effect.
(d) No franchisor shall use any subsidiary corporation, affiliated corporation, or any other controlled corporation, partnership, association, or person to accomplish what would otherwise be illegal conduct under this article on the part of the franchisor.
Actions arising out of any provision of this article shall be commenced within a four-year period of the accrual of the cause of action; however, if a person liable under this article conceals the cause of action from the knowledge of the person entitled to bring the action, the period prior to the discovery of his cause of action by the person entitled to bring such action shall be excluded in determining the time limited for the commencement of the action.
The rights, remedies, and duties contained in this article are not exclusive but are cumulative with the rights, remedies, and duties otherwise provided by law. The rights and duties contained in the various parts of this article are not exclusive but are cumulative with the rights and duties provided in other parts of this article.
No franchisor, nor any agent nor employee of a franchisor, shall use a written instrument, agreement, or waiver to attempt to nullify any of the provisions of this article and any such agreement, written instrument, or waiver shall be null and void. This Code section shall not prevent a dealer from voluntarily entering into a valid release agreement to resolve a specific claim, dispute, or action between the franchisor and the dealer or when separate and adequate consideration is offered and accepted, provided that the renewal of a franchise shall not by itself constitute separate and adequate consideration.
Whenever any person brings an action or complaint to enforce any provision of this article in any court of competent jurisdiction and prevails or substantially prevails in such action or complaint, the court may award the person bringing such action or complaint his reasonable attorney's fees. Such attorney's fees shall be taxed and collected as part of the costs and shall be in addition to any other costs or penalties imposed.
This part shall be known and may be cited as the “Georgia Motor Vehicle Dealer's Day in Court Act.”
(a) It is declared to be violative of the existing law of the State of Georgia for any franchisor:
(1) To fail to act in good faith with any dealer in connection with the sale, transfer, termination, or succession of a franchise or in connection with the operation of a dealer's business pursuant to a franchise or to fail to act in good faith in any of its business transactions with a dealer; or
(2) To utilize a boycott, refusal to deal, threat of refusal to deal, coercion, threat of punitive action, withholding of benefits, or other unconscionable business practices in any of its business transactions with a dealer.
(b) Without limitation as to other actions which may violate this Code section, it shall be evidence of a violation of this Code section if a franchisor commits any action which would be a violation of any part of Part 1 of this article, the “Georgia Motor Vehicle Franchise Practices Act.”
(a) With respect to consumer data, a franchisor, manufacturer, distributor, or a third party acting on behalf of a franchisor, manufacturer, or distributor:
(1) Shall comply with and shall not cause a dealer to violate any applicable restrictions on reuse or disclosure of the consumer data established by federal or state law;
(2) Shall provide a written statement to the dealer upon request describing the established procedures adopted by such franchisor, manufacturer, distributor, or third party acting on behalf of the franchisor, manufacturer, or distributor which meet or exceed any federal or state requirements to safeguard the consumer data, including, but not limited to, those established in the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801, et seq.;
(3) Shall, upon the written request of the dealer, provide a written list of the consumer data obtained from the dealer and all persons to whom any consumer data has been provided by the franchisor, manufacturer, distributor, or a third party acting on behalf of a franchisor, manufacturer, or distributor during the preceding six months. The dealer may make such a request no more than once every six months. The list must indicate the specific fields of consumer data which were provided to each person. Notwithstanding the foregoing, such a list shall not be required to include:
(A) A person to whom consumer data was provided, or the specific consumer data provided to such person, if the person was, at the time such consumer data was provided, a service provider, subcontractor, or consultant acting in the course of performance of services on behalf of or for the benefit of the franchisor, manufacturer, distributor, third party, or dealer, provided that the franchisor, manufacturer, distributor, third party, or dealer has entered into an agreement with such person requiring that such person comply with the safeguard requirements of applicable state and federal law, including, but not limited to, those established in the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801, et seq.; and
(B) A person to whom consumer data was provided, or the specific consumer data provided to such person, if the dealer has previously consented in writing to such person receiving such consumer data and the dealer has not withdrawn such consent in writing;
(4) May not require that a dealer grant the franchisor, manufacturer, distributor or a third party acting on behalf of a franchisor, manufacturer, or distributor direct or indirect access to such dealer's data management system to obtain consumer data. A franchisor, manufacturer, distributor, or a third party acting on behalf of a franchisor, manufacturer, or distributor must permit a dealer to furnish consumer data in a widely accepted file format, such as comma delimited, and through a third-party vendor selected by the dealer. However, a franchisor, manufacturer, or distributor, or a third party acting on behalf of a franchisor, manufacturer, or distributor may access or obtain consumer data directly from a dealer's data management system with the express consent of the dealer. The consent must be in the form of a written document that is separate from the parties' franchise agreement, is executed by the dealer, and may be withdrawn by the dealer upon 30 days' written notice to the franchisor, manufacturer, or distributor as applicable. For incentive programs beginning on or after July 1, 2019, such consent shall not be required as a condition to a motor vehicle dealer's participation in an incentive program unless such consent is necessary to obtain consumer data to implement the program; and
(5) Shall indemnify the dealer for any third-party claims asserted against or damages incurred by the dealer to the extent caused by access to, use of, or disclosure of consumer data in violation of this Code section by the franchisor, manufacturer, distributor or a third party to whom the franchisor, manufacturer or distributor has provided consumer data.
(b) Nothing contained in this Code section shall limit the ability of the franchisor, the manufacturer, or distributor, to require that the dealer provide, or use in accordance with the law, such customer information related solely to such manufacturer's or distributor's own vehicle makes to the extent necessary to do any of the following:
(1) Satisfy any safety or recall notice obligations or other legal notice obligations on the part of the manufacturer;
(2) Complete the sale and delivery of a new motor vehicle to a customer;
(3) Validate and pay customer or dealer incentives;
(4) Submit to the franchisor, manufacturer, or distributor claims for any services supplied by the dealer for any claim for warranty parts or repairs;
(5) Market analysis;
(6) Evaluate sales and service customer satisfaction with the dealer, including surveys; or
(7) Reasonable marketing purposes that benefit the dealer.
(c) In any cause of action against a franchisor, manufacturer, or distributor for a violation of this Code section, the party bringing the action shall have the burden of proof.
This part shall be known and may be cited as the “Motor Vehicle Warranty Practices Act.”
(a)(1) Each franchisor, manufacturer, or distributor:
(A) Shall specify in writing to each of its dealers in this state the dealer's obligations for predelivery preparation including the repair of damages incurred in the transportation of vehicles as set forth in Code Section 10-1-642, recall work, and warranty service on its products;
(B) Shall, at the election of the dealer, reasonably compensate the dealer for parts and labor provided for such warranty service work as provided in paragraph (2) of this subsection;
(C) Shall provide the dealer with a schedule of compensation to be paid such dealer for parts, work, and service in connection therewith; and
(D) Shall provide the dealer with a schedule of the time allowance for the performance of such work and service. Any such schedule of compensation shall include reasonable compensation for diagnostic work, repair service, and labor. Time allowances for the diagnosis and performance of such work and service shall be reasonable and adequate for the work to be performed.
(2)(A) In the determination of what constitutes reasonable compensation for parts and labor under this Code section, the principal factors to be considered shall be the retail rates customarily charged by the dealer, as established pursuant to this paragraph, and the rates for parts and labor charged by other similarly situated franchised dealers in a comparable geographic area in this state offering the same line-make vehicles.
(B) The retail rate customarily charged by the dealer for parts shall be established by the dealer submitting to the franchisor, manufacturer, or distributor 100 sequential nonwarranty customer-paid service repair orders which contain warranty-like repairs or 90 consecutive days of nonwarranty customer-paid service repair orders which contain warranty-like parts, whichever is less. Such service repair orders shall cover repairs made no more than 180 days before the submission. If the franchisor, manufacturer, or distributor determines, from any set of repair orders submitted under this subparagraph, that the retail markup rate for parts calculated is substantially higher or lower than the rate currently on record with the franchisor, manufacturer, or distributor, then the franchisor, manufacturer, or distributor may request additional documentation for a period of either 60 days prior to or 60 days subsequent to the time period for which the repair orders were submitted for purposes of an adjustment. The dealer's retail rate percentage for parts shall be calculated by determining the dealer's total parts sales in the submitted repair orders and dividing that amount by the dealer's total cost for purchase of those parts, subtracting one from that amount, and then multiplying by 100. The declared retail rate shall be approved or disapproved within 30 days following submission by the dealer. The declared retail rate shall go into effect 30 days following approval by the franchisor, manufacturer, or distributor, unless such franchisor, manufacturer, or distributor disapproves and timely contests the dealer's declared rate. If a franchisor, manufacturer, or distributor fails to disapprove within 30 days following submission by the dealer, the declared retail rate shall be deemed approved. A franchisor, manufacturer, or distributor may contest the dealer's declared parts rate not later than 30 days after submission and declaration of the parts rate by the dealer by reasonably substantiating that the rate is unreasonable in light of the practices of all other similarly situated franchised dealers in a comparable geographic area in this state offering the same line-make vehicles. In contesting the dealer's declared rate, a franchisor, manufacturer, or distributor shall provide a written explanation of the reasons for disagreement with the declared rate. If the declared parts rate is contested, then the franchisor, manufacturer, or distributor shall propose an adjustment of the rate. If the franchisor, manufacturer, or distributor contests the dealer's declared parts rate, the parties shall attempt to resolve the dispute through an internal dispute resolution procedure of the franchisor, manufacturer, or distributor, if available, provided that such procedure occurs within a reasonable amount of time, not to exceed 30 days after notification of disagreement with the dealer's declared rate. If the internal dispute resolution procedure is unsuccessful or does not occur in a timely manner, the dealer may file a petition with the commissioner not later than 60 days after receipt of the proposed adjustment by the franchisor, manufacturer, or distributor or not later than 30 days after conclusion of the internal dispute resolution procedure, whichever is later. If such a petition is filed, the commissioner shall inform the franchisor, manufacturer, or distributor that a timely petition has been filed and that a hearing will be held on such issue. In any hearing held pursuant to this subparagraph, the burden of proof shall be upon the franchisor, manufacturer, or distributor to demonstrate that the parts rate declared by the dealer was unreasonable and not in accordance with this subparagraph.
(C) The retail rate customarily charged by the dealer for labor may be established by submitting to the franchisor, manufacturer, or distributor 100 sequential nonwarranty customer-paid service repair orders for warranty-like repairs or 90 consecutive days of customer-paid service repair orders for warranty-like repairs, whichever is less. Such service repair orders shall cover repairs made no more than 180 days before the submission. If the franchisor, manufacturer, or distributor determines, from any set of repair orders submitted under this subparagraph, that the retail rate for labor calculated is substantially higher or lower than the rate currently on record with the franchisor, manufacturer, or distributor, then the franchisor, manufacturer, or distributor may request additional documentation for a period of either 60 days prior to or 60 days subsequent to the time period for which the repair orders were submitted for purposes of an adjustment. The retail rate for labor shall be calculated by determining the dealer's total labor sales from the submitted repair orders and dividing that amount by the total number of hours that generated those sales. The declared retail labor rate shall be approved or disapproved within 30 days following submission by the dealer. The declared retail labor rate shall take effect 30 days following approval by the franchisor, manufacturer, or distributor unless such franchisor, manufacturer, or distributor disapproves and timely contests the dealer's declared rate. A franchisor, manufacturer, or distributor may contest the dealer's declared labor rate not later than 30 days after submission and declaration of the labor rate by the dealer by reasonably substantiating that such rate is unreasonable in light of the practices of all other similarly situated franchised motor vehicle dealers in a comparable geographic area in this state offering the same line-make vehicles. If the declared labor rate is contested, then the franchisor, manufacturer, or distributor shall propose an adjustment of the declared retail labor rate. If the franchisor, manufacturer, or distributor contests the dealer's declared labor rate, the parties shall attempt to resolve the dispute through an internal dispute resolution procedure of the franchisor, manufacturer, or distributor, if available, provided that such procedure occurs within a reasonable amount of time not to exceed 30 days after notification of disagreement with the dealer's declared rate. If the internal dispute resolution procedure is unsuccessful or does not occur in a timely manner, the dealer may file a petition with the commissioner not later than 60 days after receipt of the proposed adjustment by the franchisor, manufacturer, or distributor or not later than 30 days after conclusion of the internal dispute resolution procedure, whichever is later. If such a petition is filed, the commissioner shall inform the franchisor, manufacturer, or distributor that a timely petition has been filed and that a hearing will be held on such issue. In any hearing held pursuant to this subparagraph, the burden of proof shall be upon the franchisor, manufacturer, or distributor to demonstrate that the labor rate declared by the dealer was unreasonable and not in accordance with this subparagraph.
(D) In calculating the retail rate customarily charged by the dealer for parts and labor for purposes of this paragraph, the following work shall not be included in the calculation:
(i) Repairs for franchisor, manufacturer, or distributor special events, specials, or promotional discounts for retail customer repairs;
(ii) Parts sold at wholesale;
(iii) Routine maintenance not covered under any retail customer warranty, such as fluids, filters, and belts not provided in the course of repairs;
(iv) Nuts, bolts, fasteners, and similar items which contain no individual part number;
(v) Tires; and
(vi) Vehicle reconditioning.
(E) If a franchisor, manufacturer, or distributor furnishes a part or component to a dealer to use in performing repairs under a recall, campaign service action, or warranty repair at no cost to the dealer, the franchisor, manufacturer, or distributor shall compensate the dealer for the authorized repair part or component in the same manner as warranty parts compensation under this Code section by paying the dealer the retail rate markup on the cost for the part or component as listed in the price schedule of the franchisor, manufacturer, or distributor less the cost for the part or component.
(F) No franchisor, manufacturer, or distributor shall require a dealer to establish the retail rate customarily charged by the dealer for parts and labor by an unduly burdensome or time consuming method or by requiring information that is unduly burdensome or time consuming to provide, including, but not limited to, part-by-part or transaction-by-transaction calculations. No dealer shall declare a retail rate for parts or labor or both more than once in one calendar year.
(b)(1) Franchisors, manufacturers, and distributors shall include in written notices of factory recalls to dealers the expected date by which necessary parts and equipment will be available to dealers for the repair or replacement of recalled parts and equipment. Franchisors, manufacturers, and distributors shall compensate any dealers in this state for repairs affected by all recalls.
(2) All such claims shall be either approved or disapproved within 30 days after their receipt on forms and in the manner specified by the franchisor, manufacturer, or distributor, and any claim not specifically disapproved in writing within 30 days after the receipt shall be construed to be approved and payment must follow within 30 days.
(c) Subject to Code Section 10-1-645, a franchisor, manufacturer, or distributor shall not recover its costs from dealers within this state, including a surcharge imposed on a dealer solely intended to recover the cost of reimbursing the dealer for parts and labor pursuant to this Code section, provided that a franchisor, manufacturer, or distributor shall not be prohibited from increasing prices for vehicles or parts in the normal course of business.
(d)(1) For purposes of this subsection, the term “stop-sale” means a notification issued by a manufacturer to its franchised dealers stating that certain used motor vehicles in inventory shall not be sold or leased, at either retail or wholesale, due to a federal safety recall for a defect or a noncompliance or a federal emissions recall.
(2) A franchisor, manufacturer, or distributor shall compensate its dealers for all labor and parts required by the manufacturer to perform recall repairs. Compensation for recall repairs shall be reasonable. If parts or a remedy are not reasonably available to perform a recall service or repair on a used vehicle held for sale by a dealer authorized to sell and service new motor vehicles of the same line-make within 30 days of the manufacturer issuing the initial notice of recall, and the manufacturer has issued a stop-sale or do not drive order on the vehicle, the manufacturer shall compensate the dealer at a prorated rate of at least 1 percent of the value of the vehicle per month beginning on the date that is 30 days after the date on which the stop-sale or do not drive order was provided to the dealer to the earlier of the date the recall or repair parts or remedy are made available or the date the dealer sells, trades, transfers, or otherwise disposes of the affected used motor vehicle.
(3) The value of a used motor vehicle shall be the average trade-in value for used motor vehicles as indicated in an independent third-party guide for the year, make, and model of the recalled vehicle.
(4) This subsection shall apply only to used motor vehicles subject to safety or emissions recalls pursuant to and recalled in accordance with federal law and regulations adopted thereunder and where a stop-sale or do not drive order has been issued and repair parts or remedy remain unavailable for 30 days or longer.
(5) This subsection shall apply only to dealers holding an affected used motor vehicle for sale in inventory at the time a stop-sale or do not drive order is issued or which was taken into the used motor vehicle inventory of the dealer as a consumer trade-in incident to the purchase of a new motor vehicle from the dealer after the stop-sale or do not drive order was issued, and that are a line-make that the dealer is franchised to sell or on which the dealer is authorized to perform recall repairs.
(6) It shall be a violation of this subsection for a manufacturer to reduce the amount of compensation otherwise owed to an individual dealer, whether through a chargeback, removal of the individual dealer from an incentive program, or reduction in amount owed under an incentive program, solely because the dealer has submitted a claim for reimbursement under this subsection. The provisions under this subsection shall not apply to an action by a manufacturer that is applied uniformly among all dealers of the same line-make in this state.
(7) All reimbursement claims made by dealers pursuant to this subsection for recall remedies or repairs, or for compensation where no part or repair is reasonably available and the vehicle is subject to a stop-sale shall be subject to the same limitations and requirements as a warranty reimbursement claim made under this subsection. In the alternative, a manufacturer may compensate its franchised dealers under a national recall compensation program provided the compensation under the program is equal to or greater than that provided under this subsection; or the manufacturer and dealer otherwise agree.
(8) A manufacturer may direct the manner and method in which a dealer must demonstrate the inventory status of an affected used motor vehicle to determine eligibility under this subsection, provided that the manner and method may not be unduly burdensome and may not require information that is unduly burdensome to provide.
(9) Nothing in this subsection shall require a manufacturer to provide total compensation to a dealer which would exceed the total average trade-in value of the affected used motor vehicle as originally determined under paragraph (3) of this subsection.
(10) Any remedy provided to a dealer under this subsection is exclusive and may not be combined with any other state or federal recall compensation remedy.
Notwithstanding the terms, provisions, or conditions of any agreement of franchise, a manufacturer or distributor selling motor vehicles to dealers is liable for all damages to such motor vehicles before delivery to a carrier or transporter. If a dealer selects the carrier, the risk of loss passes to the dealer upon delivery of the vehicle to the carrier. In every other instance, the risk of loss remains with the franchisor until such time as the dealer or his designee accepts the vehicle from the carrier.
All manufacturers, distributors, and warrantors shall reimburse their dealers for reasonable attorney's fees incurred by the dealer in defending any action in which the dealer is named as a defendant and in which the allegations set forth in the action are based solely upon claims of alleged defective or negligent manufacture, assembly, design of new motor vehicles, parts, or accessories, or other functions by the distributor, manufacturer, or warrantor which are beyond the control of the dealer. For this Code section to be applicable, the dealer must give notice to the manufacturer, distributor, and warrantor within 30 days of the receipt of the action if the manufacturer, distributor, or warrantor is not a named defendant in the action. In addition, this Code section only applies to actions in which a judgment or finding of fault is returned only against the manufacturer, distributor, or warrantor or in which the manufacturer, distributor, or warrantor enters into an agreement which settles or makes final disposition of the action.
This part shall not be applicable with respect to vehicles shipped or contracted to be shipped prior to July 1, 1983, pursuant to contracts which contain provisions which are contrary to matters contained in this part.
(a) Any manufacturer or franchisor and at least a majority of its dealers of the same line make may agree to a uniform warranty reimbursement agreement in an express written contract executed by a dealer principal or authorized designee of the dealer principal that specifically cites this Code section. The agreement shall only involve either reimbursement for parts used in warranty repairs or the use of a uniform time standards manual, or both. Reimbursement for parts under the agreement shall be used instead of the dealers' prevailing retail rate charged by that dealer for the same parts as defined in Code Section 10-1-641 to calculate compensation due from the franchisor for parts used in warranty repairs. This Code section does not authorize a franchisor and its dealers to establish a uniform hourly labor reimbursement.
(b) A manufacturer or franchisor that proposes a uniform reimbursement agreement must provide all of its line make dealers a minimum of 30 days to consider such proposal which shall be in writing and provided to the dealer principal or authorized designee of the dealer principal via certified mail or other trackable delivery method, including electronic transmission, to which a notice containing the following language in all capital letters shall be affixed:
GEORGIA LAW ALLOWS TWO ALTERNATIVE METHODS OF WARRANTY REIMBURSEMENT:
DEALERS MAY SUBMIT A REQUEST TO RECEIVE RETAIL RATE PURSUANT TO O.C.G.A. SECTION 10-1-641; OR
A MAJORITY OF LINE MAKE DEALERS MAY AGREE TO A UNIFORM WARRANTY REIMBURSEMENT AGREEMENT, AS PROPOSED WITH THIS NOTICE.
IN THE EVENT A MAJORITY OF THE SAME LINE MAKE DEALERS AGREE TO THE ATTACHED UNIFORM WARRANTY REIMBURSEMENT AGREEMENT, DEALERS THAT OPT TO SEEK RETAIL RATE PURSUANT TO O.C.G.A. SECTION 10-1-641 MAY BE SUBJECT TO A COST RECOVERY SURCHARGE ON ALL NEW VEHICLE INVOICES.
(c) Each franchisor shall only have one such agreement with each line make. Any such agreement shall:
(1) Establish a uniform parts reimbursement rate. The uniform parts reimbursement rate shall be not less than the greater of the nationally established rate set forth in the franchisor's sales and service agreement or other warranty manual or policy or the franchisor's national average warranty parts reimbursement rate at the time such agreement becomes effective;
(2) Apply to all warranty repair orders written during the period that the agreement is effective;
(3) Be available, during the period it is effective, to any dealer of the same line make at any time and on the same terms; and
(4) Be for a term not to exceed three years so long as any party to the agreement may terminate the agreement upon the annual anniversary of the agreement and with 30 days' prior written notice; however, the agreement shall remain in effect for the term of the agreement regardless of the number of dealers of the same line make that may terminate the agreement.
(d)(1) As used in this subsection, the term “costs” means the difference between the uniform reimbursement rate set forth in an agreement entered into pursuant to this Code section and the retail rate received by an individual dealer pursuant to Code Section 10-1-641.
(2) A manufacturer or franchisor that enters into a uniform warranty reimbursement agreement as provided in this Code section may seek to recover its costs from only those dealers that are receiving their retail rate pursuant to Code Section 10-1-641 as follows:
(A) The costs shall be recovered only by increasing the invoice price on new vehicles received by those dealers not a party to an agreement under this Code section; and
(B) Price increases imposed for the purpose of recovering costs under this Code section may vary from time to time and from model to model but shall apply to all dealers of the same line make in the State of Georgia that have requested reimbursement for warranty repairs at their prevailing retail rate.
(e) If a manufacturer or franchisor enters into a uniform reimbursement agreement with its dealers, the manufacturer or franchisor shall, within 60 days of entering into such agreement, certify under oath to the Department of Revenue that a majority of the dealers of that line make have entered into such an agreement and shall file a sample copy of the agreement, the required notice, a list of the line make dealers that have agreed to the uniform warranty reimbursement, and the date upon which such agreement was made. On an annual basis, the manufacturer shall certify under oath to the department that the parts warranty reimbursement in the agreement is no less than the greater of the franchisor's nationally established rate or the national average parts reimbursement rate and that the reimbursement costs it recovers under subsection (d) of this Code section do not exceed the amounts authorized by subsection (d) of this Code section. The manufacturer or franchisor shall maintain for a period of three years a file that contains the information upon which its certification is based.
(f) If a manufacturer or franchisor and its dealers do not enter into an agreement pursuant to this Code section, and for any matter that is not the subject of an agreement, this Code section shall have no effect whatsoever.
(g) For purposes of this Code section, a uniform time standard manual is a document created by a franchisor that establishes the time allowances for the diagnosis and performance of warranty work and service. The allowances shall be reasonable and adequate for the work and service to be performed. Each franchisor shall have a reasonable and fair process that allows a dealer to request a modification or adjustment of a standard or standards included in such a manual.
This part shall be known and may be cited as the “Motor Vehicle Franchise Continuation and Succession Act.”
(a) Notwithstanding the terms, provisions, or conditions of any franchise and notwithstanding the terms or provisions of any waiver, no franchisor shall cancel, terminate, or fail to renew any franchise with a dealer unless the franchisor:
(1) Has satisfied the notice requirement of subsection (e) of this Code section; and
(2) Has good cause for cancellation, termination, or nonrenewal.
(b) Notwithstanding the terms, provisions, or conditions of any franchise or the terms or provisions of any waiver, good cause shall exist for the purposes of a termination, cancellation, or nonrenewal when there is a failure by the dealer to comply with a provision of the franchise which is both reasonable and of material significance to the franchise relationship, provided the dealer has been notified in writing of the failure within 180 days after the franchisor first acquired knowledge of such failure or after the dealer is given a reasonable opportunity to correct such failure for a period of not less than 180 days.
(c) If the failure by the dealer, as described in subsection (b) of this Code section, relates to the performance of the dealer in sales or service, then in this Code section the term “good cause” means the failure of the dealer to comply with reasonable performance criteria established by the franchisor in light of existing circumstances, including, but not limited to, current and forecasted economic conditions, provided the following conditions are satisfied:
(1) The dealer was notified by the franchisor in writing of such failure;
(2) Said notification stated that notice was provided of failure of performance pursuant to this Code section;
(3) The performance criteria established by the franchisor was:
(A) Reasonable, fair, and equitable;
(B) Based on accurate information;
(C) Inclusive of relevant and material local and regional data considered by the franchisor that was provided by the dealer that was beyond the control of the dealer and that adversely affected the dealer's performance; and
(D) Based on a statistically significant and valid random sample, if such performance criteria included a survey; and
(4) The dealer was afforded a reasonable opportunity, for a period of not less than six months, to comply with such criteria.
(d) The franchisor shall have the burden of proof under this Code section.
(e)(1) Notwithstanding franchise terms to the contrary, prior to the termination, cancellation, or nonrenewal of any franchise, the franchisor shall furnish notification, as provided in paragraph (2) of this subsection, of such termination, cancellation, or nonrenewal to the dealer as follows:
(A) Not less than 90 days prior to the effective date of such termination, cancellation, or nonrenewal;
(B) Not less than 15 days prior to the effective date of such termination, cancellation, or nonrenewal with respect to any of the following:
(i) Insolvency of the dealer, or filing of any petition by or against the dealer under any bankruptcy or receivership law;
(ii) Failure of the dealer to conduct its customary sales and service operations during its customary business hours for seven consecutive business days, except for acts of God or circumstances beyond the direct control of the dealer;
(iii) Conviction of the dealer, general manager, or managing executive or any owner with a substantial interest therein of any crime which materially relates to the operation of the dealership or any felony which is punishable by imprisonment;
(iv) Suspension for a period of more than 14 days or revocation of any license which the dealer is required to have to operate a dealership; or
(v) Fraud or intentional misrepresentation by the dealer which materially affects the franchise, provided the franchisor gives notice within one year of the time when the fraud or misrepresentation occurred or was discovered, whichever is later; or
(C) Not less than 180 days prior to the effective date of such termination or cancellation where the franchisor is discontinuing the sale of the product line.
(2) Notification under this Code section shall be in writing and shall be by certified mail or statutory overnight delivery or personally delivered to the dealer and shall contain:
(A) A statement of intention to terminate, cancel, or not to renew the franchise;
(B) A statement of the reasons for the termination, cancellation, or nonrenewal; and
(C) The date on which such termination, cancellation, or nonrenewal is to take effect.
(f)(1)(A) Upon the termination, cancellation, or nonrenewal of any franchise by the franchisor, the franchisor shall repurchase from the dealer any new and undamaged motor vehicles of the current and one year prior model year and acquired by the dealer within 12 months of the date of termination, cancellation, or nonrenewal so long as such motor vehicles have been acquired from the franchisor or from another dealer of the same line-make in the ordinary course of business prior to receipt of the notice of termination, cancellation, or nonrenewal and so long as such motor vehicles have not been altered, damaged, or materially changed while in the dealer's possession. Any new motor vehicle repurchased by the franchisor shall be repurchased at the net cost to the dealer. For purposes of this subparagraph, a motor vehicle shall be considered new if it has less than 500 miles on the odometer and has not been issued a certificate of title.
(B) In addition to the motor vehicles repurchased under subparagraph (A) of this paragraph, the franchisor shall repurchase demonstration motor vehicles acquired by the dealer within 12 months of the date of termination, cancellation, or nonrenewal so long as such motor vehicles have been acquired from the franchisor or from another dealer of the franchisor prior to receipt of the notice of termination, cancellation, or nonrenewal and so long as such motor vehicles have not been altered, damaged, or materially changed and so long as such motor vehicles do not have more than 6,000 miles each on their odometers. Any such demonstration motor vehicle shall be repurchased at the net cost to the dealer less an allowance for use equal to the net cost to the dealer times the current mileage divided by 100,000. The franchisor shall repurchase a number of demonstration motor vehicles equal to 10 percent of the number of motor vehicles repurchased under subparagraph (A) of this paragraph; however, in no event shall the number of demonstration motor vehicles which the franchisor is required to repurchase ever be less than two or more than 15 motor vehicles.
(C) For purposes of this paragraph, a motor vehicle shall not be deemed to have been altered, damaged, or materially changed if it has been provided with original equipment or with nonoriginal equipment which does not alter, damage, or materially change the motor vehicle, such as undercoating, pinstriping, interior conditioning, or paint sealant.
(2) Upon the termination, cancellation, or nonrenewal of any franchise by the dealer, the franchisor shall repurchase from the dealer any new and undamaged motor vehicles, except motorcycles as defined in paragraph (29) of Code Section 40-1-1 and except motor homes as defined in paragraph (31) of Code Section 40-1-1 and except school buses as defined in paragraph (55) of Code Section 40-1-1, of the current and prior model year acquired by the dealer within 12 months prior to the effective date of the termination so long as such motor vehicles have been acquired from the franchisor or from another dealer of the franchisor of the same line-make and in the normal course of business and so long as such motor vehicles have not been altered, damaged, or materially changed while in the dealer's possession. Any new motor vehicle repurchased by the franchisor shall be repurchased at the net cost to the dealer. For purposes of this paragraph, a motor vehicle shall be considered new if it has less than 500 miles on the odometer and has not been issued a certificate of title. For purposes of this paragraph, a motor vehicle shall not be deemed to have been altered, damaged, or materially changed if it has been provided with original equipment or with nonoriginal equipment which does not alter, damage, or materially change the motor vehicle, such as undercoating, pinstriping, interior conditioning, or paint sealant.
(3)(A) Upon the termination, cancellation, or nonrenewal of any franchise by the franchisor or upon the termination, cancellation, or nonrenewal of any franchise by the franchisee, the franchisor shall repurchase, at fair and reasonable compensation, from the dealer the following:
(i) Any unused, undamaged, and unsold parts which have been acquired from the franchisor, provided such parts are currently offered for sale by the franchisor in its current parts catalogue and are in salable condition. Such parts shall be repurchased by the franchisor at the current catalogue price, less any applicable discount;
(ii) Any supplies, equipment, and furnishings, including manufacturer or line-make signs, purchased from the franchisor or its approved source within three years of the date of termination, cancellation, or nonrenewal; and
(iii) Any special tools purchased from the franchisor within three years of the date of termination, cancellation, or nonrenewal or any special tools or other equipment which the franchisor required the dealer to purchase regardless of the time purchased.
(B) Except as provided in division (i) of subparagraph (A) of this paragraph, fair and reasonable compensation shall be the net acquisition price if the item was acquired in the 12 months preceding the effective date of the termination, cancellation, or nonrenewal; 75 percent of the net acquisition price if the item was acquired between 13 and 24 months preceding the effective date of the termination, cancellation, or nonrenewal; 50 percent of the net acquisition price if the item was acquired between 25 and 36 months preceding the effective date of the termination, cancellation, or nonrenewal; 25 percent of the net acquisition price if the item was acquired between 37 and 60 months preceding the effective date of the termination, cancellation, or nonrenewal; or fair market value if the item was acquired more than 60 months preceding the effective date of the termination, cancellation, or nonrenewal.
(4) The repurchase of any item under this subsection shall be accomplished within 60 days of the effective date of the termination, cancellation, or nonrenewal or within 60 days of the receipt of the item by the franchisor, whichever is later in time, provided the dealer has clear title to the inventory and other items or is able to convey such title to the franchisor and does convey or transfer title and possession of the inventory and other items to the franchisor.
(5) In the event the franchisor does not pay the dealer the amounts due under this subsection or subsection (h) of this Code section within the time period set forth in this subsection, the franchisor shall, in addition to any amounts due, pay the dealer interest on such amount. This interest shall not begin to accrue until the time for payment has expired. The interest shall be computed monthly on any balance due and the monthly interest rate shall be one-twelfth of the sum of the then current Wall Street Journal Prime Interest Rate and 1 percentage point.
(g) If a termination or nonrenewal of a franchise is the result of a bankruptcy filing or reorganization of a franchisor or the sale or other change in the business operation of the franchisor, the franchisor shall be required to pay the fair market value of the franchise as of the date of the notice of termination or nonrenewal or 12 months prior to the date of notice of termination or nonrenewal, whichever is greater. Fair market value shall be the goodwill value of the dealer's franchise in the dealer's community or territory. In addition, if a termination or nonrenewal of a franchise is the result of a bankruptcy filing or reorganization of a franchise or the sale or other change in the business operation of the franchisor, the franchisor shall also be required to reimburse the dealer for the cost of facility upgrades and renovations required by the franchisor within two years prior to termination or nonrenewal. Termination assistance provided for in this subsection shall be in addition to repurchase obligations otherwise set forth in this Code section.
(h) Within 60 days of the termination, cancellation, or nonrenewal of any franchise by the franchisor, the franchisor shall commence to reimburse the dealer for one year of the dealer's reasonable cost to rent or lease the dealership's facility or location or for the unexpired term of the lease or rental period, whichever is less, or, if the dealer owns the facility or location, for the equivalent of one year of the reasonable rental value of the facilities or location. If more than one franchise is being terminated, canceled, or not renewed, the reimbursement shall be prorated equally among the different franchisors. However, if a franchise is terminated, canceled, or not renewed but the dealer continues in business at the same location under a different franchise agreement, the reimbursement required by this subsection shall not be required to be paid. The provisions of this subsection shall not apply if the dealer is convicted of any criminal offense which conviction is cause of the termination, cancellation, or nonrenewal. In addition, any reimbursement due under this subsection shall be reduced by any amount received by the dealer by virtue of the dealer leasing, subleasing, or selling the facilities or location during the year immediately following the termination, cancellation, or nonrenewal. If reimbursement is made under this subsection, the franchisor is entitled to possession and use of the facilities or location for the period covered by such reimbursement.
(i) If, in an action for damages under this Code section, the franchisor fails to prove that there was good cause for the franchise termination, cancellation, or nonrenewal, then the franchisor may pay the dealer an amount equal to the value of the dealership as an ongoing business, at which time the franchisor shall receive any title to the dealership facilities which the dealer may have and the franchisee shall surrender his franchise agreement to the franchisor. If the dealer receives an amount equal to the value as an ongoing business, the dealer shall have no other recovery from the franchisor absent a showing such as would warrant punitive damages under Code Section 10-1-623.
(j) Without limitation as to factors which may constitute or indicate a lack of good cause, no termination shall be considered to be for good cause:
(1) If such termination relates to the death or disability of an owner and the franchisor has not complied with Code Section 10-1-652; or
(2) If such termination relates to a change in ownership or management and the franchisor has not complied with Code Section 10-1-653.
(k) All procedures, protections, and remedies afforded to a motor vehicle dealer under this Code section shall be available to a motor vehicle distributor whose distributor agreement is terminated, canceled, not renewed, modified, or replaced by a manufacturer or an importer.
(a) Unless there exists good cause for refusal to honor succession on the part of the franchisor, any designated successor of a deceased or incapacitated owner may succeed to the ownership interest of the owner under the existing franchise if:
(1) The designated successor gives the franchisor written notice of his or her intention to succeed to the ownership interest within 60 days of the owner's death or incapacity or within a longer period if so provided in the franchise agreement; and
(2) The designated successor agrees to be bound by all the terms and conditions of the franchise.
(b) The franchisor may request, and the designated successor shall provide promptly upon said request, personal and financial data that is customarily required by the franchisor to determine whether the succession should be honored.
(c) If a franchisor believes that good cause exists for refusing to honor the succession to the ownership interest of an owner by a designated successor of a deceased or incapacitated owner, the franchisor may, within 60 days following receipt of notice of the designated successor's intent to succeed to the ownership interest of the owner or any personal or financial data which the franchisor has requested, serve upon the designated successor notice of its refusal to honor the succession and of its intent to discontinue the existing franchise with the dealer; however, if the franchisor shall enter into one or more interim or trial agreements with the designated successor, which interim or trial agreements may not extend more than three years from the owner's death or disability, then and in such event such notice shall be deemed timely if sent within 60 days of the termination of such interim or trial agreement. The notice must state the specific grounds for the refusal to honor the succession and of its intent to discontinue the existing franchise with the dealer.
(d) If a franchisor refuses to honor the succession to the ownership interest of a deceased or incapacitated owner, then and in such event:
(1) The franchisor shall allow the designated successor a reasonable period of time which shall not be less than six months in which to negotiate a sale of the dealership. Any such sale shall be subject to Code Section 10-1-653; and
(2) Upon termination of the franchise pursuant to such refusal, the provisions of Code Section 10-1-651 shall apply.
(e) If notice of refusal and discontinuance is not timely served upon the designated successor, the franchise shall continue in effect subject to termination only as otherwise permitted by this part.
(f) In determining whether good cause for the refusal to honor the succession exists, the franchisor has the burden of proving that the designated successor is a person who is not of good moral character or does not meet the franchisor's existing and reasonable standards.
(g) No franchisor shall terminate, cancel, or fail to renew any franchise solely because of the death or incapacity of an owner who is not listed in the franchise as one on whose expertise and abilities the franchisor relied in the granting of the franchise.
(h) This Code section does not preclude a new motor vehicle dealer from time to time designating any person as his or her successor by written instrument filed with the manufacturer or distributor and, if such instrument is currently on file with such manufacturer or distributor, it alone shall determine the succession rights to the management and operation of the dealership.
If a new motor vehicle dealer desires to make a change in its executive management or ownership or to sell its principal assets, the new motor vehicle dealer will give the franchisor prior written notice of the proposed change or sale. The franchisor shall not arbitrarily refuse to agree to such proposed change or sale and may not disapprove or withhold approval of such change or sale unless the franchisor can prove that its decision is not arbitrary and that the new management, owner, or transferee is unfit or unqualified to be a dealer based on the franchisor's prior written, reasonable, objective, and uniformly applied, within reasonable classifications, standards or qualifications which directly relate to the prospective transferee's business experience, moral character, and financial qualifications. A franchisor may not disapprove or withhold approval of a change or sale if the new management, owner, or transferee is an owner of a dealership in the State of Georgia which sells the same line-make motor vehicle as the dealership being transferred unless such management, owner, or transferee is not in substantial compliance with its existing franchise agreement relating to performance in the areas of customer satisfaction or sales or unless such management, owner, or transferee does not meet the franchisor's prior written, reasonable, objective, and uniformly applied standards or qualifications relating to its financial qualifications or moral character. Where the franchisor rejects a proposed change or sale, the franchisor shall give written notice of his reasons to the new motor vehicle dealer within 60 days. If no such notice is given to the new motor vehicle dealer, the change or sale shall be deemed approved.
This part shall be known and may be cited as the “Motor Vehicle Fair Practices Act.”
(a) For purposes of this Code section, the term “coerce” means to compel or attempt to compel by threat or use of force or to fail to act in good faith in performing or complying with any term or provision of a franchise or dealer agreement.
(b) No franchisor shall require, attempt to require, coerce, or attempt to coerce any dealer in this state:
(1) To order or accept delivery of any new motor vehicle, part, or accessory thereof, equipment, or any other commodity not required by law which shall not have been voluntarily ordered by the dealer, except that this paragraph does not affect any terms or provisions of a franchise requiring dealers to market a representative line of those motor vehicles which the franchisor is publicly advertising;
(2) To order or accept delivery of any new motor vehicle with special features, accessories, or equipment not included in the list price of such new motor vehicle as publicly advertised by the franchisor;
(3) To refrain from participation in the management of, investment in, or the acquisition of any other line of new motor vehicle or related products. However, this paragraph does not apply unless the dealer maintains a reasonable line of credit for each make or line of new motor vehicle, the dealer remains in compliance with any reasonable facilities requirements of the franchisor, the dealer provides acceptable sales performance, and no change is made in the principal management of the dealer;
(4) To expand, construct, or significantly modify facilities without assurances that the franchisor will provide a reasonable supply of new motor vehicles within a reasonable time so as to justify such an expansion in light of the market and economic conditions;
(5) To sell, assign, or transfer any retail installment sales contract obtained by such dealer in connection with the sale by such dealer in this state of new motor vehicles to a specified finance company or class of such companies or to any other specified persons;
(6) To provide warranty or other services for the account of franchisor, except as provided in Part 3 of this article, the “Motor Vehicle Warranty Practices Act”;
(7) To acquire any line-make of motor vehicle or to give up, sell, or transfer any line-make of motor vehicle which has been acquired in accordance with this article once such dealer has notified the franchisor that it does not desire to acquire, give up, sell, or transfer such line-make or to retaliate or take any adverse action against a dealer based on such desire;
(8) To construct, renovate, or maintain exclusive facilities, personnel, or showroom area dedicated to a particular line-make if the imposition of such a requirement would be unreasonable in light of the existing circumstances, including the franchisor's reasonable business considerations, present economic and market conditions, and forecasts for future economic and market conditions in the dealer's retail territory. The franchisor shall have the burden of proof to demonstrate that its demand for exclusivity is justified by reasonable business considerations and reasonable in light of the dealer's circumstances, but this provision shall not apply to a voluntary agreement when separate and adequate consideration was offered and accepted, provided that the renewal of a franchise agreement shall not by itself constitute separate and adequate consideration. The franchisor shall have the burden of proof to show that the dealer has entered into a voluntary, noncoerced agreement regarding exclusivity;
(9)(A) To substantially change, alter, or remodel its dealership or to install new signs or other franchisor image elements that replace or substantially alter those improvements, signs, or franchisor image elements completed within the preceding ten years that were required and approved by the franchisor, factory branch, distributor, or distributor branch or one of its affiliates as part of a program, standard, or policy.
(B) If, during such ten-year period, the manufacturer revises or discontinues an existing program, standard, or policy or establishes a new program, standard, or policy or other benefit relating to construction or substantial alteration of a dealership, a motor vehicle dealer that completed construction or substantial alteration of a dealership as part of a prior program, standard, or policy and elects not to participate in the new or revised program, standard, or policy, shall not be entitled to bonus, incentive, benefit, or otherwise under the new or revised program but shall remain entitled to all benefits under the prior program, standard, or policy according to the terms of such prior program, standard, or policy. If the prior program, standard, or policy under which the dealer completed a construction or substantial alteration does not contain a specific time period during which the manufacturer or distributor must provide payments or benefits to a dealer, then the manufacturer or distributor may not deny the dealer payment or benefits under the terms of that prior program, as it existed when the dealer began to perform under the prior program, for the balance of the ten-year term, regardless of whether the manufacturer's or distributor's program, standard, or policy has been revised or discontinued.
(C) The provisions of this paragraph shall not prohibit a franchisor from:
(i) Continuing any facility improvement program in effect on July 1, 2019, with more than one franchised dealer in the state;
(ii) Providing lump sum or regularly scheduled payments to assist a franchised dealer in making a facility improvement, including construction, alteration or remodeling, or installing signage or a franchisor image element; or
(iii) Providing compensation or reimbursement to a franchised dealer on reasonable, written terms for a portion of such franchised dealer's costs of making a facility improvement, including construction; alteration or remodeling; the purchase of goods, building materials or services; or installing signage or a franchisor image element which are not paid on a per vehicle basis.
(D) Nothing in this paragraph shall be construed to permit a dealer to erect or maintain signs that do not conform to the manufacturer's intellectual property rights, trademarks, or trade dress usage guidelines.
(E) As used in this paragraph, the term “to substantially change, alter, or remodel” means to make an alteration that has a major impact on the architectural features, characteristics, or integrity of the structure or lot. Such term shall include the relocation or erection of freestanding signs, but shall not include routine maintenance, such as interior painting, reasonably necessary to keep a dealership facility in attractive condition;
(10)(A) To purchase goods or services to make improvements to the dealer's facilities from a vendor selected, identified, or designated by a manufacturer or one of its affiliates by program, incentive provision, or otherwise without making available to the dealer the option to obtain the goods or services of comparable grade, quality, and overall design, and the same or substantially the same materials and characteristics from a vendor chosen by the dealer and approved by the manufacturer; provided, however, that such approval by the manufacturer shall not be unreasonably withheld, and the dealer's option to select a vendor shall not be available if the manufacturer provides substantial reimbursement for the goods or services offered.
(B) If signs, other than signs containing the manufacturer's brand or logo or freestanding signs that are not directly attached to a building, or other franchisor image or design elements or trade dress are to be leased to the dealer by a vendor selected, identified, or designated by the manufacturer, such dealer has the right to purchase the signs or other franchisor image or design elements or trade dress of comparable grade, quality, and overall design, and the same or substantially the same materials and characteristics from a vendor selected by the dealer if such signs, franchisor image or design elements, or trade dress are approved by the manufacturer. Approval by the manufacturer shall not be unreasonably withheld.
(C) Nothing in this paragraph shall be construed to allow a dealer or vendor to impair, infringe upon, or eliminate, directly or indirectly, the intellectual property rights of the manufacturer including, but not limited to, the manufacturer's intellectual property rights in any trademarks or trade dress, or other intellectual property interests owned or controlled by the manufacturer.
(D) As used in this paragraph, the term:
(i) “Goods” shall not include movable displays, brochures, and promotional materials containing material subject to the intellectual property rights of a manufacturer, including copyright, trademark, or trade dress rights or any manufacturer's design or architectural review service.
(ii) “Substantial reimbursement” means an amount equal to or greater than the cost savings that would result if the dealer were to utilize a vendor of the dealer's own selection instead of using the vendor identified by the manufacturer; or
(11) Whether by agreement, program, incentive, or otherwise, to sell, lease, offer to sell or lease, solicit, or advertise the sale or lease of new motor vehicles in a manner that violates a law or any properly promulgated rule or regulation of this state.
(a) It shall be unlawful for any franchisor:
(1) To delay, refuse, or fail to deliver new motor vehicles or new motor vehicle parts or accessories in a reasonable time and in reasonable quantity if such vehicles, parts, or accessories are publicly advertised as being available for immediate delivery. This paragraph is not violated, however, if such failure is caused by acts or causes beyond the control of the franchisor;
(2) To obtain money, goods, services, or any other benefit from any other person with whom the dealer does business, on account of, or in relation to, the transaction between the dealer and such other person, other than as compensation for services rendered, unless such benefit is promptly accounted for and transmitted to the dealer;
(3) To release to any outside party, except under subpoena or as otherwise required by law or in an administrative, judicial, or arbitration proceeding involving the franchisor or dealer, any business, financial, or personal information which may be from time to time provided by the dealer to the franchisor, without the express written consent of the dealer;
(4) To resort to or to use any false or intentionally deceptive advertisement in the conduct of business as a franchisor in this state;
(5) To make any false or intentionally deceptive statement, either directly or through any agent or employee, in order to induce any dealer to enter into any agreement or franchise or to take any action which is prejudicial to that dealer or that dealer's business;
(6) To require any dealer to assent prospectively to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability to be imposed by law or to require any controversy between a dealer and a franchisor to be referred to any person other than the duly constituted courts of the state or the United States if such referral would be binding upon the dealer, provided that this Code section shall not prevent any dealer from entering into a valid release agreement with the franchisor;
(7) To fail to observe good faith in any aspect of dealings between the franchisor and the dealer;
(8) To deny any dealer the right of free association with any other dealer for any lawful purposes;
(9) To engage in any predatory practice or discrimination against any dealer;
(10) To propose or make any material change in any franchise agreement without giving the dealer written notice by certified mail or statutory overnight delivery of such change at least 60 days prior to the effective date of such change;
(11) To cancel a franchise or to take any adverse action against a dealer based in whole or in part on the failure of the dealer to meet the reasonable performance criteria established by the franchisor in light of existing circumstances, including but not limited to current and forecasted economic conditions, or when that failure is due to the failure of the franchisor to supply, within a reasonable period of time, new motor vehicles ordered by or allocated to the dealer;
(12) To offer to sell or lease or to sell or lease any new motor vehicle or accessory to any dealer at a lower actual price therefor than the actual price offered to any other dealer for the same model vehicle similarly equipped or same accessory or to use any device, including but not limited to an incentive, sales promotion plan, or other similar program, which results in a lower actual price of a vehicle or accessory being offered to one dealer and which is not offered to other dealers of vehicles of the same line-make or the same accessory;
(13) To conduct an audit, investigation, or inquiry of any dealer or dealership as to any activity, transaction, conduct, or other occurrence which took place more than one year prior to such audit, investigation, or inquiry or to base any decision adverse to the dealer or dealership on any activity, transaction, conduct, or other occurrence which took place more than one year prior to such decision or which took place more than one year prior to such audit, investigation, or inquiry or to apply the results of an audit, investigation, or inquiry to any activity, transaction, conduct, or other occurrence which took place more than one year prior to such audit, investigation, or inquiry. If the franchisor has reason to believe that fraudulent or intentionally false claims have been submitted, the franchisor may extend the audit, investigation, or inquiry period beyond the time periods provided in this paragraph; provided, however, that in no event shall the time period be extended beyond four years prior to such audit, investigation, or inquiry;
(14) To charge back to, deduct from, or reduce any account of a dealer or any amount of money owed to a dealer by a franchisor any amount of money the franchisor alleges is owed to such franchisor by such dealer as a result of an audit, investigation, or inquiry of such dealer or based upon information obtained by the franchisor through other resources which relates to any transaction that occurred more than one year prior to notice to the dealer of the charge back or deduction, and only if the franchisor can show by a preponderance of evidence that the transaction was fraudulent, intentionally and materially false, not reasonably substantiated, or did not follow the franchisor's written repair or claim submission requirements. A franchisor shall not charge back to, deduct from, or reduce any account of a dealer or any amount owed to a dealer based solely on such dealer's clerical error that does not put into question the legitimacy of the claim. If a claim is rejected for a clerical error, then the dealer may resubmit a corrected claim within 30 days. If a franchisor alleges that a dealer owes such franchisor any amount of money as a result of an audit, investigation, or inquiry, such franchisor shall send a notice to such dealer for such amount and the dealer shall have not less than 30 days to contest such amount or remit payment. If the dealer contests such amount, the charge shall be stayed pending a final resolution as provided in this Code section. Upon the dealer contesting the charge, the parties shall attempt to resolve the dispute through an internal dispute resolution procedure of the franchisor, if available, provided that such procedure occurs within a reasonable amount of time. If the internal dispute resolution procedure is unavailable, unsuccessful, or does not occur in a timely manner, such dealer may file a petition with the commissioner not later than 60 days after receipt of such notice from the franchisor or not later than 30 days after conclusion of the internal dispute resolution procedure, whichever is later. If such a petition is filed, the commissioner shall inform the franchisor, manufacturer, or distributor that a timely petition has been filed and that a hearing shall be held on such issue. In any hearing held pursuant to this paragraph, the burden of proof shall be upon the franchisor to demonstrate by a preponderance of evidence the transaction was fraudulent, intentionally and materially false, not reasonably substantiated or did not follow the franchisor's written repair or claim submission requirements;
(15) To deny, delay payment for, restrict, or bill back a claim by a dealer for payment or reimbursement for warranty service or parts, incentives, hold-backs, special program money, or any other amount owed to such dealer unless such denial, delay, restriction, or bill back is the direct result of a material defect in the claim which affects the validity of the claim;
(16) To engage in business as a dealer or to manage, control, or operate, or own any interest in a dealership either directly or indirectly, if the primary business of such dealer or dealership is to perform repair services on motor vehicles, except motor homes, pursuant to a manufacturer's or franchisor's warranty;
(17) To refuse to allow, to limit, or to restrict a dealer from maintaining, acquiring, or adding a sales or service operation for another line-make of motor vehicles at the same or expanded facility at which the dealer currently operates a dealership unless the franchisor can prove by a preponderance of the evidence that such maintenance, acquisition, or addition will substantially impair the dealer's ability to adequately sell or service such franchisor's motor vehicles;
(18) To directly or indirectly condition a franchise agreement or renewal of a franchise agreement, addition of a line-make, approval of relocation, or approval of a sale or transfer on the dealer's or prospective dealer's willingness to enter into a site control agreement; provided, however, that this paragraph shall not apply to a voluntary agreement when separate and adequate consideration is paid to the dealer. The franchisor shall have the burden of proof to show the voluntary, noncoerced acceptance of the site control agreement by the dealer;
(19) To charge back, withhold payment, deny vehicle allocation, or take other adverse action against a dealer when a new vehicle sold by the dealer has been exported to a foreign country unless the franchisor can demonstrate that the dealer knew or reasonably should have known that the customer intended to export or resell the new vehicle. There shall be a rebuttable presumption that the dealer had no such knowledge if the vehicle is titled or registered in any state in this country;
(20) To take any materially adverse action against a dealer, including a dealer's ability to participate in or receive a benefit or payment owed from any incentive or reimbursement program, based on criteria it has established, implemented, or enforced for measuring the performance, including, but not limited to, sales or service performance, of a dealer unless such criteria:
(A) Is fair, reasonable, and equitable; and
(B) Is based on accurate and relevant information; or
(21) To deny, delay payment for, restrict, or bill back a claim by a dealer for payment or reimbursement for incentives, hold-backs, sales or service promotion or other special program money, or any other amount owed to such dealer by the franchisor, if based solely on the dealer's compliance with a specific program requirement of the franchisor that would cause the dealer to violate a law or any properly promulgated rule or regulation of this state.
(b) No action shall in any way be based on this Code section with respect to acts occurring prior to July 1, 1983.
(a) No franchisor shall require, attempt to require, coerce, or attempt to coerce any dealer in this state:
(1) To participate monetarily in an advertising campaign or contest or to purchase any promotional materials, training materials, showroom or other display decorations, or materials at the expense of the dealer; or
(2) To change or refrain from changing the capital structure or ownership of the dealer or the means by or through which the dealer finances the operation of the dealership, provided the dealer at all times meets any reasonable capital standards determined by the franchisor in accordance with uniformly applied criteria and provided no change in the capital structure shall cause a change in the principal management or have the effect of a sale of the franchise without the consent of the franchisor, which consent shall not unreasonably be withheld.
(b) No franchisor shall:
(1) Refuse to disclose to any dealer the manner and mode of distribution of the same line make as handled by the dealer within the dealer's market area;
(2) Increase prices of new motor vehicles which the dealer had ordered for consumers prior to the dealer's receipt of the written official price increase notification. A sales contract signed by a consumer shall constitute evidence of each such order, provided the vehicle is in fact delivered to that customer. Price differences applicable to new models or series shall not be considered a price increase. Price changes caused by the addition to a motor vehicle of required or optional equipment, revaluation of the United States dollar in the case of foreign-make vehicles or components, or an increase in transportation charges due to increased rates imposed by carriers shall not be subject to the provisions of this paragraph;
(3) Discriminate unfairly among its dealers with respect to any aspect of operating a motor vehicle dealership;
(4) Establish or create:
(A) By agreement or otherwise, unreasonable restrictions relative to noncompetition covenants or site control, whether by sublease, collateral pledge of lease, agreement, or other means;
(B) Reserved;
(C) By agreement or otherwise, an option to purchase the dealership or its assets from the dealer; or
(D) By agreement or otherwise, unreasonable requirements to comply with subjective standards or other matters incident to the operation of the dealership; or
(5) Unreasonably change the market area of a dealer as set forth in the dealer's franchise agreement.
(a) Notwithstanding the terms of any franchise agreement, sales and services agreement, or similar agreement, a franchisor, manufacturer, or distributor shall be permitted to exercise a right of first refusal to acquire a dealer's assets or ownership, in the event of a proposed change of ownership, or transfer of dealership assets, if all of the following requirements are met:
(1) The proposed transfer of the dealership or its assets is of more than 50 percent of the ownership or assets;
(2) The franchisor notifies the dealer in writing within 60 days of its receipt of the complete written proposal for the proposed sale or transfer on forms generally utilized by the franchisor for such purpose and containing the information required therein and all documents and agreements relating to the proposed sale or transfer;
(3) The exercise of the right of first refusal will result in the dealer and dealer's owners receiving the same or greater consideration as provided for through the terms of the contract related to the proposed change of ownership or transfer of dealership assets;
(4) The proposed change of 50 percent or more of the ownership or of the dealership assets does not involve the transfer or sale of assets or the transfer or issuance of stock by the dealer or one or more dealer owners to a designated family member or members, including a spouse, child, grandchild, spouse of a child or grandchild, brother, sister, or parent of the dealer owner; to a manager who has been employed in the dealership for at least four years and is otherwise qualified as a dealer operator; or to a partnership or corporation owned and controlled by one or more of such persons;
(5) The franchisor agrees to pay the reasonable expenses, including reasonable attorney's fees, which do not exceed the usual customary, and reasonable fees charged for similar work done for other clients incurred by the proposed new owner and transferee before the franchisor's exercise of its right of first refusal in negotiating and implementing the contract for the proposed change of ownership or transfer of dealership assets. However, payment of such expenses and attorney's fees shall not be required if the dealer has not submitted or caused to be submitted an accounting of those expenses within 20 days after the dealer's receipt of the franchisor's written request for such an accounting. Such an accounting may be requested by the franchisor before exercising its right of first refusal; and
(6) The franchisor agrees to comply with and be subject to the requirements and restraints as set forth in paragraphs (1) and (2) of subsection (a) of Code Section 10-1-664.1 and in subsection (b) of Code Section 10-1-664.1.
(b) Within the terms of a right of first refusal contract related to the proposed change of ownership or transfer of dealership assets:
(1) The franchisor, manufacturer, or distributor shall have the right to assume the dealer's lease for, or acquire the real property on which the franchise is located, on the same terms as those on which the real property or lease was to be sold or transferred to the proposed new owner in connection with the sale of the franchise, unless otherwise agreed to by the dealer and manufacturer or distributor. The franchisor, manufacturer, or distributor shall have the right to assign the lease or to convey the real property; and
(2) The franchisor, manufacturer, or distributor shall assume all of the duties, obligations, and liabilities contained in the agreements that were to be assumed by the proposed new owner and with respect to which the franchisor, manufacturer, or distributor exercised the right of first refusal, provided that the franchisor, manufacturer, or distributor has knowledge of such obligations at the time of the exercise of the right of first refusal.
(a) Any franchisor which intends to establish a new dealership or to relocate a current dealership for a particular line-make motor vehicle within the relevant market area of an existing dealership of the same line-make motor vehicle shall give written notice of such intent by certified mail or statutory overnight delivery to such existing dealership. The notice shall include:
(1) The specific location of the additional or relocated dealership;
(2) The date on or after which the additional or relocated dealership will commence operation at the new location;
(3) The identity of all existing dealerships in whose relevant market area the new or relocated dealership is to be located; and
(4) The names and addresses of the dealer and principals in the new or relocated dealership.
(b) Any existing dealership in whose relevant market area a franchisor intends to establish a new dealership or to relocate a current dealership may within 60 days of the receipt of the notice petition a superior court to enjoin or prohibit the establishment of the new or relocated dealership within the relevant market area of the existing dealership. The court or other tribunal of competent jurisdiction shall enjoin or prohibit the establishment of the new or relocated dealership within the relevant market area of the existing dealerships unless the franchisor can prove by a preponderance of the evidence that the existing dealership is not providing adequate representation of the line-make motor vehicle in the existing dealership's relevant market area and that the new or relocated dealership is necessary to provide the public with reliable and convenient sales and service within the relevant market area. The burden of proof in establishing adequate representation shall be on the franchisor. In determining whether the existing dealership is providing adequate representation and whether the new or relocated dealership is necessary, the court or other tribunal may consider, but is not limited to considering, the following:
(1) The impact that the establishment of the new or relocated dealership will have on consumers, the public interest, and the existing dealership; provided, however, that financial impact may be considered only with respect to the existing dealership;
(2) The size and permanency of investment reasonably made and the reasonable obligations incurred by the existing dealership to perform its obligations under the dealership's franchise agreement;
(3) The reasonably expected market penetration of the line-make motor vehicle for the relevant market area involved, after consideration of all factors which may affect such penetration, including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, and other factors affecting sales to consumers in the relevant market area;
(4) Any actions by the franchisor in denying its existing dealership of the same line make the opportunity for reasonable growth, market expansion, or relocation, including the availability of line-make motor vehicles in keeping with the reasonable expectations of the franchisor in providing an adequate number of dealerships in the relevant market area;
(5) Any attempts by the franchisor to coerce the existing dealership into consenting to an additional or relocated dealership of the same line make in the relevant market area;
(6) Distance, travel time, traffic patterns, and accessibility between the existing dealership of the same line make and the location of the proposed new or relocated dealership;
(7) Whether benefits to consumers will likely occur from the establishment or relocation of the dealership which benefits cannot be obtained by other geographic or demographic changes or expected changes in the relevant market area;
(8) Whether the existing dealership is in substantial compliance with its franchise agreement;
(9) Whether there is adequate interbrand and intrabrand competition with respect to the line-make motor vehicles, including the adequacy of sales and service facilities;
(10) Whether the establishment or relocation of the proposed dealership appears to be warranted and justified based on economic and market conditions pertinent to dealerships competing in the relevant market area, including anticipated changes; and
(11) The volume of registrations and service business transacted by the existing dealership and in which would be the relevant market area of the proposed dealership.
(c) This Code section shall not apply:
(1) To the addition of a new dealership at a location which is within a three-mile radius of a former dealership of the same line make which has been closed for less than two years;
(2) To the relocation of an existing dealership to a new location which is further away from the protesting dealer's location than the relocated dealer's prior location; or
(3) To the relocation of an existing dealership to a new location which is within a three-mile radius of such dealership's current location and it has been at such current location at least ten years.
(a) It shall be unlawful for any manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to own, operate, or control or to participate in the ownership, operation, or control of any new motor vehicle dealer in this state within a 15 mile radius of an existing dealer of such manufacturer or franchisor; to own, operate, or control, directly or indirectly, more than a 45 percent interest in a dealer or dealership in this state; to establish in this state an additional dealer or dealership in which such person or entity has any interest; or to own, operate, or control, directly or indirectly, any interest in a dealer or dealership in this state unless such person or entity has acquired such interest from a dealer or dealership which has been in operation for at least five years prior to such acquisition; provided, however, that this subsection shall not be construed to prohibit:
(1) The ownership, operation, or control by a manufacturer or franchisor of a new motor vehicle dealer for a temporary period, not to exceed one year, during the transition from one owner or operator to another;
(2) The ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor during a period in which such new motor vehicle dealer is being sold under a bona fide contract, shareholder agreement, or purchase option to the operator of the dealership;
(3) The ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor at the same location at which such manufacturer or franchisor has been engaged in the retail sale of new motor vehicles as the owner, operator, or controller of such dealership for a continuous two-year period of time immediately prior to April 1, 1999, where there is no prospective new motor vehicle dealer available to own or operate the dealership in a manner consistent with the public interest;
(4) The ownership, operation, or control by a manufacturer which manufactures only motorcycles or motor homes of a retail sales operation engaged in the retail sale of motorcycles or motor homes;
(5) The ownership, operation, or control by a manufacturer which is selling motor vehicles directly to the public at an established place of business on January 1, 1999, and which has never sold its line make of new motor vehicles in this state through a franchised new motor vehicle dealer unless and until such manufacturer is wholly or partially acquired by another manufacturer or franchisor;
(6) The ownership, operation, or control by a manufacturer which manufactures trucks with a gross vehicle weight rating of 12,500 pounds or more of a new motor vehicle dealer which only sells trucks with a gross vehicle weight rating of 12,500 pounds or more at the same location at which such manufacturer has been engaged in the retail sale of such trucks as the owner, operator, or controller of such dealership for a continuous two-year period of time immediately prior to April 1, 1999, or at one additional location which is not located within the relevant market area of an existing dealer of the same line make of trucks; provided, however, this exemption shall apply to a manufacturer described in this paragraph only until such manufacturer is wholly or partially acquired by another manufacturer or distributor;
(7) A manufacturer from selling new motor vehicles to customers if such vehicles are manufactured or assembled in accordance with custom design specifications of the customer and such sales are limited to no more than 150 vehicles per year; or
(8) The ownership, operation, or control by a manufacturer of not more than five locations licensed as new motor vehicle dealerships for the sale of new motor vehicles and any number of locations that engage exclusively in the repair of such manufacturer's line make of motor vehicles, provided that such manufacturer was selling or otherwise distributing its motor vehicles at an established place of business in this state as of January 1, 2015, and:
(A) The manufacturer manufactures or assembles zero emissions motor vehicles exclusively and has never sold its line make of motor vehicles in this state through a franchised new motor vehicle dealer; and
(B) The manufacturer has not acquired a controlling interest in a franchisor or a subsidiary or other entity controlled by such franchisor, or sold or transferred a controlling interest in such manufacturer to a franchisor or subsidiary or other entity controlled by such franchisor.
(b) It shall be unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to compete unfairly with a new motor vehicle dealer of the same line make, operating under a franchise, in the State of Georgia, and, except as otherwise provided in this subsection, the mere ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor under the conditions set forth in paragraphs (1) through (8) of subsection (a) of this Code section shall not constitute a violation of this subsection. For purposes of this Code section, a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor shall be conclusively presumed to be competing unfairly if it gives any preferential treatment to a dealer or dealership of which any interest is directly or indirectly owned, operated, or controlled by such manufacturer or franchisor or any partner, affiliate, wholly or partially owned subsidiary, officer, or representative of such manufacturer or franchisor, expressly including, but not limited to, preferential treatment regarding the direct or indirect cost of vehicles or parts, the availability or allocation of vehicles or parts, the availability or allocation of special or program vehicles, the provision of service and service support, the availability of or participation in special programs, the administration of warranty policy, the availability and use of after warranty adjustments, advertising, floor planning, financing or financing programs, or factory rebates.
(c) Except as may otherwise be provided in subsection (a) and subsection (b) of this Code section, no manufacturer or franchisor shall offer to sell or sell, directly or indirectly, any new motor vehicle to a consumer in this state, except through a new motor vehicle dealer holding a franchise for the line make covering such new motor vehicle. This subsection shall not apply to manufacturer or franchisor sales of new motor vehicles to the federal government, charitable organizations, or employees of the manufacturer or franchisor.
As used in this part, the term:
(1) “Commissioner” means the state revenue commissioner.
(2) “Department” means the Department of Revenue.
As an alternative to and in addition to any civil or criminal enforcement of this article, the state revenue commissioner by and through the Department of Revenue is authorized to enforce the provisions of this article and any order issued pursuant to the enforcement of this article.
Any dealer, distributor, or manufacturer who is aggrieved by a violation of any provision of this article may file a petition with the Department of Revenue setting forth the facts supporting the allegation of such violation. The commissioner shall issue an administrative order, whenever the commissioner, after notice to all parties and after a hearing, determines that a violation of this article or any order issued under this article has occurred. The notice and the hearing and any administrative review thereof shall be conducted in accordance with the procedure for contested cases under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” Any party who has exhausted all administrative remedies available and who is aggrieved or adversely affected by a final order or action of the commissioner shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” The commissioner or the prevailing party may file, in the superior court in the county wherein the party under order resides or, if such party is a corporation, in the county wherein the corporation maintains its established place of business or its agent for service of process is located, or in the county wherein the violation occurred, a certified copy of a final order of the commissioner, whether unappealed from or affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by the court. The remedy prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available under the laws of this state.
(a) In addition to the licensing fee set forth in Code Section 40-2-38, each dealer shall register annually with the department and shall pay an annual registration fee of $25.00. The fee shall be paid on or before January 1 of the registration year and shall be paid with and accompanied by such forms as the commissioner shall prescribe.
(b) It is the intent of the General Assembly of Georgia that an amount equal to the amount collected by the registration fee provided for in this Code section be appropriated to the department to fund the provisions of this part. If the funds appropriated to the department to fund the provisions of this part exceed the actual cost to the department to enforce this part, then the excess funds so appropriated shall lapse. However, if the fees collected under subsection (a) of this Code section do not equal the actual cost to the department to enforce the provisions of this part, then the commissioner may raise the registration fee to an amount which will ensure that the cost to the state to enforce this part is received.
Any provision of this article which would, in the absence of this Code section, impair an obligation of a franchise agreement or any other agreement between a manufacturer or franchisor and a franchisee shall only apply to any such agreement made, entered into, renewed, extended, modified, or continued after the effective date of such provision. Otherwise, each provision of this article shall apply to all franchise or other agreements.
The General Assembly finds and declares that the distribution of marine vessels and products in the State of Georgia vitally affects the general economy of the state and the public interest and public welfare and, in the exercise of its police power, it is necessary to regulate marine manufacturers, distributors, and dealers and their representatives doing business in Georgia in order to prevent unfair business practices, unfair methods of competition, impositions, and other abuses upon its citizens.
As used in this article, the term:
(1) “Distributor” or “wholesaler” means any person, company, or corporation who sells or distributes marine products to marine dealers and who maintains distributor representatives within the state.
(2) “Franchise” means an oral or written agreement for a definite or indefinite period of time in which a manufacturer grants to a marine dealer permission to use a trade name, service mark, or related characteristic and in which there is a community of interest in the marketing of marine products or services related thereto at wholesale or retail, whether by leasing, sale, or otherwise.
(3) “Manufacturer” means any person, firm, association, corporation, or trust, resident or nonresident, that fabricates, manufactures, or assembles new and unused marine products. It does not include a person, firm, association, corporation, or trust which converts, modifies, or otherwise alters a marine product manufactured by another person, firm, association, corporation, or trust.
(4) “Manufacturer sales representative” means any officer, agent, or employee employed by a person, firm, association, corporation, or trust that fabricates, manufactures, or assembles marine products or by a factory branch for the purpose of making or promoting the sale of marine products or supervising or contacting marine dealers or prospective dealers.
(5) “Marine dealer” means any person who holds a bona fide contract, agreement, or franchise with a manufacturer or distributor of marine products.
(6) “Marine product” means a new or used watercraft, boat, vessel, or motor primarily designed for recreational or commercial use on water. The term also includes an outboard motor or a boat outfitted with an inboard or outboard motor. The term shall not mean a watercraft designed primarily for commercial use.
(a)(1) Whenever any marine dealer enters into a franchise, selling, or other contractual agreement with a manufacturer, distributor, or wholesaler wherein the dealer agrees to maintain an inventory of marine products or repair parts, the manufacturer, distributor, or wholesaler shall not terminate such agreement in case of breach by the dealer unless and until 90 days after notice of such intention to terminate has been sent by certified mail or statutory overnight delivery, return receipt requested, to the dealer and the dealer has failed to correct the breach within such period.
(2) If the franchise, selling, or other contractual agreement is terminated as a result of any action by the manufacturer and the dealer is not in breach of such agreement, the manufacturer, distributor, or wholesaler shall repurchase the inventory as provided in this article. The dealer may keep the inventory if he or she desires. If the dealer has any outstanding debts to the manufacturer, distributor, or wholesaler, then the repurchase amount may be credited to the dealer's account.
(3) If the franchise, selling, or other contractual agreement is terminated as a result of any action by the dealer and the manufacturer is not in breach of such agreement, the manufacturer shall not be required to repurchase the inventory as provided in this article; provided, however, if the franchise, selling, or other contractual agreement is terminated as a result of any action by the dealer and the manufacturer is in breach of such agreement, the manufacturer shall be required to repurchase the inventory as provided in this article.
(4) It shall be unlawful for the manufacturer, wholesaler, distributor, or franchisor, without due cause and pursuant to its own initiating action, to fail to renew a franchise, selling, or other contractual agreement on terms then equally available to all its marine dealers, unless the manufacturer repurchases the inventory as provided for in this Code section. The tests for determining what constitutes due cause for a manufacturer or distributor to fail to renew a franchise, selling, or other contractual agreement shall include whether the dealer:
(A) Has made a material misrepresentation in applying for or acting under the franchise agreement;
(B) Has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against the dealer which has not been discharged within 30 days after the filing, is in default under the provisions of a security agreement in effect with the manufacturer or distributor, or is in receivership;
(C) Has engaged in an unfair business practice;
(D) Has engaged in conduct which is injurious or detrimental to the public welfare;
(E) Has failed to comply with an applicable licensing law;
(F) Has been convicted of a crime, the effect of which would be detrimental to the manufacturer, distributor, or dealership;
(G) Has failed to operate in the normal course of business for seven consecutive business days; or
(H) Has failed to comply with the terms of the dealership or franchise agreement.
(5) In the event that the manufacturer, wholesaler, distributor, or franchisor does not intend to renew a franchise, selling, or other contractual agreement, such manufacturer, wholesaler, distributor, or franchisor shall give the dealer 90 days' written notice prior to the effective date thereof by certified mail or statutory overnight delivery, return receipt requested.
(b) Within 30 days of the termination of the franchise, selling, or other contractual agreement, the manufacturer, distributor, or wholesaler shall repurchase that inventory previously purchased from him or her, including all new and unused marine products of the current or immediate prior model year and parts on hand and held by the dealer on the date of termination of the contract. The manufacturer, distributor, or wholesaler shall pay an amount equivalent to the cost actually paid by the dealer less discounts or rebates per unit for any new, unused, undamaged, unaltered from original invoice and delivery, and complete marine vessel. The manufacturer shall also pay an amount equal to the price paid by the dealer for any new, unused, and undamaged repair parts and accessories which are listed in the manufacturer's current parts price list and are not more than two model years old.
(c) Upon payment within a reasonable time of the repurchase amount to the dealer, the title, if any, and right of possession to the repurchased inventory shall transfer to the manufacturer, distributor, or wholesaler, as the case may be.
(d) The provisions of this article shall not require the repurchase from a dealer of:
(1) Any repair part which has a limited storage life or is otherwise subject to deterioration;
(2) Any single repair part which is priced as a set of two or more items;
(3) Any repair part which, because of its condition, is not resalable as a new part without repackaging or reconditioning;
(4) Any inventory for which the dealer is unable to furnish evidence that is reasonably satisfactory to the manufacturer, distributor, or wholesaler of good title, free and clear of all claims, liens, and encumbrances;
(5) Any inventory which the dealer desires to keep, provided that the dealer has a contractual right to do so;
(6) Any marine vessel or product which is not in new, unused, undamaged, and complete condition;
(7) Any repair parts which are not in new, unused, and undamaged condition;
(8) Any inventory which was ordered by the dealer on or after the date of receipt of the notification of termination of the franchise, selling, or other contractual agreement;
(9) Any inventory which was acquired by the dealer from any source other than the manufacturer, distributor, or wholesaler; or
(10) Any boat that has been altered substantially from original delivery.
(e) If any manufacturer, distributor, or wholesaler shall fail or refuse to repurchase any inventory as required by this article within 60 days after termination of a dealer's contract and submission by the dealer to the manufacturer, by certified mail or statutory overnight delivery, return receipt requested, of a final inventory of marine products and parts on hand, he or she shall be civilly liable not only for the amounts provided in subsection (b) of this Code section but also the dealer's reasonable attorney's fees, court costs, and interest on the amount due for such inventory computed at the legal interest rate from the sixty-first day after termination.
(f) In the event of the death or incapacity of the dealer or the majority stockholder of a corporation operating as a dealer, the manufacturer, distributor, or wholesaler shall, at the option of the heirs at law if the dealer died intestate or the devisees or transferees under the terms of the deceased dealer's last will and testament if said dealer died testate, repurchase the inventory from said heirs or devisees as if the manufacturer, distributor, or wholesaler had terminated the contract, and the inventory repurchase provisions of this Code section shall apply. The heirs or devisees shall have until the end of the contract term or one year from the date of the death of the retailer or majority stockholder, whichever comes first, to exercise their option under this article; provided, however, that nothing in this article shall require the repurchase of inventory if the heirs or devisees and the manufacturer, distributor, or wholesaler enter into a new franchise agreement to operate the retail dealership.
The provisions of this article shall apply to any contract now in effect which has no expiration date and is a continuing contract and any other contract entered into or renewed on or after July 1, 2002. Any contract in force and effect prior to July 1, 2002, which by its own terms will terminate on a date subsequent thereto shall be governed by the law as it existed prior to July 1, 2002.
(a) As used in this article, the term:
(1) “Community of interest” means a continuing financial interest between the grantor and the grantee in either the operation of the dealership business or the marketing of such goods or services.
(2) “Franchise” means an oral or written agreement for a definite or indefinite period of time in which a manufacturer grants to a recreational vehicle dealer permission to use a trade name, service mark, or related characteristic and in which there is a community of interest in the marketing of recreational vehicle products or services related thereto at wholesale or retail, whether by leasing, sale, or otherwise.
(3) “Grantor” means a person who grants a recreational vehicle dealership.
(4) “Person” means a natural person, partnership, joint venture, corporation, or other entity.
(5) “Recreational vehicle” means a vehicular type unit primarily designed as temporary living quarters for recreational, camping, or travel use which either has its own motive power or is mounted on or towed by another vehicle. The basic entities are as follows: travel trailer, camping trailer, truck camper, motor home, park trailer, and fifth wheel travel trailer.
(6) “Recreational vehicle dealer” or “dealer” means a person who is a grantee of a recreational vehicle dealership situated in Georgia.
(7) “Recreational vehicle dealership” means an established place of business engaged in the marketing of new recreational vehicle products or services related thereto at wholesale or retail, whether by leasing, sale, or otherwise, and which is marked by an appropriate permanent sign, a working telephone with a telephone number listed in the local phone directory, and which derives at least 75 percent of its revenue from the sale of new recreational vehicles and recreational vehicle related products and services.
(8) “Warrantor” means a person, firm, corporation, or business entity that gives a warranty in connection with a new recreational vehicle or parts, accessories, or components thereof. Such term does not include service contracts, mechanical or other insurance, or extended warranties sold for separate consideration by a dealer or other person not controlled by a manufacturer.
(b) For purposes of this article when determining whether there is “good cause” for a proposed action, the trier of fact shall consider:
(1) The volume of the affected dealer's business in the relevant market area;
(2) The nature and extent of the dealer's investment in its business;
(3) The adequacy of the dealer's service facilities, equipment, parts, supplies, and personnel;
(4) The effect of the proposed action on the community;
(5) The extent and quality of the dealer's service under recreational vehicle warranties; and
(6) The dealer's performance under the terms of its franchise agreement.
(a) This article shall be liberally construed and applied to promote its underlying remedial purposes and policies.
(b) The underlying purposes and policies of this article are:
(1) To promote the compelling interest of the public in fair business relations between recreational vehicle dealers and grantors and in the continuation of recreational vehicle dealerships on a fair basis;
(2) To protect recreational vehicle dealers against unfair treatment by grantors who inherently have superior economic power and superior bargaining power in the negotiations of recreational vehicle dealerships;
(3) To provide recreational vehicle dealers with rights and remedies in addition to those existing by contract or common law; and
(4) To govern all franchise agreements for recreational vehicle dealerships, including any renewals or amendments, to the full extent consistent with the Constitutions of Georgia and the United States.
(c) The effect of this article may not be varied by contract or agreement. Any contract or agreement purporting to do so is void and unenforceable to that extent only.
The grantor shall designate in writing the area of sales responsibility assigned to a recreational vehicle dealer and shall not change such area nor establish another recreational vehicle dealer in the same area unless the grantor can show good cause for the addition of the new recreational vehicle dealer, including reasonable evidence that the market will support the establishment of a new dealership.
Sales of recreational vehicles by grantors or distributors shall be in accordance with published prices, charges, and terms of sale in effect at any given time.
No grantor, directly or through any officer, agent, or employee, may terminate, cancel, fail to renew, or substantially change the competitive circumstances, including the area of sales responsibility, of a recreational vehicle dealership agreement without good cause. The burden of proving good cause shall be on the grantor.
(a) Except as provided in this Code section, a grantor shall provide a recreational vehicle dealer at least 120 days' prior written notice of termination, cancellation, nonrenewal, or substantial change in competitive circumstances and shall provide that the recreational vehicle dealer has 120 days in which to rectify any claimed deficiency. The notice shall state all the reasons for termination, cancellation, or nonrenewal and shall further state that if, within 30 days following the receipt of the grantor's notice, the recreational vehicle dealer provides to the grantor a written notice to cure all claimed deficiencies, the recreational vehicle dealer shall then have 120 days from the date of the notice to rectify such deficiencies. If the deficiency is rectified within 120 days, the notice shall be void. The notice provisions of this Code section shall not apply if the reason for termination, cancellation, or nonrenewal is insolvency, the occurrence of an assignment for the benefit of creditors, or bankruptcy.
(b) The 120 days' notice shall be reduced to 30 days' notice if the grounds for termination, cancellation, or nonrenewal is due to:
(1) Conviction or pleas of nolo contendere to a felony of a recreational vehicle dealer or one of its principal owners;
(2) The business operation of the recreational vehicle dealer has been abandoned or closed for ten consecutive days, unless the closing is due to an act of God, strike, or labor difficulty or other cause over which the dealer has no control;
(3) The suspension, revocation, or refusal to renew the recreational vehicle dealer's license; or
(4) A significant misrepresentation by the recreational vehicle dealer.
(a) If a recreational vehicle dealership franchise agreement is terminated, canceled, or not renewed by the grantor, the grantor, at the option of the recreational vehicle dealer, shall repurchase:
(1) All new, untitled recreational vehicle inventory acquired from the manufacturer within 12 months prior to the effective date of the termination, cancellation, or nonrenewal which has not been materially altered or substantially damaged. The grantor shall reimburse the dealer for 100 percent of the net invoice cost of such inventory, including transportation, less applicable rebates and discounts to the dealer.
(2) All functioning diagnostic equipment, special tools, other equipment and machinery, accessories and proprietary parts, and signage as were required to meet the dealer's service responsibilities in accordance with manufacturer's guides and applicable customer service bulletins and signs sold under the recreational vehicle dealership agreement.
(b) The manufacturer shall reimburse the dealer for 100 percent of the current net prices as published in the manufacturer's current price lists or catalogs on accessories and parts, including superseded parts, provided it was purchased by the dealer within five years before termination and can no longer be used in the normal course of the dealer's business, plus 5 percent of the current net price of all manufacturer's accessories and parts returned to compensate the dealer for handling, packing, and loading the parts, plus the cost of freight to return said parts. The grantor shall pay the dealer within 30 days of receipt of the returned items. This Code section shall apply only to merchandise with a name, trademark, label, or other mark on it which identifies the grantor or with proof of purchase from the grantor.
It shall be unlawful for any grantor, directly or through any officer, agent, or employee:
(1) To coerce, or attempt to coerce, any dealer to accept delivery of any parts or accessories or any other commodities which have not been ordered by such dealer; or
(2) To coerce, or attempt to coerce, any dealer to enter into an agreement with such grantor or do any other act unfair to such dealer by threatening to cancel any recreational vehicle dealership franchise agreement existing between such grantor and such dealer.
It shall be unlawful for any grantor to prevent or refuse to approve the sale or transfer of the ownership of a recreational vehicle dealership by the sale of the business assets, stock transfer, or otherwise, or a change in executive management or principal operator of the dealership if the new owner, principal operator, or management is creditworthy, has not been convicted of a felony, and is properly licensed; the sale or transfer shall not result in a relocation of the business; and the sale or transfer is otherwise reasonable under the circumstances. The recreational vehicle dealer must give the manufacturer 30 days' written notice prior to the closing of such agreement. If the manufacturer rejects a proposed change or sale, the manufacturer shall give written notice of its reasons to the recreational vehicle dealer within 30 days after receipt of the dealer notification and complete documentation. If no such notice is given to the recreational vehicle dealer, the change or sale shall be deemed approved. The burden of proving that any sale or transfer is not reasonable shall be on the grantor.
(a) It shall be unlawful for any grantor to fail to provide a recreational vehicle dealer with an opportunity, at the time of signing a recreational vehicle dealership franchise agreement or at a reasonable time thereafter, to designate a member of his or her family as a successor to the dealership in the event of the death, incapacity, or retirement of the dealer. A dealer may from time to time during the term of the franchise agreement change the beneficiary by providing a written notification to the manufacturer.
(b) It shall be unlawful to prevent or refuse to honor the succession to a dealership by a family member of the deceased, incapacitated, or retired dealer unless the grantor has provided to the family member so designated written notice of its objections. The burden of proving that such transfer is not reasonable shall be on the grantor.
(c) Grounds for objection shall be lack of creditworthiness, conviction of a felony, inability to obtain necessary and required licenses by the beneficiary, lack of required licenses, or other conditions which make such succession unreasonable under the circumstances, but the grantor shall bear the burden of proving the unreasonableness of such succession. No family member of the deceased, incapacitated, or retired dealer may succeed to a recreational vehicle dealership unless the succession to the recreational vehicle dealership will not involve, without the grantor's consent, a relocation of the business.
(a) Each grantor or warrantor, where applicable, shall specify in writing to each of its recreational vehicle dealers licensed in Georgia the dealer's obligation for preparation, delivery, and warranty service on its products; shall compensate the dealer for warranty service required of the dealer by the grantor or warrantor; and shall provide the dealer the schedule of compensation to be paid to such dealers for parts, work, and service in connection with warranty service and the time allowances for the performance of such work and service. In no event shall such schedule of compensation fail to include reasonable compensation for diagnostic work as well as repair service and labor.
(b) Time allowances for the diagnosis and performance of warranty work and service shall be reasonable and adequate for the work to be performed. In the determination of what constitutes reasonable compensation under this Code section, the principal factors to be considered shall be the actual wage rates being paid by the dealer and the actual retail labor rates being charged by the dealer in the community in which the dealer is doing business. In no event shall such compensation of a dealer for warranty labor be less than the retail rates charged by the dealer for like service to retail customers for nonwarranty labor and repairs as long as such rates are reasonable.
(c) A grantor or warrantor, where applicable, shall reimburse the dealer for warranty parts at actual wholesale costs plus a minimum 30 percent handling charge and the cost, if any, of freight to return warranty parts to the grantor or warrantor. Warranty audits of dealer records may be conducted by the grantor or warrantor, where applicable, on a reasonable basis. A grantor or warrantor, where applicable, must disapprove warranty claims in writing within 30 days of the date of submission by the dealer in the manner and form prescribed by the grantor or warrantor. Claims not specifically disapproved in writing within this 30 day period shall be construed to be approved and shall be paid within 45 days.
(d) Dealer claims for warranty compensation shall not be denied except for good cause, such as performance of nonwarranty repairs, lack of material documentation, fraud, or misrepresentation. Claims for dealer compensation must be submitted within 45 days of completing the work. The dealer must notify the warrantor verbally or in writing if the dealer is unable to promptly perform material or repetitive warranty repairs. All claims shall be paid within 30 days of dealer submission or rejected in writing for stated reasons.
(e) It shall be a violation of this article for any grantor or warrantor, where applicable, to:
(1) Fail to perform any of its warranty obligations with respect to a recreational vehicle and recreational vehicle components;
(2) Fail to assume all responsibility for any liability resulting from structural or production defects;
(3) Fail to include written notices of factory recalls to vehicle owners and dealers and the expected date by which necessary parts and equipment will be available to dealers for the correction of such defects. The grantor or warrantor, where applicable, may ship parts in quantity to the dealer to effect such campaign work, and if such parts are in excess of the dealer's requirements, the dealer may return unused parts to the grantor or warrantor for credit after completion of the campaign;
(4) Fail to compensate any of its recreational vehicle dealers licensed in Georgia for repairs effected by such dealer of merchandise damaged in manufacture or transit to the dealer where the carrier is designated by the grantor, factory branch, distributor, or distributor branch;
(5) Fail to compensate its recreational vehicle dealers licensed in this state for warranty parts, work, and service in accordance with the schedule of compensation provided the dealer pursuant to subsection (a) of this Code section if performed in a timely and competent manner, or for legal costs and expenses incurred by such dealers in connection with warranty obligations for which the grantor or warrantor, where applicable, is legally responsible or which the grantor or warrantor imposes upon the dealer;
(6) Misrepresent in any way purchases of recreational vehicles that contain warranties with respect to the manufacture, performance, or design of the vehicles which are made by the dealer, either as warrantor or co-warrantor; or
(7) Require the dealer to make warranties to customers in any manner related to the manufacture of a recreational vehicle.
(f) Notwithstanding the terms of any agreement, it shall be a violation of this article for any grantor or warrantor, where applicable, to fail to indemnify and hold harmless its recreational vehicle dealers against any losses or damages arising out of claims, costs, judgments, and expenses, including reasonable attorney's fees, or suits relating to the manufacture, assembly, or design of recreational vehicles, parts, or accessories, or other functions by the grantor or warrantor beyond the control of the dealer, including, without limitation, the selection by the grantor or warrantor, where applicable, of parts or components for the recreational vehicle or any damages to merchandise occurring in transit to the dealer where the carrier is designated by the grantor or warrantor. The dealer shall give notice to the grantor or warrantor of pending suits in which allegations are made which come within this subsection whenever reasonably practicable to do so. Any recreational vehicle dealer franchise agreement issued to, amended, or renewed for recreational vehicles in Georgia on or after July 1, 2005, shall be deemed to incorporate provisions consistent with the requirements of this subsection.
(g) On any new recreational vehicle, any uncorrected and significant damage, or any corrected damage exceeding 5 percent of the manufacturer's suggested retail price or $500.00 or more in paint damage, must be disclosed to the dealer in writing prior to delivery. Factory mechanical repair and damage to glass, tires, and bumpers is excluded from disclosure when properly replaced by identical manufacturer's or distributor's original equipment or parts.
(h) Whenever a new recreational vehicle is damaged in transit when the carrier or means of transportation is determined by the manufacturer or distributor or whenever a recreational vehicle is otherwise damaged prior to delivery to the recreational vehicle dealer or if a new recreational vehicle is found to have substantial box or chassis defects upon arrival at the recreational vehicle dealership, the dealer must notify the grantor or distributor of such damage or such defects within three business days from the date of delivery or within a reasonable amount of additional time or such time as specified in the recreational vehicle dealership franchise agreement and either:
(1) Request from the grantor, warrantor, or distributor authorization to replace the components, parts, and accessories damaged or otherwise correct the damage; or
(2) Reject the vehicle within the three day grace period.
If the dealer exercises the option to refuse delivery of the vehicle, the recreational vehicle grantor must immediately repurchase such vehicle.
(i) If the grantor, warrantor, or distributor refuses or fails to authorize repair of such damage within ten days after receipt of notification or if the dealer rejects a recreational vehicle because of damage, ownership of the new recreational vehicle shall revert to the grantor or distributor and the recreational vehicle dealer shall have no obligations, financial or otherwise, with respect to such recreational vehicle.
(j) It shall be a violation of this article for any recreational vehicle dealer to:
(1) Fail to perform predelivery inspection functions, if required, in a competent and timely manner;
(2) Fail to perform warranty service work, authorized by the vehicle warrantor, in a reasonably timely and competent manner on any transient customer's vehicle of the same line-make, whether sold by that dealer or not;
(3) Intentionally misrepresent the terms of any warranty.
(k) All grantors, warrantors, and distributors of recreational vehicle components shall be subject to the provisions of this article.
If any grantor or warrantor violates this article, a recreational vehicle dealer may bring an action against such grantor or warrantor in a court of competent jurisdiction in the county of the recreational vehicle dealer for damages sustained as a consequence of the grantor's or warrantor's violation, together with the actual costs of the action including reasonable attorney's fees, and the dealer also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal, or substantial change of competitive circumstances and refusal to permit transfer of ownership in accordance with Code Sections 10-1-679.2 and 10-1-679.3.
In any action brought by a recreational vehicle dealer against a grantor or warrantor under this article, any violation of this article by the grantor or warrantor shall be deemed an irreparable injury to the recreational vehicle dealer for determining if a temporary injunction should be issued.
It shall be unlawful for a grantor to establish a new recreational vehicle dealership unless the dealer meets the requirements and definitions provided in this article.
(a) It shall be unlawful for any dealer to sell or distribute any new recreational vehicle in Georgia unless the dealer has a franchise dealership agreement with a grantor with the express right to sell or distribute recreational vehicles in Georgia and meets the requirements and definitions provided in this article. Any dealer who does not meet the requirements of this article may participate in events where recreational vehicles are exhibited or demonstrated and seminars are provided but shall be prohibited from contracting to sell or distribute recreational vehicles to the public.
(b) Subsection (a) of this Code section shall not apply to:
(1) The sale of recreational vehicles at events sponsored by a Georgia based recreational vehicle grantor with manufacturing facilities located in this state, where recreational vehicles are sold or contracted for by its franchised out-of-state recreational vehicle dealers;
(2) Any convention or rally involving more than 2,500 recreational vehicles which are preregistered with the sponsor of said event, owned by individuals attending such convention or rally, and there for the personal use of their owners for the purpose of camping and not for sale or display; provided, however, that no dealers from outside of this state shall be invited to said event by a participating manufacturer unless all franchised Georgia dealers for such participating manufacturer shall be invited to said event, and there shall be no discrimination in terms of sales by a manufacturer to any franchised Georgia dealer for recreational vehicles to be sold at the convention or rally; nor shall any franchised Georgia dealer be required by a manufacturer to purchase inventory in addition to that required under a current franchise agreement between the manufacturer and such dealer in order for the dealer to participate in such convention or rally. Out-of-state dealers shall register with the Department of Revenue and purchase a permit 30 days prior to participating in any rally or convention in Georgia. The cost of such permit shall be $500.00 per dealer. Any manufacturer or dealer that violates this paragraph shall not be eligible to participate in any such events; or
(3) Any dealer at a convention or rally if:
(A) There are ten or more dealers from this state participating in such convention or rally; and
(B) Such convention or rally takes place at a location other than the principal place of business of any of the dealers participating in such convention or rally.
Nothing in this subsection shall be applied to impair an obligation of a contract existing on March 14, 2008.
(c) The state revenue commissioner and the Department of Revenue shall enforce this Code section in the same manner as provided by Code Sections 10-1-666 and 10-1-667 for violations of Article 22 of this chapter.
Any person who violates the provisions of this article shall be guilty of a misdemeanor.
This article shall be known and may be cited as the “Lease-purchase Agreement Act.”
As used in this article, the term:
(1) “Lease-purchase agreement” means an agreement for the use of personal property by a lessee primarily for personal, family, or household purposes for an initial period of four months or less that is renewable with each payment after the initial period and that permits the lessee to become the owner of the property. Lease-purchase agreements shall not include any of the following:
(A) A lease or agreement which constitutes a credit sale as defined in 12 C.F.R. 226.2(a)(16) and Section 1602(g) of the Truth-in-Lending Act, 15 U.S.C. Section 1601, et seq.;
(B) A lease which constitutes a consumer lease as defined in 12 C.F.R. 213.2(a)(6);
(C) Any lease for agricultural, business, or commercial purposes;
(D) Any lease made to an organization; or
(E) A lease or agreement which constitutes a retail installment transaction as defined in paragraph (10) of subsection (a) of Code Section 10-1-2.
(2) “Lessee” means a person who leases property pursuant to a lease-purchase agreement.
(3) “Lessor” means a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of property under a lease-purchase agreement.
(4) “Period” means a day, week, month, or other subdivision of a year.
(a) A lease-purchase agreement shall be in the form of a written statement which shall include all of the following:
(1) A brief description of the leased property, sufficient to identify the property to the lessee and lessor including whether the property is new or previously rented or, if a lease is for multiple items, a description of each item may be provided in a separate statement which is incorporated by reference in the primary disclosure statement;
(2) The total amount of any initial payment, including any advance payment, delivery charge, or any trade-in allowance to be paid by the lessee at or before consummation of the lease-purchase agreement;
(3) The amount and timing of payments;
(4) The amount of all other charges, individually itemized, payable by the lessee to the lessor which are not included in the periodic payments;
(5) A statement of the party liable for loss, damage in excess of normal wear and tear, or destruction to the leased property;
(6) The lessee's right to reinstate and the amount, or method of determining the amount, of any penalty or other charge for reinstatement as established in Code Section 10-1-686;
(7) The party responsible for maintaining or servicing the leased property together with a brief description of this responsibility;
(8) A statement of the conditions under which the lessee or lessor may terminate the lease;
(9) A statement of the total cost of the lease expressed as the product of the number of payments necessary to acquire ownership of the leased property times the amount of each payment, using the term “cost of lease”;
(10) A statement that the lessee has the option to purchase the leased property during the term of the lease-purchase agreement and, at what price, formula, or by what method the price is determined;
(11) A statement that if any part of a manufacturer's warranty continues to cover the leased property at the time the lessee assumes ownership of the property, if allowed by the terms of the warranty, it will be passed on to the lessee;
(12) The fair market value of the leased property at the time it is initially leased to the lessee, using the term “estimated fair market value of the leased property,” provided that in the case of property that has been previously leased the lessor may establish a standard value that may be used in lieu of a specific valuation for an individual item; and
(13) The difference between the amount disclosed under paragraph (9) of this subsection and the amount disclosed under paragraph (12) of this subsection, using the term “cost of lease services.”
(b) All information required by this Code section shall be stated in a clear and coherent manner, using words and phrases of common meaning. The information shall be appropriately divided and captioned by its sections. All numerical amounts and percentages shall be stated in figures. The information shall also be disclosed by the lessor prior to the signing of the lease by the lessee. All of the information required by this Code section shall be provided directly on the lease contract or instrument or on a separate form. The disclosures described in paragraphs (1), (2), (3), (4), (9), (12), and (13) of subsection (a) of this Code section shall be made clearly, conspicuously, and together in sequence and shall be prominently located on the same page of the contract or other instrument evidencing the lease.
(c) At the lessor's option, information in addition to that required by this Code section may be disclosed if the additional information is not stated, utilized, or placed in a manner which will contradict, obscure, or distract attention from the required information.
(a) An advertisement for any lease-purchase agreement shall not state that a specific lease of any property at specific amounts or terms is available unless the lessor usually and customarily leases or will lease the property at those amounts or terms.
(b) An advertisement for any lease-purchase agreement shall not state that a payment or a periodic payment is due at the start of a lease of a specific item without disclosing both the payment due at the start of the lease, the periodic payment, the cost of lease services, and the total of all periodic payments necessary to obtain ownership.
A lease-purchase agreement shall not contain a provision:
(1) Requiring a garnishment of wages or a power of attorney to confess a judgment;
(2) Granting authorization to the lessor or a person acting on the lessor's behalf to unlawfully enter upon the lessee's premises or to commit any breach of the peace in the repossession of goods;
(3) Requiring the lessee to waive any defense, counterclaim, or right of action against the lessor or a person acting on the lessor's behalf (as the lessee's agent on the lessor's behalf or as the lessee's agent) in collection of payments under the lease or in the repossession of goods;
(4) Requiring the lessee to agree not to assert against a lessor or against an assignee a claim or defense arising out of the lease;
(5) Requiring any collection or repossession charges in excess of those allowable under Code Section 10-1-7 and applicable court rules; or
(6) Providing that the lessee cannot return the leased property to the lessor at the end of any term.
(a) A lessor shall not require the purchase of insurance by the lessee from the lessor of a leased item.
(b) A lessor shall not impose a penalty for early termination of a lease-purchase agreement or for the return of an item at any point.
(c) A lessor shall not impose a fee for in-home collection of a payment unless the lessee has expressly agreed to the fee and the amount of the fee is disclosed.
(d) A lessor shall not impose a fee for picking up rental property should the lessee choose to terminate the lease.
(e) A lessor shall not impose a fee for making a late payment except the charge for reinstatement as established in Code Section 10-1-686.
(a) A lessee who fails to make timely periodic payments shall have the right to reinstate the original lease-purchase agreement without losing any rights or options previously acquired under the lease-purchase agreement if both of the following apply:
(1) The lessee has not missed more than three periodic payments; and
(2) One periodic payment has been missed and the lessee has surrendered the item to the lessor, if requested by the lessor, during the time in which payments were missed.
(b) A lessee shall not be charged more than one reinstatement fee per missed periodic payment. A reinstatement fee shall equal the outstanding balance of any missed payments plus a charge which shall not exceed $5.00 per missed payment. A delivery fee not to exceed the original delivery fee may be charged if redelivery of an item is necessary.
(c) If reinstatement occurs pursuant to this Code section, the lessor shall provide the lessee with either the same item leased by the lessee prior to reinstatement or a substitute item of comparable quality and condition. If a substitute item is provided, the lessor shall provide the lessee with all of the information required in Code Section 10-1-682.
(a) Any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and as for a misdemeanor for each subsequent offense.
(b) In case of a violation of any provision of this article, with respect to any transaction, the lessee in such transaction may recover from the person committing the violation, or may set off or counterclaim in any action by such person, actual damages with a minimum recovery of $300.00 or 25 percent of the cost of the lease to acquire ownership, whichever is greater, attorneys' fees, and court costs. However, the lessor shall not be liable for any error in estimating the fair market value required in paragraph (12) of subsection (a) of Code Section 10-1-682 unless said estimate shall be proved to have been made in bad faith.
(c) Notwithstanding this Code section, any failure to comply with any provisions in this article may be corrected within ten days after the date of execution of the lease-purchase agreement by the lessee, and, if so corrected, neither the lessor nor any holder is subject to any penalty under this Code section.
No action shall be brought under this article more than four years after the person bringing this action knew or should have known of the occurrence of the alleged violation.
The following form is an example of the form which may be used to satisfy the disclosure requirements of subsection (b) of Code Section 10-1-682, requiring that the disclosures described in paragraphs (1), (2), (3), (4), (9), (12), and (13) of subsection (a) of Code Section 10-1-682 be made clearly, conspicuously, prominently, and together in sequence:
LEASE-PURCHASE DISCLOSURES
| | 1. | Description of leased property: | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | | | Item | Quantity | Serial # | Mfg. Model | Condition | | | | | ___________ | ______________ | ______________ | ___________________ | ________________ | | | | | ___________ | ______________ | ______________ | ___________________ | ________________ | |
| | 2. | Total payment due at beginning of contract: | | | --- | --- | --- | --- | | | | Lease payment: | _______ | | | | Delivery charge: | _______ | | | | Sales tax: | _______ | | | | Other: | _______ | | | | Total: | _______ |
| | 3. | Lease payments: | | --- | --- | --- | | | | 1. You may renew the lease weekly or monthly as you choose. | | | | 2. The weekly rental is $. | | | | 3. The monthly rental is $. | | | 4. | Other charges: | | | | 1. Reinstatement fee $_____ | | | | 2. (Specify all others) | | | 5. | Cost of lease: | | | | If you renew this lease each week/month for _____ weeks/months, you will pay a total of $_____ to own this property. This total includes all costs included in the first lease payment. | | | 6. | Estimated fair market value of the leased property: | | | | The estimated fair market value of the property you are leasing is $. | | | 7. | Cost of lease services: | | | | The difference between the amount in item 5 and item 6 above is $. This is the cost of services to you under this lease if you elect to renew this lease for the number of terms necessary to acquire ownership of the leased property. |
| | I have read the above statement before signing this agreement. | | --- | --- | | | Date: ____________________ Lessee: ____________________ | | | Date: ____________________ Lessee: ____________________ |
As used in this article, the term:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales or as a specified amount per order or per sale.
(2) “Principal” means a person who does business in this state and who:
(A) Manufactures, produces, imports, or distributes a tangible product for wholesale;
(B) Contracts with a sales representative to solicit orders for the product; and
(C) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who contracts with a principal to solicit wholesale orders and who is compensated in whole or in part by a commission, but such term does not include one who places orders or purchases for his or her own account for resale.
(a) When a contract between a principal and a sales representative is terminated, the principal shall within 30 days after the termination of the contract pay all commissions due to the sales representative.
(b) A principal who fails to make timely payment of commissions as required by subsection (a) of this Code section shall be liable to the sales representative in a civil action for:
(1) All amounts due to the sales representative according to the terms of the contract;
(2) Exemplary damages in an amount not to exceed double the amount not timely paid as required by subsection (a) of this Code section; and
(3) Reasonable attorney's fees actually and reasonably incurred by the sales representative in the action.
(c) A person who brings an action under this Code section shall, if the court determines that the action is frivolous, be liable to the defendant for attorney's fees actually and reasonably incurred by the defendant in defending against such action.
The provisions of this article may not be waived; and, in applying the provisions of this article, the courts of this state shall not recognize any purported waiver of the provisions of this article, whether by expressed waiver or by attempt to make a contract or agreement subject to the laws of another state.
A principal who is not a resident of this state and who enters into a contract subject to this article is declared to be doing business in this state for purposes of the exercise of personal jurisdiction over nonresidents under Code Section 9-10-91.
As used in this article, the term:
(1) “Adult” means any person who is not a minor.
(2) “Dealer” means any person, other than an agent or employee of a producer or redistributor, who is engaged in the retail sale of petroleum products under a franchise agreement as defined in paragraph (4) of this Code section.
(3) “Designated family member” means the adult spouse, the adult child of the dealer, or the spouse of an adult child of the dealer, who has experience in the service station business and who, in the case of the dealer's death or retirement, is designated in writing by notice from the dealer to the producer or redistributor as entitled to be offered a trial franchise as such term is defined in the federal Petroleum Marketing Practices Act (15 U.S.C. Section 2801, et seq.).
(4) “Franchise” or “franchise agreement” means an agreement between a producer and a dealer or a redistributor and a dealer under which the dealer is granted the right to:
(A) Use a trademark, trade name, service mark, or other identifying symbol or name owned by the producer or redistributor; or
(B) Occupy a service station owned, leased, or controlled by the producer or redistributor for the purpose of engaging in the retail sale of petroleum products of the producer or redistributor.
(5) “Producer” means every person who produces, refines, manufactures, processes, blends, or otherwise alters any motor fuel and other petroleum products for sale or use in this state and every person who distributes any motor fuel and other petroleum products for resale in this state.
(6) “Redistributor” means any person who sells petroleum products for resale at retail.
(7) “Service station” means any filling station, store, garage, or other place of business in this state engaging in the retail sale of motor fuel and other petroleum products.
(a) Effective January 1, 1988, no franchise agreement entered into between a producer and a dealer or a redistributor and a dealer shall deny a dealer the rights provided in this Code section.
(b) A dealer shall have the right, effective upon his death or retirement, to have the producer or redistributor offer a trial franchise to the designated family member who has been approved by the producer or redistributor in accordance with the producer's or redistributor's reasonable standard for personal and financial condition unless the producer or redistributor shows that the designated family member no longer meets the reasonable standards set at the time of designation of the previous approval. The foregoing shall not prohibit a producer or redistributor from requiring that the designated family member accept the trial franchise within 30 days of the dealer's death or retirement and that the designated family member attend a training program offered by the producer or redistributor. As used in this Code section, the term “trial franchise” shall have the same meaning as provided in the federal Petroleum Marketing Practices Act (15 U.S.C. Section 2801, et seq.).
(c) A dealer and a producer or a dealer and a redistributor may mutually agree to change the family member designated. The designated family member shall provide, upon the request of the producer or redistributor, personal and financial data that are reasonably necessary to determine whether he or she meets the producer's or redistributor's reasonable standards. The producer or redistributor shall not be obligated to accept a designated family member under this subsection who does not meet the producer's or redistributor's reasonable standards but any refusal to accept the designated family member shall be given by the producer or redistributor in writing to the dealer and shall fairly state the reason therefor.
This article shall be known and may be cited as the “Georgia Multiline Heavy Equipment Dealer Act.”
As used in this article, the term:
(1) “Agreement” means a commercial relationship, either written or oral, between a supplier and a multiline dealer pursuant to which the multiline dealer has been authorized to distribute one or more of the supplier's heavy equipment products and attachments and repair parts therefor and in connection therewith to use a trade name, trademark, service mark, logo type, or advertising or other commercial symbol.
(2) “Heavy equipment” means self-propelled, self-powered, or pull-type equipment and machinery, including diesel engines, weighing 5,000 pounds or more and primarily employed for construction, industrial, maritime, mining, or forestry uses. The term “heavy equipment” shall not include:
(A) Motor vehicles requiring registration and certificates of title;
(B) Farm machinery, equipment, and implements; or
(C) Equipment that is “consumer goods” within the meaning of Code Section 11-9-102.
(3) “Multiline dealer” means a person in Georgia meeting all the following requirements:
(A) Who is engaged in the business of selling or leasing heavy equipment at retail;
(B) Who customarily maintains a total inventory valued at over $ 250,000.00 of new heavy equipment and attachments and repair parts therefor;
(C) Who provides repair services for the heavy equipment sold;
(D) Who has agreements with at least six different suppliers; and
(E) Whose retail sales volume of heavy equipment purchased from a single supplier, under all agreements with that supplier, is not greater than 75 percent of such person's total retail sales volume of heavy equipment during:
(i) The 12 month period immediately prior to July 1, 1989, if an agreement or agreements between the supplier and such person is or are in effect on July 1, 1989; or
(ii) The 12 month period immediately following the date the initial agreement between the supplier and such person is entered into, or portion thereof in the event of cancellation, termination, or transfer of the business prior to the end of such 12 month period, if such initial agreement is entered into subsequent to July 1, 1989.
(4) “Person” means a natural person, corporation, partnership, trust, agency, or other entity as well as the individual officers, directors, or other persons in active control of the activities of each such entity. The term “person” also includes heirs, assigns, personal representatives, and guardians.
(5) “Supplier” means every person, including any agent of such person or any authorized broker acting on behalf of that person, that enters into an agreement with a multiline dealer.
(a) Notwithstanding the terms, provisions, or conditions of any agreement, no supplier shall unilaterally amend, cancel, terminate, or refuse to continue to renew any agreement, or unilaterally cause a dealer to resign from an agreement, unless the supplier has first complied with the provisions of this article and good cause exists for amendment, termination, cancellation, nonrenewal, noncontinuance, or causing a resignation. The term “good cause” shall not include the sale or purchase of a supplier. The term “good cause” shall be limited to withdrawal by the supplier, its successors, and assigns of the sale of its products in Georgia or multiline dealer performance deficiencies including, but not limited to, the following:
(1) Bankruptcy or receivership of the multiline dealer;
(2) Assignment for the benefit of creditors or similar disposition of the assets of the dealer, other than the creation of a security interest in the assets of a multiline dealer for the purpose of securing financing in the ordinary course of business; or
(3)(A) Failure by the multiline dealer to comply substantially, without reasonable cause or justification, with any reasonable and material requirement imposed upon such dealer in writing by the supplier, including, but not limited to, a substantial failure by a multiline dealer to:
(i) Maintain a sales volume or trend of his supplier's product line or lines comparable to that of other similarly situated dealers of that product line; or
(ii) Render services comparable in quality, quantity, or volume to the services rendered by other dealers of the same product or product line similarly situated.
(B) In any determination as to whether a multiline dealer has failed to comply substantially, without reasonable excuse or justification, with any reasonable and material requirement imposed upon such dealer by the supplier, consideration shall be given to the relative size, population, geographical location, number of retail outlets, and demand for the products applicable to the market area of the multiline dealer in question and to comparable market area.
(b) No supplier shall be required to give notice or show good cause pursuant to subsection (a) of this Code section to amend unilaterally agreements with multiline dealers to comply with federal or state law or, where not inconsistent with this article, to amend uniformly agreements as to all multiline dealers of the supplier in question in all states in which the supplier is marketing its products.
(c) In any dispute as to whether a supplier has acted with good cause as required by this Code section, the supplier shall have the burden of proof to establish that good cause existed.
(a) Except as provided in subsection (d) of this Code section, a supplier shall provide a multiline dealer at least 120 days' prior written notice of any intention to amend, terminate, cancel, or decline to renew any agreement. The notice shall state all the reasons for the intended amendment, termination, cancellation, or nonrenewal.
(b) Where such reason or reasons relate to a condition or conditions which may be rectified by action of the multiline dealer, he shall have 75 days in which to take such action and, within such 75 day period, shall give written notice to the supplier if and when such action is taken. If such condition or conditions have been rectified by action of the multiline dealer, then the proposed amendment, termination, cancellation, or nonrenewal shall be void and without legal effect. However, where the supplier contends that action on the part of the multiline dealer has not rectified one or more of such conditions, such supplier must give written notice thereof to the multiline dealer within 15 days after the dealer gave notice to the supplier of the action taken.
(c) During the 120 day notice period provided for in subsection (a) of this Code section, the multiline dealer shall have the right to contract for a transfer of his or her business to another person who meets the material and reasonable qualifications and standards required by the supplier of its multiline dealers. The multiline dealer shall give notice of any such transfer to the supplier at least 45 days prior to the expiration of the 120 day notice period.
(d) An agreement may be immediately terminated, amended, canceled, or allowed to expire and no notice shall be required if the reason for the amendment, termination, cancellation, or nonrenewal is:
(1) The bankruptcy or receivership of the multiline dealer;
(2) An assignment for the benefit of the creditors or similar disposition of the assets of the business, other than the creation of a security interest in the assets of a multiline dealer for the purpose of securing financing in the ordinary course of business;
(3) Willful or intentional misrepresentation made by the multiline dealer with the express intent to defraud the supplier;
(4) Failure of the multiline dealer to conduct its customary sales and service operations during its customary business hours for seven consecutive business days, unless such failure has resulted from acts of God, casualties, strikes, or other similar circumstances beyond the multiline dealer's reasonable control;
(5) Failure to pay any undisputed amount due the supplier continuing for 30 days after written notice thereof; or
(6) A final conviction of the multiline dealer of a felony.
(a) No supplier shall unreasonably withhold or delay consent to any transfer of the multiline dealer's business or transfer of the stock or other interest in the dealership whenever the transferee meets the material and reasonable qualifications and standards required in supplying its multiline dealers. Should a supplier determine that a proposed transferee does not meet its qualifications and standards, it shall give the multiline dealer written notice thereof, stating the specific reasons for withholding consent. No prospective transferee shall be disqualified to be a multiline dealer because it is a publicly held corporation. A supplier shall have 45 days to consider a multiline dealer's request to make a transfer under this subsection.
(b) Whenever a transfer of a multiline dealer's business occurs, the transferee shall assume all the obligations imposed on and succeed to all the rights held by the selling multiline dealer by virtue of any agreement consistent with this article between the selling multiline dealer and one or more suppliers entered into prior to the transfer.
(c) In any dispute as to whether a supplier has denied consent in violation of this Code section, the supplier shall have the burden of proving a substantial and reasonable justification for the denial of consent.
Notices required by this article shall be sent by certified or registered mail or statutory overnight delivery, postage prepaid.
No supplier shall require or prohibit any change in management or personnel of any multiline dealer unless the current or potential management or personnel fails to meet reasonable qualifications and standards required by the supplier for its multiline dealers.
The provisions of this article shall be deemed to be incorporated into every agreement subject to this article and shall supersede and control all other provisions of any agreement inconsistent with this article. No supplier shall require any multiline dealer to waive compliance with any provision of this article. Any provision or agreement purporting to do so is void and unenforceable to the extent of the waiver or variance. Nothing in this article shall be construed to limit or prohibit good faith settlements of disputes voluntarily entered into between the parties.
(a) Every agreement entered into under the provisions of this article shall impose on the parties the obligation to act in good faith and deal fairly.
(b) This article shall impose on every term and provision of any agreement a requirement of reasonableness. Every term or provision of any agreement shall be interpreted so that the requirements or obligations imposed therein are reasonable.
(a) Venue to hear and determine cases and controversies arising under the provisions of this article shall be in the superior court of the county wherein the multiline dealer has its principal place of business. The court may grant equitable relief as is necessary to remedy the effects of conduct which it finds to exist and which is prohibited under this article, including, but not limited to, declaratory judgment and injunctive relief.
(b) In addition to any other remedies available at law or in equity, if a supplier has attempted or accomplished an annulment, cancellation, or termination or has refused to continue or renew an agreement without good cause or has withheld or delayed consent in violation of Code Section 10-1-732 or Code Section 10-1-734, then the multiline dealer shall be entitled to recover losses and damages, both general and special, proximately resulting therefrom, together with the costs of the action and reasonable legal fees. Such damages shall include compensation for the value of the agreement and the loss of good will of the multiline dealer's business, if any, arising therefrom.
(c) No supplier may cancel, terminate, or refuse to continue to renew an agreement during the period set forth in this article or during the pendency of litigation or arbitration with respect thereto except under the conditions set forth in subsection (d) of Code Section 10-1-733.
The provisions of this article shall apply to any agreements entered into on or after July 1, 1989. The provisions of this article shall also apply to any agreement modified or amended on or after July 1, 1989. The provisions of this article are also applicable to any renewal or amendment of such agreements.
This article shall be known as the “Georgia Trade Secrets Act of 1990.”
As used in this article, the term:
(1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering of a trade secret not acquired by misappropriation or independent development shall not be considered improper means.
(2) “Misappropriation” means:
(A) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(B) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(i) Used improper means to acquire knowledge of a trade secret;
(ii) At the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was:
(I) Derived from or through a person who had utilized improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(iii) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
(3) “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for profit or not for profit legal or commercial entity.
(4) “Trade secret” means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
(A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in appropriate circumstances for reasons including, but not limited to, an elimination of commercial advantage that otherwise would be derived from the misappropriation or where the trade secret ceases to exist due to the fault of the enjoined party or others by improper means.
(b) In exceptional circumstances, if the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
(c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
(d) In no event shall a contract be required in order to maintain an action or to obtain injunctive relief for misappropriation of a trade secret.
(a) In addition to or in lieu of the relief provided by Code Section 10-1-762, a person is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. If neither damages nor unjust enrichment caused by the misappropriation are proved by a preponderance of the evidence, the court may award damages caused by misappropriation measured in terms of a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret for no longer than the period of time for which use could have been prohibited.
(b) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a) of this Code section.
(c) In no event shall a contract be required in order to maintain an action or to recover damages for misappropriation of a trade secret.
If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys' fees to the prevailing party.
In an action under this article, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
An action for misappropriation must be brought within five years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this Code section, a continuing misappropriation by any person constitutes a single claim against that person, but this Code section shall be applied separately to the claim against each person who receives a trade secret from another person who misappropriated that trade secret.
(a) Except as provided in subsection (b) of this Code section, this article shall supersede conflicting tort, restitutionary, and other laws of this state providing civil remedies for misappropriation of a trade secret.
(b) This article shall not affect:
(1) Contractual duties or remedies, whether or not based upon misappropriation of a trade secret; provided, however, that a contractual duty to maintain a trade secret or limit use of a trade secret shall not be deemed void or unenforceable solely for lack of a durational or geographical limitation on the duty;
(2) Other civil remedies that are not based upon misappropriation of a trade secret; or
(3) The definition of a trade secret contained in Code Section 16-8-13, pertaining to criminal offenses involving theft of a trade secret or criminal remedies, whether or not based upon misappropriation of a trade secret.
As used in this article, the term:
(1) “Claims in the patent” means the extent of protection conferred by a patent.
(2) “Demand letter” means a letter, e-mail, or other written communication asserting or claiming that the target has engaged in patent infringement.
(3) “Target” means a person:
(A) Who has received a demand letter or against whom an assertion or allegation of patent infringement has been made;
(B) Who has been threatened with litigation or against whom a lawsuit has been filed alleging patent infringement; or
(C) Whose customers have received a demand letter asserting that use of such person's product, service, or technology infringes a patent.
(a) A person shall not make a bad faith assertion of patent infringement.
(b) A court may consider the following factors as evidence that a person has made a bad faith assertion of patent infringement:
(1) The demand letter does not contain the following information:
(A) The patent number;
(B) The name and address of the patent owner or owners and assignee or assignees, if any; and
(C) Factual allegations concerning the specific areas in which the target's products, services, and technology infringe the patent or are covered by the claims in the patent;
(2) Prior to sending the demand letter, the person fails to conduct an analysis comparing the claims in the patent to the target's products, services, and technology, or such an analysis was done but does not identify specific areas in which the products, services, and technology are covered by the claims in the patent;
(3) The demand letter lacks the information described in paragraph (1) of this subsection, the target requests such information, and the author of the demand letter fails to provide such information within a reasonable period of time;
(4) The demand letter demands payment of a license fee or response within an unreasonably short period of time;
(5) The person offers to license the patent for an amount that is not based on a reasonable estimate of the value of the patent;
(6) The claim or assertion of patent infringement is meritless, and the person knew, or should have known, that the claim or assertion is meritless;
(7) The claim or assertion of patent infringement is deceptive;
(8) The person or its subsidiaries or affiliates have previously filed or threatened to file one or more lawsuits based on the same or similar claim of patent infringement and:
(A) Those threats or lawsuits lacked the information described in paragraph (1) of this subsection; or
(B) The person attempted to enforce the claim of patent infringement in litigation, and a court found the claim to be meritless; or
(9) Any other factor the court finds relevant.
(c) A court may consider the following factors as evidence that a person has not made a bad faith assertion of patent infringement:
(1) The demand letter contains the information described in paragraph (1) of subsection (b) of this Code section;
(2) Where the demand letter lacks the information described in paragraph (1) of subsection (b) of this Code section and the target requests the information, the author of the demand letter provides the information within a reasonable period of time;
(3) The author of the demand letter engages in a good faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy;
(4) The author of the demand letter makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent;
(5) The author of the demand letter is:
(A) The inventor or joint inventor of the patent or, in the case of a patent filed by and awarded to an assignee of the original inventor or joint inventor, is the original assignee; or
(B) An institution of higher education or a technology transfer organization owned or affiliated with an institution of higher education;
(6) The author of the demand letter has:
(A) Demonstrated good faith business practices in previous efforts to enforce the patent, or a substantially similar patent; or
(B) Successfully enforced the patent, or a substantially similar patent, through litigation; or
(7) Any other factor the court finds relevant.
If proceedings are initiated in a court of competent jurisdiction by the author of a demand letter or the author's agent, principal, client, or employee, a target may move that a bad faith assertion of patent infringement has been made in violation of this article and request that a protective order be issued as described in this Code section. Upon such motion and a finding by the court that a target has established a reasonable likelihood that an author of a demand letter has made a bad faith assertion of patent infringement, the court shall require the author of the demand letter to post a bond in an amount equal to a good faith estimate of the target's expenses of litigation, including an estimate of reasonable attorney's fees, conditioned upon payment of any amounts finally determined to be due to the target. A hearing shall be held if either party so requests. A bond ordered pursuant to this Code section shall not exceed $250,000.00. The court may waive the bond requirement if it finds the author of the demand letter has available assets equal to the amount of the proposed bond or for other good cause shown.
(a) A violation of this article shall constitute an unfair and deceptive act or practice in the conduct of consumer transactions under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act,” and the enforcement against any such violation shall be by public enforcement by the Attorney General and shall be enforceable through private action.
(b) Whenever it may appear to the Attorney General that any person is using or has used any method, act, or practice declared by this article to be unlawful and that proceedings would be in the public interest, the Attorney General may bring action in a court of competent jurisdiction. Upon a showing by the Attorney General that a person has violated this article, the court may enter or grant any or all of the relief provided for in Code Section 10-1-397.
(c) Any person who suffers injury or damages as a result of a violation of this article may bring an action individually against the person or persons engaged in such violation under the rules of civil procedure to seek equitable injunctive relief and to recover his or her general and exemplary damages sustained as a consequence thereof in any court having jurisdiction over the defendant. Such relief may include:
(1) Restitution to any person or persons adversely affected by a defendant's actions in violation of this article;
(2) Punitive damages in an amount equal to $50,000.00 or three times the combined total of damages, costs, and fees, whichever is greater;
(3) Expenses of litigation, including reasonable attorney's fees; and
(4) Other relief as the court deems just and equitable.
(d) Except as otherwise provided, this article is cumulative with other laws and is not exclusive.
A demand letter or civil action that includes a claim for relief arising under 35 U.S.C. Section 271(e)(2) or 42 U.S.C. Section 262 shall not be subject to the provisions of this article.
This article shall be known and may be cited as the “Georgia Lemon Law.”
The General Assembly recognizes that a new motor vehicle is a major consumer purchase and that a defectively manufactured new motor vehicle is likely to create hardship for, or may cause injury to, the consumer. It is the intent of the General Assembly to create a procedure for expeditious resolution of complaints and disputes concerning nonconforming new motor vehicles, to provide a method for notifying consumers of their rights under this article, and to ensure that consumers receive information, documents, and service necessary to enable them to exercise their rights under this article. In enacting these comprehensive measures, the General Assembly intends to encourage manufacturers to take all steps necessary to correct nonconformities in new motor vehicles and to create the proper blend of private and public remedies necessary to enforce this article.
Unless the context clearly requires otherwise, as used in this article, the term:
(1) “Adjusted capitalized cost” means the amount shown as the adjusted capitalized cost in the lease agreement.
(2) “Attorney General” means the Attorney General or his or her designee.
(3) “Authorized agent” means any person, including a franchised motor vehicle dealer, who is authorized by the manufacturer to service motor vehicles.
(4) “Collateral charges” means charges incurred by a consumer as a result of the purchase of a new motor vehicle including, but not limited to, charges attributable to factory or dealer installed options, sales tax and title charges, and earned finance charges.
(5) “Consumer” means each of the following:
(A) A person who purchases or leases a new motor vehicle for personal, family, or household use and not for the purpose of selling or leasing the new motor vehicle to another person; and
(B) A person who purchases or leases ten or fewer new motor vehicles a year for business purposes other than limousine rental services.
(6) “Days” means calendar days.
(7) “Express warranty” means a warranty which is given by the manufacturer in writing.
(8) “Incidental costs” means any reasonable expenses incurred by a consumer in connection with the repair of a new motor vehicle, including, but not limited to, payments to new motor vehicle dealers for the attempted repair of nonconformities, towing charges, and the costs of obtaining alternative transportation.
(9) “Informal dispute settlement mechanism” means any procedure established, employed, utilized, or sponsored by a manufacturer for the purpose of resolving disputes with consumers under this article.
(10) “Lemon law rights period” means the period ending two years after the date of the original delivery of a new motor vehicle to a consumer or the first 24,000 miles of operation after delivery of a new motor vehicle to the original consumer, whichever occurs first. The lemon law rights period shall be extended by one day for each day that repair services are not available to the consumer as a direct result of a strike, war, invasion, terrorist act, blackout, fire, flood, other disaster, or declared state of emergency.
(11) “Lessee” means any consumer who enters into a written lease agreement or contract to lease a new motor vehicle for a period of at least one year and is responsible for repairs to such vehicle.
(12) “Lessee cost” means the aggregate payment made by the lessee at the inception of the lease agreement or contract, inclusive of any allowance for a trade-in vehicle, and all other lease payments made by or on behalf of the lessee to the lessor.
(13) “Lessor” means a person who holds title to a new motor vehicle that is leased to a consumer under a written lease agreement or contract or who holds the lessor's rights under such agreement.
(14) “Manufacturer” means any person engaged in the business of constructing or assembling new motor vehicles or engaged in the business of importing or receiving imports of new motor vehicles into the United States for the purpose of selling or distributing them to new motor vehicle dealers.
(15) “New motor vehicle” means any self-propelled vehicle primarily designed for the transportation of persons or property over the public highways that was leased, purchased, or registered in this state by the consumer or lessor to whom the original motor vehicle title was issued without previously having been issued to any person other than a new motor vehicle dealer. The term “new motor vehicle” does not include any vehicle on which the title and other transfer documents show a used, rather than new, vehicle. The term “new motor vehicle” also does not include trucks with more than 12,000 pounds gross vehicle weight rating, motorcycles, or golf carts. If a new motor vehicle is a motor home, this article shall apply to the self-propelled vehicle and chassis, but does not include those portions of the vehicle designated, used, or maintained primarily as living quarters, office, or commercial space.
(16) “New motor vehicle dealer” means a person who holds a dealer agreement with a manufacturer for the sale of new motor vehicles, who is engaged in the business of purchasing, selling, servicing, exchanging, leasing, or dealing in new motor vehicles, or who is licensed or otherwise authorized to utilize trademarks or service marks associated with one or more makes of motor vehicles in connection with such sales.
(17) “Nonconformity” means a defect, a serious safety defect, or a condition, any of which substantially impairs the use, value, or safety of a new motor vehicle to the consumer or renders the new motor vehicle nonconforming to a warranty. A nonconformity does not include a defect, a serious safety defect, or a condition that is the result of abuse, neglect, or unauthorized modification or alteration of the new motor vehicle.
(18) “Panel” means the new motor vehicle arbitration panel as designated in this article.
(19) “Person” shall have the same meaning as provided in Code Section 10-1-392.
(20) “Purchase price” means, in the case of a sale of a new motor vehicle to a consumer, the cash price of the new motor vehicle appearing in the sales agreement or contract, inclusive of any reasonable allowance for a trade-in vehicle. In the case of a lease executed by a consumer, “purchase price” refers to the agreed upon value of the vehicle as shown in the lease agreement or contract.
(21) “Reacquired vehicle” means a new motor vehicle with an alleged nonconformity that has been replaced or repurchased by the manufacturer as the result of any court order or judgment, arbitration decision, voluntary settlement entered into between a manufacturer and the consumer, or voluntary settlement between a new motor vehicle dealer and a consumer in which the manufacturer directly or indirectly participated.
(22) “Reasonable number of attempts” under the lemon law rights period shall be as set forth in subsection (a) of Code Section 10-1-784.
(23) “Reasonable offset for use” means an amount calculated by multiplying the purchase price of a vehicle by the number of miles directly attributable to consumer use as of the date on which the consumer first delivered the vehicle to the manufacturer, its authorized agent, or the new motor vehicle dealer for repair of a nonconformity and dividing the product by 120,000, or in the case of a motor home 90,000.
(24) “Replacement motor vehicle” means a new motor vehicle that is identical or at least equivalent to the motor vehicle to be replaced as the motor vehicle to be replaced existed at the time of purchase or execution of the lease.
(25) “Serious safety defect” means a life-threatening defect or a malfunction that impedes the consumer's ability to control or operate the motor vehicle for ordinary use or reasonable intended purposes or creates a risk of fire or explosion.
(26) “Superior court” means the superior court in the county where the consumer resides, except if the consumer does not reside in this state, then the superior court in the county where an arbitration hearing was conducted pursuant to this article.
(27) “Warranty” means any manufacturer's express warranty or any affirmation of fact or promise made by the manufacturer in connection with the sale of a new motor vehicle to a consumer concerning the vehicle's materials, workmanship, operation, or performance which becomes part of the basis of the bargain. The term shall not include any extended coverage purchased by the consumer as a separate item or any statements made by the dealer in connection with the sale of a motor vehicle to a consumer which relate to the nature of the material or workmanship and affirm or promise that such material or workmanship is free of defects or will meet a specified level of performance.
(a) The manufacturer shall publish an owner's manual and provide it to the new motor vehicle dealer. The owner's manual shall include a clear and conspicuous listing of addresses, e-mail addresses, facsimile numbers, and toll-free telephone numbers for the manufacturer's customer service personnel who are authorized to direct activities regarding repair of the consumer's vehicle. A manufacturer shall also provide all applicable manufacturer's written warranties to the new motor vehicle dealer, who shall transfer the owner's manual and all applicable manufacturer's written warranties to the consumer at the time of purchase or vehicle acquisition.
(b) At the time of purchase or vehicle acquisition, the new motor vehicle dealer shall provide the consumer with a written statement that explains the consumer's rights under this article. The statement shall be written by the Attorney General and shall contain information regarding the procedures and remedies under this article.
(c) By October 1 of each year, the manufacturer shall forward to the Attorney General one copy of the owner's manual and the express warranty for each make and model of current year new motor vehicles it sells in this state. To the extent the instructions, terms, and conditions in the owner's manuals and express warranties for other models of the same make are substantially the same, submission of the owner's manual and express warranty for one model and a list of all other models for that make will satisfy the requirements of this subsection.
(d) Each time the consumer's new motor vehicle is returned from being diagnosed or repaired, the manufacturer, its authorized agent, or the new motor vehicle dealer shall provide to the consumer a fully itemized and legible statement or repair order containing a general description of the problem reported by the consumer; the date and the odometer reading when the vehicle was submitted for repair; the date and odometer reading when the vehicle was made available to the consumer; the results of any diagnostic test, inspection, or test drive; a description of any diagnosis or problem identified by the manufacturer, its authorized agent, or the new motor vehicle dealer; and an itemization of all work performed on the vehicle, including, but not limited to, parts and labor.
(e) Upon request of the consumer, the manufacturer, its authorized agent, or the new motor vehicle dealer shall provide a copy of any report or computer reading compiled by the manufacturer's representative regarding inspection, diagnosis, or test drive of the consumer's new motor vehicle.
(a)(1) If a consumer reports a nonconformity during the lemon law rights period, the manufacturer, its authorized agent, or the new motor vehicle dealer shall be allowed a reasonable number of attempts to repair and correct the nonconformity. A reasonable number of attempts shall be deemed to have been undertaken by the manufacturer, its authorized agent, or the new motor vehicle dealer if, during the lemon law rights period:
(A) A serious safety defect has been subject to repair one time and the serious safety defect has not been corrected;
(B) The same nonconformity has been subject to repair three times and the nonconformity has not been corrected; or
(C) The vehicle is out of service by reason of repair of one or more nonconformities for a cumulative total of 30 days.
If the vehicle is being repaired by the manufacturer through an authorized agent or a new motor vehicle dealer on the date that the lemon law rights period expires, the lemon law rights period shall be extended until that repair attempt has been completed.
(2)(A) If the manufacturer through an authorized agent or a new motor vehicle dealer is unable to repair and correct a nonconformity after a reasonable number of attempts, the consumer shall notify the manufacturer by statutory overnight delivery or certified mail, return receipt requested, of the need to repair and correct the nonconformity. The notice shall be sent to the address provided by the manufacturer in the owner's manual. The manufacturer shall have 28 days from its receipt of the notice to make a final attempt to repair and correct the nonconformity.
(B) By not later than the close of business on the seventh day following receipt of notice from the consumer, the manufacturer shall notify the consumer of the location of a repair facility that is reasonably accessible to the consumer. By not later than the close of business on the fourteenth day following the manufacturer's receipt of notice, the consumer shall deliver the nonconforming new motor vehicle to the designated repair facility.
(C) If the manufacturer fails to notify the consumer of the location of a reasonably accessible repair facility within seven days of its receipt of notice, or fails to complete the final attempt to repair and correct the nonconformity within the 28 day time period, the requirement that it be given a final attempt to repair and correct the nonconformity shall not apply. However, if the consumer delivers the nonconforming new motor vehicle to the designated repair facility more than 14 days from the date the manufacturer receives notice from the consumer, the 28 day time period shall be extended and the manufacturer shall have 14 days from the date the nonconforming new motor vehicle is delivered to the repair facility to complete the final attempt to repair and correct the nonconformity.
(3) No manufacturer, its authorized agent, or new motor vehicle dealer may refuse to diagnose or repair any alleged nonconformity for the purpose of avoiding liability under this article.
(b)(1) If the manufacturer, through an authorized agent or new motor vehicle dealer to whom the manufacturer directs the consumer to deliver the vehicle, is unable to correct a nonconformity during the final attempt, or if a vehicle has been out of service by reason of repair of one or more nonconformities for 30 days during the lemon law rights period, the manufacturer shall, at the option of the consumer, repurchase or replace the vehicle. The consumer shall notify the manufacturer, in writing by statutory overnight delivery or certified mail, return receipt requested, of which option the consumer elects. The manufacturer shall have 20 days from receipt of the notice to repurchase or replace the vehicle.
(2)(A) If a consumer who is a lessee elects to receive a replacement motor vehicle, in addition to providing the replacement motor vehicle, the manufacturer shall pay to the lessor an amount equal to all charges that the lessor will incur as a result of the replacement transaction and shall pay the lessee an amount equal to all incidental costs that have been incurred by the lessee plus all charges that the lessee will incur as a result of the replacement transaction. If a lessee elects to receive a replacement motor vehicle, all terms of the existing lease agreement or contract shall remain in force and effect, except that the vehicle identification information contained in the lease agreement or contract shall be changed to conform to the vehicle identification information of the replacement vehicle.
(B) If a consumer who is not a lessee elects to receive a replacement motor vehicle, in addition to providing the replacement motor vehicle, the manufacturer shall pay to the consumer an amount equal to all incidental costs incurred by the consumer plus all charges that the consumer will incur as a result of the replacement transaction.
(3)(A) If a consumer who is a lessee elects a repurchase, the manufacturer shall pay to the lessee an amount equal to all payments made by the lessee under the lease agreement or contract, including, but not limited to, the lessee cost, plus all incidental costs, less a reasonable offset for use of the nonconforming new motor vehicle. The manufacturer shall pay to the lessor an amount equal to 110 percent of the adjusted capitalized cost of the nonconforming new motor vehicle. After the lessor has received payment from the manufacturer as specified in this subparagraph and payment from the consumer of all past due charges, if any, the consumer shall have no further obligation to the lessor.
(B) If a consumer who is not a lessee elects a repurchase, the manufacturer shall pay to the consumer an amount equal to the purchase price of the nonconforming new motor vehicle plus all collateral charges and incidental costs, less a reasonable offset for use of the nonconforming new motor vehicle. Payment shall be made to the consumer and lienholder of record, if any, as their interests may appear on the records of ownership.
(a)(1) If a manufacturer does not replace or repurchase a nonconforming new motor vehicle after being requested to do so under subsection (b) of Code Section 10-1-784, the consumer may move to compel replacement or repurchase by applying for arbitration pursuant to Code Section 10-1-786. However, if a manufacturer has established an informal dispute settlement mechanism which the Attorney General has certified as complying with the provisions and rules of this article, the consumer shall be eligible to apply for arbitration only after submitting a dispute under this article to the informal dispute settlement mechanism.
(2) A consumer must file a claim with the manufacturer's certified informal dispute settlement mechanism no later than one year after expiration of the lemon law rights period.
(3) After a decision has been rendered by the certified informal dispute settlement mechanism, the consumer is eligible to apply for arbitration pursuant to Code Section 10-1-786.
(4) If a decision is not rendered by the certified informal dispute settlement mechanism within 40 days of filing, the requirement that the consumer submit his or her dispute to the certified informal dispute settlement mechanism shall not apply and the consumer is eligible to apply for arbitration under Code Section 10-1-786.
(b) Certified informal dispute settlement mechanisms shall be required to take into account the principles contained in and any rules promulgated under this article and shall take into account all legal and equitable factors germane to a fair and just decision. A decision shall include any remedies appropriate under the circumstances, including repair, replacement, refund, and reimbursement for collateral charges and incidental costs. For purposes of this Code section, the phrase “take into account the principles contained in and any rules promulgated under this article” means to be aware of the provisions of this article, to understand how they might apply to the circumstances of the particular dispute, and to apply them if it is appropriate and fair to both parties to do so.
(c) A certified informal dispute settlement mechanism shall keep such records as prescribed by the Attorney General in rules promulgated under this article and shall allow the Attorney General, without notice, to inspect and obtain copies of the records. Copies of any records requested by the Attorney General shall be provided promptly to the Attorney General at no cost.
(d) A manufacturer may apply to the Attorney General for certification of its informal dispute settlement mechanism. The Attorney General may, in his or her discretion, impose requirements on an informal dispute settlement mechanism in order for it to be certified. Within a reasonable time following receipt of the application, the Attorney General shall certify the informal dispute settlement mechanism or notify the manufacturer of the reason or reasons for denial of the requested certification.
(e) At any time the Attorney General has reason to believe that a certified informal dispute settlement mechanism is no longer in compliance with this article, he or she may notify the manufacturer of intent to revoke the informal dispute settlement mechanism's certification. The notice shall contain a statement of the reason or reasons for the revocation.
(f) The manufacturer shall have ten days from its receipt of notice of denial of requested certification or notice of intent to revoke certification to submit a written request for a hearing to contest the denial or intended revocation. If a hearing is requested, it shall be held within 30 days of the Attorney General's receipt of the hearing request. The hearing shall be conducted by the Office of State Administrative Hearings following the procedures set forth in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(g) No representation shall be made to a consumer that his or her dispute must be submitted to an informal dispute settlement mechanism that is not certified by the Attorney General pursuant to this Code section.
(a) A consumer shall request arbitration by filing a written application for arbitration with the Attorney General. The application must be filed no later than one year from the date of expiration of the lemon law rights period or 60 days from the conclusion of the certified informal dispute settlement mechanism's proceeding, whichever occurs later.
(b)(1) After receiving an application for arbitration, the Attorney General shall determine whether the dispute is eligible for arbitration. Manufacturers shall be required to submit to arbitration under this article if the consumer's dispute is deemed eligible for arbitration by the Attorney General. Disputes deemed eligible for arbitration shall be assigned to an arbitrator or arbitrators appointed pursuant to Code Section 10-1-789.
(2)(A) A consumer whose dispute is determined to be ineligible for arbitration by the Attorney General may appeal the determination of ineligibility to an arbitrator or arbitrators appointed pursuant to Code Section 10-1-789.
(B) If the arbitrator or arbitrators determine that the consumer's dispute is eligible for arbitration, the arbitrator or arbitrators shall retain jurisdiction and the consumer's dispute shall proceed in accordance with this Code section.
(C) If the arbitrator or arbitrators determine that the consumer's dispute is not eligible for arbitration, a written decision shall be prepared and sent to the consumer and manufacturer by certified mail, return receipt requested.
(D) The decision of ineligibility may be appealed by the consumer under the provisions set forth in subsection (a) of Code Section 10-1-787. On appeal, the court shall consider only the issue of eligibility for arbitration.
(3) If the court finds that a consumer's appeal from a determination of ineligibility is frivolous or has been filed in bad faith or for the purpose of harassment, the court may require the consumer to pay to the Attorney General all costs incurred as a direct result of the appeals from the Attorney General's determination of ineligibility.
(c) A lessee shall notify the lessor of the pending arbitration, in writing, within ten days of the lessee's receipt of notice that a dispute has been deemed eligible for arbitration and shall provide to the arbitrator or arbitrators proof that notice was given to the lessor. Within ten days of its receipt of notice from the lessee, a lessor may petition the arbitrator or arbitrators to be a party to the arbitration proceeding.
(d) The arbitrator or arbitrators shall make every effort to conduct the arbitration hearing within 40 days from the date the dispute is deemed eligible for arbitration. The hearing shall be held at a location that is reasonably convenient to the Georgia consumer. Failure to hear the case within 40 days shall not divest authority of the arbitrator or arbitrators to hear the dispute or void any decision ultimately rendered.
(e) If the arbitrator or arbitrators determine:
(1) That a reasonable number of attempts has been undertaken to repair and correct the nonconformity and that the manufacturer was given the opportunity to make a final attempt to repair and correct the nonconformity and was unable to correct it; or
(2) That a new motor vehicle was out of service by reason of repair of one or more nonconformities for a cumulative total of 30 days within the lemon law rights period,
the consumer shall be awarded replacement or repurchase of the new motor vehicle as provided under Code Section 10-1-784. The arbitrator or arbitrators also may award attorney's fees and technical or expert witness fees to a consumer who prevails.
(f) The decision of the arbitrator or arbitrators shall be in writing, be signed, and contain findings of fact and conclusions of law. The original signed decision shall be filed with the Attorney General and copies shall be sent to all parties. The filing of the decision with the Attorney General constitutes entry of the decision.
(g) A decision of the arbitrator or arbitrators that has become final under the provisions of subsection (a) of Code Section 10-1-787 may be filed with the clerk of the superior court, shall have all the force and effect of a judgment or decree of the court, and may be enforced in the same manner as any other judgment or decree.
(h) No arbitrator may be required to testify concerning any arbitration and the arbitrator's notes or other records are not subject to discovery. This provision does not extend to testimony or documents sought in connection with legal claims brought against an arbitrator arising out of an arbitration proceeding.
(a) The decision of the arbitrator or arbitrators is final unless a party to the arbitration, within 30 days of entry of the decision, appeals the decision to the superior court. A party who appeals a decision shall follow the procedures set forth in Chapter 3 of Title 5, and any appeal shall be de novo; however, the decision of the arbitrator or arbitrators shall be admissible in evidence.
(b) If the manufacturer appeals, the court may require the manufacturer to post security for the consumer's financial loss due to the passage of time for review.
(c) If the manufacturer appeals and the consumer prevails, recovery, in addition to the arbitrator's award, shall include all charges incurred by the consumer during the pendency of, or as a result of, the appeal, including, but not limited to, continuing collateral and incidental costs, technical or expert witness fees, attorney's fees, and court costs.
(d) A manufacturer which does not appeal a decision in favor of a consumer must fully comply with the decision within 40 days of entry thereof. If a manufacturer does not fully comply within the 40 day time period, the Attorney General may issue an order imposing a civil penalty of up to $1,000.00 per day for each day that the manufacturer remains out of compliance. The provisions of Code Sections 10-1-398 and 10-1-398.1 shall apply in connection with the imposition of a civil penalty under this subsection. It shall be an affirmative defense to the imposition of a civil penalty under this subsection that a delay or failure to comply was beyond the manufacturer's control or that a delay was acceptable to the consumer.
The provisions of this article are not available to a consumer in a civil action unless the consumer has first exhausted all remedies provided for in this article.
(a) A motor vehicle arbitration panel shall resolve disputes between consumers and manufacturers arising under this article. The Attorney General, in his or her discretion, may operate the panel by contracting with public or private entities to conduct arbitrations under this article or by appointing individuals to serve as panel member arbitrators. An arbitrator shall be licensed to practice law in the State of Georgia and a member in good standing of the State Bar of Georgia or shall have at least two years' experience in professional arbitration or dispute resolution. No arbitrator shall be affiliated with or involved in the manufacture, distribution, sale, lease, or servicing of motor vehicles.
(b) Panel member arbitrators and entities that contract with the Attorney General to provide arbitration services shall be compensated for time and expenses at a rate to be determined by the Attorney General.
(c) Each arbitration proceeding shall be conducted by either one or three arbitrators, each of whom is to be assigned by the Attorney General or contracted entity.
(d) Neither the Attorney General, an entity with which the Attorney General has contracted, nor any arbitrator shall be civilly liable for any decision, action, statement, or omission made in connection with any proceeding under this article, except in circumstances where the decision, action, statement, or omission was made with malice or gross negligence.
(a) No manufacturer, its authorized agent, new motor vehicle dealer, or other transferor shall knowingly resell, either at wholesale or retail, lease, transfer a title, or otherwise transfer a reacquired vehicle, including a vehicle reacquired under a similar statute of any other state, unless the vehicle is being sold for scrap and the manufacturer has notified the Attorney General of the proposed sale or:
(1) The fact of the reacquisition and nature of any alleged nonconformity are clearly and conspicuously disclosed in writing to the prospective transferee, lessee, or buyer; and
(2) The manufacturer warrants to correct such nonconformity for a term of one year or 12,000 miles, whichever occurs first.
A knowing violation of this subsection shall constitute an unfair or deceptive act or practice in the conduct of consumer transactions under Part 2 of Article 15 of Chapter 1 of Title 10 and will subject the violator to an action by a consumer under Code Section 10-1-399.
(b) The manufacturer shall have 30 days to notify the Attorney General that a vehicle has been reacquired in this state under the provisions of this article. The notice shall be legible and include, at a minimum, the vehicle year, make, model, and identification number; the date and mileage at the time the vehicle was reacquired; the nature of the alleged nonconformity; the reason for reacquisition; and the name and address of the original consumer. When the manufacturer resells, leases, transfers, or otherwise disposes of a reacquired vehicle, the manufacturer shall, within 30 days of the resale, lease, transfer, or disposition, notify the Attorney General of the vehicle year, make, model, and identification number; the date of the sale, lease, transfer, or disposition of the vehicle; and the name and address of the buyer, lessee, or transferee.
(c) If a manufacturer resells, leases, transfers, or otherwise disposes of a motor vehicle in this state that it reacquired under a similar statute of any other state, the manufacturer shall, within 30 days of the resale, lease, transfer, or disposition, notify the Attorney General of the transaction. The contents of the notice shall comply with the requirements of subsection (b) of this Code section.
(d) Manufacturers shall use forms approved by the Attorney General. The forms shall contain the information required under this Code section and any other information the Attorney General deems necessary for implementation of this Code section.
(a) A fee of $3.00 shall be collected by the new motor vehicle dealer from the consumer at completion of a sale or execution of a lease of each new motor vehicle. The fee shall be forwarded quarterly to the Department of Law for deposit in the new motor vehicle arbitration account created in the state treasury. The payments are due and payable the first day of the month in each quarter for the previous quarter's collection and shall be mailed by the new motor vehicle dealer not later than the twentieth day of such month. The first day of the month in each quarter is July 1, October 1, January 1, and April 1 for each year. Consumer fees in the account shall be used for the purposes of this article. Funds in excess of the appropriated amount remaining in the new motor vehicle arbitration account at the end of each fiscal year shall be transferred to the general treasury. The new motor vehicle dealer shall retain $1.00 of each fee collected to cover administrative costs.
(b) The Attorney General shall have the power to enforce the provisions of this Code section. The Attorney General's enforcement power shall include:
(1) The authority to investigate alleged violations through use of all investigative powers available under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975”; and
(2) The authority to initiate proceedings, pursuant to Code Section 10-1-397, in the event of a violation of this Code section. Such proceedings include, without limitation, issuance of a cease and desist order, a civil penalty order imposing a civil penalty up to a maximum of $2,000.00 for each violation, and proceedings to seek additional relief in any superior court of competent jurisdiction. The provisions of Code Sections 10-1-398, 10-1-398.1, 10-1-402, and 10-1-405 shall apply to proceedings initiated by the Attorney General under this Code section.
(a) Except as provided in subsection (a) of Code Section 10-1-790, this article shall not create or give rise to any cause of action by manufacturers or consumers against new motor vehicle dealers. No new motor vehicle dealer shall be held liable by a manufacturer or a consumer for any collateral charges, incidental charges, costs, purchase price refunds, or vehicle replacements. Manufacturers and consumers shall not make new motor vehicle dealers party to an arbitration proceeding or any other proceeding under this article. A new motor vehicle dealer that is named as a party in any proceeding brought by a consumer or a manufacturer under this article, except as provided in subsection (a) of Code Section 10-1-790, shall be entitled to an award of reasonable attorney's fees and expenses of litigation incurred in connection with such proceeding.
(b) The provisions of this article shall not impair any obligation under any manufacturer-dealer franchise agreement; provided, however, that any provision of any manufacturer-dealer franchise agreement which attempts to shift any duty, obligation, responsibility, or liability imposed upon a manufacturer by this article to a new motor vehicle dealer, either directly or indirectly, shall be void and unenforceable, except for any liability imposed upon a manufacturer by this article which is directly caused by the gross negligence of the dealer in attempting to repair the motor vehicle after such gross negligence has been determined by the hearing officer, as provided in Article 22 of this chapter, the “Georgia Motor Vehicle Franchise Practices Act.”
(a) A violation of this article shall constitute an unfair and deceptive act or practice in the conduct of consumer transactions under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975”; provided, however, that enforcement against such violations shall be by public enforcement by the Attorney General and, except as provided in subsection (a) of Code Section 10-1-790, shall not be enforceable through private action under Code Section 10-1-399.
(b) Except as otherwise provided, this article is cumulative with other laws and is not exclusive. The rights and remedies provided for in this article shall be in addition to any other rights and remedies that are otherwise available to a consumer under any other law.
The Attorney General shall promulgate rules and regulations and establish procedures necessary to carry into effect, implement, and enforce the provisions of this article. The authority granted to the Attorney General pursuant to this Code section shall be exercised at all times in conformity with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
Any agreement entered into by a consumer that waives, limits, or disclaims the rights set forth in this article shall be unenforceable as contrary to public policy.
Rules, orders, actions, and regulations previously adopted which relate to functions performed by the administrator appointed pursuant to Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975,” which were transferred under this article to the Attorney General shall remain of full force and effect as rules, orders, actions, and regulations of the Attorney General until amended, repealed, or superseded by rules or regulations adopted by the Attorney General.
This article shall be known and may be cited as the “Farm Tractor Warranty Act.”
As used in this article, the term:
(1) “Consumer” means a purchaser, other than for purposes of resale, of a new farm tractor, a person to whom the new farm tractor is transferred for the same purposes during the duration of an express warranty applicable to the farm tractor, and any other person entitled by the terms of the warranty to enforce the terms of the warranty. In the case of an agricultural vehicle within the warranty period, the sale must be made through an authorized farm tractor dealer.
(2) “Farm tractor” means any self-propelled vehicle which is designed primarily for pulling or propelling agricultural machinery and implements and is used principally in the occupation or business of farming, including an implement of husbandry that is self-propelled, excluding forestry equipment and equipment designed primarily for construction purposes.
(3) “Manufacturer” means a person engaged in the business of manufacturing, assembling, or distributing farm tractors who, under normal business conditions during the year, manufactures, assembles, or distributes to dealers at least ten new farm tractors.
(4) “Manufacturer's express warranty” or “warranty” means the written warranty of the manufacturer of a new farm tractor of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.
(5) “Nonconformity” means any condition of the farm tractor that makes it impossible to use for the purpose for which it was designed or manufactured.
(6) “Reasonable allowance for prior use” means the number of field hours performed by the farm equipment, divided by eight field hours per day, multiplied by 50 percent of the daily reasonable rental rate, referenced by model, in the most current North American Equipment Dealers Association Official Guide.
The manufacturer must supply to the dealer and the dealer must present directly to the consumer at the time of purchase a written notice stating, in ten-point all-capital type, in substantially the following form:
“This equipment is subject to Article 29 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, entitled the ‘Farm Tractor Warranty Act.’ To be entitled to a refund or replacement, you must first notify the manufacturer or its agent and the authorized dealer which was a party to the sale of the problem in writing and give them an opportunity to repair the equipment.
| Manufacturer | Agent | Dealer | | --- | --- | --- | | Name | Name | Name | | Address | Address | Address | | Telephone number | Telephone number | Telephone number” |
If the farm tractor does not conform to applicable express written warranties and the consumer reports the nonconformity to the manufacturer and its authorized dealer within 18 months of the date of the original delivery of the farm tractor to the consumer, the manufacturer or its authorized dealers shall make the repairs necessary to make the farm tractor conform to the express written warranties, notwithstanding that the repairs are made after the expiration of the warranty term or the 18 month period.
(a) If the manufacturer or its authorized dealers are unable to make the farm tractor conform to any applicable express written warranty by repairing or correcting any condition which substantially impairs the use or market value of the farm tractor to the consumer within the time periods and after the number of attempts specified in subsection (c) of this Code section, the manufacturer, through its authorized dealer who sold the farm tractor, shall, at the option of the consumer, replace the farm tractor with a comparable farm tractor, charging the consumer only a reasonable allowance for the consumer's use of the farm tractor, or accept the return of the farm tractor from the consumer and refund to the consumer the cash purchase price, including sales tax, license fees, registration fees, and any similar governmental charges, less a reasonable allowance for prior use. Refunds shall be made to the consumer and lienholder, if any, as their interests may appear in the county superior court clerk's office. If no replacement or refund is made, the consumer may bring a civil action against the manufacturer to enforce the obligation. No action may be brought unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has been offered the opportunities, as set forth in subsection (c) of this Code section, to cure the condition alleged within a reasonable time that is not to exceed 30 business days.
(b) No dealer or distributor shall be held liable by the manufacturer or by the consumer for any collateral charges, damages, costs, purchase price refunds, or replacements, and manufacturers and consumers shall not have a cause of action against a dealer or distributor.
(c) The replacement or refund obligation specified in subsection (a) of this Code section shall arise if the manufacturer or its authorized dealers are unable to make the farm tractor conform to applicable express written warranties within 18 months of the original physical delivery of the farm tractor to the consumer and the same nonconformity has been subject to repair four or more times by the manufacturer or its authorized dealers, but such nonconformity continues to exist or the farm tractor is out of service by reason of repair of the same nonconformity for a cumulative total of 30 or more business days when the service department of the authorized dealer in possession of the farm tractor is open for purposes of repair, provided that days when the consumer has been provided by the manufacturer or its authorized dealers with the use of another farm tractor which performs the same function shall not be counted.
The 18 month period and the 30 day repair period shall be extended by any period of time during which repair services or replacement parts are not available to the consumer because of a war, invasion, strike, fire, flood, or other natural disaster.
(a) If a manufacturer has established, or participates in, an informal dispute settlement procedure which substantially complies with the provisions of the Code of Federal Regulations, Title 16, Part 703, as amended, and the requirements of this Code section, the provisions of Code Section 10-1-814 concerning refunds or replacement do not apply to a consumer who has not first used this procedure.
(b) The findings and decisions in an informal dispute settlement procedure shall address and state in writing whether the consumer would be entitled to a refund or replacement under the presumptions and criteria set out in Code Section 10-1-814, and are admissible as nonbinding evidence in any legal action and are not subject to further evidentiary foundation requirements.
(c) If, in an informal dispute settlement procedure, it is decided that a consumer is entitled to a replacement farm tractor under Code Section 10-1-814, then the consumer has the option of selecting and receiving either the replacement farm tractor or a full refund as authorized by Code Section 10-1-814. Any refund selected by a consumer shall include all amounts authorized by Code Section 10-1-814.
(d)(1) In any informal dispute settlement procedure provided for by this Code section:
(A) No documents shall be received by any informal dispute settlement panel unless those documents have been provided to each of the parties in the dispute prior to the panel's meeting, with an opportunity for the parties to comment on the documents in writing, or with oral presentation at the request of the panel;
(B) Nonvoting manufacturer or dealer representatives shall not attend or participate in the informal dispute settlement procedures unless the consumer is also present and given a chance to be heard or unless the consumer previously consents to the manufacturer or dealer participation without the consumer's presence and participation;
(C) Consumers shall be given an adequate opportunity to contest a manufacturer's assertion that a nonconformity falls within intended specifications for the farm tractor by having the basis of the manufacturer's claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement hearing;
(D) No disputes shall be heard where there has been a recent attempt by the manufacturer to repair a consumer's farm tractor, but no response has yet been received by the informal dispute panel from the consumer as to whether the repairs were successfully completed. This provision shall not prejudice a consumer's rights under this Code section nor shall it extend the informal dispute panel's 40 day time limit for deciding disputes, as established by the Code of Federal Regulations, Title 16, Part 703; and
(E) The manufacturer shall provide and the informal dispute settlement panel shall consider all information relevant to resolving the dispute, such as the prior dispute records and information required by the Code of Federal Regulations, Title 16, Part 703.6, and any relevant technical service bulletins which may have been issued by the manufacturer or lessor regarding the farm tractor being disputed.
(2) A settlement reached under this Code section is binding on all participating parties.
(e) No consumer shall be required to participate in an informal dispute settlement procedure before filing an action in court if the informal dispute settlement procedure does not comply with the requirements of this Code section, notwithstanding the procedure's compliance with the Code of Federal Regulations, Title 16, Part 703.
(f) Any consumer injured by a violation of this Code section may bring a civil action to enforce this Code section and recover costs and disbursements, including reasonable attorney's fees.
It shall be an affirmative defense to claims under this article that:
(1) An alleged nonconformity does not substantially impair such use and market value; or
(2) A nonconformity is the result of abuse or neglect or of modifications or alterations of the farm tractor not authorized by the manufacturer.
Any action brought under this article shall be commenced within 12 months following the 18 month period.
Nothing in this article limits the rights or remedies which are otherwise available to a consumer under any other provisions of law.
As used in this article, the term:
(1) “Beauty pageant” means any contest or competition in which entrants are judged on the basis of physical beauty, skill, talent, poise, and personality and in which a winner or winners are selected as representing an ideal in one or more of these areas. “Beauty pageant” shall not include any such contest or competition in which no application fee or entrance charge is made for contestants, to which no admission charge is made for attendance, and in connection with which no tickets, chances, advertisements, or sponsorships are sold.
(2) “Entrant's fee” means any payment of money or other thing of value including, but not limited to, the selling of advertisements or tickets or the obtaining of sponsors, which activity is a precondition to participation in a beauty pageant.
(3) “Operator” means any person, franchisee, firm or corporation, civil group, or elementary or secondary educational institution which promotes, organizes, or otherwise operates a beauty pageant, participation in which is limited to persons paying an entrant's fee.
Before accepting any entrant's fee, all operators shall provide to each entrant a written document in at least ten-point type clearly containing only the following information:
(1) Name, address, and telephone number of the operator;
(2) Name, address, and telephone number of the individual or officer of the organization having full responsibility for the conducting of the pageant;
(3) Names of pageants customarily promoted by the operator;
(4) Name and address of individual authorized to accept service of process;
(5) Name, address, and telephone number of the financial institution in which the entrants' fees are held;
(6) Name, address, and telephone number of the surety company maintaining the bond required by Code Section 10-1-832; and
(7) A statement which reads as follows: “The State of Georgia requires bonding or escrow of pageants conducted for the profit of operators.”
Except for operators who are exempt from the requirements of this Code section, in accordance with Code Section 10-1-833, each operator shall maintain a bond in the amount of $10,000.00 with a surety company duly authorized to do business in this state or post a cash bond in such amount, payable to the Governor of this state. Such bond shall be for the use and benefit of any person who has paid any entrant's fee for a beauty pageant. Such bond shall be conditioned to pay all losses, damages, and expenses that may be sustained by such person by reason of any violation of this title. Any person who complies with the requirements of Code Section 10-1-837 shall not be required to post the bond required by this Code section.
No bond shall be required from nonprofit organizations, bona fide civic clubs in existence for at least one year, churches, religious organizations, and groups, fairs, or festivals affiliated with schools or political subdivisions, or from any other pageant which confers no benefit upon any participant other than any or all of the following: a beauty title, a crown, a trophy, a ribbon, or a sash. To be exempt from Code Section 10-1-832 under this Code section, pageants conducted by individuals or businesses to raise funds for nonprofit organizations shall award 100 percent of the moneys generated by the pageant to the nonprofit organization and the nonprofit organization may, if previously agreed, then pay the expenses incurred in producing the pageant.
If a beauty pageant is canceled or fails to take place, all entrants' fees shall be promptly refunded by the operator. For pageants subject to Code Section 10-1-832, the surety shall be liable for any unrefunded entrants' fees in the case of a default by the operator.
Any violation of this article shall be considered a violation of Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975,” as administered by the Attorney General, and all public and private remedies available under such part shall be available regarding violations of this article.
Any person, firm, corporation, organization, partnership, entity, or operator violating any provision of this article shall be guilty of a misdemeanor.
In lieu of obtaining the bond required by Code Section 10-1-832, any operator may place all entrants' fees in an escrow account from which the operator cannot and does not withdraw any funds until the pageant has been held and all awards have been made. If the operator elects this option, in lieu of the information required by paragraph (6) of Code Section 10-1-831 the operator shall provide in the written statement the name, address, and telephone number of the financial institution where the escrow account is maintained and the account number of the escrow account. The operator shall maintain a record of each escrow account established for a period of five years.
Any individual who fails to comply with either Code Section 10-1-832 or 10-1-837 shall be individually liable for any damages or losses suffered by any participant in a pageant, without regard to whether the pageant operator is structured as a corporation, partnership, limited partnership, or any other form of business entity.
As used in this article, the term:
(1) “Disabled person” means a person who has a physical or mental impairment which substantially limits one or more of such person's major life activities. As used in this paragraph, “physical or mental impairment” means any of the following:
(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss substantially affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine; and
(B) Any mental or psychological disorder, such as developmental disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, developmental disability, and emotional illness.
(2) “Elder person” means a person who is 60 years of age or older.
(3) “Major life activities” includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(4) “Substantially limits” means interferes with or affects over an extended period of time. Minor temporary ailments or injuries shall not be considered physical or mental impairments which substantially limit a person's major life activities. Examples of minor temporary ailments are colds, influenza, or sprains or minor injuries.
When any person who is found to have conducted business in violation of Article 15, 17, or 21 of this chapter is found to have committed said violation against elder or disabled persons, in addition to any civil penalty otherwise set forth or imposed, the court may impose an additional civil penalty not to exceed $10,000.00 for each violation.
In determining whether to impose a civil penalty under Code Section 10-1-851 and the amount thereof, the court shall consider the extent to which one or more of the following factors are present:
(1) Whether the defendant's conduct was in disregard of the rights of the elder or disabled persons;
(2) Whether the defendant knew or should have known that the defendant's conduct was directed to an elder person or disabled person;
(3) Whether the elder or disabled person was more vulnerable to the defendant's conduct because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability than other persons and whether the elder or disabled person actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct;
(4) Whether the defendant's conduct caused an elder or disabled person to suffer any of the following:
(A) Mental or emotional anguish;
(B) Loss of or encumbrance upon a primary residence of the elder or disabled person;
(C) Loss of or encumbrance upon the elder or disabled person's principal employment or principal source of income;
(D) Loss of funds received under a pension or retirement plan or a government benefits program;
(E) Loss of property set aside for retirement or for personal or family care and maintenance; or
(F) Loss of assets essential to the health and welfare of the elder or disabled person; or
(5) Any other factors the court deems appropriate.
An elder or disabled person who suffers damage or injury as a result of an offense or violation described in this article has a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney's fees. Restitution ordered pursuant to this Code section has priority over a civil penalty imposed pursuant to this article.
The Attorney General may develop and implement state-wide educational initiatives to inform elder persons and disabled persons, law enforcement agencies, the judicial system, social services professionals, and the general public as to the prevalence and prevention of consumer crimes against elder and disabled persons, the provisions of Part 1 of Article 15 of this chapter, the “Uniform Deceptive Trade Practices Act,” and Articles 17 and 21 of this chapter, the penalties for violations of such articles, and the remedies available for victims of such violations.
The Attorney General may establish and maintain referral procedures with the Division of Aging Services within the Department of Human Services in order to provide any necessary intervention and assistance to elder or disabled persons who may have been victimized by violations of this article.
Nothing in this article shall serve to prevent the Attorney General from investigating and pursuing unfair and deceptive acts or practices committed under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.” Notwithstanding any other provision of law to the contrary, the names, addresses, telephone numbers, social security numbers, or any other information which could reasonably serve to identify any person making a complaint about unfair or deceptive practices under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975,” shall be confidential. However, the complaining party may consent to public release of his or her identity by giving such consent expressly, affirmatively, and directly to the Attorney General. Nothing contained in this Code section shall be construed to prohibit any valid discovery under the relevant discovery rules, or to prohibit the lawful subpoena of such information.
The Attorney General shall receive all complaints under this article. He or she shall refer all complaints or inquiries concerning conduct specifically approved or prohibited by the Secretary of State, Department of Agriculture, Commissioner of Insurance, Public Service Commission, Department of Natural Resources, Department of Banking and Finance, or other appropriate agency or official of this state to that agency or official for initial investigation and corrective action other than litigation.
This article shall be known and may be cited as the “Assistive Technology Warranty Act.”
As used in this article, the term:
(1) “Assistive technology device” means any device or equipment with a retail cost to a consumer of $1,000.00 or more, that assists a person with disabilities to perform specific tasks such as moving, walking, standing, speaking, breathing, hearing, seeing, learning, working, sleeping, reaching, grasping, or caring for himself or herself that would not be possible for such person without an assistive technology device.
(2) “Assistive technology device dealer” means a person who is in the business of selling assistive technology devices.
(3) “Assistive technology device lessor” means a person who leases an assistive technology device to a consumer, or who holds the lessor's rights under a written lease.
(4) “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative assistive technology device or other device used for mobility assistance.
(5) “Consumer” means any of the following:
(A) The purchaser of an assistive technology device, if the assistive technology device was purchased from an assistive technology device dealer or manufacturer for purposes other than resale;
(B) A person to whom the assistive technology device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive technology device;
(C) A person who may enforce the warranty; or
(D) A person who leases an assistive technology device from an assistive technology device lessor under a written lease.
(6) “Demonstrator” means an assistive technology device used primarily for the purpose of demonstration to the public.
(7) “Early termination cost” means any expense or obligation that an assistive technology device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to a manufacturer under paragraph (3) of subsection (b) of Code Section 10-1-873. “Early termination cost” includes a penalty for prepayment under a finance arrangement.
(8) “Early termination savings” means any expense or obligation that an assistive technology device lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to a manufacturer under paragraph (3) of subsection (b) of Code Section 10-1-873. “Early termination savings” includes an interest charge that the assistive technology device lessor would have paid to finance the assistive technology device or, if the assistive technology device lessor does not finance the assistive technology device, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
(9) “Manufacturer” means a person who manufactures or assembles assistive technology devices and agents of that person, including an importer, a distributor, factory branch, distributor branch, and any warrantors of the manufacturer's assistive technology devices but does not include an assistive technology device dealer.
(10) “Nonconformity” means a condition or defect that substantially impairs the use, value, or safety of an assistive technology device, and that is covered by an express warranty applicable to the assistive technology device or to a component of the assistive technology device, but does not include a condition or defect that is the result of abuse, neglect, or unauthorized modification or alteration of the assistive technology device by a consumer.
(11) “Reasonable attempt to repair” means any of the following occurring within the term of an express warranty applicable to a new assistive technology device or within one year after first delivery of the assistive technology device to a consumer, whichever is sooner:
(A) The same nonconformity with the warranty is subject to repair at least four times by the manufacturer, assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers and the nonconformity continues; or
(B) The assistive technology device is out of service for an aggregate of at least 30 days because of warranty nonconformities.
A manufacturer who sells an assistive technology device to a consumer, either directly or through an assistive technology device dealer, shall furnish the consumer with an express written warranty for the assistive technology device. The warranty shall as a minimum warrant that there are no defects in parts or performance. The duration of the express written warranty shall be not less than one year after first delivery of the assistive technology device to the consumer. If a manufacturer fails to furnish an express written warranty as required by this Code section, the assistive technology device shall be covered by an express warranty as if the manufacturer had furnished an express written warranty to the consumer as required by this Code section.
(a) If a new assistive technology device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers and makes the assistive technology device available for repair before one year after first delivery of the assistive technology device to a consumer, the nonconformity shall be repaired at the manufacturer's expense to correct the nonconformity regardless of whether the repairs are made after expiration of the warranty rights period. If in any subsequent proceeding it is determined that the consumer's repair did not qualify under this article, and the manufacturer was not otherwise obligated to repair the assistive technology device, the consumer shall be liable to the manufacturer for costs of repair.
(b)(1) If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out the requirement under paragraph (2) or (3) of this subsection, whichever is appropriate.
(2) At the direction of a consumer as defined in subparagraph (A), (B), or (C) of paragraph (5) of Code Section 10-1-871, the manufacturer shall do one of the following:
(A) Accept return of the assistive technology device and replace the assistive technology device with a comparable new assistive technology device and refund any collateral costs; or
(B) Accept return of the assistive technology device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive technology device, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale, and collateral costs, less a reasonable allowance for use. Under this subparagraph, a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive technology device by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the assistive technology device was used before the consumer first reported the nonconformity to the assistive technology device dealer.
(3)(A) At the direction of a consumer as defined in subparagraph (D) of paragraph (5) of Code Section 10-1-871, the manufacturer shall:
(i) Accept return of the assistive technology device;
(ii) Refund to the assistive technology device lessor and to any holder of a perfected security interest in the assistive technology device, as their interest may appear, the current value of the written lease as defined in subparagraph (B) of this paragraph; and
(iii) Refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use as defined in subparagraph (C) of this paragraph.
(B) The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination plus the assistive technology device dealer's early termination costs and the value of the assistive technology device at the lease expiration date if the lease sets forth that value, less the assistive technology device lessor's early termination savings.
(C) A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer drove the assistive technology device before first reporting the nonconformity to the manufacturer, assistive technology device lessor, or assistive technology device dealer.
(c) To receive a comparable new assistive technology device or a refund due under paragraph (1) or (2) of subsection (b) of this Code section, a consumer, as defined under subparagraph (A), (B), or (C) of paragraph (5) of Code Section 10-1-871, shall offer to transfer possession of the assistive technology device having the nonconformity to the manufacturer of that assistive technology device. No later than 30 days after that offer, the manufacturer shall provide the consumer with a comparable new assistive technology device or a refund. When the manufacturer provides the new assistive technology device or refund, the consumer shall return the assistive technology device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer.
(d)(1) To receive a refund due under paragraph (3) of subsection (b) of this Code section, a consumer as defined under subparagraph (D) of paragraph (5) of Code Section 10-1-871, shall offer to return the assistive technology device having the nonconformity to the manufacturer of that assistive technology device. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return the assistive technology device having the nonconformity to the manufacturer.
(2) To receive a refund due under paragraph (3) of subsection (b) of this Code section, an assistive technology device lessor shall offer to transfer possession of the assistive technology device having the nonconformity to the manufacturer of that assistive technology device. No later than 30 days after that offer, the manufacturer shall provide the refund to the assistive technology device lessor. When the manufacturer provides the refund, the assistive technology device lessor shall provide any endorsements necessary to transfer legal possession to the manufacturer.
(3) No person may enforce the lease against the consumer after the consumer receives a refund due under paragraph (3) of subsection (b) of this Code section.
(e) No assistive technology device returned by a consumer or assistive technology device lessor in this state under subsection (b) of this Code section or by a consumer or assistive technology device lessor in another state under a similar law of that state may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
A manufacturer or assistive technology device dealer who recommends and sells an assistive technology device to a consumer shall accept a return of the assistive technology device within 30 days after the purchase if the assistive technology device does not meet the needs of the person with the disability. The manufacturer or assistive technology dealer shall provide a refund in conformity with the provisions established within paragraph (2) of subsection (b) of Code Section 10-1-873.
(a) This article shall not be deemed to limit rights or remedies available to a consumer under any other law or contract.
(b) Any waiver by a consumer of rights under this article is void.
(c) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this article. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss together with costs, disbursements, and reasonable attorney fees and any equitable relief that the court determines is appropriate.
This article shall be known and may be cited as the “Motorized Wheelchair Warranty Act.”
As used in this article, the term:
(1) “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative wheelchair or other device used for mobility assistance.
(2) “Consumer” means any of the following:
(A) The purchaser of a motorized wheelchair, if the motorized wheelchair was purchased from a motorized wheelchair dealer or manufacturer for purposes other than resale;
(B) A person to whom the motorized wheelchair is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motorized wheelchair;
(C) A person who may enforce the warranty; or
(D) A person who leases a motorized wheelchair from a motorized wheelchair lessor under a written lease.
(3) “Demonstrator” means a motorized wheelchair used primarily for the purpose of demonstration to the public.
(4) “Early termination cost” means any expense or obligation that a motorized wheelchair lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer under paragraph (3) of subsection (b) of Code Section 10-1-893. “Early termination cost” includes a penalty for prepayment under a finance arrangement.
(5) “Early termination savings” means any expense or obligation that a motorized wheelchair lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of a motorized wheelchair to a manufacturer under paragraph (3) of subsection (b) of Code Section 10-1-893. “Early termination savings” includes an interest charge that the motorized wheelchair lessor would have paid to finance the motorized wheelchair or, if the motorized wheelchair lessor does not finance the motorized wheelchair, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.
(6) “Manufacturer” means a person who manufactures or assembles motorized wheelchairs and agents of that person, including an importer, a distributor, factory branch, distributor branch, and any warrantors of the manufacturer's motorized wheelchairs but does not include a motorized wheelchair dealer.
(7) “Motorized wheelchair” means any motor driven wheelchair, including a demonstrator, that a consumer purchases or accepts transfer of in this state.
(8) “Motorized wheelchair dealer” means a person who is in the business of selling motorized wheelchairs.
(9) “Motorized wheelchair lessor” means a person who leases a motorized wheelchair to a consumer, or who holds the lessor's rights, under a written lease.
(10) “Nonconformity” means a condition or defect that substantially impairs the use, value, or safety of a motorized wheelchair, and that is covered by an express warranty applicable to the motorized wheelchair or to a component of the motorized wheelchair, but does not include a condition or defect that is the result of abuse, neglect, or unauthorized modification or alteration of the motorized wheelchair by a consumer.
(11) “Reasonable attempt to repair” means any of the following occurring within the term of an express warranty applicable to a new motorized wheelchair or within one year after first delivery of the motorized wheelchair to a consumer, whichever is sooner:
(A) The same nonconformity with the warranty is subject to repair at least four times by the manufacturer, motorized wheelchair lessor, or any of the manufacturer's authorized motorized wheelchair dealers and the nonconformity continues; or
(B) The motorized wheelchair is out of service for an aggregate of at least 30 days because of warranty nonconformities.
A manufacturer who sells a motorized wheelchair to a consumer, either directly or through a motorized wheelchair dealer, shall furnish the consumer with an express written warranty for the motorized wheelchair warranting parts and performance. The duration of the express written warranty shall be not less than one year after first delivery of the motorized wheelchair to the consumer. If a manufacturer fails to furnish an express written warranty as required by this Code section, the motorized wheelchair shall be covered by an express warranty as if the manufacturer had furnished an express written warranty to the consumer as required by this Code section.
(a) If a new motorized wheelchair does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motorized wheelchair lessor, or any of the manufacturer's authorized motorized wheelchair dealers and makes the motorized wheelchair available for repair before one year after first delivery of the motorized wheelchair to a consumer, the nonconformity shall be repaired at the manufacturer's expense to correct the nonconformity regardless of whether the repairs are made after expiration of the warranty rights period. If in any subsequent proceeding it is determined that the consumer's repair did not qualify under this article, and the manufacturer was not otherwise obligated to repair the motorized wheelchair, the consumer shall be liable to the manufacturer for costs of repair.
(b)(1) If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out the requirement under paragraph (2) or (3) of this subsection, whichever is appropriate.
(2) At the direction of a consumer as defined in subparagraph (A), (B), or (C) of paragraph (2) of Code Section 10-1-891, the manufacturer shall do one of the following:
(A) Accept return of the motorized wheelchair and replace the motorized wheelchair with a comparable new motorized wheelchair and refund any collateral costs; or
(B) Accept return of the motorized wheelchair and refund to the consumer and to any holder of a perfected security interest in the consumer's motorized wheelchair, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale, and collateral costs, less a reasonable allowance for use. Under this subparagraph, a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the motorized wheelchair by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the motorized wheelchair was driven before the consumer first reported the nonconformity to the motorized wheelchair dealer.
(3)(A) At the direction of a consumer as defined in subparagraph (D) of paragraph (2) of Code Section 10-1-891, the manufacturer shall:
(i) Accept return of the motorized wheelchair;
(ii) Refund to the motorized wheelchair lessor and to any holder of a perfected security interest in the motorized wheelchair, as their interest may appear, the current value of the written lease as defined in subparagraph (B) of this paragraph; and
(iii) Refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use as defined in subparagraph (C) of this paragraph.
(B) The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination plus the motorized wheelchair dealer's early termination costs and the value of the motorized wheelchair at the lease expiration date if the lease sets forth that value, less the motorized wheelchair lessor's early termination savings.
(C) A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer drove the motorized wheelchair before first reporting the nonconformity to the manufacturer, motorized wheelchair lessor, or motorized wheelchair dealer.
(c) To receive a comparable new motorized wheelchair or a refund due under paragraph (1) or (2) of subsection (b) of this Code section, a consumer, as defined under subparagraph (A), (B), or (C) of paragraph (2) of Code Section 10-1-891, shall offer to transfer possession of the motorized wheelchair having the nonconformity to the manufacturer of that motorized wheelchair. No later than 30 days after that offer, the manufacturer shall provide the consumer with a comparable new motorized wheelchair or a refund. When the manufacturer provides the new motorized wheelchair or refund, the consumer shall return the motorized wheelchair having the nonconformity to the manufacturer, along with any endorsements necessary to transfer legal possession to the manufacturer.
(d)(1) To receive a refund due under paragraph (3) of subsection (b) of this Code section, a consumer as defined under subparagraph (D) of paragraph (2) of Code Section 10-1-891, shall offer to return the motorized wheelchair having the nonconformity to the manufacturer of that motorized wheelchair. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return the motorized wheelchair having the nonconformity to the manufacturer.
(2) To receive a refund due under paragraph (3) of subsection (b) of this Code section, a motorized wheelchair lessor shall offer to transfer possession of the motorized wheelchair having the nonconformity to the manufacturer of that motorized wheelchair. No later than 30 days after that offer, the manufacturer shall provide the refund to the motorized wheelchair lessor. When the manufacturer provides the refund, the motorized wheelchair lessor shall provide any endorsements necessary to transfer legal possession to the manufacturer.
(3) No person may enforce the lease against the consumer after the consumer receives a refund due under paragraph (3) of subsection (b) of this Code section.
(e) No motorized wheelchair returned by a consumer or motorized wheelchair lessor in this state under subsection (b) of this Code section or by a consumer or motorized wheelchair lessor in another state under a similar law of that state may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
(a) This article shall not be deemed to limit rights or remedies available to a consumer under any other law or contract.
(b) Any waiver by a consumer of rights under this article is void.
(c) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this article. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss together with costs, disbursements, and reasonable attorney fees and any equitable relief that the court determines is appropriate.
The General Assembly finds and declares as follows:
(1) The privacy and financial security of individuals is increasingly at risk due to the ever more widespread collection of personal information by both the private and public sectors;
(2) Credit card transactions, magazine subscriptions, real estate records, automobile registrations, consumer surveys, warranty registrations, credit reports, and Internet websites are all sources of personal information and form the source material for identity thieves;
(3) Identity theft is one of the fastest growing crimes committed in this state. Criminals who steal personal information such as social security numbers use the information to open credit card accounts, write bad checks, buy cars, purchase property, and commit other financial crimes with other people's identities;
(4) Implementation of technology security plans and security software as part of an information security policy may provide protection to consumers and the general public from identity thieves;
(5) Information brokers should clearly define the standards for authorized users of its data so that a breach by an unauthorized user is easily identifiable;
(6) Identity theft is costly to the marketplace and to consumers; and
(7) Victims of identity theft must act quickly to minimize the damage; therefore, expeditious notification of unauthorized acquisition and possible misuse of a person's personal information is imperative.
As used in this article, the term:
(1) “Breach of the security of the system” means unauthorized acquisition of an individual's electronic data that compromises the security, confidentiality, or integrity of personal information of such individual maintained by an information broker or data collector. Good faith acquisition or use of personal information by an employee or agent of an information broker or data collector for the purposes of such information broker or data collector is not a breach of the security of the system, provided that the personal information is not used or subject to further unauthorized disclosure.
(2) “Data collector” means any state or local agency or subdivision thereof including any department, bureau, authority, public university or college, academy, commission, or other government entity; provided, however, that the term “data collector” shall not include any governmental agency whose records are maintained primarily for traffic safety, law enforcement, or licensing purposes or for purposes of providing public access to court records or to real or personal property information.
(3) “Information broker” means any person or entity who, for monetary fees or dues, engages in whole or in part in the business of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information concerning individuals for the primary purpose of furnishing personal information to nonaffiliated third parties, but does not include any governmental agency whose records are maintained primarily for traffic safety, law enforcement, or licensing purposes.
(4) “Notice” means:
(A) Written notice;
(B) Telephone notice;
(C) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in Section 7001 of Title 15 of the United States Code; or
(D) Substitute notice, if the information broker or data collector demonstrates that the cost of providing notice would exceed $50,000.00, that the affected class of individuals to be notified exceeds 100,000, or that the information broker or data collector does not have sufficient contact information to provide written or electronic notice to such individuals. Substitute notice shall consist of all of the following:
(i) E-mail notice, if the information broker or data collector has an e-mail address for the individuals to be notified;
(ii) Conspicuous posting of the notice on the information broker's or data collector's website page, if the information broker or data collector maintains one; and
(iii) Notification to major state-wide media.
Notwithstanding any provision of this paragraph to the contrary, an information broker or data collector that maintains its own notification procedures as part of an information security policy for the treatment of personal information and is otherwise consistent with the timing requirements of this article shall be deemed to be in compliance with the notification requirements of this article if it notifies the individuals who are the subjects of the notice in accordance with its policies in the event of a breach of the security of the system.
(5) “Person” means any individual, partnership, corporation, limited liability company, trust, estate, cooperative, association, or other entity. The term “person” as used in this article shall not be construed to require duplicative reporting by any individual, corporation, trust, estate, cooperative, association, or other entity involved in the same transaction.
(6) “Personal information” means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted:
(A) Social security number;
(B) Driver's license number or state identification card number;
(C) Account number, credit card number, or debit card number, if circumstances exist wherein such a number could be used without additional identifying information, access codes, or passwords;
(D) Account passwords or personal identification numbers or other access codes; or
(E) Any of the items contained in subparagraphs (A) through (D) of this paragraph when not in connection with the individual's first name or first initial and last name, if the information compromised would be sufficient to perform or attempt to perform identity theft against the person whose information was compromised.
The term “personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.
(a) Any information broker or data collector that maintains computerized data that includes personal information of individuals shall give notice of any breach of the security of the system following discovery or notification of the breach in the security of the data to any resident of this state whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The notice shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in subsection (c) of this Code section, or with any measures necessary to determine the scope of the breach and restore the reasonable integrity, security, and confidentiality of the data system.
(b) Any person or business that maintains computerized data on behalf of an information broker or data collector that includes personal information of individuals that the person or business does not own shall notify the information broker or data collector of any breach of the security of the system within 24 hours following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person.
(c) The notification required by this Code section may be delayed if a law enforcement agency determines that the notification will compromise a criminal investigation. The notification required by this Code section shall be made after the law enforcement agency determines that it will not compromise the investigation.
(d) In the event that an information broker or data collector discovers circumstances requiring notification pursuant to this Code section of more than 10,000 residents of this state at one time, the information broker or data collector shall also notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nation-wide basis, as defined by 15 U.S.C. Section 1681a, of the timing, distribution, and content of the notices.
As used in this Code section, Code Section 10-1-914, and Code Section 10-1-914.1, the term:
(1) “Consumer” means a natural person residing in this state.
(2) “Consumer credit report” means a “consumer report” as defined in 15 U.S.C. Section 1681a(d) that a consumer reporting agency furnishes to a person which it has reason to believe intends to use the information as a factor in establishing the consumer's eligibility for credit to be used primarily for personal, family, or household purposes.
(3) “Consumer credit reporting agency” means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer credit reports to third parties.
(4) “Normal business hours” means any day, between the hours of 8:00 A.M. and 9:30 P.M., eastern standard time.
(5) “Person” means any individual, partnership, corporation, trust, estate, cooperative, association, government, or governmental subdivision or agency, or other entity.
(6) “Proper identification” means information generally deemed sufficient to identify a person for consumer reporting agency purposes under 15 U.S.C. Section 1681 et seq.
(7) “Protected consumer” means an individual who is:
(A) Under the age of 16 years at the time a request for the placement of a security freeze is made under subsection (a) of Code Section 10-1-914.1; or
(B) An individual for whom a guardian or conservator has been appointed.
(8) “Record” means a compilation of information about a protected consumer that satisfies all of the following:
(A) The compilation identifies the protected consumer; and
(B) The compilation is created by a consumer credit reporting agency solely for the purpose of complying with Code Section 10-1-914.1.
(9) “Representative” means a person who provides to a consumer credit reporting agency sufficient proof of authority to act on behalf of a protected consumer.
(10) “Security freeze” means a restriction placed on a consumer credit report at the request of the consumer that prohibits a consumer credit reporting agency from releasing all or any part of the consumer's consumer credit report or any information derived from the consumer's consumer credit report for a purpose relating to the extension of credit without the express authorization of the consumer.
(11) “Security freeze for a protected consumer” means one of the following:
(A) If a consumer credit reporting agency does not have a file pertaining to a protected consumer, a restriction placed on the protected consumer's record that prohibits the consumer credit reporting agency from releasing the protected consumer's record; or
(B) If a consumer credit reporting agency has a file pertaining to the protected consumer, a restriction placed on the protected consumer's credit report that prohibits the consumer credit reporting agency from releasing the protected consumer's credit report or any information derived from the protected consumer's credit report.
(12) “Sufficient proof of authority” means documentation that shows a representative has authority to act on behalf of a protected consumer, including any of the following:
(A) An order issued by a court;
(B) A lawfully executed and valid power of attorney; or
(C) A written, notarized statement signed by a representative that expressly describes the authority of the representative to act on behalf of a protected consumer.
(13) “Sufficient proof of identification” means information or documentation that identifies a protected consumer or a representative of a protected consumer, including any of the following:
(A) A social security number or a copy of a social security card issued by the Social Security Administration; or
(B) A certified or official copy of a birth certificate issued by the entity authorized to issue the birth certificate.
(a) A consumer may place a security freeze on the consumer's credit report by making a request in writing by certified mail to a consumer credit reporting agency. No later than August 1, 2008, a consumer credit reporting agency shall make available to consumers an Internet based method of requesting a security freeze and a toll-free telephone number for consumers to use to place a security freeze, temporarily lift a security freeze, or completely remove a security freeze. A security freeze shall prohibit, subject to exceptions in subsection (m) of this Code section, the consumer credit reporting agency from releasing the consumer's credit report or credit score without the prior express authorization of the consumer as provided in subsection (d) or (e) of this Code section. Nothing in this subsection prevents a consumer credit reporting agency from advising a third party that a security freeze is in effect with respect to the consumer's credit report.
(b) A consumer credit reporting agency shall place a security freeze on a consumer's credit report no later than three business days after receiving the consumer's written request sent by certified mail.
(c) The consumer credit reporting agency shall send a written confirmation of the security freeze to the consumer within ten business days of placing the security freeze and at the same time shall provide the consumer with a unique personal identification number or password, other than the consumer's social security number, to be used by the consumer when providing authorization for the release of the consumer's credit report for a specific period of time.
(d) If the consumer wishes to allow the consumer's credit report to be accessed for a specific period of time while a security freeze is in place, the consumer shall contact the consumer credit reporting agency through the contact method established by the consumer credit reporting agency, request that the security freeze be temporarily lifted, and provide all of the following:
(1) Proper identification;
(2) The unique personal identification number or password provided by the consumer credit reporting agency pursuant to subsection (c) of this Code section;
(3) The proper information regarding the time period for which the report shall be available to users of the consumer credit report; and
(4) The proper payment as may be required by the consumer credit reporting agency.
(e) A consumer credit reporting agency shall develop procedures involving the use of telephone, facsimile, the Internet, or other electronic media to receive and process a request from a consumer to temporarily lift a security freeze on a consumer credit report pursuant to subsection (d) of this Code section.
(f) A consumer credit reporting agency that receives a request from a consumer to temporarily lift a security freeze on a consumer credit report pursuant to subsection (d) or (e) of this Code section shall comply with the request:
(1) No later than three business days after receiving a written request; or
(2) Within 15 minutes after the request and payment are received by telephone or electronically by the contact method chosen by the consumer credit reporting agency during normal business hours and the request includes the consumer's proper identification, correct personal identification number or password, and the proper payment as may be required by the consumer credit reporting agency.
(g) A consumer credit reporting agency need not remove a security freeze within 15 minutes, as specified in paragraph (2) of subsection (f) of this Code section, if:
(1) The consumer fails to satisfy the requirements of subsection (d) of this Code section; or
(2) The consumer credit reporting agency's ability to remove the security freeze within 15 minutes is prevented by:
(A) An act of God, including fire, earthquakes, hurricanes, storms, or similar natural disaster or phenomenon;
(B) Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations, or similar occurrence;
(C) Operational interruption, including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failures inhibiting response time, or similar disruption;
(D) Governmental action, including emergency orders or regulations, judicial or law enforcement action, or similar directives;
(E) Regularly scheduled maintenance or updates, during other than normal business hours, to the consumer credit reporting agency's systems;
(F) Commercially reasonable maintenance of, or repair to, the consumer credit reporting agency's systems that is unexpected or unscheduled; or
(G) Receipt of a removal request outside of normal business hours.
(h) A consumer credit reporting agency shall only remove or temporarily lift a security freeze placed on a consumer's credit report:
(1) Upon the consumer's request, in compliance with the requirements of this Code section; or
(2) If the consumer's credit report was frozen due to a material misrepresentation of fact by the consumer. If a consumer credit reporting agency intends to remove a security freeze upon a consumer's credit report pursuant to this paragraph, the consumer credit reporting agency shall notify the consumer in writing prior to removing the security freeze on the consumer's credit report.
(i) If a third party requests access to a consumer credit report on which a security freeze is in effect and this request is in connection with an application for credit or any other use related to the extension of credit and the consumer does not allow the consumer's credit report to be accessed for that specific period of time, the third party may treat the application as incomplete.
(j) If a consumer requests a security freeze pursuant to this Code section, the consumer credit reporting agency shall disclose to the consumer the process of placing and temporarily lifting a security freeze and the process for allowing access to information from the consumer's credit report for a specific period of time while the security freeze is in place.
(k) A security freeze shall remain in place until the consumer requests that the security freeze be removed. A consumer credit reporting agency shall remove a security freeze within three business days of receiving a request for removal from the consumer. The consumer shall provide all of the following:
(1) Proper identification; and
(2) The unique personal identification number or password provided by the consumer credit reporting agency pursuant to subsection (c) of this Code section.
(l) A consumer credit reporting agency shall require proper identification of the person making a request to place, temporarily lift, or remove a security freeze.
(m) By way of example only, and not intending to be exclusive, the provisions of this Code section shall not apply to the use of a consumer credit report by any of the following:
(1) A person, or the person's subsidiary, affiliate, agent, subcontractor, or assignee with whom the consumer has, or prior to assignment had, an account, contract, or debtor-creditor relationship for the purposes of reviewing the active account or collecting the financial obligation owing for the account, contract, or debt;
(2) A subsidiary, affiliate, agent, assignee, or prospective assignee of a person to whom access has been granted under subsection (d) of this Code section for purposes of facilitating the extension of credit or other permissible use;
(3) Any person acting pursuant to a court order, warrant, or subpoena;
(4) A state or local agency, or its agents or assigns, which administers a program for establishing and enforcing child support obligations;
(5) A state or local agency, or its agents or assigns, acting to investigate fraud, including Medicaid fraud; acting to investigate or collect delinquent taxes or assessments, including interest, penalties, and unpaid court orders; or acting to fulfill any of its other statutory responsibilities;
(6) A federal, state, or local governmental entity, including a law enforcement agency, court, or its agents or assigns;
(7) Any person for the use of a credit report for purposes permitted under 15 U.S.C. Section 1681b(c);
(8) Any person for the sole purpose of providing a credit file monitoring subscription service to which the consumer has subscribed;
(9) Any person for the purpose of providing a consumer with a copy of the consumer's credit report or credit score upon the consumer's request;
(10) Any depository financial institution for checking, savings, and investment accounts; or
(11) Any person or entity for insurance purposes, including use in setting or adjusting a rate, adjusting a claim, or underwriting.
(n) If a security freeze is in place, a consumer credit reporting agency shall not change any of the following official information in a credit report without sending a written confirmation of the change to the consumer within 30 days of the change being posted to the consumer's file: name, date of birth, social security number, and address. Written confirmation is not required for technical modifications of a consumer's official information, including name and street abbreviations, complete spellings, or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and the former address.
(o) The following persons shall not be required to place a security freeze in a consumer credit report pursuant to this Code section; provided, however, that any person that shall not be required to place a security freeze on a consumer credit report under the provisions of paragraph (3) of this subsection shall be subject to any security freeze placed on a consumer credit report by another consumer credit reporting agency from which it obtains information:
(1) A check services or fraud prevention services company, including reports on incidents of fraud, or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar methods of payment;
(2) A deposit account information service company, which issues reports regarding account closures due to fraud, substantial overdrafts, automated teller machine abuse, or other similar negative information regarding a consumer to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution;
(3) Resellers of consumer credit report information that assemble and merge information contained in a data base of one or more consumer credit reporting agencies and do not maintain a permanent data base of consumer credit information from which new consumer credit reports are produced; or
(4) A consumer credit reporting agency's data base or file which consists of information concerning, and used for, one or more of the following: criminal record information, fraud prevention or detection, personal claim loss history information, and employment, tenant, or individual background screening.
(p) A person that violates this Code section may be investigated and prosecuted under the provisions of the Fair Business Practices Act, Code Section 10-1-390, et seq., and may be fined not more than $100.00 for a violation concerning a specific consumer.
(a) A consumer credit reporting agency shall place a security freeze for a protected consumer if the consumer credit reporting agency receives a request from the protected consumer's representative for the placement of the security freeze and the protected consumer's representative:
(1) Submits the request to the consumer credit reporting agency at the address or other point of contact and in the manner specified by the consumer credit reporting agency;
(2) Provides to the consumer credit reporting agency sufficient proof of identification of the protected consumer and the representative; and
(3) Provides to the consumer credit reporting agency sufficient proof of authority to act on behalf of the protected consumer.
(b) If a consumer credit reporting agency does not have a file pertaining to a protected consumer when the consumer credit reporting agency receives a request under subsection (a) of this Code section, the consumer credit reporting agency shall create a record for the protected consumer. Upon receiving the request, the consumer credit reporting agency shall verify that no file exists pertaining to the protected consumer or to the protected consumer's social security number. A record created under this subsection shall not be used to consider the protected consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.
(c) Within 30 days after receiving a request that meets the requirements of subsection (a) of this Code section, a consumer credit reporting agency shall place a security freeze for the protected consumer.
(d) Unless a security freeze for a protected consumer is removed in accordance with subsection (f) or (i) of this Code section, a consumer credit reporting agency shall not release the protected consumer's credit report, any information derived from the protected consumer's credit report, or any record created for the protected consumer.
(e) A security freeze for a protected consumer placed under subsection (c) of this Code section shall remain in effect until:
(1) The protected consumer or the protected consumer's representative requests the consumer credit reporting agency to remove the security freeze in accordance with subsection (f) of this Code section; or
(2) The security freeze is removed in accordance with subsection (i) of this Code section.
(f)(1) If a protected consumer or a protected consumer's representative wishes to remove a security freeze for the protected consumer, the protected consumer or the protected consumer's representative shall:
(A) Submit a request for the removal of the security freeze to the consumer credit reporting agency at the address or other point of contact and in the manner specified by the consumer credit reporting agency; and
(B) Provide to the consumer credit reporting agency sufficient proof of identification of the protected consumer and:
(i) For a request by the protected consumer, proof that the sufficient proof of authority for the protected consumer's representative to act on behalf of the protected consumer is no longer valid; or
(ii) For a request by the representative of the protected consumer, sufficient proof of identification of the representative and sufficient proof of authority to act on behalf of the protected consumer.
(2) Within 30 days after receiving a request that meets the requirements of paragraph (1) of this subsection, the consumer credit reporting agency shall remove the security freeze for the protected consumer.
(g) A consumer credit reporting agency shall not charge a fee for any service performed under this Code section.
(h) This Code section shall not apply to the use of a protected consumer's credit report or record by:
(1) A person administering a credit file monitoring subscription service to which the protected consumer has subscribed or the representative of the protected consumer has subscribed on behalf of the protected consumer;
(2) A person providing the protected consumer or the protected consumer's representative with a copy of the protected consumer's credit report on request of the protected consumer or the protected consumer's representative; or
(3) A person or entity listed in subsection (m) or (o) of Code Section 10-1-914.
(i) A consumer credit reporting agency may remove a security freeze for a protected consumer or delete a record of a protected consumer if such security freeze was placed or the record was created based on a material misrepresentation of fact by the protected consumer or the protected consumer's representative.
(j)(1) A person who violates this Code section may be investigated and prosecuted under the provisions of Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975,” and may be fined not more than $100.00 for a violation concerning a specific protected consumer.
(2) The Attorney General may bring an action for temporary or permanent injunctive or other relief for any violation of this Code section or an action for the penalty authorized in paragraph (1) of this subsection.
At any time that a consumer is required to receive a summary of rights required by 15 U.S.C. Section 1681g(d) of the federal Fair Credit Reporting Act, the consumer shall also be provided with the following notice:
“Georgia Consumers Have the Right to Obtain a Security Freeze.
You have a right to place a ‘security freeze’ on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified mail or by electronic means as provided by a consumer reporting agency. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. If you are actively seeking a new credit, loan, utility, telephone, or insurance account, you should understand that the procedures involved in lifting a security freeze may slow your applications for credit. You should plan ahead and lift a freeze in advance of actually applying for new credit. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time after the freeze is in place.
To provide that authorization you must contact the consumer reporting agency and provide all of the following:
(1) The personal identification number or password.
(2) Proper identification to verify your identity.
(3) The proper information regarding the period of time for which the report shall be available.
A consumer reporting agency must authorize the release of your credit report no later than fifteen (15) minutes after receiving the above information if the request is by electronic means or by telephone, or no later than three business days when a written request is submitted.
A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account, that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance. You have a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, knowingly or willfully misuses file data, or fails to correct inaccurate file data. Unless you are a victim of identity theft with a police report or other official document acceptable to a consumer reporting agency to verify the crimes, or you are 65 or older, a consumer reporting agency has the right to charge you a fee of no more than $3.00 to place a freeze on your credit report.”
This article shall be known and may be cited as the Georgia “True Origin of Digital Goods Act.”
As used in this article, the term:
(1) “Commercial recording or audiovisual work” means a recording or audiovisual work:
(A) Consisting of substantially all of such recording or audiovisual work; and
(B) Whose owner, assignee, authorized agent, or licensee has disseminated or intends to disseminate for sale, for rental, or for performance or exhibition to the public, regardless of whether a commercial advantage or private financial gain is sought or the person disseminating it owns a license of such recording or audiovisual work.
(2) “Electronic dissemination” or “electronically disseminates” means initiating a transmission of, making available, or otherwise offering a commercial recording or audiovisual work for distribution, display, or performance through the internet or other digital network, regardless of whether such commercial recording or audiovisual work has been previously electronically disseminated by another person.
(3) “Person” means an individual, corporation, business trust, estate, trust, partnership, unincorporated association, or any other legal or commercial entity.
(4) “Third-party commercial recording” means a commercial recording not belonging to the owner of a website or online service that electronically disseminates it.
(5) “Website” means a set of related web pages served from a single web domain. Such term shall not include a home page or channel page for the user account of a person who is not the owner or operator of the website upon which such user home page or channel page appears.
(a) A person that owns or operates a website or online service that consists to a substantial extent of the electronic dissemination of third-party commercial recordings or audiovisual works, directly or indirectly, and that electronically disseminates such works to consumers in this state shall clearly and conspicuously disclose its true and correct name, physical address, telephone number, and email address on such website or online service in a location readily accessible to a consumer using or visiting the website or online service.
(b) The following locations shall be deemed readily accessible for purposes of this article:
(1) A landing or home web page or screen;
(2) An “about” or “about us” web page or screen;
(3) A “contact” or “contact us” web page or screen;
(4) An information web page or screen; or
(5) Another place on the website or online service commonly used to display identifying information to consumers.
(a) An owner, assignee, authorized agent, or exclusive licensee of a commercial recording or audiovisual work electronically disseminated by a website or online service in violation of this article may bring a private cause of action to obtain a declaratory judgment that an act or practice violates this article and to obtain an injunction against any person who knowingly has violated, is violating, or is otherwise likely to violate this article. As a condition precedent to filing a civil action under this article, the aggrieved party must make reasonable efforts to place any person alleged to be in violation of this article on notice that such person may be in violation of this article and that failure to cure within 14 days may result in a civil action filed in a court of competent jurisdiction.
(b) Upon motion of the party instituting the action, the court may make appropriate orders to compel compliance with this article.
(c) The prevailing party in a cause under this article is entitled to recover necessary expenses and reasonable attorney fees.
(a) This article shall be supplemental to those provisions of state and federal criminal and civil law which impose prohibitions or provide penalties, sanctions, or remedies against the same conduct prohibited by this article.
(b) This article shall not:
(1) Bar any cause of action or preclude the imposition of sanctions or penalties that would otherwise be available under state or federal law; or
(2) Impose liability on providers of an interactive computer service, communications service, commercial mobile service, or information service, including, but not limited to, an internet access service provider, advertising network or exchange, domain name registration provider, and a hosting service provider, if they provide the transmission, storage, or caching of electronic communications or messages of others or provide another related telecommunications service, commercial mobile radio service, or information service for use of such services by another person that is in violation of this article.
(a) A violation of this article shall be considered an unfair or deceptive act or practice which is unlawful and which shall be punishable under Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975.”
(b) A public or private right or remedy prescribed by Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975,” may be used to enforce this article.
(a) As used in this article, the term:
(1) “Consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes, including, but not limited to, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed.
(2) “High-volume third-party seller” means a participant in an online marketplace that is a third-party seller and that, in any continuous 12 month period during the previous 24 months, has entered into 200 or more discrete sales or transactions of new or unused consumer products of an aggregate total of $5,000.00 or more in gross revenues in this state made through the online marketplace and for which payment was processed by the online marketplace or through a third party.
(3) “Online marketplace” means any person or entity that operates a consumer-directed, electronically based or accessed platform that:
(A) Includes features that allow for, facilitate, or enable third-party sellers to engage in the sale, purchase, payment, storage, shipment, or delivery of a consumer product within this state;
(B) Is used by one or more third-party sellers for such purpose; and
(C) Has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(4) “Seller” means a person who sells, offers to sell, or contracts to sell a consumer product through an online marketplace's platform.
(5) “Third-party seller” means any seller, independent of an online marketplace, that sells, offers to sell, or contracts to sell a consumer product in this state through an online marketplace. The term ‘third-party seller’ does not include, with respect to an online marketplace:
(A) A seller that operates the online marketplace's platform; or
(B) A business entity that has:
(i) Made available to the general public the entity's name, business address, and working contact information;
(ii) An ongoing contractual relationship with the online marketplace to provide the online marketplace with the manufacture, distribution, wholesaling, or fulfillment of shipments of consumer products; and
(iii) Provided to the online marketplace the identity information required under subsection (a) of Code Section 10-1-941 that has been verified in accordance with subsection (d) of Code Section 10-1-941.
(6) “Verify” means to confirm information and documents provided to an online marketplace pursuant to this article through the use of one or more methods that enable an online marketplace to reliably determine that any such information and documents provided are valid, correspond to the seller or an individual acting on the seller's behalf, are not misappropriated, and are not falsified.
(a) An online marketplace shall require any high-volume third-party seller on its platform to provide, not later than ten days after qualifying as such, the following information to the online marketplace:
(1) A bank account number or, if the high-volume third-party seller does not have a bank account, the name of the payee for payments issued by the online marketplace to the high-volume third-party seller. This information may be provided by the high-volume third-party seller to the online marketplace or to a third party contracted by the online marketplace to maintain such information; provided, however, that the online marketplace ensures that it can obtain such information on demand from the third party;
(2) Contact information, which shall include:
(A) If the high-volume third-party seller is an individual, such individual's name; or
(B) If the high-volume third-party seller is not an individual, then:
(i) A copy of a valid government issued identification for an individual acting on behalf of such seller that includes the individual's name; or
(ii) A copy of a valid government issued record or tax document that includes the business name and physical address of the high-volume third-party seller;
(3) A business tax identification number or, if the high-volume third-party seller does not have a business tax identification number, a taxpayer identification number; and
(4) A current working email address and telephone number for the high-volume third-party seller.
(b) An online marketplace shall:
(1) Periodically, but not less than annually, notify each high-volume third-party seller on its platform of the requirement to keep current the information required under subsection (a) of this Code section; and
(2) Require each high-volume third-party seller on its platform to, not later than ten days after receiving the notice under paragraph (1) of this subsection, electronically certify as to the information required under subsection (a) of this Code section that:
(A) The high-volume third-party seller has provided any changes to such information, if any such changes have occurred;
(B) There have been no changes to such information; or
(C) The high volume third-party seller has previously provided any changes to such information to the online marketplace.
(c) In the event that a high-volume third-party seller does not provide the information or certification required under this Code section, the online marketplace shall, after providing such seller with written or electronic notice and an opportunity to provide such information or certification not later than ten days after the issuance of such notice, suspend any future sales activity of such seller until such seller provides such information or certification.
(d)(1) An online marketplace shall verify:
(A) The information and documents collected under subsection (a) of this Code section not later than ten days after such collection; and
(B) Any change in such information or to such documents not later than ten days after being notified of such change by a high-volume third-party seller under subsection (b) of this Code section.
(2) If a high-volume third-party seller provides a copy of a valid government issued tax document, any information contained within such tax document shall be presumed to be verified as of the date such document was issued.
(a) Except as provided in subsection (b) of this Code section, an online marketplace shall require any high-volume third-party seller with an aggregate total of $20,000.00 or more in annual gross revenues on its platform to provide to the online marketplace and disclose to consumers in a clear and conspicuous manner the following identity information:
(1) Full name of the high-volume third-party seller, including the high-volume third-party seller's name or company name or the name by which such seller or company operates on the online marketplace;
(2) Physical address of the high-volume third-party seller;
(3) Contact information for the high-volume third-party seller that will allow for direct, unhindered communication with such seller by consumers of the online marketplace, including:
(A) A current working telephone number;
(B) A current working email address; or
(C) Other means of direct electronic messaging, which may be provided to such high-volume third-party seller by the online marketplace;
provided, however, that the requirements of this paragraph shall not prohibit the online marketplace from preventing actual fraud, abuse, or spam through such communication; and
(4) Whether the high-volume third-party seller used a different seller to supply the product to the consumer upon purchase, and, upon the request of an authenticated purchaser, the information described in paragraphs (1) through (3) of this subsection relating to any such seller that is different than the high-volume third-party seller listed on the product listing page prior to purchase.
Such identity information shall be provided on the product listing page, directly or via hyperlink or, after the purchase is finalized, in the order confirmation message or other document or communication made to a consumer and in the consumer's account transaction history.
(b) Upon the request of a high-volume third-party seller, an online marketplace may provide for partial disclosure of the identity information required under subsection (a) of this Code section if the high-volume third-party seller certifies to the online marketplace that such seller:
(1) Does not have a business address and only has a residential street address, or has a combined business and residential address, then the online marketplace:
(A) Shall disclose only the country and, if applicable, the city and state in which such seller resides; and
(B) Shall inform consumers that there is no business address available for the high-volume third-party seller and that consumer inquiries should be submitted to such seller by telephone, email, or other means of electronic messaging provided to such seller by the online marketplace;
(2) Is a business that has a physical address for product returns, then the online marketplace shall disclose such seller's physical address for product returns; or
(3) Does not have a telephone number other than a personal telephone number, then the online marketplace shall inform consumers that there is no telephone number available for such seller and that consumer inquiries should be submitted to such seller's email address or other means of electronic messaging provided to such seller by the online marketplace.
(c) If an online marketplace becomes aware that a high-volume third-party seller has made a false representation to the online marketplace in order to justify the provision of a partial disclosure of the identity information under subsection (b) of this Code section, or that a high-volume third-party seller that has requested and received such a provision for a partial disclosure has not provided responsive answers within a reasonable time frame to consumer inquiries submitted to the seller by telephone, email, or other means of electronic messaging provided to such seller by the online marketplace, then, after providing the high-volume third-party seller with written or electronic notice and an opportunity to respond not later than ten days after the issuance of such notice, the online marketplace shall suspend any future sales activity of the high-volume third-party seller unless such seller consents to the disclosure of the identity information required under subsection (a) of this Code section.
(d) If a high-volume third-party seller does not comply with the requirements to provide and disclose information under this Code section, then, after providing such seller with written or electronic notice and an opportunity to provide or disclose such information not later than ten days after the issuance of such notice, the online marketplace shall suspend any future sales activities of such seller until the seller complies with such requirements.
An online marketplace shall disclose to consumers in a clear and conspicuous manner on the product listing of any high-volume third-party seller a reporting mechanism that allows for electronic and telephonic reporting of suspicious marketplace activity to the online marketplace.
(a) Information or documents collected solely to comply with the requirements of this article shall not be used for any other purpose unless required by law.
(b) An online marketplace shall implement and maintain reasonable security procedures and practices, including administrative, physical, and technical safeguards, appropriate to the nature of the data and the purposes for which the data will be used, to protect the information or documents collected to comply with the requirements of this article from unauthorized use, disclosure, access, destruction, or modification.
(a) If the Attorney General has reason to believe that any online marketplace has violated or is violating this article and such violation affects one or more residents of this state, the Attorney General may bring a civil action in any appropriate court to:
(1) Enjoin further such violation by the defendant;
(2) Enforce compliance with this article;
(3) Obtain damages, restitution, or other compensation on behalf of the residents of this state; and
(4) Obtain other remedies permitted under state law.
(b) Any violation of this article shall additionally be a violation of Part 2 of Article 15 of this chapter, the “Fair Business Practices Act of 1975”; provided, however, that only public remedies as administered by the Attorney General shall be available under such part for violations of this article.
(c) Nothing in this article shall be construed to prohibit any district attorney, law enforcement officer, official, or agency of this state from initiating or continuing any proceeding in a court against an online marketplace for a violation of any other civil law or a criminal law of this state.
As used in this chapter and any rules or regulations promulgated pursuant to this chapter, the term:
(1) “Commissioner” means the Commissioner of Agriculture, the primary constitutional officer of the Georgia Department of Agriculture, charged with the responsibility of enforcing weights and measures laws and regulations.
(2) “Correct,” as used in connection with weights and measures, means conformance to all applicable requirements of this chapter.
(3) “Measure” means a volume of standard dry or liquid capacity.
(4) “Package” means any commodity put up or packaged in any manner, in advance of sale, in units suitable for either wholesale or retail sale.
(5) “Person” means and includes individuals, partnerships, firms, corporations, companies, societies, and associations.
(6) “Primary standards” means the physical standards of the State of Georgia which serve as the legal reference from which all other standards and weights and measures are derived.
(7) “Sale from bulk” or “bulk sale” means the sale of commodities when the quantity is determined at the time of the sale.
(8) “Secondary standards” means the physical standards which are traceable to the primary standards through comparisons, using acceptable laboratory procedures, and used in the enforcement of weights and measures laws and regulations.
(9) “Weight,” as used in connection with any commodity, means net weight.
(10) “Weights and measures” means all weights and measures of every kind, instruments and devices for weighing and measuring, and any appliance and accessories associated with any or all such instruments and devices.
The system of weights and measures in customary use in the United States and the metric system of weights and measures are jointly recognized; and either one, or both, of these systems shall be used for all commercial purposes in the state. The definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents as published by the National Institute of Standards and Technology are recognized and shall govern weighing and measuring equipment and transactions in the State of Georgia.
Weights and measures that are traceable to the United States prototype standards supplied by the federal government, or approved as being satisfactory by the National Institute of Standards and Technology, shall be the State of Georgia's primary standards of weights and measures and shall be maintained in such calibration as prescribed by the National Institute of Standards and Technology. All secondary standards may be prescribed by the Commissioner and shall be verified upon their initial receipt, and as often thereafter as deemed necessary, by the Commissioner.
The specifications, tolerances, and other technical requirements for commercial weighing and measuring devices as adopted by the National Conference on Weights and Measures and published in the National Institute of Standards and Technology Handbook 44, entitled “Specifications, Tolerances, and Other Technical Requirements for Commercial Weighing and Measuring Devices,” and supplements thereto or revisions thereof, shall apply to commercial weighing and measuring devices in the State of Georgia, except insofar as modified or rejected by rules and regulations.
The Commissioner shall:
(1) Maintain traceability of the State of Georgia's standards to the National Institute of Standards and Technology;
(2) Enforce this chapter;
(3) Promulgate, adopt, and issue reasonable rules and regulations for the enforcement of this chapter. Such rules and regulations shall have the force and effect of law;
(4) Establish standards of weight, measure, or count and reasonable standards of fill. The Commissioner is authorized to establish standards for the presentation of cost-per-unit information for any packaged commodity;
(5) Grant any exemptions from this chapter or any rules or regulations promulgated pursuant thereto when appropriate to the maintenance of good commercial practices within the state;
(6) Conduct investigations to ensure compliance with this chapter;
(7) Delegate to appropriate personnel any of these responsibilities for the proper administration of his office;
(8) Test the standards of weight and measure used by any inspector of the State of Georgia, adjust where necessary, and approve the same when found to be, or made to be, correct;
(9) Inspect and test weights and measures kept, offered, or exposed for sale;
(10) Inspect and test, to ascertain if they are correct, weights and measures commercially used:
(A) In determining the weight, measure, or count of commodities or things sold, or offered or exposed for sale, on the basis of weight, measure, or count; or
(B) In computing the basic charge or payment for services rendered on the basis of weight, measure, or count;
(11) Test all weights and measures used in checking the receipt or disbursement of supplies in every institution for the maintenance of which funds are appropriated by the General Assembly;
(12) Approve for use such weights and measures as he finds to be correct. The Commissioner, in his sole discretion, is authorized to mark approved weights and measures. He shall reject and mark as rejected any weights and measures he finds to be incorrect. Weights and measures that have been rejected may be seized if not corrected within the time specified or if used or disposed of in a manner not specifically authorized. The Commissioner shall condemn and may seize weights and measures found to be incorrect that are not capable of being made correct;
(13) Employ, in carrying out this Code section, testing, inspection, and sampling procedures which are in accordance with this chapter, rules and regulations promulgated pursuant to this chapter, or procedures designated in Handbooks 130 and 133 of the National Institute of Standards and Technology;
(14) Prescribe, by regulation, the appropriate term or unit of weight or measure to be used whenever he determines in the case of a specific commodity that an existing practice of declaring the quantity by weight, measure, numerical count, or combination thereof does not facilitate value comparisons by consumers or offers an opportunity for consumer confusion;
(15) Establish, by regulation, a schedule of fees to cover the costs of the inspection and certification of weighing and measuring devices, the registration of scale mechanics, the certifying of weights, and scale registration; and
(16) Allow reasonable variations from the stated quantity of contents. Such variations shall include those caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practices only after the commodity has entered intrastate commerce.
When necessary for the enforcement of this chapter or rules or regulations promulgated pursuant to this chapter, the Commissioner is:
(1) Authorized to enter any commercial premises when open for business, except that, in the event such premises are not open to the public, he shall first present his credentials and obtain consent before making entry thereto, unless a search warrant has previously been obtained;
(2) Empowered to issue stop-use, hold, and removal orders with respect to any commercially used weights and measures and stop-sale, hold, and removal orders with respect to any packaged commodities or bulk commodities kept, offered, or exposed for sale;
(3) Empowered to seize, for use as evidence, without formal warrant, any incorrect or unapproved weight, measure, package, or commodity found to be used, retained, offered, or exposed for sale or sold in violation of this chapter or rules or regulations promulgated pursuant thereto;
(4) Empowered to stop any commercial vehicle and, after presentment of his credentials, inspect the contents, require that the person in charge of the vehicle produce any documents in his possession concerning the contents of the vehicle, and require him to proceed with the vehicle to some specified place, which shall not be more than 25 miles distant from the location where the vehicle was stopped, for inspection;
(5) Authorized to investigate and prosecute any person violating this chapter.
No person shall sell, offer, or expose for sale less than the quantity he represents nor take any more than the quantity he represents when, as buyer, he furnishes the weight or measure by means of which the quantity is determined.
No person shall misrepresent the price of any commodity or service sold, offered, exposed, or advertised for sale by weight, measure, or count nor represent the price in any manner calculated to, or tending to, mislead or in any way deceive a person.
Except as otherwise provided by rules or regulations promulgated by the Commissioner, commodities in a liquid form shall be sold by liquid measure or by weight; and commodities not in the liquid form shall be sold only by weight, measure, or count, so long as the method of sale provides accurate quantity information.
Whenever the quantity is determined by the seller, bulk sales in excess of $20.00 and all bulk deliveries of heating fuel shall be accompanied by a delivery ticket containing the following information:
(1) The name and address of the vendor and purchaser;
(2) The date delivered;
(3) The quantity delivered and the quantity upon which the price is based, if this differs from the delivered quantity;
(4) The identity of the goods or commodities in the most descriptive terms commercially practicable, including any quantity representation made in connection with the sale; and
(5) The count of individually wrapped packages, if more than one.
Except as otherwise provided in this chapter or by rules or regulations promulgated pursuant to this chapter, any package kept for the purpose of sale or offered or exposed for sale shall bear on the outside of the package a definite, plain, and conspicuous declaration of:
(1) The identity of the commodity in the package, unless the same can easily be identified through the wrapper or container;
(2) The quantity of contents in terms of weight, measure, or count; and
(3) The name and place of business of the manufacturer, packer, or distributor in the case of any package kept, offered, exposed for sale, or sold in any place other than on the premises where packed.
In addition to the declarations required by Code Section 10-2-11, any package which is one of a lot containing random weights of the same commodity and bearing the total selling price of the package shall contain a plain and conspicuous declaration of the price per single unit of weight on the outside of the package.
Whenever a packaged commodity is advertised in any manner with the retail price stated, a declaration of quantity as is required by this article or by rule or regulation of the Commissioner of Agriculture shall appear on the package and shall be closely and conspicuously associated with the retail price. Where a dual declaration is required, only the declaration that sets forth quantity in terms of the smaller unit of weight or measure need appear in the advertisement.
It shall be unlawful for any person to:
(1) Use or possess any incorrect weight or measure for use in commerce;
(2) Remove any tag, seal, or mark from any weight or measure without specific written authorization from the Commissioner;
(3) Hinder or obstruct the Commissioner or any deputy or other official designated by the Commissioner and charged with the enforcement of the laws of this state dealing with weights and measures in the performance of his duties.
It shall be the duty of the Commissioner to adopt standards for moisture testing equipment utilized in determining the moisture content of grain offered for sale in this state. Upon the establishment of such standards, it shall be unlawful for any person to utilize any such equipment which does not comply with the standards established pursuant to this Code section. It shall be the duty of the Commissioner to enforce this Code section and to make such inspections as shall be necessary to assure that all moisture testing equipment complies with the standards.
No person shall operate moisture testing equipment to determine the moisture content of grain offered for sale unless such person shall be trained in the operation thereof and shall have obtained a permit from the Commissioner after submitting proof to the Commissioner of his ability to such equipment. Any such permit shall be valid until suspended or revoked for cause after notice and hearing, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” There shall be no fee for such permit.
The Commissioner is authorized to inspect scales used for the calculation and determination of fees or charges for the transportation of bulk materials, packages, goods, and commodities in intrastate shipments by rail, parcel services, motor vehicles, motor transport, buses, and airlines.
Whenever there shall exist a weight or measure or weighing or measuring device in or about any place in which or from which buying or selling is commonly carried on, there shall be a rebuttable presumption that such weight or measure or weighing or measuring device is regularly used in the business conducted at such place.
(a) As used in this Code section, the term “compressed natural gas” means a mixture of hydrocarbon gases and vapors, consisting principally of methane in gaseous form, that has been compressed for use as a motor fuel.
(b) Notwithstanding any provision contained in the National Institute of Standards and Technology Handbook or any other national standard that may be adopted in this state by law or regulation, any dispensing device used to dispense compressed natural gas for use as a motor vehicle fuel may display the measurement of compressed natural gas in gallon equivalent units or fractions thereof and may compute the sales price of compressed natural gas according to such units or fractions thereof; provided, however, that such gallon equivalent shall contain not less than 110,000 British thermal units.
The Commissioner or his representative, at the discretion of the Commissioner, is authorized to apply to any court of competent jurisdiction for a temporary or permanent injunction restraining any person from violating this chapter.
(a) As an alternative to criminal or other civil enforcement, the Commissioner, in order to enforce this article or any orders, rules, or regulations promulgated pursuant thereto, after a hearing, may issue an administrative order imposing a penalty not to exceed $1,000.00 for each violation whenever the Commissioner, after a hearing, determines that any person has violated this article or any rules, regulations, or orders promulgated pursuant to this article. The hearing and any administrative review thereof shall be conducted in accordance with the procedure for contested cases under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(b) Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by any final order or action of the Commissioner shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50.
(c) All penalties recovered as provided in this Code section shall be paid into the state treasury.
(d) The Commissioner may file in the superior court wherein the person under order resides or, if said person is a corporation, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment had been rendered in an action duly heard and determined by the court.
(e) The penalty prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available to the Commissioner with respect to any violation of this article and any orders, rules, or regulations promulgated pursuant thereto.
Any person, firm, partnership, corporation, society, or association who shall violate this article, relating to weights and measures in general, or any rule or regulation promulgated pursuant to this article, shall be guilty of a misdemeanor.
All pulpwood, sawtimber, poles, and other types of timber sold or measured in this state by weight shall be sold on the basis of tonnage or pounds, with one ton equaling 2,000 pounds. Nothing in this Code section shall prohibit the sale or measurement of such products by measured volume, so long as such measurement is not calculated by weight.
Any person who shall weigh, measure, or record the indications or readings of weighing or measuring and declare the weight, measure, reading, or recording to be the true weight, measure, reading, or recording of any commodity, article, or product may be licensed under this article and shall be known as a certified public weigher of Georgia.
(a) Any person who desires to be a certified public weigher in this state shall apply for and obtain a license permit from the Commissioner by filing a formal application as follows:
I, _____, a citizen of the United States, residing at _____, County of _____, having familiarized myself with the law relative to licensing of certified public weighers, do hereby make application for license permit as a certified public weigher.
I certify that I am morally and physically fit to perform the duties imposed upon a certified public weigher and that I will, if licensed, faithfully and accurately make true recordings and will comply with the law and rules and regulations relating to certified public weighers to the best of my knowledge and ability.
| | __________________________ | | ___________________________________________________________ | | --- | --- | --- | --- | | | Name | | Address |
We, the undersigned, being citizens of Georgia, do certify that the applicant herein is a person of good moral character and that the statements made in the foregoing application are true to the best of our knowledge and belief and that our endorsement is without fear of embarrassment.
| | __________________________ | | ___________________________________________________________ | | --- | --- | --- | --- | | | Name | | Address | | | | | | | | __________________________ | | ___________________________________________________________ | | | Name | | Address | | | | | | | | __________________________ | | ___________________________________________________________ | | | Name | | Address |
(b) Upon his appointment as a certified public weigher, a license permit shall be issued to him authorizing the applicant to weigh, measure, and record any and all commodities.
Certified public weighers shall be licensed for a period of one year beginning on July 1 and ending on June 30, next. A fee of $15.00 shall be paid to the Commissioner by each person so licensed at the time application is filed. A fee of $15.00 shall be required for each renewal of a license as a certified public weigher. In addition thereto, the applicant shall pay the actual cost of seals required under this article. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
After reasonable notice and opportunity for a hearing before the Commissioner, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” any license permit as a certified public weigher may be revoked by the Commissioner for malfeasance in office or for the violation of this article or for violation of any rule or regulation promulgated under the terms of this article.
It shall be the duty of every certified public weigher licensed under this article to obtain through the Department of Agriculture an official seal which shall have inscribed thereon the following words: “Georgia Certified Public Weigher” or such other design or legend as the Commissioner may deem appropriate. The seal shall be stamped or impressed upon each and every weight, measure, count, reading, or recording certificate issued by such certified public weigher. When so applied, the certificate shall be recognized and accepted as a declaration of the official, true, and accurate weight, measure, count, reading, or recording of the commodity, product, or article weighed, measured, or counted with the tolerance allowed by Article 1 of this chapter.
For the weighing of leaf tobacco sold or offered for sale at a licensed tobacco warehouse, an official seal for certification of all weights made at the warehouse may be issued directly to the licensed warehouseman and may be used for all weighings made at the warehouse, provided that all weighings shall be made by certified public weighers.
In the interest of public welfare, the seal provided for a certified public weigher shall be the property of the State of Georgia and shall be returned to the Commissioner upon termination of the duties as a certified public weigher.
It shall be the duty of bonded certified public weighers licensed under this article to issue certificates of weight, measure, count, or recording on forms to be approved by the Commissioner and to comply with this article and the rules and regulations promulgated relating thereto.
It shall be unlawful for any certified public weigher to use any weights, measures, reading, or recording device which has not been tested and approved by the Commissioner or his assistant, deputy, or inspector in accordance with Article 1 of this chapter.
(a) On and after March 9, 1956, all leaf tobacco sold, or offered for sale, in a tobacco warehouse shall be weighed by a certified public weigher who has been licensed by the Commissioner.
(b) Livestock of any kind sold or offered for sale at any sales or auction barn shall be weighed by a certified public weigher who has been licensed by the Commissioner.
Any itinerant dealer who shall sell or offer to sell coal or coke by a weight other than a weight certified by a person licensed under this article shall be guilty of a misdemeanor.
This article shall be administered by the Commissioner of Agriculture, and he is empowered to make and promulgate rules and regulations necessary for the enforcement of this article and may regulate sales order of livestock at auction sales barns.
(a) As an alternative to criminal or other civil enforcement, the Commissioner, in order to enforce this article or any orders, rules, and regulations promulgated pursuant thereto, after a hearing, may issue an administrative order imposing a penalty not to exceed $1,000.00 for each violation whenever the Commissioner, after a hearing, determines that any person has violated this article or any rules, regulations, or orders promulgated under this article. The hearing and any administrative review thereof shall be conducted in accordance with the procedures for contested cases under Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(b) Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by any final order or action of the Commissioner shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50.
(c) All penalties recovered as provided in this Code section shall be paid into the state treasury.
(d) The Commissioner may file in the superior court wherein the person under order resides, or, if said person is a corporation, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal, whereupon said court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment has been rendered in a suit duly heard and determined by the court.
(e) The penalty prescribed in this Code section shall be concurrent, alternative, and cumulative with any and all other civil, criminal, or alternative rights, remedies, forfeitures, or penalties provided, allowed, or available to the Commissioner with respect to any violation of this article and any orders, rules, or regulations promulgated pursuant thereto.
(a) Any certified public weigher who shall issue a certificate giving a false weight, measure, count, or reading, or who shall misrepresent the weight, measure, count, or reading of any commodity, produce, or article, or who shall otherwise violate this article or any of the rules promulgated by authority of this article shall be guilty of a misdemeanor; and, in addition thereto, his license as a certified public weigher shall be revoked and he shall forfeit his seal, which, when so forfeited, shall be turned over to the Commissioner.
(b) Any person, firm, or corporation who shall request a certified public weigher to weigh, measure, count, read, or record any commodity, product, or article falsely or incorrectly or who shall request a false or inaccurate certificate of weight, measure, count, reading, or recording; or any person issuing a certificate of weight, measure, count, or recording within the meaning of this article who is not licensed as a certified public weigher in accordance with this article; or any person who shall in any way impersonate by acting as, or for, a certified public weigher; or any person who shall erase, change, or alter any certificate issued by a certified public weigher, shall be guilty of a misdemeanor.
(c) Failure or refusal of a person licensed as a certified public weigher under this article to surrender the official seal to the Commissioner upon termination of his license or for malfeasance in office shall be a misdemeanor, and any person convicted thereof shall be punished by a fine of not less than $10.00 nor more than $200.00, or by imprisonment for not more than three months, in the discretion of the court.
The transfer of notes secured by a mortgage or otherwise conveys to the transferee the benefit of the security. If more than one note is secured and the mortgagee transfers some and retains others, the holder of the transferred notes has a preference over the mortgagee if the security is insufficient to pay all the notes.
In all cases the endorser may be sued in the same action and in the same county with the maker or drawer or acceptor.
All promissory notes, contracts, or other evidences of debt taken by any person, agent, company, or corporation for the purchase price of any patent right, copyright, or proprietary right or territory for the sale of any such right or for the sale of any patented article or thing or copyrighted article or thing or where there is a proprietary ownership or right and sold by such person, agent, company, or corporation through or by any peddler, agent, or traveling salesman traveling for the purpose of making such sales shall have expressed on the face of such note, contract, or other evidence of debt the consideration of the same, stating the thing or article for which the same was given, provided this Code section shall not apply to merchants or manufacturers selling and delivering such goods directly from their stores or warehouses in the regular course of business.
Any person, firm, company, or corporation who may purchase any note, contract, or other evidence of debt given for any of the articles or things set forth in Code Section 10-3-3 when the consideration of said note is expressed on the face thereof as is provided in said Code section, whether before due and without notice or otherwise, where the consideration is so expressed, shall take the same with all the equities existing between the original parties; and the maker of such note, contract, or other evidence of debt shall have the right to make any defense to the payment of same as against such purchasers that could have been made against the original payee.
If any person shall violate Code Section 10-3-3 by selling any of the articles mentioned in that Code section without expressing on the face of notes or contracts or other evidences of debt given for the purchase price the article or thing for which the same was given, he shall be guilty of a misdemeanor.
Notwithstanding any provision of law to the contrary, a bank operating under the authority of any territory of the United States shall satisfy the definition of an issuer provided in Code Section 11-5-102.
This article shall be cited as the “Georgia State Warehouse Act.”
As used in this article, the term:
(1) “Agricultural product” means individually and collectively all grains, cotton, meat, fruits, vegetables, and other farm products offered or accepted for storage in their raw or natural state; provided, however, that products which have been processed only to the extent of shelling, cleaning, and grading shall be included; and, provided, further, that any warehouseman storing refrigerated or processed agricultural products may, at his option, come under the operation of this article.
(2) “Commissioner” means the Commissioner of Agriculture.
(3) “Grain” means all products commonly classed as grain, such as wheat, corn, oats, barley, rye, rice, field peas, soybeans, clover, grain sorghum, and other products ordinarily stored in grain warehouses.
(4) “Person” means any individual, partnership, firm, corporation, association, or other organized group having a joint or common interest.
(5) “Producer” means a farmer or grower of agricultural products.
(6) “Public warehouse” or “warehouse” means any building, structure, or other enclosure other than a refrigerated building or structure in this state at which any agricultural product is received from the public for storage for hire.
(7) “Receipt” means a warehouse receipt issued under this article.
(8) “Storer” means the depositor of agricultural products stored under a nonnegotiable receipt or the holder of a negotiable receipt for such products issued by a warehouseman licensed under this article.
(9) “Warehouseman” means a person engaged in the business of operating a warehouse or any person who uses or undertakes to use a warehouse for the purpose of storing agricultural products for compensation for more than one person; provided, however, any person operating a warehouse not covered by this article may elect to come under this article.
Within the police powers of the state and for the general welfare, there is established as provided in this article a warehouse system for the State of Georgia as a section of the Marketing Division of the Department of Agriculture under the supervision and control of the Commissioner of Agriculture. The Commissioner is authorized to appoint a supervisor of such section, subject to the provisions of Chapter 20 of Title 45. The supervisor shall give bond in such amount as the Commissioner shall determine for the faithful performance of his duties and the proper accounting of all funds coming into his hands.
(a) The provisions of this article shall not be construed to apply to:
(1) Any warehouse licensed under the United States Warehouse Act, 1 as amended, if the licensee has in effect a federal bond in an amount not less than the amount of the bond which would be required under subsections (a) and (b) of Code Section 10-4-12; or
(2) Any warehouse kept or maintained by any warehouseman on the premises of any other person under a contract between the warehouseman and the other person for the primary purpose of storage therein of agricultural products of the other person, provided that no agricultural products are stored therein for the account of any producer other than the other person; provided, however, that such warehouseman may come under this article at his option.
(b) Any person, firm, corporation, or association storing peanuts, cottonseed, or tobacco may be required only, at his or its option, by application, to qualify and come under this article.
1 7 U.S.C.A. § 241 et seq.
(a) It shall be the duty of the Commissioner to foster and promote in every possible way good warehousing practices so as to afford proper storage of agricultural products; to enforce with vigilance this article; to promulgate such rules and regulations having the force and effect of law as will effectuate the purposes of this article.
(b) The Commissioner shall, on or before January 1, prepare and submit to the Governor and the General Assembly a report covering all the activities of the Commissioner for the preceding year which shall, among other things, show the number of licenses issued, the number of warehouse examinations made on application for license, and the number of examinations of warehouses to ascertain whether their operation, condition, and business are in compliance with this article and the rules and regulations promulgated under this article. The report shall account for all fees collected and money expended and shall indicate the fiscal needs for administration of this article for the succeeding year. The report may be printed by the Commissioner and distributed to any persons, organizations, and public officials as may be interested.
(c) The Commissioner is authorized to investigate the storage and weighing of agricultural products; at any time, to examine or cause to be examined all warehouses under this article and all agricultural products stored therein; to determine whether such warehouses are suitable for the proper storage of the agricultural product or products stored or proposed to be stored therein; and to classify such warehouses in accordance with their ownership, location, surroundings, capacity, conditions, and other qualities, and as to the kinds of licenses issued or that may be issued for them pursuant to this article.
(d) The Commissioner may make such rules and regulations as are necessary or appropriate governing the operation of warehouses under this article with respect to their receipt, care, and delivery of and responsibility for agricultural products received at such warehouses for storage; the issuance, cancellation, division, and consolidation of receipts and other matters relative to the management of the business of such warehouses; and such other rules and regulations as are necessary or appropriate to carry out this article, to the end that any farmer or producer or storer of agricultural commodities may be assured that agricultural products stored by him are maintained in as nearly the same status as practicable according to the grade, standard, and condition as when stored.
(a) Prior to the adoption or change of any rule or regulation, the Commissioner shall promulgate the proposed rule or regulation or change and afford interested persons opportunity to be heard and submit data and views orally or in writing.
(b) Any person with a real and substantial interest who is affected by a rule or regulation of the Commissioner and who believes that the Commissioner, in the promulgation or enforcement of such rule or regulation, has exceeded authority vested in him by the General Assembly under the Constitution of Georgia or of the United States shall have the right to petition the Commissioner of Agriculture for the repeal or revision of such rule by pointing out in what respect and for what reasons he contends the rule to be unlawful or unconstitutional. The Commissioner is required to consider every such petition and afford the petitioner an opportunity to be heard within 30 days and, after argument, the Commissioner shall determine the merits of the petition. If the Commissioner decides in whole or in part in favor of the petitioner, the Commissioner shall take corrective measures within 30 days after the hearing to give the petitioner relief in every respect from any unlawful or unconstitutional rule or regulation. The foregoing is expressly made an administrative remedy; and every person affected by any rule or regulation or any act of the Commissioner is required to exhaust this remedy before taking any other steps, except as otherwise provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(c) All hearings before the Commissioner shall be stenographically reported by a qualified court reporter and shall be available to any interested party upon payment of the stenographic costs.
All rules and regulations, orders, schedules of charges, and fees approved or promulgated or issued by the Commissioner under the terms of this article shall be of uniform application to all warehouses of the same class throughout the state.
Nothing contained in this article shall be interpreted so as to conflict with any existing regulations of the federal government, or of the federal and state governments jointly, governing inspection of goods in interstate commerce.
Any person aggrieved by a final determination or decision of the Commissioner in any matter in which a hearing is required or authorized by this article or the state or federal constitutions is entitled to judicial review thereof in accordance with the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” for the judicial review of contested cases.
(a) No person shall operate a warehouse as defined under this article in this state unless he or she has a valid, effective license issued by the Commissioner pursuant to this article for such warehouse. All such licenses shall expire on June 30 of each year. No license so issued shall describe more than one warehouse nor grant permission to operate any warehouse other than the one described therein, except that, if a warehouseman operates two or more warehouses in the same county or in adjoining counties or operates two or more grain warehouses in nonadjoining counties in conjunction with each other and if but one set of books and records is kept with respect to weight certificates, scale tickets, inspection certificates, and receipts issued for agricultural products stored in all such warehouses, only one license shall be required for the operation of all such warehouses.
(b) The Commissioner is authorized to issue to any warehouseman a license for the conduct of a warehouse or warehouses in accordance with this article and with such rules and regulations as may be made under this article, provided that each warehouse is found suitable for the proper storage of the particular agricultural product or products for which a license is to be issued and that such warehouseman agrees, as a condition to the granting of the license, to comply with all the terms of this article and the rules and regulations prescribed under this article. It shall be the duty of the Commissioner to issue a license to any responsible person applying therefor who can show that he is ready, willing, and able to meet the requirements of this article and the regulations under this article.
(c)(1) Each applicant for a license or renewal shall furnish with his application a current financial statement which shall include:
(A) A balance sheet;
(B) A profit and loss statement of income;
(C) A statement of retained earnings; and
(D) A statement of changes in financial position.
(2) The chief executive officer for the business shall certify under penalties of perjury that the statements as prepared accurately reflect the financial condition of the business as of the date named and fairly represent the results of operations for the period named.
(3) Except as otherwise provided in this paragraph, each applicant shall have the financial statements required in paragraph (1) of this subsection audited by an independent certified public accountant. Alternatively, financial statements audited or reviewed by an independent public accountant will be accepted with the understanding that the applicant will be subject to an additional on-site examination by the Commissioner and to an audit by the Commissioner. Audits and reviews by independent certified public accountants and independent public accountants specified in this Code section shall be made in accordance with standards established by the American Institute of Certified Public Accountants. The accountant's certification, assurances, opinion, comments, and notes on such statements, if any, shall be furnished along with the statements. Applicants who cannot immediately meet these requirements may apply to the Commissioner for a temporary waiver of this provision. The Commissioner may grant such waiver for a temporary period not to exceed 180 days if the applicants can furnish evidence of good and substantial reasons therefor. This paragraph shall not be applicable to any applicant who maintains a bond in the maximum amount required by subsection (a) of Code Section 10-4-12.
If not otherwise required by this article, any person operating a warehouse for the storage of agricultural products may elect to come within this article and, upon approval of the Commissioner, may be licensed under this article. As a condition to the granting of a license under this article, the applicant must agree to comply with this article and any and all regulations promulgated under this article, as well as any and all regulations issued by the Commissioner relating to the storage of agricultural products in the warehouse of the applicant.
(a) Every person intending to engage in business as a warehouseman under this article shall, prior to commencing such business and periodically thereafter as the Commissioner shall require, execute and file with the Commissioner a good and sufficient bond to the state to secure the faithful performance of his or her obligation as a warehouseman under the terms of this article and the rules and regulations prescribed under this article, such bond to be computed in direct ratio to the licensed storage capacity of the warehouse bonded. The bond shall be executed by a surety corporation authorized to transact business in this state and approved by the Commissioner. Such bond shall be upon forms prescribed by the Commissioner. Any and all bond applications shall be accompanied by a certificate of “good standing” issued by the Commissioner of Insurance. If any company issuing a bond shall be removed from doing business in this state, it shall be the duty of the Commissioner of Insurance to notify the Commissioner of Agriculture within 30 days. The Commissioner shall have authority to fix the bond for any part of licensed storage capacity of the warehouse being used; but in no event shall the amount of the bond be required to exceed 15 percent of the value of the products stored and the bond shall be in such form and amount and shall have such surety or sureties, subject to service of process in actions on the bonds with this state, as the Commissioner may prescribe; provided, however, the minimum bond to be posted for each warehouse shall be $20,000.00 and the maximum bond to be required for each warehouse shall be $300,000.00.
(b) If a warehouseman is also a grain dealer, the amount of the required bond shall be the greater of the bond required by subsection (a) of this Code section or the bond required under Code Section 2-9-34 for grain dealers who are not licensed under this article.
(c) Whenever the Commissioner shall determine that a previously approved bond has for any cause become insufficient, the Commissioner may require an additional bond or bonds to be given by the warehouseman concerned, conforming with the requirements of this Code section. Unless the additional bond or bonds are given within the time fixed by a written demand therefor, or if the bond of the warehouseman is canceled, the license of such warehouseman shall be immediately revoked by operation of law without notice or hearing.Code Sections 10-4-6 and 10-4-7 shall apply to this as well as all other Code sections of this article.
Upon the filing with and approval by the Commissioner of a bond, in compliance with this article, for the conduct of a warehouse under this article, such warehouse may be designated as state bonded under this article; but no warehouse shall be designated as a state bonded warehouse under this article and no name or description conveying the impression that it is so bonded shall be used unless a bond, as provided for in Code Section 10-4-12, has been filed with and approved by the Commissioner and unless a license issued under this article for the conduct of such warehouse is valid and effective.
(a) Any person claiming that he or she has been damaged by a breach of the conditions of a bond given by a licensee as provided in Code Section 10-4-12 may enter a complaint to the Commissioner. Such complaint shall be a written statement of the facts constituting the complaint and must be made within 180 days of the alleged breach. If the Commissioner determines that the complaint is prima facie a breach of the bond, and the matter can not be amicably resolved within 15 days, the Commissioner shall publish a solicitation for additional complaints regarding breaches of the bond for a period of not less than five consecutive issues in a newspaper of general circulation and in such other publications as the Commissioner shall prescribe. Additional complaints must be filed within 60 days following initial public notification of a breach of the bond. Civil actions on the breach of such bond shall not be commenced less than 120 days nor more than 547 days from the initial date of public notification of such breach of the bond.
(b) Upon the filing of the complaint in the manner provided in this Code section, the Commissioner shall investigate the charges made and, at his discretion, order a hearing before him or his hearing officer giving all parties concerned notice of the filing of such complaint and the time and place of such hearing. At the conclusion of the hearing, the Commissioner shall report his findings and render his conclusion concerning the complaint to the complainant and respondent in the case, who shall have 15 days following such report in which to make effective and satisfy the Commissioner's conclusions.
(c) If such settlement is not effected within such time, the Commissioner or the claimant may institute appropriate legal proceedings to enforce the claim. If the claimant is not satisfied with the ruling of the Commissioner, he may commence and maintain an action against the principal and surety on the bond of the parties against whom the complaint is registered, as in any civil action.
(d) If the bond or collateral posted is insufficient to pay the valid claims of claimants in full, the Commissioner may direct that the proceeds of the bond shall be divided pro rata among the claimants.
In addition to the general powers conferred by Code Section 10-4-5, the Commissioner and his or her duly authorized agents or employees shall have full power and authority to inspect public warehouses operated under this article, to inventory, and to check the agricultural products stored so as to ascertain the conditions of such products and to determine whether or not the business is conducted in such a manner as to protect the interest of persons who are storing or may store such products. The inspectors shall make sworn reports of their findings to the Commissioner, who shall hold and keep such reports in the records of his or her office. Such inspections shall be made as often as deemed necessary by the Commissioner, but not less than twice during any license period and, in addition, as often as requested by the warehouseman.
Each inspector and examiner employed by the Commissioner for the inspection and examination of warehouses licensed under this article shall be bonded in an amount not less than $5,000.00, or in such greater amount as the Commissioner deems necessary, for the faithful performance of his duties and for the proper accounting of all funds coming into his hands. The cost of the bond shall be paid by the Department of Agriculture.
Warehousemen coming under this article shall pay an annual license fee which includes all inspections in an amount based on storage capacity in an amount fixed by rule or regulation of the Commissioner. These fees shall not exceed actual cost of inspections and are inclusive. The amount paid shall be based on storage capacity and shall be at least $600.00 and no more than $2,500.00 for grain or cotton warehouses and $600.00 to $2,500.00 for other agricultural products facilities desiring to come under this article. Each license so issued shall expire on June 30 of each year, and each application for license must be accompanied by the license fee. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
Any agricultural product delivered to a warehouse under this article shall be presumed to be delivered for storage.
(a) Unless otherwise required by law or by rule or regulation, an original receipt shall be issued for cotton and, at the option of the warehouseman or depositor, for any other agricultural products owned or stored by the warehouseman under this article. No receipt shall be issued, however, unless such products are actually stored in the warehouse at the time of the issuance of the receipt. The receipted agricultural product will remain the property of the depositor until it is transferred or sold by him or her. Initial receipts for cotton shall be issued in the name of the producer. Transfers or sales from the cotton producer shall be endorsed by his or her signature on forms authorized by the Commissioner.
(b) To regulate receipts issued by warehousemen licensed under this article, receipts issued by such warehousemen shall be obtained by warehousemen from approved printers and delivered through the Department of Agriculture at the expense of the warehousemen. Orders of the warehousemen for receipts from printers approved by the Commissioner shall be forwarded to the Department of Agriculture for approval as to the form and source of supply of the receipts. To regulate further the receipts issued under this article, the printer shall transmit all receipts printed for a warehouseman to the Department of Agriculture, so as to enable the Commissioner to maintain an accurate record of the numbers of such receipts and the quantity delivered. It shall be a violation of this article for any warehouseman to issue any warehouse receipt except upon receipts obtained as provided in this Code section. It shall be unlawful for any printer to print any warehouse receipt for any warehouseman licensed under this article without the approval of the Commissioner.
(c) The Commissioner is authorized to permit the use of warehouse receipts obtained prior to March 17, 1959, upon receipt by the Commissioner of proof satisfactory to the Commissioner of the quantities and sources of such receipts held by the warehouseman.
(d) The Commissioner is authorized to accept as full compliance with this Code section the submission of a sample of the receipts to be printed and a copy of the invoice covering the shipment of such receipts that shows the quantity and quality of the receipts printed for the warehousemen.
(e) The Commissioner is authorized to permit the use of electronic warehouse receipts and to accept as full compliance with this Code section electronic warehouse receipts obtained by warehousemen from insured electronic warehouse receipt providers approved by and under an operational agreement with the Department of Agriculture. A computer printout issued on behalf of a state licensed warehouse by an approved electronic warehouse receipt provider shall be sufficient to comply with this article if such printout is sufficient to meet existing requirements of the electronic warehouse receipt program administered by the United States Department of Agriculture.
(a) Warehouse receipts need not be in any particular form, but every such receipt must embody within its written or printed terms:
(1) The location of the warehouse where the goods are stored;
(2) The date of issue of the receipt;
(3) The consecutive number of the receipt;
(4) A statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order;
(5) The rate of storage charges;
(6) A description of the goods or of the packages containing them;
(7) The signature of the warehouseman, which may be made by his authorized agent;
(8) If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership;
(9) A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient; and
(10) The amount and rate of insurance on the goods, provided that, if there is no insurance thereon by reason of an agreement with the depositor, the receipt shall be so stamped.
(b) A warehouseman shall be liable to any person injured thereby for all damage caused by the omission from a negotiable receipt of any of the terms required by this Code section.
Every warehouseman conducting a warehouse under this article shall, without unnecessary delay, deliver the agricultural product as described on each warehouse receipt issued by him upon a demand made by the holder of a receipt for such agricultural product if the demand be accompanied by:
(1) An offer to satisfy the warehouseman's lien;
(2) An offer to surrender the receipt and, if negotiable, with such endorsements as would be necessary for the negotiation of the receipt; and
(3) An offer to sign, when the product is delivered, an acknowledgment that it has been delivered if such signature is requested by the warehouseman;
provided, however, that where an agricultural product is stored identity preserved, the actual agricultural product shall be delivered; provided, further, that no warehouseman shall be deemed to have violated this Code section by failure to deliver any agricultural product in accordance with its provisions, if such failure is due to loss or damage of the product from a hazard against which insurance is not required under Code Section 10-4-25 and the regulations issued by the Commissioner pursuant thereto and where such loss or damage does not result from a failure of such warehouseman to exercise that degree of care which an ordinarily prudent person would exercise in the care and protection of his own property; and, provided, further, that in case of an insured loss such demand may be satisfied by payment of the market value of the product lost or damaged.
Except as provided in Code Section 11-7-601, no warehouseman conducting a warehouse under this article shall deliver any agricultural product for which a warehouse receipt has been issued by him unless the receipt has been first surrendered to him. Immediately upon delivery by him of the agricultural product, he shall cancel upon the face thereof such receipt surrendered to him.
Every warehouseman conducting a warehouse under this article shall keep for inspection for such period as the Commissioner may prescribe, in a place of safety, complete and correct records of all agricultural products received at the warehouse for storage or delivered therefrom, including a separate account of all such agricultural products owned by the warehouseman, of all warehouse receipts issued by him, and of the receipts returned to and canceled by him.
The Commissioner is authorized through officials, employees, or agents designated by him to inspect all receipt records and inventory records of warehouses under this article. In the event of suspension, revocation, or other termination of a license issued under this article, the former licensee or his successor in interest, if any, shall preserve, for such period of time as may be prescribed by the Commissioner, all such books, papers, accounts, and other records relating to the operation of the warehouse during the effective period of the license; and such books, papers, accounts, and other records shall be subject to inspection by the Commissioner or his agents, during such period of time as the Commissioner may prescribe.
All agricultural products stored for the producer in their raw or natural state, and cotton in any form stored for the producer, in storage in a warehouse under this article or deposited temporarily in such a warehouse pending storage shall be kept insured at full market value by the warehouseman against loss or damage by fire, lightning, and extended coverage, except that cotton shall be insured against loss or damage by fire and lightning only. Such insurance shall be carried in an insurance company or companies of the warehouseman's choice authorized to do business in this state, and evidence of such insurance coverage in form to be approved by the Commissioner of Insurance shall be filed with the Commissioner of Agriculture. Such insurance shall be provided by, and carried in the name of, the warehouseman; provided, however, that a producer depositing or storing agricultural products who does not wish to have his products insured by the warehouseman may relieve the warehouseman of that duty by notifying the warehouseman in writing that he does not wish his agricultural products insured.
(a) Prior to transaction of any warehouse business at any warehouse under this article and annually thereafter, the warehouseman shall file with the Commissioner a schedule of charges to be made by the warehouse. All charges and regulations affecting such charges made by any warehouse licensed under this article for the storage of agricultural products shall be just, fair, and reasonable. No additional charge shall be made by any such warehouse other than as specified in its filed schedule. No change shall be made in a filed schedule of charges during a current year unless the Commissioner consents thereto. Any upward revision of charges of any such warehouse during any current year shall be applicable only to products received at such warehouse or services performed pursuant to instructions received from the storer after the Commissioner's approval of the upward revisions.
(b) Notwithstanding the provisions of subsection (a) of this Code section, any warehouseman under this article may establish and charge special rates as required by contract with the United States, or any agency of or corporation controlled by the United States, and none of the restrictions or requirements of subsection (a) of this Code section shall apply to such rates.
(c) No warehouseman shall make any charge for any service unless he has then on file a schedule of charges to be made by the warehouse for that service.
(d) No warehouseman shall make a duplicate collection of tariff charges for the first month's service of the warehouseman. It is the intent and purpose of this Code section to prevent a duplication of the collection of such charges in any manner or fashion.
All warehouses licensed under this article shall provide not less than one certified public weigher for each warehouse in accordance with Code Sections 10-2-40 through 10-2-54.
Each warehouse under this article must be equipped with suitable scales in good order and so arranged that all agricultural products for storage can be weighed by the warehouseman. The scales in any such warehouse shall be subject to examination by representatives of the Commissioner and to disapproval by the Commissioner. If the Commissioner disapproves any weighing apparatus, it shall not thereafter be used in ascertaining the weight of agricultural products for the purposes of this article until such disapproval shall be withdrawn.
At such time as the Commissioner or supervisor deems there has been a violation of the law and the rules and regulations, he shall have the power and authority, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” to suspend the license of the warehouseman pending the investigation of the violation or until at such time the violation has been corrected to the satisfaction of the Commissioner or supervisor, and during the period of time of any investigation of a violation the Commissioner or supervisor shall have the power and authority to impound all books and records and withhold all commodities from moving until the investigation is completed.
(a) The Commissioner, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” may suspend or revoke any license issued to any warehouseman to conduct a public warehouse under this article for any violation of or failure to comply with any provisions of this article or the rules and regulations made under this article.
(b) In the event the Commissioner after a hearing finds and determines that a public warehouse is being operated in violation of the laws and regulations and in jeopardy of the public interest, he, in addition to revoking the license to operate such public warehouse, may, in his discretion, file a petition for receivership and liquidation in the superior court of the county in which the warehouse is located.
(c) When any license has been suspended or revoked, the Commissioner or his authorized agents shall have the power and authority to take possession of all unused state bonded receipts and impound them until such time that said license has been reinstated.
The Commissioner may publish in print or electronically the names and locations of warehouses licensed and bonded, the names and addresses of persons licensed under this article, and lists of all licenses terminated under this article and the causes therefor. Whenever it is found, under this article, that such warehouseman is not performing the duties imposed on him by this article and the rules and regulations made under this article, the Commissioner may publish in print or electronically his findings.
(a) Every person who, without lawful authority, shall convert to his own use, or use for purposes of securing a loan, or remove from a warehouse under this article, contrary to this article or the regulations promulgated under this article, any agricultural product received at such warehouse for storage; or who shall forge, alter, counterfeit, simulate, or falsely misrepresent, or without proper authority use any license issued by the Commissioner under this article; or who shall issue or utter a false or fraudulent receipt or certificate of weight or grade or other class for any agricultural product under this article; or change with fraudulent intent in any manner an original receipt or such a certificate subsequent to issuance, shall be guilty of a felony and shall be fined not less than $2,000.00 nor more than $20,000.00 or double the value of the products involved if such double value exceeds $20,000.00, or imprisoned for not less than two years nor more than ten years, or both.
(b) Every person who shall fraudulently alter or falsely represent a sample drawn under this article; or who shall fraudulently grade, otherwise classify, or weigh, or draw with intent to deceive a false sample of any agricultural product received at any warehouse under this article for storage; or who otherwise shall violate any provision of this article or of the regulations promulgated under this article, shall be guilty of a misdemeanor.
(c) For the purposes of this Code section the bondsman bonding such person or warehouseman shall not be liable for the criminal penalties provided in this Code section.
This article shall not relieve any person, including, but not limited to, any bank, savings and loan, or other financial lending institution, that requires, solicits, or otherwise accepts warehouse receipts issued in accordance with this article as collateral or security for a debt, account, promissory note, or any type of loan from any duty otherwise imposed to take necessary and reasonable adequate measures to ensure that the goods represented by the warehouse receipts are present and accounted for and are in suitable condition.
The Commissioner of Agriculture shall be the state warehouse commissioner.
The state warehouse commissioner shall give bond payable to the Governor and his successors in office for the faithful performance of his duties, in the sum of $25,000.00, such bond to be approved as other bonds of state officers.
(a) The commissioner shall have the power to appoint graders, officers, clerks, and all necessary employees to carry out this article and fix the salaries of same. He shall also have the power, and is directed, to safeguard the interests of the state by requiring bonds from such officers, clerks, and employees for the performance of their duties.
(b) The commissioner shall also prescribe rules and regulations not inconsistent with the intent and spirit of this article to carry the same into effect.
(a) The commissioner shall have power to sue and be sued, plead and be impleaded, upon the same terms as an individual or corporation, the action to be against or by the commissioner, and not as an individual, except in case of tort or neglect of duty, when the action may be upon the bond of the commissioner. Actions may be brought in Fulton County or in the county in which the cause of action shall arise.
(b) The weights, classes, and grades of cotton on storage are, under this article, only guaranteed by the commissioner in favor of those who lend money or buy cotton through the commissioner, provided the commissioner shall not be responsible for such fluctuation in weight as represents ordinary climatic conditions.
(c) Cotton designated as “linters” shall not be received for storage under this article.
It shall be the duty of the commissioner to study the condition under which cotton is grown, harvested, ginned, baled, covered, stored, and marketed and as a result of such investigation to organize a system that will bring about needed reforms and provide for the most economical and scientific handling of this crop from the fields to the mill and, when he shall have determined upon the best system of ginning, baling, and covering, to recommend its adoption by all ginners as fast as practicable, without undue expense.
The commissioner shall have power to acquire property. It shall be his duty to foster and encourage the erection of warehouses in the various counties, upon plans and specifications adopted by him.
The commissioner shall have the right to erect, buy, lease, or otherwise contract for a compress plant, or make contract or contracts with existing compress owners for the compression of cotton, as may be necessary in the conduct of the business under this article.
The commissioner shall insure against fire all buildings, machinery, or other property owned by the commissioner in the name of the state. The commissioner shall have insured all buildings or machinery leased, owned, or in his possession other than the state's property when requested to do so by the owners thereof. Further, he shall effect fire insurance on cotton that may be insured in such warehouses when so requested by the owner or owners thereof in the name of the owner. All insurance obtained by the commissioner under this Code section shall be placed in fire insurance companies authorized by law to do business in this state, provided that the commissioner shall not act in any capacity for any insurance company or receive any compensation from any insurance company, insurance agent, broker, or any person representing any insurance company as aforesaid, by division of commission or otherwise, in connection with the placing of any insurance.
(a) The state warehouse commissioner shall make an annual report to the General Assembly, setting forth:
(1) Number and location of each warehouse where cotton has been received for storage by the state;
(2) Cotton on storage and that delivered on presentation of receipts; and
(3) Such further information as the commissioner may think would be of benefit to the public.
(b) The state warehouse commissioner shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the annual report in the manner which he or she deems to be most effective and efficient.
The commissioner shall cooperate with other states where a state warehouse system is in operation and promote the formation of an interstate board so that there may be uniformity in handling and marketing the crop in all the states; and the commissioner is authorized to spend such sums as may be necessary for this purpose.
No debt shall be created against the state by reason or operation of this article.
The state warehouse commissioner shall accept as authoritative the standards and classifications of cotton established by the federal government.
(a) The state warehouse commissioner may receive for storage lint cotton, properly baled, with an inspection tag showing that it has been legally weighed and that a federal or state grader has graded such cotton.
(b) There shall be receipts issued for such cotton under the seal in the name of the commissioner, stating location of warehouse, identification mark on each bale, its weight and grade, and whether long or short staple, so as to be able to deliver on surrender of receipts the identical cotton for which each was given. The receipt for cotton so stored is transferable only by written assignment and actual delivery. The cotton which the receipt represents shall be delivered only upon physical presentation of the receipt or satisfactory proof of loss of the receipt. The receipt shall be marked “canceled” when the cotton is taken from the warehouse.
(c) The grades, weights, and identification marks provided for by this article shall be evidenced by tags affixed to the bale of cotton; and the receipts issued must be a duplicate of the identification upon the tags.
The state warehouse commissioner shall settle the terms upon which cotton may be stored in the local warehouses coming under this article and fix the rate of storage thereon in such manner that these warehouses shall pay expenses, it being the declared purpose of this article that the system shall be self-sustaining and without cost to the state.
The state warehouse commissioner may, upon the request of the owner of warehouse receipts, negotiate loans upon the same, or make sale of the cotton on storage, and shall notify the holders of cotton of the steps which will be necessary to avail themselves of aid in obtaining loans upon cotton or making sale thereof.
The state warehouse commissioner shall provide for the cost of maintaining this system by assessing a charge upon each bale of cotton offered for storage, and for negotiation of loans or selling cotton, a commission, all of which charges shall be uniform, and due notice thereof given, it being the declared purpose of this article to operate at cost, without profit to the state.
The warehouse receipt books shall be designed by the state warehouse commissioner and furnished the manager of each warehouse. Receipts shall be numbered, and the warehouse receiving such books shall be accountable for each receipt. The receipts in such books may have the lithographed or engraved signature of the state warehouse commissioner, but the name of the manager of the local warehouse shall be signed by the manager with pen and ink. The state warehouse commissioner shall have a seal, which shall be affixed to each receipt.
(a) If the warehouseman to whom cotton is offered for storage shall have cause to believe there is an adverse lien, title, or claim to the cotton, he shall make reasonable investigation; and to that end he may require the party so offering the cotton for storage to make affidavit in writing as to such liens, adverse title, or claims.
(b) Any transferee or holder for value of any receipt issued under this article, without notice of any adverse lien, title, or claim to the cotton represented by such receipt, shall have a superior claim to the cotton as against such adverse lien, title, or claim, unless the holder of the adverse lien, title, or claim within seven days after the date on which the cotton was so stored in such warehouse shall begin action on such lien, title, or adverse claim in a court of competent jurisdiction, and give to the warehouse where the cotton is stored written notice of such action.
Any person who shall deposit, or attempt to deposit, cotton upon which a lien, mortgage, or adverse claim exists, without notifying the manager of the warehouse thereof and having this fact so entered on the warehouse receipt, shall be guilty of a misdemeanor.
Should any party required by Code Section 10-4-76 to make an affidavit as to an adverse lien, title, or claim to cotton offered to a warehouseman for storage make a false affidavit, he shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment and labor in the penitentiary for not less than three years nor more than ten years.
Any manager, employee, agent, officer, or other person who shall deliver cotton from a warehouse under this article, except upon the production of the receipt therefor, or who shall fail to mark such receipt “canceled” on the delivery of the cotton shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00, or imprisonment for not more than five years in the state penitentiary, or both, in the discretion of the court.
The manager of any warehouse, or agent, employee, or servant, who issues or aids in issuing a receipt for cotton, knowing that such cotton has not been actually placed in the warehouse under the control of the manager thereof, shall be guilty of a felony and, upon conviction thereof, shall be punished for each offense by imprisonment in the state penitentiary for a period of not less than one nor more than five years, or by a fine not exceeding $5,000.00.
Any manager, employee, servant, or other person who shall issue or aid in issuing a duplicate or additional receipt for cotton, knowing that the former receipt or any part thereof is outstanding, commits the offense of forgery in the first degree, provided that the party applying for a duplicate, upon the representation that the original has been lost or destroyed, may receive the same upon giving an indemnifying bond to the state warehouse commissioner to protect the commissioner against any loss that might occur thereby.
It is the intent and purpose of this part to enable producers to have sufficient time to cure, prepare, and market their flue-cured leaf tobacco in a proper and orderly manner. It is found by the General Assembly that the provisions of this part are necessary to the proper marketing of flue-cured leaf tobacco.
It is further found that external disruptive forces and influences upon buyers and sales opportunity have operated to effect discrimination and disadvantage upon flue-cured leaf tobacco producers in this state in the free entry and sale of their tobacco in interstate commerce. It is the intent and purpose of this part to eliminate discrimination in the entry and sale of tobacco in commerce by providing for equitable allocation of sales opportunity and by providing for licensing of flue-cured leaf tobacco auction sales which will optimize the movement and sale in commerce of tobacco produced in this state and eliminate discrimination against such movement and sale.
No person, real or corporate, shall operate, hold, or conduct an auction sale for the sale of flue-cured leaf tobacco within this state without first having obtained a license for the regular selling season in which the sale is made from the Commissioner of Agriculture. Each license so issued shall automatically expire at the end of the regular selling season. The regular selling season shall be deemed to have ended at the close of business on the marketing day any regulatory group or committee shall cause any of the sets of buyers normally assigned to the Georgia flue-cured leaf tobacco auction markets to be withdrawn for the purpose of reassigning them to auction markets in other tobacco belts. The Commissioner, in his or her discretion, may issue additional licenses to warehousemen at the end of the regular selling season as he or she deems necessary and desirable for “clean-up” sales or special sales, such licenses to terminate at the conclusion of the “clean-up” or special sale. The license fee shall be $150.00 for each regular selling season with no additional fee for licenses issued for “clean-up” or special sales. Licenses shall be subject to renewal from one regular selling season to another under such rules and regulations as the Commissioner shall prescribe. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1.
In addition to other authority granted him by this part, the Commissioner of Agriculture shall be authorized to promulgate regulations prescribing physical standards for buildings used as warehouses for the storage or sale of leaf tobacco. Such standards shall be reasonably designed to ensure the protection of producers and others from loss or damage to tobacco while held or stored in such warehouses and to provide for the safety and welfare of such persons while upon the warehouse premises. It shall be a prerequisite to the issuance of a license under this part that the applicant has complied with all standards promulgated pursuant to this Code section.
As a prerequisite to the issuance of a license under this part, each applicant shall furnish evidence to the Commissioner of Agriculture that he has in force a standard fire and extended coverage insurance policy for the full market value of the tobacco in his sales warehouse for the marketing season for which the license is sought. The insurance policy shall be written by an insurance company, of the warehouseman's choice, authorized to transact business in this state, and such insurance coverage shall be approved in form by the Commissioner of Insurance, and a copy of the insurance policy shall be filed with the Commissioner of Agriculture. The policy shall cover both first-hand and resale tobacco. The insurance policy shall contain an endorsement requiring notification to the Commissioner of Agriculture by the insurance company of its intention to cancel the policy at least ten days prior to cancellation.
In the event sales opportunity shall be designated or allocated to this state by any regulatory group or committee, the Commissioner of Agriculture shall be authorized to allocate such sales opportunity among the warehouses operating under license issued under this part in such manner as to effectuate the expressed intent and purpose of this part. The Commissioner may consider, among other factors, the history factor used by the regulatory group or committee for assigning sales opportunity for cross-belt tobacco, the previous five-year sales history of such licensees, and the previous five-year sales history of such licensees of selling Georgia grown tobacco in order to effectuate an allocation which will eliminate or reduce discrimination against producers in this state in the entry and sale of their tobacco in commerce. In recognition of the unique characteristics of the marketing of tobacco by auction, and the necessity of immediate response to marketing conditions, such allocation of sales time need not be effected by the promulgation of regulations but may be issued and published in such manner as the Commissioner deems necessary and expedient, provided that no such allocation shall be effective upon less than 24 hours' actual notice to the affected licensee.
In addition to other authority granted him by this part, the Commissioner of Agriculture shall be authorized to deny issuance of, or to suspend or revoke, any license provided in this part for any violation of this part, or upon a finding that the applicant or licensee has engaged in conduct contrary to the expressed intent and purpose of this part with respect to discrimination in the sale of tobacco. In the determination of discrimination in the sale of tobacco, the Commissioner is authorized to consider, among other factors, the solicitation of tobacco for auction by an applicant or licensee in such manner as to deplete unreasonably sales opportunity required for the equitable movement and sale of tobacco produced in this state.
(a) This Code section shall be known and may be cited as “The Georgia Tobacco Marketing Act of 1995.”
(b) The maximum charges and expenses of handling and selling leaf tobacco by warehousemen licensed under this part shall not exceed the following schedule, to wit:
(1) Reserved;
(2) Reserved;
(3) For commissions on the gross sales of leaf tobacco in said warehouses, not to exceed 3.5 percent of said gross sales.
The licensee of each and every warehouse shall render to each seller of tobacco of his warehouse an itemized statement plainly stating the amount charged for weighing and handling, the amounts charged for auction fees, and the amounts charged for commission on each sale.
(a) As used in this Code section, the term “tobacco contract” means any contract between a tobacco company and a tobacco grower under which the tobacco company contracts to purchase tobacco to be grown by the tobacco grower other than at a tobacco auction.
(b) No tobacco contract for the purchase of tobacco grown in this state shall be valid or binding unless:
(1) The tobacco grower is given the opportunity to have the proposed tobacco contract reviewed outside the business premises of the tobacco company or its agents by an attorney or adviser of the tobacco grower's choosing prior to execution;
(2) The tobacco contract is written in plain English; and
(3) The tobacco contract quotes the provisions of subsection (c) of this Code section.
(c)(1) The tobacco grower shall have a right to cancel a tobacco contract until 12:00 Midnight of the third business day after the day on which the tobacco grower signs the contract.
(2) Notice of cancellation under this subsection shall be given to the tobacco company at the place of business as set forth in the tobacco contract by certified mail or statutory overnight delivery, return receipt requested, which shall be posted not later than 12:00 Midnight on the third business day following execution of the tobacco contract.
(3) In the event of cancellation pursuant to this subsection, the tobacco grower shall refund to the tobacco company within ten days after the cancellation any consideration received by the tobacco grower from the tobacco company under the tobacco contract.
(4) Notice of cancellation given by the tobacco grower need not take any particular form and, however expressed, is effective if it indicates the intention of the tobacco grower not to be bound by the tobacco contract.
Each licensee shall keep a correct daily account of the number of pounds of leaf tobacco sold upon the floor of his warehouse. On or before Monday of each week, the licensee shall make a statement under oath of all of the tobacco sold upon the floor of his warehouse during the preceding week and shall transmit each report to the Commissioner of Agriculture. The report shall be so arranged and classified as to show the number of pounds of tobacco sold for producers, the number of pounds sold for dealers, and the number of pounds resold by the licensee for his own account or for the account of some other warehouse or licensee. In addition thereto, each licensee shall indicate the number of pounds of Type 14 flue-cured leaf tobacco sold upon the floor of his warehouse for producers thereof and the number of pounds of Type 14 flue-cured leaf tobacco sold by persons other than producers upon the floor of his warehouse. The licensee shall report the total number of pounds of other than Type 14 flue-cured leaf tobacco sold for producers and persons other than producers. In addition thereto, each licensee shall make such additional reports as shall be prescribed by the Commissioner.
The Commissioner of Agriculture shall cause to be kept and compiled the information submitted to him as to the sales of tobacco in this state. He shall cause such records to be kept in a manner so as to show the number of pounds of Type 14 tobacco sold by each warehouse as well as the number of pounds of other than Type 14 tobacco sold by each warehouse. He shall cause such records to be kept in a manner so as to show separately the number of pounds of Type 14 tobacco and other types sold by producers and the number of pounds of each type of tobacco resold. The Commissioner is authorized to cause such information to be published in a manner that he deems most beneficial.
(a) The board shall meet in June of each year, or upon the call of the chairman, to survey the condition of the tobacco crop and recommend an opening date of the marketing season. The chairman shall determine the time and place of the meeting.
(b) The board shall recommend to the Commissioner of Agriculture a date for the opening of the tobacco marketing season. The Georgia Commissioner of Agriculture shall invite the Florida Commissioner of Agriculture and one member of the Florida Tobacco Advisory Board to attend meetings of the Georgia Tobacco Advisory Board to submit evidence as to the opening date best suited to meet the needs of the Florida flue-cured leaf tobacco producers. The Commissioner shall cause two members of the Tobacco Advisory Board to attend the meeting of the board of governors of the Bright Belt Warehouse Association to make known the recommendations as to the opening of the marketing season in Georgia. One of these members shall be a legislative member and the other member a tobacco farmer member of the board.
(c) The Commissioner shall determine and announce the opening date of the tobacco marketing season in this state. If any licensee shall hold a sale prior to the date determined by the Commissioner, the license of the licensee shall be revoked in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” and shall not be reinstated or reissued in the calendar year of the revocation. The revocation provided in this subsection shall be in addition to the other penalties provided for the violation of this part. It is the intent and purpose of this Code section to provide a procedure for the fixing of the opening date of the tobacco marketing season and to place the final authority to fix said date in the Commissioner of Agriculture.
(a) The operating day of each flue-cured leaf tobacco warehouse shall not exceed the number of hours required to handle and sell adequately and efficiently the number of pounds or piles of tobacco allowed to be sold each day.
(b) The operating week of such warehouse shall be limited to five actual selling days, provided that no sale shall be held on Saturday or Sunday.
(c) All tobacco warehouses shall be closed on Sunday for the purpose of receiving, unloading, weighing, or placing tobacco on a warehouse floor between the hours of 12:01 A.M., Sunday and 12:01 A.M., Monday.
The maximum rate of sales at any flue-cured leaf tobacco warehouse shall not exceed 500 baskets during any one hour, nor shall the rate of sales during any one day or week exceed 500 baskets per hour.
(a) Any person, firm, or corporation purchasing tobacco at auction at any flue-cured leaf tobacco auction sales establishment licensed under this Code section shall be deemed to be a tobacco dealer. It shall be unlawful for any person, firm, or corporation to engage in the business of a tobacco dealer without first having secured a license therefor from the Commissioner of Agriculture. There shall be no charge for such license, which shall be issued on an annual basis. Employees of a licensed tobacco dealer need not be individually licensed.
(b) The Commissioner is authorized to provide by rule or regulation for the filing of reports and records by licensed tobacco dealers containing such information as the Commissioner shall deem necessary for the proper enforcement of this part.
(c) The Commissioner may refuse, suspend, or revoke any such license upon a showing of violation of this part or any rule or regulation promulgated and adopted pursuant to this part.
(a) Any person, firm, or corporation purchasing flue-cured leaf tobacco from producers other than at auction sales shall be required to apply to and obtain from the Commissioner of Agriculture a nonauction tobacco dealer's license prior to engaging in such purchase operations. Such license shall be renewable on an annual basis. There shall be an annual fee for each such license issued by the Commissioner. The amount of such fee shall be established by the Commissioner in an amount not to exceed $150.00 per annum. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1. Each applicant for a nonauction tobacco dealer's license shall indicate in writing to the Commissioner each year before the first auction sale of the tobacco-selling season an intent to buy flue-cured leaf tobaccos from producers other than at auction in order to be eligible for a nonauction tobacco dealer's license for that selling season.
(b) Prior to the issuance or renewal of a nonauction tobacco dealer's license to an applicant or a licensee, the applicant or licensee shall post with the Commissioner a surety bond or trust fund agreement in the amount of 20 percent of the total purchases made by the applicant or licensee of flue-cured leaf tobacco from producers other than at auction during the preceding tobacco-selling season. The bond or trust fund agreement shall guarantee the purchases made by the applicant or licensee from producers other than at auction sales and shall in no instance be less than $ 20,000.00 nor more than $ 200,000.00.
(c) Each nonauction tobacco dealer shall compile and maintain such records and periodic reports pertaining to the purchase of tobacco from producers other than at auction sales as the Commissioner may require and shall make such records and reports available for inspection by the Commissioner or his representative during any business hours.
(d) It shall be the duty of each licensed nonauction tobacco dealer to provide or have access to a certified public weigher for the weighing of tobacco purchased by a nonauction dealer from producers other than at auction sales.
(e) It shall be unlawful for any person, firm, or corporation to purchase flue-cured leaf tobacco from producers other than at auction sales without complying with this Code section. Any person violating this Code section shall be guilty of a misdemeanor.
The Commissioner of Agriculture, himself or through his agent, is authorized to inspect the premises of each licensee as often as he shall deem necessary. It shall be the duty of each licensee to cause to be kept records that shall be open to inspection by the Commissioner in such manner as to show accurately the origin and disposition of each type of flue-cured leaf tobacco.
It shall be the duty of each licensee to provide a certified public weigher for the weighing of tobacco upon his premises; and it shall be unlawful for any person to weigh tobacco for sale who is not a certified public weigher.
(a) Whenever a duly authorized agent of the Commissioner finds or has probable cause to believe that any tobacco has been treated with any pesticide not currently registered by the United States Environmental Protection Agency or the Commissioner, or both, for use on tobacco or contains a residue of any pesticide or other substance at a level which exceeds the current residue standard established for that pesticide or other substance by the United States Agricultural Stabilization and Conservation Service to protect and ensure the orderly marketing of Georgia grown tobacco, the agent shall affix to such tobacco or otherwise give to the owner or custodian of such tobacco a notice advising that such tobacco is being detained by the Commissioner. Such notice of detention shall apply to all tobacco produced by that grower during that season, including tobacco already harvested or tobacco to be harvested. It shall be unlawful for any person to remove any such notice affixed to tobacco or to remove or dispose of such tobacco by sale or otherwise without written permission from the Commissioner's agent or a court of competent jurisdiction.
(b) If the Commissioner finds that no residue of pesticides or other substances in the detained tobacco exceeds any residue standard as specified in subsection (a) of this Code section, the Commissioner shall promptly remove all markings from such tobacco and release it from detention, in writing.
(c) When any tobacco detained under subsection (a) of this Code section has been found by the Commissioner to contain any residue in excess of those specified in subsection (a) of this Code section, the Commissioner shall bring an action for condemnation of such tobacco in the superior court of the county where the tobacco is being detained. After the Commissioner has made an initial finding of any residue in the detained tobacco in excess of any residue standard established by the United States Agricultural Stabilization and Conservation Service as provided for in subsection (a) of this Code section, the costs of all subsequent testing which the Commissioner shall require to confirm that residues in such detained tobacco do not exceed any residue standard established by the United States Agricultural Stabilization and Conservation Service shall be borne by the producers and such tests shall be performed only by a laboratory approved by the Commissioner.
It shall be the duty of the Commissioner of Agriculture to enforce this part and to utilize any employee of the Department of Agriculture in the performance of his duties under this part. The Commissioner is authorized to revoke or suspend any license or registration issued under this part to any person violating this part or any rule or regulation adopted pursuant to this part, after notice and hearing before the Commissioner in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
At such time as the Commissioner of Agriculture deems there has been a violation of this part and the rules and regulations promulgated under this part, he shall have the power and authority, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” to suspend the license or registration pending investigation of the violation and until such time as the violation has been corrected to the satisfaction of the Commissioner. During the period of time of any investigation of a violation, the Commissioner shall have the power and authority to impound all books and records and to preserve and maintain evidence until the investigation is completed; provided, however, that the investigation shall be completed at the earliest practicable time.
In addition to the remedies provided in this part and notwithstanding the existence of any other remedy of law and notwithstanding the pendency of any criminal prosecution, the Commissioner of Agriculture is authorized to apply to the superior court; and such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction or an ex parte restraining order restraining or enjoining any person from violating or continuing to violate this part or for the failure or refusal to comply with this part or any rule or regulation promulgated under this part. Such injunction shall be issued without bond.
(a) Prior to adoption or change of any rules and regulations, the Commissioner of Agriculture shall promulgate the proposed rule or regulation or change and afford interested persons an opportunity to be heard and submit data and views orally or in writing.
(b) Any person with a real and substantial interest who is affected by a rule or regulation of the Commissioner and who believes that the Commissioner, in the promulgation or enforcement of such rule or regulation, has exceeded the authority vested in him by the General Assembly under the Constitution of Georgia or the United States shall have the right to petition the Commissioner for the repeal or rejection of such rule or regulation by pointing out in what respect and for what reasons he contends the rule to be unlawful or unconstitutional. The Commissioner is required to consider every such petition and afford the petitioner an opportunity to be heard within 30 days; and, after argument, the Commissioner shall determine the merits of the petition. If the Commissioner decides in whole or in part in favor of the petitioner, the Commissioner shall take corrective measures within 30 days after the hearing to give the petitioner relief in every respect from any unlawful or unconstitutional rule or regulation. The foregoing is expressly made an administrative remedy; and every person affected by any rule or regulation or any act of the Commissioner is required to exhaust this remedy before taking any other steps, except as otherwise provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(c) All hearings before the Commissioner shall be stenographically reported and shall be available to any interested party upon payment of the stenographic cost.
Any person aggrieved by a final decision or determination in any matter in which a hearing is required or authorized by this part or by the state or federal Constitution is entitled to judicial review thereof in accordance with the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” for the judicial review of contested cases.
Any person who shall violate any provision of this part for which no specific punishment is provided in this part shall be guilty of a misdemeanor.
It is the intent and purpose of this part to enable producers of flue-cured leaf tobacco to avail themselves of an adequate and safe method of storing flue-cured leaf tobacco unsold in the year of production until the subsequent selling season for purposes of marketing at that time. It is found by the General Assembly that the provisions specified in this part are necessary to the proper marketing of carry-over flue-cured leaf tobacco.
As used in this part, the term:
(1) “Carry-over tobacco” means any tobacco unsold in the year of its production and held, for whatever reason, in storage until the subsequent selling season for sale in that season.
(2) “Operator” means any person, firm, partnership, or corporation engaged in the receipt for storage or storage, or both, of tobacco unsold in the year of production until the subsequent selling season for sale in that season.
(3) “Producer” means any flue-cured leaf tobacco grower who has tobacco in excess of his current marketing quota which will be eligible for sale during the subsequent selling season.
No person, real or corporate, shall operate a service for receiving within this state flue-cured leaf tobacco for the purpose of weighing, redrying, and storing said tobacco from the year of production until the subsequent selling season for sale at that time without first having obtained a license from the Commissioner of Agriculture. Each license so issued shall automatically expire at the termination of the storage period and be subject to renewal annually under such rules and regulations as the Commissioner shall prescribe. The license fee shall be $40.00 for each year. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1. Licensed operators of flue-cured leaf tobacco auction warehouses may be licensed without cost under this part upon application to the Commissioner. This part shall not require licensing of any federal agency, its agents, or contractors who receive carry-over tobacco.
As a prerequisite to the issuance of a license under this part, each applicant shall furnish evidence to the Commissioner of Agriculture that there is in force an insurance policy against loss or damage by fire and such other perils as are commonly insured against under extended coverage provisions, for its full value, upon the best terms obtainable by individual or reporting form blanket policies on the carry-over tobacco to be received for storage or stored, or both, by him in the year for which the license is sought, either provided by the applicant or the actual storer of the tobacco. The insurance policy shall be written by an insurance company, of the applicant's choice, authorized to transact business in this state or in the state where the tobacco is stored. Such insurance policy shall be effective for the entire storage period and shall be approved in form by the Commissioner of Insurance. A copy of the insurance policy shall be filed with the Commissioner of Agriculture.
As a prerequisite to the issuance of a license under this part, each applicant shall also furnish evidence to the Commissioner of Agriculture that he has in force for the year for which the license is sought a bond issued by a corporate entity authorized to do business in this state in the penal sum of $10,000.00. The bond shall be conditioned upon the licensee performing all the duties imposed upon him by law and the accounting for the proceeds of all carry-over flue-cured leaf tobacco received by him for storage and for sale.
The maximum charges and expenses to be maintained by operators under this part receiving tobacco unsold in the year of production to be stored until sold in the subsequent selling season shall not exceed 5¢ per pound for services rendered, if sold on a green-weight basis. If sold on a dry-weight basis, the charges may also include the actual cost of redrying as leaves or strips and shipping charges.
Each licensee shall render to each producer submitting carry-over tobacco for storage until the next selling season at the time of receipt of the tobacco a statement of the amount of tobacco tendered and the amount to be charged for servicing that tobacco other than actual cost of redrying as leaves or strips and shipping charges.
The contract between the operator and producer shall state the percentage division of money received above the contract sales price plus a service charge and processing cost. The producer shall in no event receive less than 50 percent of this sum.
Each licensee shall keep a record of the number of pounds of carry-over tobacco received by him for storage until the next selling season, identifying the amount received from each producer. The records shall also show the final disposition of the tobacco, whether redeemed by the producer or sold by operator for the producer at the subsequent selling season. It shall be the duty of each licensee to cause to be kept records that shall be open to inspection by the Commissioner of Agriculture in such manner as to show accurately the origin and disposition of the carry-over tobacco. Each licensee shall transmit this information to the Commissioner in such reports as prescribed by him. The licensee shall submit to the Commissioner a copy of all reports he is required by law or regulation to submit to the United States Department of Agriculture--Agricultural Soil Conservation Service.
The Commissioner of Agriculture shall cause to be kept and compiled the information submitted to him as to the storage and sale of carry-over tobacco and is authorized to cause the information to be published in a manner that he deems most beneficial.
The tendering of carry-over tobacco by producers to operators to be stored until the next selling season shall not be deemed a sale as of the time of the tender. The sale of carry-over tobacco may not be consummated until after the beginning of the subsequent selling season.
It shall be the duty of each licensee to provide a certified public weigher for the weighing of carry-over tobacco at the time and place of receipt of the tobacco by operators for storage until the subsequent selling season, and it shall be unlawful for any person who is not a certified public weigher to weigh such tobacco.
The Commissioner of Agriculture shall be authorized to promulgate regulations to implement this part, to accomplish its purposes, and to prescribe physical standards for buildings and premises used for the receipt or storage, or both, of carry-over tobacco. Such standards shall be reasonably designed to ensure the protection of producers and others from loss or damage to carry-over tobacco when received or held for storage, or both, until the subsequent selling season. It shall be a prerequisite to the issuance of a license under this part that the applicant has complied with all standards promulgated pursuant to this Code section. The Commissioner, or his agent, is authorized to inspect the premises of each licensee as often as he shall deem necessary.
It shall be the duty of the Commissioner of Agriculture to enforce this part and to utilize any employee of the Department of Agriculture in the performance of his duties under this part. The Commissioner is authorized to revoke or suspend, for violation of this part, any license issued under this part after notice and hearing before the Commissioner, in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
In addition to the remedies provided in this part and notwithstanding the existence of any other remedy at law and notwithstanding the pendency of any criminal prosecution, the Commissioner of Agriculture is authorized to apply to the superior court and the court shall have jurisdiction upon hearing and for cause shown to grant a temporary or permanent injunction or an ex parte restraining order restraining or enjoining any person from violating or continuing to violate this part or for the failure or refusal to comply with this part or any rule or regulation promulgated under this part. Such injunction shall be issued without bond.
Any person who violates any provision of this part or the rules and regulations issued under this part shall be guilty of a misdemeanor.
(a) Tobacco warehousemen licensed and bonded under the laws of this state to operate warehouses for the sale of leaf tobacco at auction are authorized to organize, either as nonstock corporations or as voluntary associations, tobacco boards of trade in the several municipalities of this state in which leaf tobacco is sold on warehouse floors at auction.
(b) Said tobacco warehousemen may also, by majority vote, authorize any nonstock corporation or voluntary association of tobacco warehousemen, in which a majority of such warehousemen in this state are members, to exercise on a state-wide basis the powers and duties provided in this part. In the event there shall be more than one such nonstock corporation or voluntary association in which a majority of such warehousemen are members, that organization possessing the largest number of such members shall be the organization which may be vested with such authority.
In the event there are two such warehousemen in a municipality and in the event the two cannot agree as to the organization of any such board, or cannot agree as to any matter authorized under this part, it shall be the duty of each, upon notice or request by the other, to appoint one disinterested person; and the two persons so appointed shall appoint a third disinterested person; and the three persons so appointed, with the two warehousemen, shall determine the questions involved in the controversy, on failure to agree, by a majority vote.
(a) Each such tobacco board of trade is authorized to make reasonable rules and regulations not in conflict with the laws of this state and the rules and regulations promulgated under the laws of this state for the economical and efficient handling and sale of leaf tobacco at auction on the warehouse floors in the municipality in which the tobacco board of trade is organized under this part.
(b) A state-wide corporation or association, as provided in this part, is authorized to make such reasonable rules and regulations as provided in this part for the economical and efficient handling and sale of leaf tobacco at auction in the several tobacco markets in this state.
(a) The tobacco boards of trade in the several municipalities in Georgia are authorized to require as a condition to membership therein the payment of a reasonable fee which shall not exceed:
(1) $50.00 in those municipalities in which less than 3 million pounds of tobacco was sold at auction during the year 1960;
(2) $100.00 in those municipalities in which not less than 3 million pounds but less than 10 million pounds of tobacco was sold at auction during the year 1960;
(3) $150.00 in those municipalities in which not less than 10 million pounds but less than 25 million pounds of tobacco was sold at auction during the year 1960;
(4) $300.00 in those municipalities in which 25 million pounds or more of tobacco was sold at auction during the year 1960.
(b) A state-wide corporation or association, as provided in this part, may require as a condition to membership therein the payment of a reasonable fee which shall not exceed $100.00 per 1 million pounds of producers' tobacco sold at auction during the year preceding the year in which the fee is assessed.
In addition to complying with the laws of this state relative to the operation of tobacco warehouses, local boards of trade may require membership in good standing in the local board of trade as a condition to participate in the business of operating a tobacco warehouse in such municipality; and, in addition thereto, a state-wide corporation or association, as provided in this part, may require membership in such state-wide organization as a condition to participate in the business of operating a tobacco warehouse in this state; and such requirements shall be deemed reasonable requirements by the board of trade or state-wide organization.
Membership in the several boards of trade may be divided into categories as the board may provide in its bylaws and may include, in addition to warehousemen, members other than warehousemen. The holder of a membership other than a warehouseman shall not participate in the allocation of sale time among the warehousemen. The board of trade may provide for the participation of membership other than warehousemen in matters other than the allocation of sales time. Members in any of the several boards of trade authorized by this part shall not be responsible or liable for any of the acts, omissions, or commissions of the several tobacco boards of trade except as to the extent of their participation therein. Membership in a state-wide corporation or association, as provided in this part, shall be limited to warehousemen. The holder of a membership in such state-wide organization who is not the operator of a warehouse in this state shall not participate in the allocation of sales time among the tobacco markets in this state.
Any person suspended or expelled from a tobacco board of trade may appeal from such suspension or expulsion to the superior court of the county in which the board of trade is located. Any person suspended or expelled from the state-wide organization provided for in this part may appeal from such suspension or expulsion to the superior court of the county in which the person's warehouse is located. The appeal shall be a de novo investigation by the court, and the court in considering the appeal may make such findings in relation thereto as the circumstances may warrant.
Nothing in this part shall authorize the organization of any association or corporation having for its purpose the control of prices or the making of rules and regulations in restraint of trade or in conflict with the laws of this state or rules and regulations promulgated under such laws. Nothing contained in this part shall supersede, alter, amend, or repeal the authority of the Commissioner of Agriculture to regulate the sale of leaf tobacco as provided by law.
This article shall be known and may be cited as the “Convenience Warehouse Act of 1975.”
(a) As used in this article, the term:
(1) “Convenience warehouse” means a series of storage spaces contained in one building or in a series of buildings which are designed and used for the purpose of renting or leasing individual storage spaces to persons in order that any person renting or leasing one or more of such individual storage spaces shall have access for the purpose of storing property therein.
(2) “Person” means an individual, corporation, association, partnership, or other organization.
(b) Nothing in this article shall be construed to apply to a public warehouse licensed pursuant to Article 1 of this chapter, as now or hereafter amended, nor to any person engaged in business as a bonded public warehouseman pursuant to law providing for such bonded public warehouseman.
(a) Any person engaged in the business of operating a convenience warehouse shall obtain from each person renting or leasing a storage space the following information:
(1) His name, age, home address, and home telephone number, if any;
(2) His social security number, if any;
(3) His driver's license number, if any; and
(4) The name and address of his employer.
(b) In addition to the requirements of subsection (a) of this Code section, any person renting or leasing a storage space from a convenience warehouse shall sign a written document, under oath, that he is the owner of or has legal possession of any property which he intends to store in the storage space rented or leased by him. A copy of the signed document shall be given to the person executing it, and the original thereof shall be retained in the records of the person engaged in the business of operating the convenience warehouse.
(c) The information required by subsections (a) and (b) of this Code section shall be retained by the person engaged in the business of operating the convenience warehouse for a period of at least one year following the last date on which the storage space was rented or leased to the person covered by such information.
(a) Any person engaged in the business of operating a convenience warehouse who fails to obtain the information required by subsection (a) of Code Section 10-4-192 or who rents or leases a storage space without first obtaining the written document required by subsection (b) of Code Section 10-4-192 or who knowingly and willfully fails to comply with subsection (c) of Code Section 10-4-192 shall be guilty of a misdemeanor.
(b) Any person who intentionally provides any false information pursuant to subsection (a) of Code Section 10-4-192 shall be guilty of a misdemeanor.
(c) Any person who knowingly provides false information in executing the document required by subsection (b) of Code Section 10-4-192 commits the offense of false swearing within the meaning of Code Section 16-10-71.
This article shall be known and may be cited as the “Georgia Self-service Storage Facility Act of 2013.”
For purposes of this article, the term:
(1) “Email” means an electronic message or an executable program or computer file that contains an image of a message that is transmitted between two or more computers or electronic terminals. The term includes electronic messages that are transmitted within or between computer networks.
(2) “Last known address” means the street address, post office box address, or email address provided by the occupant in the latest rental agreement or the address provided by the occupant in a subsequent written notice of a change of address by hand delivery, verified mail, or email.
(3) “Occupant” means a person, his or her sublessee, successor, or assign entitled to the use of the storage space at a self-service storage facility under a rental agreement, to the exclusion of others.
(4) “Owner” means the operator, lessor, or sublessor of, or person having an ownership interest in, a self-service storage facility; an agent of such operator, lessor, or sublessor; or any other person authorized to manage the facility or to receive rent from an occupant under a rental agreement.
(5) “Personal property” means movable property not affixed to land and includes, but is not limited to, goods, wares, merchandise, motor vehicles, trailers, watercraft, and household items and furnishings.
(6) “Rental agreement” means any agreement or lease, written or oral, that establishes or modifies the terms, conditions, rules, or any other provisions concerning the use and occupancy of a self-service storage facility.
(7) “Self-service storage facility” means any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access to such for the purpose of storing and removing personal property; provided, however, that such term shall not mean a:
(A) Warehouse within the meaning of Article 1 of this chapter, known as the “Georgia State Warehouse Act”; or
(B) Safe-deposit box or vault maintained by banks, trust companies, or other financial entities.
(8) “Verified mail” means certified mail, registered mail, statutory overnight delivery, or other method of mailing or delivery in which the post office or delivery service furnishes proof that the parcel was sent.
The owner of a self-service storage facility and his or her heirs, executors, administrators, successors, and assigns have a lien upon all personal property located at a self-service storage facility for rent, fees for the late payment of rent, labor, or other charges, present or future, in relation to the personal property and for expenses necessary for its preservation or expenses reasonably incurred in its sale or other disposition pursuant to this article. The lien provided for in this Code section is superior to any other lien or security interest except those which are perfected and recorded prior to the date of the rental agreement in Georgia in the name of the occupant, either in the county of the occupant's last known address or in the county where the self-service storage facility is located, except any tax lien as otherwise provided by law and except any lienholder with an interest in the property of whom the owner has knowledge either through the disclosure provision of the rental agreement or through other written notice. The lien attaches as of the date the personal property is brought to the self-service storage facility.
Provided that it complies with the requirements of this Code section, an owner may enforce the lien without judicial intervention. The owner shall obtain from the occupant a written rental agreement which includes the following language:
This agreement, made and entered into this ______ day of______________, , by and between________, hereinafter called Owner, and_______________, hereinafter called Occupant, whose last known address is ________________. For the consideration hereinafter stated, Owner agrees to let Occupant use and occupy a space in the self-service storage facility, known as , situated in the City of __________, County of ____, State of Georgia, and more particularly described as follows: Building #, Space #_, Size. Said space is to be occupied and used for the purposes specified herein and subject to the conditions set forth for a period of , beginning on the ______ day of, ____, and continuing month to month until terminated.
“Space,” as used in this agreement, will be that part of the self-service storage facility as described above. Occupant agrees to pay Owner, as payment for the use of the space and improvements thereon, the monthly sum of $. Monthly installments are payable in advance on or before the first of each month, in the amount of $, and a like amount for each month thereafter, until the termination of this agreement.
If any monthly installment is not paid by the seventh calendar day of the month due, or if any check given in payment is dishonored by the financial institution on which it is drawn, Occupant shall be deemed to be in default.
Occupant further agrees to pay the sum of one month's fees, which shall be used as a clean-up and maintenance fund, and is to be used, if required, for the repair of any damage done to the space and to clean up the space at the termination of the agreement. In the event that the space is left in a good state of repair, and in a broom-swept condition, then this amount shall be refunded to Occupant. However, it is agreed to between the parties that Owner may set off any claims it may have against Occupant from this fund.
The space named herein is to be used by Occupant solely for the purpose of storing any personal property belonging to Occupant. Occupant agrees not to store any explosives or any highly inflammable goods or any other goods in the space which would cause danger to the space. Occupant agrees that the property will not be used for any unlawful purposes and Occupant agrees not to commit waste, nor alter, nor affix signs on the space, and to keep the space in good condition during the term of this agreement.
OWNER HAS A LIEN ON ALL PERSONAL PROPERTY STORED IN OCCUPANT'S SPACE FOR RENT, FEES FOR THE LATE PAYMENT OF RENT, LABOR, OR OTHER CHARGES, PRESENT OR FUTURE, IN RELATION TO THE PERSONAL PROPERTY, AND FOR ITS PRESERVATION OR EXPENSES REASONABLY INCURRED IN ITS SALE OR OTHER DISPOSITION PURSUANT TO THIS AGREEMENT. PERSONAL PROPERTY STORED IN OCCUPANT'S SPACE WILL BE SOLD OR OTHERWISE DISPOSED OF IF NO PAYMENT HAS BEEN RECEIVED FOR A CONTINUOUS THIRTY-DAY PERIOD AFTER DEFAULT. IN ADDITION, UPON OCCUPANT'S DEFAULT, OWNER MAY WITHOUT NOTICE DENY OCCUPANT ACCESS TO THE PERSONAL PROPERTY STORED IN OCCUPANT'S SPACE UNTIL SUCH TIME AS PAYMENT IS RECEIVED. IF ANY MONTHLY INSTALLMENT IS NOT MADE BY THE SEVENTH CALENDAR DAY OF THE MONTH DUE, OR IF ANY CHECK GIVEN IN PAYMENT IS DISHONORED BY THE FINANCIAL INSTITUTION ON WHICH IT IS DRAWN, OCCUPANT IS IN DEFAULT FROM DATE PAYMENT WAS DUE.
I hereby agree that all notices other than bills and invoices shall be given by hand delivery, verified mail, or email at the following addresses:
__________ (hand delivery)
__________ (verified mail)
__________ (email).
and I further understand that I may designate to owner an agent to receive such notice by providing:
__________ (hand delivery)
__________ (verified mail)
__________ (email).
For purposes of Owner's lien: “personal property” means movable property, not affixed to land, and includes, but is not limited to, goods, wares, merchandise, motor vehicles, trailers, watercraft, household items, and furnishings; “last known address” means the street address or post office box address provided by Occupant in the latest rental agreement or the address provided by Occupant in a subsequent written notice of a change of address by hand delivery, verified mail, or email.
Owner's lien is superior to any other lien or security interest, except those which are evidenced by a certificate of title or perfected and recorded prior to the date of this rental agreement in Georgia, in the name of Occupant, either in the county of Occupant's “last known address” or in the county where the self-service storage facility is located, except any tax lien as provided by law and except those liens or security interests of whom Owner has knowledge through Occupant's disclosure in this rental agreement or through other written notice. Occupant attests that the personal property in Occupant's space(s) is free and clear of all liens and secured interests except for____________. Owner's lien attaches as of the date the personal property is brought to the self-service storage facility.
Except as otherwise specifically provided in this rental agreement, the exclusive care, custody, and control of any and all personal property stored in the leased space shall remain vested in Occupant. Owner does not become a bailee of Occupant's personal property by the enforcement of Owner's lien.
If Occupant has been in default continuously for thirty (30) days, Owner may enforce its lien, provided Owner shall comply with the following procedure:
Occupant shall be notified of Owner's intent to enforce Owner's lien by written notice delivered in person, by verified mail, or by email. Owner also shall notify other parties with superior liens or security interests as defined in this rental agreement. A notice given pursuant to this rental agreement shall be presumed sent when it is deposited with the United States Postal Service or the statutory overnight delivery service properly addressed with postage or delivery fees prepaid or sent by email. If Owner sends notice of a pending sale of property to Occupant's last known email address and does not receive a nonautomated response or a receipt of delivery to the email address, Owner shall send notice of the sale to Occupant by verified mail to Occupant's last known address or to the last known address of the designated agent of the Occupant before proceeding with the sale.
Owner's notice to Occupant shall include an itemized statement of Owner's claim showing the sum due at the time of the notice and the date when the sum became due. Owner's notice shall notify Occupant of denial of access to the personal property and provide the name, street address, email address, and telephone number of Owner or its designated agent, whom Occupant may contact to respond to this notice. Owner's notice shall demand payment within a specified time, not less than fourteen (14) days after delivery of the notice. It shall state that, unless the claim is paid, within the time stated in the notice, the personal property will be advertised for public sale to the highest bidder, and will be sold at a public sale to the highest bidder, at a specified time and place.
After the expiration of the time given in Owner's notice, Owner shall publish an advertisement of the public sale to the highest bidder, once a week, for two consecutive weeks, in the legal organ for the county where the self-service storage facility is located. The sale shall be deemed commercially reasonable if at least three (3) independent bidders attend the sale at the time and place advertised. “Independent bidder” means a bidder who is not related to and who has no controlling interest in, or common pecuniary interest with, Owner or any other bidder. The advertisement shall include: a brief and general description of the personal property, reasonably adequate to permit its identification; the address of the self-service storage facility, and the number, if any, of the space where the personal property is located, and the name of Occupant; and the time, place, and manner of the public sale. The public sale to the highest bidder shall take place not sooner than fifteen (15) days after the first publication. Regardless of whether a sale involves the property of more than one Occupant, a single advertisement may be used to advertise the disposal of property at the sale. A public sale includes offering the property on a publicly accessible website that regularly conducts online auctions of personal property. Such sale shall be considered incidental to the self-storage business and no license shall be required.
If no one purchases the property at the public sale and if Owner has complied with the foregoing procedures, Owner may otherwise dispose of the property and shall notify Occupant of the action taken. Any sale or disposition of the personal property shall be held at the self-service storage facility or at the nearest suitable place to where the personal property is held or stored.
Before any sale or other disposition of personal property pursuant to this agreement, Occupant may pay the amount necessary to satisfy the lien and the reasonable expenses incurred and thereby redeem the personal property and thereafter Owner shall have no liability to any person with respect to such personal property.
A Purchaser in good faith of the personal property sold to satisfy Owner's lien takes the property free of any rights of persons against whom the lien was valid, despite noncompliance by Owner with the requirements of this agreement.
In the event of a sale, Owner may satisfy his or her lien from the proceeds of the sale. Owner shall hold the balance of the proceeds, if any, for Occupant or any notified secured interest holder. If not claimed within two years of the date of sale, the balance of the proceeds shall be disposed of in accordance with Article 5 of Chapter 12 of Title 44, the “Disposition of Unclaimed Property Act.” In no event shall Owner's liability exceed the proceeds of the sale.
If the rental agreement contains a limit on the value of property stored in Occupant's storage space, the limit shall be deemed to be the maximum value of the property stored in that space.
If the property upon which the lien is claimed is a motor vehicle, trailer, or watercraft and rent and other charges related to the property remain unpaid or unsatisfied for 60 days following the maturity of the obligation to pay rent, Owner may have the property towed in lieu of foreclosing on the lien. If a motor vehicle, trailer, or watercraft is towed as authorized in this section, Owner shall not be liable for the motor vehicle, trailer, or watercraft or any damages to the motor vehicle, trailer, or watercraft once the tower takes possession of the property.
If the rental agreement is with a service member, the owner shall comply with all terms of the Servicemembers Civil Relief Act, 50 U.S.C. Section 3901 et seq. Nothing in this article shall be construed as in any manner impairing or affecting the right of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement. The rights provided by this article shall be in addition to all other rights allowed by law to a creditor against his or her debtor.
All rental agreements entered into before July 1, 2013, and not extended or renewed after that date and the rights and duties and interests flowing from them shall remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other statute or law of this state.
(a) No occupant shall use a self-service storage facility for residential purposes.
(b) The provisions of law relative to bonded public warehousemen shall not apply to any owner of a self-service storage facility.
(a) Pursuant to the terms of a rental agreement, an owner may charge and collect a fee from an occupant for the late payment of rent that is to be paid under a rental agreement. Such fee shall be no more than $20.00 per month for each month there is a late payment of rent or 20 percent of the monthly rent for each month there is a late payment of rent, whichever is greater.
(b) This Code section shall only apply to rental agreements entered into, extended, or renewed, and the late payment of rent occurring, on or after July 1, 2019.
This chapter shall be known as and may be cited as the Georgia Uniform Securities Act of 2008.
As used in this chapter, the term:
(1) “Agent” means an individual, other than a broker-dealer, who represents a broker-dealer in effecting or attempting to effect purchases or sales of securities or who represents an issuer in effecting or attempting to effect purchases or sales of the issuer's securities. A partner, officer, or director of a broker-dealer or issuer or an individual having a similar status or performing similar functions may be an agent if the individual performs the duties of an agent. This term does not include an individual excluded by rule adopted or order issued under this chapter.
(2) “Bank” means:
(A) A banking institution organized under the laws of the United States;
(B) A member bank of the Federal Reserve System;
(C) Any other banking institution, whether incorporated or not, doing business under the laws of a state or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to be exercised by national banks under the authority of the Comptroller of the Currency pursuant to Section 1 of P. L. 87-722, 12 U.S.C. Section 92a, and which is supervised and examined by a state or federal agency having supervision over banks and which is not operated for the purpose of evading this chapter; or
(D) A receiver, conservator, or other liquidating agent of any institution or firm included in subparagraph (A), (B), or (C) of this paragraph.
(3) “Broker-dealer” means a person engaged in the business of effecting transactions in securities for the account of others or for the person's own account. The term does not include:
(A) An agent;
(B) An issuer;
(C) A bank, trust company, credit union, or savings institution if its activities as a broker-dealer are limited to those specified in subsections 3(a)(4)(B)(i) through (vi) and (viii) through (x) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78c(a)(4); subsection 3(a)(4)(B)(xi) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78c(a)(4) if limited to unsolicited transactions; or subsections 3(a)(5)(B) and 3(a)(5)(C) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78c(a)(5), or a bank that satisfies the conditions described in subsection 3(a)(4)(E) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78c(a)(4);
(D) An international banking institution; or
(E) A person excluded by rule adopted or order issued under this chapter.
(4) “Central Registration Depository” means a computerized data base that contains information about most brokers, their representatives, and the firms they work for. It can be used to find out if brokers are properly licensed and if they have had previous disputes with regulators or received serious complaints from investors.
(5) “Credit union” means any credit union incorporated under the laws of this state, the United States, or any state or territory of the United States or the District of Columbia.
(6) “Commissioner” means the Secretary of State of Georgia.
(7)(A) “Depository institution” means:
(i) A bank; or
(ii) A savings institution, trust company, credit union, or similar institution that is organized or chartered under the laws of a state or of the United States, authorized to receive deposits, and supervised and examined by an official or agency of a state or the United States if its deposits or share accounts are insured to the maximum amount authorized by statute by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund or a successor authorized by federal law.
(B) The term does not include:
(i) An insurance company or other organization primarily engaged in the business of insurance;
(ii) A Morris Plan bank; or
(iii) An installment loan company that is not an “insured depository institution” as defined in subsection 3(c)(2) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1813(c)(2), or any successor federal statute.
(8) “Federal covered investment adviser” means a person registered under the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq.
(9) “Federal covered security” means a security that is, or upon completion of a transaction will be, a covered security under Section 18(b) of the Securities Act of 1933, 15 U.S.C. Section 77r(b), or rules or regulations adopted pursuant to that provision.
(10) “Filing” means the receipt under this chapter of a record by the Commissioner or a designee of the Commissioner.
(11) “Fraud,” “deceit,” or “defraud” is not limited to common law deceit.
(12) “Guaranteed” means guaranteed as to payment of all principal and all interest.
(13) “Institutional investor” means any of the following, whether acting for itself or for others in a fiduciary capacity:
(A) A depository institution or international banking institution;
(B) An insurance company;
(C) A separate account of an insurance company;
(D) An investment company as defined in the Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq.;
(E) A broker-dealer registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq.;
(F) An employee pension, profit-sharing, or benefit plan if the plan has total assets in excess of $10 million or its investment decisions are made by a named fiduciary, as defined in the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq., that is a broker-dealer registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., an investment adviser registered or exempt from registration under the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., an investment adviser registered under this chapter, a depository institution, or an insurance company;
(G) A plan established and maintained by a state, a political subdivision of a state, or an agency or instrumentality of a state or a political subdivision of a state for the benefit of its employees if the plan has total assets in excess of $10 million or its investment decisions are made by a duly designated public official or by a named fiduciary, as defined in the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq., that is a broker-dealer registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., an investment adviser registered or exempt from registration under the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., an investment adviser registered under this chapter, a depository institution, or an insurance company;
(H) A trust if it has total assets in excess of $10 million, its trustee is a depository institution, and its participants are exclusively plans of the types identified in subparagraph (F) or (G) of this paragraph, regardless of the size of their assets, except a trust that includes as participants self-directed individual retirement accounts or similar self-directed plans;
(I) An organization that is not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $10 million, including an organization described in subsection 501(c)(3) of the Internal Revenue Code, 26 U.S.C. Section 501(c)(3), a corporation, a Massachusetts trust or similar business trust, a limited liability company, or a partnership;
(J) A small business investment company licensed by the Small Business Administration under Section 301(c) of the Small Business Investment Act of 1958, 15 U.S.C. Section 681(c), with total assets in excess of $10 million;
(K) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-2(a)(22), with total assets in excess of $10 million;
(L) A federal covered investment adviser acting for its own account;
(M) A qualified institutional buyer as defined in Rule 144A(a)(1), other than Rule 144A(a)(1)(H), 17 C.F.R. 230.144A, adopted under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.;
(N) A major United States institutional investor as defined in Rule 15a-6(b)(4)(I), 17 C.F.R. 240.15a-6, adopted under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq.;
(O) Any other person, other than an individual, of institutional character with total assets in excess of $10 million not organized for the specific purpose of evading this chapter; or
(P) Any other person specified by rule adopted or order issued under this chapter.
(14) “Insurance company” means a company organized as an insurance company whose primary business is writing insurance or reinsuring risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a state.
(15) “Insured” means insured as to payment of all principal and all interest.
(16) “International banking institution” means an international financial institution of which the United States is a member and whose securities are exempt from registration under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.
(17) “Investment adviser” means a person that, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as a part of a regular business, issues or promulgates analysis or reports concerning securities. The term includes a financial planner or other person that, as an integral component of other financially related services, provides investment advice to others for compensation as part of a business or that holds itself out as providing investment advice to others for compensation. The term does not include:
(A) An investment adviser representative;
(B) A lawyer, accountant, engineer, or teacher whose performance of investment advice is solely incidental to the practice of the person's profession;
(C) A broker-dealer or its agents whose performance of investment advice is solely incidental to the conduct of business as a broker-dealer and that does not receive special compensation for the investment advice;
(D) A publisher of a bona fide newspaper, news magazine, or business or financial publication of general and regular circulation;
(E) A federal covered investment adviser;
(F) A bank or savings institution;
(G) A credit union;
(H) Any other person that is excluded by the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., from the definition of investment adviser; or
(I) Any other person excluded by rule adopted or order issued under this chapter.
(18) “Investment Adviser Registration Depository” means an electronic filing system that facilitates investment adviser registration, regulatory review, and the public disclosure information of investment adviser firms.
(19) “Investment adviser representative” means an individual employed by or associated with an investment adviser or federal covered investment adviser who makes any recommendations or otherwise gives investment advice regarding securities, manages accounts or portfolios of clients, determines which recommendation or advice regarding securities should be given, provides investment advice or holds herself or himself out as providing investment advice, receives compensation to solicit, offer, or negotiate for the sale of or for selling investment advice, or supervises employees who perform any of the foregoing. The term does not include an individual who:
(A) Performs only clerical or ministerial acts;
(B) Is an agent whose performance of investment advice is solely incidental to the individual acting as an agent and who does not receive special compensation for investment advisory services;
(C) Is employed by or associated with a federal covered investment adviser, unless the individual has a place of business in this state as that term is defined by rule adopted under Section 203A of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-3a, and is:
(i) An investment adviser representative as that term is defined by rule adopted under Section 203A of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-3a; or
(ii) Not a supervised person as that term is defined in Section 202(a)(25) of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-2(a)(25); or
(D) Is excluded by rule adopted or order issued under this chapter.
(20) “Issuer” means a person that issues or proposes to issue a security, subject to the following:
(A) The issuer of a voting trust certificate, collateral trust certificate, certificate of deposit for a security, or share in an investment company without a board of directors or individuals performing similar functions is the person performing the acts and assuming the duties of depositor or manager pursuant to the trust or other agreement or instrument under which the security is issued;
(B) The issuer of an equipment trust certificate or similar security serving the same purpose is the person by which the property is or will be used or to which the property or equipment is or will be leased or conditionally sold or that is otherwise contractually responsible for assuring payment of the certificate; or
(C) The issuer of a fractional undivided interest in an oil, gas, or other mineral lease or in payments out of production under a lease, right, or royalty is the owner of an interest in the lease or in payments out of production under a lease, right, or royalty, whether whole or fractional, that creates fractional interests for the purpose of sale.
(21) “Nonissuer transaction” or “nonissuer distribution” means a transaction or distribution not directly or indirectly for the benefit of the issuer.
(22) “Offer to purchase” includes an attempt or offer to obtain or solicitation of an offer to sell a security or interest in a security for value. The term does not include a tender offer that is subject to Section 14(d) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78n(d).
(23) “Person” means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
(24) “Place of business” of a broker-dealer, an investment adviser, or a federal covered investment adviser means:
(A) An office at which the broker-dealer, investment adviser, or federal covered investment adviser regularly provides brokerage or investment advice or solicits, meets with, or otherwise communicates with customers or clients; or
(B) Any other location that is held out to the general public as a location at which the broker-dealer, investment adviser, or federal covered investment adviser provides brokerage or investment advice or solicits, meets with, or otherwise communicates with customers or clients.
(25) “Predecessor Act” means Chapter 5 of this title, the “Georgia Securities Act of 1973,” as it existed immediately prior to July 1, 2009.
(26) “Price amendment” means the amendment to a registration statement filed under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., or, if an amendment is not filed, the prospectus or prospectus supplement filed under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., that includes a statement of the offering price, underwriting and selling discounts or commissions, amount of proceeds, conversion rates, call prices, and other matters dependent upon the offering price.
(27) “Principal place of business” of a broker-dealer or an investment adviser means the executive office of the broker-dealer or investment adviser from which the officers, partners, or managers of the broker-dealer or investment adviser direct, control, and coordinate the activities of the broker-dealer or investment adviser.
(28) “Record,” except in the phrases “of record,” “official record,” and “public record,” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(29) “Sale” includes every contract of sale, contract to sell, or disposition of a security or interest in a security for value. Offer to sell includes every attempt or offer to dispose of or solicitation of an offer to purchase a security or interest in a security for value. Both terms include:
(A) A security given or delivered with or as a bonus on account of a purchase of securities or any other thing constituting part of the subject of the purchase and having been offered and sold for value;
(B) A gift of assessable stock involving an offer and sale; and
(C) A sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer and a sale or offer of a security that gives the holder a present or future right or privilege to convert the security into another security of the same or another issuer, including an offer of the other security.
(30) “Securities and Exchange Commission” means the United States Securities and Exchange Commission.
(31) “Security” means a note; stock; treasury stock; security future; bond; debenture; evidence of indebtedness; certificate of interest or participation in a profit-sharing agreement; collateral trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting trust certificate; certificate of deposit for a security; fractional undivided interest in oil, gas, or other mineral rights; put, call, straddle, option, or privilege on a security, certificate of deposit, or group or index of securities, including an interest therein or based on the value thereof; put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency; or, in general, an interest or instrument commonly known as a “security”; or a certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing. The term:
(A) Includes both a certificated and an uncertificated security;
(B) Does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed or variable sum of money either in a lump sum or periodically for life or other specified period;
(C) Does not include an interest in a contributory or noncontributory pension or welfare plan subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq.;
(D) Includes as an investment contract an investment in a common enterprise with the expectation of profits to be derived primarily from the efforts of a person other than the investor where common enterprise means an enterprise in which the fortunes of the investor are interwoven with those of either the person offering the investment, a third party, or other investors; and
(E) Includes as an investment contract, among other contracts, an interest in a limited partnership or a limited liability company and an investment in a viatical settlement or similar agreement.
(32) “Self-regulatory organization” means a national securities exchange registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., a national securities association of broker-dealers registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., a clearing agency registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., or the Municipal Securities Rulemaking Board established under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq.
(33) “Sign” means, with present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach or logically associate with the record an electronic symbol, sound, or process.
(34) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
Any citation in this chapter to a section of the United States Code includes those statutes and the rules and regulations adopted under those statutes as in effect on July 1, 2009, or as later amended.
A reference in this chapter to an agency or department of the United States is also a reference to a successor agency or department.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b). This chapter authorizes the filing of records and signatures, when specified by provisions of this chapter or by a rule adopted or order issued under this chapter, in a manner consistent with Section 104(a) of that act, 15 U.S.C. Section 7004(a).
The following securities are exempt from the requirements of Article 3 of this chapter and Code Section 10-5-53:
(1) A security, including a revenue obligation or a separate security as defined in Rule 131, 17 C.F.R. 230.131, adopted under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., issued, insured, or guaranteed by the United States; by a state; by a political subdivision of a state; by a public authority, agency, or instrumentality of one or more states; by a political subdivision of one or more states; or by a person controlled or supervised by and acting as an instrumentality of the United States under authority granted by the Congress or a certificate of deposit for any of the foregoing;
(2) A security issued, insured, or guaranteed by a foreign government with which the United States maintains diplomatic relations, or any of its political subdivisions, if the security is recognized as a valid obligation by the issuer, insurer, or guarantor;
(3) A security issued by and representing or that will represent an interest in or a direct obligation of or be guaranteed by:
(A) An international banking institution;
(B) A banking institution organized under the laws of the United States; a member bank of the Federal Reserve System; or a depository institution a substantial portion of the business of which consists or will consist of receiving deposits or share accounts that are insured to the maximum amount authorized by statute by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund or a successor authorized by federal law or exercising fiduciary powers that are similar to those permitted for national banks under the authority of the Comptroller of Currency pursuant to Section 1 of P. L. 87-722, 12 U.S.C. Section 92a; or
(C) Any other depository institution, unless by rule or order the Commissioner proceeds under Code Section 10-5-13;
(4) A security issued by and representing an interest in, or a debt of, or insured or guaranteed by, an insurance company authorized to do business in this state;
(5) A security issued or guaranteed by a railroad, other common carrier, public utility, or public utility holding company that is:
(A) Regulated in respect to its rates and charges by the United States or a state;
(B) Regulated in respect to the issuance or guarantee of the security by the United States, a state, Canada, or a Canadian province or territory; or
(C) A public utility holding company registered under the Public Utility Holding Company Act of 1935 or a subsidiary of such a registered holding company within the meaning of that act;
(6) A federal covered security specified in Section 18(b)(1) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(1), or by rule adopted under that provision or a security listed or approved for listing on another securities market specified by rule under this chapter; a put or a call option contract; a warrant; a subscription right on or with respect to such securities; or an option or similar derivative security on a security or an index of securities or foreign currencies issued by a clearing agency registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 77a, et seq., and listed or designated for trading on a national securities exchange, a facility of a national securities exchange, or a facility of a national securities association registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 77a, et seq., or an offer or sale of the underlying security in connection with the offer, sale, or exercise of an option or other security that was exempt when the option or other security was written or issued; or an option or a derivative security designated by the Securities and Exchange Commission under Section 9(b) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78i(b);
(7) A security issued by a person organized and operated exclusively for religious, educational, benevolent, fraternal, charitable, social, athletic, or reformatory purposes or as a chamber of commerce and not for pecuniary profit, no part of the net earnings of which inures to the benefit of a private stockholder or other person; or a security of a company that is excluded from the definition of an investment company under Section 3(c)(10)(B) of the Investment Company Act of 1940, 15 U.S.C. Section 80b-3(c)(10)(B); except that with respect to the offer or sale of a note, bond, debenture, or other evidence of indebtedness issued by such a person, a rule may be adopted under this chapter limiting the availability of this exemption by classifying securities, persons, and transactions, imposing different requirements for different classes, specifying with respect to Section 3(c)(10)(B) of the Investment Company Act of 1940, 15 U.S.C. Section 80b-3(c)(10)(B), the scope of the exemption and the grounds for denial or suspension, and requiring an issuer:
(A) To file a notice specifying the material terms of the proposed offer or sale and copies of any proposed sales and advertising literature to be used and provide that the exemption becomes effective if the Commissioner does not disallow the exemption within the period established by the rule;
(B) To file a request for exemption authorization for which a rule under this chapter may specify the scope of the exemption, the requirement of an offering statement, the filing of sales and advertising literature, the filing of consent to service of process complying with Code Section 10-5-80, and grounds for denial or suspension of the exemption; or
(C) To register under Code Section 10-5-23;
(8) A member's or owner's interest in, retention certificate, or like security given in lieu of a cash patronage dividend issued by, a cooperative organized and operated as a nonprofit membership cooperative under the cooperative laws of a state, but not a member's or owner's interest, retention certificate, or like security sold to persons other than bona fide members of the cooperative; and
(9) An equipment trust certificate with respect to equipment leased or conditionally sold to a person if any security issued by the person would be exempt under this Code section or would be a federal covered security under Section 18(b)(1) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(1).
The following transactions are exempt from the requirements of Article 3 of this chapter and Code Section 10-5-53:
(1) An isolated nonissuer transaction, whether effected by or through a broker-dealer or not;
(2) A nonissuer transaction by or through a broker-dealer registered, or exempt from registration under this chapter, and a resale transaction by a sponsor of a unit investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq., in a security of a class that has been outstanding in the hands of the public for at least 90 days, if, at the date of the transaction:
(A) The issuer of the security is engaged in business, the issuer is not in the organizational stage or in bankruptcy or receivership, and the issuer is not a blank check, blind pool, or shell company that has no specific business plan or purpose or has indicated that its primary business plan is to engage in a merger or combination of the business with, or an acquisition of, an unidentified person;
(B) The security is sold at a price reasonably related to its current market price;
(C) The security does not constitute the whole or part of an unsold allotment to or a subscription or participation by the broker-dealer as an underwriter of the security or a redistribution;
(D) A nationally recognized securities manual or its electronic equivalent designated by rule adopted or order issued under this chapter or a record filed with the Securities and Exchange Commission that is publicly available contains:
(i) A description of the business and operations of the issuer;
(ii) The names of the issuer's executive officers and the names of the issuer's directors, if any;
(iii) An audited balance sheet of the issuer as of a date within 18 months before the date of the transaction or, in the case of a reorganization or merger when the parties to the reorganization or merger each had an audited balance sheet, a pro forma balance sheet for the combined organization; and
(iv) An audited income statement for each of the issuer's two immediately previous fiscal years or for the period of existence of the issuer, whichever is shorter, or, in the case of a reorganization or merger when each party to the reorganization or merger had an audited income statement, a pro forma income statement; and
(E) The issuer of the security has a class of equity securities listed on a national securities exchange registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., or designated for trading on the National Association of Securities Dealers Automated Quotation System, unless the issuer of the security is a unit investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq.; or the issuer of the security, including its predecessors, has been engaged in continuous business for at least three years; or the issuer of the security has total assets of at least $2 million based on an audited balance sheet as of a date within 18 months before the date of the transaction or, in the case of a reorganization or merger when the parties to the reorganization or merger each had an audited balance sheet, a pro forma balance sheet for the combined organization;
(3) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in a security of a foreign issuer that is a margin security defined in regulations or rules adopted by the Board of Governors of the Federal Reserve System;
(4) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in an outstanding security if the guarantor of the security files reports with the Securities and Exchange Commission under the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78m or 78o(d);
(5) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter in a security that:
(A) Is rated at the time of the transaction by a nationally recognized statistical rating organization in one of its four highest rating categories; or
(B) Has a fixed maturity or a fixed interest or dividend if:
(i) A default has not occurred during the current fiscal year or within the three previous fiscal years or during the existence of the issuer and any predecessor, if less than three fiscal years, in the payment of principal, interest, or dividends on the security; and
(ii) The issuer is engaged in business, is not in the organizational stage or in bankruptcy or receivership, and is not and has not been within the previous 12 months a blank check, blind pool, or shell company that has no specific business plan or purpose or has indicated that its primary business plan is to engage in a merger or combination of the business with or an acquisition of an unidentified person;
(6) A nonissuer transaction by or through a broker-dealer registered or exempt from registration under this chapter effecting an unsolicited order or offer to purchase;
(7) A nonissuer transaction executed by a bona fide pledgee without the purpose of evading this chapter;
(8) A nonissuer transaction by a federal covered investment adviser with investments under management in excess of $100 million acting in the exercise of discretionary authority in a signed record for the account of others;
(9) A transaction in a security, whether or not the security or transaction is otherwise exempt, in exchange for one or more bona fide outstanding securities, claims, or property interests, or partly in such exchange and partly for cash, if the terms and conditions of the issuance and exchange or the delivery and exchange and the fairness of the terms and conditions have been approved by the Commissioner after a hearing;
(10) A transaction between the issuer or other person on whose behalf the offering is made and an underwriter or among underwriters;
(11) A transaction in a note, bond, debenture, or other evidence of indebtedness secured by a mortgage or other security agreement if:
(A) The note, bond, debenture, or other evidence of indebtedness is offered and sold with the mortgage or other security agreement as a unit;
(B) A general solicitation or general advertisement of the transaction is not made; and
(C) A commission or other remuneration is not paid or given, directly or indirectly, to a person not registered under this chapter as a broker-dealer or as an agent;
(12) A transaction by an executor, commissioner of an estate, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator;
(13) A sale or offer to sell to:
(A) An institutional investor;
(B) A federal covered investment adviser; or
(C) Any other person exempted by rule adopted or order issued under this chapter;
(14) A sale or an offer to sell securities of an issuer if part of a single issue in which:
(A) Not more than 15 purchasers are present in this state during any 12 consecutive months, other than those designated in paragraph (13) of this Code section;
(B) A general solicitation or general advertising is not made in connection with the offer to sell or sale of the securities;
(C) A commission or other remuneration is not paid or given, directly or indirectly, to any person for soliciting a prospective purchaser in this state; and
(D) The issuer reasonably believes that all the purchasers in this state, other than those designated in paragraph (13) of this Code section, are purchasing for investment;
(15) A transaction under an offer to existing security holders of the issuer, including persons that at the date of the transaction are holders of convertible securities, options, or warrants if a commission or other remuneration, other than a standby commission, is not paid or given, directly or indirectly, for soliciting a security holder in this state;
(16) An offer to sell, but not a sale, of a security not exempt from registration under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., if:
(A) A registration or offering statement or similar record as required under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., has been filed but is not effective, or the offer is made in compliance with Rule 165, 17 C.F.R. 230.165, adopted under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.; and
(B) A stop order of which the offeror is aware has not been issued against the offeror by the Commissioner or the Securities and Exchange Commission, and an audit, inspection, or proceeding that is public and that may culminate in a stop order is not known by the offeror to be pending;
(17) An offer to sell, but not a sale, of a security exempt from registration under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., if:
(A) A registration statement has been filed under this chapter but is not effective;
(B) A solicitation of interest is provided in a record to offerees in compliance with a rule adopted by the Commissioner under this chapter; and
(C) A stop order of which the offeror is aware has not been issued by the Commissioner under this chapter, and an audit, inspection, or proceeding that may culminate in a stop order is not known by the offeror to be pending;
(18) A transaction involving the distribution of the securities of an issuer to the security holders of another person in connection with a merger, consolidation, exchange of securities, sale of assets, or other reorganization to which the issuer, or its parent or subsidiary, and the other person, or its parent or subsidiary, are parties;
(19) A rescission offer, sale, or purchase under Code Section 10-5-59;
(20) An offer or sale of a security to a person not a resident of this state and not present in this state if the offer or sale does not constitute a violation of the laws of the state or foreign jurisdiction in which the offeree or purchaser is present and is not part of an unlawful plan or scheme to evade this chapter;
(21) Employees' stock purchase, savings, option, profit-sharing, pension, or similar employees' benefit plan, including any securities, plan interests, and guarantees issued under a compensatory benefit plan or compensation contract, contained in a record, and established by the issuer, its parents, its majority-owned subsidiaries, or the majority-owned subsidiaries of the issuer's parent for the participation of their employees including offers or sales of such securities to:
(A) Directors; general partners; trustees, if the issuer is a business trust; officers; consultants; and advisers;
(B) Family members who acquire such securities from those persons through gifts or domestic relations orders;
(C) Former employees, directors, general partners, trustees, officers, consultants, and advisers if those individuals were employed by or providing services to the issuer when the securities were offered; and
(D) Insurance agents who are exclusive insurance agents of the issuer or the issuer's subsidiaries or parents or who derive more than 50 percent of their annual income from those organizations;
(22) A transaction involving:
(A) A stock dividend or equivalent equity distribution, whether the corporation or other business organization distributing the dividend or equivalent equity distribution is the issuer or not, if nothing of value is given by stockholders or other equity holders for the dividend or equivalent equity distribution other than the surrender of a right to a cash or property dividend if each stockholder or other equity holder may elect to take the dividend or equivalent equity distribution in cash, property, or stock;
(B) An act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims, or property interests or partly in such exchange and partly for cash; or
(C) The solicitation of tenders of securities by an offeror in a tender offer in compliance with Rule 162, 17 C.F.R. 230.162, adopted under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.; and
(23) A nonissuer transaction in an outstanding security by or through a broker-dealer registered or exempt from registration under this chapter if the issuer is a reporting issuer in a foreign jurisdiction designated by this paragraph or by rule adopted or order issued under this chapter; has been subject to continuous reporting requirements in the foreign jurisdiction for not less than 180 days before the transaction; and the security is listed on the foreign jurisdiction's securities exchange that has been designated by this paragraph or by rule adopted or order issued under this chapter or is a security of the same issuer that is of senior or substantially equal rank to the listed security or is a warrant or right to purchase or subscribe to any of the foregoing. For purposes of this paragraph, Canada, together with its provinces and territories, is a designated foreign jurisdiction and The Toronto Stock Exchange, Inc., is a designated securities exchange. After an administrative hearing in compliance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” the Commissioner, by rule adopted or order issued under this chapter, may revoke the designation of a securities exchange under this paragraph, if the Commissioner finds that revocation is necessary or appropriate in the public interest and for the protection of investors.
A rule adopted or order issued under this chapter may exempt a security, transaction, or offer; a rule adopted under this chapter may exempt a class of securities, transactions, or offers from any or all of the requirements of Article 3 of this chapter and Code Section 10-5-53; and an order issued under this chapter may waive, in whole or in part, any or all of the conditions for an exemption or offer under Code Sections 10-5-10 and 10-5-11.
(a) Except with respect to a federal covered security or a transaction involving a federal covered security, an order issued under this chapter may deny, suspend application of, condition, limit, or revoke an exemption created under subparagraph (C) of paragraph (3) or paragraph (7) or (8) of Code Section 10-5-10 or under Code Section 10-5-11 or an exemption or waiver created under Code Section 10-5-12 with respect to a specific security, transaction, or offer. An order issued under this Code section may be issued only pursuant to the procedures in subsection (d) of Code Section 10-5-25 or 10-5-73 and only prospectively.
(b) A person does not violate Code Section 10-5-20, 10-5-22 through 10-5-25, 10-5-53, or 10-5-59 by an offer to sell, offer to purchase, sale, or purchase effected after the entry of an order issued under this Code section if the person did not know, and in the exercise of reasonable care could not have known, of the order.
It is unlawful for a person to offer or sell a security in this state unless:
(1) The security is a federal covered security;
(2) The security, transaction, or offer is exempted from registration under Code Sections 10-5-10 through 10-5-12; or
(3) The security is registered under this chapter.
(a) With respect to a federal covered security, as defined in Section 18(b)(2) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(2), that is not otherwise exempt under Code Sections 10-5-10 through 10-5-12, a rule adopted or order issued under this chapter may require the filing of any or all of the following records:
(1) Before the initial offer of a federal covered security in this state, all records that are part of a federal registration statement filed with the Securities and Exchange Commission under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., and a consent to service of process complying with Code Section 10-5-80 signed by the issuer and the payment of a fee of $250.00;
(2) After the initial offer of the federal covered security in this state, all records that are part of an amendment to a federal registration statement filed with the Securities and Exchange Commission under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.; and
(3) To the extent necessary or appropriate to compute fees, a report of the value of the federal covered securities sold or offered to persons present in this state, if the sales data are not included in records filed with the Securities and Exchange Commission and payment of a fee of $250.00.
(b) A notice filing under subsection (a) of this Code section is effective for one year commencing on the later of the notice filing or the effectiveness of the offering filed with the Securities and Exchange Commission. On or before expiration, the issuer may renew a notice filing by filing a copy of those records filed by the issuer with the Securities and Exchange Commission that are required by rule adopted or order issued under this chapter to be filed and by paying a renewal fee of $100.00. A previously filed consent to service of process complying with Code Section 10-5-80 may be incorporated by reference in a renewal. A renewed notice filing becomes effective upon the expiration of the filing being renewed.
(c) With respect to a security that is a federal covered security under Section 18(b)(4)(D) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(4)(D), a rule adopted under this chapter may require a notice filing by or on behalf of an issuer to include a copy of Form D, including the Appendix, as promulgated by the Securities and Exchange Commission, and a consent to service of process complying with Code Section 10-5-80 signed by the issuer not later than 15 days after the first sale of the federal covered security in this state and the payment of a fee of $250.00.
(d) Except with respect to a federal security under Section 181(b)(1) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(1), if the Commissioner finds that there is a failure to comply with a notice or fee requirement of this Code section, the Commissioner may issue a stop order suspending the offer and sale of a federal covered security in this state. If the deficiency is corrected, the stop order is void as of the time of its issuance and no penalty may be imposed by the Commissioner.
(a) A security for which a registration statement has been filed under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., in connection with the same offering may be registered by coordination under this Code section.
(b) A registration statement and accompanying records under this Code section must contain or be accompanied by the following records in addition to the information specified in Code Section 10-5-24 and a consent to service of process complying with Code Section 10-5-80:
(1) A copy of the latest form of prospectus filed under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq.;
(2) A copy of the articles of incorporation and bylaws or their substantial equivalents currently in effect; a copy of any agreement with or among underwriters; a copy of any indenture or other instrument governing the issuance of the security to be registered; and a specimen, copy, or description of the security that is required by rule adopted or order issued under this chapter;
(3) Copies of any other information or any other records filed by the issuer under the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., requested by the Commissioner; and
(4) An undertaking to forward each amendment to the federal prospectus, other than an amendment that delays the effective date of the registration statement, promptly after it is filed with the Securities and Exchange Commission.
(c) A registration statement under this Code section becomes effective simultaneously with or subsequent to the federal registration statement when all the following conditions are satisfied:
(1) A stop order issued under subsection (d) of this Code section or Code Section 10-5-25 or issued by the Securities and Exchange Commission is not in effect and a proceeding is not pending against the issuer under Code Section 10-5-41; and
(2) The registration statement has been on file for at least 20 days or a shorter period provided by rule adopted or order issued under this chapter.
(d) The registrant shall promptly notify the Commissioner in a record of the date when the federal registration statement becomes effective and the content of any price amendment and shall promptly file a record containing the price amendment. If the notice is not timely received, the Commissioner may issue a stop order, without prior notice or hearing, retroactively denying effectiveness to the registration statement or suspending its effectiveness until compliance with this Code section. The Commissioner shall promptly notify the registrant of an order by telephone or electronic means and promptly confirm this notice by a record. If the registrant subsequently complies with the notice requirements of this Code section, the stop order is void as of the date of its issuance.
(e) If the federal registration statement becomes effective before each of the conditions in this Code section is satisfied or is waived by the Commissioner, the registration statement is automatically effective under this chapter when all the conditions are satisfied or waived. If the registrant notifies the Commissioner of the date when the federal registration statement is expected to become effective, the Commissioner shall promptly notify the registrant by telephone or electronic means and promptly confirm this notice by a record, indicating whether all the conditions are satisfied or waived and whether the Commissioner intends the institution of a proceeding under Code Section 10-5-25. The notice by the Commissioner does not preclude the institution of such a proceeding.
(a) A security may be registered by qualification under this Code section.
(b) A registration statement under this Code section must contain the information or records specified in Code Section 10-5-24, a consent to service of process complying with Code Section 10-5-80, and, if required by rule adopted under this chapter, the following information or records:
(1) With respect to the issuer and any significant subsidiary, its name, address, and form of organization; the state or foreign jurisdiction and date of its organization; the general character and location of its business; a description of its physical properties and equipment; and a statement of the general competitive conditions in the industry or business in which it is or will be engaged;
(2) With respect to each director and officer of the issuer and other person having a similar status or performing similar functions, the person's name, address, and principal occupation for the previous five years; the amount of securities of the issuer held by the person as of the thirtieth day before the filing of the registration statement; the amount of the securities covered by the registration statement to which the person has indicated an intention to subscribe; and a description of any material interest of the person in any material transaction with the issuer or a significant subsidiary effected within the previous three years or proposed to be effected;
(3) With respect to persons covered by paragraph (2) of this subsection, the aggregate sum of the remuneration paid to those persons during the previous 12 months and estimated to be paid during the next 12 months, directly or indirectly, by the issuer and all predecessors, parents, subsidiaries, and affiliates of the issuer;
(4) With respect to a person owning of record or owning beneficially, if known, 10 percent or more of the outstanding shares of any class of equity security of the issuer, the information specified in paragraph (2) of this subsection other than the person's occupation;
(5) With respect to a promoter, if the issuer was organized within the previous three years, the information or records specified in paragraph (2) of this subsection, any amount paid to the promoter within that period or intended to be paid to the promoter and the consideration for the payment;
(6) With respect to a person on whose behalf any part of the offering is to be made in a nonissuer distribution, the person's name and address; the amount of securities of the issuer held by the person as of the date of the filing of the registration statement; a description of any material interest of the person in any material transaction with the issuer or any significant subsidiary effected within the previous three years or proposed to be effected; and a statement of the reasons for making the offering;
(7) The capitalization and long term debt, on both a current and pro forma basis, of the issuer and any significant subsidiary, including a description of each security outstanding or being registered or otherwise offered, and a statement of the amount and kind of consideration, whether in the form of cash, physical assets, services, patents, good will, or anything else of value, for which the issuer or any subsidiary has issued its securities within the previous two years or is obligated to issue its securities;
(8) The kind and amount of securities to be offered; the proposed offering price or the method by which it is to be computed; any variation at which a proportion of the offering is to be made to a person or class of persons other than the underwriters, with a specification of the person or class; the basis on which the offering is to be made if otherwise than for cash; the estimated aggregate underwriting and selling discounts or commissions and finders' fees, including separately cash, securities, contracts, or anything else of value to accrue to the underwriters or finders in connection with the offering or, if the selling discounts or commissions are variable, the basis of determining them and their maximum and minimum amounts; the estimated amounts of other selling expenses, including legal, engineering, and accounting charges; the name and address of each underwriter and each recipient of a finder's fee; a copy of any underwriting or selling group agreement under which the distribution is to be made or the proposed form of any such agreement whose terms have not yet been determined; and a description of the plan of distribution of any securities that are to be offered otherwise than through an underwriter;
(9) The estimated monetary proceeds to be received by the issuer from the offering; the purposes for which the proceeds are to be used by the issuer; the estimated amount to be used for each purpose; the order or priority in which the proceeds will be used for the purposes stated; the amounts of any funds to be raised from other sources to achieve the purposes stated; the sources of the funds; and, if a part of the proceeds is to be used to acquire property, including good will, otherwise than in the ordinary course of business, the names and addresses of the vendors, the purchase price, the names of any persons that have received commissions in connection with the acquisition, and the amounts of the commissions and other expenses in connection with the acquisition, including the cost of borrowing money to finance the acquisition;
(10) A description of any stock options or other security options outstanding or to be created in connection with the offering and the amount of those options held or to be held by each person required to be named in paragraph (2), (4), (5), (6), or (8) of this subsection and by any person that holds or will hold 10 percent or more in the aggregate of those options;
(11) The dates of, parties to, and general effect concisely stated of each managerial or other material contract made or to be made otherwise than in the ordinary course of business to be performed in whole or in part at or after the filing of the registration statement or that was made within the previous two years and a copy of the contract;
(12) A description of any pending litigation, action, or proceeding to which the issuer is a party and that materially affects its business or assets and any litigation, action, or proceeding known to be contemplated by governmental authorities;
(13) A copy of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature intended as of the effective date to be used in connection with the offering and any solicitation of interest used in compliance with subparagraph (B) of paragraph (17) of Code Section 10-5-11;
(14) A specimen or copy of the security being registered, unless the security is uncertificated; a copy of the issuer's articles of incorporation and bylaws or their substantial equivalents, in effect; and a copy of any indenture or other instrument covering the security to be registered;
(15) A signed or conformed copy of an opinion of counsel concerning the legality of the security being registered, with an English translation if it is in a language other than English, which states whether the security when sold will be validly issued, fully paid, and nonassessable and, if a debt security, a binding obligation of the issuer;
(16) A signed or conformed copy of a consent of any accountant, engineer, appraiser, or other person whose profession gives authority for a statement made by the person if the person is named as having prepared or certified a public report or valuation, other than an official record, which is used in connection with the registration statement;
(17) A balance sheet of the issuer as of a date within four months before the filing of the registration statement; a statement of income and changes in financial position for each of the three fiscal years preceding the date of the balance sheet and for any period between the close of the immediately previous fiscal year and the date of the balance sheet or for the period of the issuer's and any predecessor's existence if less than three years; and, if any part of the proceeds of the offering is to be applied to the purchase of a business, the financial statements that would be required if that business were the registrant; and
(18) Any additional information or records required by rule adopted or order issued under this chapter.
(c) A registration statement under this Code section becomes effective 30 days after the date the registration statement or the last amendment other than a price amendment is filed, unless any shorter period is provided by a rule adopted or order issued under this chapter, if:
(1) A stop order is not in effect and a proceeding is not pending under Code Section 10-5-25;
(2) The Commissioner has not issued an order under Code Section 10-5-25 delaying effectiveness; and
(3) The applicant or registrant has not requested that effectiveness be delayed.
(d) The Commissioner may delay effectiveness once for not more than 90 days if the Commissioner determines the registration statement is not complete in all material respects and promptly notifies the applicant or registrant of that determination. The Commissioner may also delay effectiveness for a further period of not more than 30 days if the Commissioner determines that the delay is necessary or appropriate.
(e) A rule adopted or order issued under this chapter may require as a condition of registration under this Code section that a prospectus containing a specified part of the information or record specified in subsection (b) of this Code section be sent or given to each person to which an offer is made before or concurrently with the earliest of:
(1) The first offer made in a record to the person, otherwise than by means of a public advertisement, by or for the account of the issuer or another person on whose behalf the offering is being made or by an underwriter or broker-dealer that is offering part of an unsold allotment or subscription taken by the person as a participant in the distribution;
(2) The confirmation of a sale made by or for the account of the person;
(3) Payment pursuant to such a sale; or
(4) Delivery of the security pursuant to such a sale.
(a) A registration statement may be filed by the issuer, a person on whose behalf the offering is to be made, or a broker-dealer registered under this chapter.
(b) If a registration statement is withdrawn before the effective date or a pre-effective stop order is issued under Code Section 10-5-25, the Commissioner shall retain the fee.
(c) A registration statement filed under Code Section 10-5-22 or 10-5-23 must specify:
(1) The amount of securities to be offered in this state;
(2) The states in which a registration statement or similar record in connection with the offering has been or is to be filed; and
(3) Any adverse order, judgment, or decree issued in connection with the offering by a state securities administrator, the Securities and Exchange Commission, or a court.
(d) A record filed under this chapter or the predecessor Act within five years preceding the filing of a registration statement may be incorporated by reference in the registration statement to the extent that the record is currently accurate.
(e) In the case of a nonissuer distribution, information or a record shall not be required under subsection (i) of this Code section or under Code Section 10-5-23, unless it is known to the person filing the registration statement or to the person on whose behalf the distribution is to be made or unless it can be furnished by those persons without unreasonable effort or expense.
(f) A rule adopted or order issued under this chapter may require as a condition of registration that a security issued within the previous five years or to be issued to a promoter for a consideration substantially less than the public offering price or to a person for a consideration other than cash be deposited in escrow; and that the proceeds from the sale of the registered security in this state be impounded until the issuer receives a specified amount from the sale of the security either in this state or elsewhere. The conditions of any escrow or impoundment required under this subsection may be established by rule adopted or order issued under this chapter, but the Commissioner may not reject a depository institution solely because of its location in another state.
(g) A rule adopted or order issued under this chapter may require as a condition of registration that a security registered under this chapter be sold only on a specified form of subscription or sale contract and that a signed or conformed copy of each contract be filed under this chapter or preserved for a period specified by the rule or order, which may not be longer than five years.
(h) Except while a stop order is in effect under Code Section 10-5-25, a registration statement is effective for one year after its effective date or for any longer period designated in an order under this chapter during which the security is being offered or distributed in a nonexempted transaction by or for the account of the issuer or other person on whose behalf the offering is being made or by an underwriter or broker-dealer that is still offering part of an unsold allotment or subscription taken as a participant in the distribution. For the purposes of a nonissuer transaction, all outstanding securities of the same class identified in the registration statement as a security registered under this chapter are considered to be registered while the registration statement is effective. If any securities of the same class are outstanding, a registration statement may not be withdrawn until one year after its effective date. A registration statement may be withdrawn only with the approval of the Commissioner.
(i) While a registration statement is effective, a rule adopted or order issued under this chapter may require the person that filed the registration statement to file reports, not more often than quarterly, to keep the information or other record in the registration statement reasonably current, and to disclose the progress of the offering.
(j) A registration statement may be amended after its effective date. The post-effective amendment becomes effective when the Commissioner so orders. A post-effective amendment relates back to the date of the offering of the additional securities being registered if, within one year after the date of the sale, the amendment is filed and the additional registration fee is paid.
(a) The Commissioner may issue a stop order denying effectiveness to, or suspending or revoking the effectiveness of, a registration statement if the Commissioner finds that the order is in the public interest and that:
(1) The registration statement as of its effective date or before the effective date in the case of an order denying effectiveness, an amendment under subsection (j) of Code Section 10-5-24 as of its effective date, or a report under subsection (i) of Code Section 10-5-24 is incomplete in a material respect or contains a statement that, in the light of the circumstances under which it was made, was false or misleading with respect to a material fact;
(2) This chapter or a rule adopted or order issued under this chapter or a condition imposed under this chapter has been willfully violated, in connection with the offering, by the person filing the registration statement; by the issuer, a partner, officer, or director of the issuer or a person having a similar status or performing a similar function; by a promoter of the issuer; or by a person directly or indirectly controlling or controlled by the issuer but only if the person filing the registration statement is directly or indirectly controlled by or acting for the issuer; or by an underwriter;
(3) The security registered or sought to be registered is the subject of a permanent or temporary injunction of a court of competent jurisdiction or an administrative stop order or similar order issued under any federal, foreign, or state law other than this chapter applicable to the offering, but the Commissioner may not institute a proceeding against an effective registration statement under this paragraph more than one year after the date of the order or injunction on which it is based, and the Commissioner may not issue an order under this paragraph on the basis of an order or injunction issued under the securities act of another state unless the order or injunction was based on conduct that would constitute, as of the date of the order, a ground for a stop order under this Code section;
(4) The issuer's enterprise or method of business includes or would include activities that are unlawful where performed;
(5) With respect to a security sought to be registered under Code Section 10-5-22, there has been a failure to comply with the undertaking required by paragraph (4) of subsection (b) of said Code section;
(6) The applicant or registrant has not paid the filing fee, but the Commissioner shall void the order if the deficiency is corrected; or
(7) The offering:
(A) Will work or tend to work a fraud upon purchasers or would so operate; or
(B) Has been or would be made with unreasonable amounts of underwriters' and sellers' discounts, commissions, or other compensation or promoters' profits or participations or unreasonable amounts or kinds of options; or
(C) Is being made on terms that are unfair, unjust, or inequitable.
(b) To the extent practicable, the Commissioner by rule adopted or order issued under this chapter shall publish in print or electronically standards that provide notice of conduct that violates paragraph (7) of subsection (a) of this Code section.
(c) The Commissioner may not institute a stop order proceeding against an effective registration statement on the basis of conduct or a transaction known to the Commissioner when the registration statement became effective unless the proceeding is instituted within 30 days after the registration statement became effective.
(d) The Commissioner may summarily revoke, deny, postpone, or suspend the effectiveness of a registration statement pending final determination of an administrative proceeding. Upon the issuance of the order, the Commissioner shall promptly notify each person specified in subsection (e) of this Code section that the order has been issued, the reasons for the revocation, denial, postponement, or suspension, and that within 30 days after the receipt of a request in a record from the person the matter will be scheduled for a hearing. If a hearing is not requested and none is ordered by the Commissioner within 30 days after the date of service of the order, the order becomes final. If a hearing is requested or ordered, the Commissioner, after notice of and opportunity for hearing for each person subject to the order, may modify or vacate the order or extend the order until final determination.
(e) A stop order may not be issued under this Code section without:
(1) Appropriate notice to the applicant or registrant, the issuer, and the person on whose behalf the securities are to be or have been offered;
(2) An opportunity for hearing; and
(3) Findings of fact and conclusions of law in a record in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(f) The Commissioner may modify or vacate a stop order issued under this Code section if the Commissioner finds that the conditions that caused its issuance have changed or that it is necessary or appropriate in the public interest or for the protection of investors.
The Commissioner may waive or modify, in whole or in part, any or all of the requirements of Code Sections 10-5-21, 10-5-22, and subsection (b) of Code Section 10-5-23 or the requirement of any information or record in a registration statement or in a periodic report filed pursuant to subsection (i) of Code Section 10-5-24.
(a) It is unlawful for a person to transact business in this state as a broker-dealer unless the person is registered under this chapter as a broker-dealer or is exempt from registration as a broker-dealer under subsection (b) or (d) of this Code section.
(b) The following persons are exempt from the registration requirement of subsection (a) of this Code section:
(1) A broker-dealer without a place of business in this state if its only transactions effected in this state are with:
(A) The issuer of the securities involved in the transactions;
(B) A person registered as a broker-dealer under this chapter or not required to be registered as a broker-dealer under this chapter;
(C) An institutional investor;
(D) A nonaffiliated federal covered investment adviser with investments under management in excess of $100 million acting for the account of others pursuant to discretionary authority in a signed record;
(E) A bona fide preexisting customer whose principal place of residence is not in this state and the person is registered as a broker-dealer under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., or not required to be registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., and is registered under the securities act of the state in which the customer maintains a principal place of residence;
(F) A bona fide preexisting customer whose principal place of residence is in this state but was not present in this state when the customer relationship was established, if:
(i) The broker-dealer is registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., or not required to be registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., and is registered under the securities laws of the state in which the customer relationship was established and where the customer had maintained a principal place of residence; and
(ii) Within 45 days after the customer's first transaction in this state, the person files an application for registration as a broker-dealer in this state and a further transaction is not effected more than 75 days after the date on which the application is filed, or, if earlier, the date on which the Commissioner notifies the person that the Commissioner has denied the application for registration or has stayed the pendency of the application for good cause;
(G) Not more than three customers in this state during the previous 12 months, in addition to those customers specified in subparagraphs (A) through (F) and subparagraph (H) of this paragraph, if the broker-dealer is registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., or not required to be registered under the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., and is registered under the securities act of the state in which the broker-dealer has its principal place of business; and
(H) Any other person exempted by rule adopted or order issued under this chapter; and
(2) A person that deals solely in United States government securities and is supervised as a dealer in government securities by the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, or the Federal Deposit Insurance Corporation.
(c) It is unlawful for a broker-dealer or for an issuer engaged in offering, offering to purchase, purchasing, or selling securities in this state, directly or indirectly, to employ or associate with an individual to engage in an activity related to securities transactions in this state if the registration of the individual is suspended or revoked or the individual is barred from employment or association with a broker-dealer, an issuer, an investment adviser, or a federal covered investment adviser by an order of the Commissioner under this chapter, the Securities and Exchange Commission, or a self-regulatory organization. A broker-dealer or issuer does not violate this subsection if the broker-dealer or issuer did not know and in the exercise of reasonable care could not have known of the suspension, revocation, or bar. Upon request from a broker-dealer or issuer and for good cause, an order under this chapter may modify or waive, in whole or in part, the application of the prohibitions of this subsection to the broker-dealer.
(d) A rule adopted or order issued under this chapter may permit:
(1) A broker-dealer that is registered in Canada or other foreign jurisdiction and that does not have a place of business in this state to effect transactions in securities with or for or attempt to effect the purchase or sale of any securities by:
(A) An individual from Canada or other foreign jurisdiction who is temporarily present in this state and with whom the broker-dealer had a bona fide customer relationship before the individual entered the United States;
(B) An individual from Canada or other foreign jurisdiction who is present in this state and whose transactions are in a self-directed tax advantaged retirement plan of which the individual is the holder or contributor in that foreign jurisdiction; or
(C) An individual who is present in this state, with whom the broker-dealer customer relationship arose while the individual was temporarily or permanently resident in Canada or the other foreign jurisdiction; and
(2) An agent who represents a broker-dealer that is exempt under this subsection to effect transactions in securities or attempt to effect the purchase or sale of securities in this state as permitted for a broker-dealer described in paragraph (1) of this subsection.
(a) It is unlawful for an individual to transact business in this state as an agent unless the individual is registered under this chapter as an agent or is exempt from registration as an agent under subsection (b) of this Code section.
(b) The following individuals are exempt from the registration requirement of subsection (a) of this Code section:
(1) An individual who represents a broker-dealer in effecting transactions in this state limited to those described in Section 15(h)(2) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78o(h)(2);
(2) An individual who represents a broker-dealer that is exempt under subsection (b) or (d) of Code Section 10-5-30;
(3) An individual who represents an issuer with respect to an offer or sale of the issuer's own securities or those of the issuer's parent or any of the issuer's subsidiaries and who is not compensated in connection with the individual's participation by the payment of commissions or other remuneration based, directly or indirectly, on transactions in those securities;
(4) An individual who represents an issuer and who effects transactions in the issuer's securities exempted by Code Section 10-5-11, with the exception of paragraphs (11) and (14) of that Code section;
(5) An individual who represents an issuer that effects transactions solely in federal covered securities of the issuer, but an individual who effects transactions in a federal covered security under Section 18(b)(3) or 18(b)(4)(D) of the Securities Act of 1933, 15 U.S.C. Section 77r(b)(3) or 77r(b)(4)(D), is not exempt if the individual is compensated in connection with the agent's participation by the payment of commissions or other remuneration based, directly or indirectly, on transactions in those securities;
(6) An individual who represents a broker-dealer registered in this state under subsection (a) of Code Section 10-5-30 or exempt from registration under subsection (b) of Code Section 10-5-30 in the offer and sale of securities for an account of a nonaffiliated federal covered investment adviser with investments under management in excess of $100 million acting for the account of others pursuant to discretionary authority in a signed record;
(7) An individual who represents an issuer in connection with the purchase of the issuer's own securities;
(8) An individual who represents an issuer and who restricts participation to performing clerical or ministerial acts; or
(9) Any other individual exempted by rule adopted or order issued under this chapter.
(c) The registration of an agent is effective only while the agent is employed by or associated with a broker-dealer registered under this chapter or an issuer that is offering, selling, or purchasing its securities in this state.
(d) It is unlawful for a broker-dealer or an issuer engaged in offering, selling, or purchasing securities in this state to employ or associate with an agent who transacts business in this state on behalf of broker-dealers or issuers unless the agent is registered under subsection (a) of this Code section or exempt from registration under subsection (b) of this Code section.
(e) An individual may not act as an agent for more than one broker-dealer or one issuer at a time, unless the broker-dealers and the issuers for which the agent acts are affiliated by direct or indirect common control or are authorized by rule adopted or order issued under this chapter.
(a) It is unlawful for a person to transact business in this state as an investment adviser unless the person is registered under this chapter as an investment adviser or is exempt from registration as an investment adviser under subsection (b) of this Code section.
(b) The following persons are exempt from the registration requirement of subsection (a) of this Code section:
(1) A person without a place of business in this state that is registered under the securities act of the state in which the person has its principal place of business if its only clients in this state are:
(A) Federal covered investment advisers, investment advisers registered under this chapter, or broker-dealers registered under this chapter;
(B) Institutional investors;
(C) Bona fide preexisting clients whose principal places of residence are not in this state if the investment adviser is registered under the securities act of the state in which the clients maintain principal places of residence; or
(D) Any other client exempted by rule adopted or order issued under this chapter;
(2) A person without a place of business in this state if the person has had, during the preceding 12 months, not more than five clients that are resident in this state in addition to those specified under paragraph (1) of this subsection; or
(3) Any other person exempted by rule adopted or order issued under this chapter.
(c) It is unlawful for an investment adviser, directly or indirectly, to employ or associate with an individual to engage in an activity related to investment advice in this state if the registration of the individual is suspended or revoked or the individual is barred from employment or association with an investment adviser, federal covered investment adviser, or broker-dealer by an order issued under this chapter, the Securities and Exchange Commission, or a self-regulatory organization unless the investment adviser did not know, and in the exercise of reasonable care could not have known, of the suspension, revocation, or bar. Upon request from the investment adviser and for good cause, the Commissioner, by order, may waive, in whole or in part, the application of the prohibitions of this subsection to the investment adviser.
(d) It is unlawful for an investment adviser to employ or associate with an individual required to be registered under this chapter as an investment adviser representative who transacts business in this state on behalf of the investment adviser unless the individual is registered under subsection (a) of Code Section 10-5-33 or is exempt from registration under subsection (b) of Code Section 10-5-33.
(a) It is unlawful for an individual to transact business in this state as an investment adviser representative unless the individual is registered under this chapter as an investment adviser representative or is exempt from registration as an investment adviser under subsection (b) of this Code section.
(b) The following individuals are exempt from the registration requirement of subsection (a) of this Code section:
(1) An individual who is employed by or associated with an investment adviser that is exempt from registration under subsection (b) of Code Section 10-5-32 or a federal covered investment adviser that is excluded from the notice filing requirements of Code Section 10-5-34; and
(2) Any other individual exempted by rule adopted or order issued under this chapter.
(c) The registration of an investment adviser representative is not effective while the investment adviser representative is not employed by or associated with an investment adviser registered under this chapter or a federal covered investment adviser that has made or is required to make a notice filing under Code Section 10-5-34.
(d) An individual may transact business as an investment adviser representative for more than one investment adviser or federal covered investment adviser unless a rule adopted or order issued under this chapter prohibits or limits an individual from acting as an investment adviser representative for more than one investment adviser or federal covered investment adviser.
(e) It is unlawful for an individual acting as an investment adviser representative, directly or indirectly, to conduct business in this state on behalf of an investment adviser or a federal covered investment adviser if the registration of the individual as an investment adviser representative is suspended or revoked or the individual is barred from employment or association with an investment adviser or a federal covered investment adviser by an order issued under this chapter, the Securities and Exchange Commission, or a self-regulatory organization. Upon request from a federal covered investment adviser and for good cause, the Commissioner, by order, may waive, in whole or in part, the application of the requirements of this subsection to the federal covered investment adviser.
(f) An investment adviser registered under this chapter, a federal covered investment adviser that has filed a notice under Code Section 10-5-34, or a broker-dealer registered under this chapter is not required to employ or associate with an individual as an investment adviser representative if the only compensation paid to the individual for a referral of investment advisory clients is paid to an investment adviser registered under this chapter, a federal covered investment adviser who has filed a notice under Code Section 10-5-34, or a broker-dealer registered under this chapter with which the individual is employed or associated as an investment adviser representative.
(a) Except with respect to a federal covered investment adviser described in subsection (b) of this Code section, it is unlawful for a federal covered investment adviser to transact business in this state as a federal covered investment adviser unless the federal covered investment adviser complies with subsection (c) of this Code section.
(b) The following federal covered investment advisers are not required to comply with subsection (c) of this Code section:
(1) A federal covered investment adviser without a place of business in this state if its only clients in this state are:
(A) Federal covered investment advisers, investment advisers registered under this chapter, and broker-dealers registered under this chapter;
(B) Institutional investors;
(C) Bona fide preexisting clients whose principal places of residence are not in this state; or
(D) Other clients specified by rule adopted or order issued under this chapter;
(2) A federal covered investment adviser without a place of business in this state if the person has had, during the preceding 12 months, not more than five clients that are resident in this state in addition to those specified under paragraph (1) of this subsection; and
(3) Any other person excluded by rule adopted or order issued under this chapter.
(c) A person acting as a federal covered investment adviser, not excluded under subsection (b) of this Code section, shall file a notice, a consent to service of process complying with Code Section 10-5-80 and such records as have been filed with the Securities and Exchange Commission under the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., required by rule adopted or order issued under this chapter and pay the fees specified in subsection (e) of Code Section 10-5-39.
(d) The notice under subsection (c) of this Code section becomes effective upon its filing.
(a) A person shall register as a broker-dealer, agent, investment adviser, or investment adviser representative by filing an application and a consent to service of process complying with Code Section 10-5-80, and paying the fee specified in Code Section 10-5-39 and any reasonable fees charged by the Commissioner for processing the filing. The application must contain:
(1) The information or records required for the filing of a uniform application as required for applicants registering through the Central Registration Depository and the Investment Adviser Registration Depository, as applicable; and
(2) Upon request by the Commissioner, any other financial or other information or record that the Commissioner determines is appropriate;
(b)(1) Each individual filing an application to become a salesperson, limited salesperson, designated salesperson, investment adviser, federal covered adviser, or investment adviser representative shall be fingerprinted and have a criminal record check as required by this subsection.
(2) Fingerprints shall be in such form and quality as shall be acceptable for submission to the National Crime Information Center under standards adopted by the Federal Bureau of Investigation or the United States Department of Justice. It shall be the duty of each law enforcement agency in this state to fingerprint those persons required to be fingerprinted by this subsection.
(3) At the discretion of the Commissioner, fees required for a criminal record check by the Georgia Crime Information Center, the National Crime Information Center, the Federal Bureau of Investigation, or the United States Department of Justice shall be paid by the applicant.
(4) The Commissioner shall transmit two sets of fingerprints to the Georgia Crime Information Center, which shall submit one set of fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall retain one set of fingerprints and promptly conduct a search of state records. After receiving a report from the Georgia Crime Information Center and the Federal Bureau of Investigation, the Commissioner shall determine whether the applicant shall be licensed. If the applicant's fingerprints had been previously submitted for review to the Central Registration Depository in connection with federal or state licensing, the Commissioner may review and rely upon the criminal history reported pursuant thereto.
(5) The Commissioner shall notify the applicant of his or her rights to challenge the accuracy and completeness of any information provided by the Georgia Crime Information Center or the National Crime Information Center.
(6) Information provided by the Georgia Crime Information Center or the National Crime Information Center shall be used only for those purposes allowed by Code Section 35-3-35 or by applicable federal laws, rules, or regulations.
(7) Neither the Georgia Crime Information Center, the Commissioner, any law enforcement agency, nor the employees of any such entities shall be responsible for the accuracy of the information contained in the criminal background check nor incur any liability for defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of information or determination based thereon pursuant to this subsection.
(8) The Commissioner shall be authorized to adopt rules and regulations necessary to implement the provisions of this subsection.
(c) If the information or record contained in an application filed under subsection (a) of this Code section is or becomes inaccurate or incomplete in a material respect, the registrant shall promptly file a correcting amendment.
(d) If an order is not in effect and a proceeding is not pending under Code Section 10-5-41, registration becomes effective at noon on the forty-fifth day after a completed application is filed unless the registration is denied. A rule adopted or order issued under this chapter may set an earlier effective date or may defer the effective date until noon on the forty-fifth day after the filing of any amendment completing the application.
(e) A registration is effective until midnight on December 31 of the year for which the application for registration is filed. Unless an order is in effect under Code Section 10-5-41, a registration may be automatically renewed each year by filing such records as are required by rule adopted or order issued under this chapter, by paying the fee specified in Code Section 10-5-39, and by paying costs charged by the Commissioner for processing the filings.
(f) A rule adopted or order issued under this chapter may impose such other conditions, not inconsistent with the National Securities Markets Improvement Act of 1996, 15 U.S.C. Section 80b-1, et seq. An order issued under this chapter may waive, in whole or in part, such requirements in connection with registration as are in the public interest and for the protection of investors.
(a) A broker-dealer or investment adviser may succeed to the current registration of another broker-dealer or investment adviser or a notice filing of a federal covered investment adviser and a federal covered investment adviser may succeed to the current registration of an investment adviser or notice filing of another federal covered investment adviser by filing as a successor an application for registration pursuant to Code Section 10-5-30 or 10-5-32 or a notice pursuant to Code Section 10-5-34 for the unexpired portion of the current registration or notice filing.
(b) A broker-dealer or investment adviser that changes its form of organization or state of incorporation or organization may continue its registration by filing an amendment to its registration if the change does not involve a material change in its financial condition or management. The amendment becomes effective when filed or on a date designated by the registrant in its filing. The new organization is a successor to the original registrant for the purposes of this chapter. If there is a material change in financial condition or management, the broker-dealer or investment adviser shall file a new application for registration. A predecessor registered under this chapter shall stop conducting its securities business other than winding down transactions and shall file for withdrawal of broker-dealer or investment adviser registration within 45 days after filing its amendment to effect succession.
(c) A broker-dealer or investment adviser that changes its name may continue its registration by filing an amendment to its registration. The amendment becomes effective when filed or on a date designated by the registrant.
(d) A change of control of a broker-dealer or investment adviser may be made in accordance with a rule adopted or order issued under this chapter.
(a) If an agent registered under this chapter terminates employment by or association with a broker-dealer or issuer or if an investment adviser representative registered under this chapter terminates employment by or association with an investment adviser or federal covered investment adviser or if either registrant terminates activities that require registration as an agent or investment adviser representative, the broker-dealer, issuer, investment adviser or federal covered investment adviser shall promptly file a notice of termination. If the registrant learns that the broker-dealer, issuer, investment adviser, or federal covered investment adviser has not filed the notice, the registrant may do so.
(b) If an agent registered under this chapter terminates employment by or association with a broker-dealer registered under this chapter and begins employment by or association with another broker-dealer registered under this chapter or if an investment adviser representative registered under this chapter terminates employment by or association with an investment adviser registered under this chapter or a federal covered investment adviser that has filed a notice under Code Section 10-5-34 and begins employment by or association with another investment adviser registered under this chapter or a federal covered investment adviser that has filed a notice under Code Section 10-5-34, then upon the filing by or on behalf of the registrant, within 30 days after the termination, of an application for registration that complies with the requirement of subsection (a) of Code Section 10-5-35 and payment of the filing fee required under Code Section 10-5-39, the registration of the agent or investment adviser representative is:
(1) Immediately effective as of the date of the completed filing if the agent's Central Registration Depository record or successor record or the investment adviser representative's Investment Adviser Registration Depository record or successor record does not contain a new or amended disciplinary disclosure within the previous 12 months; or
(2) Temporarily effective as of the date of the completed filing if the agent's Central Registration Depository record or successor record or the investment adviser representative's Investment Adviser Registration Depository record or successor record contains a new or amended disciplinary disclosure within the preceding 12 months.
(c) The Commissioner may withdraw a temporary registration if there are or were grounds for discipline as specified in Code Section 10-5-41 and the Commissioner does so within 30 days after the filing of the application. If the Commissioner does not withdraw the temporary registration within the 30 day period, registration becomes automatically effective on the thirty-first day after filing.
(d) The Commissioner may prevent the effectiveness of a transfer of an agent or investment adviser representative under subsection (b) of this Code section based on the public interest and the protection of investors.
(e) If the Commissioner determines that a registrant or applicant for registration is no longer in existence or has ceased to act as a broker-dealer, agent, investment adviser, or investment adviser representative or is the subject of an adjudication of incapacity or is subject to the control of a committee, conservator, or guardian or cannot reasonably be located, a rule adopted or order issued under this chapter may require the registration be canceled or terminated or the application denied. The Commissioner may reinstate a canceled or terminated registration, with or without hearing, and may make the registration retroactive.
Withdrawal of registration by a broker-dealer, agent, investment adviser, or investment adviser representative becomes effective 60 days after the filing of the application to withdraw or within any shorter period as provided by rule adopted or order issued under this chapter unless a revocation or suspension proceeding is pending when the application is filed. If a proceeding is pending, withdrawal becomes effective when and upon such conditions as required by rule adopted or order issued under this chapter. The Commissioner may institute a revocation or suspension proceeding under Code Section 10-5-41 within one year after the withdrawal became effective automatically and issue a revocation or suspension order as of the last date on which registration was effective if a proceeding is not pending.
(a) A person shall pay a fee of $250.00 when initially filing an application for registration as a broker-dealer and a fee of $100.00 when filing a renewal of registration as a broker-dealer. If the filing results in a denial or withdrawal, the Commissioner shall retain the fee.
(b) The fee for an individual is $50.00 when filing an application for registration as an agent, $40.00 when filing a renewal of registration as an agent, and $30.00 when filing for a change of registration as an agent. If the filing results in a denial or withdrawal, the Commissioner shall retain the fee.
(c) A person shall pay a fee of $250.00 when filing an application for registration as an investment adviser and a fee of $100.00 when filing a renewal of registration as an investment adviser. If the filing results in a denial or withdrawal, the Commissioner shall retain the fee.
(d) The fee for an individual is $250.00 when filing an application for registration as an investment adviser representative, a fee of $100.00 when filing a renewal of registration as an investment adviser representative, and a fee of $50.00 when filing a change of registration as an investment adviser representative. If the filing results in a denial or withdrawal, the Commissioner shall retain the fee.
(e) A federal covered investment adviser required to file a notice under Code Section 10-5-34 shall pay an initial fee of $250.00 and an annual notice fee of $100.00.
(f) A person required to pay a filing or notice fee under this Code section may transmit the fee through or to a designee as a rule adopted or order issued provides under this chapter.
(g) An investment adviser representative who is registered as an agent under Code Section 10-5-31 and who represents a person that is both registered as a broker-dealer under Code Section 10-5-30 and registered as an investment adviser under Code Section 10-5-32 or required as a federal covered investment adviser to make a notice filing under Code Section 10-5-34 is not required to pay an initial or annual registration fee for registration as an investment adviser representative.
(a) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78o(h), or Section 222 of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-22, a rule adopted or order issued under this chapter may establish minimum financial requirements for broker-dealers registered or required to be registered under this chapter and investment advisers registered or required to be registered under this chapter.
(b) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78o(h), or Section 222(b) of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-22, a broker-dealer registered or required to be registered under this chapter and an investment adviser registered or required to be registered under this chapter shall file such financial reports, if any, as are required by a rule adopted or order issued under this chapter. If the information contained in a record filed under this subsection is or becomes inaccurate or incomplete in a material respect, the registrant shall promptly file a correcting amendment.
(c) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78o(h), or Section 222 of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-22:
(1) A broker-dealer registered or required to be registered under this chapter and an investment adviser registered or required to be registered under this chapter shall make and maintain the accounts, correspondence, memoranda, papers, books, and other records required by rule adopted or order issued under this chapter;
(2) Broker-dealer records required to be maintained under paragraph (1) of this subsection may be maintained in any form of data storage acceptable under Section 17(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78q(a), if they are readily accessible to the Commissioner; and
(3) Investment adviser records required to be maintained under paragraph (1) of this subsection may be maintained in any form of data storage required by rule adopted or order issued under this chapter.
(d) The records of a broker-dealer registered or required to be registered under this chapter and of an investment adviser registered or required to be registered under this chapter are subject to such reasonable, periodic, special, or other audits or inspections by a representative of the Commissioner, inside or outside this state, as the Commissioner considers necessary or appropriate in the public interest and for the protection of investors. An audit or inspection may be made at any time and without prior notice. The Commissioner may copy, and remove for audit or inspection copies of, all records the Commissioner reasonably considers necessary or appropriate to conduct the audit or inspection. The Commissioner may assess a reasonable charge for conducting an audit or inspection under this subsection.
(e) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U. S.C. Section 78o(h), or Section 222 of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-22, a rule adopted or order issued under this chapter may require a broker-dealer or investment adviser that has custody of or discretionary authority over funds or securities of a customer or client to obtain insurance or post a bond or other satisfactory form of security in an amount not to exceed $25,000.00. The Commissioner may determine the requirements of the insurance, bond, or other satisfactory form of security. Insurance or a bond or other satisfactory form of security may not be required of a broker-dealer registered under this chapter whose net capital exceeds or of an investment adviser registered under this chapter whose minimum financial requirements exceed the amounts required by rule adopted or order issued under this chapter. The insurance, bond, or other satisfactory form of security must permit an action by a person to enforce any liability on the insurance, bond, or other satisfactory form of security if instituted within the time limitations in paragraph (2) of subsection (j) of Code Section 10-5-58.
(f) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U. S.C. Section 78o(h), or Section 222 of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-22, an agent may not have custody of funds or securities of a customer except under the supervision of a broker-dealer and an investment adviser representative may not have custody of funds or securities of a client except under the supervision of an investment adviser or a federal covered investment adviser. A rule adopted or order issued under this chapter may prohibit, limit, or impose conditions on a broker-dealer regarding custody of funds or securities of a customer and on an investment adviser regarding custody of securities or funds of a client.
(g) With respect to an investment adviser registered or required to be registered under this chapter, a rule adopted or order issued under this chapter may require that information or other record be furnished or disseminated to clients or prospective clients in this state as necessary or appropriate in the public interest and for the protection of investors and advisory clients.
(h) A rule adopted or order issued under this chapter may require an individual registered under Code Section 10-5-31 or 10-5-33 to participate in a continuing education program approved by the Securities and Exchange Commission and administered by a self-regulatory organization or, in the absence of such a program, a rule adopted or order issued under this chapter may require continuing education for an individual registered under Code Section 10-5-33.
(a) If the Commissioner finds that the order is in the public interest and subsection (d) of this Code section authorizes the action, an order issued under this chapter may deny an application or may condition or limit registration:
(1) Of an applicant to be a broker-dealer, agent, investment adviser, or investment adviser representative; and
(2) If the applicant is a broker-dealer or investment adviser, of any partner, officer, director, person having a similar status or performing similar functions, or person directly or indirectly controlling the broker-dealer or investment adviser.
(b) If the Commissioner finds that the order is in the public interest and subsection (d) of this Code section authorizes the action, an order issued under this chapter may revoke, suspend, condition, or limit the registration of a registrant and if the registrant is a broker-dealer or investment adviser, any partner, officer, or director, any person having a similar status or performing similar functions, or any person directly or indirectly controlling the broker-dealer or investment adviser. However, the Commissioner:
(1) May not institute a revocation or suspension proceeding under this subsection based on an order issued by another state that is reported to the Commissioner later than one year after the date of the order on which it is based; and
(2) Under subparagraphs (d)(5)(A) and (d)(5)(B) of this Code section may not issue an order on the basis of an order under the state securities act of another state unless the other order was based on conduct for which subsection (d) of this Code section would authorize the action had the conduct occurred in this state.
(c) If the Commissioner finds that the order is in the public interest and paragraphs (1) through (6) and (8) through (13) of subsection (d) of this Code section authorize the action, an order under this chapter may censure, impose a bar, or impose a civil penalty in an amount not to exceed a maximum of $50,000.00 for a single violation or $500,000.00 for several violations on a registrant and if the registrant is a broker-dealer or investment adviser, any partner, officer, or director, any person having similar functions or any person directly or indirectly controlling the broker-dealer or investment adviser.
(d) A person may be disciplined under subsections (a) through (c) of this Code section if the person:
(1) Has filed an application for registration in this state under this chapter or the predecessor Act within the previous ten years, which, as of the effective date of registration or as of any date after filing in the case of an order denying effectiveness, was incomplete in any material respect or contained a statement that, in light of the circumstances under which it was made, was false or misleading with respect to a material fact;
(2) Willfully violated or willfully failed to comply with this chapter or the predecessor Act or a rule adopted or order issued under this chapter or the predecessor Act within the previous ten years;
(3) Has been convicted of a felony or within the previous ten years has been convicted of a misdemeanor involving a security, a commodity future or option contract, or an aspect of a business involving securities, commodities, investments, franchises, insurance, banking, or finance;
(4) Is enjoined or restrained by a court of competent jurisdiction in an action instituted by the Commissioner under this chapter or the predecessor Act, a state, the Securities and Exchange Commission, or the United States from engaging in or continuing an act, practice, or course of business involving an aspect of a business involving securities, commodities, investments, franchises, insurance, banking, or finance;
(5) Is the subject of an order, issued after notice and opportunity for hearing by:
(A) The securities, depository institution, insurance, or other financial services administrator of a state or by the Securities and Exchange Commission or other federal agency denying, revoking, barring, or suspending registration as a broker-dealer, agent, investment adviser, federal covered investment adviser, or investment adviser representative;
(B) The securities administrator of a state or by the Securities and Exchange Commission against a broker-dealer, agent, investment adviser, investment adviser representative, or federal covered investment adviser;
(C) The Securities and Exchange Commission or by a self-regulatory organization suspending or expelling the registrant from membership in the self-regulatory organization;
(D) A court adjudicating a United States Postal Service fraud order;
(E) The insurance regulator of a state denying, suspending, or revoking the registration of an insurance agent; or
(F) A depository institution regulator suspending or barring a person from the depository institution business;
(6) Is the subject of an adjudication or determination, after notice and opportunity for hearing, by the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal Trade Commission, a federal depository institution regulator, or a depository institution, insurance, or other financial services administrator of a state that the person willfully violated the Securities Act of 1933, 15 U.S.C. Section 77a, et seq., the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., the Investment Company Act of 1940, 15 U.S.C. Section 80a-1, et seq., or the Commodity Exchange Act, 7 U.S.C. Section 1, et seq., the securities or commodities law of a state, or a federal or state law under which a business involving investments, franchises, insurance, banking, or finance is regulated;
(7) Is insolvent, either because the person's liabilities exceed the person's assets or because the person cannot meet the person's obligations as they mature, but the Commissioner may not enter an order against an applicant or registrant under this paragraph without a finding of insolvency as to the applicant or registrant;
(8) Refuses to allow or otherwise impedes the Commissioner from conducting an audit or inspection under subsection (d) of Code Section 10-5-40 or refuses access to a registrant's office to conduct an audit or inspection under subsection (d) of Code Section 10-5-40;
(9) Has failed to reasonably supervise an agent, investment adviser representative, or other individual, if the agent, investment adviser representative, or other individual was subject to the person's supervision and committed a violation of this chapter or the predecessor Act or a rule adopted or order issued under this chapter or the predecessor Act within the previous ten years;
(10) Has not paid the proper filing fee within 30 days after having been notified by the Commissioner of a deficiency, but the Commissioner shall vacate an order under this paragraph when the deficiency is corrected;
(11) After notice and opportunity for a hearing, has been found within the previous ten years:
(A) By a court of competent jurisdiction to have willfully violated the laws of a foreign jurisdiction under which the business of securities, commodities, investment, franchises, insurance, banking, or finance is regulated;
(B) To have been the subject of an order of a securities administrator of a foreign jurisdiction denying, revoking, or suspending the right to engage in the business of securities as a broker-dealer, agent, investment adviser, investment adviser representative, or similar person; or
(C) To have been suspended or expelled from membership by or participation in a securities exchange or securities association operating under the securities laws of a foreign jurisdiction;
(12) Is the subject of a cease and desist order issued by the Securities and Exchange Commission or issued under the securities, commodities, investment, franchise, banking, finance, or insurance laws of a state;
(13) Has engaged in dishonest or unethical practices in the securities, commodities, investment, franchise, banking, finance, or insurance business within the previous ten years; or
(14) Is not qualified on the basis of factors such as training, experience, and knowledge of the securities business. However, in the case of an application by an agent for a broker-dealer that is a member of a self-regulatory organization or by an individual for registration as an investment adviser representative, a denial order may not be based on this paragraph if the individual has successfully completed all examinations required by subsection (e) of this Code section. The Commissioner may require an applicant for registration under Code Section 10-5-31 or 10-5-33 who has not been registered in a state within the two years preceding the filing of an application in this state to successfully complete an examination.
(e) A rule adopted or order issued under this chapter may require that an examination, including an examination developed or approved by an organization of securities regulators, be successfully completed by a class of individuals or all individuals. An order issued under this chapter may waive, in whole or in part, an examination as to an individual and a rule adopted under this chapter may waive, in whole or in part, an examination as to a class of individuals if the Commissioner determines that the examination is not necessary or appropriate in the public interest and for the protection of investors.
(f) The Commissioner may suspend or deny an application summarily; restrict, condition, limit, or suspend a registration; or censure, bar, or impose a civil penalty on a registrant before final determination of an administrative proceeding. Upon the issuance of an order, the Commissioner shall promptly notify each person subject to the order that the order has been issued, the reasons for the action, and that within 30 days after the receipt of a request in a record from the person the matter will be scheduled for a hearing. If a hearing is not requested and none is ordered by the Commissioner within 30 days after the date of service of the order, the order becomes final by operation of law. If a hearing is requested or ordered, the Commissioner, after notice of and opportunity for hearing to each person subject to the order, may modify or vacate the order or extend the order until final determination.
(g) Except under subsection (f) of this Code section, an order may not be issued under this Code section without:
(1) Appropriate notice to the applicant or registrant;
(2) Opportunity for hearing; and
(3) Findings of fact and conclusions of law in a record in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(h) A person that controls, directly or indirectly, a person not in compliance with this Code section may be disciplined by order of the Commissioner under subsections (a) through (c) of this Code section to the same extent as the noncomplying person, unless the controlling person did not know, and in the exercise of reasonable care could not have known, of the existence of conduct that is a ground for discipline under this Code section.
(i) The Commissioner may not institute a proceeding under subsection (a), (b), or (c) of this Code section based solely on material facts actually known by the Commissioner unless an investigation or the proceeding is instituted within one year after the Commissioner actually acquires knowledge of the material facts.
It is unlawful for a person, in connection with the offer, sale, or purchase of a security, directly or indirectly:
(1) To employ a device, scheme, or artifice to defraud;
(2) To make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in the light of the circumstances under which it is made, not misleading; or
(3) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.
(a) It is unlawful for a person that advises others for compensation, either directly or indirectly, or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as part of a regular business, issues or promulgates analyses or reports relating to securities:
(1) To employ a device, scheme, or artifice to defraud another person; or
(2) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.
(b) A rule adopted under this chapter may define an act, practice, or course of business of an investment adviser or an investment adviser representative, other than a supervised person of a federal covered investment adviser, as fraudulent, deceptive, or manipulative and prescribe means reasonably designed to prevent investment advisers and investment adviser representatives, other than supervised persons of a federal covered investment adviser, from engaging in acts, practices, and courses of business defined as fraudulent, deceptive, or manipulative.
(c) A rule adopted under this chapter may specify the contents of an investment advisory contract entered into, extended, or renewed by an investment adviser.
(a) In a civil action or administrative proceeding under this chapter, a person claiming an exemption, exception, preemption, or exclusion has the burden to prove the applicability of the claim.
(b) In a criminal proceeding under this chapter, a person claiming an exemption, exception, preemption, or exclusion has the burden of going forward with evidence of the claim.
(a) Except as otherwise provided in subsection (b) of this Code section, a rule adopted or order issued under this chapter may require the filing of a prospectus, pamphlet, circular, form letter, advertisement, sales literature, or other advertising record relating to a security or investment advice, addressed or intended for distribution to prospective investors, including clients or prospective clients of a person registered or required to be registered as an investment adviser under this chapter.
(b) This Code section does not apply to sales and advertising literature specified in subsection (a) of this Code section which relates to a federal covered security, a federal covered investment adviser, or a security or transaction exempted by Code Sections 10-5-10 through 10-5-12, except as required pursuant to paragraph (7) of Code Section 10-5-10.
It is unlawful for a person to make or cause to be made, in a record that is used in an action or proceeding or filed under this chapter, a statement that, at the time and in the light of the circumstances under which it is made, is false or misleading in a material respect, or, in connection with the statement, to omit to state a material fact necessary to make the statement made, in the light of the circumstances under which it was made, not false or misleading.
The filing of an application for registration, a registration statement, a notice filing under this chapter, the registration of a person, the notice filing by a person, or the registration of a security under this chapter does not constitute a finding by the Commissioner that a record filed under this chapter is true, complete, and not misleading. The filing or registration or the availability of an exemption, exception, preemption, or exclusion for a security or a transaction does not mean that the Commissioner has passed upon the merits or qualifications of, or recommended or given approval to, a person, security, or transaction. It is unlawful to make, or cause to be made, to a purchaser, customer, client, or prospective customer or client a representation inconsistent with this Code section.
A broker-dealer, agent, investment adviser, federal covered investment adviser, or investment adviser representative is not liable to another broker-dealer, agent, investment adviser, federal covered investment adviser, or investment adviser representative for defamation relating to a statement that is contained in a record required by the Commissioner, or a designee of the Commissioner, the Securities and Exchange Commission, or a self-regulatory organization, unless the person knew that it was false in a material respect or the person acted in reckless disregard of the statement's truth or falsity.
(a) A person that willfully violates this chapter, or a rule adopted or order issued under this chapter, except Code Section 10-5-53 or the notice filing requirements of Code Section 10-5-21 or 10-5-34, or that willfully violates Code Section 10-5-54 knowing the statement made to be false or misleading in a material respect, upon conviction, shall be fined not more than $500,000.00 or imprisoned not more than five years, or both. An individual convicted of violating a rule adopted or order issued under this chapter may be fined but may not be imprisoned if the individual did not have knowledge of the rule or order.
(b) The Attorney General or the proper prosecuting attorney with or without a reference from the Commissioner may institute criminal proceedings under this chapter.
(c) This chapter does not limit the power of this state to punish a person for conduct that constitutes a crime under other laws of this state.
(a) Enforcement of civil liability under this Code section is subject to the Securities Litigation Uniform Standards Act of 1998, 112 Stat. 3227.
(b) A person is liable to the purchaser if the person sells a security in violation of Code Section 10-5-20, or, by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it is made, not misleading, the purchaser not knowing the untruth or omission and the seller not sustaining the burden of proof that the seller did not know and, in the exercise of reasonable care, could not have known of the untruth or omission. An action under this subsection is governed by the following:
(1) The purchaser may maintain an action to recover the consideration paid for the security, less the amount of any income received on the security, and interest at the legal rate of interest from the date of the purchase, costs, and reasonable attorney fees determined by the court upon the tender of the security or for actual damages as provided in paragraph (3) of this subsection;
(2) The tender referred to in paragraph (1) of this subsection may be made any time before entry of judgment. Tender requires only notice in a record of ownership of the security and willingness to exchange the security for the amount specified. A purchaser that no longer owns the security may recover actual damages as provided in paragraph (3) of this subsection; and
(3) Actual damages in an action arising under this subsection are the amount that would be recoverable upon a tender less the value of the security when the purchaser disposed of it and interest at the legal rate of interest from the date of the purchase, costs, and reasonable attorney fees determined by the court.
(c) A person is liable to the seller if the person buys a security by means of an untrue statement of a material fact or omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it is made, not misleading, the seller not knowing of the untruth or omission, and the purchaser not sustaining the burden of proof that the purchaser did not know, and in the exercise of reasonable care, could not have known of the untruth or omission. An action under this subsection is governed by the following:
(1) The seller may maintain an action to recover the security and any income received on the security, costs, and reasonable attorney fees determined by the court upon the tender of the purchase price or for actual damages as provided in paragraph (3) of this subsection;
(2) The tender referred to in paragraph (1) of this subsection may be made any time before entry of judgment. Tender requires only notice in a record of the present ability to pay the amount tendered and willingness to take delivery of the security for the amount specified. If the purchaser no longer owns the security, the seller may recover actual damages as provided in paragraph (3) of this subsection; and
(3) Actual damages in an action arising under this subsection are the difference between the price at which the security was sold and the value the security would have had at the time of the sale in the absence of the purchaser's conduct causing liability and interest at the legal rate of interest from the date of the sale of the security, costs, and reasonable attorney fees determined by the court.
(d) A person acting as a broker-dealer or agent that sells or buys a security in violation of subsection (a) of Code Section 10-5-30, subsection (a) of Code Section 10-5-31, or Code Section 10-5-55 is liable to the customer. The customer, if a purchaser, may maintain an action for recovery of actual damages as specified in subsection (b) of this Code section, or, if a seller, for a remedy as specified in subsection (c) of this Code section.
(e) A person acting as an investment adviser or investment adviser representative that provides investment advice for compensation in violation of subsection (a) of Code Section 10-5-32, subsection (a) of Code Section 10-5-33, or Code Section 10-5-55 is liable to the client. The client may maintain an action to recover the consideration paid for the advice, interest from the date of payment, costs, and reasonable attorney fees determined by the court.
(f) A person that receives directly or indirectly any consideration for providing investment advice to another person and that employs a device, scheme, or artifice to defraud the other person or engages in an act, practice, or course of business that operates or would operate as a fraud or deceit on the other person is liable to the other person. An action under this subsection is governed by the following:
(1) The person defrauded may maintain an action to recover the consideration paid for the advice and the amount of any actual damages caused by the fraudulent conduct, interest from the date of the fraudulent conduct, costs, and reasonable attorney fees determined by the court, less the amount of any income received as a result of the fraudulent conduct; and
(2) This subsection does not apply to a broker-dealer or its agents if the investment advice provided is solely incidental to transacting business as a broker-dealer and no special compensation is received for the investment advice.
(g) The following persons are liable jointly and severally with and to the same extent as persons liable under subsections (b) through (f) of this Code section:
(1) A person that directly or indirectly controls a person liable under subsections (b) through (f) of this Code section, unless the controlling person sustains the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the existence of conduct by reason of which the liability is alleged to exist;
(2) An individual who is a managing partner, executive officer, or director of a person liable under subsections (b) through (f) of this Code section, including an individual having a similar status or performing similar functions, unless the individual sustains the burden of proof that the individual did not know and, in the exercise of reasonable care could not have known, of the existence of conduct by reason of which the liability is alleged to exist;
(3) An individual who is an employee of or associated with a person liable under subsections (b) through (f) of this Code section and who materially aids the conduct giving rise to the liability, unless the individual sustains the burden of proof that the individual did not know and, in the exercise of reasonable care could not have known, of the existence of conduct by reason of which the liability is alleged to exist; and
(4) A person that is a broker-dealer, agent, investment adviser, or investment adviser representative that materially aids the conduct giving rise to the liability under subsections (b) through (f) of this Code section, unless the person sustains the burden of proof that the person did not know and, in the exercise of reasonable care could not have known, of the existence of conduct by reason of which liability is alleged to exist.
(h) A person liable under this Code section has a right of contribution as in cases of contract against any other person liable under this Code section for the same conduct.
(i) A cause of action under this Code section survives the death of an individual who might have been a plaintiff or defendant.
(j) A person may not obtain relief under subsection (b) of this Code section:
(1) For a violation of Code Section 10-5-20 or for a violation of subsection (d) or (e) of this Code section, unless the action is instituted within two years after the violation occurred; or
(2) Other than for a violation of Code Section 10-5-20 or for a violation of subsection (c) or (f) of this Code section, unless the action is instituted within the earlier of two years after discovery of the facts constituting the violation or five years after the violation occurred.
(k) A person that has made or has engaged in the performance of a contract in violation of this chapter or a rule adopted or order issued under this chapter or that has acquired a purported right under the contract with knowledge of conduct by reason of which its making or performance was in violation of this chapter may not base an action on the contract.
(l) A condition, stipulation, or provision binding a person purchasing or selling a security or receiving investment advice to waive compliance with this chapter or a rule adopted or order issued under this chapter is void.
(m) The rights and remedies provided by this chapter are in addition to any other rights or remedies that may exist, but this chapter does not create a cause of action not specified in this Code section or subsection (e) of Code Section 10-5-40.
A purchaser, seller, or recipient of investment advice may not maintain an action under Code Section 10-5-58 if:
(1) The purchaser, seller, or recipient of investment advice receives in a record, before the action is instituted:
(A) An offer stating the respect in which liability under Code Section 10-5-58 may have arisen and fairly advising the purchaser, seller, or recipient of investment advice of that person's rights in connection with the offer and any financial or other information necessary to correct all material misrepresentations or omissions in the information that was required by this chapter to be furnished to that person at the time of the purchase, sale, or investment advice;
(B) If the basis for relief may have been a violation of subsection (b) of Code Section 10-5-58, an offer to repurchase the security for cash, payable on delivery of the security, equal to the consideration paid and interest from the date of the purchase, less the amount of any income received on the security; or, if the purchaser no longer owns the security, an offer to pay the purchaser upon acceptance of the offer damages in an amount that would be recoverable upon a tender, less the value of the security when the purchaser disposed of it and interest from the date of the purchase in cash equal to the damages computed in the manner provided in this subparagraph;
(C) If the basis for relief may have been a violation of subsection (c) of Code Section 10-5-58, an offer to tender the security on payment by the seller of an amount equal to the purchase price paid, less income received on the security by the purchaser, and interest from the date of the sale; or, if the purchaser no longer owns the security, an offer to pay the seller upon acceptance of the offer, in cash, damages in the amount of the difference between the price at which the security was purchased and the value the security would have had at the time of the purchase in the absence of the purchaser's conduct that may have caused liability and interest from the date of the sale;
(D) If the basis for relief may have been a violation of subsection (d) of Code Section 10-5-58 and if the customer is a purchaser, an offer to pay as specified in subparagraph (B) of this paragraph; or, if the customer is a seller, an offer to tender or to pay as specified in subparagraph (C) of this paragraph;
(E) If the basis for relief may have been a violation of subsection (e) of Code Section 10-5-58, an offer to reimburse in cash the consideration paid for the advice and interest from the date of payment; or
(F) If the basis for relief may have been a violation of subsection (f) of Code Section 10-5-58, an offer to reimburse in cash the consideration paid for the advice, the amount of any actual damages that may have been caused by the conduct, and interest from the date of the violation causing the loss;
(2) The offer under paragraph (1) of this Code section states that it must be accepted by the purchaser, seller, or recipient of investment advice within 30 days after the date of its receipt by the purchaser, seller, or recipient of investment advice or any shorter period, of not less than three days, that the Commissioner, by order, specifies;
(3) The offeror has the present ability to pay the amount offered or to tender the security under paragraph (1) of this Code section;
(4) The offer under paragraph (1) of this Code section is delivered to the purchaser, seller, or recipient of investment advice or sent in a manner that ensures receipt by the purchaser, seller, or recipient of investment advice; and
(5) The purchaser, seller, or recipient of investment advice that accepts the offer under paragraph (1) of this Code section in a record within the period specified under paragraph (2) of this Code section is paid in accordance with the terms of the offer.
(a) The administration of this chapter shall be vested in the Secretary of State, who is designated as the Commissioner of Securities.
(b) The Commissioner shall have the authority to administer oaths in and to prescribe forms for all matters arising under this chapter. The Commissioner shall cooperate with the administrators of the securities laws of other states and of the United States with a view to assisting those administrators in the enforcement of their securities and investment adviser laws and to achieving maximum uniformity in the interpretation of like provisions of the laws administered by them and in the forms which are required to be filed under such laws.
(c) The Commissioner shall have authority to employ examiners, clerks and stenographers, and other employees as the administration of this chapter may require. The Commissioner shall also have authority to appoint and employ investigators who shall have, in any case that there is reason to believe a violation of this chapter has occurred or is about to occur, the right and power to serve subpoenas and to swear out and execute search warrants and arrest warrants.
(d) The Commissioner shall have the power to make such rules and regulations from time to time as he or she may deem necessary and proper for the enforcement of this chapter. Such rules and regulations shall be adopted, promulgated, and contested as provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(e) The Commissioner or any persons employed by the Commissioner shall be paid, in addition to their regular compensation, the transportation fare, board, lodging, and other traveling expenses necessary and actually incurred by each of them in the performance of their duties under this chapter.
(f) The Commissioner shall appoint, with the approval of the Governor, a person as assistant Commissioner and delegate such powers and duties under this chapter to such assistant Commissioner as he or she desires.
(g) To encourage uniform interpretation and administration of this chapter and effective securities regulation and enforcement, the Commissioner may cooperate with the securities agencies or administrators of one or more states, Canadian provinces or territories, another country, the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Securities Investor Protection Corporation, any self-regulatory organization, any national or international organization, securities officials or agencies, or any governmental law enforcement or regulatory agency. The cooperation authorized may include, but is not limited to, participation in a central registration depository under this chapter for documents or records required or allowed to be maintained under this chapter and the designation of any such system as an agent for registration or receipt.
(h) Neither the Commissioner, the assistant Commissioner, nor any employee of the Commissioner may use for personal gain or benefit information filed with or obtained by the Commissioner which is not public information nor may the Commissioner, assistant Commissioner, or any employee of the Commissioner conduct securities dealings based upon information filed with or obtained by the Commissioner, even though such information is known to the public, if there has not been a sufficient period for the securities markets to assimilate the information.
(i) This chapter does not create or diminish a privilege or exemption that exists at common law, by statute or rule, or otherwise.
(j) The Commissioner may develop and implement investor education initiatives to inform the public about investing in securities, with particular emphasis on the prevention and detection of securities fraud. In developing and implementing these initiatives, the Commissioner may collaborate with public and nonprofit organizations with an interest in investor education. This subsection does not authorize the Commissioner to require participation or monetary contributions of a registrant in an investor education program.
(a) The Commissioner may:
(1) Conduct public or private investigations inside or outside this state which the Commissioner considers necessary or appropriate to determine whether a person has violated, is violating, or is about to violate this chapter or a rule adopted or order issued under this chapter or to aid in the enforcement of this chapter or in the adoption of rules and forms under this chapter;
(2) Require or permit a person to testify, file a statement, or produce a record, under oath or otherwise as the Commissioner determines, as to all the facts and circumstances concerning a matter to be investigated or about which an action or proceeding is to be instituted; and
(3) Publish in print or electronically a record concerning an action, proceeding, or an investigation under or a violation of this chapter or a rule adopted or order issued under this chapter if the Commissioner determines it is necessary or appropriate in the public interest and for the protection of investors.
(b) For the purpose of an investigation under this chapter, the Commissioner or his or her designated officer may administer oaths and affirmations, subpoena witnesses, seek compulsion of attendance, take evidence, require the filing of statements, and require the production of any records that the Commissioner considers relevant or material to the investigation.
(c) If a person does not appear or refuses to testify, file a statement, produce records, or otherwise does not obey a subpoena as required by the Commissioner under this chapter, the Commissioner may refer the matter to the Attorney General or the proper district attorney, who may apply to the superior court or a court of another state to enforce compliance. The court may:
(1) Hold the person in contempt;
(2) Order the person to appear before the Commissioner;
(3) Order the person to testify about the matter under investigation or in question;
(4) Order the production of records;
(5) Grant injunctive relief, including restricting or prohibiting the offer or sale of securities or the providing of investment advice;
(6) Impose a civil penalty of not less than $5,000.00 and not greater than $50,000.00 for each violation; and
(7) Grant any other necessary or appropriate relief.
(d) This Code section does not preclude a person from applying to superior court or a court of another state for relief from a request to appear, testify, file a statement, produce records, or obey a subpoena.
(e) An individual is not excused from attending, testifying, filing a statement, producing a record or other evidence, or obeying a subpoena of the Commissioner under this chapter or in an action or proceeding instituted by the Commissioner under this chapter on the ground that the required testimony, statement, record, or other evidence, directly or indirectly, may tend to incriminate the individual or subject the individual to a criminal fine, penalty, or forfeiture. If the individual refuses to testify, file a statement, or produce a record or other evidence on the basis of the individual's privilege against self-incrimination, the Commissioner may apply to superior court to compel the testimony, the filing of the statement, the production of the record, or the giving of other evidence. The testimony, record, or other evidence compelled under such an order may not be used, directly or indirectly, against the individual in a criminal case, except in a prosecution for perjury or contempt or otherwise failing to comply with the order.
(f) At the request of the securities administrator of another state or a foreign jurisdiction, the Commissioner may provide assistance if the requesting administrator states that it is conducting an investigation to determine whether a person has violated, is violating, or is about to violate a law or rule of the other state or foreign jurisdiction relating to securities matters that the requesting administrator regulates or enforces. The Commissioner may provide the assistance by using the authority to investigate and the powers conferred by this Code section as the Commissioner determines is necessary or appropriate. The assistance may be provided without regard to whether the conduct described in the request would also constitute a violation of this chapter or other law of this state if occurring in this state. In deciding whether to provide the assistance, the Commissioner may consider whether the requesting administrator is permitted and has agreed to provide assistance reciprocally within its state or foreign jurisdiction to the Commissioner on securities matters when requested; whether compliance with the request would violate or prejudice the public policy of this state; and the availability of resources and employees of the Commissioner to carry out the request for assistance.
(g) In the case of any investigation conducted under this Code section, the Commissioner may appoint an investigative agent who shall have the same investigative powers and authority as the Commissioner. The agent shall possess such qualifications as the Commissioner may require.
(a) If the Commissioner believes that a person has engaged, is engaging, or is about to engage in an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter or that a person has, is, or is about to engage in an act, practice, or course of business that materially aids a violation of this chapter or a rule adopted or order issued under this chapter, the Commissioner may maintain an action in the superior court to enjoin the act, practice, or course of business and to enforce compliance with this chapter or a rule adopted or order issued under this chapter.
(b) In an action under this Code section and on a proper showing, the court may:
(1) Issue a permanent or temporary injunction, restraining order, or declaratory judgment;
(2) Order other appropriate or ancillary relief, which may include:
(A) An asset freeze, accounting, writ of attachment, writ of general or specific execution, and appointment of a receiver or conservator, that may be the Commissioner, for the defendant or the defendant's assets;
(B) Ordering the Commissioner to take charge and control of a defendant's property, including investment accounts and accounts in a depository institution, rents, and profits; to collect debts; and to acquire and dispose of property;
(C) Imposing a civil penalty up to $50,000.00 for a single violation or up to $500,000.00 for more than one violation; an order of rescission, restitution, or disgorgement directed to a person that has engaged in an act, practice, or course of business constituting a violation of this chapter or the predecessor Act or a rule adopted or order issued under this chapter or the predecessor Act; and
(D) Ordering the payment of prejudgment and postjudgment interest; or
(3) Order such other relief as the court considers appropriate.
(c) The Commissioner may not be required to post a bond in an action or proceeding under this chapter.
(a) If the Commissioner determines that a person has engaged, is engaging, or is about to engage in an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter or that a person has materially aided, is materially aiding, or is about to materially aid an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter, the Commissioner may:
(1) Issue an order directing the person to cease and desist from engaging in the act, practice, or course of business or to take other action necessary or appropriate to comply with this chapter;
(2) Issue an order denying, suspending, revoking, or conditioning the exemptions for a broker-dealer under subparagraph (b)(1)(D) or (b)(1)(F) of Code Section 10-5-30 or an investment adviser under subparagraph (b)(1)(C) of Code Section 10-5-32; or
(3) Issue an order under Code Section 10-5-13.
(b) An order under subsection (a) of this Code section is effective on the date of issuance. Upon issuance of the order, the Commissioner shall promptly serve each person subject to the order with a copy of the order and a notice that the order has been entered. The order must include a statement whether the Commissioner will seek a civil penalty or costs of the investigation, a statement of the reasons for the order, and notice that, within 30 days after receipt of a request in a record from the person, the matter will be scheduled for a hearing. If a person subject to the order does not request a hearing and none is ordered by the Commissioner within 30 days after the date of service of the order, the order becomes final as to that person by operation of law. If a hearing is requested or ordered, the Commissioner, after notice of and opportunity for hearing to each person subject to the order, may modify or vacate the order or extend it until final determination.
(c) If a hearing is requested or ordered pursuant to subsection (b) of this Code section, a hearing must be held pursuant to the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act” and this chapter. A final order may not be issued unless the Commissioner makes findings of fact and conclusions of law in a record. The final order may make final, vacate, or modify the order issued under subsection (a) of this Code section.
(d) In a final order under subsection (c) of this Code section, the Commissioner may impose a civil penalty up to $50,000.00 for a single violation or up to $500,000.00 for more than one violation.
(e) In a final order under subsection (c) of this Code section, the Commissioner may charge the actual cost of an investigation or proceeding for a violation of this chapter or a rule adopted or order issued under this chapter.
(f) If a petition for judicial review of a final order is not filed in accordance with Code Section 10-5-78, the Commissioner may file a certified copy of the final order with the clerk of a court of competent jurisdiction. The order so filed has the same effect as a judgment of the court and may be recorded, enforced, or satisfied in the same manner as a judgment of the court.
(g) If a person does not comply with an order under this Code section, the Commissioner may petition a court of competent jurisdiction to enforce the order. The court may not require the Commissioner to post a bond in an action or proceeding under this Code section. If the court finds, after service and opportunity for hearing, that the person was not in compliance with the order, the court may adjudge the person in civil contempt of the order. The court may impose a further civil penalty against the person for contempt in an amount not less than $5,000.00 but not greater than $50,000.00 for each violation and may grant any other relief the court determines is just and proper in the circumstances.
(a) The Commissioner may:
(1) Issue forms and orders and, after notice and comment, may adopt and amend rules necessary or appropriate to carry out this chapter and may repeal rules, including rules and forms governing registration statements, applications, notice filings, reports, and other records;
(2) By rule, define terms, whether or not used in this chapter, but those definitions may not be inconsistent with this chapter; and
(3) By rule, classify securities, persons, and transactions and adopt different requirements for different classes.
(b) Under this chapter, a rule or form may not be adopted or amended or an order issued or amended unless the Commissioner finds that the rule, form, order, or amendment is necessary or appropriate in the public interest or for the protection of investors and is consistent with the purposes intended by this chapter. In adopting, amending, and repealing rules and forms, Code Section 10-5-77 applies in order to achieve uniformity among the states and coordination with federal laws in the form and content of registration statements, applications, reports, and other records, including the adoption of uniform rules, forms, and procedures.
(c) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., and Section 222 of the Investment Advisers Act of 1940, 15 U.S.C. Section 80b-1, et seq., the Commissioner may require that a financial statement filed under this chapter be prepared in accordance with generally accepted accounting principles in the United States and comply with other requirements specified by rule adopted or order issued under this chapter. A rule adopted or order issued under this chapter may establish:
(1) Subject to Section 15(h) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78a, et seq., and Section 222 of the Investment Advisors Act of 1940, 15 U.S.C. Section 80b-1, et seq., the form and content of financial statements required under this chapter;
(2) Whether unconsolidated financial statements must be filed; and
(3) Whether required financial statements must be audited by an independent certified public accountant.
(d) The Commissioner may provide interpretative opinions or issue determinations that the Commissioner will not institute a proceeding or an action under this chapter against a specified person for engaging in a specified act, practice, or course of business if the determination is consistent with this chapter. A rule adopted or order issued under this chapter may establish a reasonable charge for interpretative opinions or determinations that the Commissioner will not institute an action or a proceeding under this chapter.
(e) A hearing in an administrative proceeding under this chapter shall be conducted in public unless the Commissioner for good cause consistent with this chapter determines that the hearing shall not be so conducted.
(a) The Commissioner shall maintain, or designate a person to maintain, a register of applications for registration of securities; registration statements; notice filings; applications for registration of broker-dealers, agents, investment advisers, and investment adviser representatives; notice filings by federal covered investment advisers that are or have been effective under this chapter or the predecessor Act; notices of claims of exemption from registration or notice filing requirements contained in a record; orders issued under this chapter or the predecessor Act; and interpretative opinions or no action determinations issued under this chapter.
(b) The Commissioner shall make all rules, forms, interpretative opinions, and orders available to the public.
(c) The Commissioner shall furnish a copy of a record that is a public record or a certification that the public record does not exist to a person that so requests. A rule adopted under this chapter may establish a reasonable charge for furnishing the record or certification. A copy of the record certified or a certificate by the Commissioner of a record's nonexistence is prima-facie evidence of a record or its nonexistence.
(a) Except as otherwise provided in subsection (b) of this Code section, records obtained by the Commissioner or filed under this chapter, including a record contained in or filed with a registration statement, application, notice filing, or report, are public records and are available for public examination.
(b) The following information and documents do not constitute public information under subsection (a) of this Code section and shall be confidential:
(1) Information or documents obtained by the Commissioner in connection with an investigation under Code Section 10-5-71;
(2) Information or documents filed with the Commissioner in connection with a registration statement or exemption filing under this chapter which constitute trade secrets or commercial or financial information of a person for which that person is entitled to and has asserted a claim of confidentiality or privilege authorized by law;
(3) Any document or record specifically designated as confidential in accordance with this chapter; and
(4) Any document, record, or information designated as confidential by federal statute, rule, or regulation.
(a) The Commissioner shall, in his or her discretion, cooperate, coordinate, consult, and, subject to Code Section 10-5-76, share records and information with the securities administrator of another state, Canada, a Canadian province or territory, a foreign jurisdiction, the Securities and Exchange Commission, the United States Department of Justice, the Commodity Futures Trading Commission, the Federal Trade Commission, the Securities Investor Protection Corporation, a self-regulatory organization, a national or international organization of securities administrators, a federal or state banking or insurance regulator, or a governmental law enforcement agency to effectuate greater uniformity in securities matters among the federal government, self-regulatory organizations, states, and foreign governments.
(b) In cooperating, coordinating, consulting, and sharing records and information under this Code section and in acting by rule, order, or waiver under this chapter, the Commissioner shall, in his or her discretion, take into consideration in carrying out the public interest the following general policies:
(1) Maximizing effectiveness of regulation for the protection of investors;
(2) Maximizing uniformity in federal and state regulatory standards; and
(3) Minimizing burdens on the business of capital formation, without adversely affecting essentials of investor protection.
(c) The cooperation, coordination, consultation, and sharing of records and information authorized by this Code section includes:
(1) Establishing or employing one or more designees as a central depository for registration and notice filings under this chapter and for records required or allowed to be maintained under this chapter;
(2) Developing and maintaining uniform forms;
(3) Conducting a joint examination or investigation;
(4) Holding a joint administrative hearing;
(5) Instituting and prosecuting a joint civil or administrative proceeding;
(6) Sharing and exchanging personnel;
(7) Coordinating registrations under Code Sections 10-5-20 and Code Section 10-5-30 through 10-5-33 and exemptions under Code Section 10-5-12;
(8) Sharing and exchanging records, subject to Code Section 10-5-76;
(9) Formulating rules, statements of policy, guidelines, forms, and interpretative opinions and releases;
(10) Formulating common systems and procedures;
(11) Notifying the public of proposed rules, forms, statements of policy, and guidelines;
(12) Attending conferences and other meetings among securities administrators, which may include representatives of governmental and private sector organizations involved in capital formation, deemed necessary or appropriate to promote or achieve uniformity; and
(13) Developing and maintaining a uniform exemption from registration for small issuers and taking other steps to reduce the burden of raising investment capital by small businesses.
(a) A final order issued by the Commissioner under this chapter is subject to judicial review in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(b) A rule adopted under this chapter is subject to judicial review in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(a) Code Sections 10-5-20 and 10-5-21, subsection (a) of Code Section 10-5-30, subsection (a) of Code Section 10-5-31, subsection (a) of Code Section 10-5-32, subsection (a) of Code Section 10-5-33, and Code Sections 10-5-42, 10-5-55, 10-5-58, and 10-5-59 do not apply to a person that sells or offers to sell a security unless the offer to sell or the sale is made in this state or the offer to purchase or the purchase is made and accepted in this state.
(b) Subsection (a) of Code Section 10-5-30, subsection (a) of Code Section 10-5-31, subsection (a) of Code Section 10-5-32, subsection (a) of Code Section 10-5-33, and Code Sections 10-5-42, 10-5-55, 10-5-58, and 10-5-59 do not apply to a person that purchases or offers to purchase a security unless the offer to purchase or the purchase is made in this state or the offer to sell or the sale is made and accepted in this state.
(c) For the purpose of this Code section, an offer to sell or to purchase a security is made in this state, whether or not either party is then present in this state, if the offer:
(1) Originates from within this state; or
(2) Is directed by the offeror to a place in this state and received at the place to which it is directed.
(d) For the purpose of this Code section, an offer to purchase or to sell is accepted in this state, whether or not either party is then present in this state, if the acceptance:
(1) Is communicated to the offeror in this state and the offeree reasonably believes the offeror to be present in this state and the acceptance is received at the place in this state to which it is directed; and
(2) Has not previously been communicated to the offeror, orally or in a record, outside this state.
(e) An offer to sell or to purchase is not made in this state when a publisher circulates or there is circulated on the publisher's behalf in this state a bona fide newspaper or other publication of general, regular, and paid circulation that is not published in this state or that is published in this state but has had more than two-thirds of its circulation outside this state during the previous 12 months or when a radio or television program or other electronic communication originating outside this state is received in this state. A radio or television program or other electronic communication is considered as having originated in this state if either the broadcast studio or the originating source of transmission is located in this state, unless:
(1) The program or communication is syndicated and distributed from outside this state for redistribution to the general public in this state;
(2) The program or communication is supplied by a radio, television, or other electronic network with the electronic signal originating from outside this state for redistribution to the general public in this state;
(3) The program or communication is an electronic communication that originates outside this state and is captured for redistribution to the general public in this state by a community antenna or cable, radio, cable television, or other electronic system; or
(4) The program or communication consists of an electronic communication that originates in this state but is not intended for distribution to the general public in this state.
(f) Subsection (a) of Code Section 10-5-32, subsection (a) of Code Section 10-5-33, subsection (a) of Code Section 10-5-34, and Code Sections 10-5-51, 10-5-54, and 10-5-55 apply to a person if the person engages in an act, practice, or course of business instrumental in effecting prohibited or actionable conduct in this state, whether or not either party is then present in this state.
(a) A consent to service of process complying with this Code section and required by this chapter must be signed and filed in the form required by a rule or order under this chapter. A consent appointing the Commissioner the person's agent for service of process in a noncriminal action or proceeding against the person or the person's successor or personal representative under this chapter or a rule adopted or order issued under this chapter after the consent is filed has the same force and validity as if the service were made personally on the person filing the consent. A person that has filed a consent complying with this subsection in connection with a previous application for registration or notice filing need not file an additional consent.
(b) If a person, including a nonresident of this state, engages in an act, practice, or course of business prohibited or made actionable by this chapter or a rule adopted or order issued under this chapter and the person has not filed a consent to service of process under subsection (a) of this Code section, the act, practice, or course of business constitutes the appointment of the Commissioner as the person's agent for service of process in a noncriminal action or proceeding against the person or the person's successor or personal representative.
(c) Service under subsection (a) or (b) of this Code section may be made by providing a copy of the process to the office of the Commissioner, but it is not effective unless:
(1) The plaintiff, which may be the Commissioner, promptly sends notice of the service and a copy of the process, return receipt requested, to the defendant or respondent at the address set forth in the consent to service of process or, if a consent to service of process has not been filed, at the last known address or takes other reasonable steps to give notice; and
(2) The plaintiff files an affidavit of compliance with this subsection in the action or proceeding on or before the return day of the process, if any, or within the time that the court, or the Commissioner in a proceeding before the Commissioner, allows.
(d) Service pursuant to subsection (c) of this Code section may be used in a proceeding before the Commissioner or by the Commissioner in a civil action in which the Commissioner is the moving party.
(e) If process is served under subsection (c) of this Code section, the court, or the Commissioner in a proceeding before the Commissioner, shall order continuances as are necessary or appropriate to afford the defendant or respondent reasonable opportunity to defend.
(a) The predecessor Act exclusively governs all actions or proceedings that are pending on July 1, 2009, or may be instituted on the basis of conduct occurring before July 1, 2009, but a civil action may not be maintained to enforce any liability under the predecessor Act unless instituted within any period of limitation that applied when the cause of action accrued or within five years after July 1, 2009, whichever is earlier.
(b) All effective registrations under the predecessor Act, all administrative orders relating to the registrations, rules, statements of policy, interpretative opinions, declaratory rulings, no action determinations, and conditions imposed on the registrations under the predecessor Act remain in effect while they would have remained in effect if this chapter had not been enacted. They are considered to have been filed, issued, or imposed under this chapter but are exclusively governed by the predecessor Act.
(c) The predecessor Act exclusively applies to an offer or sale made within one year after July 1, 2009, pursuant to an offering made in good faith before July 1, 2009, on the basis of an exemption available under the predecessor Act.
As used in this article, the term:
(1) “Account” means any account with a broker-dealer or investment adviser for which a client has the authority to transact business.
(2) “Adult protective agency” means any office, division, department, or unit in this state that is charged with the investigation of abuse, neglect, or exploitation of an elder person or disabled adult.
(3) “Eligible adult” means:
(A) A person 65 years of age or older; or
(B) A person 18 years of age or older who is mentally or physically incapacitated, has Alzheimer's disease, or has dementia.
(4) “Financial exploitation” means:
(A) The wrongful or unauthorized taking, withholding, appropriation, or use of the money, assets, or property of an eligible adult; or
(B) Any act or omission taken by a person, including, but not limited to, through the use of a power of attorney, guardianship, or conservatorship of an eligible adult, to:
(i) Obtain the control, use, or benefit of the eligible adult's money, assets, or property to deprive the eligible adult of the ownership, use, benefit, or possession of his or her money, assets, or property through deception, intimidation, or undue influence or by the use of any scheme, device, or artifice to defraud; or
(ii) Convert the money, assets, or property of the eligible adult to deprive the eligible adult of the ownership, use, benefit, or possession of his or her money, assets, or property.
(5) “Qualified individual” means any agent, investment adviser representative, or person who serves in a supervisory, compliance, or legal capacity for a broker-dealer or investment advisor.
(a) If a qualified individual has reasonable cause to believe that the financial exploitation of an eligible adult may have occurred, may have been attempted, or is being attempted, then the qualified individual shall promptly notify the Commissioner.
(b) The notification required by subsection (a) of this Code section may be made by oral or written communication or by form as issued by the Commissioner. Such notice shall include, to the extent possible:
(1) The name and address of the eligible adult;
(2) The name and address of the eligible adult's caretaker;
(3) The age of the eligible adult;
(4) The nature and extent of the eligible adult's potential or actual injury or condition resulting from the financial exploitation;
(5) Any other pertinent information; and
(6) Any additional information that is required by a rule adopted or form or order issued by the Commissioner.
If a qualified individual has reasonable cause to believe that the financial exploitation of an eligible adult may have occurred, may have been attempted, or is being attempted, then a qualified individual may notify any third party previously designated by the eligible adult; provided, however, that a qualified individual shall not notify any designated third party that is suspected of the financial exploitation or other abuse of the eligible adult.
(a) A broker-dealer or investment adviser may delay a disbursement from, or a transaction in connection with, an account of an eligible adult or an account on which an eligible adult is a beneficiary if the broker-dealer, investment adviser, or qualified individual has reasonable cause to believe that, after initiating an internal review of the requested disbursement or transaction and the suspected financial exploitation, the requested disbursement or transaction may result in the financial exploitation of the eligible adult.
(b) If a broker-dealer or investment adviser delays a disbursement or transaction under subsection (a) of this Code section, the broker-dealer, investment adviser, or a qualified individual shall:
(1) Immediately, and in no event more than two business days after the requested disbursement or transaction was delayed, provide written notification of the delay and the reason for the delay to all parties authorized to transact business on the account, unless there is reasonable cause to believe such party engaged in the suspected or attempted financial exploitation of the eligible adult;
(2) Immediately, and in no event more than two business days after the requested disbursement or transaction was delayed, notify the Commissioner pursuant to Code Section 10-5-101; and
(3) Continue an internal review of the suspected or attempted financial exploitation of the eligible adult, as necessary, and report the investigation's results to the Commissioner within seven business days of the requested disbursement or transaction.
(c) The authorization of any delay of a disbursement or transaction pursuant to this Code section shall expire upon the sooner of:
(1) A determination by the broker-dealer or investment adviser that the disbursement or transaction will not result in the financial exploitation of the eligible adult; or
(2) Fifteen business days after the date on which the broker-dealer or investment adviser first delayed the requested disbursement or transaction, unless the Commissioner requests that the broker-dealer or investment adviser extend the delay, in which case the delay shall expire no more than 25 business days after the date on which the broker-dealer or investment adviser first delayed the disbursement or transaction, unless sooner terminated by either the Commissioner or an order of a court of competent jurisdiction.
(d) A court of competent jurisdiction may enter an order extending the delay of a disbursement or transaction under this Code section, or may order other protective relief, upon the petition of the Commissioner; adult protective agency of competent jurisdiction; a broker-dealer or investment adviser that initiated the delay under this Code section; or another interested party.
No broker-dealer, investment adviser, or qualified individual who, in good faith and exercising reasonable care, complies with this article shall be subject to administrative or civil liability based on:
(1) A delay of a disbursement or transaction pursuant to this article;
(2) A disclosure made pursuant to this article; or
(3) The failure to notify an eligible adult of disclosures made pursuant to this article.
Notwithstanding any provision of law to the contrary, the Commissioner may disclose to any notifying broker-dealer, investment adviser, or qualified individual the general status or final disposition of any investigation that arose from a report made by the broker-dealer, investment adviser, or qualified individual under this article.
(a) A broker-dealer or investment adviser shall provide access to or copies of records that are relevant to the suspected or attempted financial exploitation of an eligible adult to the Commissioner, adult protective agency of competent jurisdiction, or law enforcement pursuant to an investigation. Such records may include historical records and records pertaining to a disbursement or transaction related to the suspected or attempted financial exploitation of an eligible adult. Records made available under this Code section shall not be public records and shall not be available for public examination.
(b) Nothing in this Code section shall limit or otherwise impede the authority of the Commissioner from accessing or examining the books and records of a broker-dealer or investment adviser as otherwise provided by law.
Nothing in this article shall limit or shield, in any manner, a broker-dealer, investment adviser, or qualified individual from any administrative or civil liability for any claim, or for reasonable attorneys' fees, costs, and litigation expenses related to such claim, for participating in or materially aiding the financial exploitation of an eligible adult. Any such civil claim may be asserted by the eligible adult, or on his or her behalf by an appropriate guardian or representative who is not involved in or otherwise suspected of participating in the financial exploitation of the eligible adult, by filing a civil action in a court of competent jurisdiction.
Nothing in this article shall limit a broker-dealer or investment adviser from being absolved of any applicable reporting duties under Code Section 30-5-4 and other laws of this state.
As used in this chapter, the term:
(1) “Board of trade” means any person or group of persons engaged in buying or selling any commodity or receiving the same for sale on consignment, whether such person or group of persons is characterized as a board of trade, exchange, or other form of marketplace.
(2) “Commissioner” means the Commissioner of Securities.
(3) “Commodity” means, except as otherwise specified by the Commissioner by rule, regulation, or order, any agricultural, grain, or livestock product or by-product, any metal or mineral (including a precious metal set forth in paragraph (12) of this Code section), any gem or gemstone (whether characterized as precious, semiprecious, or otherwise), any fuel (whether liquid, gaseous, or otherwise), any foreign currency, all other goods, articles, products, or items of any kind or any other “commodity” as defined in the Commodity Exchange Act or Commodity Futures Trading Commission rule, provided that the term commodity shall not include (A) a numismatic coin whose fair market value is at least 15 percent higher than the value of the metal it contains, (B) real property or any timber, agricultural, or livestock product grown or raised on real property and offered or sold by the owner or lessee of such real property, or (C) any work of art offered or sold by art dealers, at public auction, or through a private sale by the owner thereof.
(4) “Commodity contract” means any account, agreement, or contract for the purchase or sale, primarily for speculation or investment purposes and not for use or consumption by the offeree or purchaser, of one or more commodities, whether for immediate or subsequent delivery or whether or not delivery is intended by the parties, and whether characterized as a cash contract, deferred shipment or deferred delivery contract, forward contract, futures contract, installment or margin contract, leverage contract, or otherwise. Any commodity contract offered or sold, in the absence of evidence to the contrary, shall be presumed to be offered or sold for speculation or investment purposes. A commodity contract shall not include any contract or agreement which requires, and under which the purchaser receives, physical delivery of the total amount of each commodity to be purchased under the contract or agreement within 29 calendar days from the date of payment in good funds of any portion of the purchase price.
(5) “Commodity Exchange Act” means the act of Congress codified at 7 U.S.C. Section 1, et seq., known as the Commodity Exchange Act, as amended to July 1, 1988, and all subsequent amendments, additions, or other revisions thereto.
(6) “Commodity Futures Trading Commission” means the independent regulatory agency designated by Congress to administer the Commodity Exchange Act.
(7) “Commodity Futures Trading Commission rule” means any rule, regulation, or order of the Commodity Futures Trading Commission in effect on July 1, 1988, and all subsequent amendments, additions, or other revisions thereto.
(8) “Commodity merchant” means any of the following, as defined or described in the Commodity Exchange Act or by Commodity Futures Trading Commission rule:
(A) Futures commission merchant;
(B) Commodity pool operator;
(C) Commodity trading adviser;
(D) Introducing broker;
(E) Leverage transaction merchant;
(F) An associated person of any of the foregoing;
(G) Floor broker; and
(H) Any other person (other than a futures association) required to register with the Commodity Futures Trading Commission.
(9) “Commodity option” means any account, agreement, or contract giving a party thereto the right but not the obligation to purchase or sell one or more commodities or one or more commodity contracts, or both, whether characterized as an option, privilege, indemnity, bid, offer, put, call, advance guaranty, decline guaranty, or otherwise, but shall not include an option traded on a national securities exchange registered with the United States Securities and Exchange Commission.
(10) “Financial institution” means a bank, savings institution, or trust company organized under, or supervised pursuant to, the laws of the United States or of any state.
(11) “Person” means an individual, a corporation, a partnership, an association, a joint-stock company, a trust where the interests of the beneficiaries are evidenced by a security, an unincorporated organization, a government, or a political subdivision of a government, but shall not include a contract market designated by the Commodity Futures Trading Commission or any clearing-house thereof or a national securities exchange registered with the Securities and Exchange Commission (or any employee, officer, or director of such contract market, clearing-house, or exchange acting solely in that capacity).
(12) “Precious metal” means the following in either coin, bullion, or other form:
(A) Silver;
(B) Gold;
(C) Platinum;
(D) Palladium;
(E) Copper; and
(F) Such other items as the Commissioner may specify by rule, regulation, or order.
Except as otherwise provided in Code Section 10-5A-3 or 10-5A-4, no person shall solicit the purchase or sale of or offer to sell or purchase any commodity under any commodity contract or under any commodity option or offer to enter into as seller or purchaser any commodity contract or any commodity option.
The prohibitions in Code Section 10-5A-2 shall not apply to any transaction offered by and in which any of the following persons or any employee, officer, or director thereof acting solely in that capacity is the purchaser or seller:
(1) A person registered with the Commodity Futures Trading Commission as a futures commission merchant or as a leverage transaction merchant whose activities require such registration;
(2) A person registered with the Securities and Exchange Commission as a broker-dealer whose activities require such registration;
(3) A person affiliated with, and whose obligations and liabilities under the transaction are guaranteed by, a person referred to in paragraph (1) or (2) of this Code section;
(4) A person who is a member of a contract market designated by the Commodity Futures Trading Commission or any clearing-house thereof;
(5) A financial institution;
(6) A person registered under the laws of this state as a securities broker-dealer whose activities require such registration; or
(7) A person engaged in business as a bullion or precious metals dealer having and maintaining a net worth of at least $500,000.00, provided that such person has filed with the Commissioner a sworn statement, in form and substance satisfactory to the Commissioner, that such person meets the minimum net worth requirement and that such person will notify the Commissioner immediately in the event its net worth falls below $500,000.00.
The exemption provided by this Code section shall not apply to any transaction or activity which is prohibited by the Commodity Exchange Act 1 or Commodity Futures Trading Commission rule.
1 7 U.S.C.A. § 1 et seq.
(a) The prohibitions in Code Section 10-5A-2 shall not apply to the following:
(1) An account, agreement, or transaction within the exclusive jurisdiction of the Commodity Futures Trading Commission as granted under the Commodity Exchange Act; 1
(2) A commodity contract or the purchase of one or more precious metals which requires, and under which the purchaser receives within seven calendar days from the date of payment in good funds of any portion of the purchase price, physical delivery of the quantity of the precious metals purchased by such payment, provided that, for purposes of this paragraph, physical delivery shall be deemed to have occurred if, within such seven-day period, such quantity of precious metals purchased by such payment is delivered (whether in specifically segregated or fungible bulk form) into the possession of a depository (other than the seller) which is either (A) a financial institution, (B) a depository the warehouse receipts of which are recognized for delivery purposes for any commodity on a contract market designated by the Commodity Futures Trading Commission, (C) a storage facility licensed or regulated by the United States or any agency thereof, or (D) a depository designated by the Commissioner, and such depository (or other person which itself qualifies as a depository) issues and the purchaser receives a certificate, document of title, confirmation, or other instrument evidencing that such quantity of precious metals has been delivered to the depository and is being and will continue to be held by the depository on the purchaser's behalf, free and clear of all liens and encumbrances, other than liens of the purchaser, tax liens, liens agreed to by the purchaser, or liens of the depository for fees and expenses, which have previously been disclosed to the purchaser;
(3) A commodity contract solely between persons engaged in producing, processing, using commercially, or handling as merchants each commodity subject thereto or any by-product thereof; or
(4) A commodity contract under which the offeree or the purchaser is a person referred to in Code Section 10-5A-3, an insurance company, or an investment company as defined in the Investment Company Act of 1940. 2
(b) The Commissioner may issue rules, regulations, or orders prescribing the terms and conditions of all transactions and contracts covered by the provisions of this chapter which are not within the exclusive jurisdiction of the Commodity Futures Trading Commission as granted by the Commodity Exchange Act, exempting any person or transaction from any provision of this chapter conditionally or unconditionally, and otherwise implementing the provisions of this chapter for the protection of purchasers and sellers of commodities.
1 7 U.S.C.A. § 1 et seq.
2 15 U.S.C.A. § 80a-1 et seq.
(a) No person shall engage in a trade or business or otherwise act as a commodity merchant unless such person:
(1) Is registered or temporarily licensed with the Commodity Futures Trading Commission for each activity constituting such person as a commodity merchant and such registration or temporary license shall not have expired or been suspended or revoked; or
(2) Is exempt from such registration by virtue of the Commodity Exchange Act 1 or of a Commodity Futures Trading Commission rule.
(b) No board of trade shall trade or provide a place for the trading of any commodity contract or commodity option required to be traded on or subject to the rules of a contract market designated by the Commodity Futures Trading Commission unless such board of trade has been so designated for such commodity contract or commodity option and such designation shall not have been vacated, suspended, or revoked.
1 7 U.S.C.A. § 1 et seq.
No person shall directly or indirectly:
(1) Cheat or defraud, or attempt to cheat or defraud, any other person or employ any device, scheme, or artifice to defraud any other person;
(2) Willfully make any false report, enter any false record, or make any untrue statement of a material fact or fail to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading;
(3) Engage in any transaction, act, practice, or course of business, including, without limitation, any form of advertising or solicitation, which operates or would operate as a fraud or deceit upon any person; or
(4) Willfully misappropriate or convert the funds, security, or property of any other person in connection with the solicitation of a purchase or sale of, the offer to sell, the offer to purchase, the offer to enter into, or the entry into of any commodity contract or commodity option subject to the provisions of Code Section 10-5A-2, Code Section 10-5A-3, or paragraph (2) or (4) of subsection (a) of Code Section 10-5A-4.
(a) The act, omission, or failure of any official, agent, or other person acting for any individual, association, partnership, corporation, or trust within the scope of his employment or office shall be deemed the act, omission, or failure of such individual, association, partnership, corporation, or trust, as well as of such official, agent, or other person.
(b) Every person who directly or indirectly controls another person liable under any provision of this chapter, every partner, officer, or director of such other person, every person occupying a similar status or performing similar functions, and every employee of such other person who materially aids in the violation is also liable jointly and severally with and to the same extent as such other person, unless the person who is also liable by virtue of this subsection sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.
Nothing in this chapter shall impair, derogate, or otherwise affect the authority or powers of the Commissioner under Chapter 5 of this title, known as the “Georgia Uniform Securities Act of 2008,” or the application of any provision of such chapter to any person or transaction subject to such chapter.
This chapter may be construed and implemented to effectuate its general purpose to protect investors, to prevent and prosecute illegal and fraudulent schemes involving commodity contracts, and to maximize coordination with federal laws and the laws of other states and the administration and enforcement thereof. This chapter is not intended to create any rights or remedies upon which actions may be brought by private persons against persons who violate the provisions of this chapter.
(a) The Commissioner at his discretion:
(1) May make such public or private investigations within or outside of this state as he deems necessary to determine whether any person has violated or is about to violate this chapter or any rule, regulation, or order under this chapter or to aid in the enforcement of this chapter or in the prescribing of rules and regulations under this chapter;
(2) May require or permit any person to file a statement in writing, under oath or otherwise as the Commissioner determines, as to all the facts and circumstances concerning the matter to be investigated; and
(3) May publish in print or electronically information concerning any violation of this chapter or any rule, regulation, or order under this chapter.
(b)(1) For the purpose of conducting any investigation as provided in this Code section, the Commissioner shall have the power to administer oaths, to call any party to testify under oath at such investigations, to require the attendance of witnesses, to require the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes the Commissioner is authorized to issue a subpoena for any witness or a subpoena for the production of documentary evidence. Such subpoenas may be served by registered or certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address or by investigators appointed by the Commissioner or shall be directed for service to the sheriff of the county where such witness resides or is found or where the person in custody of any books, records, or papers resides or is found. The fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the Commissioner in the same manner that other expenses of the Commissioner are paid.
(2) The Commissioner may issue and apply to enforce subpoenas in this state at the request of a securities agency or commissioner of another state if the activities constituting an alleged violation for which the information is sought would be a violation of this chapter if the activities had occurred in this state.
(c) In case of refusal to obey a subpoena issued under any Code section of this chapter to any person, a superior court of appropriate jurisdiction, upon application by the Commissioner, may issue to the person any order requiring him to appear before the court to show cause why he should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished by the court as contempt of court.
(d) In the case of any investigation conducted under this Code section, the Commissioner may hold hearings or he may appoint an investigative agent to conduct the hearings who shall have the same powers and authority in conducting the hearings as are granted to the Commissioner in this Code section. The agent shall possess such qualifications as the Commissioner may require. A transcript of the testimony and evidence and objections resulting from such hearings shall be taken unless waived in writing by all parties present at the hearings. Copies of the transcript shall be available to all parties present at the hearing upon payment of the reasonable expense of reproducing the transcript. All recommendations of the investigative agent shall be advisory only and shall not have the effect of an order of the Commissioner.
(e) In any case where a hearing is conducted by an investigative agent, he shall submit to the Commissioner a written report, including the transcript of the testimony in evidence if requested by the Commissioner, the findings of the hearing, and a recommendation of the action to be taken by the Commissioner. The recommendation of the agent shall be approved, modified, or disapproved by the Commissioner. The Commissioner may direct an investigative agent to take additional testimony or permit introduction of further documentary evidence.
(f) In addition to any other hearings and investigations which the Commissioner is authorized or required to hold by this chapter, the Commissioner is also authorized to hold general investigative hearings on his own motion with respect to any matter under this chapter. A general investigative hearing as provided for in this subsection may be conducted by any person designated by the Commissioner for that purpose and may, but need not, be transcribed by the Commissioner or by any other interested party. No formal action may be taken as a result of such investigative hearing; but the Commissioner may take such action as he deems appropriate, based on the information developed in the hearing and on any other information which he may have.
(g) The Commissioner may disclose information obtained in connection with an investigation under this Code section to the extent provided in this Code section and if disclosure is for the purpose of a civil, administrative, or criminal investigation or proceeding by a securities agency or law enforcement agency and the receiving agency represents that, under the applicable law, protections exist to preserve the integrity, confidentiality, and security of the information.
(a) If the Commissioner believes, whether or not based upon an investigation conducted under Code Section 10-5A-20, that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order issued under this chapter, the Commissioner may:
(1) Issue a cease and desist order;
(2) Issue an order imposing a civil penalty in an amount which may not exceed $10,000.00 for any single violation or $100,000.00 for multiple violations in a single proceeding or a series of related proceedings; or
(3) Initiate any of the actions specified in subsection (b) of this Code section.
(b) The Commissioner may institute any of the following actions in the appropriate courts of this state or in the appropriate courts of another state, in addition to any legal or equitable remedies otherwise available:
(1) A declaratory judgment;
(2) An action for a prohibitory or mandatory injunction to enjoin the violation of and to ensure compliance with this chapter or any rule or order of the Commissioner;
(3) An action for disgorgement; or
(4) An action for appointment of a receiver or conservator for the defendant or the defendant's assets.
(a)(1) Upon a proper showing by the Commissioner that a person has violated, or is about to violate, any provision of this chapter or any rule or order of the Commissioner, a superior court of appropriate jurisdiction may grant appropriate legal or equitable remedies.
(2) Upon a showing of a violation of this chapter or a rule or order of the Commissioner, the court, in addition to traditional legal and equitable remedies, including temporary restraining orders, permanent or temporary prohibitory or mandatory injunctions, and writs of prohibition or mandamus, may grant the following special remedies:
(A) Imposition of a civil penalty in an amount which may not exceed $10,000.00 for any single violation or $100,000.00 for multiple violations in a single proceeding or a series of related proceedings;
(B) Disgorgement;
(C) Declaratory judgment;
(D) Restitution to investors wishing restitution; and
(E) Appointment of a receiver or conservator for the defendant or the defendant's assets.
(3) Appropriate remedies when the defendant is shown only about to violate this chapter or a rule or order of the Commissioner shall be limited to:
(A) A temporary restraining order;
(B) A temporary or permanent injunction;
(C) A writ of prohibition or mandamus; or
(D) An order appointing a receiver or conservator for the defendant or the defendant's assets.
(b) The court shall not require the Commissioner to post a bond in any official action under this chapter.
(c)(1) Upon a proper showing by the commissioner or securities or commodity agency of another state that a person other than a government or governmental agency or instrumentality has violated, or is about to violate, any provision of the commodity act of that state or any rule or order of the commissioner or securities or commodity agency of that state, a superior court of appropriate jurisdiction may grant appropriate legal and equitable remedies.
(2) Upon a showing of a violation of the securities or commodity act of a foreign state or a rule or order of the commissioner or securities or commodity agency of the foreign state, the court, in addition to traditional legal or equitable remedies including temporary restraining orders, permanent or temporary prohibitory or mandatory injunctions, and writs of prohibition or mandamus, may grant the following special remedies:
(A) Disgorgement; and
(B) Appointment of a receiver, conservator, or ancillary receiver or conservator for the defendant or the defendant's assets located in this state.
(3) Appropriate remedies when the defendant is shown only about to violate the securities or commodity act of the foreign state or a rule or order of the commissioner or securities or commodity agency of the foreign state shall be limited to:
(A) A temporary restraining order;
(B) A temporary or permanent injunction;
(C) A writ of prohibition or mandamus; or
(D) An order appointing a receiver, conservator, or ancillary receiver or conservator for the defendant or the defendant's assets located in this state.
For the purposes of venue for any civil or criminal action under this chapter, any violation of this chapter or of any rule, regulation, or order promulgated under this chapter shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated this chapter, in the county of any violator's principal place of business in this state, in the county of the issuer's principal place of business in this state, and in any county in which any violator had control or possession of any proceeds of the violation or of any books, records, documents, or other material or objects which were used in furtherance of the violation.
(a) This chapter shall be administered by the office of the Secretary of State who is designated Commissioner of Securities.
(b) The Commissioner shall have authority to employ examiners, clerks, stenographers, and other employees as the administration of that portion of this chapter vested in him may require. The Commissioner shall also have authority to appoint and employ investigators who shall have, in any case that there is reason to believe a violation of this chapter has occurred or is about to occur, the right and power to serve subpoenas and to swear out and execute search warrants and arrest warrants.
(c) The Commissioner and any persons employed by him shall be paid, in addition to their regular compensation, the transportation, board, lodging, and other travel expenses necessary and actually incurred by each of them in the performance of their duties under this chapter.
(d) The Commissioner shall appoint, with the approval of the Governor, a person as assistant commissioner and delegate such of his powers and duties under this chapter to such assistant commissioner as he desires.
(e) Neither the Commissioner nor any employees of the Commissioner shall use any information which is filed with or obtained by the Commissioner which is not public information for personal gain or benefit, nor shall the Commissioner or any employees of the Commissioner conduct any securities or commodity dealings whatsoever based upon any such information, even though public, if there has not been a sufficient period of time for the securities or commodity markets to assimilate such information.
(f)(1) Except as provided in paragraph (2) of this subsection, all information collected, assembled, or maintained by the Commissioner is public information and is available for examination by the public.
(2) The following are exceptions to paragraph (1) of this subsection and are deemed to be confidential:
(A) Information obtained in private investigations pursuant to Code Section 10-5A-20;
(B) Information designated as confidential by any rule, regulation, or order of the Commissioner; and
(C) Information obtained from federal agencies which may not be disclosed under federal law.
(3) The Commissioner in his discretion may disclose any information made confidential under subparagraph (A) of paragraph (2) of this subsection to persons identified in subsection (a) of Code Section 10-5A-25.
(4) No provision of this chapter either creates or derogates any privilege which exists at common law, by statute, or otherwise when any documentary or other evidence is sought under a subpoena directed to the Commissioner or any employee of the Commissioner.
(a) To encourage uniform application and interpretation of this chapter and securities regulation and enforcement in general, the Commissioner and the employees of the Commissioner may cooperate, including bearing the expense of the cooperation, with the securities agencies or administrator of another jurisdiction, Canadian province or territory, or such other agencies administering laws similar to this chapter, the Commodity Futures Trading Commission, the Securities and Exchange Commission, any self-regulatory organization established under the Commodity Exchange Act 1 or the Securities Exchange Act of 1934, 2 any national or international organization of commodities or securities officials or agencies, and any governmental law enforcement agency.
(b) The cooperation authorized by subsection (a) of this Code section shall include, but need not be limited to, the following:
(1) Making joint examinations or investigations;
(2) Holding joint administrative hearings;
(3) Filing and prosecuting joint litigation;
(4) Sharing and exchanging personnel;
(5) Sharing and exchanging information and documents;
(6) Formulating and adopting mutual regulations, statements of policy, guidelines, proposed statutory changes, and releases; and
(7) Issuing and enforcing subpoenas at the request of the agency administering laws similar to this chapter in another jurisdiction, the securities agency of another jurisdiction, the Commodity Futures Trading Commission, or the Securities and Exchange Commission if the information sought would also be subject to lawful subpoena for conduct occurring in this state.
1 7 U.S.C.A. § 1 et seq.
2 15 U.S.C.A. § 78a et seq.
The Commissioner shall have the power to make such rules and regulations from time to time as he may deem necessary and proper for the enforcement of this chapter. Such rules and regulations shall be adopted, promulgated, and contested as provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(a) Code Sections 10-5A-2, 10-5A-5, and 10-5A-6 apply to persons who offer to sell or solicit a purchase when:
(1) An offer to sell or solicitation of a purchase is made in this state; or
(2) An offer to sell or solicitation of a purchase is made and accepted in this state.
(b) Code Sections 10-5A-2, 10-5A-5, and 10-5A-6 apply to persons who offer to buy or solicit a sale when:
(1) An offer to buy or solicitation of a sale is made in this state; or
(2) An offer to buy or solicitation of a sale is made and accepted in this state.
(c) For the purpose of this Code section, an offer to sell or to buy or a solicitation of a purchase or sale is made in this state, whether or not either party is then present in this state, when the offer or solicitation:
(1) Originates from this state; or
(2) Is directed by the offeror or solicitor to this state and received at the place to which it is directed or at any post office in this state in the case of a mailed offer or solicitation.
(d) For the purpose of this Code section, an offer to buy or to sell or solicitation of a sale or purchase is accepted in this state when acceptance:
(1) Is communicated to the offeror or solicitor in this state; and
(2) Has not previously been communicated to the offeror or solicitor, orally or in writing, outside this state; and acceptance is communicated to the offeror in this state, whether or not either party is then present in this state, when the offeree directs it to the offeror or solicitor in this state, reasonably believing the offeror or solicitor to be in this state and it is received at the place to which it is directed or at any post office in this state in the case of a mailed acceptance.
(e) An offer to sell or to buy or solicitation of a purchase or sale is not made in this state when:
(1) The publisher circulates or there is circulated on his behalf in this state any bona fide newspaper or other publication of general, regular, and paid circulation which is not published in this state, or which is published in this state but has had more than two-thirds of its circulation outside this state during the past 12 months; or
(2) A radio or television program originating outside this state is received in this state.
(a) The Commissioner shall commence an administrative proceeding under this chapter by entering either a notice of intent to do a contemplated act or a summary order. The notice of intent or summary order may be entered without notice, without opportunity for hearing, and need not be supported by findings of fact or conclusions of law, but must be in writing.
(b) Upon entry of a notice of intent or summary order, the Commissioner shall promptly notify all interested parties that the notice or summary order has been entered and the reasons therefor. If the proceeding is pursuant to a notice of intent, the Commissioner shall inform all interested parties of the date, time, and place set for the hearing on the notice. If the proceeding is pursuant to a summary order, the Commissioner shall inform all interested parties that they have 30 business days from the entry of the order to file a written request for a hearing on the matter with the Commissioner and that the hearing will be scheduled to commence within 30 business days after the receipt of the written request.
(c) If the proceeding is pursuant to a summary order, the Commissioner, whether or not a written request for a hearing is received from any interested party, may set the matter down for hearing on the Commissioner's own motion.
(d) If no hearing is requested and none is ordered by the Commissioner, the summary order will automatically become a final order after 30 business days.
(e) If a hearing is requested or ordered, the Commissioner, after notice of, and opportunity for, hearing to all interested persons, may modify or vacate the order or extend it until final determination.
(f) No final order or order after hearing may be returned without:
(1) Appropriate notice to all interested persons;
(2) Opportunity for hearing by all interested persons; and
(3) Entry of written findings of fact and conclusions of law.
Every hearing in an administrative proceeding under this chapter shall be public unless the Commissioner grants a request joined in by all the respondents that the hearing be conducted privately.
(a) Any person aggrieved by a final order of the Commissioner may obtain a review of the order in a superior court of appropriate jurisdiction by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. A copy of the petition for review shall be served upon the Commissioner.
(b) Upon the filing of a petition for review, except where the taking of additional evidence is ordered by the court pursuant to subsection (e) or (f) of this Code section, the court shall have exclusive jurisdiction of the matter, and the Commissioner may not modify or set aside the order, in whole or in part.
(c) The filing of a petition for review under subsection (a) of this Code section does not, unless specifically ordered by the court, operate as a stay of the Commissioner's order, and the Commissioner may enforce or ask the court to enforce the order pending the outcome of the review proceedings.
(d) Upon receipt of the petition for review, the Commissioner shall certify and file in the court a copy of the order and the transcript or record of the evidence upon which it was based. If the order became final by operation of law under subsection (d) of Code Section 10-5A-28, the Commissioner shall certify and file in court the summary order and evidence of its service upon the parties to it and an affidavit certifying that no hearing has been held and that the order became final pursuant to subsection (d) of Code Section 10-5A-28.
(e) If either the aggrieved party or the Commissioner applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that there were reasonable grounds for failure to adduce the evidence in the hearing before the Commissioner or other good cause, the court may order the additional evidence to be taken by the Commissioner under such conditions as the court considers proper.
(f) If new evidence is ordered taken by the court, the Commissioner may modify the findings and order by reason of the additional evidence and shall file in the court the additional evidence together with any modified or new findings or order.
(g) The court shall review the petition based upon the original record before the Commissioner as amended under subsections (e) and (f) of this Code section. The findings of the Commissioner as to the facts, if supported by competent, material, and substantive evidence, are conclusive. Based upon this review, the court may affirm, modify, enforce, or set aside the order, in whole or in part.
It shall not be necessary to prove the negative as to any of the exemptions of this chapter in any complaint, information, indictment, writ, or proceeding brought under this chapter; and the burden of proof of any such exemption shall be upon the party claiming the same.
(a) Any person who willfully violates any provision of this chapter shall be guilty of a felony and, upon conviction, shall be fined not more than $50,000.00 or imprisoned for not more than ten years, or both, for each violation.
(b) The Commissioner may refer such evidence as is available concerning violations of this chapter or any rule or order of the Commissioner to the Attorney General or the proper district attorney, who may, with or without such a reference from the Commissioner, institute the appropriate criminal proceedings under this chapter.
(a) The General Assembly finds that a problem is posed in this state by the increasing use of the telephone in a fraudulent or abusive manner as a means of solicitation in certain currently regulated commercial businesses and professions and that the power and reach of the telephone as a medium for such conduct increases the risk to the legitimate economy of the state.
(b) The General Assembly declares that the intent of this chapter is to impose sanctions against the fraudulent use of the telephone in certain currently regulated commercial businesses and professions. This chapter shall be construed to further that intent.
(a) As used in this chapter, the term:
(1) “Charitable contribution” means the promise or grant of any money or property of any kind or value to be used for any charitable purpose, as that term is defined in Code Section 43-17-2.
(2) “Control,” “controlling,” “controlled by,” or “under common control with” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
(3) “Executive officer” means the chief executive officer, the president, the principal financial officer, the principal operating officer, each vice president with responsibility involving policy-making functions for a significant aspect of a person's business, the secretary, the treasurer, or any other person performing similar functions with respect to any organization, whether incorporated or unincorporated.
(4) “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust, or any unincorporated organization.
(5) “Secretary of State” means the Secretary of State of the State of Georgia.
(6) “Telephone soliciting business” means a sole proprietorship, partnership, limited liability company, corporation, or other association of individuals engaged in a common effort to solicit sales regulated under this chapter.
(7) “Telephone solicitor” or “solicitor” means a person, partnership, limited liability company, corporation, or other entity that makes or places telephone calls for the purpose of selling or solicitation of sales as defined in paragraph (8) of this subsection over the telephone, whether the call originates in the State of Georgia or is received in the State of Georgia.
(8) “Telephonic sale,” “sell telephonically,” “telephonic selling,” “telephonic offer for sale,” or “telephonic solicitation of sale,” and “telemarketing” means a sale or solicitation of goods or services, a sale or offer to sell a security as defined in paragraph (31) of Code Section 10-5-2, or a solicitation of a charitable contribution, in which:
(A) The seller solicits the sale or charitable sale or contribution over the telephone;
(B) The purchaser's agreement to purchase or contribute is made over the telephone; and
(C) In the case of a sale of goods or services only, the purchaser, over the telephone, pays for or agrees to commit to payment for goods or services prior to or upon receipt by the purchaser of the goods and services.
(b) The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to the interpretation of this chapter.
(a) The Secretary of State shall be authorized to promulgate rules to prohibit deceptive or fraudulent telemarketing activities and other abusive telemarketing activities by persons subject to the provisions of Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008”; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the “Georgia Charitable Solicitations Act of 1988.”
(b) Any rules promulgated by the Secretary of State pursuant to subsection (a) of this Code section may include but not be limited to:
(1) A definition of deceptive telemarketing activities;
(2) A list of criteria that are symptomatic of deceptive telemarketing as distinguished from ordinary telemarketing business practices;
(3) A requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer's right to privacy;
(4) A requirement that goods or services offered by telemarketing be shipped or provided within a specified period and that, if the goods or services are not shipped or provided within such period, a refund shall be required; and
(5) Authority for a person who orders any goods or services through telemarketing to cancel the order within a specified period.
(c) No rules promulgated pursuant to this Code section shall in any way limit the scope or application of Part 2 of Article 15 of Chapter 1 of this title, the “Fair Business Practices Act of 1975.”
(a) It shall be unlawful for any person who is jurisdictionally subject to the provisions of Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008”; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the “Georgia Charitable Solicitations Act of 1988,” and who makes any telephonic offer to sell or telephonic sale in this state:
(1) To fail to promptly state clearly the name of the business on whose behalf the call is being made before any sales solicitation can begin and provide a telephone number or address at which the business can be contacted and shall not by electronics block their name and phone number from being identified by caller ID;
(2) To violate any rule, regulation, or order promulgated or issued by the Secretary of State under this chapter;
(3) In connection with a telephonic sale, selling telephonically, or telephonic solicitation of sale in or from this state, to employ a device, scheme, or artifice to defraud;
(4) In connection with a telephonic sale, selling telephonically, or telephonic solicitation of sale in or from this state, to engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon a person;
(5) Knowingly to cause to be made, in any document filed with the Secretary of State or in any proceeding under this chapter, any statement which is, at the time it is made and in light of the circumstances under which it is made, false or misleading in any material respect; or
(6) In connection with a telephonic solicitation of a monetary charitable contribution, to use the services of any person as a courier or otherwise to obtain personally receipt or possession of a monetary contribution from a residence.
(b) Every person who directly or indirectly controls a person culpable under subsection (a) of this Code section, every general partner, executive officer, or director of such person culpable under subsection (a) of this Code section, every person occupying a similar status or performing similar functions, and every telephone soliciting business or telephone solicitor who participates in any material way in the sale or solicitation of sale is culpable to the same extent as the person whose culpability arises under subsection (a) of this Code section unless the person whose culpability arises under this subsection sustains the burden of proof that he or she did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which culpability is alleged to exist.
(a) With respect to any person who is jurisdictionally subject to the provisions of Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008,” the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 5 of this title were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 5 of this title who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 5 of this title in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 5 of this title were incorporated into and made a part of this chapter.
(b) With respect to any person who is jurisdictionally subject to the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options, the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 5A of this title were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 5A of this title who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 5A of this title in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 5A of this title were incorporated into and made a part of this chapter.
(c) With respect to any person who is jurisdictionally subject to the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors, the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 14 of Title 43 were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 14 of Title 43 who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 14 of Title 43 in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 14 of Title 43 were incorporated into and made a part of this chapter.
(d) With respect to any person who is jurisdictionally subject to the provisions of Chapter 17 of Title 43, known as the “Georgia Charitable Solicitations Act of 1988,” the Secretary of State shall prevent any person from violating a rule promulgated under Code Section 10-5B-3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of Chapter 17 of Title 43 were incorporated into and made a part of this chapter. Except as otherwise provided in this chapter, any person so jurisdictionally subject to the provisions of Chapter 17 of Title 43 who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in Chapter 17 of Title 43 in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of Chapter 17 of Title 43 were incorporated into and made a part of this chapter.
(a) Any person who shall willfully violate any provision of this chapter shall be guilty of a felony and, upon conviction thereof, shall be punished as described under subparagraph (a)(5)(A) of Code Section 16-8-12.
(b) Any person who suffers injury or damages as a result of a violation of this chapter may bring an action and may recover under Code Section 10-1-399, relating to private rights of action.
(c) Any person who intentionally targets an elder or disabled person, as defined in Article 31 of Chapter 1 of this title, in a violation of this chapter shall be subject to double the applicable civil and criminal penalties for such violation or offense.
(d) Nothing in this chapter shall limit any statutory or common-law right of the state to punish any person for violation of any law.
(a) The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law.
(b) Nothing in this chapter shall amend, alter, or repeal any of the provisions of Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008”; the provisions of Chapter 5A of this title, relating to commodities and commodity contracts and options; the provisions of Chapter 14 of Title 43, relating to electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors; or the provisions of Chapter 17 of Title 43, the “Georgia Charitable Solicitations Act of 1988.”
For purposes of this chapter, an offer to sell or to buy is made in this state, whether or not either party is then present in this state, when the offer:
(1) Originates from this state; or
(2) Is directed by the offeror to this state and received at the place to which it is directed.
The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.
Where the exercise or performance of an agency is by written instrument, the agency shall also be created by written instrument; provided, however, unless a contrary intent is expressly set forth therein, any written instrument creating an agency regardless of the formality of its execution shall conclusively be deemed to authorize the execution of instruments with the formalities necessary or appropriate to accomplish the purposes for which the agency was granted. A corporation may create an agent in its usual mode of transacting business and without its corporate seal. Any deed or other instrument executed under seal pursuant to an agency created by an act not under seal, if not otherwise required to be under seal for its validity, shall be binding upon the principal and valid as if an unsealed instrument.
Any person who is of sound mind may be appointed an agent; so a principal shall be bound by the acts of his infant agent.
(a) Personal representatives, guardians, conservators, and trustees are authorized to sell and convey property by attorneys in fact in all cases where they may lawfully sell and convey in person.
(b) When a personal representative, guardian, conservator, or trustee exercising the authority conferred by subsection (a) of this Code section appoints an attorney in fact by a power of attorney to which Chapter 6B of this title is applicable under Code Section 10-6B-81, the exercise of fiduciary powers by such attorney in fact under such power of attorney shall be subject to Code Section 10-6B-40.
Whatever one may do himself may be done by an agent, except such personal trusts in which special confidence is placed on the skill, discretion, or judgment of the person called in to act; so an agent may not delegate his authority to another unless specially empowered to do so.
(a) As used in this Code section, the term “conditional power of attorney” means a written power of attorney stating that it becomes effective at a specified future time or on the occurrence of a specified event or contingency, including, but not limited to, the subsequent incapacity of the principal.
(b) In a conditional power of attorney, the principal may designate one or more persons who, by a written declaration under penalty of false swearing, have the power to determine conclusively that the specified event or contingency has occurred. The principal may designate the attorney in fact or another person to perform this function, either alone or jointly with other persons.
(c) A power of attorney containing the designation described in subsection (b) of this Code section becomes effective when the person or persons designated in the power of attorney execute a written declaration under penalty of false swearing that the specified event or contingency has occurred; and any person may act in reliance on the written declaration without liability to the principal or to any other person, regardless of whether the specified event or contingency has actually occurred.
(d) This Code section shall apply to a power of attorney whether executed before, on, or after July 1, 1993, if the power of attorney contains the designation described in subsection (b) of this Code section.
(e) Subsections (b) and (c) of this Code section do not provide the exclusive method by which a power of attorney may be limited to take effect upon the occurrence of a specified event or contingency.
This chapter shall not apply to powers of attorney to which Chapter 6B of this title is applicable.
No rights shall arise to either party out of an agency created for an illegal purpose.
The agent shall act within the authority granted to him, reasonably interpreted; if he shall exceed or violate his instructions, he does it at his own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate. In cases where the power is coupled with an interest in the agent, unreasonable instructions, detrimental to the agent's interest, may be disregarded.
An agent for hire shall be bound to exercise, about the business of his principal, that ordinary care, skill, and diligence required of a bailee for hire. A voluntary agent, without hire or reward, shall be liable only for gross neglect.
Where several persons shall appoint an agent to do an act for their joint benefit, the instructions of one, not inconsistent with the general directions, shall protect the agent in his act.
Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell may not himself be the purchaser; and an agent to buy may not himself be the seller.
The agent shall not make a personal profit from his principal's property; for all such he is bound to account.
An agent may not dispute his principal's title, except in such cases where legal proceedings, at the instance of others, shall have been commenced against him.
A principal may follow his money deposited by an agent in the latter's name and recover the same wherever found, unless the rights of innocent third persons shall have intervened.
If the money of a principal shall be deposited by a private agent in the name of the principal in the hands of a bank of good credit and the deposit is according to the common usage of the place, the agent shall not be responsible for any loss arising from the failure of the bank.
An agent, by willfully mingling his own goods with those of his principal, shall not create a tenancy in common; but, if incapable of separation, the whole shall belong to the principal.
It shall be the duty of agents, trustees, administrators, guardians, conservators, receivers, and all other fiduciaries to keep their accounts in a regular manner and to be always ready with them supported by proper vouchers; neglect of this duty shall be ground for charging them with interest on balances on hand and with costs.
An agent who shall have discharged his duty shall be entitled to his commission and all necessary expenses incurred about the business of his principal. If he shall have violated his engagement, he shall be entitled to no commission.
The fact that property is placed in the hands of a broker to sell shall not prevent the owner from selling, unless otherwise agreed. The broker's commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.
Generally, an agency is revocable at the will of the principal. The appointment of a new agent for the performance of the same act or the death of either principal or agent revokes the power. If, however, the power is coupled with an interest in the agent himself, it is not revocable at will. In all cases the agent may recover from the principal, for an unreasonable revocation, any damages he may have suffered by reason thereof.
Every creditor or other person advancing money upon the pledge of a certificate of stock or other scrip representing an ownership or interest in corporations in Georgia shall have such an irrevocable interest in such certificate of stock or other scrip as not to be affected by the death, insanity, or legal disability thereafter of the person in whose name such stock or other scrip stands upon the books of any corporation in Georgia; but such pledgee or holder of such stock or scrip assigned in blank, coupled with the power of attorney, shall have the same right after the death, insanity, or legal disability of the person in whose name the stock stands upon the books of the corporation as before the death, insanity, or legal disability of such person.
(a) No agency created by a power of attorney in writing given by a principal who is at the time of execution or who, after executing the power of attorney, becomes either:
(1) A member of the armed forces of the United States; or
(2) A person serving as a merchant seaman outside the limits of the United States; or
(3) A person outside the limits of the United States by permission, assignment, or direction of any department or official of the United States government in connection with any activity pertaining to or connected with the prosecution of any war in which the United States is then engaged
shall be revoked or terminated by the death of the principal as to the agent or other person who, without actual knowledge or actual notice of the death of the principal, shall have acted or shall act, in good faith, under or in reliance upon such power of attorney or agency; and any action so taken, unless otherwise invalid or unenforceable, shall be binding on the heirs, devisees, legatees, or personal representatives of the principal, provided that it shall be made to appear by proof that the person or persons, firm, or corporation receiving any property by reason of the exercise of the power shall have paid value for the property and the attorney in fact or agent shall make bond for title to purchaser of the property without notice of the death of the principal.
(b) An affidavit, executed by the attorney in fact or agent setting forth that he has not or had not, at the time of doing any act pursuant to the power of attorney, received actual knowledge or actual notice of the revocation or termination of the power of attorney, by death or otherwise, or notice of any facts indicating the same, shall, in the absence of fraud, be conclusive proof of the nonrevocation or nontermination of the power at such time. If the exercise of the power requires execution and delivery of any instrument which is recordable under the laws of this state, such affidavit, when authenticated for record in the manner prescribed by law, shall likewise be recordable.
(c) No report or listing, either official or otherwise, of “missing” or “missing in action,” as such words are used in military parlance, shall constitute or be interpreted as constituting actual knowledge or actual notice of the death of such principal or notice of any facts indicating the same or shall operate to revoke the agency.
(d) This Code section shall not be construed so as to alter or affect any provisions for revocation or termination contained in such power of attorney.
(e) This Code section shall apply to such powers of attorney executed prior to March 9, 1945.
(f) This Code section shall not apply to any last will and testament of the principal unless the power of disposal is in compliance with the last will of the principal.
A written power of attorney, unless expressly providing otherwise, shall not be terminated by the incompetency or incapacity of the principal. The power to act as an attorney in fact for a principal who subsequently becomes incompetent or incapacitated shall remain in force until such time as a conservator or receiver shall be appointed for the principal or until some other judicial proceeding shall terminate the power.
When the contract is for a year, and the principal wrongfully discharges the agent before the end of the year, the agent may either sue immediately for any special injury from the breach of the contract, or, treating the contract as rescinded, may sue for the value of the services rendered, or he may wait until the expiration of the year and sue for and recover his entire wages.
When an agent has been improperly dismissed before the expiration of his time, earnings which were realized or might have been realized by him up to the end of the term shall go in mitigation of damages.
Except as otherwise expressly provided, the principal shall not be liable to one agent for injuries arising from the negligence or misconduct of other agents about the same business.
The agent's authority shall be construed to include all necessary and usual means for effectually executing it. Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In special agencies for a particular purpose, persons dealing with the agent should examine his authority.
The principal shall be bound by all the acts of his agent within the scope of his authority; if the agent shall exceed his authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.
A ratification by the principal shall relate back to the act ratified and shall take effect as if originally authorized. A ratification may be express or implied from the acts or silence of the principal. A ratification once made may not be revoked.
The form in which the agent acts is immaterial; if the principal's name is disclosed and the agent professes to act for him, it will be held to be the act of the principal.
If an agent shall fail to disclose his principal, when discovered, the person dealing with the agent may go directly upon the principal under the contract, unless the principal shall have previously accounted and settled with the agent.
If the credit shall be given to the agent by the choice of the seller, he may not afterward demand payment of the principal.
The principal shall be bound by all representations made by his agent in the business of his agency and also by his willful concealment of material facts, although they are unknown to the principal and known only by the agent.
Where money is due on a written evidence of debt, payment to an agent of the creditor who fails to produce the obligation shall be at the risk of the debtor. Nonproduction of the security shall rebut the implication of authority arising from the agent's employment, and it must be otherwise established.
Notice to the agent of any matter connected with his agency shall be notice to the principal.
Where an agent shall conspire with the other party, his principal shall not be bound thereby nor charged with knowledge of facts thus acquired by his agent.
The principal shall be bound for the care, diligence, and fidelity of his agent in his business, and hence he shall be bound for the neglect and fraud of his agent in the transaction of such business.
The principal shall not be liable for the willful trespass of his agent unless done by his command or assented to by him.
The principal shall have advantage of his agent's contracts in the same manner as he shall be bound by them, so far as they come within the scope of his agency. If, however, the agency shall have been concealed, the party dealing with him may set up any defense against the principal which he has against the agent.
The principal may recover back money paid illegally or by mistake of his agent or goods wrongfully transferred by the agent, the party receiving the goods having notice of the agent's want of authority or willful misconduct.
Any act authorized or required to be done under this Code by any person in the prosecution of his legal remedies may be done by his agent; and for this purpose he is authorized to make an affidavit and execute any bond required, though his agency shall be created by parol. In all such cases, if the principal shall repudiate the act of the agent, the agent, together with his sureties, shall be personally bound.
If money shall be paid to an agent by mistake and he in good faith shall pay it over to his principal, he shall not thereafter be personally liable therefor. In all other cases he shall be liable for its repayment. If money shall be paid by an agent by mistake, he may recover it in his own name.
Generally, an agent shall have no right of action on contracts made for his principal. The following are exceptions:
(1) A factor contracting on his own credit;
(2) Where promissory notes or other evidences of debt are made payable to an agent of a corporation;
(3) In all cases where the contract is made with the agent in his individual name, though his agency be known;
(4) Auctioneers may sue in their own names for goods sold by them;
(5) In cases of agency coupled with an interest in the agent, known to the party contracting with him.
In all these cases, payment to the principal before notice of the agent's claim is a good defense.
An agent having possession, actual or constructive, of the property of his principal shall have a right of action for any interference with that possession by third persons.
When the agent shall exceed his authority so that the principal is not bound, the agent may not enforce the contract in his own name against the person with whom he deals unless the contract shall have been fully executed upon the part of the agent or the credit was originally given to the agent.
All agents, by an express undertaking to that effect, may render themselves individually liable. Every agent exceeding the scope of his authority shall be individually liable to the person with whom he deals; so, also, for his own tortious act, whether acting by command of his principal or not, he shall be responsible; for the negligence of his underservant, employed by him in behalf of his principal, he shall not be responsible.
An instrument signed by one as agent, trustee, conservator, guardian, administrator, executor, or the like, without more, shall be the individual undertaking of the maker, except as otherwise provided by Code Sections 11-3-402, 13-5-30, 29-2-21, 29-3-21, 29-4-22, 29-5-22, 53-8-14, and 53-12-308, such words being generally words of description.
Where the agency is known and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case.
Public agents contracting in behalf of the public shall not be individually liable on such contracts.
The contract of any person or corporation who purports as agent of a nonexisting principal to bind such nonexisting principal only shall be void. Any other party to such contract who is misled thereby to his injury shall have a right of action for damages against such purported agent individually.
Any person, corporation, partnership, association, or any other entity which engages in the business of receiving cash from patrons as payment of obligations owed by such patrons to third parties, with the understanding that such person, corporation, partnership, association, or other entity will act as agent of the patron in making payment directly to the third party must, as a condition to engaging in such a business, post a bond as security in the amount of $50,000.00 with the clerk of the superior court in the county in which its principal place of business is located; provided, however, that no such bonding requirement need be met by any person, corporation, partnership, association, or other entity who or which handles or administers fewer than 20 payments per month; provided, further, that no such bonding requirement need be met by any person, corporation, partnership, association, or other entity who or which has received written authorization from a third party to act as agent for the third party. Written authorization to the agent from one or more third parties does not relieve the agent from posting the security bond as required by this Code section if the agent is receiving 20 or more cash payments owed to one or more other third parties from whom no written authorization has been received.
Failure of any such agent to pay over moneys in accordance with lawful instructions or agreement shall entitle the third party to whom payment should have been made to restitution of moneys entrusted and not so paid over from such posted bond to the extent of the amount thereof; provided, however, that no payment on bond made in accordance with this article shall relieve any agent of any civil liability to the patron for sums misappropriated or not properly paid over or of any criminal liability for fraud, theft, conversion, breach of fiduciary duty, or other offense.
Any person who fails to post a bond as required under this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $300.00 nor more than $3,000.00, or by imprisonment for not more than six months, or both.
In the absence of the employer, the overseer stands in his place. It shall be his duty to see to the sustenance and protection of his employer's property; and to discharge the duty, he shall be justified in repelling aggressors and trespassers to the same extent as the employer.
Contracts between employers and overseers may be by parol, though they may extend beyond a year from the time of the contract.
This chapter shall be known as and may be cited as the “Brokerage Relationships in Real Estate Transactions Act.”
(a) The General Assembly finds, determines, and declares that application of the common law of agency to the relationships between real estate brokers and persons who are sellers, buyers, landlords and tenants of rights and interests in real property has resulted in misunderstandings and consequences that have been contrary to the best interests of the public; the General Assembly further finds, determines, and declares that the real estate brokerage industry has a significant impact upon the economy of the State of Georgia and that it is in the best interests of the public to provide codification of the relationships between real estate brokers and consumers of brokerage services in order to prevent detrimental misunderstandings and misinterpretations of such relationships by both consumers and real estate brokers and thus promote and provide stability in the real estate market. The provisions of this chapter are enacted to govern the relationships between sellers, landlords, buyers, tenants, and real estate brokers and their affiliated licensees to the extent not governed by specific written agreements between and among the parties.
(b) The General Assembly further finds, determines, and declares that the provisions of this chapter are not intended to prescribe or affect the contractual relationships as between real estate brokers and the broker's affiliated licensees.
(c) The provisions of this chapter may serve as a basis for private rights of action and defenses by sellers, buyers, landlords, tenants, and real estate brokers.
As used in this chapter, the term:
(1) “Agency” means every relationship in which a real estate broker acts for or represents another as a client by the latter's written authority in a real property transaction.
(2) “Broker” means any individual or entity issued a broker's real estate license by the Georgia Real Estate Commission pursuant to Chapter 40 of Title 43. The term “broker” includes the broker's affiliated licensees except where the context would otherwise indicate.
(3) “Brokerage” means the business or occupation of a real estate broker.
(4) “Brokerage engagement” means a written contract wherein the seller, buyer, landlord, or tenant becomes the client of the broker and promises to pay the broker a valuable consideration or agrees that the broker may receive a valuable consideration from another in consideration of the broker producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or performing other brokerage services.
(5) “Brokerage relationship” means the agency and nonagency relationships which may be formed between the broker and the broker's clients and customers, as described in this chapter.
(6) “Client” means a person who is being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement.
(7) “Common source information companies” means any person, firm, or corporation that is a source, compiler, or supplier of information regarding real estate for sale or lease and other data and includes but is not limited to multiple listing services.
(8) “Customer” means a person who is not being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement but for whom a broker may perform ministerial acts in a real estate transaction pursuant to either a verbal or written agreement.
(9) “Designated agent” means one or more licensees affiliated with a broker who are assigned by the broker to represent solely one client to the exclusion of all other clients in the same transaction and to the exclusion of all other licensees affiliated with the broker.
(10) “Dual agent” means a broker who simultaneously has a client relationship with both seller and buyer or both landlord and tenant in the same real estate transaction.
(11) “Material facts” means those facts that a party does not know, could not reasonably discover, and would reasonably want to know.
(12) “Ministerial acts” means those acts described in Code Section 10-6A-14 and such other acts which do not require the exercise of the broker's or the broker's affiliated licensee's professional judgment or skill.
<Text of subsec. (12.1) effective January 1, 2024>
(12.1) “Option to enter into a brokerage engagement” means a written contract wherein a broker pays valuable consideration or agrees that a seller, buyer, landlord, or tenant may receive a valuable consideration from another in consideration of such seller, buyer, landlord, or tenant granting such broker an exclusive right to enter into a brokerage engagement with such seller, buyer, landlord, or tenant during the term of the written contract.
(13) “Timely” means a reasonable time under the particular circumstances.
(14) “Transaction broker” means a broker who has not entered into a client relationship with any of the parties to a particular real estate transaction and who performs only ministerial acts on behalf of one or more of the parties, but who is paid valuable consideration by one or more parties to the transaction pursuant to a verbal or written agreement for performing brokerage services.
(a) A broker who performs brokerage services for a client or customer shall owe the client or customer only the duties and obligations set forth in this chapter, unless the parties expressly agree otherwise in a writing signed by the parties. A broker shall not be deemed to have a fiduciary relationship with any party or fiduciary obligations to any party but shall only be responsible for exercising reasonable care in the discharge of its specified duties as provided in this chapter and, in the case of a client, as specified in the brokerage engagement.
(b) Whenever a broker with an existing brokerage relationship with either a customer or a client enters into a new brokerage relationship with the customer or client, the broker shall timely disclose that fact and the new brokerage relationship to all brokers, customers, or clients involved in the contemplated real estate transaction.
(a) A broker engaged by a seller shall:
(1) Perform the terms of the brokerage engagement made with the seller;
(2) Promote the interests of the seller by:
(A) Seeking a sale at the price and terms stated in the brokerage engagement or at a price and terms acceptable to the seller; provided, however, the broker shall not be obligated to seek additional offers to purchase the property while the property is subject to a contract of sale, unless the brokerage engagement so provides;
(B) Timely presenting all offers to and from the seller, even when the property is subject to a contract of sale;
(C) Disclosing to the seller material facts which the broker has actual knowledge concerning the transaction;
(D) Advising the seller to obtain expert advice as to material matters which are beyond the expertise of the broker; and
(E) Timely accounting for all money and property received in which the seller has or may have an interest;
(3) Exercise reasonable skill and care in performing the duties set forth in this subsection and such other duties, if any, as may be agreed to by the parties in the brokerage engagement;
(4) Comply with all requirements of this chapter and all applicable statutes and regulations, including but not limited to fair housing and civil rights statutes; and
(5) Keep confidential all information received by the broker during the course of the engagement which is made confidential by an express request or instruction from the seller unless the seller permits such disclosure by subsequent word or conduct, or such disclosure is required by law; provided, however, that disclosures between a broker and any of the broker's affiliated licensees assisting the broker in representing the seller shall not be deemed to breach the duty of confidentiality described above.
(b) A broker engaged by a seller shall timely disclose the following to all parties with whom the broker is working:
(1) All adverse material facts pertaining to the physical condition of the property and improvements located on such property including but not limited to material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer; and
(2) All material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the buyer upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. Examples of reasonably available governmental regulations, documents, records, maps, and statistics shall include without limitation: land use maps and plans; zoning ordinances; recorded plats and surveys; transportation maps and plans; maps of flood plains; tax maps; school district boundary maps; and maps showing the boundary lines of governmental jurisdictions. Nothing in this subsection shall be deemed to create any duty on the part of a broker to discover or seek to discover either adverse material facts pertaining to the physical condition of the property or existing adverse conditions in the immediate neighborhood. Brokers shall not knowingly give prospective buyers false information; provided, however, that a broker shall not be liable to a buyer for providing false information to the buyer if the broker did not have actual knowledge that the information was false and discloses to the buyer the source of the information. Nothing in this subsection shall limit any obligation of a seller under any applicable law to disclose to prospective buyers all adverse material facts actually known by the seller pertaining to the physical condition of the property nor shall it limit the obligation of prospective buyers to inspect and to familiarize themselves with potentially adverse conditions related to the physical condition of the property, any improvements located on the property, and the neighborhood in which the property is located. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
(c) A broker engaged by a seller in a real estate transaction may provide assistance to the buyer by performing ministerial acts of the type described in Code Section 10-6A-14; and performing such ministerial acts shall not be construed to violate the broker's brokerage engagement with the seller nor shall performing such ministerial acts for the buyer be construed to form a brokerage engagement with the buyer.
(d) A broker engaged by a seller does not breach any duty or obligation by showing alternative properties to prospective buyers.
(a) A broker engaged by a landlord shall:
(1) Perform the terms of the brokerage engagement made with the landlord;
(2) Promote the interests of the landlord by:
(A) Seeking a tenant at the price and terms stated in the brokerage engagement or at a price and terms acceptable to the landlord; provided, however, the broker shall not be obligated to seek additional offers to lease the property while the property is subject to a lease, or letter of intent to lease, unless the brokerage engagement so provides;
(B) Timely presenting all offers to and from the landlord, even when the property is subject to a lease or a letter of intent to lease;
(C) Disclosing to the landlord adverse material facts of which the broker has actual knowledge concerning the transaction;
(D) Advising the landlord to obtain expert advice as to material matters which are beyond the expertise of the broker; and
(E) Timely accounting for all money and property received in which the landlord has or may have an interest;
(3) Exercise ordinary skill and care in performing the duties set forth in this subsection and such other duties as may be agreed to by the parties in the brokerage agreement;
(4) Comply with all requirements of this chapter and all applicable statutes and regulations, including but not limited to fair housing and civil rights statutes; and
(5) Keep confidential all information received by the broker during the course of the engagement which is made confidential by an express request or instruction from the landlord unless the landlord permits such disclosure by subsequent word or conduct, or such disclosure is required by law; provided, however, that disclosures between a broker and any of the broker's affiliated licensees assisting the broker in representing the seller shall not be deemed to breach the duty of confidentiality described above.
(b) A broker engaged by a landlord shall timely disclose to prospective tenants with whom the broker is working:
(1) All adverse material facts pertaining to the physical condition of the property and improvements located on the property including, but not limited to, material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the tenant; and
(2) All material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the tenant upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. Examples of reasonably available governmental regulations, documents, records, maps, and statistics shall include without limitation: land use maps and plans; zoning ordinances; recorded plats and surveys; transportation maps and plans; maps of flood plains; tax maps; school district boundary maps; and maps showing the boundary lines of governmental jurisdictions. Nothing in this subsection shall be deemed to create any duty on the part of a broker to discover or seek to discover either adverse material facts pertaining to the physical condition of the property or existing adverse conditions in the immediate neighborhood. Brokers shall not knowingly give prospective tenants false information; provided, however, that a broker shall not be liable to a tenant for providing false information to the tenant if the broker did not have actual knowledge that the information was false and discloses to the tenant the source of the information. Nothing in this subsection shall limit any obligation of the landlord under any applicable law to disclose to prospective tenants all adverse material facts actually known by the landlord pertaining to the physical condition of the property nor shall it limit the obligation of prospective tenants to inspect and to familiarize themselves with potentially adverse conditions in the physical condition of the property, any improvements located on the property, and the surrounding neighborhood. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
(c) A broker engaged by a landlord in a real estate transaction may provide assistance to the tenant by performing such ministerial acts of the type described in Code Section 10-6A-14; and performing such ministerial acts shall not be construed to violate the broker's brokerage engagement with the landlord nor shall performing such ministerial acts for the tenant be construed to form a brokerage engagement with the tenant.
(d) A broker engaged by a landlord does not breach any duty or obligation by showing alternative properties to prospective tenants.
(a) A broker engaged by a buyer shall:
(1) Perform the terms of the brokerage engagement made with the buyer;
(2) Promote the interests of the buyer by:
(A) Seeking a property at a price and terms acceptable to the buyer; provided, however, the broker shall not be obligated to seek other properties for the buyer while the buyer is a party to a contract to purchase property, unless the brokerage engagement so provides;
(B) Timely presenting all offers to and from the buyer, even when the buyer is a party to a contract to purchase property;
(C) Disclosing to the buyer adverse material facts of which the broker has actual knowledge concerning the transaction;
(D) Advising the buyer to obtain expert advice as to material matters which are beyond the expertise of the broker; and
(E) Timely accounting for all money and property received in which the buyer has or may have an interest;
(3) Exercise ordinary skill and care in performing the duties set forth in this subsection and such other duties as may be agreed to by the parties;
(4) Comply with all requirements of this chapter and all applicable statutes and regulations, including but not limited to fair housing and civil rights statutes; and
(5) Keep confidential all information received by the broker during the course of the engagement which is made confidential by an express request or instruction from the buyer unless the buyer permits such disclosure by subsequent word or conduct, or such disclosure is required by law; provided, however, that disclosures between a broker and any of the broker's affiliated licensees assisting the broker in representing the buyer shall not be deemed to breach the duty of confidentiality described above.
(b) A broker engaged by a buyer shall timely disclose to a prospective seller with whom the broker is working as a customer and who is selling property which will be financed either by a loan assumption or by the seller's providing a part or all of the financing all material adverse facts actually known by the broker concerning the buyer's financial ability to perform the terms of the sale and, in the case of a residential transaction, the buyer's intent to occupy the property as a principal residence. Brokers shall not knowingly give prospective sellers false information; provided, however, that a broker shall not be liable to a seller for providing false information to the seller if the broker did not have actual knowledge that the information was false and discloses to the seller the source of the information. Nothing in this subsection shall limit the obligation of the prospective buyer under any applicable law to disclose to the prospective seller all adverse material facts actually known by the buyer concerning the buyer's financial ability to perform the terms of the sale and, in the case of a residential transaction, the buyer's intent to occupy the property as a principal residence. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
(c) A broker engaged by a buyer in a real estate transaction may provide assistance to the seller by performing ministerial acts of the type described in Code Section 10-6A-14; and performing such ministerial acts shall not be construed to violate the broker's brokerage engagement with the buyer nor shall performing such ministerial acts for the seller be construed to form a brokerage engagement with the seller.
(d) A broker engaged by a buyer does not breach any duty or obligation by showing properties in which the buyer is interested to other prospective buyers.
(a) A broker engaged by a tenant shall:
(1) Perform the terms of the brokerage engagement made with the tenant;
(2) Promote the interests of the tenant by:
(A) Seeking a property to lease at a price and terms acceptable to the tenant; provided, however, the broker shall not be obligated to seek other properties for the tenant while the tenant is a party to a lease or a letter of intent to lease unless the brokerage engagement so provides;
(B) Timely presenting all offers to and from the tenant, even when the tenant is a party to a lease or a letter of intent to lease;
(C) Disclosing to the tenant adverse material facts of which the broker has actual knowledge concerning the transaction;
(D) Advising the tenant to obtain expert advice as to material matters which are beyond the expertise of the broker; and
(E) Timely accounting for all money and property received in which the tenant has or may have an interest;
(3) Exercise ordinary skill and care in performing the duties set forth in this subsection and such other duties as may be agreed to by the parties;
(4) Comply with all requirements of this chapter and all applicable statutes and regulations, including but not limited to fair housing and civil rights statutes; and
(5) Keep confidential all information received by the broker during the course of the engagement which is made confidential by an express request or instruction from the tenant unless the tenant permits such disclosure by subsequent word or conduct, or such disclosure is required by law; provided, however, that disclosures between a broker and any of the broker's affiliated licensees assisting the broker in representing the seller shall not be deemed to breach the duty of confidentiality described above.
(b) A broker engaged by a tenant shall timely disclose to a prospective landlord with whom the broker is working all adverse material facts actually known by the broker concerning the tenant's financial ability to perform the terms of the lease or letter of intent to lease or intent to occupy the property. Brokers shall not knowingly give prospective landlords false information; provided, however, that a broker shall not be liable to a landlord for providing false information to the landlord if the broker did not have actual knowledge that the information was false and the broker discloses to the landlord the source of the information. Nothing in this subsection shall limit any obligation of the prospective tenant under any applicable law to disclose to a prospective landlord all adverse material facts actually known by the tenant concerning the tenant's financial ability to perform the terms of the lease or letter of intent to lease or intent to occupy the property. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
(c) A broker engaged by a tenant in a real estate transaction may provide assistance to the landlord by performing such ministerial acts of the type described in Code Section 10-6A-14; and performing such ministerial acts shall not be construed to violate the broker's brokerage engagement with the tenant nor shall performing such ministerial acts for the landlord be construed to form a brokerage engagement with the landlord.
(d) A broker engaged by a tenant does not breach any duty or obligation by showing properties in which the tenant is interested to other prospective tenants.
<Text of subsec. (a) effective until January 1, 2024>
(a) The relationships set forth in Code Sections 10-6A-4 through 10-6A-8 and Code Sections 10-6A-12 and 10-6A-13 shall commence at the time that the client engages the broker, and shall continue until:
(1) Completion of performance of the engagement; or
(2) If paragraph (1) of this subsection is not applicable, then the earlier of:
(A) Any date of expiration agreed upon by the parties in the brokerage engagement or in any amendments thereto;
(B) Any authorized termination of the relationship; or
(C) If no expiration is provided and no termination has occurred, then one year after initiation of the engagement.
<Text of subsec. (a) effective January 1, 2024>
(a) The relationships set forth in Code Sections 10-6A-4 through 10-6A-8, Code Section 10-6A-12, Code Section 10-6A-13, and an option to enter into a brokerage engagement shall commence at the time that the client engages the broker or executes an option to enter into a brokerage engagement, and shall continue until:
(1) Completion of performance of the engagement; or
(2) If paragraph (1) of this subsection is not applicable, then the earlier of:
(A) Any date of expiration agreed upon by the parties in the brokerage engagement, the option to enter into a brokerage engagement, or in any amendments thereto;
(B) Any authorized termination of the relationship; or
(C) If no expiration is provided and no authorized termination has occurred, then one year after initiation of the brokerage engagement or one year after the date the option to enter into a brokerage engagement was executed.
(b) Except as otherwise agreed in writing and as provided in subsection (a) of this Code section, a broker owes no further duties to the client after termination, withdrawal, expiration, or completion of performance of the engagement, except:
(1) To account for all moneys and property relating to the engagement; and
(2) To keep confidential all information received during the course of the engagement which was made confidential by request or instructions from the client, unless:
(A) The client permits the disclosure by subsequent word or conduct;
(B) Such disclosure is required by law; or
(C) The information becomes public from a source other than the broker.
(c) Notwithstanding any other provision to the contrary contained in this chapter, in the event a conflict arises between a broker's duty to keep the confidence of a client and the duty not to give customers false information, the broker's duty not to give false information to customers shall prevail and shall govern the broker's actions. No cause of action shall arise on behalf of any person against a broker or the broker's affiliated licensees for revealing information in compliance with this subsection.
<Text of section effective Jan. 1, 2024. See, also, text of section 10-6A-10 effective until Jan. 1, 2024.>
(a) All brokerage engagements must:
(1) Advise the prospective client of the types of agency relationships available through the broker;
(2) Advise such prospective client of any brokerage relationships held by such broker with other parties which would conflict with any interests of the prospective client actually known to the broker but excluding the fact that the broker may be representing other sellers and landlords in selling or leasing property or that the broker may be representing other buyers and tenants in buying or leasing other property;
(3) Advise such prospective client as to the broker's compensation and whether the broker will share such compensation with other brokers who may represent other parties to the transaction in an agency capacity; and
(4) Advise the prospective client of the broker's obligations to keep information confidential under this chapter.
(b) A brokerage engagement or an option to enter into a brokerage engagement shall not:
(1) Purport to be a covenant running with the land or to be binding on future owners of interests in the subject property, except for rights solely applicable to commercial real estate as set forth in Code Section 44-14-602;
(2) Allow for assignment of the right to provide service without notice and agreement of the owner of the subject property, except for such rights of assignment for commercial real estate as set forth in Code Section 44-14-602 or as part of the sale or merger of a brokerage firm; or
(3) Purport to create a recordable lien, encumbrance, or other real property security interest. Any such lien, encumbrance, or other real property security interest, if recorded, shall be void and unenforceable and no release or voiding of such lien, encumbrance, or other real property security interest shall be required; provided, however, that this subsection shall not be applicable to lien rights solely applicable to commercial real estate as set forth in Code Section 44-14-602.
(c) This Code section shall not apply to:
(1) A home warranty, building warranty, or other similar product that covers the cost of maintenance of a home's or other building's system or systems for a prescribed period of time from the date such home or building is sold;
(2) An insurance contract;
(3) An option to purchase, a put requirement to purchase, a right of first offer, or a right of refusal;
(4) A declaration created in the formation of a common interest community or an amendment thereto;
(5) A maintenance or repair agreement entered into by a homeowners' or property owners' association in a common interest community;
(6) A loan or a commitment to make or receive a loan secured by real estate;
(7) A security agreement under the Uniform Commercial Code relating to the sale or rental of personal property or fixtures;
(8) Water, sewer, electrical, telephone, cable, or other regulated utility service providers; or
(9) A property management agreement by which the owner of the real property shall contract with a party to provide management services for the maintenance, ownership, operation, or lease of real property, provided that the real estate that is the subject of the property management agreement is either for commercial real estate as defined by Code Section 44-14-601 or is for residential one- to four-family real estate that is otherwise not occupied by the owner or owner's family members as their principal place of residence and place of abode as of the date of inception of such property management agreement.
(d) This Code section shall not be construed to impair the rights granted by Code Sections 44-14-361, 44-14-361.1, 44-14-602, and 9-12-80.
(e) This Code section shall not be construed to create any statutory lien right or statutory right to create a cloud on title that is not otherwise created elsewhere in the Official Code of Georgia Annotated.
The payment or promise of payment of compensation to a broker by a seller, landlord, buyer, or tenant shall not determine whether a brokerage relationship has been created between any broker and a seller, landlord, buyer, or tenant.
(a) A broker may act as a dual agent only with the written consent of all clients. Such written consent shall contain the following:
(1) A description of the transactions or types of transactions in which the broker will serve as a dual agent;
(2) A statement that, in serving as a dual agent, the broker represents two clients whose interests are or at times could be different or even adverse;
(3) A statement that a dual agent will disclose all adverse material facts relevant to the transaction and actually known to the dual agent to all parties in the transaction except for information made confidential by request or instructions from another client which is not allowed to be disclosed by this Code section or required to be disclosed by this Code section;
(4) A statement that the broker or the broker's affiliated licensees will timely disclose to each client in a real estate transaction the nature of any material relationship the broker and the broker's affiliated licensees have with the other clients in the transaction other than that incidental to the transaction. For the purposes of this Code section, a material relationship shall mean any actually known personal, familial, or business relationship between the broker or the broker's affiliated licensees and a client which would impair the ability of the broker or affiliated licensees to exercise fair and independent judgment relative to another client;
(5) A statement that the client does not have to consent to the dual agency; and
(6) A statement that the consent of the client has been given voluntarily and that the engagement has been read and understood.
(b) Upon the client signing a written consent meeting the requirements of this Code section, the consent of the client to dual agency shall conclusively be deemed to have been given and informed.
(c) No cause of action shall arise on behalf of any person against a dual agent for making disclosures allowed or required by this chapter and the dual agent does not terminate any agency by making such allowed or required disclosures.
(d) In the case of dual agency, each client and broker and their respective licensees possess only actual knowledge and information. There shall be no imputation of knowledge or information among or between the clients, brokers, or their affiliated licensees.
(e) In any transaction, a broker may without liability withdraw from representing a client who has not consented to a disclosed dual agency at any time prior to the existence of the dual agency. Such withdrawal shall not prejudice the ability of the broker to continue to represent the other client in the transaction, nor limit the broker from representing the client in other transactions not involving a dual agency. When such withdrawal as contemplated in this subsection occurs, the broker may receive a referral fee for referring a client to a broker employed by a different real estate brokerage firm.
(f) Every broker shall develop and enforce an office brokerage relationship policy among affiliated licensees which either specifically permits or rejects the practice of disclosed dual agency, which office brokerage relationship policy shall be disclosed pursuant to Code Section 10-6A-10 and paragraph (1) of subsection (a) of this Code section.
(a) A broker may assign directly or through the adoption of a company policy different licensees affiliated with the broker as designated agents to exclusively represent different clients in the same transaction. In addition, the broker may delegate such assignment responsibility to other management level personnel acting under a company policy. Any company policy adopted to fulfill the requirements of this subsection shall contain provisions reasonably calculated to ensure each client is represented in accordance with the requirements of this chapter. A designated agent of a seller, landlord, buyer, or tenant shall owe his or her client the duties set forth in Code Section 10-6A-5, 10-6A-6, 10-6A-7, or 10-6A-8 of this chapter, respectively.
(b) If a broker appoints different designated agents in accordance with subsection (a) of this Code section, neither the broker, the broker's licensees, nor the real estate brokerage firm shall be deemed to be dual agents.
(c) When designated agents are appointed in accordance with subsection (a) of this Code section, the broker, the clients, and the designated agents shall be considered to possess only actual knowledge and information; there shall be no imputation of knowledge or information between and among the broker, the designated agents, and the clients. Designated agents shall not disclose, except to the designated agent's broker, information made confidential by request or instruction of the client whom the designated agent is representing, except information allowed to be disclosed by this Code section or required to be disclosed by this chapter. Unless required to be disclosed by law, the broker of a designated agent shall not reveal confidential information it receives from either the designated agent or the client with whom the designated agent is working. For the purposes of this Code section, confidential information shall be deemed to be any information the disclosure of which has not been consented to by the client that could harm the negotiating position of the client.
(d) The designation of one or more of a broker's affiliated licensees as designated agents shall not permit the disclosure by the broker or any of the broker's affiliated licensees of any information made confidential by an express request or instruction by a party prior to the creation of the designated agency. The broker and the broker's affiliated licensees shall continue to maintain such confidential information unless the party from whom the confidential information was obtained permits such disclosure by subsequent word or conduct, or such disclosure is required by law. No liability shall be created as a result of a broker and the broker's affiliated licensee's compliance with this subsection.
(a) A broker acting as a transaction broker may provide assistance to buyers, sellers, tenants, and landlords by performing ministerial acts. Examples of ministerial acts which can be performed by the transaction broker on behalf of any of the parties in a real estate transaction include without limitation the following:
(1) Identifying property for sale, lease, or exchange;
(2) Providing real estate statistics and information on property;
(3) Providing preprinted real estate form contracts, leases, and related exhibits and addenda;
(4) Acting as a scribe in the preparation of real estate form contracts, leases, and related exhibits and addenda;
(5) Locating architects, engineers, surveyors, inspectors, lenders, insurance agents, attorneys, and other professionals; and
(6) Identifying schools, shopping facilities, places of worship, and other similar facilities on behalf of any of the parties in a real estate transaction.
(b) A broker acting as a transaction broker shall do the following:
(1) Timely present all offers to and from the parties involving the sale, lease, and exchange of property;
(2) Timely account for all money and property received by the broker on behalf of a party in a real estate transaction; and
(3) Timely disclose the following to all buyers and tenants with whom the broker is working:
(A) All adverse material facts pertaining to the physical condition of the property and improvements located thereon including but not limited to material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer; and
(B) All material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the buyer upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. Examples of reasonably available governmental regulations, documents, records, maps, and statistics shall include without limitation: land use maps and plans; zoning ordinances; recorded plats and surveys; transportation maps and plans; maps of flood plains; crime statistics; tax maps; school district boundary maps; and maps showing the boundary lines of governmental jurisdictions.
(c) Transaction brokers shall not knowingly give any party in a real estate transaction false information; provided, however, that a broker shall not be liable to a party for providing false information to the party if broker did not have actual knowledge that the information was false and discloses to the party the source of the information. Nothing in this subsection shall limit any obligation of a seller under any applicable law to disclose to prospective buyers all adverse material facts actually known by the seller pertaining to the physical condition of the property nor shall it limit the obligation of prospective buyers to inspect and to familiarize themselves with potentially adverse conditions related to the physical condition of the property, any improvements located thereon, and the neighborhood in which the property is located. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
Except as may be provided in a written agreement between the parties, a broker shall not be deemed to have an agency relationship with a common source information company. No broker shall be deemed to be a subagent of any client of another broker solely by reason of membership or other affiliation by such brokers in a common source information company, including but not limited to multiple listing services.
Nothing contained in this chapter shall limit the Georgia Real Estate Commission in its regulation of brokers and the broker's affiliated licensees pursuant to Chapter 40 of Title 43 and the substantive rules and regulations adopted by the commission pursuant thereto.
This chapter shall be known and may be cited as the “Georgia Power of Attorney Act.”
As used in this chapter, the term:
(1) “Agent” means a person granted authority to act in the place of an individual, whether denominated by such term, attorney-in-fact, or otherwise. Such term shall include a coagent, successor agent, and a person to which authority is delegated.
(2) “Durable” means not terminated by the principal's incapacity.
(3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3.1) “Gift” means a transfer of property for less than adequate consideration in money or money's worth that is not a renunciation within the meaning of Code Section 53-1-20.
(4) “Good faith” means honesty in fact.
(5) “Incapacity” means inability of an individual to manage property or business affairs because the individual:
(A) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(B) Is:
(i) Missing;
(ii) Detained, including incarcerated in a penal system; or
(iii) Outside the United States and unable to return.
(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(7) “Power of attorney” means a writing or other record that grants authority to a person to act in the place of an individual, whether or not such term is used.
(8) “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. Such term shall include a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. Such term shall not include a power exercisable in a fiduciary capacity or only by will.
(9) “Principal” means an individual who grants authority to a person to act in the place of such individual.
(10) “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein and shall include digital assets and electronic communications, as such terms are defined in Code Section 53-13-2.
(11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(12) “Sign” means, with present intent to authenticate or adopt a record, to execute or adopt a tangible symbol.
(13) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(14) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. Such term shall not include commodity futures contracts and call or put options on stocks or stock indexes.
This chapter shall apply to all powers of attorney except:
(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;
(2) A power to make health care decisions, including but limited to, mental health care decisions;
(3) Any delegation of voting, management, or similar rights related to the governance or administration of an entity or business, including, but not limited to, delegation of voting or management rights;
(4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;
(5) A power created by a person other than an individual;
(6) A power that grants authority with respect to a single transaction or series of related transactions involving real estate;
(7) A power given to a transfer agent to facilitate a specific transfer or disposition of one or more identified stocks, bonds, or other financial instruments;
(8) A power authorizing a financial institution or broker-dealer, or an employee of the financial institution or broker-dealer, to act as agent for the account owner in executing trades or transfers of cash, securities, commodities, or other financial assets in the regular course of business;
(9) Powers of attorney provided for under Titles 19 and 33; and
(10) As set forth in Code Section 10-6B-81.
A power of attorney created under this chapter shall be durable unless it expressly provides that it is terminated by the incapacity of the principal.
(a) A power of attorney shall be:
(1) Signed by the principal or by another individual in such principal's presence at the principal's express direction;
(2) Attested in the presence of the principal by a competent witness who is not also named as an agent in the power of attorney being attested; and
(3) Attested as set forth in Code Section 44-2-15, in the presence of the principal, by an individual who is not a witness for purposes of paragraph (2) of this subsection and who is not also named as an agent in the power of attorney being attested.
(b) The individuals provided for in paragraphs (2) and (3) of subsection (a) of this Code section shall not be required to attest to the signature of any person other than the principal or the individual signing at the principal's express direction.
(a) A power of attorney executed in this state on or after July 1, 2017, shall be valid if its execution complies with Code Section 10-6B-5.
(b) A power of attorney executed other than in this state shall be valid in this state if, when the power of attorney was executed, the execution complied with:
(1) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to Code Section 10-6B-7; or
(2) The requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b, in effect on February 1, 2018.
(c) Except as otherwise provided by law other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney shall have the same effect as the original; provided, however, that when recording a power of attorney in connection with a conveyance involving real property, a power of attorney shall be in a form that complies with Part 1 of Article 1 of Chapter 2 of Title 44.
The meaning and effect of a power of attorney shall be determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.
(a) In a power of attorney, a principal may nominate a conservator of the principal's estate for consideration by the court if protective proceedings for the principal's estate are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal's most recent nomination.
(b) Unless expressly provided otherwise by the power of attorney or ordered otherwise by the court appointing the conservator, if, after a principal executes a power of attorney, a court appoints a conservator of the principal's estate or other fiduciary charged with the management of some or all of the principal's property, then the appointment of a conservator or other fiduciary shall terminate all or part of the power of attorney that relates to the matters within the scope of the conservatorship or management by another fiduciary. If such power of attorney does not wholly terminate, the agent shall be accountable to the conservator or other fiduciary as well as to the principal.
(c) If the court orders the power of attorney shall not terminate, the court may impose upon the power of attorney or agent such terms and conditions as it determines are in the best interest of the principal.
(d) A finding by a court that a principal is incapacitated for purposes of this chapter shall neither constitute a determination of nor create a presumption regarding such principal's need for a guardian or conservator under Title 29.
(a) A power of attorney shall be effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.
(b) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.
(c) If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney shall become effective upon a certification in a writing or other record by:
(1) A physician or licensed psychologist determining that the principal has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(2) An attorney at law, a judge, or an appropriate governmental official determining that the principal is missing, detained, including incarcerated in a penal system, or is outside the United States and unable to return.
(d) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320d, in effect on February 1, 2018, and applicable regulations in effect on February 1, 2018, to obtain access to the principal's health care information and communicate with the principal's health care provider.
(a) A power of attorney shall terminate when:
(1) The principal dies;
(2) The principal becomes incapacitated, if the power of attorney specifically provides that it is not durable;
(3) The principal revokes the power of attorney;
(4) The principal revokes the agent's authority or the agent resigns, becomes incapacitated, or dies and the power of attorney does not provide for another agent to act under such power of attorney;
(5) The power of attorney provides that it terminates; or
(6) The purpose of the power of attorney is accomplished.
(b) An agent's authority shall terminate when:
(1) The agent resigns, becomes incapacitated, or dies;
(2) The principal revokes the agent's authority;
(3) An action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or
(4) The power of attorney terminates.
(c) Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection (b) of this Code section, notwithstanding a lapse of time since the execution of the power of attorney.
(d) Termination of an agent's authority or of a power of attorney shall not be effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, shall bind the principal and the principal's successors in interest.
(e) Incapacity of the principal of a power of attorney that is not durable shall not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, shall bind the principal and the principal's successors in interest.
(f) The execution of a power of attorney shall not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney shall be revoked or that all other powers of attorney are revoked.
(g) Nothing in this Code section shall prevent a principal who notifies an agent of the revocation of the agent's authority or power of attorney by certified mail or statutory overnight delivery from filing such notification and evidence of its receipt by the agent with the clerk of superior court in the county of the principal's domicile for the purposes of establishing such agent had knowledge of the principal's revocation.
(a) A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, coagents shall exercise their authority independently.
(b)(1) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is no longer qualified to serve, has declined to serve, or dies. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent shall:
(A) Have the same authority as that granted to the original agent; and
(B) Not act until all predecessor agents have resigned, become incapacitated, are no longer qualified to serve, have declined to serve, or died.
(2) An agent who has been incapacitated for more than six months shall not resume acting as an agent pursuant to the power of attorney that created the agency during which the agent became incapacitated.
(c) Except as otherwise provided in the power of attorney and subsection (d) of this Code section, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, shall not be liable for the actions of the other agent.
(d) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent that fails to notify the principal or take action as required by this subsection shall be liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.
Unless the power of attorney otherwise provides, an agent shall not be entitled to compensation for services rendered. An agent shall be entitled to reasonable reimbursement of expenses incurred in performing the acts required by the principal under the power of attorney.
Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.
(a) Notwithstanding provisions in the power of attorney, an agent that has accepted:
(1) Appointment shall act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;
(2) Appointment shall act in good faith;
(3) Appointment shall act only within the scope of authority granted in the power of attorney; and
(4) Delegation of fiduciary powers under paragraph (7) of subsection (a) of Code Section 10-6B-40, shall have the same duties and liabilities as the principal with respect to such fiduciary powers.
(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:
(1) Act loyally for the principal's benefit;
(2) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;
(3) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
(4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(5) Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and
(6) Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving such plan is consistent with the principal's best interest based on all relevant factors, including:
(A) The value and nature of the principal's property;
(B) The principal's foreseeable obligations and need for maintenance;
(C) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
(D) Eligibility for a benefit, a program, or assistance under a law or regulation.
(c) An agent that acts in good faith shall not be liable to any beneficiary of the principal's estate plan for failure to preserve such plan.
(d) An agent that acts with care, competence, and diligence for the best interest of the principal shall not be liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise shall be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(f) Absent a breach of duty to the principal, an agent shall not be liable if the value of the principal's property declines.
(g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal shall not be liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.
(h) Except as otherwise provided in the power of attorney, an agent shall not be required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.
A provision in a power of attorney relieving an agent of liability for breach of duty shall be binding on the principal and the principal's successors in interest except to the extent the provision:
(1) Relieves the agent of liability for breach of duty committed in bad faith, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
(2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.
(a) The following persons may petition a court to construe a power of attorney or review the agent's conduct, and grant appropriate relief:
(1) The principal or the agent;
(2) A guardian, conservator, personal representative, or other fiduciary acting for the principal or for the principal's estate;
(3) A person authorized to make health care decisions for the principal;
(4) The principal's spouse, parent, or descendant;
(5) An individual who would qualify as a presumptive heir of the principal;
(6) A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate;
(7) A governmental agency having authority to protect the welfare of the principal;
(8) The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and
(9) A person asked to accept the power of attorney.
(b) If a petition under this Code section was in the best interest of the principal and the agent admitted to a violation of this chapter or a court found that such agent violated this chapter, a court may order the principal to reimburse the persons, other than a governmental agency, who made such petition for part or all of the reasonable attorney's fees and expenses of litigation incurred by such persons, provided that such fees and expenses were not imposed on the agent, were related to the agent's violation of this chapter, and were reasonable in the context of the agent's misconduct and the general circumstances of the principal.
(c) Upon motion by the principal, the court shall dismiss a petition filed under this Code section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.
An agent that violates this chapter shall be liable to the principal or the principal's successors in interest for the amount required to:
(1) Restore the value of the principal's property to what it would have been had the violation not occurred; and
(2) Reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid on the agent's behalf.
Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:
(1) To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or
(2) If there is no person described in paragraph (1) of this Code section, to:
(A) The principal's caregiver; or
(B) Another person reasonably believed by the agent to have sufficient interest in the principal's welfare.
(a) As used in this Code section, the term “attested power of attorney” means a power of attorney that was purportedly attested as set forth in Code Section 44-2-15.
(b) A person that in good faith accepts an attested power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under Code Section 10-6B-5 that the signature is genuine.
(c) A person that in good faith accepts an attested power of attorney without actual knowledge that such power of attorney is void, invalid, or terminated; that the purported agent's authority is void, invalid, or terminated; or that the agent is exceeding or improperly exercising the agent's authority may rely upon such power of attorney as if it were genuine, valid, and still in effect; the agent's authority were genuine, valid, and still in effect; and the agent had not exceeded and had properly exercised the authority.
(d) A person that is asked to accept an attested power of attorney may request, and rely upon, without further investigation:
(1) An agent's certification under penalty of perjury of any factual matter concerning the principal, agent, or such power of attorney;
(2) An English translation of such power of attorney if it contains, in whole or in part, language other than English; and
(3) An opinion of an attorney as to any matter of law concerning such power of attorney if the person making the request provides in a writing or other record the reason for the request.
(e) An English translation or an opinion of an attorney requested under this Code section shall be provided at the principal's expense unless the request is made more than seven business days after an attested power of attorney is presented for acceptance.
(f) For purposes of this Code section, a person that conducts activities through employees shall be without actual knowledge of a fact relating to an attested power of attorney, a principal, or an agent if the employee conducting the transaction involving such power of attorney is without actual knowledge of the fact.
(a) As used in this Code section, the term:
(1) “Attested statutory form power of attorney” means a statutory form power of attorney that was purportedly attested as set forth in Code Section 44-2-15.
(2) “Statutory form power of attorney” means a power of attorney:
(A) Substantially in the form set forth in Code Section 10-6B-70;
(B) That meets the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b, in effect on February 1, 2018; or
(C) That substantially reflects the language in the form set forth in Code Section 10-6B-70.
(b) For purposes of:
(1) Subparagraph (a)(2)(C) of this Code section, a power of attorney shall be deemed to substantially reflect the language in the form set forth in Code Section 10-6B-70 if it:
(A) Grants or withholds authority for each of the descriptive terms for the subjects described in Code Sections 10-6B-43 through 10-6B-56, either by reference to the descriptive terms or citation to the specific Code sections;
(B) Grants or withholds authority for each of the powers described in subsection (a) of Code Section 10-6B-40, either by reference to the powers or citation to such subsection; and
(C) Contains a provision substantially similar to the following: “Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person has actual knowledge it has terminated or is invalid.”; and
(2) Subparagraphs (1)(A) and (1)(B) of this subsection, a power of attorney shall be deemed to satisfy the requirement to grant authority with respect to a subject described in Code Sections 10-6B-43 through 10-6B-56 and a power described in subsection (a) of Code Section 10-6B-40, so long as it grants some authority with respect to such subject or power and regardless of whether it modifies the authority granted with respect to such subject or power under Code Sections 10-6B-43 through 10-6B-56 and subsection (a) of Code Section 10-6B-40.
(c) Except as otherwise provided in subsection (d) of this Code section:
(1) A person shall either accept an attested statutory form power of attorney or request a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 no later than seven business days after presentation of such power of attorney for acceptance;
(2) If a person requests a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19, the person shall accept the attested statutory form power of attorney no later than five business days after receipt of the certification, translation, or opinion of an attorney; and
(3) A person shall not require an additional or different form of the attested statutory form power of attorney for authority granted in the document presented.
(d) A person shall not be required to accept an attested statutory form power of attorney if:
(1) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(2) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;
(3) The person has actual knowledge of the termination of the agent's authority or of such power of attorney before exercise of such power of attorney;
(4) A request for a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 is refused;
(5) The person in good faith believes that such power of attorney is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 has been requested or provided; or
(6) The person makes, or has actual knowledge that another person has made, a report to protective services as such term is defined in Code Section 30-5-1 stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
(e) A person that refuses to accept an attested statutory form power of attorney in violation of this Code section shall be subject to:
(1) A court order mandating acceptance of such power of attorney; and
(2) Liability for reasonable attorney's fees and expenses of litigation incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of such power of attorney.
(f) For purposes of this Code section, a person that conducts activities through employees shall be without actual knowledge of a fact relating to an attested statutory form power of attorney, a principal, or an agent if the employee conducting the transaction involving such power of attorney is without actual knowledge of the fact.
Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.
(a) This chapter shall not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.
(b) This chapter shall not supersede the Bank Secrecy Act of 1970, 31 U.S.C. Section 5311, in effect on February 1, 2018, and the corresponding regulations thereto, in effect on February 1, 2018.
The remedies under this chapter shall not be exclusive and shall not abrogate any right or remedy under the laws of this state other than this chapter.
(a)(1) An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(A) Create, fund, amend, revoke, or terminate an inter vivos trust, other than a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) as provided under subsection (d) of Code Section 53-12-20;
(B) Make a gift;
(C) Create or change rights of survivorship;
(D) Create or change a beneficiary designation;
(E) Authorize another person to exercise authority granted under the power of attorney;
(F) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(G) Exercise fiduciary powers, other than those associated with an ownership interest as provided under paragraph (14) of Code Section 10-6B-48, that the principal has authority to delegate;
(H) Exercise authority over the content of electronic communications, as such term is defined in Code Section 53-13-2, sent or received by the principal; or
(I) Renounce an interest in property, including a power of appointment.
(2) A failure to grant authority under subparagraphs (1)(A) through (1)(D) of this subsection shall not prevent an agent from accessing information, depositing money, or withdrawing money, pursuant to the agent's other authority and in accordance with the agent's duties to the principal, from a revocable trust or an account or other banking arrangement with a bank or other financial institution.
(b) Notwithstanding a grant of authority:
(1) To do an act described in subsection (a) of this Code section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, shall not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise; and
(2) To exercise a fiduciary power described in subparagraph (a)(1)(G) of this Code section, an agent may only exercise those fiduciary powers of the principal that are expressly and clearly identified in the power of attorney. In identifying such fiduciary powers, the principal shall specify the persons for which the principal acts as a fiduciary. If such persons are not individuals, the principal shall specify only the estate, trust, or other legal or commercial entity for which the principal acts as a fiduciary. With respect to such an entity, the principal shall not be required to specify additional persons such as beneficiaries, members, partners, or other similar persons.
(c) Subject to subsections (a), (b), (d), and (e) of this Code section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Code Sections 10-6B-43 through 10-6B-55.
(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift shall be subject to Code Section 10-6B-56.
(e) Subject to subsections (a), (b), and (d) of this Code section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority shall control.
(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(g) An act performed by an agent pursuant to a power of attorney shall have the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.
(h) A power of attorney shall not authorize an agent to:
(1) Execute or revoke any will or codicil for the principal;
(2) Make an affidavit as to the personal knowledge of the principal; or
(3) Vote in any public election on behalf of the principal.
(i) An agent under a power of attorney that does not expressly grant the agent the authority to do an act described in paragraph (1) of subsection (a) of this Code section or Code Sections 10-6B-43 through 10-6B-55 may petition the court for authority to do such act that is reasonable under the circumstances.
(a) An agent shall have authority described in this article if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in Code Sections 10-6B-43 through 10-6B-56 or cites the Code section in which the authority is described.
(b) A reference in a power of attorney to general authority with respect to the descriptive term for a subject stated in Code Sections 10-6B-43 through 10-6B-56 or a citation to a specific Code section in Code Sections 10-6B-43 through 10-6B-56 shall incorporate the entire Code section as if it were set out in full in the power of attorney.
(c) A principal may modify authority incorporated by reference.
Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in Code Sections 10-6B-43 through 10-6B-56 or that grants to an agent authority to do all acts that a principal could do pursuant to subsection (c) of Code Section 10-6B-40, a principal shall authorize the agent, with respect to that subject, to:
(1) Demand, receive, and obtain by litigation or otherwise, money or any other thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;
(2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;
(3) Execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal's property and attaching it to the power of attorney;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
(5) Seek on the principal's behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
(6) Engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;
(7) Prepare, execute, and file a record, report, or other document to safeguard or promote the principal's interest under a law or regulation;
(8) Communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;
(9) Except as otherwise provided under federal privacy laws, access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means;
(10) Exercise all authority over digital assets for which an express grant by the principal is not required; and
(11) Do any lawful act with respect to the subject and all property related to the subject.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property shall authorize the agent to:
(1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
(3) Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;
(5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
(A) Insuring against liability or casualty or other loss;
(B) Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
(C) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with such taxes or assessments; and
(D) Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
(6) Use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
(7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
(A) Selling or otherwise disposing of them;
(B) Exercising or selling an option, right of conversion, or similar right with respect to them; and
(C) Exercising any voting rights in person or by proxy;
(8) Change the form of title of an interest in or right incident to real property; and
(9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property shall authorize the agent to:
(1) Demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or otherwise dispose of tangible personal property or an interest in tangible personal property;
(3) Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;
(5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
(A) Insuring against liability or casualty or other loss;
(B) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
(C) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with such taxes or assessments;
(D) Moving the property from place to place;
(E) Storing the property for hire or on a gratuitous bailment; and
(F) Using and making repairs, alterations, or improvements to the property; and
(6) Change the form of title of an interest in tangible personal property.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds shall authorize the agent to:
(1) Buy, sell, and exchange stocks and bonds;
(2) Establish, continue, modify, or terminate an account with respect to stocks and bonds;
(3) Pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;
(4) Receive certificates and other evidences of ownership with respect to stocks and bonds; and
(5) Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options shall authorize the agent to:
(1) Buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and
(2) Establish, continue, modify, and terminate option accounts.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions shall authorize the agent to:
(1) Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;
(2) Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;
(3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
(4) Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
(5) Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;
(6) Enter a safe deposit box or vault and withdraw or add to the contents;
(7) Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(8) Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal's order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;
(9) Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title, whether tangible or electronic, or other negotiable or nonnegotiable instrument;
(10) Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler's checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
(11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.
Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business shall authorize the agent to:
(1) Operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
(2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;
(3) Enforce the terms of an ownership agreement;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;
(5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;
(6) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;
(7) With respect to an entity or business owned solely by the principal:
(A) Continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
(B) Determine:
(i) The location of its operation;
(ii) The nature and extent of its business;
(iii) The methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;
(iv) The amount and types of insurance carried; and
(v) The mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;
(C) Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
(D) Demand and receive money due or claimed by the principal or on the principal's behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
(8) Put additional capital into an entity or business in which the principal has an interest;
(9) Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;
(10) Sell or liquidate all or part of an entity or business;
(11) Establish the value of an entity or business under a buy-out agreement to which the principal is a party;
(12) Prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments;
(13) Pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney; and
(14) Exercise the principal's fiduciary powers associated with an ownership interest.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities shall authorize the agent to:
(1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
(2) Procure new, different, and additional contracts of insurance and annuities for the principal and the principal's spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;
(3) Pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;
(4) Apply for and receive a loan secured by a contract of insurance or annuity;
(5) Surrender and receive the cash surrender value on a contract of insurance or annuity;
(6) Exercise an election;
(7) Exercise investment powers available under a contract of insurance or annuity;
(8) Change the manner of paying premiums on a contract of insurance or annuity;
(9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this Code section;
(10) Apply for and procure a benefit or assistance under a law or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
(11) Collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;
(12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and
(13) Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of such tax or assessment.
(a) As used in this Code section, the term “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests shall authorize the agent to:
(1) Accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;
(2) Demand or obtain money or any other thing of value to which the principal is, may become, or claims to be entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;
(3) Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;
(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;
(6) Conserve, invest, disburse, or use anything received for an authorized purpose;
(7) Create, amend, and revoke a revocable trust so long as the terms of the trust only authorize distributions that would be allowable under the power of attorney if the principal held the trust assets outright and provide for the distribution of all trust assets to the principal's estate upon the principal's death;
(8) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor or as described in paragraph (7) of this Code section; and
(9) With respect to a bona fide dispute, consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation shall authorize the agent to:
(1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or any other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;
(2) Bring an action to determine adverse claims or intervene or otherwise participate in litigation;
(3) Seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
(4) Make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination, and bind the principal in litigation;
(5) Submit to alternative dispute resolution, settle, and propose or accept a compromise;
(6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;
(7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or any other thing of value;
(8) Pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and
(9) Receive money or any other thing of value paid in settlement of or as proceeds of a claim or litigation.
(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance shall authorize the agent to:
(1) Perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse, and the following individuals, whether living when the power of attorney is executed or later born:
(A) The principal's minor children;
(B) The principal's adult children who are pursuing a postsecondary school education and are under 25 years of age;
(C) The principal's parents or the parents of the principal's spouse, if the principal had established a pattern of such payments or indicated a clear intent to make such payments;
(D) The principal's minor descendants who are not also the principal's children, if the principal had established a pattern of such payments or indicated a clear intent to make such payments;
(E) The principal's adult descendants who are under 25 years of age, not the principal's children, and pursuing a postsecondary school education, if the principal had established a pattern of such payments or indicated a clear intent to make such payments; and
(F) Any other individuals legally entitled to be supported by the principal;
(2) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
(3) Provide living quarters for the individuals described in paragraph (1) of this subsection by:
(A) Purchase, lease, or other contract; or
(B) Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;
(4) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for individuals described in paragraph (1) of this subsection to enable such individuals to maintain their customary standard of living;
(5) Pay expenses for necessary health care and custodial care on behalf of the individuals described in paragraph (1) of this subsection;
(6) Act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320d, in effect on February 1, 2018, and applicable regulations in effect on February 1, 2018, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the laws of this state to consent to health care on behalf of the principal;
(7) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in paragraph (1) of this subsection;
(8) Maintain credit and debit accounts for the convenience of the individuals described in paragraph (1) of this subsection and open new accounts; and
(9) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.
(b) Authority with respect to personal and family maintenance shall be neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.
(a) As used in this Code section, the term “benefits from governmental programs or civil or military service” means any benefit, program, or assistance provided under a law or regulation, including Social Security, medicare, and Medicaid.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service shall authorize the agent to:
(1) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or political subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in paragraph (1) of subsection (a) of Code Section 10-6B-52, and for shipment of their household effects;
(2) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for such purpose;
(3) Enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's behalf, a benefit or program;
(4) Prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which such principal may be entitled under a law or regulation;
(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a law or regulation; and
(6) Receive the financial proceeds of a claim described in paragraph (4) of this subsection and conserve, invest, disburse, or use for a lawful purpose anything so received.
(a) As used in this Code section, the term “retirement plan” means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which such principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:
(1) An individual retirement account under Internal Revenue Code Section 408, 26 U.S.C. Section 408, in effect on February 1, 2018;
(2) A Roth individual retirement account under Internal Revenue Code Section 408A, 26 U.S.C. Section 408A, in effect on February 1, 2018;
(3) A deemed individual retirement account under Internal Revenue Code Section 408(q), 26 U.S.C. Section 408(q), in effect on February 1, 2018;
(4) An annuity or mutual fund custodial account under Internal Revenue Code Section 403(b), 26 U.S.C. Section 403(b), in effect on February 1, 2018;
(5) A pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code Section 401(a), 26 U.S.C. Section 401(a), in effect on February 1, 2018;
(6) A plan under Internal Revenue Code Section 457(b), 26 U.S.C. Section 457(b), in effect on February 1, 2018; and
(7) A nonqualified deferred compensation plan under Internal Revenue Code Section 409A, 26 U.S.C. Section 409A, in effect on February 1, 2018.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans shall authorize the agent to:
(1) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
(2) Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;
(3) Establish a retirement plan in the principal's name;
(4) Make contributions to a retirement plan;
(5) Exercise investment powers available under a retirement plan; and
(6) Borrow from, sell assets to, or purchase assets from a retirement plan.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes shall authorize the agent to:
(1) Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code Section 2032A, 26 U.S.C. Section 2032A, in effect on February 1, 2018, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;
(2) Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
(3) Exercise any election available to the principal under federal, state, local, or foreign tax law; and
(4) Act for the principal in all tax matters for all periods before the Internal Revenue Service, or other taxing authority.
(a) As used in this Code section, the term:
(1) “For the benefit of” means a gift to a trust, an account under the Uniform Transfers to Minors Act, a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code Section 529, 26 U.S.C. Section 529, in effect on February 1, 2018, or an ABLE account as defined under Internal Revenue Code Section 529A, 26 U.S.C. Section 529A, in effect on February 1, 2018.
(2) “Gift splitting” means the election to have a gift treated as made one-half by the transferor and one-half by the spouse pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section 2513, in effect on February 1, 2018.
(3) “Section 2503(b) amount” means the federal gift tax exclusion under Internal Revenue Code Section 2503(b), 26 U.S.C. Section 2503(b), in effect on February 1, 2018, indexed for future years under the provisions in effect on February 1, 2018.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts shall authorize the agent only to:
(1) Make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in the following amounts, without regard to whether the federal gift tax exclusion applies to the gift;
(A) If the principal is not married or is legally separated at the time of the gift, in an amount per donee not to exceed the Section 2503(b) amount; or
(B) If the principal is married and not legally separated at the time of the gift, in an amount per donee not to exceed twice the Section 2503(b) amount; and
(2) Consent to gift splitting if the principal has a spouse for purposes of gift splitting.
(c) An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:
(1) The value and nature of the principal's property;
(2) The principal's foreseeable obligations and need for maintenance;
(3) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
(4) Eligibility for a benefit, a program, or assistance under a law or regulation; and
(5) The principal's personal history of making or joining in making gifts.
A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by this chapter.
“State of Georgia
County of ______________
STATUTORY FORM POWER OF ATTORNEY
IMPORTANT INFORMATION
This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in O.C.G.A. Chapter 6B of Title 10.
This power of attorney does not authorize the agent to make health care decisions for you.
You should select someone you trust to serve as your agent. Unless you specify otherwise in the Special Instructions, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.
Your agent is not entitled to any compensation unless you state otherwise in the Special Instructions. Your agent shall be entitled to reimbursement of reasonable expenses incurred in performing the acts required by you in your power of attorney.
This form provides for designation of one agent. If you wish to name more than one agent, you may name a successor agent or name a coagent in the Special Instructions. Coagents will not be required to act together unless you include that requirement in the Special Instructions.
If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.
This power of attorney shall be durable unless you state otherwise in the Special Instructions.
This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.
If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.
DESIGNATION OF AGENT
I ____________________________________________________ (Name of principal) name the following person as my agent:
Name of agent:
Agent's address:
Agent's telephone number:
Agent's e-mail address:
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name as my successor agent:
Name of successor agent:
Successor agent's address:
Successor agent's telephone number:
Successor agent's e-mail address:
If my successor agent is unable or unwilling to act for me, I name as my second successor agent:
Name of second successor agent:
Second successor agent's address:
Second successor agent's telephone number:
Second successor agent's e-mail address:
GRANT OF GENERAL AUTHORITY
I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in O.C.G.A. Chapter 6B of Title 10:
(INITIAL each subject you want to include in the agent's general authority. If you wish to grant general authority over all of the subjects, you may initial ‘all preceding subjects’ instead of initialing each subject.)
(___) Real property
(___) Tangible personal property
(___) Stocks and bonds
(___) Commodities and options
(___) Banks and other financial institutions
(___) Operation of entity or business
(___) Insurance and annuities
(___) Estates, trusts, and other beneficial interests
(___) Claims and litigation
(___) Personal and family maintenance
(___) Benefits from governmental programs or civil or military service
(___) Retirement plans
(___) Taxes
(___) All preceding subjects
GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
My agent SHALL NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:
(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent. You should give your agent specific instructions in the Special Instructions when you authorize your agent to make gifts.)
(___) Create, fund, amend, revoke, or terminate an inter vivos trust
(___) Make a gift, subject to the limitations of O.C.G.A. § 10-6B-56 and any Special Instructions in this power of attorney
(___) Create or change rights of survivorship
(___) Create or change a beneficiary designation
(___) Authorize another person to exercise the authority granted under this power of attorney
(___) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
(___) Exercise authority over the content of electronic communications sent or received by the principal
(___) Exercise fiduciary powers that the principal has authority to delegate and that are expressly and clearly identified (including the persons for which the principal acts as a fiduciary) in the Special Instructions
(___) Renounce an interest in property, including a power of appointment
LIMITATION ON AGENT'S AUTHORITY
An agent that is not my ancestor, spouse, or descendant SHALL NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.
SPECIAL INSTRUCTIONS (OPTIONAL)
You may give special instructions on the following lines (you may add lines or place your special instructions in a separate document and attach it to the power of attorney):
EFFECTIVE DATE
This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.
NOMINATION OF CONSERVATOR (OPTIONAL)
If it becomes necessary for a court to appoint a conservator of my estate, I nominate the following person(s) for appointment:
Name of nominee for conservator of my estate:
Nominee's address:
Nominee's telephone number:
Nominee's e-mail address:
RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person has actual knowledge it has terminated or is invalid.
SIGNATURE AND ACKNOWLEDGMENT
| _____________________________________________________________________________ | ______________________ | | --- | --- | | Your signature | Date | | | | | _____________________________________________________________________________ | | | Your name printed | | | | | | _____________________________________________________________________________ | | | _____________________________________________________________________________ | | | Your address | | | | | | _____________________________________________________________________________ | | | Your telephone number | | | | | | _____________________________________________________________________________ | | | Your e-mail address | | | | | | This document was signed in my presence on _______________________________________________________, | | | | (Date) |
by ____________________________________.
(Name of principal)
______________________________________.
(Witness's name printed)
Witness's telephone number
Witness's address
Witness's e-mail address
State of Georgia
County of ___________________________
| This document was signed in my presence on _______________________________________________________, | | | --- | --- | | | (Date) | | | | | by __________________________________________________________________________ | | | (Name of principal) | | | | | | _____________________________________________________________________________ | (Seal) | | Signature of notary | | | | | | My commission expires: _____________________________________________________ | | | | | | This document prepared by: ______________________________________________________________________. | |
IMPORTANT INFORMATION FOR AGENT
Agent's Duties
When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:
(1) Do what you know the principal reasonably expects you to do with the principal's property or, if you do not know the principal's expectations, act in the principal's best interest;
(2) Act in good faith;
(3) Do nothing beyond the authority granted in this power of attorney; and
(4) Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner:
| | | | | | | --- | --- | --- | --- | --- | | | | | | | | | (Principal's name) by (Your signature) as Agent. | | | |
Unless the Special Instructions in this power of attorney state otherwise, you must also:
(1) Act loyally for the principal's benefit;
(2) Avoid conflicts that would impair your ability to act in the principal's best interest;
(3) Act with care, competence, and diligence;
(4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(5) Cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal's expectations, to act in the principal's best interest; and
(6) Attempt to preserve the principal's estate plan if you know the plan and preserving the plan is consistent with the principal's best interest.
Termination of Agent's Authority
You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:
(1) Death of the principal;
(2) The principal's revocation of your authority or the power of attorney;
(3) The occurrence of a termination event stated in the power of attorney;
(4) The purpose of the power of attorney is fully accomplished; or
(5) If you are married to the principal, a legal action is filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.
Liability of Agent
The meaning of the authority granted to you is defined in O.C.G.A. Chapter 6B of Title 10. If you violate O.C.G.A. Chapter 6B of Title 10 or act outside the authority granted, you may be liable for any damages caused by your violation.
If there is anything about this document or your duties that you do not understand, you should seek legal advice. ”
The following optional form may be used by an agent to certify facts concerning a power of attorney.
“ AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT'S AUTHORITY
State of Georgia
County of ________________________
I, _________________________________________ (name of agent), certify under penalty of perjury that ______________________________________ (name of principal) granted me authority as an agent or successor agent in a power of attorney dated __________________________.
I further certify that to my knowledge:
(1) The principal is alive and has not revoked the power of attorney or my authority to act under the power of attorney and the power of attorney and my authority to act under the power of attorney have not terminated;
(2) If the power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;
(3) If I were named as a successor agent, the prior agent is no longer able or willing to serve; and
(4)
(Insert other relevant statements)
SIGNATURE AND ACKNOWLEDGMENT
| _____________________________________________________________________________ | ______________________ | | --- | --- | | Agent's signature | Date | | | | | _____________________________________________________________________________ | | | Agent's name printed | | | | | | _____________________________________________________________________________ | | | _____________________________________________________________________________ | | | Agent's address | | | | | | _____________________________________________________________________________ | | | Agent's telephone number | | | | | | _____________________________________________________________________________ | | | Agent's e-mail address | | | | | | This document was signed in my presence on _______________________________________________________, | | | | (Date) | | | | | by __________________________________________________________________________ | | | (Name of agent) | | | | | | _____________________________________________________________________________ | (Seal) | | Signature of notary | | | My commission expires: _____________________________________________________ | |
This document prepared by: _________________________________________________.”
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but shall not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
(a) Code Section 10-6B-19 shall apply retroactively to powers of attorney created before July 1, 2018. The remainder of this chapter shall not apply to a power of attorney executed before July 1, 2017.
(b) When Code Section 10-6B-3 applies to a power of attorney, Chapter 6 of this title shall not apply to such power of attorney.
(c) When, other than Code Section 10-6B-19, this chapter does not apply to a power of attorney:
(1) It shall not affect the application of Chapter 6 of this title; and
(2) The former provisions of Article 7 of Chapter 6 of this title, as such existed on June 30, 2017, shall remain applicable.
The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal, the principal in either instance remaining bound therefor. Sureties, including those formerly called guarantors, are jointly and severally liable with their principal unless the contract provides otherwise. There shall be no distinction between contracts of suretyship and guaranty.
The obligation of the surety is accessory to that of his principal; and, if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment. If, however, the original contract of the principal was invalid from a disability to contract and this disability was known to the surety, he shall still be bound.
The contract of suretyship is one of strict law; and the surety's liability will not be extended by implication or interpretation.
The form of the contract is immaterial, provided the fact of suretyship exists.
The creditor may release or compound with the surety without releasing the principal, but the release of or compounding with one surety shall discharge a cosurety.
Any change in the nature or terms of a contract is called a “novation”; such novation, without the consent of the surety, discharges him.
Any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk or exposes him to greater liability shall discharge him; a mere failure by the creditor to sue as soon as the law allows or neglect to prosecute with vigor his legal remedies, unless for a consideration, shall not release the surety.
The surety may tender to the creditor the amount of his debt and demand that the evidence of and the securities for the same be delivered up to him to be enforced against his principal or cosureties; and a failure of the creditor to comply, when within his power, shall operate to discharge the surety.
Any surety, guarantor, or endorser, at any time after the debt on which he or she is liable becomes due, may give notice in writing to the creditor, his or her agent, or any person having possession or control of the obligation, to proceed to collect the debt from the principal or any one of the several principals liable therefor; and, if the creditor or holder refuses or fails to commence an action for the space of three months after such notice (the principal being within the jurisdiction of this state), the endorser, guarantor, or surety giving the notice, as well as all subsequent endorsers and all cosureties, shall be discharged. To comply with the requirements of this Code section, the notice must specifically state that the creditor loses his or her rights to pursue the surety, guarantor, or endorser, as well as any cosureties, coguarantors, or endorsers, if the creditor does not commence legal action within three months after receiving the notice. Further, any notice which does not state the county in which the principal resides shall not be considered to be in compliance with the requirements of this Code section.
The creditor shall pursue his remedy against the surety within the time prescribed by law; and no payment or promise by the principal or by a cosurety shall extend the obligation of the surety or the remedy of the creditor against him.
If by an act of the creditor the surety is discharged and in ignorance of the fact of the discharge the surety promises to pay, the promise shall not be binding.
Code Sections 10-7-20 through 10-7-26 shall be superseded to the extent of any conflict by the provisions of Article 3 of Title 11, the “Uniform Commercial Code--Negotiable Instruments,” relating to the discharge of any party to a negotiable instrument.
When the fact of suretyship appears on the face of the contract, the creditor shall sue out process against the surety and enter up judgment against him as such.
It shall be lawful to enter judgment against principal and sureties at the same time, as in cases of appeal, in all cases in law or equitable proceedings when a bond has been given by the losing party conditioned to pay the eventual condemnation money in the action; and it shall not be necessary to bring an action upon the bond.
(a) For the purposes of this Code section, the term “obligee” shall include any obligee or beneficiary pursuant to the terms of the contract of suretyship.
(b) In the event of the refusal of a corporate surety to commence the remedy of a default covered by, to make payment to an obligee under, or otherwise to commence performance in accordance with the terms of a contract of suretyship within 60 days after receipt from the obligee of a notice of default or demand for payment, and upon a finding that such refusal was in bad faith, the surety shall be liable to pay such obligee, in addition to the loss, not more than 25 percent of the liability of the surety for the loss and all reasonable attorney's fees for the prosecution of the case against the surety. The amount of such reasonable attorney's fees shall be determined by the trial jury and shall be included in any judgment rendered in such action; provided, however, that such attorney's fees shall be fixed on the basis of competent expert evidence as to the reasonable value of such services, based on the time spent and legal and factual issues involved, in accordance with prevailing fees in the locality where the action is pending; provided, further, that the trial court shall have the discretion, if it finds such jury verdict fixing attorney's fees to be greatly excessive or inadequate, to review and amend such portion of the verdict fixing attorney's fees without the necessity of disapproving the entire verdict. The limitations contained in this Code section in reference to the amount of attorney's fees are not controlling as to the fees which may be agreed upon by the plaintiff and his attorney for the services of such attorney in the action against the surety.
(a) Where a payment bond or security deposit is provided pursuant to a contract for the construction of an improvement to property other than a public work, every person entitled to claim the protection of the payment bond or security deposit who has not been paid in full for labor or material furnished in the prosecution of the work referred to in such bond or security deposit after the last of the labor was done or performed by him or her or the material or equipment or machinery was furnished or supplied by him or her for which such claim is made, or when he or she has completed his or her subcontract for which such claim is made, shall have the right to bring an action on such payment bond or security deposit in accordance with the terms thereof for the amount, or the balance thereof, unpaid at the time of the commencement of such action and to prosecute such action to final execution and judgment for the sum or sums due him or her; provided, however, that any person having no contractual relationship express or implied with the contractor furnishing such payment bond or security deposit on a project where the contractor has complied with the Notice of Commencement requirements in accordance with subsection (b) of this Code section shall not have the right to bring an action on such payment bond or security deposit in accordance with the terms thereof unless such person gave to the contractor within 30 days from the filing of the Notice of Commencement or 30 days following the first delivery of labor, material, machinery, or equipment, whichever is later, a written Notice to Contractor setting forth:
(1) The name, address, and telephone number of the person providing labor, material, machinery, or equipment;
(2) The name and address of each person at whose instance the labor, material, machinery, or equipment are being furnished;
(3) The name and location of the project set forth in the Notice of Commencement; and
(4) A description of the labor, material, machinery, or equipment being provided and, if known, the contract price or anticipated value of the labor, material, machinery, or equipment to be provided or the amount claimed to be due, if any.
(b) Where a payment bond or security deposit is provided pursuant to a contract for the construction of an improvement to property other than a public work, the contractor furnishing the payment bond or security deposit shall post on the project site and file with the clerk of the superior court of the county in which the project is located a Notice of Commencement no later than 15 days after the contractor physically commences work on the project and give a copy of the Notice of Commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to give a copy of the Notice of Commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the notice to contractor requirement of subsection (a) of this Code section inapplicable to the subcontractor, materialman, or person making the request. The Notice of Commencement shall include:
(1) The name, address, and telephone number of the contractor;
(2) The name and location of the project being constructed and the legal description of the property upon which the improvements are being made;
(3) The name and address of the true owner of the property;
(4) The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property;
(5) The name and the address of the surety for the performance and payment bonds, if any;
(6) The name and address of the construction lender, if any; and
(7) The name and address of the holder of the security deposit provided, if any.
(c) The failure to file a Notice of Commencement under subsection (b) of this Code section shall render the Notice to Contractor requirements of subsection (a) of this Code section inapplicable.
(d) The clerk of the superior court shall file the Notice of Commencement provided for in this Code section within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices of lien specified in subsection (a) of Code Section 44-14-361.3. Each such Notice of Commencement shall be indexed under the name of the true owner and the contractor as contained in the Notice of Commencement.
A surety or endorser is entitled to the process of attachment against his principal before payment of the debt under the same circumstances as any other creditor.
Payment by a surety or endorser of a debt past due shall entitle him to proceed immediately against his principal for the sum paid, with interest thereon, and all legal costs to which he may have been subjected by the default of his principal.
If the payment was made after judgment and the principal had notice of the pendency of the action against the surety, the amount of such judgment shall be conclusive against the principal as to the amount for which the surety was bound. If the payment was not made after judgment, the principal may dispute the validity of the payment as to the amount or as to the authority of the person to whom it was paid.
If the contract was originally usurious and the surety in making payment includes the usury, he shall recover the same from the principal unless previous to the payment he had notice of the intention of the principal to resist usury.
If the principal executes any mortgage or gives other security to the surety or endorser to indemnify him against loss by reason of his suretyship, the surety or endorser may proceed to foreclose such mortgage or enforce such other lien or security as soon as judgment shall be rendered against him on his contract.
If the fact of suretyship does not appear on the face of the contract, it may be proved by parol, either before or after judgment (the creditor not being delayed in his remedy by such collateral issue between the principal and his surety), if before judgment the surety shall give notice to the principal of his intention to make such proof.
If judgment has been rendered without such proof of suretyship, the surety shall give at least ten days' notice to his principal of his intention to apply at the next term of the court where the judgment was entered to make such proof and to have the fact of his suretyship entered of record, together with an order for the control of such judgment and execution thereon against the principal, on payment of the same by him.
Any surety on the original contract, or on stay of execution, or on appeal, or in any other way, or the representative of a deceased surety, who shall have paid off or discharged the judgment or execution in whole or in part and shall have the fact of such payment by him entered on such execution by the plaintiff or his attorney or the collecting officer, shall have the control of such execution and the judgment upon which it is founded, to the same extent as if he were the original plaintiff therein, and be subrogated to all the rights of such plaintiff, for the purpose of reimbursing himself from his principal.
If the surety is sued separately from his principal, on payment by him of the judgment against him, he shall be entitled to control the judgment and execution against his principal in the same manner as if the judgment and execution were joint; and, if he does not appear as surety in the judgment against him, he may give notice and make the proof and obtain the control in the same manner as provided in cases of joint judgments.
If the surety pays off the debt pending the action against the principal and himself or against the principal alone, such payment shall operate only to cause the action to proceed for the benefit of such surety; and the judgment may be entered in the name of the original plaintiff for the use of such surety.
Where several are sureties for the same principal for the same sum of money, either by one or by distinct instruments, and one pays more than an equal share of the sum, he may compel contribution from his cosureties. If one of the cosureties is insolvent, the deficiency in his share must be borne equally by the solvent sureties.
The sum recovered as contribution shall bear interest from the time the original obligation was paid by the surety and shall be deemed and held a liquidated demand.
A surety suing for contribution must first account for all money or other things received from the principal to indemnify him against loss; and, if he has paid the entire debt, he may compel his cosurety to transfer to him any mortgage or other security taken from the principal for the protection of such cosurety, by relieving him of all liability for contribution.
Code Sections 10-7-40 through 10-7-49 shall apply to cases where there is more than one surety, so as to enable a surety discharging a joint debt, in whole or in part, either pending the action or after joint or several judgments, to control the same against his cosureties for the purpose of compelling them to contribute their respective shares of the amount so paid by him.
Every endorser who shall pay off and discharge the debt on which he is endorser, either pending the action or after judgment, whether the judgment against the principal and the endorsers is joint or several, shall be entitled to control the judgment and execution founded thereon against the principal and all prior endorsers, in the same manner, upon the same proof, and under the same circumstances as provided in this article in the case of sureties; and, if such endorser shall collect the same from a prior endorser, the latter shall have the same control of the judgment or judgments against the principal or any endorser prior to him.
When the surety does not appear to be such in the judgment and execution, the lien of such judgment, when controlled by the surety, shall not interfere with bona fide purchasers without notice from the principal, whose rights were vested before the order giving control to the surety was granted.
A surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all the rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid.
A surety who has paid the debt of his principal shall also be entitled to be substituted in place of the creditor as to all securities held by him for the payment of the debt.
This chapter shall be known and may be cited as the “Geo. L. Smith II Georgia World Congress Center Act.”
There is re-created the “Geo. L. Smith II Georgia World Congress Center Authority” as a body corporate and politic, which shall be an instrumentality of the State of Georgia and a public corporation.
As used in this chapter, the term:
(1) “Authority” means the Geo. L. Smith II Georgia World Congress Center Authority.
(2) “Cost” with respect to the terms “cost of the project” or “cost of the facilities” includes but is not limited to the following:
(A) All costs of the purchase, lease, or any other form of acquisition by agreement, eminent domain, or otherwise or improvement, construction, reconstruction, repair, or maintenance of the project or any facility or component of either;
(B) All costs of real or personal property required for the purposes of such project and of all facilities related thereto, including land and any rights or undivided interest therein, easements, franchises, water rights, fees, permits, approvals, licenses, and certificates and the security of such franchises, permits, approvals, licenses, and certificates and the preparation of any application therefor;
(C) All machinery, equipment, furnishings, and fixtures required for such project or facilities;
(D) Financing charges and interest prior to and during construction and during such additional period as the authority may reasonably determine to be necessary for the placing of such project or facilities in operation;
(E) Costs of engineering, architectural, and legal services;
(F) Fees paid to fiscal agents for financial and other advice or supervision;
(G) Cost of plans and specifications and all expenses necessary or incidental to the construction, purchase, or acquisition of the completed project or facilities or to determine the feasibility or practicability of the project or facilities;
(H) Fees paid pursuant to the “Georgia Allocation System” established by Article 8 of Chapter 82 of Title 36;
(I) Fees for letters of credit, bond insurance, debt service or debt service reserve insurance, surety bonds, or similar credit enhancement instruments;
(J) Costs of the payment or performance of any obligation of the authority with respect to any lease to or by the authority of or with respect to the project or any facilities or any component thereof;
(K) Administrative expenses and such other expenses as may be necessary or incidental to the financing authorized in this chapter;
(L) The repayment of any loans made for the advance payment of any part of such cost, including the interest thereon; and
(M) A fund or funds for the creation of a debt service reserve, a renewal and replacement reserve, and such other reserves as may be reasonably required by the authority with respect to the financing and operation of its projects or facilities and as may be authorized by any bond resolution or trust agreement or indenture pursuant to the provisions of which the issuance of any such bonds may be authorized.
Any obligation or expense incurred for any of the purposes set forth in subparagraphs (A) through (M) of this paragraph shall be regarded as part of the cost of the project and may be paid or reimbursed as such out of the proceeds of revenue bonds or notes issued under this chapter.
(3) “Project” means a comprehensive international trade and convention center consisting of a complex of facilities suitable for multipurpose use for housing trade shows, conventions, and cultural, political, musical, educational, entertainment, athletic, or other events; for displaying exhibits of Georgia's counties, municipalities, industries, and attractions; and for promoting the agricultural, historical, natural, and recreational resources of the State of Georgia, including all facilities necessary or convenient to such purposes, regardless of whether such facilities are contiguous, including, by way of illustration and not limitation, the following facilities: exhibit halls; auditoriums; theaters and amphitheaters; stadiums or coliseums and related athletic fields, courts or other surfaces, and clubhouses and gymnasiums; restaurants and other facilities for the purveying of foods, beverages, publications, souvenirs, novelties, and goods and services of all kinds, whether operated or purveyed directly or indirectly through concessionaires, licensees or lessees, or otherwise; parking facilities and parking areas in connection therewith; facilities deemed necessary or convenient within the structure of any facility, including any stadium or coliseum facility; meeting room facilities, including meeting rooms providing for simultaneous translation capabilities for several languages; museum facilities; facilities used for plazas, parks, pavilions, and pedestrian ways; related lands, buildings, structures, fixtures, equipment, and personalty appurtenant or convenient to the foregoing; and extension, addition, and improvement of such facilities. The project shall be located in the City of Atlanta and shall be known as the “Geo. L. Smith II Georgia World Congress Center,” except that any facility included within the project may be otherwise designated by the authority. As used in this chapter, the project described by the term “Geo. L. Smith II Georgia World Congress Center” shall include the same project formerly known as and referred to as the “Georgia World Congress Center” and the authority may be referred to as the “Georgia World Congress Center Authority.”
(a) Without limiting the generality of any provision of this chapter, the general purpose of the authority is declared to be that of acquiring, constructing, equipping, maintaining, and operating the project, in whole or in part, directly or under contract with the Department of Economic Development or others, and engaging in such other activities as it deems appropriate to promote trade shows, conventions, and political, musical, educational, entertainment, recreational, athletic, or other events and related tourism within the state so as to promote the use of the project and the use of the industrial, agricultural, educational, historical, cultural, recreational, commercial, and natural resources of the State of Georgia by those using the project or visiting the state or who may use the project or visit the state.
(b) The authority shall have the following powers:
(1) To bring actions, complain, and implead in any judicial, administrative, arbitration, or other action or proceeding and, to the extent permitted by law, to have actions brought against it, to be impleaded, and to defend in such proceedings;
(2) To have a seal and alter the same at its pleasure;
(3) To make and alter bylaws, rules, and regulations, not inconsistent with law, for the administration and regulation of its business and affairs;
(4) To elect, appoint, or hire officers, employees, and other agents of the authority, including experts and fiscal agents, define their duties, fix their compensation, and establish a flexible employee benefit plan for authority employees which may include those flexible employee benefits described in Code Section 45-18-52;
(5) To acquire, by purchase, gift, lease, or otherwise and to own, hold, improve, and use and to sell, convey, exchange, transfer, lease, sublease, and dispose of real and personal property of every kind and character, or any interest therein, for its corporate purposes;
(6) To make all contracts and to execute all instruments necessary or convenient to its purposes;
(7) To accept loans or grants of money or materials or property of any kind from the United States of America or any agency or instrumentality thereof; the State of Georgia, its departments, agencies, or authorities; or any county or municipality of this state, upon the terms and conditions as may be imposed thereon to the extent the terms and conditions are not inconsistent with the limitation and laws of this state and are otherwise within the power of the authority;
(8) To exercise the power of eminent domain and acquire by condemnation, in accordance with the provisions of any and all existing laws applicable to the condemnation of property for public use, real property or rights of easement therein or franchises necessary or convenient for its corporate purposes;
(9) To borrow money for any of its corporate purposes and to provide for the payment of same, as may be permitted under the Constitution and the laws of the State of Georgia;
(10) To issue revenue bonds as is more fully provided for in this chapter;
(11) To contract with the state and its departments or any county, municipal corporation, political subdivision, public corporation, or public authority with respect to activities, services, or facilities the contracting parties are authorized by law to undertake or provide;
(12) To exercise any power usually possessed by private corporations performing similar functions which is not in conflict with the Constitution and the laws of the State of Georgia; and
(13) To do all things necessary or convenient to carry out the powers expressly given in this chapter.
(c) Said authority shall comply with all applicable state budgetary processes and procedures as relate to compensation of employees of the authority.
(d) The authority shall have the power to borrow money and to issue revenue bonds regardless of whether the interest payable by the authority incident to such loans or revenue bonds or income derived by the holders of the evidence of such indebtedness or revenue bonds is, for purposes of federal or state taxation, includable in the taxable income of the recipients of such payments or is otherwise not exempt from the imposition of such taxation on the recipient.
(e) The authority shall have the power to sell or dispense, upon obtaining a license from the Department of Revenue, or to permit others to sell or dispense, upon obtaining a license from the Department of Revenue, alcoholic beverages for consumption on the premises but only upon and within the territorial limits of property of or under the management and control of the authority. The authority shall not have the power to sell or dispense alcoholic beverages in unbroken packages for the purpose of permitting such unbroken packages to be carried off the premises. The authority shall determine and regulate by resolution, as it may amend from time to time, the conditions under which such sales or dispensing of alcoholic beverages for consumption on the premises shall be made or shall be permitted, including the hours and days during which the sale or dispensing of alcoholic beverages shall be made or shall be permitted.
(a) In addition to and not in derogation of its other powers under this chapter, the authority is empowered to exercise such of the police powers of the state as may be necessary to maintain peace and order.
(b) The authority shall have legislative power to adopt reasonable ordinances relating to the property, affairs, and administration of the authority for which no provision has been made by general law and which are not inconsistent with the general laws and Constitution of the State of Georgia and the laws and Constitution of the United States. The officers of the Georgia World Congress Center Police, including the Security Guard Division thereof, and law enforcement officers acting within the jurisdiction of the authority under paragraph (3) of subsection (d) of Code Section 10-9-15, and subject to the requirements of Chapter 8 of Title 35, the “Georgia Peace Officer Standards and Training Act,” shall be authorized to serve and execute warrants and to make arrests for violation of ordinances adopted by the authority. For the purposes of exercising the powers and responsibilities of such officers as peace officers under paragraph (8) of Code Section 35-8-2, including their duties and responsibilities with respect to matters occurring within the limits of the facilities of the authority or requests by another law enforcement agency to provide aid and assistance, such officers shall have the same authority, powers, privileges, and immunities regarding enforcement of laws as law enforcement officers employed by the state. Prosecutions for violations of the ordinances of the authority shall be in the magistrate court sitting in the county in which such violation occurs as provided in Article 4 of Chapter 10 of Title 15. The authority may provide that ordinance violations may be tried upon citations with or without a prosecuting attorney as well as upon accusations in the manner prescribed in Code Section 15-10-63.
(c) The maximum punishment for violation of such an ordinance shall be stated in the ordinance and shall not exceed a fine of $500.00 or imprisonment for 60 days, or both.
(d) Nothing in this Code section shall prevent prosecution of any act which is a violation of an ordinance of the authority under any law applicable to such act.
The authority is authorized and directed to contract with the Department of Economic Development to exercise on behalf of the department such future responsibility in connection with the acquisition, construction, operation, management, and maintenance of the project as is now or may be vested in the department; and the Department of Economic Development is authorized by such contract to delegate to the authority all of its responsibilities and powers with respect to the project and to transfer to the authority any and all contracts, plans, documents, or other papers of said department relating to the project, together with any and all funds heretofore or hereafter appropriated to it for the acquisition, construction, operation, management, or maintenance of the project or for all other purposes related to the project, other than appropriations made specifically for debt service purposes, as compensation to the authority under such contract. Under contract with the Department of Economic Development, as herein authorized, the authority on behalf of the Department of Economic Development shall plan, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage the project, as hereinabove defined, on property owned by or leased by the State of Georgia in the City of Atlanta, Georgia, the cost of any such project to be paid in full or in part from the proceeds of general obligation bonds issued by the State of Georgia as the General Assembly may authorize or from such proceeds and other funds as may be available for such purposes, including any grant from the United States of America or any agency or instrumentality thereof. All actions of the authority and the Department of Economic Development, or their predecessors, heretofore taken in connection with such contractual relationship, are ratified and confirmed and shall not be affected by any provision of this chapter. Nothing herein shall affect the powers or duties of the Georgia State Financing and Investment Commission or of the State Properties Commission. Nothing in this Code section nor anything in any contract between the authority and the Department of Economic Development shall prevent the Department of Economic Development from contracting with the Georgia Building Authority for the provision of a parking facility or for any other exercise of its powers necessary or convenient to the department.
(a) The board of governors of the authority shall consist of 15 members. Each member shall serve for a term of four years, with the beginning and ending dates of terms to be specified by the Governor except that the four additional positions added in 1999 shall be appointed for initial terms ending July 1, 2002, but their successors shall be appointed for four-year terms. All members of the board shall be appointed by the Governor of the State of Georgia and shall serve until the appointment and qualification of a successor. Said members shall be appointed from the general public; and no person holding any other office of profit or trust under the state shall be appointed to membership.
(b) All successors shall be appointed in the same manner as original appointments. Vacancies in office shall be filled in the same manner as original appointments. An appointment to fill a vacancy shall be for the unexpired term. No vacancy on the board shall impair the right of the quorum of the remaining members then in office to exercise all rights and perform all duties of the board.
(c) The members of the board of governors shall be entitled to and shall be reimbursed for their actual travel expenses necessarily incurred in the performance of their duties and, for each day actually spent in performance of their duties, shall receive the same per diem as do members of the General Assembly.
(d) The members of the authority in office on November 1, 1982, shall continue in office as members of the board of governors for the remainder of the terms for which they were appointed and until their successors are appointed and qualified pursuant to this Code section.
(a) The management of the business and affairs of the authority shall be vested in the board of governors, subject to the provisions of this chapter and to the provisions of bylaws adopted by the board of governors as authorized by this chapter.
(b) The board of governors shall have the power to make the bylaws, rules, and regulations for the government of the authority and the operation, management, and maintenance of the project as it may determine appropriate.
(c) A majority of the number of members of the board then in office shall constitute a quorum for the transaction of business. The vote of a majority of the members of the board present at the time of the vote, if a quorum is present at such time, shall be the act of the board unless the vote of a greater number is required by law or by the bylaws of the board of governors.
(d) If the bylaws of the authority so provide, the board of governors, by resolution adopted by a majority of the full board of governors, may designate from among its members an executive committee and one or more other committees, each consisting of two or more members of the board and each of which, to the extent provided in such resolution or the bylaws of the authority, shall have and may exercise such authority as the board of governors may delegate to it. Unless otherwise provided in the bylaws of the authority, any such committee shall act by a majority of its members. The designation of any such committee and the delegation thereto of authority shall not operate to relieve the board of governors or any member thereof of any responsibility imposed by law.
(a) Meetings of the board of governors, regular or special, shall be held at the time and place fixed by or under the bylaws or, if not so fixed, by the board. Regular meetings of the board may be held with or without notice as prescribed in the bylaws. Special meetings of the board shall be held upon such notice as is prescribed in the bylaws. Unless otherwise prescribed in the bylaws, written notice of the time and place of special meetings of the board shall be given to each member either by personal delivery or by mail, telegram, or cablegram at least two days before the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board need be specified in the notice or waiver of notice of such meeting unless required by the bylaws. Meetings of the board may be called by the chairman of the board or by any other person or persons authorized by the bylaws.
(b) Upon receipt of a resolution by a majority of the number of members of the board authorized by this chapter which so certifies and requests, adopted after notice to the defaulting member, the Governor of the state may by executive order remove from membership a member of the board who has failed to attend three consecutive meetings of the board. The action of the Governor shall be final and nonreviewable.
(a) The board of governors shall elect or appoint such officers as may be provided in the bylaws and may delegate to such officers, who need not be members of the board, such authority and responsibility as the board may determine appropriate.
(b) Each officer and employee of the authority shall serve at the pleasure of the authority and shall hold office for the term for which he is elected or appointed and until his successor has been elected or appointed and has qualified or until his earlier resignation, removal from office, or death.
(c) All officers and agents of the authority shall have such authority and perform such duties in the management of the authority as may be provided in the bylaws or as may be determined by action of the board not inconsistent with law or with the bylaws.
(d) The board of governors shall have authority to fix the compensation of its officers and employees, except that officers or employees who are also members of the board shall serve without additional compensation for such service.
(e) The authority shall be authorized to obtain conviction data with respect to its officers and employees or prospective officers and employees. For such purpose, the authority may submit to the Georgia Crime Information Center two complete sets of fingerprints of the officer or employee or the applicant for appointment or employment, the required records search fees, and such other information as may be required. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall retain the other set and promptly conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the authority in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding. All conviction data received by the authority shall be used by it for the exclusive purpose of making employment decisions, shall not be a public record, shall be privileged, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the employment file. All such records shall be maintained by the authority pursuant to laws regarding such records and the rules and regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as applicable. As used in this subsection, “conviction data” means a record of a finding or verdict of guilty or plea of guilty or plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
It is found, determined, and declared that the creation of the authority and the carrying out of its corporate purposes are in all respects for the benefit of the people of this state and are public purposes and that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by this chapter. The authority shall be required to pay no taxes or assessments upon any property acquired or under its jurisdiction, control, possession, or supervision or upon its activities in the development, construction, operation, or maintenance of any of the projects or facilities erected, maintained, or acquired by it or any fees, rentals, or other charges for the use of such facilities or other income received by the authority and shall not be subject to regulation of its activities in the acquisition, development, construction, operation, or maintenance of any of the projects or facilities acquired, developed, constructed, operated, or maintained by it by any county or municipal corporation of this state. The exemption from taxation provided for in this Code section shall include an exemption from sales and use tax on tangible personal property purchased by the authority for use exclusively by the authority. The revenue bonds or other evidence of indebtedness issued by the authority, their transfer, and the income therefrom shall at all times be exempt from taxation within this state by the state or its municipalities or political subdivisions.
Any action against the authority to protect or enforce any rights under the provisions of this chapter shall be brought in the Superior Court of Fulton County, Georgia, and such court shall have exclusive, original jurisdiction of such actions.
The authority, in addition to the moneys received from the collection of revenues, rents, and earnings derived under the provisions of this chapter or from the Department of Economic Development, shall have authority to accept from any entity or agency of the United States, of this state, or of any county, municipality, political subdivision, or public authority and from any private individual or entity, grants, contributions, or gifts of either money or property, real or personal, tangible or intangible, or services or other things of value, in the furtherance of the purposes and powers of the authority. Incident to the acceptance of any such grant, contribution, or gift, the authority may accept and bind itself to express terms and conditions imposed incident to the grant, contribution, or gift governing the use and application of the money or property or the use of disposition of any property acquired therewith, provided that such term or condition is expressly accepted by the authority, is consistent with the purposes and powers of the authority under this chapter, and is not inconsistent with the Constitution or laws of this state. Any such term or condition may require the authority to hold any money or property in trust separate from other money or property of the authority and any such money or property so held shall not be subject to any claims against or liability of the authority not arising from the use or application of the money or property so held or the operation of the property so held or acquired therewith.
All moneys received pursuant to the authority of this chapter, whether as grants, contributions, or gifts or as revenues, rents, and earnings, shall be deemed to be trust funds to be held and applied solely as provided in this chapter, except that grants, contributions, or gifts, the terms or conditions of which require that the proceeds thereof be held separately in trust, shall be held in the manner and applied solely for the purposes specified.
(a) The board of governors of the authority is authorized to fix rentals, fees, prices, and other charges which any tenant, lessee, licensee, user, exhibitor, concessionaire, franchisee, or vendor shall pay to the authority for the use of the project or the facilities or part thereof or combination thereof, and for the goods and services provided by the authority in connection with such use, as the authority may deem necessary or appropriate to provide in connection with such use, and to charge and collect the same, and to establish and to perform and pay any obligations established under such other terms, conditions, and considerations as the authority and any such tenant, lessee, licensee, user, exhibitor, concessionaire, franchisee, or vendor shall determine necessary or appropriate. Such rentals, fees, prices, and other charges shall be so fixed and adjusted in respect to the aggregate thereof from the project or facilities or any part thereof so as to be reasonably expected to provide a fund sufficient with other revenues of such project and funds available to the authority, if any, to pay the cost of acquiring, constructing, equipping, maintaining, repairing, and operating the project or facilities, including the payment of debt service with respect to any revenue bonds issued under Article 3 of this chapter or other indebtedness and the payment or performance of contractual obligations incurred or undertaken by the authority and the establishment of reserves for debt service for such revenue bonds or for extraordinary repairs and insurance, unless such cost shall be otherwise provided for, which costs shall be deemed to include the expenses incurred by the authority on account of the project for water, light, sewer, and other services furnished by other facilities at such project.
(b) The authority may establish the terms and conditions upon which any lessee, sublessee, licensee, user, exhibitor, concessionaire, franchisee, or vendor shall be authorized to use the project as the authority may determine necessary or appropriate. The authority may by contract require any such person or entity to indemnify and hold harmless the authority and its officers, agents, or employees from the claims for personal injury or property damage or loss of such person or others employed by or admitted to the project or any of its facilities by such person arising out of or in connection with such use of the project from any cause, including negligence of the authority, its officers, agents, or employees, notwithstanding any other provision of law, including but not limited to subsection (b) of Code Section 13-8-2.
(c) A contract between the authority and any tenant, lessee, licensee, user, exhibitor, concessionaire, franchisee, or vendor and any consent otherwise granted by the authority for the use of or conduct of any activity within any project of or under the control and management of the authority shall not be exercisable or enforceable against the authority without the consent of the authority by any person except the person named in such contract. No such contract or consent shall be assignable or transferable to any other person without the consent of the authority.
(d) The authority shall have the power to adopt reasonable rules and regulations governing the use during an event period of sidewalks and public streets immediately adjacent to any project of or under the control and management of the authority so as to ensure the safe and orderly operation of the project and such areas, to prevent disruption of and interference with the conduct of such event, and to prevent public solicitation or public distribution of literature which is competitive with the activities of the person to whom the authority has granted the right to conduct such event.
(e) No person shall be authorized to engage publicly in any commercial activity or sale of goods or services, the public solicitation of commercial activity or the sale of goods or services, or begging, panhandling, or other public solicitation of funds for any purpose or the public distribution of literature within the boundaries of any project of or under the control and management of the authority without the prior express written consent of the authority and then only in accordance with the consent so given.
(f) No person shall be authorized to engage during any event period in any public commercial activity or the sale of goods or services, the public solicitation of commercial activity or sale of goods or services, or begging, panhandling, or other public solicitation of funds for any purpose, or the public distribution of literature upon or within sidewalks or public streets adjacent to any project of or under the control and management of the authority without the prior written consent of the authority and then only in accordance with the consent so given.
(g) Any person who shall violate the provisions of subsection (e) or (f) of this Code section shall be guilty of a misdemeanor.
(h) As used in this Code section, “event period” means the period on any day on which an event has been scheduled by or under contract with the authority within any project of or under the management and control of the authority beginning two hours prior to the scheduled start of such event on that day and ending one hour after the closing of such event on that day.
(i) The provisions of this Code section are cumulative and shall not be in derogation of the rights and powers of the authority to control access to and use of any project of or under the control and management of the authority or applicable civil or criminal remedies or penalties otherwise provided by law.
(a) Notwithstanding any designation or name of a facility of the authority, the facilities of the authority owned by it or under its control and management, including without limitation facilities named as or used for plazas, parks, pavilions, and vehicular and pedestrian ways, shall not be open or accessible to the public or be generally available for public or other use except (1) as may be determined or designated by the authority by bylaw, resolution, regulation, or ordinance as may be adopted by and amended from time to time by the authority either governing all facilities of the authority or governing a specific facility and then only for the purposes, at the times, and in the manner provided in such bylaw, resolution, regulation, or ordinance governing such facilities or facility and (2) as may be permitted by the authority to lessees, sublessees, licensees, sublicensees, exhibitors, concessionaires, franchisees, or vendors operating under a grant from the authority authorized by or entered into in accordance with bylaw, resolution, regulation, or ordinance of the authority and then only in accordance with the terms of that grant.
(b) The authority may exclude from the facilities of the authority any person whose access to or use of the facility is not authorized or permitted in accordance with such grant, bylaw, resolution, regulation, or ordinance and remove any person present on such facilities whose presence or activities during such presence are not in accordance with such grant, bylaw, resolution, regulation, or ordinance. In addition, the authority may exclude or remove any person from a facility of the authority or conditionally limit access of a person to a facility of the authority where the authority in good faith determines that the person's activities pose an actual or imminent threat of harm, that the person's activities do or are intended to disrupt or interfere with the activities or functions authorized or permitted within such facility, that the person's activities do or are likely to violate the security of persons authorized or permitted to use the facility, or that the person's activities constitute a hazard to the safe or orderly operation of the facilities of the authority or to the safety of the authority's facilities or the occupants thereof.
(c) Any bylaw, resolution, regulation, or ordinance adopted by the authority authorizing or permitting public or other use and access to any facility by the public or by persons other than the authority shall permit the authority from time to time directly to conduct activities within such facility or for other purposes which may be exclusive of access to and use of the facility by the public or by others otherwise authorized or permitted. Any bylaw, resolution, regulation, or ordinance adopted by the authority authorizing or permitting public or other use and access to any facility by persons other than the authority shall also permit the authority by lease, license, concession, franchise, or vending rights agreement, as the authority determines appropriate, to grant to others the right to use designated facilities of the authority to conduct activities thereon or for other purposes which shall be exclusive of the rights of others, including the public, to the extent set forth in the grant. During the period of such direct use or of the term of such grant and at such times preceding or following such period as the authority determines appropriate, notwithstanding any bylaw, resolution, regulation, or ordinance permitting public or other use and access to a facility, the authority may close the facility for which direct use or grant is made to access by the public or others and exclude and remove from the facility of the authority for which such direct use or grant is made any person not authorized by the authority or by the authority's grantee to obtain access thereto. To the extent necessary to effectuate the purposes of such direct use or grant, the authority may temporarily close to vehicular and pedestrian access public streets and sidewalks within such facilities or limit vehicular and pedestrian traffic thereon and, after agreement with municipalities having jurisdiction, temporarily close to vehicular and pedestrian traffic public streets and sidewalks adjacent to such facilities or limit vehicular and pedestrian traffic thereon.
(d) The provisions of this Code section are in addition to and not in derogation of the other provisions of this chapter, including Code Section 10-9-14.
(a) The authority shall operate the project so as to ensure maximum use of the project. In connection with and incident to its operation of the project, the authority may engage in such activities as it deems appropriate to promote trade shows, conventions, and tourism within the state so as to promote the use of the project and the use of the industrial, agricultural, educational, historical, cultural, recreational, and natural resources of the State of Georgia by those using or visiting the project.
(b) The authority shall have the power to lease and make contracts with political subdivisions and agencies of this state with respect to the use of the project and the goods and services of the authority provided in connection with such use or the activities which the authority is otherwise authorized to undertake.
(c) It shall be the duty of the board of governors of the authority to prescribe rules and regulations for the operation and governing the use of the project constructed under the provisions of this chapter, including rules and regulations to ensure maximum use of the project.
(d)(1) The authority shall be authorized to establish the Georgia World Congress Center Police to keep watch over and protect the Geo. L. Smith II Georgia World Congress Center and such other properties or projects of the authority or as may be under the management and control of the authority. The police officers of the Georgia World Congress Center Police shall be subject to Chapter 8 of Title 35. Subject to rules and regulations of the authority, any person employed as a police officer of the Georgia World Congress Center Police who is accepted as a candidate for or who has obtained certification under Chapter 8 of Title 35 shall have powers to possess and carry firearms and to exercise such other powers and duties as are possessed by a police officer or other peace officer employed by the county or the municipality in which the properties of or under the control and management of the authority are located, and without limitation of the foregoing, shall have the powers of protecting and preserving the properties or projects of or under the management and control of the authority and, within such properties and projects and within the boundaries of any public street or sidewalk adjacent to any such property or projects or which area is otherwise subject to regulation by the authority, have the powers of protecting persons, of enforcing law and order, of controlling pedestrian and vehicular traffic, and of prevention, detection, and investigation of offenses committed thereon.
(2) The authority shall be authorized to establish the Security Guard Division of the Georgia World Congress Center Police and to employ and assign security guards to the division. Security guards so assigned shall not be subject to Chapter 8 of Title 35. Subject to rules and regulations of the authority, security guards shall have the powers of protecting and preserving the properties in projects of or under the management and control of the authority and within such properties or projects and within the boundaries of any public street or sidewalk adjacent to any such property or projects, or which is otherwise subject to regulation by the authority, have the powers of protecting persons, enforcing law and order, controlling pedestrian and vehicular traffic, and of the prevention, detection, and investigation of offenses committed thereon and for those purposes shall be authorized to exercise such powers as are authorized by law for security guards employed by the Georgia Building Authority and subsection (f) of Code Section 50-9-9.
(3) The authority may contract for the provision of security services to the property or areas subject to control of the authority:
(A) With any state, county, or municipal government, agency, or authority police or security force;
(B) Subject to regulations of such police or security force, with the members of such force; and
(C) With any private person authorized and licensed to provide such services.
(4) Under such terms and conditions as may be established by agreement with such agencies, the Board of Public Safety through the Georgia Police Academy or the Georgia Peace Officer Standards and Training Council may provide such limited or specialized training to police officers or security guards employed by the authority as may be appropriate to the responsibilities and powers vested in such police officers or security guards. Nothing in this Code section shall limit the duty of the Georgia Peace Officer Standards and Training Council or the Georgia Police Academy to provide training necessary for certification under Chapter 8 of Title 35.
(5) Law enforcement officers employed by the state or the county or municipality in which properties, projects, or facilities of or under the control or management of the authority are located may with respect to the police officers and security guards provided for under this subsection, exercise:
(A) Concurrent law enforcement jurisdiction over protecting and preserving such properties, projects, or facilities; and
(B) The power to enforce law and order and in the event of conflict shall have jurisdiction over such authority police officers and security guards on law enforcement matters and investigation of offenses committed on such properties, projects, or facilities.
The Attorney General shall provide legal services for the authority and in connection therewith the provisions of Chapter 15 of Title 45, relating to the Attorney General, shall apply.
(a) The authority is authorized to contract with any county, municipality, public corporation, or public authority, or combination of the foregoing (any such county, municipality, corporation, authority, or combination being hereinafter referred to as the “local entity”), to exercise on behalf of the local entity such responsibility in connection with the planning, design, acquisition, construction, operation, management, and maintenance of a local trade and convention center of such local entity, as is now or may be hereafter vested in the local entity, and to provide to the local entity goods or services of the authority in connection with the planning, design, acquisition, construction, operation, management, and maintenance of any local trade and convention center of the local entity, all as the parties may by contract determine appropriate. Any such local entity is authorized by such contract to delegate to the authority all or any of its responsibilities and powers with respect to the planning, design, acquisition, construction, operation, management, and maintenance of a local trade and convention center and to obtain from the authority such goods or services of the authority in connection with the planning, design, acquisition, construction, operation, management, and maintenance of a local trade and convention center as the parties may by contract determine appropriate.
(b) Any such contract shall provide that the local entity shall reimburse the authority for all of the costs, liabilities, and expenses of the authority incurred by the authority in exercising such powers or providing such goods or services. The authority shall not directly or indirectly be liable for any liability, cost, or expense incurred by such local entity in the acquisition, construction, operation, management, or maintenance of a local trade and convention center. No funds derived by the authority from or in connection with the operation of the Geo. L. Smith II Georgia World Congress Center shall be used to pay any liability, cost, or expense incurred in connection with such contract, except pursuant to contract providing for reimbursement of the authority by the local entity therefor.
(c) As used in this Code section, “local trade and convention center” means a trade and convention center owned or operated by a local entity for the purpose of housing trade shows, conventions, cultural, political, musical, educational, entertainment, recreational, athletic, and other events, for displaying exhibits of counties, municipalities, industries, and attractions, or for promoting agricultural, historic, natural, and recreational resources of the state, which includes one or more facilities suitable for such purposes, including, but not limited to, exhibition halls, meeting halls, auditoriums, theaters, stadiums, facilities for purveying of foods, beverages, and other goods and services, parking facilities and parking areas in connection therewith, and related buildings or facilities usual and convenient to such purposes and activities.
(a) This Code section does not apply to any real property:
(1) Held by the authority for management under Code Section 10-9-5 or contract with the Department of Economic Development pursuant to such Code section;
(2) Held by the authority as lessee under lease from the Department of Economic Development;
(3) Acquired by the authority with the proceeds of revenue bonds issued under Article 3 of this chapter; or
(4) Acquired with the proceeds of appropriations or bonds issued by the state assigned to the authority for management.
(b) If the authority determines, in its sole discretion, that any real property held by it is no longer required for the purposes for which it was originally acquired or that the furtherance of the purposes of the authority would be served thereby, the authority may sell, lease, or otherwise convey, on such terms and conditions and with or without consideration as the authority determines appropriate, such real property to any county or municipality in which such property is located or to an authority created by such county or municipality, for the authorized public purposes of such entity, including, by way of illustration and not limitation, the public purposes set forth in Chapter 42, 44, 61, or 64 of Title 36, relating to local government.
The foregoing Code sections of this chapter shall be deemed to provide an additional and alternative method for the doing of things authorized thereby and shall be regarded as supplemental and additional to powers conferred by the Constitution and laws of the State of Georgia and shall not be regarded as in derogation of any powers now existing.
This chapter, being for the welfare of the state and its inhabitants, shall be liberally construed to effect the purposes hereof.
The accounts of the authority created in this chapter shall be kept as separate and distinct accounts and shall be audited by the Department of Audits and Accounts of the state.
There is created as a joint committee of the General Assembly the Geo. L. Smith II Georgia World Congress Center Authority Overview Committee to be composed of five members of the House of Representatives appointed by the Speaker of the House, one of whom shall be a member of the minority party, five members of the Senate appointed by the Senate Committee on Assignments, one of whom shall be a member of the minority party, the chairperson of the House Committee on Economic Development and Tourism or his or her designee, and the chairperson of the Senate Economic Development Committee or his or her designee. The members of the committee shall serve two-year terms concurrent with their terms as members of the General Assembly. The chairperson of the committee shall be appointed by the Senate Committee on Assignments from the membership of the committee, and the vice chairperson of the committee shall be appointed by the Speaker of the House from the membership of the committee. The chairperson and vice chairperson shall serve terms of two years concurrent with their terms as members of the General Assembly. Vacancies in an appointed member's position or in the offices of chairperson or vice chairperson of the committee shall be filled for the unexpired term in the same manner as the original appointment. The committee shall periodically inquire into and review the operations of the Geo. L. Smith II Georgia World Congress Center Authority, as well as periodically review and evaluate the success with which the authority is accomplishing its statutory duties and functions as provided in this chapter.
The state auditor, the Attorney General, and all other agencies of state government, upon request by the committee, shall assist the committee in the discharge of its duties set forth in this article. The committee may employ not more than two staff members and may secure the services of independent accountants, engineers, and consultants.
The Geo. L. Smith II Georgia World Congress Center Authority shall cooperate with the committee, its authorized personnel, the Attorney General, the state auditor, the state accounting officer, and other state agencies in order that the charges of the committee, set forth in this article, may be timely and efficiently discharged. The authority shall submit to the committee such reports and data as the committee shall reasonably require of the authority in order that the committee may adequately perform its functions. The Attorney General is authorized to bring appropriate legal actions to enforce any laws specifically or generally relating to the Geo. L. Smith II Georgia World Congress Center Authority. The committee shall, on or before the first day of January of each year, and at such other times as it deems necessary, submit to the General Assembly a report of its findings and recommendations based upon the review of the Geo. L. Smith II Georgia World Congress Center Authority, as set forth in this chapter.
In the discharge of its duties, the committee shall evaluate the performance of the Geo. L. Smith II Georgia World Congress Center Authority consistent with the following criteria:
(1) Prudent, legal, and accountable expenditure of public funds;
(2) Efficient operation; and
(3) Performance of its statutory responsibilities.
(a) The committee is authorized to expend state funds available to the committee for the discharge of its duties. Said funds may be used for the purposes of compensating staff personnel, paying for services of independent accountants, engineers, and consultants, and paying all other necessary expenses incurred by the committee in performing its duties.
(b) The members of the committee shall receive the same compensation, per diem, expenses, and allowances for their service on the committee as is authorized by law for members of interim legislative study committees.
(c) The funds necessary for the purposes of the committee shall come from the funds appropriated to and available to the legislative branch of government.
The authority shall have the power and is authorized at one time or from time to time to provide by one or more authorizing resolutions for the issuance of revenue bonds, but the authority shall not have the power to incur indebtedness under this article in excess of the principal sum of $500 million but excluding from such limit bonds issued for the purpose of refunding bonds which have been previously issued. The authority shall have the power to issue such revenue bonds and to use the proceeds thereof for the purpose of paying all or part of the costs of the project to the extent but only to the extent the costs are incurred for the following facilities: multipurpose stadiums or coliseums and related athletic fields, courts, or surfaces, and clubhouses and gymnasiums; facilities for the purveying of goods and services within such stadiums or coliseums; parking facilities and parking areas in connection therewith; facilities deemed necessary or convenient within the structure of such stadiums or coliseums; and related lands, buildings, structures, fixtures, equipment, and personalty appurtenant or convenient to such facilities and the extension, addition, or improvement of such facilities, which facilities are to be operated as part of the project, as such facilities shall be designated in the resolution of the board of governors of the authority authorizing the issuance of such bonds.
(a) The revenue bonds of each issue shall be dated, shall bear interest, shall be payable in such medium of payment as to both principal and interest as may be determined by the authority, and may be made redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority in the resolution providing for the issuance of revenue bonds.
(b) The authority shall determine the form of the revenue bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the revenue bonds and the place or places of payment of principal and interest thereof, which may be at any bank or trust company within or outside the state.
In case any officer whose signature or facsimile signature appears on any revenue bonds ceases to be an officer before the delivery of the revenue bonds, the signature or facsimile signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until the delivery. All such revenue bonds shall be signed by or bear the facsimile signature of the chairman or vice chairman of the board of governors of the authority, and the official seal of the authority shall be affixed thereto and attested by or bear the facsimile signature of the secretary or assistant secretary of the authority; and any bond may be signed, sealed, and attested on behalf of the authority by any such persons as at the actual time of the execution of the revenue bonds shall be duly authorized or hold the proper office, although at the date of the issuance of the revenue bonds such person may not have been so authorized or shall not have held such office. The facsimile signature of any officer of the authority may be imprinted in lieu of manual signature if the authority so directs.
The revenue bonds and the interest payable thereon shall be exempt from all taxation within the state imposed by the state or any county, municipal corporation, or other political subdivision of the state.
The authority may sell the revenue bonds in such manner at public or private sale and for such price, rate of interest, and other terms as it may determine to be in the best interest of the authority. The rate of interest may be a fixed or variable rate, but if the rate is a variable rate, a maximum per annum rate of interest shall be specified in the authorizing resolution and in the validation proceeding.
The proceeds of the revenue bonds shall be used solely for the payment of the costs of the project incurred with respect to the facilities designated by the resolution authorizing the issuance of such revenue bonds. The resolution authorizing the issuance of revenue bonds may provide that the proceeds thereof shall be disbursed upon requisition or order of the chairman of the authority or other designated officer of the authority or by the Georgia State Financing and Investment Commission acting on behalf of the authority under contract with the authority under such restrictions, if any, as the resolution authorizing the issuance of the revenue bonds or the trust indenture may provide. If the proceeds of the revenue bonds, by error of calculation or otherwise, shall be less than the cost of the facility or combined facilities, unless otherwise provided in the resolution authorizing the issuance of the revenue bonds or in the trust indenture, additional revenue bonds may in like manner be issued to provide the amount of the deficit which, unless otherwise provided in the resolution authorizing the issuance of the revenue bonds or in the trust indenture, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the revenue bonds first issued for the same purpose. If the proceeds of the revenue bonds of any issue shall exceed the amount required for the purpose for which such revenue bonds are issued, the surplus shall be used for one or more of the following purposes:
(1) Payment into the fund provided in Code Section 10-9-51 for the payment of principal and interest of such revenue bonds; or
(2) For the purchase of such revenue bonds in the open market.
Prior to the preparation of definitive revenue bonds, the authority may, under like restrictions, issue interim revenue receipts, interim revenue certificates, or temporary revenue bonds exchangeable for definitive revenue bonds upon the issuance of the latter.
The authority may also provide for the replacement of any revenue bond which becomes mutilated or is destroyed or lost upon receipt of such indemnification as it may deem appropriate.
The revenue bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions, and things which are specified or required by this article and Article 1 of this chapter. In the discretion of the authority, revenue bonds of a single issue may be issued for the purpose of paying the cost of any one or more, including a combination of, facilities described in Code Section 10-9-40 and in the resolution authorizing the issuance of such bonds. Any resolution providing for the issuance of revenue bonds under this article shall become effective immediately upon its passage and need not be published or posted, and any such resolution may be passed at any regular, special, or adjourned meeting of the board of governors of the authority.
(a)(1) Subject to the requirements of paragraph (2) of this subsection, the authority shall operate and manage the facilities financed by the issuance of revenue bonds as authorized by this article. The authority may, incident to such operation and management, lease the facilities to persons, firms, private corporations, authorities, counties, municipal corporations, public corporations, public authorities, or other political subdivisions of this state under leases covering all or such separately identified portions of the facilities as the authority may determine appropriate and upon and for such terms, conditions, and considerations and for such rentals, fees, prices, and other charges as the authority shall determine appropriate. The authority shall fix the rentals, fees, prices, and other charges payable to the authority under such leases so that the aggregate amount of such rentals, fees, prices, or other charges derived by the authority thereunder, together with other revenues and earnings of the authority from the facilities designated by the resolution authorizing the issuance of the revenue bonds, and together with revenues, earnings, and funds otherwise available to the authority for such purposes, are at least sufficient to pay the principal, interest, premiums, discounts, fees, costs, or expenses payable by the authority on or with respect to all of the revenue bonds and other obligations issued by the authority for the purpose of financing such facilities as such principal, interest, premiums, discounts, fees, costs, or expenses shall become due, together with the costs of the maintenance, repair, and operation of the facilities, including reserves established for such purposes, and the payment and performance of contractual obligations of the authority. The obligation of any lessee to the authority under any such lease may be secured in such manner as the authority shall determine appropriate. Any such lease may provide that the authority may be subrogated to and may at its election upon such terms as may be set forth in such lease enforce all contracts or rights of action of such lessee relating to or arising out of the operation of the facilities covered by such lease. Any such lease shall contain such other terms, conditions, and considerations as the authority may determine appropriate.
(2) Any lease provided for in paragraph (1) of this subsection which lease is for a term in excess of ten years must, as a condition precedent to its effectiveness, be approved by the Fiscal Affairs Subcommittees of the Senate and House of Representatives meeting jointly as one committee; and such approval shall require the affirmative votes of at least 11 members of such subcommittees sitting jointly.
(b) As used in this article, “lease” includes a lease or sublease and may, in the discretion of the authority, be in form and substance an estate for years, usufruct, license, concession, or any other right or privilege to use or occupy or conduct any activity within the facilities. The term “lessee” includes lessee or sublessee, tenant, licensee, concessionaire, or other person contracting for such estate, interest, right, or privilege.
(c) In the exercise of its powers under this chapter, including the powers under this article, the authority may contract with any public entity which shall include the state or with any other public agency, public corporation, or public authority, for joint services, for the provision of services, or for the joint or separate use of facilities which the contracting parties are authorized by law to undertake or provide.
(d) Pursuant to any such contract, in connection with any facility authorized under this article or any project authorized under this chapter, the authority may undertake such facility or provide such services or facilities or projects of the authority, in whole or in part, to or for the benefit of the public entity contracting with the authority with respect to those activities, services, or facilities or projects which the contracting public entity is authorized by the Constitution or laws of this state to provide, including, but not limited to, those set forth in Article IX, Section III, Paragraph I of the Constitution and Chapters 42, 44, 61, and 64 of Title 36 and Article 3 of Chapter 13 of Title 48, and any such contracting public entity is authorized to undertake to pay the authority for such activities, services, or facilities or projects such amounts and on such terms as the parties may determine.
(e) The state and each institution, department, or other agency thereof or each county, municipality, school district, or other political subdivision of this state and each public agency, public corporation, or public authority is authorized to contract with the authority in connection with any activity, service, or facility which such public entity is otherwise authorized to provide to obtain the performance of such activity or provision of such services or facilities through the authority.
(f) In connection with its operations, the authority may similarly obtain from, and each public entity may provide, such activities, services, or facilities which the authority is authorized to provide.
(g) Except as provided by Article VII, Section IV, Paragraph IV of the Constitution, any such contract authorized by this Code section or the revenues derived therefrom may be designated as security for revenue bonds issued under this article.
(a)(1) Revenue bonds issued under the authority of this article shall not be deemed to constitute a debt of the state or a pledge of the faith and credit of the state. The bonds shall be enforceable against the authority only to the extent of, and only against funds derived from, the rents, revenues, earnings, and funds derived from the facilities designated by the resolution authorizing the issuance of such revenue bonds or which are otherwise available to the authority for such purposes which are so designated, including but not limited to rents, revenues, earnings, and funds which are:
(A) Payable to the authority by the lessee or lessees and received by the authority from the lessee or lessees under the lease or leases by the authority of the facilities acquired or improved by the proceeds of such revenue bonds described in the resolutions authorizing the issuance of such revenue bonds;
(B) Payable to the authority under such contracts as may be entered into in accordance with Code Section 10-9-49, relating to the facilities acquired or improved by the proceeds of the revenue bonds or the use thereof or services provided through such facilities, which are designated as security for the revenue bonds;
(C) Payable to the authority under such other contracts or agreements relating to the facilities acquired or improved by the proceeds of the revenue bonds as may be designated as security for such bonds; and
(D) As may otherwise be designated as security for such bonds either: (i) derived from or in connection with the facilities acquired or improved by the proceeds of the revenue bonds or the use or operation thereof or the services provided through such facilities; or (ii) otherwise available to the authority for such purposes.
The bonds shall be payable solely from the rents, revenues, earnings, and funds described in this paragraph, except that the bonds may, in addition and in the discretion of the authority, be paid in part by the authority from any other source of funds lawfully available to the authority for that purpose. The authority shall not be obligated in any way, however, to make any payments from any such other source of funds.
(2) The issuance of the revenue bonds shall not directly or indirectly or contingently obligate the state to continue or to levy or pledge any form of taxation whatsoever therefor or to continue or make any appropriation for the payment thereof. Revenue bonds issued under the authority of this article shall not be payable from or a charge upon any funds other than those pledged to the payment thereof nor shall the authority be otherwise directly or indirectly subject to any pecuniary liability thereon. Except as provided in this article, a holder or holders of any such revenue bonds, directly or through any trustee or receiver, shall not have the right to enforce payment thereof against the authority or any property of or any right of action of or against the authority nor shall any such revenue bonds constitute a charge, lien, or encumbrance, legal or equitable, upon any property of or any right of action of or against the authority.
(b) Notice of the limitations of this Code section shall be set forth on the face of the revenue bonds which shall further provide that the obligations of the authority thereunder are limited by the provisions of this article.
(a) Subject to the limitations set forth in this chapter, the authority shall be authorized to provide, directly or through lessees of the project, such security for revenue bonds issued by it as it may determine appropriate.
(b)(1) Without limitation of the provisions of subsection (a) of this Code section, in the discretion of the authority, any issue of revenue bonds may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or outside the state. The trust indenture may pledge or assign rents, revenues, earnings, and funds derived from the facilities designated by the resolution authorizing the issuance of such revenue bonds or which may be otherwise available to the authority for such purposes, including but not limited to rents, revenues, earnings, and funds which are:
(A) Payable to the authority by the lessee or lessees and received by the authority from the lessee or lessees under the lease or leases by the authority of the facilities acquired or improved by the proceeds of such revenue bonds described in the resolutions authorizing the issuance of such revenue bonds;
(B) Payable to the authority under such contracts as may be entered into in accordance with Code Section 10-9-49, relating to the facilities acquired or improved by the proceeds of the revenue bonds or the use thereof or services provided through such facilities, which are designated as security for the revenue bonds;
(C) Payable to the authority under such other contracts or agreements relating to the facilities acquired or improved by the proceeds of the revenue bonds as may be designated as security for such bonds; and
(D) As may otherwise be designated as security for such bonds either: (i) derived from or in connection with the facilities acquired or improved by the proceeds of the revenue bonds or the use or operation thereof or the services provided through such facilities; or (ii) otherwise available to the authority for such purposes.
(2) Either the resolution providing for the issuance of the revenue bonds or the trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property; the construction of the project; the maintenance, operation, repair, and insurance of the project; and the custody, safeguarding, manner of disbursements, and application of all moneys and may also provide that any facility shall be constructed and paid for under the supervision and approval of consulting engineers or architects employed or designated by the authority. The resolution or the trust indenture may also require that the security given by contractors and by any depository of the proceeds of the bonds or revenues or other moneys be satisfactory to such purchasers and may also contain provisions concerning the conditions, if any, upon which additional revenue bonds may be issued. The indenture may set forth the rights and remedies of the bondholders and of the trustee and may restrict the individual right of action of bondholders as is customary in trust indentures securing revenue bonds and debentures of corporations.
(c) The resolution or trust indenture may provide that the rents, revenues, earnings, and funds which are designated as security for the revenue bonds shall be set aside into a sinking fund, which sinking fund shall be pledged to and charged with the payment of:
(1) The interest upon the revenue bonds as the interest falls due;
(2) The principal of the bonds as the same falls due;
(3) The necessary charges of paying agents for paying principal and interest;
(4) Any premium upon bonds retired by call or purchase as provided in this article; and
(5) Any fees, costs, or expenses payable under the revenue bonds or trust indentures.
(d) The use and disposition of the sinking fund shall be subject to such regulations as may be provided in the resolution authorizing the issuance of the revenue bonds or in the trust indenture, but, except as may otherwise be provided in the resolution or trust indenture, such sinking fund shall be a fund for the benefit of all revenue bonds without distinction or priority of one over another. Subject to the resolution authorizing the issuance of the revenue bonds or in the trust indenture, surplus moneys in the sinking fund may be applied to the purchase or redemption of such revenue bonds; and any such bonds so purchased or redeemed shall immediately be canceled and shall not again be issued.
Any holder of revenue bonds or interest coupons thereon issued under this article, any receiver for such holders, or any indenture trustee, if there is any, except to the extent the rights given in this article may be restricted by resolution passed before the issuance of the revenue bonds or by the trust indenture, may either at law or in equity, by action, mandamus, or other proceedings, protect and enforce any and all rights under the laws of the state or granted under this article or under such resolution or trust indenture and may enforce and compel performance of all duties required by this article or by such resolution or trust indenture to be performed by the authority or any officer thereof. In the event of default upon the principal and interest or other obligations of any revenue bond issue, any such holder, receiver, or indenture trustee shall be subrogated to each and every right of collecting rentals, revenues, earnings, or funds by the authority which the authority may possess under contracts designated as security therefor, and, in the pursuit of its remedies as subrogee, may proceed either at law or in equity by action, mandamus, or other proceedings to collect any sums by such proceeding due and owing to the authority and pledged or partially pledged to the benefit of the revenue bond issue. No individual, receiver, or indenture trustee thereof shall have the right to compel any exercise of the taxing power of the state to pay any such revenue bond or the interest thereon or otherwise to enforce the payment thereof against the state or the authority or any property of the state or authority, nor shall any such bond constitute a charge, lien, or encumbrance, legal or equitable, upon the property of the state or authority except the rents, revenues, earnings, and funds designated as security for the revenue bonds. In addition to the foregoing, the resolution or trust indenture may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders subject to the limitations otherwise stated in this article. All expenses incurred in carrying out the trust indenture may be treated as a part of the cost of the project affected by the indenture.
The authority may, in the resolution providing for the issuance of revenue bonds or in the trust indenture, provide for the payment of the proceeds of the sale of the bonds to any officer or person who shall act as trustee or any agency, bank, or trust company or to the Georgia State Financing and Investment Commission acting under contract with the authority, which officer, person, bank, trust company, or agency shall act as trustee of such funds and shall hold and apply the same to the purposes set forth in or through this article, subject to such regulations as this article and Article 1 of this chapter, or as the resolution or trust indenture, may provide.
The authority shall be authorized to utilize the financial advisory and construction related services of the Georgia State Financing and Investment Commission with respect to the issuance of revenue bonds and the investment and disposition of the proceeds thereof and the acquisition, design, planning, and construction of the facilities designated in the resolution authorizing the issuance of the revenue bonds. The reimbursement by the authority of the commission for services provided by the commission shall be considered as part of the costs of the project. Chapter 22 of Title 50 shall be applicable to the selection of persons to provide professional services for any project or any portion thereof constructed in whole or in part with any proceeds from the sale of revenue bonds authorized by this article.
The authority is authorized to provide by resolution for the issuance of revenue refunding bonds of the authority for the purpose of refunding any revenue bonds issued under this article and then outstanding, together with accrued interest thereon. The issuance of such revenue refunding bonds, and maturities and all other details thereof, the rights of the holders thereof, and the duties of the authority in respect to the same shall be governed by this article insofar as the same may be applicable.
The revenue bonds authorized by this article are made securities in which all public officers and bodies of this state and all municipalities and all political subdivisions of this state; all insurance companies and associations and other persons carrying on an insurance business; all banks, bankers, trust companies, savings banks, and savings associations, including savings and loan associations, building and loan associations, investment companies, financial institutions, and other persons carrying on a banking business; all administrators, guardians, executors, trustees, and other fiduciaries; and all other persons who are authorized to invest in bonds or other obligations of the state may properly and legally invest funds including capital in their control or belonging to them. The revenue bonds are also made securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and political subdivisions of this state for any purpose for which the deposit of the bonds or other obligations of this state may be authorized.
(a) Revenue bonds of the authority shall be confirmed and validated in accordance with the procedures of Article 3 of Chapter 82 of Title 36, the “Revenue Bond Law.” The revenue bonds and any security therefor when validated and the judgment of validation shall be final and conclusive with respect to such revenue bonds and any security therefor and against the authority issuing the same and any person, firm, corporation, county, municipality, authority, subdivision, instrumentality, or other agency contracting with the authority and any and all other persons who were or could have become parties to the proceedings.
(b) Revenue bonds issued by the authority shall not be subject to the limitations of term or interest set forth in the “Revenue Bond Law” or any other law.
(c) Notwithstanding the provisions of the “Revenue Bond Law,” in its resolution authorizing the issuance of revenue bonds, the authority, in its discretion, in lieu of specifying the rate or rates of interest which the revenue bonds are to bear, may state that the bonds when issued will bear interest at a rate or rates which may be fixed or variable, not exceeding a maximum per annum rate of interest specified in the resolution. The petition, complaint, notice to the district attorney, and notice to the public required to be filed or published under the “Revenue Bond Law” shall conform to the resolution authorizing the issuance of the revenue bonds.
It is found, determined, and declared that the carrying out of the purposes of the authority as defined in this article is in all respects for the benefit of the people of this state and that the purposes are public purposes; that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by this article; and that the activities authorized in this article will develop and promote trade, commerce, industry, and employment opportunities to the public good and the general welfare and promote the general welfare of the state. The state covenants with the holders of the revenue bonds that the authority shall be required to pay no taxes or assessments of the state or its municipalities or political subdivisions upon any of the property acquired or leased by it, or under its jurisdiction, control, possession, or supervision or upon its activities in the acquisition, construction, operation, or maintenance of the facilities erected or acquired by it, including the purchase of tangible personal property for such purposes, or any fees, rentals, or other charges, for the use of such facilities, or any other income received by the authority. Further, the state covenants that the revenue bonds of the authority, their transfer, and the income therefrom shall at all times be exempt from taxation within this state by the state or its municipalities or political subdivisions. Any exemption from taxation provided by this Code section shall not include exemption from sales and use taxes on sales made by the authority in transactions or to persons not otherwise exempt therefrom.
Revenue bonds issued under the authority of this article shall not be a security within the meaning of, and shall not otherwise be subject to any of the provisions of, Chapter 5 of this title, the “Georgia Uniform Securities Act of 2008.”
Any action to protect or enforce any rights under this article shall be brought in the Superior Court of Fulton County, Georgia, and any action pertaining to validation of any revenue bonds issued under this article shall likewise be brought in such court which shall have exclusive, original jurisdiction of such actions.
(a) The powers granted to the authority under this article are cumulative and not in derogation of the powers otherwise granted to the authority under this chapter.
(b) Without limitation of the foregoing, the authority shall have the power to pledge or assign as security for the payment of, and to apply in the payment of, any indebtedness incurred by the authority under paragraph (9) of subsection (b) of Code Section 10-9-4 any rents, revenues, earnings, and funds derived from or in connection with the facilities undertaken under this article or any project under this chapter or otherwise available to the authority for such purposes, as the authority may determine necessary or appropriate, subject to such limitations or priorities as may be established incident to the issuance of revenue bonds under this article.
As used in this article, the term:
(1) “Board” means the Board of Regents of the University System of Georgia.
(2) “Center” means the Advanced Technology Development Center created by the board and acknowledged and empowered to administer the fund by Article III, Section IX, Paragraph VI(g) of the Constitution of Georgia.
(3) “Enterprise” means a corporation, partnership, limited liability company, or other legal entity that has its principal place of business in this state and that is engaged in an entrepreneurial business, including, but not limited to, tenants of incubators. For the purposes of this article, an enterprise shall not be considered to be engaged in an entrepreneurial business unless it is engaged in innovative work in the areas of technology, bioscience, manufacturing, marketing, agriculture, or information related ventures that will increase the state's share of domestic or international markets. An enterprise engaged primarily in business of a mercantile nature shall not be considered engaged in an entrepreneurial business. An enterprise shall be required to be young, as determined by the center.
(4) “Equity contribution” means:
(A) Moneys from the fund used to make direct investments by the state in qualified securities of enterprises; and
(B) The capital of an investment entity contributed by the fund, as created in Code Section 10-10-3, and contributed by other investors, which capital shall be used by the investment entity to make investments in qualified securities of one or more enterprises as provided by this article and to pay the expenses of the investment entity but shall not include any current or accumulated income of the investment entity.
(5) “Fund” means the Seed-Capital Fund created in Code Section 10-10-3.
(6) “Incubator” means a facility that leases small units of space to tenants and which maintains or provides access to business development services for use by the tenants or member firms.
(7) “Investment entity” means a limited partnership, a limited liability company, or other legal entity, including, without limitation, any such entity as to which the state is the sole limited liability owner, providing limited liability to its owners that is formed to receive, in part, an investment by the fund or an equity return of investment from a fund loan and for which a general partner or manager manages the equity contributions by making investments in qualified securities of one or more enterprises or, in the case of an investment entity as to which the state is the sole limited liability owner, in another investment entity, as permitted by this article and by paying the expenses of the investment entity.
(8) “Loan” means an advance of money from the fund to an enterprise or an investment entity on such terms as the center shall set, including, but not limited to, an absolute promise to repay the principal amount of the loan made by the recipient enterprise, and any return on investment that the center may require as a term or condition of the loan, which may include, but not be limited to, simple or compound interest or any form of equity participation.
(9) “Qualified security” means any note, stock, treasury stock bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, preorganization certificate or subscription, transferable share, investment contract, certificate of deposit for a security, certificate of interest or participation in a patent or application therefor or in royalty or other payments under such a patent or application, or, in general, any interest or instrument commonly known as a security or any certificate for, receipt for, guarantee of, or option, warrant, or right to subscribe to or purchase any of the foregoing of an enterprise.
(10) “State” means the State of Georgia.
There is created the Seed-Capital Fund to be managed by the center under the authority of the board.
(a) The fund is created as a separate fund maintained by the board or a body designated by the board and shall be expended only as provided in this article. Pending their use as equity contributions or as loans, the moneys in the fund may be invested and reinvested in accordance with the investment policies authorized by the board or its designee. The entire cost of administration of the fund, including expenses of the center incurred in connection with the creation, operation, management, liquidation, and investment of fund moneys in enterprises, directly or through investment entities, may be paid from the assets of the fund. All moneys appropriated to or otherwise paid into the fund shall be presumptively concluded to have been committed to the purpose for which they have been appropriated or paid and shall not lapse.
(b) The fund shall consist of all moneys authorized by law for deposit in the fund, including, but not limited to, gifts, grants, private donations, and funds by government entities authorized to provide funding for the purposes authorized for use of the fund and any payments or returns on investments made by the center.
(c) In return for equity contributions by the fund, at the discretion of the center, the state shall receive either direct ownership of qualified securities of an enterprise or a limited liability ownership in an investment entity either directly or indirectly through an investment entity as to which the state is the sole limited liability owner as permitted in subsection (c) of Code Section 10-10-4 with rights accruing from investments in qualified securities by the investment entity. With respect to loans made from the fund, the state shall receive repayment of the loan in accordance with its terms, with cash proceeds or other assets from such repayments being deposited in or held through the fund. Additional returns to the state shall be secured through the establishment and growth of innovative enterprises that create new, value added products, processes, and services and encourage growth and diversification in the economy of the state.
(d) Disbursements from the fund shall be made upon the instruction of the center director in accordance with the policies of the board.
(e) The center, subject to the approval of the board or its designee, shall be authorized to contract and have contracts and other legal documents prepared to carry out the provisions of this article.
(f) The board shall have the authority to issue policies governing the management and operation of the fund as needed.
(a) The center, subject to the approval of the board or its designee, may authorize transfers from the fund to make equity contributions through the direct purchase of qualified securities of enterprises, subject to the center assuring itself that the following conditions will be satisfied:
(1) At least $3.00 of equity contributions has been committed in writing to the enterprise by persons other than the state for every $1.00 of equity contributions committed by the state from the fund to the enterprise;
(2) The center shall manage the investments of equity contributions in the qualified securities of enterprises so that the state shall not hold voting control of an enterprise;
(3) The total amount of equity contributions by the state made to an enterprise that originate from the fund, either directly or indirectly through an investment entity as permitted by subsections (b) and (c) of this Code section, and that are invested in qualified securities of an enterprise should ordinarily be no more than $1 million. Total equity contributions from the fund to an enterprise, directly or indirectly through an investment entity, may be greater than $1 million if, in the judgment of the center, the enterprise is in severe financial difficulty and an investment of a greater amount is necessary to preserve the initial investment in qualified securities;
(4) The amount of investment, directly or indirectly through an investment entity, by the fund in qualified securities issued by an enterprise should ordinarily not represent more than 49 percent of the enterprise's total qualified securities outstanding at the time such qualified securities are purchased by the fund, after giving effect to the conversion of all outstanding convertible qualified securities of the enterprise. An investment of an equity contribution from the fund may exceed 49 percent of the enterprise's total qualified securities outstanding if:
(A) In the case of direct investment, in the center's judgment, such greater investment is prudent; or
(B) In the case of indirect investment in the investment entity's judgment exercised in accordance with paragraph (5) of subsection (b) of this Code section, such greater investment is prudent;
(5) The center shall invest equity contributions in qualified securities of enterprises engaged in an entrepreneurial business only after receipt of an application from the enterprise that contains:
(A) A business plan including pro forma financial statements and a description of the enterprise and its management, product, and market;
(B) A statement of the amount, timing, and projected use of the capital required;
(C) A statement of the potential economic impact of the enterprise, including the number, location, and types of jobs expected to be created; and
(D) Such other information as the center shall request; and
(6) Approval of an equity contribution may be made after the center finds, based upon the application submitted by the enterprise and such additional investigation as the staff of the center shall make and incorporate in its records, that:
(A) The proceeds of the investment or financial assistance will be used only to cover the seed-capital needs of the enterprise except as authorized by paragraph (2) of this subsection;
(B) The enterprise has a reasonable chance of success;
(C) The fund's participation is instrumental to the success of the enterprise and its retention within the state;
(D) The enterprise has the reasonable potential to enhance employment opportunities within the state;
(E) The entrepreneur and other founders of the enterprise have already made or are contractually committed to make a substantial financial or time commitment to the enterprise;
(F) Any securities to be purchased are qualified securities;
(G) There is a reasonable possibility that the fund will recoup at least its initial investment or financial commitment; and
(H) Binding commitments have been made to the state by the enterprise for adequate reporting of financial data to the center, which shall include a requirement for an annual report or, if required by the center, an annual audit of the financial and operational records of the enterprise, and for such control on the part of the investment entity as considered prudent, over the management of the enterprise so as to protect the investment or financial commitment of the investment entity, including in the discretion of the entity and without limitation, right of access to financial and other records of the enterprise and membership or representation on the board of directors of the enterprise.
(b) The center, subject to the approval of the board or its designee, may authorize transfers directly from the fund or indirectly, as described in subsection (c) of this Code section, from an investment entity as to which the state is the sole limited liability owner, to make equity contributions to one or more investment entities whose structures, purposes, and operations are consistent with the criteria specified in this chapter. Investment entities to which the state, directly or indirectly, makes an equity contribution shall not expend any of the funds invested by the state unless and until the center has assured itself that the following conditions will be satisfied by such investment entity:
(1) Either:
(A) At least $3.00 of equity contributions has been committed in writing to the investment entity by persons other than the state for every $1.00 of equity contributions committed by the state from the fund or from an investment entity which the state is the sole limited liability owner of; or
(B) At least $1.00 of equity contributions has been committed in writing to the investment entity by persons other than the state for every $1.00 of equity contributions committed by the state from the fund or from an investment entity which the state is the sole limited liability owner of; provided, however, that no investment is to be made from such investment entity in qualified securities unless, in total, at least $3.00 of investment from sources other than the state, which may include funds from sources other than the investment entity and funds invested by the investment entity in the enterprise that are other than from equity contributions made by the state from the fund or from an investment entity which the state is the sole limited liability owner of, has been committed to such enterprise for every $1.00 of the state's portion of the amount invested in the qualified securities of such enterprise;
(2) The total amount of equity contributions by the state made to an investment entity that originate from the fund and that are ultimately invested by an investment entity in qualified securities of an enterprise, when added to any amounts invested by the fund directly in the enterprise's qualified securities, should ordinarily be no more than $1 million. In addition, the amount of investment by an investment entity in qualified securities issued by an enterprise should ordinarily not represent more than 49 percent of the total qualified securities at the time such qualified securities are purchased by the investment entity, after giving effect to the conversion of all outstanding convertible qualified securities of the enterprise; provided, however, that the investment in qualified securities of the enterprise by the investment entity can exceed 49 percent if, in the investment entity's judgment exercised in accordance with paragraph (5) of this subsection, such greater investment is prudent; and provided, further, that an amount greater than $1 million of funds attributable to equity contributions by the state from the fund may be invested by the investment entity in qualified securities of an enterprise if the enterprise is in severe financial difficulty and, in the judgment of the investment entity, an investment of such greater amount is necessary to preserve the initial investment in qualified securities;
(3) The investment entity shall make authorized investments in enterprises engaged in an entrepreneurial business only after receipt of an application from the enterprise that contains:
(A) A business plan including pro forma financial statements and a description of the enterprise and its management, product, and market;
(B) A statement of the amount, timing, and projected use of the capital required;
(C) A statement of the potential economic impact of the enterprise, including the number, location, and types of jobs expected to be created; and
(D) Such other information as the investment entity shall request;
(4) Approval of an investment may be made after the investment entity finds, based upon the application submitted by the enterprise and such additional investigation as the staff of the investment entity shall make and incorporate in its records, that:
(A) The proceeds of the investment or financial assistance will be used only to cover the seed-capital needs of the enterprise except as authorized by paragraph (2) of this subsection;
(B) The enterprise has a reasonable chance of success;
(C) The investment entity's participation is instrumental to the success of the enterprise and its retention within the state;
(D) The enterprise has the reasonable potential to enhance employment opportunities within the state;
(E) The entrepreneur and other founders of the enterprise have already made or are contractually committed to make a substantial financial or time commitment to the enterprise;
(F) Any securities to be purchased are qualified securities;
(G) There is a reasonable possibility that the investment entity will recoup at least its initial investment or financial commitment; and
(H) Binding commitments have been made to the investment entity by the enterprise for adequate reporting of financial data to the investment entity, which shall include a requirement for an annual report or, if required by the investment entity, an annual audit of the financial and operational records of the enterprise and, for such control on the part of the investment entity as considered prudent, over the management of the enterprise so as to protect the investment or financial commitment of the investment entity, including in the discretion of the entity and without limitation, right of access to financial and other records of the enterprise and membership or representation on the board of directors of the enterprise;
(5) The governing agreement of the investment entity provides that the care and judgment that management of the investment entity must exercise in the performance of its obligations shall be the judgment and care under the circumstances then prevailing and that persons of ordinary prudence, discretion, and intelligence exercise in the management of risk capital intended for investment at the early stages of organization and growth of a business that is:
(A) Expected to create, retain, or extend employment opportunities and economic growth in Georgia; and
(B) All other material matters being equal, developing technological advances that could be expected to result in the greatest increase in employment opportunity and economic growth in Georgia; and
(6) The governing agreement of the investment entity provides for distributions made by the investment entity to its partners or members that are proportionate to the capital committed or otherwise reflective of the ownership interests purchased by the partners or members.
(c) The center, subject to the approval of the board or its designee, may authorize transfers from the fund to make equity contributions to one or more investment entities as to which the state is the sole limited liability owner. Any such investment entities as to which the state is the sole limited liability owner shall be assigned for administrative purposes to the center within the meaning of Code Section 50-4-3. Such investment entities may make investments in other investment entities, which make equity contributions pursuant to subsection (b) of this Code section. Such investment entities may also make equity contributions through direct purchases of qualified securities of enterprises, subject to the center and the investment entity assuring themselves that the following conditions will be satisfied:
(1) At least $3.00 of equity contributions has been committed in writing to the enterprise by persons other than the state for every $1.00 of equity contributions committed by the state directly or indirectly from the fund to the enterprise;
(2) The center shall manage the investments of equity contributions in the qualified securities of enterprises so that the state shall not hold voting control of an enterprise;
(3) The total amount of equity contributions by the state made to an enterprise that originates from the fund, either directly or indirectly through an investment entity as permitted by subsection (b) of this Code section and this subsection, and that are invested in qualified securities of an enterprise should ordinarily be no more than $1 million. Total equity contributions from the fund to an enterprise, directly or indirectly through an investment entity, may be greater than $1 million if, in the judgment of the center, the enterprise is in severe financial difficulty and an investment of a greater amount is necessary to preserve the initial investment in qualified securities;
(4) The amount of investment, directly or indirectly through an investment entity, by the fund in qualified securities issued by an enterprise should ordinarily not represent more than 49 percent of the enterprise's total qualified securities outstanding at the time such qualified securities are purchased by the fund after giving effect to the conversion of all outstanding convertible qualified securities of the enterprise. An investment of an equity contribution from the fund may exceed 49 percent of the enterprise's total qualified securities outstanding if:
(A) In the case of direct investment, in the center's judgment, such greater investment is prudent; or
(B) In the case of indirect investment, in the investment entity's judgment exercised in accordance with paragraph (5) of subsection (b) of this Code section, such greater investment is prudent;
(5) The investment entity shall be authorized to make equity contributions in qualified securities of enterprises engaged in an entrepreneurial business only after receipt of an application from the enterprise that contains:
(A) A business plan including pro forma financial statements and a description of the enterprise and its management, product, and market;
(B) A statement of the amount, timing, and projected use of the capital required;
(C) A statement of the potential economic impact of the enterprise, including the number, location, and types of jobs expected to be created; and
(D) Such other information as the center shall request; and
(6) Approval of an equity contribution may be made after the investment entity finds, based upon the application submitted by the enterprise and such additional investigation as the staff of the center shall make and incorporate in its records, that:
(A) The proceeds of the investment or financial assistance will be used only to cover the seed-capital needs of the enterprise except as authorized by paragraph (2) of this subsection;
(B) The enterprise has a reasonable chance of success;
(C) The fund's participation is instrumental to the success of the enterprise and its retention within the state;
(D) The enterprise has the reasonable potential to enhance employment opportunities within the state;
(E) The entrepreneur and other founders of the enterprise have already made or are contractually committed to make a substantial financial or time commitment to the enterprise;
(F) Any securities to be purchased are qualified securities;
(G) There is a reasonable possibility that the fund will recoup at least its initial investment or financial commitment; and
(H) Binding commitments have been made to the state by the enterprise for adequate reporting of financial data to the center, which shall include a requirement for an annual report or, if required by the center, an annual audit of the financial and operational records of the enterprise, and for such control on the part of the investment entity as considered prudent, over the management of the enterprise so as to protect the investment or financial commitment of the investment entity, including in the discretion of the entity and, without limitation, right of access to financial and other records of the enterprise and membership or representation on the board of directors of the enterprise.
The center, subject to the approval of the board or its designee, may authorize transfers from the fund to make unsecured or secured loans. With respect to such loans, the center, acting on behalf of the state and the fund, shall have the authority to sell loans, mortgages, security interests, and other obligations held by the state through the fund at public or private sale; to negotiate modifications or alterations in loans, mortgages, security interests, and other obligations held by the fund; to foreclose on any security interest in default or commence any action to protect or enforce any right conferred upon it by any law, mortgage, security agreement, deed of trust, deed to secure debt, contract, or other agreement; to bid for and purchase property which was the subject of such loan, mortgage, security interest, or other obligation held by the fund at any foreclosure or at any other sale; to acquire or take possession of such property; and to exercise any and all rights as provided by law or contract for the benefit or protection of the fund.
All distributions made by an investment entity allocable to the state's limited partner interest or membership interest therein; all cash proceeds with respect to any loan, whether interest, the repayment of principal, or other amounts; or proceeds of the sale or transfer of qualified securities held directly by the fund shall be deposited in the fund for future investment in other investment entities, in other qualified securities of enterprises, for making loans as provided in this article, or to pay the cost of administration of the fund as provided in this article.
The center, on behalf of the board, shall publish in print or electronically an annual report which shall be made available to the Governor, the General Assembly, the Department of Economic Development or any successor agency, the chairperson of the House Committee on Economic Development and Tourism, the chairperson of the Senate Economic Development Committee, and the board setting forth in detail the operations and transactions conducted by it pursuant to this chapter. The annual report shall specifically account for the ways in which the needs, mission, and programs of the center described in this chapter have been carried out. The center shall distribute its annual report by such means that will make it widely available to those innovative enterprises of special importance to the Georgia economy. The center shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the annual report in the manner which it deems to be most effective and efficient.
Pursuant to the authority granted in Article III, Section IX, Paragraph VI(g) of the Constitution, there is hereby created the Invest Georgia Fund as a distinct component of the Seed-Capital Fund. The General Assembly declares that its purpose in creating the Invest Georgia Fund and enacting this legislation is to increase the amount of private investment capital available in this state for Georgia based business enterprises in the seed, early, or growth stages of business development and which require funding, as well as for established Georgia based business enterprises developing new methods or technologies, including the promotion of research and development purposes, thereby increasing employment, creating additional wealth, and otherwise benefitting the economic welfare of the people of this state. Accordingly, it is the intention of the General Assembly that the Invest Georgia Fund make investments in support of Georgia based business enterprises in accordance with the investment policy authorized and required under this article and focus its investment policy principally on venture capital funds and private equity organizations that invest in Georgia based business enterprises.
As used in this article, the term:
(1) “Affiliate” means:
(A) A person who, directly or indirectly, beneficially owns, controls, or holds power to vote any outstanding voting securities or other voting ownership interests of a venture capital firm; or
(B) A person whose outstanding voting securities or other voting ownership interests are directly or indirectly beneficially owned, controlled, or held with power to vote by a venture capital firm.
(2) “Board” means the Invest Georgia Board created under Code Section 10-10-12.
(3) “Center” means the Advanced Technology Development Center.
(4) “Contributed capital” means the amount of money contributed to the Invest Georgia Fund by any authorized method.
(5) “Designated capital” means the amount of money committed and invested by the Invest Georgia Fund into individual early stage venture capital funds or growth stage venture capital funds.
(6) “Early stage venture capital fund” means:
(A) A fund that has at least one principal employed to direct the investment of the designated capital;
(B) A fund whose principals have at least five years of experience in the venture capital, angel capital, or private equity sector by investing primarily in Georgia domiciled companies or a fund whose managers have been based, as defined by having an office, in the State of Georgia;
(C) At the discretion of the fund administrator and the board, one or more early stage venture capital funds that are first-time Georgia based funds, so long as the fund managers have at least five years of experience in venture capital or angel capital investing in Georgia based business enterprises; and
(D) A fund which has as its primary investment strategy the achievement of transformational economic development outcomes through focused investments of capital in seed or early stage businesses with high growth potential. The fund principals must have demonstrated the ability to lead investment rounds, advise and mentor entrepreneurs, and facilitate follow-on investments. A minimum of 10 percent of the committed capital of the fund must be committed by the institutional investors, fund principals, or other accredited investors.
(7) “Fund administrator” means a state appointed investment advisory firm consisting of experienced investment professionals that will actively pursue investment opportunities for the State of Georgia. The investment advisory firm will evaluate and select Georgia based venture capital funds, in conjunction with the Invest Georgia Board, through a rigorous due diligence process.
(8) “Growth stage venture capital fund” means:
(A) A fund having its principal office and a majority of its employees in Georgia that has at least two principals employed to direct the investment of the designated capital;
(B) A fund whose principals have at least five years of experience in the venture capital, angel capital, or private equity sector by investing primarily in Georgia domiciled companies or a fund whose principals have been based, as defined by having an office in the State of Georgia; and
(C) A fund which has as its primary investment strategy the achievement of transformational economic development outcomes through focused investments of capital in growth stage businesses with high return potential. The fund principals must have demonstrated the ability to lead investment rounds, advise and mentor entrepreneurs, and facilitate follow-on investments. A minimum of 50 percent of the committed capital of the fund must be committed by the institutional investors, fund principals, or other accredited investors.
(9) “Invest Georgia Fund” means the fund created under the provisions of Code Section 10-10-15 to hold the money collected for the purposes of this article.
(10) “Qualified distribution” means any distribution or payment by the Invest Georgia Fund in connection with any of the following:
(A) Costs and expenses of forming, syndicating, and organizing the Invest Georgia Fund, including fees paid for professional services, and the costs of financing and insuring the obligations of the Invest Georgia Fund, provided such payments are not made to a participating investor;
(B) An annual management fee in accordance with a fund's partnership agreement, and consistent with such fund's other private investors, to offset the costs and expenses of managing and operating the Invest Georgia Fund; or
(C) Reasonable and necessary fees in accordance with industry custom for ongoing professional services, including, but not limited to, legal and accounting services related to the operation of the Invest Georgia Fund, but not including any lobbying or governmental relations.
(11) “Qualified early stage business” or “seed” business means a business that, at the time of the first investment in the business by a venture capital firm:
(A) Has its headquarters located in the State of Georgia;
(B) Has its principal business operations located in the State of Georgia and intends to maintain its principal business operations in this state after receiving an investment from the venture capital firm. In order to discourage the business from relocating outside Georgia within three years from the date of an initial investment, the investment in the business shall be subject to redemption by the venture capital firm within one year from the time the business relocates its principal business operations outside this state, unless the business maintains a significant presence in Georgia as determined by relative number of employees or relative assets remaining in Georgia following the relocation;
(C) Has 20 or fewer employees;
(D) Has a current gross annual revenue run rate of less than $1 million;
(E) Has not obtained during its existence more than $2 million in aggregate cash proceeds from the issuance of its equity or debt investments, not including commercial loans from chartered banks or savings and loan institutions; and
(F) Does not engage substantially in:
(i) Retail sales;
(ii) Real estate development or construction;
(iii) Entertainment, amusement, recreation, or athletic or fitness activity for which an admission is charged;
(iv) The business of insurance, banking, lending, financial, brokerage, or investment activities;
(v) Natural resource extraction, including, but not limited to, oil, gas, or biomass; or
(vi) The provision of professional services by accountants, attorneys, or physicians.
A business classified as a qualified early stage business at the time of the first qualified investment in such business shall remain classified as a qualified early stage business and may receive continuing qualified investments from venture capital firms participating in the Invest Georgia Fund. Continuing investments shall constitute qualified investments even though the business may not meet the definition of a qualified early stage business at the time of such continuing investments.
(12) “Qualified growth stage business” means a business that, at the time of the first investment in the business by a venture capital firm:
(A) Has its headquarters located in the State of Georgia;
(B) Is a corporation, limited liability company, or a general or limited partnership located in this state;
(C) Has its principal business operations located in the State of Georgia and intends to maintain its principal business operations in this state after receiving an investment from the venture capital firm. In order to discourage the business from relocating outside Georgia within three years from the date of initial investment, the investment in the business shall be subject to redemption by the venture capital firm within one year from the time the business relocates its principal business operations outside this state, unless the business maintains a significant presence in Georgia as determined by relative number of employees or relative assets remaining in Georgia following the relocation;
(D) Has 100 or fewer employees;
(E) Has a current gross annual revenue run rate of more than $1 million; and
(F) Does not engage substantially in:
(i) Retail sales;
(ii) Real estate development or construction;
(iii) Entertainment, amusement, recreation, or athletic or fitness activity for which an admission is charged;
(iv) The business of insurance, banking, lending, financial, brokerage, or investment activities;
(v) Natural resource extraction, including, but not limited to, oil, gas, or biomass; or
(vi) The provision of professional services by accountants, attorneys, or physicians.
A business classified as a qualified growth stage business at the time of the first qualified investment in such business shall remain classified as a qualified growth stage business and may receive continuing qualified investments from venture capital firms participating in the Invest Georgia Fund. Continuing investments shall constitute qualified investments even though the business may not meet the definition of a qualified growth stage business at the time of such continuing investments.
(13) “Qualified investment” means the investment of money by the Invest Georgia Fund in each early stage venture capital fund or growth stage venture capital fund selected by the fund administrator.
(a) There is hereby created the Invest Georgia Board, which shall exercise the powers and perform the duties prescribed by this article. The exercise by the board of its powers and duties is hereby declared to be an essential state governmental function. The board shall be subject to all laws generally applicable to state agencies and public officials, to the extent those laws do not conflict with the provisions of this article.
(b) The board shall consist of three members appointed by the Governor, one member appointed by the Lieutenant Governor, and one member appointed by the Speaker of the House of Representatives. Each appointed member shall be a resident of Georgia and shall have experience in at least one of the following areas:
(1) Early stage, angel, or venture capital investing;
(2) Growth stage venture capital investing;
(3) Fund of funds management; or
(4) Entrepreneurship.
No member of the board shall be an affiliate of any venture capital fund that is selected to perform services for the board or of an insurance company.
(c) The commissioner of economic development and a member of the One Georgia Authority or their designees shall serve as nonvoting members of the board.
(d) Initial appointees to the board shall serve staggered terms, with all of the initial terms beginning within 30 days of April 29, 2013. The terms of one member appointed by the Governor and the members appointed by the Lieutenant Governor and the Speaker of the House of Representatives shall expire on December 31, 2016. The terms of the other two initial appointments by the Governor shall expire on December 31, 2018. Thereafter, terms of office for all appointees shall be for four years, with each term ending on the same day of the same month as did the term that it succeeds. A vacancy on the board shall be filled in the same manner as the original appointment, except that a person appointed to fill a vacancy shall be appointed to the remainder of the unexpired term. Any appointed member of the board shall be eligible for reappointment.
(e) A member of the board may be removed by such member's appointing official for misfeasance, willful neglect of duty, or other cause, after notice and a public hearing, unless the notice and hearing are waived in writing by such member.
(f) Members of the board shall serve without compensation. The Governor shall designate a member of the board to serve as chairperson. A majority of the voting members of the board shall constitute a quorum, and the affirmative vote of a majority of the voting members present shall be necessary for any action taken by the board. A vacancy in the membership of the board shall not impair the right of a quorum to exercise all rights and perform all duties of the board.
(g) The board shall have the power:
(1) To have a seal and alter the same at its pleasure;
(2) To acquire by purchase, lease, or otherwise, including acquisition of land from the state government, and to hold, lease, and dispose of real and personal property of every kind and character for its corporate purpose and to enter into any contracts, leases, or other charges for the use of property or services of the board and collect and use the same as necessary to operate the board; and to accomplish any of the purposes of this article and make any purchases or sales necessary for such purposes;
(3) To acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper, real property, or rights or easements therein, or franchises necessary or convenient for its corporate purpose, and to use the same so long as its corporate existence shall continue, and to lease or make contracts with respect to the use of such property, or dispose of the same in any manner it deems to be to the best advantage of the board;
(4) To appoint, select, and employ officers, agents, and employees, including real estate, environmental, engineering, architectural, and construction experts, fiscal agents, and attorneys, and to fix their respective compensations;
(5) To make contracts and leases and to execute all instruments necessary or convenient. Any and all persons, firms, and corporations and any and all political subdivisions, departments, institutions, authorities, or agencies of the state and federal government are authorized to enter into contracts, leases, or agreements with the board upon such terms and for such purposes as they deem advisable; and, without limiting the generality of the foregoing, authority is specifically granted to municipal corporations, counties, political subdivisions, and to the board relative to entering into contracts, lease agreements, or other undertakings authorized between the board and private corporations, both inside and outside this state, and between the board and public bodies, including counties and cities outside this state and the federal government;
(6) To accept loans and grants of money or materials or property of any kind from the United States of America or any agency or instrumentality thereof upon such terms and conditions as the United States of America or such agency or instrumentality may require;
(7) To accept loans and grants of money or materials or property of any kind from the State of Georgia or any authority, agency, or instrumentality or political subdivision thereof upon such terms and conditions as the State of Georgia or such authority, agency, or instrumentality or political subdivision may require;
(8) To exercise any power usually possessed by private corporations performing similar functions, provided that no such power is in conflict with the Constitution or general laws of this state; and
(9) To do all things necessary or convenient to carry out the powers expressly given in this article.
(h) The center shall provide the board with office space and such technical assistance as the board requires, and the board shall be attached to the center for administrative purposes. The center shall also consult with the board in connection with the administration of the Invest Georgia Fund created under this article.
The board's primary responsibilities shall include:
(1) Establishing an investment policy for the selection of a fund administrator;
(2) Selecting a fund administrator to administer the provisions of this article;
(3) Giving final approval to allocations of designated capital to the venture capital funds selected by the fund administrator;
(4) Executing and overseeing the contracts of the fund administrator in order to assure compliance with this article; and
(5) Establishing a policy with respect to use of capital and profits returned to the state pursuant to the provisions of Code Section 10-10-19.
(a) The fund administrator shall be selected by the board through a transparent open bid process and shall be responsible for administering the Invest Georgia Fund and for making all venture capital fund selections in accordance with the investment policies developed by the board or contained in this article.
(b) The fund administrator shall be responsible for selecting a group of Georgia based venture capital funds in two categories, seed or early stage venture capital funds and growth stage venture capital funds.
(c) The early stage venture capital funds shall invest primarily in early or seed stage businesses and shall be selected using a transparent open bid process pursuant to guidelines developed by the board. The fund administrator shall ensure that a diverse cross section of industry sectors is represented by the selected funds, including technology, health care, life sciences, agribusiness, logistics, energy, and advanced manufacturing.
(d) The growth stage venture capital funds shall be selected using a transparent open bid process pursuant to guidelines developed by the board. The fund administrator shall ensure that a diverse cross section of industry sectors is represented by the selected funds, including technology, health care, life sciences, agribusiness, logistics, energy, and advanced manufacturing.
(e) In the selection of the early stage venture capital funds and the growth stage venture capital funds, the fund administrator shall consider the following factors:
(1) The management structure of the venture capital fund, including:
(A) The investment experience of the principals;
(B) The applicant's reputation in the venture capital firm industry and the applicant's ability to attract coinvestment capital and syndicate investments in qualified businesses in Georgia;
(C) The knowledge, experience, and capabilities of the applicant in subject areas relevant to venture stage businesses in Georgia; and
(D) The tenure and turnover history of principals and senior investment professionals of the venture capital fund;
(2) The venture capital fund's investment strategy, including:
(A) The applicant's record of performance in investing in early and growth stage businesses;
(B) The applicant's history of attracting coinvestment capital and syndicate investments;
(C) The soundness of the applicant's investment strategy and the compatibility of that strategy with business opportunities in Georgia; and
(D) The applicant's history of job creation through investment;
(3) The venture capital fund's commitment to making investments that, to the fullest extent possible:
(A) Create employment opportunities in Georgia;
(B) Lead to the growth of the Georgia economy and qualified businesses in Georgia;
(C) Complement the research and development projects of Georgia academic institutions; and
(D) Foster the development of technologies and industries that present opportunities for the growth of qualified businesses in Georgia; and
(4) The venture capital fund's commitment to Georgia, including:
(A) The applicant's presence in Georgia through permanent local offices or affiliation with local investment firms;
(B) The local presence of senior investment professionals;
(C) The applicant's history of investing in early and growth stage businesses in Georgia;
(D) The applicant's ability to identify investment opportunities through working relationships with Georgia research and development institutions and Georgia based businesses; and
(E) The applicant's commitment to investing an amount that matches or exceeds the amount of the applicant's designated capital received under this article in Georgia based qualified early stage businesses and qualified growth stage businesses.
(f) A venture capital fund shall file an application with the board in the form required by the fund administrator. The board shall begin accepting applications no later than 60 days after the initial appointments.
(a) The Invest Georgia Fund is created as a separate fund maintained by the board, and moneys shall be expended only as provided in this article.
(b) The Invest Georgia Fund shall be capitalized through grants from the Seed-Capital Fund, designated appropriations to the center, and private contributions to the board.
(c) The capital raised shall be periodically distributed to the venture capital funds selected by the fund administrator pursuant to Code Section 10-10-14.
(d) All moneys appropriated to or otherwise paid into the Invest Georgia Fund shall be presumptively concluded to have been committed to the purpose for which they have been appropriated or paid and shall not lapse.
(e) The entire cost of administration of the Invest Georgia Fund, including expenses of the center incurred in connection with the creation, operation, management, liquidation, and investment of fund moneys may be paid from the assets of the Invest Georgia Fund.
The Invest Georgia Fund may be funded over a five-year period through guidelines developed by the board. In the first year of the Invest Georgia Fund, the state may provide $10 million to the Invest Georgia Fund; in the second year, $15 million; in the third year, $15 million; in the fourth year, $25 million; and in the fifth year, $35 million.
(a) As soon as practicable after the board receives contributed capital, the board and each selected venture capital fund that has been allocated designated capital shall enter into a contract under which the allocated amount of designated capital shall be committed by the board to the selected venture capital funds for investment pursuant to this article.
(b) The board shall allocate designated capital as follows:
(1) Early stage venture capital funds: 40 percent of the total contributed capital in the Invest Georgia Fund shall be allocated among the early stage venture capital funds, in accordance with the following eligibility conditions and requirements:
(A) Each early stage venture capital fund shall be eligible for a minimum of $10 million, up to a maximum of $15 million allocation over a five-year period or in accordance with the early stage venture capital fund's partnership agreement and concurrent with the contributions of the early stage venture capital fund's other investors;
(B) Each early stage venture capital fund shall be required to obtain other independent investors. A minimum of 10 percent of the committed capital of the early stage venture capital fund shall be committed by independent institutional investors, early stage venture capital fund principals, or other accredited investors; and
(C) Each early stage venture capital fund shall be required to commit, via a side letter or otherwise, to invest in Georgia based qualified early stage businesses and qualified growth stage businesses an amount that matches or exceeds the amount of the early stage venture capital fund's designated capital received under this article;
(2) Growth stage venture capital funds: 60 percent of the total contributed capital in the Invest Georgia Fund shall be allocated among the growth stage venture capital funds, in accordance with the following eligibility conditions and requirements:
(A) Each growth stage venture capital fund shall be eligible for an allocation of a minimum of $10 million designated capital over a five-year period or in accordance with the growth stage venture capital fund's partnership agreement and concurrent with the contributions of the growth stage venture capital fund's other investors;
(B) Each growth stage venture capital fund shall be required to obtain other independent investors. A minimum of 50 percent of the committed capital of the growth stage venture capital fund shall be committed by independent institutional investors, growth stage venture capital fund principals, or other accredited investors; and
(C) Each growth stage venture capital fund shall be required to commit, via a side letter or otherwise, to invest in Georgia based qualified early stage businesses and qualified growth stage businesses an amount that matches or exceeds the amount of the growth stage venture capital fund's designated capital received under this article.
(a) Not later than December 31 of each year, each venture capital fund shall report to the board:
(1) The amount of designated capital remaining uninvested at the end of the preceding calendar year;
(2) All qualified investments made during the preceding calendar year, including the number of employees of each business at the time the qualified investment was made and as of December 31 of that year;
(3) For any qualified investment in which the venture capital fund no longer has a position as of the end of the calendar year, the number of employees of the business as of the date the investment was terminated; and
(4) Any other information the board requires to ascertain the impact of this article on the economy of Georgia.
(b) Not later than 180 days after the end of its fiscal year, each venture capital fund shall provide to the board an audited financial statement that includes the opinion of an independent certified public accountant.
(c) Not later than 60 days after the sale or other disposition of a qualified investment, the selling venture capital fund shall provide to the board a report on the amount of the interest sold or disposed of and the consideration received for the sale or disposition.
Designated capital and investment returns resulting from the qualified investments made under this article shall be retained and used to make additional qualified investments in venture capital funds selected by the fund administrator; provided, however, that the Invest Georgia Fund shall receive any and all returns representing the principal portion of designated capital and shall receive 80 percent of investment returns in excess of designated capital from each respective venture capital fund with the remaining 20 percent of investment returns in excess of designated capital retained by each respective venture capital fund in accordance with such venture capital fund's partnership agreement.
(a)(1) On or before January 1, 2015, and January 1 of each subsequent year, the fund administrator, through the board, shall submit a report on the implementation of this article to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the Senate Finance Committee and the House Committee on Ways and Means.
(2) The center shall also publish the report on the center's website in a publicly available format.
(3) The report published on the website shall not include any proprietary or confidential information.
(b) The report shall include:
(1) With respect to each venture capital fund or private equity organization that has received an allocation of designated capital:
(A) The name and address of the venture capital fund or private equity organization;
(B) The names of the individuals making qualified investments under this article;
(C) The amount of designated capital received during the previous year;
(D) The cumulative amount of designated capital received;
(E) The amount of designated capital remaining uninvested at the end of the preceding calendar year;
(F) The names and locations of qualified businesses receiving designated capital and the amount of each qualified investment;
(G) The annual performance of each qualified investment, including the qualified investment's fair market value as calculated according to generally accepted accounting principles; and
(H) The amount of any qualified distribution or nonqualified distribution taken during the prior year, including any management fee;
(2) With respect to the Invest Georgia Fund:
(A) The amount of designated capital received during the previous year;
(B) The cumulative amount of designated capital received;
(C) The amount of designated capital remaining uninvested at the end of the preceding calendar year;
(D) The names and locations of qualified businesses receiving designated capital and the amount of each qualified investment; and
(E) The annual performance of each qualified investment, including the qualified investment's fair market value as calculated according to generally accepted accounting principles; and
(3) With respect to the qualified businesses in which venture capital funds have invested:
(A) The classification of the qualified businesses according to the industrial sector and the size of the business;
(B) The total number of jobs created in Georgia by the investment and the average wages paid for the jobs; and
(C) The total number of jobs retained in Georgia as a result of the investment and the average wages paid for the jobs.
As used in this chapter, the term:
(1) “Business record” means letters, words, sounds, or numbers, or the equivalent of letters, words, sounds, or numbers, recorded in the operation of a business by handwriting, typewriting, printing, photostat, photograph, magnetic impulse, mechanical or electronic recording, or another form of data compilation.
(2) “Reproduction” means a counterpart of an original business record created by production from the same impression on the same matrix as the original; photograph, including an enlargement or miniature; mechanical or electronic rerecording; chemical reproduction; or another technique that accurately reproduces the original.
Unless a specific period is designated by law for their preservation, business records which persons pursuant to the laws of this state are required to keep or preserve may be destroyed after the expiration of three years from the making of such records without constituting an offense under such laws. This Code section does not apply to minute books of corporations or to records of sales or other transactions involving weapons or poisons capable of use in the commission of crimes.
If, in the regular course of business, a person makes reproductions of original business records, the preservation of such reproductions constitutes compliance with any laws of this state requiring that business records be kept or preserved.
This chapter shall be known and may be cited as the “Uniform Electronic Transactions Act.”
As used in this chapter, the term:
(1) “Agreement” means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures, given the effect of agreements under laws otherwise applicable to a particular transaction.
(2) “Automated transaction” means a transaction conducted or performed, in whole or in part, by electronic means or electronic records in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.
(3) “Computer program” means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.
(4) “Contract” means the total legal obligation resulting from the parties' agreement as affected by this chapter and other applicable law.
(5) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(6) “Electronic agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances, in whole or in part, without review or action by an individual.
(7) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(8) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(9) “Governmental agency” means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.
(10) “Information” means data, text, images, sounds, codes, computer programs, software, data bases, or the like.
(11) “Information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.
(12) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(13) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) “Security procedure” means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.
(15) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.
(16) “Transaction” means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.
(a) Except as otherwise provided in subsection (b) of this Code section, this chapter shall apply to electronic records and electronic signatures relating to a transaction.
(b) This chapter shall not apply to a transaction to the extent it is governed by:
(1) A law governing the creation and execution of wills, codicils, or testamentary trusts;
(2) Title 11 other than Code Section 11-1-306, Article 2, and Article 2A; or
(3) The Uniform Computer Information Transactions Act.
(c) This chapter shall apply to an electronic record or electronic signature otherwise excluded from the application of this chapter under subsection (b) of this Code section to the extent it is governed by a law other than those specified in subsection (b) of this Code section.
(d) A transaction subject to this chapter shall also be subject to other applicable substantive law.
(e) A governmental agency which is a party to a transaction subject to this chapter shall also be further subject to the records retention requirements for state and local government records established by state law.
This chapter shall apply to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after July 1, 2009.
(a) This chapter shall not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
(b) This chapter shall apply only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection shall not be waived by agreement.
(d) Except as otherwise provided in this chapter, the effect of any of this chapter's provisions may be varied by agreement. The presence in certain provisions of this chapter of the words “unless otherwise agreed,” or words of similar import, shall not imply that the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has legal consequences shall be determined by this chapter and other applicable laws.
This chapter shall be construed and applied:
(1) To facilitate electronic transactions consistent with other applicable laws;
(2) To be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and
(3) To effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
(a) A record or signature shall not be denied legal effect or enforceability solely because it is in electronic form.
(b) A contract shall not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record shall satisfy the law.
(d) If a law requires a signature, an electronic signature shall satisfy the law.
(a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement shall be satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
(b) If a law other than this chapter requires a record to be posted or displayed in a certain manner; to be sent, communicated, or transmitted by a specified method; or to contain information that is formatted in a certain manner, the following rules shall apply:
(1) The record shall be posted or displayed in the manner specified in the other law;
(2) Except as otherwise provided in paragraph (2) of subsection (d) of this Code section, the record shall be sent, communicated, or transmitted by the method specified in the other law; and
(3) The record shall contain the information formatted in the manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record shall not be enforceable against the recipient.
(d) The requirements of this Code section shall not be varied by agreement, but:
(1) To the extent a law other than this chapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) of this Code section that the information be in the form of an electronic record capable of retention may also be varied by agreement; and
(2) A requirement under a law other than this chapter to send, communicate, or transmit a record by first-class mail, postage prepaid, or by regular United States mail may be varied by agreement to the extent permitted by the other law.
(a) An electronic record or electronic signature shall be attributable to a person if such record or signature was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to whom the electronic record or electronic signature was attributable.
(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) of this Code section shall be determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.
If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules shall apply:
(1) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record;
(2) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(A) Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;
(B) Takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and
(C) Has not used or received any benefit or value from the consideration, if any, received from the other person;
(3) If neither paragraph (1) nor paragraph (2) of this Code section applies, the change or error shall have the effect provided by other law, including the law of mistake, and the parties' contract, if any; and
(4) Paragraphs (2) and (3) of this Code section shall not be varied by agreement.
If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, such requirement shall be satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
(a) If a law requires that a record be retained, such requirement shall be satisfied by retaining an electronic record of the information in the record which:
(1) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and
(2) Remains accessible for the retention period required by law.
(b) A requirement to retain a record in accordance with subsection (a) of this Code section shall not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.
(c) A person may satisfy subsection (a) of this Code section by using the services of another person if the requirements of that subsection are satisfied.
(d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a) of this Code section.
(e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a) of this Code section.
(f) A record retained as an electronic record in accordance with subsection (a) of this Code section shall satisfy a law requiring a person to retain a record for evidentiary, audit, or like purposes unless a law enacted after July 1, 2009, specifically prohibits the use of an electronic record for the specified purpose.
(g) This Code section shall not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction.
(h) This Code section shall not preclude the Georgia Technology Authority from specifying additional technology requirements in accordance with Code Section 50-25-4.
In a proceeding, evidence of a record or signature shall not be excluded solely because it is in electronic form.
In an automated transaction, the following rules shall apply:
(1) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements;
(2) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance; and
(3) The terms of the contract are determined by the substantive law applicable to the contract.
(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when:
(1) It is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;
(2) It is in a form capable of being processed by that system; and
(3) It enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.
(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:
(1) It enters an information processing system that the recipient has designated or uses for receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and
(2) It is in a form capable of being processed by that system.
(c) Subsection (b) of this Code section shall apply even if the information processing system is located in a different place than the electronic record is deemed to be received under subsection (d) of this Code section.
(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this subsection, the following rules shall apply:
(1) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction; and
(2) If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be.
(e) An electronic record is received under subsection (b) of this Code section even if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) of this Code section shall establish that a record was received but, by itself, does not establish that the content sent corresponds to the content received.
(g) If a person is aware that an electronic record purportedly sent under subsection (a) of this Code section, or purportedly received under subsection (b) of this Code section, was not actually sent or received, the legal effect of the sending or receipt shall be determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection shall not be varied by agreement.
(a) As used in this Code section, “transferable record” means an electronic record that:
(1) Would be a note under Article 3 of Title 11 or a document under Article 7 of Title 11 if the electronic record were in writing; and
(2) The issuer of the electronic record expressly has agreed is a transferable record.
(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
(c) A system satisfies subsection (b) of this Code section, and a person is deemed to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:
(1) A single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5), and (6) of this subsection, unalterable;
(2) The authoritative copy identifies the person asserting control as:
(A) The person to which the transferable record was issued; or
(B) If the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred;
(3) The authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(4) Copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;
(5) Each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(6) Any revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in Code Section 11-1-201, of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under Title 11, including, if the applicable statutory requirements under subsection (a) of Code Section 11-3-302 or Code Section 11-7-501 or 11-9-308 are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this subsection.
(e) Except as otherwise agreed, an obligor under a transferable record shall have the same rights and defenses as an equivalent obligor under equivalent records or writings under Title 11.
(f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
Each governmental agency of this state shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.
(a) Except as otherwise provided in subsection (f) of Code Section 10-12-12, each governmental agency of this state shall determine whether, and the extent to which, it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures.
(b) To the extent that a governmental agency uses electronic records and electronic signatures under subsection (a) of this Code section, the governmental agency, giving due consideration to security, may specify:
(1) The manner and format in which the electronic records shall be created, generated, sent, communicated, received, and stored and the systems established for those purposes;
(2) If electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature shall be affixed to the electronic record, and the identity of, or criteria that shall be met by, any third party used by a person filing a document to facilitate the process;
(3) Control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(4) Any other required attributes for electronic records which are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.
(c) Except as otherwise provided in subsection (f) of Code Section 10-12-12, this chapter shall not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures.
Any governmental agency of this state which adopts standards pursuant to Code Section 10-12-18 may encourage and promote consistency and interoperability with similar requirements adopted by other governmental agencies of this and other states and the federal government and nongovernmental persons interacting with governmental agencies of this state. If appropriate, those standards may specify differing levels of standards from which governmental agencies of this state may choose in implementing the most appropriate standard for a particular application.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
(a) Cigarette smoking presents serious public health concerns to the state and to the citizens of the state. The Surgeon General has determined that smoking causes lung cancer, heart disease, and other serious diseases, and that there are hundreds of thousands of tobacco-related deaths in the United States each year. These diseases most often do not appear until many years after the person in question begins smoking.
(b) Cigarette smoking also presents serious financial concerns for the state. Under certain health-care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance.
(c) Under these programs, the state pays millions of dollars each year to provide medical assistance for these persons for health conditions associated with cigarette smoking.
(d) It is the policy of the state that financial burdens imposed on the state by cigarette smoking be borne by tobacco product manufacturers rather than by the state to the extent that such manufacturers either determine to enter into a settlement with the state or are found culpable by the courts.
(e) On November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the “Master Settlement Agreement,” with the state. The Master Settlement Agreement obligates these manufacturers, in return for a release of past, present, and certain future claims against them as described therein, to pay substantial sums to the state (tied in part to their volume of sales); to fund a national foundation devoted to the interests of public health; and to make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.
(f) It would be contrary to the policy of the state if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably. It is thus in the interest of the state to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.
As used in this chapter, the term:
(1) “Adjusted for inflation” means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the Master Settlement Agreement.
(2) “Affiliate” means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms “owns,” “is owned,” and “ownership” mean ownership of an equity interest, or the equivalent thereof of 10 percent or more, and the term “person” means an individual, partnership, committee, association, corporation, or any other organization or group of persons.
(3) “Allocable share” means Allocable Share as that term is defined in the Master Settlement Agreement.
(4) “Cigarette” means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (A) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (B) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (C) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (A) of this definition. The term “cigarette” includes “roll-your-own” (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of “cigarette,” 0.09 ounces of “roll-your-own” tobacco shall constitute one individual “cigarette.”
(5) “Importer” means any person in the United States to whom nonfederal excise tax-paid cigarettes manufactured in a foreign country are shipped or consigned, any person who removes cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse, or any person who smuggles or otherwise unlawfully brings cigarettes into the United States.
(6) “Master Settlement Agreement” means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.
(7) “Qualified escrow fund” means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1 billion where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the funds' principal except as consistent with subparagraph (B) of paragraph (2) of Code Section 10-13-3. The principal balance in the qualified escrow fund must always be maintained so that both the face value and the cost basis of the account are each equal to or greater than the accumulated principal deposits.
(8) “Released claims” means Released Claims as that term is defined in the Master Settlement Agreement.
(9) “Releasing parties” means Releasing Parties as that term is defined in the Master Settlement Agreement.
(10) “Tobacco product manufacturer” means an entity that after April 28, 1999, directly (and not exclusively through any affiliate):
(A) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);
(B) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or
(C) Becomes a successor of an entity described in subparagraph (A) or (B) of this paragraph.
The term “tobacco product manufacturer” shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subparagraphs (A) through (C) of this paragraph.
(11) “Units sold” means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question, on packs required to bear a tax stamp pursuant to Code Section 48-11-3 and on “roll-your-own” tobacco on which excise tax is due either by tax stamp or pursuant to an alternate method of taxation. “Units sold” does not include cigarettes the purchase or use of which the state is prohibited from taxing under the Constitution or statutes of the United States. The state revenue commissioner and the Attorney General may promulgate such regulations as are necessary to ascertain the amount of state excise tax paid on the cigarettes of such tobacco product manufacturer for each year.
Any tobacco product manufacturer selling cigarettes to consumers within the state (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) after the date of enactment of this chapter shall do one of the following:
(1) Become a participating manufacturer (as that term is defined in section II(jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or
(2)(A) Place into a qualified escrow fund on a quarterly basis, no later than 30 days after the end of each calendar quarter in which sales are made, the following amounts (as such amounts are adjusted for inflation):
(i) 1999: $0.0094241 per unit sold after the date of enactment of this chapter;
(ii) 2000: $0.0104712 per unit sold;
(iii) For each of 2001 and 2002: $0.0136125 per unit sold;
(iv) For each of 2003 through 2006: $0.0167539 per unit sold; and
(v) For each of 2007 and each year thereafter: $0.0188482 per unit sold.
(B) A tobacco product manufacturer that places funds into escrow pursuant to subparagraph (A) of this paragraph shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:
(i) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in the state. Funds shall be released from escrow under this division: (I) in the order in which they were placed into escrow; and (II) only to the extent and at the time necessary to make payments required under such judgment or settlement;
(ii) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in the state in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement including, after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or
(iii) To the extent not released from escrow under division (i) or (ii) of this subparagraph, funds shall be released from escrow and revert back to such tobacco product manufacturer 25 years after the date on which they were placed into escrow.
(C) Each tobacco product manufacturer that elects to place funds into escrow pursuant to this paragraph shall quarterly and annually certify to the Attorney General that it is in compliance with this paragraph. The Attorney General may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under this paragraph. Any tobacco product manufacturer that fails in any calendar quarter or year to place into escrow the funds required under this paragraph shall:
(i) Be required within 15 days to place such funds into escrow as shall bring it into compliance with this paragraph. The court, upon a finding of a violation of this paragraph, may impose a civil penalty (to be paid to the general fund of the state) in an amount not to exceed 5 percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 100 percent of the original amount improperly withheld from escrow;
(ii) In the case of a knowing violation, be required within 15 days to place such funds into escrow as shall bring it into compliance with this Code section. The court, upon a finding of a knowing violation of this paragraph, may impose a civil penalty (to be paid to the general fund of the state) in an amount not to exceed 15 percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 300 percent of the original amount improperly withheld from escrow; and
(iii) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the state (whether directly or through a distributor, retailer, or similar intermediary) for a period not to exceed two years.
(D) An importer shall be jointly and severally liable for escrow deposits due from a nonparticipating manufacturer with respect to any nonparticipating manufacturer cigarettes that it imported and which were then sold in this state.
Each failure to make a quarterly or annual deposit required under this Code section shall constitute a separate violation.
The “Master Settlement Agreement” referred to in subsection (e) of Code Section 10-13-1 and other provisions of this chapter has been transmitted by the Attorney General to the Secretary of State and shall be maintained as a permanent record in the office of the Secretary of State, together with the enrolled Act by which this chapter is enacted. The Master Settlement Agreement shall not be published with the Act, but the Secretary of State shall, upon request and payment of copying costs, make a copy or certified copy of such document available to any member of the public.
The General Assembly finds that violations of Chapter 13 of this title threaten the integrity of the tobacco Master Settlement Agreement, the fiscal soundness of the state, and the public health. The General Assembly finds that enacting procedural enhancements will aid the enforcement of such chapter and thereby safeguard the Master Settlement Agreement, the fiscal soundness of the state, and the public health.
As used in this chapter, the term:
(1) “Brand family” means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, “menthol,” “lights,” “kings,” and “100s,” and includes any brand name, alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to or identifiable with a previously known brand of cigarettes.
(2) “Cigarette” means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (A) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (B) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (C) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (A) of this definition. The term “cigarette” includes “roll-your-own” (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of “cigarette,” 0.09 ounces of “roll-your-own” tobacco shall constitute one individual “cigarette.”
(3) “Commissioner” means the state revenue commissioner.
(4) “Dealer” means cigarette and loose and smokeless dealers as defined in paragraphs (7) and (17) of Code Section 48-11-1.
(5) “Directory” means the directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of Code Section 10-13A-3 and all brand families that are listed in such certifications developed by the Attorney General pursuant to Code Section 10-13A-4, or in the case of reference to another state's directory, the directory compiled under the similar law of the other state.
(6) “Distributor” means any person who:
(A) Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on dealers; and
(B) Is engaged in the business of:
(i) Manufacturing cigarettes in this state, importing cigarettes into this state, or purchasing cigarettes from other manufacturers or distributors; and
(ii) Selling the cigarettes to dealers in this state for resale but is not in the business of selling the cigarettes directly to the ultimate consumer of the cigarettes.
(7) “Importer” means any person in the United States to whom nonfederal excise tax-paid cigarettes manufactured in a foreign country are shipped or consigned, any person who removes cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse, or any person who smuggles or otherwise unlawfully brings cigarettes into the United States.
(8) “Master Settlement Agreement” means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.
(9) “Nonparticipating manufacturer” means any tobacco product manufacturer that is not a participating manufacturer.
(10) “Package” means any pack or other container on which a state stamp could be applied consistent with and as required by Code Section 48-11-3 that contains one or more individual cigarettes for sale. Nothing in this paragraph shall alter any other applicable requirements with respect to the minimum number of cigarettes that may be contained in a pack or other container of cigarettes. References to package do not include a container of multiple packages.
(11) “Participating manufacturer” has the meaning given that term in subsection II(jj) of the Master Settlement Agreement and all amendments thereto.
(12) “Person” means any natural person, trustee, company, partnership, corporation, or other legal entity.
(13) “Purchase” means any acquisition in any manner or by any means for any consideration. The term includes transporting or receiving product in connection with a purchase.
(14) “Qualified escrow fund” means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1 billion where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the funds' principal except as consistent with subparagraph (B) of paragraph (2) of Code Section 10-13-3. The principal balance in the qualified escrow fund must always be maintained so that both the face value and the cost basis of the account are each equal to or greater than the accumulated principal deposits.
(15) “Sale or sell” means any transfer, exchange, or barter in any manner or by any means for any consideration. Sale or sell includes distributing or shipping product in connection with a sale. References to sale “in” or “into” a state refers to the state of the destination point of the product in the sale, without regard to where title was transferred. References to sale “from” the state refers to the sale of cigarettes that are located in the state to the destination in question without regard to where title was transferred.
(16) “Stamping agent” means any person that is authorized to affix stamps to packages or other containers of cigarettes under Code Section 48-11-3 or any person that is required to pay the excise tax under the alternate method of taxation, if so prescribed pursuant to Code Section 48-11-3 on “roll-your-own” tobacco.
(17) “Tobacco product manufacturer” means an entity that after April 28, 1999:
(A) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);
(B) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or
(C) Becomes a successor of an entity described in subparagraph (A) or (B) of this paragraph.
The term tobacco product manufacturer shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subparagraphs (A) through (C) of this paragraph.
(18) “Units sold” means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question on cigarette packs required to bear a tax stamp pursuant to Code Section 48-11-3 and on “roll-your-own” tobacco on which excise tax is due either by tax stamp or pursuant to an alternate method of taxation. “Units sold” does not include cigarettes the purchase or use of which the state is prohibited from taxing under the Constitution or statutes of the United States. The state revenue commissioner and the Attorney General may promulgate such regulations as are necessary to ascertain the amount of state excise tax paid on cigarettes of such tobacco product manufacturer for each year.
(a) Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer, or similar intermediary or intermediaries, shall execute and deliver in the manner prescribed by the Attorney General a certification to the commissioner and Attorney General, no later than the thirtieth day of April each year, certifying that, as of the date of such certification, such tobacco product manufacturer either is a participating manufacturer or is in full compliance with Chapter 13 of this title, including all annual deposits required by paragraph (2) of Code Section 10-13-3.
(b) Every tobacco product manufacturer shall also certify that:
(1) Such manufacturer or its importer holds a valid permit under 26 U.S.C. Section 5713; and
(2) Such manufacturer is in compliance with all reporting and registration requirements of 15 U.S.C. Sections 376 and 376a.
(c) In addition, participating manufacturer shall include in its certification a list of its brand families. A participating manufacturer shall update such list 30 calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General and commissioner. A participating manufacturer may not include a brand family in its certification unless the participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement.
(d) A nonparticipating manufacturer shall include in its certification a list of all of its brand families and the number of units sold for each brand family that were sold in this state during the preceding calendar year and a list of all of its brand families that have been sold in this state at any time during the current calendar year. Such lists must indicate any brand family sold in this state during the preceding calendar year that is no longer being sold in this state as of the date of such certification, and identification by name and address of any other manufacturer of such brand families in the preceding or current calendar year. The nonparticipating manufacturer shall update such list 30 calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General and commissioner. A nonparticipating manufacturer may not include a brand family in its certification unless such nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Chapter 13 of this title. Such certification must also certify:
(1) That such nonparticipating manufacturer is registered to do business in this state and has appointed a resident agent for service of process and provided notice thereof as required by Code Section 10-13A-6;
(2) That such nonparticipating manufacturer has established and continues to maintain a qualified escrow fund as required by Code Section 10-13-3 and has executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund;
(3) That such nonparticipating manufacturer is in full compliance with Chapter 13 of this title, this chapter, Chapter 11 of Title 48, and any regulations promulgated pursuant to such chapters;
(4) The name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to Chapter 13 of this title and all regulations promulgated pursuant to such chapter; the account number of such qualified escrow fund and any subaccount number for this state; the amount such nonparticipating manufacturer placed in such fund for cigarettes sold in this state during the preceding calendar year, the date and amount of each such deposit, and such evidence or verification as may be deemed necessary by the Attorney General to confirm the foregoing; and the amount and date of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from such fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to Chapter 13 of this title and all regulations promulgated pursuant to such chapter;
(5) That such nonparticipating manufacturer consents to be sued in the courts of the State of Georgia for purposes of the state:
(A) Enforcing this chapter, Chapter 13 of this title, Title 48, and any regulations promulgated pursuant to these provisions; or
(B) Bringing a released claim as defined in paragraph (8) of Code Section 10-13-2;
(6) That such nonparticipating manufacturer has posted the appropriate bond required under Code Section 10-13A-7 and the information needed to establish the existence of such bond; and
(7) In the case of a nonparticipating manufacturer located outside of the United States, the nonparticipating manufacturer shall provide a declaration from each of its importers into the United States of any of its brand families to be sold in this state. The declaration shall be on a form prescribed by the Attorney General and shall state the following:
(A) The importer accepts joint and several liability with the nonparticipating manufacturer for all obligations to place funds into a qualified escrow fund and for payment of all civil penalties and all reasonable costs and expenses of investigation and prosecution, including attorney's fees;
(B) The importer consents to personal jurisdiction in Georgia for the purposes of claims by the state for any obligation to place funds into a qualified escrow fund and for payment of all civil penalties and all reasonable costs and expenses of investigation and prosecution, including attorney's fees; and
(C) The importer has appointed a registered agent for service of process in Georgia according to the same requirements as established in Code Section 10-13A-6 for any nonresident or foreign nonparticipating manufacturer.
Certification in accordance with this subsection shall be deemed to be in compliance with subparagraph (C) of paragraph (2) of Code Section 10-13-3.
(e) Nothing in this Code section shall be construed as limiting or otherwise affecting the state's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement or for purposes of Chapter 13 of this title.
(f) Tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.
(a) The Attorney General shall develop and make available for public inspection on its website a directory, as defined in paragraph (5) of Code Section 10-13A-2.
(b) The Attorney General shall not include or retain in such directory the name or brand families of any nonparticipating manufacturer that has failed to provide the required certification or whose certification the Attorney General determines is not in compliance with Code Section 10-13A-3, unless the Attorney General has determined that such violation has been cured to the satisfaction of the Attorney General.
(c) Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the Attorney General concludes, in the case of a nonparticipating manufacturer, that:
(1) Any escrow payment required pursuant to Chapter 13 of this title for any period for any brand family, whether or not listed by such nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General; or
(2) Any outstanding final judgment, including interest thereon, for a violation of Chapter 13 of this title has not been fully satisfied for such brand family or such manufacturer.
(d) The Attorney General shall update the directory as necessary in order to correct mistakes and to add or remove tobacco product manufacturers or brand families to keep the directory in conformity with the requirements of this chapter.
(e) Every distributor shall provide and update as necessary an e-mail address to the Attorney General for the purpose of receiving any notifications as may be required by this chapter.
It shall be unlawful for any person to affix a tax stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory or to sell, offer for sale, or possess with intent to sell, or import for personal use, in this state, cigarettes of a tobacco product manufacturer or brand family not included in the directory.
(a) Any nonresident or foreign nonparticipating manufacturer or importer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to having its brand families included or retained in the directory, appoint and continually engage without interruption the services of an agent in this state as required by Code Section 48-11-5 to act as agent for the service of process on whom all process and any action or proceeding against it concerning or arising out of the enforcement of Chapter 13 of this title or this chapter may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number, and proof of the appointment and availability of such agent to the satisfaction of the commissioner and Attorney General.
(b) The nonparticipating manufacturer or importer shall provide notice to the commissioner and Attorney General 30 calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the agent and the nonparticipating manufacturer or importer shall notify the commissioner and Attorney General of said termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.
(c) Any nonparticipating manufacturer or importer whose cigarettes are sold in this state who has not appointed and engaged an agent as required in this Code section shall be deemed to have appointed the Secretary of State as such agent and may be proceeded against in courts of this state by service of process upon the Secretary of State; provided, however, that the appointment of the Secretary of State as such agent shall not satisfy the condition precedent for having the brand families of the nonparticipating manufacturer or importer included or retained in the directory.
(d) The Attorney General shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this chapter. The Attorney General shall post in the directory and transmit by e-mail or other practicable means to each notice of any removal from the directory of a tobacco product manufacturer or brand family at least 30 days prior to removal from the directory of such tobacco product manufacturer or brand family. Unless otherwise provided by agreement between the wholesaler and a tobacco product manufacturer, the wholesaler shall be entitled to a refund from a tobacco product manufacturer for any money paid by the wholesaler to the tobacco product manufacturer for any cigarettes of the tobacco product manufacturer in the possession of the wholesaler on the effective date of removal from the directory, or as subsequently received from a retail dealer as provided in this chapter, of products of that tobacco product manufacturer or brand family of cigarettes. Unless otherwise provided by agreement between a retail dealer and the wholesaler or a tobacco product manufacturer, a retail dealer shall be entitled to a refund from the wholesaler or a tobacco product manufacturer for any money paid by the retail dealer to the wholesaler or such tobacco product manufacturer for any cigarettes of the tobacco product manufacturer still in the possession of the retail dealer on the effective date of removal from the directory of that tobacco product manufacturer or brand family.
(a) All nonparticipating manufacturers shall post a bond for the benefit of the state which is subject to execution under subsection (c) of this Code section. The bond shall be posted by a corporate surety located within the United States. The bond shall be posted and evidence of such posting shall be provided to the Attorney General with the nonparticipating manufacturer's quarterly and annual certifications as a condition of the nonparticipating manufacturer and its brand families being included or remaining in the directory for the following quarter or year.
(b) The amount of the bond shall be the greater of:
(1) Fifty thousand dollars; or
(2) The highest amount of escrow owed in Georgia by the nonparticipating manufacturer or its predecessor in the last 12 quarters.
(c) If a nonparticipating manufacturer that posted a bond has failed to make, or have made on its behalf by an entity with joint and several liability, escrow deposits equal to the full amount owed for a quarter within 15 days following the due date for the quarter under Code Section 10-13-3, the state may execute upon the bond, first to recover delinquent escrow, which amount shall be deposited into a qualified escrow account under Code Section 10-13-3, and then to recover civil penalties and costs authorized under such Code section. Escrow obligations above the amount collected on the bond remain due from that nonparticipating manufacturer and from the importers that sold its cigarettes during that calendar quarter and at any time prior to the removal of the nonparticipating manufacturer and brand from the directory.
(a) Not later than ten calendar days after the end of each calendar month, and more frequently if so directed by the Attorney General, each distributor shall submit such information as the Attorney General requires to facilitate compliance with this chapter, including, but not limited to, a list by brand family of the total number of cigarettes, or, in the case of “roll-your-own,” the equivalent count, for which the distributor affixed tax stamps during the previous calendar month or otherwise paid the tax due for such cigarettes. The distributor shall also certify that the information provided to the Attorney General is complete and accurate. The distributor shall maintain and make available to the Attorney General all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the Attorney General for a period of five years.
(b) Notwithstanding any law to the contrary, the commissioner and the Attorney General are authorized to disclose to each other any information received under this chapter, Chapter 13 of this title, and Title 48 for the purposes of determining compliance with and enforcing the provisions of this chapter, Chapter 13 of this title, and Title 48. The commissioner and Attorney General may also share such information with other federal, state, or local courts or agencies for purposes of enforcing the provisions of this chapter, Chapter 13 of this title, or the corresponding laws of other states. The commissioner and Attorney General may also disclose information provided under this Code section, Chapter 13 of this title, and Title 48 that may otherwise be confidential:
(1) In discharge of the duty to enforce or defend the provisions of this part or Chapter 13 of this title;
(2) In the course of any litigation, arbitration, or proceeding related to this part, Chapter 13 of this title, the Master Settlement Agreement, or the NPM Adjustment Settlement Agreement; or
(3) In complying with provisions in the NPM Adjustment Settlement Agreement.
Despite this disclosure, the information shall maintain its confidential status.
(c) Any tobacco sales data provided by another state, a tobacco product manufacturer, or other person or entity to a data clearing-house pursuant to the NPM Adjustment Settlement Agreement that is also provided to the Attorney General or commissioner pursuant to that agreement shall be treated as confidential tax information as defined in Title 48. This subsection only applies to information received by the Attorney General or commissioner solely as a result of the NPM Adjustment Settlement Agreement.
(d) The Attorney General may require at any time from the nonparticipating manufacturer proof from the financial institution in which such manufacturer has established a qualified escrow fund for the purpose of compliance with Chapter 13 of this title of the amount of money in such fund, exclusive of interest, the amount and date of each deposit to such fund, and the amount and date of each withdrawal from such fund.
(e) In addition to the information required to be submitted pursuant to this chapter, the Attorney General may require a distributor, stamping agent, or tobacco product manufacturer to submit any additional information or documentation, including, but not limited to, samples of the packaging or labeling of each brand family, as is necessary to enable the Attorney General to determine whether a tobacco product manufacturer is in compliance with this chapter.
(f) To promote compliance with this chapter, the Attorney General may promulgate regulations. The Attorney General may also require production of information sufficient to enable the Attorney General to determine the adequacy of the amount of the quarterly or annual escrow deposit.
(a) In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a stamping agent has violated Code Section 10-13A-5 or any regulation adopted pursuant to this chapter, the commissioner may revoke or suspend the dealer or distributor's license of the stamping agent in the manner provided by Code Section 48-11-6. Each tax stamp affixed and each sale or offer to sell cigarettes in violation of Code Section 10-13A-5 or the rules and regulations adopted pursuant to this chapter shall constitute a separate violation. For each violation, the commissioner may also impose a civil penalty in an amount not to exceed the greater of 500 percent of the retail value of the cigarettes or $5,000.00 upon a determination of a violation of Code Section 10-13A-5 or any regulations adopted pursuant thereto. Such penalty shall be imposed in the manner provided in subsection (c) of Code Section 48-11-24.
(b) A license may also be subject to termination, suspension, or other available remedy found in Code Section 48-11-14, if:
(1) A distributor fails to provide a report required under Code Section 10-13A-8; or
(2) A distributor files an incomplete or inaccurate report required under Code Section 10-13A-8.
(c) Any cigarettes that have been sold, offered for sale, or possessed for sale in this state in violation of Code Section 10-13A-5 or other provisions of this chapter or Chapter 13 of this title shall be deemed contraband under Code Section 48-11-9 and such cigarettes shall be subject to seizure and forfeiture as provided in such Code section.
(d) The Attorney General, on behalf of the commissioner, may seek an injunction to restrain a threatened or actual violation of Code Section 10-13A-5 or of subsection (a) or (e) of Code Section 10-13A-8 by a distributor or stamping agent and to compel the distributor to comply with said Code section or either such subsection. In any action brought pursuant to this Code section, the state shall be entitled to recover the costs of investigation, costs of the action, and reasonable attorney fees.
(e) It shall be unlawful for a person to sell or distribute cigarettes or to acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in this state in violation of Code Section 10-13A-5. Any person who violates this subsection shall be guilty of a misdemeanor.
(f) A violation of Code Section 10-13A-5 shall constitute an unfair and deceptive act or practice under Part 2 of Article 15 of Chapter 1 of this title, the “Fair Business Practices Act of 1975.”
(g) It is unlawful for any person to knowingly submit any false information required pursuant to Chapter 13 of this title or this chapter. A violation of this subsection is a felony. Knowing submission of false information shall also be grounds for removal of a tobacco product manufacturer or brand from the directory.
(a) A determination of the Attorney General to not include or to remove from the directory a brand family or tobacco product manufacturer shall be subject to review in the manner prescribed by Article 1 of Chapter 13 of Title 50, known as the “Georgia Administrative Procedure Act.”
(b) No person shall be issued a license or granted a renewal of a license under Chapter 11 of Title 48 to act as a distributor unless such person has certified in writing that such person will comply fully with this chapter.
(c) The Attorney General may promulgate rules and regulations necessary to effect the purposes of this chapter.
(d) In any action brought by the state to enforce this chapter, the state shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney fees.
(e) If a court of competent jurisdiction finds that the provisions of this chapter and of Chapter 13 of this title conflict and cannot be harmonized, then such provisions of Chapter 13 of this title shall control. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter causes Chapter 13 of this title to no longer constitute a qualifying or model statute, as those terms are defined in the Master Settlement Agreement, then that portion of this chapter shall not be valid. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid, unlawful, or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter or any part thereof.
The General Assembly finds that:
(1) There is an opioid epidemic occurring in the United States, and the State of Georgia has been greatly impacted;
(2) State-wide coordination surrounding and managing opioid addiction and related disorders is critical to the health and safety of all Georgians;
(3) Funding is needed in the state for, among other things, prevention and treatment of opioid addiction and related disorders; providing resources to law enforcement agencies to address the opioid crisis; increasing the number of professionals who provide treatment for opioid addiction; educating medical professionals regarding the safe and effective prescribing of, and then tapering off of, opioids; and treatment and prevention of opioid use disorder in incarcerated populations;
(4) It is imperative that the state receive the full amount of any opioid settlement, and in order to do so, the state must be able to release claims for all state and local public bodies and instrumentalities in the state; and
(5) While local governments generally have the authority to pursue and litigate claims against businesses and individuals to protect their own interests, in certain limited circumstances involving particular industries, the interests of the state as a whole are best served by having a unified settlement structure that benefits both the state and its local governments and brings full and complete closure to the claims that were asserted or could have been asserted and maximizes the state and local governments' potential recovery to address this extraordinary crisis.
As used in this chapter, the term:
(1) “Governmental entity” means:
(A) This state and each of its departments, agencies, divisions, boards, commissions, authorities, and instrumentalities; and
(B) A political subdivision or creation of this state, including a county, municipality, special district, county and independent school systems, community service board, authority, any county or state officeholder, and any other public officeholder or public entity that has asserted or could assert a claim for damages as a result of the manufacture, marketing, sale, dispensing, or distribution of opioids.
(2) “Released claim” means a claim by a governmental entity that has been or could have been released under a state-wide opioid settlement agreement.
(3) “Released entity” means an entity against which a claim has been released under a state-wide opioid settlement agreement.
(4) “State-wide opioid settlement agreement” means any settlement agreement and related documents that:
(A) Are entered into by this state through the Attorney General with opioid manufacturers, distributors, retailers, labelers, marketers, pharmacies, or other entities concerning the use or prescription of opioid products;
(B) Relate to illegal or tortious conduct in the manufacturing, marketing, promotion, sale, distribution, or dispensing of opioids;
(C) Are entered into by the State on or after March 31, 2021;
(D) Provide a mechanism which permits governmental entities to join into such settlement agreement; and
(E) Are the subject of a memorandum of understanding or similar agreement entered into by both the Attorney General and at least 65 percent of the governmental entities which have active and pending litigation against one or more released entities identified in the settlement agreement as of the date when governmental entities are first permitted to join such settlement agreement.
(a) Entry into a state-wide opioid settlement agreement shall serve to bar any and all past, present or future claims on behalf of any governmental entity seeking to recover against any business or person that is a released entity under the terms of the relevant settlement. Such bar shall apply to any and all released claims or suits by any governmental entity created by or pursuant to an Act of the General Assembly, the Constitution, or any department, agency, or authority thereof, for damages, abatement, injunctive or any other relief. No such claim barred by this Code section shall be brought, threatened, asserted or pursued in any way in any court, and any such claim shall be dismissed by the court in which the claim is brought.
(b) The bar provided for in subsection (a) of this Code section shall not apply to a bellwether claim of any governmental entity, provided that such claim:
(1) Is brought in the proceedings titled In re: National Prescription Opiate Litigation , Case No.: MDL 2804 as bellwether claims that are to be tried in a bellwether trial;
(2) Is selected by the court in In re: National Prescription Opiate Litigation , Case No.: MDL 2804 as a bellwether claim to be tried in a bellwether trial; and
(3) Is brought against defendants selected as bellwether defendants in a bellwether trial.
(c) The bar provided for in subsection (a) of this Code section shall become active and effective upon the filing of a consent order by the state that attests to and evidences that a state-wide opioid settlement agreement has been reached, and that the parameters of this chapter have been met.
This chapter shall be known as and may be cited as the “Georgia Cemetery and Funeral Services Act of 2000.”
(a) The legislature recognizes that purchasers of preneed burial rights, funeral or burial merchandise, or funeral services or burial services may suffer serious economic harm if purchase money is not set aside for future use as intended by the purchaser and that the failure to maintain cemetery grounds properly may cause significant emotional distress. Therefore, it is necessary in the interest of the public welfare to regulate preneed dealers, licensees, registrants, and cemetery companies in this state. However, restrictions shall be imposed only to the extent necessary to protect the public from significant or discernible harm or damage and not in a manner which will unreasonably affect the competitive market.
(b) Subject to certain interests of society, the legislature finds that every competent adult has the right to control the decisions relating to his or her own funeral arrangements. Accordingly, unless otherwise stated in this chapter, it is the legislature's express intent that nothing contained in this chapter should be construed or interpreted in any manner as to subject preneed contract purchasers to federal income taxation under the grantor trust rules contained in Sections 671 et seq. of the Internal Revenue Code of 1986, as amended.
(c) Nothing herein is intended to prohibit or restrict the sale or purchase of life insurance as a funding vehicle for preneed contracts under this chapter, nor to change the state of the law prior to July 1, 2000, with respect to prohibiting or restricting the sale or purchase of life insurance as a funding vehicle for preneed contracts under this chapter.
As used in this chapter, the term:
(1) “Affiliate” means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with another person. Solely for purposes of this definition, the terms “owns,” “is owned,” and “ownership” mean ownership of an equity interest, or the equivalent thereof, of 10 percent or more, and the term “person” means an individual, partnership, committee, association, corporation, or any other organization or group of persons.
(2) “Boards” mean the State Board of Cemeterians as described and authorized in Chapter 8B of Title 43 and the State Board of Funeral Service as described and authorized in Chapter 18 of Title 43.
(3) “Burial merchandise,” “funeral merchandise,” or “merchandise” means any personal property offered or sold by any person for use in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains.
(4) “Burial right” means the right to use a grave space, mausoleum, or columbarium for the interment, entombment, or inurnment of human remains.
(5) “Burial service” means any service other than a funeral service offered or provided by any person in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains.
(6) “Care and maintenance” means the perpetual process of keeping a cemetery and its lots, graves, grounds, landscaping, roads, paths, parking lots, fences, mausoleums, columbaria, vaults, crypts, utilities, and other improvements, structures, and embellishments in a well cared for and dignified condition, so that the cemetery does not become a nuisance or place of reproach and desolation in the community. As specified in the rules of the Secretary of State, care and maintenance may include, but is not limited to, any or all of the following activities: mowing the grass at reasonable intervals; raking and cleaning the grave spaces and adjacent areas; pruning of shrubs and trees; suppression of weeds and exotic flora; and maintenance, upkeep, and repair of drains, water lines, roads, buildings, and other improvements. Care and maintenance may include, but is not limited to, reasonable overhead expenses necessary for such purposes, including maintenance of machinery, tools, and equipment used for such purposes. Care and maintenance may also include repair or restoration of improvements necessary or desirable as a result of wear, deterioration, accident, damage, or destruction. Care and maintenance does not include expenses for the construction and development of new grave spaces or interment structures to be sold to the public.
(7) “Casket” means a container which is designed for the encasement and viewing of a dead human body.
(8) “Cemetery” means a place dedicated to and used, or intended to be used, for permanent interment of human remains. A cemetery may contain land or earth interments; a mausoleum, a vault, or crypt interments; a columbarium or other structure or place used or intended to be used for the inurnment of cremated human remains; or any combination of one or more of such structures or places. Such term shall not include governmentally owned cemeteries, fraternal cemeteries, cemeteries owned and operated by churches, synagogues, or communities or family burial plots.
(9) “Cemetery company” means any entity that owns or controls cemetery lands or property.
(10) “Columbarium” means a structure or building which is substantially exposed above the ground and which is intended to be used for the inurnment of cremated human remains.
(11) “Common business enterprise” means a group of two or more business entities that share common ownership in excess of 50 percent.
(12) “Cremation” includes any mechanical, chemical, thermal, or other professionally accepted process whereby a deceased human being is reduced to ashes. Cremation also includes any other mechanical, chemical, thermal, or other professionally accepted process whereby human remains are pulverized, burned, recremated, or otherwise further reduced in size or quantity.
(13) “Crypt” means a chamber of sufficient size to inter the remains of a deceased human being.
(14) “Entombment” means the disposition of a dead human body in a mausoleum, including without limitation a crypt, private mausoleum, or any other permanent above-ground structure not used for inurnment, but shall not include the opening and closing of a grave space, crypt, or niche or the installation of a vault.
(15) “Final disposition” means the final disposal of a deceased human being whether by interment, entombment, inurnment, burial at sea, cremation, or any other means and includes, but is not limited to, any other disposition of remains for which a segregated charge is imposed.
(16) “Funeral director” means any person licensed in this state to practice funeral directing pursuant to the provisions of Chapter 18 of Title 43.
(16.1) “Funeral director in full and continuous charge” means a funeral director who is approved by the State Board of Funeral Service to assume full responsibility for the operations of a particular funeral establishment and who shall ensure that said establishment complies with this chapter and with all rules promulgated pursuant thereto as provided in Chapter 18 of Title 43.
(17) “Funeral service” means any service relating to the transportation, embalming, cremation, and interment of a deceased human being, as further described in Code Section 43-18-1.
(18) “Grave space” or “lot” means a space of ground in a cemetery intended to be used for the interment in the ground of human remains.
(19) “Human remains” means the bodies of deceased human beings and includes the bodies in any stage of decomposition and the cremated remains.
(20) “Interment” means the burial of human remains but shall not include the opening and closing of a grave space, crypt, or niche or the installation of a vault.
(21) “Inurnment” means the disposition of the cremated remains of a deceased human being in any fashion, including without limitation in a columbarium niche, cremorial, cremation bench, cremation rock, urn, or other container but shall not include the opening and closing of a grave space, crypt, or niche or the installation of a vault.
(22) “Mausoleum” means a structure or building which is substantially exposed above the ground and which is used, or intended to be used, for the entombment of human remains.
(23) “Mausoleum section” means any construction unit of a mausoleum which is acceptable to the Secretary of State and which a cemetery uses to initiate its mausoleum program or to add to its existing mausoleum structures.
(24) “Monument” means any product used for identifying or permanently decorating a grave site, including, without limitation, monuments, markers, benches, and vases and any base or foundation on which they rest or are mounted.
(25) “Niche” means a space used, or intended to be used, for the interment of the cremated remains of one or more deceased human beings.
(26) “Nonperpetual care” means any cemetery which does not offer perpetual care as defined in this Code section.
(27) “Outer burial container” or “vault” means an enclosure into which a casket is placed and includes, but is not limited to, containers made of concrete, steel, fiberglass, copper or other metals, polypropylene, sectional concrete enclosures, and crypts.
(28) “Perpetual care” means the care and maintenance and the reasonable administration of the cemetery grounds and buildings at the present time and in the future.
(29) “Person” or “entity” means an individual, a corporation, a limited liability company, a general or limited partnership, an association, a joint-stock company, a trust, or any type of incorporated or unincorporated organization.
(30) “Preneed contract” means any arrangement or method, of which the provider of burial or funeral merchandise or services has actual knowledge, whereby any person agrees to furnish burial or funeral merchandise or services in the future.
(31) “Preneed dealer” means every person, other than a salesperson registered under this chapter, who engages, either for all or part of his or her time, directly or indirectly, as agent, broker, or principal in the retail business of offering, selling, or otherwise dealing in funeral services or burial services or funeral or burial merchandise which is not attached to realty or delivered to the purchaser at the time of sale.
(32) “Preneed interment service” or “preneed service” means any service which is not performed at the time of sale and which is offered or provided by any person in connection with the interment of human remains, except those services offered regarding mausoleums and the normal and customary installation charges on burial or funeral merchandise.
(32.1) “Principal” means a sum set aside or escrowed exclusive of income or interest or other return thereon.
(33) “Sale” or “sell” means and shall include every contract of sale or disposition of burial rights, grave spaces, burial services, funeral services, or burial or funeral merchandise for value. The term “offer to sell,” “offer for sale,” or “offer” shall include any attempt or offer to dispose of, or solicitation of an offer to buy, grave spaces, burial rights, burial or funeral services, or burial or funeral merchandise for value. This definition shall not include wholesalers of burial or funeral merchandise.
(34) “Salesperson” or “sales agent” means an individual employed or appointed or authorized by a cemetery, cemetery company, or preneed dealer to sell grave spaces, burial rights, burial or funeral merchandise, burial or funeral services, or any other right or thing of value in connection with the final disposition of human remains. The owner of a cemetery, the executive officers, and general partners of a cemetery company shall not be deemed to be salespersons within the meaning of this definition unless they are paid a commission for the sale of said property, lots, rights, burial or funeral merchandise, or burial or funeral services.
(35) “Secretary of State” means the Secretary of State of the State of Georgia.
(36) “Solicitation” means any communication in the context of an offer or sale of grave spaces, burial or funeral merchandise, or burial or funeral services which directly or implicitly requests a response from the recipient.
As provided in this Code section, the boards may have all administrative powers and other powers necessary to carry out the provisions of this chapter, including the authority to promulgate rules and regulations, and the Secretary of State may delegate to the boards all such duties otherwise entrusted to the Secretary of State; provided, however, that the Secretary of State shall have sole authority over matters relating to the regulation of funds, trust funds, and escrow accounts and accounting and investigations concerning such matters but may delegate authority to the appropriate board for the review of such investigations and the determination as to disciplinary matters, necessary sanctions, and the enforcement of such decisions and sanctions. The State Board of Funeral Service shall have authority to promulgate rules and regulations and may be delegated the authority to make disciplinary and sanctioning decisions relating to funeral services or funeral merchandise. The State Board of Cemeterians shall have authority to promulgate rules and regulations and may be delegated the authority to make disciplinary and sanctioning decisions relating to burial services or burial merchandise. The Secretary of State may delegate to each board according to such duties and responsibilities of the boards.
(a)(1) Unless exempt under this chapter, it shall be unlawful for any person to offer for sale or to sell any cemetery burial rights, mausoleum interment rights, columbarium inurnment rights, grave spaces, or other physical locations for the final disposition of human remains in this state unless such person is registered as or employed by and acting on behalf of and under the direction of a person registered as a cemetery owner pursuant to this Code section.
(2) Unless exempt under this chapter, it shall be unlawful for any person to offer for sale or sell burial or funeral merchandise or burial services in this state unless such person is registered as or employed by and acting on behalf of and under the direction of a person registered as a cemetery owner under this Code section, a funeral director under Chapter 18 of Title 43, or a burial or funeral merchandise dealer under this Code section.
(3) Unless exempt under this chapter, it shall be unlawful for any person to offer for sale or to sell any preneed burial or funeral merchandise or preneed burial services in this state unless such person is registered as a preneed dealer or preneed sales agent pursuant to this Code section.
(4) It shall be unlawful for any person to offer for sale or to sell any funeral services in this state unless such person is licensed as a funeral director under the provisions of Chapter 18 of Title 43.
(b)(1) Every person desiring to be a registered cemetery owner shall file with the Secretary of State a separate registration application for each cemetery owned in a form prescribed by the Secretary of State, executed and duly verified under oath by the applicant, if the applicant is an individual, or by an executive officer or general partner, if the applicant is a corporation or partnership, or by an individual of similar authority, if the applicant is some other entity, and containing the following information:
(A) The name, mailing address, and telephone number of the applicant, which for the purposes of this Code section shall be the legal owner of the land upon which the cemetery is located;
(B) The location and, if different from the information submitted for subparagraph (A) of this paragraph, the mailing address and telephone number of the cemetery;
(C) The location of all records of the applicant which relate to the cemetery;
(D) If the applicant is not a natural person, the names of the president, secretary, and registered agent if the applicant is a corporation, of each general partner if the applicant is a partnership, or of individuals of similar authority if the applicant is some other entity and their respective addresses and telephone numbers; the name and address of each person who owns 10 percent or more of any class of ownership interest in the applicant and the percentage of such interest; and the date of formation and the jurisdiction of organization of the applicant;
(E) A copy of cemetery rules and regulations, a certified copy of a certificate of existence or certificate of authority issued in accordance with Code Section 14-2-128 if the applicant is a corporation, and any amendments to such documents or any substantially equivalent documents. Any such document once filed with the Secretary of State pursuant to this chapter shall be deemed to be on file and incorporated into any subsequent renewal or filing of such cemetery registration; provided, however, that each applicant and registrant is under a continuing duty to update such filing and to notify the Secretary of State regarding any changes or amendments to the articles of incorporation, bylaws, cemetery rules and regulations, or substantially equivalent documents, and provided, further, that any applicant or registrant shall furnish to the Secretary of State additional copies of any such document upon request;
(F) A description of any judgment or pending litigation to which the applicant or any affiliate of the applicant is a party and which involves the operation of the cemetery or could materially affect the business or assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns any other entities in Georgia regulated by this chapter and, if so, the location, mailing address, telephone number, and type of registration of such other entities;
(H) A consent to service of process meeting the requirements of Code Section 10-14-24 for actions brought by the State of Georgia;
(I) The name and business address of each individual employed, appointed, or authorized by the applicant to offer for sale or to sell any grave lots, burial rights, burial or funeral merchandise, or burial services on behalf of the cemetery;
(J) A balance sheet of the applicant dated as of the end of the most recent fiscal year and in no event dated more than 15 months prior to the date of filing, which the Secretary of State shall treat as confidential and not open to public inspection;
(K) Evidence satisfactory to the Secretary of State that the applicant owns for the cemetery unencumbered fee simple title to contiguous land in the minimum acreage required by this chapter or by rules issued by the Secretary of State in accordance with this chapter, properly zoned for use as a cemetery, and dedicated for such use, and a copy of a plat of survey thereto, provided that nothing herein shall prohibit the encumbrance of the undeveloped portion of cemetery property for the purpose of securing debt incurred for the purpose of developing or improving such property;
(L) Evidence satisfactory to the Secretary of State that the applicant has recorded, in the public land records of the county in which the land described in subparagraph (K) of this paragraph is located, a notice that contains the following language:
“NOTICE
The property described herein shall not be sold, conveyed, leased, mortgaged, or encumbered except as provided by the prior written approval of the Secretary of State, as provided in the Georgia Cemetery and Funeral Services Act of 2000.”
Such notice shall have been clearly printed in boldface type of not less than ten points and may be included on the face of the deed of conveyance to the applicant or may be contained in a separate recorded instrument that contains a legal description of the property.
(M) The name, address, location, and telephone number of the perpetual care trust account depository or depositories, the names of the accounts, and the account numbers;
(N) The name, address, and telephone number of each trustee;
(O) A copy of a perpetual care trust fund agreement executed by the applicant and accepted by the trustee, and evidence satisfactory to the Secretary of State of the deposit into such account of the amount of the initial required deposit, the trust agreement being conditioned only upon issuance of a certificate of registration;
(P) Such other information and documents as the Secretary of State may require by rule; and
(Q) A filing fee of $100.00.
(2) Every person desiring to be a registered preneed dealer, other than a person already licensed by the Board of Funeral Service as a funeral services director in full and continuous charge or an owner of a cemetery licensed by the State Board of Cemeterians as a cemeterian, shall file with the Secretary of State a registration application in a form prescribed by the Secretary of State, executed and duly verified under oath by the applicant, if the applicant is an individual, or by an executive officer or general partner, if the applicant is a corporation or partnership, or by an individual of similar authority, if the applicant is some other entity, and containing the following information:
(A) The name of the applicant;
(B) The location, mailing address, and telephone number of the applicant's principal business location in Georgia and the same information for other locations where business is conducted, together with any trade names associated with each location;
(C) All locations of the records of the applicant which relate to preneed sales in Georgia;
(D) If the applicant is not a natural person, the names of the president, secretary, and registered agent if the applicant is a corporation, of each general partner if the applicant is a partnership, or of individuals of similar authority, if the applicant is some other entity and their respective addresses and telephone numbers; the name and address of each person who owns 10 percent or more of any class of ownership interest in the applicant and the percentage of such interest; and the date of formation and the jurisdiction of organization of the applicant;
(E) A certified copy of a certificate of existence or certificate of authority issued in accordance with Code Section 14-2-128 if the applicant is a corporation;
(F) A description of any judgment or pending litigation to which the applicant or any affiliate of the applicant is a party and which involves the operation of the applicant's preneed business in Georgia or which could materially affect the business or assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns any other entities in Georgia regulated by this chapter and, if so, the location, mailing address, telephone number, and type of registration of such other entities;
(H) A consent to service of process meeting the requirements of Code Section 10-14-24 for actions brought by the State of Georgia;
(I) A list of each individual employed, appointed, or authorized by the applicant to offer for sale or to sell any grave lots, burial rights, burial or funeral merchandise, or burial services on behalf of the applicant;
(J) A balance sheet of the applicant dated as of the end of the most recent fiscal year and in no event dated more than 15 months prior to the date of filing, which the Secretary of State shall treat as confidential and not open to public inspection;
(K) The name, address, location, and telephone number of the preneed trust or escrow account depository or depositories, the names of the accounts, and the account numbers;
(L) An executed copy of the trust or escrow agreement required by Code Section 10-14-7 or 10-14-7.1;
(M) The name, address, and telephone number of the trust or escrow agent;
(N) Such other information and documents as the Secretary of State may require by rule; and
(O) A filing fee of $250.00.
The provisions of this paragraph notwithstanding, a person licensed by the Board of Funeral Service as a funeral services director in full and continuous charge or an owner of a cemetery licensed by the State Board of Cemeterians as a cemeterian shall not be required to separately register as a preneed dealer provided that the requirements of subparagraphs (A) through (N) of this paragraph are satisfied.
(3) Every person desiring to be a registered burial or funeral merchandise dealer shall file with the Secretary of State a registration application in a form prescribed by the Secretary of State, executed and duly verified under oath by the applicant, if an individual, or by an executive officer or general partner, if the applicant is a corporation or partnership, or by an individual of similar authority, if the applicant is some other entity, and containing the following information:
(A) The name of the applicant;
(B) The location, mailing address, and telephone number of the applicant's principal business location in Georgia and the same information for other locations where business is conducted, together with any trade names associated with each location;
(C) All locations of the records of the applicant which relate to funeral or burial merchandise sales in Georgia;
(D) If the applicant is not a natural person, the names of the president, secretary, and registered agent if the applicant is a corporation, of each general partner if the applicant is a partnership, or of individuals of similar authority if the applicant is some other entity and their respective addresses and telephone numbers; the name and address of each person who owns 10 percent or more of any class of ownership interest in the applicant and the percentage of such interest; and the date of formation and the jurisdiction of organization of the applicant;
(E) A certified copy of a certificate of existence or certificate of authority issued in accordance with Code Section 14-2-128 if the applicant is a corporation;
(F) A description of any judgment or pending litigation to which the applicant or any affiliate of the applicant is a party and which involves the operation of the applicant's funeral or burial merchandise business in Georgia or which could materially affect the business or assets of the applicant;
(G) Whether the applicant or any affiliate of the applicant owns any other entities in Georgia regulated by this chapter and, if so, the location, mailing address, telephone number, and type of registration of such other entities;
(H) A consent to service of process meeting the requirements of Code Section 10-14-24 for actions brought by the State of Georgia;
(I) The name and business address of each individual employed, appointed, or authorized by the applicant to offer for sale or to sell any burial or funeral merchandise on behalf of the applicant;
(J) A balance sheet of the applicant dated as of the end of the most recent fiscal year and in no event dated more than 15 months prior to the date of filing, which the Secretary of State shall treat as confidential and not open to public inspection;
(K) Such other information and documents as the Secretary of State may require by rule;
(L) A filing fee of $100.00; and
(M) A bond, if required by the rules and regulations of the Secretary of State.
(c) The Secretary of State may approve an application only after he or she has conducted an investigation of the applicant and determined that such applicant is qualified by character, experience, and financial responsibility to conduct the business for which the applicant is seeking registration in a legal and proper manner. A registration application filed under this Code section shall become effective upon the issuing of a certificate of registration by the Secretary of State or at such earlier time as the Secretary of State determines.
(d) Every registration under this subsection shall expire on the first day of August of each year. The registration must be renewed with the Secretary of State each year by the submission of a renewal application containing the information required in an application for initial registration to the extent that such information had not been included in an application or renewal application previously filed together with a sworn statement that all information not provided remains accurate. The filing fee for renewal of registration shall be $50.00 for each cemetery of cemetery owners, $100.00 for preneed dealers, and $50.00 for burial or funeral merchandise dealers.
(e) The Secretary of State, by rule, may provide for exceptions from registration for cemeteries when the Secretary of State determines that the public interest does not require registration, provided that such cemeteries are in existence on or before July 1, 2000, consist of less than 25 acres, and are operated by nonprofit entities.
(f) Notwithstanding any provision to the contrary contained in this Code section, the following shall be exempt from registration as a burial or funeral merchandise dealer:
(1) Any registered cemetery owner;
(2) The owner of any cemetery exempt from registration with respect to sales of burial or funeral merchandise sold for use at such cemetery;
(3) Any licensed funeral director;
(4) Any person providing interment and disinterment services exclusively at cemeteries exempt from registration;
(5) Any monument manufacturer or dealer which does not install monuments in cemeteries required to be registered by this Code section;
(6) Any person who does not offer for sale or sell burial or funeral services or merchandise to the general public; and
(7) Any registered preneed dealer.
In addition, the Secretary of State, by rule, may provide for other exceptions from registration.
(g)(1) Any cemetery in operation on August 1, 1986 which offers perpetual care for some designated sections of its property but does not offer perpetual care to other designated sections shall be considered a perpetual care cemetery for purposes of this chapter. No cemetery formed or created on or after July 1, 2000, may fail to offer perpetual care for any part of such cemetery.
(2) Any nonperpetual care cemetery which was registered with the Secretary of State prior to August 1, 1986, may continue to be operated as such after that date and a renewal of such registration shall not be required.
(3) Any nonperpetual care cemetery which is shown to be of historical significance and is operated solely for historical nonprofit purposes shall be exempt from registration.
(4) Except as specifically authorized under paragraphs (2) and (3) of this subsection, from and after August 1, 1986, it shall be unlawful for any person to operate or establish a nonperpetual care cemetery.
(a) All individuals who offer preneed contracts to the public, or who execute preneed contracts on behalf of any entity required to be registered as a preneed dealer, and all individuals who offer, sell, or sign contracts for the preneed sale of burial rights shall be registered with the Secretary of State as preneed sales agents, pursuant to this Code section, unless such individuals are exempted under this chapter or individually own a controlling interest in a preneed dealer registered under this chapter. For purposes of this chapter, any person licensed by or registered with the Board of Funeral Service as a funeral services director in full and continuous charge or an owner of a cemetery licensed by the State Board of Cemeterians as a cemeterian shall be deemed a registered preneed dealer, and regulated pursuant to the rules governing same, by virtue thereof.
(b) All preneed sales agents must be employed by a registered preneed dealer.
(c) A preneed dealer shall be liable for the activities of all preneed sales agents who are employed by the preneed dealer or who perform any type of preneed related activity on behalf of the preneed dealer. If a preneed sales agent violates any provision of this chapter, such preneed sales agent and each preneed dealer who employs such preneed sales agent shall be subject to the penalties and remedies set out in Code Sections 10-14-11, 10-14-19, 10-14-20, and 10-14-21.
(d) A preneed sales agent may be authorized to sell, offer, and execute preneed contracts on behalf of all entities owned or operated by the agent's sponsoring preneed dealer.
(e) If the application for his or her registration is sent by certified mail or statutory overnight delivery, return receipt requested, an individual may begin functioning as a preneed sales agent as soon as a completed application for registration, as set forth in subsection (g) of this Code section, is submitted to the Secretary of State, provided that, if any such sales agent fails to meet the qualifications set forth in this chapter, the preneed dealer shall immediately upon notification by the Secretary of State cause such agent to cease any sales activity on its behalf.
(f) The qualifications for a preneed sales agent are as follows:
(1) The applicant must be at least 18 years of age;
(2) The applicant must not be subject to any order of the Secretary of State that restricts his or her ability to be registered as a preneed sales agent; and
(3) The applicant must not have been adjudicated, civilly or criminally, to have committed fraud or to have violated any law of any state involving fair trade or business practices, have been convicted of a misdemeanor of which fraud is an essential element or which involves any aspect of the funeral or cemetery business, or have been convicted of a felony.
(g) An application for registration as a preneed sales agent shall be submitted to the Secretary of State with an application fee of $100.00 by the preneed dealer on a form that has been designated by the Secretary of State and shall contain, at a minimum, the following:
(1) The name, address, social security number, and date of birth of the applicant and such other information as the Secretary of State may reasonably require of the applicant;
(2) The name, address, and license number of the sponsoring preneed dealer;
(3) A representation, signed by the applicant, that the applicant meets the requirements set forth in subsection (f) of this Code section;
(4) A representation, signed by the preneed dealer, that the applicant is authorized to offer, sell, and sign preneed contracts on behalf of the preneed dealer and that the preneed dealer has informed the applicant of the requirements and prohibitions of this chapter relating to preneed sales, the provisions of the preneed dealer's preneed contract, and the nature of the merchandise, services, or burial rights sold by the preneed dealer;
(5) A statement indicating whether the applicant has any type of working relationship with any other preneed dealer or insurance company; and
(6) A signed agreement by the applicant consenting to an investigation of his or her background with regard to the matters set forth in this Code section, including, without limitation, his or her criminal history.
(h) An individual may be registered as a preneed sales agent on behalf of more than one preneed dealer, provided that the individual has received the written consent of all such preneed dealers.
(i) A preneed dealer who has registered a preneed sales agent shall notify the Secretary of State within three business days of a change in such individual's status as a preneed sales agent with such preneed dealer or upon the occurrence of any other event which would disqualify the individual as a preneed sales agent.
(j) Upon receipt and review of an application that complies with all of the requirements of this Code section, the Secretary of State shall register the applicant. The Secretary of State shall by rule provide for annual renewal of registration and a renewal fee of $50.00.
(k) Each cemetery registered under this chapter shall maintain in its files for a period of five years a properly completed and executed application for employment in a form prescribed by the Secretary of State for each employee, officer, independent contractor, or other agent directly or indirectly involved in cemetery or preneed sales or any person occupying a similar status or performing similar functions. If a request is made, said forms shall be made available for inspection by authorized representatives of the Secretary of State.
Any individual engaged in the sale of life insurance shall not use the name of any funeral establishment or any price list which identifies the funeral establishment or any reference to a funeral establishment or crematory in connection with the sale of life insurance without the express written authorization of the funeral establishment. When a preneed funeral contract is funded by a life insurance policy, the funeral establishment shall be designated as the assignee of the death benefit payable under the policy in accordance with the terms of the preneed contract.
(a) As used in this Code section, the term “income” means:
(1) The net income, including the collected dividends, interest, net realized gains, and other income of the trust reduced by any expenses, including, but not limited to, taxes on income, fees, commissions, and costs; or
(2) Four percent of the net fair market value of the trust assets, averaged over the lesser of the three preceding years or the period during which the trust has been in existence.
(b)(1) Each cemetery or cemetery company required to be registered by this chapter shall establish and maintain an irrevocable trust fund for each cemetery owned.
(2) For trust funds established on or after July 1, 2000, the initial deposit to said irrevocable trust fund shall be the sum of $10,000.00 and the deposit of said sum shall be made before selling or contracting to sell any burial right. No such initial deposit shall be required with respect to any cemetery for which there is an existing perpetual care account on July 1, 2000. The trust fund shall apply to sales or contracts for sale of lots, grave spaces, niches, mausoleums, columbaria, urns, or crypts in which perpetual care has been promised or guaranteed.
(3) The initial corpus of the trust fund and all subsequent required deposits shall be deposited in a state bank, state savings and loan institution, savings bank, national bank, or federal savings and loan institution, whose deposits are insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act, or other depository or trustee which is approved by the Secretary of State or which meets the standards contained in the rules and regulations promulgated by the Secretary of State.
(4) Each perpetual care trust fund established on or after July 1, 2000, shall be named “The __________ Cemetery __________ Perpetual Care Trust Fund” with the first blank being filled by the name of the cemetery and the second blank being filled by the month and year of the establishment of such trust fund. If a cemetery has a perpetual care trust fund existing on July 1, 2000, and the perpetual care trust fund agreement permits, the cemetery may make additional deposits to such a trust fund on the condition that the entire corpus of the trust fund, any income earned by the trust fund, and any subsequent deposits to the trust fund are thereafter governed by the provisions of this chapter, the “Georgia Cemetery and Funeral Services Act of 2000,” as it existed on July 1, 2000, except for the amount of the initial deposit to the trust fund. If a cemetery owner or company elects to establish a new perpetual care trust fund subject to the provisions of this chapter, the “Georgia Cemetery and Funeral Services Act of 2000,” as it existed on July 1, 2000, any perpetual care trust fund which existed on July 1, 2000, is subject to the provisions of law in effect on the date of its establishment, and deposits for sales transacted on or after July 1, 2000, shall be deposited in the trust fund established on or after July 1, 2000. If a cemetery existing on July 1, 2000, has an existing perpetual care trust fund which complies with provisions of law in effect on the date of its establishment, a new trust fund created in compliance with this chapter shall not require an initial deposit.
(c) Whenever any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt wherein perpetual care or endowment care is promised or contracted for or guaranteed is sold by any cemetery, the cemetery shall make deposits to the trust fund that equal 15 percent of the sales price of the burial right or 7.5 percent of the total sales price of any mausoleums, niches, columbaria, urns, or crypts, provided that the minimum deposit for each burial right shall be $50.00; provided, further, that on July 1, 2003, and every three years thereafter, the amount of said minimum deposit shall be adjusted by the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. The Secretary of State shall adopt such adjustment to the amount of said minimum deposit by rule. Deposits to the trust fund shall be made not later than 30 days following the last day of the month in which payment therefor is made, or, in the case of a free space, the month in which the space is given. In the event any sale is made on an installment basis, not less than a pro rata share of the principal portion of each payment made and allocated to the lot, grave, space, niche, mausoleum, columbarium, urn, or crypt shall be allocated to the required trust fund deposit, provided that all deposits to the trust fund shall be completed within six years from the date of the signing of the perpetual care contract. The manner of any such allocation shall be clearly reflected on the books of the registrant.
(d) The initial $10,000.00 corpus of the perpetual care trust fund shall not be counted as part of the required periodic deposits and shall be considered to be corpus or principal.
(e)(1) The income earned by the trust fund shall be retained by the trust fund. At such time as either:
(A) The cemetery owner is not licensed and has not been licensed for 90 or more consecutive days to sell burial rights;
(B) The cemetery is under the management of a receiver; or
(C) Less than 50 percent of available lots are unsold,
95 percent of the income from the trust fund shall be paid to the owner or receiver exclusively for covering the costs of care and maintenance of the cemetery, including reasonable administrative expenses incurred in connection therewith. The income of the trust fund shall be paid to the owner or receiver at intervals agreed upon by the recipient and the trustee, but in no case shall the income be paid more often than monthly.
(2) Subject to the limitations set forth in paragraph (1) of this subsection, a cemetery owner or receiver may request a trustee to distribute income following the unitrust distribution method provisions outlined in Code Section 53-12-362. The cemetery owner or receiver may select the unitrust distribution method by delivering written instructions to the trustee no later than 60 days prior to when the conversion shall take place. Such notification shall also be provided to the Secretary of State. The unitrust distribution method and the distribution rate selected shall remain in effect unless the cemetery or cemetery company notifies the trustee and the Secretary of State of its desire to effect a change.
(3) Disbursements from the trust in accordance with this subsection shall be made on a monthly, quarterly, semiannual, or annual basis, as agreed upon by the cemetery or cemetery company and the trustee.
(4) The Secretary of State may limit or prohibit any distribution based on the unitrust distribution method provisions in situations where investment returns and distribution practices have not resulted in sufficient protection of the perpetual care trust fund's trust principal based upon a three to five-year analysis.
(f) There shall be no withdrawals from the trust fund except pursuant to the provisions of this chapter or by court order.
(g)(1) The assets of a trust fund shall be invested and reinvested subject to all the terms, conditions, limitations, and restrictions imposed by the laws of the State of Georgia upon executors and trustees regarding the making and depositing of investments with trust moneys pursuant to former Code Sections 53-8-1 through 53-8-4 as such existed on December 31, 1997, if applicable; Code Section 53-8-1; or Code Section 53-12-340. Subject to said terms, conditions, limitations, and restrictions, the trustee of the perpetual care trust fund shall have full power to hold, purchase, sell, assign, transfer, reinvest, and dispose of any of the securities and investments in which any of the assets of said fund are invested, including proceeds of investments.
(2) Any state bank, national bank, or other financial institution authorized to act in a fiduciary capacity in this state, which presently or in the future serves as a fiduciary or cofiduciary of the trust fund of a perpetual care cemetery, may invest part or all of such trust fund held by it for investment in interests or participation in one or more common trust funds established by that state bank, national bank, or other financial institution for collective investment, if such investment is not expressly prohibited by the instrument, judgment, decree, or order creating the fiduciary relationship and if, in the case of cofiduciaries the trust institution procures the consent of its cofiduciary or cofiduciaries to such investment, and notwithstanding the fact that such common trust funds are not invested and reinvested subject to all the terms, conditions, limitations, and restrictions imposed by the laws of the State of Georgia upon executors and trustees in the making and disposing of their investments.
(3) Notwithstanding any other provision of this subsection, the Secretary of State shall establish rules and regulations for investments of a trust fund established on or after July 1, 2000, or otherwise governed by this chapter, the “Georgia Cemetery and Funeral Services Act of 2000,” as it existed on July 1, 2000, as necessary to preserve the corpus and income of such a fund and for determining what restrictions are necessary for such purpose.
(4) At any time, in the event that the perpetual care trust fund contains an amount less than the amount required by this Code section, the cemetery owner shall, within 15 days after the earlier of becoming aware of such fact or having been so notified by the Secretary of State, deposit into the perpetual care trust fund an amount equal to such shortfall. In the event that the Secretary of State and the cemetery owner disagree regarding the amount of such shortfall, no penalty shall be imposed upon the cemetery owner for any failure to comply with this paragraph unless such failure occurs after notice and opportunity for a hearing as provided in Code Section 10-14-23.
(h) Moneys of the perpetual care trust fund shall not be invested in or loaned to any business venture controlled by the cemetery owner, a person who owns a controlling interest of a cemetery owner that is not a natural person, or an affiliate of any of these persons or entities.
(i) The trustee shall furnish yearly to the Secretary of State a financial report in a form designated by the Secretary of State with respect to the perpetual care trust fund.
(j) Upon a finding by a court of competent jurisdiction of failure to deposit or maintain funds in the trust account as required by this chapter or of fraud, theft, or misconduct by the owners of the cemetery or the officers or directors of a cemetery company which has wasted or depleted such funds, the cemetery owners or the officers or directors of a cemetery company may be held jointly and severally liable for any deficiencies in the trust account as required in this chapter.
(a)(1) Each preneed dealer which sells burial or funeral merchandise on a preneed basis or preneed burial or funeral services, other than preneed funeral services described in Code Section 10-14-7.1, shall establish and maintain a trust fund or a preneed escrow account.
(2) With respect to each monument and outer burial container, bench, coping, and other burial and funeral merchandise items except for caskets, and except as otherwise provided in paragraph (3) of this subsection, the amount to be deposited to said trust or escrow account shall be not less than 35 percent of the sales price of such monument or outer burial container; in no event shall the amount deposited be less than 120 percent of the wholesale price of such items. For caskets, the amount to be deposited to said trust or escrow account shall be not less than 100 percent of the sales price of such merchandise; in no event shall the amount deposited be less than 110 percent of the wholesale price of such merchandise. If the contract of sale shall include grave spaces or items not deemed to be burial or funeral merchandise, the portion of the sales price attributable to the sale of the burial or funeral merchandise shall be determined, and it shall only be as to such portion of the total contract as constitutes burial or funeral merchandise that the deposit described in this paragraph shall be required. In the event that the sale of burial or funeral merchandise is under an installment contract, the required trust deposit shall be a pro rata part of the principal portion of each installment payment, such deposit only being required as payments are made by the purchaser for such burial or funeral merchandise. In the event the installment contract is discounted or sold to a third party, the seller shall be required to deposit an amount equal to the undeposited portion of the required deposit of the sales price of such burial or funeral merchandise at such time as if the contract were paid in full.
(3) With respect to a monument, outer burial container, bench, coping, and other burial and funeral merchandise items except for caskets, the itemized sales price of which does not include the installation of such item, 100 percent of the installation cost shall be deposited in the trust or escrow account.
(4) With respect to cash advance items and the sale of preneed funeral services, the amount to be deposited to said trust or escrow account shall be 100 percent of the sales price of such funeral services or the full amount of a cash advance item. The time and manner of deposit shall be the same as that specified for deposit of burial or funeral merchandise sale funds to the escrow account.
(5) With respect to preneed burial services, the amount to be deposited to said trust or escrow account shall be not less than 35 percent of the sales price of such burial services; in no event shall the amount deposited be less than 120 percent of the wholesale price of such burial services. The time and manner of deposit shall be the same as that specified for deposit of burial or funeral merchandise sale funds to the escrow account.
(b) The deposit specified in paragraphs (2), (3), (4), and (5) of subsection (a) of this Code section shall be made not later than 30 days following the last day of the month in which any payment is received.
(c) A preneed escrow account governed by the provisions of this Code section shall be established and maintained in a state bank, state savings and loan institution, savings bank, national bank, federal savings and loan association, whose deposits are insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act, or other organization approved by the Secretary of State which is located and doing business in this state.
(d)(1) If the account is maintained with a trustee, the assets of the trust fund shall be invested and reinvested by the trustee subject to all the terms, conditions, limitations, and restrictions imposed by Georgia law upon executors and trustees regarding the making and depositing of investments with trust moneys pursuant to Code Sections 53-8-1 through 53-8-4 of the “Pre 1998 Probate Code,” if applicable, or Code Sections 53-8-1 and 53-12-340 of the “Revised Probate Code of 1998,” if applicable, or Chapter 12 of Title 53, “The Revised Georgia Trust Code of 2010.” Subject to said terms, conditions, limitations, and restrictions, the trustee of the preneed accounts shall have full power to hold, purchase, sell, assign, transfer, reinvest, and dispose of any of the securities and investments in which any of the assets of said account are invested, including proceeds of investments.
(2) Any state bank, national bank, or other financial institution authorized to act in a fiduciary capacity in this state, which presently or in the future serves as a fiduciary or cofiduciary of the trust fund of a preneed dealer, may invest part or all of such trust fund held by it for investment in interests or participation in one or more common trust funds established by that state bank, national bank, or other financial institution for collective investment, if such investment is not expressly prohibited by the instrument, judgment, decree, or order creating the fiduciary relationship and if, in the case of cofiduciaries, the trust institution procures the consent of its cofiduciary or cofiduciaries to such investment, and notwithstanding the fact that such common trust funds are not invested and reinvested subject to all the terms, conditions, limitations, and restrictions imposed by the laws of the State of Georgia upon executors and trustees in the making and disposing of their investments.
(e)(1) For burial or funeral merchandise, funds shall be released from the trust or escrow account when the burial or funeral merchandise is delivered or, if the burial or funeral merchandise is not yet delivered, within the time required by law after a purchaser requests a refund. The preneed dealer is considered to have delivered burial or funeral merchandise when the burial or funeral merchandise is:
(A) Actually delivered to the purchaser at the time of need;
(B) Actually delivered to the purchaser at the purchaser's request;
(C) In the case of a monument, when the monument is attached to realty;
(D) In the case of a monument, when the preneed dealer has the monument manufactured for the purchaser and placed into storage with a responsible third party bonded and insured for the wholesale value thereof and evidenced by a receipt specifically identifying the monument, the specific preneed contract, the location of the monument, and identify and address of the bonding and insuring parties; or
(E) At such other times as prescribed by the rule or order of the Secretary of State.
Notwithstanding the foregoing, outer burial containers may not be delivered prior to need.
(2) Deposits made from funds received in payment of preneed services shall remain in the trust or escrow account until such services are performed, at which time said funds may be released to the preneed dealer. The trustee may require certification by the preneed dealer of delivery of merchandise or performance of services before release of funds.
(3) The funds on deposit under the terms of this subsection regarded as escrow funds may not be pledged, hypothecated, transferred, or in any manner encumbered by the escrow agent nor may said funds be offset or taken for the debts of the preneed dealer until such time as the merchandise has been delivered or the services performed, but after delivery of the burial or funeral merchandise concerned.
(f) At any time, in the event that the preneed trust or escrow account contains an amount less than the amount required by this Code section, the preneed dealer shall, within 15 days after the earlier of becoming aware of such fact or having been so notified by the Secretary of State, deposit into the preneed account an amount equal to such shortfall. In the event that the Secretary of State and the preneed dealer disagree regarding the amount of such shortfall, no penalty shall be imposed upon the preneed dealer for any failure to comply with this provision unless such failure occurs after notice and opportunity for a hearing as provided in Code Section 10-14-23.
(g) In the case of release of trusted or escrowed funds to a purchaser at the purchaser's request pursuant to subsection (e) of this Code section, a sum not less than the lesser of 10 percent of the trusted or escrowed amount or one-half of the interest earned or return upon such funds as of the date of release, as provided by the Secretary of State by rule or regulation, may be retained by the preneed dealer as an administrative fee for reimbursement of the preneed dealer for costs.
(h) The trustee shall furnish yearly to the Secretary of State a financial report in a form designated by the Secretary of State with respect to the preneed trust or escrow account.
(i) Trust funds shall not be invested in or loaned to any business venture controlled by the preneed dealer, a person who owns a controlling interest of a cemetery owner that is not a natural person, or an affiliate of any of these persons or entities.
(j) Upon a finding by a court of competent jurisdiction of failure to deposit or maintain funds in the preneed trust or escrow account as required by this chapter or of fraud, theft, or other misconduct by the preneed dealer or the officers or directors of the preneed dealer which has wasted or depleted such funds, the preneed dealer or the officers or directors of the preneed dealer may be held jointly and severally liable for any deficiencies in the preneed trust or escrow account.
(a) Notwithstanding any provision to the contrary contained in Chapter 1 of Title 7, the “Financial Institutions Code of Georgia,” or in any other provision of law, a preneed dealer registered or deemed registered pursuant to Code Section 10-14-5 who provides funeral services shall provide for funds to be deposited in an escrow account pursuant to Code Section 10-14-7 or with a depository institution in accordance with this Code section and placed in an individual trust fund account that is:
(1) Titled in the name of a funeral establishment;
(2) Established for the purpose of providing preneed funeral services;
(3) Payable upon the death of the purchaser in favor of a funeral establishment for purposes of providing funeral services; and
(4) Refundable to the purchaser's designee or the estate of the deceased, such that 100 percent of the trust funds following a deduction of any amounts paid or owing as taxes and a 3 percent charge for administrative costs shall be returned to the designee or estate where funeral services are not provided by the funeral establishment.
(b)(1) One hundred percent of funds to be held in trust shall be deposited in the trust account. The deposit of such funds shall be made not later than 30 days following the last day of the month in which any payment is received. Trust fund accounts shall be established and maintained in a state bank, state savings and loan institution, savings bank, national bank, federal savings and loan association, whose deposits are insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act, or other organization approved by the Secretary of State which is located and doing business in this state.
(2)(A) If the account is maintained with a trustee, the assets of the trust account shall be invested and reinvested by the trustee subject to all the terms, conditions, limitations, and restrictions imposed by Georgia law upon executors and trustees regarding the making and depositing of investments with trust moneys and subject to the limitations and restrictions imposed pursuant to this Code section.
(B) Subject to said terms, conditions, limitations, and restrictions, the trustee of a preneed account shall have full power to hold, purchase, sell, assign, transfer, reinvest, and dispose of any of the securities and investments in which any of the assets of said account are invested, including proceeds of investments. A personal representative shall be authorized to invest funds in:
(i) Interest-bearing deposits in any chartered state or national bank or trust company or savings and loan association located in this state to the extent the deposits are insured by the Federal Deposit Insurance Corporation or comparable insurance; and
(ii) Direct and general obligations of the United States government, obligations unconditionally guaranteed by the United States government, and obligations of the agencies of the United States government enumerated in Code Section 53-8-3.
(C) In making investments pursuant to subparagraph (b)(2)(B) of this Code section and in acquiring and retaining those investments and managing the property of the estate, the personal representative shall exercise the judgment and care, under the circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
(3) In the event that the sale of burial or funeral merchandise is under an installment contract, the required trust deposit shall be a pro rata part of the principal portion of each installment payment, such deposit only being required as payments are made by the purchaser for such burial or funeral merchandise.
(c) The trustee shall furnish yearly to the Secretary of State a financial report in a form designated by the Secretary of State with respect to the preneed trust or escrow account.
(d) Upon a finding by a court of competent jurisdiction of failure to deposit or maintain funds in the trust account as required by this Code section or of fraud, theft, or misconduct by a funeral establishment or a funeral director or his or her employee, representative, or agent which has wasted or depleted such funds, the funeral establishment owners, funeral director, or employee, representative, or agent of a funeral director or establishment may be held jointly and severally liable for any deficiencies in the trust account.
(e) Any other provision of law notwithstanding, a trust fund account established and maintained under this Code section and the moneys contained therein shall not be deemed an asset or income for purposes of recapture of income or funds owed or for any other purpose.
(f) Nothing contained herein shall preclude a licensed funeral director in full and continuous charge from maintaining an escrow account with aggregate escrow funds for 100 percent of any preneed contract amount for purposes of passing through funds within 60 days to a trust fund account or payment of a policy of insurance for preneed services.
(a) The Secretary of State, by order, may prohibit a person who is an employee, officer, independent contractor, or other agent directly involved in the sale of burial rights, burial or funeral merchandise, or burial or funeral services from employment or other association with a registrant under this chapter if the Secretary of State finds that such is in the public interest and that said person:
(1) Has willfully made or caused to be made, in any documents filed with the Secretary of State under this chapter, or in any hearings conducted by the Secretary of State, any statement which, at the time and in the light of the circumstances under which it was made, was false or misleading with respect to any material fact, or has willfully omitted to state in any application any material fact which is required to be stated therein or necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(2) Has willfully violated or willfully failed to comply with any provision of this chapter or a predecessor law or any regulation or order promulgated or issued under this chapter or any predecessor law;
(3) Has been adjudicated, civilly or criminally, to have committed fraud or to have violated any law of any state involving fair trade or business practices, has been convicted of a misdemeanor of which fraud is an essential element or which involves any aspect of the funeral or cemetery business, or has been convicted of a felony;
(4) Has engaged in any unethical or dishonest practices in the funeral or cemetery business; or
(5) Is permanently or temporarily enjoined, suspended, or barred by any court of competent jurisdiction or by any state or other jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the funeral or cemetery business.
(b) Where the Secretary of State finds that there are grounds for the prohibition from employment provided in this Code section, he or she may issue an order prohibiting an employee, officer, independent contractor, or other agent directly or indirectly involved in cemetery or preneed sales or any person occupying a similar status or performing similar functions from employment with a registered cemetery or preneed dealer. Such an order shall not be effective until notice and opportunity for hearing are provided in accordance with Code Section 10-14-23 and until the Secretary of State shall issue a written order in accordance with Code Section 10-14-23; but the Secretary of State may, if he or she finds that the public safety or welfare requires emergency action, immediately issue an order prohibiting such person from such employment. Such an order of immediate prohibition will expire automatically if the Secretary of State fails to afford notice and opportunity for hearing pursuant to Code Section 10-14-23.
(a) A registration application may be amended by filing with the Secretary of State an amended application signed by the persons required to sign the original application under Code Section 10-14-4 or 10-14-5.
(b) Every applicant registered pursuant to Code Section 10-14-4 or 10-14-5 shall agree to deliver in Georgia, on demand of the Secretary of State, all records and documents concerning funds, accounts, transactions, and activities of said applicant or said applicant shall agree to pay the expenses incurred in sending an auditor approved by the Secretary of State to wherever such records and documents are located for the purpose of conducting an audit pursuant to the provisions of this chapter.
(c) When any cemetery or preneed dealer registered under Code Section 10-14-4 is sold or the ownership is otherwise transferred, or a controlling interest is sold or transferred, the vendor or the transferor of such cemetery, preneed dealer, or interest shall remain liable for any funds that should have been deposited prior to the date of such sale or transfer in the perpetual care trust fund or the preneed escrow account, or both.
(1) Prior to such sale or transfer, the vendor or transferor shall notify the Secretary of State of the proposed transfer and submit to the Secretary of State any document or record the Secretary of State may require in order to demonstrate that said vendor or transferor is not indebted to the perpetual care trust fund or the preneed escrow account, or both. After the transfer of ownership or control and the presentation of proof of currency of the perpetual care trust fund or the preneed escrow account, or both, by the vendor or transferor, the Secretary of State may require the presentation of proof of the continued current status of the perpetual care trust fund or the preneed escrow account, or both, by the vendee or transferee. The Secretary of State is authorized to recover from such vendor, transferor, vendee, or transferee, for the benefit of the perpetual care trust fund or the preneed escrow account, or both, all sums which the vendor, transferor, vendee, or transferee has not properly accounted for and paid into the trust fund.
(2) When the vendee or transferee has complied with the provisions of this subsection, he or she shall submit to the Secretary of State an application for registration and appropriate fees pursuant to Code Section 10-14-4. The Secretary of State shall then issue a certificate of registration to said vendee or transferee.
(a) Except as otherwise provided in subsections (b) and (c) of this Code section, every cemetery initially registered according to the provisions of this chapter on or after July 1, 1998, shall consist of not less than ten acres of land.
(b) The following cemeteries shall not be subject to the requirement of subsection (a) of this Code section:
(1) All cemeteries registered according to this chapter prior to August 1, 1986; or
(2) Cemeteries initially registered on or after August 1, 1986, but before July 1, 1998, which shall consist of not less than 25 acres of land, except for cemeteries subject to a provision of previous law, which allowed cemeteries consisting of not less than ten acres of land dedicated solely for burial purposes and located in counties having a population of less than 10,000 according to the United States decennial census of 1990 or any future such census.
(c) The Secretary of State may provide by rule or regulation for a smaller minimum size for a cemetery which consists solely of one or more columbaria.
(a) The Secretary of State may issue a stop order denying effectiveness to, or suspending or revoking the effectiveness of, any registration and shall give notice of such issuance pursuant to Code Section 10-14-23 if he or she finds that the order is in the public interest and that:
(1) The registration as of its effective date, or as of any earlier date in the case of an order denying effectiveness, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(2) The applicant has failed to file financial reports required by subsection (h) of Code Section 10-14-12;
(3) The applicant has failed to pay the filing fees required by Code Section 10-4-4;
(4) The person or entity registered or sought to be registered or the individual owner, corporate owner, or person who owns a controlling interest of the corporate owner has been adjudicated, civilly or criminally, to have committed fraud or to have violated any law of any state involving fair trade or business practices, has been convicted of a misdemeanor of which fraud is an essential element or which involves any aspect of the funeral or cemetery business, or has been convicted of a felony;
(5) The trustee for the perpetual care trust fund or the escrow agent for the preneed escrow account has failed to file financial reports required by subsection (i) of Code Section 10-14-6 or subsection (g) of Code Section 10-14-29;
(6) The person or entity registered or seeking to be registered has become insolvent or has filed a voluntary petition for protection from creditors; or
(7) Any provision of this chapter or any rule, order, or condition lawfully imposed under this chapter has been willfully violated by:
(A) The person filing the registration application;
(B) The registrant's individual owner, corporate owner, or person who owns a controlling interest of the corporate owner; or
(C) The trustee or escrow agent of a trust fund or escrow account established and maintained pursuant to the provisions of this chapter.
(b) The Secretary of State may deny registration or refuse to grant renewal of registration if he or she finds that such refusal or denial is in the public interest and that:
(1) The registration application does not contain a current list of preneed sales agents and accompanying information as required by Code Section 10-14-4;
(2) The applicant has not paid filing fees or renewal fees as required by Code Section 10-14-4; or
(3) The applicant has not filed the financial reports required by Code Section 10-14-4 or subsection (h) of Code Section 10-14-12.
(c) In addition to the actions authorized in subsections (a) and (b) of this Code section, the Secretary of State shall be authorized to impose a penalty fee not to exceed $500.00 for the late filing of an application for a renewal registration or late filing of financial reports required by this chapter, or both. However, the penalty fee or fees imposed for the late filing of an application for renewal of registration or financial reports may be waived by the Secretary of State upon a showing to the Secretary of State that such late filing was due to circumstances beyond the control of the applicant or registrant despite the exercise by the applicant or registrant of due diligence in the timely filing of the application or report.
(d) The Secretary of State may by order summarily postpone or suspend the effectiveness of the registration or refuse to register any applicant pending final determination of any proceeding under this Code section. Upon the entry of the order, the Secretary of State shall promptly notify the applicant or registrant of the order and the reasons for the order and that, within 15 days after the receipt of a written request, the matter will be heard. If no hearing is requested and none is ordered by the Secretary of State, the order will remain in effect until it is modified or vacated by the Secretary of State. If a hearing is requested or ordered, the Secretary of State, after notice of an opportunity for hearing to the persons affected, may modify or vacate the order or extend it until final determination.
(e) The Secretary of State may vacate or modify a stop order if he or she finds that the conditions which prompted its entry have changed or that it is otherwise in the public interest to do so.
(f) No stop order issued under any part of this Code section, except the first sentence of subsection (d) of this Code section, shall become effective until and unless the Secretary of State has complied with the provisions of Code Section 10-14-23.
(a) Each registrant under paragraph (1) or (2) of subsection (b), or both, of Code Section 10-14-4 shall establish and maintain a separate and distinct account for the perpetual care trust fund for each cemetery and for the preneed escrow account. There shall be no commingling, codeposits, or transfers of funds between the accounts, except pursuant to court order and with the knowledge and consent of the Secretary of State.
(b) Each registrant shall keep and maintain separate books, records, accounts, and documents regarding the transaction of its business. The books, records, accounts, and documents related to the keeping of funds pursuant to the provisions of this chapter and the rules and regulations promulgated under this chapter shall be kept and maintained by the registrant separately from the other books, records, accounts, and documents related to the transaction of business.
(c) A cemetery owner or an officer or director of a cemetery company may be a trustee of the perpetual care trust fund of a cemetery which the individual or cemetery company owns upon approval of the Secretary of State.
(d) The Secretary of State shall have the authority to prescribe or approve the form of the perpetual care trust agreement and shall have the authority to approve or disapprove any amendments to said trust agreement as of July 1, 1983.
(e) The Secretary of State shall have the authority to prescribe or approve the form of the preneed escrow account agreement and shall have the authority to approve or disapprove any amendments to said escrow account agreement as of July 1, 1983.
(f) A trustee or escrow agent of a registrant may be removed pursuant to the provisions of Code Section 10-14-19 or by other means provided by the laws of this state.
(g) Each perpetual care cemetery and preneed dealer shall file a report concerning the perpetual care trust and the preneed escrow account annually with the Secretary of State, provided that, after notice and a hearing, the Secretary of State may order more frequent reports in the event any such report is not filed in a timely manner or if the report filed contains errors and deficiencies. The report shall be on a form prescribed by the Secretary of State.
For the purposes of venue for any civil or criminal action under this chapter, any violation of this chapter or of any rule, regulation, or order promulgated under this chapter shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated this chapter, in the county of any violator's principal place of business in this state, in the county of the cemetery's or preneed dealer's or burial or funeral merchandise dealer's location or residence in this state, and in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, or other material or objects which were used in furtherance of said violation.
(a) The administration of the provisions of this chapter shall be vested in the Secretary of State.
(b) The Secretary of State shall keep a record of all proceedings related to his or her duties under this chapter and shall keep records in which shall be entered the names of all cemeteries, preneed dealers, preneed sales agents, and burial or funeral merchandise dealers to whom certificates of registration are issued, which records shall be open at all times for public inspection.
(c) The Secretary of State shall have the authority to administer oaths in, and to prescribe forms for, all matters arising under this chapter.
(d) The Secretary of State shall have authority to employ examiners, clerks and stenographers, and other employees as the administration of this law may require. The Secretary of State shall also have authority to appoint and employ investigators who shall have, in any case in which there is a reason to believe a violation of this chapter has occurred or is about to occur, the right and power to serve subpoenas and to swear out and execute search warrants and arrest warrants.
(e) The Secretary of State shall have the power to make such rules and regulations from time to time as he or she may deem necessary and proper for the enforcement of this chapter including, without limitation, rules regarding the solicitation of burial or funeral rights, merchandise, or services. The Secretary of State shall regulate such solicitation to protect the public from solicitation which is intimidating, overreaching, vexatious, fraudulent, or misleading; which utilizes undue influence; or which takes undue advantage of a person's ignorance or emotional vulnerability. Such rules and regulations shall be adopted, promulgated, and contested as provided in Chapter 13 of Title 50.
(a) The Secretary of State, at his or her discretion:
(1) May make such public or private investigations or examinations inside or outside this state as he or she deems necessary to determine whether any person has violated or is about to violate any provision of this chapter or any rule, regulation, or order under this chapter or to aid in the enforcement of this chapter or in the prescribing of rules and regulations under this chapter; and
(2) May require or permit any person to file a statement in writing, under oath or otherwise as the Secretary of State determines, as to all the facts and circumstances concerning the matter to be investigated.
(b) For the purpose of conducting any investigation as provided in this Code section, the Secretary of State shall have the power to administer oaths, to call any party to testify under oath at such investigations, to require the attendance of witnesses and the production of books, records, and papers, and to take the depositions of witnesses; and, for such purposes, the Secretary of State is authorized to issue a subpoena for any witness or a subpoena for the production of documentary evidence to compel the production of any books, records, or papers. Said subpoenas may be served by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address or by investigators appointed by the Secretary of State or shall be directed for service to the sheriff of the county where such witness resides or is found or where such person in custody of any books, records, or papers resides or is found. The fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the Secretary of State in the same manner that other expenses of the Secretary of State are paid.
(c) In case of refusal to obey a subpoena issued under any Code section of this chapter to any person, a superior court of appropriate jurisdiction, upon application by the Secretary of State, may issue to the person an order requiring him or her to appear before the court to show cause why he or she should not be held in contempt for refusal to obey the subpoena. Failure to obey a subpoena may be punished by the court as contempt of court.
(d) The Secretary of State is authorized to hold investigative hearings with respect to any matter under this chapter. A hearing as provided for in this Code section may be conducted by any person designated by the Secretary of State for that purpose. A transcript of the testimony and evidence resulting from such hearing may, but need not, be transcribed by the Secretary of State. A report of the investigative hearing shall be included in the investigative report prepared for the Secretary of State. Any recommendations of the designated representative of the Secretary of State shall be advisory only and shall not have the effect of an order of the Secretary of State.
(e) The Secretary of State shall have the authority to inspect and review or cause to be reviewed the books of each registrant under this chapter. Said inspection or review may be conducted by the Secretary of State as frequently as the Secretary of State may deem appropriate.
(a) The owner of every cemetery may make, adopt, and enforce rules and regulations for the use, care, control, management, restriction, and protection of such cemetery and of all parts and subdivisions thereof; for restricting, limiting, and regulating the use of all property within such cemetery; for regulating and preventing the introduction and care of plants or shrubs within such grounds; for regulating the conduct of persons and preventing improper assemblages therein; and for all other purposes deemed necessary by the owner of the cemetery for the proper conduct of the business of the cemetery and the protection of safeguarding the premises and the principles, plans, and ideas on which the cemetery was organized. From time to time, the owner may amend, add to, revise, change, modify, or abolish such rules and regulations. Such rules and regulations shall be plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copy, at the usual place for transacting the regular business of the cemetery; provided, however, that no cemetery to which the provisions of this chapter are applicable shall have the power to adopt any rule or regulation in conflict with any of the provisions of this chapter or in derogation of the contract rights of lot owners or owners of burial rights. Upon request, the registrant shall provide a copy of said rules and regulations to any person who requests it.
(b) The owner of every cemetery shall have the further right to establish reasonable rules and regulations regarding the type material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery. Subject to the provisions of this Code section and rules of the Secretary of State, reasonable rules may further be adopted regarding the installing by the cemetery or others of all merchandise to be installed in the cemetery. Such rules and regulations shall be posted conspicuously and maintained, subject to inspection and copy, at the usual place for transacting the regular business of the cemetery. Upon request, the registrant shall provide a copy of said rules and regulations to any person requesting it. No cemetery owner shall have the right to prevent the use of any merchandise purchased by a lot owner or owner of a burial right, his or her representative, his or her agent, or his or her heirs or assigns from any source, provided the merchandise meets all rules and regulations.
(c) All registrants shall have a full and complete schedule of all charges for grave lots, burial rights, burial or funeral merchandise, and burial or funeral services provided by the registrant plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copy, at the usual place for transacting the regular business of the cemetery. Upon request, the registrant shall provide a copy of said schedule of charges to any person requesting it.
(a) It shall be unlawful for any person:
(1) To sell or offer to sell any burial rights, burial or funeral services, or burial or funeral merchandise by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, the buyer not knowing of the untruth or omission, if such person shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission;
(2) To sell or offer to sell any, burial rights, burial or funeral services, or burial or funeral merchandise in violation of any provision of this chapter or rule, regulation, or order promulgated or issued by the Secretary of State under any provision of this chapter;
(3) Except as otherwise provided in paragraph (4) of this subsection, in connection with the sale of preneed merchandise or services requiring funds to be deposited into a preneed escrow account, to fail to refund, within three business days of the request of the purchaser or the purchaser's heirs or assigns, the sales prices plus applicable interest as determined according to rules promulgated by the Secretary of State, provided that such request is made prior to the earlier of:
(A) The delivery of the merchandise or services; or
(B) The death of the person for whose interment or inurnment the merchandise or services are intended to be used.
Certain solicitations during a person's last illness relating to refunds shall be a violation of Part 2 of Article 15 of Chapter 1 of this title, the “Fair Business Practices Act of 1975,” as set out in Code Section 10-1-393.7;
(4) In connection with the sale of monuments or vaults, to fail to refund within three business days of the request of the purchaser or the purchaser's heirs or assigns the full sales price, without interest, provided that such request is made prior to the earlier of:
(A) The delivery of the merchandise or services; or
(B) The death of the person for whose interment or inurnment the monument or vault is intended to be used.
Certain solicitations during a person's last illness relating to refunds shall be a violation of Part 2 of Article 15 of Chapter 1 of this title, the “Fair Business Practices Act of 1975,” as set out in Code Section 10-1-393.7;
(5) To misappropriate, convert, illegally withhold, or fail to account for any trust funds, escrow funds, or other funds established or maintained pursuant to this chapter;
(6) Knowingly to cause to be made, in any document filed with the Secretary of State or in any proceeding under this chapter, any statement which is, at the time it is made and in the light of the circumstances under which it is made, false or misleading in any material respect;
(7) To sell, offer to sell, solicit offers to buy, or otherwise engage in the sale of funeral services if such person is not a licensed funeral director;
(7.1) To sell, offer to sell, solicit offers to buy, or otherwise engage in the sale of burial rights or burial merchandise if such person is not registered pursuant to the provisions of this chapter; or
(8) To sell any grave space which has not been platted and pinned.
(b) It shall be unlawful for any person in connection with the ownership, offer, sale, or purchase of any burial rights, burial or funeral services, or burial or funeral merchandise, directly or indirectly:
(1) To employ any device, scheme, or artifice to defraud; or
(2) To engage in any transaction, act, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller.
(c) In connection with the sale or installation of merchandise, it shall be unlawful for a cemetery company to:
(1) Impose any condition upon the installation of merchandise obtained from a third party, other than to require installation by a registrant under this chapter or as may be otherwise permitted by the rules and regulations of the Secretary of State;
(2) Charge a fee for the installation of merchandise purchased or obtained from and to be installed by a person or firm other than the cemetery company or its agents, provided that the cemetery owner may charge a fee not to exceed $125.00 to reimburse the cemetery owner for its reasonable costs incurred in assisting in the siting of a monument on the lot on which it is to be installed, supervision and inspection of the installation to ensure compliance with the rules and regulations of the cemetery, and any administrative functions associated with the installation; provided, further, any such fee is properly disclosed and published as required by this chapter and charged regardless of whether the installer is or is not the cemetery owner or affiliated therewith;
(3) Refuse to mark the place on the grave where the merchandise is to be installed and inspect the installation when completed to ensure compliance with cemetery rules and regulations;
(4) Require any person or firm that installs, places, or sets merchandise to pay any fee other than any fee charged pursuant to paragraph (2) of this subsection;
(5) Tie the purchase of any grave space or burial right to the purchase of merchandise from or through the seller or any other designated person or corporation;
(6) Refuse to provide care or maintenance for any portion of a grave site on which a monument has been placed, provided that installation has been in accordance with lawful rules and regulations of the cemetery;
(7) Attempt to waive liability with respect to damage caused by cemetery employees or agents to merchandise after installation, where merchandise or installation service is not purchased from the cemetery company providing grave space or from or through any other person or corporation designated by the person authorized to sell grave space or the cemetery company providing grave space; provided, however, that no cemetery company may be held liable for the improper installation of merchandise where merchandise is not installed by the cemetery company or its agents; or
(8) After the promulgation of rules and regulations relating to the subject matter of this subsection by the Secretary of State, to require any person who installs, places, or sets merchandise to obtain any form of insurance, bond, or surety or make any form of pledge, deposit, or monetary guarantee as a condition of entry or access to cemetery property or the installation of merchandise thereon, other than as may be in accordance with said rules and regulations.
(d) Other than fees for the processing and for the sale of burial rights, burial or funeral merchandise, and burial or funeral services, no other fee may be directly or indirectly charged, contracted for, or received by a cemetery company as a condition for a customer to use any burial right, burial or funeral merchandise, or burial or funeral service, except for:
(1) Charges paid for opening and closing a grave and vault installation;
(2) Charges paid for transferring burial rights from one purchaser to another; however, no such fee may exceed $75.00 and such fee must have been disclosed in writing to the owner at the time of the initial purchase of the burial right from the cemetery;
(3) Charges for sales, documentary, excise, and other taxes actually and necessarily paid to a public official, which charges must be supported in fact;
(4) Charges for credit life and credit disability insurance, but only as requested by the purchaser, and the premiums for which do not exceed the applicable premium chargeable in accordance with the rates filed with the Insurance Commissioner; or
(5) Charges for interest on unpaid balances in accordance with applicable law.
Nothing herein shall prohibit a cemetery company from charging a reasonable fee for services it provides in connection with a lawful disinterment, provided such charges do not exceed the greater of the cemetery company's normal and customary charges for interment or the actual costs incurred by the cemetery directly attributable to such disinterment. Nothing herein shall prohibit a cemetery from charging a reasonable fee for actual costs it incurs due to the commencement of a funeral service at a time other than previously agreed by the cemetery company, the funeral establishment, and the owner of the burial rights, or his or her heirs and assigns, provided such charges are calculated in a manner which is disclosed and published as required by this chapter and that such charges are directly attributable to extra costs incurred by the cemetery company due to such late commencement.
(e) In connection with the sale of burial rights, burial or funeral merchandise, or burial or funeral services, it shall be unlawful for any person to fail to comply with the provisions of Article 1 of Chapter 1 of this title, “The Georgia Retail Installment and Home Solicitation Sales Act” or Part 2 of Article 15 of Chapter 1 of this title, the “Fair Business Practices Act of 1975.” For the purposes of this subsection, burial rights, burial or funeral services, and burial or funeral merchandise shall constitute goods as that term is used in said article and said part.
(f) In connection with the installation of a monument:
(1) It shall be unlawful for any person installing said monument to fail to comply with the lawful rules and regulations of the cemetery regarding monument installation, provided that said rules and regulations are provided in writing to the installer prior to the installation. In the event such installation is not in conformity with said rules and regulations, the installer shall be liable to the cemetery for the actual cost of correcting such installation so it will be in conformity, provided that:
(A) The cemetery has notified the installer by certified mail, return receipt requested, of the reasons for the nonconformity not later than one year after the date of the installation; and
(B) The installer, provided it is registered under this chapter, shall have had not less than 30 days from its receipt of such notice to correct such nonconformity; and
(2) An installer of a monument shall be liable to the cemetery, to its customers, and to third persons for damages to their respective property and for other damages arising due to the negligence or intentional act of such installer, which liability may not be waived by contract.
(g) No program offering free burial rights may be conditioned on any requirement to purchase additional burial rights, burial or funeral merchandise, or burial or funeral services.
(h) The contract rights of any purchaser of preneed merchandise shall be freely transferable without fee except as provided in this chapter.
(i) It shall be unlawful for any owner or operator of a perpetual care cemetery to fail to provide care and maintenance for the cemetery.
(j) The fees set forth in this Code section shall be annually adjusted to the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. The Secretary of State shall adopt such adjustments to the amount of said fees by rule.
(a) A registrant offering to provide burial rights, burial or funeral merchandise, or burial or funeral services to the public shall:
(1) Provide by telephone, upon request, accurate information regarding the retail prices of burial or funeral merchandise and services offered for sale by the registrant;
(2) Fully disclose all regularly offered services and merchandise prior to the selection of burial rights, burial or funeral services, or burial or funeral merchandise. The full disclosure required shall identify the prices of all burial rights, burial or funeral services, and burial or funeral merchandise provided by the registrant;
(3) Not make any false or misleading statements of the legal requirement as to the necessity of a casket or outer burial container;
(4) Provide a good faith estimate of all fees and costs the customer will incur to use any burial rights, merchandise, or services purchased;
(5) Provide to the customer a current copy of the rules and regulations of the registrant;
(6) Provide the registrant's policy on cancellation and refunds to each customer;
(7) Provide refunds if burial or funeral merchandise is not delivered as represented; and
(8) Provide the customer, upon the purchase of any burial right or burial or funeral merchandise or service, a written contract, the form of which has been filed with the Secretary of State.
(b) In a manner established by rule of the Secretary of State, the written contract shall provide on the signature page of the contract, clearly and conspicuously in boldface ten-point type or larger, the following:
(1) The words “purchase price” together with the sum of all items set out in the contract in accordance with subsection (d) of this Code section;
(2) The amount to be placed in trust;
(3) Either:
(A) A statement that no further expenses will be incurred at the time of need; or
(B) A statement that additional expenses will be incurred at the time of need, the registrant's current price for each such expense, and a statement that such prices may be expected to increase in the future; and
(4) The telephone number designated by the Secretary of State for questions and complaints.
(c) The written contract shall be completed prior to the signing of the contract by the customer and a copy of the contract shall be provided to the customer. As used in this subsection, the term “signing” includes any manual, facsimile, conformed, or electronic signature, and the term “electronic signature” means an electronic symbol or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
(d) The written contract shall provide an itemization of the amounts charged for all burial rights, burial or funeral services, burial or funeral merchandise, cash advances, and fees and other charges, which itemization shall be clearly and conspicuously segregated from everything else on the written contract.
(e) The written contract shall contain a description of the burial or funeral merchandise covered by the contract to include, when applicable, size, materials from which the burial or funeral merchandise is made, and other relevant specifications as may be required by the Secretary of State.
(f) The written contract shall disclose the location at which funeral services are to be provided and the space number of each lot or grave space.
(a) Whenever it may appear to the Secretary of State that any person has engaged in, or is engaging in, or is about to engage in any act or practice or transaction which is prohibited by this chapter or by any rule, regulation, or order of the Secretary of State promulgated or issued pursuant to any Code section of this chapter or which is declared to be unlawful under this chapter, the Secretary of State may, at his or her discretion, act under any or all of the following paragraphs:
(1) Issue an order, if he or she deems it to be appropriate in the public interest or for the protection of consumers, prohibiting such person from continuing such act, practice, or transaction, subject to the right of such person to a hearing as provided in Code Section 10-14-23;
(2) Apply to any superior court of competent jurisdiction in this state for an injunction restraining such person and such person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or engaging therein or doing any acts in furtherance thereof, and for appointment of a receiver or an auditor and such other and further relief as the facts may warrant; or
(3) Transmit such evidence as may be available concerning such act, practice, or transaction to any district attorney or to the Attorney General, who may, at his or her individual discretion, institute the necessary criminal proceedings.
(b) In any proceedings for an injunction, the Secretary of State may apply for and be entitled to have issued the court's subpoena requiring the appearance forthwith of any defendant and its agents, employees, partners, officers, or directors, and the production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction. Upon proof of any of the offenses described in this Code section, the court may grant such injunction and appoint a receiver or an auditor and issue such other orders for the protection of the public as the facts may warrant.
(c) In any criminal proceeding, either the district attorney or the Attorney General, or both, may apply for and be entitled to have issued the court's subpoena requiring the appearance forthwith of any defendant or its agents, employees, partners, officers, or directors and the production of such documents, books, and records as may appear necessary for the prosecution of such criminal proceedings.
(d) In any civil proceeding brought under this Code section, if the Secretary of State shall establish that a perpetual care trust fund or preneed escrow account has not been established and maintained as required, the assets of the cemetery, cemetery company, or preneed dealer may be seized and sold by the state under orders of the court to the extent necessary to provide said perpetual care trust fund or preneed escrow account and set up the same. In addition, where the registration has been revoked, the whole company property may be ordered sold after the perpetual care trust fund and preneed escrow account have been established so that the purchaser of the cemetery may continue to operate the same and maintain it under the terms of this chapter.
(e) The Secretary of State shall have the authority to petition a court of competent jurisdiction to remove a trustee or escrow agent for violation of the provisions of this chapter, the rules and regulations promulgated under this chapter, or for other unlawful acts and practices.
(f) In addition to any other penalties that may be imposed, any person willfully violating any provisions of Code Section 10-14-17 or 10-14-18 or of Code Section 10-14-11 or any rule, regulation, or order of the Secretary of State made pursuant to Code Section 10-14-17, 10-14-18, or 10-14-11 shall be subject to a civil penalty not to exceed $10,000.00 for a single violation and not exceeding $100,000.00 for multiple violations in a single proceeding or a series of related proceedings. The Secretary of State shall be authorized in his or her discretion to decline to impose a penalty or to impose any lesser penalty that he or she may deem to be sufficient and appropriate in any particular case. The amount of such penalty may be collected by the Secretary of State in the same manner that money judgments are now enforced in the superior courts of this state, except that the order or finding of the Secretary of State as to such penalty may be appealed according to the provisions of Code Section 10-14-22.
(a) Except as otherwise provided in subsection (b) of this Code section, any person who shall willfully violate any provision of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than $1,000.00 or imprisonment not to exceed 12 months, or both.
(b) Any person who shall willfully violate Code Section 10-14-17, Code Section 10-14-18, or any provision of this chapter regarding the establishment, maintenance, or reporting of any trust, reserve, or escrow funds mandated by this chapter shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $10,000.00 or imprisonment for not less than one and not more than five years, or both.
(c) Nothing in this chapter shall limit any statutory or common-law right of the state to punish any person for violation of any provision of any law.
(a) Any person who violates any provision of subsection (a) of Code Section 10-14-17 shall be liable to the person buying such burial lot, burial right, burial merchandise, or burial service; and such buyer may bring action in any court of competent jurisdiction to recover the consideration paid in cash for the burial lot, burial right, burial merchandise, or burial service together with interest at the legal rate from the date of such payment, and reasonable attorney's fees and costs.
(b) In addition to the remedy set forth in subsection (a) of this Code section, a purchaser may apply to a court of competent jurisdiction in this state for an order authorizing the recovery of the preneed escrow deposit if a registrant fails to deliver burial merchandise or perform preneed burial services in accordance with the terms of the preneed sales contract.
(c) No person may bring action under this Code section more than two years from the date of the scheduled completion of the contract for sale or from the date of the sale if there is no contract for sale.
(d) Every cause of action under this chapter survives the death of any person who might have been a plaintiff or defendant.
(e) Nothing in this chapter shall limit any statutory or common-law right of any person in any court for any act involving the sale of a burial lot, burial right, burial merchandise, or burial services.
(a)(1) An appeal may be taken from any order of the Secretary of State resulting from a hearing held in accordance with the provisions of Code Section 10-14-23 by any person adversely affected thereby to the Superior Court of Fulton County, Georgia, by serving on the Secretary of State, within 20 days after the date of entry of such order, a copy of the petition for review filed in the Superior Court of Fulton County and signed by the petitioner, stating:
(A) The order from which the appeal is taken;
(B) The ground upon which a reversal or modification of such order is sought; and
(C) A demand for a certified transcript of the record of such order.
(2) The proceedings on the petition for review shall be governed by Chapter 3 of Title 5 except as provided in this Code section.
(b) Upon receipt of such petition for review, the Secretary of State shall, within ten days thereafter, make, certify, and deliver to the clerk of the Superior Court of Fulton County a transcript of the record of the order from which the appeal is taken, provided that the petitioner shall pay the reasonable costs of such transcript. Said petition for review and transcript of the record shall constitute petitioner's complaint. Said complaint shall thereupon be entered on the trial calendar of the court in accordance with the court's normal procedures.
(c) If the order of the Secretary of State shall be reversed, the court shall by its mandate specifically direct the Secretary of State as to his or her further action in the matter, including the making and entering of any order or orders in connection therewith and the conditions, limitations, or restrictions to be contained therein.
(a) Where the Secretary of State has issued any order forbidding the sale of burial lots, burial rights, burial merchandise, or burial services under any provision of this chapter, he or she shall promptly send to the cemetery owner, cemetery company, burial or funeral merchandise dealer, or preneed dealer and to the persons who have filed such application for registration a notice of opportunity for hearing. Before entering an order refusing to register any person or entity and after the entering of any order for revocation or suspension, the Secretary of State shall promptly send to such person or entity a notice of opportunity for hearing. Hearings shall be conducted by the Secretary of State pursuant to this Code section.
(b) Notices of opportunity for hearing shall be served by investigators appointed by the Secretary of State or sent by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address, and such notice shall state:
(1) The order which has issued or which is proposed to be issued;
(2) The ground for issuing such order or proposed order; and
(3) That the person to whom such notice is sent will be afforded a hearing upon request if such request is made within ten days after receipt of the notice.
(c) Whenever a person requests a hearing in accordance with the provisions of this Code section, there shall immediately be set a date, time, and place for such hearing, and the person requesting such hearing shall forthwith be notified thereof. The date set for such hearing shall be within 15 days, but not earlier than five days after the request for hearing has been made, unless otherwise agreed to by the issuer of the notice and the person requesting such hearing.
(d) For the purpose of conducting any hearing as provided in this Code section, the Secretary of State shall have the power to administer oaths, to call any party to testify under oath at such hearings, to require the attendance of witnesses and the production of books, records, and papers, and to take the depositions of witnesses; and for such purposes the Secretary of State is authorized, at the request of the person requesting such hearing or upon the official's own initiative, to issue a subpoena for any witnesses or a subpoena for the production of documentary evidence to compel the production of any books, records, or papers. Said subpoenas may be served by certified mail or statutory overnight delivery, return receipt requested, to the addressee's business mailing address or by investigators appointed by the Secretary of State or shall be directed for service to the sheriff of the county where such witness resides or is found or where such person in custody of any books, records, or papers resides or is found. The fees and mileage of the sheriff, witness, or person shall be paid from the funds in the state treasury for the use of the Secretary of State in the same manner that other expenses of the Secretary of State are paid.
(e) At any hearing conducted under this Code section, a party or an affected person may appear in his or her own behalf or may be represented by an attorney. A stenographic record of the testimony and other evidence submitted shall be taken unless the Secretary of State and the person requesting such hearing shall agree that such a stenographic record of the testimony shall not be taken. A transcript of the proceeding shall be made available to a party upon the payment of reasonable costs. The Secretary of State shall pass upon the admissibility of such evidence, but a party may at any time make objections to such rulings thereon; and, if the Secretary of State refuses to admit evidence, the party offering the same shall make a proffer thereof and such proffer shall be made a part of the record of such hearing.
(f) If the Secretary of State does not receive a request for a hearing within the prescribed time, he or she may permit an order previously entered to remain in effect or he or she may enter a proposed order. If a hearing is requested and conducted as provided in this Code section, the Secretary of State shall issue a written order which shall set forth his or her findings with respect to the matters involved and enter an order in accordance with the Secretary's findings.
When consent to service of process is required under this chapter, such consent to service of process shall be in the form prescribed by the Secretary of State, shall be irrevocable, and shall provide that actions brought by the State of Georgia arising out of or founded upon the sale of burial lots, burial rights, burial services, or burial merchandise in violation of this chapter may be commenced in any court of competent jurisdiction with proper venue within this state by the service of process or pleadings upon the Secretary of State against the person executing such consent. Notwithstanding any provision in any other law to the contrary, service of any such process or pleadings in any such action against a person who has filed a consent to service with the Secretary of State shall, if made on the Secretary of State, be by duplicate copies, one of which shall be filed in the office of the Secretary of State and the other shall immediately be forwarded by the Secretary of State by certified mail or statutory overnight delivery to the person against whom such process or pleadings are directed at such person's latest address on file in the office of the Secretary of State.
Any condition, stipulation, or provision binding any person acquiring any burial lot, burial right, burial merchandise, or burial services to waive:
(1) Compliance with any provision of this chapter or of the rules and regulations promulgated under this chapter;
(2) Any rights provided by this chapter or by the rules and regulations promulgated under this chapter; or
(3) Any defenses arising under this chapter or under the rules and regulations promulgated under this chapter
shall be void.
For any action taken or any proceeding had under the provisions of this chapter or under color of the law, the Secretary of State shall be immune from liability and action to the same extent that any judge of any court of general jurisdiction in this state would be immune.
(a) Prior law exclusively governs all actions, prosecutions, or proceedings which are pending or may be initiated on the basis of facts or circumstances occurring before July 1, 2000, except that no civil action may be maintained to enforce any liability under prior law unless brought within any period of limitation which applied when the cause of action accrued and, in any event, no later than July 1, 2000.
(b) All effective registrations under prior law, all administrative orders relating to such registrations, and all conditions imposed upon such registrations remain in effect. They shall be deemed to have been filed, entered, or imposed under this chapter but are governed by prior law.
(c) Judicial review of all administrative orders as to which review proceedings have not been instituted by July 1, 2000, are governed by Code Section 10-14-22, except that no review proceeding may be instituted unless the petition is filed within any period of limitation which applied to a review proceeding when the order was entered and, in any event, no later than August 1, 2000.
(a) A cemetery company shall start construction of that section of a mausoleum or columbarium in which sales, contracts for sales, reservations for sales, or agreements for sales are being made within four years after the date of the first such sale or 50 percent of the mausoleum or columbarium has been sold and the purchase price has been received, whichever occurs first. The construction shall be completed within five years after the date of the first sale made. If the units have not been completely constructed at the earlier of time of need or the time specified in this subsection, all moneys paid shall be refunded upon request, plus interest earned thereon for that portion of the moneys deposited in the preneed escrow account and an amount equal to the interest that would have been earned on that portion of the moneys that were not so deposited.
(b) A cemetery company that plans to offer for sale space in a section of a mausoleum or columbarium prior to construction shall establish a preconstruction trust fund by written instrument. The preconstruction trust fund shall be administered by a corporate trustee approved by the Secretary of State and not affiliated with the cemetery company and operated in conformity with applicable provisions of Code Section 10-14-7. The preconstruction trust fund shall be separate from any other trust funds that may be required by this chapter.
(c) Before a sale, contract for sale, reservation for sale, or agreement for sale in a mausoleum section or columbarium may be made, the cemetery company shall compute the amount to be deposited to the preconstruction trust fund. The total amount to be deposited in the fund for each unit of the project shall be computed by dividing the cost of the project plus 10 percent of the cost, as computed by a licensed contractor, engineer, or architect, by the number of crypts or niches in the mausoleum or columbarium. When payments are received in installments, the percentage of the installment payment placed in trust must be identical to the percentage which the payment received bears to the total cost of the contract, including other burial or funeral merchandise and services purchased. Preconstruction trust fund payments shall be made within 30 days after the end of the month in which payment is received.
(d) When the cemetery company delivers a completed crypt, mausoleum, columbarium, or niche acceptable to the purchaser in lieu of the crypt or niche purchased prior to construction, all sums deposited to the preconstruction trust fund for that purchaser shall be paid to the cemetery company.
(e) Upon completion of the mausoleum section or columbarium, the cemetery company shall certify completion to the trustee and shall be entitled to withdraw all funds deposited to the account of such mausoleum section or columbarium.
(f) If the mausoleum section or columbarium is not completed within the time limits set out in this Code section, the trustee shall contract for and cause the project to be completed and pay therefor from the trust funds deposited to the project's account, paying any balance, less cost and expenses, to the cemetery company. The cemetery company shall be liable for any difference between the amount necessary to complete construction and the amount of trust funds.
(g) On or before January 31 of each year, the trustee shall file with the Secretary of State in the form prescribed by the Secretary of State, a full and true statement as to the activities of any trust established pursuant to this Code section for the preceding calendar year.
The Secretary of State, by rule, may adopt minimum standards for interment of human remains, including, without limitation, standards for depth of burial, composition of vaults, caskets, and other containers, siting and marking of burial lots, and minimum standards for construction of mausoleums and columbaria. In addition, the Secretary of State may, by rule, provide for the minimum standards for or prohibition of aboveground burial containers.
As used in this chapter, the term:
(1) “Attorney General” means the Attorney General or his or her designee.
(2) “Business” means a sole proprietorship, partnership, corporation, association, or other group, however organized and whether or not organized to operate at a profit. The term includes a financial institution organized, chartered, or holding a license or authorization certificate under the laws of this state, any other state, the United States, or any other country, or the parent or the subsidiary of any such financial institution. The term also includes an entity that destroys records. However, for purposes of this chapter, the term shall not include any bank or financial institution that is subject to the privacy and security provisions of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801, et seq., as amended, and as it existed on January 31, 2002, nor shall it include any hospital or health care institution licensed under Title 31 which is subject to the privacy and security provisions of the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, nor any other entity which is governed by federal law, provided that the federal law governing the business requires the business to discard a record containing personal information in the same manner as Code Section 10-15-2.
(3) “Cardholder” means any person or organization named on the face of a payment card to whom or for whose benefit the payment card is issued.
(4) “Customer” means an individual who provides personal information to a business for the purpose of purchasing or leasing a product or obtaining a service from the business.
(5) “Discard” means to throw away, get rid of, or eliminate.
(6) “Dispose” means the sale or transfer of a record for value to a company or business engaged in the business of record destruction.
(7) “Merchant” means any person or governmental entity which receives from a cardholder a payment card or information from a payment card as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from a person or governmental entity.
(8) “Payment card” means a credit card, charge card, debit card, or any other card that is issued to a cardholder and that allows the cardholder to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
(9) “Personal information” means:
(A) Personally identifiable data about a customer's medical condition, if the data are not generally considered to be public knowledge;
(B) Personally identifiable data which contain a customer's account or identification number, account balance, balance owing, credit balance, or credit limit, if the data relate to a customer's account or transaction with a business;
(C) Personally identifiable data provided by a customer to a business upon opening an account or applying for a loan or credit; or
(D) Personally identifiable data about a customer's federal, state, or local income tax return.
(10)(A) “Personally identifiable” means capable of being associated with a particular customer through one or more identifiers, including, but not limited to, a customer's fingerprint, photograph, or computerized image, social security number, passport number, driver identification number, personal identification card number, date of birth, medical information, or disability information.
(B) A customer's name, address, and telephone number shall not be considered personally identifiable data unless one or more of them are used in conjunction with one or more of the identifiers listed in subparagraph (A) of this paragraph.
(11) “Record” means any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics.
(12) “Reencoder” means an electronic device that places encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card.
(13) “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card.
A business may not discard a record containing personal information unless it:
(1) Shreds the customer's record before discarding the record;
(2) Erases the personal information contained in the customer's record before discarding the record;
(3) Modifies the customer's record to make the personal information unreadable before discarding the record; or
(4) Takes actions that it reasonably believes will ensure that no unauthorized person will have access to the personal information contained in the customer's record for the period between the record's disposal and the record's destruction.
(a) A merchant who accepts a payment card for the transaction of business shall not print more than five digits of the payment card's account number or print the payment card's expiration date on a receipt provided to the cardholder. This subsection applies only to receipts described in subsection (b) of this Code section and does not apply to a transaction in which the sole means of recording the payment card's account number or expiration date is by handwriting or by an imprint or copy of the payment card.
(b)(1) Effective July 1, 2004, subsection (a) of this Code section applies to receipts that are electronically transferred by a payment card processor and printed using a cash register or other machine or device that is first used on or after July 1, 2004.
(2) Effective July 1, 2006, subsection (a) of this Code section applies to all receipts that are electronically transferred by a payment card processor and printed, including those printed using a cash register or other machine or device that is first used before July 1, 2004.
(a) No person shall use a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card with the intent to defraud the authorized user, the issuer of the authorized user's payment card, or a merchant.
(b) No person shall use a reencoder to place information encoded on the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different card with the intent to defraud the authorized user, the issuer of the authorized user's payment card, or a merchant.
(a) The Attorney General shall be authorized to enforce the provisions of this chapter.
(b) The Attorney General shall have the authority to investigate alleged violations of this chapter, including all investigative powers available under the “Fair Business Practices Act of 1975,” Code Section 10-1-390, et seq., including, but not limited to, the power to issue investigative demands and subpoenas as provided in Code Sections 10-1-403 and 10-1-404.
(c) Nothing contained in this Code section precludes law enforcement or prosecutorial agencies from investigating violations of Code Section 10-15-4.
(a) If the Attorney General determines, after notice and hearing, that a business has violated Code Section 10-15-2, the Attorney General may issue an administrative order imposing a penalty of not more than $500.00 for each customer's record that contains personal information that is wrongfully disposed of or discarded; provided, however, in no event shall the total fine levied by the Attorney General exceed $10,000.00. It shall be an affirmative defense to the wrongful disposing of or discarding of a customer's record that contains personal information if the business can show that it used due diligence in its attempt to properly dispose of or discard such records.
(b) If the Attorney General determines, after notice and hearing, that a business has violated Code Section 10-15-3, the Attorney General may issue an administrative order imposing a penalty of not more than $250.00 for the first violation of Code Section 10-15-3, and a penalty of $1,000.00 for a second or subsequent violation of Code Section 10-15-3.
(c) The hearing and any administrative review in connection with alleged violations of Code Section 10-15-2 or 10-15-3 shall be conducted in accordance with the procedure for contested cases pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” Any person who has exhausted all administrative remedies available and who is aggrieved or adversely affected by a final order or action of the Attorney General shall have the right of judicial review in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(d) The Attorney General may file in the superior court of the county in which the person under an order resides, or if the person is a corporation, in the superior court of the county in which the corporation under an order maintains its principal place of business, a certified copy of or the final order of the Attorney General, whether or not the order was appealed. Thereafter the court shall render a judgment in accordance with the order and notify the parties. The judgment shall have the same effect as a judgment rendered by the court.
(a) A violation of Code Section 10-15-4 shall be punishable by imprisonment for not less than one nor more than three years or a fine not to exceed $10,000.00, or both. Any person who commits a violation for the second or any subsequent offense shall be punished by imprisonment for not less than three nor more than ten years or a fine not to exceed $50,000.00, or both.
(b) Any person found guilty of a violation of this chapter may be ordered by the court to make restitution to any consumer victim or any business victim of the fraud.
(c) Each violation of this chapter shall constitute a separate offense.
(d) The Attorney General and prosecuting attorneys shall have the authority to conduct the prosecution for a violation of Code Section 10-15-4.
(e) Upon a violation of this chapter, the court may issue any order necessary to correct a public record that contains false information resulting from the actions which resulted in the violation.
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