Code Me. R. — Department of the Attorney General | Code of Maine Rules — Department of the Attorney General

26-239 Department of Attorney General - General

Chapter 1 Rules for Strip Searches, Manual Mouth Searches, and Body Cavity Searches of Arrestees

Code Me. R. 26-239 Ch. 1 Rules for Strip Searches, Manual Mouth Searches, and Body Cavity Searches of Arrestees {#sec-26-239-ch.-1 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 1}

SUMMARY: These rules for strip searches, manual mouth searches, and body cavity searches of arrestees are promulgated pursuant to 5 M.R.S.A. § 200-G(l). They establish acceptable procedures for conducting these kinds of searches. To the extent that these rules do not address any aspect of these kinds of searches, the governing law is the Fourth Amendment to the United States Constitution and Article I, §5 of the Maine Constitution. Section I of the rules contains definitions. Section II specifies the preconditions for conducting strip searches, manual mouth searches, and body cavity searches. Section III identifies the people who may conduct strip searches, manual mouth searches, and body cavity searches and the procedures to be followed. Section IV sets forth the records that must be kept of these kinds of searches. Section V clarifies that these rules apply only to arrestees and do not apply to persons who are taken into custody for execution of a sentence, who have been remanded by a court to a facility, or who are already inmates of a facility and clarifies that these rules do not apply to other types of searches of arrestees or other persons.

I. Definitions

Arrestee: a person who has been placed under custodial arrest by a law enforcement officer. Once remanded by a court to a facility, the person is no longer considered an arrestee.
Body cavity search: an inspection of an arrestee’s anal or vaginal cavity by insertion of fingers or instruments.
Facility: any state correctional or detention facility, county institution or facility, or local lockup.
Law enforcement officer: For purposes of these rules, “law enforcement officer” means a “law enforcement officer” as defined in 17-A M.R.S.A. §2(17), a “law enforcement officer” as defined in 25 M.R.S.A. §2801-A(5), a “transport officer” as defined in 25 M.R.S.A. §2801-A(8), a “corrections officer” as defined in 17-A M.R.S.A. §2(5-A) and 25 M.R.S.A. §2801-A(2), a “corrections supervisor” as defined in 17-A M.R.S.A. §2(5-B), or a jailer, jailer’s assistant, or employee as provided for in 30-A M.R.S.A. §1501.
Manual mouth search: a search of an arrestee’s mouth, including any dentures located in the mouth, with the use of fingers or instruments.
Medically trained personnel: “Medically trained personnel” means a licensed physician, physician’s assistant, nurse practitioner, or registered nurse.
Strip search: a search during which any private part of an arrestee’s body, including an arrestee’s anal or genital area or buttocks or a female arrestee’s breasts, is visually inspected. There may not be any manual search of the arrestee during a strip search except for a manual mouth search unless the rules governing body cavity searches are complied with.

II. Preconditions for Searches

Strip search and manual mouth search. An arrestee may be subjected to a strip search and manual mouth search if either of the following preconditions for such searches exists:

A. Arrestee for a violent, weapon, or drug offense. An arrestee for a violent, weapon, or drug offense, or a corresponding juvenile offense, may be subjected to a strip search and manual mouth search.

B. All other arrestees. An arrestee for other than a violent, weapon, or drug offense, or corresponding juvenile offense, may be subjected to a strip search and manual mouth search if the law enforcement officer authorizing such search has reasonable suspicion that the arrestee is concealing on or inside the arrestee’s body a weapon, contraband, or evidence of a crime. Reasonable suspicion may be based on such factors as the nature of any offense for which the arrestee has previously been arrested, any prior facility history of the arrestee, the arrestee’s appearance, the arrestee’s conduct, and items found during a less intrusive search.

Body cavity search. An arrestee may be subjected to a body cavity search if the law enforcement officer authorizing such search has probable cause to believe that the arrestee is concealing inside a body cavity a weapon, contraband, or evidence of a crime. The search shall be conducted pursuant to a search warrant issued upon probable cause. The warrant may be dispensed with, however, under the constitutionally recognized exceptions of exigent circumstances or consent. Consent must be written.

III. Method of Search

Strip search and manual mouth search

A. Person to conduct search. A strip search and manual mouth search must be conducted by

a law enforcement officer or officers of the same gender as the arrestee, or
medically trained personnel of the same gender as the arrestee.

B. Exclusion of third persons. The search cannot be observed by persons other than

persons conducting the search as identified in III(l)(A) above, and
only the number of law enforcement officers of the same gender as the arrestee necessary to be present at the search for one or more law enforcement purposes, such as (a) the protection of the person conducting the search, (b) the witnessing of the removal of any weapon, contraband, or evidence of a crime from the body or clothing of the arrestee, (c) the seizure of such weapon, contraband, or evidence, and (d) any other legitimate law enforcement purpose.

C. Persons conducting or observing the search shall treat the arrestee with respect to minimize embarrassment and indignity.

Body cavity search

A. Person to conduct search. A body cavity search must be conducted by medically trained personnel of the same gender as the arrestee. A body cavity search may not be conducted by law enforcement officers, unless the law enforcement officers are also medically trained personnel.

B. Exclusion of third persons. The search cannot be observed by persons other than

the medically trained personnel conducting the search, and
only the number of law enforcement officers of the same gender as the arrestee necessary to be present at the search for one or more law enforcement purposes, such as (a) the protection of the medically trained personnel, (b) the witnessing of the removal of any weapon, contraband, or evidence of a crime from the body or clothing of the arrestee, (c) the seizure of such weapon, contraband, or evidence, and (d) any other legitimate law enforcement purpose.

C. Persons conducting or observing the search shall treat the arrestee with respect to minimize embarrassment and indignity.

IV. Records

Each strip search, manual mouth search, and body cavity search of an arrestee shall be recorded in a log kept by the law enforcement agency whose officers were involved in the search. The log shall be kept for a minimum of seven years.

The log shall indicate the name of the officer who ordered the search, the name of the officer or medically trained personnel who conducted the search, the names of the officers present at the search, the name of the arrestee, the type of search conducted (strip search, manual mouth search, or body cavity search), the parts of the body searched, and the justification or justifications for the search, e.g., (1) search warrant, (2) exigent circumstances and probable cause, (3) consent, (4) arrestee for a violent, weapon, or drug crime, or corresponding juvenile offense, or (5) arrestee for other than a violent, weapon, or drug crime, or corresponding juvenile offense, combined with reasonable suspicion. Where the justification for a warrantless search is based on the existence of probable cause and exigent circumstances or reasonable suspicion, such probable cause and exigent circumstances or reasonable suspicion shall be summarized in the log. Where the justification for a warrantless search is consent, the written consent must be kept by the law enforcement agency for a minimum of seven years.

V. Inapplicability of Rules

Pursuant to 5 M.R.S.A. §200-G, these rules do not apply to persons who are taken into custody for execution of a sentence, who have been remanded by a court to a facility, or who are already inmates of a facility. Strip searches, manual mouth searches, and body cavity searches of these persons are governed by the Fourth Amendment to the United States Constitution, Article I, §5 of the Maine Constitution, and existing policies and procedures of facilities. These rules do not apply to other types of searches of arrestees or other persons, including, but not limited to, pat down or frisk searches and visual mouth searches. These other searches are governed by the Fourth Amendment to the United States Constitution, Article I, §5 of the Maine Constitution, and existing policies and procedures of facilities.

History

STATUTORY AUTHORITY: 5 M.R.S.A. §200-G (1)
EFFECTIVE DATE: August 1, 1986
NON-SUBSTANTIVE CORRECTIONS: April 4, 2000
REPEALED AND REPLACED: October 9, 2006 – filing 2006-423
REPEALED AND REPLACED: 03-201 Chapter 1 page 2

Chapter 2 Forfeiture Rules

Code Me. R. 26-239 Ch. 2 Forfeiture Rules {#sec-26-239-ch.-2 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 2}

SUMMARY: The following rules are designed to implement certain asset forfeiture provisions of the Maine Asset Forfeiture Law, 15 M.R.S.A. §5821 et seq. These rules make uniform throughout the State the procedures and standards for the initiation and settlement of forfeiture actions and for the distribution of the proceeds of forfeiture actions. They are adopted pursuant to 15 M.R.S.A. §5822(7). Forfeiture actions should not result in preferential treatment in any criminal matter for offenders with substantial financial resources.

Standards for Initiation of Civil Forfeiture Actions. (15 M.R.S.A. § 5822)

A. The State, after assessing all of the facts in the case, including any valid defenses, must be satisfied that it can meet its burden of proof, which is a preponderance of the evidence (15 M.R.S.A. §5822(3)).

B. The State must evaluate the property to be seized. The evaluation of the property shall include the following considerations:

outstanding liens or third party claims:
physical condition;
problems and costs of preservation and storage;
title search;
value;
wrongdoer's interest in property;
whether appropriate reports and petitions have been filed in a timely manner. See, e.g., 15 M.R.S.A. §5823 (1) & (2).

C. The State must be satisfied that the property to be forfeited has been useful in facilitating, perpetrating, or rewarding unlawful drug activity.

D. Requests for the written approval of the Attorney General of forfeitures pursuant to 15 M.R.S.A. §5822 (1)(A) shall be accompanied by:

a letter signed by the requesting District Attorney or Assistant Attorney General explaining in detail the findings and basis thereof with regard to I(A)(B) & (C) above, together with all necessary documentation;
copies of all relevant police and laboratory reports; and,
a draft of the proposed civil complaint seeking forfeiture.

E. The State must be satisfied that the loss to be sustained by the owner of a forfeited asset by virtue of the forfeiture is proportional to the culpability of that owner. In making such determination, the State shall give due consideration to the relative significance of the owner as a drug distributor and to the quantity of scheduled drugs involved.

Standards for Settlement of Civil Forfeiture Actions.

A. Settlement of a civil forfeiture action shall occur separate and apart from the resolution and disposition of related criminal charges and shall not be tied to the resolution and disposition of a criminal case.

B. The State, after assessing all of the facts including those listed in II (C) below, must be satisfied that the settlement is in the best interest of the State and that the property to be forfeited has been useful in facilitating, perpetrating or rewarding unlawful drug activity.

C. The State must evaluate the settlement. The evaluation shall include the following considerations:

the State's ability to meet its burden of proof;
the effect of delay on both the forfeiture case and the assets;
the extent of the wrongdoer's criminal activity;
the presence or absence of exculpatory evidence;
the strength of the evidence; and,
the value of the asset in excess of liens.

D. The State, after assessing and evaluating the case pursuant to II(B) and (C) above, may settle a forfeiture case if:

the settlement is a final disposition of the forfeiture case;
neither the State of Maine nor any of its agencies, departments, employees or officers are obligated to engage in any conduct which exposes or may expose the State of Maine, its agencies, departments, employees or officers to liability;
the settlement is confirmed by court order and written agreement; and,
the settlement has been reached independently of the resolution of criminal charges and does not involve a compromise of a criminal case.

' E. Settlements involving real estate must be approved in writing by the Attorney General prior to settlement. A request for such approval shall include the materials required in I (D) (1-3) together with a letter signed by the appropriate District Attorney explaining in detail the proposed settlement and explaining why the settlement is recommended in light of the criteria of II (B) (C) & (D) above.

F. Settlements involving the equitable transfer of property to a state agency, county or municipality must also comply with the requirements of III below.

Standards for Equitable Transfer of Forfeited Assets. (15 M.R.S.A. §§5822, 5824)

A. In the case of any asset to be forfeited to any entity other than the General Fund, the Attorney General shall determine whether an asset decreed or agreed by settlement to be forfeited is to be distributed to a state agency, county or municipality. If the Attorney General determines that a forfeited asset is to be so distributed, he may further determine the percentage share of such asset to be distributed to each such state agency, county or municipality.

B Requests for equitable transfer to a state agency, county or municipality shall be reviewed by the District Attorney or Assistant Attorney General, who shall make a recommendation to the Attorney General based on the criteria in (C) (1-3) below and shall forward the request along with the signed recommendation of the District Attorney or Assistant Attorney General to the Deputy Attorney General in charge of the Criminal Division with copies of the recommendation to be sent to those law enforcement agencies which contributed to the related criminal case.

C. In any determination of the percentage share to be distributed under paragraph A), the Attorney General shall give due consideration to the following factors:

The time and effort contributed by a municipality, county, or state agency to the related criminal case including manpower and money expended;
Whether the municipality, county or state agency originated the information which led to the seizure of the asset and whether the municipality, county or state agency obtained such information by use of its investigative resources, rather than fortuitously;
Whether the municipality, county, or state agency provided unique or indispensable assistance.

D. The written consent of the Attorney General under 15 M.R.S.A. § 5822 (4)(A) must precede the order of the Court.

E. If the Attorney General determines that a forfeited asset is to be distributed to a state agency, county, or municipality, that asset shall not thereafter be distributed to the state agency, county, or municipality without the additional prior written approval of the appropriate authority pursuant to 15 M.R.S.A. § 5824.

F. Pursuant to 15 M.R.S.A. § 5822 (4)(A) and § 5824, when property is forfeited and transferred to a municipality, the legislative body of the municipality shall accept the property and in each case determine its disposition. When property is forfeited and transferred to a county in accordance with 15 M.R.S.A. § 5824, the county commissioners shall accept the property and in each case determine its disposition. When property is forfeited and transferred to a state agency or department, the Governor shall accept the property and in each case determine its disposition. No general acceptance of forfeited property satisfies this requirement. No forfeited monies or other property or the proceeds thereof may be placed in any drug account or fund of any District Attorney, the Attorney Generals. or any law enforcement agency without the express affirmative authorization of, in the case of a municipality, the legislative body of the municipality, or in the case of a county, a majority of the County Commissioners, or in the case of a state agency, the Governor.

Records

Within twenty-one (21) days of the execution of a written settlement agreement or of the entry of final judgment, the attorney for the State in any civil forfeiture case shall forward copies of the following documents to the Attorney General:

A. civil complaint for forfeiture;

B. decree of forfeiture or written settlement agreement; and,

C. opinions and orders of Court, other than discovery orders, relating to any substantive forfeiture issue.

Relationship of Rules to Claims

These rules have full force and legal effect. Nevertheless, the failure of any person to abide by these rules shall not be a defense in any civil action.

Appeals

A. In any appeal taken by the State, the notice of appeal shall be accompanied by a written approval of the Attorney General of the State of Maine; provided that if the attorney for the State filing the notice of appeal states in the notice that the Attorney General has orally stated that the approval will be granted, the written approval may be filed at a later date.

B. If the Attorney General is unavailable to grant approval for a State's appeal or has determined that it would be legally or ethically improper for him to do so, the required approval may be given by a deputy attorney general authorized in writing by the Attorney General to act on his behalf in these situations.

History

STATUTORY AUTHORITY: 15 M.R.S.A., Section 5822 (7)
EFFECTIVE DATE: December 12, 1990
NON-SUBSTANTIVE CORRECTIONS: April 4, 2000
NON-SUBSTANTIVE CORRECTIONS: Note: Reference is made to Roman numerals. In order to comply with the format established by the Secretary of State, Roman numerals were changed to Arabic numerals.
NON-SUBSTANTIVE CORRECTIONS: 26-239 Chapter 2 page 5

Chapter 3 Standards for the Operation of Arrest Warrant Repositories

Code Me. R. 26-239 Ch. 3 Standards for the Operation of Arrest Warrant Repositories {#sec-26-239-ch.-3 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 3}

SUMMARY: By virtue of Chapter 402 of the Public Laws of 1991, the District Attorney of each Court District was directed to designate, with the approval of the resident District Court Judge, at least one law enforcement agency to be responsible for the maintenance, administration and retention of attested copies of arrest warrants issued by the Courts. That legislation also directed the Attorney General to adopt standards for the operation of the designated arrest warrant repositories. These standards provide direction to the repositories as to who may take physical possession of an attested copy of an arrest warrant; what information must be contained in an arrest warrant; when an arrest warrant must be entered into the State's computer database; under what circumstances a warrant may be entered into the National Crime Information Center [NCIC] database; where the original arrest warrant must be stored; how arrest warrants are validated and under what circumstances they may be cancelled or recalled and removed from any computer database; and the responsibility of the repository to prepare lists of outstanding warrants.

§ 1 LOCATION AND POSSESSION OF ARREST WARRANTS

A. ORIGINALS. There shall be only one original of an arrest warrant issued by any court and, except as otherwise provided by law, the original of any arrest warrant shall be maintained and stored by the issuing court.

B. ATTESTED COPIES.

Except as provided in this sub-paragraph (2), the court shall produce only one attested copy of any arrest warrant which it has issued. The court shall direct that the attested copy of any arrest warrant be directed to and maintained by the designated warrant repository for its court district.
The court may produce additional attested copies of an arrest warrant to be issued under the following circumstances:

(i) upon the request of the prosecuting attorney for purposes of inter-state or international extradition; and

(ii) upon the written request of a representative of a governmental agency or entity, including an agency or entity of another state or the federal government, for use at an official proceeding of that agency or entity. When an attested copy of an arrest warrant is issued under this provision, it shall be marked with the following or similar language: "For Filing Purposes Only - Do Not Execute."

C. LIMITED PHYSICAL POSSESSION BY INVESTIGATING AGENCY. The primary investigating law enforcement agency shall have the opportunity to physically possess the attested copy of an investigative arrest warrant for a period of 72 hours from the time of delivery to the repository for the sole purpose of attempting execution of the warrant.

An investigative arrest warrant shall mean a warrant for the arrest of a person charged with a criminal offense as distinguished from a bench warrant for failure to appear or to pay a fine.

The investigating law enforcement agency shall exercise this opportunity by advising the repository that it wishes to take physical possession of the attested warrant for the 72-hour period. A representative of the investigating law enforcement agency shall sign an appropriate receipt for the attested warrant, if required by the repository. It shall be the responsibility of the law enforcement agency to return the attested warrant to the warrant repository at the end of the 72-hour period, except in those cases governed by paragraph (D) below.

D. EXTENDED POSSESSION BY INVESTIGATIVE LAW ENFORCEMENT AGENCY. The primary investigative law enforcement agency may take physical possession of the attested copy of an investigative arrest warrant for two successive periods not to exceed five days each for the sole purpose of attempting to execute the warrant, if the Attorney General or the respective District Attorney or their designees make a determination that the likelihood of warrant execution will be substantially increased by permitting the law enforcement agency to take physical possession of the attested warrant.

The Attorney General, the respective District Attorney or their designees shall exercise this authority by advising the repository that the primary investigative law enforcement agency shall take physical possession of the attested warrant for an initial period not to exceed five days. At the expiration of the initial five-day period, the Attorney General, the respective District Attorney or their designees may authorize the primary investigating law enforcement agency permission to physically possess the attested warrant for an additional period not to exceed five days if the likelihood of execution will be increased. The repository shall maintain a record of the officer authorizing physical possession under this paragraph.

In the event the primary investigating law enforcement agency has possessed the attested warrant for the 72-hour period under paragraph (C) above, the five-day periods under this paragraph shall be calculated from the expiration of the 72-hour period. Otherwise, the five-day periods shall be calculated from the day of delivery of the attested warrant to the repository and the day of delivery shall not be counted. In no event, however, shall the primary investigating law enforcement agency physically possess the attested warrant for more than a total of thirteen days from the day of its receipt at the repository.

It shall be the responsibility of the primary investigating law enforcement agency possessing an attested warrant under this paragraph to return the warrant to the designated repository at the end of the authorized possession period.

§ 2 CONTENTS OF WARRANT

A. IDENTIFICATION INFORMATION. It shall be the responsibility of the officer requesting the issuance of an arrest warrant to provide the issuing court with as much identification information about the individual as is reasonably available. This information shall include, if available:

(i) The individual's name, date of birth, last known address, approximate height and weight, and color of eyes and hair;

(ii) The name of the investigative law enforcement department primarily responsible for the case;

(iii) A photograph of the individual which shall be attached to the attested copy of the warrant;

(iv) Any distinguishing physical characteristics, such as scars or tattoos, that will aid in the identification of the individual and the execution of the warrant;

(v) The last known whereabouts of the individual and the location where the individual is presently believed to be.

B. UPDATING INFORMATION - CONTINUING DUTY. Subsequent to the issuance of an arrest warrant, any law enforcement agency having information concerning the subject of an arrest warrant, shall have a continuing duty to provide such information to the designated warrant repository for the purpose of updating the identification information concerning the individual and his/her likely whereabouts.

C. REQUEST FOR ADDITIONAL INFORMATION. The designated warrant repository may, at any time, request the law enforcement agency which originated the warrant request to provide updated identification information regarding the subject of an arrest warrant, and the originating law enforcement agency shall provide such updated information as is available to it.

§ 3 DATABASE ENTRY AND REMOVAL

A. MAINE WANTED AND MISSING (MWM). Immediately upon receipt of an attested arrest warrant the arrest warrant repository shall enter the warrant in the State's wanted and missing persons computer database.

B. NATIONAL CRIME INFORMATION CENTER (NCIC). An arrest warrant shall not be entered in the National Crime Information Center database without authorization from the Attorney General, the respective District Attorney, or their designees except, however, that the Department of Corrections may enter warrants for violations of parole and probation or for escape. The repository shall maintain a record of the name of the officer authorizing entry of the warrant in the National Crime Information Center.

C. REMOVAL FROM DATABASE. The arrest warrant repository shall immediately remove a warrant from the MWM and NCIC databases upon notification that the warrant has been executed, cancelled or recalled.

D. NOTIFICATION. Whenever a law enforcement agency executes an arrest warrant, it shall immediately notify the appropriate repository of that fact. The repository shall immediately notify the issuing Court and the primary law enforcement agency, and shall return the attested warrant to the issuing Court and shall note on the return of service when the warrant was executed and by whom.

Whenever the issuing Court recalls or cancels a warrant, it shall immediately notify the appropriate warrant repository.

E. STATE POLICE DATABASE. The Maine State Police are responsible for maintaining a computerized database, including computer entry standards. If the computer entry standards as set by the Maine State Police are met, the warrant information shall be entered into the database. The Maine State Police shall establish a schedule for the regular printing and mailing of geographical code lists to police agencies as well as the printing and mailing of repository validation lists.

§ 4 WARRANT LISTS

A. BY REPOSITORY. Each arrest warrant repository must periodically, but at least monthly, prepare a list of all outstanding arrest warrants maintained by that repository. The lists shall include those warrants entered on the State's wanted and missing persons database and in the National Crime Information Center. Copies of the lists shall be provided to the originating law enforcement agencies and the issuing Court.

B. BY COURT. Each Court which has issued arrest warrants shall maintain an updated list of outstanding warrants which have been issued by that Court. A copy of the list shall be provided to the warrant repository, at least quarterly.

§ 5 VALIDATION BY COURT

The Judicial Department shall develop a plan for use by the Courts to insure that outstanding arrest warrants are, in fact, valid. This plan shall provide for the regular review of outstanding arrest warrants and prompt notification to the warrant repository of any warrants which have been recalled, cancelled, or amended by the Court.

§ 6 WARRANTS MANAGEMENT PLAN AND REVIEW

A. DEVELOPMENT BY REPOSITORY. Each warrant repository shall develop a structured warrants management plan designed to maximize the execution of outstanding arrest warrants within its area of responsibility.

B. REVIEW BY DISTRICT ATTORNEY. Each warrant repository shall consult with the respective District Attorney and regularly report to the District Attorney on the ongoing effectiveness of the warrants management plan. The repository and the District Attorney shall cooperate to maximize the execution of outstanding arrest warrants. The District Attorney and the repository shall develop a procedure by which the District Attorney may review and monitor the repository warrant files and procedures.

C. COURT INVOLVEMENT. The District Attorney and a representative of the repository shall cooperate and review with a representative of the Court the repository's record of performance.

D. ATTORNEY GENERAL. The District Attorney, a representative of the repository and a representative of the Court shall cooperate and review with the Attorney General or his designee the repository's record of performance, the Court's fulfillment of its obligations and any improvements to the Warrants Management Program which the Attorney General may, by rule, address.

History

STATUTORY AUTHORITY: 15 M.R.S.A. § 605
EFFECTIVE DATE: April 22, 1992
NON-SUBSTANTIVE CORRECTIONS: April 4, 2000
NON-SUBSTANTIVE CORRECTIONS: FISCAL IMPACT NOTE AS REQUIRED BY 5 M.R.S.A. § 8063:
NON-SUBSTANTIVE CORRECTIONS: As mentioned in the Fact Sheet, it is difficult at this time to provide an estimated fiscal impact of these Standards. There is some dispute as to whether the legislation (Chapter 402 of the Public Laws of 1991) will have a fiscal impact on counties, but it is not believed that these particular rules will have any fiscal impact.
NON-SUBSTANTIVE CORRECTIONS: WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK:
NON-SUBSTANTIVE CORRECTIONS: July 14, 2025

Chapter 4 Rules Governing Disposition of Forfeited Firearms

Code Me. R. 26-239 Ch. 4 Rules Governing Disposition of Forfeited Firearms {#sec-26-239-ch.-4 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 4}

(17-A M.R.S.A. § 11.58)

I. GENERAL RULE. Any firearm forfeited pursuant to 17-A M.R.S.A. §1158 shall be automatically given to the state, county, or municipal law enforcement agency that arrested the defendant.

II. EXCEPTIONS TO GENERAL RULE.

A. GENERAL EXCEPTION .

If a law enforcement agency other than the arresting agency believes there is a reasonable possibility that application of the factors listed below would entitle it to a forfeited firearm, it shall so advise the prosecutorial office prosecuting the criminal case. In the absence of a referral to the prosecutorial office the general rule of Section I shall apply. If the prosecutorial office agrees with that law enforcement agency's assessment, the prosecutorial office shall refer the matter to the Attorney General for final decision as to which law enforcement agency shall be given the forfeited firearm. Absent a referral to the Attorney General, the general rule shall apply.

In deciding whether a forfeited firearm should be given to a law enforcement agency other than the arresting agency, the Attorney General may consider, but is not limited by, the following factors:

Whether the forfeited firearm was found or seized by a law enforcement agency other than the arresting agency;
Whether a law enforcement agency other than the arresting agency had primary responsibility for the criminal investigation and prosecution of the case;
Whether a law enforcement agency other than the arresting agency discovered the information which led to the seizure of the firearm or the arrest of the defendant, or discovered other important information in the case, and whether the law enforcement agency obtained such information by use of its investigative resources, rather than fortuitously; and,
Whether a law enforcement agency other than the arresting agency provided unique or indispensable assistance in the criminal investigation or prosecution of the case.

B. SPECIAL EXCEPTION BASED UP0N FEDERAL OR OUT-OF-STATE ARRESTING AGENCY.

Where the arresting agency is a federal or out-of-state law enforcement agency, the Attorney General shall decide whether a firearm forfeited pursuant to 17-A M.R.S.A. §1158 shall be given to a state, county, or municipal law enforcement agency within Maine. In making this decision, the Attorney General shall be guided by, but is not limited to considering, the four factors listed in section II, subsection A above.

C. SPECIAL EXCEPTION BASED UPON FORFEITED FIREARM SERIAL NUMBER PROBLEM.

If the forfeited firearm lacks a manufacturer's serial number or is one on which that number has been altered, removed, or obscured, the Attorney General shall decide on its disposition.

III. DISPOSITION OF FIREARMS.

Each law enforcement agency that is given, pursuant to 17-A M.R.S.A. §1158 and these rules, a forfeited firearm shall destroy, sell, trade in, keep, or otherwise dispose of the firearm in accordance with that agency's policy or as directed by the governing body or entity with authority over that agency.

EFFECTIVE DATE:

August 23, 1993

NON-SUBSTANTIVE CORRECTIONS:

April 4, 2000

26-239 Chapter 4 page 2

Chapter 10 Rules for Exemptions to the Ban on Flavored Cigarettes and Cigars

Code Me. R. 26-239 Ch. 10 Rules for Exemptions to the Ban on Flavored Cigarettes and Cigars {#sec-26-239-ch.-10 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 10}

SUMMARY: This chapter describes the procedures under which tobacco manufacturers may file statements for flavored cigarette or flavored cigars first on the market prior to January 1, 1985 and for the verification of those statements. This chapter also describes the procedures under which tobacco manufacturers may apply for exemption from the flavored cigarette and cigar ban for those flavored products first on the market after January 1, 1985 and the criteria by which those applications will be evaluated. Pursuant to 22 M.R.S.A. §1560-D, the Office of the Attorney General is responsible for administering the exemptions to the ban on flavored cigarettes and cigars, and for promulgating these Rules.

SECTION 1. PURPOSE

These Rules are promulgated pursuant to the Flavored Cigarettes and Cigars Subchapter of the Retail Tobacco Sales Law, 22 M.R.S.A. §1560-D. They set forth guidelines for manufacturers of flavored cigarettes and flavored cigars regarding the criteria and processes for obtaining exemptions for flavored cigarettes and flavored cigars from the ban on those products. 22 M.R.S.A §1560-D(2).

SECTION 2. Definitions

Unless otherwise stated, the following terms have the following meanings.

”Brand” means a cigarette or cigar brand name ( e.g., Marlboro). A brand may have more than one brand style including but not limited to: lights, blunts, or a specified flavor.
”Brand Style” means a variety of cigarettes or cigars distinguished by the tobacco used, flavoring used, size of, or filtration on the cigarette or cigar.
“Candy” means the generic name of a confection made from sugar or sugar substitute ( e.g., toffee) and the brand name of such a confection, this includes but is not limited to chocolate, cocoa, cacao, mocha, vanilla, honey, maple, cinnamon, licorice, and mint ( e.g. , spearmint and peppermint, but excluding menthol).
”Characterizing flavor” means a distinguishable taste or aroma that is imparted to tobacco or tobacco smoke either prior to or during consumption, other than a taste or aroma from tobacco, menthol, clove, coffee, nuts or peppers.
“Cigar” means: any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco, which is not a cigarette as that term is defined at subsection 6 below.
“Cigarette” has the same meaning as that term is defined in 22 M.R.S.A. §1580-H(4).
”Component part” includes but is not limited to the tobacco, filter and paper in a cigarette or cigar.
”Constituent” means any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet, that is added by the manufacturer to the tobacco, paper or filter of a cigarette or cigar during the processing, manufacture or packing of the cigarette or cigar. “Constituent” includes a smoke constituent.
”Flavored cigar” means a cigar or any component part thereof that contains a constituent that imparts a characterizing flavor.
”Flavored cigarette” means a cigarette or any component part thereof that contains a constituent that imparts a characterizing flavor.
“Fruit” means the generic name of a specific fruit ( e.g ., orange) or a type of fruit ( e.g., berry)
“Person” means an individual, corporation, partnership or unincorporated association.
”Smoke constituent” means any chemical or chemical compound in mainstream or sidestream tobacco smoke that either transfers from any component of the cigarette or cigar to the smoke or that is formed by the combustion or heating of tobacco, additives or other component of the tobacco product.

SECTION 3. PROHIBITION

Beginning July 1, 2009, a person may not sell or distribute or offer to sell or distribute in this State any flavored cigarette or flavored cigar unless:

The flavored cigarette or flavored cigar was first on the market prior to January 1, 1985, based on a statement to that effect filed with the Attorney General pursuant to 22 M.R.S.A. §1560-D(2)(A) and Section 4 of these Rules by the current manufacturer and verified by the Attorney General;
The flavored cigarette or flavored cigar has been granted an exemption by the Attorney General pursuant to 22 M.R.S.A. §1560-D(5) and Section 5 of these Rules; or
The sale is allowed under the transition provisions of 22 M.R.S.A. §1560-D(7).

SECTION 4. EXEMPTIONS FOR FLAVORED CIGARETTES AND FLAVORED CIGARS FIRST ON THE MARKET PRIOR TO JANUARY 1, 1985

Statement of Manufacturer that Flavored Cigarette or Flavored Cigar was First on the Market prior to January 1, 1985

The current manufacturer of a flavored cigarette or flavored cigar first on the market prior to January 1, 1985 wishing to apply for an exemption pursuant to 22 M.R.S.A. §1560-D(2)(A) and Section 3(1) of these Rules shall, on or with a form provided by the Attorney General, submit a statement for verification supported by the following:

A. The brand and brand style/s of the flavored cigarette or flavored cigar;

B. The original manufacturer of the flavored cigarette or flavored cigar;

C. The current manufacturer of the flavored cigarette or flavored cigar;

D. The original flavor of the flavored cigarette or flavored cigar;

E. The length and diameter of the flavored cigarette or flavored cigar prior to January 1, 1985;

F. A digital photo or other color image of the pre-1985 packaging of the flavored cigarette or flavored cigar;

G. A digital photo of the current packaging;

H. The number of flavored cigarettes/cigars, per package, prior to January 1, 1985;

I. The number of flavored cigarettes/cigars per current package;

J. The flavor imparting constituents that impart a characterizing flavor or aroma to the flavored cigarette or flavored cigar prior to January 1, 1985;

K. The current flavor imparting constituents that impart a characterizing flavor or aroma to the flavored cigarette or flavored cigar;

L. Any constituent ingredients other than flavor imparting constituents prior to January 1, 1985; and

M. Current constituent ingredients other than flavor imparting constituents.

Confidentiality of Information

Subject to the provisions of the Freedom of Access Act, Title 1 M.R.S.A. §§ 401-521, information submitted to the Attorney General pursuant to these rules may be designated as confidential. Any manufacturer claiming confidentiality pursuant to 1 M.R.S.A. §§ 401-521 must indicate such claim clearly on its reporting form, specifically identifying the information to be treated as confidential and citing to the specific privilege/s claimed. Any portion of an application for which such privilege is asserted will be treated as confidential until such time as a Freedom of Access request is made for that information. Upon receipt of such request for any of the information designated by the manufacturer as confidential, the Office of the Attorney General shall notify the manufacturer within 10 days of the request. The Office of the Attorney General may accommodate the public access request unless the manufacturer notifies the Office of Attorney General of its objection to the release of the data within 10 days of receiving notification of the public access request. Upon receipt of a manufacturer’s objection, the Attorney General will make a determination whether the requested data falls within the claimed privilege. Upon making a determination the Attorney General will notify the data submitter and the data requester of that determination. Determinations under this provision are final agency action and subject to the appeal rights found in the Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8001‑11008. The burden shall be upon the manufacturer to demonstrate that any data claimed as confidential is not a public record and not subject to disclosure pursuant to 1 M.R.S.A. §§ 401-521. During any appeal of its determination, the Office of the Attorney General will treat the data for which confidentiality was asserted as confidential until a final judicial decision is rendered.

Verification- Upon verification based on the above submissions that the current flavored cigarette or flavored cigar was first on the market prior to January 1, 1985, the Office of Attorney General shall add the product to a list of flavored cigarettes and flavored cigars that are authorized for distribution and sale in the State.
Request for Reconsideration- Within 30 days of receipt of the determination of the Office of Attorney General refusing to grant an exemption for a product under 22 M.R.S.A. §1560-D(2)(A), an applicant may request reconsideration by submitting a written request for reconsideration.

A. The applicant must clearly state its reasons for requesting reconsideration.

B. The applicant must attach any additional or supplementary information it wishes to have considered in addition to its original submissions to its request for reconsideration.

C. Within 30 days of the receipt of a reconsideration request, the Office of Attorney General shall affirm, modify or reverse its original exemption determination.

D. Exemption determinations are considered final agency action for purposes of the Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8001-11008, once the Office of the Attorney General has made its determination on the request for reconsideration.

SECTION 5. EXEMPTIONS FOR FLAVORED CIGARETTES AND FLAVORED CIGARS FIRST ON THE MARKET AFTER JANUARY 1, 1985

Application for Exemption. The current manufacturer of a flavored cigarette or flavored cigar wishing to apply for an exemption pursuant to 22 M.R.S.A. §1560-D(2)(B) and (5), and Section 3(2) of these Rules shall, on or with a form provided by the Office of Attorney General, submit the following:

A. The brand and brand style/s of the flavored cigarette or flavored cigar;

B. The manufacturer of the flavored cigarette or flavored cigar;

C. The name of an authorized manufacturer’s representative;

D. The characterizing flavor of the flavored cigarette or flavored cigar; and

E. The constituent/s that imparts a characterizing flavor or aroma to the flavored cigarette or flavored cigar

Confidentiality of Information

Complete Application

Within 30 days of receipt of an exemption application, the Office of Attorney General shall review the exemption application for completeness. A complete application is one that contains the information and materials identified above in Section 5(1) of this Rule.

A. Upon finding an application complete, the Office of Attorney General shall so notify the applicant and proceed with a determination of whether the flavored cigarette or flavored cigar meets the criteria for an exemption.

B. In the event an application is determined incomplete, the Attorney General shall notify the applicant of the additional information or submissions required and allow an additional 30 days in which to submit an amended application.

C. If an applicant needs time beyond the additional 30 days to gather and supply the requested submissions, the applicant may request an extension of no more than 60 days.

D. Unless granted an extension, if an applicant fails to submit required additional submissions within the initial 30 day extension, the application shall be denied.

E. In the event an application is denied for incompleteness, an applicant may submit a new exemption application.

Evaluation of Exemption Applications

A. Within 60 days of finding an application complete, the Office of Attorney General shall either grant or deny the exemption application for the brand style of flavored cigarette or flavored cigar.

B. In determining whether “the characterizing flavor is not one known to or likely to appeal to youth” as required by 22 M.R.S.A. §1560-D(5) the Office of Attorney General shall consider:

1. whether the characterizing flavor of the flavored cigarette or flavored cigar is a flavor generally associated with those used in candy, fruit, liquor or fermented alcohol flavored products, or other flavors known or likely to appeal to youth; and 2. whether the characterizing flavor is one that was used in flavored cigarettes or flavored cigars prior to January 1, 1985.

C. Findings of Fact

The Office of Attorney General shall make findings of fact in support of its determination to grant or deny an exemption for each flavored cigarette or flavored cigar application.

D. Request for Reconsideration

Within 30 days of receipt of the determination of the Office of Attorney General, an applicant may request reconsideration by submitting a written request for reconsideration.

(1) The applicant must clearly state its reasons for requesting reconsideration.

(2) The applicant must attach any additional or supplementary information pertaining to its original submissions to its request for reconsideration.

(3) Within 30 days of the receipt of a reconsideration request, the Office of Attorney general shall affirm, modify or reverse its original exemption determination.

(4) Upon completion of the reconsideration process, the Office of the Attorney General exemption determinations are considered final agency action for purposes of 5 M.R.S.A. §§ 8001-11008.

E. Material Changes to Characterizing Flavor

After an exemption has been granted for a flavored cigarette or flavored cigar under Section 5 of these Rules, a manufacturer to whom an exemption has been granted has an affirmative duty to inform the Attorney General at the time that a material change is made in the characterizing flavor of the flavored cigarette or flavored cigar. A violation of the duty to inform imposed by this paragraph constitutes a civil violation for which a fine of not more than $10,000 may be adjudged.

If the Attorney General determines a material change has been made to a product’s characterizing flavor, the Attorney General may, after providing the manufacturer to whom an exemption has been granted notice and an opportunity to respond within 30 days, revoke a previously granted exemption.

SECTION 6. SEVERABILITY

Should any provision of these Rules be determined to be unconstitutional or unenforceable, such a determination shall not invalidate any other provision of these rules.

History

STATUTORY AUTHORITY: 22 M.R.S.A. §1560-D
EFFECTIVE DATE: June 7, 2008 – filing 2008-194
AMENDED: July 2, 2008 – filing 2008-268 (Emergency adoption, major substantive)
AMENDED: April 18, 2009 – filing 2009-118 (Final adoption, major substantive)
AMENDED: WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 14, 2025

Chapter 100 Trade Practices in the Sale of Residential Heating Oil

Code Me. R. 26-239 Ch. 100 Trade Practices in the Sale of Residential Heating Oil {#sec-26-239-ch.-100 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 100}

SUMMARY: These rules describe unfair trade practices in the sale of residential heating oil by retail dealers. They are in effect from October 15 through April 30 of each year.

Definitions

A. "Dealer" includes all retail oil dealers who sell home heating oil for use and not for resale.

B. "Established delivery area" means the geographic area bounded by a retail dealer's delivery routes used to service established customers.

C. "Heating oil" means number 2 oil or kerosene, sold to heat the interior of a building used as a person's principal place of residence.

D. "Market price of heating oil" means the highest price per gallon of heating oil a dealer customarily charges his buyers in an established delivery area.

E. "Unscheduled delivery" means a delivery which causes the dealer to dispatch a truck along a delivery route he would not have otherwise taken during the day's regular working hours.

Comment

A common example of a dealer's market price for heating oil would be that charged a person on thirty days credit for automatic delivery to a 275-gallon tank.

For further explanation of an unscheduled delivery, see the Comment to Rule 100.6

Violations

A violation of any of the following rules is an unfair trade practice.

Comment

These rules set forth examples of acts by dealers which constitute illegal practices under the Maine Unfair Trade Practices Act. These rules do not necessarily describe the only acts which can violate the Maine Unfair Trade Practices Act. Other Acts which place an unlawful burden on consumers are also prohibited under the Maine Unfair Trade Practices Act even though they are not specifically included in these rules.

All Established Customers Receive Dealer's Offered Services

A dealer may not discriminate unfairly among his established customers in the following areas:

A. heating oil sales, including requests for immediate service, or additional charges for deliveries of oil below the minimum delivery requirement or unscheduled deliveries; and

B. oil burner installation and service.

For the purpose of this rule, an "established customer" of a dealer includes any person whose last two heating oil purchases were made from the dealer.

Comment

This rule sets out the principle that all established customers are entitled to equal service. For example, a person can insure emergency service or repair to his oil burner by becoming an established customer of a dealer who provides these services to his customers.

This rule does allow the dealer to adopt such practices as surcharging for unscheduled deliveries if it is the established buyer's fault the tank went dry but not surcharging if it is the dealer's fault.

Since 100.4 requires service for any cash customer, any person can become an "established customer" by making two cash purchases in a row from the same dealer.

Required Heating Oil Sales

A dealer must sell heating oil within its established delivery area to any person who is willing and able to pay cash. The dealer must make this sale even if:

A. the person has not paid for a past sale of heating oil; or

B. the person is not an established customer of the dealer.

This rule also applies if payment is to be made in certified or cashier's check, commercial money order, or their equivalent or if a government or community action agency has guaranteed to pay on behalf of the person the cost of the heating oil sale.

When a person requests 20 gallons or more of heating oil under this rule, the dealer must deliver the oil no later than his next scheduled delivery to the person's neighborhood.

Comment

This rule ensures that any person ready and able to pay can receive a hearing oil delivery. Further, by making two cash purchases under this rule, any person can become an established customer of the dealer of his choice and thereby become eligible for all services that dealer provides to his established customer.

Minimum Delivery Requirement

A dealer is required to make scheduled deliveries of 20 gallons or more. However, for any delivery below the following amount:

A. 50% of the customer's tank; or

B. 100 gallons, whichever is less,

the dealer may charge a penalty not to exceed $20. No other penalty is permitted.

Surcharge Permitted for Unscheduled Delivery

When the dealer makes an unscheduled delivery at the request of a buyer, he may add a separate charge to his price. This surcharge may not exceed the actual additional costs incurred. No other surcharge is permitted.

Prior to accepting an order for an unscheduled delivery, the dealer shall inform the buyer of the approximate amount of the surcharge, the reason for the surcharge, and when his next scheduled delivery will take place.

Comment

Under this rule dealers must establish uniform surcharges for unscheduled deliveries. In doing so the dealer may consider such factors as extra miles traveled or overtime pay.

Examples of unscheduled deliveries include:

A. when the dealer must dispatch a truck to serve a person on a day during which he would not otherwise be in that area; or

B. when a dealer must dispatch a truck to return to an area he already served that day.

It is not an unscheduled delivery when a person requests a delivery for a day on which the truck is already scheduled to be in his area.

A dealer may establish a flat rate surcharge for buyers that does not exceed his average additional costs.

Price Discrimination Prohibited

A dealer may not discriminate by charging some persons a price higher than his current market price of heating oil. Except for a penalty for a delivery below the minimum delivery requirement or a surcharge for an unscheduled delivery, no other penalties or surcharges are permitted.

Credit Discrimination Prohibited

A dealer must adhere to the prohibitions against discrimination in the Federal Equal Credit Opportunity Law, which is found at Title 15, 1691(a) through (c) of the United States Code Annotated and the State's Fair Credit Extension Act, which is found at Title 5, Maine Revised Statutes Annotated, Sections 4595 through 4598.

Comment

These federal and state laws detail unlawful credit discrimination. For example, it is unlawful for any creditor to discriminate on the basis of race, color, religion, national origin, ancestry, sex, marital status or age, or because all or part of the applicant's income derives from any public assistance program.

Notice of Credit Rejection or Change of Terms Required

If credit is denied, the dealer must so inform the credit applicant in writing. This notice must be given within 4 business days or if a dealer uses a credit bureau, within 2 days of receiving the bureau's report. Notice shall state the reasons for denial or inform the applicant of his right to request such reasons.

If the applicant requests the reasons credit was denied, the dealer must respond within 2 business days. The dealer's response must be in writing if the applicant so requests.

A dealer must give 5 days advance notice of termination or alteration of credit terms and the reasons why.

If a person demands a credit oil delivery within the 5 days notice of termination period, the dealer need not sell him more oil than he needs to last through the notice period.

Reasonable Exceptions to these Rules

In adhering to these rules, a dealer may make reasonable exceptions favorable to classes of people with relatively low income, such as the elderly, recipients of public assistance, or other persons on fixed income.

Suspension dates

These rules will be in effect each year from October 15 through April 30.

Heating Oil Orders

When a dealer quotes to a person a specific heating oil price and the person places an order, the dealer must deliver the oil at that price unless the dealer has specifically stated to the person that:

A. The price per gallon is determined on the day the oil is actually delivered; and

B. The price on delivery day may be higher or lower than the quoted price.

Comments

This rule insures that a person who orders oil is charged at the price quoted by the dealer unless the dealer specifically communicates to that person that the quoted price is subject to change and that the price the person will pay is the dealer's price on the day the oil is actually delivered.

The effective date of this new addition to Chapter 100 is the date this emergency rule is actually promulgated.

History

STATUTORY AUTHORITY: 5 M.R.S.A., Section 207
EFFECTIVE DATE: February 21, 1974
AMENDED: October 3, 1979 (EMERGENCY)
AMENDED: December 26, 1979
AMENDED: November 5, 1980
AMENDED: January 7, 1991 - Section 12 (EMERGENCY)
AMENDED: June 17, 1991 - Section 12
NON-SUBSTANTIVE CORRECTIONS: April 4, 2000
NON-SUBSTANTIVE CORRECTIONS: October 16, 2008 – filing 2008-485 (EMERGENCY)
NON-SUBSTANTIVE CORRECTIONS: May 27, 2009 – filing 2009-202
NON-SUBSTANTIVE CORRECTIONS: 26-239 Chapter 100 page 5

Chapter 102 Trade Practices in the Sale of Urea Formaldehyde Foam Insulation

Code Me. R. 26-239 Ch. 102 Trade Practices in the Sale of Urea Formaldehyde Foam Insulation {#sec-26-239-ch.-102 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 102}

Summary: This rule requires health and safety warnings to be given by installers and sellers of urea formaldehyde foam insulation to prospective purchasers who may have insulation installed in their homes.

Sunset provisions: This rule will terminate 60 days after the effective date of the Consumer Product Safety Commission's final rule relating to urea formaldehyde foam insulation.

Disclosure Required

It shall be deemed an unfair or deceptive trade practice for any person who sells or installs urea formaldehyde foam insulation to fail to disclose conspicuously and in writing to a prospective purchaser prior to contracting to sell or to install urea formaldehyde foam insulation in a building used or as attached to a residence the following notice:

HEALTH AND SAFETY WARNING

Urea formaldehyde foam insulation may release formaldehyde gas into your home over a long period of time.

Consumer who are exposed to formaldehyde gas may suffer eye, nose and throat irritation, coughing, shortness of breath, skin irritation, nausea, headaches and dizziness. People with respiratory problems or allergies may suffer more serious reactions, especially persons allergic to formaldehyde.

The symptoms may appear immediately, or not until months after installation.

Government scientists have also concluded that extended exposure to formaldehyde should be presumed to increase the risk of cancer in humans.

Urea formaldehyde foam insulation is not recommended for use in attics, ceilings, and interior walls because installations in these areas increases the likelihood that formaldehyde gas will be released into your home. In some instances the formaldehyde gas cannot be controlled by ventilation or other inexpensive means.

History

STATUTORY AUTHORITY: Title 5 M.R.S.A. 5 207(2)
EFFECTIVE-DATE: January 21, 1981 (EMERGENCY)
EFFECTIVE DATE OF PERMANENT RULE: March 31, 1981
NON-SUBSTANTIVE CORRECTIONS: April 4, 2000
NON-SUBSTANTIVE CORRECTIONS: 26-239 Chapter 102 page 2

Chapter 104 Motor Vehicle Advertising

Code Me. R. 26-239 Ch. 104 Motor Vehicle Advertising {#sec-26-239-ch.-104 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 104}

SUMMARY: This chapter describes advertising practices by new and used motor vehicle dealers that are unfair and deceptive in violation of the Maine Unfair Trade Practices Act, 5 MRSA sec. 207.

Definitions
General Provisions
Advertising Layout
Availability of Vehicles
Price Disclosures
Comparative MSRP Advertising
Minimum Trade-In Allowances
Rebate Offers
Free Offer
Buy-Down Interest Rates
Factory, Executive and Fully-Equipped Vehicles
Misleading Claims of Potential Savings
Credit Sales
Lease Advertising Disclosures

SECTION 1. DEFINITIONS

A. “Advertisement,” “advertising,” or “ad,” unless otherwise noted, means any oral, written, electronic or graphic statement made by, for, or in the name of a car dealer that is in any manner connected with the solicitation of business. The term includes statements made in newspapers or other publications or on radio or television, or contained in any sign, motor vehicle window sticker, circular, brochure, letter, or other writing.

B. “Disclosure” means a clear and conspicuous statement made in such size, color, contrast, location, duration, and audibility that it is readily noticeable, readable and understandable. The disclosure may not contradict or be inconsistent with any other information with which it is presented. If the disclosure modifies, explains, or clarifies other information with which it is presented, or states “see dealership for details,” then it must be presented in proximity to the information it modifies, in a manner readily noticeable, readable, and understandable, and it must not be obscured in any manner. An audio disclosure must be delivered in a volume and cadence sufficient for a consumer to hear and comprehend it. A visual disclosure for television must appear on the screen for a duration sufficient for a consumer to read and comprehend it. In a print or internet advertisement or promotional material, including without limitation point of sale display or brochure materials directed to consumers, a disclosure must be in a type size and location sufficiently noticeable for a consumer to read and comprehend it, in a print that contrasts with the background against which it appears. Commonly known abbreviations may be used in disclosures; however, those not generally known cannot be.

C. “Dealer” means a natural person, firm, corporation, partnership, and any other legal entity licensed by the State to sell new or used motor vehicles, as defined in 29-A M.R.S.A. § 101, and the officers, employees and agents thereof, except auctioneers licensed by the State.

D. “Extra charge” means any consumer charge listed or requested by the dealer for the purchase of a new or used motor vehicle which is not included in the manufacturer’s suggested retail price for that vehicle. Some examples are the following charges that are typically not listed on a “Monroney sticker” (the manufacturer’s suggested retail price sticker): handling charges, floor planning costs, dealer installed options, charges for preparing documents or other dealer preparation services.

E. “Monroney sticker” or “MSRP sticker” means the window sticker required by the federal Automobile Information Disclosure Act, 15 U.S.C. §1231 et seq .

F. “Motor vehicle” means vehicles as defined at 29-A M.R.S.A. § 101 (42).

SECTION 2. GENERAL PROVISIONS

A. General prohibition against unfair and deceptive advertising. These advertising rules are issued pursuant to the Maine Unfair Trade Practices Act (5 M.R.S.A. § 207). All motor vehicle advertising by dealers, whether printed or broadcast, shall be in plain language, with disclosures of material facts that are clear and conspicuous and non-deceptive. By way of example and not of limitation, the following are in violation of this rule:

direct statements or reasonable inferences that have the tendency to mislead consumers;
advertising whose overall impression has the tendency to mislead consumers;
disclaimers that contradict, confuse or unreasonably limit or significantly alter a principal message of an advertisement;
the failure to make clear and conspicuous disclosures of limitations, disclaimers, qualifications, conditions, exclusions or restrictions;
statements susceptible to both a misleading and a truthful interpretation; and
deceptive statements, even though the true facts are subsequently made known to the consumer.

B. Enforcement not limited. The fact that a particular advertising practice is not expressly referred to in these rules does not limit the Attorney General's authority to take legal action with respect to that practice under the Maine Unfair Trade Practices Act (5 M.R.S.A. § 207).

C. Complaints not necessary. An advertisement may be deceptive even though no consumer has complained about it.

D. Selling in accordance with advertised terms. A dealer shall not refuse to sell a motor vehicle in accordance with any terms or conditions which the dealer has advertised; except that it will not be considered a violation of this subsection where either:

the dealer can document that the advertised term was the result of an error on the part of the advertising medium or an outside advertising agent, or
the error was made in good faith by the dealer and was clearly and conspicuously a mistake (e.g., a vehicle advertised at "$1,000" rather than "$10,000"), and
the dealer corrected the error as soon as it knew or reasonably should have known of it.

E. Responsibility for advertising. The dealer is responsible for knowing the law as it applies to advertising and is ultimately responsible for its advertising product. This does not preclude a finding that parties other than the dealer are also liable for a deceptive ad.

F. Disclosure of material facts. Any disclosures about material facts which are contained in advertisements and which involve types of motor vehicles and transactions must be made in a clear and conspicuous manner to minimize the possibility of misunderstanding by the audience.

G. Sale price available to all. Advertised vehicles shall be offered at or below the advertised price regardless of whether the customer has actually seen the advertised price prior to the sale, unless the ad clearly and conspicuously discloses that a customer must bring the ad to the dealer in order to receive the sale price, and the sale price is not given to anyone who does not do so.

SECTION 3. ADVERTISING LAYOUT

The following advertising techniques are in violation of these rules:

A. Footnotes and asterisks. Using footnotes or asterisks which, alone or in combination, contradict, confuse, significantly alter or unreasonably limit the principal message of the ad.

B. Print size. Using any type size so small that it is not easily readable if it alters a principal message of the ad.

C. Color Contrasts. Using color contrasts which render the text difficult to read if it alters a principal message of the ad.

D. Photos and illustrations. Using inaccurate photographs or illustrations when describing specific motor vehicles, except when used as a general illustration of the kind of vehicle advertised (e.g., a truck, sedan, family van, etc.).

E. Abbreviations and technical jargon. Using any unexplained abbreviations or technical jargon which is unfamiliar to the general public, with respect to any aspect of the advertisement on which consumers could reasonably be expected to rely, if it would significantly alter the ad.

F. Disclosures. Using statements of material facts that do not meet the definition of a clear and conspicuous disclosure.

SECTION 4. AVAILABILITY OF VEHICLES

A. Identification of sale vehicles. Where a specific motor vehicle is advertised by a dealer as being for sale at a specific price, the invoice or VIN of that vehicle or the vehicle itself must be in the possession of the dealer and must be shown and sold as advertised, illustrated or described at the advertised price and terms, at the advertised address.

B. Sufficient supply. If the dealer does not limit the number of advertised motor vehicles available, then the dealer must have in stock a sufficient supply to meet reasonably expected public demand of all vehicles advertised, with the equipment advertised and at the price advertised.

C. Limited supply. In the event that a dealer has a limited supply of motor vehicles advertised, the advertisement must disclose this fact by stating that the quantity is limited to only a specified number of vehicles available at the specified price or by stating the stock numbers of the available vehicles.

D. Not immediately available. If in order to make delivery of the advertised motor vehicle, the dealer has to obtain the vehicle from the manufacturer or some other source, this fact must be disclosed in the ad.

E. General offers. This section does not prohibit general advertising of motor vehicles by a manufacturer or distributor and the inclusion therein of the names and addresses of the dealers selling such vehicles in the particular area.

SECTION 5. PRICE DISCLOSURES

A. Vehicle identification. When the price of a motor vehicle is advertised in a local medium, the vehicle must be fully identified as to year, make, model, and, if the current or immediately preceding model year, whether the vehicle is new or used.

B. Advertised price. When advertising the motor vehicle’s price the stated price must include all extra charges, as defined at Section 1(D), which the customer is asked to pay.

C. Non-required disclosures. The advertised price need not include state and local taxes, or title fees. Options installed at customer request need not be included in the advertised price.

D. $0.00 Down payment. An ad that offers $0.00 down payment cannot require immediate payment of extra charges, as defined at Section 1(D).

E. Discount advertising. When an automotive advertisement contains an offer of a price discount on a new motor vehicle, the amount of such discount must be stated by reference to the manufacturer’s suggested retail price (Monroney Sticker or MSRP) of the vehicle or the dealer’s regular asking price, including any additional dealer markup and extra charges. If the dealer advertises a discount of a manufacturer or dealer option package, such discount must be from the suggested retail prices of the options in the package.

F. List or sticker price. When the words “list” or “sticker” or words of similar import are used in an advertisement for a new motor vehicle, they must only refer to the manufacturer’s suggested retail price (Monroney Sticker or MSRP).

SECTION 6. COMPARATIVE MSRP ADVERTISING

Advertising a comparison of the dealer’s price with a manufacturer’s suggested retail price (MSRP) is prohibited, unless:

A. the advertised MSRP is in fact the "bottom line" manufacturer’s suggested retail price listed on the Monroney sticker (including all accessories and options physically attached to the motor vehicle at the time of delivery to the dealer, and any charge to the dealer for transportation to the dealer), after all manufacturer discounts and manufacturer savings listed on the Monroney sticker have been deducted;

B. the advertised MSRP does not include any extra charges added by the dealer;

C. the advertised MSRP is referred to as the “manufacturer’s suggested retail price” or “MSRP”;

SECTION 7. MINIMUM TRADE-IN ALLOWANCES

Since the amount of trade-in allowance will vary depending on the condition, model, and age of a buyer’s motor vehicle, no specific trade-in amount or range of amounts can be used in advertising.

SECTION 8. REBATES

A. Rebate offers. The terms “rebate”, “cash rebate”, or similar terms can be used only when payment of money will be made by the dealer or manufacturer to a purchaser after the sale or the amount will be credited to the purchaser at the time of sale.

B. Rebate availability. If an advertisement states that a motor vehicle is offered at a specified price which “includes all rebates,” the rebates must only include those for which a substantial majority of customers will qualify – all others must be separately stated.

C. Inflated price. If the advertised price of the motor vehicle has been increased to offset the rebate in part or in whole, this information must be clearly and conspicuously disclosed in the ad.

SECTION 9. FREE OFFER

The word “free” may be used in advertising only when the advertiser is offering an unconditional gift that is unrelated to any purchase. Receipt of the “free” merchandise or service cannot be conditional on a purchase of a motor vehicle whose price is negotiable.

SECTION 10. BUY-DOWN INTEREST RATES

No buy-down interest rate can be advertised if any of the costs of securing the buy-down are passed on to the customer in any way, unless the dealer discloses clearly and conspicuously that contribution by the dealership may increase the negotiated price of the vehicle to the customer.

(A buy-down interest rate is one in which the dealership pre-pays some of the interest expense in order to allow the customer to finance at a lower APR than the finance institution’s current rate.)

SECTION 11. FACTORY, EXECUTIVE, AND FULLY-EQUIPPED VEHICLES

A. “Factory” and “Executive” vehicles. A motor vehicle cannot be advertised:

as a "factory" vehicle if it is previously registered or titled.
as an "executive" vehicle unless it has been used exclusively by factory, manufacturer, or distributor personnel.

B. “Fully equipped,” Loaded” etc. A motor vehicle cannot be advertised in any print media as "fully equipped" or "loaded," or similar terms unless the following minimum equipment is available in that make or model: air conditioning, power steering, power brakes, AM/FM radio with tape or CD player, power windows, and cruise control.

SECTION 12. MISLEADING CLAIMS OF POTENTIAL SAVINGS

The following claims of potential savings are in violation of these rules:

A. “Factory outlet”. Using terms such as "factory outlet," "factory authorized sale," or similar terms (which imply that the dealer has a special connection or relationship with the manufacturer that is greater or more direct than that of other dealers), when in fact no such special connection or relationship exists, or when any such special connection or relationship has no discernible effect on vehicle prices.

B. “Liquidation sale”. Advertising a "liquidation sale," "public notice," "public sale," “bankruptcy sale” or similar terms, where the sale is not required by court order, by operation of law, in conjunction with an action in bankruptcy, or by the scheduled cessation of the dealer's business.

C. "Dealer cost," "dealer invoice," etc. Using terms which represent that a vehicle is available for sale at a price below cost, at cost, or slightly above cost, such as "dealer cost," "dealer invoice," "inventory price," "factory invoice," "wholesale," "factory billing," or similar terms, unless the advertisement clearly discloses any factors that may reflect the ultimate cost to the dealer, such as manufacturer incentives, awards, dealer holdbacks, decreased trade-in allowances or increased finance charges.

D. Unsubstantiated pricing. Advertising "lower prices than anyone else," or similar terms, if such claims cannot be substantiated by the dealer.

E. "As low as," "from," "rebates up to," and stock number ads. Using the terms "as low as [a certain price or finance charge]," "from [a certain price]," "rebates up to [a certain dollar amount]," or similar terms, or stating a stock number, unless the advertised vehicles are available for sale as required by Section 4 of these Rules.

F. "Money-back guarantees" or "free trials". Advertising "satisfaction guaranteed," "money-back guarantee," "risk free trial," or similar terms unless the dealer will readily refund the full purchase price of the vehicle upon complaint by the buyer, and any conditions or limitations are disclosed.

G. List price comparisons. Advertising a price that is compared to a “list” price or other similar term unless the list price is the Manufacturer’s Suggested Retail Price (MSRP).

SECTION 13. CREDIT SALES

A. Financing rates. If an advertised financing rate will increase the advertised price of a motor vehicle, then that fact must be disclosed. Where financing is described in terms that do not trigger disclosures under the federal Truth-in-Lending Act (for example, "below market financing"), the ad must nevertheless disclose all conditions and limitations on the advertised financing other than creditworthiness. For instance, a dealer shall not fail to disclose a required down payment.

B. "No money down." If an advertisement states "no money down" or similar terms, then the dealer must deliver the advertised vehicle, so described, to the purchaser without any initial payment or other initial obligation other than the negotiation of a lien contract for the advertised purchase price.

C. "Everybody financed." If an advertisement states "everybody financed," "no credit rejected," "we finance anyone," or similar terms implying that no prospective credit purchaser will be rejected because of his or her inability to qualify for credit, then the dealer must provide credit to a purchaser who requests it. If as a result of extending credit in these circumstances the dealer will increase the price of the vehicle, the advertisement must disclose this fact.

D. Truth-in-Lending. When credit terms are advertised, they must comply with State and Federal Truth-in-Lending requirements.

SECTION 14. LEASE ADVERTISING DISCLOSURES

A. Lease advertisements. Whenever any advertisement relates to a lease, the advertisement must clearly and conspicuously disclose that the transaction advertised is a lease.

B. Truth in lending. When lease terms are advertised, they must comply with the disclosure requirements of State and Federal Truth-in-Leasing requirements.

EFFECTIVE DATE:

October 1, 2005 – filing 2005-246

WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 14, 2025

Chapter 105 Trade Practices in the Sale of New Motor Vehicles

Code Me. R. 26-239 Ch. 105 Trade Practices in the Sale of New Motor Vehicles {#sec-26-239-ch.-105 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 105}

Definitions
Dealer. "Dealer" means a natural person, corporation, partnership, and any other legal entity and the officers, employees, and agents thereof that are engaged in the business of selling, buying, offering to negotiate and negotiating the sale of a new motor vehicle, except auctioneers licensed by the Secretary of State.
Motor Vehicle. "Motor vehicle" means any self-propelled vehicle designed primarily to transport not more than 14 individuals on public ways, except motorcycles, snowmobiles and any vehicle exclusively on a rail or rails.
Extra Charge. "Extra charge" means any consumer charge listed or requested by the dealer for the purchase of a new motor vehicle which is not included in the manufacturer’s suggested retail price for that vehicle. Some examples are the following charges that are typically not listed on a Monroney sticker: handling charges, floor planning costs, charges for documents or preparing documents and preparation services.
Preparation Service. "Preparation service" means any adjustment, inspection, testing, repair, replacement of parts, cleaning, polishing or other labor done with the purpose of preparing a vehicle for sale that is performed by the dealer without prior written authorization of the purchaser.
Optional Equipment. "Optional equipment" means equipment, protective coatings, special features, appliances, parts or accessories added to a motor vehicle by the dealer, or that are added by specific request of the dealer, which the customer purchases and which are not included in the manufacturer’s suggested retail price.
Disclosure or to Disclose. "Disclosure" or "to disclose" means informing the customer in writing prior to his signing any sales document. It is sufficient disclosure to clearly post the information on the vehicle for sale.
Sales Document. "Sales document" means the first document which a seller or any retailer uses to evidence an order for, deposit towards, or contract for the purchase by a customer of a motor vehicle, optional equipment, or service repair contract.
Misrepresentation of Charges

It is prima facie evidence of an unfair trade practice for a dealer to misrepresent, directly or indirectly, the service, product or extra charge for which payment is requested or listed.

Comment

A dealer misrepresentation which could violate this rule occurs when a dealer asks or lists an extra charge for preparation services that the franchiser already reimburses him for. A dealer who wishes to simply ask for more than the Monroney "sticker" price (the manufacturer’s suggested retail price), but is not charging for a specific service or product, can label this higher price with a phrase such as "Dealer’s Asking Price." Rule 105.2 would be violated if, when questioned on what the "Dealer’s Asking Price" meant, the dealer told a customer it was for preparation services. The dealer must disclose the truth (i.e., the charges represents additional dealer profit).

Disclosure of Extra Charges

It is prima facie evidence of an unfair trade practice for a dealer to fail to disclose the reason for and amount of each service, product or extra charge.

For the dealer to accurately disclose an extra charge, it must post on the vehicle or give in writing to the prospective customer, before any sales document is signed, a clear description of each separate service, product or extra charge. If an extra charge is for services, then each specific service and its price must be disclosed.

Comment

This rule expresses the basic disclosure principle that prospective purchasers should be told the total amount and reason for each charge on a new car.

If a dealer charges extra for vehicle preparation services, he must list each separate service he is charging for (e.g., waxing the vehicle, filling up the gas tank) and its price. If a dealer wishes simply to ask for more than the Monroney sticker price, but is not charging for a specific product or service, then this rule would be satisfied by labeling this higher price with a phrase such as "Dealer’s Asking Price."

Optional Equipment Added Prior to Sale

Whenever optional equipment has been added to a new vehicle prior to a purchaser signing a sales document for that vehicle, it is prima facie evidence of an unfair trade practice for a dealer to fail to post on the vehicle:

A. The name of each item added;

B. The price of each item; and

C. The following notice:

Under Maine law, you may not be required to purchase options, accessories, or special features as a condition of sale of any motor vehicle.

Comment

This rule describes a dealer’s "minimal" obligation under 10 M.R.S.A. § 1174, sub-§ 4A. This rule does not foreclose the possibility of a dealer illegally "tying" dealer added options to the sale of a vehicle. A tying arrangement is one in which a seller conditions the sale of one product on the purchase of another product. For example, if a seller of new vehicles requires a purchaser to buy a roof rack in order to be able to buy the vehicle that purchaser wants, the sale of the vehicle has been conditioned on or "tied" to the sale of the roof rack. Ties are illegal when the seller has significant economic power in the market for the major product (the vehicle) and when the market for the lesser or "tied" product (the roof rack) is also substantially affected. Therefore, in this example, if the dealer had a significant share of the market for that particular vehicle in his area of the State and the tying arrangement had a significant impact on the sale of roof racks by other regular sellers of roof racks in the area, it would constitute an illegal tie under the antitrust laws.

Dealer Options and the Disclosure of Manufacturer Warranties

When selling optional equipment or repair service contracts, it is prima facie evidence of an unfair trade practice for any dealer or retailer to fail to make the following disclosures prior to the customer signing a sales document:

A. Disclosures of any manufacturer express warranties that provide the same or similar protection as the optional equipment or service contract being sold by the dealer or retailer: and

B. Disclosure that Maine law provides purchasers of new cars with an implied warranty in addition to the manufacturer’s express warranty. The implied warranty rights and the remedies thereunder cannot be modified or excluded.

Comment

Under this rule dealers or retailers of optional equipment or service contracts must disclose any related implied or express warranties that would already be held by the owner of a vehicle. For example, before selling a customer rustproofing protection with 5 year rustproofing warranty, a dealer or retailer must inform the customer if his vehicle already carries a 3 year manufacturer’s rust protection warranty. Similarly, before selling a customer a multi-year repair service contract, a dealer or retailer must disclose to a customer the existence of the implied warranty of merchantability that is established in Maine law.

An acceptable dealer disclosure of Maine’s implied warranty law would read as follows: "Maine law gives you a warranty against defects in this vehicle. This Maine warranty is in addition to the manufacturer’s express warranty and cannot be limited by the dealer or manufacturer."

Quality of Rustproofing

It is prima facie evidence of an unfair trade practice for a dealer who rustproofs. vehicles, to fail to apply rustproofing or other protective coatings, to the entire surface of each area recommended as needing protection by the protective coating manufacturer.

Advertising

It is prima facie evidence of an unfair trade practice for a dealer to advertise a motor vehicle for sale and to then refuse to sell it or refuses to sell it at the advertised price.

It is prima facie evidence of an unfair trade practice for a dealer to state in an advertisement a particular vehicle’s price or a specific cash discount, unless the advertisement also states the year, make, model, sub-model, and series of the advertised vehicle.

Comment

It can be an unfair trade practice for a dealer to advertise a motor vehicle at one price and then refuse to sell that vehicle unless the purchaser pays extra charges for optional equipment. Under this rule, a dealer cannot be held responsible for advertised offers by franchisers or manufacturers that it did not agree to participate in.

Orders

It is prima facie evidence of an unfair trade practice if a dealer refuses to take orders or unreasonably discourages orders, for motor vehicles advertised by it as generally available or refuses to take orders except at a price that is greater than the advertised price.

It is prima facie evidence of an unfair trade practice for a dealer to advertise a vehicle available when it does not currently have such a vehicle in stock.

Comment

A dealer can avoid violating this rule by stating in its advertisements the exact number of vehicles in stock at the dealership. It would be improper to advertise vehicles as "available" when the vehicles advertised are not in stock at the dealership but merely on order or expected as part of a delivery in the future. Under this rule, a dealer cannot be held responsible for advertised offers by franchisers or manufacturers that it did not agree to participate in.

EFFECTIVE DATE:

November 13, 1982

NON-SUBSTANTIVE CORRECTIONS:

April 4, 2000

26-239 Chapter 105 page 5

Chapter 106 Rules for Administering State Lemon Law Arbitration

Code Me. R. 26-239 Ch. 106 Rules for Administering State Lemon Law Arbitration {#sec-26-239-ch.-106 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 106}

SUMMARY: This chapter describes the procedures for administering the State Lemon Law Arbitration Program established at 10 M.R.S.A. §§ 1161-1169. The Arbitration Program arbitrates consumer complaints dealing with new motor vehicles that may be so defective as to qualify for equitable relief under the Maine Lemon Law. Pursuant to 10 M.R.S.A. § 1169, the Department of the Attorney General is responsible for administering the Arbitration Program and for promulgating these Rules.

RULE PAGE

Sec. 1 Purpose and Definitions 1

Sec. 2 Arbitration Requests 2

Sec. 3 Processing of Arbitration Forms 3

Sec. 4 Notification and Scheduling of Arbitration Hearings 3

Sec. 5 Manufacturer's Response to Arbitration Request 4

Sec. 6 Rescheduling Arbitration Hearings 4

Sec. 7 Defaults 5

Sec. 8 Withdrawal By Consumer 6

Sec. 9 Request for Information 6

Sec. 10 The Hearing 7

Sec. 11 The Decision 8

Sec. 12 Disputing the Arbitrator's Decision 9

Sec. 13 Notifying the Consumer 10

Sec. 14 Additional Arbitrations 10

Sec. 15 Notice to Consumers 10

Sec. 16 Sanctions 12

Sec. 17 Damaged Vehicles 12

Sec. 18 Manufacturer's Reports to the Attorney General 13

Sec. 19 Binding Settlements 13

Sec. 20 Leased Vehicles 14

Sec. 21 Miscellaneous Provisions 14

SECTION 1. PURPOSE AND DEFINITIONS

A. Purpose. These Rules are promulgated pursuant to the "Maine Lemon Law," 10 M.R.S.A. § 1169(3) [hereinafter referred to as "Lemon Law"]. They set forth the procedures for state-certified motor vehicle Lemon Law arbitration as required by that law. These Rules are designed to promote the speedy, efficient, and fair disposition of disputes arising out of defective motor vehicles.

B. Definitions. Unless otherwise stated, terms used in these regulations are as defined or used in the Maine Lemon Law, 10 M.R.S.A. §§ 1161-1169.

"Arbitrator" means the arbitrator selected by the Attorney General to conduct state-certified motor vehicle arbitrations.
"Business day" means any day during which the service department of the authorized dealer of the manufacturer is normally open for business.
"Decision's date of issuance" means the date the arbitrator mails the written decision to the parties, plus 3 days for mail delivery. For example, if a party appeals the arbitrator's decision the appeal must be filed within 24 days after the decision's mailing date.
"Documents" means, but is not limited to, relevant manufacturer's service bulletins, technical reports or notices, work or repair orders, diagnoses, bills, and all communications relating to the consumer's claim.
“Lease payments" means the total of the lease payments made by the consumer, including any down payment or any trade-in allowance that was part of the lease contract and any security deposit.
"Lemon Law term of protection" means the term of the manufacturer's express warranties, or the period of three years following the date of original delivery of the motor vehicle to the original consumer buyer or lessee, or during the first 18,000 miles of operation, whichever is the earliest date.
"Motor vehicle" means a new or used motor vehicle which meets the Lemon Law definition at 10 M.R.S.A. § 1161(3) and which is owned or leased by a consumer who meets the Lemon Law definition at 10 M.R.S.A. § 1161(1).
“Total purchase price" means the total price charged the consumer by the dealer prior to subtracting any rebates or deposits or any credits or allowances for any trade-in vehicles, and including the cost of all options and services (e.g., air-conditioning, rustproofing) added to the price of the motor vehicle.

SECTION 2. ARBITRATION REQUESTS

A. Timely Application for Arbitration. To apply for state-certified arbitration a consumer must submit a timely "request for arbitration" form, which will be supplied on request by the Attorney General.

The application form should be submitted to the Attorney General's Lemon Law Arbitration Program within 3 years from the date of original delivery to the consumer of a new motor vehicle and within the term of the express warranty.
Consumers who submit forms after this application deadline are still eligible for arbitration , if the manufacturer voluntarily agrees to participate. In such cases, the deadline for completion of forms specified in Section 3 shall not apply.

B. Properly Completed Application. To be accepted for arbitration, the request for arbitration must be in compliance with all other rules, regulations, procedures and provisions of law.

SECTION 3. PROCESSING OF ARBITRATION FORMS

A. Timely processing. The Attorney General shall process requests for arbitration forms in a timely manner.

The Attorney General shall date-stamp upon receipt submitted arbitration forms.

B. Reviewed for completeness. The Attorney General shall review submitted arbitration applications for completeness and compliance with the Lemon Law.

Incomplete application forms. The Attorney General shall promptly return incomplete forms to the consumer for completion. Such forms when completed must be received by the Attorney General within 6 months of the application deadline, except when failure to complete the form is due to the untimely processing of the request for arbitration form by the Attorney General.
Rejected application forms. If in the opinion of the Attorney General the arbitration request does not describe a motor vehicle that could meet the statutory definition of a lemon as described in 10 M.R.S.A. §1163 and Section 2(B), the Attorney General shall reject the application form and return it to the consumer with the specific reason for the rejection. The consumer shall then have at least an additional six months to submit a valid application form. Rejection by the Attorney General satisfies the requirement in 10 M.R.S.A. §1165 that the consumer seek to resolve the dispute by application to arbitration before initiating a court action.

C. Start of 45 day arbitration period. The Attorney General shall note on the application the date that the application was found to be complete. This acceptance date shall begin the 45 day period in which the arbitrator must render a decision in the case, and shall be deemed to be the "date of receipt" for purposes of 10 M.R.S.A. §1169(2). If this 45 day period is extended (e.g., due to scheduling delays), the decision must be issued and mailed within 10 business days of the hearing.

SECTION 4. NOTIFICATION AND SCHEDULING OF ARBITRATION HEARINGS

A. Manufacturer's designee for notice. Each manufacturer of cars sold in Maine shall forward to the Attorney General within 10 days after the effective date of these regulations the name, title, address, and telephone number of the person designated by said manufacturer to receive these notices:

Consumer requests pursuant to 10 M.R.S.A. §1163(3-A) for the manufacturer to make a final opportunity to repair any defects; and
Consumer requests for arbitration pursuant to 10 M.R.S.A. §1169.

Such information shall be presumed to be correct unless updated by the manufacturer.

B. Hearing scheduling. Hearings will be held between 8:00 a.m. and 5:00 p.m. on weekdays. Schedules must attempt to accommodate the geographic and time-of-day needs of the consumer and manufacturer.

C. Notice of acceptance for arbitration. Within 7 days of acceptance of a request for arbitration, the Attorney General shall mail a notice to the consumer and to the manufacturer or its designee that the consumer's request for arbitration has been accepted. General information about the arbitration process shall also be included. A copy of the consumer's request for arbitration and accompanying narrative shall be included in these mailings.

D. Hearing date. The hearing shall be scheduled so as to allow the arbitrator to issue a written decision within 45 days of acceptance of the consumer’s application. The arbitrator shall mail (return receipt requested) notice of the date, time, location of the hearing, and the arbitrator's name. These notices shall be mailed to both parties no later than 10 days prior to the hearing.

The arbitrator's office shall attempt to call both parties to confirm the hearing date. If a party is informed of the hearing date by this call this shall constitute sufficient notice should that party claim nonreceipt of the mailed hearing notice provided for in this Rule.

SECTION 5. MANUFACTURER'S RESPONSE TO ARBITRATION REQUEST

Within 14 days of receiving a copy of the consumer's request for arbitration, the manufacturer shall mail to the consumer, the arbitrator, and the Attorney General a specific response to the facts and issues raised in the consumer's request for arbitration form. This response shall provide a detailed defense to the consumer's claims and shall list the witnesses and documents, if any, the manufacturer at that time expects to present at the hearing. This response shall also document all warranty repair work by the manufacturer or its authorized dealers. The Attorney General will provide a form that the manufacturer shall use in making this response.

If the manufacturer fails to properly complete this response from the consumer may complain to the Attorney General and the manufacturer can be required to supplement its response.

SECTION 6. RESCHEDULING ARBITRATION HEARINGS

A. Only one request for rescheduling. Each party shall be allowed one request to reschedule the arbitration hearing and it shall be granted only for very compelling reasons. A rescheduled hearing cannot again be rescheduled by the party who requested the original rescheduling, except pursuant to Section 14. In rescheduling a hearing the arbitrator should if possible attempt to accommodate the needs of both parties.

If a consumer requests a second rescheduling and this request is denied and the consumer then fails to attend the hearing, this shall constitute a withdrawal with prejudice and unless there are exceptional circumstances the consumer will have forfeited his right to arbitration. If the manufacturer does this it shall constitute a default without good cause.

A rescheduling request to the arbitrator may be accomplished by any reasonable means, but must actually be received by the arbitrator no later than the business day before the scheduled hearing.

B. Rescheduling the hearing. Upon receipt of a request for rescheduling, the arbitrator shall record the date it was received, and assign a new hearing date falling within the statutory 45 day period, if one is available. If a hearing date is not available then the next possible hearing date shall be assigned and the statutory requirement that the decision be made within 45 days may be deemed waived. Notice of such new date shall be made to both parties by any means appropriate for the time then remaining before the hearing.

When a hearing is rescheduled, the decision must be issued either within the original 45 day period or within 10 business days of the hearing, whichever is later. Notice to the parties shall be made in accordance with Section 4.

The arbitrator may reschedule any hearing due to circumstances beyond their control. In rescheduling the hearing, the procedure outlined in this Rule shall be utilized.

C. Rejection of arbitrator. The rejection of a proposed arbitrator pursuant to 10 M.R.S.A. §1169 is automatically granted. It shall be treated as if it were a request to reschedule and subject to the requirements of paragraph B of this section.

SECTION 7. DEFAULTS

A. Defaults. A party defaults when it fails to appear at the hearing.

B. Manufacturer defaults. If a manufacturer defaults the arbitrator shall still hold the hearing. The arbitrator shall make a decision based on the evidence presented by the consumer, and any of the manufacturer's evidence already in the arbitrator's possession.

If the manufacturer, by the end of the next business day following the hearing but prior to the mailing of a written decision by the arbitrator, demonstrates good cause to the arbitrator for defaulting, the default shall be considered a request for rescheduling, and subject to the limits on requesting rescheduling set forth in Section 6. If the limits on rescheduling have not been reached, a completely new hearing shall be held, disregarding any evidence presented by the consumer previously (if any).

C. Consumer defaults. If the consumer defaults it shall be considered a withdrawal of the request for arbitration. The hearing shall be canceled if the consumer defaults with or without good cause.

If the consumer by the end of the next business day following the hearing demonstrates to the arbitrator good cause for defaulting, the default shall be considered a request for rescheduling, and be subject to the limits on requesting rescheduling pursuant to Section 6.

D. Both parties default. If both parties default, the disposition of the case shall be handled as if only the consumer defaulted pursuant to this Rule.

E. Default without good cause. The arbitrator shall decide whether a default was for good cause. If either party defaults without good cause and the hearing is not held, the defaulting party shall promptly pay to the Attorney General its costs for the abandoned hearing, if any.

SECTION 8. WITHDRAWAL BY CONSUMER

A. Withdrawals. A consumer may withdraw his request for arbitration at any time.

B. Withdrawals prior to hearing date. Withdrawals received prior to the day of the hearing shall constitute a full and complete withdrawal from the arbitration system, except that the timeliness of a consumer's accepted request for arbitration shall be preserved for at least six months after the consumer's first voluntary withdrawal and the time requirements of Section 3 shall be extended by six months.

C. Withdrawals on day of hearing. Withdrawals received on the day of the hearing or as a result of a default without good cause will be considered a withdrawal with prejudice and the consumer's complaint will not be eligible for future State Lemon Law arbitration.

SECTION 9. REQUEST FOR INFORMATION

A. Request for information by either party. Upon request, either party shall provide to the other and to the arbitrator, any non-privileged documents or other information reasonably related to the consumer's claimed defect(s) and which will reasonably assist the consumer in preparing the Request for Arbitration application or in presenting its case at arbitration. Included in such information can be a view of the consumer's vehicle or a test drive, as long as this occurs in the presence of the consumer and no repairs or adjustments are made.

A view or inspection requested by the manufacturer shall be at the convenience of the consumer and any actual expenses to the consumer shall be reimbursed by the manufacturer.

A party's request must allow a reasonable time for the gathering of the information by the other party, and the response must be received by the requesting party in a timely fashion and certainly no later than 3 days before the hearing.

B. Requests by arbitrator. The arbitrator or the Attorney General is empowered to request reasonable additional information on behalf of either party. The parties shall comply with any such requests within 7 days, or within such reasonable period as the Attorney General or the arbitrator designates.

C. Failure to comply. Upon failure of a party to comply with the arbitrator's direction to produce documents or information, the arbitrator may draw a negative inference concerning any issue involving such documents or information.

SECTION 10. THE HEARING

A. Presentation of evidence. The conduct of the hearing shall encourage a full and complete disclosure of the facts.

The formal rules of evidence shall not apply. The parties may introduce any relevant evidence that will assist the arbitrator in making a decision. It shall, however, be in the arbitrator's sole discretion whether to personally examine or ride in the consumer's vehicle.

The consumer or his representative shall present his evidence and witnesses, then the manufacturer or its representative shall present its case.

Each party may question the other after his presentation, and may question each witness after his testimony. The arbitrator may question any party or witness at any time.

The consumer may provide a rebuttal at the close of the manufacturer's evidence and witnesses.

Each party is responsible for presenting at the hearing all his evidence in a concise manner.

B. Suspension of hearing due to disruption. After a warning, the arbitrator may suspend any hearing which becomes unmanageable due to the behavior of either party.

Such suspended hearing shall be considered a withdrawal with prejudice if caused primarily by the consumer.
Such suspended hearing shall be considered a default without good cause if caused primarily by the manufacturer.

C. Delayed decisions. Unless the arbitrator obtains the consumer's written consent to a delayed decision, the arbitrator may keep the record open only for additional evidence that he requests if that delay will not interfere with the timely rendering of a decision. Such additional evidence shall be provided to both parties and the arbitrator may grant the parties the opportunity to respond in writing.

Unless the arbitrator obtains the consumer's written consent to a delayed decision, the arbitrator may continue a hearing only if that continuance will not interfere with the timely rendering of a decision.

D. Hearing procedures. The arbitrator shall make all reasonable efforts to tape record the hearing.

The arbitrator shall administer an oath or affirmation to each individual who testifies.

The hearing procedure contemplates that both parties will be present. However, either party may offer written testimony only, as long as the arbitrator and the other party are informed of such and are in receipt of the evidence 3 business days prior to the day of the hearing.

Upon approval by the arbitrator, a party may present its case by telephone, provided that adequate advance notice is given to the arbitrator and to the other party. In such cases, the party requesting the telephonic hearing shall pay all costs associated therewith, including but not limited to costs for long distance calls, conference calls, and telephone amplification equipment.

E. Neutral arbitrator. There shall be a single arbitrator conducting each hearing. The arbitrator shall be neutral and must not have a financial or personal interest in the outcome of any hearing.

SECTION 11. THE DECISION

A. Form and timing of the decision. The arbitrator shall mail (return receipt requested) a decision in each case within 45 days of the acceptance date stamped on the request for arbitration form. At the discretion of the Attorney General, failure to mail the decision within such time period, or to hold the hearing within 44 days of acceptance of the request for arbitration, shall not invalidate the decision.

All decisions shall be in writing, dated and signed by the arbitrator, and mailed to both parties and the Attorney General.

The mailing date of the decision shall determine compliance with the 45 day requirement.

The arbitrator may make an oral decision at the hearing but it shall not be binding until a written decision is mailed.

B. Contents of the decision. The full written decision shall contain a summary of the evidence presented, a finding of facts, a conclusion of whether the motor vehicle meets the standards for refund or replacement, a clear calculation of the monetary award if the vehicle meets such standards, and an order if appropriate.

Any monetary award of the total purchase price or lease payments to date, collateral charges, and costs shall be calculated in accordance with 10 M.R.S.A. §1163, but may be affected by any previous rebates, awards or settlements made the consumer. Local excise taxes are not collateral charges for purposes of reimbursement. The "reasonable use allowance" shall be based on the mileage accumulated after delivery of the vehicle to the consumer buyer or lessee.

If a replacement vehicle is accepted by the consumer and the replacement vehicle has less mileage than the consumer's vehicle, then the manufacturer may require the consumer to pay a reasonable allowance for use based on the difference in mileage. This allowance shall be calculated according to 10 M.R.S.A. §1161, sub-§4.

C. Standards for refund or replacement. The arbitrator's decision shall only determine whether the motor vehicle does or does not meet the Lemon Law standards for refund or replacement.

As long as the arbitrator determines that:

The nonconformity(s) complained of continued to exist after the final opportunity to repair and substantially impairs the use, value, or safety of the vehicle;
The consumer gave the manufacturer or dealer a reasonable number of attempts to repair the vehicle as defined in 10 M.R.S.A. §1163 (an attempt to diagnose a defect after a vehicle has been returned for repair may count as a repair attempt even if no repairs were made); and
That all other requirements of 10 M.R.S.A. c. 203 have been met; then the arbitrator must find for the consumer, and order the manufacturer to make a refund or replacement within 21 days of receipt of the decision.

D. Determining whether a defect is substantial. In determining compliance with the nonconformity standard that the defect substantially impairs the use, safety, or value of the vehicle, the arbitrator shall consider the entirety of the circumstances in each case.

In determining whether the vehicle’s "value" has been impaired the arbitrator may consider evidence that the vehicle's current market value is substantially lower than it would have been but for the nonconformity(s).

In determining whether the vehicle is substantially impaired, the arbitrator shall not consider evidence that the nonconformity(s) can be repaired given an additional attempt(s) subsequent to the hearing. Such evidence may be considered in determining whether there have been a reasonable number of attempts to repair the vehicle.

SECTION 12. DISPUTING THE ARBITRATOR'S DECISION

A. Date of issuance of decision. The date the arbitrator's decision is mailed to the parties shall be entered on the first page of the decision. This date, plus three days for mailing, shall be the decision's "issuance date."

B. Technical corrections to arbitrator's decision. The Attorney General may make "technical corrections" to an arbitrator's decision. "Technical corrections" shall generally be defined as errors or omissions in reimbursable costs, computational corrections, typographical corrections, or other minor corrections.

Requests for technical corrections shall be submitted in writing, and must be received by the Attorney General within 14 days of the date of issuance of the arbitrator's full written decision.

C. Procedural complaints. All claims concerning procedural irregularities, or complaints concerning an arbitrator's conduct, or legal errors should be made in writing to the Attorney General. This information is requested to assist the Attorney General in its oversight of the arbitration process and shall not constitute an appeal of any kind.

D. Notification of appeals. If either the manufacturer or the consumer seeks a trial de novo and appeals the arbitrator's decision, or if the consumer initiates a new private action, the parties shall provide the Attorney General with a copy of their initial pleadings in the action. The parties shall provide these filings contemporaneously with their filing in court.

E. Frivolous appeals by the manufacturer. It shall be prima facie evidence of an Unfair Trade Practice under 5 M.R.S.A. §§206-214 for a manufacturer to appeal an arbitrator's decision if there were not a reasonable basis for its appeal or if the appeal was frivolous.

SECTION 13. NOTIFYING THE CONSUMER

The arbitrator shall include with the arbitration decision general information to the consumer explaining the consumer's right to appeal the decision to Superior Court or to initiate a new private legal action.

SECTION 14. ADDITIONAL ARBITRATIONS

A. Limit to arbitrations. Consumers are generally entitled to only one state-certified arbitration per motor vehicle. Participation in any other arbitration or dispute resolution mechanism shall not affect eligibility for state-certified new car arbitration.

B. Discretion to allow an additional arbitration. It shall be within the discretion of the Attorney General whether to allow a new arbitration or participation in arbitration after a withdrawal with prejudice by a consumer, after a party reaches the limit on rescheduling or after a consumer has not prevailed in a previous state-certified new car arbitration. In the case of the latter, the consumer must show a significant change in circumstances (e.g., the failure of a manufacturer's subsequent repair attempt after the arbitrator had ruled that there had not been a "reasonable number of (repair) attempts" or the discovery of a non-conformity(s) not considered in the initial arbitration decision) that would now qualify the vehicle for refund or replacement, assuming all other requirements of the Lemon Law had been satisfied.

SECTION 15. NOTICE TO CONSUMERS

A. Owner's Manual Sticker. Beginning no later than 60 days after the effective date of these regulations, all new motor vehicles and those used motor vehicles still within the Maine Lemon Law term of protection which are sold, offered for sale, or displayed in Maine shall have affixed to the cover of the warranty booklet a yellow sticker which states in not smaller than 5 point type:

If your motor vehicle is seriously defective and cannot be repaired, you may be eligible for Maine State Lemon Arbitration and a new motor vehicle or your money back. For more information, read the Lemon Law brochure in this warranty booklet or call the Attorney General's Lemon Arbitration Program at (207) 626-8848, or (800) 436-2131 or e-mail lemon.law@maine.gov.

B. Manufacturer and dealer responsibilities. The manufacturer shall be responsible for supplying these notices to selling dealers and for entering on each cardboard notice the name and address of the manufacturer's agent for that particular vehicle who should be contacted in order for the manufacturer to make its final repair attempt. The dealers shall be responsible for placing the notices on the owner's manual and inside the warranty booklet.

Manufacturers are encouraged to submit a copy of their proposed sticker and notice to the Attorney General for prior approval.

C. Warranty Booklet Lemon Law Notice. Beginning no later than 60 days after the effective date of these regulations, all new motor vehicles and those used motor vehicles still within the term of protection which are sold or offered for sale in Maine shall include inside the warranty booklet a separate yellow cardboard notice in the following form in not smaller than 10 point type:

MAINE ATTORNEY GENERAL LEMON LAW ARBITRATION

IF YOU HAVE A SERIOUS PROBLEM WITH THIS VEHICLE

The Maine Lemon Law (10 M.R.S.A. §§ 1161-1169) provides free Attorney General arbitration for consumer buyers or lessees whose motor vehicle (including motorcycles and motorized RVs) is seriously defective. Under the Maine Lemon Law, you may have a right to a refund or a replacement of the vehicle if the following applies:

There is an unrepaired defect or combination of defects which substantially impairs the use, safety, or value of your vehicle; and
This unrepaired defect was reported to the dealer or manufacturer:

during the manufacturer’s express warranty; and

within the 3 year period following the delivery date of the vehicle to the original purchaser or lessee; and

during the first 18,000 miles of operation; and

The defect still exists or has recurred after:

3 or more repair attempts for the same defect; or

1 or more repair attempts for the serious failure of either the braking or steering system; or

Being out of service for repairs for a cumulative total of 15 or more business days (for one or more defects); and

The manufacturer had been given in writing a 7 day Final Opportunity To Repair.

For this vehicle you should notify the Manufacturer or its authorized dealer of the defects and the right to make a final repair. Mail to:

[ Name and address of Manufacturer ]

The Attorney General’s state-run arbitration is different from any manufacturer sponsored program to which you may also be entitled. Under the state Lemon Law program, you will receive a free hearing before a neutral state Arbitrator and a decision within 45 days of acceptance of your Lemon Law application. If your vehicle is declared a Lemon, the manufacturer must refund your purchase price or replace the vehicle.

You must apply for state-run arbitration within 3 years after delivery to the original consumer and within the term of the manufacturer's warranty.

THIS SHEET PROVIDES ONLY A SUMMARY OF THE MAINE LEMON LAW

To request arbitration, or to get further information contact:

The Attorney General’s Lemon Law Arbitration Program

Consumer Protection Division, 6 State House Station, Augusta, ME 04333

Telephone: (207) 626-8848 or (800) 436-2131 (option 3)

e-mail: lemon.law@maine.gov

http://www.maine.gov/ag/

SECTION 16. SANCTIONS

A. Sanctions. If either party fails to comply with these Rules, the arbitrator may make such orders as are just, and among others the following:

An order prohibiting the party from introducing designated matters in evidence; or
An order dismissing the proceedings or rendering a judgment by default against the noncomplying party.

SECTION 17. DAMAGED VEHICLES

A. Damage by consumer. If a vehicle that is the subject of arbitration has suffered damage beyond reasonable wear and tear through no fault of the dealer or manufacturer, and that damage is unrelated to the defect, the consumer must either:

Repair the damage;
Pay to the manufacturer the reasonable costs of repair; or
Allow a deduction from the award for the reasonable costs of repair.

B. Notice by consumer. The consumer must notify the manufacturer and the Lemon Law Arbitration Program of the existence and nature of such damage before the hearing, or, if the damage occurs after the hearing, within three days of occurrence.

C. Damage as an issue at arbitration hearing. If the issue of damage is raised at the hearing, the arbitrator may assess fault and the cost to repair the damage. If the arbitrator assesses fault, and if he determines that the damage is the fault of neither the dealer nor the manufacturer, the arbitrator shall deduct from the amount of the award the cost to repair the damage. The cost of damage suffered after an arbitration decision favorable to the consumer shall be fairly resolved between the consumer and the manufacturer.

D. Request for decision delay. If the issue of damage is not resolved by the arbitrator, the manufacturer may submit a request in writing to the Attorney General for permission to delay issuing the award until the issue of damage is resolved. Unless such permission is granted the manufacturer shall pay the full award, or appeal the arbitrator's ruling, within the award/appeal period.

SECTION 18. MANUFACTURER'S REPORTS TO THE ATTORNEY GENERAL

A. Periodic reports. Manufacturer shall notify the Attorney General of the following information:

Within 30 days of delivery to the consumer, the terms of any award to consumers who filed a request for arbitration, including the terms of any settlements agreed to before the arbitration hearing;
Within 30 days of sale, the new purchaser's name, if any, of any vehicle found by an arbitrator to be in violation of the Maine Lemon Law and then sold in Maine by the manufacturer.

SECTION 19. BINDING SETTLEMENTS

If prior to the scheduled arbitration hearing the parties reach a settlement, either party may request that the Arbitrator issue a decision setting forth the terms of that settlement.

Such a decision shall be binding upon the parties. If the manufacturer fails to comply with this decision it may be subject to penalties under the Maine Lemon Law, 10 M.R.S.A. §1169 ( 5, 8 and 10).

SECTION 20. LEASED VEHICLES

If the manufacturer accepts an arbitrator's decision granting a refund to a consumer lessee, compliance with this decision shall be accomplished within 21 days of receipt of the decision and shall include payment of the refund to the consumer, satisfaction of the lessor's interest, and obtainment of clear title to the vehicle.

For the purpose of calculating the refund's reasonable allowance for use, the "purchase price" of the leased vehicle shall be equal to a reasonable estimate of the vehicle's retail price (“gross capitalized cost”) if it had been sold at the time the consumer entered into the lease. This estimate shall be based on, but not limited to, the manufacturer's suggested retail price for that vehicle, if such a figure is available.

SECTION 21. MISCELLANEOUS PROVISIONS

A. Where to address correspondence. All correspondence by parties to the Attorney General should be directed to the attention of the Lemon Law Arbitration Program.

B. Additional program guidelines. The Attorney General may from time to time develop internal guidelines for the operation of the Lemon Law Arbitration program. Pursuant to 5 M.R.S.A. § 9001, the Attorney General may also issue advisory opinions interpreting the Maine Lemon Law and these Rules. Requests for an advisory opinion shall be addressed to the Attorney General and shall include the factual background that gave rise to the question. The Attorney General shall respond to such requests within 45 days.

C. Waiver of Rules. Upon finding of extraordinary circumstances, the Attorney General may waive any of these Rules, if such waiver would be in the public interest, and serve to carry out the purpose and intent of the Maine Lemon Law and these Rules.

D. Unexpected situations. Situations not covered in these regulations shall be handled by the Attorney General or the arbitrator in an equitable and efficient manner.

E. Executive or Demonstration Motor Vehicles. An executive motor vehicle or demonstration ("demo") motor vehicle is covered under the Lemon Law if when it was originally sold to a consumer it met the statutory definition of a "new vehicle" at 10 M.R.S.A. § 1171(13). If the consumer and manufacturer cannot determine the date the vehicle was first used, the term of protection shall be the term of the consumer's express warranties, or 18,000 miles, whichever comes first.

F. Dealer defects. The Lemon Law can result in a manufacturer being responsible for defects caused by an authorized dealer's mistakes in installing options which are the product of the manufacturer or in attempting warranty repairs.

The effective date of Chapter 106, except for Section 15, shall be retroactive to October 1, 1989. For Section 15 the effective date shall be the date these Rules are actually promulgated.

EFFECTIVE DATE:

January 17, 1990

AMENDED:

May 9, 1990 (EMERGENCY)

October 1, 1990 - Section 15

NON-SUBSTANTIVE CORRECTIONS:

April 4, 2000

AMENDED:

April 4, 2000

WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 14, 2025

Chapter 109 Unfair Trade Practices and Charitable Solicitations by Law Enforcement Officers

Code Me. R. 26-239 Ch. 109 Rules Concerning Unfair Trade Practices and Charitable Solicitations by Law Enforcement Officers {#sec-26-239-ch.-109 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 109}

SUMMARY: This Chapter describes types of solicitations which tangibly benefit law enforcement and types which do not. In general, a solicitation which is completely unrelated to law enforcement officers, although it increases good will toward law enforcement, does not confer a tangible benefit. A solicitation which funds a law enforcement program, which otherwise would have to be funded through law enforcement’s own budgeting processes, does confer a tangible benefit.

109.1 SOLICITATIONS THAT TANGIBLY BENEFIT LAW ENFORCEMENT

A solicitation tangibly benefits a law enforcement agency, officer, or association if the proceeds of that solicitation are used, represented to be used, or intended to be used to support a law enforcement program or purpose which a law enforcement agency or association otherwise would have to fund through its own budgeting mechanisms. Examples of solicitations which tangibly benefit law enforcement are as follows: (1) A solicitation which raises money from community members to pay for the purchase of equipment for a local police department; (2) A solicitation to send an officer into school classrooms to conduct anti-drug abuse training (the money paying for the officer’s salary and for education materials); and (3) The solicitation of funds for erection of a monument to memorialize slain officers, which was permitted by prior law, Priv. & Spec. Laws 1989, ch. 47.

109.2 SOLICITATIONS THAT DO NOT TANGIBLY BENEFIT LAW ENFORCEMENT

A solicitation of money for purposes completely unrelated to law enforcement, such as for a charity unrelated to law enforcement, does not confer a tangible benefit on law enforcement even if the solicitation effort increases good will toward law enforcement. For example, if police officers engage in solicitations of money for earthquake victims in South America, and if no law enforcement agency, officer, or association receives, is intended to receive, or is represented to receive any of the proceeds of the solicitation, then that solicitation program will not tangibly benefit law enforcement.

EFFECTIVE DATE: December 23, 1991

NON-SUBSTANTIVE CORRECTIONS:

April 4, 2000

26-239 Chapter 109 page 2

Chapter 200 Rules Implementing the Maine Tobacco Master Settlement Agreement

Code Me. R. 26-239 Ch. 200 Rules Implementing the Maine Tobacco Master Settlement Agreement {#sec-26-239-ch.-200 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 200}

SUMMARY: This chapter describes the procedures under which the Attorney General may require a tobacco product manufacturer to make quarterly certifications and escrow deposits and certain procedures relating to the directory. The Tobacco Manufacturers Act, 22 M.R.S.A. § 1580-G, et seq., and the Tobacco Product Manufacturers Act, 22 M.R.S.A. § 1580-L (hereinafter, collectively known as the “Tobacco Acts”) were passed as a result of the Master Settlement Agreement (“MSA”) entered into between 46 states, including Maine, and the major tobacco companies, requiring tobacco product manufacturers not participating in the MSA to set up qualified escrow accounts and to deposit funds into the accounts based on the number of manufacturers’ cigarettes sold in each state. The Tobacco Acts provide for enforcement of the escrow obligations through setting up a directory to which all compliant tobacco product manufacturers are listed. These Rules provide tobacco product manufacturers with guidelines on how to become compliant and maintain their compliant status. Pursuant to 22 M.R.S.A. § 1580-L(14), the Department of the Attorney General is responsible for administering the Tobacco Acts, and for promulgating these Rules.

SECTION 1. PURPOSE AND DEFINITIONS

A. Purpose. These Rules are promulgated pursuant to the Tobacco Product Manufacturers Act, 22 M.R.S.A. § 1580-L. They set forth instructions to provide tobacco product manufacturers, distributors and retailers clear guidance on how to comply with this law.

B. Definitions. Unless otherwise stated, terms used in these regulations are as defined below or as used in the Tobacco Manufacturers Act, 22 M.R.S.A. § 1580-G, et seq. and the Tobacco Product Manufacturers Act, 22 MRSA § 1580-L.

Brand Family. Brand family has the same meaning as that term is defined in 22 M.R.S.A. §1580-L(1)(A).
Cigarette. Cigarette has the same meaning as that term is defined in 22 M.R.S.A. §1580-H(4).
Directory. Directory has the same meaning as provided for by Section 22 M.R.S.A. §1580-L(6).
Master Settlement Agreement. Master settlement agreement has the same meaning as that term is defined in 22 M.R.S.A. §1580-H(5).
Nonparticipating Manufacturer. Nonparticipating manufacturer has the same meaning as that term is defined in 22 M.R.S.A. §1580-L(1)(D).
Participating Manufacturer. Participating manufacturer has the same meaning as that term is defined in 22 M.R.S.A. §1580-L(1)(E).
Qualified Escrow Fund. Qualified escrow fund has the same meaning as that term is defined in 22 M.R.S.A. §1580-H(6).
Tobacco Product Manufacturer. Tobacco product manufacturer has the same meaning as that term is defined in 22 M.R.S.A. §1580-H(9).

SECTION 2. QUARTERLY CERTIFICATIONS AND ESCROW DEPOSITS

A. Quarterly Certifications and Escrow Deposits. To promote compliance with 22 M.R.S.A. § 1580-G et seq., the Attorney General may require nonparticipating manufacturers quarterly to certify their compliance with the Tobacco Act. The Attorney General may also require nonparticipating manufacturers to make the escrow payments required by 22 M.R.S.A. § 1580-I(2) in quarterly installments during the year in which the sales covered by such payments are made. This rule applies to nonparticipating manufacturers who meet any of the following criteria:

No Previous Escrow Deposit. Nonparticipating manufacturers that have not previously established and funded a qualified escrow fund in Maine;
No Escrow Deposit for More Than One Year. Nonparticipating manufacturers that have not made any escrow deposits for more than one (1) year in Maine;
Untimely or Incomplete Deposits. Nonparticipating manufacturers that have failed to make a timely and complete escrow deposit for any prior calendar year;
Outstanding Judgments. Nonparticipating manufacturers that have failed to pay any judgment, including any civil penalty;
Large Sales Volume. Nonparticipating manufacturers that have more than 1,000,000 of their cigarettes sold in Maine during a quarter; and
Other Reasonable Cause. In addition to the reasons specified above, the Attorney General may require quarterly escrow deposits from a nonparticipating manufacturer if the Attorney General has reasonable cause to believe the nonparticipating manufacturer may not make its full required escrow deposit by April 15 of the year following the year in which the cigarettes sales were made.

B. Notice to Nonparticipating Manufacturers. Any nonparticipating manufacturer required to make quarterly escrow deposits and to certify its compliance with this rule shall be notified of those requirements by first class mail sent to its last known address.

C. Deadline for Quarterly Escrow Deposits. Nonparticipating manufacturers that are required to make quarterly escrow deposits must do so no later than thirty (30) days after the end of the quarter in which the sales are made. For example, the deadline for making a quarterly escrow deposit for cigarette sales occurring in February is April 30 of the same year.

D. Deadline for Submitting Quarterly Certification and Notifying Attorney General of Quarterly Escrow Deposit. Nonparticipating manufacturers that are required to make quarterly escrow deposits must provide the Attorney General with official notification of the quarterly escrow deposit no later than ten (10) days after the deadline for which an escrow deposit is required. Nonparticipating manufacturers must also provide their quarterly certifications within the same deadline. For example, the deadline for certifying and officially notifying the Attorney General of a quarterly escrow deposit for sales of cigarettes that occurred in February is May 10 of the same year.

E. Quarterly Periods Defined. For purposes of this subchapter, the calendar year shall be divided into the following quarters: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31.

F. Untimely or Incomplete Quarterly Certification or Quarterly Escrow Deposit. If the required quarterly escrow deposit is not timely made in full, or the required quarterly certification is not provided to the Attorney General in a timely fashion, or the Attorney General does not receive timely official notice of the quarterly escrow deposit, the delinquent nonparticipating manufacturer and its brand families may be immediately removed from the directory.

SECTION 3. DIRECTORY

A. Directory. The Attorney General shall develop, maintain and publish the directory, which shall list all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of 22 M.R.S.A. § 1580-G, et seq. (Tobacco Manufacturers Act) and 22 M.R.S.A. § 1580-L (Tobacco Product Manufacturers) and all brand families that are listed in such certifications; provided, however,

Missing Or Noncompliant Certification. The Attorney General shall not include or retain in such directory the name or brand families of any nonparticipating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with 22 M.R.S.A. § 1580-G, et seq. (Tobacco Manufacturers Act) and 22 M.R.S.A. § 1580-L (Tobacco Product Manufacturers), unless the Attorney General has determined that such violation has been cured to the satisfaction of the Attorney General.
Inadequate Escrow Deposit And Outstanding Judgments. Neither a tobacco product manufacturer nor a brand family shall be included or retained in the directory if the Attorney General concludes in the case of a nonparticipating manufacturer that:

a. Any escrow payment required for any period and 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

b. Any outstanding final judgment, including interest thereon, for a violation of Maine’s Master Settlement Agreement has not been fully satisfied for such brand family and/or such manufacturer.

Misrepresentations. The Attorney General shall not include or retain in such directory the name or brand families of any nonparticipating manufacturer whose certification the Attorney General determines is based on misrepresentation, false information, nondisclosure or concealment of fact.

B. Publication of Directory. The directory is available on the Internet at the Attorney General’s website. Alternatively, it will be provided by mail upon request to the Attorney General.

C. Directory Updates. 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 families to keep the directory in conformity with the requirements of 22 M.R.S.A. §1580-L.

D. Directory Update Notices – Stamping Agents. The Attorney General shall transmit by electronic mail, if possible, or by other means as are reasonable to all persons who ask to receive it, notice of the addition to, or removal from, the directory of any tobacco product manufacturer or brand family.

E. Burden of Establishing Entitlement to Be Listed in the Directory. The burden of proof shall be on the tobacco product manufacturer to establish that it or a particular brand family is entitled to be listed in the directory.

F. Review of Attorney General Decisions Related to Excluding or Removing From the Directory. A determination of the Attorney General to exclude or remove from the directory a brand family or tobacco product manufacturer shall be subject to administrative review in accordance with the provisions of 5 M.R.S.A. Chapter 375, subchapter IV.

History

STATUTORY AUTHORITY: 22 M.R.S.A. §1580-L(14).
EFFECTIVE DATE: December 22, 2004 – filing 2004-585
EFFECTIVE DATE: 26-239 Chapter 200 page 4

Chapter 500 Rules for Law Enforcement Collection of Traffic Stop Data to Eliminate Profiling

Code Me. R. 26-239 Ch. 500 Rules for Law Enforcement Collection of Traffic Stop Data to Eliminate Profiling {#sec-26-239-ch.-500 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 500}

SUMMARY: These rules for traffic stop data collection to eliminate profiling in Maine are promulgated pursuant to 5 MRSA c. 337 D sec. 4753. They establish the categories of data that all law enforcement agencies’ officers shall collect for all motor vehicle stops for alleged traffic infractions in the State, the deadlines for quarterly reports of that data to the Office of the Attorney General, and the retention period for the data.

DEFINITIONS

“American Indian or Alaska Native” refers to origins in any of the original peoples of North and South America (including Central America).

“Asian” refers to origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

“Black or African American” refers to origins in any of the Black racial groups of Africa.

“Hispanic” or “Latino(a)” refers to origins in Spain, Mexico, Puerto Rico, Cuba, Central and South America, and other Latin American or Spanish-speaking countries.

“Law enforcement agency” means an agency in the State charged with enforcement of state, county, municipal or federal laws or laws of a federally recognized Indian tribe, with the prevention, detection or investigation of criminal, immigration or customs laws or with managing custody of detained persons in the State and includes, but is not limited to, a municipal police department, a sheriff's office, the State Police, tribal police departments, a university or college police department and the Department of Public Safety. “Law enforcement agency” does not include any law enforcement agency established pursuant to federal law.

“Law enforcement officer” means a state, county or municipal official or an official of a federally recognized Indian tribe responsible for enforcing criminal, immigration or customs laws, including, but not limited to, a law enforcement officer who possesses a current and valid certificate issued by the Board of Trustees of the Maine Criminal Justice Academy pursuant to 25 MRSA c. 341 sec. 2803‑A.

“Motor vehicle” is defined pursuant to 29-A MRSA c. 1 sec. 101 (42).

“Native Hawaiian or Other Pacific Islander” refers to origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

“Non-binary” refers to gender identity and/or gender expression outside of the gender categories of “male” and “female”.

“Stop” or “Traffic stop” means any detention by a law enforcement officer of a motor vehicle for an alleged traffic infraction.

“White” in section II (3) below only refers to origins in any of the original peoples of Europe, the Middle East, or North Africa.

DATA ELEMENTS TO BE COLLECTED

Each law enforcement agency shall collect the following information in the manner described and per the timeline set forth in section III of these rules for submission to the Attorney General. The information shall pertain to the total number of times law enforcement officers employed by the law enforcement agency stopped drivers of motor vehicles for any alleged traffic infraction and shall include:

Law enforcement agency name and location.

Location, date and time of stop.

Perceived Race of Person Stopped. When reporting this data element, the officer shall select from:

White

Black or African American

American Indian or Alaska Native

Asian

Native Hawaiian or Other Pacific Islander

Perceived Color of Person Stopped . When reporting this data element, the officer shall select from:

White

Brown

Black

Other non-White

Perceived Ethnicity of Person Stopped. When reporting this data element, the officer shall select from:

Hispanic or Latino(a)

Non- Hispanic or Latino(a)

Perceived Genderof Person Stopped. When reporting thisdata element, the law enforcement officer shall select from:

Male

Female

Non-binary or Other Gender

Perceived Ageof Person Stopped. When reporting thisdata element, the law enforcement officer shall record their perception of the age in years of the person stopped in numeric format (e.g. 53).

Reason for Stop/Nature of Alleged Infraction. When reporting this data element, the law enforcement officer shall record the relevant Maine Revised Statute number(s) that formed the basis of any alleged infraction(s) or violation(s) leading to the stop.

Result of Stop.When reporting this data element, the law enforcement officer shall indicate any of the following that apply

Arrest

Citation

Warning

No Action Taken

Any additional information the law enforcement agency determines appropriate. The additional information may not include any other personally identifiable information about a person stopped for a traffic infraction such as the person's driver's license number, name or address.

When reporting the data elements of perceived race, color, ethnicity, gender and age, the law enforcement officer shall make their determination of the person’s race, color, ethnicity, gender and age based only on personal observation and perception made during the course of the traffic stop. The officer shall not ask the person stopped their race, color, ethnicity, gender or age, or ask questions or make comments or statements designed to elicit this information.

REPORT OF DATA

Each law enforcement agency shall submit the data described in these rules to the Office of the Attorney General quarterly via report generated from the Maine eCitation system maintained by the State of Maine Department of Public Safety, or in compliance with protocol established and approved by the Office of the Attorney General. The first quarterly data report shall be due on October 31, 2024, and shall contain data covering July 1, 2024, through September 30, 2024. Thereafter quarterly reports will be due to the Office of the Attorney General on the following dates for the corresponding data collection periods:

January 31^st for data from October 1^st through December 31^st

April 30^th for data from January 1^st through March 30^th

July 31^st for data from April 1^st through June 30^th

October 31^st for data from July 1^st through September 30^th

DATA RETENTION

Law enforcement agencies shall retain data collected pursuant to these rules for a period of five (5) years.

History

STATUTORY AUTHORITY: 5 MRSA § 4753
EFFECTIVE: December 31, 2023 – filing 2023-255

26-550 Victims' Compensation Board

Chapter 3 Rules for the Application and Decision-Making Process

Code Me. R. 26-550 Ch. 3 Rules for the Application and Decision Making Process {#sec-26-550-ch.-3 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 3}

SUMMARY: This chapter outlines the procedures and standards governing the Victims’ Compensation Program application and decision making process.

§ 1 Claimants:

An application for compensation may be made on a minor’s behalf by the minor’s parents or legal guardian.
An application for compensation may be made on an incompetent’s behalf by a legal guardian or other person authorized to administer the incompetent’s estate.

§ 2 Incomplete Application:

Whenever an application is not complete or the Board requires further information or explanation the Board shall advise the applicant. The applicant shall provide the required information within 60 days. If the information is not received the Board may consider the application withdrawn or may decide the claim based on the application and information submitted.

§ 3 Notice of Board Decision:

Applicants shall be mailed notification of the Board’s decision within a reasonable time after the Board meeting. The basis for the Board’s decision shall be set forth in the notice.
Where the Board has denied an award on a matter decided without hearing the notification shall include a hearing request form.

§ 4 Request for a Hearing:

Requests for hearing must be made in writing to the Board within 30 days of the Board’s decision on that claim.
A claimant who requests a hearing will be notified in writing of the date and time of the hearing.
After reviewing the evidence provided at hearing, the Board shall render its decision. The Board shall promptly notify the claimant in writing of its decision.
If, after hearing, the decision of the Board is to deny or limit a claim the claimant will be notified of their right to appeal the Board’s final decision to Superior Court.

§ 5 False Statements:

Any application form promulgated by the Board may bear upon it a notification to the effect that false statements made therein or pursuant thereto are punishable as unsworn falsification under 17-A M.R.S.A. § 453.

History

STATUTORY AUTHORITY: 5 M.R.S.A. § 3360-A(7)
EFFECTIVE DATE: February 19, 1995
NON-SUBSTANTIVE CORRECTIONS: March 17, 2000 - formatting
AMENDED: May 27, 2000
AMENDED: 26-550 Chapter 3 page 2

Chapter 6 Rules Regarding Limitations on Compensation

Code Me. R. 26-550 Ch. 6 Rules Regarding Limitations on Compensation {#sec-26-550-ch.-6 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 6}

SUMMARY: This chapter enables the Board to safeguard the limited resources in the fund and thereby serve the greatest number of crime victims by imposing a standard of reasonableness in the amounts of awards for medical and medically related expenses.

§1 Generally: The Board shall award compensation for unreimbursed medical and medically related expenses which the Board determines are reasonable and necessary and which were incurred as a direct result of the crime. Compensation will not be awarded for unrelated, or pre-existing conditions except to the extent that they were exacerbated by the crime. In the Board’s determination of reasonable and necessary expenses the following guidelines shall apply; however, the Board may depart from these guidelines if necessary to further the purposes of the statute and if the Board states its reasons therefore in writing:

Funeral Expenses: A standard maximum award for funeral expenses shall be $4500.00 with an additional $500.00 award available for a burial marker. The Board may exceed this guideline in exceptional circumstances. The Board shall consider the following factors in deciding whether to award less than the standard maximum:

A. The number of family and household members potentially eligible for benefits under a claim.

B. The number and cost of compensable losses potentially payable under a claim; and

C. Considerations specified in the Victims’ Compensation statute.

Lost Wages: Awards for lost wages shall be based on the victim’s net wages at the time of injury. The Board shall not reimburse for lost income covered by a collateral source. Prior to the granting of an award for lost wages the Board must be provided with:

A. A disability statement from a treating physician or mental health provider demonstrating that the injury or condition is causally related to the crime and specifying when the victim is or will be able to resume work and either:

B. Verification of employment from the employer, including dates absent from work, net salary and any available sick or vacation pay or

C. Self employed claimants shall provide a copy of the two prior years’ tax returns and/or other substantial evidence of lost income or profits.

Medical Expenses: The victim shall be eligible for compensation for medical care incurred as a result of the crime that is not covered by another source. The Board may award up to 75% of all outstanding medical bills not to exceed the statutory limit. The Board will not pay interest, finance or collection fees as part of the claim.

A. Prior to the granting of an award for medical care costs the claimant must:

(1) Submit all bills to insurance providers

(2) Exhaust, to the satisfaction of the Board, all other sources of public or private reimbursement including but not limited to: Medicaid, Medicare, Worker Compensation, Social Security, Veterans Benefits, General Relief and Free care, and verify that they have done so.

Mental Health: A victim, and his or her family members to the extent that family counseling is determined to be necessary to expedite the victims recovery, shall be eligible for compensation for reasonable mental health counseling expenses incurred as a direct result of the crime. Counseling fees will be reimbursed only when treatment is provided by a qualified professional with an acceptable treatment plan.

A. Prior to the granting of an award for counseling, the treatment provider must complete a treatment plan. The plan shall include a diagnosis, treatment goals with target dates for completion and the expected termination date.

B. The claimant may request an extension of counseling services beyond the original treatment plan. In this instance the treatment provider shall provide an updated treatment plan.

C. In making determinations regarding claims for mental health counseling, the Board may obtain the opinion of a review panel consisting of volunteer members from the mental health counseling community.

History

STATUTORY AUTHORITY: 5 M.R.S.A. § 3360-A(7)
EFFECTIVE DATE: February 19, 1995
NON-SUBSTANTIVE CORRECTIONS: March 17, 2000 - formatting
AMENDED: May 27, 2000

Chapter 8 Rules for Sexual Assault Forensic Examinations

Code Me. R. 26-550 Ch. 8 Rules for Sexual Assault Forensic Examinations {#sec-26-550-ch.-8 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 8}

SUMMARY: This chapter defines the elements of the forensic examination for alleged victims of gross sexual assault and the process for licensed hospitals and health care practitioners to obtain reimbursement from the Victims’ Compensation Board.

Purpose: The purpose of this rule is to outline a procedure for payment by the Victims’ Compensation Board of the costs of forensic examinations for alleged victims of gross sexual assault. The rule includes a list of tests and treatments which medical providers must have available and offer to provide to an alleged victim in order for the examination to be eligible for payment. This rule does not establish any medical or forensic standard for sexual assault examinations, and it is not relevant or material to the proof of any such standard.

§ 1 Forensic Examinations for Gross Sexual Assaults:

Maine licensed medical facilities and licensed health care practitioners shall be reimbursed from the Victims’ Compensation Fund for forensic examinations performed on alleged victims of gross sexual assault in accordance with these Rules. “Gross Sexual Assault” has the meaning as found in Title 17-A sec. 253. “Alleged victim” means any person who alleges that he or she is a victim of gross sexual assault and any person who is unconscious or incapacitated due to mental disease, disorder or defect and is identified by law enforcement or a health care practitioner as the victim of gross sexual assault. The maximum payment by the Fund for the forensic assault examination shall not exceed the statutory maximum of $500.00.

A. To be eligible for payment, the gross sexual assault forensic examination must include at least all services directly related to the gathering of forensic evidence and related testing and treatment for pregnancy and sexually transmitted diseases. Licensed hospital and licensed health care practitioners must have available and offer to provide at least the following tests and treatments:

(1) Professional/practitioner’s services

history

Physical

Collection of specimens

Treatment for the prevention of sexually transmitted infection

(2) Emergency department

Emergency room, clinic room or office room fee

Pelvic tray

(3) Laboratory

Fixed smear for sperm

Blood testing for syphilis and Hepatitis B

HIV test

Cultures for gonorrhea, chlamydia, trichomonas and other sexually transmitted diseases (STD)

(4) Pregnancy testing (blood test or urinalysis)

(5) Other laboratory tests that are required for the purpose of evidentiary examination

(6) Medications

Pregnancy prophylaxis

Sexually transmitted disease prophylaxis

One dose sedative, antidepressant or tranquilizer

Anti-emetic

The tests and treatments performed shall be based on each patient’s individual need and preference. If performed by a licensed hospital or licensed health care practitioner, any of these listed tests and treatments may be billed as part of the forensic examination.

B. For purposes of reimbursement, all services directly related to the gathering of forensic evidence and initial testing and treatment for pregnancy and sexually transmitted diseases constitute the sexual assault forensic examination.

§ 2 Treatment of Victims:

Any adult victim shall decide whether to report the incident to a law enforcement agency. The medical facility may not require an adult victim to report the incident in order to receive medical treatment or have forensic evidence collected. Evidence will be collected only where the victim has given permission. However, permission is not required in instances where the victim is unconscious or mentally incapable of consent. Should the adult victim wish to report the incident, the appropriate law enforcement agency shall be contacted by the medical facility. The licensed hospital or licensed health care practitioner performing a sexual assault forensic examination upon an alleged victim under the age of eighteen (18) shall follow the reporting rules required by law.

§ 3 Payment for Forensic Examinations for alleged victims of gross sexual assault:

A victim seeking examination and treatment following a gross sexual assault shall be exempted from the payment of expenses incurred as a result of sexual assault forensic examination services. The licensed hospital or licensed health care practitioner may bill the patient or patient’s insurer for services outside the scope of the forensic examination. A victim may apply to the Victims’ Compensation Board for reimbursement for losses outside the scope of the gross sexual assault forensic examination.
The Victims’ Compensation Board shall pay the costs of forensic examinations for alleged victims of gross sexual assault from the Victims’ Compensation Fund. To be reimbursable an examination must incorporate the use of a uniform standardized forensic examination kit distributed by the Department of Public Safety, and that use must have a forensic basis. If at any time a uniform kit is not available for distribution, the licensed hospital or licensed health care practitioner must use a standardized evidence collection kit that has met the requirements established by rule of the Department of Public Safety. The maximum payment by the fund for a forensic examination shall not exceed the statutory maximum of $500.00. The Board may delegate to the director of the Victims’ Compensation Board the review of claims and approval of reimbursement for services included in forensic examinations in accord with rules and guidelines established by the Victims’ Compensation Board. Payments from the Compensation Fund shall be made directly to the licensed hospital or licensed health care practitioner and shall be considered payment in full and shall bar balance billing or other actions for collection.

A. Upon completion of a gross sexual assault forensic examination the licensed hospital or licensed health care practitioner shall submit an itemized bill detailing the treatment costs and examination costs for collection of evidence required by the Department of Public Safety. Claims will be paid only where the sexual assault procedures as required by 24 MRSA §2986, 25 MRSA §2915, 25 MRSA §3821, and 5 MRSA §3360-M for forensic examinations and treatment are followed.

B. In the event that there are multiple fees from separate service providers, the statutory maximum shall be allocated among the service providers.

C. The licensed hospital or licensed health care practitioner to receive reimbursement is responsible for submitting to the Victims’ Compensation Board (on forms approved by the Board) the following information:

(1) Victim tracking number

(2) Examination kit number

(3) Victim’s date of birth

(4) Victim’s gender

(5) Date and time of incident

(6) Location of incident (Town)

(7) Date and time of treatment by medical provider

(8) Whether a report to law enforcement was filed

(9) Name of law enforcement agency notified

(10) Name and address of medical provider

(11) Hospital / Practitioner Federal Tax Identification Number

(12) Provider billing office contact person and phone number

(13) Signed verification from the licensed health care practitioner

(14) All itemized copies of medical bills complete with current procedural terminology (CPT) codes. This billing statement must show individual charges for lab work as listed in 1A of this rule.

D. The licensed medical facility or licensed practitioner must send the reimbursement form with the attached itemized bills to the Victims’ Compensation Board.

E. All claims must be submitted to the Board within 60 days of examination.

History

STATUTORY AUTHORITY: 5 MRSA § 3360-M(2)
EFFECTIVE DATE: October 25, 2000
EFFECTIVE DATE: 26-550 Chapter 8 page 4

Code of Maine Rules — Department of the Attorney General

26-239 Department of Attorney General - General

Chapter 1 Rules for Strip Searches, Manual Mouth Searches, and Body Cavity Searches of Arrestees

Code Me. R. 26-239 Ch. 1 Rules for Strip Searches, Manual Mouth Searches, and Body Cavity Searches of Arrestees {#sec-26-239-ch.-1 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 1}

Chapter 2 Forfeiture Rules

Code Me. R. 26-239 Ch. 2 Forfeiture Rules {#sec-26-239-ch.-2 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 2}

Chapter 3 Standards for the Operation of Arrest Warrant Repositories

Code Me. R. 26-239 Ch. 3 Standards for the Operation of Arrest Warrant Repositories {#sec-26-239-ch.-3 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 3}

Chapter 4 Rules Governing Disposition of Forfeited Firearms

Code Me. R. 26-239 Ch. 4 Rules Governing Disposition of Forfeited Firearms {#sec-26-239-ch.-4 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 4}

Chapter 10 Rules for Exemptions to the Ban on Flavored Cigarettes and Cigars

Code Me. R. 26-239 Ch. 10 Rules for Exemptions to the Ban on Flavored Cigarettes and Cigars {#sec-26-239-ch.-10 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 10}

Chapter 100 Trade Practices in the Sale of Residential Heating Oil

Code Me. R. 26-239 Ch. 100 Trade Practices in the Sale of Residential Heating Oil {#sec-26-239-ch.-100 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 100}

Chapter 102 Trade Practices in the Sale of Urea Formaldehyde Foam Insulation

Code Me. R. 26-239 Ch. 102 Trade Practices in the Sale of Urea Formaldehyde Foam Insulation {#sec-26-239-ch.-102 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 102}

Chapter 104 Motor Vehicle Advertising

Code Me. R. 26-239 Ch. 104 Motor Vehicle Advertising {#sec-26-239-ch.-104 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 104}

Chapter 105 Trade Practices in the Sale of New Motor Vehicles

Code Me. R. 26-239 Ch. 105 Trade Practices in the Sale of New Motor Vehicles {#sec-26-239-ch.-105 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 105}

Chapter 106 Rules for Administering State Lemon Law Arbitration

Code Me. R. 26-239 Ch. 106 Rules for Administering State Lemon Law Arbitration {#sec-26-239-ch.-106 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 106}

Chapter 109 Unfair Trade Practices and Charitable Solicitations by Law Enforcement Officers

Code Me. R. 26-239 Ch. 109 Rules Concerning Unfair Trade Practices and Charitable Solicitations by Law Enforcement Officers {#sec-26-239-ch.-109 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 109}

Chapter 200 Rules Implementing the Maine Tobacco Master Settlement Agreement

Code Me. R. 26-239 Ch. 200 Rules Implementing the Maine Tobacco Master Settlement Agreement {#sec-26-239-ch.-200 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 200}

Chapter 500 Rules for Law Enforcement Collection of Traffic Stop Data to Eliminate Profiling

Code Me. R. 26-239 Ch. 500 Rules for Law Enforcement Collection of Traffic Stop Data to Eliminate Profiling {#sec-26-239-ch.-500 omnilex-key=us-me-regs-official--dept-attorney-general--26-239 Ch. 500}

26-550 Victims' Compensation Board

Chapter 3 Rules for the Application and Decision-Making Process

Code Me. R. 26-550 Ch. 3 Rules for the Application and Decision Making Process {#sec-26-550-ch.-3 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 3}

Chapter 6 Rules Regarding Limitations on Compensation

Code Me. R. 26-550 Ch. 6 Rules Regarding Limitations on Compensation {#sec-26-550-ch.-6 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 6}

Chapter 8 Rules for Sexual Assault Forensic Examinations

Code Me. R. 26-550 Ch. 8 Rules for Sexual Assault Forensic Examinations {#sec-26-550-ch.-8 omnilex-key=us-me-regs-official--dept-attorney-general--26-550 Ch. 8}

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