183F 96th Legislative Session 189
AMENDMENT 183F FOR THE INTRODUCED BILL
Introduced by: Senator Schoenbeck
An Act to
declare certain
contract provisions regarding abortion as
deceptive acts or practices
unenforceable and to provide a penalty therefor.
Be it enacted by the Legislature of the State of South Dakota:
Section
1.
That § 37-24-6
be AMENDED.
37-24-6.
Deceptive
act or practice--Violation as misdemeanor or felony.
It
is a deceptive act or practice for any person to:
(1) Knowingly
act, use, or employ any deceptive act or practice, fraud, false
pretense, false promises, or misrepresentation or to conceal,
suppress, or omit any material fact in connection with the sale or
advertisement of any merchandise, regardless of whether any person
has in fact been misled, deceived, or damaged thereby;
(2) Advertise
price reductions without satisfying one of the following:
(a) Including
in the advertisement the specific basis for the claim of a price
reduction; or
(b) Offering
the merchandise for sale at the higher price from which the reduction
is taken for at least seven consecutive business days during the
sixty-day period prior to the advertisement.
Any
person advertising consumer property or services in this state, which
advertisements contain representations or statements as to any type
of savings claim, including reduced price claims and price comparison
value claims, shall maintain reasonable records for a period of two
years from the date of sale and advertisement, which records shall
disclose the factual basis for such representations or statements and
from which the validity of any such claim be established. However,
these reasonable record provisions do not apply to the sale of any
merchandise that is of a class of merchandise that is routinely
advertised on at least a weekly basis in newspapers, shopping
tabloids, or similar publications and that has a sales price before
price reduction that is less than fifteen dollars per item;
(3) Represent
a sale of merchandise at reduced rates due to the cessation of
business operations and after the date of the first advertisement
remain in business under the same, or substantially the same,
ownership or trade name, or continue to offer for sale the same type
of merchandise at the same location for more than one hundred twenty
days;
(4) Give
or offer a rebate, discount, or anything of value to a person as an
inducement for selling consumer property or services in consideration
of giving the names of prospective purchasers or otherwise aiding in
making a sale to another person, if the earning of the rebate,
discount, or other thing of value is contingent upon the occurrence
of an event subsequent to the time the person agrees to the sale;
(5) Engage
in any scheme or plan for disposal or distribution of merchandise
whereby a participant pays a valuable consideration for the chance to
receive compensation primarily for introducing one or more additional
persons into participation in the planner's scheme or for the chance
to receive compensation when the person introduced by the participant
introduces a new participant;
(6) Send,
deliver, provide, mail, or cause to be sent, delivered, provided, or
mailed any bill or invoice for unordered property or unordered
service provided;
(7) Advertise
a rate, price, or fee for a hotel, motel, campsite, or other lodging
accommodation which is not in fact available to the public under the
terms advertised. It is not a violation of this subdivision to
establish contract rates which are different than public rates;
(8) Charge
a rate, price, or fee for a hotel, motel, campsite, or other lodging
accommodation which is different than the rate, price, or fee charged
on the first night of the guest's stay unless, at the initial
registration of the guest, a written notification of each price,
rate, or fee to be charged during the guest's reserved continuous
stay is delivered to the guest and an acknowledgment of receipt of
the notice is signed by the guest and kept by the innkeeper for the
same period of time as is required by § 34-18-21;
(9) Knowingly
fail to mail or to deliver by electronic means to a future guest a
written confirmation of the date and rates of reservations made for
any accommodation at a hotel, motel, campsite, or other lodging
accommodation when a written request for confirmation is received
from the future guest;
(10) Require
money in advance of arrival or a handling fee in the event of
cancellation of any hotel, motel, campsite, or other lodging
accommodation unless the innkeeper has a written policy or a separate
contract with the guest stating so that is mailed or delivered by
electronic means to the guest at or near the making of the
reservation;
(11) Knowingly
advertise or cause to be listed through the internet or in a
telephone directory a business address that misrepresents where the
business is actually located or that falsely states that the business
is located in the same area covered by the telephone directory. This
subdivision does not apply to a telephone service provider, an
internet service provider, or a publisher or distributor of a
telephone directory, unless the conduct proscribed in this
subdivision is on behalf of the provider, publisher, or distributor;
(12) Sell,
market, promote, advertise, or otherwise distribute any card or other
purchasing mechanism or device that is not insurance that purports to
offer discounts or access to discounts from pharmacies for
prescription drug purchases if:
(a) The
card or other purchasing mechanism or device does not expressly state
in bold and prominent type, prevalently placed, that discounts are
not insurance;
(b) The
discounts are not specifically authorized by a separate contract with
each pharmacy listed in conjunction with the card or other purchasing
mechanism or device; or
(c) The
discount or access to discounts offered, or the range of discounts or
access to the range of discounts, is misleading, deceptive, or
fraudulent, regardless of the literal wording.
The
provisions of this subdivision do not apply to a customer discount or
membership card issued by a store or buying club for use in that
store or buying club, or a patient access program voluntarily
sponsored by a pharmaceutical manufacturer, or a consortium of
pharmaceutical manufacturers, that provide free or discounted
prescription drug products directly to low income or uninsured
individuals either through a discount card or direct shipment;
(13) Send
or cause to be sent an unsolicited commercial electronic mail message
that does not include in the subject line of such message "ADV:"
as the first four characters. If the message contains information
that consists of explicit sexual material that may only be viewed,
purchased, rented, leased, or held in possession by an individual
eighteen years of age and older, the subject line of each message
shall include "ADV:ADLT" as the first eight characters. An
unsolicited commercial electronic mail message does not include a
message sent to a person with whom the initiator has an existing
personal or business relationship or a message sent at the request or
express consent of the recipient;
(14) Violate
the provisions of § 22-25-52;
(15) Knowingly
fail to disclose the amount of any mandatory fee when reservations
are made by a future guest at a hotel, motel, campsite, or other
lodging accommodations. A mandatory fee under this subdivision
includes any resort fee or parking fee charged by the lodging
accommodations whether or not the guest utilizes the amenities or the
parking facility for which the fee is assessed; or
(16) Cause
misleading information to be transmitted to users of caller
identification technologies or otherwise block or misrepresent the
origin of a telephone solicitation. No provider of telephone caller
identification services, telecommunications, broadband, or voice over
internet protocol service may be held liable for violations of this
subdivision committed by other individuals or entities. It is not a
violation of this subdivision:
(a) For
a telephone solicitor to utilize the name and number of the entity
the solicitation is being made on behalf of rather than the name and
number of the telephone solicitor;
(b) If
an authorized activity of a law enforcement agency; or
(c) If
a court order specifically authorizes the use of caller
identification manipulation;
or
(17) Include a provision in a
contract that, under any circumstances, requires a woman to have an
abortion, or is intended to compel a woman to have an abortion.
Each
act in violation of this section under one thousand dollars is a
Class 1 misdemeanor. Each act in violation of this statute over one
thousand dollars but under one hundred thousand dollars is a Class 6
felony. Each act in violation of this section over one hundred
thousand dollars is a Class 5 felony.
Section 1. That a NEW SECTION be added:
53-9-13. Coerce or compel an abortion.
Other
than a contract for an abortion, a A
provision in a contract is void and unenforceable if it,
or any agreement associated with the contract, includes a provision
which
in any way:
(1) Coerces, compels, or attempts to compel a pregnant woman to undergo an abortion;
(2) Results
in a breach of any term of the contract if a pregnant woman's
woman
refuses to undergo an abortion; or
(3) Results in the pregnant woman assuming any cost, obligation, or responsibility for refusing to undergo an abortion.
Section 2. That a NEW SECTION be added:
22-17-14. Coercion--Abortion--Misdemeanor or felony.
A person is guilty of a Class 1 misdemeanor if the person:
(1) Coerces, compels, or attempts to compel a pregnant woman to undergo an abortion;
(2) Requires a pregnant woman to agree to a provision that if she refuses to undergo an abortion, it is a breach of a contract; or
(3) Requires a pregnant woman to agree to a provision that results in her assuming any cost, obligation, or responsibility for refusing to undergo an abortion.
A subsequent offense of this section is a Class 6 felony.
Section 3. That § 37-24-12 be AMENDED.
37-24-12. Attorney general's investigative demand for report on suspect practices.
If the
attorney general has reason to believe that a person has engaged in,
is engaging in, or is about to engage in any act or practice declared
to be unlawful by § 37-24-6
or has entered into a contract with a provision that is void and
unenforceable under § 53-9-13,
and he believes it to be in the public interest that an investigation
should be made to ascertain whether a person has in fact engaged in,
is engaging in, or is about to engage in any such act
or ,
practice,
or contract,
he may execute in writing and cause to be served upon any person who
is believed to have information, documentary material, or physical
evidence relevant to the alleged violation, an investigative demand
requiring such person to furnish, under oath or otherwise, a report
in writing setting forth the relevant facts and circumstances of
which he has knowledge, or to appear and testify, or to produce
relevant documentary material or physical evidence for examination,
at such reasonable time and place as may be stated in the
investigative demand, concerning
a provision covered under § 53-9-13 or
the advertisement, sale, or offering for sale of any merchandise.
Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language.
Overstrikes
indicate deleted language.