Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 243 Second Substitute (2020GS)

Sponsor

Rep. Brammer, B.

Final action

Became Law w/o Governor Signature 4/1/2020

Outcome

Became Law w/o Governor Signature

Summary

What it does

• This bill:
• allows the attorney general or a member of the public to bring an action against a person who distributes pornography without a visible warning;
• requires an individual person to first notify the attorney general before bringing an action;
• allows for a civil penalty of up to $2,500 for each violation;
• requires that a portion of any recovery be provided to the Crime Victims Reparations Fund;
• provides a process for curing the violation and paying a reduced penalty; and
• requires the Judicial Council to adjust the penalty every five years.

Every vote on this bill

Bill text

WARNING LABELS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brady Brammer
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill creates a cause of action that may be brought against a person who distributes
pornography without a visible warning.
Highlighted Provisions:
This bill:
▸ allows the attorney general or a member of the public to bring an action against a
person who distributes pornography without a visible warning;
▸ requires an individual person to first notify the attorney general before bringing an
action;
▸ allows for a civil penalty of up to $2,500 for each violation;
▸ requires that a portion of any recovery be provided to the Crime Victims
Reparations Fund;
▸ provides a process for curing the violation and paying a reduced penalty; and
▸ requires the Judicial Council to adjust the penalty every five years.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78B-6-2104
, as enacted by Laws of Utah 2017, Chapter 464
ENACTS:
78B-6-2105
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-6-2104
 is amended to read:
78B-6-2104.
Damages -- Class action.
(1) If a court finds that a person [
violates
] 
is violating
 Section 
78B-6-2103
, the court
may award the plaintiff:
(a) actual damages; and
(b) punitive damages, if it is proven that the person targeted minors.
(2) A class action may be brought under this part in accordance with Utah Rules of
Civil Procedure, Rule 23.
Section 2. Section 
78B-6-2105
 is enacted to read:
 78B-6-2105.
 Civil action for enforcement -- Penalties.
(1) A person may not distribute material the state considers harmful to minors as
defined in Section 
76-10-1201
 without first giving a clear and reasonable warning of the
harmful impact of exposing minors to the material. The warning of the harm shall be
prominently displayed in the following form:
STATE OF UTAH WARNING
Exposing minors to pornography is known to the state of Utah to cause negative impacts to
brain development, emotional development, and the ability to maintain intimate relationships.
Such exposure may lead to harmful and addictive sexual behavior, low self-esteem, and the
improper objectification of and sexual violence towards others, among numerous other harms.
(2) (a) For print publications, the warning in Subsection (1) shall be placed in clear,
readable type on the cover of each publication which includes material as defined in Section
76-10-1201
.
(b) For digital publications, the warning in Subsection (1) shall be displayed for at least
seconds prior to the display of any video or each image which includes material as defined
in Section 
76-10-1201
.
(3) A person who violates Section 
78B-6-2103
 shall be liable for a civil penalty not to
exceed $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty
established by law, and enjoined from further violations. The civil penalty may be assessed and
recovered in a civil action brought in any court of competent jurisdiction. Each violation shall
be the sale or display of potentially harmful content without the warning required in Subsection
(1), in accordance with Subsection (2). The court, in ordering payment, shall specify each
amount for the civil penalty, filing fees, and attorney fees.
(4) In assessing the amount of a civil penalty for a violation of this chapter, the court
shall consider all of the following:
(a) the nature and extent of the violation;
(b) the number and severity of the violations;
(c) the economic effect of the penalty on the violator;
(d) whether the violator took good faith measures to comply with this chapter and
when those measures were taken;
(e) the willfulness of the violator's misconduct;
(f) the deterrent effect that the imposition of the penalty would have on both the
violator and the regulated community as a whole; and
(g) any other factor that the court determines justice requires.
(5) Actions pursuant to this section may be brought by the attorney general's office in
the name of the people of the state or by a private person in accordance with Subsection (6).
(6) A private person may bring an action in the public interest pursuant to this section
if:
(a) the person has served notice of an alleged violation of Section 
78B-6-2103
 on the
alleged violator and the attorney general's office;
(b) the attorney general's office has not provided a letter to the noticing party within 60
days of receipt of the notice of an alleged violation indicating that:
(i) an action is currently being pursued or will be pursued by the attorney general's
office regarding the violation; or
(ii) the attorney general believes that there is no merit to the action; and
(c) the alleged violator has not responded to the notice of alleged violation or returned
the proof of compliance form provided in Subsection (12).
(7) If a lawsuit is commenced, the plaintiff may include additional violations in the
claim that are discovered through the discovery process.
(8) Notice of the alleged violation shall be executed by the attorney for the noticing
party, or by the noticing party, if the noticing party is not represented by an attorney, and
include a notice of alleged violation. The notice of alleged violation shall:
(a) state that the person executing the notice believes that there is a violation; and
(b) provide factual information sufficient to establish the basis for the alleged violation.
(9) A person who serves a notice of alleged violation identified in Subsection (8) shall
complete and provide to the alleged violator at the time the notice of alleged violation is
served, a notice of special compliance procedure and proof of compliance form pursuant to
Subsection (12). The person may file an action against the alleged violator, or recover from the
alleged violator if:
(a) the notice of alleged violation alleges that the alleged violator failed to provide a
clear and reasonable warning as required under Subsection (1); and
(b) within 14 days after receipt of the notice of alleged violation, the alleged violator
has not:
(i) corrected the alleged violation and all similar violations known to the alleged
violator;
(ii) agreed to pay a penalty for the alleged violation in the amount of $500 per
violation; and
(iii) notified, in writing, the noticing party that the violation has been corrected.
(10) The written notice required in Subsection (9)(b)(iii) shall be the notice of special
compliance procedure and proof of compliance form specified in Subsection (12). The alleged
violator shall deliver the civil penalty to the noticing party within 30 days of receipt of the
notice of alleged violation.
(11) The attorney general shall review the notice of alleged violation and may confer
with the noticing party. If the attorney general believes there is no merit to the action, the
attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a
letter to the noticing party and the alleged violator stating that the attorney general believes
there is no merit to the action.
(12) The notice required to be provided to an alleged violator pursuant to Subsection
(9) shall be presented as follows:
Date:
Name of Noticing Party or attorney for Noticing Party:
Address:
Phone number:
SPECIAL COMPLIANCE PROCEDURE
PROOF OF COMPLIANCE
You are receiving this form because the Noticing Party listed above has alleged that you are in
violation of Utah Code Section 
78B-6-2103
.
The Noticing Party may bring legal proceedings against you for the alleged violation checked
below if:
(1) you have not actually taken the corrective steps that you have certified in this form;
(2) the Noticing Party has not received this form at the address shown above, accurately
completed by you, postmarked within 14 days of your receiving this notice; and
(3) the Noticing Party does not receive the required $500 penalty payment for each violation
alleged from you at the address shown above postmarked within 30 days of your receiving this
notice.
PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE
NOTICING PARTY
This notice of alleged violation is for failure to warn against an exposure to minors of materials
considered harmful to minors. (provide complete description of violation, including when and
where observed)
Date:
Name of Noticing Party or attorney for Noticing Party:
Address:
Phone number:
PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
REPRESENTATIVE
Certification of Compliance
Accurate completion of this form will demonstrate that you are now in compliance with Utah
Code Section 
78B-6-2103
, for the alleged violation listed above. You must complete and
submit the form below to the Noticing Party at the address shown above, postmarked within 14
days of you receiving this notice.
I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each
violation alleged to the Noticing Party only and certify that I have complied with by (check
only one of the following):
[ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph
accurately showing its placement on the print or digital publication.
[ ] Eliminating the alleged exposure, and attaching a statement accurately describing how the
alleged exposure has been eliminated.
CERTIFICATION
My statements on this form, and on any attachments to it, are true, complete, and correct to the
best of my knowledge and belief and are made in good faith. I have carefully read the
instructions to complete this form. I understand that if I make a false statement on this form, I
may be subject to additional penalties under Utah Code Section 
76-10-1206
.
Signature of alleged violator or authorized representative:
Date:
Name and title of signatory:
(13) An alleged violator may satisfy the conditions set forth in Subsection (12) only
one time for a specific violation.
(14) Notwithstanding Subsection (12), the attorney general may file an action pursuant
to Subsection (5) against an alleged violator. In any action, the amount of any civil penalty for
a violation shall be reduced to reflect any payment made by the alleged violator to a private
person in accordance with Subsection (12) for the same alleged violation.
(15) Payments shall be made in accordance with this section.
(a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the
court.
(b) A penalty paid in accordance with the special compliance procedure in Subsection
(12) shall be made directly to the noticing party.
(16) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in
accordance with this section. Funds received shall be deposited in the Crime Victim
Reparations Fund created in Section 
51-9-404
. The penalty amount upon which the 50% is
calculated may not include attorney fees or costs awarded by the court.
(a) If the penalty is paid to a noticing party in accordance with Subsection (12), the
noticing party shall remit the required amount along with a copy of the Special Compliance
Procedure document.
(b) If a civil penalty is ordered by the court, the plaintiff shall remit the required
amount along with a copy of the court order.
(17) The attorney general's office shall provide to the Utah Office for Victims of Crime
a copy of all notices of alleged violations to which the attorney general's office did not respond
with a letter of no merit in accordance with Subsection (11).
(18) The court shall provide to the Utah Office for Victims of Crime a copy of the
court's order for payment.
(19) The Utah Office for Victims of Crime shall:
(a) maintain a record of documents and payments submitted pursuant to Subsections
(16), (17), and (18);
(b) create and provide to the Legislature in odd-numbered years beginning November
2021, a report containing the following for the previous two years:
(i) the number of notices of alleged violations received from the attorney general's
office;
(ii) the number of court orders received; and
(iii) the total amount received and deposited into the Crime Victim Reparations Fund.
(20) Beginning May 1, 2025, and at each five-year interval, the dollar amount of the
civil penalty provided in Subsection (3) shall be adjusted by the Judicial Council based on the
change in the annual Consumer Price Index for the most recent five-year period ending on
December 31 of the previous year, and rounded to the nearest five dollars. The attorney general
shall publish the dollar amount of the civil penalty together with the date of the next scheduled
adjustment.