Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 157 (2021GS)

Sponsor

Rep. Shipp, R.P.

Final action

House/ filed 3/5/2021

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• amends the definition of "excessive price";
• defines "margin" and "total cost";
• amends the conditions under which a person may charge an excessive price;
• permits the Division of Consumer Protection to issue a subpoena for certain documents under certain conditions; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

PRICE CONTROLS DURING EMERGENCIES ACT
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Rex P. Shipp
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill amends the Price Controls During Emergencies Act.
Highlighted Provisions:
This bill:
▸ amends the definition of "excessive price";
▸ defines "margin" and "total cost";
▸ amends the conditions under which a person may charge an excessive price;
▸ permits the Division of Consumer Protection to issue a subpoena for certain
documents under certain conditions; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-41-102
, as last amended by Laws of Utah 2013, Chapter 295
13-41-201
, as enacted by Laws of Utah 2005, Chapter 306
13-41-202
, as last amended by Laws of Utah 2006, Chapter 153
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-41-102
 is amended to read:
13-41-102.
Definitions.
For purposes of this chapter:
(1) "Consumer" means a person who 
seeks to acquire or
 acquires a good or service for
consumption.
(2) "Division" means the Division of Consumer Protection.
(3) (a) "Emergency territory" means the geographical area:
(i) for which there has been a state of emergency declared; and
(ii) that is directly affected by the events giving rise to a state of emergency.
(b) "Emergency territory" does not include a geographical area that is affected by the
events giving rise to a state of emergency only by economic market forces.
(4) "Excessive price" means
:
(a) for a person that sold the good or provided the service in the 30-day period
immediately preceding the day on which a state of emergency is declared,
 a price for a good or
service that exceeds by more than 10% the [
average price charged by that person for that
]
highest price the person charged for the
 good or service in the 30-day period immediately
preceding the day on which the state of emergency is declared[
.
]
; or
(b) for a person that did not sell the good or provide the service in the 30-day period
immediately preceding the day on which a state of emergency is declared, a price for a good or
service that is more than twice the person's total cost for the good or service.
(5) "Good" means any personal property displayed, held, or offered for sale by a
merchant that is necessary for consumption or use as a direct result of events giving rise to a
state of emergency.
(6) "Margin" means the difference between the sale price and the total cost of the good
or service.
[
(6)
] 
(7)
 "Retail" means the level of distribution where a good or service is typically
sold directly, or otherwise provided, to a member of the public who is an end user and does not
resell the good or service.
[
(7)
] 
(8)
 "Service" means any activity that is performed in whole or in part for the
purpose of financial gain including personal service, professional service, rental, leasing, or
licensing for use that is necessary for consumption or use as a direct result of events giving rise
to a state of emergency.
[
(8)
] 
(9)
 "State of emergency" means a declaration of:
(a) an emergency or major disaster by the president of the United States of America; or
(b) a state of emergency by the governor under Section 
53-2a-206
.
(10) (a) "Total cost" means an amount equal to:
(i) the sum of all costs associated with a person obtaining a product or service and
providing the product or service to a consumer, including fees, shipping, or employee labor;
minus
(ii) any trade discount, cash discount, or manufacturer rebate.
(b) "Total cost" does not include an amount that incorporates an ongoing cost to
operate a business that is not directly associated with a good or service.
Section 2. Section 
13-41-201
 is amended to read:
13-41-201.
Excessive price prohibited.
(1) [
Except as provided in Subsection (2), if a state of emergency exists, a
] 
A
 person
may not [
charge a consumer an excessive price for goods or services sold or provided
] 
offer for
sale, offer to provide, sell, or provide a good or service to a consumer at an excessive price, if:
(a) a state of emergency exists; and
(b) the person offers for sale, offers to provide, sells, or provides the good or service
 at
retail:
[
(a) (i)
] 
(i) (A)
 during the time period for which a state of emergency declared by the
governor exists
, if the state of emergency described in Subsection (1)(a) is declared by the
governor
; or
[
(ii)
] 
(B)
 for 30 days after the day on which the state of emergency begins, if 
the state
of emergency described in Subsection (1)(a) is
 declared by the President of the United States;
and
[
(b)
] 
(ii)
 within the emergency territory.
(2) A person may [
charge
] 
offer for sale, offer to provide, sell, or provide a good or
service at
 an excessive price 
as otherwise prohibited under Subsection (1),
 if:
(a) that person's 
total
 cost [
of obtaining the good or providing the
] 
for the good or
service exceeds the average 
total
 cost to the person [
of obtaining the good or providing the
] 
for
the good or
 service in the 30-day period immediately preceding the day on which the state of
emergency is declared; and
(b) the 
excessive
 price [
charged for
] 
at which the person offers for sale, offers to
provide, sells, or provides
 the good or service does not exceed the sum of:
(i) [
10% above
] 
110% of
 the total cost to that person [
of obtaining the good or
providing the
] 
for the good or
 service; and
(ii) the person's customary [
markup
] 
margin
.
[
(3) Upon request of the division, a person allegedly charging an excessive price under
Subsection (2) shall provide documentation to the division that the person is in compliance
with this chapter.
]
[
(4) If a good or service has not been sold by a person during the 30-day period
immediately preceding the day on which the state of emergency is declared, a price is not
excessive if it does not exceed 30% above the person's total cost of obtaining the good or
providing the service.
]
Section 3. Section 
13-41-202
 is amended to read:
13-41-202.
Enforcement -- Penalty.
(1) The division shall enforce this chapter.
(2) (a) The division may subpoena a person to provide documentation demonstrating
that the person is in compliance with this chapter.
(b) A subpoena described in Subsection (2)(a) shall allow the person at least 14 days
after the day on which the subpoena is served to provide a response.
[
(2)
] 
(3)
 In determining whether to impose penalties against a person who violates this
chapter, the division shall consider:
(a) the person's cost of doing business not accounted for in the 
total
 cost to the person
of the good or service, including costs associated with a decrease in the supply available to a
person who relies on a high volume of sales;
(b) the person's efforts to comply with this chapter;
(c) whether the average price [
charged by
] 
at which
 the person 
offers to sell, offers to
provide, sells, or provides a good or service
 during the 30-day period immediately preceding
the day on which the state of emergency is declared is artificially deflated because the good or
service was on sale for a lower price than the person customarily [
charges
] 
offers
 for the good
or service; and
(d) any other factor that the division considers appropriate.
[
(3)
] 
(4)
 (a) If the division finds that a person has violated, or is violating, this chapter,
the division may:
(i) issue a cease and desist order; and
(ii) subject to Subsection [
(3)
] 
(4)
(b), impose an administrative fine of up to $1,000 for
each violation of this chapter.
(b) Each instance of charging an excessive price under Section 
13-41-201
 constitutes a
separate violation, but in no case shall the administrative fine imposed under Subsection [
(3)
]
(4)
(a) exceed $10,000 per day.
[
(4)
] 
(5)
 The division may sue in a court of competent jurisdiction to enforce an order
under Subsection [
(3)
] 
(4)
.
[
(5)
] 
(6)
 In a suit brought under Subsection [
(3)
] 
(4)
, if the division prevails, the court
may award the division:
(a) court costs;
(b) attorney fees; and
(c) the division's costs incurred in the investigation of the violation of this chapter.
[
(6)
] 
(7)
 All money received through an administrative fine imposed, or judgment
obtained, under this section shall be deposited [
in
] 
into
 the Consumer Protection Education and
Training Fund created by Section 
13-2-8
.