A.R.S. tit. 44 ch. 9 — Arizona Revised Statutes Title 44 Chapter 9 — Trade Practices Generally

44-1201. Rate of interest for loan or indebtedness; interest on judgments; definitions A. Interest on any loan, indebtedness or other obligation shall be as follows: 1. The maximum interest rate on medical debt shall be the lesser of the following: (a) The annual rate equal to the weekly average one-year constant maturity treasury yield, as published by the board of governors of the federal reserve system, for the calendar week preceding the date when the consumer was first provided with a bill, or (b) Three percent a year. The maximum interest rate provided pursuant to this paragraph also applies to any judgments on medical debt. 2. For any loan, indebtedness or obligation other than medical debt, interest shall be at the rate of ten percent a year, unless a different rate is contracted for in writing, in which event any rate of interest may be agreed to. Interest on any judgment, other than a judgment on medical debt, that is based on a written agreement evidencing a loan, indebtedness or obligation that bears a rate of interest not in excess of the maximum permitted by law shall be at the rate of interest provided in the agreement and shall be specified in the judgment. B. Unless specifically provided for in statute or a different rate is contracted for in writing, interest on any judgment other than a judgment on medical debt shall be at the lesser of ten percent a year or at a rate per year that is equal to one percent plus the prime rate as published by the board of governors of the federal reserve system in statistical release H.15 or any publication that may supersede it. A change in the rate that is prescribed in this subsection takes effect on the first business day following publication by the federal reserve. The judgment shall state the applicable interest rate and it shall not change after it is entered. C. Interest on a judgment on a condemnation proceeding, including interest that is payable pursuant to section 12-1123, subsection B, shall be payable as follows: 1. If instituted by a city or town, at the rate prescribed by section 9-409. 2. If instituted by a county, at the rate prescribed by section 11-269.04. 3. If instituted by the department of transportation, at the rate prescribed by section 28-7101. 4. If instituted by a county flood control district, a power district or an agricultural improvement district, at the rate prescribed by section 48-3628. D. A court shall not award either of the following: 1. Prejudgment interest for any unliquidated damages, future damages, punitive damages or exemplary damages that are found by the trier of fact. 2. Interest for any future damages, punitive damages or exemplary damages that are found by the trier of fact. E. For the purposes of subsection D of this section, "future damages" means damages that will be incurred after the date of the judgment and includes the costs of any injunctive or equitable relief that will be provided after the date of the judgment. F. If awarded, prejudgment interest shall be at the rate described in subsection A or B of this section. G. For the purposes of this section: 1. "Health care services" means services provided at or by any of the following: (a) Health care institutions as defined in section 36-401. (b) Private offices or clinics of health care providers licensed under title 32, chapters 7, 11, 13, 15, 15.1, 16, 17, 18, 19, 19.1, 25, 28, 33, 34, or 35. (c) Ambulances or ambulance services as defined in section 36-2201. 2. "Medical debt" means a loan, indebtedness or other obligation arising directly from the receipt of health care services or of medical products or devices. 44-1202. Forfeiture of all interest upon obligation involving interest exceeding the maximum amount set by contract A person shall not directly or indirectly take or receive in money, goods or things in action, or in any other way, any greater sum or any greater value for the loan or forbearance of any money, goods or things in action, than the maximum permitted by law. Any person, contracting for, reserving or receiving, directly or indirectly, any greater sum of value shall, forfeit all interest. 44-1203. Application to principal of payments made upon interest contracted in excess of the maximum permitted by law; judgment in action to recover obligation involving usurious interest limited to amount due on principal Where a rate of interest greater than the maximum permitted by law is contracted for, reserved or received, directly or indirectly, all payments of money or property made on account of such interest, or as inducements to contract for more than the maximum permitted by law, whether made in advance or not, shall be deemed payments made on account of the principal. In an action brought to recover the amount of the obligation the court shall give judgment for no greater amount than the balance determined to be due upon the principal, without interest, after deducting such payments. 44-1204. Payments of interest on obligation involving more than the maximum permitted by law on counterclaim in action brought on obligation; action to recover payments of interest in excess of principal on usurious obligation In an action to recover on an obligation whereby there is contracted for, reserved or taken, a greater rate of interest than the maximum permitted by law, all payments made in money or property may be pleaded as a counterclaim or set-off. If such payments exceed the amount of the principal, judgment may be given in favor of the defendant for the excess, with interest at the rate of ten per cent per annum. If such payments exceed the amount of the principal of the debt or obligation, an action may be maintained to recover the excess. 44-1205. Closed end loans of five thousand dollars or less; revolving accounts; check loan accounts; credit card revolving account; delinquency charges; prepayment rebates and additional charges; definition A. The following apply to closed end loans, other than closed end loans subject to title 6, chapter 5, in which the principal amount of the loan does not exceed five thousand dollars: 1. Interest not to exceed the maximum rate set by contract may be charged. Interest may be computed either at the single annual percentage rate using the actuarial method or it may be precomputed on the assumption that all payments will be made in the amounts and on the dates scheduled and added to the principal of the loan. If interest is precomputed, the fact that payments are made either before or after the date due does not affect the amount of interest which the lender may charge or receive. If such precomputed interest loan balance is prepaid in full by cash, a new loan, refinancing or otherwise, the lender or holder shall charge only for interest which has been earned and unpaid late or delinquency charges as of the date of prepayment, and the borrower shall receive a rebate of that portion of the precomputed interest which is the difference between the total precomputed interest charges and the charges at the contract interest rate computed on the unpaid principal balance based on the number of days or months to maturity based on either a thirty-day month-three hundred sixty day year or daily three hundred sixty-five or three hundred sixty-six day year on the number of days remaining to final maturity. The amount of such rebate shall not be computed pursuant to the method commonly known as the "rule of 78's". To simplify the calculation of earned interest, it is permissible to assume that all payments were made as originally scheduled or as otherwise mutually agreed. 2. It is permissible to calculate interest on an annual basis of twelve months of thirty days each, or on a daily basis if a day is counted either as 1/360th, 1/365th, or 1/366th of a year, as the lender and borrower may agree by writing. The lender may also charge a late payment or delinquency charge, in addition to all interest charges permitted, on each installment not paid in full within ten days of its due date in an amount not to exceed five per cent of the installment or ten dollars, whichever is less. B. Except as provided in subsection C of this section, revolving accounts in which the agreed upon credit limit does not exceed ten thousand dollars are subject to the provisions of this subsection. Under a revolving loan account of any lender, other than a consumer revolving loan subject to title 6, chapter 5, or resulting from a check loan account, which the borrower may pay at any time but has the privilege of paying in installments, if the interest charge is not precomputed, interest not to exceed the maximum rate set by contract may be charged on the unpaid balances of the account, calculated as of the regular monthly billing date or on the actual daily balances outstanding. The lender may also charge a late payment or delinquency charge on each installment not paid in full within ten days of its due date in an amount not to exceed five per cent of the installment or ten dollars, whichever is less. If a lender makes a loan to a borrower by purchasing or satisfying obligations of the borrower pursuant to a lender credit card or similar arrangement, and the purchase or satisfaction is made at less than the face amount of the obligation, the discount shall not be considered to be interest. If an arrangement constitutes both a revolving loan account under this subsection and a retail installment transaction under section 44-6001, it is governed by this subsection or section 44-6002 as the parties may agree. C. Except as provided in subsection D of this section a credit card revolving account, including an account that permits access by check, is governed by the laws of this state and is subject to this subsection. Under a credit card revolving account, which the borrower may pay at any time but has the privilege of paying in installments, interest not to exceed the maximum rate set by contract may be charged on the unpaid balances of the account, calculated as of the regular monthly billing date or on the actual or average daily balances outstanding. If the contract provides, the issuer or holder of a credit card revolving account may charge and collect as interest and include in the balances of the account, in addition to or in lieu of interest on the unpaid balances of the account, any of the following: 1. An annual or other periodic charge. 2. A transaction charge for each separate purchase or loan. 3. A minimum interest charge for each regular billing date on which interest charges are due on the unpaid balances. 4. A late payment or delinquency charge. 5. A returned payment charge. 6. A stop payment charge. 7. An overlimit charge. 8. A charge for providing invoices, checks or documentary evidence. 9. A fee incident to the application for and the opening and administration of the credit card account. 10. An automated teller machine or similar electronic or interchange fee or charge. If a credit card issuer makes a loan to a borrower by purchasing or satisfying an obligation of the borrower pursuant to the use of a lender credit card or similar arrangement and the purchase or satisfaction is made at less than the face amount of the obligation, the discount is not considered interest. D. If a contract constitutes either a credit card revolving account under subsection C of this section or a retail charge account agreement as defined in section 44-6001, and the agreed upon credit limit of the account or agreement does not exceed ten thousand dollars it is governed in its entirety by subsection C of this section or section 44-6002 as the parties may agree. E. The limitations of this subsection apply only to the loans described in subsections A, B and C of this section. In addition to the other charges authorized by subsections A, B and C of this section, the lender may charge the borrower only for the lawful fees actually paid by the lender for filing or recording in a public office, for motor vehicle title, registration, assessor's fees and lien filing fees, for escrow fees of an escrow agent as defined by section 6-801, for acknowledging the instrument securing the loan and for costs of obtaining a preliminary title report and title insurance policy. The lender shall not charge or receive any sums for any other service or expense, except in connection with a loan to a participant or beneficiary from a retirement plan which is qualified under section 401(a) of the internal revenue code as defined in section 42-1001 and except for casualty or other insurance covering the security for the loan and credit life and disability and unemployment insurance, even if actually paid to a third party. This section does not preclude a lender from charging the borrower for the payment of court costs, expenses and reasonable attorney fees if the loan is referred for collection to an attorney other than a salaried employee of the lender or holder. If greater aggregate charges are collected or received on a loan than the maximum charges authorized by this section the loan is usurious. F. All terms, conditions and other provisions relating to revolving accounts as provided in subsections B, C and E of this section and other lawful provisions of the contract governing the revolving loan account are deemed to be material to the determination of interest applicable to revolving accounts under the laws of this state, the most favored lender doctrine and section 85 of the national bank act (12 United States Code section 85) or section 521 of the depository institutions deregulation and monetary control act of 1980 (12 United States Code section 1831d). G. Subsection C of this section does not apply to loans made by a person who is a licensee under title 6, chapter 5 or 9, or both, or any affiliate of such a licensee which is not a federally insured depository institution. H. In this section, "actuarial method" means the method of allocating payments made on a debt between the unpaid principal balance and the interest pursuant to which a payment is applied first to the interest due and any remainder is subtracted from the unpaid principal balance. 44-1206. Effect of obligations insured or guaranteed by the United States No law requiring security upon which loans may be made, prescribing the nature, amount or form of such security, prescribing or limiting interest rates upon loans, or prescribing or limiting the period for which loans may be made, shall apply to loans, advances of credit, or purchases of obligations representing loans and advances of credit payment of which is insured or guaranteed by the United States or any agency or instrumentality thereof. 44-1207. Interest on lawful charge, fee, cost or expense Any lawful charge, fee, cost or expense paid by or due to a lender on behalf of a borrower, with his consent, may be added to the principal amount of a loan made to such borrower under the provisions of this title or under the provisions of title 6, and such amount shall become part of the principal and interest may be charged thereon as provided by law. 44-1208. Loans secured by real estate; prohibited practices; insurance Except for consumer lender loans regulated pursuant to section 6-636, for any loan that is secured by real property, a person shall not require as a condition of the loan that the borrower obtain property insurance coverage in an amount that exceeds the replacement cost of the improvements as established by the property insurer. 44-1211. Fraudulent conveyance or other transaction with intent to defraud others or defeat creditors; classification A person is guilty of a class 2 misdemeanor who: 1. Is a party to any fraudulent conveyance of any lands, tenements or hereditaments, goods or chattels or any right or interest issuing therefrom, had, made or contrived with intent to deceive and defraud others, or to defeat, hinder or delay creditors or others of their just debts, damages or demands. 2. Is a party to any bond, action or judgment, or execution, contract or conveyance had, made or contrived with intent to deceive and defraud others, or to defeat, hinder or delay creditors or others of their just debts, damages or demands. 3. Is a party as provided in paragraph 1 or paragraph 2 of this section, and (a) At any time knowingly puts in, uses, avows, maintains, justifies or defends such transaction as true, and had or made in good faith, or (b) Upon good consideration aliens, assigns or sells any of such lands or goods or other things which have been so conveyed to him. 44-1212. False report to principal by agent; classification A commission merchant, broker, agent, factor or consignee who knowingly and with intent to defraud makes to his principal or consignor a false statement concerning the price obtained for, or the quality or quantity of property consigned or entrusted to him for sale, is guilty of a class 2 misdemeanor. 44-1213. Issuance of get rich quick contract prohibited; classification A person is guilty of a class 2 misdemeanor who issues any contract: 1. Providing for its redemption or fulfillment from contributions made by subscribers to or holders of other similar contracts. 2. Providing for payment of money or giving any consideration greater in value than the amount paid in upon such contracts, together with the actual net earnings accrued and accumulated thereon. 44-1214. Increase of weight of goods sold in container; classification A person who, in putting up in a bag, bale, barrel or other package any hops, cotton, wool, grain, hay or other commodities usually sold in such bag, bale, barrel or other package by weight, places or conceals therein anything for the purpose of increasing the weight, with intent thereby to sell the commodities therein or to enable another to sell them at an increased weight, is guilty of a class 2 misdemeanor. 44-1215. Salting gold or silver ore to defraud; classification A person who mingles with a sample of gold or silver bearing ore, any metal or substance whatever which will in any manner change the value of the ore, with intent to deceive, cheat or defraud any person, is guilty of a class 6 felony. 44-1216. Fraud on seller of ore; classification A person or the agent of any person engaged in milling, smelting, sampling, concentrating, reducing, shipping or purchasing ores in this state, who in any manner knowingly alters or changes the true value of ores delivered to him to deprive the seller of the correct value thereof, or who substitutes other ores for those delivered, or who issues a bill of sale or certificate of purchase which does not exactly and truthfully state the actual weight, assay value and total amount paid for any lot of ore purchased, or who by secret understanding, or agreement with another, issues a bill of sale or certificate of purchase which does not correctly and truthfully set forth the weight, assay value and total amount paid for the ore purchased by him, is guilty of a class 6 felony. 44-1217. Fraud on creditors by removal, sale or concealment of property; classification A debtor who fraudulently removes his property or effects from the state, or fraudulently sells, conveys, assigns or conceals his property, with intent to defraud, hinder or delay his creditors of their rights, claims or demands, is guilty of a class 2 misdemeanor. 44-1218. Fraudulent or mock auction; classification; forfeiture of license and disqualification of auctioneer A. A person who obtains money or property from another, or obtains the signature of another to a written instrument, the false making of which would be forgery, by means of a false or fraudulent sale of property or pretended property by auction, or by any practice known as a mock auction, is guilty of a class 6 felony. B. A person convicted of a violation of subsection A of this section shall forfeit his license as auctioneer, and shall be forever disqualified from receiving a license to act as auctioneer. 44-1219. Sale, removal or concealment of encumbered property; classification A. It is unlawful for a person who has mortgaged personal property to another, or who has possession of personal property under a contract of sale whereby the vendor retains title, to: 1. During the existence of the mortgage or contract, and without first obtaining the written consent of the mortgagee or vendor or their assignees, sell, transfer or in any manner encumber such property without first fully advising the person to whom the sale, transfer or encumbrance is to be made, of the facts of the prior mortgage or contract of sale. 2. Conceal, take, drive or otherwise dispose of or destroy any of the encumbered property contrary to the provisions of the mortgage or contract. 3. Remove the property or any part thereof from the county where the property was located when the contract or mortgage was made, if the property is other than an automobile, and if an automobile, to remove the automobile from the state. B. A person who violates any provisions of this section is guilty of a class 5 felony. C. In addition to the punishment prescribed in subsection B, the court shall impose a penalty equal to the amount of any expense incurred by the sheriff in out-of-state travel, which has been reimbursed by the board of supervisors as provided by section 11-444. Upon payment of the penalty such sum shall be transmitted to the board of supervisors. 44-1220. Fraudulent insurance claim; classification A person who presents a false or fraudulent claim or proof in support of such claim, upon a contract of insurance for payment of any loss, or who prepares, makes or subscribes to an account, certificate of survey, affidavit or proof of loss, or other book, paper or writing, with intent to present or use it or allow it to be presented or used in support of such claim, is guilty of a class 5 felony. 44-1220.01. Fraudulent fire insurance application or claim; classification A person who knowingly provides false or fraudulent material information to or withholds material information from an insurance producer on an application for fire insurance or who presents a false or fraudulent claim or proof in support of such claim, upon a contract of insurance for payment of any loss, or who knowingly prepares, makes or subscribes to a false account, certificate of survey, affidavit or proof of loss, or other false book, paper or writing, with intent to present or use it or allow it to be presented or used in support of such claim is guilty of a class 5 felony. 44-1221. Deceptive use of name; classification; attorney general A. It is unlawful for a person to deceive another person by misrepresenting the geographical origin or location of the person's business in the conduct of the person's business. B. A person who intentionally or knowingly violates subsection A of this section is guilty of a class 2 misdemeanor. C. An act or practice in violation of this section is an unlawful practice under section 44-1522 and subject to enforcement through private action and prosecution by the attorney general. The attorney general may investigate and take appropriate action as prescribed by chapter 10, article 7 of this title. 44-1222. Unordered merchandise A. If unsolicited goods are delivered by mail or common carrier to a person, such person may refuse to accept delivery of the goods and shall not be bound to return such goods to the sender. If such unsolicited goods are addressed to and intended for the recipient, they shall be deemed a gift to the recipient, who may use the goods or dispose of them in any manner without any obligation to the sender. B. This section does not apply to: 1. Property, material or other thing of value mailed by mistake in response to an order, request or application for other property, materials or other thing of value, or 2. Property, material or other thing of value mailed in response to an order, request or application from a person but mistakenly mailed to another person, or 3. Substantially equivalent substitute property, material or other thing of value mailed in response to an order, request or application for other property, material or other thing of value. 4. Property, material or other thing of value mailed to a person pursuant to an order, request or application of another person. 44-1223. Fraudulent practices relating to motor vehicle odometers; classification A. It is unlawful for any person to: 1. Advertise for sale, sell, use or install any device which causes the odometer of a motor vehicle to register mileage other than the true mileage driven. For the purposes of this paragraph the true mileage driven is that mileage driven by the vehicle as registered by the odometer within the manufacturer's designed tolerance. 2. Operate, with intent to defraud, a motor vehicle on any street or highway knowing that the odometer of such vehicle is disconnected or nonfunctional. 3. Replace, disconnect, turn back or reset the odometer of any motor vehicle with the intent to reduce the number of miles indicated on the odometer. 4. Sell or offer to sell, with intent to defraud, a motor vehicle on which the odometer does not register the true mileage driven. B. Nothing in this section shall prevent the service, repair or replacement of an odometer, provided the mileage indicated thereon remains the same as before the service, repair or replacement. Where the odometer is incapable of registering the same mileage as before such service, repair or replacement, the odometer shall be adjusted to read "zero" and a notice in writing shall be attached to the left door frame of the vehicle by the owner or his agent specifying the mileage prior to repair or replacement of the odometer and the date on which it was repaired or replaced. Any removal or alterations of such notice so affixed shall be unlawful. C. A person who violates the provisions of this section shall be guilty of a class 1 misdemeanor. 44-1224. Law enforcement, firefighting or emergency medical services products; sales; certification A. It is an unlawful practice pursuant to section 44-1522 for any person to sell or offer to sell any product, not including firearms, that is specifically designed, offered for sale or sold for the personal safety of law enforcement, firefighting or emergency medical services personnel unless the product is tested by an independent laboratory or regulatory agency that certifies all claims of the manufacturer with respect to the purpose and the warranty of fitness of the product. B. An independent laboratory that conducts testing pursuant to subsection A of this section shall be paid by the entity requesting the test. If an independent laboratory is affiliated with the entity requesting the test, the independent laboratory is prohibited from influencing or regulating the test. 44-1231. Definitions In this article, unless the context otherwise requires: 1. "Authentic Indian arts and crafts" means any product which is Indian handcrafted and is not made by machine or from unnatural materials, except stabilized or treated turquoise. 2. "Findings" means an ingredient part of the product which adapts the product for wearing or display, including silver beads, leather backing, binding material, bolo tie clips, tie bar clips, tie tack pins, earring pins, earring clips, earring screw backs, cuff link toggles, money clips, pin stems, combs or chains. 3. "Indian" means a person who is enrolled or who is a lineal descendant of one enrolled upon an enrollment listing of the bureau of Indian affairs, or upon the enrollment listing of a recognized Indian tribe domiciled within the United States border. 4. "Indian handcrafted" means the skillful and expert use of the hands in making products solely by Indians within the United States, including the use of findings, hand tools and equipment for buffing, polishing, grinding, drilling or sewing. 5. "Made by machine" means the producing or reproducing of a product in mass production by mechanically stamping, casting, blanking or weaving. 6. "Natural turquoise" means turquoise, exclusive of any backing material, whose composition has not been chemically or otherwise altered. 7. "Nonauthentic Indian arts and crafts" means any product which is made to imitate or resemble authentic Indian arts and crafts and which is either: (a) Not Indian handcrafted. (b) Made by machine or from unnatural materials, except stabilized or treated turquoise. 8. "Reconstituted turquoise" means dust and turquoise particles which are mixed with plastic resins and are compressed into a solid form so as to resemble natural turquoise. 9. "Stabilized turquoise" means turquoise which has been chemically hardened, but not adulterated so as to change the color of the natural mineral. 10. "Synthetic turquoise" means any compound or mineral which is manufactured or treated so as to closely approximate turquoise in appearance. 11. "Treated turquoise" means turquoise which has been altered to produce a change in the coloration of the natural mineral. 12. "Turquoise" means a hydrous copper sulphate, containing aluminum salts, plus iron. 13. "Unnatural turquoise" means any substance which is not natural turquoise, including stabilized turquoise, treated turquoise, reconstituted turquoise or synthetic turquoise. 44-1231.01. Unlawful acts It is unlawful for any person to knowingly do any of the following: 1. Sell or offer for sale any products represented to be authentic Indian arts and crafts unless the products are in fact authentic Indian arts and crafts. 2. Sell or offer for sale any authentic Indian arts and crafts represented to be of silver or nonauthentic Indian arts and crafts represented to be of silver unless the products are made of coin silver or sterling silver. 3. Sell or offer for sale nonauthentic Indian arts and crafts unless the nonauthentic Indian arts and crafts are clearly labeled as to any characteristics which make them nonauthentic. 4. Sell or offer for sale any unnatural turquoise, mounted or unmounted, without a written disclosure of whether the turquoise is stabilized, treated, reconstituted or synthetic. 5. Sell or offer to sell reconstituted turquoise or synthetic turquoise unless the turquoise is clearly labeled as synthetic turquoise. 6. Engage in any false, misleading or deceptive advertising or any unconscionable trade practice regarding Indian arts or crafts. In this paragraph "unconscionable trade practice" means any act or practice in connection with the sale or offering for sale of Indian arts or crafts to a person which to the person's detriment takes advantage of the person's lack of knowledge, ability, experience or capacity to a grossly unfair degree or results in a gross disparity between the value received by the person and the price paid. 44-1231.02. Sale of Indian arts and crafts; inquiry; labels A. A person who sells or offers to sell nonauthentic Indian arts and crafts shall post a sign bearing the words, in letters not less than three inches in height, "nonauthentic Indian arts and crafts" above or adjacent to the articles being sold. B. A person who sells or offers to sell a product that is represented to be authentic Indian arts or crafts shall make due inquiry of his suppliers concerning the true nature of the materials, product design and process of manufacture to determine whether the product may be lawfully represented as authentic Indian arts or crafts. C. A person who sells or offers to sell Indian arts and crafts may elect to label or otherwise clearly and conspicuously disclose as authentic Indian arts and crafts all articles that are authentic Indian arts and crafts in accordance with this article and rules adopted pursuant to this article. 44-1231.03. Enforcement; civil action and penalty; injunctive relief; restitution; private right of action; damages A. The attorney general or the county attorney shall enforce the provisions of this article. An authorized tribal prosecutor may assist the attorney general or the county attorney in determining whether the provisions of this article are violated. B. In addition to the criminal penalties provided in this article, the attorney general or the county attorney may bring a civil action for a violation of this article, and the court may order temporary or permanent injunctive relief. In such an action the court may order restitution to the injured party and such other relief the court determines is appropriate. C. In an action brought under this section, if the court finds that a person is wilfully using or has wilfully used a method, act or practice that is unlawful under this article, the attorney general or county attorney may recover a civil penalty of not more than five thousand dollars for each violation. D. Civil penalties collected pursuant to this section shall be deposited in the state general fund if the action is brought by the attorney general and in the county general fund where the action is prosecuted if the action is brought by the county attorney. E. Unless restitution is ordered in an action brought under subsection B, a person who suffers financial injury or damages by reason of any conduct which is in violation of this article may sue in the superior court and recover actual damages sustained and the cost of the suit, including reasonable attorney fees. 44-1231.04. Rules The attorney general shall adopt necessary rules to implement and enforce the provisions of this article. Rules adopted under this article may specify designations other than "authentic Indian arts and crafts", including a designation such as "Indian crafted", for authorized labeling as Indian arts and crafts. 44-1231.05. Violation; classification Unless the conduct is prohibited by section 13-1802 or section 13-2310 in which case those sections shall apply, a person who knowingly violates the provisions of this article is guilty of the following: 1. A class 3 misdemeanor if the violation involves property offered for sale at less than two thousand five hundred dollars. 2. A class 2 misdemeanor if the violation involves property offered for sale at two thousand five hundred dollars or more but less than twenty thousand dollars. 3. A class 1 misdemeanor if the violation involves property offered for sale at twenty thousand dollars or more. 44-1236. Certificate of name required; exceptions A. Any person other than a partnership transacting business in this state under a fictitious name or a designation not showing the name of the owner of the business or the name of the corporation doing such business shall record with the county recorder of the county in which the place of business is located a certificate stating in full either: 1. The name of the owner of the business and his or her place of residence, signed by the owner and acknowledged. 2. If a corporation, the name and address of the corporation, signed by the statutory agent and acknowledged. B. A new certificate shall be recorded upon any change in ownership of the business using a fictitious name unless such business is a corporation. C. A new certificate shall be recorded if a corporation transfers the right to use such fictitious name to another corporation. D. A person or corporation doing business contrary to this section shall not maintain an action upon or on account of a contract or transaction made in the fictitious name in any court of this state until such person has first recorded the certificate required by this section. E. This section does not apply to a person or corporation that has either: 1. Filed a trade name certificate with the secretary of state. 2. Obtained authorization from the corporation commission to conduct business as a foreign corporation using a particular name. 44-1241. Fraudulent sales A. It is unlawful for any person to sell, attempt to sell, offer for sale or participate or assist in the sale of any gasoline, liquefied petroleum gas, distillate, kerosene or other motor fuel or lubricating oil or motor oil of any kind or quality whatever for use in internal combustion engines when the petroleum product is at the time it is sold, offered for sale, caused or attempted to be sold, falsely represented to the purchaser or intended purchaser thereof either verbally or by advertising labels, signs or literature as the product of any manufacturer, refiner, producer or importer other than the true manufacturer, refiner, producer or importer. B. It is unlawful for any person to sell, attempt to sell, offer for sale or participate or assist in the sale of any gasoline, liquefied petroleum gas, distillate, kerosene or other motor fuel or motor oil or lubricating oil of any kind or quality whatever for use in internal combustion engines when the petroleum product is, at the time it is sold, offered for sale, caused or attempted to be sold, falsely represented to the purchaser or intended purchaser thereof, to be the product of the brand name or trade name specified by the purchaser or intended purchaser. It is unlawful to sell, offer for sale or attempt to sell to a purchaser or intended purchaser a motor oil or lubricating oil with a society of automotive engineers number classification other than the S.A.E. number classification as specified by the purchaser or intended purchaser. C. It is unlawful for any person to permit, direct or cause any other person to do any of the acts prohibited by this section. 44-1242. Sale under own trademark or brand; authority of manufacturer This article shall not prohibit any person from selling under his own trademarks, trade names, brands, or the words "no brand", the product of any manufacturer, if such person has first obtained the written authorization of the true manufacturer so to sell such product. 44-1243. Mixtures A. It is unlawful for any person or corporation to mix or adulterate any gasoline or different grades of gasoline or other motor fuel, distillate, kerosene, or lubricating or motor oil, or fraudulently to sell or offer for sale or attempt to sell or assist in the sale of, any of the products resulting from such mixture or adulteration as the gasoline or specific grade of gasoline or other motor fuel, distillate, kerosene, or lubricating or motor oil, of a brand, trademark or trade name, maintained and in general use by the manufacturer, refiner, producer, or marketer of either or both of the products so mixed or adulterated or by any other manufacturer, refiner, producer or marketer. B. The provisions of subsection A shall also apply to deliveries by a tank vehicle. 44-1244. Storage; container previously used for different product It is unlawful for any person to place, store or keep, or cause or permit to be placed, stored or kept, for the purpose of sale any petroleum product in any storage tank underground or otherwise, or container or receptacle which contains or has previously contained a different product, or the product of a different manufacturer, refiner, producer, or marketer unless and until such tank, container or receptacle has first been emptied and relabeled in accordance with this chapter. 44-1245. Violations; continuing violations; classification A. A person who violates any provision of this article is guilty of a class 2 misdemeanor. B. A person is guilty of a separate offense for each day during any portion of which a violation of this article is committed, continued or permitted by such person and such person shall be punishable as prescribed by the terms of subsection A. 44-1251. Definitions In this article, unless the context otherwise requires: 1. "Beverage" means beer or other malt beverages, mineral water, soda water and similar carbonated soft drinks, fruit juices and vegetable juices in liquid form which are intended for human consumption. 2. "Consumer" means a person who purchases a beverage in this state in a container for use or consumption. 3. "Container" means the individual, separate can sealed or under pressure of carbonation which is composed of metal and contains a beverage. 44-1252. Sale of beverages in containers with severable opening prohibited; exception; violation; classification A. A person shall not sell or offer to sell to consumers a beverage in a container designed or constructed with a metal opening device that detaches when opening the container. This section does not prohibit the sale of a beverage in a container which has an opening device composed of foil or a paper product attached or added to the container. B. A person who violates this section is guilty of a petty offense. 44-1261. Definitions; exemptions A. In this article, unless the context otherwise requires: 1. "Consumer" means the purchaser, other than for the purposes of resale, or lessee of a motor vehicle, or any person to whom the motor vehicle is transferred to during the duration of an express warranty applicable to the motor vehicle or any other person entitled by the terms of the warranty to enforce the obligations of the warranty. 2. "Motor vehicle" means a self-propelled vehicle designated primarily for the transportation of persons or property over the public highways. 3. "Used motor vehicle" means a motor vehicle that has been sold, bargained, exchanged or given away or the title to which has been transferred from the person who first acquired the vehicle from the manufacturer, importer or dealer or agent of the manufacturer or importer and that has been placed in bona fide consumer use. 4. "Used motor vehicle dealer" means a person or business that sells or offers for sale a used motor vehicle after selling or offering for sale four or more used motor vehicles in the previous twelve months but does not include a bank or financial institution, an insurance company, a business selling a used motor vehicle to an employee of that business, a lessor selling a leased vehicle by or to the lessee of that vehicle or to an employee of the lessee of that vehicle or a person who buys, sells, exchanges or offers or attempts to negotiate a sale of or exchange an interest in a classic car as defined in section 28-2483 or a historic vehicle as defined in section 28-2484. B. If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but not to those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space. C. The provisions of this article do not apply to a sale of a motor vehicle to a purchaser for the purpose of resale for profit or to a motor vehicle with a declared gross weight over ten thousand pounds or that is sold at a public auction. 44-1262. New motor vehicle; repair during express warranty or two years or twenty-four thousand miles A. If a new motor vehicle does not conform to all applicable express warranties: 1. A consumer shall report the nonconformity to the manufacturer, its agent or its authorized dealer or issuer of a warranty during the shorter of the following: (a) The term of the express warranty. (b) The period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. 2. The manufacturer, its agent or its authorized dealer or the issuer of a warranty shall make those repairs that are necessary to conform the motor vehicle to such express warranties, even if the repairs are made after the expiration of the term or two year period or twenty-four thousand mile limit. B. This section does not limit in any way the remedies available to a consumer under a new motor vehicle warranty that extends beyond the limits prescribed in this section. 44-1263. Inability to conform motor vehicle to express warranty; replacement of vehicle or refund of monies; affirmative defenses; tax refund A. If the manufacturer, its agents or its authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle. The manufacturer shall make refunds to the consumer and lienholder, if any, as their interests appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first written report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair. B. It is an affirmative defense to any claim under this article that either: 1. An alleged nonconformity does not substantially impair the use and market value of the motor vehicle. 2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle. C. In the case of taxes paid pursuant to title 42, chapter 5, if the manufacturer: 1. Accepts return of a motor vehicle from a consumer without replacing the motor vehicle, the manufacturer shall refund the amount of tax attributed to the sale of the vehicle to that consumer. 2. Replaces a motor vehicle with a new motor vehicle of lesser value, the manufacturer shall refund the difference between the original amount of tax attributed to the sale of that vehicle and the amount of tax attributed to the sale of the replacement vehicle, excluding the value of the motor vehicle being replaced. 3. Replaces a motor vehicle with a new motor vehicle of greater value, the manufacturer shall calculate the gross proceeds of sales pursuant to section 42-5001, paragraph 6. D. Pursuant to section 42-1118, subsection F, the manufacturer may apply to the department of revenue for a refund for the amount of tax that the manufacturer properly refunds to the consumer. 44-1264. Reasonable number of attempts to conform motor vehicle to express warranty; presumption A. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if either: 1. The same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the shorter of the express warranty term or the period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, but the nonconformity continues to exist. 2. The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the shorter of the express warranty term or the two year period or twenty-four thousand miles, whichever is earlier. B. The term of an express warranty, the two year period and the thirty day period are extended by any period of time during which repair services are not available to the consumer because of any war, invasion, strike, fire, flood or other natural disaster. C. The presumption prescribed in this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer of the alleged defect and has had an opportunity to cure the alleged defect. 44-1265. Nonlimitation of rights; refund or replacement not required if certain procedures not followed; attorney fees A. If a manufacturer has established or participates in an informal dispute settlement procedure which complies in all respects with 16 Code of Federal Regulations part 703, section 44-1263 relating to refunds or replacement does not apply to any consumer who has not first resorted to such a procedure. B. A consumer shall begin an action under this article within six months following the earlier of expiration of the express warranty term or two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. If a consumer prevails in an action under this article, the court shall award the consumer reasonable costs and attorney fees. 44-1266. Notice to dealers and prospective purchasers A. A manufacturer who has been ordered by judgment or decree to replace or repurchase or who has replaced or repurchased a motor vehicle pursuant to this article or the repair or replace laws of another state shall, before offering the motor vehicle for resale, attach to the motor vehicle written notification indicating the motor vehicle has been replaced or repurchased. A consumer has a cause of action against any person who removes the written notification from the motor vehicle, except as provided in subsection B of this section. B. A motor vehicle dealer, broker, wholesale motor vehicle dealer or wholesale motor vehicle auction dealer as defined in section 28-4301 who offers for sale a motor vehicle that has been replaced or repurchased pursuant to this article or the repair or replace laws of another state shall provide the purchaser with the manufacturer's written notification indicating that the motor vehicle has been replaced or repurchased before completion of the sale. C. It shall constitute an affirmative defense in an action brought pursuant to subsection A of this section against a motor vehicle dealer or an agent of a motor vehicle dealer that the notification described in subsection A of this section was removed by someone other than the dealer or agent without the knowledge of the dealer or agent. 44-1267. Used motor vehicles; title; implied warranty of merchantability disclaimer; waiver; burden of proof; remedies A. Before the seller attempts to sell a used motor vehicle the seller shall possess the title to the used motor vehicle and the title shall be in the seller's name. B. Except as provided in subsection I of this section and in addition to the requirements of section 28-4412, a used motor vehicle dealer shall not exclude, modify or disclaim the implied warranty of merchantability prescribed in section 47-2314 or limit the remedies for a breach of that warranty, except as otherwise provided in this section, before midnight of the fifteenth calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded. An attempt to exclude, modify or disclaim the implied warranty of merchantability or to limit the remedies for a breach of that warranty, except as otherwise provided in this section, in violation of this subsection renders a purchase agreement voidable at the option of the purchaser. C. For the purposes of this section, the implied warranty of merchantability is met if the motor vehicle functions in a safe condition as provided in title 28, chapter 3, article 16 and is substantially free of any defect that significantly limits the use of the motor vehicle for the ordinary purpose of transportation on any public highway. The implied warranty of merchantability expires at midnight of the fifteenth calendar day after delivery of a used motor vehicle or when a used motor vehicle has been driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded. D. The implied warranty of merchantability described in this section does not extend to damage that occurs after the sale of the motor vehicle and that is the result of any abuse, misuse, neglect, failure to perform regular maintenance or to maintain adequate oil, coolant or other required fluid or lubricant or off road use, racing or towing. E. If the implied warranty of merchantability described in this section is breached, the purchaser shall give reasonable notice to the seller. Before the purchaser exercises any other remedies under title 47, chapter 2, the seller shall have a reasonable opportunity to repair the vehicle. The purchaser shall pay one-half of the cost of the first two repairs necessary to bring the vehicle in compliance with the warranty. The purchaser's payments are limited to a maximum payment of twenty-five dollars for each repair. F. The maximum liability of the seller under this section is limited to the purchase price paid for the used motor vehicle. G. An agreement for the sale of a used motor vehicle by a used motor vehicle dealer is voidable at the option of the purchaser unless it contains on its face the following conspicuous statement printed in bold-faced ten point or larger type set off from the body of the agreement: The seller hereby warrants that this vehicle will be fit for the ordinary purposes for which the vehicle is used for 15 days or 500 miles after delivery, whichever is earlier, except with regard to particular defects disclosed on the first page of this agreement. You (the purchaser) will have to pay up to $25.00 for each of the first two repairs if the warranty is violated. H. The inclusion of the statement prescribed in subsection G of this section in the agreement does not create an express warranty. I. A purchaser of a used motor vehicle may waive the implied warranty of merchantability described in this section only for a particular defect in the vehicle and only if all of the following conditions are satisfied: 1. The used motor vehicle dealer fully and accurately discloses to the purchaser that because of circumstances unusual to the used motor vehicle dealer's business, the used motor vehicle has a particular defect. 2. The purchaser agrees to buy the used motor vehicle after disclosure of the defect. 3. Before the sale, the purchaser indicates agreement to the waiver by signing and dating the following conspicuous statement that is printed on the first page of the sales agreement in bold-faced ten point or larger type and that is written in the language in which the presentation was made: Attention purchaser: sign here only if the dealer told you that this vehicle has the following problem(s) and that you agree to buy the vehicle on those terms: 1._______________________________ 2._______________________________ 3._______________________________ J. The dealer has the burden to prove by a preponderance of the evidence that the dealer complied with subsection I of this section. K. Any purchaser or seller who is aggrieved by a transaction pursuant to this section and who seeks a legal remedy shall pursue any appropriate remedy prescribed in title 47, chapter 2 and shall comply with the requirements prescribed in title 47, chapter 2. 44-1271. Definitions In this article, unless the context otherwise requires: 1. "Business opportunity": (a) Means the sale or lease, or offer for sale or lease, of any goods or services to a consumer for an initial payment of five hundred dollars or greater for the purpose of enabling the consumer to start or operate a business, which sale or lease is not limited to sales initiated or made by the telephone. (b) Includes a solicitation of consumers in which the seller represents one or more of the following: (i) That the consumer may or will earn an amount in excess of the initial payment as a result of the purchase. (ii) That a market exists for any goods to be made or sold or services to be rendered by the consumer. (iii) That the seller will provide locations or assist the consumer in finding locations for the use or operation of vending machines, racks, display cases or other similar devices or currency-operated amusement machines or devices or any other devices. (iv) That the seller may purchase from the consumer goods to be made or services to be rendered by the consumer. (v) That the seller guarantees, either conditionally or unconditionally, that the consumer will derive income from the business opportunity or that the seller will refund all or part of the price paid for the business opportunity or repurchase any of the goods supplied by the seller if the consumer is unsatisfied with the business opportunity. (vi) That the seller or an entity associated with the seller will provide a sales program or marketing program to the consumer unless the marketing program is offered in conjunction with the licensing of a registered trademark or service mark, if the trademark or service mark has been effectively registered under federal law. (c) Does not include: (i) The sale of all or substantially all of the assets of an ongoing business where the owner of that business sells and intends to sell only that one business opportunity. (ii) The not-for-profit sale of sales demonstration equipment, materials or samples for a total price of five hundred dollars or less. (iii) The sale of a franchise as defined by the federal trade commission regulations as set forth in 16 Code of Federal Regulations section 436.1. 2. "Consumer" means a person who is solicited by a seller or solicitor. 3. "Goods" means any merchandise, equipment, products, supplies or materials. 4. "Initial payment" means the total amount the purchaser becomes obligated to pay to the seller and to any third party for goods, services or merchandise related to a previously purchased business opportunity, either prior to or at the time of the delivery of any goods, services or merchandise within six months after the commencement of the operation of the business opportunity by the purchaser. 5. "Licensed associated person of a securities, commodities or investments broker" means any associated person registered or licensed by the national association of securities dealers, a self-regulatory organization as defined in the securities exchange act of 1934 (15 United States Code section 78c) or an official or agency of this state or of any other state of the United States. 6. "Licensed securities commodities or investments broker, dealer or investment advisor" means a person licensed or registered as a securities commodities or investments broker, dealer or investment advisor by the securities and exchange commission, the national association of securities dealers, a self-regulatory organization as defined in the securities exchange act of 1934 (15 United States Code section 78c) or an official or agency of this state or of any other state of the United States. 7. "Manager" means a person who supervises the work of a solicitor. 8. "Merchandise" means objects, wares, goods, commodities, intangibles, real estate, securities or services. 9. "Person" means: (a) A natural person or the person's legal representative. (b) A partnership, a limited liability company, a limited liability partnership or a domestic or foreign corporation. (c) A company, trust, business entity or association. (d) An agent, employee, salesman, partner, officer, director, member, stockholder, associate or trustee. (e) Any other legal entity or any grou