HF 2236

1st Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to commerce; regulating the enforcement 
  1.3             powers of the commissioner; modifying reporting and 
  1.4             enforcement provisions for charitable solicitations; 
  1.5             regulating the repair of certain consumer goods; 
  1.6             modifying the definition of "nonconformity" for 
  1.7             purposes of assistive listening device regulation; 
  1.8             amending Minnesota Statutes 1994, sections 45.027, 
  1.9             subdivision 5, and by adding a subdivision; 309.57, 
  1.10            subdivision 1; and 325F.56, subdivision 2; Minnesota 
  1.11            Statutes 1995 Supplement, sections 309.53, subdivision 
  1.12            3; and 325G.203, by adding a subdivision. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  Minnesota Statutes 1994, section 45.027, 
  1.15  subdivision 5, is amended to read: 
  1.16     Subd. 5.  [LEGAL ACTIONS; INJUNCTIONS; CEASE AND DESIST 
  1.17  ORDERS.] Whenever it appears to the commissioner that any person 
  1.18  has engaged or is about to engage in any act or practice 
  1.19  constituting a violation of any law, rule, or order related to 
  1.20  the duties and responsibilities entrusted to the commissioner, 
  1.21  the commissioner has the following powers:  (1) the commissioner 
  1.22  may bring an action in the name of the state in Ramsey county 
  1.23  district court or the district court of the an appropriate 
  1.24  county to enjoin the acts or practices and to enforce 
  1.25  compliance, or the commissioner may refer the matter to the 
  1.26  attorney general or the county attorney of the appropriate 
  1.27  county.  Upon a proper showing, A permanent or temporary 
  1.28  injunction, restraining order, or other appropriate relief must 
  1.29  be granted; (2) based solely upon a showing that the person has 
  2.1   engaged or is about to engage in an act or practice constituting 
  2.2   a violation of a law, rule, cease and desist order, or other 
  2.3   order related to the duties and responsibilities entrusted to 
  2.4   the commissioner.  The terms of this subdivision govern an 
  2.5   action brought under this subdivision, including an action 
  2.6   against a person who, for whatever reason, claims that the 
  2.7   subject law, rule, cease and desist order or other order does 
  2.8   not apply to the person. 
  2.9      Subd. 5a.  [CEASE AND DESIST ORDERS.] (a) Whenever it 
  2.10  appears to the commissioner that a person has engaged or is 
  2.11  about to engage in an act or practice constituting a violation 
  2.12  of a law, rule, or order related to the duties and 
  2.13  responsibilities entrusted to the commissioner, the commissioner 
  2.14  may issue and cause to be served upon the person an order 
  2.15  requiring the person to cease and desist from violations.  
  2.16     (b) The cease and desist order must be calculated to give 
  2.17  reasonable notice of the rights of the person to request a 
  2.18  hearing and must state the reasons for the entry of the order.  
  2.19  A hearing must be held not later than seven ten days after the 
  2.20  request for the hearing is received by the commissioner, unless 
  2.21  the person requesting the hearing and the department of commerce 
  2.22  agree the hearing be scheduled after the seven-day period.  
  2.23  After the completion of the hearing and, the administrative law 
  2.24  judge shall issue a report within ten days.  Within 20 15 days 
  2.25  after receiving the administrative law judge's report, the 
  2.26  commissioner shall issue a further order vacating or making 
  2.27  permanent the cease and desist order or making it permanent as 
  2.28  the facts require.  If no hearing is requested within 30 days of 
  2.29  service of the order, the order will become final and will 
  2.30  remain in effect until it is modified or vacated by the 
  2.31  commissioner.  Unless otherwise provided, all hearings must be 
  2.32  conducted in accordance with chapter 14.  The time periods 
  2.33  provided in this provision may be waived by agreement of the 
  2.34  person requesting the hearing and the department of commerce and 
  2.35  the person against whom the cease and desist order is issued.  
  2.36  If the person to whom a cease and desist order is issued fails 
  3.1   to appear at the hearing after being duly notified, the person 
  3.2   is in default, and the proceeding may be determined against that 
  3.3   person upon consideration of the cease and desist order, the 
  3.4   allegations of which may be considered to be true.  Unless 
  3.5   otherwise provided, all hearings must be conducted according to 
  3.6   chapter 14.  The commissioner may adopt rules of procedure 
  3.7   concerning all proceedings conducted under this subdivision. 
  3.8      (c) If no hearing is requested within 30 days of service of 
  3.9   the order, the cease and desist order will become permanent. 
  3.10     (d) A cease and desist order issued under this subdivision 
  3.11  remains in effect until it is modified or vacated by the 
  3.12  commissioner.  The administrative proceeding provided by this 
  3.13  subdivision, and subsequent appellate judicial review of that 
  3.14  administrative proceeding, constitutes the exclusive remedy for 
  3.15  determining whether the commissioner properly issued the cease 
  3.16  and desist order and whether the cease and desist order should 
  3.17  be vacated or made permanent. 
  3.18     Sec. 2.  Minnesota Statutes 1994, section 45.027, is 
  3.19  amended by adding a subdivision to read: 
  3.20     Subd. 5b.  [ENFORCEMENT OF VIOLATIONS OF CEASE AND DESIST 
  3.21  ORDERS.] (a) Whenever the commissioner under subdivision 5 seeks 
  3.22  to enforce compliance with a cease and desist order that has 
  3.23  been made permanent, the allegations in the cease and desist 
  3.24  order are considered conclusively established for purposes of a 
  3.25  proceeding under subdivision 5 for permanent or temporary relief 
  3.26  to enforce the cease and desist order.  Whenever the 
  3.27  commissioner under subdivision 5 seeks to enforce compliance 
  3.28  with a cease and desist order when a hearing or hearing request 
  3.29  on the cease and desist order is pending, or the time has not 
  3.30  yet expired to request a hearing on whether a cease and desist 
  3.31  order should be vacated or made permanent, the allegations in 
  3.32  the cease and desist order are considered conclusively 
  3.33  established for purposes of a proceeding under subdivision 5 for 
  3.34  temporary relief to enforce the cease and desist order.  
  3.35     (b) Notwithstanding this subdivision or subdivision 5 or 5a 
  3.36  to the contrary, the person against whom the cease and desist 
  4.1   order is issued and who has requested a hearing under 
  4.2   subdivision 5a may within 15 days after service of cease and 
  4.3   desist order bring an action in Ramsey county district court for 
  4.4   issuance of an injunction to suspend enforcement of the cease 
  4.5   and desist order pending a final decision of the commissioner 
  4.6   under subdivision 5a to vacate or make permanent the cease and 
  4.7   desist order.  The court shall determine whether to issue such 
  4.8   an injunction based on traditional principles of temporary 
  4.9   relief. 
  4.10     Sec. 3.  Minnesota Statutes 1995 Supplement, section 
  4.11  309.53, subdivision 3, is amended to read: 
  4.12     Subd. 3.  The financial statement shall include a balance 
  4.13  sheet, statement of income and expense, and statement of 
  4.14  functional expenses, shall be consistent with forms furnished by 
  4.15  the attorney general, and shall be prepared in accordance with 
  4.16  generally accepted accounting principles so as to make a full 
  4.17  disclosure of the following, including necessary allocations 
  4.18  between each item and the basis of such allocations: 
  4.19     (a) total receipts and total income from all sources; 
  4.20     (b) cost of management and general expenses; 
  4.21     (c) program services; 
  4.22     (d) cost of fund raising; 
  4.23     (d) (e) cost of public education; 
  4.24     (e) (f) funds or properties transferred out of state, with 
  4.25  explanation as to recipient and purpose; 
  4.26     (f) (g) total net amount disbursed or dedicated within this 
  4.27  state, broken down into total amounts disbursed or dedicated for 
  4.28  each major purpose, charitable or otherwise; 
  4.29     (g) (h) names of professional fund raisers used during the 
  4.30  accounting year and the financial compensation or and profit 
  4.31  resulting to each professional fund raiser; and 
  4.32     (h) (i) a list of the five highest paid directors, 
  4.33  officers, and employees of the organization that receive total 
  4.34  compensation of more than $50,000, together with the total 
  4.35  compensation paid to each.  Total compensation shall include 
  4.36  salaries, fees, bonuses, fringe benefits, severance payments, 
  5.1   and deferred compensation paid by the charitable organization 
  5.2   and all related organizations as that term is defined by section 
  5.3   317A.011, subdivision 18.  On July 1, 1997, and thereafter, the 
  5.4   charitable organization shall begin disclosure of the total 
  5.5   compensation of the five highest paid directors, officers, and 
  5.6   employees of any related organization if the related 
  5.7   organization receives funds from the charitable organization. 
  5.8      Unless otherwise required by this subdivision, the 
  5.9   financial statement need not be certified. 
  5.10     A financial statement of a charitable organization which 
  5.11  has received total revenue in excess of $350,000 for the 12 
  5.12  months of operation covered by the statement shall be 
  5.13  accompanied by an audited financial statement prepared in 
  5.14  accordance with generally accepted accounting principles that 
  5.15  has been examined by an independent certified public accountant 
  5.16  for the purpose of expressing an opinion.  In preparing the 
  5.17  audit the certified public accountant shall take into 
  5.18  consideration capital, endowment or other reserve funds, if any, 
  5.19  controlled by the charitable organization.  
  5.20     Sec. 4.  Minnesota Statutes 1994, section 309.57, 
  5.21  subdivision 1, is amended to read: 
  5.22     Subdivision 1.  [GENERAL.] Upon the application of the 
  5.23  attorney general the district court is vested with jurisdiction 
  5.24  to restrain, enjoin, and redress violations of sections 309.50 
  5.25  to 309.61.  The court may make any necessary order or judgment 
  5.26  including, but not limited to, injunctions, restitution, 
  5.27  appointment of a receiver for the defendant or the defendant's 
  5.28  assets, suspension of the defendant's registration, awards of 
  5.29  reasonable attorney fees, and costs of investigation and 
  5.30  litigation, and may award to the state civil penalties up to 
  5.31  $25,000 $40,000 for each violation of sections 309.50 to 
  5.32  309.61.  In ordering injunctive relief, the attorney general 
  5.33  shall not be required to establish irreparable harm but only a 
  5.34  violation of statute or that the requested order promotes the 
  5.35  public interest.  The court may, as appropriate, enter a consent 
  5.36  judgment or decree without the finding of illegality. 
  6.1      Sec. 5.  Minnesota Statutes 1994, section 325F.56, 
  6.2   subdivision 2, is amended to read: 
  6.3      Subd. 2.  "Repairs" means work performed for a total price 
  6.4   of more than $100 and less than $2,000 $7,500, including the 
  6.5   price of parts and materials, to restore a malfunctioning, 
  6.6   defective, or worn motor vehicle, appliance, or dwelling place 
  6.7   used primarily for personal, family, or household purposes and 
  6.8   not primarily for business or agricultural purposes.  "Repairs" 
  6.9   do not include service calls or estimates. 
  6.10     Sec. 6.  Minnesota Statutes 1995 Supplement, section 
  6.11  325G.203, is amended by adding a subdivision to read: 
  6.12     Subd. 11a.  For those assistive devices regulated under 
  6.13  section 153A.19, "nonconformity" means a mechanical defect and 
  6.14  not a condition of the device that is the result of normal use 
  6.15  which could be resolved through fitting adjustments, cleaning, 
  6.16  or proper care. 
  6.17     Sec. 7.  [EFFECTIVE DATE.] 
  6.18     Sections 3 to 6 are effective on the day following final 
  6.19  enactment.