In an enforcement action initiated by the division, a person claiming an exemption has the burden of proving that the person is entitled to the exemption.
Terms Used In Utah Code 13-26-4
Continuity plan: means a shipment, with the prior express consent of the buyer, at regular intervals of similar special-interest products, in which there is no binding commitment period or purchase amount. See Utah Code 13-26-2
Contract: A legal written agreement that becomes binding when signed.
Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
Division: means the Division of Consumer Protection. See Utah Code 13-26-2
Premium: means a gift, bonus, prize, award, certificate, or other document by which a prospective purchaser is given a right, chance, or privilege to purchase or receive goods or services with a stated or represented value of $25 or more as an inducement to a prospective purchaser to purchase other goods or services. See Utah Code 13-26-2
Seller: means a person, or a group of persons engaged in a common effort to conduct a telephone solicitation, that:
(a)
on behalf of the person, or the group of persons engaged in a common effort to conduct a telephone solicitation:
a sale or solicitation of goods or services in which:
(A)
(I)
the seller solicits the sale over the telephone;
(II)
the purchaser's agreement to purchase is made over the telephone; and
(III)
the purchaser, over the telephone, pays for or agrees to commit to payment for goods or services prior to or upon receipt by the purchaser of the goods or services;
(B)
the seller, not exempt under Section 13-26-4, induces a prospective purchaser over the telephone, to make and keep an appointment that directly results in the purchase of goods or services by the purchaser that would not have occurred without the telephone solicitation and inducement by the seller;
(C)
the seller offers or promises a premium to a prospective purchaser if:
(I)
the seller induces the prospective purchaser to initiate a telephone contact with the seller; and
(II)
the resulting solicitation meets the requirements of Subsection (10)(a); or
(D)
the seller solicits a charitable donation involving the exchange of any premium, prize, gift, ticket, subscription, or other benefit in connection with an appeal made for a charitable purpose by an organization that is not otherwise exempt under Subsection 13-26-4(2)(b)(iv); or
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Trustee: A person or institution holding and administering property in trust.
United States: includes each state, district, and territory of the United States of America. See Utah Code 68-3-12.5
(2)
The following are exempt from this chapter except for the requirements described in Sections 13-26-8 and 13-26-11:
(a)
a broker, agent, dealer, or sales professional licensed in this state, when soliciting sales within the scope of the broker’s, agent’s, dealer’s, or sales professional’s license;
(b)
the solicitation of sales by:
(i)
a public utility that is regulated under Title 54, Public Utilities, or by an affiliate of the public utility;
(ii)
a newspaper of general circulation;
(iii)
a solicitation of sale made by a broadcaster licensed by a state or federal authority;
(iv)
a nonprofit organization if no part of the net earnings from the sale inures to the benefit of:
(A)
a member, officer, trustee, or serving board member of the organization; or
(B)
an individual, or a family member of an individual, holding a position of authority or trust in the organization; and
(v)
a person who periodically publishes and delivers a catalog of the seller‘s merchandise to prospective purchasers, if the catalog:
(A)
contains the price and a written description or illustration of each item offered for sale;
(B)
includes the seller’s business address;
(C)
includes at least 24 pages of written material and illustrations;
(D)
is distributed in more than one state; and
(E)
has an annual circulation by mailing of not less than 250,000;
(c)
a publicly traded corporation registered with the Securities and Exchange Commission, or a subsidiary of the publicly traded corporation;
(d)
the solicitation of a depository institution as defined in Section 7-1-103, a subsidiary of a depository institution, personal property broker, securities broker, investment adviser, consumer finance lender, or insurer subject to regulation by an official agency of this state or the United States;
(e)
the solicitation by a person soliciting only the sale of telephone services to be provided by the person or the person’s employer;
(f)
the solicitation of a person relating to a transaction regulated by the Commodities Futures Trading Commission, if:
(i)
the person is registered with or temporarily licensed by the commission to conduct the activity under the Commodity Exchange Act; and
(ii)
the registration or license has not expired or been suspended or revoked;
(g)
the solicitation of a contract for the maintenance or repair of goods previously purchased from the person:
(i)
who is making the solicitation; or
(ii)
on whose behalf the solicitation is made;
(h)
the solicitation of previous customers of the person on whose behalf the call is made if the person making the call:
(i)
does not offer any premium in conjunction with a sale or offer;
(ii)
is not selling an investment or an opportunity for an investment that is not registered with a state or federal authority; and
(iii)
is not regularly engaged in telephone sales;
(i)
the solicitation of a sale that is an isolated transaction and not done in the course of a pattern of repeated transactions of a similar nature;
(j)
the solicitation of a person by a retail business that has been in operation for at least five years in Utah under the same name as that used in connection with telemarketing if the following occur on a continuing basis:
(i)
at the retail business’s place of business, the retail business:
(A)
displays and offers products for sale; or
(B)
offers services for sale and provides the services at the place of business; and
(ii)
a majority of the retail business’s business involves the activities described in Subsection (2)(j)(i);
(k)
a person primarily soliciting the sale of a magazine or periodical sold by the publisher or the publisher’s agent through a written agreement, or printed or recorded material through a contractual plan, such as a book or record club, continuity plan, subscription, standing order arrangement, or supplement or series arrangement if:
(i)
the person provides the consumer with a form that the consumer may use to instruct the person not to ship the offered merchandise, and the arrangement is regulated by the Federal Trade Commission trade regulation concerning use of negative option plans by a person making a sale in commerce; or
(ii)
(A)
the person periodically ships merchandise to a consumer who has consented in advance to receive the merchandise on a periodic basis; and
(B)
the consumer retains the right to cancel at any time and receive a full refund for the unused portion;
(l)
a telephone marketing service company that provides telemarketing sales services under contract to a person making a sale if:
(i)
the telephone marketing service company has been doing business regularly with customers in Utah for at least five years under the same business name and with the telephone marketing service company’s principal office in the same location;
(ii)
at least 75% of the telephone marketing service company’s contracts are performed on behalf of persons exempt from registration under this chapter; and
(iii)
neither the telephone marketing service company nor the telephone marketing service company’s principals have been enjoined from doing business or subjected to criminal actions for the telephone marketing service company’s or the telephone marketing company’s principal’s business activities in this or any other state;
