LD 1305
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Page 1 of 2 An Act to Consolidate the Laws Regulating Transient Sellers and Door-to-door Ho... LD 1305 Title Page
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LR 754
Item 1

 
Sec. 7. 32 MRSA §§14504 and 14505, as enacted by PL 1993, c. 444, §1,
are amended to read:

 
§14504. Registration required

 
A transient seller of home repair services must register with
the department and acquire a door-to-door sales registration in
the manner set forth in section 14505 before engaging in the
door-to-door sales of home repair services. The registration
requirement under this section is in addition to the licensing
requirements applicable to the occupation, trade or profession
for which a license is required. A transient seller who solicits
sales during the course of a municipal or state repair contract
is exempt from this requirement.

 
§14505. Evidence of registration

 
Upon registration, the department shall issue to a transient
seller of home repair services a door-to-door sales registration
that indicates that the person whose name appears on the
registration is a registered transient seller of home repair
services under this chapter subchapter. The registration must
also include the name of the seller's company.

 
Sec. 8. 32 MRSA §14508, as enacted by PL 1993, c. 444, §1, is
amended to read:

 
§14508. Renewal application

 
An annual renewal application must be filed by the seller on
October 31st or at such other times as the department designates.
The renewal application must include changes or additions to the
information required by section 14507. The department shall mail
notice to the transient seller's last known address 30 days in
advance of the expiration date. The renewal application must be
accompanied by a the required renewal fee, as provided in section
14509.

 
Sec. 9. 32 MRSA §14509, as amended by PL 1999, c. 685, §25, is
further amended to read:

 
§14509. Registration fee

 
A transient seller must pay to the department required
original and renewal license fees established by the department
by rule in an amount not to exceed $300 annually. Rules adopted
pursuant to this section are routine technical rules pursuant to
Title 5, chapter 375, subchapter II-A.

 
The aggregate of fees provided for by this section is
appropriated for the use of the department. Any balance of funds
may not lapse but must be carried forward to be expended for the
same purposes in the following fiscal year.

 
Sec. 10. 32 MRSA §14511, as enacted by PL 1993, c. 444, §1, is
amended to read:

 
§14511. Forms and model contract

 
The Department of the Attorney General has rule-making
authority to adopt all forms necessary to fully implement this
chapter subchapter. The Department of the Attorney General shall
prepare a form contract for door-to-door sales, that fully meets
the obligations of a transient seller of home repair services
under this chapter subchapter. The Department of the Attorney
General shall provide these forms at no cost to the department.

 
Sec. 11. 32 MRSA §14512, sub-§§2 and 3, as enacted by PL 1993, c. 444,
§1, are amended to read:

 
2. Civil penalty. A transient seller of home repair services
or the seller's employee failing to register in violation of this
chapter subchapter commits a civil violation for which a civil
penalty of up to $2,000 may be adjudged against the seller and
each employee. If the person violates this chapter subchapter 2
or more times, or if the injured consumer is more than 60 years
of age, the civil violation penalty may be up to $5,000.
Subsection 1 and this subsection are enforceable by either the
Department of the Attorney General or the District Attorney.

 
3. Unfair trade practice. A transient seller of home repair
services who fails to register in violation of this chapter
subchapter commits an unfair trade practice in violation of Title
5, section 207.

 
Sec. 12. 32 MRSA c. 128, sub-c. II is enacted to read:

 
SUBCHAPTER II

 
TRANSIENT SELLERS OF CONSUMER MERCHANDISE

 
§14701.__Definitions

 
As used in this subchapter, unless the context otherwise
indicates, the following terms have the following meanings.

 
1.__Consumer. "Consumer" means any person who purchases or
contracts for the purchase of merchandise for any purpose except
resale in the ordinary course of trade or business.

 
2.__Department.__"Department" means the Department of
Professional and Financial Regulation.

 
3.__Employee. "Employee" means any independent contractor,
agent or person working for a salary or commission.

 
4.__Merchandise.__"Merchandise" includes any objects, wares,
goods, promises, commodities, intangibles, services or other
things of value but does not include food or technical or
vocational schools located outside of the State that are
registered pursuant to Title 20-A, section 9501.__"Merchandise"
does not include securities that are registered or exempt from
registration pursuant to chapter 105, the Revised Maine
Securities Act and rules adopted pursuant to that Act.

 
5.__Permanent place of business. "Permanent place of business"
means any building or other permanently affixed structure,
including a home residence, that is owned or held under a 12-
month lease or rental agreement at the time business is commenced
and is used in whole or in part for the purpose of engaging in
sales of consumer merchandise.

 
6.__Person. "Person" includes natural persons, corporations,
trusts, partnerships, incorporated or unincorporated associations
and any other legal entities.

 
7.__Sale. "Sale" includes any sale, transfer, exchange or
barter, offer for sale, promise to sell or attempt to sell, or
advertisement for sale, of any merchandise for cash or for
credit.

 
8.__Transient seller of consumer merchandise or transient
seller. "Transient seller of consumer merchandise" or "transient
seller" means any person who engages in the business of selling
merchandise to consumers by means of personal contact or
telephone contact, whether or not the seller is present in the
State at the time of the contact or the time of sale, and who
does not have, for the purposes of carrying on such business, any
permanent place of business within this State. "Transient seller
of consumer merchandise" does not include a person who sells at
public fairs, expositions or bazaars or a member selling on
behalf of public service organizations. "Transient seller of
consumer merchandise" does not a include a person who sells
exclusively by mail contact, except for a person who offers
merchandise or money prizes as free of charge, such as contest
prizes or gifts for answering a survey, but who requires the
recipient to pay something of value in order to participate in

 
this offer, including, but not limited to, entrance fees,
processing fees or handling charges.__A "transient seller of
consumer merchandise" does not include a supervised lender as
defined in Title 9-A, section 1-301, subsection 39.

 
§14702. Registration

 
Every person that engages in the business of transient sellers
of consumer merchandise, including the self-employed or those who
employ one or more transient sellers of consumer merchandise,
shall apply to the department and acquire a registration in the
manner set forth in section 14706 before engaging in sales of
consumer merchandise in this State.

 
§14703. Registrations

 
1.__Issuance.__The department shall issue to each transient
seller of consumer merchandise and employee of that transient
seller a registration that, among other things, must indicate
that the person whose name appears on the registration is a
registered seller or employee of a registered seller under this
subchapter.

 
2.__Possession and presentation.__Every transient seller of
consumer merchandise and each of the seller's employees must have
a valid registration, as required by this subchapter, in the
seller's or employee's immediate possession at all times when
engaging in sales of consumer merchandise in this State and shall
present the registration for inspection upon request of any
person.

 
§14704. Disclosure of registration number and permanent place of

 
business

 
1.__Registration number and permanent place of business
disclosed in advertisements.__Every time a transient seller of
consumer merchandise advertises in this State for the sale of
merchandise, whether in print or electronic media, the
advertisement must disclose the transient seller's registration
number in the following manner:__"State Department of
Professional and Financial Regulation Transient Seller's
Registration Number:__(Fill in number)" and must disclose the
address of the seller's permanent place of business.

 
2.__Registration number and place of business disclosed in
written receipt.__Every time a transient seller of consumer
merchandise sells merchandise to a consumer in this State, the
transient seller shall provide the purchaser with a written
receipt, at the time of sale, disclosing the transient seller's
registration number in the following manner:__"State Department

 
of Professional and Financial Regulation Transient Seller's
Registration Number: (Fill in number)" and disclosing the
transient seller's name and permanent place of business.

 
§14705. Local registration

 
Nothing in this subchapter affects the right of any town or
municipality to make such regulations relative to transient
sellers of consumer merchandise as may be permissible under the
general law or under any municipal charter.

 
§14706. Application

 
Each application for a transient seller of consumer
merchandise registration required by section 14702 must be made
upon a form prescribed by the department, must be sworn to and
must include:

 
1.__Name and address.__The name and local and permanent
business address of the applicant;

 
2.__Employees of applicant. Names of all employees of the
applicant employed in this State;

 
3.__Statement. A statement of all judgments secured or
outstanding against the applicant arising out of sales to
consumers during the 2 years immediately prior to making the
application and of all suits of either a criminal or civil nature
pending against the applicant that arise out of sales to
consumers, at the time of making the application;

 
4.__Statement of yearly gross revenues. A statement of
anticipated yearly gross revenues from sales of consumer
merchandise in this State;

 
5.__Security deposits.__The name and address of the person to
whom security deposits made with the department pursuant to this
subchapter are returned; and

 
6.__Seller's certificate. The number of a valid transient
seller of consumer merchandise's registration certificate issued
to the applicant by the State Tax Assessor pursuant to Title 36,
chapter 211 or satisfactory evidence that the applicant is not
required to be registered under that Title.

 
The applicant shall promptly notify the department of all
changes or additions in the information required in this section
upon a form prescribed by the department.

 
Any false statement in an application, either original or
supplementary, for a registration subjects the applicant to the
same penalty as if the applicant had no registration.

 
§14707. Renewal application

 
A renewal application made under this subchapter and made upon
a form prescribed by the department must be filed by the
applicant on October 31st annually or at such other times as the
Commissioner of Professional and Financial Regulation may
designate.__The renewal application must include all changes or
additions in the information required by section 14706.__Notice
must be mailed to each applicant's last known address 30 days in
advance of the expiration date of the applicant's current
registration.__The renewal application must be accompanied by a
renewal fee, as provided in section 14708.

 
§14708. Registration fee and security deposit

 
1.__Fees.__The department shall establish fees by rule for
applications, registrations and renewals under this subchapter in
an amount not to exceed $300 annually for any one purpose.__Rules
adopted pursuant to this subsection are routine technical rules
pursuant to Title 5, chapter 375, subchapter II-A.

 
2.__Dedicated revenues.__All fees received under this
subchapter must be paid to the Treasurer of State to be used for
carrying out this subchapter.__Any balance of these fees may not
lapse, but must be carried forward as a continuing account to be
expended for the same purpose in the following fiscal year.

 
3.__Security deposit.__Every person that engages in the
business of transient sellers of consumer merchandise, including
the self-employed or those who employ one or more transient
sellers of consumer merchandise, shall also make a security
deposit of $10,000 or of a sum equal to the anticipated yearly
gross revenues in this State, whichever is less, with the
department for the protection of consumers as described in
section 14712.__The security deposit may be made by a bond as
drawn by the department and as secured by a surety approved by
the department.__Only one security deposit is required of each
person engaged in transient sales of consumer merchandise.

 
4.__Registration issued.__The department shall issue to a
transient seller of consumer merchandise and to employees of that
transient seller a registration upon receipt of a completed
application in proper form with required fees and a security
deposit.

 
§14709. Waiver of security deposit

 
Transient sellers of consumer merchandise may apply to the
department for waiver of the security deposit required by section
14708 by presenting to the authorized person within the
department the following information in addition to the
information required under section 14706:

 
1.__Consumer sales.__A sworn statement by the applicant that
the applicant has continuously engaged in consumer sales in this
State for a period not less than 3 years;

 
2.__Theft offenses; fraudulent or deceptive business practice.__
A sworn statement by the applicant that neither the applicant nor
any employee of the applicant operating in this State has been
convicted of any theft offense or fraudulent or deceptive
business practice in any United States jurisdiction;

 
3.__Complaints on file against applicant.__A letter from the
Attorney General's office in the state where the applicant has
its principal place of business stating the nature or absence
thereof of complaints on file against the applicant; and

 
4.__Letter of recommendation.__A letter of recommendation from
an appropriate trade association that promotes sound and ethical
trade practices and the processing of consumer complaints that
states the applicant is a member in good standing of that
association.

 
The authorized person within the department shall forward the
completed application for waiver of the security deposit to the
Office of the Attorney General for review and shall within 15
days of receipt of the completed application and with the advice
of the Attorney General grant or deny the application for waiver.

 
§14710. Revocation of right to waive security deposit

 
The authorized person within the department shall rescind the
right of a transient seller of consumer merchandise to waive a
security deposit upon occurrence of any of the following:

 
1.__Conviction for theft or fraudulent business practices.__
The transient seller of consumer merchandise or any employee is
convicted of a theft offense or fraudulent or deceptive business
practice;

 
2.__Failure to defend action under Title 5, chapter 10.__The
transient seller of consumer merchandise or any employee fails to
successfully defend any action brought against it under Title 5,
chapter 10; or

 
3.__Failure to negotiate consumer complaints.__The transient
seller of consumer merchandise or any employee fails to negotiate
consumer complaints filed against it with the Attorney General.

 
§14711. Expiration

 
1.__Registrations. Registrations issued under section 14703
expire:

 
A.__On the date that the registrant establishes a permanent
place of business and surrenders the registrant's
registration to the department;

 
B.__When the registrant fails to file a renewal application
as required by section 14707; or

 
C.__Upon the surrender of the registration for cancellation.

 
§14712. Security deposit subject to claims; order of

 
preference; return of security deposit

 
Each security deposit made under section 14708 is subject, so
long as it remains in the hands of the department, to the
attachment and execution in behalf of consumers whose claims
arise in connection with the transient sale of consumer
merchandise in this State.__The department may be impleaded as a
trustee in any civil action brought against any registrant and
shall pay over, under order of court, such sum of money as the
department may be found chargeable.__The security deposit is
subject to the payment of any fines and penalties incurred by the
registrant through any of the provisions of this subchapter, and
the clerk of the court in which that fine or penalty is imposed
shall notify the department of the name of the registrant against
whom that fine or penalty is adjudged and of the amount of that
fine or penalty.__The department, if it has in its possession a
sufficient sum deposited by that registrant, shall pay the sum so
specified to the clerk.__If the department does not have a
sufficient sum so deposited, it shall make payment of so much as
it has in its possession.__All claims upon the deposit must be
satisfied after judgment, fine and penalty, in the order in which
the order of court is entered in the respective suits, until all
claims are satisfied or the security deposit is exhausted.__A
security deposit may not be paid over by the department to a
registrant so long as there are any outstanding claims or notices
of claims that are subject of suit against the registrant, in
which case the department shall retain only such sum of the
security deposit as is subject of claim.

 
The security deposit required under section 14708 must be
returned to the person so designated pursuant to section 14706,

 
subsection 5 in the registrant's application for registration
made under section 14702 12 months following the expiration of
the registration.

 
§14713. Violations and penalties

 
1.__Criminal penalty.__Violation of section 14702, section
14703, subsection 2 or section 14704 is a Class E crime for which
the State need not plead or prove a culpable state of mind,
except that a violation of section 14702, section 14703,
subsection 2 or section 14704 is a Class D crime if the State
pleads and proves that the act or omission was intentional.

 
2.__Unfair trade practice.__A person who fails to comply with
this subchapter commits a violation of Title 5, chapter 10.

 
§14714. Service of process

 
The department is an agent of each person, including the self-
employed, who employs one or more transient sellers of consumer
merchandise for service of any process, notice or demand required
or permitted by law to be served, and this service is binding
upon the person. Service of any such process, notice or demand
must be made as provided by Rule 4(d)(b) of the Maine Rules of
Civil Procedure, as amended.

 
§14715. Prohibited practices

 
A transient seller of consumer merchandise may not:

 
1.__Misrepresentations.__Misrepresent any material fact
relating to the terms or conditions of sale;

 
2.__False impressions.__Create an impression that is false or
the transient seller of consumer merchandise does not believe to
be true; and

 
3.__False promises.__Promise performance that the transient
seller of consumer merchandise does not intend to perform or
knows will not be performed.

 
§14716. Telemarketers

 
1. Incorporation of federal standards.__Violation of any
provision of the Federal Trade Commission's Telemarketing Sales
Rule, 16 Code of Federal Regulations, Part 310, as in effect on
January 1, 2000, by a transient seller of consumer merchandise is
a violation of this subchapter.

 
2.__Additional prohibitions.__A transient seller of consumer
merchandise who is a telemarketer, as defined in the Federal
Trade Commission's Telemarketing Sales Rule, 16 Code of Federal
Regulations, Section 310.2, as in effect on January 1, 2000, and
who initiates telephone contact with a consumer may not procure
the services of any professional delivery courier or other pick-
up service to obtain immediate receipt or possession of a
consumer's payment, unless the goods are delivered with the
opportunity to inspect before any payment is collected.

 
3.__Do-not-call list.__A transient seller of consumer
merchandise who is a telemarketer, as defined in the Federal
Trade Commission's Telemarketing Sales Rule, 16 Code of Federal
Regulations, Section 310.2, as in effect on January 1, 2000:

 
A. Shall semiannually obtain subscription listings of
consumers in this State who have arranged to be included on
the national do-not-call list maintained by the Telephone
Preference Service of the Direct Marketing Association,
Inc., Farmingdale, New York or its successor organization;
and

 
B. May not call any consumer in this State whose name is on
the national do-not-call list unless the seller has an
established business relationship with the consumer at the
time the call is made.

 
A person is not in violation of paragraph B if the person
obtained the listing of a consumer in accordance with paragraph A
but called that consumer as the result of a good faith error.

 
4.__Other applicable law.__A transient seller of consumer
merchandise who is a telemarketer, as defined in the Federal
Trade Commission's Telemarketing Sales Rule, 16 Code of Federal
Regulations, Section 310.2, as in effect on January 1, 2000, is
subject to and shall comply with the provisions of chapter 69,
subchapter V.

 
SUMMARY

 
This bill consolidates laws pertaining to transient sellers
into the laws governing door-to-door home repair transient
sellers for ease of administration. It repeals the Maine Revised
Statutes, Title 32, chapter 69-A and incorporates provisions from
that chapter into Title 32, chapter 128, subchapter II. In
addition, the bill clarifies that the registration requirement
for door-to-door home repair sellers is in addition to the
licensure requirements for a trade, occupation or profession for
which a license is required.

 
The bill also clarifies that investment securities that are
registered, or exempt from registration, under the Revised Maine
Securities Act, Maine Revised Statutes, Title 32, chapter 105 are
excluded from the definition of merchandise because they are
subject to regulation by the Maine Securities Division and the
Securities and Exchange Commission.


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