CHAPTER 203

FORMERLY

HOUSE BILL NO. 379

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 24 AND TITLE 6 OF THE DELAWARE CODE AND VOLUME 69, CHAPTER 64, LAWS OF DELAWARE RELATING TO THE TRANSFER OF THE DIVISION OF CONSUMER AFFAIRS FROM THE DEPARTMENT OF ADMINISTRATIVE SERVICES TO THE DEPARTMENT OF JUSTICE AND THE EXPANSION OF THE ENFORCEMENT POWERS OF CONSUMER PROTECTION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. AMEND Chapter B8, Title 29 of the Delaware Code by redesignating in its entirety § 8823 of Title 29 as § 2517 of Title 29.

Section 2. AMEND § 2517(a) of Title 29 of the Delaware Code by deleting the entire subsection and substituting in lieu thereof the following:

"(a) There are established within the Department of Justice the programs and functions of consumer protection involving all of the power, duties, and functions heretofore performed by the Division of Consumer Affairs of the Department of Administrative Services."

Section 3. AMEND § 2517(c) of Title 29 of the Delaware Code by deleting the entire subsection and substituting in lieu thereof the following:

"(c) The programs and functions of Consumer Affairs shall be performed by the Consumer Protection Division of the Department of Justice. The Attorney General may appoint a Deputy Attorney General to be designated as the Director of the Consumer Protection Division and who will be charged with the furtherance of the programs and functions thereof. In addition to the powers, duties, and authorities enumerated in § 2504 of this Chapter and otherwise provided to the Attorney General by law, the Attorney General, through the Director of the Consumer Protection Division or someone similarly designated, shall have the authority and responsibility:

(1) To issue cease and desist orders against any person, firm, business, corporation, proprietorship or other entity in order to enforce § 2513 of Title 6, § 2532 of Title 6, Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, and Chapter 70 of Title 25, §914 and §915 of Title 11 and all other laws or regulations in which the Division of Consumer Affairs is charged with the enforcement thereof. Such orders may seek and recover, on behalf of the State, monies or property wrongfully obtained as a result of the alleged violations, penalties and/or fines against the violators, those remedies as provided by § 2533 of Title 6 for violations of § 2532 of that Title, reasonable attorneys' fees, investigative costs, to prohibit persons found to have violated the above state statutes from engaging in a specified trade or occupation, and such other relief, remedies or penalties otherwise provided by law appropriate to prevent violators from being unjustly enriched as a result of engaging in the prohibited activities. Any such recovery pursuant to the above, whether by final judgment, settlement or otherwise, shall be deposited in the Consumer Protection Fund as established under § 2527 of Title 6 of the Delaware Code. A cease and desist order shall:

a. Be in writing and shall state what alleged violation(s) have occurred or are about to occur which are the basis for the issuance of such an order;

b. Be served upon the violator(s) and a copy shall be filed in the Office of the Prothonotary of the county where the violator's main place of business in this State is located or in the Office of the Prothonotary of the county where the violation(s) occurred, or both;

c. Upon receipt by the violator(s), result in the immediate cessation by the violator(s) of any activity which has been ordered ceased. Any person, agent or employee of any corporation, partnership or other business who continues to conduct any activity which he or she has been ordered to cease shall be considered to be in contempt of the Consumer Affairs Board and may be proceeded against in accordance with § 8824 of this Title.

(2) To bring an action or actions, in state courts of competent jurisdiction, against any person, firm, business, corporation, proprietorship or other entity in order to enforce § 2513 of Title 6, § 2532 of Title 6, § 2562 of Title 6, Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, § 1311(2) of Title 11, § 1311(3) of Title 11, § 914 of Title 11, § 915 of Title 11, as well as all laws or regulations in which the Division of Consumer Affairs is charged with enforcement thereof. In such actions, the Department of Justice may seek and recover, on behalf of the State, monies or property wrongfully obtained as a result of the alleged violations, penalties and/or fines against violators, remedies as provided by § 2533 of Title 6 for violations of § 2532 of that Title, penalties as provided by § 2563 of Title 6, reasonable attorneys' fees, investigative costs, to prohibit persons found to have violated the above state statutes from engaging in a specified trade or occupation, such other relief, remedies or penalties otherwise provided by law, or seek such relief appropriate to prevent violators from being unjustly enriched as a result of engaging in the prohibited activities. Any such recovery as a result of enforcement under the above listed state statutes, whether by final judgment, settlement or otherwise, shall be deposited In the Consumer Protection Fund as established under § 2527 of Title 6 of the Delaware Code.

(3) To receive and forward to appropriate agencies of the State, for final processing and determination, complaints from any citizen relating to consumer issues which are not otherwise appropriately handled by or within the jurisdiction of the Department of Justice;

(4) To review and make recommendations regarding state policies and programs of primary Importance to consumers or the unmet consumer needs which can be met appropriately through state action;

(5) To review and make recommendations regarding state policies, programs, and operations wherein the view of consumers should be made available to state officials and the manner in which such views can be communicated to appropriate departments and agencies;

(6) To recommend the enactment of such legislation as it deems necessary to protect and promote the interest of the public as consumers,

(7) To cooperate with and provide assistance to federal, state, and local governmental agencies and activities relating to consumer affairs/protection;

(8) To appear before federal, state, and local governmental departments, agencies and commissions, to represent and be heard on behalf of consumer interests;

(9) To cooperate with and establish necessary liaison with both local and national consumer organizations; and

(1) To do such other acts as may be necessary and proper to the exercise of the powers, duties, and functions conferred by this Chapter."

Section 4. AMEND § 2517(d) of Title 29 of the Delaware Code be deleting the words "Director of Consumer Affairs" and insert in lieu thereof the words "Director of Consumer Protection."

Section 5. AMEND § 2517 of Title 29 of the Delaware Code by adding a new subsection, designated as § 2517(e), to read as follows:

"(e) The provisions of this Act shall be liberally construed in order to effectively carry out the purposes of this Act in the interests of consumer protection."

Section 6. Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions of the Division of Consumer Affairs shall continue to exist with respect to such act or acts as hereafter performed by the Department of Justice. Each such appeal shall be perfected in the same manner as heretofore provided by law.

Section 7. All property, including all books, records, papers, maps, charts, plans, equipment, and other materials owned by or in connection with functions transferred by this Act shall, on the effective date of this Act, be delivered into the custody of the Department of Justice. All investigations, petitions, hearings, and legal proceedings pending before, or instituted by the Division of Consumer Affairs, which are not concluded prior to the effective date of this Act, shall continue unabated and remain in full force and effect, notwithstanding the passage of this Act and, where necessary, may be completed by or In the name of the Department of Justice. All orders, rules, consent agreements, and regulations made by or entered into by the Division of Consumer Affairs which are in effect upon the effective date of this Act, shall remain in full force until revoked or modified in accordance with law by the Department of Justice. Notwithstanding this Act, all contracts and obligations of any agency made or undertaken in the performance of a function transferred by this Act, being in force on the effective date of this Act, shall remain in full force and effect and be performed by the Department of Justice.

Section 8. Employees of the Division of Consumer Affairs whose functions are consistent with this Act and which have been transferred by this Act, may elect to be deemed exempt from the Merit System of Personnel Administration as provided in Title 29, Chapter 59 of the Delaware Code. Any employee who does not elect to be exempt from the Merit System of Personnel Administration, shall retain their merit employment status under the Merit System of Personnel Administration as provided under Title 29, Chapter 59 of the Delaware Code until the occurrence of one of the following events:

(1) The promotion of the employee to another position within the Department of Justice or the filing by the employee of a written request to become exempt and subject to the tenure provisions set forth in § 2511 of Title 29 of the Delaware Code. Tenure will be contingent upon satisfactory completion of the requirements set forth in § 2511 of Title 29 of the Delaware Code, including but not limited to review of the employee's work performance and will be further subject to final approval by the Attorney General.

(2) The termination of the employee's employment with the Department of Justice by promotion to another merit exempt Department, by retirement, or otherwise.

Section 9. All definitions and references to the Division of Consumer Affairs appearing in any other act of law shall, to the extent consistent with this Act, be construed as referring and relating to the Division of Consumer Protection of the Department of Justice.

Section 10. All definitions and references to Director of Consumer Affairs or agents thereof in any other act of law shall be construed as referring or relating to such person or persons within the Department of Justice whose powers, duties, and functions are consistent with those transferred by this Act

Section 11. Any misnomer shall not defeat or annul any gift, grant, devise or bequest if it sufficiently appears by the will, conveyance or other writing that the party making the same intended to pass and convey thereby to the Division of Consumer Affairs which, by this Act, the powers, duties and functions have been transferred, the estate or Interest therein expressed or described.

Section 12. All funds heretofore awarded by Federal Grantor agencies or heretofore authorized in Capitol Improvements or Budget Acts of the State of Delaware or any other funds heretofore appropriated to the Department of Administrative Services for the Division of Consumer Affairs which remain unexpended or unencumbered on the effective date of this Act and which are not otherwise specifically transferred by other laws which may be enacted prior to or subsequent to the effective date of this Act are hereby transferred to the Department of Justice.

Section 13. AMEND § 2527(f) of Title 6 of the Delaware Code by deleting it in its entirety and redesignating § 2527(g) as § 2527(f).

Section 14. In order to facilitate and fund the initial costs of establishing the Consumer Protection Division of the Department of Justice, a sum of three hundred thousand dollars ($300,000) from the Investor Protection Fund, existing pursuant to § 7329 of Title 6 of the Delaware Code, shall be transferred to the Consumer Protection Fund (§ 2527 of Title 6 of the Delaware Code). This fund shall support the costs of salary, other employment costs, and other non-salary expenses related to consumer protection.

Section 15. In order to facilitate a more proactive approach to consumer protection, four additional investigator positions are hereby authorized for the Department of Justice, Office of the Attorney General (15-01-01) and shall be funded by the Consumer Protection Fund.

Section 16. AMEND Volume 69, Chapter 64, Laws of Delaware, by adding on line 16, page 13 of said law the figure "4.0" under the heading "ASF Personnel" and changing the figure "200.0" under the heading "ASF Line Item" to "300.0". Further Amend Volume 69, Chapter 64, Laws of Delaware, by recomputing all totals and sub-totals as they appear in said law.

Section 17. AMEND § 2527 (a) of Title 6 of the Delaware Code by deleting the words "to this subchapter" and substituting in lieu thereof the words "§ 2517(c) of Title 29."

Section 18. AMEND § 2527(b) of Title 6 of the Delaware Code by deleting the words "court order or judgment in a consumer fraud" and substituting in lieu thereof the words "actions brought pursuant to § 2517(c) of Title 29."

Section 19. AMEND § 2527(c) of Title the words "§ 2517(c) of Title 29," after "this."

Section 20. AMEND § 2527(c) of Title the number 1200,000," and substituting hundred thousand dollars." 6 of the Delaware Code by inserting the word "under" but before the word 6 of the Delaware Code by deleting in lieu thereof the words "three

Section 21. AMEND § 2527(d) of Title 6 of the Delaware Code by deleting the word "fraud" and substituting in lieu thereof the word "protection."

Section 22. AMEND § 2533 of Title 6 of the Delaware Code by adding a new subsection, to be designated as § 2533(d), to read as follows:

"(d) The Attorney General shall have standing to seek, on behalf of the State, any of the remedies enumerated in this section for violations of § 2532 against effected persons including but not limited to consumer purchasers."

Section 23. AMEND § 2513 of Title 6 of the Delaware Code by adding a new subsection, to be designated as § 2513(c), to read as follows:

"(c) If a court or tribunal of competent jurisdiction finds that any person has willfully violated this section, the Attorney General, upon petition to the court or tribunal, shall recover from the person, on behalf of the State, a civil penalty of not more than ten thousand dollars per violation. For the purposes of this section, a willful violation occurs when the party committing the violation knew or should have known that the conduct was of the nature prohibited by this section."

Section 24. All other laws or parts of laws now in effect that are inconsistent with this Act are hereby repealed, superseded, modified or

amended so far as necessary to conform, and give full force and effect to this Act.

Section 25. If any provision of this Act or application thereof to any person, entity or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act and to that end the provisions of this Act are declared severable.

Section 26. This Act shall be effective immediately after its enactment into law.

Approved April 11, 1994.