CHAPTER 63

FORMERLY

HOUSE BILL 113

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE BY CREATING THE OFFENSE OF HOME IMPROVEMENT FRAUD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Title 11, Chapter 5, Subchapter III, Subpart 1 of the Delaware Code by adding thereto a new section to read as follows:

"§ 916. Home improvement fraud; class G felony, class A misdemeanor.

(a) For the purpose of this Section, the following definitions shall

apply:

(1) 'Home improvement' means any alteration, repair, addition, modification or improvement to any dwelling or the property on which it is situated, including but not limited to the construction, painting or coating, installation, replacement, or repair of driveways, sidewalks, swimming pools, unattached structures, porches, kitchens, bathrooms, chimneys, fireplaces, stoves, air conditioning or heating systems, hot water heaters, water treatment systems, electrical wiring or systems, plumbing fixtures or systems, doors or windows, roofs, gutters, downspouts, and siding.

(2) A 'home improvement contract' is any agreement, whether written or oral, whereby a person offers or agrees to provide home improvements in exchange for a payment of money regardless of whether any such payments have been made.

(3) 'Contract price means the total price agreed upon under a home improvement contract.

(4) A 'material fact' is a fact that a reasonable person would consider important when purchasing a home improvement of the variety being offered.

(b) A person is guilty of home improvement fraud who enters, or offers to enter, into a home improvement contract as the provider of home improvements to another person, and who with the intent specified in § 841 of this Title:

(1) uses or employs any false pretense or false promise as those acts are defined in §§ 843-44 of this Title;

(1) creates or reinforces a person's impression or belief concerning the condition of any portion of that person's dwelling or property involved in said home improvement contract knowing that the impression or belief is false;

(2) makes any untrue statement of a material fact or omits to state a material fact relating to the terms of the home improvement contract or the existing condition of any portion of the property which is the subject of said contract;

(4) receives money for the purpose of obtaining or paying for services, labor, materials or equipment and intentionally fails to apply such money for such purpose by either failing to substantially complete the home improvement for which the funds were provided or failing to pay for the services, labor, materials or equipment provided incident to such home improvement, and diverts said funds to a use other than that for which the funds were received; or

(5) fails to provide his or her true name, or provides a false name, address or phone number of the business offering said home improvements.

(c) For home improvement fraud under this section, it shall be prima facie evidence of the intent specified in § 841 of this Title that the person offering or agreeing to provide home improvements:

(1) has been previously convicted under this section or under a similar statute of the United States or of any state or of the District of Columbia within ten years of the home improvement contract in question.

(2) is currently subject to any administrative orders, judgments or injunctions that relate to home improvements under Chapter 25, Title 6 of the Delaware Code;

(3) failed to comply with Chapter 44, Title 6 of the Delaware Code with respect to the home improvement contract in question; or

(4) used or threatened the use of force against the person or property of the person purchasing said home improvement and said person is 65 years of age or older.

(d) Home improvement fraud is a class A misdemeanor, unless:

(1) the contract price or the total amount actually paid to the defendant by or on behalf of the person who purchased the home improvement is $500.00 or more;

(2) the person who purchased the home improvement is age 65 or older; or

(3) the defendant has previously been convicted under this section;

in which case it is a class G felony."

Section 2. If any provision of this Act, or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this Act that can be given effect without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.

Approved June 14, 1995