CHAPTER 420

FORMERLY

SENATE BILL NO. 427

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATED TO COMMERCE AND TRADE AND THE DELAWARE RESIDENTIAL WATER TREATMENT SYSTEMS SALES ACT.

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

Section 1. Amend Title 6 of the Delaware Code by adding a new Chapter 25B to read as follows:

"§2501B. Short Title.

This chapter may be cited as the 'Delaware Residential Water Treatment System Sales Act.'

§2502B. Purpose.

The purpose of this chapter is to safeguard the public against deceit and misrepresentation and to ensure, foster and encourage truthful practices and disclosure in the door-to-door sale of residential water treatment systems.

§2503B. Definitions.

(1) 'Residential Water Treatment Systems' shall mean any device that is intended to be connected to the plumbing system of a dwelling in order to filter, purify or otherwise treat potable water.

(2) 'Door-to-door sale' shall have the meaning set forth in §4403 of this Title.

(3) 'Seller' shall have the meaning set forth in §4403 of this Title, except that for the purposes of this chapter the definition of 'door-to-door' sale shall not include an exception for transactions that are subject to a right of rescission under the Consumer Protection Credit Act (15 U.S.C. §1635), as set forth in Section 4403(1)b of this Title.

(4) 'Place of business' shall have the meaning set forth in §4403 of this Title.

(5) 'Certified Laboratory' shall mean a laboratory that is not affiliated with the Seller and that is certified to analyze water samples by the Office of Drinking Water of the Division of Public Health of the State of Delaware. A certified laboratory that is under common ownership with a seller of Residential Water Treatment Systems, which is operated separately from the seller and which provides services to persons other than the seller, shall be deemed to be not affiliated with the Seller.

(6) 'Buyer' shall mean the actual or prospective purchaser of a residential water treatment system, but does not include persons purchasing for resale.

(7) 'Health Related Test' shall mean any test to determine whether a water sample meets a Maximum Contaminent Level (MCL) primary drinking water standard established by the United States Environmental Protection Agency under the Safe Drinking Water Act, or the Office of Drinking Water of the Delaware Division of Public Health.

(8) 'Aesthetic Test' shall mean, but not be limited to, a test of a water sample to determine one or more of the following:

(a) pH (Acidity/Alkalinity),

(b) Hardness (calcium and/or magnesium content),

(c) Iron content,

(d) Total dissolved solids,

(e) Sulphur content,

(f) Clorine taste and odor,

(9) 'Precipitation Test' shall mean a test that uses chemicals or electricity to precipitate hardness or metal ions in a water sample.

(10) 'Heavy Metal Test' shall mean a test that purports to detect the total content of undifferentiated metal elements in a water sample.

§2504B. Unlawful Practices.

Section 2513(b)(2) of this Title notwithstanding, in connection with any door-to-door sale of a residential water treatment system, it is an unlawful practice within the meaning of §2513 of this Title for any seller to:

(1) Fail to display on the person of each salesperson upon each visit to the home of a buyer, an identification badge which conspicuously discloses the name and business address of the Seller and the salesperson.

(2) Fail to furnish each Buyer a business card or other writing that conspicuously discloses the name, address and telephone number of the Seller and the Salesperson.

(3) Perform or display during a visit to the home of a buyer a Precipitation Test or Heavy Metals Test. A seller may perform an in-home Aesthetic Test and furnish to the buyer a document that conspicuously discloses the test results that the Aesthetic Test is related to matters of personal taste and is not related to health. All Health Related Tests must be performed by a Certified Laboratory. Notwithstanding the preceding sentence, a seller may perform an in-home test of a water sample for nitrates, provided that, if the buyer's home is served by public water supplied by a municipal, utility or other community system, the seller also obtains at the seller's cost a test for nitrates from a certified laboratory prior to completion of a sale and installation of a Residential Water Treatment System.

(4) Fail to furnish to the buyer a copy of any report from a certified laboratory that pertains to a buyer's home.

§2505B. In-Home Testing.

(1) A seller may perform an in-home Aesthetic Test and furnish to the buyer a document that conspicuously discloses the test results and that the Aesthetic test is related to matters of personal taste and is not related to health. All Health Related Tests must be performed by a Certified Laboratory. Notwithstanding the preceding sentence, a seller may perform an in-home test of a water sample for nitrates, provided that, if the buyer's home is served by public water supplied by a municipal, utility or other community system, the seller also obtains at the seller's cost a test for nitrates from a certified laboratory prior to completion of a sale and installation of a Residential Water Treatment System.

(2) Performance of any in-home testing not in compliance with this Act shall constitute an unlawful practice within the meaning of §2513 of this title.

§2506B. Enforcement and Remedies.

(1) The Attorney General shall have the same authority to enforce and carry out this subchapter as is granted by §2517 of Title 29 and by §§2511-2527 and §§2531-2536 of this Title.

(2) If a court or tribunal of competent jurisdiction finds that any person has willfully violated this chapter, the Attorney General, upon petition to the court or tribunal, shall recover from the person, on behalf of the State, in addition to all the costs, a civil penalty of not more than $10,000 per violation pursuant to §2513 of this title. If the violation is against a person age 65 or older or a disabled person, an additional civil penalty of not more than $10,000 per violation shall be recovered pursuant to §2581 of this Title. Each day that a willful violation continues shall be considered a separate violation.

(3) For the purpose of this chapter, a willful violation occurs when the party committing the violation knew or should have known that the party's conduct was of a nature prohibited by this chapter.

(4) The remedies provided for in this chapter are not exclusive, and shall be in addition to any other procedures, rights or remedies which exist with respect to any other provisions of law."

Approved July 22, 2002