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ARTICLE 1
COLORADO CONSUMER PROTECTION ACT
(Includes changes from 2006 Session)
PART 1 CONSUMER PROTECTION- GENERAL
6-1-101. Short title.
6-1-102. Definitions.
6-1-103. Attorney general and district attorneys concurrently responsible for enforcement.
6-1-104. Cooperative reporting.
6-1-105. Deceptive trade practices.
6-1-105.5. Hearing aid dealers - deceptive trade practices. (Repealed)
6-1-106. Exclusions.
6-1-107. Powers of attorney general and district attorneys.
6-1-108. Subpoenas - hearings - rules.
6-1-109. Remedies.
6-1-110. Restraining orders - injunctions - assurances of discontinuance.
6-1-111. Information and evidence confidential and inadmissible - when.
6-1-112. Civil penalties.
6-1-113. Damages.
6-1-114. Criminal penalties.
6-1-115. Limitations.
PART 2 AUTO RENTAL CONTRACTS--
COLLISION DAMAGE WAIVERS
6-1-201. Definitions.
6-1-202. Prohibited act.
6-1-203. Collision damage waiver form - requirements - failure to comply.
6-1-204. Prohibited exclusion.
6-1-205. Information to be disclosed in advertisements for rental agreements for rental motor vehicles.
PART 3 PREVENTION OF
TELEMARKETING FRAUD
6-1-301. Legislative declaration.
6-1-302. Definitions.
6-1-303. Registration of commercial telephone sellers.
6-1-304. Unlawful telemarketing practices.
6-1-305. Penalties.
6-1-306. Repeal. (Repealed)
PART 4 WARRANTIES FOR ASSISTIVE
TECHNOLOGY ACT
6-1-401. Legislative intent.
6-1-402. Definitions.
6-1-403. Express warranty required - authorized servicers.
6-1-404. Remedies.
6-1-405. Remedies for consumers - conditions.
6-1-406. Remedies for consumers of leased wheelchairs - conditions.
6-1-407. Resale of a returned wheelchair - disclosure required.
6-1-408. Other remedies - waiver of rights void.
6-1-409. Fraudulent acts.
6-1-410. Arbitration.
6-1-411. Defect notification.
6-1-412. Disclosures.
PART 5 WARRANTIES FOR FACILITATIVE
TECHNOLOGY ACT
6-1-501. Definitions.
6-1-502. Express warranty required - authorized servicers.
6-1-503. Remedies.
6-1-504. Remedies for consumers - conditions.
6-1-505. Remedies for consumers of leased facilitative devices - conditions.
6-1-506. Resale of a returned facilitative device - disclosure required.
6-1-507. Other remedies - waiver of rights void - limitation of coverage.
6-1-508. Fraudulent acts.
6-1-509. Arbitration.
6-1-510. Defect notification.
6-1-511. Disclosures.
PART 6 SELLERS OF MANUFACTURED HOMES -
REGISTRATION, ESCROW AND BONDING, AND CONTRACT
REQUIREMENTS
6-1-601 to 6-1-606. Repealed
PART 7 SPECIFIC PROVISIONS
6-1-701. Registered hearing aid providers - deceptive trade practices.
6-1-702. Telephone and facsimile solicitations - deceptive trade practices.
6-1-703. Time shares - deceptive trade practices.
6-1-704. Health clubs - deceptive trade practices.
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6-1-705. Dance studios - deceptive trade practices.
6-1-706. Buyers' clubs - deceptive trade practices.
6-1-707. Use of title or degree - deceptive trade practice.
6-1-708. Motor vehicle sales and leases - deceptive trade practices.
6-1-709. Sales of manufactured homes - deceptive trade practices.
6-1-710. Installation or reinstallation of false air bag - deceptive trade practices - criminal liability.
6-1-711. Restrictions on credit card receipts - legislative declaration - application - definition.
6-1-712. Discount health plan and cards - deceptive trade practices
6-1-713. Disposal of personal identifying documents - policy
6-1-714. Unfair drug pricing practice – definitions – deceptive trade practice
6-1-715. Confidentiality of social security numbers (Effective January 1, 2007)
6-1-716. Notification of security breach (Effective September 1, 2006)
PART 8 SWEEPSTAKES AND CONTESTS
6-1-801. Legislative finding, declaration, and intent.
6-1-802. Definitions.
6-1-803. Prohibited practices and required disclosures.
6-1-804. Exemptions.
PART 9 COLORADO NO-CALL LIST ACT
6-1-901. Short title.
6-1-902. Legislative declaration.
6-1-903. Definitions.
6-1-904. Unlawful to make telephone solicitations to subscribers on the Colorado no-call list - requirements for telephone solicitations generally.
6-1-905. Establishment and operation of a Colorado no-call list.
6-1-906. Enforcement - penalties - defenses.
6-1-907. Acceptance of gifts, grants, and donations.
6-1-908. Severability.
PART 10
RESTRICTIONS ON USE OF LOAN INFORMATION – SOLICITATIONS
6-1-1001. Restrictions on use of loan information for solicitations
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PART 11
COLORADO FORECLOSURE PROTECTION ACT
SUBPART 1
GENERAL PROVISIONS
6-1-1101. Short title
6-1-1102. Legislative declaration
6-1-1103. Definitions
SUBPART 2
FORECLOSURE CONSULTANTS
6-1-1104. Foreclosure consulting contract
6-1-1105. Right of cancellation
6-1-1106. Waiver of rights – void
6-1-1107. Prohibited acts
6-1-1108. Criminal penalties
6-1-1109. Unconscionability
6-1-1110. Language
SUBPART 3
EQUITY PURCHASERS
6-1-1111. Written contract required
6-1-1112. Written contract – contents – notice
6-1-1113. Cancellation
6-1-1114. Notice of cancellation
6-1-1115. Options through reconveyance
6-1-1116. Waiver of rights – void
6-1-1117. Prohibited conduct
6-1-1118. Criminal penalties
6-1-1119. Unconscionability
6-1-1120. Language
PART 1
CONSUMER PROTECTION -- GENERAL
6-1-101. Short title. This article shall be known and may be cited as the "Colorado Consumer Protection Act."
6-1-102. Definitions. As used in this article, unless the context otherwise requires:
(1) "Advertisement" includes the attempt by publication, dissemination, solicitation, or circulation, visual, oral, or written, to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any property.
(2) "Article" means a product as distinguished from a trademark, label, or distinctive dress in packaging.
(2.5) "Business day" means any calendar day except Sunday, New Year's day, the third Monday in January observed as the birthday of Dr. Martin Luther King, Jr., Washington-Lincoln day, Memorial day, Independence day, Labor day, Columbus day, Veterans' day, Thanksgiving, and Christmas.
(2.7) "Buyers' club" means any person engaged in advertising or selling memberships that provide an exclusive right to members to purchase goods, food, services, or property at purported discount prices.
(3) "Certification mark" means a mark used in connection with the goods or services of a person other than the certifier to indicate geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of the goods or services or to indicate that the work or labor on the goods or services was performed by members of a union or other organization.
(4) "Collective mark" means a mark used by members of a cooperative, association, or other collective group or organization to identify goods or services and distinguish them from those of others, or to indicate membership in the collective group or organization.
(4.1) "Dance studio" means any person engaged in the advertisement or sale of dance studio services.
(4.2) "Dance studio services" means instruction, training, or assistance in dancing; the use of dance studio facilities; membership in any group, club, or association formed by a dance studio; and participation in dance competitions, dance showcases, trips, tours, parties, and other organized events and related travel arrangements.
(4.3) "Discount health plan" means a program evidenced by a membership agreement, contract, card, certificate, device, or mechanism, which offers health care services, as defined in section 10-16-102 (22), C.R.S., or related products including, but not limited to, prescription drugs and medical equipment, at purported discounted rates from health care providers advertised as participating in the program. A "discount health plan" does not include a program in which a participating provider has agreed, as a condition of his or her participation in the program, to negotiate the prices to be charged for his or her services directly with consumers in the program and the provider is not required to offer discounted prices for his or her services as part of the program.
(4.4) "Elderly person" means a person sixty years of age or older.
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(4.5) "Food" means any raw, cooked, or processed edible substance, beverage, or ingredient used or intended for use or for sale in whole or part for human consumption.
(4.6) "Health club" means an establishment which provides health club services or facilities which purport to improve or maintain the user's physical condition or appearance through exercise. The term may include, but shall not be limited to, a spa, exercise club, exercise gym, health studio, or playing courts. The term shall not apply to any of the following:
(a) Any establishment operated by a nonprofit organization or public or private school, college, or university;
(b) Any establishment operated by the federal government, the state of Colorado, or any of the state's political subdivisions;
(c) Any establishment which does not provide health club services or facilities as its primary purpose or business; or
(d) Health care facilities licensed or certified by the department of public health and environment pursuant to its authority under section 25-1.5-103, C.R.S.
(4.7) "Health club facilities" means equipment, physical structures, and other tangible property utilized by a health club to conduct its business. The term may include, but shall not be limited to, saunas, whirlpool baths, gymnasiums, running tracks, playing courts, swimming pools, shower areas, and exercise equipment.
(4.8) "Health club services" means services, privileges, or rights offered for sale or provided by a health club.
(4.9) "Manufactured home" shall have the same meaning as set forth in section 42-1-102 (106) (b), C.R.S.
(5) "Mark" means a word, name, symbol, device, or any combination thereof in any form or arrangement.
(5.5) "Motor vehicle" shall have the same meaning as set forth in section 12-6-102 (12), C.R.S.
(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, unincorporated association, or two or more thereof having a joint or common interest, or any other legal or commercial entity.
(7) "Promoting a pyramid promotional scheme" means inducing one or more other persons to become participants, or attempting to so induce, or assisting another in promoting a pyramid promotional scheme by means of references or otherwise.
(8) "Property" means any real or personal property, or both real and personal property, intangible property, or services.
(9) "Pyramid promotional scheme" means any program utilizing a pyramid or chain process by which a participant in the program gives a valuable consideration in excess of fifty dollars for the opportunity or right to receive compensation or other things of value in return for inducing other persons to become participants for the purpose of gaining new participants in the program. Ordinary sales of goods or services to persons who are not purchasing in order to participate in such a scheme are not within this definition.
(10) "Sale" means any sale, offer for sale, or attempt to sell any real or personal property for any consideration.
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(11) "Service mark" means a mark used by a person to identify services and to distinguish them from the services of others.
(11.2) Repealed.
(11.5) "Time share" means a time share estate, as defined in section 38-33-110 (5), C.R.S., a time share use, as defined in section 12-61-401 (4), C.R.S., or any campground or recreational membership which does not constitute the transfer of an interest in real property.
(12) "Trademark" means a mark used by a person to identify goods and to distinguish them from the goods of others.
(13) "Trade name" means a word, name, symbol, device, or any combination thereof in any form or arrangement used by a person to identify his business, vocation, or occupation, and to distinguish it from the business, vocation, or occupation of others.
(13.5) "Unavoidable delay" means inclement weather and other events outside the control of the buyer or seller.
(14) "Used motor vehicle" shall have the same meaning as set forth in section 42-6-201 (8), C.R.S.
6-1-103. Attorney general and district attorneys concurrently responsible for enforcement. The attorney general and the district attorneys of the several judicial districts of this state are concurrently responsible for the enforcement of this article. Until the Colorado supreme court adopts a venue provision relating to this article, actions instituted pursuant to this article may be brought in the county where an alleged deceptive trade practice occurred or where any portion of a transaction involving an alleged deceptive trade practice occurred, or in the county where the principal place of business of any defendant is located, or in the county in which any defendant resides.
6-1-104. Cooperative reporting. The district attorneys may cooperate in a statewide reporting system by receiving, on forms provided by the attorney general, complaints from persons concerning deceptive trade practices listed in section 6-1-105 and part 7 of this article and transmitting such complaints to the attorney general.
6-1-105. Deceptive trade practices. (1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such person:
(a) Knowingly passes off goods, services, or property as those of another;
(b) Knowingly makes a false representation as to the source, sponsorship, approval, or certification of goods, services, or property;
(c) Knowingly makes a false representation as to affiliation, connection, or association with or certification by another;
(d) Uses deceptive representations or designations of geographic origin in connection with goods or services;
(e) Knowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith;
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(f) Represents that goods are original or new if he knows or should know that they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
(g) Represents that goods, food, services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another;
(h) Disparages the goods, services, property, or business of another by false or misleading representation of fact;
(i) Advertises goods, services, or property with intent not to sell them as advertised;
(j) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(k) Advertises under the guise of obtaining sales personnel when in fact the purpose is to first sell a product or service to the sales personnel applicant;
(l) Makes false or misleading statements of fact concerning the price of goods, services, or property or the reasons for, existence of, or amounts of price reductions;
(m) Fails to deliver to the customer at the time of an installment sale of goods or services a written order, contract, or receipt setting forth the name and address of the seller, the name and address of the organization which he represents, and all of the terms and conditions of the sale, including a description of the goods or services, stated in readable, clear, and unambiguous language;
(n) Employs "bait and switch" advertising, which is advertising accompanied by an effort to sell goods, services, or property other than those advertised or on terms other than those advertised and which is also accompanied by one or more of the following practices:
(I) Refusal to show the goods or property advertised or to offer the services advertised;
(II) Disparagement in any respect of the advertised goods, property, or services or the terms of sale;
(III) Requiring tie-in sales or other undisclosed conditions to be met prior to selling the advertised goods, property, or services;
(IV) Refusal to take orders for the goods, property, or services advertised for delivery within a reasonable time;
(V) Showing or demonstrating defective goods, property, or services which are unusable or impractical for the purposes set forth in the advertisement;
(VI) Accepting a deposit for the goods, property, or services and subsequently switching the purchase order to higher-priced goods, property, or services; or
(VII) Failure to make deliveries of the goods, property, or services within a reasonable time or to make a refund therefor;
(o) Knowingly fails to identify flood-damaged or water-damaged goods as to such damages;
(p) Solicits door-to-door as a seller, unless the seller, within thirty seconds after beginning the conversation, identifies himself or herself, whom he or she represents, and the purpose of the call;
(p.3) to (p.7) Repealed.
(q) Contrives, prepares, sets up, operates, publicizes by means of advertisements, or promotes any pyramid promotional scheme;
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(r) Advertises or otherwise represents that goods or services are guaranteed without clearly and conspicuously disclosing the nature and extent of the guarantee, any material conditions or limitations in the guarantee which are imposed by the guarantor, the manner in which the guarantor will perform, and the identity of such guarantor. Any representation that goods or services are "guaranteed for life" or have a "lifetime guarantee" shall contain, in addition to the other requirements of this paragraph (r), a conspicuous disclosure of the meaning of "life" or "lifetime" as used in such representation (whether that of the purchaser, the goods or services, or otherwise). Guarantees shall not be used which under normal conditions could not be practically fulfilled or which are for such a period of time or are otherwise of such a nature as to have the capacity and tendency of misleading purchasers or prospective purchasers into believing that the goods or services so guaranteed have a greater degree of serviceability, durability, or performance capability in actual use than is true in fact. The provisions of this paragraph (r) apply not only to guarantees but also to warranties, to disclaimer of warranties, to purported guarantees and warranties, and to any promise or representation in the nature of a guarantee or warranty; however, such provisions do not apply to any reference to a guarantee in a slogan or advertisement so long as there is no guarantee or warranty of specific merchandise or other property.
(s) and (t) Repealed.
(u) Fails to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction;
(v) Disburses funds in connection with a real estate transaction in violation of section 38-35-125 (2), C.R.S.;
(w) Repealed.
(x) Violates the provisions of sections 6-1-203 to 6-1-205 or of part 7 of this article;
(y) Fails, in connection with any solicitation, oral or written, to clearly and prominently disclose immediately adjacent to or after the description of any item or prize to be received by any person the actual retail value of each item or prize to be awarded. For the purposes of this paragraph (y), the actual retail value is the price at which substantial sales of the item were made in the person's trade area or in the trade area in which the item or prize is to be received within the last ninety days or, if no substantial sales were made, the actual cost of the item or prize to the person on whose behalf any contest or promotion is conducted; except that, whenever the actual cost of the item to the provider is less than fifteen dollars per item, a disclosure that "actual cost to the provider is less than fifteen dollars" may be made in lieu of disclosure of actual cost. The provisions of this paragraph (y) shall not apply to a promotion which is soliciting the sale of a newspaper, magazine, or periodical of general circulation, or to a promotion soliciting the sale of books, records, audio tapes, compact discs, or videos when the promoter allows the purchaser to review the merchandise without obligation for at least seven days and provides a full refund within thirty days after the receipt of the returned merchandise or when a membership club operation is in conformity with rules and regulations of the federal trade commission contained in 16 C.F.R. 425.
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(z) Refuses or fails to obtain all governmental licenses or permits required to perform the services or to sell the goods, food, services, or property as agreed to or contracted for with a consumer;
(aa) Fails, in connection with the issuing, making, providing, selling, or offering to sell of a motor vehicle service contract, to comply with the provisions of article 11 of title 42, C.R.S.;
(bb) Repealed.
(cc) Engages in any commercial telephone solicitation which constitutes an unlawful telemarketing practice as defined in section 6-1-304;
(dd) Repealed.
(ee) Intentionally violates any provision of article 10 of title 5, C.R.S.;
(ee.5) to (ff) Repealed.
(gg) Fails to disclose or misrepresents to another person, a secured creditor, or an assignee by whom such person is retained to repossess personal property whether such person is bonded in accordance with section 4-9-629, C.R.S., or fails to file such bond with the attorney general;
(hh) Violates any provision of article 16 of this title;
(ii) Repealed.
(jj) Represents to any person that such person has won or is eligible to win any award, prize, or thing of value as the result of a contest, promotion, sweepstakes, or drawing, or that such person will receive or is eligible to receive free goods, services, or property, unless, at the time of the representation, the person has the present ability to supply such award, prize, or thing of value;
(kk) Violates any provision of article 6 of this title;
(ll) Knowingly makes a false representation as to the results of a radon test or the need for radon mitigation;
(mm) Violates section 35-27-113 (3) (e), (3) (f), or (3) (i), C.R.S.;
(nn) Repealed.
(oo) Fails to comply with the provisions of section 35-80-108 (1) (a), (1) (b), or (2) (f), C.R.S.;
(pp) Violates article 9 of title 42, C.R.S.;
(qq) Repealed.
(rr) Violates the provisions of part 8 of this article;
(ss) Violates any provision of part 33 of article 32 of title 24, C.R.S., that applies to the installation of manufactured homes;
(tt) Violates any provision of part 9 of this article;
(uu) Violates section 38-40-105, C.R.S.
(vv) Violates section 12-55-110.3, C.R.S
(ww) Violates any provision of section 6-1-702.
(2) Evidence that a person has engaged in a deceptive trade practice shall be prima facie evidence of intent to injure competitors and to destroy or substantially lessen competition.
(3) The deceptive trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.
(xx) Violates any provision of part 11 of this article.
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6-1-105.5. Hearing aid dealers -- deceptive trade practices. (Repealed)
6-1-106. Exclusions. (1) This article does not apply to:
(a) Conduct in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency;
(b) Publishers, including outdoor advertising media, advertising agencies, broadcasters, or printers engaged in the dissemination of information or reproduction of printed or pictorial matter who publish, broadcast, or reproduce material without knowledge of its deceptive character; or
(c) Actions or appeals pending on or before July 1, 1969.
(2) This article shall not be interpreted to apply to the use by a person of any service mark, trademark, certification mark, collective mark, trade name, or other trade identification which was used and not abandoned prior to July 1, 1969, if the use was in good faith and is otherwise lawful except for the provisions of this article.
6-1-107. Powers of attorney general and district attorneys. (1) When the attorney general or a district attorney has cause to believe that any person has engaged in or is engaging in any deceptive trade practice listed in section 6-1-105 or part 7 of this article, the attorney general or district attorney may:
(a) Request such person to file a statement or report in writing under oath or otherwise, on forms prescribed by him, as to all facts and circumstances concerning the sale or advertisement of property by such person and any other data and information he deems necessary;
(b) Examine under oath any person in connection with the sale or advertisement of any property;
(c) Examine any property or sample thereof, record, book, document, account, or paper he deems necessary;
(d) Make true copies, at the expense of the attorney general or district attorney, of any record, book, document, account, or paper examined pursuant to paragraph (c) of this subsection (1), which copies may be offered into evidence in lieu of the originals thereof in actions brought pursuant to sections 6-1-109 and 6-1-110; and
(e) Pursuant to any order of any district court, impound any sample of property which is material to such deceptive trade practice and retain the same in his possession until completion of all proceedings undertaken under this article. An order shall not be issued pursuant to this paragraph (e) without full opportunity given to the accused to be heard and unless the attorney general or district attorney has proven by clear and convincing evidence that the business activities of the person to whom an order is directed will not be impaired thereby.
(2) Nothing in subsection (1) of this section shall be construed to allow a district attorney to enforce the provisions of this article beyond the territorial limits of his judicial district, unless the alleged deceptive trade practice or any portion of a transaction involving an alleged deceptive trade practice occurred in said district attorney's judicial district, or unless the
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principal place of business of any defendant is located in said district attorney's district, or unless any defendant resides in said district attorney's judicial district.
6-1-108. Subpoenas -- hearings -- rules. (1) The attorney general or a district attorney, in addition to other powers conferred upon him by this article, may issue subpoenas to require the attendance of witnesses or the production of documents, administer oaths, conduct hearings in aid of any investigation or inquiry, and prescribe such forms and promulgate such rules as may be necessary to administer the provisions of this article.
(2) Service of any notice or subpoena may be made in the manner prescribed by law or the Colorado rules of civil procedure.
6-1-109. Remedies. (1) If any person fails to cooperate with any investigation pursuant to section 6-1-107 or fails to obey any subpoena pursuant to section 6-1-108, the attorney general or a district attorney may apply to the appropriate district court for an appropriate order to effect the purposes of this article. The application shall state that there are reasonable grounds to believe that the order applied for is necessary to terminate or prevent a deceptive trade practice as defined in this article. If the court is satisfied that reasonable grounds exist, the court in its order may:
(a) Grant injunctive relief restraining the sale or advertisement of any property by such person;
(b) Require the attendance of or the production of documents by such person, or both;
(c) Grant such other or further relief as may be necessary to obtain compliance by such person.
6-1-110. Restraining orders -- injunctions -- assurances of discontinuance. (1) Whenever the attorney general or a district attorney has cause to believe that a person has engaged in or is engaging in any deceptive trade practice listed in section 6-1-105 or part 7 of this article, the attorney general or district attorney may apply for and obtain, in an action in the appropriate district court of this state, a temporary restraining order or injunction, or both, pursuant to the Colorado rules of civil procedure, prohibiting such person from continuing such practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by such person of any such deceptive trade practice or which may be necessary to completely compensate or restore to the original position of any person injured by means of any such practice or to prevent any unjust enrichment by any person through the use or employment of any deceptive trade practice.
(2) Where the attorney general or a district attorney has authority to institute a civil action or other proceeding pursuant to the provisions of this article, the attorney general or district attorney may accept, in lieu thereof or as a part thereof, an assurance of discontinuance of any deceptive trade practice listed in section 6-1-105 or part 7 of this article. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation and any action or proceeding by the attorney general or a district attorney and any amount necessary to restore to any person any money or property that may have been
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acquired by such alleged violator by means of any such deceptive trade practice. Any such assurance of discontinuance accepted by the attorney general or a district attorney and any such stipulation filed with the court as a part of any such action or proceeding shall be a matter of public record unless the attorney general or the district attorney determines, at his or her discretion, that it will be confidential to the parties to the action or proceeding and to the court and its employees. Upon the filing of a civil action by the attorney general or a district attorney alleging that a confidential assurance of discontinuance or stipulation accepted pursuant to this subsection (2) has been violated, said assurance of discontinuance or stipulation shall thereupon be deemed a public record and open to inspection by any person. Proof by a preponderance of the evidence of a violation of any such assurance or stipulation shall constitute prima facie evidence of a deceptive trade practice for the purposes of any civil action or proceeding brought thereafter by the attorney general or a district attorney, whether a new action or a subsequent motion or petition in any pending action or proceeding.
(3) When the attorney general or a district attorney shows by a preponderance of evidence that a mortgage broker or mortgage originator has continued to conduct the business of originating mortgage loans in violation of section 38-40-105, C.R.S., after having been previously enjoined from practices in violation of such section, the attorney general or district attorney may, in addition to any other remedies, apply for and obtain, in the court that has previously issued an injunction, a further injunction against continuing to participate in the business of originating mortgage loans for up to two years.
6-1-111. Information and evidence confidential and inadmissible -- when. (1) Any testimony obtained by the attorney general or a district attorney pursuant to compulsory process under this article or any information derived directly or indirectly from such testimony shall not be admissible in evidence in any criminal prosecution against the person so compelled to testify. The provisions of this subsection (1) shall not be construed to prevent any law enforcement officer from independently producing or obtaining the same or similar facts, information, or evidence for use in any criminal prosecution.
(2) Subject to the provisions of section 6-1-110 (2), the records of investigations or intelligence information of the attorney general or a district attorney obtained under this article may be deemed public records available for inspection by the general public at the discretion of the attorney general or the district attorney. This subsection (2) shall not be construed to prevent the attorney general or a district attorney from issuing public statements describing or warning of any course of conduct or any conspiracy which constitutes a deceptive trade practice, whether on a local, statewide, regional, or nationwide basis.
6-1-112. Civil penalties. (1) Any person who violates or causes another to violate any provision of this article shall forfeit and pay to the general fund of this state a civil penalty of not more than two thousand dollars for each such violation. For purposes of this subsection (1), a violation of any provision shall constitute a separate violation with respect to each consumer or transaction involved; except that the maximum civil penalty shall not exceed one hundred thousand dollars for any related series of violations.
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(2) Any person who violates or causes another to violate any court order or injunction issued pursuant to this article shall forfeit and pay to the general fund of this state a civil penalty of not more than ten thousand dollars for each such violation. For the purposes of this section, the court issuing the order or injunction shall retain jurisdiction, and the cause shall be continued. Upon violation, the attorney general or a district attorney may petition the court for the recovery of the civil penalty. Such civil penalty shall be in addition to any other penalty or remedy available for the enforcement of the provisions of this article and any court order or injunction.
(3) Any person who violates or causes another to violate any provision of this article, where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this subsection (3), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved.
6-1-113. Damages. (1) The provisions of this article shall be available in a civil action for any claim against any person who has engaged in or caused another to engage in any deceptive trade practice listed in this article. An action under this section shall be available to any person who:
(a) Is an actual or potential consumer of the defendant's goods, services, or property and is injured as a result of such deceptive trade practice, or is a residential subscriber, as defined in section 6-1-903 (9), who receives unlawful telephone solicitation, as defined in section 6-1-903 (10); or
(b) Is any successor in interest to an actual consumer who purchased the defendant's goods, services, or property; or
(c) In the course of the person's business or occupation, is injured as a result of such deceptive trade practice.
(2) Except in a class action or a case brought for a violation of section 6-1-709, any person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice listed in this article shall be liable in an amount equal to the sum of:
(a) The greater of:
(I) The amount of actual damages sustained; or
(II) Five hundred dollars; or
(III) Three times the amount of actual damages sustained, if it is established by clear and convincing evidence that such person engaged in bad faith conduct; plus
(b) In the case of any successful action to enforce said liability, the costs of the action together with reasonable attorney fees as determined by the court.
(2.3) As used in subsection (2) of this section, "bad faith conduct" means fraudulent, willful, knowing, or intentional conduct that causes injury.
(2.5) Notwithstanding the provisions of subsection (2) of this section, in the case of any violation of section 6-1-709, in addition to interest, costs of the action, and reasonable attorney fees as determined by the court, the prevailing party shall be entitled only to damages in an amount sufficient to refund moneys actually paid for a manufactured home not delivered in accordance with the provisions of section 6-1-709.
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(2.7) Notwithstanding the provisions of subsection (2) of this section, in the case of any violation of section 6-1-105 (1) (ss), the court may award reasonable costs of the action and attorney fees and interest, and in addition, the prevailing party shall be entitled only to damages in an amount sufficient to refund moneys actually paid for the installation of a manufactured home not installed in accordance with the provisions of part 33 of article 32 of title 24, C.R.S., that apply to the installation of manufactured homes.
(3) Any person who brings an action under this article that is found by the court to be groundless and in bad faith or for the purpose of harassment shall be liable to the defendant for the costs of the action together with reasonable attorney fees as determined by the court.
(4) Costs and attorney fees shall be awarded to the attorney general or a district attorney in all actions where the attorney general or the district attorney successfully enforces this article.
6-1-114. Criminal penalties. Upon a first conviction any person who promotes a pyramid promotional scheme in this state or who violates any provision of section 6-1-701 is guilty of a class 1 misdemeanor, as defined in section 18-1.3-501, C.R.S., and upon a second or subsequent conviction is guilty of a class 6 felony, as defined in section 18-1.3-401, C.R.S.
6-1-115. Limitations. All actions brought under this article must be commenced within three years after the date on which the false, misleading, or deceptive act or practice occurred or the date on which the last in a series of such acts or practices occurred or within three years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice. The period of limitation provided in this section may be extended for a period of one year if the plaintiff proves that failure to timely commence the action was caused by the defendant engaging in conduct calculated to induce the plaintiff to refrain from or postpone the commencement of the action.
PART 2
AUTO RENTAL CONTRACTS -- COLLISION DAMAGE WAIVERS
6-1-201. Definitions. As used in this part 2, unless the context otherwise requires:
(1) "Collision damage waiver" means any contract or contractual provision, whether separate from or a part of a motor vehicle rental agreement, whereby the lessor agrees, for a charge, to waive any and all claims against the lessee for any damages to the rental motor vehicle during the term of the rental agreement.
(2) "Lessee" means any person or organization obtaining the use of a rental motor vehicle from a lessor under the terms of a rental agreement.
(3) "Lessor" means any person or organization in the business of providing rental motor vehicles to the public.
(4) "Private passenger type automobile or vehicle" means a motor vehicle of the private passenger or station wagon type, including passenger vans and minivans that are primarily for the transport of persons.
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(5) "Rental agreement" means a written agreement setting forth the terms and conditions governing the use of a rental motor vehicle by a lessee for a period of less than one hundred eighty days.
(6) "Rental motor vehicle" means a private passenger type automobile or vehicle which, upon execution of a rental agreement, is made available to a lessee for its use.
6-1-202. Prohibited act. No lessor engaged in renting motor vehicles may sell to any lessee renting a motor vehicle in this state a collision damage waiver as part of the rental contract unless the lessor first gives the lessee written disclosure, as provided in section 6-1-203 of the terms and provisions of such waiver.
6-1-203. Collision damage waiver form -- requirements -- failure to comply. (1) Any collision damage waiver form shall conform to the following requirements:
(a) It shall be understandable and written in simple and readable plain language;
(b) The terms of such collision damage waiver, including, but not limited to, any conditions or exclusions applicable to the collision damage waiver, shall be prominently displayed;
(c) All restrictions, conditions, or provisions in, or endorsed on, the collision damage waiver shall be printed in type at least as large as brevier or ten-point type;
(d) The collision damage waiver shall include a statement of the total charge for the anticipated rental period or the anticipated total daily charge; and
(e) The agreement containing the collision damage waiver shall display the following notice on the face of the agreement, set apart and in bold-faced type, and in type at least as large as ten-point type:
"NOTICE: THIS CONTRACT OFFERS, FOR AN ADDITIONAL CHARGE, A COLLISION DAMAGE WAIVER TO COVER YOUR RESPONSIBILITY FOR DAMAGE TO THE VEHICLE. YOU ARE ADVISED NOT TO SIGN THIS WAIVER IF YOU HAVE RENTAL VEHICLE COLLISION COVERAGE PROVIDED BY CERTAIN GOLD OR PLATINUM CREDIT CARDS OR COLLISION INSURANCE ON YOUR OWN VEHICLE. BEFORE DECIDING WHETHER TO PURCHASE THE COLLISION DAMAGE WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOUR OWN VEHICLE INSURANCE AFFORDS YOU COVERAGE FOR DAMAGE TO THE RENTAL VEHICLE AND THE AMOUNT OF THE DEDUCTIBLE UNDER YOUR OWN INSURANCE COVERAGE. THE PURCHASE OF THIS COLLISION DAMAGE WAIVER IS NOT MANDATORY AND MAY BE WAIVED."
(2) The failure by a lessor to comply with any provision of this section is a deceptive trade practice under the provisions of this article.
6-1-204. Prohibited exclusion. (1) No collision damage waiver subject to this part 2 shall contain an exclusion from the waiver for damages caused by the ordinary negligence of the lessee. Any such exclusion in violation of this section will be void and is a deceptive trade
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practice under this article. This section shall not be deemed to prohibit an exclusion from the waiver for damages caused by the lessee by:
(a) Willful and wanton conduct or misconduct;
(b) Intoxication by alcohol or use of controlled substances as defined in section 42-4-1301, C.R.S.;
(c) Participation in a speed contest;
(d) Carrying persons or property for hire, or pushing or towing anything;
(e) Use of the vehicle while committing a misdemeanor or felony or other criminal act;
(f) Use of the vehicle by an unauthorized driver, which includes any person not specifically authorized by the rental agreement;
(g) Supplying information which is false concerning the rental transaction with intent to defraud the lessor;
(h) Use of the vehicle outside the continental United States, unless specifically authorized by the rental agreement; and
(i) Any instance whereby, during the rental of such rental motor vehicle, the speedometer or odometer is tampered with or disconnected.
6-1-205. Information to be disclosed in advertisements for rental agreements for rental motor vehicles. In any advertisement to the public for a rental agreement for a rental motor vehicle that includes a rental rate, the lessor shall prominently disclose on the face of any such advertisement the daily charge of any collision damage waiver offered, a statement informing a prospective lessee that he should review his own automobile insurance coverage to determine if such coverage applies to the use of a rental motor vehicle, and a statement that a prospective lessee may also wish to determine whether his credit card or travel and entertainment card provides collision damage coverage for use of a rental motor vehicle or other such privilege of membership.
PART 3
PREVENTION OF TELEMARKETING FRAUD
6-1-301. Legislative Declaration. The general assembly hereby finds, determines, and declares that the use of telephones for commercial solicitation is rapidly increasing; that this form of communication offers unique benefits, but entails special risks and poses the potential for abuse; that the general assembly finds that the widespread practice of fraudulent and deceptive commercial telephone solicitation has caused substantial financial losses to thousands of consumers, and, particularly, elderly, homebound, and otherwise vulnerable consumers, and is a matter vitally affecting the public interest; and, therefore, that the general welfare of the public and the protection of the integrity of the telemarketing industry requires statutory regulation of the commercial use of telephones.
6-1-302. Definitions. As used in this part 3, unless the context otherwise requires:
(1) "Commercial telephone seller" or "seller" means a person who, in the course of such person's business, vocation, or occupation, on the person's own behalf or on behalf of another
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person, causes or attempts to cause a commercial telephone solicitation to be made; except that "commercial telephone seller" or "seller" does not include the following:
(a) A person offering or selling a security as defined in section 11-51-201(17), C.R.S., if:
(I) The security is either registered with the securities commissioner under section 11-51-303 or 11-51-304, C.R.S., exempt from registration under section 11-51-307, C.R.S., or the transaction in the security is exempt under section 11-51-308, C.R.S.; and
(II) The person is licensed by the securities commissioner as a broker-dealer as defined in section 11-51-201 (2), C.R.S., unless expressly excluded from such definition, or as a sales representative as defined in section 11-51-201 (14), C.R.S., unless expressly excluded from such definition, or such person is exempted from licensing under section 11-51-402, C.R.S.;
(b) (I) A person soliciting the sale of any newspaper, magazine, or other periodical of general circulation if such sales constitute a majority of such person's business and business revenues; or
(II) A person soliciting the sale of any book, record, audio tape, compact disc, or video if the person allows the purchaser to review the merchandise without obligation for at least seven days and provides a full refund for the return of undamaged merchandise within thirty days or if the person solicits such sale on behalf of a membership club operating in conformity with 16 C.F.R. 425;
(c) A person making telephone calls to a residential customer for the sole purpose of polling or soliciting the expression of ideas, opinions, or votes, or a person soliciting solely for a political or religious cause or purpose;
(d) A paid solicitor or charitable organization that is required to and has complied with the registration, notice, and filing requirements of sections 6-16-104.6 and 6-16-104, respectively, or a person who is excluded from such notice and reporting requirements by section6-16-103(7);
(e) A supervised financial organization, as defined in section 5-1-301(45), C.R.S., and its employees, when acting within the scope of their employment;
(f) A supervised lender, as defined in section5-1-301(46), C.R.S., and its employees, when acting within the scope of their employment;
(g) A person selling insurance, as defined in section 10-1-102(12), C.R.S., in compliance with the requirements of title 10, C.R.S.;
(h) A person soliciting without the intent to complete and who does not in fact complete the sales transaction during the telephone solicitation or another telephone solicitation and who only completes the sales transaction at a later face-to-face meeting between the solicitor and the prospective purchaser, excluding a face-to-face meeting, the sole purpose of which is to collect the payment or deliver any item purchased, or a person soliciting a purchaser with whom the person has had a previous face-to-face meeting in the course of such person's business;
(i) Any governmental entity or employee thereof, acting in the employee's official capacity;
(j) A person soliciting telephone service, or licensed or franchised cable television service, which is billed and paid on a daily, weekly, or monthly basis and which can be canceled at any time without further obligation to the purchaser;
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(k) A person or an affiliate of a person whose business is regulated by the public utilities commission;
(l) A person or an affiliate of a person whose business is regulated by the real estate commission;
(m) A person whose conduct is within the exclusive jurisdiction of the federal commodity futures trading commission as granted under the federal "Commodity Exchange Act", as amended;
(n) A seller of food for immediate consumption when the sale to one purchaser does not exceed three hundred dollars;
(o) A person who initially contacts the purchaser with a retail sales catalog requesting a telephone call response, when the person allows the purchaser to review the merchandise without obligation for at least seven days and provides a full refund for the return of undamaged merchandise within thirty days after receipt of the returned merchandise;
(p) An issuer or a subsidiary of an issuer that has a class of securities which is subject to section 12 of the federal "Securities Exchange Act of 1934", 15 U.S.C. sec. 781, and which is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G), or (H) of subsection (g) (2) of that section;
(q) A person who has been operating for at least three years a retail business establishment in Colorado under the same name as that used in connection with the solicitation of sales by telephone if, on a continuing basis, the majority of the seller's business involves the purchaser receiving the seller's goods and services at the seller's business location;
(r) A person who has conducted business for at least three years under the same name and in the same state and offers potential purchasers satisfaction guaranteed by the sending of the product or providing the service and the purchaser has an unqualified right to review and return or cancel for at least thirty days;
(s) Any telephone marketing service company which provides telemarketing sales services under written contract to sellers and has been operating continuously for at least five years under the same business name and seventy-five percent or more of its services are performed on behalf of sellers exempt from this section. Nothing in this paragraph (s) shall be construed to exempt any seller that contracts with a telephone marketing service company for telemarketing sales services from the requirements set forth in section 6-1-303 or from the prohibitions set forth in section 6-1-304.
(t) A person soliciting business solely from business purchasers who have previously purchased identical or similar goods or services from the business enterprise on whose behalf the person is calling.
(2) "Commercial telephone solicitation" means:
(a) Unsolicited telephone calls to a person initiated by a commercial telephone seller or salesperson, or an automated dialing machine with or without a recorded message device, for the purpose of inducing the person to purchase or invest in goods, services, or property or offering an extension of credit; or
(b) Any other communication by a commercial telephone seller in which:
(I) A gift, award, or prize is offered and a telephone call response from the intended purchaser is invited; or
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(II) A loan, credit card, or other extension of credit is offered to a purchaser who has not previously purchased from the person initiating the communication, and a telephone call response from the intended purchaser is invited; or
(III) A sale is to be completed or an agreement to purchase is to be entered into during the course of the telephone call response; or
(c) Any other communication by a commercial telephone seller which includes representations about the price, quality, or availability of goods, services, or property and which invites a response by telephone, including pay-per-call service calls, or which is followed by a telephone call to the intended purchaser by a salesperson.
(3) "Pay-per-call" means the use of a telephone number with a 900 prefix or any other prefix under which liability for the service or product provided attaches to the telephone bill of the individual calling such number.
(4) "Principal" means an owner, an officer of a corporation, a general partner of a partnership, the sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person.
(5) "Purchaser" means a person who receives or responds to a commercial telephone solicitation.
(6) "Salesperson" means any person employed or authorized by a commercial telephone seller to cause or attempt to cause a commercial telephone solicitation to be made.
(7) "Telephone sales transaction" means any payment of money by a purchaser in exchange for the promise of goods, services, property, or an extension of credit by a commercial telephone seller and includes all communications which precede such payment of money.
6-1-303. Registration of commercial telephone sellers. (1) No commercial telephone seller shall conduct business in this state without having registered with the attorney general at least ten days prior to the conduct of such business. Individual employees of the commercial telephone seller are not required to register. A commercial telephone seller conducts business in this state if the telephone solicitations of prospective purchasers are made from locations in this state or solicitation is made of prospective purchasers located in this state.
(2) A registration shall be effective for one year after the date of filing with the attorney general. Each application for registration or renewal thereof shall be accompanied by a filing fee, determined and collected by the attorney general, but such filing fee shall not exceed two hundred fifty dollars for an application for registration or one hundred dollars for an application for renewal.
(3) Whenever, prior to expiration of a commercial telephone seller's annual registration, there is a material change in the information required by subsection (5) of this section, the seller shall, within ten days, file an addendum updating the information with the attorney general.
(4) Each application for registration shall be in writing and shall contain such information regarding the conduct of the commercial telephone seller's business and the personnel conducting the business as is required by law. The application shall be submitted on a form provided by the attorney general and shall be verified by a declaration signed by each principal of the commercial telephone seller under penalty of perjury. The declaration shall
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specify the date and location of signing. The information submitted pursuant to this section shall be available for public inspection.
(5) Each application for registration or renewal pursuant to this section shall contain the following information:
(a) The name or names of the commercial telephone seller, including all names under which the commercial telephone seller is doing or intends to do business, if different from the name of the seller, and the name of any parent or affiliated organization;
(b) The seller's business form and the date and place of organization;
(c) The complete street addresses of all locations from which the commercial telephone seller is or will be conducting business, including a designation of the seller's principal business location;
(d) A listing of all telephone numbers, including pay-per-call numbers, to be used by the commercial telephone seller;
(e) The name, residential address, and position held by each principal of the commercial telephone seller and the names, residential addresses, and positions of those persons who have management responsibilities in connection with the commercial telephone seller's business activities;
(f) A description of the goods, services, property, or extension of credit the commercial telephone seller is offering for sale and a copy of all sales scripts the commercial telephone seller requires salespersons to use when soliciting prospective purchasers, or, if no sales script is required to be used, a description of the sales presentation;
(g) All rules, regulations, terms, restrictions, and conditions to receiving any prize, bonus, award, gift, or premium, if applicable, including a description of each prize, bonus, award, gift, or premium, and the actual or approximate odds of a purchaser's receiving such prize, bonus, award, gift, or premium;
(h) A copy or representative sample of all written materials the seller sends to any purchaser;
(i) Such additional information regarding the conduct of the commercial telephone seller's business and the personnel conducting the business as may reasonably be required by the attorney general.
6-1-304. Unlawful telemarketing practices. (1) A commercial telephone seller engages in an unlawful telemarketing practice when, in the course of any commercial telephone solicitation, the seller:
(a) Conducts business as a commercial telephone seller without having registered with the attorney general, as required by section 6-1-303;
(b) Fails to allow the purchaser in any telephone sales transaction to cancel any purchase or agreement to purchase goods, services, or property at any time before the expiration of three business days after the purchaser's receipt of such goods, services, or property by delivering or mailing to the commercial telephone seller written notice of cancellation. Notice of cancellation, if sent by mail, is deemed to be given as of the date the mailed notice was postmarked.
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(c) Fails to refund all payments made by any purchaser in any telephone sales transaction within thirty days after the commercial telephone seller receives notice of cancellation from the purchaser; except that:
(I) If the purchaser has received goods or property from the commercial telephone seller, other than an item represented as free, the commercial telephone seller shall refund all payments made by the purchaser within thirty days after the commercial telephone seller's receipt of the returned goods or property;
(II) If the purchaser has received services, including those received during the course of a pay-per-call service call, which services cannot, by their nature, be returned, the commercial telephone seller is not required to refund payments to the purchaser;
(d) Fails to disclose to the purchaser during a telephone solicitation that the purchaser has the cancellation rights set forth in paragraph (b) of this subsection (1);
(e) Misrepresents to any person that the person has won a contest, sweepstakes, or drawing, or that the person will receive free goods, services, or property;
(f) Represents that the seller's goods, services, or property are "free" if the commercial telephone seller charges or collects a fee from the purchaser in exchange for providing or delivering such goods, services, or property;
(g) Makes any reference to the commercial telephone seller's compliance with this article to any purchaser without also disclosing that compliance with this article does not constitute approval by any governmental agency of the seller's marketing, advertisements, promotions, goods, or services;
(h) Engages in any deceptive trade practice defined in section 6-1-105 or part 7 of this article.
(2) Paragraphs (b) and (d) of subsection (1) of this section do not apply to a transaction in which the consumer obtains a full refund for the return of undamaged or unused goods or a cancellation of services by giving notice to the seller within seven days after receipt by the consumer and the seller processes the refund or cancellation within thirty days after receipt of the returned merchandise or the consumer's request for refund for services not performed or a pro rata refund for any services not yet performed for the consumer. The availability and terms of the return and refund privilege shall be disclosed to the consumer orally by telephone and in writing with any advertising or promotional material or with the delivery of the product or service. If a seller offers consumers an unconditional guarantee, a clear disclosure of such guarantee by using the words "satisfaction guaranteed", "free inspection", or "no-risk guarantee" satisfy the disclosure requirements of this subsection (2).
(3) The unlawful telemarketing practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other civil and criminal statutes of this state.
(4) (a) On or after September 1, 2005, a person commits an unlawful telemarketing practice if the person knowingly:
(I) Lists a cellular telephone number in a directory for a commercial purpose unless the person whose number has been listed has given affirmative consent, through written, oral, or electronic means, to such listing; or
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(II) Uses a scanning device or other electronic means to identify a cellular telephone number and to make a commercial telephone solicitation to a cellular telephone.
(b) This subsection (4) shall not apply to a commercial telephone solicitation that is in relation to a preexisting commercial relationship between the person and the person who owns the cellular telephone.
6-1-305. Penalties. (1) In addition to the remedies available under sections 6-1-110, 6-1-112, and 6-1-113:
(a) Any person who, after receiving written notice of noncompliance from the attorney general or a district attorney, conducts business as a commercial telephone seller without having registered with the attorney general as required by section 6-1-303 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.;
(b) Any commercial telephone seller who knowingly engages in any unlawful telemarketing practice as defined in section 6-1-304(1) (b) to (1) (h) commits a class 1 misdemeanor and shall be punished as provided in section18-1.3-501, C.R.S.
(c) A person who engages in any unlawful telemarketing practice as defined in section 6-1-304(4) shall be liable in a private civil action to the owner of the cellular telephone for consequential damages, court costs, attorney fees, and a penalty in the amount of at least three hundred dollars and not more than five hundred dollars for a first offense and at least five hundred dollars and not more than one thousand dollars for a second or subsequent offense.
6-1-306. Repeal. (Repealed)
PART 4
WARRANTIES FOR ASSISTIVE TECHNOLOGY ACT
6-1-401. Legislative intent. (1) It is the intent of the general assembly to encourage and promote independent living and self-sufficiency for persons with disabilities and to reduce their need to rely on publicly funded supports. Of an estimated forty-nine million Americans with disabilities, approximately seventy percent of them are unemployed or underemployed. Having safe, reliable assistive technology represents a most essential need given the many barriers to independent living and self-sufficiency people with disabilities face.
(2) The goal of meeting this essential need can be furthered by assuring that assistive technology provided to persons with disabilities is of quality and is covered by adequate warranties to maintain their assistive technology in proper working condition, to assure availability of appropriate loaner replacement assistive technology while their own is being repaired, and to encourage manufacturers and dealers to cooperatively pool assistive technology resources for loaner purposes to assure availability without an undue burden.
(3) The general assembly finds and declares it is in the state's best interest to adopt this part 4.
6-1-402. Definitions. As used in this part 4, unless the context otherwise requires:
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(1) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity in a wheelchair, including the cost of an alternative wheelchair, if a loaner, as that term is defined in subsection (8) of this section, was not offered to the consumer, or other assistive device or service for mobility assistance. "Collateral costs" shall not include the cost of hiring a personal assistant.
(2) "Consumer" means:
(a) A purchaser of a wheelchair, if the wheelchair was purchased from a wheelchair dealer or manufacturer for purposes other than resale;
(b) A person to whom a wheelchair is transferred for purposes other than resale, if such transfer occurs before the expiration of the express warranty applicable to such wheelchair;
(c) A person who may enforce the express warranty applicable to a wheelchair; or
(d) A person who leases a wheelchair from a wheelchair lessor under a written lease.
(3) "Dealer" means a person or entity that is in the business of selling wheelchairs or any agents of that person or entity. "Dealer" includes an alternative warranty service provider.
(4) (a) "Early termination cost" means any expense or obligation that a wheelchair lessor incurs as a result of:
(I) Terminating a written lease before the termination date set forth in the lease; and
(II) Returning the wheelchair to the manufacturer.
(b) "Early termination cost" includes any prepayment penalty under a finance arrangement.
(5) "Early termination savings" means any expense or obligation that a wheelchair lessor avoids as a result of performing the acts described in paragraph (a) of subsection (4) of this section. "Early termination savings" includes any interest charge that the wheelchair lessor would have paid to finance the wheelchair or, if the wheelchair lessor did not finance the wheelchair, the difference between the total amount the lessee was obligated to pay over the period of the lease term remaining after the early termination date and the present value of that amount on the early termination date.
(6) "Express warranty" means an express warranty as set forth in sections 4-2-313 and 4-2.5-210, C.R.S. An express warranty shall cover every part of a new wheelchair except the tires and batteries.
(7) "Lessor" means a person or entity that leases a wheelchair to a consumer or that holds the lessor's rights under a written lease or any agents of that person or entity.
(8) "Loaner" means a wheelchair that is provided to the consumer for use free of charge that is not required to have the functional capabilities equal to or greater than those of the original wheelchair but that meets the following conditions:
(a) It is in good working order;
(b) It performs at a minimum the most essential functions of the original wheelchair in light of the disabilities of the user;
(c) It is usable by the consumer given the consumer's impairments; and
(d) Any difference between the loaner and the original wheelchair does not create a threat to safety.
(9) "Manufacturer" means a person or entity that manufactures or assembles wheelchairs and any agents of that person or entity, including an importer, a distributor, an authorized
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servicer, a factory branch, a distributor branch, and warrantors of the manufacturer's wheelchairs. "Manufacturer" does not include a dealer.
(10) "Modular assembly" means a device added to the wheelchair base to accommodate the special needs of the consumer, such as seating systems, tilt or recline systems, and specially adapted control modules.
(11) "Nonconformity" means a defect that substantially impairs the use, reliability, value, or safety of a wheelchair and that is covered by an express warranty applicable to such wheelchair or a component of such wheelchair. "Nonconformity" does not include a defect that is the result of abuse, neglect, or the unauthorized modification or alteration of a wheelchair by a consumer.
(12) "Reasonable attempt to repair" means that one of the following has occurred within the term of an express warranty applicable to a new wheelchair or within one year after first delivery of a wheelchair to a consumer, whichever occurs earlier:
(a) The same nonconformity is subject to repair at least three times by the manufacturer, lessor, or any of the manufacturer's authorized dealers; or
(b) Because of a nonconformity, the wheelchair cannot be used by the consumer for an aggregate of at least thirty days or ten consecutive business days.
(13) "Replacement wheelchair" means a wheelchair of comparable quality, size, and function.
(14) "Selling dealer" means the entity that originally sold the wheelchair to the consumer and was involved in the design, assembly, fitting, and education of the consumer on the use and maintenance of the wheelchair.
(15) "Specialty control module" means the technologically advanced electronic device of limited availability that contains the signal and output circuitry for a power wheelchair designed and assembled for use by a specific individual with severe limitations who is unable to use a standard control module.
(16) "Standard wheelchair" means a wheelchair that has seat width and depth dimensions of sixteen to eighteen inches.
(17) "Wheelchair" means any wheelchair, scooter, or modular assembly, including a demonstrator, that is motor driven or manually operated that a consumer purchases or accepts transfer of in this state for the purposes of mobility assistance.
6-1-403. Express warranty required -- authorized servicers. (1) (a) Except as provided in subsection (2) of this section, a consumer who purchases or leases a new wheelchair either directly or indirectly through a dealer or lessor shall receive an express warranty for such wheelchair. The manufacturer shall issue this express warranty that shall extend for not less than one year after first delivery to the consumer.
(b) Except as provided in subsection (2) of this section, a selling dealer shall provide an express warranty for any modifications made by the dealer that shall also extend for not less than six months after first delivery to the consumer.
(2) Notwithstanding the provisions of subsection (1) of this section, the warranty for the specialty control module shall be limited to the warranty provided by the manufacturer of such specialty control module or ninety days, whichever is longer.
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(3) If a manufacturer or dealer fails to furnish the express warranty required by this section, the wheelchair shall be covered by a warranty the same as if an express warranty had been provided by the manufacturer or dealer pursuant to this section.
(4) Any entity that sells or leases wheelchairs in this state, including any entity that sells or leases through mail order or catalogue sales, shall designate an authorized servicer for such chairs that is located in this state in reasonable proximity to the consumer.
(5) (a) In the event that the selling dealer from whom the consumer purchased the wheelchair goes out of business or ceases to be an authorized dealer or service center for the manufacturer, or if the dealer or consumer moves or relocates to a location that makes it unreasonable for the consumer to seek warranty service from the selling dealer, or if the consumer is dissatisfied with the selling dealer, the consumer shall be responsible for contacting the manufacturer or another authorized dealer which will be responsible for facilitating the warranty service required with an authorized dealer, to be mutually agreed upon by the consumer and the manufacturer, which entity shall be referred to as the alternative warranty service provider.
(b) In the event that an alternative warranty service provider is designated pursuant to paragraph (a) of this subsection (5), the consumer may only seek warranty service from such alternative warranty service provider.
(c) To the extent reasonable and possible, the manufacturer shall take into account the independent mobility resources of the consumer when determining the alternative warranty service provider pursuant to the provisions of this subsection (5).
6-1-404. Remedies. (1) If a new wheelchair does not conform to the applicable express warranty and the consumer reports the nonconformity to the manufacturer, the lessor, the selling dealer, or the alternative warranty service provider, and makes the wheelchair available for repair within the warranty period, the nonconformity shall be repaired at no charge to the consumer. Any repairs performed pursuant to the provisions of this section shall be warranted for a period not less than the original warranty period. When the wheelchair is not safely moveable and there is no reasonable way for the consumer to deliver the wheelchair to the manufacturer or dealer, the manufacturer or dealer shall be responsible for the return of the wheelchair, or the wheelchair may be repaired on site at the option of the dealer.
(2) If the manufacturer authorizes the dealer or lessor to make the repair, the dealer or lessor shall make the repair and then be reimbursed by the manufacturer for the dealer's or lessor's cost for parts, labor, and repair if the nonconformity is a manufacturer's defect. A manufacturer shall respond to the dealer's or lessor's request for authorization to make a repair by the end of the business day that immediately follows the day such a request is made.
(3) When a wheelchair covered by an express warranty is tendered by a consumer to the manufacturer, selling dealer, alternative warranty service provider, or lessor for the repair of a defect, malfunction, or nonconformity to which the warranty is applicable, the consumer shall receive a loaner if the out-of-service period exceeds one day and shall keep the loaner until the requirements of section 6-1-405 or 6-1-406 are fulfilled. If the required loaner is not
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a standard wheelchair, the manufacturer or dealer shall make a good faith effort to make available alternative equipment that is usable by the consumer. The cost of the loaner shall be borne by the entity responsible for the defect requiring the repair or replacement of the wheelchair as provided in this section. The consumer shall have the duty to care for the loaner properly and to protect against any damage to the chair.
(4) If a nonconformity is not repaired after a reasonable attempt to repair, the manufacturer or dealer who originally supplied or modified the wheelchair, as required by this section, shall:
(a) If the wheelchair was purchased, take the following action at the direction of the consumer:
(I) Accept a return of the wheelchair, provide a replacement wheelchair of equal or greater value, and refund any collateral costs to the consumer, a holder of a perfected security interest in the wheelchair, or a third-party purchaser; or
(II) Accept a return of the wheelchair and refund to the consumer, holder of a perfected security interest in the wheelchair, or third-party purchaser not more than the full purchase price plus any finance charge, sales tax, shipping costs, and collateral costs paid;
(b) If the wheelchair was leased, take all of the following actions at the direction of the consumer:
(I) Accept a return of the wheelchair;
(II) (A) Refund to the lessor and any holder of a perfected security interest in the wheelchair the current value of the written lease.
(B) For purposes of this subparagraph (II), "current value of the written lease" means the sum of the total amount for which the consumer is obligated during the term of the lease remaining after the early termination date, the dealer's early termination costs, and the value of the wheelchair on the lease expiration date, if the lease sets forth that value, less the lessor's early termination savings.
(III) Refund to the consumer or third-party purchaser the amount paid under the lease plus any collateral costs.
(5) (a) In the event that a dispute arises as to liability under this part 4 between or among a manufacturer, dealer, lessor, or consumer, and the consumer is covered by any third-party insurer, such third-party insurer shall not be relieved of any obligation to provide benefits covered under its plan or applicable law.
(b) In the event that a wheelchair is found to be defective, the third-party payor described in paragraph (a) of this subsection (5) shall have all rights of recovery, including the right to costs, that the consumer would have had under this part 4.
6-1-405. Remedies for consumers -- conditions. (1) To receive a refund or a replacement wheelchair, the consumer of a purchased wheelchair shall first offer to transfer the wheelchair with the nonconformity to the manufacturer, selling dealer, or alternative warranty service provider.
(2) Within thirty business days after receipt of the offer described in subsection (1) of this section, the manufacturer or dealer shall provide the consumer with a refund or a replacement wheelchair.
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(3) When a manufacturer or dealer provides a consumer with a refund or a replacement wheelchair, such consumer shall return the wheelchair with the nonconformity, if such wheelchair is safely operable, to the manufacturer or dealer with any endorsements necessary to transfer possession to the manufacturer or dealer. When the wheelchair is not safely movable and there is no reasonable way for the consumer to deliver the wheelchair to the manufacturer or dealer, the manufacturer or dealer shall be responsible for the return of the wheelchair.
6-1-406. Remedies for consumers of leased wheelchairs -- conditions. (1) To receive a refund due on a leased wheelchair, a consumer shall first offer to return the wheelchair with the nonconformity to the lessor.
(2) Within thirty business days after receipt of the offer described in subsection (1) of this section, the lessor shall provide the consumer with a refund.
(3) When a lessor provides a consumer with a refund, such consumer shall return the wheelchair with the nonconformity to such lessor.
(4) A lessor shall offer to transfer to a manufacturer or dealer the possession of a wheelchair returned pursuant to subsection (3) of this section. Within thirty business days after receiving such offer, the manufacturer or dealer shall remit the refund amount to the lessor. When the manufacturer or dealer makes such refund, the lessor shall provide the manufacturer or dealer with the endorsements necessary to transfer possession to the manufacturer or dealer.
6-1-407. Resale of a returned wheelchair -- disclosure required. A wheelchair returned pursuant to this part 4 by a consumer in this state, or by a consumer in another state under a similar law of that state, shall not be sold or leased again in this state unless full disclosure is made to the prospective consumer of the reasons for the return.
6-1-408. Other remedies -- waiver of rights void. (1) This part 4 shall not limit the rights or remedies available to a consumer under any other law of this state.
(2) If a consumer waives the rights granted to consumers pursuant to this part 4, such waiver shall be void as against public policy.
(3) Notwithstanding the remedies that are available to a consumer pursuant to this part 4, a consumer may pursue any other remedy, including an action to recover for damages caused by a violation of this part 4. If a manufacturer or dealer is found to have violated this part 4, a consumer shall be awarded the amount of actual damages caused by the violation and reasonable attorney fees. The consumer may be awarded collateral costs and punitive damages.
6-1-409. Fraudulent acts. Any manufacturer, dealer, or lessor that engages in conduct to delay making a final repair that is required as a consequence of the enforcement of warranties or duties under this part 4 with the intention of requiring payment of the cost of such repair to be made by a publicly funded program of public assistance, medical assistance, or rehabilitation assistance commits the crime of theft, which crime shall be classified in accordance with section 18-4-401(2), C.R.S., and which crime shall be punished as provided
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in section 18-1.3-401, C.R.S., if the crime is classified as a felony, or section 18-1.3-501, C.R.S., if the crime is classified as a misdemeanor.
6-1-410. Arbitration. Disputes among manufacturers, dealers, and lessors concerning the enforcement of rights or remedies of consumers under this part 4 shall be subject to arbitration pursuant to the Colorado rules of civil procedure. The award of the arbitration panel shall be binding upon the parties and shall only be subject to court review by trial de novo.
6-1-411. Defect notification. (1) A manufacturer shall be responsible for providing written notification to an owner, user, purchaser, dealer, lessor, or consumer of any known or discovered inherent defect in a wheelchair that affects the safety, usability, or reliability of that wheelchair. The manufacturer shall send such notification by first class mail to the last known address of the owner, user, purchaser, dealer, lessor, or consumer within fourteen days after learning of such a defect.
(2) A manufacturer shall be responsible for the costs of providing the notification required in subsection (1) of this section and for all costs associated with correcting any defect described in subsection (1) of this section.
(3) The provisions of this section shall apply without time limitations.
6-1-412. Disclosures. (1) Prior to the sale of any wheelchair, the seller shall disclose whether the wheelchair is new or used and whether any warranty applies to such wheelchair.
(2) Upon delivery of a new or used wheelchair, the seller shall advise the buyer of any warranty rights under this part 4 and the wheelchair's maintenance schedule and operating instructions and shall provide the buyer with a copy of the owner's manual.
(3) The disclosure required pursuant to subsection (1) of this section and the advisement required pursuant to subsection (2) of this section shall be in writing and shall, in the case of buyer who is a person adjudicated not mentally competent, be provided to the guardian, parent, legal custodian, or primary caregiver of such person.
PART 5
WARRANTIES FOR FACILITATIVE TECHNOLOGY ACT
6-1-501. Definitions. As used in this part 5, unless the context otherwise requires:
(1) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity in a facilitative device, including the cost of an alternative facilitative device or other facilitative device or service.
(2) "Consumer" means:
(a) A purchaser of a facilitative device, if the facilitative device was purchased from a dealer or manufacturer for purposes other than resale;
(b) A person to whom a facilitative device is transferred for purposes other than resale, if such transfer occurs before the expiration of the express warranty applicable to such facilitative device;
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(c) A person who may enforce the express warranty applicable to a facilitative device; or
(d) A person who leases a facilitative device from a lessor under a written lease.
(3) "Dealer" means a person or entity that is in the business of selling facilitative devices, or any agents of that person or entity. "Dealer" includes an alternative warranty service provider.
(4) (a) "Early termination cost" means any expense or obligation that a lessor of facilitative devices incurs as a result of:
(I) Terminating a written lease before the termination date set forth in the lease; and
(II) Returning the facilitative device to the manufacturer.
(b) "Early termination cost" includes any prepayment penalty under a finance arrangement.
(5) "Early termination savings" means any expense or obligation that a lessor of facilitative devices avoids as a result of performing the acts described in paragraph (a) of subsection (4) of this section. "Early termination savings" includes any interest charge that the lessor of facilitative devices would have paid to finance the facilitative device or, if the lessor did not finance the facilitative device, the difference between the total amount the lessee was obligated to pay over the period of the lease term remaining after the early termination date and the present value of that amount on the early termination date.
(6) "Express warranty" means an express warranty as set forth in sections 4-2-313 and 4-2.5-210, C.R.S. An express warranty shall cover every part of a new facilitative device.
(7) "Facilitative device" means a device that has a retail price equal to or greater than one hundred dollars and that is exclusively designed and manufactured to assist a person with a disability with such person's specific disability, through the use of facilitative technology, to be self-sufficient or to maintain or improve that person's quality of life. "Facilitative device" does not include wheelchairs as that term is defined in section 6-1-402(17). "Facilitative device" does include the following:
(a) Telephone communication devices for the hearing impaired and other facilitative listening devices except for hearing aids as defined in section 6-1-701(1) (c) (I) and cochlear implants as defined in section 6-1-701(1) (c) (II);
(b) Computer equipment and reading devices with voice input or output, optical scanners, talking software, braille printers, and other aids and devices that provide access to text by a person with a disability;
(c) Computer equipment with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices;
(d) Voice recognition computer equipment, software and hardware accommodations, and other forms of alternative access to computers for persons with disabilities; and
(e) Any other device, other than a wheelchair, that enables a person with a disability to communicate, see, hear, or maneuver.
(8) "Facilitative technology" means technology used to develop technological devices to be used exclusively for the purpose of assisting a person with a disability with respect to such person's specific disability by facilitating or enhancing that person's ability to be self-sufficient.
(9) "Lessor" means a person or entity that leases a facilitative device to a consumer or that holds the lessor's rights under a written lease, or any agents of that person or entity.
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(10) "Manufacturer" means a person or entity that manufactures or assembles facilitative devices and any agents of that person or entity, including an importer, a distributor, an authorized servicer, a factory branch, a distributor branch, and warrantors of the manufacturer's facilitative devices. "Manufacturer" does not include a dealer.
(11) "Nonconformity" means a defect that substantially impairs the use, reliability, value, or safety of a facilitative device and that is covered by an express warranty applicable to such facilitative device or a component of such facilitative device. "Nonconformity" does not include a defect that is the result of abuse, neglect, or the unauthorized modification or alteration of a facilitative device by a consumer.
(12) "Person with a disability" means a person who is considered to have a mental or physical disability, impairment, or handicap for purposes of any other law of this state or of the United States, including any rule or regulation.
(13) "Reasonable attempt to repair" means that one of the following has occurred within the term of an express warranty applicable to a new facilitative device or within one year after first delivery of a facilitative device to a consumer, whichever occurs earlier:
(a) The same nonconformity is subject to repair at least three times by the manufacturer, the lessor, or any of the manufacturer's authorized dealers; or
(b) Because of a nonconformity, the facilitative device cannot be used by the consumer for an aggregate of at least thirty days.
(14) "Replacement facilitative device" means a facilitative device of comparable quality, size, and function.
(15) "Selling dealer" means the entity that originally sold the facilitative device to the consumer and was involved in the design, assembly, fitting, and education of the consumer on the use and maintenance of the facilitative device.
6-1-502. Express warranty required -- authorized servicers. (1) A consumer who purchases or leases a new facilitative device either directly or indirectly through a dealer or lessor shall receive an express warranty for such facilitative device. The manufacturer shall issue this express warranty that shall extend for not less than one year after first delivery to the consumer.
(2) If a manufacturer or dealer fails to furnish the express warranty required by this section, the facilitative device shall be covered by a warranty the same as if an express warranty had been provided by the manufacturer or dealer pursuant to this section.
(3) Any entity that sells or leases facilitative devices in this state, including any entity that sells or leases through mail order or catalogue sales, shall designate an authorized servicer for such facilitative devices that is accessible to the consumer.
(4) (a) In the event that the selling dealer from whom the consumer purchased the facilitative device goes out of business or ceases to be an authorized dealer or service center for the manufacturer, or if the dealer or consumer moves or relocates to a location that makes it unreasonable for the consumer to seek warranty service from the selling dealer, or if the consumer is dissatisfied with the selling dealer, the consumer shall be responsible for contacting the manufacturer or another authorized dealer which will be responsible for facilitating the warranty service required with an authorized dealer, to be mutually agreed
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upon by the consumer and the manufacturer, which entity shall be referred to as the "alternative warranty service provider".
(b) In the event that an alternative warranty service provider is designated pursuant to paragraph (a) of this subsection (4), the consumer may only seek warranty service from such alternative warranty service provider.
6-1-503. Remedies. (1) If a new facilitative device does not conform to the applicable express warranty and the consumer reports the nonconformity to the manufacturer, the lessor, the selling dealer, or the alternative warranty service provider and makes the facilitative device available for repair within the warranty period, the nonconformity shall be repaired at no charge to the consumer. Any repairs performed pursuant to the provisions of this section shall be warranted for a period not less than the original warranty period.
(2) If the manufacturer authorizes the dealer or lessor to make the repair, the dealer or lessor shall make the repair and then be reimbursed by the manufacturer for the dealer's or lessor's cost for parts, labor, and repair if the nonconformity is a manufacturer's defect. A manufacturer shall respond to the dealer's or lessor's request for authorization to make a repair within three business days after such a request is made.
(3) If a nonconformity is not repaired after a reasonable attempt to repair, the manufacturer or dealer who originally supplied or modified the facilitative device, as required by this section, shall:
(a) If the facilitative device was purchased, take the following action at the direction of the consumer:
(I) Accept a return of the facilitative device, provide a replacement facilitative device of equal or greater value, and refund any collateral costs to the consumer, a holder of a perfected security interest in the facilitative device, or a third-party purchaser; or
(II) Accept a return of the facilitative device and refund to the consumer, holder of a perfected security interest in the facilitative device, or third-party purchaser not more than the full purchase price plus any finance charge, sales tax, shipping costs, and collateral costs paid;
(b) If the facilitative device was leased, take all of the following actions at the direction of the consumer:
(I) Accept a return of the facilitative device;
(II) (A) Refund to the lessor or any holder of a perfected security interest in the facilitative device the current value of the written lease.
(B) For purposes of this subparagraph (II), "current value of the written lease" means the sum of the total amount for which the consumer is obligated during the term of the lease remaining after the early termination date, the dealer's early termination costs, and the value of the facilitative device on the lease expiration date, if the lease sets forth that value, less the lessor's early termination savings.
(III) Refund to the consumer or third-party purchaser the amount paid under the lease plus any collateral costs.
(4) (a) In the event that a dispute arises as to liability under this part 5 between or among a manufacturer, dealer, lessor, or consumer and the consumer is covered by any third-party
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insurer, such third-party insurer shall not be relieved of any obligation to provide benefits covered under its plan or applicable law.
(b) In the event that a facilitative device is found to be defective, the third-party payor described in paragraph (a) of this subsection (4) shall have all rights of recovery, including the right to costs, that the consumer would have had under this part 5.
6-1-504. Remedies for consumers -- conditions. (1) To receive a refund or a replacement facilitative device, the consumer of a purchased facilitative device shall first offer to transfer the facilitative device with the nonconformity to the manufacturer, selling dealer, or alternative warranty service provider.
(2) Within thirty business days after receipt of the offer described in subsection (1) of this section, the manufacturer or dealer shall provide the consumer with a refund or a replacement facilitative device.
(3) When a manufacturer or dealer provides a consumer with a refund or a replacement facilitative device, such consumer shall return the facilitative device with the nonconformity to the manufacturer or dealer with any endorsements necessary to transfer possession to the manufacturer or dealer.
6-1-505. Remedies for consumers of leased facilitative devices -- conditions. (1) To receive a refund due on a leased facilitative device, a consumer shall first offer to return the facilitative device with the nonconformity to the lessor.
(2) Within thirty business days after receipt of the offer described in subsection (1) of this section, the lessor shall provide the consumer with a refund.
(3) When a lessor provides a consumer with a refund, such consumer shall return the facilitative device with the nonconformity to such lessor.
(4) A lessor shall offer to transfer to the manufacturer or dealer possession of the facilitative device returned pursuant to subsection (3) of this section. Within thirty business days after receiving such offer, the manufacturer or dealer shall remit the refund amount to the lessor. When the manufacturer or dealer makes such refund, the lessor shall provide the manufacturer or dealer with the endorsements necessary to transfer possession to the manufacturer or dealer.
6-1-506. Resale of a returned facilitative device -- disclosure required. A facilitative device returned pursuant to this part 5 by a consumer in this state, or by a consumer in another state under a similar law of that state, shall not be sold or leased again in this state unless full disclosure is made to the prospective consumer of the reasons for the return.
6-1-507. Other remedies -- waiver of rights void -- limitation of coverage. (1) This part 5 shall not limit the rights or remedies available to a consumer under any other law of this state.
(2) This part 5 shall be in addition to and shall not limit the rights or remedies available to a consumer under any manufacturer's warranty with respect to a facilitative device or other
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technological device designed to be used by and assist a person with a disability, regardless of the retail price of the facilitative device or other technological device.
(3) If a consumer waives the rights granted to consumers pursuant to this part 5, such waiver shall be void as against public policy.
(4) Notwithstanding the remedies that are available to a consumer pursuant to this part 5, a consumer may pursue any other remedy, including an action to recover damages caused by a violation of this part 5. If a manufacturer or dealer is found to have violated this part 5, a consumer shall be awarded the amount of actual damages caused by the violation and reasonable attorney fees. The consumer may be awarded collateral costs and punitive damages.
(5) Nothing in this part 5 shall be deemed or construed to be a warranty to consumers of wheelchairs described in part 4 of this article.
6-1-508. Fraudulent acts. Any manufacturer, dealer, or lessor that engages in conduct to delay making a final repair that is required as a consequence of the enforcement of warranties or duties under this part 5 with the intention of requiring payment of the cost of such repair to be made by a publicly funded program of public assistance, medical assistance, or rehabilitation assistance commits the crime of theft, which crime shall be classified in accordance with section 18-4-401(2), C.R.S., and which crime shall be punished as provided in section 18-1.3-401, C.R.S., if the crime is classified as a felony, or section 18-1.3-501, C.R.S., if the crime is classified as a misdemeanor.
6-1-509. Arbitration. Disputes among manufacturers, dealers, and lessors concerning the enforcement of rights or remedies of consumers under this part 5 shall be subject to arbitration pursuant to the Colorado rules of civil procedure. The award of the arbitration panel shall be binding upon the parties and shall only be subject to court review by trial de novo.
6-1-510. Defect notification. (1) A manufacturer shall be responsible for providing written notification to an owner, user, purchaser, dealer, lessor, or consumer of any known or discovered inherent defect in a facilitative device that affects the safety, usability, or reliability of that facilitative device. The manufacturer shall send such notification by first-class mail to the last-known address of the owner, user, purchaser, dealer, lessor, or consumer within fourteen days after learning of such a defect.
(2) A manufacturer shall be responsible for the costs of providing the notification required in subsection (1) of this section and for all costs associated with correcting any defect described in subsection (1) of this section.
(3) The provisions of this section shall apply without time limitations.
6-1-511. Disclosures. (1) Prior to the sale of any facilitative device, the seller shall disclose whether the facilitative device is new or used and whether any warranty applies to such facilitative device.
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(2) Upon delivery of a new or used facilitative device, the seller shall advise the consumer of any warranty rights under this part 5 and the facilitative device's maintenance schedule and operating instructions and shall provide the consumer with a copy of the owner's manual.
(3) The disclosure required pursuant to subsection (1) of this section and the advisement required pursuant to subsection (2) of this section shall be in writing and shall, in the case of a consumer who is a person adjudicated not mentally competent, be provided to the guardian, parent, legal custodian, or primary caregiver of such person.
PART 6
SELLERS OF MANUFACTURED HOMES -- REGISTRATION, ESCROW AND BONDING, AND CONTRACT REQUIREMENTS
6-1-601 to 6-1-606. (Repealed)
PART 7
SPECIFIC PROVISIONS
6-1-701. Registered hearing aid providers -- deceptive trade practices. (1) As used in this section, unless the context otherwise requires:
(a) "Audiologist" means an individual who is registered as an audiologist pursuant to part 1 of article 5.5 of title 12, C.R.S., or who has been licensed as a school audiologist by the Colorado department of education pursuant to section 22-60.5-210, C.R.S.
(b) "Dispense" means any transfer of title, possession, or the right to use by lease, bailment, or any other method, but excludes transactions with distributors or dealers.
(c) (I) "Hearing aid" means any wearable instrument or device designed or offered for the purpose of aiding or compensating for impaired human hearing and any parts, attachments, or accessories thereto, including ear molds but excluding batteries and cords; except that "hearing aid" does not include a "cochlear implant" or "cochlear prosthesis".
(II) "Cochlear implant" or "cochlear prosthesis" means an electrode or electrodes surgically implanted in the cochlea which are attached to an induction coil buried under the skin near the ear, and the associated unit which is worn on the body.
(d) (Deleted by amendment, L. 2000, p. 1092, § 11, effective July 1, 2000.)
(e) "Practice of dispensing, fitting, or dealing in hearing aids" includes the selection and adaptation for the sale of hearing aids and includes the testing of hearing for these purposes. The practice also includes the making of impressions for ear molds, plus counseling and instruction pertaining to the selection, fitting, adaptation, or sale of hearing aids.
(e.5) "Registered hearing aid provider" means an individual who is registered as a hearing aid provider pursuant to part 2 of article 5.5 of title 12, C.R.S.
(f) "Trial period" means the first thirty days the buyer has the hearing aid or aids in such buyer's possession. Any such trial period shall be extended by mutual agreement of the buyer and the registered hearing aid provider.
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(2) In addition to any other deceptive trade practices under section 6-1-105 or this part 7, a registered hearing aid provider or, with respect to only paragraph (a) of this subsection (2), an audiologist engages in a deceptive trade practice when such provider:
(a) Fails to deliver to each person supplied with a hearing aid a receipt that:
(I) Bears the business address of the registered hearing aid provider together with specifications as to the make and serial number of the hearing aid furnished and the full terms of the sale clearly stated. If a hearing aid that is not new is sold, the container thereof and the receipt shall be clearly marked as "used" or "reconditioned", whichever is applicable, within the terms of the guarantee, if any.
(II) Bears, in no smaller type than the largest used in the body of the receipt, in substance, a provision that the purchaser has been advised at the outset of the purchaser's relationship with the registered hearing aid provider that any examination or representation made by a registered hearing aid provider in connection with the practice of dispensing, fitting, or dealing in hearing aids is not an examination, diagnosis, or prescription by a person licensed to practice medicine in this state and, therefore, must not be regarded as medical opinion or advice;
(III) Bears, in no smaller type than the largest used in the body of the receipt, a provision indicating that consumer complaints that cannot be resolved with the registered hearing aid provider may be filed initially with the office of the district attorney for the jurisdiction where the device was sold or with the state attorney general's office and the address and telephone number of the district attorney's office or attorney general's office where such complaints may be filed;
(IV) Bears a provision labeled "warranty" in which the exact warranty terms and periods available from the manufacturer are documented, or includes an original or photocopy of the original manufacturer's warranty with the receipt;
(b) Sells a hearing aid to a child eighteen years of age or younger without ascertaining whether the child has been examined by a licensed physician and an audiologist within six months prior to the fitting;
(c) (I) Fails to receive from a licensed physician, prior to dispensing, fitting, or dealing in a hearing aid to any person, a written prescription or recommendation that specifies that the person is in fact in need of a hearing aid; except that any person eighteen years of age or older who objects to medical evaluation for religious or personal beliefs may waive the requirement by delivering to the registered hearing aid provider a written waiver;
(II) Sells, provides, dispenses, adjusts, provides training or teaching in regard to, or otherwise services cochlear implants unless such registered hearing aid provider is an audiologist or a physician;
(d) Fails to recommend in writing prior to fitting or dispensing a hearing aid that the best interests of the prospective user would be served by consulting a licensed physician specializing in diseases of the ear, or, any licensed physician, if any of the following conditions exists:
(I) Visible congenital or traumatic deformity of the ear;
(II) History of or active drainage of the ear within the previous ninety days;
(III) History of sudden or rapidly progressive hearing loss;
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(IV) Acute or chronic dizziness;
(V) Unilateral hearing loss of sudden onset within the previous ninety days;
(VI) Audiometric air-bone gap equal to or greater than fifteen decibels at 500 hertz (Hz), 1,000 Hz, and 2,000 Hz;
(VII) Visible evidence of cerumen accumulation on or a foreign body in the ear canal;
(VIII) Pain or discomfort in the ear;
(e) Fails to provide a thirty-day rescission period with the following terms:
(I) The buyer shall have the right to cancel the purchase for any reason before the expiration of the rescission period by giving or mailing written notice of cancellation to the seller. The thirty-day rescission period shall be tolled for any period during which a registered hearing aid provider takes possession or control of a hearing aid after its original delivery.
(II) The buyer, upon cancellation, is entitled to receive a full refund of any payment made for the hearing aid within thirty days of return of the hearing aid to the seller; except that, if the hearing aid is returned for any reason other than a defect in such hearing aid, the seller may retain an itemized amount to cover the minimum costs of materials used by the registered hearing aid provider and a manufacturer's return fee, but such amount may not be greater than five percent of the total charge for the hearing aid.
(III) (A) The seller shall provide a written receipt or contract to the buyer that includes, in immediate proximity to the space reserved for the signature of the buyer, the following specific statement in all capital letters of no less than ten-point bold-faced type:
"THE BUYER HAS THE RIGHT TO CANCEL THIS PURCHASE FOR ANY REASON AT ANY TIME PRIOR TO 12 MIDNIGHT OF THE 30TH CALENDAR DAY AFTER RECEIPT OF THE HEARING AID BY GIVING OR MAILING THE SELLER WRITTEN NOTICE OF CANCELLATION AND BY RETURNING THE HEARING AID. BY LAW, THE SELLER IS ALLOWED TO RETAIN AN ITEMIZED AMOUNT, NOT TO EXCEED FIVE PERCENT OF THE TOTAL CHARGE FOR THE HEARING AID, TO COVER THE COSTS OF A MANUFACTURER'S RETURN FEE AND THE MINIMUM COSTS OF MATERIALS USED BY THE REGISTERED HEARING AID PROVIDER, UNLESS THE HEARING AID IS RETURNED BECAUSE IT IS DEFECTIVE."
(B) The written contract or receipt provided to the buyer shall also contain a statement, in print size no smaller than ten-point type, that the sale is void and unenforceable if the hearing aid being purchased is not delivered to the consumer within thirty days after the date the written contract is signed or the receipt is issued, whichever occurs later. The written contract or receipt shall also include the registered hearing aid provider's registration number and a statement that the registered hearing aid provider shall promptly refund all moneys paid for the purchase of a hearing aid if it is not delivered to the consumer within such thirty-day period. Such statement is not subject to waiver by the buyer.
(IV) A refund request form shall be attached to each receipt and shall contain the information in subparagraph (I) of paragraph (a) of this subsection (2) and the statement, in all capital letters of no less than ten-point bold-faced type: "Refund request - this form must be postmarked by (Date to be filled in). No refund will be given until the hearing aid or hearing aids are returned to the seller." A space for the buyer's address, telephone number, and
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signature must be provided. The buyer shall only be required to sign, list the buyer's current address and telephone number, and mail the refund request form to the seller. If the hearing aid is sold in the buyer's home, at the buyer's option, the seller shall be responsible for arranging the return of the hearing aid.
(f) Represents that the service or advice of a person licensed to practice medicine will be used or made available in the selection, fitting, adjustment, maintenance, or repair of hearing aids when that is not true or using the terms "doctor", "clinic", "state-licensed clinic", "state-registered", "state-certified", or "state-approved" or any other term, abbreviation, or symbol when it would falsely give the impression that service is being provided by persons trained in medicine or that the hearing aid dealer's service has been recommended by the state when such is not the case; or when that would be false or misleading;
(g) Directly or indirectly gives or offers to give or permits or causes to be given money or anything of value to any person who advises another in a professional capacity as an inducement to influence such person or have such person influence others to purchase or contract to purchase products sold or offered for sale by a registered hearing aid provider or influences persons to refrain from dealing in the products of competitors;
(h) Dispenses a hearing aid to a person who has not been given tests utilizing appropriate established procedures and instrumentation in the fitting of hearing aids, except in cases of selling replacement hearing aids within one year after the date of the original purchase;
(i) Makes a false or misleading statement of fact concerning goods or services or the buyer's right to cancel with the intention or effect of deterring or preventing the buyer from exercising the buyer's right to cancel;
(j) Charges, collects, or recovers any cost or fee for any good or service that has been represented by the registered hearing aid provider as free.
(3) Fines collected pursuant to this part 7 shall be distributed in the following manner: Fifty percent shall be divided by the court between state and local law enforcement agencies assisting with the prosecution, including but not limited to the office of the attorney general and the district attorney's office, and fifty percent shall be paid to the state treasurer, who shall credit the same to the general fund.
6-1-702. Unsolicited facsimiles - deceptive trade practice. (1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such person:
(a) Uses a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;
(b) Uses a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission:
(I) The date and time the facsimile is sent;
(II) An identification of the person sending the facsimile; and
(III) The telephone number of the sending machine of the person; or
(c) Violates 47 U.S.C. sec. 227 or any rule promulgated thereunder.
(2) For the purposes of this section, unless the context otherwise requires:
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(a) "Telephone facsimile machine" means equipment that has the capacity to:
(I) Transcribe text or images from paper into an electronic signal and to transmit that signal over a regular telephone line; or
(II) Transcribe text or images from an electronic signal received over a regular telephone line onto paper.
(b) "Unsolicited advertisement" means material that advertises the commercial availability or quality of any property, good, or service and that is transmitted to a person without that person's prior express invitation or permission.
(3) (a) The provisions of this section shall not apply to:
(I) A person who has an existing business relationship with the person receiving a facsimile; or
(II) A nonprofit organization operating pursuant to 26 U.S.C. sec. 501(c) of the federal "Internal Revenue Code of 1986", as amended, that sends a facsimile to a nonmember recipient, if the nonprofit organization has received, by facsimile or other means, such nonmember recipient’s prior express written invitation or permission to deliver facsimiles that includes the recipient’s signature and facsimile number.
(b) For the purposes of this subsection (3), “existing business relationship” means a relationship formed by a voluntary two-way communication between a person or entity and a residential or business subscriber, with or without an exchange of consideration on the basis of an inquiry, application, purchase, membership, or transaction by the residential or business subscriber regarding products or services offered by such person or entity.
6-1-703. Time shares -- deceptive trade practices. (1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such person engages in one or more of the following activities in connection with the advertisement or sale of a time share:
(a) Misrepresents the investment, resale, or rental value of any time share; the conditions under which a purchaser may exchange the right to use accommodations or facilities in one location for the right to use accommodations or facilities in another location; or the period of time during which the accommodations or facilities contracted for will be available to the purchaser;
(b) Fails to allow any purchaser of a time share a right to rescind the sale within five calendar days after the sale;
(c) Fails to provide conspicuous notice on the contract of the right of a purchaser of a time share to rescind the sale either by telegram, mail, or hand delivery. For purposes of this section, notice of rescission is considered given, if by mail when postmarked, if by telegram when filed for telegraphic transmission, or if by hand delivery when delivered to the seller's place of business.
(d) Fails to refund any down payment or deposit made pursuant to a time share contract within seven days after the seller receives the purchaser's written notice of rescission.
6-1-704. Health clubs -- deceptive trade practices. (1) A person engages in a deceptive trade practice when, in the course of such person's business, vocation, or occupation, such
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person engages in one or more of the following activities in connection with the advertisement or sale of a membership in a health club:
(a) Fails to allow any buyer of a membership in a health club to rescind the membership contract within three business days after receipt by the buyer of a copy of the contract;
(b) Fails to provide conspicuous notice of the right of a purchaser of a health club membership to rescind the sale either by telegram, mail, or hand delivery. For purposes of this section, notice of rescission is considered given, if by mail when postmarked, if by telegram when filed for telegraphic transmission, or if by hand delivery when delivered to the seller's place of business.
(c) Fails to allow the buyer, or the estate of the buyer, to cancel the membership contract when:
(I) The buyer dies;
(II) The buyer becomes totally physically disabled as determined by a licensed physician for the duration of the membership contract;
(III) The health club is moved to a location that is more than five miles from the location of the establishment when the buyer entered into the membership contract;
(IV) The membership in the health club is transferred to a location of the same club or another club, which location is more than five miles from the location of the club when the buyer entered into the contract, and this transfer occurs because of cessation of health club services at the club location from which the membership is transferred;
(V) The seller permanently discontinues operation of the health club or sells the health club and the sale results in substantial alteration of the quality of health club services or facilities or the nature of benefits so that they no longer conform to the provisions of the membership contract, but there shall be a thirty-day "right to cure" during which the fees payable by the buyer under the membership contract shall be suspended and the health club may bring the services, facilities, and benefits into conformance with the provisions of the membership contract;
(d) Fails to refund all payments made pursuant to the membership contract, less a prorated fee for days of actual use of the health club by the buyer, within fifteen days after the seller receives the buyer's written notice of rescission;
(e) When a health club is planned or under construction, and the sale of the membership takes place before the health club is completed, fails to:
(I) Disclose clearly and conspicuously in the membership contract the date on which the health club will open for use;
(II) Escrow all preopening membership sales receipts in a separate account in a bank or trust company doing business in the state of Colorado or provide a cash bond, letter of credit, certificate of deposit, or other similar surety, in the amount of fifty thousand dollars, for the repayment of amounts actually paid under preopening membership agreements until the health club is open for business;
(III) Allow the buyer to cancel the membership contract and receive a full refund of all payments made pursuant to the membership contract if the date the health club will open for use is delayed more than sixty days from the date of opening specified in the membership contract;
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(f) Sells any membership contract, the actual or financial duration of which, including any option to renew, is longer than twenty-four months; except that a person does not engage in a deceptive trade practice when such person sells any membership contract the actual or financial duration of which is not longer than thirty-six months with a buyer's option to renew annually thereafter if:
(I) The health club has been in operation in this state more than two years; and
(II) The health club maintains a bond with a corporate surety from a company authorized to do business in this state or other security acceptable to and approved by the attorney general; and
(III) The aggregate amount of the bond is one hundred thousand dollars for each club location; and
(IV) The bond is payable to the state for the benefit of any buyer injured in the event the health club goes out of business prior to the expiration of the buyer's membership contract; and
(V) The bond is maintained for so long as the health club has any membership contracts in place and outstanding, the specified term for which exceeds twenty-four months; and
(VI) The bond is not cancelled, revoked, or terminated except after notice to, and with the written consent of, the attorney general at least forty-five days in advance of such cancellation, revocation, or termination; and
(VII) The annual renewal option for continued membership contained in the membership contract is not automatic but requires that the buyer affirmatively accept the renewal option by notice in writing to the person selling the membership contract for reasonable consideration on or before the expiration of each contract term, but not more than six months prior to the expiration of any contract term; and
(VIII) In the event that the health club elects to cancel, revoke, or terminate the bond, it posts a
