Senate Bill No. 496
(By Senator Sprouse)
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[Introduced February 15, 2000; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact section one hundred two, article six,
chapter forty-six-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
article ten, chapter sixty-one of said code by adding
thereto a new section, designated section thirty-two, all
relating to creating the criminal offense of scalping
admission tickets to entertainment and athletic events;
penalties; and defining ticket scalping as an unfair or
deceptive act or practice subject to state consumer
protection laws.
Be it enacted by the Legislature of West Virginia:
That section one hundred two, article six, chapter forty-six-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that article ten, chapter sixty-one of said code be amended by
adding thereto a new section, designated section thirty-two, all
to read as follows:
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-102. Definitions.
When used in this article the following words, terms and
phrases and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where
the context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or
circulation of any matter, oral or written, including labeling,
which tends to induce, directly or indirectly, any person to
enter into any obligation, sign any contract or acquire any title
or interest in any goods or services and includes every word
device to disguise any form of business solicitation by using
such terms as "renewal," "invoice," "bill," "statement" or
"reminder," to create an impression of existing obligation when there is none, or other language to mislead any person in
relation to any sought-after commercial transaction.
(b) "Consumer" means a natural person to whom a sale or
lease is made in a consumer transaction, and a "consumer
transaction" means a sale or lease to a natural person or persons
for a personal, family, household or agricultural purpose.
(c) "Merchantable" means, in addition to the qualities
prescribed in section three hundred fourteen, article two,
chapter forty-six of this code, that the goods conform in all
material respects to applicable state and federal statutes and
regulations establishing standards of quality and safety of goods
and, in the case of goods with mechanical, electrical or thermal
components, that the goods are in good working order and will
operate properly in normal usage for a reasonable period of time.
(d) "Sale" includes any sale, offer for sale or attempt to
sell any goods for cash or credit or any services or offer for
services for cash or credit.
(e) "Trade" or "commerce" means the advertising, offering
for sale, sale or distribution of any goods or services and shall
include any trade or commerce, directly or indirectly, affecting
the people of this state.
(f) "Unfair methods of competition and unfair or deceptive
acts or practices" means and includes, but is not limited to, any
one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding
as to the source, sponsorship, approval or certification of goods
or services;
(3) Causing likelihood of confusion or of misunderstanding
as to affiliation, connection or association with or
certification by another;
(4) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities that they do not have, or that a person has a
sponsorship, approval, status, affiliation or connection that he
or she does not have;
(6) Representing that goods are original or new if they are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand;
(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular
style or model, if they are of another;
(8) Disparaging the goods, services or business of another
by false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell
them as advertised;
(10) Advertising goods or services with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(11) Making false or misleading statements of fact
concerning the reasons for, existence of or amounts of price
reductions;
(12) Engaging in any other conduct which similarly creates
a likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any
deception, fraud, false pretense, false promise or
misrepresentation, or the concealment, suppression or omission of
any material fact with intent that others rely upon such
concealment, suppression or omission, in connection with the sale
or advertisement of any goods or services, whether or not any
person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing,
distributing or broadcasting, or causing to be advertised,
printed, displayed, published, distributed or broadcast in any
manner, any statement or representation with regard to the sale
of goods or the extension of consumer credit including the rates,
terms or conditions for the sale of such goods or the extension
of such credit, which is false, misleading or deceptive or which
omits to state material information which is necessary to make
the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a
group of prizes or any other thing of value, if receipt of the
prize or thing of value is contingent upon any payment of a
service charge, mailing charge, handling charge or any other
similar charge by the person or upon mandatory attendance by the
person at a promotion or sales presentation at the sellers place
of business or any other location: Provided, That a person may
be offered one item or the choice of several items conditioned on
the person listening to a sales promotion or entering a consumer
transaction if the true retail value and an accurate description
of the item or items are clearly and conspicuously disclosed
along with the person's obligations upon accepting the item or items; such description and disclosure shall be typewritten or
printed in at least eight point regular type, in upper or lower
case, where appropriate; or
(16) Violating any provision or requirement of article six-b
of this chapter; or
(17) Engaging in ticket scalping as defined in section
thirty-two, article ten, chapter sixty-one of this code.
(g) "Warranty" means express and implied warranties
described and defined in sections three hundred thirteen, three
hundred fourteen and three hundred fifteen, article two, chapter
forty-six of this code and expressions or actions of a merchant
which assure the consumer that the goods have described qualities
or will perform in a described manner.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.
§61-10-32. Ticket scalping; penalty.
(a) No person may resell, offer for resale or attempt to
resell any ticket, privilege or license of admission to an
entertainment event, including, but not limited to, any place of
amusement area, stadium, theater, performance, sport, exhibition
or athletic contest given in this state, at a price greater than the price, including tax, printed thereon, or a price greater
than the price fixed for admission, including tax, and a
reasonable service charge for services actually rendered not to
exceed ten percent of the price fixed for admission. The owner
or operator of the property on which the entertainment event is
to be held or is being held or the person or entity presenting
the event may authorize in writing any person to sell such
ticket, privilege or license of admission at a price in excess of
that authorized under this section. A person violating the
provisions of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
fifty dollars nor more than one thousand dollars. The sale of
each ticket, privilege or license of admission in violation of
the provisions of this section constitutes a separate offense.
(b) For purposes of this section, "resale, offer for resale
or attempt to resell" means any sale of a ticket other than a
sale by the operator or the operator's agent who is expressly
authorized to sell such tickets. "Resale" shall also include a
sale or attempted sale by any method, including in person, or by
telephone, mail, newspaper advertisement, delivery service,
facsimile or other electronic device, where either the buyer or the seller is located in this state.
NOTE: The purpose of this bill is to create the criminal
offense of scalping admission tickets to entertainment and
athletic events, and to further define ticket scalping as an
unfair or deceptive act or practice subject to state consumer
protection laws.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§61-10-32 is new; therefore, strike-throughs and
underscoring have been omitted.