Cross references. - Declaration that contracts in general restraint of trade contravene public policy, § 13-8-2 .

Criminal penalty for theft of trade secrets, § 16-8-13 .

State purchasing, § 50-5-50 et seq.

Powers and duties of Board of Industry and Trade relating to commerce and trade, § 50-7-7 et seq.

CHAPTER 1 SELLING AND OTHER TRADE PRACTICES

Retail Installment and Home Solicitation Sales.

Motor Vehicle Sales Financing.

Unsolicited Merchandise.

Furnishing Names of Prospective Purchasers.

Labeling Remanufactured or Rebuilt Items.

Interstate Purchase of Rifles and Shotguns.

Sale of Paints and Flaxseed or Linseed Oil.

Sale of Petroleum Products, Brake Fluid, and Antifreeze.

P ETROLEUM PRODUCTS .

B RAKE FLUID .

A NTIFREEZE .

Gasoline Marketing Practices.

Below Cost Sales.

Sale and Storage of Liquefied Petroleum Gas.

Bidding by Motion Picture Exhibitors.

Organized Retail Crime Prevention.

Book, Periodical, or Newspaper Tie-in Sales.

Secondary Metals Recyclers.

Flea Market Vendors' Record Keeping.

Deceptive or Unfair Practices.

U NIFORM DECEPTIVE TRADE PRACTICES ACT .

A DMINISTRATIVE RESOLUTION .

F AIR BUSINESS PRACTICES ACT .

M ULTILEVEL DISTRIBUTION COMPANIES; SALE OF BUSINESS OPPORTUNITIES .

F ALSE ADVERTISING .

L IMITED EDITION ART REPRODUCTIONS .

D ISASTER RELATED VIOLATIONS .

F IREARMS INDUSTRY NONDISCRIMINATION .

Trademarks, Service Marks, and Trade Names.

R EGISTRATION AND USE OF TRADEMARKS AND SERVICE MARKS .

N AMES AND EMBLEMS OF FRATERNAL, CHARITABLE, AND OTHER ORGANIZATIONS .

R EGISTRATION OF BUSINESSES USING TRADE NAMES .

Rights in Works of Fine Art.

Consignment of Art.

Georgia Museum Property.

Auctioneers.

Sunday Motion Picture Shows and Athletic Events [Repealed].

Common Day of Rest.

Buying Services.

Motor Vehicle Franchise Practices.

G ENERAL CONSIDERATION .

M OTOR VEHICLE DEALER'S DAY IN COURT .

M OTOR VEHICLE WARRANTY PRACTICES .

M OTOR VEHICLE FRANCHISE CONTINUATION AND SUCCESSION .

M OTOR VEHICLE FAIR PRACTICES .

E NFORCEMENT OF ARTICLE BY COMMISSIONER OF MOTOR VEHICLE SAFETY .

I MPAIRMENT OF OBLIGATIONS .

Marine Manufacturers.

Recreational Vehicle Dealers.

Lease-Purchase Agreements.

Wholesale Distribution by Out-of-State Principal.

Retail Petroleum Product Dealers.

Multiline Heavy Equipment Dealers.

Trade Secrets.

Bad Faith Assertions of Patent Infringement.

Georgia Lemon Law.

Farm Tractor Warranty Act.

Beauty Pageants.

Unfair or Deceptive Practices Toward the Elderly.

Assistive Technology Warranties.

Motorized Wheelchair Warranties.

Identity Theft.

Law reviews. - For annual survey article discussing developments in commercial law, see 52 Mercer L. Rev. 143 (2000). For note on 1999 amendments and enactments of Code sections in this chapter, see 16 Ga. St. U.L. Rev. 12 (1999).

RESEARCH REFERENCES

Violation of the Truth-In-Lending Act and Regulation Z, 73 POF3d 275.

ALR. - Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law, 54 A.L.R.5th 631.

ARTICLE 1 RETAIL INSTALLMENT AND HOME SOLICITATION SALES

Cross references. - Criminal penalty for offense of improper solicitation of money, § 16-9-52 .

Criminal penalty for false statements by telephone solicitors, § 16-9-54 .

Law reviews. - For article discussing federal truth-in-lending provisions and their relation to state laws, see 6 Ga. St. B. J. 19 (1969). For article, "Acceleration Clauses in Georgia: Consumer Installment Contracts and the Federal Truth-In-Lending Act," see 27 Mercer L. Rev. 969 (1976). For article discussing methods of computation of finance charges in Georgia consumer credit contracts, see 30 Mercer L. Rev. 281 (1978). For annual survey of commercial law, see 35 Mercer L. Rev. 53 (1983). For article, "The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement," see 24 Ga. St. U.L. Rev. 663 (2008). For note discussing transfer fees in home loan assumptions in reference to the Georgia usury laws, see 9 Ga. L. Rev. 454 (1975).

JUDICIAL DECISIONS

Construction. - Ga. L. 1967, p. 659, § 1 et seq. must be strictly construed. Busby v. Sea Island Bank, 151 Ga. App. 412 , 260 S.E.2d 485 (1979).

Decisions are sui generis. - Decisions under Ga. L. 1967, p. 659, § 1 et seq. are to be treated sui generis. Bell v. Loosier of Albany, Inc., 140 Ga. App. 393 , 231 S.E.2d 142 (1976).

Ga. L. 1967, p. 659, § 1 et seq. and Ga. L. 1955, p. 431, § 1 et seq. are different in their purpose and effect, and the provisions of one are not controlling in the interpretation of the other. Liberty Loan Corp. v. Childs, 140 Ga. App. 473 , 231 S.E.2d 352 (1976), cert. dismissed, 239 Ga. 220 , 236 S.E.2d 373 (1977).

Decisions under this article as evidence of intent of Ch. 3, T. 7. - Judicial construction of O.C.G.A. Art. 1, Ch. 1, T. 10 is weak evidence of legislative intent in enacting the Georgia Industrial Loan Act, O.C.G.A. § 7-3-1 et seq. Ford v. Termplan, Inc., 528 F. Supp. 1016 (N.D. Ga. 1981).

Decisions under O.C.G.A. § 7-3-1 et seq. inapplicable. - Decisions rendered under Ga. L. 1955, p. 431, § 1 are not applicable to Ga. L. 1967, p. 659, § 1 et seq. Bell v. Loosier of Albany, Inc., 140 Ga. App. 393 , 231 S.E.2d 142 (1976).

Sales of motor vehicles. - Ga. L. 1967, p. 659, § 1 et seq. does not apply to the sale of a motor vehicle. Holder v. Brock, 129 Ga. App. 732 , 200 S.E.2d 912 (1973), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818 , 237 S.E.2d 223 (1977).

Conflict with UCC as to security agreement. - Parties may contract to create a security interest which will then be governed by provisions of Ga. L. 1962, p. 156, § 1 unless those provisions conflict with the specific terms in Ga. L. 1967, p. 659, § 1 et seq. Brown v. Jenkins, 135 Ga. App. 694 , 218 S.E.2d 690 (1975).

Assignee or transferee of a retail installment contract is not given holder in due course status under Ga. L. 1967, p. 659, § 1 et seq. Geiger Fin. Co. v. Graham, 123 Ga. App. 771 , 182 S.E.2d 521 (1971), commented on in 8 Ga. St. B.J. 400 (1972).

Assignee or transferee takes contract subject to defenses against assignor. - Under simple contract law, an assignee or transferee takes a retail installment contract subject to any defenses that could be asserted against the assignor. Geiger Fin. Co. v. Graham, 123 Ga. App. 771 , 182 S.E.2d 521 (1971), commented on in 8 Ga. St. B.J. 400 (1972).

Cited in Smith v. Singleton, 124 Ga. App. 394 , 184 S.E.2d 26 (1971); Pike v. Universal C.I.T. Credit Corp., 125 Ga. App. 83 , 186 S.E.2d 482 (1971); Grimes v. Community Loan & Inv. Corp., 130 Ga. App. 8 , 202 S.E.2d 265 (1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 589 et seq.

ALR. - Quantum, degree, or weight of evidence to sustain usury charge, 51 A.L.R.2d 1087.

Scope and exceptions of state deceptive trade practice and consumer protection acts, 85 A.L.R.3d 399.

Coverage of insurance transactions under state consumer protection statutes, 77 A.L.R.4th 991.

What constitutes Truth in Lending Act violation which "was not intentional and resulted from bona fide error not withstanding maintenance of procedures reasonably adapted to avoid any such error" within meaning of § 130(c) of Act (15 USCA § 1640(c)), 153 A.L.R. Fed. 193.

10-1-1. Short title.

This article shall be known and may be cited as "The Retail Installment and Home Solicitation Sales Act."

(Ga. L. 1967, p. 659, § 1.)

10-1-2. Definitions; construction.

  1. As used in this article, the term:
    1. "Cash sale price" means the price for which the seller would have sold or furnished to the buyer and the buyer would have bought or obtained from the seller the goods or services which are the subject matter of the retail installment transaction if such sale had been a sale for cash. The cash sale price may include any applicable taxes and charges for delivery, installation, servicing, repairs, alterations, or improvements.
    2. "Goods" means all personalty when purchased primarily for personal, family, or household use, including certificates or coupons issued by a retail seller exchangeable for personalty or services, but not including motor vehicles. The term "goods" includes such personalty which is furnished or used at the time of sale or subsequently in the modernization, rehabilitation, repair, alteration, improvement, or construction of real property so as to become a part thereof, whether or not severable therefrom.
    3. "Holder" of a retail installment contract means the retail seller of the goods or services under the contract or, if the contract is purchased by a sales finance company or other assignee, the sales finance company or other assignee at the time of the determination.
    4. "Home solicitation sale" means a consumer credit sale in which the purchase price is payable in installments and the seller or his representative solicits the sale in person and the buyer's agreement or offer to purchase is made at a home other than that of the person soliciting the sale and the contract is signed at the time of such solicitation.
    5. "Motor vehicle" means any device or vehicle operated over the public highways and streets of this state and propelled by other than muscular power but does not include traction engines, road rollers, implements of husbandry and other agricultural equipment, and such vehicles as run only upon a track.
    6. "Official fees" means the fees prescribed by law for filing, recording, or otherwise perfecting or releasing or satisfying any title or lien retained or taken by a seller in connection with a retail installment transaction.
    7. "Person" means an individual, partnership, corporation, association, and any other group however organized.
    8. "Retail buyer" or "buyer" means a person who buys goods or obtains services from a retail seller in a retail installment transaction and not principally for the purpose of resale.
    9. "Retail installment contract" or "contract" means an instrument or instruments reflecting one or more retail installment transactions entered into in this state pursuant to which goods or services may be paid for in installments. The term includes a series of transactions made pursuant to an instrument or instruments providing for the addition of the amount financed plus the time price differential for the current sale to an existing balance. It does not include a revolving account or an instrument reflecting a sale pursuant thereto.
    10. "Retail installment transaction" or "transaction" means any transaction to sell or furnish or the sale of or the furnishing of goods or services evidenced by a retail installment contract or a revolving account.
    11. "Retail seller" or "seller" means a person regularly engaged in, and whose business consists to a substantial extent of, selling goods or services to a retail buyer. The term also includes a seller who regularly grants credit to retail buyers for the purpose of purchasing goods or services from any other person pursuant to a retail installment contract or a revolving charge account.
    12. "Revolving account" or "account" means an instrument or instruments prescribing the terms of retail installment transactions which may be made thereafter from time to time pursuant thereto, under which the buyer's total unpaid balance, whenever incurred, is payable in installments over a period of time and under the terms of which a time price differential or finance charge is to be computed in relation to the buyer's balance from time to time.
    13. "Sales finance company" means a person engaged in the business of purchasing retail installment contracts from one or more retail sellers. The term includes but is not limited to a bank, trust company, or installment loan company, if so engaged. The term does not include the pledge of an aggregate number of such contracts to secure a bona fide loan thereon.
    14. "Services" means:
      1. Work, labor, or other personal services furnished for personal, family, or household use, whether or not furnished in connection with the delivery, installation, servicing, repair, or improvement of goods, and includes such work, labor, or personal services furnished in connection with the modernization, rehabilitation, repair, alteration, improvement, or construction upon or in connection with real property;
      2. Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, and the like; and
      3. Insurance provided in connection with a retail installment transaction.
    15. "Time price differential" means the amount, however denominated or expressed, paid or payable for the privilege of purchasing goods or services to be paid for by the buyer in installments; it does not include the amounts, if any, charged for insurance premiums, delinquency charges, attorneys' fees, court costs, or official fees.
  2. The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to this article.

    (Ga. L. 1967, p. 659, § 2; Ga. L. 1968, p. 1088, §§ 1, 2; Ga. L. 1976, p. 721, § 1; Ga. L. 1978, p. 1455, § 1; Ga. L. 1982, p. 3, § 10; Ga. L. 2020, p. 156, § 8/SB 462.)

The 2020 amendment, effective June 30, 2020, substituted "installment loan" for "industrial loan" in the second sentence of paragraph (a)(13). See the Editor's notes for applicability.

Cross references. - Finished goods defined for purposes of Level 2 Freeport Exemption, § 48-5-48.6 .

Editor's notes. - Ga. L. 2020, p. 156, § 10/SB 462, not codified by the General Assembly, provides that: "This Act shall apply to all installment loan agreements entered into on and after July 1, 2020."

JUDICIAL DECISIONS

Motor vehicles. - Ga. L. 1967, p. 659, § 1 et seq. does not apply to the sale of a motor vehicle in view of paragraph (a)(2) of Ga. L. 1967, p. 659, § 2. Holder v. Brock, 129 Ga. App. 732 , 200 S.E.2d 912 (1973), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818 , 237 S.E.2d 223 (1977).

Mobile homes. - A mobile home falls within the definition of a "motor vehicle". Holder v. Brock, 129 Ga. App. 732 , 200 S.E.2d 912 (1973), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818 , 237 S.E.2d 223 (1977).

Farm equipment. - O.C.G.A. Art. 1, Ch. 1, T. 10 is not applicable to farm equipment such as a tobacco combine. Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459 , 288 S.E.2d 711 (1982).

Commercial accounts. - Charges of 11/2 percent on the unpaid balance on a commercial account were not authorized by the Retail Installment and Home Solicitation Sales Act, O.C.G.A. § 10-1-1 et seq., even though the agreement involved was in the form set forth in the Retail Installment and Home Solicitation Sales Act because that statute applies only to purchases for personal, family, or household use. Gold Kist, Inc. v. McNair, 166 Ga. App. 66 , 303 S.E.2d 290 (1983).

Obligation arising out of farm supplies supplied to a farmer in the farmer's business is clearly a commercial account and is not a retail installment transaction. McNair v. Gold Kist, Inc., 166 Ga. App. 782 , 305 S.E.2d 478 (1983).

Cited in Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972); Welmaker v. W.T. Grant Co., 365 F. Supp. 531 (N.D. Ga. 1972); Brown v. Jenkins, 135 Ga. App. 694 , 218 S.E.2d 690 (1975); Farmers Mut. Exch. of Wrens, Inc. v. Rabun, 145 Ga. App. 798 , 245 S.E.2d 52 (1978); Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135 , 345 S.E.2d 621 (1986).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 5 et seq.

ALR. - Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.

10-1-3. Requirements for retail installment contracts; time price differential; prepayment; inclusion of construction permit costs.

  1. Every retail installment contract shall be in writing and shall be completed as to all essential provisions prior to the signing thereof by the buyer, except as provided in subsection (f) of this Code section. The printed portion of the contract, other than instructions for completion, shall be in at least six-point type. The contract shall contain substantially the following notice in clear and conspicuous type:

    Do not sign this before you read it or if it contains any blank spaces. You are entitled to an exact copy of the paper you sign. You have the right to pay in advance the full amount due and under certain conditions to obtain a partial refund of the time price differential."

    The contract shall contain the names of the seller and the buyer, the place of business of the seller, and the residence or place of business of the buyer as specified by the buyer.

  2. The maximum number of payments and the amount and date of each payment need not be separately listed if the payments are stated in terms of a series of scheduled amounts and if the amount of the final payment does not exceed by more than 50 percent the scheduled amount of any of the preceding installments; in such cases, the amount of the scheduled final payment shall be stated as the remaining unpaid balance. The initial date for the payment of the first installment may be a calendar date or may refer to the time of delivery or installation.
  3. A retail installment contract need not be contained in a single document. If the contract is contained in more than one document, then one such document may be an original document applicable to purchases of goods or services to be made by the retail buyer from time to time.
    1. Notwithstanding any other law, the seller under a retail installment contract may charge, receive, and collect a time price differential, which shall not exceed 13› per $1.00 per year on the unpaid balance.
    2. The time price differential under this subsection shall be computed on the unpaid balance of each transaction on contracts payable in successive monthly payments substantially equal in amount for the period from the date of the contract to and including the date when the final installment thereunder is payable. When a retail installment contract is payable other than in successive monthly payments substantially equal in amount, the time price differential may be at the effective rate provided in this subsection, having due regard for the schedule of payments. The time price differential may be computed on the basis of a full month for any fractional month period in excess of ten days. Notwithstanding the other provisions of this subsection, a minimum time price differential not in excess of the following amounts may be charged on any retail installment contract: $12.00 on any retail installment contract involving an initial unpaid balance of $50.00 or more, $7.50 on a retail installment contract involving an initial unpaid balance of more than $25.00 and less than $50.00, and $5.00 on a retail installment contract involving an initial unpaid balance of $25.00 or less. As used in this subsection, "unpaid balance" shall be determined in accordance with Section 226.8(c) of Regulation Z promulgated by the Board of Governors of the Federal Reserve System pursuant to Title I (Truth in Lending Act) and Title V (General Provisions) of the Consumer Credit Protection Act (Public Law 90-321; 82 Stat. 146, et seq.) as the same existed upon its becoming effective on July 1, 1969.
  4. The seller shall present a completed copy of the retail installment contract to the buyer at the time it is signed by the buyer. Any acknowledgment by the buyer of receipt of a copy of the contract shall be in clear and conspicuous type and, if contained in the contract, shall appear directly above the buyer's signature.
  5. No retail installment contract shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed, except that, if delivery of the goods or services is not made at the time of execution of the contract, the identification of the goods or services and the due date of the first installment may be left blank and later inserted by the seller in the seller's counterpart of the contract after it has been signed by the buyer. The buyer's written acknowledgment, conforming to the requirements of subsection (e) of this Code section, of delivery of a copy of a contract shall be presumptive proof in any action or proceeding of such delivery and that the contract, when signed, did not contain any blank spaces as provided in this subsection.
  6. The seller under any retail installment contract shall, within 30 days after execution of the contract, deliver or mail or cause to be delivered or mailed to the buyer at his or her aforesaid address any policy or policies of insurance the seller has agreed to purchase in connection therewith or in lieu thereof a certificate or certificates of such insurance. The amount, if any, included for insurance shall not exceed the applicable premiums chargeable in accordance with the rates filed with the Department of Insurance; if any such insurance is canceled, unearned insurance premium refunds received by the holder shall be credited to the final maturing installment of the contract except to the extent applied toward the payment for similar insurance protecting the interests of the seller and the holder or either of them. Nothing in this article shall impair or abrogate the right of a buyer to procure insurance from an agent and company of his or her own selection, as provided by the insurance laws of this state; and nothing contained in this article shall modify, alter, or repeal any of the insurance laws of this state.
  7. If the buyer so requests, the holder shall give or forward to the buyer a receipt for any payment when made in cash.
  8. Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may prepay in full at any time before maturity the unpaid balance of any retail installment contract and in so paying the unpaid balance shall receive a refund credit thereon for such anticipation of payments. The amount of the refund shall represent at least as great a proportion of the time price differential after first deducting therefrom an acquisition cost of $20.00 as the sum of the monthly time balances, beginning one month after prepayment is made, bears to the sum of all the monthly time balances under the schedule of payments in the contract. This method of refund upon prepayment is commonly referred to as the "Rule of 78" or the "Sum of the Digits" refund method. Where the amount of the refund credit is less than $1.00, no refund need be made.
  9. In a retail installment transaction involving the modernization, rehabilitation, repair, alteration, improvement, or construction of real property, the buyer may be charged for and there may be collected from him or there may be added to the cash sale price the reasonable fees and costs actually to be paid for construction authorizations and similar permits issued by public agencies.

    (Ga. L. 1967, p. 659, § 3; Ga. L. 1970, p. 98, § 1; Ga. L. 1981, p. 1797, § 1; Ga. L. 1998, p. 569, § 1; Ga. L. 2000, p. 136, § 10; Ga. L. 2019, p. 337, § 1-95/SB 132.)

"Notice to the Buyer

The 2019 amendment, effective July 1, 2019, in subsection (g), inserted "or her" in the middle of the first sentence and third sentences, and substituted "Department of Insurance" for "Insurance Department" in the middle of the second sentence.

Cross references. - Prohibition against suspension of gas or electrical service for failure to make payments on appliances purchased from or repaired by gas or electric utility company, § 16-12-3 .

Editor's notes. - Ga. L. 1998, p. 569, § 2, not codified by the General Assembly, provided that the 1998 amendment was applicable to all retail installment contracts entered into on or after July 1, 1998.

U.S. Code. - Title I of the Consumer Credit Protection Act, referred to in subsection (d) of this Code section, is codified as 15 U.S.C. § 1601 et seq.

Title V of the Consumer Credit Protection Act, referred to in subsection (d) of this Code section, appears as various sections throughout 15 U.S.C.

Law reviews. - For note discussing impact of federal truth-in-lending legislation on state law, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS

All provisions of signed contract are "essential". - Once a retail installment contract is reduced to writing and signed, all the contract's provisions must be regarded as "essential provisions." Cook-Davis Furn. Co. v. Duskin, 134 Ga. App. 264 , 214 S.E.2d 565 (1975).

Amount due under acceleration clause. - Since a contract contained a time price, payable in installments and the balance was declared due after a default by the vendee, the vendor was entitled to judgment for the full amount of the time price, not just the cash price plus interest on the judgment. Carter v. Whatley, 97 Ga. App. 10 , 101 S.E.2d 899 (1958) (decided prior to enactment of this section).

Effective date of insurance if contract is silent. - If a retail installment contract fails to state when insurance on purchased items would become effective, the contemplated effective date must be one which would afford protection at the time the risk of loss shifted to the buyer, which is the purpose of the insurance. Cook-Davis Furn. Co. v. Duskin, 134 Ga. App. 264 , 214 S.E.2d 565 (1975).

Violation in calculating interest rebate held no defense to recovery of goods. - Violation of Ga. L. 1967, p. 659, § 3, in calculating the interest rebate does not constitute a willful violation of Ga. L. 1967, p. 659, § 1 et seq., and it is not a defense to the grant of a writ of possession in the goods in which a secured creditor holds the security interest. Fluellen v. Commercial Credit Corp., 151 Ga. App. 373 , 259 S.E.2d 648 (1979).

Cited in Reese v. Termplan, Inc., 125 Ga. App. 473 , 188 S.E.2d 177 (1972); Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972); Brown v. Jenkins, 135 Ga. App. 694 , 218 S.E.2d 690 (1975); Bell v. Loosier of Albany, Inc., 237 Ga. 585 , 229 S.E.2d 374 (1976); Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223 , 223 S.E.2d 261 (1976); Bell v. Loosier of Albany, Inc., 140 Ga. App. 393 , 231 S.E.2d 142 (1976); Thomas v. Universal Guardian Corp., 144 Ga. App. 869 , 243 S.E.2d 101 (1978); Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979); Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135 , 345 S.E.2d 621 (1986).

RESEARCH REFERENCES

ALR. - Law of sales and liability in respect thereof as applied to transactions in self-service stores, 163 A.L.R. 238 .

Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.

What is "compound interest" within meaning of statutes prohibiting the charging of such interest, 10 A.L.R.3d 421.

Reformation of usurious contract, 74 A.L.R.3d 1239.

10-1-4. Requirements for revolving accounts; limitations on time price differential.

  1. Every revolving account shall be in writing and shall be completed prior to the signing thereof by the retail buyer. The printed portion, other than instructions for completion, of any revolving account shall be in at least six-point type. Any such account shall contain the names of the seller and the buyer, the place of business of the seller, and the residence or place of business of the buyer as specified by the buyer, and substantially the following notice in clear and conspicuous type:

    Do not sign this before you read it or if it contains any blank spaces. You are entitled to an exact copy of the paper you sign. You have the right to pay in advance the full amount due."

    A copy of any such account shall be delivered or mailed to the retail buyer by the retail seller prior to the date on which the first payment is due thereunder. Any acknowledgment by the buyer of delivery of a copy of the account shall be in clear and conspicuous type and, if contained in the account, shall appear directly above the buyer's signature. No account shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed. The buyer's acknowledgment, conforming to the requirements of this subsection, of delivery of a copy of an account shall be presumptive proof in any action or proceeding of such delivery and that the account, when signed, did not contain any blank spaces as provided in this subsection. A revolving account shall be presumed to be signed or accepted by the buyer if, after a request for a revolving account, such revolving account or application for a revolving account is in fact signed by the buyer or if such revolving account is used by the buyer or if such revolving account is used by another person authorized by the buyer to use it. The revolving account is not effective until: the buyer has received the disclosures required pursuant to the federal Truth in Lending Act, 15 U.S.C. Section 1601, et seq., as amended; the buyer or a person authorized by the buyer uses the revolving account; and the seller or its assignee extends credit to the buyer for transactions on the revolving account.

  2. Notwithstanding any other law, the seller under a revolving account may charge, receive, and collect a time price differential which shall not exceed 17.5› per $10.00 per month computed on all amounts unpaid thereunder from month to month (which need not be a calendar month) or other regular period. If the amount of time price differential so computed shall be less than $1.00 for any such month, a time price differential of $1.00 for any such month may be charged, received, and collected. If the regular period is other than such monthly period or if the unpaid amount is less than or greater than $10.00, the permitted time price differential shall be computed proportionately. Such time price differential may be computed for all unpaid balances within a range of not in excess of $10.00 on the basis of the median amount within such range if as so computed such time price differential is applied to all unpaid balances within such range.

    (Ga. L. 1967, p. 659, § 4; Ga. L. 1970, p. 98, § 2; Ga. L. 1981, p. 1795, § 1; Ga. L. 1997, p. 1403, § 1.)

"Notice to the Buyer

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 38 (1997).

JUDICIAL DECISIONS

Rate of interest on judgments. - Although former Code 1933, § 57-101 et seq. was inapplicable to revolving accounts, former Code 1933, § 57-108 did apply to the interest rates chargeable on judgments for actions on such accounts. Farmers Mut. Exch. of Wrens, Inc. v. Rabun, 145 Ga. App. 798 , 245 S.E.2d 52 (1978).

Security interest. - A security interest can be created in a credit transaction pursuant to a revolving account. Brown v. Jenkins, 135 Ga. App. 694 , 218 S.E.2d 690 (1975).

Cited in Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972); Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223 , 223 S.E.2d 261 (1976).

RESEARCH REFERENCES

C.J.S. - 77A C.J.S., Sales, § 368 et seq.

ALR. - Law of sales and liability in respect thereof as applied to transactions in self-service stores, 163 A.L.R. 238 .

Validity and construction of revolving charge account contract or plan, 41 A.L.R.3d 682.

Reformation of usurious contract, 74 A.L.R.3d 1239.

10-1-5. Mail order and telephone sales.

Retail installment contracts negotiated and entered into by mail or telephone without personal solicitation by salesmen or other representatives of the seller, where a catalogue of the seller or other printed solicitation of business which is distributed and made available generally to the public clearly sets forth the cash price and other terms of sales to be made through such medium, may be made as provided in this Code section. All of the provisions of this article relating to contracts shall apply to such sales, except that the seller shall not be required to deliver a copy of the contract to the buyer as provided in subsection (e) of Code Section 10-1-3; and, if the contract when received by the seller contains any blank spaces, the seller may insert in the appropriate blank space the amounts of money and other terms which are set forth in the seller's catalogue or other printed solicitation which is then in effect. In lieu of presenting the buyer with a copy of the contract as provided in subsection (e) of Code Section 10-1-3, the seller shall furnish to the buyer a written statement of any items inserted in the blank spaces in the contract received from the buyer.

(Ga. L. 1967, p. 659, § 5; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language twice in this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, §§ 114, 127et seq.

C.J.S. - 77A C.J.S., Sales, § 50 et seq.

10-1-6. Buyer's right to cancel home solicitation sale.

  1. The buyer shall have a right to cancel a home solicitation sale agreement until 12:00 Midnight of the third business day after the day on which the buyer signs the agreement.
  2. Notice of cancellation under this Code section shall be given to the seller at the place of business as set forth in the agreement by certified mail or statutory overnight delivery, return receipt requested, which shall be posted not later than 12:00 Midnight on the third business day following execution of the agreement.
  3. In the event of cancellation pursuant to this Code section, the installment seller shall refund to the buyer within ten days after the cancellation all deposits, including any down payment made under the agreement, and redeliver any goods traded in to the seller on account or in contemplation of the home solicitation sale agreement.
  4. In the event of cancellation pursuant to this Code section, the seller shall have the right to charge the buyer 5 percent of the gross sales price of the merchandise purchased by the buyer or $25.00, whichever is less, as liquidated damages. The seller shall also be entitled to reclaim and the buyer shall return, whenever possible, the home solicitation sale agreement. The buyer shall incur no additional liability for cancellation pursuant to this Code section.
  5. If the buyer has received the merchandise sold, the buyer must return that merchandise unused, in the same condition as received by the buyer. The seller shall pick up the merchandise at the place sold within a reasonable time after notice of cancellation; and the seller shall receive from the buyer at that time the actual cost of picking up the merchandise or $5.00, whichever is less.
  6. Notice of cancellation given by the buyer need not take any particular form and, however expressed, is effective if it indicates the intention of the buyer not to be bound by the home solicitation sale.

    (Ga. L. 1967, p. 659, § 6; Ga. L. 1971, p. 560, § 1; Ga. L. 1972, p. 432, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For note, "Pyramid Marketing Plans and Consumer Protection: State and Federal Regulation," see 21 J. of Pub. L. 445 (1972).

RESEARCH REFERENCES

ALR. - Nature, construction, and effect of "lay away" or "will call" plan or system, 10 A.L.R.3d 456.

10-1-7. Providing for payment of delinquency charges, attorneys' fees, court costs, and check dishonor fees.

  1. A retail installment contract or a revolving account may provide for payment by the buyer of a delinquency charge on any installment which is not paid within ten days from the date the payment is due. The charge may not exceed $25.00. A delinquent charge shall not be collected more than once for the same default. A retail installment contract or a revolving account may provide for the payment of reasonable attorneys' fees, if referred for collection to an attorney not a salaried employee of the retail seller, and for the payment of court costs.
  2. A retail installment contract or a revolving account may provide that if the buyer submits to the retail seller as payment for an unpaid balance, or portion thereof, in that account or pursuant to that contract, a check, draft, or order for the payment of money on any bank or other depository, which check, draft, or order is not honored by the drawee, then a delinquency charge as specified in subsection (a) of this Code section may be charged; and a bad instrument fee not to exceed the amount specified in subsection (j) of Code Section 16-9-20 and Code Section 13-6-15 may be charged to the buyer and added to the unpaid balance on the buyer's account if ten days have elapsed since the retail seller has mailed to the buyer at his or her last known address written notice of the failure to honor the check, draft, or order without the check, draft, or order having been made good. A fee authorized by this Code section shall not be deemed to be time price differential, interest, or any other type of finance charge and shall not be included in determining whether any limitations on time price differential, interest, or other finance charges have been exceeded.

    (Ga. L. 1967, p. 659, § 7; Ga. L. 1983, p. 1430, § 1; Ga. L. 1986, p. 207, § 1; Ga. L. 1991, p. 913, § 1; Ga. L. 1991, p. 1299, § 1; Ga. L. 1995, p. 346, § 1; Ga. L. 2000, p. 1352, § 2; Ga. L. 2001, p. 782, § 1; Ga. L. 2003, p. 809, § 1; Ga. L. 2007, p. 597, § 1/HB 240.)

RESEARCH REFERENCES

ALR. - Contractual provision for attorney's fees as including allowance for services rendered upon appellate review, 52 A.L.R.2d 863.

Award of attorneys' fees under § 813(a)(3) of Fair Debt Collection Practices Act (15 USCS § 1692k(a)(3)), 132 A.L.R. Fed. 477.

10-1-8. Security interest not taken on certain items; application of payments to revolving accounts; written agreements.

  1. Any security interest taken pursuant to a retail installment contract or revolving account shall not be taken with respect to clothing, softwares, and other nondurable items. Each payment with respect to a revolving account shall be applied to goods and services as follows: first to unpaid time price differential or finance charge; then, as to goods purchased on different dates, the first purchased shall be deemed first paid for; as to goods purchased on the same date, the lowest priced shall be deemed first paid for.
  2. Nothing contained in subsection (a) of this Code section shall prevent the parties from agreeing in writing for the payments to be otherwise applied; provided, however, that this Code section shall be construed consistently with Part 2 of Article 15 of this chapter, the "Fair Business Practices Act of 1975."  Nothing in this Code section shall be deemed to authorize any act or practice which would otherwise be deemed unfair and deceptive under Part 2 of Article 15 of this chapter, the "Fair Business Practices Act of 1975."

    (Ga. L. 1976, p. 721, § 2; Ga. L. 1994, p. 696, § 1.)

JUDICIAL DECISIONS

Section does not apply to duration of security interest. - This section, which provides that payments on revolving accounts are to be applied first to goods which are first purchased has nothing to do with the creation, duration, definition, or enforcement of purchase money security interests in consumer goods and, specifically, does not purport to terminate a security interest contrary to the clear terms of a security agreement. In re Norrell, 426 F. Supp. 435 (M.D. Ga. 1977).

Cited in Ragsdale v. Credithrift of Am., Inc. (In re Derritt), 20 Bankr. 476 (Bankr. N.D. Ga. 1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, §§ 253 et seq., 589.

ALR. - Validity and construction of revolving charge account contract or plan, 41 A.L.R.3d 682.

10-1-9. Transfer of retail installment contracts or revolving accounts.

  1. Any retail seller may assign, pledge, hypothecate, or otherwise transfer a retail installment contract or revolving account to any person, firm, or corporation on such terms and conditions and for such price as may be mutually agreed upon. Unless the buyer has notice of the assignment, payment thereunder made by the buyer to the last known owner of the contract or account shall be binding on all subsequent owners thereof.
  2. In no event will any such assignment bar any right of action against the seller arising as a result of this article, nor will any such assignment bar any defense against the sales finance company or other assignee arising as a result of subsection (b) of Code Section 10-1-15.

    (Ga. L. 1967, p. 659, § 8.)

JUDICIAL DECISIONS

Assignee or transferee of a retail installment contract is not given holder in due course status under Ga. L. 1967, p. 659, § 1 et seq. Geiger Fin. Co. v. Graham, 123 Ga. App. 771 , 182 S.E.2d 521 (1971), commented on in 8 Ga. St. B.J. 400 (1972).

Assignee or transferee takes contract subject to defenses against assignor. - Under simple contract law, an assignee or transferee takes a retail installment contract subject to any defenses that could be asserted against the assignor. Geiger Fin. Co. v. Graham, 123 Ga. App. 771 , 182 S.E.2d 521 (1971), commented on in 8 Ga. St. B.J. 400 (1972).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, §§ 325 et seq, 589 et seq.

ALR. - Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.

10-1-10. Disposition of goods repossessed after default; right to recover deficiency.

When any goods have been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after said repossession he forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his rights of redemption, as well as his right to demand a public sale of the repossessed goods. In the event the buyer exercises his right to demand a public sale of the goods, he shall in writing so advise the seller or holder of his election by registered or certified mail or statutory overnight delivery addressed to the seller or holder at the address from which the seller's or holder's notice emanated, within ten days after the posting of the original seller's or holder's notice.

In the event of election of such public sale by the buyer, the seller or holder shall dispose of the repossessed goods at a public sale as provided by law, to be held in the state and county where the original sale took place or the state and county of the buyer's residence, at the seller's election.

This Code section is cumulative of Part 6 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing in this Code section shall be deemed to repeal said part.

(Ga. L. 1967, p. 659, § 9; Ga. L. 2000, p. 1589, § 3.)

Cross references. - Uniform Commercial Code provisions regarding secured party's right to dispose of collateral after default, § 11-9-402 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, "Part 6" was substituted for "Part 5" twice in this Code section.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For annual survey on commercial law, see 36 Mercer L. Rev. 115 (1984). For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987).

JUDICIAL DECISIONS

Debtor to be notified debtor can redeem collateral at any time before sale. - When the debtor is told by notification letter that the debtor has ten days to redeem the debtor's repossessed collateral, but the collateral is sold after the tenth day, the debtor has not, as a matter of law, been notified that the debtor can redeem the debtor's collateral at any time before the sale, as required by O.C.G.A. §§ 10-1-10 and 11-9-506 , and a verdict should be directed for the debtor when the creditor sues for a deficiency judgment. Credithrift of Am., Inc. v. Smith, 168 Ga. App. 45 , 308 S.E.2d 53 (1983).

Summary judgment to debtors when creditor did not dispute lack of notice. - Because a credit company did not dispute the factual accuracy of the debtors' assertion that the company's deficiency claim was barred by the company's failure to send the debtors notice, after repossession, of the company's intention to pursue a deficiency claim, as required by O.C.G.A. § 10-1-10 , the debtors were entitled to summary judgment. Fin. Fed. Credit Inc. v. Smith, F. Supp. 2d (S.D. Ga. Aug. 16, 2005).

Notice insufficient. - Notice, within ten days of the repossession of a debtor's equipment, was not provided of an intent to pursue a deficiency claim as required under O.C.G.A. § 10-1-10 as the notices on August 27 and 28 were more than ten days after the July 30 repossession and more than 60 days after the debtor signed the release on June 11; no indication was given that the notices were sent by registered or certified mail or statutory overnight delivery, and the notices also did not inform the debtor of the debtor's rights of redemption as well as the debtor's right to demand a public sale of the repossessed goods. Parham v. Peterson, Goldman & Villani, 296 Ga. App. 527 , 675 S.E.2d 275 (2009).

Cited in Meadows v. Charlie Wood, Inc., 448 F. Supp. 717 (M.D. Ga. 1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 67A Am. Jur. 2d, Sales, § 370 et seq.

10-1-11. Second mortgage statute not affected; exemption from loan and interest statutes.

Nothing contained in this article shall be construed so as to amend, modify, supersede, or repeal Article 2 of Chapter 4 of Title 7, relating to charges and interest on loans secured by secondary security deeds, as now or hereafter amended, nor shall any of the provisions of the loan or interest statutes of this state affect or apply to any retail installment and home solicitation sale.

(Ga. L. 1967, p. 659, § 11; Ga. L. 1968, p. 1088, § 3.)

10-1-12. Prior contracts or accounts not affected.

This article shall not make unlawful contracts or accounts in effect prior to October 1, 1967.

(Ga. L. 1967, p. 659, § 12.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 76 et seq.

ALR. - Illegality as basis for denying remedy of specific performance for breach of contract, 58 A.L.R.5th 387.

10-1-13. Waiver of this article void.

Any waiver of this article shall be unenforceable and void.

(Ga. L. 1967, p. 659, § 13.)

JUDICIAL DECISIONS

Oral agreement not to furnish insurance is void. - Any oral agreement that insurance would not be procured by the seller as provided for by the written contract is void and unenforceable. Cook-Davis Furn. Co. v. Duskin, 134 Ga. App. 264 , 214 S.E.2d 565 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 68.

C.J.S. - 77A C.J.S., Sales, § 122 et seq.

ALR. - Constitutionality, construction, and application of statute respecting sale, assignment, or transfer of retail installment contracts, 10 A.L.R.2d 447.

10-1-14. Limitation of actions.

  1. No action shall be brought under this article more than four years after the person bringing the action knew or should have known of the occurrence of the alleged violation.
  2. The period of time specified by this Code section shall only apply to violations of this article which occur after July 1, 1979.

    (Ga. L. 1979, p. 1011, § 1.)

RESEARCH REFERENCES

C.J.S. - 77A C.J.S., Sales, §§ 495, 589.

10-1-15. Criminal and civil penalties.

  1. Any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and shall be punished as for a misdemeanor for each subsequent offense.
  2. A violation of subsection (d) of Code Section 10-1-3 shall bar recovery of any finance charge, delinquency, or collection charge on the contract. A violation of subsection (b) of Code Section 10-1-4 shall bar recovery of any finance charge, delinquency, or collection charge stated on or collected in connection with the statement on which any such violation shall occur.
  3. In case of a willful violation of any provision of this article, with respect to any transaction, the retail buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) a minimum of $100.00 or double the time price differential and any delinquency charge and any attorneys' fees and court costs charged and paid with respect to such transaction; but the retail seller may recover from the retail buyer an amount equal to the cash price of the goods or services in such transaction and the cost of any insurance purchased by the retail seller for the retail buyer in connection therewith.
  4. Notwithstanding this Code section, any failure to comply with any provisions of subsection (d) of Code Section 10-1-3 may be corrected within ten days after the date of execution of the retail installment contract by the buyer; and, if so corrected, neither the seller nor the holder is subject to any penalty under this Code section.
  5. A seller or holder shall not be held liable in any action brought under this Code section for a violation of this article if the seller or holder shows by clear and convincing evidence that the violation was not intentional and resulted from a bona fide clerical or typographical error.
  6. The penalties under this Code section shall be the sole remedy for violations of this article and a claim of violation of this article may be asserted in an individual action only.

    (Ga. L. 1967, p. 659, § 10; Ga. L. 1996, p. 1506, § 1.)

Law reviews. - For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Legislative intent as to proof of willful violation. - Legislature obviously intended that there be some showing that the violation be "willful" other than the mere fact of the violation itself. Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972).

Cases do not apply to truth-in-lending situations. - This section deals specifically with the terms of the contract. Truth-in-lending violations have no direct effect on the contractual terms of payment. Thus, cases involving this section are not authority regarding truth-in-lending situations. First Citizens Bank & Trust Co. v. Owings, 151 Ga. App. 389 , 259 S.E.2d 747 (1979).

Violation is determined by amount charged, not amount collected. - The amount that a creditor may ultimately collect is not determinative of whether the creditor violates this article. Rather, it is the amount that a creditor charges the debtor at the time the creditor accelerates the unpaid balance that places the creditor in violation of this article. Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223 , 223 S.E.2d 261 (1976).

Acceleration clause is not violation until collection of unearned interest attempted. - An acceleration clause purporting to collect unearned interest does not violate Ga. L. 1967, p. 659, § 1 et seq., but the same clause plus an attempt under it to collect unearned interest does; once the creditor uses that clause to demand unearned interest, the clause states a default charge. Thomas v. Universal Guardian Corp., 144 Ga. App. 869 , 243 S.E.2d 101 (1978).

Acceleration by the seller plus filing a complaint against the buyer without deducting unearned interest from the alleged indebtedness constituted a "charge" by the seller in violation of the Retail Installment and Home Solicitation Sales Act, O.C.G.A. § 10-1-1 et seq., and such conduct amounted to a willful violation of the Act. Palace Indus., Inc. v. Craig, 177 Ga. App. 338 , 339 S.E.2d 313 (1985).

Premature acceleration of entire unpaid balance bars recovery of charges. - To accelerate the entire unpaid balance as due long before the time provided in the contract obviously discloses a claim exceeding the maximum finance charge allowable, which, under provisions of this article, shall bar recovery of any finance charge, delinquency, or collection charge on the contract. Reese v. Termplan, Inc., 125 Ga. App. 473 , 188 S.E.2d 177 (1972).

Recovery of amount equal to cash price. - This section does not bar the seller from recovering an amount equal to the cash price of the goods. Fluellen v. Commercial Credit Corp., 151 Ga. App. 373 , 259 S.E.2d 648 (1979).

Mere violations or hazardous acts are not willful. - Mere violations of this article and the doing of hazardous acts, where the danger is obvious, do not, without more, as a matter of law, constitute willful misconduct. Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972).

Bare failure or refusal to perform duty is not willful. - When the misconduct consists of a failure or refusal to perform a duty required by this section, a bare failure or refusal, without more, does not constitute a willful failure or refusal to perform such duty. Such violations, failures, or refusals generally constitute mere negligence, and such negligence, however great, does not constitute willful misconduct, willful failure, or refusal to perform a duty required by this section. Martin v. Glenn's Furn. Co., 126 Ga. App. 692 , 191 S.E.2d 567 (1972).

Violation in calculating interest rebate is not willful. - Violation of this article in calculating the interest rebate does not constitute a willful violation of this article and it is not a defense to the grant of a writ of possession in the goods in which a secured creditor holds the security interest. Fluellen v. Commercial Credit Corp., 151 Ga. App. 373 , 259 S.E.2d 648 (1979).

Cited in Bell v. Loosier of Albany, Inc., 237 Ga. 585 , 229 S.E.2d 374 (1976); Bell v. Loosier of Albany, Inc., 140 Ga. App. 393 , 231 S.E.2d 142 (1976); Liberty Loan Corp. v. Childs, 140 Ga. App. 473 , 231 S.E.2d 352 (1976); Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135 , 345 S.E.2d 621 (1986).

RESEARCH REFERENCES

ALR. - Right to private action under state consumer protection act, 62 A.L.R.3d 169.

Coverage of insurance transactions under state consumer protection statutes, 77 A.L.R.4th 991.

What constitutes Truth in Lending Act violation which "was not intentional and resulted from bona fide error not withstanding maintenance of procedures reasonably adapted to avoid any such error" within meaning of § 130(c) of Act (15 USCA § 1640(c)), 153 A.L.R. Fed. 193.

10-1-16. Inapplicability of this article to educational entities and student loan transactions.

This article shall not apply to the University System of Georgia or its educational units, to private colleges and universities in this state and associations thereof, or to student loan transactions of such educational entities, which educational entities and student loan transactions thereof are expressly exempted from the operation of its provisions.

(Code 1981, § 10-1-16 , enacted by Ga. L. 1985, p. 251, § 1.)

Law reviews. - For article, "The Income-Based Repayment Plans and For-Profit Education: How Does This Combination Affect the Question to Include Student Loans in Bankruptcy?," see 32 Georgia St. U.L. Rev. 603 (2016).

ARTICLE 2 MOTOR VEHICLE SALES FINANCING

Cross references. - Purchase and resale of motor vehicles and parts generally, T. 40, C. 4.

Used car dealers, T. 43, C. 47.

Law reviews. - For article discussing federal truth-in-lending provisions and their relation to state laws, see 6 Ga. St. B. J. 19 (1969). For article discussing methods of computation of finance charges in Georgia consumer credit contracts, see 30 Mercer L. Rev. 281 (1978). For article, "The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement," see 24 Ga. St. U.L. Rev. 663 (2008). For note discussing transfer fees in home loan assumptions in reference to the Georgia usury laws, see 9 Ga. L. Rev. 454 (1975).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Mobile homes. - The sale of a mobile home comes within the provisions of Ga. L. 1967, p. 674, § 1. Holder v. Brock, 129 Ga. App. 732 , 200 S.E.2d 912 (1973), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818 , 237 S.E.2d 223 (1977); Smith v. Society Nat'l Bank, 141 Ga. App. 19 , 232 S.E.2d 367 (1977); Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 , rev'd on other grounds, 242 Ga. 1 , 247 S.E.2d 743 (1978).

Article not violated by acceleration clause. - The mere presence of an acceleration clause is not violative of Ga. L. 1967, p. 674, § 1. Green v. Citizens & S. Bank, 153 Ga. App. 342 , 265 S.E.2d 286 (1980).

Documentary preparation fee as finance charge. - A "documentary preparation" fee explicitly identified as such in an automobile finance contract and added to the unpaid balance of the purchase price as an "other charge" was not a finance charge since it was charged to all consumer purchasers (both cash and credit). Therefore, the contract complied with state and federal law. Ferris v. Chrysler Credit Corp., 764 F.2d 1475 (11th Cir.), rehearing denied, 770 F.2d 1084 (11th Cir. 1985).

Contract's choice of law provisions governs. - Georgia law, rather than South Carolina law, governed a mobile home retail installment sales contract entered into by South Carolina buyers with a Georgia dealer since the contract contained a choice of law provision indicating that the contract should be construed in accordance with the laws of the state in which the seller's place of business was located. Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir. 1986).

Cited in Motor Contract Co. v. Sawyer, 123 Ga. App. 207 , 180 S.E.2d 282 (1971); Geiger Fin. Co. v. Graham, 123 Ga. App. 771 , 182 S.E.2d 521 (1971); Smith v. Singleton, 124 Ga. App. 394 , 184 S.E.2d 26 (1971); Whittlesey v. Ford Motor Credit Co., 542 F.2d 245 (5th Cir. 1976); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977); Smith v. General Fin. Corp., 143 Ga. App. 390 , 238 S.E.2d 694 (1977); Mullins v. Oden & Sims Used Cars, Inc., 148 Ga. App. 250 , 251 S.E.2d 65 (1978); Coppage v. Mellon Bank, 150 Ga. App. 92 , 256 S.E.2d 671 (1979); Parker v. George Thompson Ford, Inc., 83 F.R.D. 378 (N.D. Ga. 1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); In re McLeod, 5 Bankr. 520 (N.D. Ga. 1980); In re Weaver, 5 Bankr. 522 (N.D. Ga. 1980).

Federal Preemption

Protection of federal preemption from state law interest ceilings. - A mobile home financing contract which did not affirmatively misrepresent the debtor's federal statutory guarantees satisfied the prerequisites for obtaining the protection of federal preemption from state law interest ceilings. Grant v. GECC, 764 F.2d 1404 (11th Cir. 1985), cert. denied, 476 U.S. 1124, 106 S. Ct. 1993 , 90 L. Ed. 2 d 673 (1986).

Contracts in compliance with regulations of Federal Home Loan Bank Board. - Federal law preempted the application of O.C.G.A. Art. 2, Ch. 1, T. 10 to contracts which were made in compliance with regulations promulgated by the Federal Home Loan Bank Board. Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Mobile homes. - Mobile homes are included in the definition of motor vehicles contained in Ga. L. 1967, p. 674, § 2 and thereby subject to Ga. L. 1967, p. 659, § 1. 1967 Op. Att'y Gen. No. 67-410.

RESEARCH REFERENCES

Proof of Statutory Unfair Business Practices, 36 POF3d 221.

ALR. - Civil rights and liabilities as affected by failure to comply with statute upon sale of motor vehicle, 63 A.L.R. 688 ; 94 A.L.R. 948 .

Quantum, degree, or weight of evidence to sustain usury charge, 51 A.L.R.2d 1087.

10-1-30. Short title.

This article shall be known and may be cited as the "Motor Vehicle Sales Finance Act."

(Ga. L. 1967, p. 674, § 1.)

Law reviews. - For annual survey of commercial law in 1984-1985, see 37 Mercer L. Rev. 139 (1985). For annual survey of commercial law in 1990-1991, see 43 Mercer L. Rev. 119 (1991). For survey article on insurance law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 277 (2003).

JUDICIAL DECISIONS

Cited in Chrysler Credit Corp. v. Cooper, 11 Bankr. 391 (Bankr. N.D. Ga. 1981); Ford Motor Credit Co. v. London, 175 Ga. App. 33 , 332 S.E.2d 345 (1985); SunTrust Bank v. Venable, 299 Ga. 655 , 791 S.E.2d 5 (2016).

10-1-31. Definitions; construction.

  1. As used in this article, the term:
    1. "Cash sale price" means the price stated in a retail installment contract for which the seller would have sold to the buyer and the buyer would have bought from the seller the motor vehicle which is the subject matter of the retail installment contract if such sale had been a sale for cash instead of a retail installment transaction. The cash sale price may include any taxes; registration, certificate of title, license, and other fees; and charges for accessories and their installation and for delivery, servicing, repairing, or improving the motor vehicle. The cash sale price may also include any amount paid to the buyer or to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on the motor vehicle which is the subject of a retail installment transaction under this article.
    2. "Finance charge" means the amount agreed upon between the buyer and the seller, as limited in this article, to be added to the cash sale price, the amount, if any, included for insurance and other benefits, if a separate charge is made therefor, and official fees, in determining the time sale price.
    3. "Holder" of a retail installment contract means the retail seller of the motor vehicle under the contract or, if the contract is purchased by a sales finance company or another assignee, the sales finance company or other assignee at the time of the determination.
    4. "Motor vehicle" means any device or vehicle including automobiles, motorcycles, motor trucks, trailers, and all other vehicles operated over the public highways and streets of this state and propelled by power other than muscular power but does not include traction engines, road rollers, implements of husbandry and other agricultural equipment, and such vehicles as run only upon a track.
    5. "Official fees" means the fees prescribed by law for filing, recording, or otherwise perfecting and releasing or satisfying a retained title or a lien created by a retail installment contract.
    6. "Person" means an individual, partnership, corporation, association, or any other group however organized.
    7. "Purchase price" means the time balance shown in the contract plus the down payment.
    8. "Retail buyer" or "buyer" means a person who buys a motor vehicle from a retail seller not principally for the purpose of resale and who executes a retail installment contract in connection therewith or a person who succeeds to the rights and obligations of such person.
    9. "Retail installment contract" or "contract" means an instrument or instruments creating a purchase money security interest.
    10. "Retail installment seller" or "seller" means a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions.
    11. "Retail installment transaction" means any transaction evidenced by a retail installment contract.
    12. "Sales finance company" means a person engaged in the business of purchasing retail installment contracts from one or more retail sellers. The term includes but is not limited to a bank, trust company, or installment loan company, if so engaged. The term does not include the pledge of an aggregate number of such contracts to secure a bona fide loan thereon.
    13. "Time sale price" means the cash sale price of a motor vehicle, the amount included for insurance and other benefits if a separate charge is made therefor, official fees, and finance charges. The time sale price may also include, if it has not been included in the cash sale price, any amount paid to the buyer or to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on the motor vehicle which is the subject of a retail installment transaction under this article.
  2. The rules of statutory construction contained in Chapter 3 of Title 1 shall apply to this article.

    (Ga. L. 1967, p. 674, § 2; Ga. L. 1999, p. 1229, § 1; Ga. L. 2020, p. 156, § 8/SB 462.)

The 2020 amendment, effective June 30, 2020, substituted "installment loan" for "industrial loan" in the second sentence of paragraph (a)(12). See the Editor's notes for applicability.

Editor's notes. - Ga. L. 2020, p. 156, § 10/SB 462, not codified by the General Assembly, provides that: "This Act shall apply to all installment loan agreements entered into on and after July 1, 2020."

Law reviews. - For article, "Eleventh Circuit Survey: January 1, 2008 - December 31, 2008: Article: Bankruptcy," see 60 Mercer L. Rev. 1141 (2009). For article, "The Over-Encumbered Trade-In in Chapter 13," see 29 Emory Bankr. Dev. J. 15 (2012).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Holden v. Peoples, Inc., 122 Ga. App. 269 , 176 S.E.2d 516 (1970); Pike v. Universal C.I.T. Credit Corp., 125 Ga. App. 83 , 186 S.E.2d 482 (1971); Tollett v. Green Tree Acceptance, Inc., 190 Ga. App. 295 , 379 S.E.2d 2 (1989); Ervin v. Arnold, 197 Ga. App. 841 , 399 S.E.2d 548 (1990); SunTrust Bank v. Venable, 299 Ga. 655 , 791 S.E.2d 5 (2016).

Retail Installment Transaction

Not "retail installment transaction" when bank, not seller, obtains lien. - When seller sold mobile home for a "cash sales price" and bank financed loan for the "cash sales price," the proceeds of which were then paid to the seller, the bank, not the seller, had a purchase money security interest in the mobile home, and the actual sale was not a "retail installment transaction" under paragraphs (a)(9) and (a)(11) of this section. Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Motor Vehicle

Caterpillar 977L Traxcavator does not fall under the definition of "motor vehicle" found either in paragraph (a)(4) of O.C.G.A. § 10-1-31 or the general definition of "motor vehicle" under O.C.G.A. § 40-1-1(33) but does fit the definition of "special mobile equipment" under § 40-1-1(59) . Battle v. Yancey Bros. Co., 157 Ga. App. 277 , 277 S.E.2d 280 (1981).

Purchase money interest in negative equity financed as part of trade-in. - Because the definition of "cash sales price" included any amount paid to the buyer or to a third party to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in, pursuant to O.C.G.A. § 10-1-31 , that entire amount was included in the purchase money security interest under 11 U.S.C. § 1325(a). In re Graupner, 356 Bankr. 907 (Bankr. M.D. Ga. 2006), aff'd, NO. 4:07-CV-37 (CDL), 2007 U.S. Dist. LEXIS 46144 (M.D. Ga. 2007).

Monies paid on debtor's behalf for an extended service contract and gap insurance were part of the purchase price of the debtor's vehicle for purposes of O.C.G.A. § 11-9-103 and the unnumbered, hanging paragraph following 11 U.S.C. § 1325(a)(9). The service contract was a charge for "servicing" the motor vehicle under O.C.G.A § 10-1-31(a)(1), and applying the close nexus standard in § 11-9-103 led the court to believe that gap insurance was also included in the purchase money security interest. In re Spratling, 377 Bankr. 941 (Bankr. M.D. Ga. 2007).

Under O.C.G.A. §§ 10-1-31(a) and 11-9-103 , negative equity in a debtor's trade-in vehicle was properly regarded as a purchase money security interest under the hanging paragraph referencing 11 U.S.C. § 1325(a)(5) in that there was a close nexus to the purchase of a vehicle for personal use within 910 days of filing for Chapter 13 relief. Thus, 11 U.S.C. § 506 did not apply to cram down the creditor's secured claim. Graupner v. Nuvell Credit Corp. (In re Graupner), 537 F.3d 1295 (11th Cir. 2008).

Notice objection did not apply. - With respect to the creditor's deficiency claim arising from a sale of a truck in which the creditor had perfected a first-priority lien, the debtor's objection based on O.C.G.A. § 10-1-31 , which requires additional notice to recover a deficiency against a buyer, did not apply to bar the claim because the creditor was not a sales finance company under the Georgia statute given that it had not purchased a retail installment contract from a seller and was not engaged in the business of purchasing retail installment contracts. Ambrose v. Advantage Funding Commer. Capital Corp. (In re Ambrose), 568 Bankr. 716 (Bankr. N.D. Ga. 2017).

10-1-32. Requirements for retail installment contracts; insurance; delinquency charges, attorneys' fees, and costs; receipts.

  1. A retail installment contract shall be in writing, shall be signed by both the buyer and the seller, and shall be completed as to all essential provisions prior to the signing of the contract by the buyer.
  2. The printed portion of the contract, other than instructions for completion, shall be in at least six-point type. The contract shall contain, in clear and conspicuous type, the following:
    1. A specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case; and
    2. The following notice:

      Do not sign this contract before you read it or if it contains any blank spaces. You are entitled to an exact copy of the contract you sign."

  3. The seller shall present a completed copy of the contract to the buyer at the time it is signed by the buyer. Unless the seller does so, a buyer who has not accepted delivery of the motor vehicle shall have the right to rescind his agreement and to receive a refund of all payments made and return of all goods traded in to the seller on account of or in contemplation of the contract or, if such goods cannot be returned, the value thereof. Any acknowledgment by the buyer of receipt of a copy of the contract shall be in clear and conspicuous type and, if contained in the contract, shall appear directly above the buyer's signature. This subsection provides cumulative additional rights and is cumulative of Code Section 11-2-302.
  4. The contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer, and a description of the motor vehicle, including its make, year model, model, and identification number or marks.
    1. If any insurance is purchased by the holder of the retail installment contract, the amount charged therefor shall not exceed the applicable premiums chargeable in accordance with the rates filed with the Department of Insurance. If dual interest insurance on the motor vehicle is purchased by the holder, it shall, within 30 days after execution of the retail installment contract, send or cause to be sent to the buyer a policy or policies or certificate of insurance, written by an insurance company authorized to do business in this state, clearly setting forth the amount of the premium, the kind or kinds of insurance, the coverages, and all the terms, exceptions, limitations, restrictions, and conditions of the contract or contracts of insurance.
    2. Nothing in this article shall impair or abrogate the right of a buyer, as defined in Code Section 10-1-31, to procure insurance from an agent and company of his own selection as provided by the insurance laws of this state; and nothing contained in this article shall modify, amend, alter, or repeal any of the insurance laws of the state.
  5. If any insurance is canceled or the premium adjusted, unearned insurance premium refunds received by the holder shall be credited to the final maturing installment of the contract except to the extent applied toward payment for a similar insurance protecting the interests of the buyer and the holder or either of them.
  6. The holder may, if the contract or refinancing agreement so provides, collect a delinquency charge on any installment which is not paid within ten days from the date the payment is due. Such charge may not exceed 5 percent of the installment or $50.00, whichever is less; provided, however, that if the contract or refinancing agreement is related to a truck with a gross vehicle weight rating (GVWR) exceeding 6,000 pounds (size Class 3 and above), truck tractor, trailer, or semitrailer used primarily for business or commercial purposes, such delinquency charge may not exceed 5 percent of the installment. A delinquent charge shall not be collected more than once for the same default. In addition to the delinquency and collection charge, the contract may provide for the payment of reasonable attorneys' fees where the contract is referred for collection to an attorney not a salaried employee of the holder of the contract, plus the court costs.
  7. No retail installment contract shall be signed by any party thereto when it contains blank spaces to be filled in after it has been signed except that, if delivery of the motor vehicle is not made at the time of the execution of the contract, the identifying numbers or marks of the motor vehicle or similar information and the due date of the first installment may be left blank and later inserted by the seller in the seller's counterpart of the contract after it has been signed by the buyer. The buyer's written acknowledgment, conforming to the requirements of subsection (c) of this Code section, of delivery of a copy of a contract shall be presumptive proof of such delivery in any action or proceeding by or against the holder of the contract and that the contract, when signed, did not contain any blank spaces except as provided in this subsection.
  8. If the buyer so requests, the holder shall give or forward to the buyer a receipt for any payment when made in cash.

    (Ga. L. 1967, p. 674, § 3; Ga. L. 1970, p. 101, §§ 1, 2; Ga. L. 1985, p. 698, § 1; Ga. L. 1996, p. 1058, § 1; Ga. L. 2019, p. 337, § 1-96/SB 132.)

"Notice to the Buyer

The 2019 amendment, effective July 1, 2019, substituted "Department of Insurance" for "Insurance Department" at the end of the first sentence of paragraph (e)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, the (1) and (2) designations were added in subsection (e).

Law reviews. - For article, "Acceleration Clauses in Georgia: Consumer Installment Contracts and the Federal Truth-In-Lending Act," see 27 Mercer L. Rev. 969 (1976).

JUDICIAL DECISIONS

O.C.G.A. 10-1-32 establishes requirements and prohibitions as to "retail installment contracts." Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Not "retail installment transaction" when bank, not seller, obtains lien. - When seller sold mobile home for a "cash sales price" and bank financed loan for the "cash sales price," the proceeds of which were then paid to the seller, the bank, not the seller, had a purchase money security interest in the mobile home and the actual sale was not a "retail installment transaction" under paragraphs (a)(9) and (a)(11) of this section. Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Effect of signing contract without reading it. - When one who can read signs a contract without apprising oneself of the contract's contents otherwise than by accepting representations made by the opposite party with whom there exists no fiduciary or confidential relation, one cannot defend an action based on the contract, or have the contract canceled or reformed, on the ground that the contract does not contain the contract actually made, unless it should appear that at the time one signed the contract some such emergency existed as would excuse one's failure to read the contract or that one's failure to read the contract was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent one from reading the contract. Green v. Ford Motor Credit Co., 146 Ga. App. 531 , 246 S.E.2d 721 (1978).

No civil remedy for inadvertent failure to meet disclosure requirements. - It being uncontroverted that the seller's failure to meet the disclosure requirements of O.C.G.A. § 10-1-32 was inadvertent rather than intentional, O.C.G.A. § 10-1-38(c) did not provide a civil remedy. Vickery v. Mobile Home Indus., Inc., 171 Ga. App. 566 , 320 S.E.2d 633 (1984).

Cited in Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097 (5th Cir. 1979); Troutt v. Nash AMC/Jeep, Inc., 157 Ga. App. 399 , 278 S.E.2d 54 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Balloon payment permissible. - Balloon payment on a retail installment contract is permissible under the Motor Vehicle Sales Finance Act, O.C.G.A. § 10-1-30 et seq. 1985 Op. Att'y Gen. No. 85-10.

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 589 et seq.

ALR. - Construction of statutes regulating form and contents of motor vehicle installment sales contracts, 73 A.L.R.2d 1430, 46 A.L.R. Fed. 657.

10-1-33. Finance charge limitations; assignment of contract.

  1. Notwithstanding any other law, the finance charge, exclusive of insurance and other benefits and official fees, shall not exceed the following rates:

    Class 1. Any new motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made and all vehicles not previously titled - $10.00 per $100.00 per year.

    Class 2. Any new motor vehicle not in Class 1 and any used motor vehicle designated by the manufacturer by a year model of the same or not more than two years prior to the year in which the sale is made - $13.00 per $100.00 per year.

    Class 3. Any used motor vehicle not in Class 2 and designated by the manufacturer by a year model not more than four years prior to the year in which the sale is made - $15.00 per $100.00 per year.

    Class 4. Any used motor vehicle not in Class 2 or Class 3 and designated by the manufacturer by a year model more than four years prior to the year in which the sale is made - $17.00 per $100.00 per year.

  2. Such finance charge shall be computed on the unpaid balance on contracts payable in successive monthly payments substantially equal in amount. Such finance charge may be computed on the basis of a full month for any fractional month period in excess of ten days. A minimum finance charge of $25.00 may be charged on any retail installment transaction. As used in this subsection, the term "unpaid balance" shall be determined in accordance with Section 226.8(c) of Regulation Z promulgated by the Board of Governors of the Federal Reserve System pursuant to Title I (Truth in Lending Act) and Title V (General Provisions) of the Consumer Credit Protection Act (Public Law 90-321, 82 Stat. 146, et seq.), as the same existed upon its becoming effective on July 1, 1969.
  3. When a retail installment contract provides for unequal or irregular installment payments, the finance charge may be at a rate which will provide the same yield as is permitted on monthly payment contracts under subsections (a) and (b) of this Code section, having due regard for the schedule of payments. Notwithstanding the foregoing, a seller who computes a finance charge on an actuarial basis may charge a finance charge, exclusive of insurance and other benefits and official fees, which, when calculated according to the actuarial method, does not exceed the yield which would have been permitted on monthly contracts under subsections (a) and (b) of this Code section, having due regard for the schedule of payments; provided, however, that when a seller computes the finance charge according to the actuarial method, then for purposes of computing the rate the entire term of the contract shall be considered to be the number of whole months within the scheduled payment period, disregarding any odd days.
  4. Notwithstanding the provisions of subsection (a) of this Code section, a buyer and a seller may establish any finance charge agreed upon in writing by the parties where the amount financed is more than $5,000.00.
  5. Any sales finance company may purchase or acquire or agree to purchase or acquire from any seller any contract on such terms and conditions as may be agreed upon between them. Unless the buyer has notice of the assignment of his contract, payment thereunder made by the buyer to the last known holder of such contract shall be binding upon all subsequent holders.
  6. In no event will any such assignment bar any right of action against the seller arising as a result of this article nor will any such assignment bar any defense against the sales finance company or other assignee arising as a result of subsection (b) of Code Section 10-1-38.

    (Ga. L. 1967, p. 674, § 4; Ga. L. 1970, p. 101, § 3; Ga. L. 1980, p. 523, §§ 1, 2, 5; Ga. L. 1981, p. 703, § 1; Ga. L. 1985, p. 698, § 2; Ga. L. 2000, p. 136, § 10.)

Cross references. - Inapplicability of section to retail installment contracts pertaining to any manufactured home with a cash sale price of more than $3,000, § 7-4-3 .

Code Commission notes. - Subsection (a) of this Code section was amended by Ga. L. 1980, p. 523, § 1 to increase Class 1 and 2 rates from $8.00 per $100.00 and $11.00 per $100.00 to $10.00 per $100.00 and $13.00 per $100.00, respectively, and to make Class 1 applicable to all vehicles not previously registered. Section 5 of the 1980 Act provided for the repeal of this amendment on July 1, 1981, but § 5 was in turn repealed by Ga. L. 1981, p. 703, § 1, effective April 7, 1981. Thus, the language of subsection (a) of this Code section correctly reflects the Ga. L. 1980, p. 523, § 1 amendment.

U.S. Code. - Title I of the Consumer Credit Protection Act, referred to in subsection (b) of this Code section, is codified as 15 U.S.C. § 1601 et seq.

Title V of the Consumer Credit Protection Act, referred to in subsection (b) of this Code section, appears as various sections throughout 15 U.S.C.

Law reviews. - For article surveying Georgia cases in the area of commercial law from June 1979 through May 1980, see 32 Mercer L. Rev. 11 (1980). For article, "Bankruptcy Jurisdiction Under the 1984 Amendments: One Step Backward, One Step Forward," see 3 Bank. Dev. J. 127 (1986). For note discussing impact of federal truth-in-lending legislation on state law, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

"Year" construed. - The term "year" in O.C.G.A. § 10-1-33 refers to "calendar year" rather than "model year." Lee v. National Bank & Trust Co., 153 Ga. App. 656 , 266 S.E.2d 315 (1980).

Construction of "any person" and "the person committing the violation." - In pari materia with O.C.G.A. § 10-1-33 , the language "any person" and "the person committing the violation" found in subsections (a) and (c) of O.C.G.A. § 10-1-38 refers only to the seller or holder and was not intended to expand the class of persons liable for usury violations. This is emphasized by § 10-1-38(d) , which provides that if a violation is corrected within ten days after execution of the contract "neither the seller nor the holder is subject to any penalty under this Code section." Tollett v. Green Tree Acceptance, Inc., 190 Ga. App. 295 , 379 S.E.2d 2 (1989).

Retroactivity of subsection (d). - O.C.G.A. § 10-1-36.1 , added to Georgia Motor Vehicles Sales Finance Act in 1985, expresses an intent by the General Assembly that neither the 1983 amendment of O.C.G.A. § 7-4-3 , nor the addition of new subsection (d) to O.C.G.A. § 10-1-33 in 1985 (assuming it did apply to mobile home loans) was intended to apply retroactively. Southern Guar. Corp. v. Doyle, 256 Ga. 790 , 353 S.E.2d 510 , cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

Subsection (d) of O.C.G.A. § 10-1-33 , which abolishes the interest limit for motor vehicle installment sales contracts in excess of $5,000, is not applicable to a refinancing agreement dated prior to the effective date of O.C.G.A. § 10-1-33 . Parten v. GMAC, 187 Ga. App. 516 , 370 S.E.2d 778 (1988).

Mobile home loans. - "Motor vehicle" loans are defined to include mobile home loans, but O.C.G.A. § 10-1-33 does not apply to other types of home loans or mortgages. Doyle v. Southern Guar. Corp., 795 F.2d 907 (11th Cir. 1986), cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

Mobile home installment sales contracts. - Since the General Assembly, beginning in 1983, has distinguished between mobile home loans and motor vehicle loans, and since O.C.G.A. § 7-4-3(a)(1) and (b)(1), as amended in 1983, deal specifically with mobile home installment sales contracts, whereas subsection (d) of O.C.G.A. § 10-1-33 , as amended in 1985, does not, § 7-4-3(a)(1) and (b)(1) express the controlling legislation and legislative intent on mobile home installment sales contracts in excess of $3,000. Southern Guar. Corp. v. Doyle, 256 Ga. 790 , 353 S.E.2d 510 , cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

Cited in Holden v. Peoples, Inc., 122 Ga. App. 269 , 176 S.E.2d 516 (1970); Leach v. Midland-Guardian Co., 127 Ga. App. 562 , 194 S.E.2d 260 (1972); Smith v. Society Nat'l Bank, 141 Ga. App. 19 , 232 S.E.2d 367 (1977); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977); Green v. Ford Motor Credit Co., 146 Ga. App. 531 , 246 S.E.2d 721 (1978); Parker v. George Thompson Ford, Inc., 83 F.R.D. 378 (N.D. Ga. 1979); Green v. Citizens & S. Bank, 153 Ga. App. 342 , 265 S.E.2d 286 (1980); Ford Motor Credit Co. v. Spann, 153 Ga. App. 535 , 265 S.E.2d 863 (1980); Chrysler Credit Corp. v. Cooper, 7 Bankr. 537 (N.D. Ga. 1980); Kelly v. Sylvan Motors, Inc., 160 Ga. App. 420 , 287 S.E.2d 359 (1981); Chrysler Credit Corp. v. Cooper, 11 Bankr. 391 (Bankr. N.D. Ga. 1981); Stewart v. Ford Motor Credit Co., 685 F.2d 391 (11th Cir. 1982); Gibbs v. Green Tree Acceptance, Inc., 188 Ga. App. 633 , 373 S.E.2d 637 (1988); Cowan v. Miles Rich Chrysler-Plymouth, 885 F.2d 801 (11th Cir. 1989); Purser Truck Sales, Inc. v. Patrick, 201 Ga. App. 119 , 410 S.E.2d 335 (1991).

Finance Charges

Finance charge is figured as percentage of unpaid (principal) balance. - The term "principal balance" in the original Motor Vehicle Sales Act has been changed to "unpaid balance" in subsection (b) of O.C.G.A. § 10-1-33 , as used in § 226.8(c), Regulation Z, relating to the Truth in Lending Act as therein set out. Both terms refer to the same thing - that is, the balance arrived at by deducting from the cash price any down payment made and adding to that sum all other authorized charges and expenses except the finance charge itself. The finance charge is then figured as a given percentage of this unpaid (principal) balance per year throughout the lifetime of the installment payments. Pike v. Universal C.I.T. Credit Corp., 125 Ga. App. 83 , 186 S.E.2d 482 (1971).

Unpaid balance may include insurance costs and other charges. - Insurance costs and other authorized charges are properly included in the "unpaid balance" and subject to the finance charge. Pitts v. Peoples Loan & Fin. Corp., 135 Ga. App. 38 , 217 S.E.2d 181 (1975); Busby v. Sea Island Bank, 151 Ga. App. 412 , 260 S.E.2d 485 (1979).

Acceleration clauses are not per se unenforceable. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom., McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

Collection of unearned interest is not per se improper under Georgia law. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom., McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

If an acceleration of unearned interest causes a note to become usurious, then there is a violation of the usury provision of Ga. L. 1967, p. 674, § 4, and, thus, under Ga. L. 1967, p. 674, § 8, the creditor is barred from recovering any finance charge, delinquency, or collection charge on the contract. McDaniel v. Fulton Nat'l Bank, 395 F. Supp. 422 (N.D. Ga. 1974), rev'd on other grounds, 543 F.2d 568 (5th Cir. 1976).

Acceleration without credit for unearned rates. - Plaintiff's acceleration under the contract, followed by the filing of the plaintiff's petition for a writ of possession seeking recovery of a balance due, without deducting therefrom unearned rates that would have been earned except for acceleration, amounted to a "charge" by the seller in violation of O.C.G.A. § 10-1-33 . Bozeman v. Tifton Fed. Sav. & Loan Ass'n, 164 Ga. App. 260 , 297 S.E.2d 49 (1982).

In computing the accelerated balance on an installment sales contract in a petition for a writ of possession of mobile homes sold under the contract, the contract assignee's initial failure to rebate any unearned interest and subsequent rebating of such charges according to the Rule of 78's method violated O.C.G.A Art. 2, Ch. 1, T. 10. Carter v. First Fed. Sav. & Loan Ass'n, 179 Ga. App. 532 , 347 S.E.2d 264 (1986).

Rebate of unearned finance charges on a monthly basis is harmonious with the provisions of O.C.G.A. Art. 2, Ch. 1, T. 10. Fitch v. GMAC, 181 Ga. App. 7 , 351 S.E.2d 215 (1986).

Application of Rule of 78. - In cases of acceleration of contracts under the Motor Vehicle Sales Finance Act, O.C.G.A. § 10-1-30 et seq., any refund credit for unearned finance charges may not be calculated under the Rule of 78. Bozeman v. Tifton Fed. Sav. & Loan Ass'n, 164 Ga. App. 260 , 297 S.E.2d 49 (1982).

Creditor suing for deficiency cannot use "Rule of 78". - The "Rule of 78" cannot be used to compute the interest refund in a suit for a deficiency balance resulting from a sale under an installment contract. Cook v. First Nat'l Bank, 130 Ga. App. 587 , 203 S.E.2d 870 (1974).

Use of "Rule of 78" results in charging more interest than allowed. - When the interest refund, calculated using the "Rule of 78," results in interest totaling two-thirds of the total amount being charged for a period of less than half the time of the note, this is in excess of the maximum allowable for the period in question on the unpaid balance to finance. Hence, a violation of subsection (a) of Ga. L. 1967, p. 674, § 4 is shown by the evidence. Under Ga. L. 1967, p. 674, § 8 this bars recovery of any finance charge, delinquency, or collection charge on the contract. Cook v. First Nat'l Bank, 130 Ga. App. 587 , 203 S.E.2d 870 (1974).

Presumption that contract rate applied overcome. - Annual percentage rate of 22.55 percent should be applied to debtor's obligation to creditor since the creditor had overcome the presumption that the contract rate applied by showing that on a vehicle of the same age as debtor's vehicle, the creditor would obtain a 13 percent add-on rate. In re McMichen, 23 Bankr. 497 (Bankr. N.D. Ga. 1982).

Federal Law
1. FHA and VA

Overriding of FHA and VA provisions. - Notwithstanding the inclusion of FHA and VA consumer protections, the lenders could not avail themselves of either preemption statute, since when the General Assembly amended O.C.G.A. § 10-1-33 in 1980 (raising the interest rate limit from 8 percent add-on to 10 percent add-on), it invoked other provisions of the FHA and VA preemption statutes which under certain circumstances permit the states to override the FHA and VA preemptions. Southern Guar. Corp. v. Doyle, 256 Ga. 790 , 353 S.E.2d 510 , cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

Georgia overrode the FHA and VA preemptions when it amended its usury limit on mobile home transactions in 1980 and 1981, even though the amendments referred to neither the FHA/VA statutes nor to FHA/VA-insured loans. Doyle v. Southern Guar. Corp., 795 F.2d 907 (11th Cir. 1986), cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

2. Depository Institutions Deregulation and Monetary Control Act

Lender may still qualify for federal preemption by complying with the Depository Institutions Deregulation and Monetary Control Act regulations unless, of course, the state has also overridden the DIDMCA preemption. Doyle v. Southern Guar. Corp., 795 F.2d 907 (11th Cir. 1986), cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

Federal Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) was applicable, in that the transaction in question, entered into after March 31, 1980, and before the enactment of exempting state legislation, involved a federally related residential mortgage loan, made by a "creditor" as defined in DIDMCA and secured by a first lien on a residential manufactured home. Vickery v. Mobile Home Indus., Inc., 171 Ga. App. 566 , 320 S.E.2d 633 (1984).

DIDMCA contracts not containing required protections. - When lenders' mobile home contracts fell under § 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), but it was undisputed that the contracts did not contain the consumer protections required by DIDMCA, DIDMCA did not exempt those contracts from O.C.G.A. § 10-1-33 . Southern Guar. Corp. v. Doyle, 256 Ga. 790 , 353 S.E.2d 510 , cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

3. Bankruptcy

Applicability to Ch. 13 bankruptcy plan. - When debtor's car has value less than debt and debtor proposes to pay creditor under a Ch. 13 bankruptcy plan, it is not an arms-length consumer transaction in which the debtor is buying and financing a used car. Creditor is not entitled to receive maximum interest allowable under Georgia law in this context. In re Clements, 16 Bankr. 196 (Bankr. N.D. Ga. 1981).

Rate of interest of 22.75%, specified in a purchase-money motor vehicle contract, arguably steep given the rehabilitative nature of the subsequent bankruptcy proceeding, but less than the statutory maximum, and while containing an element of profit, was the rate applied, given the risks involved, in calculating the total amount of payments that the bankruptcy debtor had to make. In re Smith, 42 Bankr. 198 (Bankr. N.D. Ga. 1984).

Violation of O.C.G.A. 10-1-33

Violation forfeits charges. - A violation of Ga. L. 1967, p. 674, § 4 invokes the penalty provisions of subsection (b) of Ga. L. 1967, p. 674, § 8 and results in forfeiture of "any finance charge, delinquency, or collection charge on the contract." Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 , rev'd on other grounds, 242 Ga. 1 , 247 S.E.2d 743 (1978).

Principal is still collectible. - Once the court has determined that the creditor is in fact attempting to extort usurious interest, the lender is allowed to collect the principal, but the lender loses at least all unearned interest. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom. McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

OPINIONS OF THE ATTORNEY GENERAL

Balloon payment on a retail installment contract is permissible under the Motor Vehicle Sales Finance Act, O.C.G.A. § 10-1-30 et seq. 1985 Op. Att'y Gen. No. 85-10.

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 325 et seq.

ALR. - What is "compound interest" within meaning of statutes prohibiting the charging of such interest, 10 A.L.R.3d 421.

Reformation of usurious contract, 74 A.L.R.3d 1239.

Civil remedies of consumer for violations of credit transactions provisions of Truth in Lending Act (TILA) (15 USCS § 1601 et seq.), as amended by Truth in Lending Simplification and Reform Act of 1982, 113 A.L.R. Fed. 173.

What constitutes violation of requirements of Truth in Lending Act (15 USCS § 1601 et seq.) concerning disclosure of information in credit transactions - civil cases, 113 A.L.R. Fed. 197.

What constitutes "finance charge" under § 106(a) of the Truth in Lending Act (15 USCA § 1605(a)) or applicable regulations, 154 A.L.R. Fed. 431.

Preemptive effect of Truth in Lending Act (TILA), 61 A.L.R. Fed. 2d 505.

Validity, construction, and application of Truth in Lending Act (TILA) and regulations promulgated thereunder - United States Supreme Court cases, 67 A.L.R. Fed. 2d 567.

10-1-33.1. Advancement of money for satisfaction of lease, lien, or security interest in motor vehicle.

A retail installment seller may advance money to a buyer or pay money to a third party on behalf of the buyer to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on a motor vehicle which is the subject of a retail installment transaction under this article. Any amount so advanced or paid may be financed as part of a retail installment contract and shall not be considered a loan. The transaction and the seller making such advance or payment shall be exempt from the provisions of Chapter 3 of Title 7, relating to installment loans, from the provisions of Chapter 4 of Title 7, relating to interest and usury, and from any other provision of Georgia law regulating loans.

(Code 1981, § 10-1-33.1 , enacted by Ga. L. 1999, p. 1229, § 2; Ga. L. 2020, p. 156, § 8/SB 462.)

The 2020 amendment, effective June 30, 2020, substituted "installment loans" for "industrial loans" in the last sentence. See the Editor's notes for applicability.

Editor's notes. - Ga. L. 2020, p. 156, § 10/SB 462, not codified by the General Assembly, provides that: "This Act shall apply to all installment loan agreements entered into on and after July 1, 2020."

10-1-34. Right to prepay debt; credit upon anticipation of payments.

Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may pay in full at any time before maturity the debt of any retail installment contract and, in so paying the debt, shall receive a refund credit thereon for the anticipation of payments. The amount of the refund shall represent at least as great a proportion of the finance charge as the sum of the monthly time balance after the month in which prepayment is made bears to the sum of all the monthly time balances under the schedule of payments in the contract. This method of refund upon prepayment is commonly referred to as the "Rule of 78" or the "Sum of the Digits" refund method. Where the amount of credit is less than $1.00, no refund need be made. This Code section shall not apply to credit upon anticipation of payments or upon acceleration in those cases where the seller or holder of the contract has computed finance charges according to the actuarial method as set forth in Code Section 10-1-33.

(Ga. L. 1967, p. 674, § 5; Ga. L. 1980, p. 523, § 3.)

JUDICIAL DECISIONS

Rebate of unearned finance charges on a monthly basis is harmonious with provisions of O.C.G.A. Art. 2, Ch. 1, T. 10. Fitch v. GMAC, 181 Ga. App. 7 , 351 S.E.2d 215 (1986).

Cited in Cook v. First Nat'l Bank, 130 Ga. App. 587 , 203 S.E.2d 870 (1974); Stewart v. Ford Motor Credit Co., 685 F.2d 391 (11th Cir. 1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 9A Am. Jur. 2d, Bankruptcy, § 1131.

50 Am. Jur. 2d, Larceny, § 62.

C.J.S. - 8B C.J.S., Bankruptcy, § 833.

10-1-35. Refinancing retail installment contract.

The holder of a contract, upon request by the buyer, may extend the scheduled due date of all or any part of any installment or installments or deferred payment or payments or renew or restate the unpaid time balance of such contract, the amount of the installments, and the time schedule therefor and may collect for such extension, deferment, renewal, or restatement a refinance charge computed as follows: In the event the unpaid time balance of the contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge on such amount by adding to the unpaid time balance the cost for insurance and other benefits incidental to the refinancing plus any accrued delinquency and collection charges after deducting any refund which may be due the buyer at the time of the renewal or restatement by prepayment pursuant to Code Section 10-1-34, at the rate of the finance charge specified in subsection (a) of Code Section 10-1-33, and by reclassifying the motor vehicle by its then year model, for the term of the refinancing agreement, but otherwise subject to the provisions of this article governing computation of the original finance charge. The provisions of this article relating to minimum finance charges under subsection (b) of Code Section 10-1-33 and acquisition costs under the refund schedule in Code Section 10-1-34 shall not apply in calculating refinance charges on the contract extended, deferred, renewed, or restated. If all unpaid installments are deferred for not more than two months, the holder may, at his election, charge and collect for such deferment an amount equal to the difference between the refund required for prepayment in full under Code Section 10-1-34 as of the scheduled due date of the first deferred installment and the refund required for prepayment in full as of one month prior to said date times the number of months in which no scheduled payment is made.

(Ga. L. 1967, p. 674, § 6.)

JUDICIAL DECISIONS

Inapplicable when deficiency judgment not being sought. - O.C.G.A. § 10-1-35 is inapplicable to a case which is not seeking a deficiency judgment but, instead, is a suit on a note. F & M Bank v. Smith, 162 Ga. App. 410 , 291 S.E.2d 80 (1982).

O.C.G.A. § 10-1-35 complements O.C.G.A. § 11-9-504 and provides some guidance as to what constitutes reasonable notice. Lacy v. General Fin. Corp., 651 F.2d 1026 (5th Cir. 1981).

Actual notice to debtor not required. - There is no requirement in O.C.G.A. § 10-1-35 that the debtor actually receive notice. Calcote v. Citizens & S. Nat'l Bank, 179 Ga. App. 132 , 345 S.E.2d 616 (1986).

Caterpillar 977L Traxcavator does not fall within purview of "motor vehicle" under O.C.G.A. § 10-1-35 . Battle v. Yancey Bros. Co., 157 Ga. App. 277 , 277 S.E.2d 280 (1981).

Cited in Green v. Ford Motor Credit Co., 146 Ga. App. 531 , 246 S.E.2d 721 (1978); Veitch v. National Bank, 159 Ga. App. 473 , 283 S.E.2d 686 (1981); Flournoy v. City Fin. of Columbus, Inc., 679 F.2d 821 (11th Cir. 1982); First Fed. Sav. & Loan Ass'n v. Jones, 173 Ga. App. 356 , 326 S.E.2d 554 (1985); Mejia v. Citizens & S. Bank, 175 Ga. App. 80 , 332 S.E.2d 170 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, §§ 325 et seq., 589.

10-1-36. Disposition of motor vehicle repossessed after default; right to recover deficiency.

  1. When any motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his or her rights of redemption, as well as his or her right to demand a public sale of the repossessed motor vehicle. In the event the buyer exercises his or her right to demand a public sale of the goods, he or she shall in writing so advise the seller or holder of his or her election by registered or certified mail or statutory overnight delivery addressed to the seller or holder at the address from which the seller's or holder's notice emanated within ten days after the posting of the original seller's or holder's notice.
  2. In the event of election of such public sale by the buyer, the seller or holder shall dispose of said repossessed motor vehicle at a public sale as provided by law, to be held in the state and county where the original sale took place, or the state and county where the motor vehicle was repossessed, or the state and county of the buyer's residence, at the seller's election.
  3. This Code section is cumulative of Part 6 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing herein shall be deemed to repeal said part.

    (Ga. L. 1967, p. 674, § 7; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 995, § 9.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987). For annual survey article on commercial law, see 50 Mercer L. Rev. 193 (1998).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Section is cumulative to UCC. - Ga. L. 1967, p. 674, § 7 provided that it was cumulative of former Code 1933, Ch. 109A-9-5 and provided cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer. Georgia Cent. Credit Union v. Coleman, 155 Ga. App. 547 , 271 S.E.2d 681 (1980).

Application of both federal and state statutes. - No inconsistency exists in applying both the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), 12 U.S.C. § 1735f-7, and the Georgia Motor Vehicle Sales Finance Act (MVSFA), O.C.G.A. § 10-1-30 et seq., as DIDMCA speaks only to procedures to be followed prior to foreclosure and the notice requirements of O.C.G.A. § 10-1-36(a) only apply to procedures that take place after repossession. Chambliss v. Oakwood Acceptance Corp. (In re Chambliss), 315 Bankr. 166 (Bankr. S.D. Ga. 2004).

Leases. - The commercially reasonable sale provision under O.C.G.A. § 11-9-504 and the notice provision under O.C.G.A. § 10-1-36 were not applicable to a lease which was a "true lease" rather than a disguised secured transaction. Citizens & S. Nat'l Bank v. Thomas, 188 Ga. App. 312 , 372 S.E.2d 687 (1988).

Compliance required for recovery of deficiency. - Compliance with this section is a condition precedent to recovery of any deficiency claim against a defaulting purchaser of a motor vehicle. Doughty v. Associates Com. Corp., 152 Ga. App. 575 , 263 S.E.2d 493 (1979).

Trial court properly granted judgment to a debtor, finding that a repossessor failed to comply with O.C.G.A. § 10-1-36 , and therefore was precluded from collecting a deficiency from the debtor following the sale of the debtor's vehicle, as the repossessor waived strict compliance with O.C.G.A. § 10-1-36 by admitting that it received a facsimile notice sent by the debtor, and raised no issue as to the timeliness of the notice or whether it was received by the proper person, and failed to send the required notice thereunder to the debtor's address shown on the contract or later designated by the debtor, opting instead to send the notice to a post office box. Consumer Portfolio Servs. v. Rouse, 282 Ga. App. 314 , 638 S.E.2d 442 (2006).

Noncompliance bars recovery. - A creditor's failure to comply with the notice provisions of O.C.G.A. § 10-1-36 is an absolute bar to recovery of a deficiency judgment. Bryant Int'l, Inc. v. Crane, 188 Ga. App. 736 , 374 S.E.2d 228 (1988).

Compliance not required when creditor was not a "seller". - Compliance with O.C.G.A. § 10-1-36 was not required in disposing of a tractor and trailer given as collateral for a promissory note since the lender was not engaged in the business of selling motor vehicles to retail buyers in retail installment actions. The repossession at issue was governed only by O.C.G.A. § 11-9-504(3). Ervin v. Arnold, 197 Ga. App. 841 , 399 S.E.2d 548 (1990).

Statute of limitations. - While it appeared that O.C.G.A. § 9-3-24 , rather than O.C.G.A. § 11-2-725 , would most likely apply to defendant collection attorney's state court deficiency action against the plaintiff consumer, and it was not for the federal court to say what the Georgia courts would hold, the uncertainty meant there was no intentional unfair conduct and the consumer's Fair Debt Collection Practices Act claim was dismissed; other parts of the Georgia Code, such as O.C.G.A. § 10-1-36 and O.C.G.A. § 40-3-50 , and applicable case law indicated that Georgia's highest courts would most likely hold that the case fell within Ga. U.C.C. Art. 9 and not Ga. U.C.C. Art. 2. Almand v. Reynolds & Robin, P.C., 485 F. Supp. 2d 1361 (M.D. Ga. 2007).

Cited in Branch v. Charlie Pike Chevrolet-Buick, Inc., 198 Ga. App. 672 , 402 S.E.2d 544 (1991); Atlantic Coast Fed. Credit Union v. Delk, 241 Ga. App. 589 , 526 S.E.2d 425 (1999); Hicks v. Gabor, 354 Ga. App. 714 , 841 S.E.2d 42 (2020).

Notice

Notice required within ten days of repossession, not acquisition of interest. - This section makes no mention of sending a notice within ten days after an interest in the property is acquired. To give this section such a construction would be to allow a party who is a subsequent holder of the note to give notice six months, or perhaps even a year, after the repossession occurred based merely on the fact that the party then acquired a right to possession of the vehicle. This section is clear in its import to protect the debtor by giving the debtor notice within ten days of the repossession so that the debtor might act to prevent the loss of any rights the debtor might have. Barnett v. Trussell Ford, Inc., 129 Ga. App. 176 , 198 S.E.2d 903 (1973).

Cure period does not stop 10 days. - Creditor had the right to repossess debtor's truck on the date the debtor surrendered the truck, not at the end of a ten-day period extended by the creditor for the debtor to "cure" the debtor's default, and the "cure" period did not stop the running of the ten-day notice requirement of O.C.G.A. § 10-1-36 . Welch v. Ford Motor Credit Co., 227 Ga. App. 904 , 490 S.E.2d 206 (1997).

Triggering of ten-day period. - It is only when the debtor is in default and the right to repossess exists that no distinction should be made between repossession and voluntary surrender with regard to triggering the running of the ten-day period within which the required notice must be sent. Central & S. Bank v. Williford, 192 Ga. App. 843 , 386 S.E.2d 688 (1989).

Because the lessor was not bound to renew a vehicle lease agreement or become the owner of the vehicle and the residual purchase option price was not nominal or unreasonably low, the lease agreement did not serve as a security interest that triggered notice requirements under O.C.G.A. § 10-1-36 . Lewis v. Lease Atlanta, Inc., 234 Ga. App. 812 , 508 S.E.2d 188 (1998).

No requirement that notice be received. - Under O.C.G.A. § 10-1-36 , there is no requirement that the required notice be received, but only that it be sent within ten days of repossession by registered or certified mail to the address shown on the contract or later designated by the buyer. Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822 , 412 S.E.2d 603 (1991).

Two attempts to deliver certified mail to the buyer's correct address met the requirements of O.C.G.A. § 10-1-36 . Hill v. Federal Employees Credit Union, 193 Ga. App. 44 , 386 S.E.2d 874 (1989).

Use of language "you may redeem said collateral" is sufficient compliance with the terms of this section. Gary v. GMAC, 128 Ga. App. 10 , 195 S.E.2d 458 (1973).

Statement of balance is not required. - Although a statement of the balance owed would be preferable in advising the buyer of the buyer's rights of redemption, this section does not require such specification. Cook v. First Nat'l Bank, 130 Ga. App. 587 , 203 S.E.2d 870 (1974).

Compliance with notice requirements. - After the Chapter 13 debtors objected to a secured creditor's amended proof of claim that alleged the existence of a deficiency balance after it had repossessed and sold the collateral, the creditor complied with the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), 12 U.S.C. § 1735f-7, by giving the debtors 30 days notice of default and right to cure before it repossessed their mobile home, and complied with the Motor Vehicle Sales Finance Act, O.C.G.A. § 10-1-30 et seq., by sending the post-repossession notice to the debtors within 10 days of repossession; therefore, its post-repossession notice was timely. Chambliss v. Oakwood Acceptance Corp. (In re Chambliss), 315 Bankr. 166 (Bankr. S.D. Ga. 2004).

Creditor's notice of an intention to seek a deficiency judgment sent to the debtors was sufficient. Although the certified mail receipt did not indicate the date the letter was sent, the creditor's agent gave a sworn statement based on personal knowledge that the letter was sent two days after the car was repossessed, and the address used was current and correct, although it was not the address listed in the sales contract. Versey v. Citizens Trust Bank, 306 Ga. App. 479 , 702 S.E.2d 479 (2010).

Trial court erred by granting summary judgment to a finance company in the company's suit against a debtor to collect a deficiency from the sale of the debtor's repossessed vehicle because there was a genuine issue of material fact as to whether the finance company complied with the requirement under O.C.G.A. § 10-1-36(a) to mail a notice to the debtor's designated address or the address in the contract. Shell v. Tidewater Fin. Co., 318 Ga. App. 69 , 733 S.E.2d 375 (2012).

Noncompliance with notice requirements. - When a bank forwarded separate deficiency notices to a loan cosigner and the cosigner's daughter by certified mail within 10 days after repossession of a financed vehicle but mailed both notices to the daughter's address, even though the cosigner's address was the one shown on the contract, the notice was not in compliance with O.C.G.A. § 10-1-36 . Whatley v. Bank S., 185 Ga. App. 896 , 366 S.E.2d 182 , cert. denied, 185 Ga. App. 911 , 375 S.E.2d 245 (1988).

The repossession of defendant's automobile occurred when the defendant notified the bank of the defendant's intention to allow repossession, not when the bank physically removed the car from the seller's premises; the bank therefore did not comply with the 10-day notice requirements of O.C.G.A. § 10-1-36 by sending notice on the day after the car was returned. Sikes & Swanson Pontiac-GMC Truck, Inc. v. Cantrell, 194 Ga. App. 818 , 392 S.E.2d 36 (1990).

Failure to comply with the notice provisions of O.C.G.A. § 10-1-36 is an absolute bar to recovery. Brack Rowe Chevrolet Co. v. Walls, 201 Ga. App. 822 , 412 S.E.2d 603 (1991).

The absence of any proof that the notice was sent by certified mail coupled with evidence that it was never received, left the trial court with a disputed fact regarding whether the notice was properly sent in compliance with O.C.G.A. § 10-1-36 . Pitts v. Bank S. Corp., 209 Ga. App. 124 , 433 S.E.2d 96 (1993).

Creditor, who did not comply with the notice requirements of O.C.G.A. § 10-1-36 in repossessing and selling a debtor's vehicle, was not entitled to assert a deficiency claim over the debtor's objection, despite the language of the bankruptcy plan and the creditor's belief that the practice in the district was to allow such claim. Gibson v. Citifinancial Auto Corp. (In re Gibson), Bankr. (Bankr. N.D. Ga. Nov. 15, 2005).

Creditor, who was secured by debtor's car, was not entitled to a deficiency claim after the sale of the car failed to satisfy the full amount of the debt owed since the creditor did not give notice under state law of the creditor's intention to seek a deficiency claim. Baxter v. Sys. & Servs. Techs., Inc. (In re Dykes), 287 Bankr. 298 (Bankr. S.D. Ga. 2002).

Notice not required in car lease. - Lessor was not required to comply with the notice provisions of O.C.G.A. §§ 10-1-36 and 11-9-504 because the motor vehicle lease agreement the lessor entered into with the lessee was intended to be a true lease and not to evince a secured transaction; the lessor retained a meaningful reversionary interest in the car because the option price was more than nominal since the purchase option price was approximately one-third of the car's value, and the agreement contained no provision purporting to grant the lessee equity in the vehicle prior to exercise of the purchase option. Aniebue v. Jaguar Credit Corp., 308 Ga. App. 1 , 708 S.E.2d 4 (2011).

Plaintiff's good faith held question of fact. - When it cannot be determined if notice of the sale was returned prior to or after the sale, the plaintiff's good faith in the transaction is a question for the trier of fact. Slocum v. First Nat'l Bank, 152 Ga. App. 632 , 263 S.E.2d 516 (1979).

Notice objection did not apply. - With respect to the creditor's deficiency claim arising from a sale of a truck in which the creditor had perfected a first-priority lien, the debtor's objection based on O.C.G.A. § 10-1-36 , which requires additional notice to recover a deficiency against a buyer, did not apply to bar the claim because the creditor was not a sales finance company under the Georgia statute given that it had not purchased a retail installment contract from a seller and was not engaged in the business of purchasing retail installment contracts. Ambrose v. Advantage Funding Commer. Capital Corp. (In re Ambrose), 568 Bankr. 716 (Bankr. N.D. Ga. 2017).

RESEARCH REFERENCES

Am. Jur. 2d. - 67A Am. Jur. 2d, Sales, §§ 337, 370.

10-1-36.1. Assertion of violation on loan or contract secured by motor vehicle only in individual action.

  1. A claim of violation on any loan or contract secured by an interest in a motor vehicle may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law.
  2. Nothing contained in this Code section shall apply to class actions involving mobile homes or manufactured homes pending in any courts of this state, including any United States courts, on February 22, 1985, as to the parties to and subject matter then before such courts. (Code 1981, § 10-1-36.1 , enacted by Ga. L. 1985, p. 698, § 3.)

JUDICIAL DECISIONS

Purpose of section. - Subsection (a) of O.C.G.A. § 10-1-36.1 is intended to prohibit class action certification for a claim that any loan or contract secured by an interest in a motor vehicle violates the Motor Vehicle Sales Finance Act, O.C.G.A. § 10-1-30 et seq. Taylor Auto Group, Inc. v. Jessie, 241 Ga. App. 602 , 527 S.E.2d 256 (1999).

10-1-37. Waiver of this article void.

Any waiver of this article shall be unenforceable and void.

(Ga. L. 1967, p. 674, § 9.)

JUDICIAL DECISIONS

Waiver prohibited. - Code section expressly prohibits any waiver of the provisions of Ga. L. 1967, p. 674, § 1 et seq. Barnett v. Trussell Ford, Inc., 129 Ga. App. 176 , 198 S.E.2d 903 (1973).

Cited in Kelley v. GMAC, 145 Ga. App. 739 , 244 S.E.2d 911 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, § 68.

C.J.S. - 77A C.J.S., Sales, § 122 et seq.

10-1-38. Criminal and civil penalties.

  1. Any person who shall willfully and intentionally violate this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00 for the first offense and shall be punished as for a misdemeanor for each subsequent offense.
  2. A violation of Code Section 10-1-33 by the seller or holder shall bar recovery of any finance charge, delinquency, or collection charge on the contract.
  3. In case of a willful violation of this article with respect to any transaction, the buyer in such transaction may recover from the person committing the violation (or may set off or counterclaim in any action by such person) a minimum of $100.00 or double the time price differential and any delinquency charge and any attorneys' fees and court costs charged and paid with respect to such transaction, but the seller may recover from the buyer an amount equal to the cash price of the goods or services in such transaction and the cost of any insurance purchased by the seller for the buyer in connection therewith.
  4. Notwithstanding this Code section, any failure to comply with Code Section 10-1-33 may be corrected within ten days after the date of execution of the retail installment contract by the buyer; and, if so corrected, neither the seller nor the holder is subject to any penalty under this Code section.

    (Ga. L. 1967, p. 674, § 8.)

Law reviews. - For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construction of "any person" and "the person committing the violation." - In pari materia with O.C.G.A. § 10-1-33 , the language "any person" and "the person committing the violation" found in subsections (a) and (c) of O.C.G.A. § 10-1-38 refers only to the seller or holder and was not intended to expand the class of persons liable for usury violations. This is emphasized by subsection (d), which provides that if a violation is corrected within ten days after execution of the contract, "neither the seller nor the holder is subject to any penalty under this Code section." Tollett v. Green Tree Acceptance, Inc., 190 Ga. App. 295 , 379 S.E.2d 2 (1989).

Insurance costs and other authorized charges are properly included in the "unpaid balance" and are properly subject to the finance charge; therefore, if included, there is no violation of Ga. L. 1970, p. 101, § 3 and no resultant forfeiture of interest. Busby v. Sea Island Bank, 151 Ga. App. 412 , 260 S.E.2d 485 (1979).

Retroactivity of 1983 amendment to § 7-4-3(a) . - The 1983 amendment to O.C.G.A. § 7-4-3(a) , which provides that O.C.G.A. § 10-1-33 shall not apply to retail installment contracts pertaining to any manufactured home with a cash sales price of more than $3,000.00 does not operate retroactively so as to eliminate any cause of action a manufactured home purchaser may have acquired under O.C.G.A. § 10-1-38 by a transaction prior to the 1983 act's effective date. Southern Guar. Corp. v. Doyle, 256 Ga. 790 , 353 S.E.2d 510 , cert. denied, 484 U.S. 926, 108 S. Ct. 289 , 98 L. Ed. 2 d 249 (1987).

No civil remedy for inadvertent failure to disclose. - It being uncontroverted that the seller's failure to meet the disclosure requirements of O.C.G.A. § 10-1-32 was inadvertent rather than intentional, subsection (c) of O.C.G.A. § 10-1-38 did not provide a civil remedy. Vickery v. Mobile Home Indus., Inc., 171 Ga. App. 566 , 320 S.E.2d 633 (1984).

Subsection (c) of O.C.G.A. § 10-1-38 does not provide a civil remedy for nonwillful violations of the relevant statutory provisions. Ogletree v. Brokers S., Inc., 192 Ga. App. 53 , 383 S.E.2d 900 (1989).

Acceleration clauses are not per se unenforceable. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom. McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

Collection of unearned interest is not per se improper under Georgia law. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom. McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

Acceleration clause not bad unless usurious. - An acceleration clause is bad only if it attempts to accelerate unearned interest and enforcement of the clause would cause the note to become usurious. McDaniel v. Fulton Nat'l Bank, 395 F. Supp. 422 (N.D. Ga. 1974), rev'd on other grounds, 543 F.2d 568 (5th Cir. 1976).

Excess finance charge alone does not show willfulness. - A finding of willfulness is not authorized merely because it has been established that a finance charge exceeds the legal limit set forth in subsection (a) of Ga. L. 1970, p. 101, § 3. Lee v. National Bank & Trust Co., 153 Ga. App. 656 , 266 S.E.2d 315 (1980).

Award of attorneys' fees. - In determining appropriate award of attorneys' fees, contingency nature of fee arrangement should be considered. Stokes v. Fidelity Acceptance Corp., 644 F.2d 355 (5th Cir. 1981).

When the jury was asked to indicate the jury's finding as to whether there had been any "willful and intentional violation" on the part of the plaintiff, by striking out this language on the verdict form, the jury obviously found that there had not been such a violation and, therefore, the verdict showed, on the verdict's face, that there was no predicate for any recovery of attorney's fees. First Union Nat'l Bank v. Big John's Auto Sales, Inc., 203 Ga. App. 797 , 417 S.E.2d 416 (1992).

O.C.G.A. § 10-1-38 permits a recoupment of attorney's fees previously paid to a seller who had willfully violated the Motor Vehicle State Finance Act, O.C.G.A. § 10-1-30 et seq., but it does not permit a recovery of any attorney's fees incurred in litigating the seller's willful violation of that statute. First Union Nat'l Bank v. Big John's Auto Sales, Inc., 203 Ga. App. 797 , 417 S.E.2d 416 (1992).

Evidence held to support findings as to usury. - When less than $100.00 of the total $540.96 finance charge was refunded upon acceleration of one note prior to the half-way point in the contract and no interest was refunded to the promisor upon acceleration of the second note, there was ample evidence to support the trial court's finding usurious both contracts which were the basis for the bank's counterclaim. Adamson v. Trust Co. Bank, 155 Ga. App. 646 , 271 S.E.2d 899 (1980).

Cited in Smith v. Society Nat'l Bank, 141 Ga. App. 19 , 232 S.E.2d 367 (1977); Smith v. Society Nat'l Bank, 143 Ga. App. 370 , 238 S.E.2d 739 (1977); Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 (1978); Green v. Ford Motor Credit Co., 146 Ga. App. 531 , 246 S.E.2d 721 (1978); Ford Motor Credit Co. v. Spann, 153 Ga. App. 535 , 265 S.E.2d 863 (1980); Bozeman v. Tifton Fed. Sav. & Loan Ass'n, 164 Ga. App. 260 , 297 S.E.2d 49 (1982); Bozeman v. Tifton Fed. Sav. & Loan Ass'n, 172 Ga. App. 652 , 324 S.E.2d 199 (1984); Carter v. First Fed. Sav. & Loan Ass'n, 179 Ga. App. 532 , 347 S.E.2d 264 (1986).

Penalties

Minimum penalty. - General Assembly did not intend by the legislature's language in O.C.G.A. § 10-1-38 to allow courts to choose the $100.00 penalty in cases involving willful violations; rather, the $100.00 minimum was meant to apply only in cases when the illegal finance charge amounted to less than $50.00. Stokes v. Fidelity Acceptance Corp., 644 F.2d 355 (5th Cir. 1981).

No provision as to degree of overcharge or penalty. - There is no provision in O.C.G.A. § 10-1-38 for degrees of overcharging or degrees of penalty. The penalty for overcharging is forfeiture of any finance charge, delinquency, or collection charge on the contract. The language used is absolute and the trial court is without authority to decline to apply the language. Kelly v. Sylvan Motors, Inc., 160 Ga. App. 420 , 287 S.E.2d 359 (1981).

Forfeiture of finance charge. - O.C.G.A. § 10-1-38 provides for forfeiture of finance charge as a consequence of any violation of O.C.G.A. Art. 2, Ch. 1, T. 10, regardless of the violation's character. Stokes v. Fidelity Acceptance Corp., 644 F.2d 355 (5th Cir. 1981).

Usury violation bars recovery of charges. - If an acceleration of unearned interest caused a note to become usurious, then there was a violation of the usury provision of Ga. L. 1970, p. 101, § 3 and, thus, under former Code 1933, § 96-1008, the creditor was barred from recovering any finance charge, delinquency, or collection charge on the contract. McDaniel v. Fulton Nat'l Bank, 395 F. Supp. 422 (N.D. Ga. 1974), rev'd on other grounds, 543 F.2d 568 (5th Cir. 1976).

When the interest refund in a suit for a deficiency balance resulting from a sale under an installment contract, calculated using the "Rule of 78," results in interest totaling two-thirds of the total amount being charged for a period of less than half the time of the note, this is in excess of the maximum allowable on the unpaid balance to finance. Hence, a violation of subsection (a) of Ga. L. 1970, p. 101, § 3 is shown by the evidence. Under Ga. L. 1967, p. 674, § 8 this bars recovery of any finance charge, delinquency, or collection charge on the contract. Cook v. First Nat'l Bank, 130 Ga. App. 587 , 203 S.E.2d 870 (1974).

Principal may be collected. - Once the court has determined that the creditor is in fact attempting to extort usurious interest, under this article the lender is allowed to collect the principal, but the lender loses at least all unearned interest. Barrett v. Vernie Jones Ford, Inc., 395 F. Supp. 904 (N.D. Ga. 1975), rev'd on other grounds sub nom. McDaniel v. Fulton Nat'l Bank, 543 F.2d 568 (5th Cir. 1976), aff'd, 578 F.2d 1185 (5th Cir. 1978).

RESEARCH REFERENCES

ALR. - Right to private action under state consumer protection Act, 62 A.L.R.3d 169.

10-1-39. Additional definitions.

In addition to the definitions provided for in Code Section 10-1-31, as used in Code Sections 10-1-40 through 10-1-42, the term:

  1. "Induce" means to cause a buyer of a motor vehicle under a retail installment contract or a lessee of a motor vehicle under a motor vehicle lease contract to sublease the subject motor vehicle or to arrange for or cause such a buyer or lessee to be so induced.
  2. "Lessee" means a person who obtains possession and use of a motor vehicle through a motor vehicle lease contract.
  3. "Lessor" means any person who in the regular course of business or as a part of regular business activity leases motor vehicles under motor vehicle lease contracts or purchases motor vehicle lease contracts or any sales finance company that purchases motor vehicle lease contracts.
  4. "Motor vehicle lease contract" means an agreement between a lessor and a lessee whereby the lessee obtains the possession and use of a motor vehicle for such period of time, for such purposes, and for such consideration as set forth in the agreement.
  5. "Subject motor vehicle" means the motor vehicle sold to a buyer under a retail installment contract or the motor vehicle obtained by a lessee under a motor vehicle lease contract.
  6. "Sublease" means:
    1. To transfer possession of a motor vehicle which is the subject of a retail installment contract to a person who is not a party to that contract or to transfer or assign any of the buyer's rights or interests under the retail installment contract to such a person, whether or not such transfer or assignment is effective; or
    2. To transfer possession of a motor vehicle which is the subject of a motor vehicle lease contract to a person who is not a party to that contract or to transfer or assign any of the lessee's or lessor's rights or interests under the motor vehicle lease contract to such a person, whether or not such transfer or assignment is effective. (Code 1981, § 10-1-39 , enacted by Ga. L. 1988, p. 861, § 1; Ga. L. 1999, p. 1229, § 3.)

10-1-40. Unlawful inducement of motor vehicle buyer or lessee under contract to sublease vehicle; unlawful offering of vehicle for hire by sublessee.

  1. It is unlawful for any person to induce the buyer of a motor vehicle under a retail installment contract to sublease the subject motor vehicle to that person or to any other sublessee without first obtaining written consent to the sublease from the holder of the retail installment contract.
  2. It is unlawful for any person to induce the lessee of a motor vehicle under a motor vehicle lease contract to sublease the subject motor vehicle to that person or to any other sublessee without first obtaining written consent to the sublease from the lessor under the motor vehicle lease contract.
  3. It is unlawful for any person who is the sublessee of a motor vehicle to offer the motor vehicle for hire or to offer it to another person to offer for hire if such person induced the sublease of the motor vehicle in violation of subsection (a) or (b) of this Code section or if such person knew or reasonably should have known that the sublease of the motor vehicle was induced in violation of subsection (a) or (b) of this Code section.
  4. Any person who violates any provision of subsection (a), (b), or (c) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature. (Code 1981, § 10-1-40 , enacted by Ga. L. 1988, p. 861, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, an "a" was inserted following "guilty of" in subsection (d).

10-1-41. Actions brought by persons suffering damage against person inducing unlawful sublease of motor vehicle; remedies.

  1. Any one or more of the following persons may suffer damage as a result of a violation of subsection (a) or (b) of Code Section 10-1-40:
    1. The holder of a retail installment contract;
    2. The lessor of a motor vehicle under a motor vehicle lease contract;
    3. The buyer of a motor vehicle under a retail installment contract or the lessee of a motor vehicle under a motor vehicle lease contract;
    4. The sublessee of the subject motor vehicle when such sublessee did not know and could not reasonably be expected to have known that the sublease of the motor vehicle was induced in violation of subsection (a) or (b) of Code Section 10-1-40.
  2. A person who suffers damage as described in subsection (a) of this Code section may bring an action against the person who induced the sublease of the subject motor vehicle in violation of subsection (a) or (b) of Code Section 10-1-40. The person who suffers damage may recover or obtain against the person who induced such sublease any of the following:
    1. Actual damages;
    2. Equitable relief, including, but not limited to, an injunction or restitution of money and property;
    3. Punitive damages;
    4. Reasonable attorney's fees and costs; and
    5. Any other relief which the court deems proper.
  3. The rights and remedies provided for in this Code section are in addition to any other rights and remedies provided by law. (Code 1981, § 10-1-41 , enacted by Ga. L. 1988, p. 861, § 1.)

10-1-42. Advancement of money to satisfy lease, lien, or security interest in motor vehicle; inclusion in gross capitalized cost.

A lessor or the entity which sells the motor vehicle to the lessor for lease to a lessee may advance money to a lessee or pay money to a third party on behalf of the lessee to satisfy a lease on or a lien on or a security interest in a motor vehicle used as a trade-in on a motor vehicle which is the subject of a motor vehicle lease contract. Any amount so advanced or paid may be included in the gross capitalized cost under the motor vehicle lease contract and shall not be considered a loan. Such advance and the seller or lessor making such advance or payment shall be exempt from the provisions of Chapter 3 of Title 7, relating to installment loans, from the provisions of Chapter 4 of Title 7, relating to interest and usury, and from any other provision of Georgia law regulating loans.

(Code 1981, § 10-1-42 , enacted by Ga. L. 1999, p. 1229, § 4; Ga. L. 2020, p. 156, § 8/SB 462.)

The 2020 amendment, effective June 30, 2020, substituted "installment loans" for "industrial loans" in the last sentence. See the Editor's notes for applicability.

Editor's notes. - Ga. L. 2020, p. 156, § 10/SB 462, not codified by the General Assembly, provides that: "This Act shall apply to all installment loan agreements entered into on and after July 1, 2020."

ARTICLE 3 UNSOLICITED MERCHANDISE

10-1-50. Unsolicited merchandise not to be sent; recipient may treat as gift; trial periods; remedies for violations.

  1. As used in this Code section, the term "person" shall have the meaning as provided in Code Section 10-1-2.
  2. No person shall, in any manner or by any means, offer for sale goods, wares, or merchandise where the offer includes the voluntary and unsolicited sending of such goods, wares, or merchandise not actually ordered or requested by the recipient, either orally or in writing. The receipt of any such goods, wares, or merchandise shall for all purposes be deemed an unconditional gift to the recipient, who may use or dispose of such goods, wares, or merchandise, unless such goods, wares, or merchandise were delivered to the recipient as a result of a bona fide mistake, in any manner he or she sees fit without any obligation to the sender.
  3. No person shall require payment for the continued provision of any goods, wares, or merchandise following the expiration of a trial period during which similar goods, wares, or merchandise were provided free of charge unless the recipient of such goods, wares, or merchandise provides affirmative oral, written, or electronic assent to the continued receipt thereof on a paid basis. In the absence of any such assent, the receipt of any such goods, wares, or merchandise following such trial period shall for all purposes be deemed an unconditional gift to the recipient, who may use or dispose of such goods, wares, or merchandise, unless such goods, wares, or merchandise were delivered to the recipient as a result of a bona fide mistake, in any manner he or she sees fit without any obligation to the sender.
  4. Any violation of this Code section shall be considered a violation of Part 2 of Article 15 of this chapter, the "Fair Business Practices Act of 1975." Any remedy available under such part shall be available to any recipient under this Code section, and any action by the Attorney General authorized under such part for a violation thereof shall be authorized for a violation of this Code section.

    (Ga. L. 1970, p. 565, § 1; Ga. L. 2016, p. 369, § 1/HB 697.)

The 2016 amendment, effective July 1, 2016, added subsection (a); designated the existing provisions of the first undesignated paragraph of this Code section as subsection (b); in subsection (b), deleted ", firm, partnership, association, or corporation, or agent or employee thereof," following "No person" in the first sentence and, in the second sentence, inserted "the", inserted "or she" and deleted "on his part" following "any obligation"; added subsection (c); deleted the former provisions of the second undesignated paragraph, which read: "If, after any such receipt deemed to be an unconditional gift under this Code section, the sender continues to send bill statements or requests for payment with respect thereto, an action may be brought by the recipient to enjoin such conduct, in which action there may also be awarded reasonable attorneys' fees and costs to the prevailing party."; and added subsection (d).

RESEARCH REFERENCES

Am. Jur. 2d. - 67 Am. Jur. 2d, Sales, §§ 27, 546.

10-1-51. Unordered merchandise sent after membership terminated deemed gift; enjoining payment requests.

If a person is a member of an organization which makes retail sales of any goods, wares, or merchandise to its members and the person notifies the organization of his termination of membership by certified mail or statutory overnight delivery, return receipt requested, any unordered goods, wares, or merchandise which are sent to the person after 30 days following execution of the return receipt for the certified letter by the organization shall for all purposes be deemed unconditional gifts to the person, who may use or dispose of the goods, wares, or merchandise in any manner he sees fit without any obligation on his part to the organization.

If the termination of a person's membership in such organization breaches any agreement with the organization, nothing in this Code section shall relieve the person from liability for damages to which he might be otherwise subjected to pursuant to law; but he shall not be subject to any damages with respect to any goods, wares, or merchandise which are deemed unconditional gifts to him under this Code section.

If, after any receipt deemed to be an unconditional gift under this Code section, the sender continues to send bill statements or requests for payment with respect thereto, an action may be brought by the recipient to enjoin such conduct, in which action there may also be awarded reasonable attorneys' fees and costs to the prevailing party.

(Ga. L. 1970, p. 565, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment is applicable with respect to notices delivered on or after July 1, 2000.

ARTICLE 4 FURNISHING NAMES OF PROSPECTIVE PURCHASERS

10-1-70. Sales contract must state consideration for furnishing names of prospective purchasers; penalty.

  1. It shall be unlawful for any person, firm, or corporation engaged in the business of selling any type of merchandise in the State of Georgia to promise a consideration, either cash or otherwise, to a buyer of such merchandise for providing the names or other information relative to other prospective purchasers of such merchandise, unless the promise of such consideration is contained in the contract of sale between the seller and the buyer.
  2. Any person, firm, or corporation violating subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1965, p. 247, §§ 1, 2.)

ARTICLE 5 LABELING REMANUFACTURED OR REBUILT ITEMS

RESEARCH REFERENCES

C.J.S. - 77A C.J.S., Sales, § 122 et seq.

ALR. - Sales: Liability for warranty or representation that article, other than motor vehicle, is new, 36 A.L.R.3d 237.

10-1-80. "Remanufactured" and "rebuilt" defined.

As used in this article, the term:

  1. "Rebuilt" means the reconditioning of a motor, engine, well pump, or other mechanical item by the replacement of parts of the motor, engine, well pump, or other mechanical item without changing the original size, shape, or tolerance of the item except by the use of parts therefor.
  2. "Remanufactured" means the changing of the size, shape, or tolerance in any motor, engine, well pump, or other mechanical item by machinery grinding or cutting away of the original item.

    (Ga. L. 1959, p. 372, § 3.)

10-1-81. Label required for remanufactured item sold at retail.

Any remanufactured item sold at retail in the State of Georgia shall be labeled "Remanufactured." Such label shall be placed adjacent to and shall be of the same size and type of marking as the old marking on the remanufactured item.

(Ga. L. 1959, p. 372, § 1.)

Cross references. - Labeling of secondhand watches, T. 43, C. 49.

10-1-82. Label required for rebuilt item sold at retail.

Any rebuilt item sold at retail in the State of Georgia shall be labeled "Rebuilt." Such label shall be placed adjacent to and shall be of the same size and type of marking as the old marking on the rebuilt item.

(Ga. L. 1959, p. 372, § 2.)

Cross references. - Labeling of secondhand watches, T. 43, C. 49.

10-1-83. Penalty for violation of this article.

Noncompliance with this article shall be a misdemeanor, and punishment shall be as provided by law.

(Ga. L. 1959, p. 372, § 4.)

ARTICLE 6 INTERSTATE PURCHASE OF RIFLES AND SHOTGUNS

RESEARCH REFERENCES

Am. Jur. 2d. - 79 Am. Jur. 2d, Weapons and Firearms, §§ 4, 5, 9.

C.J.S. - 94 C.J.S., Weapons, § 7 et seq.

ALR. - Applicability of state anti-trust act to interstate transaction, 24 A.L.R. 787 .

Application of statute or regulation dealing with registration or carrying of weapons to transient nonresident, 68 A.L.R.3d 1253.

10-1-100. Out-of-state purchase of rifles and shotguns by residents.

Residents of the State of Georgia may purchase rifles and shotguns in any state of the United States, provided such residents conform to applicable provisions of statutes and regulations of the United States, of the State of Georgia, and of the state in which the purchase is made.

(Ga. L. 1969, p. 804, § 1; Ga. L. 2002, p. 977, § 1.)

Cross references. - Regulation of sale, possession of weapons generally, § 16-11-100 et seq.

10-1-101. Nonresidents may purchase rifles and shotguns in Georgia.

Residents of any state of the United States may purchase rifles and shotguns in the State of Georgia, provided such residents conform to applicable provisions of statutes and regulations of the United States, of the State of Georgia, and of the state in which such persons reside.

(Ga. L. 1969, p. 804, § 2; Ga. L. 2002, p. 977, § 1.)

Cross references. - Regulation of sale, possession of weapons generally, § 16-11-100 et seq.

ARTICLE 7 SALE OF PAINTS AND FLAXSEED OR LINSEED OIL

RESEARCH REFERENCES

ALR. - Products liability: sufficiency of evidence to support product misuse defense in actions concerning paint, cleaners, or other chemicals, 58 A.L.R.4th 76.

10-1-120. "Paint" defined.

The term "paint," as used in this article, shall include white lead basic, carbonate, or sublimate, in any kind of oil, or any compound intended for the same use, paste or semipaste, and liquid or mixed paint ready for use.

(Ga. L. 1920, p. 225, § 3; Code 1933, § 73-102.)

RESEARCH REFERENCES

Childhood Lead-Based Paint Poisoning Litigation, 66 Am. Jur. Trials 47.

10-1-121. Enforcement of article; rules and regulations.

The director of the Georgia Drugs and Narcotics Agency is charged with the proper enforcement of this article and is empowered to formulate and promulgate such rules and regulations as may be necessary in carrying out the purposes of this article.

(Ga. L. 1920, p. 225, § 7; Code 1933, § 73-101.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 35 et seq.

C.J.S. - 3 C.J.S., Agriculture, § 20 et seq.

10-1-122. Labels on paint containers.

The labels on containers of paints shall clearly and distinctly state the name and residence of the manufacturer of the paint or the distributor thereof or of the party for whom the same is manufactured. The label shall also clearly state the quantity contained in the package; the quantity, in the case of liquid or mixed paints, to be designated in United States standard gallons or fraction thereof and, in the case of paste or semipaste paints, such as are commonly sold by weight, to be shown by weight avoirdupois. Said labels shall be printed in the English language in plain, legible type.

(Ga. L. 1920, p. 225, § 2; Code 1933, § 73-103.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 48. 38 Am. Jur. 2d, Gas and Oil, § 159.

C.J.S. - 2 C.J.S., Adulteration, § 1 et seq.

ALR. - Constitutionality of statutes requiring notice by label or otherwise of the fact that product is imported, or as to place of production, 124 A.L.R. 572 .

10-1-123. Purity of flaxseed or linseed oil; requirement for boiled linseed oil.

No person, firm, corporation, or agent or employee of any person, firm, or corporation shall manufacture for sale or offer or expose for sale any flaxseed or linseed oil unless the same shall answer all the chemical tests for purity recognized in the United States Pharmacopoeia or offer or expose for sale any flaxseed or linseed oil as "boiled linseed oil" unless in its manufacture the same shall have been put to a temperature of 225 degrees Fahrenheit.

(Ga. L. 1920, p. 225, § 4; Code 1933, § 73-104.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 49.

C.J.S. - 3 C.J.S., Agriculture, §§ 84, 85.

10-1-124. Flaxseed or linseed oil to be sold under true name; labeling tank cars, tanks, barrels, or vessels of such oil.

No person, firm, corporation, or agent or employee of any person, firm, or corporation shall sell or expose or offer for sale any flaxseed or linseed oil unless it shall be done under its true name; and each tank car, tank, barrel, keg, or any vessel of such oil shall have distinctly and durably printed, stamped, stenciled, or labeled thereon the true name of such oil and in ordinary boldface capital letters the words "PURE LINSEED OIL RAW" or "PURE LINSEED OIL BOILED" and the name and address of the manufacturer thereof or of the party for whom the same is manufactured and under whose brand the same is sold.

(Ga. L. 1920, p. 225, § 5; Code 1933, § 73-105.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 49.

C.J.S. - 3 C.J.S., Agriculture, §§ 84, 85.

ALR. - Constitutionality of statutes requiring notice by label or otherwise of the fact that product is imported, or as to place of production, 124 A.L.R. 572 .

10-1-125. Possession of improperly labeled article prima-facie evidence of violation.

Possession by any person, firm, or corporation, or agent or employee of any person, firm, or corporation dealing in said articles, of any article described in Code Sections 10-1-120 through 10-1-124 and not properly labeled shall be considered prima-facie evidence that the same is kept by such person, firm, or corporation in violation of this article and punishable under it.

(Ga. L. 1920, p. 225, § 6; Code 1933, § 73-106.)

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Agriculture, § 49.

C.J.S. - 2 C.J.S., Adulteration, §§ 9, 10.

10-1-126. Requirements for timber-marking paint; penalty for violation; enjoining violation.

  1. It shall be unlawful for any person, firm, or corporation to distribute, sell, or offer for sale within this state any paint used specifically for marking timber if such paint will not remain effective for a period of at least 12 months if applied to timber in a nondiluted state. The label on the container of any such paint sold in this state shall have clearly printed thereon in bold type the following: "EFFECTIVE FOR A MINIMUM OF 12 MONTHS IF USED IN A NONDILUTED STATE."
  2. As used in this Code section, the term "paint" means any substance or mixture of substances, liquid, powder, or paste intended for use primarily for marking timber.
  3. Any person violating this Code section shall be guilty of a misdemeanor.
  4. In addition to the remedies provided in this Code section, the director and drug agents of the Georgia Drugs and Narcotics Agency may apply to an appropriate court for, and such court shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating this Code section irrespective of whether or not there exists an adequate remedy at law.

    (Code 1933, § 73-107, enacted by Ga. L. 1976, p. 1556, § 1.)

RESEARCH REFERENCES

C.J.S. - 2 C.J.S., Adulteration, §§ 2, 3.

10-1-127. Penalty for sale of deceptively labeled paint.

Whoever shall sell or offer or expose for sale any paint which shall be labeled or marked in such manner as to tend to deceive the purchaser as to its nature or composition or which shall not be accurately labeled as required in this article shall be guilty of a misdemeanor and, upon conviction thereof, for each offense shall be punished by a fine of not less than $25.00 and not more than $100.00 or by imprisonment in the county jail not exceeding 60 days.

(Ga. L. 1920, p. 225, § 1; Code 1933, § 73-9901.)

RESEARCH REFERENCES

C.J.S. - 2 C.J.S., Adulteration, § 5.

ARTICLE 8 SALE OF PETROLEUM PRODUCTS, BRAKE FLUID, AND ANTIFREEZE

Administrative Rules and Regulations. - Substantive Regulations; Petroleum Products, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Chapter 40-20-1.

RESEARCH REFERENCES

ALR. - Public regulation or authorization of gas filling stations, 49 A.L.R. 767 ; 55 A.L.R. 256 ; 79 A.L.R. 918 ; 96 A.L.R. 1337 .

Constitutionality and construction of gasoline inspection and tax statutes, 111 A.L.R. 185 .

Liability of manufacturer or seller for injury caused by firearms, explosives, and flammables, 80 A.L.R.2d 488; 94 A.L.R.3d 291; 15 A.L.R.4th 909; 18 A.L.R.4th 206.

PART 1 P ETROLEUM PRODUCTS

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

10-1-140. Definitions.

As used in this part, the term:

  1. "Gasoline" means gasoline, naphtha, benzol, and other products of petroleum, under whatever name designated, used for heating or power purposes.
  2. "Kerosene" means kerosene and other products of petroleum, under whatever name designated, used for illuminating, heating, or cooking purposes.
  3. "Lubricating oils" means rerefined, reprocessed, or reconditioned used oils as well as virgin petroleum oils or blends thereof.

    (Ga. L. 1927, p. 279, § 1; Code 1933, § 73-209; Ga. L. 1979, p. 981, § 2.)

JUDICIAL DECISIONS

Cited in General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).

10-1-141. "Petroleum products" not to include liquefied petroleum gas.

The term "petroleum products," as used in this part, shall in no way be construed to include liquefied petroleum gas as defined in Code Section 10-1-262.

(Ga. L. 1960, p. 1043, § 18.)

10-1-142. Appointment and duties of state oil chemist.

The Commissioner of Agriculture is required to appoint, in accordance with Chapter 20 of Title 45, a chemist, who shall be an expert oil analyst, to be designated as the state oil chemist, whose duty it shall be to analyze all samples of gasoline and kerosene and all fluids purporting to be substitutes therefor or motor fuel improvements or other like products of petroleum, under whatever name they may be designated, and used for illuminating, heating, cooking, power, or lubricating purposes, submitted by the Commissioner of Agriculture or any duly authorized inspector or inspectors.

(Ga. L. 1927, p. 279, § 9; Code 1933, § 73-201; Ga. L. 1960, p. 1043, §§ 1, 2; Ga. L. 1972, p. 1015, § 505; Ga. L. 1979, p. 981, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of former Code 1933, §§ 73-222 and 73-223 was within the power of the state oil chemist as the duly authorized agent of the Commissioner of Agriculture, who was constituted the chief oil inspector under former Code 1933, § 73-203. 1965-66 Op. Att'y Gen. No. 66-141.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-143. Employment of oil inspectors; expenses.

The Commissioner of Agriculture is authorized to employ, in accordance with Chapter 20 of Title 45, oil inspectors as he deems necessary to enforce this part. Oil inspectors so appointed shall be allowed such expenses as shall be approved by the Commissioner of Agriculture.

(Ga. L. 1927, p. 279, § 10; Code 1933, § 73-202; Ga. L. 1937, p. 475, § 1; Ga. L. 1960, p. 1043, § 3; Ga. L. 1972, p. 1015, § 505.)

Cross references. - Reimbursement of certain travel expenses, § 45-7-29 et seq.

Expense of travel by private automobile, § 50-19-7 .

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-144. Additional expenses; Commissioner of Agriculture to be chief oil inspector.

In addition to the expenses of inspectors as provided for in Code Section 10-1-143, there shall be allowed such further sums for the purchase of equipment, supplies, and clerical help and to pay any other expenses incident to and necessary for the enforcement of this part as may hereafter be appropriated. The Commissioner of Agriculture is constituted chief oil inspector for the purpose of the enforcement of this part.

(Ga. L. 1927, p. 279, § 19; Ga. L. 1931, p. 7, § 78; Code 1933, § 73-203; Ga. L. 1960, p. 1043, §§ 1, 4; Ga. L. 1972, p. 1015, § 505.)

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of former Code 1933, §§ 73-222 and 73-223 was within the power of the state oil chemist as the duly authorized agent of the Commissioner of Agriculture, who was constituted the chief oil inspector under former Code 1933, § 73-203. 1965-66 Op. Att'y Gen. No. 66-141.

10-1-145. Payment of compensation and expenses.

The compensation of the state oil chemist and state oil inspectors and the expenses of enforcing this part shall be paid in the same manner as compensation and expenses of other employees of the Department of Agriculture are paid.

(Ga. L. 1927, p. 279, § 20; Code 1933, § 73-204; Ga. L. 1960, p. 1043, § 5.)

10-1-146. Bonds of state oil chemist and inspectors.

The Commissioner of Agriculture is authorized to have the state oil chemist and state oil inspectors bonded for the faithful performance of their respective duties at the expense of the Department of Agriculture if and to the extent he deems it necessary for the proper protection of the state and the public.

(Ga. L. 1927, p. 279, § 23; Code 1933, § 73-205; Ga. L. 1960, p. 1043, § 6.)

10-1-147. Filling vacancies in offices of state oil chemist and inspectors.

The Commissioner of Agriculture is authorized to fill any vacancies which may occur in the offices of state oil chemist and oil inspector on account of death, resignation, or other cause.

(Ga. L. 1927, p. 279, § 25; Code 1933, § 73-207; Ga. L. 1960, p. 1043, § 1.)

10-1-148. Right to inspect premises; search warrants; refusal of admission as evidence of violation.

In the performance of their duties, the Commissioner of Agriculture or any of his duly authorized agents shall have free access at all reasonable hours to any store, warehouse, factory, storage house, or railway depot where petroleum products are kept or otherwise stored, for the purpose of examination or inspection and drawing samples. If such access shall be refused by the owner of such premises or his agent or other persons occupying and using the same, the Commissioner of Agriculture or his duly authorized inspectors or agents may apply for a search warrant, which shall be obtained in the same manner as provided for obtaining search warrants in other cases. Their refusal to admit an inspector to any of the above-mentioned premises during reasonable hours shall be construed as prima-facie evidence of a violation of this part.

(Ga. L. 1927, p. 279, § 16; Code 1933, § 73-208; Ga. L. 1960, p. 1043, §§ 1, 7.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-149. Gasoline and kerosene subject to inspection and analysis; manufacturers and wholesalers to file statements.

For the purpose of this part, all gasoline and kerosene sold or offered or exposed for sale shall be subject to inspection and analysis as provided in this part. All manufacturers, refiners, wholesalers, and jobbers, before selling or offering for sale any gasoline or kerosene or like products, under whatever name designated, for power, lubricating, illuminating, heating, or cooking purposes, shall file with the Commissioner of Agriculture a declaration or statement that they desire to sell such products in this state and shall furnish the name, brand, or a trademark of the product which they desire to sell, together with the name and address of the manufacturer thereof, and that all such products are in conformity with the specifications established pursuant to this part by the state oil chemist and approved by the Commissioner of Agriculture.

(Ga. L. 1927, p. 279, § 2; Code 1933, § 73-210; Ga. L. 1960, p. 1043, §§ 1, 8; Ga. L. 1979, p. 981, § 3.)

Administrative Rules and Regulations. - Petroleum Products to be Inspected, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Substantive Regulations, Petroleum Products, § 40-10-1 -.09.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-150. Approval of substitutes or improvers of fuels or other motor fuels.

All materials, fluids, or substances offered or exposed for sale, purporting to be substitutes for or improvers of fuels or other motor fuels to be used for power, cooking, or heating purposes, shall, before being sold or exposed or offered for sale, be submitted to the Commissioner of Agriculture for examination and inspection and shall receive the approval of the state oil chemist and the Commissioner of Agriculture and shall be sold or offered for sale only when properly labeled with a label, the form and contents of which shall have been approved by the state oil chemist and the Commissioner of Agriculture.

(Ga. L. 1927, p. 279, § 3; Code 1933, § 73-211; Ga. L. 1960, p. 1043, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-151. Sale of substandard gasoline and kerosene illegal; confiscation.

It shall be illegal to sell or offer for sale any gasoline or kerosene which is described and designated in this part and which is used or intended to be used for power, lubricating, illuminating, cooking, or heating purposes, when sold under whatever name, and which falls below the standard provided in this part. Any such gasoline or kerosene shall be subject to confiscation and destruction by order of the Commissioner of Agriculture.

(Ga. L. 1927, p. 279, § 4; Code 1933, § 73-212; Ga. L. 1960, p. 1043, § 1; Ga. L. 1979, p. 981, § 4.)

Administrative Rules and Regulations. - Water in Retail Tanks; Dispenser Filters, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Substantive Regulations: Petroleum Products, § 40-20-1-.10.

JUDICIAL DECISIONS

Cited in General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, § 401 et seq.

ALR. - Liability of manufacturer or seller for injury caused by firearms, explosives, and flammables, 80 A.L.R.2d 488; 94 A.L.R.3d 291; 15 A.L.R.4th 909; 18 A.L.R.4th 206.

10-1-151.1. Production and sale of biodiesel fuel.

It shall be unlawful for any person to produce, offer for sale, or sell any biodiesel fuel to be used in blending such biodiesel fuel with petroleum diesel fuel to create a blended fuel for subsequent sale for use in diesel engines unless the biodiesel fuel meets the specifications of American Society for Testing and Materials Standard D 6751.

(Code 1981, § 10-1-151.1 , enacted by Ga. L. 2006, p. 547, § 1/SB 636.)

Cross references. - Study and review of gasoline additives, § 12-9-70 .

10-1-152. Labeling gasoline and kerosene containers; cleaning kerosene containers of gasoline.

Every person, firm, or corporation delivering at wholesale or retail any gasoline in this state shall deliver the same to the purchaser only in tanks, barrels, casks, cans, or other containers having the word "gasoline" plainly stenciled or labeled thereon in vermilion red, in English. Such dealers shall not deliver kerosene oil in any barrel, cask, can, or other container which shall have been so stenciled or labeled or that has ever contained gasoline unless such barrel, cask, can, or other container shall have been thoroughly cleaned and all traces of gasoline removed. Every purchaser of gasoline for use or sale shall procure and keep the same only in tanks, barrels, casks, cans, or other containers stenciled or labeled as provided in this Code section. Every person delivering at wholesale or retail any kerosene in this state shall deliver same to the purchaser only in tanks, barrels, casks, cans, or other containers having the word "kerosene" in English, plainly stenciled or labeled thereon in vermilion red; and every person purchasing same for use or sale shall procure and keep the same only in tanks, barrels, casks, cans, or other containers stenciled or labeled as provided in this Code section. Nothing in this Code section shall prohibit the delivery of gasoline by hose or pipe from a tank directly into the tank of any automobile or other motor. In cases where gasoline or kerosene is sold in bottles, cans, or other containers of not more than one gallon, for cleaning and other similar purposes, such bottles, cans, or other containers shall bear a label with the words "unsafe when exposed to heat or fire."

(Ga. L. 1927, p. 279, § 5; Code 1933, § 73-213.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

ALR. - Validity of regulations as to keeping or storage of gasoline, 43 A.L.R. 858 ; 128 A.L.R. 364 .

Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209.

10-1-153. Notice and sample of petroleum products shipped into state.

When gasoline or kerosene or other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes are shipped into this state in any manner whatsoever, the manufacturer, refiner, or jobber shall promptly give notice to the Commissioner of Agriculture of the date of shipment and shall furnish a sample of such size as designated by the Commissioner of Agriculture, but not in excess of 16 ounces, of the gasoline or kerosene and other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes shipped and labeled, giving the tank car number, truck number, or other container number, with the name and address of the person, company, firm, or corporation to whom it is sent and the number of gallons contained in the shipment made. In each instance where gasoline or kerosene and other petroleum products used for heating, cooking, illuminating, power, or lubricating purposes are shipped in tank cars, the record of the capacity of each tank car furnished by the railroad company shall be accepted.

(Ga. L. 1927, p. 279, § 6; Code 1933, § 73-214; Ga. L. 1960, p. 1043, §§ 1, 9; Ga. L. 1979, p. 981, § 5.)

Administrative Rules and Regulations. - Sample Size, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Substantive Regulations: Petroleum Products, § 40-20-1.06.

JUDICIAL DECISIONS

Cited in General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, §§ 443, 444.

10-1-154. How purchaser may obtain analysis of gasoline or illuminating or heating oils.

Any person purchasing any gasoline or illuminating or heating oils from any manufacturer, refiner, jobber, or vendor for his own use may submit fair samples of said gasoline or illuminating or heating oils to the Commissioner of Agriculture to be tested or analyzed by the state oil chemist. In order to protect the manufacturer or vendor from the submission of spurious samples, the person selecting the same shall do so in the presence of two or more disinterested persons, which samples shall be not less than one pint in quantity and shall be bottled, corked, and sealed in the presence of said witnesses and the sample shall be placed in the hands of a disinterested person, who shall forward the same at the expense of the purchaser to the Commissioner of Agriculture. Upon the receipt by the Commissioner of any such sample he shall have the state oil chemist promptly test and analyze the sample. The Commissioner shall return to such purchaser or purchasers a certificate of analysis, which, when verified by the affidavit of the state oil chemist, shall be competent evidence in any court of law or equity.

(Ga. L. 1927, p. 279, § 7; Code 1933, § 73-215; Ga. L. 1960, p. 1043, § 1.)

JUDICIAL DECISIONS

Cited in General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-155. Rules and regulations; specifications for petroleum products; penalty for violations.

  1. The Commissioner of Agriculture shall have authority to prescribe such rules and regulations, consistent with the terms, intent, and purposes of this part, as he finds necessary for the proper administration and enforcement thereof. He shall establish by regulation specifications for the various petroleum products used for heating, cooking, illuminating, power, or lubricating purposes in this state so as to provide quality control and suitability for the intended use of such products and the effective enforcement of the laws pertaining to the sale, distribution, or use of such products and shall have authority to change such specifications, but only after giving a 60 days' notice and a public hearing in regard to such changes to refiners and distributors doing business in this state.
  2. Any manufacturer, refiner, wholesaler, jobber, or vendor who shall violate this Code section or any regulation issued pursuant thereto prescribing specifications for the various petroleum products regulated by this part shall be guilty of a misdemeanor.

    (Ga. L. 1927, p. 279, § 8; Code 1933, §§ 73-216, 73-9904; Ga. L. 1943, p. 303, § 1; Ga. L. 1960, p. 1043, §§ 10, 16; Ga. L. 1972, p. 1015, § 504; Ga. L. 1979, p. 981, § 6.)

JUDICIAL DECISIONS

Cited in Shermer v. Crowe, 53 Ga. App. 418 , 186 S.E. 224 (1936); General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936); Hodges v. Ashurst, 60 Ga. App. 157 , 3 S.E.2d 99 (1939); Cisco v. State, 285 Ga. 656 , 680 S.E.2d 831 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Signs indicating price is for "self-service" pumps. - Commissioner of Agriculture may require retail gasoline sales establishments to include on signs or billboard advertisements a designation that the price for gasoline posted thereto is to apply to "self-service" pumps if there is a differentiation in price for the same gasoline sold from "self-service" pumps and "full-service" pumps. 1975 Op. Att'y Gen. No. 75-124.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

ALR. - Liability of manufacturer or seller for injury caused by firearms, explosives, and flammables, 80 A.L.R.2d 488; 94 A.L.R.3d 291; 15 A.L.R.4th 909; 18 A.L.R.4th 206.

10-1-156. Enjoining marketing in violation of part, specifications, or rules and regulations.

Whenever the Commissioner of Agriculture shall find any person willfully marketing petroleum products in this state which are regulated by this part and which do not comply with the prescribed specifications therefor or otherwise willfully marketing petroleum products in violation of this part and rules and regulations promulgated pursuant to this part, the Commissioner shall be authorized to apply to the superior court having jurisdiction over the offender for an injunction against the continuance of any such violations. The appropriate superior court shall have jurisdiction, upon hearing and for cause shown, to grant such temporary or permanent injunction restraining further violations as the circumstances appear to require.

(Ga. L. 1960, p. 1043, § 11; Ga. L. 1979, p. 981, § 6.)

10-1-157. Collecting and testing samples of petroleum products; rules and regulations.

The Commissioner of Agriculture shall, from time to time, collect or cause to be collected samples of all petroleum products subject to regulation under this part which are sold, offered, or exposed for sale in this state and cause such samples to be tested or analyzed by the state oil chemist. The Department of Agriculture shall have the power to implement rules and regulations necessary to carry out inspection of gasoline samples as provided for by this Code section.

(Ga. L. 1927, p. 279, § 13; Code 1933, § 73-218; Ga. L. 1960, p. 1043, § 13; Ga. L. 2010, p. 9, § 1-23/HB 1055; Ga. L. 2011, p. 99, § 12/HB 24.)

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Cited in General Oil Co. v. Crowe, 54 Ga. App. 139 , 187 S.E. 221 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-158. Registration of gasoline dealers.

Every dealer in gasoline, before selling or exposing or offering for sale any gasoline, and annually thereafter, shall be required to register and shall make known to the Commissioner of Agriculture his desire to sell gasoline giving the name and manner and kind of pump or pumps he will use and the location of same, and shall keep the certificate or certificates of registration issued by the Commissioner of Agriculture posted in a prominent and accessible place in his place of business where such gasoline is sold. The form of such certificate shall be designated by the Commissioner of Agriculture.

(Ga. L. 1927, p. 279, § 14; Code 1933, § 73-219; Ga. L. 1960, p. 1043, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 160.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-159. Inspection of self-measuring pumps; sealing accurate pumps; condemnation of inaccurate pumps; rules and regulations.

  1. It shall be the duty of the inspectors provided for in this part to familiarize themselves with the accuracy and adjusting devices on the various makes of self-measuring pumps in use; and they shall carefully inspect all of such pumps located in the territory assigned to them.
  2. All such pumps found to be giving accurate measure within the tolerance established by regulations of the Commissioner of Agriculture shall have the adjusting device sealed with an official lead and wire seal applied by an inspector duly authorized by the Commissioner of Agriculture in such a manner that the adjustment cannot be altered without breaking the seal.
  3. If any pump shall be found to be giving inaccurate measure in excess of the tolerance established by regulations of the Commissioner of Agriculture, the inspector shall then and there notify the operator of the pump, whether owner or lessee, to make the necessary adjustments, the inspector to lend his assistance with the standard measure provided for testing such pumps. After the adjustments have been made, the adjusting devices shall be sealed in the manner provided for those pumps found originally accurate. The inspector shall notify the operator, whether owner or lessee, of every pump that apparently has been altered for the purpose of giving short measure in excess of eight ounces on a measure of five gallons or that cannot be adjusted within a range of eight ounces, either over or under, on a measure of five gallons that it must immediately be adjusted, the inspector to lend his assistance with the standard measure for testing such pumps. Should the operator fail or refuse to then and there make such adjustments as shall be necessary to bring the measure within the allowed variation, the same shall be condemned and rendered inoperable immediately by the inspector examining the same; and such pump shall not again be operated without the written consent of the Commissioner of Agriculture. Inspectors shall be required to report to the Commissioner of Agriculture immediately the name and number of all pumps condemned and rendered inoperable.
  4. When any pump shall be condemned under this part by any inspector, it shall be the duty of the inspector immediately to make affidavit before the judge of the probate court of the county in which the pump is located that the pump is being operated by the person who shall be named in the affidavit, contrary to law. Thereupon the judge of the probate court shall issue an order to the person named in the affidavit to show cause before him on the day named in the order, not more than ten days nor less than three days from the issuance of the order, why the pump should not be confiscated and dismantled. On the day named in the order, it shall be the duty of the judge of the probate court to hear the respective parties and to determine whether or not the pump has been operated contrary to the provisions of this part. If the judge of the probate court shall find that the pump has been so operated, he shall forthwith issue an order adjudging the pump to be forfeited and confiscated to the state and direct the sheriff of the county to dismantle the pump and take it into his possession, and, after ten days' notice by posting or publication, as the court may direct, to sell the pump to the highest bidder for cash. The proceeds of sale, or as much thereof as may be necessary, shall be used by the sheriff, first, to pay the costs, which shall be the same as in cases of attachment, and the sheriff shall thereupon pay over and deliver the residue, if any, to the person from whose possession the pump has been taken.
  5. It shall be unlawful to install or operate any self-measuring pump which can be secretly manipulated in such manner as to give short measure. Such inaccurate self-measuring pump shall be condemned as provided in this Code section, and thereafter it shall be unlawful for any person to sell any kerosene or gasoline from such pump until such pump has been made or altered to comply with this part and has been inspected and approved for service by the inspector.
  6. It shall be unlawful for anyone to break a seal applied by an inspector to a pump without first securing consent of the Commissioner of Agriculture, which consent may be given through one of the duly authorized inspectors.
  7. The Department of Agriculture shall have the power to implement rules and regulations necessary to carry out inspections of self-measuring pumps provided for by this Code section.

    (Ga. L. 1927, p. 279, § 15; Code 1933, § 73-220; Ga. L. 1960, p. 1043, §§ 1, 14; Ga. L. 2010, p. 9, § 1-24/HB 1055.)

OPINIONS OF THE ATTORNEY GENERAL

Applicability to tank wagons and trucks. - The laws providing for the inspection and calibration of pumps used in the sale of petroleum products are applicable to tank wagons and transport trucks used by wholesale dealers making delivery of petroleum products in Georgia, as well as retail dealers. 1952-53 Op. Att'y Gen. p. 484 (rendered prior to enactment of Code Section 10-1-160).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

10-1-160. Calibration of tank trucks, meters, containers, and other measures; condemnation of inaccurate measures.

The Commissioner of Agriculture is authorized to prescribe regulations governing the calibration of tank trucks, meters, containers, and other measures used in dispensing petroleum products subject to regulation under this part; and, when any such measure is found giving inaccurate measure and such condition cannot be or is not adjusted to the requirements of the regulations, then such measures shall be seized by the Commissioner or his agents and subject to condemnation in a manner similar to that prescribed in subsections (c) and (d) of Code Section 10-1-159 or destroyed if the court shall find that the measure cannot be properly adjusted.

(Ga. L. 1960, p. 1043, § 15; Ga. L. 1972, p. 1015, § 505.)

10-1-161. No fee for gasoline or kerosene inspection.

Reserved. Repealed by Ga. L. 2010, p. 9, § 1-25/HB 1055, effective May 12, 2010.

Editor's notes. - This Code section was based on Ga. L. 1927, p. 279, § 24; Code 1933, § 73-221.

10-1-162. "Person" defined; substitution or misbranding of petroleum products; sale of used or reclaimed lubricants; injunctions; enforcement.

  1. As used in this Code section and in Code Section 10-1-163, the term "person" means natural persons; partnerships, firms, associations, joint-stock companies, syndicates, and corporations; any receiver, trustee, conservator, or other officer appointed by any state or federal court; counties, municipalities, or other political subdivisions of this state, singular or plural; and the State of Georgia. The use of the singular number shall include the plural number.
  2. No person shall store, sell, expose, or offer for sale any liquid fuels, lubricating oils, greases, or other similar products:
    1. In or from any container, receptacle, tank, pump, or other distributing device other than those products manufactured or distributed by the manufacturer or distributor indicated by the trademark, trade name, name, symbol, sign, or other distinguishing mark or device displayed upon the container, receptacle, tank, pump, or other distributing device in or from which such products are stored, sold, exposed, or offered for sale or distributed; or
    2. Under any trademark, trade name, name, symbol, sign, or other distinguishing mark or device other than those products manufactured or distributed by the manufacturer or distributor marketing such products under such trademark, trade name, name, symbol, sign, or other distinguishing mark or device; or
    3. In any manner whatsoever which may deceive or have the effect of deceiving the purchaser of such products as to the nature, price, quality, or quantity of the products so stored, sold, exposed, or offered for sale.
  3. No person shall store, sell, expose, or offer for sale any previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants unless such person shall at all times have each and every container or item of equipment in or through which any of such products are sold, kept for sale, displayed, or dispensed plainly labeled "reprocessed or rerefined." No person shall cause to be published, displayed, or circulated any advertising matter offering for sale any previously used or previously used and reclaimed, used, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants unless he shall state in such advertising the fact that such products have been previously used. Nothing in this Code section shall apply to the sale of unfiltered crankcase drainings, and nothing in this Code section shall apply to the sale of crankcase drainings for use on livestock.
  4. Any person dealing in previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants without having each and every container or item of equipment in or through which any of such products are sold, kept for sale, displayed, or dispensed plainly labeled as required in this Code section or advertising any of such products for sale without inserting in such advertising a statement as required in this Code section may upon proper hearing be enjoined from selling any of such products or offering, displaying, or advertising any of the same for sale. Action for such injunction may be brought in any court having jurisdiction to hear and decide equity cases in the county in which the defendant resides and may be brought either by the Attorney General of this state or by the district attorney in and for such county. The authority granted by this Code section shall be in addition to and not in lieu of authority to prosecute criminally any person for a violation of this Code section. The granting or enforcing of any injunction under this Code section is a preventive measure for the protection of the people of this state, not a punitive measure; and the fact that a person has been charged or convicted of a violation of this Code section shall not prevent the issuance of a writ of injunction to prevent further unlawful dealing in previously used or previously used and reclaimed, recleaned, or reconditioned lubricating oils, lubricants, or mixtures of lubricants, nor shall the fact that a writ of injunction has been granted under this Code section preclude the institution of criminal prosecution or punishment.
  5. No person shall disguise or camouflage his equipment by imitating the trademark, trade name, name, symbol, sign, or other distinguishing mark or device under which recognized brands of liquid fuels, lubricating oils, greases, or other similar products are generally marketed.
  6. No person shall mix, blend, or compound the liquid fuels, lubricating oils, greases, or similar products of a manufacturer or distributor with the products of any other manufacturer or distributor or adulterate the same or store, sell, expose, or offer for sale such mixed, blended, or compounded products under the trademark, trade name, name, symbol, sign, or other distinguishing mark or device of either of said manufacturer or distributor or as the adulterated products of such manufacturer or distributor.
  7. No person shall aid or assist any other person in violating any of the provisions of this Code section by depositing or delivering into any container, receptacle, tank, pump, or other distributing device any liquid fuels, lubricating oils, greases, or other similar products other than those intended to be stored therein as indicated by the name of the manufacturer or distributor or the trademark, trade name, name, symbol, sign, or other distinguishing mark or device of the product displayed on the container, receptacle, tank, pump, or other distributing device used in connection therewith or shall by any other means aid or assist another in the violation of any of the provisions of this Code section.
  8. Nothing in this Code section shall prevent the lawful owner thereof from applying his or its own trademark, trade name, name, symbol, sign, or other distinguishing mark or device to any product or material.
  9. The state oil chemist and all law enforcement officers in the State of Georgia are charged with the enforcement of this Code section.

    (Code 1933, §§ 73-222, 73-223, enacted by Ga. L. 1937, p. 477, § 1; Ga. L. 1952, p. 391, §§ 1-3; Ga. L. 1958, p. 618, § 1; Ga. L. 1959, p. 128, § 1; Ga. L. 1979, p. 981, § 7.)

OPINIONS OF THE ATTORNEY GENERAL

Subsections (f) and (h) of this section are consistent. 1965-66 Op. Att'y Gen. No. 66-139.

Enforcement of former Code 1933, §§ 73-222 and 73-223 was within the power of the state oil chemist as the duly authorized agent of the Commissioner of Agriculture, who was constituted the chief oil inspector under former Code 1933, § 73-203. 1965-66 Op. Att'y Gen. No. 66-141.

Selling below advertised price is not proscribed. - Advertising one price and selling a product at a lower price is not the kind of deception proscribed by this section. 1965-66 Op. Att'y Gen. No. 66-141.

Signs indicating price is for "self-service" pumps. - Commissioner of Agriculture may require retail gasoline sales establishments to include on signs or billboard advertisements a designation that the price for gasoline posted thereto is to apply to "self-service" pumps if there is a differentiation in price for the same gasoline sold from "self-service" pumps and "full-service" pumps. 1975 Op. Att'y Gen. No. 75-124.

RESEARCH REFERENCES

C.J.S. - 2 C.J.S., Adulteration, §§ 2, 3.

ALR. - Constitutionality of statutes requiring notice by label or otherwise of the fact that product is imported, or as to place of production, 124 A.L.R. 572 .

10-1-163. Penalty for violating Code Section 10-1-162; individual liability.

  1. Any person who shall violate any of the provisions of Code Section 10-1-162 for preventing deception, substitution, and misbranding of liquid fuel, oil, grease, and similar products shall be guilty of a misdemeanor.
  2. If any partnership, firm, association, joint-stock company, syndicate, or corporation violates any of the provisions of Code Section 10-1-162, every director, officer, agent, employee, or member participating in, aiding, or authorizing the act or acts constituting the violation of Code Section 10-1-162 shall be guilty of a misdemeanor.

    (Code 1933, § 73-223, enacted by Ga. L. 1937, p. 477, §§ 1, 2; Ga. L. 1979, p. 981, § 7.)

JUDICIAL DECISIONS

Cited in Amoco Oil Co. v. Joyner, 46 Bankr. 130 (Bankr. M.D. Ga. 1985).

10-1-164. Requirements for signs advertising retail motor fuel; advertising free gifts or services; enforcement; penalty.

  1. Any sign or placard or other means used to advertise the price of motor fuel for sale at retail for use in motor vehicles may contain a separate listing of the price and a separate listing of each tax thereon, but must contain a total of such price and taxes which shall be at least as large as the listing of the price or any tax thereon. Numbers used to advertise the total price of such motor fuel shall be of uniform size; and, where fractions are used, the numerator and denominator thereof combined shall be of the same size as any whole numbers used. It shall not be necessary that a denominator be used to indicate fractions; but, if one is not used, the numerator must be at least half the size of the whole number used. If the price of motor fuel is advertised on any sign, billboard, placard, or other advertising medium, it shall be unlawful to place a higher price on any pump dispensing such motor fuel or to charge a higher price for such motor fuel. Any person dispensing motor fuel shall not be precluded from giving a discount from the posted or advertised price if the purchaser of the motor fuel buys additional merchandise.
  2. It shall be unlawful for any person dispensing motor fuel to advertise upon the purchase of motor fuel either free:
    1. Gifts or other products unless such person has sufficient number of gifts or products on hand to supply the reasonably expectable demand or the advertisement discloses a limitation of quantity; or
    2. Car washes or other services unless such person is prepared, in the absence of causes beyond the reasonable control of the offerer, to perform such car washes or the services advertised at the time of the purchase at such person's place of business or at a place of business affiliated by trademark or agreement with such person. If the free car washes or other services advertised are to be performed at a place of business affiliated by trademark or agreement but in a separate location, such fact shall be so stated on the sign, billboard, placard, or other advertising medium used.
  3. Nothing in this Code section shall preclude posting on any pumps dispensing motor fuel a separate statement of taxes included in the total purchase price for the purpose of complying with Chapter 8 of Title 48.
  4. The state oil chemist and any and all law enforcement officers in the State of Georgia are charged with enforcement of this Code section.
  5. Any person, firm, association, or corporation violating this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1959, p. 135, §§ 1-3; Ga. L. 1960, p. 826, § 1; Ga. L. 1973, p. 790, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Signs indicating price is for "self-service" pumps. - Commissioner of Agriculture may require retail gasoline sales establishments to include on signs or billboard advertisements a designation that the price for gasoline posted thereto is to apply to "self-service" pumps if there is a differentiation in price for the same gasoline sold from "self-service" pumps and "full-service" pumps. 1975 Op. Att'y Gen. No. 75-124.

Sign indicating that sales tax in addition to price shown on pump. - A regulation requiring that a statement be posted on each pump dispensing motor fuel that the Georgia sales tax is in addition to the price shown on the pump would be reasonable, would be in furtherance of the enforcement of the former Georgia Retailers' and Consumers' Sales and Use Tax Act and would not be inconsistent with such Code sections or the laws or Constitution of the United States and the State of Georgia. 1967 Op. Att'y Gen. No. 67-139.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Garages, and Filling and Parking Stations, § 16.

C.J.S. - 16D C.J.S., Constitutional Law, §§ 2241, 2269.

ALR. - Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901; 80 A.L.R.3d 740.

10-1-164.1. Self-service gasoline price for drivers holding special disability permit.

  1. Any owner or operator of a gasoline station which sells gasoline at one price when an employee of the station dispenses the gasoline into a motor vehicle and at a lower price when the customer dispenses the gasoline on a self-service basis shall comply with this Code section. Any such owner or operator shall conduct the operations of the station so that the holder of a special disability permit provided for in subsection (e) of Code Section 40-2-74.1 will, upon request, have gasoline dispensed by an employee of the station at the self-service pump and will be allowed to purchase such gasoline at the price otherwise charged for gasoline purchased on a self-service basis if:
    1. The holder of the permit is driving the motor vehicle into which the gasoline is to be dispensed; and
    2. The holder of the permit is not accompanied by another person 16 years of age or older who is not mobility impaired or blind. However, in such cases, the employee shall not be required to provide any other service.
  2. Any owner or operator who violates subsection (a) of this Code section shall be guilty of a misdemeanor. (Code 1981, § 10-1-164.1 , enacted by Ga. L. 1987, p. 1464, § 1; Ga. L. 2020, p. 493, § 10/SB 429.)

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "Code Section 40-2-74.1" for "Code Section 40-6-222" in the second sentence of subsection (a).

Editor's notes. - Code Section 40-6-222, referred to in subsection (a), was repealed by Ga. L. 2006, p. 659, § 2, effective May 1, 2006.

10-1-165. Civil penalty.

Any person violating any provision of:

  1. This part relating to the inspection and sale of gasoline, kerosene, and other petroleum products; or
  2. Code Section 10-1-164 providing for the regulation of signs advertising the price of motor fuel which are displayed by retailers of motor fuel; or
  3. Any rule, regulation, or standard promulgated or adopted by the Commissioner of Agriculture or the Department of Agriculture under the provisions of any of the above

    shall be liable to a civil penalty not to exceed $1,000.00 for such violation. The Commissioner, after a hearing, shall determine whether any person has violated this Code section and upon a proper finding may issue his order imposing a civil penalty as provided in this Code section. All hearings and proceedings under this Code section shall be held and taken under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Code 1933, § 73-223.1, enacted by Ga. L. 1973, p. 790, § 1.)

RESEARCH REFERENCES

ALR. - Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

10-1-166. Penalty for chemist or inspector having interest in sale or manufacture of gasoline.

Any chemist or inspector who, while in office, shall be interested directly or indirectly in the manufacture or vending of any gasoline shall be guilty of a misdemeanor.

(Ga. L. 1927, p. 279, § 11; Code 1933, § 73-9903.)

10-1-167. Penalty for operating condemned self-measuring gasoline pumps.

Any person, company, firm, or corporation who shall operate any pump, without the written consent of the Commissioner of Agriculture, which has been condemned by a duly authorized inspector as provided for in this part because of giving short measure in excess of the tolerance established by regulation of the Commissioner shall be guilty of a misdemeanor.

(Ga. L. 1927, p. 279, § 15; Code 1933, § 73-9905; Ga. L. 1960, p. 1043, § 17.)

10-1-168. Penalty for operating short-measure gasoline pump.

Any person, company, firm, or corporation who shall install or operate a self-measuring pump which has a device or other mechanical means used for the purpose of giving short measure shall be guilty of a misdemeanor.

(Ga. L. 1927, p. 279, § 15; Code 1933, § 73-9906.)

10-1-169. Penalty for violation of this part or regulations.

Any person or association of persons, firm, or corporation who shall violate any of the provisions of this part relating to inspection, labeling, sale, etc., of gasoline, kerosene, and other petroleum products or any rule or regulation promulgated by the Commissioner of Agriculture for the enforcement of this part shall be guilty of a misdemeanor.

(Ga. L. 1927, p. 279, § 17; Code 1933, § 73-9902; Ga. L. 1960, p. 1043, § 1.)

PART 2 B RAKE FLUID

Administrative Rules and Regulations. - Brake Fluid; Definitions; Standards, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Substantive Regulations: Petroleum Products, § 40-20-1-.02.

OPINIONS OF THE ATTORNEY GENERAL

Only federal standards enforceable. - Georgia is unable to enforce brake fluid standards unless such standards are identical to the federal standards regulating brake fluids. 1968 Op. Att'y Gen. No. 68-320.

10-1-180. Definitions.

As used in this part, the term:

  1. "Brake fluid" means the liquid medium through which force is transmitted in the hydraulic brake system of any motor vehicle operated in this state.
  2. "Chemist" means the state oil chemist.
  3. "Commissioner" means the Commissioner of Agriculture.

    (Ga. L. 1956, p. 237, § 1; Ga. L. 1972, p. 1015, § 505.)

10-1-181. When brake fluid deemed adulterated.

Brake fluid shall be deemed to be adulterated unless it meets the minimum standard for brake fluid as provided in this part. Brake fluid shall also be deemed to be adulterated if it contains any substance which will render it injurious to the hydraulic brake system of any motor vehicle or that will impair the normal operation of the hydraulic brake system.

(Ga. L. 1956, p. 237, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 2 C.J.S., Adulteration, § 1 et seq.

10-1-182. When brake fluid deemed misbranded.

A brake fluid shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular;
  2. If in package form it does not bear a label containing the name and place of business of the manufacturer, packer, seller, or distributor; an accurate statement of quantity of the contents in terms of weight or measure; and the words "brake fluid" and "heavy duty"; and if such information is not plainly and clearly stated on the outside of the package or container.

    (Ga. L. 1956, p. 237, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 255.

C.J.S. - 2 C.J.S., Adulteration, §§ 11, 12.

ALR. - Constitutionality of statutes requiring notice by label or otherwise of the fact that product is imported, or as to place of production, 124 A.L.R. 572 .

10-1-183. Sale of misbranded or adulterated brake fluid prohibited.

No person shall sell, have for sale, offer for sale, give, donate, distribute, or add to the hydraulic brake system of a motor vehicle in this state any brake fluid which is misbranded or adulterated.

(Ga. L. 1956, p. 237, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 2 C.J.S., Adulteration, §§ 9, 10.

10-1-184. Establishing minimum brake fluid standard and specifications.

The Commissioner shall establish by rule or regulation the minimum standard and specifications for brake fluid. The Commissioner shall not adopt a minimum standard or specification that is below the minimum standard and specifications established by the Society of Automotive Engineers for heavy-duty type brake fluids No. 70R1.

(Ga. L. 1956, p. 237, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 2 C.J.S., Adulteration, §§ 2, 3.

ALR. - Products liability: personal injury or death allegedly caused by defect in braking system in motor vehicle, 99 A.L.R.3d 179.

10-1-185. Inspection of brake fluid samples; annual license to sell.

Before any brake fluid shall be sold, exposed for sale, or stored, packed, or held with intent to sell within this state, a sample thereof must be inspected or approved by the state oil chemist. Upon application of the manufacturer, packer, seller, or distributor and the payment of a license or inspection fee of $25.00 for each brand or type of brake fluid submitted, the state oil chemist shall subject to inspection or analysis the brake fluid so submitted. If the brake fluid is not adulterated or misbranded and meets the standards established and promulgated by the Commissioner and is not such a type or kind that is in violation of this part, the Commissioner may issue the applicant a written license or permit authorizing the sale of such brake fluid in this state for the calendar year in which the license or inspection fee is paid, which license or permit shall be subject to renewal annually upon payment of a $25.00 renewal fee. If, in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the Commissioner shall find that any brake fluid has been materially altered or adulterated or a change has been made in the name, brand, or trademark under which the brake fluid is sold or that it violates this part, he shall notify the applicant; and the license or permit shall be canceled forthwith. No license or permit for the sale of brake fluid in this state shall be issued until application has been made as provided by this part and such samples of the brake fluid as may be necessary for the state oil chemist to inspect it have been submitted and until the state oil chemist notifies the Commissioner that said brake fluid meets the specifications adopted by the Commissioner.

(Ga. L. 1956, p. 237, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 160. 42 Am. Jur. 2d, Inspection Laws, § 8 et seq.

10-1-186. Enforcement; right of inspection; "stop-sale" orders; condemnation of adulterated or misbranded brake fluid.

  1. The Commissioner shall administer and enforce this part by inspections, chemical analyses, or by any other appropriate methods. All quantities or samples of brake fluid submitted for inspection or analysis shall be taken from stocks in this state or intended for sale in this state; or the Commissioner, through his agents, may call upon the manufacturer or distributor applying for an inspection or analysis of brake fluid to supply such sample thereof for inspection or analysis. The Commissioner, through his agents or inspectors, shall have free access during business hours to all places of business, buildings, vehicles, cars, and vessels used in the manufacture, transportation, sale, or storage of any brake fluid; and the Commissioner, acting through his agents, may open any box, carton, parcel, package, or container holding, containing, or supposed to contain any brake fluid and may take therefrom samples for analysis.
  2. If it appears that any of the provisions of this part have been violated, the Commissioner, acting through his authorized agents, inspectors, or representatives, is authorized to issue a "stop-sale" order which shall prohibit further sale or gift of any brake fluid being sold, exposed for sale, or held with intent to sell within this state in violation of this part until this part has been complied with.
  3. Any brake fluid not in compliance with this part shall be subject to seizure upon complaint of the Commissioner or any of his agents, inspectors, or representatives to a superior court in the county in which said brake fluid is located. In the event the court finds that any brake fluid is adulterated or misbranded, it may order the condemnation of said brake fluid; and such brake fluid shall be disposed of in any manner consistent with the rules and regulations of the Commissioner and the laws of this state, provided that in no instance shall the disposition of said brake fluid be ordered by the court without first giving the claimant or owner of same an opportunity to apply to the court for the release of said brake fluid or for permission to process or label said brake fluid so as to bring it into compliance with this part.
  4. In case any "stop-sale" order shall be issued under this part, the agents, inspectors, or representatives of the Commissioner shall release the brake fluid so withdrawn from sale when the requirements of this part have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

    (Ga. L. 1956, p. 237, § 7; Ga. L. 1983, p. 884, § 3-9.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 160. 42 Am. Jur. 2d, Inspection Laws, § 1 et seq.

ALR. - Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

10-1-187. Rules and regulations; powers of Commissioner's agents; list of inspected and licensed brands; advertising of licensing.

The Commissioner shall have authority to establish and promulgate such rules and regulations as are necessary promptly and efficiently to enforce this part. All authority vested in the Commissioner by virtue of this part may, with like force and effect, be executed by such employees, agents, inspectors, and representatives of the Commissioner as he may, from time to time, designate for such purpose. The Commissioner may publish in print or electronically or furnish, upon request, a list of the brands and classes or types of brake fluid inspected by the chemist which have been found to be in accord with this part and for which a license or permit for sale has been issued; and it shall be lawful for any manufacturer, packer, seller, or distributor of brake fluid to show, by advertising, in any manner, that his or its brand of brake fluid has been inspected, analyzed, and licensed for sale by the Commissioner, acting through the state oil chemist. It shall be unlawful for any manufacturer, packer, seller, or distributor of brake fluid to advertise, in any manner, that such brake fluid so advertised for sale has been approved by the Commissioner.

(Ga. L. 1956, p. 237, § 8; Ga. L. 2010, p. 838, § 10/SB 388.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 160. 42 Am. Jur. 2d, Inspection Laws, § 11.

10-1-188. Certified analyses as evidence.

Reserved. Repealed by Ga. L. 2011, p. 99, § 13/HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Ga. L. 1956, p. 237, § 9.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

10-1-189. Penalty for violations; instituting prosecutions.

Any person, firm, association, or corporation violating or failing to comply with this part or any rule, regulation, standard, or specification issued pursuant to this part shall be guilty of a misdemeanor; and each day that any violation of this part shall exist shall be deemed to be a separate offense. Whenever the Commissioner or his agents or representatives shall discover that any brake fluid is being sold or has been sold in violation of this part, the Commissioner or his agents or representatives may furnish the facts to the prosecuting attorney of the court having jurisdiction in the county in which such violation occurred; and it shall be the duty of such prosecuting attorney promptly to institute appropriate legal proceedings.

(Ga. L. 1956, p. 237, § 10.)

JUDICIAL DECISIONS

Cited in Shermer v. Crowe, 53 Ga. App. 418 , 186 S.E. 224 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 255. 42 Am. Jur. 2d, Inspection Laws, § 21 et seq.

C.J.S. - 2 C.J.S., Adulteration, § 14.

PART 3 A NTIFREEZE

Cross references. - Authority of Commissioner of Agriculture to impose penalty in lieu of other action, § 2-2-10 .

Administrative Rules and Regulations. - Regulations and Standards for Antifreeze, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Agriculture, Fuel Oil Inspection Unit, Substantive Regulations: Petroleum Products § 40-20-1-.03.

10-1-200. Definitions.

As used in this part, the term:

  1. "Antifreeze" means all substances and preparations intended for use as the cooling medium or to be added to the cooling liquid in the cooling system of internal combustion engines to prevent freezing of the cooling liquid or to lower its freezing point.
  2. "Person" means individuals, partnerships, corporations, companies, and associations.

    (Ga. L. 1975, p. 706, § 1.)

10-1-201. When antifreeze deemed adulterated.

An antifreeze shall be deemed to be adulterated:

  1. If it consists in whole or in part of any substance which will render it injurious to the cooling system of an internal combustion engine or will make the operation of the engine dangerous to the user;
  2. If its strength, quality, or purity falls below the standard of strength, quality, or purity under which it is sold; or
  3. If it consists of or is compounded with calcium chloride, magnesium chloride, petroleum distillates, or other chemicals or substances in quantities harmful to the cooling system of internal combustion engines.

    (Ga. L. 1975, p. 706, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 172.

C.J.S. - 2 C.J.S., Adulteration, § 1.

10-1-202. When antifreeze deemed misbranded.

An antifreeze shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular; or
  2. If in package form it does not bear a label containing the name and place of business of the manufacturer, packer, or distributor and an accurate statement of quantity of the contents in terms of weight or measure and they are not plainly and correctly stated on the outside of the package or container.

    (Ga. L. 1975, p. 706, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 79 Am. Jur. 2d, Weights and Measures, §§ 1, 13 et seq.

C.J.S. - 2 C.J.S., Adulteration, §§ 11, 12. 94 C.J.S., Weights and Measures, § 8 et seq.

10-1-202.1. Addition of denatonium benzoate to certain antifreeze; applicability; limitation on civil liability and criminal responsibility.

  1. Antifreeze sold in this state that is manufactured after July 1, 2012, containing more than 10 percent ethylene glycol shall include denatonium benzoate at a minimum of 30 parts per million and a maximum of 50 parts per million as an aversive agent to render the antifreeze unpalatable.
  2. The requirements of subsection (a) of this Code section shall apply only to manufacturers, packagers, distributors, recyclers, or sellers of antifreeze and shall apply to recyclers notwithstanding the provisions of Code Section 10-1-208.1.
  3. The requirements of subsection (a) of this Code section shall not apply to the sale of a motor vehicle, as defined in Code Section 40-1-1, that contains antifreeze or to wholesale containers containing 55 gallons or more of antifreeze.
  4. A manufacturer, packager, distributor, recycler, or seller of antifreeze that is required to contain denatonium benzoate pursuant to this Code section shall not be liable to any person for personal injury, death, property damage, damage to the environment including without limitation natural resources, or economic loss that results solely from the inclusion of denatonium benzoate in the antifreeze; provided, however, that such limitation on liability shall only be applicable if denatonium benzoate is included in antifreeze in the concentrations mandated by subsection (a) of this Code section. Such limitation on liability shall not apply to a particular liability to the extent that the cause of that liability is unrelated to the inclusion of denatonium benzoate in antifreeze.
  5. In any criminal prosecution under this part or civil action for damages relating to the requirements of this part, a distributor or seller of antifreeze who is not the manufacturer, packager, or recycler of such antifreeze and who sells or distributes antifreeze that is labeled as containing denatonium benzoate shall not be criminally responsible for, and shall be immune from civil liability for, failure to include denatonium benzoate in such labeled package, bill of lading, receipt, or container of antifreeze; provided, however, that if such distributor or seller of antifreeze has actual knowledge that the labeled product does not contain denatonium benzoate in the concentrations mandated by subsection (a) of this Code section, such distributor or seller shall not receive the immunity provided by this subsection. (Code 1981, § 10-1-202.1 , enacted by Ga. L. 2011, p. 331, § 2/HB 40; Ga. L. 2012, p. 775, § 10/HB 942.)

Editor's notes. - Ga. L. 2011, p. 331, § 1/HB 40, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'Chief's Law.'"

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required. - Offenses arising from a violation of O.C.G.A. § 10-1-202.1 do not, at this time, appear to be offenses for which fingerprinting is required. 2011 Op. Att'y Gen. No. 11-5.

10-1-203. Inspection of antifreeze samples; annual license to sell.

Before any antifreeze shall be sold, exposed for sale, or stored, packed, or held with intent to sell within this state, a current certified test report thereof prepared by an independent laboratory recognized by the Department of Agriculture to do such testing must be submitted and evaluated under the supervision of the state oil chemist in the Department of Agriculture. Upon application of the manufacturer or packer or distributor, submission of container label, and the payment of a license fee of $50.00 for each brand or type of antifreeze submitted, the state oil chemist shall evaluate the test report so submitted. Any fees collected pursuant to this Code section shall be retained pursuant to the provisions of Code Section 45-12-92.1. If the antifreeze is not adulterated or misbranded, if it meets the standards established and promulgated by the Commissioner of Agriculture, and if the antifreeze is not a type or kind that is in violation of this part, the Commissioner shall issue the applicant a written license or permit authorizing the wholesale and retail sale by the applicant and by others of such antifreeze in this state for the fiscal year in which the license is issued, which license or permit shall be subject to renewal annually. If the Commissioner shall find at a later date that the antifreeze product or substance to be sold, exposed for sale, or held with intent to sell has been materially altered or adulterated or that a change has been made in the name, brand, or trademark under which the antifreeze is sold or that it violates this part, the Commissioner is authorized to revoke or suspend the license or permit issued under this part of the licensee found in violation of this part after notice and hearing before the Commissioner. No license or permit for the sale of antifreeze in this state shall be issued until the application, fee, and label submission have been made as provided by this part, the certified test report has been evaluated by the state oil chemist, and the state oil chemist notifies the Commissioner of Agriculture that said antifreeze meets the requirements of this part.

(Ga. L. 1975, p. 706, § 4; Ga. L. 1997, p. 416, § 1; Ga. L. 2000, p. 136, § 10; Ga. L. 2010, p. 9, § 1-26/HB 1055.)

RESEARCH REFERENCES

Am. Jur. 2d. - 42 Am. Jur. 2d, Inspection Laws, §§ 1 et seq., 8 et seq.

10-1-204. Enforcement; right of inspection; "stop-sale" orders.

It shall be the duty of the Commissioner of Agriculture to administer and enforce this part by inspections, chemical analysis, or any other appropriate methods and to utilize any employee of the Department of Agriculture in the performance of his duties under this part. All quantities or samples of antifreeze submitted for inspection or analysis shall be taken from stocks in this state or intended for sale in this state, or the Commissioner may require the manufacturer or distributor applying for an inspection of antifreeze to supply such sample thereof for analysis. The Commissioner and his inspectors shall have free access during business hours to all places of business, buildings, vehicles, cars, and vessels used in the manufacture, transportation, sale, or storage of any antifreeze and may open any box, carton, parcel, package, or container holding or containing or supposed to contain any antifreeze and may take therefrom samples for analysis. If it appears that any provisions of this part have been violated, the Commissioner and his inspectors or representatives are authorized to issue a "stop-sale" order which shall prohibit further sale of any antifreeze being sold, exposed for sale, or held with intent to sell within this state in violation of this part until this part has been complied with or said violation has otherwise been legally disposed of. In case any "stop-sale" order shall be issued under this part, the Commissioner shall release the antifreeze so withdrawn from sale when this part has been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

(Ga. L. 1975, p. 706, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 42 Am. Jur. 2d, Inspection Laws, § 8 et seq.

10-1-205. Seizure and condemnation of noncomplying antifreeze.

Any antifreeze not in compliance with this part shall be subject to seizure upon complaint of the Commissioner of Agriculture or his inspectors or representatives to the superior court in the county in which said antifreeze is located. In the event the superior court finds said antifreeze to be in violation of this part, it may order the condemnation of said antifreeze; and the same shall be disposed of in any manner consistent with the rules and regulations of the Department of Agriculture and the laws of this state, provided that in no instance shall the disposition of the antifreeze be ordered by the court without first affording the claimant or owner of the antifreeze an opportunity to apply to the court for the release of the antifreeze or for permission to process or relabel the antifreeze so as to bring it into compliance with this part.

(Ga. L. 1975, p. 706, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 42 Am. Jur. 2d, Inspection Laws, § 19 et seq.

10-1-206. List of inspected and licensed brands; advertising references to licensing.

The Commissioner of Agriculture may publish in print or electronically or furnish upon request a list of the brands and classes or types of antifreeze inspected by the state oil chemist during the fiscal year which have been found to be in compliance with this part and for which a license or permit for sale has been issued. It shall be lawful for any manufacturer, packer, or distributor of antifreeze to show, by advertising, in any manner, that its brand of antifreeze has been inspected, analyzed, or licensed for sale by the Commissioner of Agriculture acting through the state oil chemist. It shall be unlawful for any manufacturer, packer, or distributor of antifreeze to advertise in any manner that such antifreeze so advertised for sale has been "approved" by the Commissioner of Agriculture.

(Ga. L. 1975, p. 706, § 7; Ga. L. 2010, p. 838, § 10/SB 388.)

RESEARCH REFERENCES

Am. Jur. 2d. - 42 Am. Jur. 2d, Inspection Laws, § 11.

10-1-207. Requiring statement of formula or contents; confidentiality of information furnished.

When any manufacturer, packer, or distributor applies to the Commissioner of Agriculture for a license or permit to sell antifreeze in this state, the Commissioner may require the manufacturer, packer, or distributor to furnish to the state oil chemist a statement of the formula or contents of the antifreeze, which statements shall conform to rules and regulations established by the Commissioner, provided that the statement of the formula or contents need not include the inhibitor ingredients if such inhibitor ingredients total less than 5 percent by weight of the antifreeze and if in lieu thereof the manufacturer, packer, or distributor furnishes to the state oil chemist satisfactory evidence, other than by disclosure of the inhibitor ingredients, that the antifreeze is not adulterated as defined in Code Section 10-1-201. All statements of contents, formula, or trade secrets furnished under this Code section shall be privileged and confidential and shall not be subject to subpoena nor shall the same be exhibited or disclosed before any administrative or judicial tribunal by virtue of any order or subpoena of such tribunal unless with the consent of the person, firm, association, or corporation owning or furnishing to the state oil chemist such statement of contents.

(Ga. L. 1975, p. 706, § 8.)

RESEARCH REFERENCES

ALR. - Actions Under Defend Trade Secrets Act, 18 U.S.C.A. § 1836, 30 A.L.R. Fed. 3d (2018).

10-1-208. Certified analyses as evidence.

Reserved. Repealed by Ga. L. 2011, p. 99, § 14/HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Ga. L. 1975, p. 706, § 9.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article on the 2011 repeal of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

10-1-208.1. Recycled, reclaimed, or reprocessed antifreeze; exemption; regulations; violations.

This part shall not apply to recycled, reclaimed, or reprocessed antifreeze processed in Georgia which meets standards of suitability for automobile or other vehicle engine cooling systems, which has conspicuous labeling or notice of its nature as "recycled," and which is dispensed in an approved manner in bulk or by replenishing during servicing. The department shall establish by regulation such standards, testing requirements, labeling and notice requirements, and manner of dispensing. Each sale or other dispersal of a product which fails to meet such standards, which does not have the proper labeling or on which adequate notice is not given, or which is dispensed in an unapproved manner shall constitute a separate violation of this Code section.

(Code 1981, § 10-1-208.1 , enacted by Ga. L. 1996, p. 1020, § 1.)

10-1-209. Promulgation of rules and regulations.

The Commissioner of Agriculture shall be authorized to promulgate rules and regulations to implement this part and to accomplish its purpose.

(Ga. L. 1975, p. 706, § 10.)

10-1-210. Enjoining violations.

In addition to the remedies provided in this part and notwithstanding the existence of any other remedy at law and notwithstanding the pendency of any criminal prosecution, the Commissioner of Agriculture is authorized to apply to the superior court in the appropriate county; and such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction or ex parte restraining order enjoining or restraining any person from violating or continuing to violate any of this part or for the failure or refusal to comply with this part or any rule or regulation promulgated under this part.

(Ga. L. 1975, p. 706, § 11.)

10-1-211. Penalty for violation of part or rules and regulations.

Any person who violates any provision of this part or the rules and regulations promulgated hereunder shall be guilty of a misdemeanor.

(Ga. L. 1975, p. 706, § 12.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 255. 42 Am. Jur. 2d, Inspection Laws, § 14.

C.J.S. - 2 C.J.S., Adulteration, § 14.

ARTICLE 9 GASOLINE MARKETING PRACTICES

Cross references. - Regulation of advertising by retail dealers of motor fuel, § 10-1-164 .

JUDICIAL DECISIONS

Article not void for vagueness. - Given the extreme tolerance with which a federal court must scrutinize a state law in a vagueness challenge, an attack on the imprecision of the language employed in this article cannot be sustained. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Even with the imprecise language of this article, a gasoline distributor is well apprised of the contours of the prohibited activity so as to defeat a void for vagueness challenge. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Article not preempted by federal law. - Article does not legislate in an interstate area reserved exclusively for Congress. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Article does not conflict with Robinson-Patman Act, 15 U.S.C. §§ 13-13b, 21a. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Cited in Stephens v. McClain, 129 Ga. App. 634 , 200 S.E.2d 511 (1973); Walters v. Chevron U.S.A., Inc., 154 Ga. App. 636 , 269 S.E.2d 495 (1980).

RESEARCH REFERENCES

ALR. - Right of manufacturer, producer, or wholesaler to control resale price, 7 A.L.R. 449 ; 19 A.L.R. 925 ; 32 A.L.R. 1087 ; 103 A.L.R. 1331 ; 125 A.L.R. 1335 .

Public regulation or authorization of gas filling stations, 18 A.L.R. 101 ; 29 A.L.R. 450 ; 34 A.L.R. 507 ; 42 A.L.R. 978 ; 49 A.L.R. 767 ; 55 A.L.R. 256 ; 79 A.L.R. 918 ; 96 A.L.R. 1337 .

Rights and remedies of parties in respect to lease of filling station, 126 A.L.R. 1375 .

Scope and exceptions of state deceptive trade practice and consumer protection Acts, 85 A.L.R.3d 399.

What constitutes adequate compliance with notice requirements, under § 104 of Petroleum Marketing Practices Act (15 USCS § 2804), in connection with termination or nonrenewal of gasoline station franchise relationship, 101 A.L.R. Fed. 813.

10-1-230. Short title.

This article shall be known and may be cited as the "Gasoline Marketing Practices Act."

(Ga. L. 1973, p. 438, § 1.)

10-1-231. Legislative findings.

The General Assembly finds and declares that the distribution and sales through marketing agreements of gasoline in the State of Georgia vitally affects the general economy of the state, the public interest, and public welfare and that it is necessary, therefore, in the public interest to define the relationships and responsibilities of the parties to such agreements.

(Ga. L. 1973, p. 438, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 144 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, §§ 401 et seq., 443, 444.

10-1-232. Definitions.

As used in this article, the term:

  1. "Automotive gasoline" or "gasoline" means octane rated fuels made from petroleum products for use in the propulsion of motor vehicles.
  2. "Automotive gasoline dealer" or "gasoline dealer" means any person or firm engaged primarily in the retail sale of automotive gasoline and related products and services under a marketing agreement entered into with an automotive gasoline distributor.
  3. "Automotive gasoline distributor" or "gasoline distributor" means any person or firm engaged, whether as a jobber or supplier, in the sale, consignment, or distribution of gasoline to automotive gasoline dealers pursuant to marketing agreements.

    (3.1) "Blended fuel" means a mixture composed of automotive gasoline and another liquid, other than a de minimis amount of a product such as carburetor detergent or oxidation inhibitor, that can be used as a fuel in a motor vehicle.

    (3.2) "Blender" means a person or firm which produces blended fuel outside a terminal transfer system.

    (3.3) "Fuel alcohol" means alcohol or fuel grade ethanol.

    (3.4) "Gasohol" means a blended fuel composed of gasoline and fuel grade ethanol.

    (3.5) "Jobber" means an automotive gasoline distributor which is not a supplier.

  4. "Marketing agreement" or "agreement" means a written agreement, including a franchise, and all related written agreements between an automotive gasoline distributor and an automotive gasoline dealer under which such dealer is supplied automotive gasoline for retail sale or an agreement between an automotive gasoline distributor and an automotive gasoline dealer under which the automotive gasoline dealer is granted the right to occupy premises owned, leased, or controlled by the automotive gasoline distributor for the purpose of engaging in the retail sale of gasoline of the automotive gasoline distributor.

    (4.1) "Position holder" means a person or firm which holds the inventory position in automotive gasoline in a terminal, as reflected on the records of the terminal operator. A person or firm holds the inventory position in automotive gasoline when that person or firm has a contract with the terminal operator for the use of storage facilities and terminaling services for gasoline at the terminal. The term includes a terminal operator which owns gasoline in the terminal.

    (4.2) "Rack" means a mechanism for delivering automotive gasoline from a refinery, a terminal, or a bulk plant into a transport truck, a railroad tank car, or another means of transfer that is outside the terminal transfer system.

    (4.3) "Refiner" means a person or firm which owns, operates, or controls a refinery, wherever located.

    (4.4) "Refinery" means a facility used to process crude oil, unfinished oils, natural gas liquids, or other hydrocarbons into automotive gasoline and from which automotive gasoline may be removed by pipeline or vessel or at a rack. The term does not include a facility that produces only blended fuel or gasohol.

    (4.5) "Removal" means a physical transfer other than by evaporation, loss, or destruction. A physical transfer to a transport truck or another means of conveyance outside a terminal transfer system is complete upon delivery into the means of conveyance.

  5. "Retail sale of automotive gasoline" means the sale thereof for consumption, and not for resale, at a retail outlet serving the motoring public.
  6. "Supplier" means:
    1. A position holder or a person or firm which receives automotive gasoline pursuant to a two-party exchange; or
    2. A refiner.
  7. "Terminal" means an automotive gasoline storage and distribution facility that has been assigned a terminal control number by the United States Internal Revenue Service, is supplied by pipeline or marine vessel, and from which automotive gasoline may be removed at a rack.
  8. "Terminal operator" means a person or firm which owns, operates, or otherwise controls a terminal.
  9. "Terminal transfer system" means an automotive gasoline distribution system consisting of refineries, pipelines, marine vessels, and terminals. The term has the same meaning as "bulk transfer/terminal system" under 26 C.F.R. Section 48.4081-1.
  10. "Two-party exchange" means a transaction in which automotive gasoline is transferred from one licensed supplier to another licensed supplier pursuant to an exchange agreement under which the supplier that is the position holder agrees to deliver automotive gasoline to the other supplier or the other supplier's customer at the rack of the terminal at which the delivering supplier is the position holder.

    (Ga. L. 1973, p. 438, § 3; Ga. L. 1978, p. 2249, §§ 1-3; Ga. L. 2009, p. 201, § 1/SB 30.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, "de minimis" was substituted for "de minimus" in paragraph (3.1).

10-1-233. Acts of distributor violating article.

It shall be a violation of this article for any gasoline distributor who has a marketing agreement with a gasoline dealer, directly or indirectly, through any officer, agent, or employee, to commit any of the following acts:

  1. To terminate or cancel such marketing agreement without good cause prior to the expiration date;
  2. To terminate or cancel an existing marketing agreement prior to this expiration date or to fail to enter into subsequent agreements without having first given written notice setting forth all the reasons for such action to the gasoline dealer at least 60 days in advance of such termination, cancellation, or expiration of the existing agreement; provided, however, that such notice shall not be required of a gasoline distributor acting with reasonable cause to believe the dealer is maliciously and willfully damaging the property rights of the gasoline distributor or if the dealer has voluntarily abandoned the marketing relationship or after five days' notice has failed to pay his just debts when due to the distributor;
  3. By the use of coercion, intimidation, or threats, to force or induce such gasoline dealer to deal exclusively in products manufactured, distributed, or sponsored by the gasoline distributor or to participate in promotions. Hours of operation which are set in any written agreement in effect prior to July 1, 1978, can only be changed by mutual consent. It shall also be the duty of the distributor to advise the dealer in writing prior to execution of the agreement the projected potential gallonage and the dealer shall acknowledge same in writing prior to execution of the marketing agreement that he is willing to accept same;
  4. To engage in any acts which have the purpose, intent, or effect of fixing or maintaining prices or of forcing or inducing adherence to prices at which such gasoline distributor's products are to be resold by such gasoline dealers, provided that nothing in this paragraph shall be deemed to prohibit recommendation, suggestion, urging, or discussion;
  5. To require a gasoline dealer, at the time of entering into a marketing agreement, to assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability imposed by this article;
  6. To require or prohibit any change in management of any gasoline dealer unless such requirement or prohibition of change shall be for good cause, which cause shall be stated in writing by the gasoline distributor;
  7. To impose standards of performance upon the gasoline dealer other than those in the marketing agreement;
  8. To provide any term or condition in any marketing agreement, or other agreement ancillary or collateral thereto, which term or condition directly or indirectly violates this article;
  9. After July 1, 1978, to require operation in excess of a six-day week or in excess of a 12 hour day if the dealer can prove it results in substantially lessening the profits earned in his entire operation to the extent that it is not economically feasible to continue said operation; provided, however, that this paragraph shall in no way impair the obligation of contracts made prior to July 1, 1978; and provided, further, that this paragraph shall not impair the writing of a contract for hours in excess of the hours expressed in this paragraph or impair the right to enforce the hours contained in any contract until sufficient evidence is available to a dealer to exercise the rights provided in this article; and provided, further, that this paragraph shall not be applicable to dealers or distributors who operate a food or convenience store in conjunction with the retail sale of automotive gasoline and related products.

    (Ga. L. 1973, p. 438, § 4; Ga. L. 1978, p. 2249, §§ 4, 5; Ga. L. 1983, p. 3, § 8.)

JUDICIAL DECISIONS

Paragraph (6) of O.C.G.A. § 10-1-233 is unconstitutional under the due process clause of the Georgia Constitution in that the paragraph purports to regulate an industry not affected with a public interest. O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988).

Paragraph (6) of O.C.G.A. § 10-1-233 is contrary to public policy in that the paragraph adversely impacts upon the rights of gasoline distributors with respect to the individual personal service contracts between themselves and their retailers. O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988).

Paragraphs (8) and (9) of this section are not preempted by the federal Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Cited in Gordon v. Crown Cent. Petro. Corp., 423 F. Supp. 58 (N.D. Ga. 1976).

10-1-234. Selling controlled product to another distributor for retail sale; selling to other dealers at distress prices.

It shall be an unlawful predatory and unfair business practice for an automotive gasoline distributor who controls a product supply, controls the price of that product and has the power to require the purchase of that product by another automotive gasoline distributor or an automotive gasoline dealer doing business in this state to sell said product at prevailing automotive gasoline distributor prices at any time to another automotive gasoline distributor for resale to automotive gasoline dealers with the purpose or intent that said product will be sold at retail by said automotive gasoline distributor and fails to offer its automotive gasoline dealers an opportunity to purchase an equal volume of product upon the same terms and conditions, excepting expenses for advertising, credit cards, and other expenses relative to its automotive gasoline dealers, when said automotive gasoline distributor is selling said product at distress prices to other automotive gasoline dealers in the dealer's marketing area. As used in this Code section, the term "distress prices" shall not be construed to include or embrace a price established for the purpose of meeting competition.

(Ga. L. 1978, p. 2249, § 6; Ga. L. 1984, p. 1679, § 1; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of this Code section.

Editor's notes. - Ga. L. 1984, p. 1679, § 2, not codified by the General Assembly, provided that that Act "shall not apply to or be deemed to affect any cause of action pending" on the effective date of the Act (April 6, 1984).

Law reviews. - For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986).

JUDICIAL DECISIONS

This section not void for vagueness. - Parties are sufficiently apprised of proscribed conduct under this section so as not to be deprived of due process of law by its application, so this section is not void for vagueness. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

O.C.G.A. § 10-1-234 is, while most assuredly not a model of clarity, at least amenable to some sensible construction; thus, it is constitutional because it does alert parties to character of proscribed conduct and does amount to something more than no rule at all. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

O.C.G.A. § 10-1-234 violates the due process clause of Ga. Const. 1983, Art. I, Sec. I, Para. I, in that the statute seeks to regulate a business not affected with a public interest. Batton-Jackson Oil Co. v. Reeves, 255 Ga. 480 , 340 S.E.2d 16 (1986).

Constitutional evaluation. - While the void-for-vagueness doctrine is most rigorously applied in the context of penal statutes and in the area of First Amendment rights, the United States Supreme Court has recognized that vague laws in any area suffer a constitutional infirmity; thus, O.C.G.A. § 10-1-234 may not escape scrutiny simply because the statute is a commercial regulatory statute. But, because this statute is not concerned with either the First Amendment or the definition of criminal conduct a court must be lenient in evaluating the statute's constitutionality. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Standard for evaluating constitutionality of nonpenal, commercial regulatory statutes. - Because O.C.G.A. § 10-1-234 is a nonpenal, commercial regulatory statute, the standard for evaluating the statute's constitutionality is whether the statute is so indefinite as to amount to no rule or standard at all. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Section must be substantially incomprehensible to be unconstitutional. - For O.C.G.A. § 10-1-234 to constitute a deprivation of due process, the statute must be so vague and indefinite as really to be no rule or standard at all, that is, uncertainty in the statute is not enough for the statute to be unconstitutionally vague; rather, the statute must be substantially incomprehensible. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Section does not conflict with federal Emergency Petroleum Allocation Act, as amended, 15 U.S.C. § 751 et seq. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

Section does not conflict with Sherman Act. - There presently exists no conflict with the Sherman Act, 15 U.S.C. §§ 1-7, sufficient to invalidate this section. Exxon Corp. v. Georgia Ass'n of Petro. Retailers, 484 F. Supp. 1008 (N.D. Ga. 1979), aff'd sub nom. Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430 , 70 L. Ed. 2 d 239 (1981).

10-1-234.1. Suppliers may not inhibit gasoline distributors from being blenders.

Regardless of other products offered, any supplier which, pursuant to a marketing agreement, supplies gasoline from a terminal in this state to a gasoline distributor shall offer to supply such party with gasoline that has not been blended with, but is suitable for blending with, fuel alcohol. No supplier shall prevent or inhibit a gasoline distributor in this state from being a blender or from qualifying for any federal or state tax credit due to blenders. If a supplier supplies gasoline to a gasoline distributor pursuant to this Code section which is then blended, the gasoline distributor shall indemnify and hold harmless such supplier against any losses or damages arising out of claims, costs, judgments, and expenses, including reasonable attorney's fees, or suits relating to or arising out of such blending.

(Code 1981, § 10-1-234.1 , enacted by Ga. L. 2009, p. 201, § 2/SB 30.)

10-1-235. Action by dealer against distributor for violation of article authorized; nature of relief; attorneys' fees.

  1. Any automotive gasoline dealer may bring an action against its automotive gasoline distributor for violation of this article in the superior court of the county where such distributor resides or, if the distributor is a corporation, in accordance with Title 14, to recover damages sustained by reason of any violation of this article, provided that the dealer shall show as a prerequisite to recovery under this Code section that he has:
    1. Complied with the reasonable requirements of the marketing agreement; and
    2. Has acted in good faith in carrying out the terms of the marketing agreement.
  2. The court may grant such equitable relief as is proper, including declaratory judgment and injunctive relief.
  3. Attorneys' fees shall be controlled by Code Section 13-6-11.

    (Ga. L. 1973, p. 438, § 5; Ga. L. 1978, p. 2249, § 7.)

10-1-236. Action by dealer against distributor for violation of article - Defense of termination of agreement.

Reserved. Repealed by Ga. L. 1983, p. 3, § 8, effective January 25, 1983.

Editor's notes. - This Code section was based on Ga. L. 1973, p. 438, § 7; Ga. L. 1978, p. 2249, §§ 8-10; and Ga. L. 1981, Ex. Sess., p. 8.

10-1-237. Action by dealer against distributor for violation of article; notice of termination prior to expiration; when premises must be vacated.

Upon receipt of notice to cancel or terminate an existing lease prior to expiration date, it shall be the duty of the dealer to notify the distributor within 30 days thereof of his intention to hold over and to set forth in writing to the distributor his reasons and justifications therefor and thereafter within ten days to file his complaint or application for injunction in the court of proper jurisdiction; and the judge of said court shall within 15 days conduct a hearing in said matter and thereafter within five days hand down a ruling based upon evidence presented as to the granting of a temporary injunction; and, upon the judge's failure to grant the injunction, the dealer shall vacate the premises all according to the lease agreement.

(Ga. L. 1973, p. 438, § 8.)

10-1-238. Action by distributor against dealer for breach of agreement; attorneys' fees.

Any gasoline distributor may bring action against the dealer for failing to fulfill the marketing agreement. Attorneys' fees shall be controlled by Code Section 13-6-11.

(Ga. L. 1973, p. 438, § 11; Ga. L. 1978, p. 2249, § 12; Ga. L. 1993, p. 91, § 10.)

10-1-239. Limitation of actions.

No action shall be brought under Code Section 10-1-235 or Code Section 10-1-238 unless commenced within two years after the cause of action shall have accrued.

(Ga. L. 1973, p. 438, § 12.)

RESEARCH REFERENCES

ALR. - Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

10-1-240. Marketing agreements subject to article.

This article shall apply to all marketing agreements as defined in paragraph (4) of Code Section 10-1-232 that are granted, renewed, or amended to extend the lease period on or after July 1, 2009.

(Ga. L. 1973, p. 438, §§ 6, 9; Ga. L. 1978, p. 2249, § 11; Ga. L. 2009, p. 201, § 3/SB 30.)

10-1-241. Sale of real property not affected.

This article is not intended to alter or change the present law or regulations pertaining to the sale or transfer of title to real property, and the owner may at any time enter into a contract for the bona fide sale of his property.

(Ga. L. 1973, p. 438, § 10.)

ARTICLE 9A BELOW COST SALES

Editor's notes. - Ga. L. 1985, p. 458, § 2, not codified by the General Assembly, provides: "All laws and parts of laws in conflict with this Act are repealed; provided, however, nothing contained in this Act shall be construed to repeal any part of Article 9 of Chapter 1 of Title 10, it being the intent of the General Assembly that this Act shall be in addition to said Code sections."

10-1-250. Short title.

This article shall be known and may be cited as the "Below Cost Sales Act."

(Code 1981, § 10-1-250 , enacted by Ga. L. 1985, p. 458, § 1; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "This article shall be known and may be cited" for "This article may be cited" at the beginning of this Code section.

10-1-251. Definitions.

As used in this article, the term:

  1. "Person" means an individual, partnership, association, corporation, joint-stock company, or business trust.
  2. "Product" means octane or cetane rated fuels for use in the propulsion of motor vehicles.
  3. "Purchase" includes any acceptance or receipt of product by a person from a related entity.
  4. "Related entity" of a person means any person who, directly or through an affiliated person, holds more than 50 percent of the assets or voting securities of such person.
  5. "Sale" or "to sell" includes any transfer or delivery of product to a person from a related entity. (Code 1981, § 10-1-251 , enacted by Ga. L. 1985, p. 458, § 1.)

10-1-252. Reasonable transfer price.

For the purposes of this article, a transfer price from a related entity to a person is reasonable (1) if it is the same or greater than the price that such related entity contemporaneously charges unrelated persons at the same level of distribution and in the same geographic area as the person for a similar volume of product of like grade and quality or (2) if it is arrived at by including all uniform costs imposed upon purchasers in the operation of the retail business as determined pursuant to generally accepted accounting principles.

(Code 1981, § 10-1-252 , enacted by Ga. L. 1985, p. 458, § 1.)

10-1-253. Computation of cost.

For the purposes of this article, "cost" shall be computed as follows:

    1. When product is purchased by a person from an independent entity, the lowest invoice cost to the person from the independent entity for product of like grade and quality within 15 days prior to the date of resale of the product by the person; or
    2. When product is purchased by a person from a related entity, the lowest transfer price charged to the person for product of like grade and quality within 15 days prior to the date of resale of the product by the person, provided that the transfer price is reasonable; or
    3. If neither subparagraph (A) nor (B) of this paragraph applies, the lowest posted or published wholesale price of all sellers of product of like grade and quality normally serving the geographic area in which the person is located during the 15 days prior to the date of resale of the product by the person; plus
  1. A reasonable cost of doing business as determined pursuant to generally accepted accounting principles; plus
  2. Freight charges and any credit against federal or state motor fuel or sales tax not already included in the invoice cost, transfer price, or lowest posted or published wholesale price of the product; less
  3. All trade discounts, allowances, or rebates actually granted to the person on the product; provided, however, such trade discounts, allowances, or rebates are received on proportionally equal terms by all other customers competing in the distribution of such products. (Code 1981, § 10-1-253 , enacted by Ga. L. 1985, p. 458, § 1.)

10-1-254. Prohibited acts in sale of octane or cetane fuels; burden of rebutting prima-facie case.

  1. It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, either directly or indirectly:
    1. To sell product below cost; or
    2. To discriminate in price between different purchasers of product of like grade and quality, where either or any of the purchases involved in such discrimination is in commerce in this state,

      and where the effect of such below-cost sale or discrimination may be substantially to lessen competition or tend to create a monopoly, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such below-cost sale or discrimination, or with customers of either of them. Nothing contained in this Code section shall prevent differentials which make only a due allowance for differences in the cost of refining, sale, or delivery resulting from the differing methods or quantities in which such product is sold or delivered to such purchasers. Nothing contained in this Code section shall prevent persons from selecting their own customers in bona fide transactions and not in restraint of trade. Nothing contained in this Code section shall prevent price changes, from time to time, which are in response to changing conditions affecting the market for or the marketability of product of the grade and quality concerned, such as, but not limited to, imperfect or damaged product, obsolescence of product, distress sales under court process, or sales in good faith in discontinuance of business at a particular location or with respect to the product itself.

  2. Upon proof being made in any action to enforce this article that there has been a below-cost sale or discrimination, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this article. Nothing contained in this article shall prevent a seller from rebutting the prima-facie case thus made by showing that such seller's below-cost sale or lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor.
  3. It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, to pay, grant, receive, or accept any thing of value as a commission or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of product, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf of or is subject to the direct or indirect control of any party to such transaction other than the person by whom such compensation is granted or paid.
  4. It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state to pay or contract for the payment of any thing of value to or for the benefit of a customer of such person in the course of such sales as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of product refined, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such product.
  5. It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, to discriminate in favor of one purchaser against another purchaser or purchasers of product bought for resale, with or without processing, by contracting to furnish, furnishing, or contributing to the furnishing of any services or facilities connected with the processing, handling, sale, or offering for sale of such product so purchased upon terms not accorded to all purchasers on proportionally equal terms.
  6. It shall be unlawful for any person engaged in the sale of octane or cetane fuels in this state, in the course of such sales, knowingly to induce or receive a below-cost or discriminatory price which is prohibited by this article. (Code 1981, § 10-1-254 , enacted by Ga. L. 1985, p. 458, § 1.)

JUDICIAL DECISIONS

Regulation of prices pursuant to O.C.G.A. § 10-1-254 is unconstitutional, inasmuch as the statute engages in price-fixing and the gasoline industry is not affected with a public interest. Strickland v. Ports Petroleum Co., 256 Ga. 669 , 353 S.E.2d 17 (1987).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of state statutory provisions prohibiting sale of gasoline below cost, 26 A.L.R.6th 249.

Meeting competition defense under § 2(b) of Clayton Act, as amended by Robinson-Patman Act (15 U.S.C.A. § 13(b)), 164 A.L.R. Fed. 633.

10-1-255. Civil actions; effect of written tender of settlement; limitation of actions.

  1. Any person who sustains or is threatened with competitive injury by reason of a violation of this article may maintain an action in any superior court of this state having jurisdiction over the defendant to enjoin such violation. A successful petitioner shall be entitled to recover reasonable attorneys' fees and costs of litigation.
  2. In addition to the action provided in subsection (a) of this Code section, any person who sustains a competitive injury by reason of a violation of this article may maintain an action in any court of this state having jurisdiction over the defendant to recover the actual, or special, damages sustained thereby including, but not limited to, reasonable attorneys' fees and costs of litigation. A successful claimant under this subsection shall be awarded punitive damages not to exceed $1,000.00 for each day on which the defendant continued to commit the violation of this article resulting in competitive injury after having received from the plaintiff a written notice that the defendant was engaging in such violation. The maximum amount of such punitive damages which may be awarded to any one plaintiff from any one defendant, however, shall be $200,000.00.
  3. A claim for damages for violation of this article may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law. It is the intention of the General Assembly that this prohibition against class actions is an integral substantive provision of this article, and that its unenforceability for any reason in any action shall preclude the recovery of damages in such action.
  4. At any time subsequent to the filing of an action for damages under this article, and prior to any award of such damages, the defendant may make a written tender of settlement to the complaining person. If the complaining person is awarded no damages or less damages than the amount of the written tender of settlement, the complaining person shall under no circumstances be entitled to recover any costs of the litigation, including attorneys' fees, that were incurred after the date of the written tender of settlement. All written tenders of settlement that are made pursuant to this subsection shall be presumed to be offered without prejudice in compromise of a disputed matter.
  5. Any action brought under this article must be brought within two years of the date of the alleged violation. All other actions are forever barred. (Code 1981, § 10-1-255 , enacted by Ga. L. 1985, p. 458, § 1; Ga. L. 1986, p. 326, § 1; Ga. L. 1994, p. 97, § 10.)

10-1-256. Declaration of legislative intent in construing Code Section 10-1-254.

It is the intent of the General Assembly that, in construing Code Section 10-1-254, due consideration and great weight be given to the interpretation of the federal courts relating to Section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. Sections 13(a)-(f).

(Code 1981, § 10-1-256 , enacted by Ga. L. 1985, p. 458, § 1.)

RESEARCH REFERENCES

ALR. - Meeting competition defense under § 2(b) of Clayton Act, as amended by Robinson-Patman Act (15 U.S.C.A. § 13(b)), 164 A.L.R. Fed. 633.

ARTICLE 10 SALE AND STORAGE OF LIQUEFIED PETROLEUM GAS

Administrative Rules and Regulations. - Liquefied Petroleum Gases, Official Compilation of the Rules and Regulations of the State of Georgia, Office of Commissioner of Insurance, Safety Fire Commissioner and Industrial Loan Commissioner, Safety Fire Commissioner, Chapter 120-3-16.

JUDICIAL DECISIONS

Provisions enacted for public benefit. - Ga. L. 1949, p. 1128, § 1 and Ga. L. 1949, p. 1057, § 1 et seq. were passed for the public benefit and are statutes of public policy. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

O.C.G.A. Art. 10, Ch. 1, T. 10 and O.C.G.A. § 25-2-1 et seq. construed together. - To give effect to the intent of the General Assembly, Ga. L. 1949, p. 1128, § 1 and Ga. L. 1949, p. 1057, § 1 et seq. should be construed together, as both sought to remedy an evil which then existed, and the statutes prescribed a remedy for the public good. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

Statute authorizing waiver of benefit of law inapplicable to safety regulations. - The exception in former Code 1933, § 102-106 that "a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest" had no application when the contract attempted to release a party from liability for acts violating liquefied gas safety regulations. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

Distributor not released from liability for negligence. - A liquefied petroleum distributor is without authority of law to release the distributor from liability by a contract or otherwise because of damage resulting from the negligence of such distributor. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

Gas company is not insurer of safety of customers and their agents and invitees. Womack v. Central Ga. Gas Co., 85 Ga. App. 799 , 70 S.E.2d 398 (1952).

Gas company is liable only for acts of negligence. Womack v. Central Ga. Gas Co., 85 Ga. App. 799 , 70 S.E.2d 398 (1952).

Cited in Liberty Homes, Inc. v. Stratton, 90 Ga. App. 675 , 83 S.E.2d 818 (1954).

RESEARCH REFERENCES

ALR. - Rights, under oil and gas lease, deed, or sales contract, to "distillate," "condensate," or "natural gasoline,", 38 A.L.R.3d 983.

Liability of one selling or distributing liquid or bottled fuel gas, for personal injury, death, or property damage, 41 A.L.R.3d 782.

Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209.

10-1-260. Short title.

This article shall be known and may be cited as the "Liquefied Petroleum Safety Act of Georgia."

(Ga. L. 1949, p. 1128, § 1; Ga. L. 1992, p. 2134, § 2; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "This article shall be known and may be cited" for "This article may be cited and referred to" at the beginning of this Code section.

10-1-261. Legislative finding.

The General Assembly of Georgia finds, determines, and declares that this article is necessary for the immediate preservation of the public peace, health, and safety.

(Ga. L. 1949, p. 1128, § 10; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Cited in Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

10-1-262. "Liquefied petroleum gas" defined.

As used in this article, the term "liquefied petroleum gas" means any material which is composed predominantly of any of the following hydrocarbons or mixtures of the same: propane, propylene, butanes (normal butane or isobutane), and butylenes.

(Ga. L. 1949, p. 1128, § 2; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Cited in Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Energy and Power Sources, § 18 et seq.

C.J.S. - 38A C.J.S., Gas, § 1 et seq.

10-1-263. State fire marshal to enforce article.

The state fire marshal, ex officio, shall be designated as the officer charged with the duty and authority of enforcing this article.

(Ga. L. 1949, p. 1128, § 3; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2.)

10-1-264. Assistants and employees of state fire marshal.

The state fire marshal is authorized to appoint and employ such assistants and employees, fix their salaries, and assign and delegate such duties and responsibilities as he or she may deem necessary to carry out this article in an efficient manner.

(Ga. L. 1949, p. 1128, § 6; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "he or she" for "he" near the middle of this Code section.

10-1-265. Rules and regulations setting standards for liquefied petroleum gas equipment.

  1. The state fire marshal shall make, promulgate, adopt, and enforce rules and regulations setting forth minimum general standards covering the design, construction, location, installation, and operation of equipment for storing, handling, transporting by tank truck or tank trailer, and utilizing liquefied petroleum gases and specifying the odorization of said gases and the degree thereof. Said rules and regulations shall be such as are reasonably necessary for the protection of the health, welfare, and safety of the public and persons using such materials and shall be based upon reasonable substantial conformity with the generally accepted standards of safety concerning the same subject matter.
  2. Rules and regulations promulgated by the state fire marshal based upon reasonable substantial conformity with the published standards of the National Board of Fire Underwriters for the design, installation, and construction of containers and pertinent equipment for the storage and handling of liquefied petroleum gases as recommended by the National Fire Protection Association shall be deemed to be in substantial conformity with the generally accepted standards of safety concerning the subject matter.

    (Ga. L. 1949, p. 1128, § 4; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Violation of rules is negligence per se. - Violation of valid rules and regulations constitutes negligence per se, whether alleged as negligence per se or merely as negligence, and although a violation of such regulations could not be made the basis of criminal prosecution. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

Filling tank contrary to regulations. - Petitions stated a cause of action for alleged negligence of defendant, as a distributor of butane gas, in filling a gas tank beyond the capacity fixed by the rules and regulations of the state fire marshal promulgated by authority of this article, and in filling the tank at all when the tank was in an unsafe condition, namely, within less than ten feet of the residence, contrary to the rules and regulations of the fire marshal. Harvey v. Zell, 87 Ga. App. 280 , 73 S.E.2d 605 (1952).

Installation of gas appliances by one who is not an employee of the gas company and without the company's permission, in violation of regulations issued under this article, is not negligence unless done in an improper manner. Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

Cited in Douglas v. Smith, 578 F.2d 1169 (5th Cir. 1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, §§ 401, 403 et seq., 443, 444.

10-1-266. Issuance of licenses or permits; annual fees.

The state fire marshal is authorized and empowered to issue a license or permit to such person, firm, or corporation qualifying under the terms of this article and such rules and regulations as may be adopted by the state fire marshal. For such license or permit issued on or after July 1, 1990, a one-time fee of not less than $100.00 nor more than $500.00 shall be charged on a graduated capacity scale for each installation of such person, firm, or corporation doing business in Georgia. All fees, assessments, and collections made by the state fire marshal shall be paid into the general fund of the state treasury. The license or permit of any licensee or permittee who had paid an annual license or permit fee on or after January 1, 1990, but prior to July 1, 1990, shall be valid for the remainder of the period of time covered by such payment and, upon the expiration of such period of time, the licensee or permittee shall become subject to the one-time fee requirement provided in this Code section.

(Ga. L. 1949, p. 1128, § 7; Ga. L. 1955, p. 221, § 2; Ga. L. 1990, p. 647, § 1; Ga. L. 1992, p. 2134, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, a comma was deleted following "charged" in the second sentence and "Code section" was substituted for "subsection" at the end of the last sentence.

JUDICIAL DECISIONS

Authority of Safety Fire Commissioner. - In the absence of the state fire marshal, the Safety Fire Commissioner was authorized to act on an application for a license to maintain a liquefied petroleum gas bulk distribution facility. Safety Fire Comm'r v. U.S.A. Gas, Inc., 229 Ga. App. 807 , 494 S.E.2d 706 (1997).

Judicial intervention. - Even if the procedures of the Safety Fire Commissioner in acting on an application for a license to maintain a liquefied petroleum gas bulk distribution facility were flawed, the superior court could not substitute the court's own judgment for that of the Commissioner. Safety Fire Comm'r v. U.S.A. Gas, Inc., 229 Ga. App. 807 , 494 S.E.2d 706 (1997).

OPINIONS OF THE ATTORNEY GENERAL

State fire marshal has no authority to require municipality to obtain license for the municipality's liquefied petroleum plant as may be required of others under the provisions of this section. 1970 Op. Att'y Gen. No. 70-146.

Invalid as conditioned air contractor license. - Persons licensed pursuant to O.C.G.A. § 10-1-266 are not exempt from the requirement of holder of license as a conditioned air contractor pursuant to the requirements of the State Construction Industry Licensing Board, Division of Conditioned Air Contractors, O.C.G.A. § 43-14-1 et seq. 1994 Op. Att'y Gen. No. 94-2.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 58 C.J.S., Mines and Minerals, §§ 443, 444.

10-1-267. Insurance or bond requirements for license or permit holders.

The state fire marshal is authorized and empowered as a prerequisite to a license or permit to require the applicant for such license or permit to furnish insurance, surety bond, or a personal bond with security in such amounts and terms as the state fire marshal may deem advisable and expedient for the protection of the general public and to indemnify for losses and damages which proximately result from any act of negligence of the principal, his agents, or employees while he or they may be engaged in the performance of duties with reference to the liquefied petroleum business. The state fire marshal is also authorized to adopt and enforce reasonable rules and regulations governing such insurance and bonds. Such regulations shall be adopted by the state fire marshal only after a public hearing thereon.

(Ga. L. 1949, p. 1128, § 4; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Cited in Womack v. Central Ga. Gas Co., 85 Ga. App. 799 , 70 S.E.2d 398 (1952); Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, §§ 145, 159 et seq.

C.J.S. - 38A C.J.S., Gas, §§ 5, 6, 17 et seq. 58 C.J.S., Mines and Minerals, §§ 401, 403 et seq., 443, 444.

10-1-268. Minimum storage facilities required.

  1. Every entity licensed to sell or distribute liquefied petroleum gas in this state shall have located within the State of Georgia storage capacity for a minimum of 30,000 water gallons of liquefied petroleum gas, except that entities initially licensed prior to July 1, 1990, may continue to operate with the previously approved 18,000 gallons minimum storage capacity. If the 30,000 gallons (water capacity) storage consists of more than one container, then no storage container used to meet this requirement shall be of a size less than 6,000 gallons (water capacity).
  2. The storage capacity required by subsection (a) of this Code section shall be within close proximity to the area serviced.
  3. The state fire marshal, in his discretion and in accordance with such rules and regulations as have been or may be duly promulgated and adopted under this article, may waive the minimum bulk storage facility requirement of subsection (a) of this Code section.
  4. If the storage capacity required by subsection (a) of this Code section is leased or rented, then such storage capacity must be dedicated to the exclusive use of the lessee and must include separate piping and loading/unloading facilities.

    (Ga. L. 1955, p. 221, § 1; Ga. L. 1960, p. 143, § 1; Ga. L. 1990, p. 1434, § 1; Ga. L. 1992, p. 2134, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gas and Oil, § 158.

C.J.S. - 58 C.J.S., Mines and Minerals, § 401 et seq.

ALR. - Gasoline or other fuel storage tanks as nuisance, 50 A.L.R.3d 209.

10-1-269. Suspension or revocation of license or imposition of penalty by state fire marshal.

The state fire marshal, upon ten days' written notice in the form of a show cause order to the licensee stating his contemplated action and in general the grounds therefor and after giving the licensee a reasonable opportunity to be heard, subject to the right to review provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," may, by order in writing, suspend or revoke any license issued under this article or, in lieu thereof, may assess a penalty against said licensee in an amount not to exceed $1,000.00, if the state fire marshal shall find:

  1. That the licensee has failed to pay the license fee or any fee required under this article or any penalty imposed under the article; or
  2. That the licensee knowingly has violated any of the provisions of this article or any of the rules and regulations promulgated under this article; provided, however, that any such suspension or revocation or imposition of penalty shall not become final, pending and subject to the right of review provided in Chapter 13 of Title 50, but the court shall have and is granted power to enter such order as justice shall require pending hearing on the appeal; and provided, further, the court upon the appeal may tax the cost, including the cost of the hearing before the state fire marshal, against the losing party.

    (Ga. L. 1960, p. 143, § 2; Ga. L. 1990, p. 647, § 2; Ga. L. 1992, p. 2134, § 2.)

10-1-270. Conflicting local ordinances or regulations prohibited.

No municipality or other political subdivision of this state shall adopt or enforce any ordinance, rule, or regulation in conflict with this article or with the rules and regulations adopted and promulgated by the state fire marshal under the terms and authority of this article.

(Ga. L. 1949, p. 1128, § 9; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Cited in Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

10-1-271. Reciprocal agreements with other states.

The state fire marshal is authorized to enter into reciprocal agreements with another state to effectuate the purposes of this article.

(Ga. L. 1955, p. 221, § 3; Ga. L. 1992, p. 2134, § 2.)

10-1-272. Penalty for violating article or rules and regulations.

Any person, firm, association, or corporation violating this article or any of the rules and regulations of the state fire marshal made under this article shall be guilty of a misdemeanor.

(Ga. L. 1949, p. 1128, § 8; Ga. L. 1955, p. 221, § 4; Ga. L. 1992, p. 2134, § 2.)

JUDICIAL DECISIONS

Cited in Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 (1954).

ARTICLE 11 BIDDING BY MOTION PICTURE EXHIBITORS

10-1-290. Short title.

This article shall be known as the "Georgia Motion Picture Fair Competition Act."

(Ga. L. 1979, p. 427, § 2.)

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. Art. 11, Ch. 1, T. 10 is a valid exercise of a state's regulatory power and violates neither the guarantee of free speech or due process contained in the Georgia Constitution. Paramount Pictures Corp. v. Busbee, 250 Ga. 252 , 297 S.E.2d 250 (1982).

10-1-291. Legislative intent.

The intent of this article is to establish fair and open procedures for the bidding and negotiation for the right to exhibit motion pictures within the state in order to prevent unfair and deceptive acts or practices and unreasonable restraints of trade in the business of motion picture distribution within the state, to promote fair and effective competition in that business, and to ensure that exhibitors have the opportunity to view a motion picture and know its contents before committing themselves to exhibiting it in their municipalities or towns.

(Ga. L. 1979, p. 427, § 1.)

JUDICIAL DECISIONS

Cited in Paramount Pictures Corp. v. Busbee, 250 Ga. 252 , 297 S.E.2d 250 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Entertainment and Sports Law, § 30 et seq.

C.J.S. - 15 C.J.S., Commerce, § 115. 30A C.J.S., Entertainment and Amusement; Sports, § 11 et seq.

10-1-292. Definitions.

As used in this article, the term:

  1. "Bid" means a written offer or proposal by an exhibitor to a distributor in response to an invitation to bid for the right to exhibit a motion picture, stating the terms under which the exhibitor will agree to exhibit a motion picture.
  2. "Blind bidding" means the bidding for, negotiating for, or offering or agreeing to terms for the licensing or exhibition of a motion picture at any time before the motion picture has either been trade screened within the state or before the motion picture, at the option of the distributor, otherwise has been made available for viewing within the state by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.
  3. "Distributor" means any person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sale, or licensing.
  4. "Exhibit" or "exhibition" means showing a motion picture to the public for a charge.
  5. "Exhibitor" means any person engaged in the business of operating one or more theaters.
  6. "Invitation to bid" means a written or oral solicitation or invitation by a distributor to one or more exhibitors to bid for the right to exhibit a motion picture.
  7. "License agreement" means any contract, agreement, understanding, or condition between a distributor and an exhibitor relating to the licensing or exhibition of a motion picture by the exhibitor.
  8. "Person" means one or more individuals, partnerships, associations, societies, trusts, organizations, or corporations.
  9. "Run" means the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A "first run" is the first exhibition of a picture in the designated area; a "second run" is the second exhibition; and "subsequent runs" are subsequent exhibitions after the second run. "Exclusive run" is any run limited to a single theater in a defined geographic area, and a "nonexclusive run" is any run in more than one theater in a defined geographic area.
  10. "Theater" means any establishment in which motion pictures are exhibited to the public regularly for a charge.
  11. "Trade screening" means the showing of a motion picture by a distributor at the location of the film exchange that distributes his picture in Georgia, which is open to any exhibitor from whom the distributor intends to solicit bids or with whom the distributor intends to negotiate for the right to exhibit the motion picture.

    (Ga. L. 1979, p. 427, § 3.)

JUDICIAL DECISIONS

For discussion of history of "blind bidding" motion pictures, see Paramount Pictures Corp. v. Busbee, 250 Ga. 252 , 297 S.E.2d 250 (1982).

10-1-293. Blind bidding prohibited; trade screening required; notice of screening; waivers void.

  1. Blind bidding is prohibited within the state. No bids shall be returnable, no negotiations for the exhibition or licensing of a motion picture shall take place, and no license agreement or any of its terms shall be agreed to, for the exhibition of any motion picture before the motion picture has either been trade screened or before the motion picture, at the option of the distributor, otherwise has been made available for viewing within the state by all exhibitors from whom the distributor is soliciting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.
  2. A distributor shall provide reasonable and uniform notice of the trade screening of any motion picture to those exhibitors within the state from whom he intends to solicit bids or with whom he intends to negotiate for the right to exhibit that motion picture.
  3. Any purported waiver of the prohibition against blind bidding in this article shall be void and unenforceable.

    (Ga. L. 1979, p. 427, § 4.)

JUDICIAL DECISIONS

Cited in Paramount Pictures Corp. v. Busbee, 250 Ga. 252 , 297 S.E.2d 250 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Entertainment and Sports Law, § 30 et seq.

C.J.S. - 15 C.J.S., Commerce, § 115. 30A C.J.S., Entertainment and Amusement; Sports, § 11 et seq.

10-1-294. Enforcement by civil action; damages; attorneys' fees; injunctions.

In any civil action for damages against a person for violation of this article, the court may award damages to the prevailing party and reasonable attorneys' fees. This article may be enforced by injunction or any other available equitable or legal remedy.

(Ga. L. 1979, p. 427, § 5.)

ARTICLE 12 ORGANIZED RETAIL CRIME PREVENTION

Effective date. - This article became effective July 1, 2021.

Editor's notes. - Ga. L. 2021, p. 273, § 1-1/HB 327, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Organized Retail Crime Prevention Act."'

10-1-310. Definitions; record keeping; offenses; cooperation with law enforcement.

  1. As used in this article, the term:
    1. "Corporate authorized reseller" means any person or entity authorized by the corporate issuer or a corporate issuer agent to sell the stored value cards of a corporate issuer.
    2. "Corporate issuer" means a company that issues or contracts with an affiliate or third party to issue stored value cards that may be used by the cardholder to purchase goods or services at the retail locations of the corporate issuer or its affiliates or online from the corporate issuer or its affiliates.
    3. "Corporate issuer agent" means a third party authorized by the corporate issuer to facilitate the sale of its stored value cards by corporate authorized resellers.
    4. "Stored value card" means any "gift certificate" or "store gift card," as such terms are defined in subparagraph (b)(33)(B) of Code Section 10-1-393, issued with or without a fee for the use of the cardholder to obtain money, goods, services, or anything else of value.  The term shall not include a "general use gift card" as such term is defined in subparagraph (b)(33)(B) of Code Section 10-1-393, demand deposit account, share draft account, savings account, prepaid debit card, or any card sold by a financial institution or access device associated therewith.
    5. "Third party card" means a stored value card for which the merchant buying or selling the card is neither the corporate issuer, a corporate issuer agent, nor a corporate authorized reseller.
    6. "Third party card dealer" means a merchant in the business of buying and selling third party cards.
  2. When a third party card dealer makes a sale or purchase of a stored value card, including any transaction that occurs in this state, such third party card dealer shall record the information provided for in subsection (c) of this Code section and maintain a copy of such record for at least three years.
  3. Third party card dealers shall maintain a permanent record in which shall be entered in legible English at the time of each purchase of a third party card:
    1. The date of the transaction;
    2. The name of the person conducting the transaction;
    3. The name, age, and address of the seller and the distinctive number from the customer's driver's license or other similar identification card;
    4. An identification of the purchased stored value card, including the retailer for which the stored value card is intended and the stored value card number;
    5. The amount of stored value on the stored value card;
    6. The price paid; and
    7. The signature of the customer.
  4. Entries shall appear in ink or be logged into a secure data base, software system, or other technology platform and shall be in chronological order.  No obliterations, alterations, or erasures may be made.  If handwritten corrections are made, such corrections shall be made by drawing a line of ink through the entry without destroying its legibility.  The permanent record shall be open to the inspection of any duly authorized law enforcement officer during the ordinary hours of business or at any reasonable time.
  5. Any third party card dealer and any clerk, agent, or employee of such third party card dealer who knowingly:
    1. Fails to make an entry of any material matter in his or her permanent record;
    2. Makes any false entry therein;
    3. Falsifies, obliterates, destroys, or removes from his or her place of business such permanent record;
    4. Refuses to allow any duly authorized law enforcement officer who is certified by the Georgia Peace Officer Standards and Training Council, or who is a federal officer, to inspect his or her permanent record or any stored value cards in his or her possession during the ordinary hours of business or at any reasonable time; or
    5. Fails to maintain a record of each stored value card transaction for at least three years

      shall be guilty of a misdemeanor.

  6. Upon filing an official report to a law enforcement agency of competent jurisdiction by any person alleging to be a victim of theft of one or more stored value cards with an aggregate value exceeding $500.00, such law enforcement agency may request that the issuer or its agents preserve and provide to law enforcement all relevant evidence reasonably foreseeable to assist in future criminal actions in accordance with the laws of evidence in criminal proceedings. (Code 1981, § 10-1-310 , enacted by Ga. L. 2021, p. 273, § 2-1/HB 327.)

Cross references. - Offense of organized retail theft, § 16-8-14.2 .

Editor's notes. - Former Article 12, consisting of Code Sections 10-1-310 and 10-1-311, relating to ticket scalping, was based on Ga. L. 1966, p. 207, §§ 1, 3; Ga. L. 1970, p. 172, §§ 1, 2; Ga. L. 1973, p. 96, § 1; Ga. L. 1983, p. 1468, § 1; Ga. L. 1984, p. 22, § 10; Ga. L. 1988, p. 324, § 1; Ga. L. 1994, p. 1368, § 1, and was repealed by Ga. L. 2001, p. 752, § 1, effective July 1, 2001.

ARTICLE 13 BOOK, PERIODICAL, OR NEWSPAPER TIE-IN SALES

Cross references. - Contracts contravening public policy, § 13-8-2 .

10-1-330. Refusal to sell books, periodicals, or magazines to dealers refusing others not ordered.

It shall be unlawful for any distributor of any book, magazine, periodical, or newspaper to refuse to sell to any dealer for his subsequent sale at retail any book, magazine, periodical, or newspaper if the distributor predicates his refusal to sell the publications desired solely upon the dealer's refusal to purchase from the distributor other books, magazines, periodicals, or newspapers not originally requested by the dealer.

(Ga. L. 1968, p. 998, § 1.)

10-1-331. Penalty.

Any person, firm, or corporation violating this article shall be guilty of a misdemeanor.

(Ga. L. 1968, p. 998, § 2.)

ARTICLE 14 SECONDARY METALS RECYCLERS

Cross references. - Regulation of business of junk dealers generally, T. 43, C. 22.

Dealers in precious metals and gems, T. 43, C. 37.

Penalty for theft of ferrous metals or regulated metal property, § 16-8-12 .

Editor's notes. - Ga. L. 1992, p. 2452, § 1, effective April 20, 1992, repealed the Code sections formerly codified as this article and enacted the current article. The former article consisted of Code Sections 10-1-350 and 10-1-351 and was based on Ga. L. 1967, p. 603, §§ 1-3; Ga. L. 1970, p. 693, § 1; and Ga. L. 1981, Ex. Sess., p. 8.

10-1-350. Definitions.

As used in this article, the term:

  1. "Aluminum property" means aluminum forms designed to shape concrete.
  2. "Burial object" means any product manufactured for or used for identifying or permanently decorating a grave site, including, without limitation, monuments, markers, benches, and vases and any base or foundation on which they rest or are mounted.
  3. "Business license" means a business license, an occupational tax certificate, and other document required by a county or municipal corporation and issued by the appropriate agency of such county or municipal corporation to engage in a profession or business.
  4. "Coil" means any copper, aluminum, or aluminum-copper condensing coil or evaporation coil including its tubing or rods. The term shall not include coil from a window air-conditioning system, if contained within the system itself, or coil from an automobile condenser.
  5. "Copper property" means any copper wire, copper tubing, copper pipe, or any item composed completely of copper.
  6. "Deliverer" means any individual who takes or transports the regulated metal property to the secondary metals recycler.
  7. "Ferrous metals" means any metals containing significant quantities of iron or steel.
  8. "Law enforcement officer" means any duly constituted peace officer of the State of Georgia or of any county, municipality, or political subdivision thereof.
  9. "Nonferrous metals" means stainless steel beer kegs and metals not containing significant quantities of iron or steel, including, without limitation, copper, brass, aluminum, bronze, lead, zinc, nickel, and alloys thereof.
  10. "Person" means an individual, partnership, corporation, joint venture, trust, association, or any other legal entity.
  11. "Personal identification card" means a current and unexpired driver's license or identification card issued by the Department of Driver Services or a similar card issued by another state, a military identification card, or a current work authorization issued by the federal government, which shall contain the individual's name, address, and photograph.
  12. "Purchase transaction" means a transaction in which the secondary metals recycler gives consideration in exchange for regulated metal property.
  13. "Regulated metal property" means any item composed primarily of any ferrous metals or nonferrous metals and includes aluminum property, copper property, and catalytic converters but shall not include aluminum beverage containers, used beverage containers, or similar beverage containers.
  14. "Secondary metals recycler" means any person who is engaged, from a fixed location or otherwise, in the business in this state of paying compensation for regulated metal property that has served its original economic purpose, whether or not engaged in the business of performing the manufacturing process by which regulated metal property is converted into raw material products consisting of prepared grades and having an existing or potential economic value.
  15. "Seller" means the rightful owner of the regulated metal property or the individual authorized by the rightful owner of the regulated metal property to conduct the purchase transaction. (Code 1981, § 10-1-350 , enacted by Ga. L. 1992, p. 2452, § 1; Ga. L. 2002, p. 415, § 10; Ga. L. 2005, p. 334, § 4-1/HB 501; Ga. L. 2007, p. 650, § 1/SB 203; Ga. L. 2009, p. 731, § 1/SB 82; Ga. L. 2012, p. 112, § 1-1/HB 872; Ga. L. 2015, p. 588, § 1/HB 461.)

The 2015 amendment, effective July 1, 2015, added paragraph (3) and redesignated former paragraphs (3) through (14) as paragraphs (4) through (15), respectively; and deleted "batteries," following "but shall not include" in paragraph (13).

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-351. Verifiable documentation required.

  1. No secondary metals recycler shall purchase any coil unless it is purchased from:
    1. A contractor licensed pursuant to Chapter 14 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
    2. A seller with verifiable documentation, such as a receipt or work order, indicating that such coil is the result of a replacement of condenser coils or a heating or air-conditioning system performed by a contractor licensed pursuant to Chapter 14 of Title 43; or
    3. A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such coil was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
  2. No secondary metals recycler shall purchase any copper wire which appears to have been exposed to heat, charred, or burned in an attempt to remove insulation surrounding it unless it is purchased from:
    1. A contractor licensed pursuant to Chapter 14 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
    2. A seller with a copy of a police report showing that such seller's real property was involved in a fire; or
    3. A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such copper wire was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
  3. No secondary metals recycler shall purchase a catalytic converter unless such catalytic converter is:
    1. Attached to a vehicle; or
    2. Purchased from:
      1. A used motor vehicle dealer or used motor vehicle parts dealer licensed pursuant to Chapter 47 of Title 43 or by another state that provides a copy of such valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
      2. A new motor vehicle dealer that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
      3. A motor vehicle repairer that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
      4. A manufacturer or distributor of catalytic converters that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied business license is on file with the secondary metals recycler;
      5. A seller with:
        1. Verifiable documentation, such as a receipt or work order, indicating that the catalytic converter is the result of a replacement of a catalytic converter performed by a used motor vehicle dealer, new motor vehicle dealer, or motor vehicle repairer. Such documentation shall include a notation as to the make, model, and year of the vehicle in which such catalytic converter was replaced; and
        2. A copy of a certificate of title or registration showing ownership of or interest in the vehicle in which the catalytic converter was replaced; or
      6. A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such catalytic converter was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5 . (Code 1981, § 10-1-351 , enacted by Ga. L. 2012, p. 112, § 1-1/HB 872; Ga. L. 2015, p. 588, § 2/HB 461.)

The 2015 amendment, effective July 1, 2015, in subsection (a), substituted "or by another state that provides a copy of such valid license at the time of the purchase transaction" for "who provides a copy of his or her valid license at the time of sale" in paragraph (a)(1), substituted "such coil is" for "the coils are" in paragraph (a)(2), and rewrote paragraph (a)(3); in subsection (b), substituted "or by another state that provides a copy of such valid license at the time of the purchase transaction" for "who provides a copy of his or her valid license at the time of sale" in paragraph (b)(1) and rewrote paragraph (b)(3); and added subsection (c).

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-351 as present Code Section 10-1-353.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 10-1-351 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

10-1-352. Requirements for purchase of burial objects.

No secondary metals recycler shall purchase a burial object unless it is purchased from:

  1. A funeral director licensed pursuant to Chapter 18 of Title 43 or by another state who provides a copy of his or her valid license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied license is on file with the secondary metals recycler;
  2. A cemetery owner registered pursuant to Code Section 10-14-4 or with another state that provides a copy of such valid registration at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler or whose scanned or photocopied registration is on file with the secondary metals recycler;
  3. A manufacturer or distributor of burial objects that provides a copy of a valid business license at the time of the purchase transaction that is scanned or photocopied by the secondary metals recycler;
  4. A seller with verifiable documentation, such as a receipt from or contract with a licensed funeral director, registered cemetery owner, or manufacturer or distributor of burial objects, evidencing that such person is the rightful owner of the burial object; or
  5. A secondary metals recycler who provides proof of registration pursuant to Code Section 10-1-359.1 and a signed statement stating that the required information concerning the purchase transaction involving such burial object was provided by such secondary metals recycler to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5 . (Code 1981, § 10-1-352 , enacted by Ga. L. 2012, p. 112, § 1-1/HB 872; Ga. L. 2015, p. 588, § 3/HB 461.)

The 2015 amendment, effective July 1, 2015, in paragraph (1), substituted "pursuant to" for "under the provisions of" near the beginning and substituted "the purchase transaction" for "sale" near the middle; in paragraph (2), substituted "that provides a copy of such valid registration at the time of the purchase transaction" for "who provides a copy of his or her valid registration at the time of sale" near the middle; and rewrote paragraphs (3) and (5).

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-352 as present Code Section 10-1-354.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 10-1-352 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

10-1-352.1. Redesignated.

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-352.1 as present Code Section 10-1-355.

10-1-353. Record of transaction; false statements; penalty for making false statement.

  1. Except as provided in subsection (c), a secondary metals recycler shall maintain a legible record of all purchase transactions. Such record shall include the following information:
    1. The name and address of the secondary metals recycler;
    2. The date of the transaction;
    3. The weight, quantity, or volume and a description of the type of regulated metal property purchased in a purchase transaction. For purposes of this paragraph, the term "type of regulated metal property" shall include a general physical description, such as wire, tubing, extrusions, or castings;
    4. A digital photograph or photographs or a digital video image or images of the regulated metal property which shows the regulated metal property in a reasonably clear manner;
    5. The amount of consideration given in a purchase transaction for the regulated metal property and a copy of the check or voucher or documentation evidencing the electronic funds transfer given as consideration for such purchase transaction;
    6. A signed statement from the seller stating that such person is the rightful owner of the regulated metal property or has been authorized to sell the regulated metal property being sold;
    7. A signed statement from the seller stating that he or she understands that: "A secondary metals recycler is any person who is engaged, from a fixed location or otherwise, in the business in this state of paying compensation for regulated metal property that has served its original economic purpose, whether or not engaged in the business of performing the manufacturing process by which regulated metal property is converted into raw material products consisting of prepared grades and having an existing or potential economic value. No ferrous metals, nonferrous metals, aluminum property, copper property, or catalytic converters (aluminum beverage containers, used beverage containers, or similar beverage containers are exempt) may be purchased by a secondary metals recycler unless such secondary metals recycler is registered pursuant to Article 14 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated";
    8. A scanned or photocopied copy of a valid personal identification card of the seller and of the deliverer, if such person is different from the seller;
    9. The type of and distinctive number from the personal identification card of the seller and of the deliverer, if such person is different from the seller;
    10. The name and date of birth of the seller and of the deliverer, if such person is different from the seller;
    11. A photograph, videotape, or digital recording depicting a recognizable facial image of the seller and of the deliverer, if such person is different from the seller, employing technology allowing the image to be retained in electronic storage and in a transferable format;
    12. The vehicle license tag number or vehicle identification number, state of issue, and the make, model, and color of the vehicle used to deliver the regulated metal property to the secondary metals recycler; and
    13. A scanned or photocopied copy of the verifiable documentation, reports, licenses, certificates, and registrations required pursuant to Code Sections 10-1-351 and 10-1-352.
  2. A secondary metals recycler shall maintain or cause to be maintained the information required by subsection (a) of this Code section for not less than two years from the date of the purchase transaction.
  3. When the regulated metal property being purchased is a vehicle, the secondary metals recycler shall:
    1. If Code Section 40-3-36 is applicable, purchase such vehicle in compliance with such Code section and shall not be required to maintain a record of the purchase transaction as provided in subsection (a) of this Code section or to provide such record to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5; or
    2. If Code Section 40-3-36 is not applicable, maintain a record of such purchase transaction as provided in subsection (a) of this Code section and provide such record to the Georgia Bureau of Investigation pursuant to Code Section 10-1-359.5.
  4. It shall be a violation of this article to sign the statement required by either paragraph (6) or (7) of subsection (a) of this Code section knowing it to be false, and such violation shall subject the seller to the civil and criminal liability provided in Code Section 10-1-359.2 . (Code 1981, § 10-1-351 , enacted by Ga. L. 1992, p. 2452, § 1; Ga. L. 2009, p. 731, § 2/SB 82; Code 1981, § 10-1-353 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872; Ga. L. 2015, p. 588, § 4/HB 461.)

The 2015 amendment, effective July 1, 2015, in the introductory paragraph of subsection (a), substituted "Except as provided in subsection (c), a" for "A" at the beginning; substituted "signed statement" for "signed and sworn affidavit" in paragraphs (a)(6) and (a)(7); in paragraph (a)(7), deleted "batteries" preceding "aluminum beverage containers" and substituted "registered" for "a holder of a valid permit issued;" inserted "of" following "and" in paragraph (a)(8) and present paragraph (a)(11); added paragraphs (a)(9) and (a)(10); deleted former paragraph (a)(10), which read: "The distinctive number from, and type of, the personal identification card of the seller and the deliverer, if such person is different from the seller;"; redesignated former paragraphs (a)(9), (a)(11), and (a)(12) as paragraphs (a)(11) through (a)(13), respectively; in paragraph (a)(12), substituted "make, model, and color of the vehicle" for "type of vehicle, if available," and deleted the last sentence, which read: "For purposes of this paragraph, the term 'type of vehicle' shall mean an automobile, pickup truck, van, or truck;"; inserted "certificates," in paragraph (a)(13); rewrote subsection (c); and rewrote subsection (d).

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-353 as present Code Section 10-1-356.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 10-1-353 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

10-1-354. Inspections by law enforcement officers.

During the usual and customary business hours of a secondary metals recycler, a law enforcement officer shall, after properly identifying himself or herself as a law enforcement officer, have the right to inspect:

  1. Any and all regulated metal property in the possession of the secondary metals recycler; and
  2. Any and all records required to be maintained under Code Section 10-1-353 . (Code 1981, § 10-1-352 , enacted by Ga. L. 1992, p. 2452, § 1; Code 1981, § 10-1-354 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-354 as present Code Section 10-1-357.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-355. Conditions and limitations on payments for regulated metal property; exception for transaction between business entities.

  1. A secondary metals recycler shall pay only by check, electronic funds transfer, or voucher for regulated metal property.
  2. Any check, electronic funds transfer, or voucher shall be payable only to the person recorded as the seller of the regulated metal property to the secondary metals recycler.
  3. Any voucher shall be provided to the seller at the time of the purchase transaction or mailed to the seller at the address indicated on the personal identification card of the seller presented at the time of such transaction. If the voucher is provided to the seller at the time of the purchase transaction and not mailed to the seller, the secondary metals recycler shall not redeem the voucher for three days from the date of the purchase transaction. The voucher shall include the date of purchase, name of the seller, the amount paid for the regulated metal property, a detailed description of the regulated metal property purchased, information as to whether the voucher was mailed or provided at the time of the purchase transaction, the first date on which the voucher may be redeemed, and the date on which the voucher expires. The voucher may only be redeemed for cash by the person whose name appears on the voucher as the seller or by such person's heirs or legal representative. If a voucher is not redeemed by the person whose name appears on the voucher as the seller or by such person's heirs or legal representative within six months of the date of the transaction, the voucher shall expire and the secondary metals recycler shall not be required to honor the voucher after the expiration date.
  4. A secondary metals recycler shall be prohibited from: (1) redeeming or cashing any check or electronic funds transfer paid to a seller for regulated metal property; and (2) providing or permitting any mechanism on the premises of the secondary metals recycler for the redemption or cashing of any check or electronic funds transfer.
  5. The provisions of this Code section shall not apply to any transaction between business entities. (Code 1981, § 10-1-352.1 , enacted by Ga. L. 2009, p. 731, § 3/SB 82; Code 1981, § 10-1-355 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-355 as present Code Section 10-1-358.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-356. Hold on regulated metal property believed to be stolen; notice; release of hold.

  1. Whenever a law enforcement officer has reasonable cause to believe that any item of regulated metal property in the possession of a secondary metals recycler has been stolen, the law enforcement officer may issue a hold notice to the secondary metals recycler. The hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metal property that are believed to have been stolen and that are subject to the notice, and shall inform the secondary metals recycler of the information contained in this Code section. Upon receipt of the notice issued in accordance with this Code section, the secondary metals recycler receiving the notice shall not process or remove the items of regulated metal property identified in the notice, or any portion thereof, from the premises of or place of business of the secondary metals recycler for 15 calendar days after receipt of the notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
  2. No later than the expiration of the 15 day period, a law enforcement officer may issue a second hold notice to the secondary metals recycler, which shall be an extended hold notice. The extended hold notice shall be in writing, shall be delivered to the secondary metals recycler, shall specifically identify those items of regulated metal property that are believed to have been stolen and that are subject to the extended hold notice, and shall inform the secondary metals recycler of the information contained in this Code section. Upon receipt of the extended hold notice issued in accordance with this Code section, the secondary metals recycler receiving the extended hold notice shall not process or remove the items of regulated metal property identified in the notice, or any portion thereof, from the premises of or place of business of the secondary metals recycler for 30 calendar days after receipt of the extended hold notice by the secondary metals recycler, unless sooner released by a law enforcement officer.
  3. At the expiration of the hold period or, if extended in accordance with this Code section, at the expiration of the extended hold period, the hold is automatically released and the secondary metals recycler may dispose of the regulated metal property unless other disposition has been ordered by a court of competent jurisdiction. (Code 1981, § 10-1-353 , enacted by Ga. L. 1992, p. 2452, § 1; Code 1981, § 10-1-356 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-356 as present Code Section 10-1-359.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-357. Contesting identification or ownership of regulated metal property; action to recover property.

  1. If the secondary metals recycler contests the identification or ownership of the regulated metal property, the party other than the secondary metals recycler claiming ownership of any regulated metal property in the possession of a secondary metals recycler may, provided that a timely report of the theft of the regulated metal property was made to the proper authorities, bring an action in the superior or state court of the county in which the secondary metals recycler is located. The petition for such action shall include a description of the means of identification of the regulated metal property utilized by the petitioner to determine ownership of the regulated metal property in the possession of the secondary metals recycler.
  2. When a lawful owner recovers stolen regulated metal property from a secondary metals recycler who has complied with the provisions of this article, and the seller or deliverer is convicted of theft by taking, theft by conversion, a violation of this article, theft by receiving stolen property, or criminal damage to property in the first degree, the court shall order the defendant to make full restitution, including, without limitation, attorneys' fees, court costs, and other expenses to the secondary metals recycler or lawful owner, as appropriate. (Code 1981, § 10-1-354 , enacted by Ga. L. 1992, p. 2452, § 1; Ga. L. 2007, p. 650, § 1.1/SB 203; Code 1981, § 10-1-357 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-357 as present Code Section 10-1-361.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-358. Purchases of regulated metal property exempted from application of article.

This article shall not apply to purchases of regulated metal property from:

  1. Organizations, corporations, or associations registered with the state as charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school-sponsored organizations or associations or from any nonprofit corporations or associations;
  2. A law enforcement officer acting in an official capacity;
  3. A trustee in bankruptcy, executor, administrator, or receiver who has presented proof of such status to the secondary metals recycler;
  4. Any public official acting under judicial process or authority who has presented proof of such status to the secondary metals recycler;
  5. A sale on the execution, or by virtue, of any process issued by a court if proof thereof has been presented to the secondary metals recycler; or
  6. A manufacturing, industrial, or other commercial vendor that generates or sells regulated metal property in the ordinary course of its business, provided that such vendor is not a secondary metals recycler. (Code 1981, § 10-1-355 , enacted by Ga. L. 1992, p. 2452, § 1; Code 1981, § 10-1-358 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 1/HB 872, effective July 1, 2012, redesignated former Code Section 10-1-358 as present Code Section 10-1-363.

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-358.1. Exclusions from article's applicability.

The provisions of this article shall not apply to a vehicle purchased in compliance with Code Section 40-3-36 by a used motor vehicle dealer or used motor vehicle parts dealer licensed pursuant to Chapter 47 of Title 43.

(Code 1981, § 10-1-358.1 , enacted by Ga. L. 2015, p. 588, § 5/HB 461.)

Effective date. - This Code section became effective July 1, 2015.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "to" was inserted following "pursuant".

10-1-359. Prohibited acts.

It shall be unlawful for:

  1. A secondary metals recycler to engage in the purchase or sale of regulated metal property between the hours of 7:00 P.M. and 7:00 A.M.; and
  2. Any person to give a false or altered personal identification card, vehicle license tag number, or vehicle identification number to a secondary metals recycler as part of a purchase transaction. (Code 1981, § 10-1-356 , enacted by Ga. L. 1992, p. 2452, § 1; Code 1981, § 10-1-359 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 4-8-27 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

10-1-359.1. Registration of secondary metals recycler; electronic data base; authority of sheriff; penalty for violation.

  1. It shall be unlawful for any secondary metals recycler to purchase regulated metal property in any amount without being registered pursuant to this Code section. If the secondary metals recycler is a person other than an individual, such person shall register with the sheriff of each county in which the secondary metals recycler maintains a place of business. If the secondary metals recycler is an individual, he or she shall register with the sheriff of the county in which he or she resides or if such individual is a nonresident of this state, he or she shall register with the sheriff of the county in Georgia where he or she primarily engages or intends to primarily engage in business as a secondary metals recycler. The secondary metals recycler shall declare on a form promulgated by the Secretary of State and provided by the sheriff that such secondary metals recycler is informed of and will comply with the provisions of this article. The forms and information required for such registration shall be promulgated by the Secretary of State. The sheriff shall register the secondary metals recycler and shall keep a record of each registration. Each registration shall be valid for a 12 month period.
  2. The record of each registration shall be entered into an electronic data base accessible statewide. Such data base shall be established through coordination with the Secretary of State and shall be searchable by all law enforcement agencies in this state.
  3. The sheriff shall be authorized to:
    1. Assess and require payment of a reasonable registration fee prior to registering the secondary metals recycler, not to exceed $200.00;
    2. Delegate to personnel in the sheriff's office the registration of secondary metals recyclers and entering into the data base of the records of such registrations; and
    3. Enter into contracts with the governing authority of a county, municipality, or consolidated government for such governing authority to provide for the registration of secondary metals recyclers and the entering into the data base of the records of such registrations by other law enforcement agencies or by staff of the governing authority. Any such contract shall provide for reimbursement to such governing authority for the registrations or entry of the records of such registrations into the data base.
  4. Any secondary metals recycler convicted of violating this Code section shall be guilty of a misdemeanor of a high and aggravated nature. (Code 1981, § 10-1-359.1 , enacted by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Code Section 10-1-360, as enacted by Ga. L. 2012, p. 112, § 1-1/HB 872, was redesignated as Code Section 10-1-359.1.

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 4-8-27 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

10-1-359.2. Penalties for violations.

  1. Except as provided for in subsection (d) of Code Section 10-1-359.1, any person who buys or sells regulated metal property in violation of any provision of this article:
    1. For a first offense, shall be guilty of a misdemeanor;
    2. For a second offense, shall be guilty of a misdemeanor of a high and aggravated nature; and
    3. For a third or subsequent offense, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years.
  2. Any person who buys or sells regulated metal property in violation of any provision of this article shall be liable in a civil action to any person who was the victim of a crime involving such regulated metal property for the full value of the regulated metal property, any repairs and related expenses incurred as a result of such crime, litigation expenses, and reasonable attorneys' fees. (Code 1981, § 10-1-357 , enacted by Ga. L. 1992, p. 2452, § 1; Ga. L. 2007, p. 650, § 2/SB 203; Code 1981, § 10-1-359.2 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Cross references. - Penalty for theft of ferrous metals or regulated metal property, § 16-8-12 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Code Section 10-1-361, as enacted by Ga. L. 2012, p. 112, § 1-1/HB 872, was redesignated as Code Section 10-1-359.2. In the introductory language of subsection (a), "Code Section 10-1-359.1" was substituted for "Code Section 10-1-360".

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-359.3. Forfeiture; items declared contraband.

  1. As used in this Code section, the term:
    1. "Crime" means:
      1. Theft by taking in violation of Code Section 16-8-2, theft by conversion in violation of Code Section 16-8-4, or theft by receiving stolen property in violation of Code Section 16-8-7 if the subject of the theft was regulated metal property;
      2. Criminal damage to property in the first degree in violation of paragraph (2) of subsection (a) of Code Section 16-7-22; or
      3. A criminal violation of this article.
    2. "Proceeds" shall have the same meaning as set forth in Code Section 16-13-49.
    3. "Property" shall have the same meaning as set forth in Code Section 16-13-49.
  2. The following are declared to be contraband, and no person shall have a property right in them:
    1. Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a crime and any proceeds derived or realized therefrom; and
    2. Any weapon possessed, used, or available for use in any manner to facilitate a crime.
  3. Any property subject to forfeiture pursuant to subsection (b) of this Code section shall be forfeited in accordance with the procedures set forth in Code Section 16-13-49 . (Code 1981, § 10-1-359.3 , enacted by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Code Section 10-1-362, as enacted by Ga. L. 2012, p. 112, § 1-1/HB 872, was redesignated as Code Section 10-1-359.3.

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-359.4. Authority of localities.

  1. The General Assembly finds that this article is a matter of state-wide concern. This article supersedes and preempts all rules, regulations, codes, ordinances, and other laws adopted by any county, municipality, consolidated government, or other local governmental agency regarding the sale or purchase of regulated metal property except as allowed in this Code section.
  2. Political subdivisions of this state may enact rules, regulations, codes, ordinances, and other laws:
    1. Affecting the land use and zoning relating to secondary metals recyclers; and
    2. Issuing occupational tax certificates to secondary metals recyclers, imposing occupational taxes, imposing regulatory fees as allowed in Code Section 48-13-9 , or revoking their occupational tax certificates. (Code 1981, § 10-1-358 , enacted by Ga. L. 2007, p. 650, § 3/SB 203; Code 1981, § 10-1-359.4 , as redesignated by Ga. L. 2012, p. 112, § 1-1/HB 872.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Code Section 10-1-363, as enacted by Ga. L. 2012, p. 112, § 1-1/HB 872, was redesignated as Code Section 10-1-359.4.

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

10-1-359.5. Required information from secondary metals recyclers; role of Georgia Bureau of Investigation.

  1. Each secondary metals recycler shall provide to the Georgia Bureau of Investigation or its designee for each purchase transaction which takes place on or after July 1, 2015, all of the information required by subsection (a) of Code Section 10-1-353, except for the amount of consideration given in a purchase transaction for the regulated metal property specified in paragraph (5) of subsection (a) of such Code section. A secondary metals recycler who maintains on file with the Georgia Bureau of Investigation or its designee a copy of the statement forms such secondary metals recycler requires each seller to sign pursuant to paragraphs (6) and (7) of subsection (a) of Code Section 10-1-353 may satisfy the requirements of such paragraphs by providing to the Georgia Bureau of Investigation or its designee a copy of the individual seller's signature and shall not be required to provide the actual statement signed by each seller, provided the actual statements are maintained by the secondary metals recycler pursuant to subsection (b) of Code Section 10-1-353 and available for inspection pursuant to Code Section 10-1-354. The information required to be provided by the secondary metals recyclers to the Georgia Bureau of Investigation or its designee pursuant to this subsection shall be provided electronically.
  2. The Georgia Bureau of Investigation or its designee shall establish and maintain a data base of all information required to be provided pursuant to subsection (a) of this Code section. Such information shall be considered to be a trade secret and shall be exempt from disclosure under the provisions of Article 4 of Chapter 18 of Title 50; provided, however, that such exemption shall not relieve the secondary metals recycler of the obligation or requirement to provide such information to the Georgia Bureau of Investigation or its designee.
  3. The data base shall be accessible and searchable by:
    1. All law enforcement agencies in this state; and
    2. Employees of electric suppliers, as defined in Code Section 46-3-3, and employees of telecommunications companies, as defined in Code Section 46-5-162, provided that such employees have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act."
    1. It shall be unlawful to use the data base established pursuant to subsection (b) of this Code section for any purpose other than the investigation of an alleged crime.
    2. Any person who violates or conspires to violate paragraph (1) of this subsection shall be guilty of a felony and, upon conviction, shall receive the following punishment:
      1. Upon a first conviction, imprisonment for not less than one nor more than five years or a fine of not more than $5,000.00, or both; or
      2. Upon a second or subsequent conviction, imprisonment for not less than five nor more than ten years or a fine of not more than $40,000.00, or both.
  4. The Georgia Bureau of Investigation shall promulgate rules and regulations and establish procedures necessary to carry into effect, implement, and enforce the provisions of this Code section and ensure compliance with applicable federal and state laws. Such rules and regulations shall include, but shall not be limited to:
    1. The time, manner, and method of the transmittal of the information by the secondary metals recyclers to the Georgia Bureau of Investigation;
    2. The manner and method by which employees of electric suppliers and telecommunications companies may access and search the data base and any prerequisites thereto; and
    3. The specific information the employees of the electric suppliers and telecommunications companies may access and search within the data base. (Code 1981, § 10-1-359.5 , enacted by Ga. L. 2012, p. 112, § 2-1/HB 872; Ga. L. 2015, p. 588, § 6/HB 461.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Code Section 10-1-360.1, as enacted by Ga. L. 2012, p. 112, § 2-1/HB 872, was redesignated as Code Section 10-1-359.5.

Editor's notes. - Ga. L. 2012, p. 112, § 4-1(b)/HB 872, not codified by the General Assembly, provided that this Code section shall become effective upon specific appropriation of funds for the purposes of this Act as expressed in a line item making specific reference to such funds in a General Appropriations Act enacted by the General Assembly. Funds were appropriated at the 2014 session of the General Assembly.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012).

ARTICLE 14A FLEA MARKET VENDORS' RECORD KEEPING

10-1-360. Definitions; records; penalties; applicability.

  1. As used in this Code section, the term:
      1. "Flea market" means any event:
        1. At which two or more persons offer personal property for sale or exchange; and
        2. At which a fee is charged for the privilege of offering or displaying personal property for sale or exchange; or
        3. At which a fee is charged to prospective buyers for admission to the area where personal property is offered or displayed for sale or exchange; or
        4. Regardless of the number of persons offering or displaying personal property or the absence of fees, at which used personal property is offered or displayed for sale or exchange if the event is held more than six times in any 12 month period.
      2. The term "flea market" is interchangeable with and applicable to "swap meet," "indoor swap meet," or other similar terms regardless of whether these events are held inside a building or outside in the open. The primary characteristic is that these activities involve a series of sales sufficient in number, scope, and character to constitute a regular course of business.
      3. The term "flea market" shall not mean and shall not apply to:
        1. An event which is organized for the exclusive benefit of any community chest, fund, foundation, association, or corporation organized and operated for religious, educational, or charitable purposes, provided that no part of any admission fee or parking fee charged vendors or prospective purchasers or the gross receipts or net earnings from the sale or exchange of personal property, whether in the form of a percentage of the receipts or earnings, as salary, or otherwise, inures to the benefit of any private shareholder or person participating in the organization or conduct of the event; or
        2. Any event at which all of the personal property offered for sale or displayed is new, and all persons selling, exchanging, or offering or displaying personal property for sale or exchange are manufacturers or licensed retail or wholesale merchants.
    1. "Nonregistered vendor" means a person who, without a certificate of registration issued by the state revenue commissioner pursuant to Chapter 8 of Title 48, engages in the retail sale of personal property to the general public.
    2. "Used personal property" includes personal property which has previously been sold or delivered to a retailer prior to being acquired by a vendor when the vendor's cost exceeds $50.00 per item.
    3. "Vendor" means a person who engages in the retail sale of personal property at a flea market.
  2. Every nonregistered vendor and vendor shall maintain a permanent record book in which shall be entered in ink and in legible English at the time any property is acquired for the purpose of retail sale:
    1. The date of the transaction;
    2. The name, age, and address of the person, corporation, or entity from whom the property was acquired, a description of the general appearance of any such person, and the distinctive number from such person's driver's license or other similar identification card;
    3. An identification and description of the property acquired including, if reasonably available, the serial, model, or other number and all identifying marks inscribed thereon;
    4. The price paid for such property; and
    5. The signature of the seller.

      All entries shall appear in ink and shall be in chronological order. No blank lines may be left between entries. No obliterations, alterations, or erasures may be made. Corrections shall be made by drawing a line of ink through the entry without destroying the legibility. Such record book shall be open to the inspection of any law enforcement officer during the ordinary hours of business or at any reasonable time.

  3. The record of each purchase transaction provided for in this Code section shall be maintained for a period of not less than two years and shall be kept by the nonregistered vendor or vendor and made available during any period at which such person is open for business or is offering property for sale.
  4. Any nonregistered vendor or vendor required to maintain a record book under the provisions of this Code section who shall:
    1. Fail to make an entry of any material matter in his or her permanent record book;
    2. Make any false entry therein;
    3. Falsify, obliterate, destroy, or remove such record book from his or her place of business during any time such record book is required to be present;
    4. Refuse to allow any law enforcement officer to inspect his or her permanent record book or any goods or property in his or her possession during the ordinary hours of business or at any reasonable time; or
    5. Fail to maintain the records required by this Code section for at least two years

      shall be guilty of a misdemeanor.

  5. This Code section shall apply to property purchased or acquired on or after July 1, 1994. (Code 1981, § 10-1-360 , enacted by Ga. L. 1994, p. 1915, § 1; Ga. L. 2000, p. 136, § 10.)

10-1-361. Exemptions from article.

This article shall not apply to the following:

  1. The sale of a motor vehicle or trailer required to be registered or subject to a certificate of title law of this state;
  2. The sale of food products, agricultural products, or forestry products;
  3. Business conducted at any industry or association trade show;
  4. The sale of arts or crafts by the person who produced such arts or crafts. (Code 1981, § 10-1-361 , enacted by Ga. L. 1994, p. 1915, § 1.)

10-1-362. Local ordinances or regulations.

Nothing in this article shall prohibit ordinances or resolutions by counties and municipal corporations which provide regulations that are as stringent or more stringent than the requirements of this article.

(Code 1981, § 10-1-362 , enacted by Ga. L. 1994, p. 1915, § 1.)

ARTICLE 15 DECEPTIVE OR UNFAIR PRACTICES

Cross references. - Misidentification of onions as Vidalia onions, § 2-14-130 et seq.

Restrictions on sale of goods manufactured by inmates of county correctional institutions, § 42-5-60 .

Law reviews. - For note on 1995 amendments and enactments of sections in this article, see 12 Ga. St. U.L. Rev. 31 (1995).

PART 1 U NIFORM DECEPTIVE TRADE PRACTICES ACT

Law reviews. - For article discussing available remedies in this state for deceptive trade practices, in light of the model Unfair Trade Practices and Consumer Protection Law proposed in Georgia in 1973, see 10 Ga. St. B. J. 281 (1973). For article explaining the Unfair Trade Practices and Consumer Protection Act, proposed in Georgia in 1973, see 10 Ga. St. B. J. 409 (1974). For article, "Trademark Protection: Judicial Inconsistency in the Fifth Circuit," see 32 Mercer L. Rev. 1167 (1981). For article, "Corporate Software Piracy: Is Your Client (or Your Firm) Liable?," see 22 Ga. St. B. J. 30 (1985). For note discussing the Uniform Deceptive Trade Practices Act and consumer protection, see 25 Emory L. J. 445 (1976).

JUDICIAL DECISIONS

Crux of complaint based on this part is likelihood of confusion between goods. Rolls-Royce Motors, Ltd. v. A & A Fiberglass, Inc., 428 F. Supp. 689 (N.D. Ga. 1977); Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252 (5th Cir.), cert. denied, 449 U.S. 899, 101 S. Ct. 268 , 66 L. Ed. 2 d 129 (1980).

Consumer's failure to show the plaintiff had to establish a likelihood of damage to the plaintiff by an automobile dealer's fraudulent practices made summary judgment denying the plaintiff's claim under the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., proper. Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639 , 560 S.E.2d 101 (2002).

Requirements for injunctive relief under O.C.G.A. Pt. 1, Art. 15, Ch. 1, T. 10 are less stringent than under any other sections dealing with protection of trade names and trademarks. Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775 , 279 S.E.2d 683 (1981).

Standing. - Patentee of a weight loss drug who had not produced or marketed a weight control product, and was not a person likely to be damaged by the practices of alleged competitors, lacked standing to bring suit under the Uniform Deceptive Trade Practice Act, O.C.G.A. Pt. 1, Art. 15, Ch. 1, T. 10. Friedlander v. HMS-PEP Prods., Inc., 226 Ga. App. 123 , 485 S.E.2d 240 (1997).

No basis for claim. - See Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268 (Fed. Cir. 1985).

The Uniform Deceptive Trade Practices Act, O.C.G.A. Pt. 1, Art. 15, Ch. 1, T. 10, did not apply to an action by students against schools and student loan guarantors based on allegations that the schools recruited the students, induced the students to sign up for federally guaranteed student loans, and then failed to provide the promised quality of education or job placement. Bartels v. Alabama Commer. College, 918 F. Supp. 1565 (S.D. Ga. 1995), aff'd in part and rev'd in part, 189 F.3d 483 (11th Cir. 1999), cert. denied, 528 U.S. 1074, 120 S. Ct. 787 , 145 L. Ed. 2 d 664 (2000).

Cited in Stone Container Corp. v. Owens-Illinois, Inc., 528 F. Supp. 794 (N.D. Ga. 1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1104, 1106.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 434.

ALR. - Right to protection against simulation of physical appearance or arrangement of place of business or vehicle, 17 A.L.R. 784 ; 28 A.L.R. 114 .

Application of principles of unfair competition to artistic or library property, 19 A.L.R. 949 .

Seller's advertisements as affecting rights of parties to sale of personal property, 28 A.L.R. 991 ; 158 A.L.R. 1413 .

Former employee's duty, in absence of express contract, not to solicit former employer's customers or otherwise use his knowledge of customer lists acquired in earlier employment, 28 A.L.R.3d 7.

Unfair competition: geographical extent of protection of word or symbol under doctrine of secondary meaning, 41 A.L.R.3d 434.

Validity, construction, and effect of state legislation regulating or controlling "bait-and-switch" or "disparagement" advertising or sales practices, 50 A.L.R.3d 1008.

Validity of express statutory grant of power to state to seek, or to court to grant, restitution of fruits of consumer fraud, 59 A.L.R.3d 1222.

Use of "family name" by corporation as unfair competition, 72 A.L.R.3d 8.

Scope and exceptions of state deceptive trade practice and consumer protection Acts, 85 A.L.R.3d 399.

Trade dress simulation of cosmetic products as unfair competition, 86 A.L.R.3d 505.

Unfair competition by imitation in sign or design of business place, 86 A.L.R.3d 884.

Practices forbidden by state deceptive trade practice and consumer protection Acts, 89 A.L.R.3d 449.

When statute of limitations commences to run on action under state deceptive trade practice or consumer protection acts, 18 A.L.R.4th 1340.

Award of attorneys' fees in actions under state deceptive trade practice and consumer protection acts, 35 A.L.R.4th 12.

Implied warranty coverage for service transactions under state consumer protection and deceptive trade statutes, 72 A.L.R.4th 282.

Coverage of leases under state consumer protection statutes, 89 A.L.R.4th 854.

10-1-370. Short title.

This part shall be known and may be cited as the "Uniform Deceptive Trade Practices Act."

(Ga. L. 1968, p. 337, § 6; Ga. L. 2017, p. 774, § 10/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "This part shall be known and may be cited" for "This part may be cited" at the beginning of this Code section.

Law reviews. - For article, "Do's and Don'ts When Handling a Product Liability Matter in Georgia,” see 25 Ga. St. B.J. 17 (Aug. 2019).

JUDICIAL DECISIONS

Analogy with Lanham Act. - In an action by a manufacturer against a competitor under the Lanham Act (15 U.S.C. § 1125(a)) for trade dress infringement, it was error to apply the statute of limitations in the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., since the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-370 et seq., is the proper analogous statute to apply for such purpose. Kason Indus. v. Component Hdwe. Group, 120 F.3d 1199 (11th Cir. 1997).

Statute of limitations. - Four-year period of O.C.G.A. § 9-3-31 was applicable for purposes of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-370 et seq., not the 20-year period of O.C.G.A. § 9-3-22 . Kason Indus. v. Component Hdwe. Group, 120 F.3d 1199 (11th Cir. 1997).

No valid claim. - When an employee resigned while in the process of trying to obtain certain business for the employer, and the employee formed a company, which later obtained this business, the employer did not show that the employee violated the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because the employer did not show that the employee caused any confusion as to the source, sponsorship, approval, or certification of goods or services. Looney v. M-Squared, Inc., 262 Ga. App. 499 , 586 S.E.2d 44 (2003).

Standing. - Company's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) made applicable in bankruptcy through Fed. R. Bankr. P. 7012, was denied because nothing in the language of Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., required the debtor to be a consumer or required a consumer to be injured; therefore, the "consumer" issue was irrelevant to standing under the UDTPA. Johnston Indus. Ala., Inc. v. Nat'l Contract Assocs. (In re Johnston Indus.), 300 Bankr. 821 (Bankr. M.D. Ga. 2003).

Sovereign immunity barred claims against Georgia Lottery Corporation. - Trial court erred in denying the Georgia Lottery Corporation's motion to dismiss the appellee's claim under Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., as the appellee's UDTPA claim for injunctive relief against the Georgia Lottery Corporation was barred by sovereign immunity because the UDTPA did not expressly waive the state's sovereign immunity; did not specifically create a cause of action against the state; and exempted conduct in compliance with a statute administered by a state agency, and the Georgia Lottery Corporation was a state agency created by statute to administer the lottery. Ga. Lottery Corp. v. Patel, 353 Ga. App. 320 , 836 S.E.2d 634 (2019).

Amended complaint alleging violation of Georgia Deceptive Trade Practices Act granted. - In an action in which an interexchange carrier asserted the carrier was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, an amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court's denial of summary judgment on the local carrier's counterclaims. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).

Unfair insurance practices not subject to Georgia's Uniform Deceptive Trade Practices Act. - Pursuant to O.C.G.A. § 10-1-374(a)(1), insurance transactions are exempt from Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq. Claims of unfair trade practices in insurance transactions are instead governed by the Georgia Insurance Code. Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga. App. 28 , 676 S.E.2d 428 (2009), cert. denied, No. S09C1241, 2009 Ga. LEXIS 805 (Ga. 2009).

Trade name infringement. - Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., provides for injunctive relief to prevent damage caused by a deceptive trade practice, including the use of a confusingly similar trade name which infringes on a protected trade name. Relief may be obtained from the deceptive practice, whether or not the protected trade name was registered, and without proof that the alleged infringer intended to deceive the public by causing confusion. Inkaholiks Luxury Tattoos Georgia, LLC v. Parton, 324 Ga. App. 769 , 751 S.E.2d 561 (2013).

Dismissal when injunction would serve no purpose as information on dark web. - Patients' claim under the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was properly dismissed because, pretermitting whether the patients alleged an unfair trade practice, an injunction would serve no purpose because the patients' personal information was already sold and was available on the dark web. Collins v. Athens Orthopedic Clinic, 356 Ga. App. 776 , 849 S.E.2d 213 (2020).

Cited in Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932 , 311 S.E.2d 216 (1983); Coin Call, Inc. v. Southern Bell Tel. & Tel. Co., 636 F. Supp. 608 (N.D. Ga. 1986); Moister v. Vickers, 176 Bankr. 287 (Bankr. N.D. Ga. 1994); Computer Currents Publishing Corp. v. Jaye Communications, Inc., 968 F. Supp. 684 (N.D. Ga. 1997); Bd. of Regents of Univ. Sys. of Ga. v. Buzas Baseball, Inc., 176 F. Supp. 2d 1338 (N.D. Ga. 2001); Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1 , 633 S.E.2d 68 (2006); Med S. Health Plans, LLC v. Life of the S. Ins. Co., F. Supp. 2d (M.D. Ga. May 19, 2008); India-American Cultural Ass'n v. iLink Professionals, Inc., 296 Ga. 668 , 769 S.E.2d 905 (2015).

RESEARCH REFERENCES

False Advertising Under Lanham Act § 43(a)(1)(B), 44 POF3d 1.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 6.

ALR. - Right to private action under state consumer protection act - Equitable relief available, 115 A.L.R.5th 709.

Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.

10-1-371. Definitions.

As used in this part, the term:

  1. "Article" means a product as distinguished from its trademark, label, or distinctive dress in packaging.
  2. "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.
  3. "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. "Mark" means a word, name, symbol, device, or any combination of the foregoing in any form or arrangement.
  5. "Person" means an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
  6. "Service mark" means a mark used by a person to identify services and to distinguish them from the services of others.
  7. "Trademark" means a mark used by a person to identify goods and to distinguish them from the goods of others.
  8. "Trade name" means a word, name, symbol, device, or any combination of the foregoing in any form or arrangement used by a person to identify his business, vocation, or occupation and distinguish it from the business, vocation, or occupation of others.

    (Ga. L. 1968, p. 337, § 1.)

Law reviews. - For article, "A Patent and Trademark Primer," see 15 Ga. St. B. J. 58 (1978). For article, "Trademark Litigation," a brief overview of the subject, see 17 Ga. St. B. J. 158 (1981).

JUDICIAL DECISIONS

Cited in Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 489 F. Supp. 174 (N.D. Ga. 1980); Reis v. Ralls, 250 Ga. 721 , 301 S.E.2d 40 (1983); Diedrich v. Miller & Meier & Assocs., 254 Ga. 734 , 334 S.E.2d 308 (1985); Johnston Indus. Ala., Inc. v. Nat'l Contract Assocs. (In re Johnston Indus.), 300 Bankr. 821 (Bankr. M.D. Ga. 2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 74 Am. Jur. 2d, Trademarks and Tradenames, § 1 et seq.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, §§ 1, 17, 142. 90 C.J.S., Trusts, § 275.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 1.

ALR. - Who is a "consumer" entitled to protection of state deceptive trade practice and consumer protection acts, 63 A.L.R.5th 1.

10-1-372. When trade practices are deceptive; common-law and other remedies unaffected.

  1. A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
    1. Passes off goods or services as those of another;
    2. Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
    3. Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another;
    4. Uses deceptive representations or designations of geographic origin in connection with goods or services;
    5. Represents 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 does not have;
    6. Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
    7. Represents 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. Disparages the goods, services, or business of another by false or misleading representation of fact;
    9. Advertises goods or services with intent not to sell them as advertised;
    10. Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
    11. Makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; or
    12. Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
  2. In order to prevail in an action under this part, a complainant need not prove competition between the parties or actual confusion or misunderstanding.
  3. This Code section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.

    (Ga. L. 1968, p. 337, § 2.)

Cross references. - Criminal penalties for unauthorized reproduction and sale of recorded materials, § 16-8-60 .

Criminal penalty for deceptive business practices, § 16-9-50 .

Fraud generally, § 23-2-50 et seq.

Misbranding of food generally, § 26-2-28 .

Labeling of meat, §§ 26-2-107 , 26-2-111 , 26-2-112 .

Misbranding of drugs, § 26-3-8 .

Misbranding and false advertisement of cosmetics, § 26-3-12 et seq.

Time-share program sales, deceptive practices, § 44-3-185 et seq.

Law reviews. - For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Preemption by federal Food, Drug, and Cosmetic Act. - District court properly dismissed the plaintiff's claim under the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because the federal Food, Drug, and Cosmetic Act's, 21 U.S.C. § 301 et seq., express-preemption provision barred the claim as it would impose liability for conduct that did not violate the Act. Hi-Tech Pharms., Inc. v. HBS Int'l Corp., 910 F.3d 1186 (11th Cir. 2018).

Standing. - Company's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) made applicable in bankruptcy through Fed. R. Bankr. P. 7012 was denied because nothing in the language of Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., required the debtor to be a consumer or required a consumer to be injured; therefore, the "consumer" issue was irrelevant to standing under the UDTPA. Johnston Indus. Ala., Inc. v. Nat'l Contract Assocs. (In re Johnston Indus.), 300 Bankr. 821 (Bankr. M.D. Ga. 2003).

Failure to register or otherwise protect name. - Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., does not require a party seeking relief thereunder to have registered the relevant trade or service mark or name. To the extent this court ruled otherwise in Elite Personnel, Inc. v. Elite Personnel Services, Inc., 259 Ga. 192 (1989) that opinion is hereby overruled. Future Professionals, Inc. v. Darby, 266 Ga. 690 , 470 S.E.2d 644 (1996).

Failure to authorize use of name. - Customer sufficiently pled a counterclaim for false endorsement under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a) , because there was evidence in the record that the customer did not authorize a copyright owner's use of the customer's name and quote when the owner initially displayed the material on its website and the owner continued to display the material after the customer expressly withdrew any authorization. SCQuARE Int'l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).

In a suit by owner of a registered mark that consisted of the name of a well-known racehorse against companies that filmed a fictionalized movie of the horse's career, further discovery under Fed. R. Civ. P. 56(f) was allowed as to owner's state law claim of false endorsement under O.C.G.A. § 10-1-372 because consumers might have been confused by marketing that stated that the film was a true story, even though it lacked endorsement of the horse's well-known trainer and jockey, who were portrayed by actors in the film. Thoroughbred Legends, LLC v. Walt Disney Co., F. Supp. 2d (N.D. Ga. Feb. 12, 2008).

Protection despite failure to register. - Because a sole proprietor's use of "ATG" had acquired secondary meaning as a trade name, the proprietor was entitled to enjoin a corporation from using the same name since it was shown that the corporation's use caused confusion and misunderstanding on the part of the public. Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801 , 485 S.E.2d 22 (1997).

Jurisdiction of issue involving similar names. - A claim under the Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., involving deceptively similar business logos was a claim for equitable relief and was not within the jurisdiction of the court of appeals. Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495 , 455 S.E.2d 601 (1995).

Confusingly similar names. - Claims for service mark infringement under the federal Lanham Act, the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., and the Georgia law of unfair competition turn on the same question - confusion of similar names. Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833 (11th Cir. 1983).

Plaintiffs made requisite showing for injunction that trade name reacquired upon foreclosure of their security interest had acquired a secondary meaning and that defaulting buyers knowingly had adopted a confusingly similar name, which had in fact confused the plaintiffs' former customers. Reis v. Ralls, 250 Ga. 721 , 301 S.E.2d 40 (1983).

Showing that, on more than one occasion, customers misdirected their inquiries and that legal documents were misserved was evidence that the corporation's use of the plaintiff's trade name caused confusion and misunderstanding on the part of the public entitling the plaintiff to injunctive relief. Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801 , 485 S.E.2d 22 (1997).

Promoter presented sufficient evidence of the strength of the promoter's marks and of actual confusion amongst the relevant consumer class to avoid summary judgment, and the appellate court reversed the district court's grant of summary judgment for the group and remanded for trial on the claims of infringement under the Lanham Act, 15 U.S.C. § 1114, false designation of origin under 15 U.S.C. § 1125, deceptive trade practices under O.C.G.A. § 10-1-372 and unfair competition under O.C.G.A. § 23-2-55 et seq. because: (1) the car dealership promoter had shown actual confusion and the district court erred by overvaluing lack of confusion exhibited by the general public, an audience with no experience in the advertisement buying market; (2) "Slash-It! Sales Event" attained federal incontestable status, so the district court erred in holding that the mark was merely descriptive, and not entitled to strong protection; (3) the promoter created a disputed issue of material fact that the slasher slogans left the same impression, weighing in favor of likelihood of confusion; and (4) the similarities between the two sales allowed for the inference that a reasonable consumer could possibly attribute the products here to the same source. Caliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d 931 (11th Cir. 2010).

Summary judgment was inappropriate as to trademark infringement liability and a deceptive trade practices claim because while the "Xylem" mark was at least suggestive, the marks were substantially similar, and the trademark holder documented over 100 instances of actual confusion resulting from misdirected checks, phone calls, faxes, and emails; the court could not find that no reasonable juror would find there was no confusion created by the accused infringer's use of the Xylem name and mark. ITT Corp. v. Xylem Group, LLC, F. Supp. 2d (N.D. Ga. Aug. 5, 2013).

Disparaging remarks actionable. - Dismissal of a claim under O.C.G.A. § 10-1-372(a)(2) was ordered since that section was deemed to prohibit confusion of trade names, of which there were no allegations in a complaint by a dialysis center against its former medical directors arising from breaches of a non-competition clause; however, there were sufficient statements to deny dismissal of a claim under O.C.G.A. § 10-1-372(a)(8) since it was alleged that disparaging and damaging comments were made about the services at the center, which were entirely untrue, and which were made with the intent to convey the impression that the center's facilities were inferior to other competing facilities. DaVita Inc. v. Nephrology Assocs., P.C., 253 F. Supp. 2d 1370 (S.D. Ga. 2003).

Presumption against a likelihood of confusion is raised if marks have coexisted in the marketplace over a significant period of time with no evidence of actual confusion. However, the presumption may be rebutted by evidence of other factors tending to support a finding of a likelihood of confusion. Ackerman Sec. Sys. v. Design Sec. Sys., 201 Ga. App. 805 , 412 S.E.2d 588 (1991).

False impression not given. - Supplier's claims of unfair competition under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under the Georgia Uniform Deceptive Trade Practices Act, specifically O.C.G.A. § 10-1-372(a) , failed on summary judgment because there was no evidence that a distributor substituted its product on store shelves while suggesting that the source was a supplier or that the distributor's product was manufactured by anyone other than the distributor; further, the supplier failed to allege evidence to support a claim of passing off at the level of retail stores. Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231 (11th Cir. 2007).

Cited in Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252 , 830 S.E.2d 119 (2019).

Relief

Injunctive relief is sole remedy. - Sole remedy provided for a violation of O.C.G.A. § 10-1-372 is injunctive relief. Lauria v. Ford Motor Co., 169 Ga. App. 203 , 312 S.E.2d 190 (1983).

Injunctive relief and damages available for infringement of trade name. - If the right to protection of a trade name exists, the injured party may seek both injunctive relief and damages. Diedrich v. Miller & Meier & Assocs., 254 Ga. 734 , 334 S.E.2d 308 (1985).

Injunctive relief was denied to plaintiff business association pursuant to Georgia's Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because the association failed to show that the actions taken by a federal advisory committee in adopting more stringent threshold limit values for certain chemicals appeared unrelated to the course of a person's business, vocation, or occupation. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, Inc., F. Supp. 2d (M.D. Ga. Nov. 26, 2004).

Monetary relief not available. - A count alleging violation of the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., could not provide a basis for relief because the remedy sought in the complaint, i.e., monetary relief, is not available under the Act. Taylor Auto Group, Inc. v. Jessie, 241 Ga. App. 602 , 527 S.E.2d 256 (1999).

1. Medical Field

No confusion with doctor's business. - Doctor's claims alleging that defendants initiated a peer review process for the purpose of driving the doctor's competing dialysis center out of business were not actionable under O.C.G.A. § 10-1-372(a)(2) of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because nothing in the complaint suggested that defendants used a trade name to cause confusion with the doctor's business. Wood v. Archbold Med. Ctr., F. Supp. 2d (M.D. Ga. June 28, 2006).

Disparaging remarks by doctor not actionable. - Doctor's claims alleging that defendants initiated a peer review process for the purpose of driving the doctor's competing dialysis center out of business were not actionable under O.C.G.A. § 10-1-372(a)(8) of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., because none of defendants' alleged conduct, including the solicitation of the doctor's patients and the refusal to make community-donated blood available to the doctor, involved false or misleading statements of fact. Wood v. Archbold Med. Ctr., F. Supp. 2d (M.D. Ga. June 28, 2006).

Privilege and lack of malice bars recovery by hospital. - Because the defendant's direct testimony was that the defendant was motivated to report the defendant's concerns about the level of emergency room care solely out of a sense of duty and concern for patient safety and that the defendant bore no animus against the plaintiff, because there was no other evidence of ill will, and because there was a showing of privilege in the disclosure of patient information, the plaintiff's failure to show express malice made summary judgment against the plaintiff proper for failure to state a claim under O.C.G.A. § 10-1-372 . Dominy v. Shumpert, 235 Ga. App. 500 , 510 S.E.2d 81 (1998).

Claims against hospital dismissed. - Court dismissed, without prejudice, an uninsured patient's Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., claims against a non-profit hospital and an affiliated health company because: (1) the patient alleged that the defendants violated state and federal law with regard to the defendant's billing practices for uninsured and/or indigent patients and the patient should not have to pay the treatment costs because the hospital was a non-profit hospital; and (2) I.R.S. § 501(c)(3) did not confer subject matter jurisdiction on the court over the patient's trade practice claims because the claims were based on the theory that § 501(c)(3) created an enforceable trust between the hospital and the federal government, and no such trust was created under federal law. Ellis v. Phoebe Putney Health Sys., F. Supp. 2d (M.D. Ga. Apr. 8, 2005).

Because the uninsured patients failed to allege that a non-profit hospital made false or misleading statements with respect to price reductions, but merely alleged that the hospital's disparate pricing was confusing and likely to create a misunderstanding, it failed to adequately state a claim under O.C.G.A. § 10-1-372 . Cox v. Athens Reg'l Med. Ctr., Inc., 279 Ga. App. 586 , 631 S.E.2d 792 (2006).

Claims against health provider dismissed. - Mere fact that the "chargemaster" rates for medical care charged to two uninsured patients pursuant to their contracts with a health care provider exceeded the rates the provider normally charged for medical care covered by insurance and Medicare/Medicaid benefits, even assuming the patients were unaware of the pricing difference, did not establish a violation of the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1 , 633 S.E.2d 68 (2006).

Cancellation of agreement to sell insurance and surgical products. - Insurer's verbal cancellation of a written contract with a marketer to sell health, medical, and surgical insurance products did not constitute the type of deceptive trade practice covered by Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a) , because its actions were not directed at misleading the general public in connection with one of its products. Med S. Health Plans, LLC v. Life of the S. Ins. Co., F. Supp. 2d (M.D. Ga. May 19, 2008).

2. Other Businesses

Use of existing trademark. - Corporate poultry producer and marketer, by adopting and using the trademark GOLDEN MEDALLION on its frozen poultry products, infringed poultry cooperative's existing MEDALLION trademark and engaged in unfair competition and deceptive trade practices. Gold Kist, Inc. v. ConAgra, Inc., 708 F. Supp. 1291 (N.D. Ga. 1989).

Descriptive mark without acquired distinctiveness. - Genuine fact issues existed under § 43(a) of the Lanham Act and the Georgia Unfair Trade Practices Act, O.C.G.A. § 10-1-372(a)(1)-(2), (12), as to whether a corporation's unique coating numbering system, which it accused a competitor of usurping in order to sell surface coating services to mutual clients, was merely a descriptive mark that had not acquired distinctiveness through secondary meaning. Impreglon, Inc. v. Newco Enters., 508 F. Supp. 2d 1222 (N.D. Ga. Mar. 30, 2007).

Use of family name. - This part authorizes injunction restraining use of family name previously appropriated by another as a trade name, when under all the circumstances, such as the other descriptive words of the trade name, the type of business carried on, the geographical area in which the trade name has acquired a meaning, and other distinguishing factors, there remains a likelihood of confusion and misunderstanding among the general public. Baker Realty Co. v. Baker, 228 Ga. 766 , 187 S.E.2d 850 (1972); Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775 , 279 S.E.2d 683 (1981).

Copyright owner sufficiently stated a claim of violation of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. because the customer's employees who received a manual and training materials created by the customer copied in part from an owner's copyrighted manual qualified as members of the public and the limited distribution did not foreclose such a claim. SCQuARE Int'l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).

Use of balloons, costumes, and names of comic book characters by singing telegram company created confusion. DC Comics Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110 (N.D. Ga. 1984).

Liability of telephone directory company for copying directory. - As a result of the special treatment of directories in copyright law, a telephone directory company's copying of the telephone company's compilation was infringement, and the use of a confusing solicitation made the directory company liable for both unfair competition and deceptive trade act violations. Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th Cir. 1985).

Sufficient allegations of unfair practices involving cellular phones. - Because plaintiff cellular telephone trademark holder's complaint properly alleged that defendant competitor was a knowing and willing participant in an enterprise that bought the holder's phones in bulk then altered the phones to circumvent prepaid airtime then resold those phones under the holder's marks, the complaint properly stated claims for unfair competition and deceptive trade practices. Tracfone Wireless, Inc. v. Zip Wireless Prods., 716 F. Supp. 2d 1275 (N.D. Ga. 2010).

Use of "mutual" in name and advertisement of insurance company. - Use of the word "mutual" in the name and advertising of defendant insurance company and defendant's statement, which plaintiffs claimed gave the false impression, in promotional materials that it would pass along to policy holders any savings resulting from efficient operations did not constitute a violation of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., given the clear statements and the company's policy that the plaintiff is entitled to share the company's earnings and savings only to the extent dividends were declared by the board in the board's discretion. A name or promotion violates that Act only if it is misleading or confusing to those using reasonable care. Boynton v. State Farm Mut. Auto. Ins. Co., 207 Ga. App. 756 , 429 S.E.2d 304 (1993).

False impression not given. - Hotel franchisor's use of its name and the term "airport" for a hotel in competition with a franchisee did not violate O.C.G.A. § 10-1-372 , since the designation was accurate and did not create a false impression. Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 130 F.3d 1009 (11th Cir. 1997), modified on other grounds, 139 F.3d 1396 (11th Cir. 1998).

Joint software venture had no likelihood of confusion. - In a lawsuit between business entities over a failed joint venture to develop a multimedia e-mail software program to be marketed to a certain company, there was no showing of a likelihood of confusion as to the source of the program to support a claim under the Unfair and Deceptive Trade Practices Act, O.C.G.A. § 10-1-372(a) . OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141 , 687 S.E.2d 168 (2009).

Trade dress claim infringement. - Plaintiff adequately stated a claim for trade dress infringement; the plaintiff alleged that the plaintiff had a protectable trade dress in the overall shape and profile of the product and the configuration, design, and placement of the door of the plaintiff's electric digital smoker, which adequately identified the features that comprised the plaintiff's alleged trade dress. Masterbuilt Mfg. v. Bruce Foods Corp., F. Supp. 2d (M.D. Ga. Jan. 14, 2011).

Opening office near competitor. - Defendant did not engage in a deceptive trade practice when the defendant leased an office in the same building as the plaintiff, with which it competed, since the defendant used its own name and a different telephone number and there was no evidence that it attempted to pass itself as the plaintiff. Wolff v. Protege Sys., 234 Ga. App. 251 , 506 S.E.2d 429 (1998).

Evidence of improper competition with former employer. - Evidence that a former employee solicited an employer's former students and clients on behalf of the employee's new company, despite promising not to do so, falsely held out as being Project Management Professional certified, falsely represented that the employer's customers were the employee's company's customers, and used nearly duplicate versions of certain course materials without the employer's consent, supported a jury's finding that the employee violated the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208 , 715 S.E.2d 449 (2011), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. 2012).

Amended complaint alleging violation of Georgia Deceptive Trade Practices Act granted. - In an action in which an interexchange carrier asserted it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, it's amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court's denial of summary judgment on the local carrier's counterclaims. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).

Two decades for actual confusion to result. - Claims of trademark infringement and false advertising under 15 U.S.C. § 1125, and violation of the Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372 , were not barred under the doctrine of estoppel by laches, because even though the plaintiff did not take action for over two decades of the parties' coexistence using the disputed mark, the claims did not ripen until the plaintiff learned that the defendant intended to open an office inside the plaintiff's territory, at which time incidents of actual confusion began to occur. Angel Flight of Ga., Inc. v. Angel Flight Southeast, Inc., 424 F. Supp. 2d 1366 (N.D. Ga. 2006).

Association issuing opinion on safety standards not misrepresentation. - Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(8), did not bar a nonprofit professional association from issuing an opinion on workplace safety standards for chemicals because the opinion did not constitute a misleading representation of fact. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Association issuing opinion on safety standards not misrepresentation. - Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(7), does not apply to an entity's formation and dissemination of opinions on workplace safety if the entity is not engaged in the business practices it is evaluating. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Association offering workplace safety opinions. - Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was inapplicable to a national trade group's suit alleging that a nonprofit professional association disparaged the association's members by forming and disseminating the association's opinion about acceptable workplace-safety exposure levels for chemicals because the association was not a consumer or engaged in trade. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Association issuing opinion on safety standards not misrepresentation. - Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(8), did not bar a nonprofit professional association from issuing an opinion on workplace safety standards for chemicals because the opinion did not constitute a misleading representation of fact. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Evidence of improper competition with former employer. - Evidence that a former employee solicited an employer's former students and clients on behalf of the employee's new company, despite promising not to do so, falsely held out as being Project Management Professional certified, falsely represented that the employer's customers were the employee's company's customers, and used nearly duplicate versions of certain course materials without the employer's consent, supported a jury's finding that the employee violated the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208 , 715 S.E.2d 449 (2011), cert. denied, No. S11C1920, 2012 Ga. LEXIS 66 (Ga. 2012).

Amended complaint alleging violation of Georgia Deceptive Trade Practices Act granted. - In an action in which an interexchange carrier asserted it was not obligated to pay fees to a local carrier for misrepresented toll-free cell calls, it's amendment to add claims alleging violations under the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq., common law fraud, and the Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was not futile given the court's denial of summary judgment on the local carrier's counterclaims. ITC Deltacom Communs. v. US LEC Corp., F. Supp. 2d (N.D. Ga. Mar. 15, 2004).

Color trademark owner's infringement claim under 15 U.S.C. § 1114 was not barred by laches because the four year limitations period of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372 , applied and the relevant time period for purposes of laches was the date that the competitors began selling their tennis racquet overgrips that were similar in color to the owner's color mark, which was less than four years prior. Unique Sports Prods., Inc. v. Babolat VS, 403 F. Supp. 2d 1229 (N.D. Ga. 2005).

Claims of trademark infringement and false advertising under 15 U.S.C. § 1125, and violation of the Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-372 , were not barred under the doctrine of estoppel by laches, because even though the plaintiff did not take action for over two decades of the parties' coexistence using the disputed mark, the claims did not ripen until the plaintiff learned that the defendant intended to open an office inside the plaintiff's territory, at which time incidents of actual confusion began to occur. Angel Flight of Ga., Inc. v. Angel Flight Southeast, Inc., 424 F. Supp. 2d 1366 (N.D. Ga. 2006).

Association offering workplace safety opinions. - Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a)(7), does not apply to an entity's formation and dissemination of opinions on workplace safety if the entity is not engaged in the business practices it is evaluating. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., was inapplicable to a national trade group's suit alleging that a nonprofit professional association disparaged the association's members by forming and disseminating the association's opinion about acceptable workplace-safety exposure levels for chemicals because the association was not a consumer or engaged in trade. Int'l Brominated Solvents Ass'n v. Am. Conf. of Governmental Indus. Hygienists, 625 F. Supp. 2d 1310 (M.D. Ga. 2008).

Color trademark owner's infringement claim under 15 U.S.C. § 1114 was not barred by laches because the four year limitations period of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372 , applied and the relevant time period for purposes of laches was the date that the competitors began selling their tennis racquet overgrips that were similar in color to the owner's color mark, which was less than four years prior. Unique Sports Prods., Inc. v. Babolat VS, 403 F. Supp. 2d 1229 (N.D. Ga. 2005).

Cited in Tri-State Culvert Mfg., Inc. v. Tri-State Drainage Prods., Inc., 236 Ga. 157 , 223 S.E.2d 202 (1976); Scientific Applications, Inc. v. Energy Conservation Corp. of Am., 436 F. Supp. 354 (N.D. Ga. 1977); Robert B. Vance & Assocs. v. Baronet Corp., 487 F. Supp. 790 (N.D. Ga. 1979); Martin Luther King, Jr. Ctr. for Social Change, Inc. v. American Heritage Prods., Inc., 508 F. Supp. 854 (N.D. Ga. 1981); Pendigrass v. Edmonds, 247 Ga. 508 , 277 S.E.2d 247 (1981); Ford v. Rollins Protective Servs. Co., 171 Ga. App. 882 , 322 S.E.2d 62 (1984); Currie v. Cayman Resources Corp., 595 F. Supp. 1364 (N.D. Ga. 1984); Original Appalachian Artworks, Inc. v. Schlaifer Nance & Co., 679 F. Supp. 1564 (N.D. Ga. 1987); Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989); DeCelles v. Morgan Cleaners & Laundry, Inc., 261 Ga. App. 690 , 583 S.E.2d 462 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1066 et seq., 1104 et seq. 74 Am. Jur. 2d, Trademarks and Tradenames, §§ 82 et seq., 85 et seq.

False Advertising Under Lanham Act, § 43 (a)(1)(B), 44 POF3d 1.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names and Unfair Competition, §§ 142, 152, 153, 434 et seq.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 2.

ALR. - Right to protection against appropriation of advertising matter or methods, 17 A.L.R. 760 ; 30 A.L.R. 615 ; 5 A.L.R. Fed. 625.

Statute or ordinance in relation to advertising as interference with interstate commerce, 57 A.L.R. 105 ; 115 A.L.R. 952 .

Right of producer or distributor to protection against use of his containers, 60 A.L.R. 285 .

Opportunity of buyer of personal property to ascertain facts as affecting claim of fraud on part of seller in misrepresenting property, 61 A.L.R. 492 .

Protection of business or trading corporation against use of same or similar name by another corporation, 66 A.L.R. 948 ; 72 A.L.R.3d 8; 115 A.L.R. 1241 .

Doctrine of secondary meaning in the law of trademarks and of unfair competition, 150 A.L.R. 1067 .

Damages recoverable for wrongful registration of trademark, 26 A.L.R.2d 1184.

Commercial competitor's truthful denomination of his goods as copies of designs of another, using designer's name, as trademark infringement, unfair competition, or the like, 1 A.L.R.3d 760.

Rights and remedies with respect to another's use of a deceptively similar advertising slogan, 2 A.L.R.3d 748.

Former employee's duty, in absence of express contract, not to solicit former employer's customers or otherwise use his knowledge of customer lists acquired in earlier employment, 28 A.L.R.3d 7.

Unfair competition by direct reproduction of literary, artistic, or musical property, 40 A.L.R.3d 566.

Validity, construction, and effect of state legislation regulating or controlling "bait-and-switch" or "disparagement" advertising or sales practices, 50 A.L.R.3d 1008.

Validity of pyramid distribution plan, 54 A.L.R.3d 217.

Use of "family name" by corporation as unfair competition, 72 A.L.R.3d 8.

Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257.

Health provider's agreement as to patient's copayment liability after award by professional service insurer as unfair trade practice under state law, 49 A.L.R.4th 1240.

What goods or property are "used," "secondhand," or the like, for purposes of state consumer laws prohibiting claims that such items are new, 59 A.L.R.4th 1192.

World wide web domain as violating state trademark protection statute or state unfair trade practices act, 96 A.L.R.5th 1.

Copyright, Under Federal Copyright Act (17 USCS § 1 et seq.), in Advertising Materials, Catalogs, and Price Lists, 5 A.L.R. Fed. 625.

Practices forbidden by state deceptive trade practice and consumer protection acts - pyramid or ponzi or referral sales schemes, 48 A.L.R.6th 511.

Judicial remedies for proceeds and funds from Ponzi schemes, 100 A.L.R.6th 281.

Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4.

10-1-373. Enjoining deceptive trade practices; costs and attorney's fees; relief cumulative.

  1. A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.
  2. Costs shall be allowed to the prevailing party unless the court otherwise directs. The court, in its discretion, may award attorney's fees to the prevailing party if:
    1. The party complaining of a deceptive trade practice has brought an action which he knew to be groundless; or
    2. The party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.
  3. The relief provided in this Code section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.

    (Ga. L. 1968, p. 337, § 3.)

Law reviews. - For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Consumer. - Company's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) made applicable in bankruptcy through Fed. R. Bankr. P. 7012, was denied because nothing in the language of Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., required the debtor to be a consumer or required a consumer to be injured; therefore, the "consumer" issue was irrelevant to standing under the UDTPA. Johnston Indus. Ala., Inc. v. Nat'l Contract Assocs. (In re Johnston Indus.), 300 Bankr. 821 (Bankr. M.D. Ga. 2003).

Injunction is sole remedy. - Sole remedy provided under O.C.G.A. § 10-1-373 is injunctive relief. Lauria v. Ford Motor Co., 169 Ga. App. 203 , 312 S.E.2d 190 (1983).

Sole remedy available under O.C.G.A. § 10-1-373 was injunctive relief; however, a plaintiff had to establish a likelihood of damage to plaintiff by a deceptive trade practice of another. Moore-Davis Motors, Inc. v. Joyner, 252 Ga. App. 617 , 556 S.E.2d 137 (2001).

Because a marketer did not seek injunctive relief, an insurer's verbal cancellation of a written contract with the marketer to sell health, medical, and surgical insurance products did not give rise to a cause of action under Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., specifically O.C.G.A. § 10-1-372(a) , because an injunction was the sole remedy available under O.C.G.A. § 10-1-373 . Med S. Health Plans, LLC v. Life of the S. Ins. Co., F. Supp. 2d (M.D. Ga. May 19, 2008).

In a deceptive trade case, the trial court erred in granting permanent injunctive relief at the interlocutory hearing as the defendant had no notice that the trial court intended at that hearing to consider the merits of permanent injunctive relief. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94 , 772 S.E.2d 660 (2015).

Proof of neither direct competition nor actual confusion is required to obtain relief under O.C.G.A. § 10-1-373 . All that is required is that use of name cause confusion to others using reasonable care. Giant Mart Corp. v. Giant Disct. Foods, Inc., 247 Ga. 775 , 279 S.E.2d 683 (1981).

Proof of falsity is sufficient to sustain a finding of irreparable injury for purposes of a preliminary injunction. Energy Four, Inc. v. Dornier Medical Sys., 765 F. Supp. 724 (N.D. Ga. 1991).

Proof of lost sales. - Plaintiff who can prove actual lost sales is entitled to an injunction even though the decline in the plaintiff's sales is mostly attributable to factors other than the plaintiff's competitor's allegedly false or misleading representations. Because detailed proof of individual lost sales goes to the issue of damages, it is not a prerequisite for equitable relief. Energy Four, Inc. v. Dornier Medical Sys., 765 F. Supp. 724 (N.D. Ga. 1991).

Proof of monetary damages may not be necessary to sustain every cause of action based on the plaintiff's disparagement claim, but a showing that some customer's buying decision was adversely affected is a threshold requirement for each. Servicetrends, Inc. v. Siemens Medical Sys., 870 F. Supp. 1042 (N.D. Ga. 1994).

Confusingly similar names. - This part authorizes injunctions restraining use of a family name previously appropriated by another as a trade name, where under all the circumstances, such as the other descriptive words of the trade name, the type of business carried on, the geographical area in which the trade name has acquired a meaning, and other distinguishing factors, there remains a likelihood of confusion and misunderstanding among the general public. Baker Realty Co. v. Baker, 228 Ga. 766 , 187 S.E.2d 850 (1972).

Infringement of trade names. - If the right to protection of a trade name exists, the injured party may seek both injunctive relief and damages. Diedrich v. Miller & Meier & Assocs., 254 Ga. 734 , 334 S.E.2d 308 (1985).

Chapter 11 debtor was entitled to a preliminary injunction under the Lanham Act, 11 U.S.C. § 1125(a), and O.C.G.A. §§ 10-1-373 and 10-1-451 , against a competing user of its trade name "Reliable Heating and Air" because the debtor clearly demonstrated a substantial likelihood of success on the merits of its claims and demonstrated that it would suffer irreparable harm if an injunction were not issued. Reliable Air, Inc. v. Jape (In re Reliable Air, Inc.), Bankr. (Bankr. N.D. Ga. Sept. 14, 2007).

Denial of interlocutory injunction reversed only for abuse of discretion. - The denial of an interlocutory injunction against alleged deceptive trade practices will not be reversed unless it appears that the trial court has abused the court's discretion. Baker Realty Co. v. Baker, 228 Ga. 766 , 187 S.E.2d 850 (1972).

Requirement of harm. - O.C.G.A. § 10-1-373(a) of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., required the plaintiff dry cleaners to allege they were likely to be damaged by a deceptive trade practice and the allegations that the defendant natural gas supplier disseminated information about future natural gas prices did not pose any future harm, nor were the dry cleaners entitled to injunctive relief for a hypothetical future harm; thus, the Deceptive Trade Practices Act claims failed. Byung Ho Cheoun v. Infinite Energy, Inc., F.3d (11th Cir. Jan. 27, 2010)(Unpublished).

Punitive damages. - Trademark holder was not entitled to summary judgment regarding punitive damages under Georgia state law because O.C.G.A. § 10-1-373 applied only to causes of action for torts arising before July 1, 1987, and this issue was required to be decided only if there was an award of damages in the action for trademark infringement. ITT Corp. v. Xylem Group, LLC, F. Supp. 2d (N.D. Ga. Aug. 5, 2013).

Attorneys' fees determined in bifurcated proceeding. - When an alleged Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 , et seq., violation is one of several claims being tried, the UDTPA contemplates a bifurcated proceeding. The statute anticipates that the fact finder will first determine the prevailing party before the trial court makes a decision as to whether an award of attorney fees is warranted. Logically, therefore, neither party would present evidence as to their attorney fees during the trial, and the issue is not required to be raised in the pretrial order. Bearoff v. Craton, 350 Ga. App. 826 , 830 S.E.2d 362 (2019).

Cited in Tri-State Culvert Mfg., Inc. v. Tri-State Drainage Prods., Inc., 236 Ga. 157 , 223 S.E.2d 202 (1976); Rolls-Royce Motors, Ltd. v. A & A Fiberglass, Inc., 428 F. Supp. 689 (N.D. Ga. 1977); Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833 (11th Cir. 1983); Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th Cir. 1985); Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989); Intown Enters., Inc. v. Barnes, 721 F. Supp. 1263 (N.D. Ga. 1989); Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801 , 485 S.E.2d 22 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 1066 et seq. 74 Am. Jur. 2d, Trademarks and Tradenames, § 128 et seq.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names and Unfair Competition, §§ 336 et seq., 381, 382, 434, 458.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 3.

ALR. - Right to protection against appropriation of advertising matter or methods, 17 A.L.R. 760 ; 30 A.L.R. 615 ; 5 A.L.R. Fed. 625.

Right of producer or distributor to protection against use of his containers, 60 A.L.R. 285 .

Doctrine of secondary meaning in the law of trademarks and of unfair competition, 150 A.L.R. 1067 .

Punitive or exemplary damages as recoverable for trademark infringement or unfair competition, 47 A.L.R.2d 1117.

Rights and remedies with respect to another's use of a deceptively similar advertising slogan, 2 A.L.R.3d 748.

Right of charitable or religious association or corporation to protection against use of same or similar name by another, 37 A.L.R.3d 277.

Right to private action under state consumer protection Act, 62 A.L.R.3d 169.

Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257.

Right to private action under state consumer protection act - Equitable relief available, 115 A.L.R.5th 709.

Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4.

Copyright, Under Federal Copyright Act (17 USCS § 1 et seq.), in Advertising Materials, Catalogs, and Price Lists, 5 A.L.R. Fed. 625.

10-1-374. Exemptions from part.

  1. This part does not apply to:
    1. Conduct in compliance with the orders or rules of or a statute administered by a federal, state, or local governmental agency;
    2. Publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast, or reproduce material without knowledge of its deceptive character; or
    3. Actions or appeals pending on March 19, 1968.
  2. Paragraphs (2) and (3) of subsection (a) of Code Section 10-1-372 do not apply to the use of a service mark, trademark, certification mark, collective mark, trade name, or other trade identification that was used and not abandoned before March 19, 1968, if the use was in good faith and is otherwise lawful except for this part.

    (Ga. L. 1968, p. 337, § 4.)

JUDICIAL DECISIONS

Unfair insurance practices not subject to Georgia's Uniform Deceptive Trade Practices Act. - Pursuant to O.C.G.A. § 10-1-374(a)(1), insurance transactions are exempt from Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq. Claims of unfair trade practices in insurance transactions are instead governed by the Georgia Insurance Code. Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga. App. 28 , 676 S.E.2d 428 (2009), cert. denied, No. S09C1241, 2009 Ga. LEXIS 805 (Ga. 2009).

Conduct in compliance with statute administered by state agency exempt. - Trial court erred in denying the Georgia Lottery Corporation's motion to dismiss the appellee's claim under Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq, as the appellee's UDTPA claim for injunctive relief against the Georgia Lottery Corporation was barred by sovereign immunity because the UDTPA did not expressly waive the state's sovereign immunity; did not specifically create a cause of action against the state; and exempted conduct in compliance with a statute administered by a state agency, and the Georgia Lottery Corporation was a state agency created by statute to administer the lottery. Ga. Lottery Corp. v. Patel, 353 Ga. App. 320 , 836 S.E.2d 634 (2019).

RESEARCH REFERENCES

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names and Unfair Competition, §§ 142 et seq., 165 et seq., 434.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 4.

ALR. - Commercial competitor's truthful denomination of his goods as copies of designs of another, using designer's name, as trademark infringement, unfair competition, or the like, 1 A.L.R.3d 760.

10-1-375. Uniform construction of part.

This part shall be construed to effectuate its general purpose to make uniform the law of those states which enact it.

(Ga. L. 1968, p. 337, § 5.)

JUDICIAL DECISIONS

Cited in Johnston Indus. Ala., Inc. v. Nat'l Contract Assocs. (In re Johnston Indus.), 300 Bankr. 821 (Bankr. M.D. Ga. 2003).

RESEARCH REFERENCES

C.J.S. - 82 C.J.S., Statutes, § 364 et seq.

U.L.A. - Uniform Deceptive Trade Practices Act (1966 Revision) (U.L.A.) § 5.

PART 1A A DMINISTRATIVE RESOLUTION

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1997, this part, enacted as Part 0.5, Code Sections 10-1-365 through 10-1-367, was redesignated as Part 1A and renumbered as Code Sections 10-1-380 through 10-1-382, and internal references were redesignated to reflect the renumbering.

Cross references. - Charitable gift annuities, T. 33, C. 58.

10-1-380. Attorney General defined.

As used in this article, the term "Attorney General" means the Attorney General or his or her designee.

(Code 1981, § 10-1-380 , enacted by Ga. L. 1997, p. 1511, § 1; Ga. L. 1998, p. 128, § 10; Ga. L. 2015, p. 1088, § 1/SB 148.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section, which read: "As used in this article, the term 'administrator' means the person appointed by the Governor pursuant to Code Section 10-1-395 or his or her designee."

10-1-381. Final order; collection of judgment; disbursement of funds, consumer preventive education plan.

  1. The Attorney General may file in the superior court of the county in which a person under order resides, or in the county in which the violation occurred, or, if the person is a corporation, in the county in which the corporation maintains its principal place of business, a certified copy of a final order issued pursuant to this article by the Attorney General which is unappealed from or a final order of an administrative law judge issued pursuant to this article which is unappealed from or a final order of an administrative law judge issued pursuant to this article which is affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by the court.
  2. The Attorney General may file in the superior court of the county in which the person obligated to pay funds over to the Attorney General resides, or in the county in which the violation or alleged violation occurred, or, if the person is a corporation, in the county in which the corporation maintains its principal place of business, a certified copy of any document under which funds are due to the Attorney General based on obligations created in the administration of this article, whether obtained through official action, compromise, settlement, assurance of voluntary compliance, or otherwise, and are delinquent according to the terms of the document creating the obligation, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by the court.
  3. The court shall specify that any funds to be collected under the judgment shall be disbursed by the Attorney General in accordance with the terms of the original order or in accordance with the terms of the original document creating the obligation, subject to the provisions of Code Section 10-1-382. Such funds may have been designated in the original order or in the original document to be applied to consumer restitution, to reimbursement of funds from which investigative expenses were paid, to civil penalties to be disbursed into the consumer preventive education plan, to civil penalties to be disbursed into the state general fund, or any combination thereof.
  4. In original orders or original documents the Attorney General may designate that civil penalties shall be applied to the consumer preventive education plan; in that event, such funds shall not be applied in an aggregate amount which is any greater than the amount of funds appropriated for the consumer preventive education plan. Any amount of civil penalties which exceeds the appropriation for the consumer preventive education plan shall be disbursed into the state general fund.
  5. All judgments obtained pursuant to this Code section shall be considered delinquent if unpaid 30 calendar days after the judgment is rendered.
  6. The Attorney General is authorized to establish a consumer preventive education plan. (Code 1981, § 10-1-381 , enacted by Ga. L. 1997, p. 1511, § 1; Ga. L. 1998, p. 128, § 10; Ga. L. 2015, p. 1088, § 1/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" throughout this Code section.

10-1-382. Collection fees.

In addition to any amount owed under a judgment rendered under Code Section 10-1-381 or 10-1-397, a delinquent party shall be responsible by operation of law for a collection fee equal to 40 percent of the amount of the judgment as if such collection fee had been included as part of the judgment. The Attorney General may contract with collection attorneys to collect all or any remaining part of such amounts due under a judgment rendered under Code Section 10-1-381 or 10-1-397. All funds collected by any such collection attorneys shall be remitted to the Attorney General for disbursement.

(Code 1981, § 10-1-382 , enacted by Ga. L. 1997, p. 1511, § 1; Ga. L. 2015, p. 1088, § 1/SB 148.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, the subsection (a) designation was deleted.

PART 2 F AIR BUSINESS PRACTICES ACT

Cross references. - Restrictions on sale or advertising of used motor vehicles displayed or parked, § 40-2-39.1 .

Law reviews. - For article explaining the Unfair Trade Practices and Consumer Protection Act, proposed in Georgia in 1973, see 10 Ga. St. B. J. 409 (1974). For article surveying Georgia cases dealing with commercial law from June 1977 through May 1978, see 30 Mercer L. Rev. 15 (1978). For article, "Corporate Software Piracy: Is Your Client (or Your Firm) Liable?," see 22 Ga. St. B. J. 30 (1985). For note, "Consumer Protection in Georgia: The Fair Business Practices Act of 1975," see 25 Emory L. J. 445 (1976).

JUDICIAL DECISIONS

O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10 is cumulative of other laws and is not exclusive. Pendigrass v. Edmonds, 247 Ga. 508 , 277 S.E.2d 247 (1981).

Claim under Fair Business Practices Act adjudicated by dismissal of federal suit. - When an accord and satisfaction agreed to between the parties was expressly limited to certain truth-in-lending claims under 15 U.S.C. § 1601 et seq. and 12 C.F.R. § 226.1 et seq. between the parties, the dismissal of the suit brought under that federal Act did not operate as an adjudication of a cause of action under the Fair Business Practices Act, since the two statutes are predicated upon different goals and remedies. Standish v. Hub Motor Co., 149 Ga. App. 365 , 254 S.E.2d 416 (1979).

"Intentionally deceiving" buyer not required. - Car dealer violated the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., when although the dealer had allegedly not "intentionally deceived" a buyer, the dealer had ample reason to know the dealer had misrepresented to the buyer the actual mileage of a car. When the dealer had purchased the vehicle, the dealer received an odometer disclosure statement, signed by the dealer's employee, indicating the vehicle had been driven in excess of 20,000 miles, but furnished the buyer with a statement showing the vehicle's mileage as 4,172 miles, and later informed the state that this mileage figure was inaccurate. Crown Ford, Inc. v. Crawford, 221 Ga. App. 881 , 473 S.E.2d 554 (1996).

Cited in Lancaster v. Eberhardt, 141 Ga. App. 534 , 233 S.E.2d 880 (1977); DeLoach v. Foremost Ins. Co., 147 Ga. App. 124 , 248 S.E.2d 193 (1978); Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. 379 , 262 S.E.2d 820 (1979); Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496 (5th Cir. 1979); Greenbriar Dodge, Inc. v. May, 155 Ga. App. 892 , 273 S.E.2d 186 (1980); Martin Luther King, Jr. Ctr. for Social Change, Inc. v. American Heritage Prods., Inc., 508 F. Supp. 854 (N.D. Ga. 1981); Remler v. Shiver, 200 Ga. App. 391 , 408 S.E.2d 139 (1991).

RESEARCH REFERENCES

Violation of the Truth-In-Lending Act and Regulation Z, 73 POF3d 275.

ALR. - Consumer picketing to protest products, prices, or services, 62 A.L.R.3d 227.

Scope and exceptions of state deceptive trade practice and consumer protection Acts, 85 A.L.R.3d 399.

Practices forbidden by state deceptive trade practice and consumer protection Acts, 89 A.L.R.3d 449.

Implied warranty coverage for service transactions under state consumer protection and deceptive trade statutes, 72 A.L.R.4th 282.

Coverage of leases under state consumer protection statutes, 89 A.L.R.4th 854.

What constitutes Truth in Lending Act violation which "was not intentional and resulted from bona fide error not withstanding maintenance of procedures reasonably adapted to avoid any such error" within meaning of § 130(c) of Act (15 USCA § 1640(c)), 153 A.L.R. Fed. 193.

Fees Expressly Authorized by Costs of Collection Clause in Agreement Under Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692f(1), 53 A.L.R. Fed. 3d 4.

10-1-390. Short title.

This part shall be known and may be cited as the "Fair Business Practices Act of 1975."

(Ga. L. 1975, p. 376, § 1; Ga. L. 2015, p. 1088, § 2/SB 148.)

Cross references. - Violations of requirement to place security freeze on consumer credit report, § 10-1-914 .

Violation of Fair Business Practice Act for selling or holding cigarettes to which tax stamp is illegally affixed, § 48-11-23.1 .

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

Law reviews. - For article, "Consumer Disclosure in the 1990s", see 9 Ga. St. U.L. Rev. 777 (1993). For article, "Multiple Sources of Consumer Law and Enforcement" (Or: 'Still in Search of a Uniform Policy'), see 9 Ga. St. U.L. Rev. 881 (1993). For article, "Problems Arising Out of the Use of 'WWW.Trademark.Com': The Application of Principles of Trademark Law to Internet Domain Name Disputes," see 13 Ga. St. U.L. Rev. 455 (1997). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey on class actions, see 62 Mercer L. Rev. 1107 (2011). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For review of 1996 commerce and trade legislation, see 13 Ga. St. U.L. Rev. 33 (1996).

JUDICIAL DECISIONS

Applicability to natural persons. - The 1996 amendment of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., negates any legislative intent that the act apply to business entities. It applies to natural persons. Blue Cross & Blue Shield of Ga., Inc. v. Kell, 227 Ga. App. 266 , 488 S.E.2d 735 (1997).

Federal preemption. - Consumer's claim under Georgia's Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., was preempted by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., because the consumer alleged that defendants, a business, a debt collector, and a creditor, violated Georgia's act through the use of unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade and commerce. Russell-Allgood v. Resurgent Capital Servs., L.P., 515 F. Supp. 2d 1307 (N.D. Ga. 2007).

Residential mortgage transactions not covered. - Mortgagor's apparent claims under the Georgia Fair Business Practices Act (GFBPA), O.C.G.A. § 10-1-390 et seq., were dismissed because the mortgagor did not identify what the alleged misrepresentations were or the damages; the GFBPA did not apply to residential mortgage transactions that did not affect the consuming public generally. Zinn v. GMAC Mortg., F. Supp. 2d (N.D. Ga. Feb. 21, 2006).

Lanham Act not analogous. - In an action by a manufacturer against a competitor under the Lanham Act (15 U.S.C. § 1125(a)) for trade dress infringement, it was error to apply the statute of limitations in the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., since the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq., is the proper analogous statute to apply for such purpose. Kason Indus. v. Component Hdwe. Group, 120 F.3d 1199 (11th Cir. 1997).

Construction with Federal Arbitration Act. - Boilerplate, mandatory arbitration clause in a cable television subscription contract was enforceable under the Federal Arbitration Act, 9 U.S.C. § 2, which preempted the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the contract's class action waiver clause was not unconscionable under Georgia law. Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).

Fair Business Practices Act claim covered by arbitration clause. - Trial court erred in refusing to compel arbitration as to all counts of buyers' complaint against a seller to recover damages for construction defects in the buyers' new home because the claim the buyers asserted under the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., was covered by the arbitration clause of the parties' agreement since the arbitration clause of the agreement was specifically included within the ambit of the Georgia Arbitration Code (GAC) by O.C.G.A. § 9-9-2(c)(8) when the parties initialed the arbitration clause as required by the GAC; because the GAC applied to the agreement's arbitration clause by reason of § 9-9-2(c)(8), the arbitration clause was not excluded from the GAC by the "consumer transactions" exception of § 9-9-2(c)(7). Order Homes, LLC v. Iverson, 300 Ga. App. 332 , 685 S.E.2d 304 (2009).

Effect of failure to specify unfair and deceptive act. - Individual's Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., counterclaim failed as the individual failed to specify the unfair and deceptive act that constituted a violation of the Act. Alexander v. A. Atlanta Autosave, Inc., 272 Ga. App. 73 , 611 S.E.2d 754 (2005).

Relation back of amended complaint. - Creditor's claim for violation of Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., was based on the construction of the creditor's home, which the creditor attempted to set out in the creditor's original complaint. While the amended complaint was substantially more thorough, it merely asserted a new legal theory arising out of the same conduct asserted in the original complaint, and thus, the FBPA claim was not time-barred because the claim related back to the original complaint. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).

Not deceptive for association to stop water service for nonpayment. - Nothing in Georgia's Fair Business Practices Act (GFBPA), O.C.G.A. § 10-1-390 et seq., arguably implied that it was unfair or deceptive for a homeowners association or the associations' management company, after providing notice, to stop water service for admitted nonpayment (particularly when the other homeowners have to pay higher assessments as a result of the delinquencies). Harris v. Liberty Cmty. Mgmt., 702 F.3d 1298 (11th Cir. 2012).

Showing required by plaintiff similar to fraud claim. - Like a claim for common-law fraud, a claim under the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq., requires a showing that a defendant committed a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780 , 732 S.E.2d 297 (2012).

Judgment on the pleadings in favor of auto dealership in error. - Trial court erred by granting an auto dealership judgment on the pleadings as to a buyer's consumer fraud suit because it could not be said, as a matter of law, that the buyer would not be unable to show that the reliance on representations that the minivan was undamaged and never had been in a wreck was reasonable. Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 , 766 S.E.2d 24 (2014).

Trial court erred by granting summary judgment to an auto dealership on a buyer's claim for fraud against the dealership because the record created a question of fact as to whether the dealership issued a substantially inaccurate odometer statement even when more than one employee either knew that the written statement was false or recklessly disregarded the possibility that it was so. Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798 , 775 S.E.2d 172 (2015).

Buyer proved violations. - Trial court properly denied an auto sales company's motion for directed verdict as to the buyer's claims of fraud and violation of the fair business and odometer statutes because the company pointed to no evidence that the buyer was put on notice that the odometer reading was false or that the car did not have a valid emissions inspection at the time of the sale plus the buyer testified that the company responded that the odometer reflected the car's actual mileage. Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873 , 783 S.E.2d 389 (2016).

Debtors were not misled, deceived, or otherwise misled. - Trial court properly granted summary judgment to a creditor because the debtors did not allege or show that the debtors were misled, deceived, or otherwise duped by the different dates given for the assignment of the debt and even if the failure to itemize the court costs in a letter was a false statement, the debtors failed to point to specific evidence that the omission was material in order to have an actionable Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., claim. Summer v. Sec. Credit Servs., LLC, 335 Ga. App. 197 , 779 S.E.2d 124 (2015), cert. denied, 2016 Ga. LEXIS 284 (Ga. 2016).

Summary judgment. - Because pool installers failed to respond to a pool purchaser's request for admissions, pursuant to O.C.G.A. § 9-11-36(a) , those admissions were deemed admitted and were sufficient to establish the purchaser's claims of fraud and conspiracy to defraud and, accordingly, summary judgment was properly granted to the purchaser on those claims; however, summary judgment to the purchaser was error on the claim that the installers violated the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as there was no evidence that the actions by the installers were introduced into the stream of commerce or were reasonably intended to impact on any market other than on the purchaser, and the commensurate awards of attorney fees and treble damages, pursuant to O.C.G.A. § 10-1-399(c) and (d), were vacated. Brown v. Morton, 274 Ga. App. 208 , 617 S.E.2d 198 (2005).

Trial court erred by failing to grant a succeeding franchisee's motion for summary judgment in a fraud suit brought by car dealership consumers as the consumers failed to establish the succeeding franchisee's participation or involvement in any of the complained of transactions; thus, no unfair business violations were established, and no direct claim against a transferee was permitted under the Bulk Transfer Act, O.C.G.A. § 11-6-101 et seq. Additionally, the consumers' claims under Georgia's Racketeer Influenced and Corrupt Organizations statute, O.C.G.A. § 16-14-1 et seq., likewise failed since the uncontroverted evidence established without question that the succeeding franchisee did not make any misrepresentations to the consumers nor participated in any of the transactions that formed the basis of the consumers' claims. Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875 , 681 S.E.2d 681 (2009).

Trial court erred in granting summary judgment on the buyers' fraud and Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claims because the evidence was in conflict regarding the timing of the disclosure of the vehicle's accident history; thus, it could not be said that reliance on any oral representations was unreasonable and therefore inadequate to sustain a fraud or FBPA claim or that the seller did not engage in a deceptive act prohibited by the FBPA. Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376 , 789 S.E.2d 224 (2016).

Terms of warranty not proved. - Summary judgment should have been granted to a store, pursuant to O.C.G.A. § 9-11-56(c) , in an action by a dissatisfied customer which asserted causes of action for breach of an express warranty and a violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the customer failed to offer evidence of the terms of the warranty, which made both claims lack any foundation; the alleged warranty was based on a store employee's notation on the customer's receipt that the kitchen cabinets which the customer purchased had a "10-year warranty," but there was no indication of any further terms, so there was no enforceable warranty proven. Home Depot U.S.A., Inc. v. Miller, 268 Ga. App. 742 , 603 S.E.2d 80 (2004).

No violation as Fair Debt Collections Practices Act not violated. - Defendant did not violate the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692, and, therefore, did not violate the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because: (1) the defendant timely responded to the plaintiff's first dispute on August 19, 2016; (2) the plaintiff signed for the response on August 24, 2016; (3) the defendant sent the plaintiff the Notice of Foreclosure Sale on August 19, 2016; (4) the defendant caused the first publication of the Notice of Sale on September 7, 2016, after the defendant responded to the plaintiff's dispute and verified the plaintiff's debt; and (5) the FDCPA required a debt collector to validate a debt only after the debt collector's initial communication with the consumer. Hughes v. J.P. Morgan Chase (In re Hughes), Bankr. (Bankr. N.D. Ga. Mar. 28, 2019).

Measure of damages. - Award for general damages under the Fair Business Practices Act (Act), O.C.G.A. § 10-1-390 et seq., is limited to those damages that can be measured by an actual injury suffered, and the general provisions of O.C.G.A. § 51-12-2 are not applicable; furthermore, claims under the Act for equitable relief, exemplary damages, treble damages, and attorney's fees are dependent on actual injury or damage resulting from a violation of the Act. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137 , 610 S.E.2d 68 (2005).

Judgment was properly entered in favor of the plaintiff on the defendant's counterclaim under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., as the defendant did not establish damages resulting from a violation of the FBPA because the defendant did not refute the trial court's finding that no evidence was presented that the defendant or the defendant's property was injured or harmed as a result of the repairs made to the defendant's home by the subcontractors; the defendant did not identify any record evidence suggesting that the value of the repairs was less than $41,355.92; and the defendant did not identify evidence of any injury to the defendant or the defendant's property that might have resulted from the existence of the plaintiff's lien. Ussery v. Goodrich Restoration, Inc., 341 Ga. App. 390 , 800 S.E.2d 606 (2017).

Attorney fees. - O.C.G.A. § 10-1-835 adopts the private remedies available under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., which includes awards of reasonable attorney fees and litigation expenses under O.C.G.A. § 10-1-399(d) . Galardi v. Steele-Inman, 259 Ga. App. 249 , 576 S.E.2d 555 (2002).

Treble damages properly awarded. - When punitive damages of $500,000 was awarded in a homeowner's suit against a construction company for failing to remedy a defect in the homeowner's house, in which the homeowner was awarded $100,000 as compensatory damages, and that award was reduced, pursuant to the statutory cap in O.C.G.A. § 51-12-5.1(g) , to $250.000, and, under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., treble damages could be awarded for similar conduct, the award did not exceed constitutional limitations. Bowen & Bowen Constr. Co. v. Fowler, 265 Ga. App. 274 , 593 S.E.2d 668 (2004).

Cited in Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932 , 311 S.E.2d 216 (1983); Griffith v. Stovall Tire & Marine, Inc., 169 Ga. App. 461 , 313 S.E.2d 156 (1984); Credithrift of Am., Inc. v. Whitley, 190 Ga. App. 833 , 380 S.E.2d 489 (1989); Great Am. Bldrs., Inc. v. Howard, 207 Ga. App. 236 , 427 S.E.2d 588 (1993); Georgia ex rel. Adm'r of Fair Bus. Practices Act v. Family Vending, Inc., 171 Bankr. 907 (Bankr. N.D. Ga. 1994); Baranco, Inc. v. Bradshaw, 217 Ga. App. 169 , 456 S.E.2d 592 (1995); Eason Publications, Inc. v. Nationsbank, 217 Ga. App. 726 , 458 S.E.2d 899 (1995); Wingate v. Ridgeview Inst., Inc., 233 Ga. App. 649 , 504 S.E.2d 714 (1998); Touchton v. Amway Corp., 247 Ga. App. 269 , 543 S.E.2d 782 (2000); Campbell v. Beak, 256 Ga. App. 493 , 568 S.E.2d 801 (2002); Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79 , 663 S.E.2d 779 (2008); Tookes v. Murray, 297 Ga. App. 765 , 678 S.E.2d 209 (2009); Salvador v. Bank of Am., N.A. (In re Salvador), 456 Bankr. 610 (Bankr. M.D. Ga. 2011); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259 , 749 S.E.2d 821 (2013); McConnell v. Department of Labor, 337 Ga. App. 457 , 787 S.E.2d 794 (2016).

RESEARCH REFERENCES

Defense of a Domain Name Dispute, 87 Am. Jur. Trials 75.

ALR. - Right to private action under state consumer protection act - Preconditions to action, 117 A.L.R.5th 155.

Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.

10-1-391. Purpose and construction of part.

  1. The purpose of this part shall be to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce in part or wholly in the state. It is the intent of the General Assembly that such practices be swiftly stopped, and this part shall be liberally construed and applied to promote its underlying purposes and policies.
  2. It is the intent of the General Assembly that this part be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended.

    (Ga. L. 1975, p. 376, § 1; Ga. L. 2015, p. 1088, § 2/SB 148.)

Cross references. - Certain security and other consumer transactions excluded from Commercial Code, § 11-2-102 .

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

Law reviews. - For article, "The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement," see 24 Ga. St. U.L. Rev. 663 (2008). For note, "Cybersecurity on my Mind: Protecting Georgia Consumers from Data Breaches," see 51 Ga. L. Rev. 265 (2016). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Purpose. - Objective of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is elimination of deceptive acts and practices in "consumer marketplace." Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Liberal construction. - The Fair Business Practices Act is to be liberally construed and applied to promote its underlying purposes and policies, which are to protect consumers. Standish v. Hub Motor Co., 149 Ga. App. 365 , 254 S.E.2d 416 (1979).

Part applies to consumers market. - Legislature intended to limit scope of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to the consumer market. Its coverage is limited to activities in the conduct of consumer transactions and consumer acts or practices in trade or commerce. Larson v. Tandy Corp., 187 Ga. App. 893 , 371 S.E.2d 663 (1988).

Part applied to debt collection. - A debtor who was provided medical services could recover against a collection agency under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq. A consumer transaction occurred when the debtor was provided medical services, and collecting a debt incurred by a consumer for medical services could harm the general consuming public if conducted deceptively; moreover, the trial court found that the agency violated the Fair Debt Collection Practices Act (FDCPA), under 15 U.S.C. § 1692 l (a), a violation of the FDCPA was a violation of the Federal Trade Commission Act (FTCA), and the FBPA was to be construed consistently with interpretations of the FTCA. 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457 , 654 S.E.2d 428 (2007).

To be subject to the Fair Business Practices Act, the allegedly offensive activity must have taken place "in the conduct of . . . consumer acts or practices," i.e., within the context of consumer marketplace. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8 , 244 S.E.2d 15 , aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294 , 249 S.E.2d 87 (1978); Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Any act or practice which is outside the context of the public consumer marketplace, no matter how unfair or deceptive, is not directly regulated by O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10. O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988).

Even if a homeowner's debt survived cancellation, a history of the debt was insufficient to prove a chain of valid written assignments from the original creditor to the assignee under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Fair Business Practices Act, O.C.G.A. § 10-1-391 et seq. Arrow Fin. Servs., LLC v. Wright, 311 Ga. App. 319 , 715 S.E.2d 725 (2011), cert. denied, No. S11C1924, 2012 Ga. LEXIS 51 (Ga. 2012).

Part applied to banks. - After the plaintiff bank customers alleged the defendant bank had a practice of manipulating the posting of transactions to impose overdraft fees, such claims under O.C.G.A. §§ 10-1-391 , 10-1-393 , and 10-1-399 , were not preempted under the National Bank Act regulations and if the allegations that the bank shrouded the bank's actions in a broadly worded "largest-to-smallest" transaction posting policy, unqualified by time limits or other restrictions, the plaintiff stated claims under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. White v. Wachovia Bank, N.A., 563 F. Supp. 2d 1358 (N.D. Ga. 2008).

Consumers' lack of diligence not protected. - It is not the intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to protect consumers from their own lack of diligence and to render every written and ostensibly final sale of a product a potential source of liability for the seller. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903 , 354 S.E.2d 440 (1987).

Part inapplicable to actions based on violation of HUD regulations. - Violation of Department of Housing and Urban Development (HUD) regulations by a mortgagee would not support a private action by the mortgagor against the mortgagee under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Krell v. National Mtg. Co., 214 Ga. App. 503 , 448 S.E.2d 248 (1994).

Federal Trade Commission Act standards apply. - Federal Trade Commission Act, 15 U.S.C. § 45, is expressly made the appropriate standard by which purpose and intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is to be effectuated, implemented, and construed. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

District court erred when the court denied a consumer's motion for default judgment on the consumer's claim that a debt collector violated Georgia's Fair Business Practices Act of 1975 (FBPA), O.C.G.A. § 10-1-390 et seq., because the consumer's alleged debt was incurred during a consumer transaction for lawn care services, and the consumer pled facts in the consumer's complaint sufficient to establish that the collector was part of the consumer credit and debt collection industry, and further, the collector's conduct necessarily violated the FBPA when it violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692-92p, as the FBPA was to be interpreted in accordance with the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), pursuant to O.C.G.A. § 10-1-391(b) , and for purpose of the exercise by the Commission of its functions and powers under the Federal Trade Commission Act, a violation of the FDCPA should be deemed an unfair or deceptive act or practice in violation of that Act pursuant to 15 U.S.C. § 1692l(a). Gilmore v. Account Mgmt., F.3d (11th Cir. Dec. 16, 2009).

Consumer contract not void or voidable. - The purpose of the Fair is to protect consumers from unfair or deceptive practices in conduct of any trade or commerce, but it does not declare a consumer contract which violates it to be void or voidable so as to rescind the contract or otherwise set it aside. Little v. Paco Collection Servs., Inc., 156 Ga. App. 175 , 274 S.E.2d 147 (1980).

Not every breach of contract deemed violation of part. - The Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is no panacea for the congenital ills of the marketplace and does not instantly convert every alleged breach of contract into a violation. DeLoach v. Foremost Ins. Co., 147 Ga. App. 124 , 248 S.E.2d 193 (1978).

Unfair act or deceptive practice is prerequisite. - A prerequisite to stating a claim for relief under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is the commission of some unfair act or deceptive practice from which the Act is designed to protect the public. Castellana v. Conyers Toyota, Inc., 200 Ga. App. 161 , 407 S.E.2d 64 (1991).

Private transactions. - O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10 does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction. Waller v. Scheer, 175 Ga. App. 1 , 332 S.E.2d 293 (1985); Rivergate Corp. v. McIntosh, 205 Ga. App. 189 , 421 S.E.2d 737 , cert. denied, 205 Ga. App. 901 , 421 S.E.2d 737 (1992); Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998).

Medium used and market impacted are determinative. - In analyzing whether defendant's allegedly wrongful activities are in violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to protect the public or an "isolated" incident not covered under the Act two factors are determinative: (a) medium through which act or practice is introduced into stream of commerce; and (b) market on which act or practice is reasonably intended to impact. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Businessperson and consumer in underlying transaction required. - For there to be a "consumer marketplace," the underlying transaction must involve a businessperson as well as a consumer. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Potential harm to consumer public required. - Unless it can be said that defendant's actions had or have potential harm for consumer public, the act or practice cannot be said to have "impact" on consumer marketplace, and any act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq.. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Though the plaintiff may be a "consumer" with regard to the transaction, if the deceptive or unfair act or practice had or has no potential for harm to general consuming public, the allegedly wrongful act of the defendant was not made in the context of the consumer marketplace. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Misrepresentation as to single parcel. - It is arguable that in order to trigger the applicability of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., misrepresentation concerning a single parcel of real property must be made either in the context of a public medium addressed to the general public or, if not made "public," be made in the context of an overall development of a larger tract of which an individual parcel is a part. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Private suit must implement part's purpose of Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. - Purpose and intent of Ga. L. 1975, p. 376, § 1 et seq. is protection of public, and a private suit under Ga. L. 1975, p. 376, § 10 may be brought only if it implements that underlying purpose and intent. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Notice under Fair Business Practices Act. - A trial court erred in granting summary judgment to an auto dealership in a purchaser's suit asserting fraud and violations of Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., with regard to the purchase of a vehicle as genuine issues of material fact existed as to each element, and the purchaser's certified letter to the auto dealership was sufficient to satisfy the ante litem notice requirement of the Act; it was irrelevant that the sale was rescinded as there was evidence that the auto dealership offered a vehicle for sale that was not the more valuable model that the dealership represented; and the merger clause in the purchase agreement did not prevent the purchaser from standing on any representation allegedly made by a salesperson since that provision directly contradicted the express provisions of the Act. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79 , 663 S.E.2d 779 (2008).

No remedy for private wrongs not affecting consumer public. - Stated intent of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is to protect public from acts and practices which are injurious to consumers, not to provide additional remedy for private wrongs which do not and could not affect consuming public generally. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Ga. L. 1975, p. 376, § 10, providing for private right of action, was enacted to give effect to intent of General Assembly that such practices be swiftly stopped and is part of the enforcement and regulatory scheme underlying public protection policy of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., and as such it does not create an additional remedy for redress of the private wrongs occurring outside the context of the public consumer marketplace. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

No deceptive act. - Claim under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was subject to summary judgment because the disclaimers, indicating that no refunds would be given and the organization was not responsible for loss related to non-performance, were sufficiently prominent and clear, and were clearly delineated. The bidder had the opportunity to read the policy containing the no refund clause before the bidder attended the auction and the opportunity to read the buyer's agreement before the bidder signed. Wright v. Safari Club Int'l, Inc., 322 Ga. App. 486 , 745 S.E.2d 730 (2013).

Direct-suit wrongdoer must have used channels of consumer commerce. - Legislature has evidenced a clear intent to limit scope of the Fair Business Practices Act to the consumer market, and to be subject to direct suit under the Act, an alleged offender must have done some volitional act to avail oneself of channels of consumer commerce. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8 , 244 S.E.2d 15 , aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294 , 249 S.E.2d 87 (1978); Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Cited in Attaway v. Tom's Auto Sales, Inc., 144 Ga. App. 813 , 242 S.E.2d 740 (1978); DeLoach v. Foremost Ins. Co., 147 Ga. App. 124 , 248 S.E.2d 193 (1978); White v. First Fed. Sav. & Loan Ass'n, 158 Ga. App. 373 , 280 S.E.2d 398 (1981); Taylor v. Bear Stearns & Co., 572 F. Supp. 667 (N.D. Ga. 1983); Griffith v. Stovall Tire & Marine, Inc., 169 Ga. App. 461 , 313 S.E.2d 156 (1984); Paces Ferry Dodge, Inc. v. Thomas, 174 Ga. App. 642 , 331 S.E.2d 4 (1985); Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645 , 391 S.E.2d 467 (1990); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259 , 749 S.E.2d 821 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of Olympic Price Gouging Act. - The Office of Consumer Affairs has jurisdiction under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to address violations of the former Olympic Price Gouging Act, former O.C.G.A. § 43-21-16 , arising out of direct transactions between "hotel operators" and consumers. 1995 Op. Att'y Gen. No. 95-32.

RESEARCH REFERENCES

Am. Jur. 2d. - 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1085, 1104.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, §§ 391, 392, 434.

ALR. - Criminal liability for misappropriation of trade secret, 84 A.L.R.3d 967.

Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.

10-1-392. Definitions; when intentional violation occurs.

  1. As used in this part, the term:
    1. "Attorney General" means the Attorney General or his or her designee.
    2. "Campground membership" means any arrangement under which a purchaser has the right to use, occupy, or enjoy a campground membership facility.
    3. "Campground membership facility" means any campground facility at which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased the right periodically to use the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.
    4. "Career consulting firm" means any person providing services to an individual in conjunction with a career search and consulting program for the individual, including, but not limited to, counseling as to the individual's career potential, counseling as to interview techniques, and the identification of prospective employers. A "career consulting firm" shall not guarantee actual job placement as one of its services. A "career consulting firm" shall not include any person who provides these services without charging a fee to applicants for those services or any employment agent or agency regulated under Chapter 10 of Title 34.
    5. "Child support enforcement" means the action, conduct, or practice of enforcing a child support order issued by a court or other tribunal.
    6. "Consumer" means a natural person.
    7. "Consumer acts or practices" means acts or practices intended to encourage consumer transactions.
    8. "Consumer report" means any written or other communication of any information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, or credit capacity which is used or intended to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:
      1. Credit or insurance to be used primarily for personal, family, or household purposes; or
      2. Employment consideration.
    9. "Consumer reporting agency" or "agency" means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
    10. "Consumer transactions" means the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.
    11. "Department" means the Department of Human Services.
    12. "Documentary material" means the original or a copy, whether printed, filmed, or otherwise preserved or reproduced, by whatever process, including electronic data storage and retrieval systems, of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or record wherever situate.
    13. "Examination" of documentary material means inspection, study, or copying of any such material and the taking of testimony under oath or acknowledgment with respect to any such documentary material.
    14. "File" means, when used in connection with information on any consumer, all of the information on that consumer recorded or retained by a consumer reporting agency regardless of how the information is stored.

      (14.1) "Food" means articles used for food or drink for human consumption, chewing gum, and articles used for components of any such article.

    15. "Going-out-of-business sale" means any offer to sell to the public or sale to the public of goods, wares, or merchandise on the implied or direct representation that such sale is in anticipation of the termination of a business at its present location or that the sale is being held other than in the ordinary course of business and includes, without being limited to, any sale advertised either specifically or in substance to be a sale because the person is going out of business, liquidating, selling his or her entire stock or 50 percent or more of his or her stock, selling out to the bare walls, selling because the person has lost his or her lease, selling out his or her interest in the business, or selling because everything in the business must be sold or that the sale is a trustee's sale, bankruptcy sale, save us from bankruptcy sale, insolvency sale, assignee's sale, must vacate sale, quitting business sale, receiver's sale, loss of lease sale, forced out of business sale, removal sale, liquidation sale, executor's sale, administrator's sale, warehouse removal sale, branch store discontinuance sale, creditor's sale, adjustment sale, or defunct business sale.
    16. "Health spa" means an establishment which provides, as one of its primary purposes, services or facilities which are purported to assist patrons to improve their physical condition or appearance through change in weight, weight control, treatment, dieting, or exercise. The term includes an establishment designated as a "reducing salon," "health spa," "spa," "exercise gym," "health studio," "health club," or by other terms of similar import. A health spa shall not include any of the following:
      1. Any nonprofit organization;
      2. Any facility wholly owned and operated by a licensed physician or physicians at which such physician or physicians are engaged in the actual practice of medicine; or
      3. Any such establishment operated by a health care facility, hospital, intermediate care facility, or skilled nursing care facility.
        1. Discloses to consumers practices relating to the preparation, handling, and sale of any unpackaged food, or food packaged at the premises where it is sold to consumers, if the food is represented to be kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision; and
        2. Complies with the provisions of subsections (b) through (e) of Code Section 10-1-393.11.

      (16.1) "Kosher food disclosure statement" means a statement which:

    17. "Marine membership" means any arrangement under which a purchaser has a right to use, occupy, or enjoy a marine membership facility.
    18. "Marine membership facility" means any boat, houseboat, yacht, ship, or other floating facility upon which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased a right to use periodically, occupy, or enjoy the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.
    19. "Obligee" means a resident of this state who is identified in an order for child support issued by a court or other tribunal as the payee to whom an obligor owes child support.
    20. "Obligor" means a resident of this state who is identified in an order for child support issued by a court or other tribunal as required to make child support payments.
    21. "Office" means any place where business is transacted, where any service is supplied by any person, or where any farm is operated.
    22. "Office supplier" means any person who sells, rents, leases, or ships, or offers to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm.
    23. "Office supply transactions" means the sale, lease, rental, or shipment of, or offer to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm but shall not include transactions in which the goods, services, or property is purchased, leased, or rented by the office or farm for purposes of reselling them to other persons.
    24. "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.

      (24.1) "Presealed kosher food package" means a food package which bears a kosher symbol insignia and is sealed by the manufacturer, processor, or wholesaler at premises other than the premises where the food is to be sold to the public.

    25. "Private child support collector" means an individual or nongovernmental entity that solicits and contracts directly with obligees to provide child support collection services for a fee or other compensation but shall not include attorneys licensed to practice law in this state unless such attorney is employed by a private child support collector.
    26. "Prize" means a gift, award, or other item intended to be distributed or actually distributed in a promotion.
    27. "Promotion" means any scheme or procedure for the promotion of consumer transactions whereby one or more prizes are distributed among persons who are required to be present at the place of business or are required to participate in a seminar, sales presentation, or any other presentation, by whatever name denominated, in order to receive the prize or to determine which, if any, prize they will receive. Promotions shall not include any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote if such condition is clearly and conspicuously disclosed in the promotional advertising and literature and the receipt of the prize does not involve an element of chance. Any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote or upon the payment of money and where the receipt of that prize involves an element of chance shall be deemed to be a lottery under Code Section 16-12-20; provided, however, that nothing in this definition shall be construed to include a lottery operated by the State of Georgia or the Georgia Lottery Corporation as authorized by law; provided, further, that any deposit made in connection with an activity described by subparagraph (b)(22)(B) of Code Section 10-1-393 shall not constitute the payment of money.

      (27.1) "Representation regarding kosher food" means any direct or indirect statement, whether oral or written, including but not limited to an advertisement, sign, or menu and any letter, word, sign, emblem, insignia, or mark which could reasonably lead a consumer to believe that a representation is being made that the final food product sold to the consumer is kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision.

    28. "Trade" and "commerce" mean the advertising, distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services, or any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value wherever situate and shall include any trade or commerce directly or indirectly affecting the people of this state.
  2. An "intentional violation" occurs when the person committing the act or practice knew that his or her conduct was in violation of this part. Maintenance of an act or practice specifically designated as unlawful in subsection (b) of Code Section 10-1-393 after the Attorney General gives notice that the act or practice is in violation of the part shall be prima-facie evidence of intentional violation. For the purposes of this subsection, the Attorney General gives notice that an act or practice is in violation of this part by the adoption of specific rules promulgated pursuant to subsection (a) of Code Section 10-1-394 and by notice in writing to the alleged violator of a violation, if such written notice may be reasonably given without substantially or materially altering the purposes of this part; provided, however, that no presumption of intention shall arise in the case of an alleged violator who maintains a place of business within the jurisdiction of this state with sufficient assets to respond to a judgment under this part, unless such alleged violator has received written notice. The burden of showing no reasonable opportunity to give written notice shall be upon the Attorney General.

    (Ga. L. 1975, p. 376, § 2; Ga. L. 1978, p. 2001, § 1; Ga. L. 1982, p. 1689, §§ 1, 2A, 3; Ga. L. 1984, p. 22, § 10; Ga. L. 1985, p. 938, § 1; Ga. L. 1986, p. 405, § 1; Ga. L. 1986, p. 1046, § 1; Ga. L. 1986, p. 1313, § 1; Ga. L. 1987, p. 794, § 1; Ga. L. 1987, p. 1386, § 1; Ga. L. 1988, p. 13, § 10; Ga. L. 1989, p. 560, § 1; Ga. L. 1996, p. 1030, § 1; Ga. L. 1997, p. 143, § 10; Ga. L. 2001, p. 1245, § 1; Ga. L. 2009, p. 1001, § 2/HB 189; Ga. L. 2010, p. 114, § 3/HB 1345; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, rewrote paragraph (a)(1), which read: "'Administrator' means the administrator appointed pursuant to subsection (a) of Code Section 10-1-395 or his or her delegate."; and substituted "Attorney General" for "administrator" throughout subsection (b).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, the definitions in subsection (a) were arranged in alphabetical order.

Pursuant to Code Section 28-9-5, in 1989, "Going-out-of-business" was substituted for "Going out of business" in paragraph (a)(5.1) (now paragraph (a)(15)).

Pursuant to Code Section 28-9-5, in 2009, "Department of Human Services" was substituted for "Department of Human Resources" in paragraph (a)(11).

Editor's notes. - Ga. L. 2009, p. 1001, § 6/HB 189, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all contracts for private collection of child support payments entered into on or after July 1, 2009.

Ga. L. 2010, p. 114, § 1/HB 1345, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Kosher Food Consumer Protection Act.'"

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 150 (1989). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Suit alleging fraudulent breach of employment contract did not involve "consumer transaction." Employment is not a consumer item. Larson v. Tandy Corp., 187 Ga. App. 893 , 371 S.E.2d 663 (1988).

Consumer acts not found. - Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim failed as the nurses' false notations in a decedent's medical records, and presumably in others' records, that a treatment was performed pursuant to a doctor's orders, were made in confidential records that were not revealed to the public; the notations had no effect on the general consuming public and could not constitute consumer acts within the meaning of O.C.G.A. § 10-1-392(a) (2.1). Henderson v. Gandy, 270 Ga. App. 827 , 608 S.E.2d 248 (2004), aff'd, 280 Ga. 95 , 623 S.E.2d 465 (2005).

Actions not within consumer marketplace. - Allegation, that the nurses' false notations in a decedent's medical records, and presumably in others' records, that treatment was performed pursuant to a doctor's orders and was based on a medical practice's general policy, did not bring a wife's claim within the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the actions did not occur within the public consumer marketplace. Henderson v. Gandy, 270 Ga. App. 827 , 608 S.E.2d 248 (2004), aff'd, 280 Ga. 95 , 623 S.E.2d 465 (2005).

"Intentional violation" as contemplated by the Fair Business Practices Act is a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379 , 262 S.E.2d 820 (1979).

Cited in State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8 , 244 S.E.2d 15 (1978); Atlanta Gas Light Co. v. Semaphore Adv., Inc., 747 F. Supp. 715 (S.D. Ga. 1990).

10-1-393. Unfair or deceptive practices in consumer transactions unlawful; examples.

  1. Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.
  2. By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices are declared unlawful:
    1. Passing off goods or services as those of another;
    2. Causing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
    3. Causing actual confusion or actual misunderstanding as to affiliation, connection, or association with or certification by another;
      1. Using deceptive representations or designations of geographic origin in connection with goods or services. Without limiting the generality of the foregoing, it is specifically declared to be unlawful:
        1. For any nonlocal business to cause to be listed in any local telephone directory a local telephone number for the business if calls to the local telephone number are routinely forwarded or otherwise transferred to the nonlocal business location that is outside the calling area covered by such local telephone directory or to a toll-free number which does not have a local address and the listing fails to state clearly the principal place of business of the nonlocal business;
        2. For any person operating a business to cause to be listed in any local telephone directory a toll-free number for the business if the listing fails to state clearly the principal place of business of such business; or
        3. For any person to use an assumed or fictitious name in the conduct of such person's business, if the use of such name could reasonably be construed to be a misrepresentation of the geographic origin or location of such person's business.
      2. For purposes of this paragraph, the term:
        1. "Local" or "local area" means the area in which any particular telephone directory is distributed or otherwise provided free of charge to some or all telecommunications services subscribers.
        2. "Local telephone directory" means any telecommunications services directory, directory assistance data base, or other directory listing which is distributed or otherwise provided free of charge to some or all telecommunications services subscribers in any area of this state and includes such directories distributed by telecommunications companies as well as such directories distributed by other parties.
        3. "Local telephone number" means any telecommunications services number which is not clearly identifiable as a long-distance telecommunications services number and which has a three-number prefix typically used by the local telecommunications company for telecommunications services devices physically located within the local area.
        4. "Nonlocal business" means any business which does not have within the local area a physical place of business providing the goods or services which are the subject of the advertisement or listing in question.
        5. "Telecommunications company" shall have the same meaning as provided in Code Section 46-5-162.
        6. "Telecommunications services" shall have the same meaning as provided in Code Section 46-5-162.
        7. "Telecommunications services subscriber" means a person or entity to whom telecommunications services, either residential or commercial, are provided;
    4. 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;
    5. Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
    6. 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;
    7. Disparaging goods, services, or business of another by false or misleading representation;
    8. Advertising goods or services with intent not to sell them as advertised;
    9. Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
    10. Making false or misleading statements concerning the reasons for, existence of, or amounts of price reductions;
    11. Failing to comply with the provisions of Code Section 10-1-393.2 concerning health spas;
    12. Failure to comply with the following provisions concerning career consulting firms:
      1. A written contract shall be employed which shall constitute the entire agreement between the parties, a fully completed copy of which shall be furnished to the consumer at the time of its execution which shows the date of the transaction and the name and address of the career consulting firm;
      2. The contract or an attachment thereto shall contain a statement in boldface type which complies substantially with the following:

        "The provisions of this agreement have been fully explained to me and I understand that the services to be provided under this agreement by the seller do not include actual job placement."

        The statement shall be signed by both the consumer and the authorized representative of the seller;

      3. Any advertising offering the services of a career consulting firm shall contain a statement which contains the following language: "A career consulting firm does not guarantee actual job placement as one of its services.";
    13. Failure of a hospital or long-term care facility to deliver to an inpatient who has been discharged or to his or her legal representative, not later than six business days after the date of such discharge, an itemized statement of all charges for which the patient or third-party payor is being billed;
    14. Any violation of 49 U.S.C. Sections 32702 through 32704 and any violation of regulations prescribed under 49 U.S.C. Section 32705. Notwithstanding anything in this part to the contrary, all such actions in violation of such federal statutes or regulations shall be consumer transactions and consumer acts or practices in trade or commerce;
    15. Failure to comply with the following provisions concerning promotions:
      1. For purposes of this paragraph, the term:
        1. "Conspicuously," when referring to type size, means either a larger or bolder type than the adjacent and surrounding material.
        2. "In conjunction with and in immediate proximity to," when referring to a listing of verifiable retail value and odds for each prize, means that such value and odds must be adjacent to that particular prize with no other printed or pictorial matter between the value and odds and that listed prize.
        3. "Notice" means a communication of the disclosures required by this paragraph to be given to a consumer that has been selected, or has purportedly been selected, to participate in a promotion. If the original notice is in writing, it shall include all of the disclosures required by this paragraph. If the original notice is oral, it shall include all of the disclosures required by this paragraph and shall be followed by a written notice to the consumer of the same disclosures. In all cases, written notice shall be received by the consumer before any agreement or other arrangement is entered into which obligates the consumer in any manner.
        4. "Participant" means a person who is offered an opportunity to participate in a promotion.
        5. "Promoter" means the person conducting the promotion.
        6. "Sponsor" means the person on whose behalf the promotion is conducted in order to promote or advertise the goods, services, or property of that person.
        7. "Verifiable retail value," when referring to a prize, means:
          1. The price at which the promoter or sponsor can substantiate that a substantial number of those prizes have been sold at retail by someone other than the promoter or sponsor; or
          2. In the event that substantiation as described in subdivision (I) of this division is not readily available to the promoter or sponsor, no more than three times the amount which the promoter or sponsor has actually paid for the prize.
      2. The promotion must be an advertising and promotional undertaking, in good faith, solely for the purpose of advertising the goods, services, or property, real or personal, of the sponsor. The notice shall contain the name and address of the promoter and of the sponsor, as applicable. The promoter and the sponsor may be held liable for any failure to comply with the provisions of this paragraph;
      3. A promotion shall be a violation of this paragraph if a person is required to pay any money including, but not limited to, payments for service fees, mailing fees, or handling fees payable to the sponsor or seller or furnish any consideration for the prize, other than the consideration of traveling to the place of business or to the presentation or of allowing the presentation to be made in the participant's home, in order to receive any prize; provided, however, that the payment of any deposit made in connection with an activity described in subparagraph (B) of paragraph (22) of this subsection shall not constitute a requirement to pay any money under this subparagraph;
      4. Each notice must state the verifiable retail value of each prize which the participant has a chance of receiving. Each notice must state the odds of the participant's receiving each prize if there is an element of chance involved. The odds must be clearly identified as "odds." Odds must be stated as the total number of that particular prize which will be given and of the total number of notices. The total number of notices shall include all notices in which that prize may be given, regardless of whether it includes notices for other sponsors. If the odds of winning a particular prize would not be accurately stated on the basis of the number of notices, then the odds may be stated in another manner, but must be clearly stated in a manner which will not deceive or mislead the participant regarding the participant's chance of receiving the prize. The verifiable retail value and odds for each prize must be stated in conjunction and in immediate proximity with each listing of the prize in each place where it appears on the written notice and must be listed in the same size type and same boldness as the prize. Odds and verifiable retail values may not be listed in any manner which requires the participant to refer from one place in the written notice to another place in the written notice to determine the odds and verifiable retail value of the particular prize. Verifiable retail values shall be stated in Arabic numerals;
      5. Upon arriving at the place of business or upon allowing the sponsor to enter the participant's home, the participant must be immediately informed which, if any, prize the participant will receive prior to any seminar, sales presentation, or other presentation; and the prize, or any voucher, certificate, or other evidence of obligation in lieu of the prize, must be given to the participant at the time the participant is so informed;
      6. No participant shall be required or invited to view, hear, or attend any sales presentation, by whatever name denominated, unless such requirement or invitation has been conspicuously disclosed to the participant in the written notice in at least ten-point boldface type;
      7. Except in relation to an activity described in subparagraph (B) of paragraph (22) of this subsection, in no event shall any prize be offered or given which will require the participant to purchase additional goods or services, including shipping fees, handling fees, or any other charge by whatever name denominated, from any person in order to make the prize conform to what it reasonably appears to be in the mailing or delivery, unless such requirement and the additional cost to the participant is clearly disclosed in each place where the prize is listed in the written notice using a statement in the same size type and boldness as the prize listed;
      8. Any limitation on eligibility of participants must be clearly disclosed in the notice;
      9. Substitutes of prizes shall not be made. In the event the represented prize is unavailable, the participant shall be presented with a certificate which the sponsor shall honor within 30 days by shipping the prize, as represented in the notice, to the participant at no cost to the participant. In the event a certificate cannot be honored within 30 days, the sponsor shall mail to the participant a valid check or money order for the verifiable retail value which was represented in the notice;
      10. In the event the participant is presented with a voucher, certificate, or other evidence of obligation as the participant's prize, or in lieu of the participant's prize, it shall be the responsibility of the sponsor to honor the voucher, certificate, or other evidence of obligation, as represented in the notice, if the person who is named as being responsible for honoring the voucher, certificate, or other evidence of obligation fails to honor it as represented in the notice;
      11. The geographic area covered by the notice must be clearly stated. If any of the prizes may be awarded to persons outside of the listed geographical area or to participants in promotions for other sponsors, these facts must be clearly stated, with a corresponding explanation that every prize may not be given away by that particular sponsor. If prizes will not be awarded or given if the winning ticket, token, number, lot, or other device used to determine winners in that particular promotion is not presented to the promoter or sponsor, this fact must be clearly disclosed;
      12. Upon request of the Attorney General, the sponsor or promoter must within ten days furnish to the Attorney General the names, addresses, and telephone numbers of persons who have received any prize;
      13. A list of all winning tickets, tokens, numbers, lots, or other devices used to determine winners in promotions involving an element of chance must be prominently posted at the place of business or distributed to all participants if the seminar, sales presentation, or other presentation is made at a place other than the place of business. A copy of such list shall be furnished to each participant who so requests;
      14. Any promotion involving an element of chance which does not conform with the provisions of this paragraph shall be considered an unlawful lottery as defined in Code Section 16-12-20. Except as provided in Code Section 16-12-35 and Article 3 of Chapter 27 of Title 50, any promotion involving an element of chance which involves the playing of a game on a computer, mechanical device, or electronic device at a place of business in this state shall be considered an unlawful lottery as defined in Code Section 16-12-20 and shall not be permitted under this chapter. Any promotion involving the playing of a no-skill game on a computer, mechanical device, or electronic device at a place of business in this state shall be considered an unlawful lottery as defined in Code Section 16-12-20. The Attorney General may prosecute persons who promote and sponsor promotions which constitute an unlawful lottery or may seek and shall receive the assistance of the prosecuting attorneys of this state in the commencement and prosecution of such persons;
      15. Any person who participates in a promotion and does not receive an item which conforms with what that person, exercising ordinary diligence, reasonably believed that person should have received based upon the representations made to that person may bring the private action provided for in Code Section 10-1-399 and, if that person prevails, shall be awarded, in addition to any other recovery provided under this part, a sum which will allow that person to purchase an item at retail which reasonably conforms to the prize which that person, exercising ordinary diligence, reasonably believed that person would receive; and
      16. In addition to any other remedy provided under this part, where a contract is entered into while participating in a promotion which does not conform with this paragraph, the contract shall be voidable by the participant for ten business days following the date of the participant's receipt of the prize. In order to void the contract, the participant must notify the sponsor in writing within ten business days following the participant's receipt of the prize;
    16. Failure to furnish to the buyer of any campground membership or marine membership at the time of purchase a notice to the buyer allowing the buyer seven days to cancel the purchase. The notice shall be on a separate sheet of paper with no other written or pictorial material, in at least ten-point boldface type, double spaced, and shall read as follows:

      Please read this form completely and carefully. It contains valuable cancellation rights.

      The buyer or buyers may cancel this transaction at any time prior to 5:00 P.M. of the seventh day following receipt of this notice.

      This cancellation right cannot be waived in any manner by the buyer or buyers.

      Any money paid by the buyer or buyers must be returned by the seller within 30 days of cancellation.

    17. Failure of the seller of a campground membership or marine membership to fill in the seller's name and the address to which cancellation notices should be mailed on the form specified in paragraph (17) of this subsection;
    18. Failure of the seller of a campground membership or marine membership to cancel according to the terms specified in the form described in paragraph (17) of this subsection;
      1. Representing that moneys provided to or on behalf of a debtor, as defined in Code Section 44-14-162.1 in connection with property used as a dwelling place by said debtor, are a loan if in fact they are used to purchase said property and any such misrepresentation upon which is based the execution of a quitclaim deed or warranty deed by that debtor shall authorize that debtor to bring an action to reform such deed into a deed to secure debt in addition to any other right such debtor may have to cancel the deed pursuant to Code Section 23-2-2, 23-2-60, or any other applicable provision of law.
      2. Advertising to assist debtors whose loan for property the debtors use as a dwelling place is in default with intent not to assist them as advertised or making false or misleading representations to such a debtor about assisting the debtor in connection with said property.
      3. Failing to comply with the following provisions in connection with the purchase of property used as a dwelling place by a debtor whose loan for said property is in default and who remains in possession of this property after said purchase:
        1. A written contract shall be employed by the buyer which shall summarize and incorporate the entire agreement between the parties, a fully completed copy of which shall be furnished to the debtor at the time of its execution. Said contract shall show the date of the transaction and the name and address of the parties; shall state, in plain and bold language, that the subject transaction is a sale; and shall indicate the amount of cash proceeds and the amount of any other financial benefits that the debtor will receive;
        2. This contract shall contain a statement in boldface type which complies substantially with the following:

          "The provisions of this agreement have been fully explained to me. I understand that under this agreement I am selling my house to the other undersigned party."

          This statement shall be signed by the debtor and the buyer;

        3. If a lease or rental agreement is executed in connection with said sale, it shall set forth the amount of monthly rent and shall state, in plain and bold language, that the debtor may be evicted for failure to pay said rent. Should an option to purchase be included in this lease, it shall state, in plain and bold language, the conditions that must be fulfilled in order to exercise it; and
        4. The buyer shall furnish to the seller at the time of closing a notice to the seller allowing the seller ten days to cancel the purchase. This right to cancel shall not limit or otherwise affect the seller's right to cancel pursuant to Code Section 23-2-2, 23-2-60, or any other applicable provision of law. The notice shall serve as the cover sheet to the closing documents. It shall be on a separate sheet of paper with no other written or pictorial material, in at least ten-point boldface type, double spaced, and shall read as follows:
      4. The provisions of subparagraph (C) of this paragraph shall only apply where all three of the following conditions are present:
        1. A loan on the property used as a dwelling place is in default;
        2. The debtor transfers the title to the property by quitclaim deed, limited warranty deed, or general warranty deed; and
        3. The debtor remains in possession of the property under a lease or as a tenant at will;
    19. Advertising a telephone number the prefix of which is 976 and which when called automatically imposes a per-call charge or cost to the consumer, other than a regular charge imposed for long-distance telephone service, unless the advertisement contains the name, address, and telephone number of the person responsible for the advertisement and unless the person's telephone number and the per-call charge is printed in type of the same size as that of the number being advertised;
    20. Representing, in connection with a vacation, holiday, or an item described by terms of similar meaning, or implying that:
      1. A person is a winner, has been selected or approved, or is in any other manner involved in a select or special group for receipt of an opportunity or prize, or that a person is entering a contest, sweepstakes, drawing, or other competitive enterprise from which a winner or select group will receive an opportunity or prize, when in fact the enterprise is designed to make contact with prospective customers, or in which all or a substantial number of those entering such competitive enterprise receive the same prize or opportunity; or
      2. In connection with the types of representations referred to in subparagraph (A) of this paragraph, representing that a vacation, holiday, or an item described by other terms of similar meaning, is being offered, given, awarded, or otherwise distributed unless:
        1. The item represented includes all transportation, meals, and lodging;
        2. The representation specifically describes any transportation, meals, or lodging which is not included; or
        3. The representation discloses that a deposit is required to secure a reservation, if that is the case.

          The provisions of this paragraph shall not apply where the party making the representations is in compliance with paragraph (16) of this subsection;

    21. Except in relation to an activity which is in compliance with paragraph (16) or (22) of this subsection, stating, in writing or by telephone, that a person has won, is the winner of, or will win or receive anything of value, unless the person will receive the prize without obligation;
      1. Conducting a going-out-of-business sale for more than 90 days.
      2. After the 90 day time limit in subparagraph (A) of this paragraph has expired, continuing to do business in any manner contrary to any representations which were made regarding the nature of the going-out-of-business sale.
      3. The prohibitions of this paragraph shall not extend to any of the following:
        1. Sales for the estate of a decedent by the personal representative or the personal representative's agent, according to law or by the provisions of the will;
        2. Sales of property conveyed by security deed, deed of trust, mortgage, or judgment or ordered to be sold according to the deed, mortgage, judgment, or order;
        3. Sales of all agricultural produce and livestock arising from the labor of the seller or other labor under the seller's control on or belonging to the seller's real or personal estate and not purchased or sold for speculation;
        4. All sales under legal process;
        5. Sales by a pawnbroker or loan company which is selling or offering for sale unredeemed pledges of chattels as provided by law; or
        6. Sales of automobiles by an auctioneer licensed under the laws of the State of Georgia;
    22. The issuance of a check or draft by a lender in connection with a real estate transaction in violation of Code Section 44-14-13;
    23. With respect to any individual or facility providing personal care services or assisted living care:
      1. Any person or entity not duly licensed or registered as a personal care home or assisted living community formally or informally offering, advertising to, or soliciting the public for residents or referrals; or
      2. Any personal care home, as defined in subsection (a) of Code Section 31-7-12, or any assisted living community, as defined in Code Section 31-7-12.2, offering, advertising, or soliciting the public to provide services:
        1. Which are outside the scope of personal care services or assisted living care, respectively; and
        2. For which it has not been specifically authorized.

          Nothing in this subparagraph prohibits advertising by a personal care home or assisted living community for services authorized by the Department of Community Health under a waiver or variance pursuant to subsection (b) of Code Section 31-2-7.

          For purposes of this paragraph, "personal care" means protective care and watchful oversight of a resident who needs a watchful environment but who does not have an illness, injury, or disability which requires chronic or convalescent care including medical and nursing services, and "assisted living care" includes services provided for in Code Section 31-7-12.2. The provisions of this paragraph shall be enforced following consultation with the Department of Community Health which shall retain primary responsibility for issues relating to licensure of any individual or facility providing personal care services;

    24. Mailing any notice, notification, or similar statement to any consumer regarding winning or receiving any prize in a promotion, and the envelope or other enclosure for the notice fails to conspicuously identify on its face that the contents of the envelope or other enclosure is a commercial solicitation and, if there is an element of chance in winning a prize, the odds of winning as "odds";
    25. Any violation of the rules and regulations promulgated by the Department of Driver Services pursuant to subsection (e) of Code Section 40-5-83 which relates to the consumer transactions and business practices of DUI Alcohol or Drug Use Risk Reduction Programs, except that the Department of Driver Services shall retain primary jurisdiction over such complaints;
    26. With respect to any consumer reporting agency:
      1. Any person who knowingly and willfully obtains information relative to a consumer from a consumer reporting agency under false pretenses shall be guilty of a misdemeanor;
      2. Any officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be guilty of a misdemeanor; and
      3. Each consumer reporting agency which compiles and maintains files on consumers on a nation-wide basis shall furnish to any consumer who has provided appropriate verification of his or her identity two complete consumer reports per calendar year, upon request and without charge;
        1. A credit card issuer who mails an unsolicited offer or solicitation to apply for a credit card and who receives by mail a completed application in response to the solicitation which lists an address that is not substantially the same as the address on the solicitation may not issue a credit card based on that application until steps have been taken to verify the applicant's valid address to the same extent required by regulations prescribed pursuant to subsection (l) of 31 U.S.C. Section 5318. Any person who violates this paragraph commits an unlawful practice within the meaning of this Code section; and
        2. Notwithstanding subparagraph (A) of this paragraph, a credit card issuer, upon receiving an application, may issue a credit card to a consumer or commercial customer with whom it already has a business relationship provided the address to which the card is mailed is a valid address based upon information in the records of the credit card issuer or its affiliates;

      (29.1) With respect to any credit card issuer:

    27. With respect to any individual or facility providing home health services:
      1. For any person or entity not duly licensed by the Department of Community Health as a home health agency to regularly hold itself out as a home health agency; or
      2. For any person or entity not duly licensed by the Department of Community Health as a home health agency to utilize the words "home health" or "home health services" in any manner including but not limited to advertisements, brochures, or letters. Unless otherwise prohibited by law, nothing in this subparagraph shall be construed to prohibit persons or entities from using the words "home health" or "home health services" in conjunction with the words "equipment," "durable medical equipment," "pharmacy," "pharmaceutical services," "prescription medications," "infusion therapy," or "supplies" in any manner including but not limited to advertisements, brochures, or letters. An unlicensed person or entity may advertise under the category "home health services" in any advertising publication which divides its advertisements into categories, provided that:
        1. The advertisement is not placed in the category with the intent to mislead or deceive;
        2. The use of the advertisement in the category is not part of an unfair or deceptive practice; and
        3. The advertisement is not otherwise unfair, deceptive, or misleading.

          For purposes of this paragraph, the term "home health agency" shall have the same definition as contained in Code Section 31-7-150, as now or hereafter amended. The provisions of this paragraph shall be enforced by the Attorney General;

          1. As used in this paragraph, the term:
            1. "Enrollee" means an individual who has elected to contract for or participate in a health benefit plan for that individual or for that individual and that individual's eligible dependents and includes that enrollee's eligible dependents.
            2. "Health benefit plan" means any hospital or medical insurance policy or certificate, health care plan contract or certificate, qualified higher deductible health plan, health maintenance organization subscriber contract, any health benefit plan established pursuant to Article 1 of Chapter 18 of Title 45, or any managed care plan.
            3. "Insurer" means a corporation or other entity which is licensed or otherwise authorized to offer a health benefit plan in this state.
            4. "Patient" means a person who seeks or receives health care services under a health benefit plan.
            5. "Physician" means a person licensed to practice medicine under Article 2 of Chapter 34 of Title 43.
          2. Every contract between a physician and an insurer which offers a health benefit plan under which that physician provides health care services shall be in writing and shall state the obligations of the parties with respect to charges and fees for services covered under that plan when provided by that physician to enrollees under that plan. Neither the insurer which provides that plan nor the enrollee under that plan shall be liable for any amount which exceeds the obligations so established for such covered services.
          3. Neither the physician nor a representative thereof shall intentionally collect or attempt to collect from an enrollee any obligations with respect to charges and fees for which the enrollee is not liable and neither such physician nor a representative thereof may maintain any action at law against such enrollee to collect any such obligations.
          4. The provisions of this paragraph shall not apply to the amount of any deductible or copayment which is not covered by the health benefit plan.
          5. This paragraph shall apply to only such health benefit plan contracts issued, delivered, issued for delivery, or renewed in this state on or after July 2, 2001;

      (30.1) Failing to comply with the following provisions in connection with a contract for health care services between a physician and an insurer which offers a health benefit plan under which such physician provides health care services to enrollees:

    28. With respect to telemarketing sales:
      1. For any seller or telemarketer to use any part of an electronic record to attempt to induce payment or attempt collection of any payment that the seller or telemarketer claims is due and owing to it pursuant to a telephone conversation or series of telephone conversations with a residential subscriber. Nothing in this paragraph shall be construed to:
        1. Prohibit the seller or telemarketer from introducing, as evidence in any court proceeding to attempt collection of any payment that the seller or telemarketer claims is due and owing to it pursuant to a telephone conversation or series of telephone conversations with a residential subscriber, an electronic record of the entirety of such telephone conversation or series of telephone conversations; or
        2. Expand the permissible use of an electronic record made pursuant to 16 C.F.R. Part 310.3(a)(3), the Federal Telemarketing Sales Rule.
      2. For purposes of this paragraph, the term:
        1. "Covered communication" shall have the same meaning as the term "telemarketing" in subsection (a) of Code Section 10-1-393.5.
        2. "Electronic record" means any recording by electronic device of, in part or in its entirety, a telephone conversation or series of telephone conversations with a residential subscriber that is initiated by a seller or telemarketer in order to induce the purchase of goods, services, or property. This term shall include, without limitation, any subsequent telephone conversations in which the seller or telemarketer attempts to verify any alleged agreement in a previous conversation or previous conversations.
        3. "Residential subscriber" means any person who has subscribed to residential phone service from a local exchange company or the other persons living or residing with such person.
        4. "Seller or telemarketer" means any person or entity making a covered communication to a residential subscriber for the purpose of inducing the purchase of goods, services, or property by such subscriber. This term shall include, without limitation, any agent of the seller or telemarketer, whether for purposes of conducting calls to induce the purchase, for purposes of verifying any calls to induce the purchase, or for purposes of attempting to collect on any payment under the purchase;
    29. Selling, marketing, promoting, advertising, providing, or distributing any card or other purchasing mechanism or device that is not insurance or evidence of insurance coverage and that purports to offer or provide discounts or access to discounts on purchases of health care goods or services from providers of the same or making any representation or statement that purports to offer or provide discounts or access to discounts on purchases of health care goods or services from providers of the same, when:
      1. Such card or other purchasing mechanism or device does not contain a notice expressly and prominently providing in boldface type that such discounts are not insurance; or
      2. Such discounts or access to such discounts are not specifically authorized under a separate contract with a provider of health care goods or services to which such discounts are purported to be applicable;
      1. For any person, firm, partnership, association, or corporation to issue a gift certificate, store gift card, or general use gift card without:
        1. Including the terms of the gift certificate, store gift card, or general use gift card in the packaging which accompanies the certificate or card at the time of purchase, as well as making such terms available upon request; and
        2. Conspicuously printing the expiration date, if applicable, on the certificate or card and conspicuously printing the amount of any dormancy or nonuse fees on:
          1. The certificate or card; or
          2. A sticker affixed to the certificate or card.

            A gift certificate, store gift card, or general use gift card shall be valid in accordance with its terms in exchange for merchandise or services.

      2. As used in this paragraph, the term:
        1. "General use gift card" means a plastic card or other electronic payment device which is usable at multiple, unaffiliated merchants or service providers; is issued in an amount which amount may or may not be, at the option of the issuer, increased in value or reloaded if requested by the holder; is purchased or loaded on a prepaid basis by a consumer; and is honored upon presentation by merchants for goods or services.
        2. "Gift certificate" means a written promise that is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and cannot be increased in value on the face thereof; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo.
        3. "Store gift card" means a plastic card or other electronic payment device which is usable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo; is issued in a specified amount and may or may not be increased in value or reloaded; is purchased on a prepaid basis by a consumer in exchange for payment; and is honored upon presentation for goods or services by such single merchant or affiliated group of merchants that share the same name, mark, or logo; and
    30. For any person, firm, partnership, business, association, or corporation to willfully and knowingly accept or use an individual taxpayer identification number issued by the Internal Revenue Service for fraudulent purposes and in violation of federal law.

    (A.1) Persons who are offered an opportunity to participate in a promotion must be given a notice as required by this paragraph. The written notice must be given to the participant either prior to the person's traveling to the place of business or, if no travel by the participant is necessary, prior to any seminar, sales presentation, or other presentation, by whatever name denominated. Written notices may be delivered by hand, by mail, by newspaper, by periodical, or by electronic mail or any other form of electronic, digital, or Internet based communication. Any offer to participate made through any other medium must be preceded by or followed by the required notice at the required time. It is the intent of this paragraph that full, clear, and meaningful disclosure shall be made to the participant in a manner such that the participant can fully study and understand the disclosure prior to deciding whether to travel to the place of participation or whether to allow a presentation to be made in the participant's home; and that this paragraph be liberally construed to effect this purpose. The notice requirements of this paragraph shall be applicable to any promotion offer made by any person in the State of Georgia or any promotion offer made to any person in the State of Georgia;

    (N.1) All prizes offered and awarded shall be noncash prizes only and shall not be redeemable for cash;

  3. A seller may not by contract, agreement, or otherwise limit the operation of this part notwithstanding any other provision of law.
    1. Notwithstanding any other provision of the law to the contrary, the names, addresses, telephone numbers, social security numbers, or any other information which could reasonably serve to identify any person making a complaint about unfair or deceptive acts or practices shall be confidential. However, the complaining party may consent to public release of his or her identity by giving such consent expressly, affirmatively, and directly to the Attorney General or the Attorney General's employees.
    2. Nothing contained in this subsection shall be construed:
      1. To prevent the Attorney General from disclosing the complainant's identity if the Attorney General believes that disclosure will aid in resolution of the complaint;
      2. To prohibit any valid discovery under the relevant discovery rules; or
      3. To prohibit the lawful subpoena of such information.

        (Ga. L. 1975, p. 376, § 3; Ga. L. 1978, p. 2001, § 2; Ga. L. 1982, p. 3, § 10; Ga. L. 1982, p. 1689, §§ 2, 4; Ga. L. 1983, p. 1298, § 1; Ga. L. 1984, p. 22, § 10; Ga. L. 1984, p. 463, § 1; Ga. L. 1985, p. 149, § 10; Ga. L. 1985, p. 938, § 2; Ga. L. 1985, p. 1183, § 1; Ga. L. 1986, p. 405, § 2; Ga. L. 1986, p. 1313, § 2; Ga. L. 1987, p. 794, § 2; Ga. L. 1987, p. 1386, § 2; Ga. L. 1988, p. 13, § 10; Ga. L. 1988, p. 399, §§ 1-3; Ga. L. 1988, p. 983, § 1; Ga. L. 1988, p. 1657, § 1; Ga. L. 1989, p. 14, § 10; Ga. L. 1989, p. 560, § 3; Ga. L. 1989, p. 1606, § 1; Ga. L. 1990, p. 1653, § 2; Ga. L. 1991, p. 94, § 10; Ga. L. 1992, p. 1129, § 1; Ga. L. 1992, p. 2139, § 1; Ga. L. 1993, p. 91, § 10; Ga. L. 1993, p. 1076, §§ 1, 2; Ga. L. 1993, p. 1676, § 1; Ga. L. 1995, p. 729, § 1; Ga. L. 1996, p. 1030, § 1; Ga. L. 1997, p. 143, § 10; Ga. L. 1997, p. 1507, § 1; Ga. L. 1998, p. 643, § 1; Ga. L. 2000, p. 557, § 1; Ga. L. 2000, p. 1181, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 4, § 10; Ga. L. 2001, p. 1170, § 2; Ga. L. 2004, p. 149, § 1; Ga. L. 2005, p. 334, § 4-2/HB 501; Ga. L. 2005, p. 1183, § 2/SB 13; Ga. L. 2009, p. 86, § 18/HB 141; Ga. L. 2009, p. 453, §§ 1-4, 1-11/HB 228; Ga. L. 2010, p. 302, § 1/SB 368; Ga. L. 2011, p. 227, § 2/SB 178; Ga. L. 2011, p. 705, § 4-6/HB 214; Ga. L. 2012, p. 1136, § 1/SB 431; Ga. L. 2014, p. 866, § 10/SB 340; Ga. L. 2015, p. 1088, § 2/SB 148.)

"Notice to the Buyer

To cancel, sign this form, and mail by certified mail or statutory overnight delivery, return receipt requested, by 5:00 P.M. of the seventh day following the transaction. Be sure to keep a photocopy of the signed form and your post office receipt.

__________________________________________ Seller's Name __________________________________________ Address to which cancellation is to be mailed __________________________________________ I (we) hereby cancel this transaction. __________________________________________ Buyer's Signature __________________________________________ Buyer's Signature __________________________________________ Date __________________________________________ Printed Name(s) of Buyer(s) __________________________________________ Street Address __________________________________________ City, State, ZIP Code"

"Notice to the Seller

Please read this form completely and carefully. It contains valuable cancellation rights. The seller or sellers may cancel this transaction at any time prior to 5:00 P.M. of the tenth day following receipt of this notice. This cancellation right cannot be waived in any manner by the seller or sellers. Any money paid to the seller or sellers must be returned by the seller within 30 days of cancellation. To cancel, sign this form, and return it to the buyer by 5:00 P.M. of the tenth day following the transaction. It is best to mail it by certified mail or statutory overnight delivery, return receipt requested, and to keep a photocopy of the signed form and your post office receipt. __________________________________________ Buyer's name __________________________________________ Address to which cancellation is to be returned. __________________________________________ I (we) hereby cancel this transaction. __________________________________________ Seller's signature __________________________________________ Seller's signature __________________________________________ Date __________________________________________ Printed name(s) of seller(s) __________________________________________ Street address __________________________________________ City, State, ZIP Code"

The 2015 amendment, effective July 1, 2015, in subsection (b), in subparagraph (b)(16)(A.1), in the third sentence, deleted "or" following "newspaper," and inserted ", or by electronic mail or any other form of electronic, digital, or Internet based communication"; substituted "Attorney General" for "administrator" twice in subparagraph (b)(16)(L); in subparagraph (b)(16)(N), in the last sentence, substituted "Attorney General may prosecute persons who promote and sponsor promotions which constitute an unlawful lottery or" for "administrator" at the beginning and substituted "of such persons" for "of persons who promote and sponsor promotions which constitute an unlawful lottery" at the end; made punctuation and capitalization changes in the "Notice to the Seller" form in division (b)(20)(C)(iv); substituted "Attorney General" for "administrator in consultation with the Department of Community Health; provided, however, that the administrator shall not have any responsibility for matters or functions related to the licensure of home health agencies" in the second sentence of the concluding language of paragraph (b)(30); substituted "shall have the same meaning as the term 'telemarketing' in subsection (a) of Code Section 10-1-393.5" for "means any unsolicited telephone call or telephone call arising from an unsolicited telephone call" in division (b)(31)(B)(i); and, in subsection (d), substituted "Attorney General or the Attorney General's" for "administrator or administrator's" in the last sentence of paragraph (d)(1) and substituted "Attorney General" for "administrator" twice in subparagraph (d)(2)(A).

Cross references. - Criminal penalties for unauthorized reproduction and sale of recorded materials, § 16-8-60 .

Criminal penalty for deceptive business practices, § 16-9-50 .

Fraud generally, § 23-2-50 et seq.

Misbranding of food generally, § 26-2-28 .

Labeling of meat, §§ 26-2-107 , 26-2-111 , 26-2-112 .

Misbranding of drugs, § 26-3-8 .

Misbranding and false advertisement of cosmetics, § 26-3-12 et seq.

Time-share program sales, deceptive practices, § 44-3-185 et seq.

Code Commission notes. - Owing to the duplication in paragraph designations, paragraphs (16), (17), and (18) added to subsection (b) by Ga. L. 1986, p. 405, § 2, were redesignated paragraphs (17), (18), and (19), respectively, in 1986, pursuant to Code Section 28-9-5. In accordance with this revision, in subsection (b), punctuation was revised, "or" was deleted at the end of paragraph (15), and the references in paragraphs (18) and (19) were adjusted accordingly.

Three 1988 Acts amended this Code section, two of which added a paragraph (21) to subsection (b). Pursuant to Code Section 28-9-5, in 1988, the paragraph enacted by Ga. L. 1988, p. 399 has retained the (b)(21) designation but paragraph (21) enacted by Ga. L. 1988, p. 1657 and paragraph (22) also enacted by Ga. L. 1988, p. 1657 have been redesignated as paragraphs (22) and (23) of subsection (b), respectively.

Pursuant to Code Section 28-9-5, in 1988, semi-colons were substituted for periods at the end of paragraphs (b)(20) and (b)(21).

Pursuant to Code Section 28-9-5, in 1989, "spas;" was substituted for "spas." in paragraph (b)(12) and "going-out-of-business" was substituted for "going out of business" in subparagraphs (b)(24)(A) and (b)(24)(B).

Pursuant to Code Section 28-9-5, in 2004, "Code section; and" was substituted for "Act." in subparagraph (b)(29.1)(A).

Pursuant to Code Section 28-9-5, in 2009, a semicolon was substituted for a period at the end of subparagraph (b)(30.1)(E), "or" was deleted at the end of paragraph (b)(32), and "; and" was substituted for a period at the end of paragraph (b)(33).

Editor's notes. - Ga. L. 1985, p. 938 contained a § 2 which amended this Code section and a second § 2, not codified by the General Assembly, which contained a standard repeal provision.

Ga. L. 1989, p. 14, § 10 which amended paragraph (b)(12) was superseded by Ga. L. 1989, p. 1606, § 1.

Ga. L. 1990, p. 1653, § 3, not codified by the General Assembly, provides that the Act shall not be construed to repeal or modify any provisions of law relative to the utterance or delivery of a worthless check and the provisions of the Act shall be cumulative of such other provisions.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment by that Act is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2001, p. 1170, § 1, not codified by the General Assembly, provides: "The General Assembly finds that managed health care has benefited consumers by negotiating contracts with physicians which prohibit such physicians from billing consumers for fees above and beyond the amount paid by the managed care plan. In order to ensure that the consumers of this state continue to receive such benefits, it is imperative that physicians adhere to their contractual obligations to charge only those fees contractually agreed to and not attempt to pass additional or hidden costs along to consumers. The purpose of Section 2 of this Act is to ensure that consumers are not charged fees above and beyond those already contracted for between their physician and their health benefit plans."

Ga. L. 2004, p. 149, § 1, which amended this Code section, did not specify which subsection was amended but actually amended subsection (b).

Ga. L. 2005, p. 1183, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Gift Card Integrity Act of 2005.'"

Ga. L. 2005, p. 1183, § 3, not codified by the General Assembly, provides that the second 2005 amendment applies to any gift certificates, store gift cards, or general use gift cards sold on or after October 1, 2005.

Ga. L. 2012, p. 1136, § 4/SB 431, not codified by the General Assembly, provides in part that this Code section shall apply to conduct that occurs on and after May 2, 2012. It is not the intention of this Act to abate any prosecution undertaken for conduct occurring under the law in effect prior to such date, and any offense committed before May 2, 2012, shall be prosecuted and punished under the statutes in effect at the time the offense was committed.

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 29 (1997). For review of 1998 legislation relating to commerce and trade, see 15 Ga. St. U.L. Rev. 9 (1998). For article, "The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement," see 24 Ga. St. U.L. Rev. 663 (2008). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 150 (1989). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 265 (1992). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 241 (2001). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993). For comment, "Unwrapping Escheat: Unclaimed Property Laws and Gift Cards," see 60 Emory L. J. 971 (2011).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose. - Objective of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is elimination of deceptive acts and practices in "consumer marketplace". For there to be a "consumer marketplace," the underlying transaction must involve a businessperson as well as a consumer. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Test as to whether activities covered. - In analyzing whether defendant's allegedly wrongful activities are in violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to protect the public or an "isolated" incident not covered under this Act, two factors are determinative: (a) medium through which act or practice is introduced into stream of commerce; and (b) market on which act or practice is reasonably intended to impact. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Transaction must be part of ongoing, public business. - This section requires that alleged wrongful act in "consumer transaction" occur in context of ongoing business in which defendant holds oneself out to the public. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

No impact on general consuming public and beyond reach of FBPA. - Although the department store deviated from the store's credit fraud policy by not promptly investigating the plaintiff's claim after the plaintiff sent the information requesting the store to correct the plaintiff's account, there was no evidence of other instances in which the store failed to follow the store's policy, and any deviation this time was viewed as a isolated event that had no impact on the general consuming public and is therefore beyond the reach of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Davis v. Rich's Dep't Stores, Inc., 248 Ga. App. 116 , 545 S.E.2d 661 (2001).

Activity must be in context of consumer marketplace. - To be subject to direct suit under the Fair Business Practices Act, an alleged offender must perform some volitional act to avail the offender of the channels of consumer commerce and the allegedly offensive activity must take place within the context of the consumer marketplace. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8 , 244 S.E.2d 15 , aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294 , 249 S.E.2d 87 (1978); Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Any act or practice which is outside the context of the public consumer marketplace, no matter how unfair or deceptive, is not directly regulated by O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10. O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988).

Since a bank's commercial checking accounts were not offered to consumers, the bank's practices concerning those accounts were outside the consumer market place and the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., did not apply to an action against the bank based on misrepresentation of the "standard, quality, or grade" of the bank's services. Eason Publications, Inc. v. Nationsbank, 217 Ga. App. 726 , 458 S.E.2d 899 (1995).

Claim against a private school after a student was dismissed from the school due to misbehavior was properly denied since the school's alleged acts and conduct did not arise in the context of the consumer marketplace. Pryor v. CCEC, Inc., 257 Ga. App. 450 , 571 S.E.2d 454 (2002).

Bankruptcy trustee failed to show that a loan servicer engaged in unfair and deceptive practices since the loan was secured by real property which the debtor held as an investment property and, thus, the serviced debt did not arise from a consumer transaction. Gordon v. Bank of Am., N.A. (In re Merriweather), Bankr. (Bankr. N.D. Ga. Aug. 28, 2015).

Consumer sufficiently alleged that a lender's deceptive practice of collecting on debt which was paid reasonably had potential to harm the general consuming public. Goodwyn v. Capital One, N.A., 127 F. Supp. 3d 1367 (M.D. Ga. 2015).

Plaintiff's allegation that the defendant violated the Georgia Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., by engaging in a pattern of unfair and deceptive acts and practices both in the conduct of consumer transactions and in trade and commerce did not state a claim under the FBPA because the plaintiff did not allege any deceptive acts or practices in the conduct of consumer transactions such as passing off goods or services as those of another or causing confusion as to the source of goods or services. Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).

No complaint when goods and services not provided at all. - Trial court did not err in ruling that the complaint failed to state a claim under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-393 , because the plaintiff alleged that the goods and services were not provided at all - not that the defendant advertised the defendant's donation of a safari without any intention of performing. Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508 , 767 S.E.2d 513 (2014).

Nonconsumers do not have a cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., when nonconsumers allege an injury due to a competitor's misrepresentations to the general public. Friedlander v. PDK Labs, Inc., 266 Ga. 180 , 465 S.E.2d 670 (1996).

Action under § 40-1-5 . - Court properly granted the plaintiff's motion for partial summary judgment on plaintiff's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim because the undisputed facts established a violation of O.C.G.A. § 40-1-5 and, thus, a per se violation of the FBPA. Neal Pope, Inc. v. Garlington, 245 Ga. App. 49 , 537 S.E.2d 179 (2000).

Part applied to banks. - After the plaintiff bank customers alleged the defendant bank had a practice of manipulating the posting of transactions to impose overdraft fees, such claims under O.C.G.A. §§ 10-1-391 , 10-1-393 , and 10-1-399 , were not preempted under the National Bank Act regulations and if the allegations that the bank shrouded the bank's actions in a broadly worded "largest-to-smallest" transaction posting policy, unqualified by time limits or other restrictions, the plaintiffs stated claims under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. White v. Wachovia Bank, N.A., 563 F. Supp. 2d 1358 (N.D. Ga. 2008).

Borrower failed on summary judgment to state a claim against two banks under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the borrower presented no evidence that the application of funds to an escrow account was improper, that any unfair business practice existed, or that any damages were suffered under O.C.G.A. § 10-1-393 of the Act. Cornelius v. Home Comings Fin. Network, Inc., F.3d (11th Cir. Sept. 16, 2008)(Unpublished).

Application to sperm bank. - Parents' Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim against a sperm bank was erroneously dismissed; the parents' claims that the sperm bank made misrepresentations about the quality of their product (sperm) and services (screening process) to the public could have resulted in injuries other than the life of the child (for which no damages were recoverable). At a minimum, the parents may have paid more for the sperm than the sperm was worth, and injunctive relief and punitive damages were potentially available. Norman v. Xytex Corp., 310 Ga. 127 , 848 S.E.2d 835 (2020).

Private transactions not covered. - Even though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., the Act does not apply to suits based upon deceptive practices which occur in transactions that are essentially private. Borden v. Pope Jeep-Eagle, Inc., 200 Ga. App. 176 , 407 S.E.2d 128 (1991).

Trial court properly concluded that the defendants were entitled to summary judgment on the plaintiff's claim for a violation of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., since the sale of the farm to the plaintiffs, and any representations preceding the sale, involved a private transaction which would not affect the consuming public generally. Condon v. Kunse, 208 Ga. App. 856 , 432 S.E.2d 266 (1993).

Fraudulent failure to furnish an ample supply of yarn was a matter strictly between private business parties, who are nonconsumers, and therefore does not give rise to the application of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932 , 311 S.E.2d 216 (1983); Medley v. Boomershine Pontiac-GMC Truck, Inc., 214 Ga. App. 795 , 449 S.E.2d 128 (1994).

Touchstone for a legally sufficient Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel, so medical malpractice claims recast as FBPA claims cannot form the basis for an FBPA violation. Henderson v. Gandy, 280 Ga. 95 , 623 S.E.2d 465 (2005).

When a widow sued a physician for allowing nurses to manage the care of the deceased husband's pressure sore, and for allegedly falsifying medical records to reflect that the care was done pursuant to the physician's orders, when the care was not, this did not state a claim involving the entrepreneurial, commercial, or business aspects of the physician's practice, and did not state a claim within the contemplation of the Fair Business Practices Act of 1975, O.C.G.A. § 10-1-390 et seq. Henderson v. Gandy, 280 Ga. 95 , 623 S.E.2d 465 (2005).

Application to medical profession. - It was the Georgia legislature's stated intent that the Fair Business Practice Act, O.C.G.A. § 10-1-390 et seq., be interpreted and construed consistently with interpretations given by the Federal Trade Commission in federal court pursuant to 15 U.S.C. § 45(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 41 et seq., pursuant to O.C.G.A. § 10-1-391(b) , and federal courts had determined that the Federal Trade Commission Act, 15 U.S.C. § 41 et seq., applied to the commercial aspects of the medical profession. Henderson v. Gandy, 280 Ga. 95 , 623 S.E.2d 465 (2005).

Application to dentists. - Patient's suit against a dentist, alleging the dentist failed to disclose treatment alternatives and associated risks prior to commencing dental work, did not establish a violation of Georgia's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., as there was no evidence showing that this omission resulted in the patient's damages as required by the FBPA. Tookes v. Murray, 297 Ga. App. 765 , 678 S.E.2d 209 (2009).

Genuine issues of fact existed as to terms of contract. - College trust did not establish entitlement to summary judgment on the borrower's counterclaim under Georgia's Fair Business Practice Act, O.C.G.A. § 10-1-390 et seq., since a genuine issue of material fact existed as to the terms of the contract. Zahler v. Nat'l Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458 , 844 S.E.2d 530 (2020).

Contract provision that it is "absolutely noncancellable". - If the contract on the contract's face fails to state clearly "the cancellation and refund policies of seller" and states that the contract "is absolutely noncancellable," the contract is violative of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., in attempting to limit operation of the statute. Little v. Paco Collection Servs., Inc., 156 Ga. App. 175 , 274 S.E.2d 147 (1980).

Failure of consumer to exercise requisite diligence. - There was no violation of subsection (c) of O.C.G.A. § 10-1-393 in precluding the introduction of testimony as to an alleged oral misrepresentation because the proffered evidence was inadmissible to vary the terms of the written contract, when the nonviability of the purchaser's claim was not the result of defendant's contractual limitation of the applicability of O.C.G.A. Pt. 2, Art. 15, Ch. 1, T. 10 but was the result of the purchaser's own failure to exercise the requisite diligence to read the contract that the purchaser signed. Heidt v. Potamkin Chrysler-Plymouth, Inc., 181 Ga. App. 903 , 354 S.E.2d 440 (1987).

Physician's statements about nurse-midwife. - Physician's allegedly disparaging statements about a nurse-midwife, which were made during a conversation between the two at a hospital nurses' station, took place outside the context of consumer commerce and therefore did not fall within the regulatory authority of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989).

Parole evidence could not contradict written agreement in patient's claim. - Patient's claim that a dentist violated Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was based on an allegation that a member of the dentist's staff told the patient that a loan for dental work would be at a lower interest rate than that stated in the financing authorization. The claim failed as such parol evidence was inadmissible to contradict the clear written provisions of the authorization, which the patient signed, and the promissory note referenced therein. Tookes v. Murray, 297 Ga. App. 765 , 678 S.E.2d 209 (2009).

Consumer's remedies in satellite transaction. - Motion to compel arbitration of a putative class action was improperly denied under 9 U.S.C. §§ 2 and 16 because it was not unconscionable to require arbitration of the validity of an early cancellation fee charged by a satellite television provider in that the subscriber had the ability to recoup fees and expenses under the Georgia Fair Business Practices Act under O.C.G.A. §§ 10-1-393 and 10-1-399 if the subscriber prevailed individually. Cappuccitti v. DirecTV, Inc., 623 F.3d 1118 (11th Cir. 2010).

Incentive fund cards. - Licensors of an incentive funds card that was marketed and sold by a charter jet company were not liable to a purchaser who bought an incentive funds card from the jet company under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the licensors made no statements verbally or in writing to the purchaser prior to the purchaser's signing the incentive card purchase agreement. Williams v. Jet One Jets, Inc., 755 F. Supp. 2d 1281 (N.D. Ga. Nov. 19, 2010).

Damages. - Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., authorized punitive damages in addition to mandating treble damages for intentional violations. Conseco Fin. Servicing Corp. v. Hill, 252 Ga. App. 774 , 556 S.E.2d 468 (2001).

Statute of limitations. - Because plaintiff dry cleaners sued defendant natural gas supplier 33 months after the alleged misdeeds, and it was not alleged that any Georgia Public Service Commission proceedings had been initiated that would have postponed the accrual date, the O.C.G.A. § 10-1-393(a) claim was time-barred by O.C.G.A. § 10-1-401(a) 's two-year limitations period. Byung Ho Cheoun v. Infinite Energy, Inc., F.3d (11th Cir. Jan. 27, 2010)(Unpublished).

Appeal of order compelling investigative demand. - Corporation's direct appeal of a trial court order compelling the corporation to comply with an investigative demand issued by the Governor's Office of Consumer Affairs was dismissed because under binding Georgia Supreme Court authority, an investigative demand constitutes the decision of an administrative agency for the purpose of the discretionary appeal provisions of O.C.G.A. § 5-6-35(a)(1) and, consequently, the corporation was required to apply for a discretionary appeal. Financial Education Services, Inc. v. State of Ga., 336 Ga. App. 606 , 785 S.E.2d 544 (2016), cert. denied, 197 L. Ed. 2 d 465 (U.S. 2017).

Cited in Lancaster v. Eberhardt, 141 Ga. App. 534 , 233 S.E.2d 880 (1977); Attaway v. Tom's Auto Sales, Inc., 144 Ga. App. 813 , 242 S.E.2d 740 (1978); Atlanta Auto Auction v. Ryles, 148 Ga. App. 20 , 251 S.E.2d 28 (1978); Standish v. Hub Motor Co., 149 Ga. App. 365 , 254 S.E.2d 416 (1979); Greenbriar Dodge, Inc. v. May, 155 Ga. App. 892 , 273 S.E.2d 186 (1980); Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799 , 282 S.E.2d 383 (1981); Taylor v. Bear Stearns & Co., 572 F. Supp. 667 (N.D. Ga. 1983); Stafford v. Fitness for Life, 171 Ga. App. 422 , 319 S.E.2d 891 (1984); Paces Ferry Dodge, Inc. v. Thomas, 174 Ga. App. 642 , 331 S.E.2d 4 (1985); Atlanta Gas Light Co. v. Semaphore Adv., Inc., 747 F. Supp. 715 (S.D. Ga. 1990); Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259 , 749 S.E.2d 821 (2013).

Automobiles

Sale between two non-businesspeople. - Sale of motor vehicle in the course of private negotiations between two individual parties, neither of whom was a businessperson, did not constitute a transaction "in the conduct of any trade or commerce." Reilly v. Mosley, 165 Ga. App. 479 , 301 S.E.2d 649 (1983).

Transaction between auto dealer and finance company. - After a dealer paid a discount to a finance company to take the assignment of an auto buyer's retail installment sales contract, the transaction was essentially private and outside the protection of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998).

Seller's claims as to condition of car. - Trial court properly granted summary judgment as to a car buyer's claims based on the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., after the seller's claims as to the condition of the car, which were relied on by the buyer to support the buyer's claim of fraud, were mere sales puffing. Hill v. Jay Pontiac, Inc., 191 Ga. App. 258 , 381 S.E.2d 417 (1989).

Misrepresentation by car dealer's salesperson that used vehicle was a demonstrator was within the scope of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639 , 560 S.E.2d 101 (2002).

Pre-sale notice to seller of defects in title to merchandise. - It would constitute an unfair business practice if, before merchandise is sold in the consumer marketplace, a seller is placed on reasonable notice that the seller's claim of title to the merchandise could be legally defective and thereafter in blatant disregard of the rights of innocent purchasers fails to take reasonable measures to ascertain the true state of facts concerning title before consummating the sale. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645 , 391 S.E.2d 467 (1990).

Seller's knowledge of discrepancy in vehicle identification number. - It was not error, in an action alleging violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., to refuse to grant summary judgment in favor of the defendant automobile seller, since the truck sold to the plaintiff buyer was confiscated as a stolen vehicle, and the evidence was that the seller's agent was timely notified of a model number discrepancy on the vehicle identification number plate. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645 , 391 S.E.2d 467 (1990).

Failure of manufacturer to notice defective door and the manufacturer's refusal to give the buyers, upon the buyer's refusal to allow the manufacturer to attempt to repair the vehicle, a new car, are not by themselves an unfair or deceptive practice affecting the consuming public. DeLoach v. General Motors, 187 Ga. App. 159 , 369 S.E.2d 484 (1988).

Lease of "used demo" automobile. - Automobile leased by plaintiffs from defendant dealer as a "used demo" was a "new" car, not a "used" car, and the fact that the car was previously titled to the dealer's son-in-law did not create an issue of fraud in violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Toirkens v. Willett Toyota, Inc., 192 Ga. App. 109 , 384 S.E.2d 218 (1989).

Fraud involving representing vehicle as more valuable model, which vehicle was not. - Trial court erred in granting summary judgment to an auto dealership in a purchaser's suit asserting fraud and violations of Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., with regard to the purchase of a vehicle as genuine issues of material fact existed as to each element, and the purchaser's certified letter to the auto dealership was sufficient to satisfy the ante litem notice requirement of the Act; it was irrelevant that the sale was rescinded as there was evidence that the auto dealership offered a vehicle for sale that was not the more valuable model that the dealership represented; and the merger clause in the purchase agreement did not prevent the purchaser from standing on any representation allegedly made by a salesperson since that provision directly contradicted the express provisions of the Act. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79 , 663 S.E.2d 779 (2008).

Advertisement offering option between lease and financed sale. - Automobile dealer's advertisement offering either an annual finance rate of 7.7 percent or a 48-month lease was not misleading or deceptive, when, although the customer may have misunderstood the distinction between the various offers made in the advertisement, the consumer admitted the consumer understood the difference between a financed sale and a lease. Blum v. GMAC, 185 Ga. App. 714 , 365 S.E.2d 474 (1988).

Negligent repair of individual vehicle. - Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., does not apply to negligent repair of individual vehicle when the damaged vehicle's owner brings the vehicle to a body shop and enters into a repair agreement and the body shop represents only that the vehicle has been repaired when the vehicle has not. Burdakin v. Hub Motor Co., 183 Ga. App. 90 , 357 S.E.2d 839 , cert. denied, 183 Ga. App. 90 5, 357 S.E.2d 839 (1987).

Dealership's role in odometer statement. - Trial court erred by granting summary judgment to an auto dealership on a buyer's claim for fraud against the dealership because the record created a question of fact as to whether the dealership issued a substantially inaccurate odometer statement even when more than one employee either knew that the written statement was false or recklessly disregarded the possibility that it was so. Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798 , 775 S.E.2d 172 (2015).

Arbitration agreement enforceable. - Car buyer's claim against a lender's assignee under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., could be compelled to arbitration pursuant to an agreement signed by the buyer. O.C.G.A. § 10-1-393(c) was preempted by the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., to the extent it conflicted with the FAA. Wells Fargo Auto Fin., Inc. v. Wright, 304 Ga. App. 621 , 698 S.E.2d 17 (2010).

Real Property

Misrepresentation by homeowner selling own house is not likely recurring "consumer" threat and, therefore, has no potential "impact" on general consuming public. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Any misrepresentation made by seller in context of selling the seller's own home is not made "in the conduct of any trade or business" but rather in course or private negotiations between two individual parties who have countervailing rights and liabilities established under common-law principles of contract, tort, and property law. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Misrepresentation by mortgage lender. - Homeowner's Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., claim against the homeowner's mortgage lender arising out of foreclosure of the homeowner's home failed because the Georgia Residential Mortgage Act, O.C.G.A. § 7-1-1000 et seq., prohibited mortgage businesses from, among other things, pursuing a course of misrepresentation by use of fraudulent or unauthorized documents or other means, O.C.G.A. § 7-1-1013(1) , foreclosing a claim under the FBPA, pursuant to O.C.G.A. § 10-1-396 . Stewart v. SunTrust Mortg., Inc., 331 Ga. App. 635 , 770 S.E.2d 892 (2015).

Misrepresentation by real estate broker. - Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., incorporates the "reliance" element of the common law tort of misrepresentation into the causation element of an FBPA claim; thus, a claim by purchasers against a real estate broker and sales associates for a violation of FBPA was barred for failure to show reasonable or justifiable reliance on the broker's representations. Allen v. Remax N. Atlanta, Inc., 213 Ga. App. 644 , 445 S.E.2d 774 (1994).

Single misrepresentation by business in isolated sale. - Single oral misrepresentation made by real estate business in context of isolated nondevelopmental sale of real property relating to unique facts concerning that property appears to be an essentially "private" controversy with no impact whatsoever on consumer marketplace. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Misrepresentation made to public or in connection with larger development. - It is arguable that in order to trigger the applicability of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., misrepresentation concerning a single parcel of real property must be made either in the context of a public medium addressed to the general public or, if not made "public," be made in context of an overall development of a larger tract of which an individual parcel is a part. Zeeman v. Black, 156 Ga. App. 82 , 273 S.E.2d 910 (1980).

Landlord's failure to repair fuse box. - Evidence that a landlord failed to repair a fuse box which malfunctioned in the tenant's trailer did not establish a prima facie cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq. Simpson v. Yonts, 197 Ga. App. 311 , 398 S.E.2d 407 (1990).

Trademarks, Names

Use of existing trademark. - Corporate poultry producer and marketer, by adopting and using the trademark GOLDEN MEDALLION on its frozen poultry products, infringed poultry cooperative's existing MEDALLION trademark and engaged in unfair competition and deceptive trade practices. Gold Kist, Inc. v. ConAgra, Inc., 708 F. Supp. 1291 (N.D. Ga. 1989).

Use of trade names. - Buyers' claim that the buyers were confused by the use of trade names belied the record because one buyer testified that the buyer knew exactly who the buyer was dealing with. Isbell v. Credit Nation Lending Serv., LLC, 319 Ga. App. 19 , 735 S.E.2d 46 (2012).

Trade name infringement. - Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., protects businesses from unfair or deceptive practices in the conduct of trade or commerce, including passing off goods or services as those of another, or causing actual confusion as to the source, sponsorship, approval, or certification of goods or services. Thus, the FBPA broadly protects against infringement on a protected trade name by use of a confusingly similar name. Inkaholiks Luxury Tattoos Georgia, LLC v. Parton, 324 Ga. App. 769 , 751 S.E.2d 561 (2013).

Use of balloons, costumes, and names of comic book characters by singing telegram company created confusion. DC Comics Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110 (N.D. Ga. 1984).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders. - A violation of paragraph (b)(29) of O.C.G.A. § 10-1-393 is an offense for which those charged with a violation are to be fingerprinted. 1996 Op. Att'y Gen. No. 96-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 1066 et seq., 1085 et seq., 1216.

Misrepresentation in Automobile Sales, 13 Am. Jur. Trials 253.

C.J.S. - 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, § 435 et seq.

ALR. - Right to protection against simulation of physical appearance or arrangement of place of business, or vehicle, 17 A.L.R. 784 ; 28 A.L.R. 114 .

Application of principles of unfair competition to artistic or literary property, 19 A.L.R. 949 .

Protection of business or trading corporation against use of same or similar name by another corporation, 66 A.L.R. 948 ; 72 A.L.R.3d 8.

Right of manufacturer to question reasonableness of regulation by individual or private corporation which excludes use of manufacturer's products, 81 A.L.R. 1422 .

Protection of business or trading corporation against use of same or similar name by another corporation, 115 A.L.R. 1241 .

Unfair competition in use of geographical trade name by persons carrying on business elsewhere, 174 A.L.R. 496 .

Right, in absence of self-imposed restraint, to use one's own name for business purposes to detriment of another using the same or a similar name, 44 A.L.R.2d 1156; 72 A.L.R.3d 8.

Construction and effect of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 54 A.L.R.2d 1187.

Criminal responsibility for fraud or false pretenses in connection with home repairs or installations, 99 A.L.R.2d 925.

Commercial competitor's truthful denomination of his goods as copies of designs of another, using designer's name, as trademark infringement, unfair competition, or the like, 1 A.L.R.3d 760.

Unfair competition by direct reproduction of literary, artistic, or musical property, 40 A.L.R.3d 566.

Validity, construction, and effect of state legislation regulating or controlling "bait-and-switch" or "disparagement" advertising or sales practices, 50 A.L.R.3d 1008.

Right of state, public official, or governmental entity to seek, or power of court to allow, restitution of fruits of consumer fraud, without specific statutory authorization, 55 A.L.R.3d 198.

Use of "family name" by corporation as unfair competition, 72 A.L.R.3d 8.

Trade dress simulation of cosmetic products as unfair competition, 86 A.L.R.3d 505.

Unfair competition by imitation in sign or design of business place, 86 A.L.R.3d 884.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 41 A.L.R.4th 675.

Private contests and lotteries: entrants' rights and remedies, 64 A.L.R.4th 1021.

Right to private action under state consumer protection act - Preconditions to action, 117 A.L.R.5th 155.

Application of Federal Trade Commission Act (15 U.S.C.A. §§ 41 et seq.) to web sites and their operators, 70 A.L.R. Fed. 2d 1.

Validity, construction, and application of state statute forbidding unfair trade practice or competition by discriminatory allowance of rebates, commissions, discounts, or the like, 83 A.L.R.6th 419.

Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4.

10-1-393.1. Office supply transactions; solicitations for telephone directory listings.

  1. Unfair or deceptive acts or practices by an office supplier in the conduct of office supply transactions in trade or commerce are declared unlawful.
  2. By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices by office suppliers in the conduct of office supply transactions are declared unlawful:
    1. Passing off goods or services as those of another;
    2. Falsely representing to any person that the office supplier is the usual supplier of goods, services, or property purchased by that person;
    3. Falsely representing to any person that the goods, services, or property sold, leased, rented, or shipped by the office supplier are the same brand as that person usually uses;
    4. Misrepresenting in any manner, including the use of a confusingly similar name, the manufacturer, supplier, or seller of the goods, services, or property;
    5. Representing that the prices an office supplier charges are less than a person usually pays for goods, services, or property, unless the goods, services, or property compared are identical and the representation is true;
    6. Shipping or supplying an amount or quantity of goods, services, or property to a person which is substantially greater than the amount or quantity which the person actually orders;
    7. Misrepresenting in any manner, including but not limited to failure to disclose material facts regarding the value of, any gift, prize, or award which will be given by an office supplier in conjunction with any office supply transaction;
    8. Falsely representing that there is an imminent price increase;
    9. Substituting any brand or quality of goods, services, or property for that actually ordered without prior approval of such substitution from the person ordering; or
      1. Solicitation for inclusion in the listing of a telephone classified advertising directory unless such solicitation form has prominently printed therein at least one inch apart from any other text on the form and in type size and boldness equal to or greater than any other type size and boldness on the form the words:

        "THIS IS NOT A BILL. THIS IS A SOLICITATION."

      2. For the purposes of this paragraph, the term "telephone classified advertising directory" refers to any telephone classified advertising directory which is distributed to some or all telephone subscribers in any area of the state and includes such directories distributed by telephone service companies as well as such directories distributed by other parties.
  3. An office supplier may not by contract, agreement, or otherwise limit the operation of this part, notwithstanding any other provision of law. (Code 1981, § 10-1-393.1 , enacted by Ga. L. 1986, p. 1046, § 2; Ga. L. 1995, p. 733, § 1; Ga. L. 2015, p. 1088, § 2/SB 148.)

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

Law reviews. - For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

10-1-393.2. Requirements for health spas.

  1. Health spas shall comply with the provisions of this Code section.
  2. A written contract shall be employed which shall constitute the entire agreement between the parties, a fully completed copy of which shall be furnished to the consumer at the time of its execution and which shall show the date of the transaction and the name and address of the seller; provided, however, that no contract shall be valid which has a term in excess of 36 months. Contracts may be renewable at the end of each 36 month period of time at the option of both parties to the contract.
  3. The contract or an attachment thereto shall state clearly any rules and regulations of the seller which are applicable to the consumer's use of the facilities or receipt of its services.
  4. The contract shall state clearly on its face the cancellation and refund policies of the seller.
  5. The health spa member shall have the right to cancel the contract within seven business days after the date of the signing of the contract by notifying the seller in writing of such intent and by either mailing the notice before 12:00 Midnight of the seventh business day after the date of the signing of the contract or by hand delivering the notice of cancellation to the health spa before 12:00 Midnight of the seventh business day following the date of the signing of the contract. The notice must be accompanied by the contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to the buyer. If the health spa member so cancels, any payments made under the contract will be refunded and any evidence of indebtedness executed by the health spa member will be canceled by the seller, provided that the member shall be liable for the fair market value of services actually received, which in no event shall exceed $100.00. The preparation of any documents shall not be construed to be services; provided, however, that any documents prepared which are merely ancillary to services which are actually rendered shall not prevent the health spa from charging for such services actually rendered up to the limits specified in this subsection. Each health spa contract shall contain the following paragraphs separated from all other paragraphs:

    The health spa shall fill in the blank spaces in the above paragraph before the consumer signs the contract. In the event a consumer fails to provide with the cancellation notice all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered, the health spa shall either cancel the contract or provide written notice by certified mail or statutory overnight delivery to the consumer that such documents must be provided within 30 days in order for the cancellation to be effective. In the event that the consumer provides the documents within 30 days, the contract shall be canceled as of the date on which the cancellation notice was delivered; provided, however, that should the consumer continue to use the facilities or services during the 30 day period, the cancellation shall be effective on the first business day following the last day on which the consumer uses the facilities or services.

  6. In the event a health spa no longer offers a substantial service which was offered at the time of the initiation of the contract, or in the event a health spa which previously limited its membership to members of one sex should become coeducational or one which was previously coeducational should become limited to members of one sex, the member shall have 30 days from the time the member knew or should have known of the change to cancel the remainder of the membership and receive a refund. The refund shall be calculated by dividing the total cost of the membership by the total number of months under the membership and refunding the monthly cost for any months or fractions of months remaining under the membership. The contract shall contain a clause in at least ten-point boldface type which reads as follows:

    "You (the buyer) may cancel this agreement within 30 days from the time you knew or should have known of any substantial change in the services or programs available at the time you joined. Substantial changes include, but are not limited to, changing from being coed to being exclusively for one sex and vice versa. To cancel, send written notice of your cancellation to the address provided in this contract for sending a notice of cancellation. The best way to cancel is by keeping a photocopy and sending the cancellation by registered or certified mail or statutory overnight delivery, return receipt requested."

    The provisions of this subsection shall not apply in any instance where a court has ordered that a change be made in the sexual character of the health spa. The Attorney General is authorized upon petition to issue a declaratory ruling under Code Section 50-13-11 as to whether any planned change in a health spa is a substantial change or whether alternate locations are substantially similar under this Code section. Such declaratory rulings shall be subject to review as under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

  7. Every contract for health spa services shall contain a clause providing that if the member becomes totally and permanently disabled during the membership term, he or she may cancel his or her contract and that the health spa is entitled to a reasonable predetermined fee in such event in addition to an amount equal to the value of services made available for use. This amount shall be computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months expired under the membership term. The health spa shall have the right to require and verify reasonable evidence of total and permanent disability. For purposes of this subsection, "total and permanent disability" means a condition which has existed or will exist for more than 45 days and which will prevent the member from using the facility to the same extent as the member used it before commencement of the condition.
  8. The health spa contract shall state that if a consumer has a history of heart disease, he should consult a physician before joining a spa.
  9. Every health spa contract shall comply with either paragraph (1) or paragraph (2) of this subsection:
      1. The written contract used shall contain the following clause: "Under this contract, no further payments shall be due to anyone, including any purchaser of any note associated with or contained in this contract, in the event the health spa at which the contract is entered into ceases operation and fails to offer an alternate location, substantially similar, within ten miles."
      2. All payments due under the contract must be in equal monthly installments spread over the entire term of the contract.
      3. There can be no payments of any type, including, but not limited to, down payments, enrollment fees, membership fees, or any other direct payment to the health spa, other than the equal monthly installment payments.
      4. There can be no complimentary, compensatory, or other extensions of the term incident to the term of the contract, including but not limited to a promise of lifetime renewal for a minimal annual fee, provided that an agreement of both parties to extend the term of the contract to compensate for time during which the member could not fully utilize the spa due to a temporary physical or medical condition arising after the member joined shall not be considered to bring the spa into noncompliance under this paragraph; or
      1. The written contract used shall contain the following clause: "Under this contract, no further payments shall be due to anyone, including any purchaser of any note associated with or contained in this contract, in the event the health spa at which the contract is entered into ceases operation and fails to offer an alternate location, substantially similar, within ten miles."
      2. The written contract shall contain the following statement in boldface type which is larger and bolder than any other type which is in the contract and in at least 14 point boldface, which statement must be separately signed by the consumer:

        State law requires that we inform you that should you (the buyer) choose to pay for any part of this agreement in advance, be aware that you are paying for future services and may be risking loss of your money in the event this health spa ceases to conduct business. Health spas do not post a bond, and there may be no other protections provided to you should you choose to pay in advance."

  10. An alternate location for a health spa shall not be considered substantially similar if:
    1. The original facility was limited to use by members of one sex and the alternate facility is used by members of both sexes;
    2. The original facility was for use by members of both sexes and the alternate facility's use is limited to members of one sex; or
    3. The size, facilities, equipment, or services available to the member at the alternate location are not substantially equal to or do not exceed the size, facilities, equipment, or services available to the member at the health spa location at which the contract was entered into.
  11. Every contract for health spa services shall contain a clause providing that if the member dies during the membership term or any renewal term, his or her estate may cancel the contract and that the health spa is entitled to a reasonable predetermined fee in such event in addition to an amount computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months expired under the membership term. The contract may require the member's estate seeking relief under this subsection to provide reasonable proof of death.
    1. A health spa shall not enter or offer to enter into a health spa agreement with a consumer unless the health spa is fully operational and available for use.
    2. For purposes of this subsection, "fully operational and available for use" means that all of the facilities, equipment, or services which are promised at the time of entering into the membership contract are operational and available for use at that time. Nothing contained in this subsection shall be construed to prohibit a health spa from selling a membership for existing services and facilities at a location under construction which can be converted at a later date to a membership for additional services and facilities, provided that:
      1. The additional services and facilities are fully operational and available for use at the time of the conversion;
      2. Additional consideration, other than just a nominal consideration, is required from the consumer under the terms of the conversion; and
      3. The member has until seven days following the date the additional consideration or a part of the additional consideration becomes due and owing to cancel the remainder of the contract and receive a refund computed by dividing the total cost of the membership by the total number of months under the membership and multiplying the result by the number of months remaining under the membership term.
    3. The provisions of this subsection shall not apply if all of the following conditions are met:
      1. The health spa has submitted forms prescribed by the Attorney General requiring, in addition to whatever other information the Attorney General may require, as much detail as to the size, facilities, equipment, or services to be provided as the Attorney General may require;
      2. The health spa has obtained the approval in writing of the Attorney General to sell memberships to a health spa before it is fully operational and available for use;
      3. The health spa has agreed in writing with the Attorney General, on forms prescribed by the Attorney General, to deposit all funds obtained by selling memberships before a health spa is fully operational and available for use in a single account in a bank or trust company domiciled in the State of Georgia. Such deposits are to be held in safekeeping for release only upon authorization of the Attorney General. The bank or trust company must be approved by the Attorney General. The Attorney General may consult with the commissioner of banking and finance or with any of the employees of the commissioner of banking and finance regarding whether the bank or trust company should be approved and may disapprove the bank or trust company if he or she has reason to believe any deposits into the account might not be secure;
      4. Each deposit to the single account established under this paragraph shall be identified by the name and address of the individual who purchased the membership. The bank or trust company and the health spa shall maintain a list of the deposits, their amount, and the name and address of the membership purchaser, which list shall be available to the Attorney General or for inspection or copying by the Attorney General;
      5. The condition of the account established under this paragraph shall be that no funds shall be released from the account to any person unless the Attorney General has certified in writing to the bank or trust company that either the health spa is fully operational and available for use or that the health spa has not complied and does not appear likely to comply with its obligation to make the health spa fully operational and available for use in accordance with the documents submitted to the Attorney General or in accordance with representations made to membership purchasers. No action may be maintained in any court against the Attorney General or any of his or her employees for any determination or as a consequence of any determination made by the Attorney General under this subparagraph. Nothing contained or implied in this subparagraph shall operate or be construed or applied to deprive the Attorney General or any employee of any immunity, indemnity, benefits of law, rights, or any defense otherwise available by law;
      6. If the Attorney General certifies to the bank or trust company that the health spa is fully operational and available for use, then the funds in the account shall be released to the health spa, along with any accrued interest. If the Attorney General certifies to the bank or trust company that the health spa has not complied and does not appear likely to comply with its obligation to make the health spa fully operational and available for use, then the funds in the account shall be released to the Attorney General on behalf of the individuals who purchased memberships prior to the health spa's being fully operational and available for use. Any accrued interest on the account shall be paid on a pro rata basis to the membership purchasers;
      7. Any costs imposed by the bank or trust company for administering the account shall be borne by the health spa; and
      8. The member shall have until seven business days following the date upon which the health spa becomes fully operational and available for use to cancel the contract and receive a full refund of any payments and the cancellation of any evidence of indebtedness, provided that the member shall be liable for the fair market value of any services actually received, which in no event shall exceed $50.00. The preparation of any documents shall not be construed to be services; provided, however, that all documents prepared which are merely ancillary to services which are actually rendered shall not prevent the health spa from charging for such services actually rendered up to the limits specified in this subparagraph.
  12. All moneys due the consumer under contracts canceled for the reasons contained in this Code section shall be refunded within 30 days of receipt of such notice of cancellation. The notice must be accompanied by the contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to the buyer, except in the case of a deceased member. In the event a consumer fails to provide with the cancellation notice all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered, the health spa shall either cancel the contract or provide written notice by certified mail or statutory overnight delivery to the consumer that such documents must be provided within 30 days in order for the cancellation to be effective. In the event that the consumer provides the documents within 30 days, the contract shall be canceled as of the date on which the cancellation notice was delivered; provided, however, that should the consumer continue to use the facilities or services during the 30 day period, the cancellation shall be effective on the first business day following the last day on which the consumer uses the facility or services.
  13. Any contract which does not comply with this Code section shall be void and unenforceable; no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note or to report the buyer as delinquent to any consumer reporting or consumer credit reporting agency if there has been any violation by the health spa of subsections (b) through (m) or of subsection (o) of this Code section. Any attempt by any purchaser or by any agent of any purchaser to collect on the note or to report the buyer as delinquent as described in this subsection shall be considered an unfair and deceptive act or practice as provided in Code Section 10-1-393.
  14. After November 15, 1989, no health spa contract shall be valid or enforceable unless the health spa operator has on file a statement signed by the Attorney General certifying that a copy of the contract is on file with the Attorney General and is in compliance with this part. Health spas may begin submitting a copy of their contract for approval by the Attorney General on July 1, 1989, and shall submit all contract changes thereafter for approval prior to entering or offering to enter into that contract with a consumer. In addition to any action which may be taken by the Attorney General under this part, and in addition to any recovery of a consumer in the private action provided for under this part, any consumer who has entered into a contract which has not been approved by the Attorney General prior to the date of the contract shall be entitled to recover as an additional penalty an amount equal to any amount paid plus any amount claimed owing on the contract.
  15. In addition to any other penalties provided for in this part, any person who operates or aids or assists in the operation of a health spa in violation of any of the provisions of subsection (i) or (o) of this Code section shall be guilty of a misdemeanor. Each day of operation of a health spa in violation of subsection (i) or (o) shall be considered a separate and distinct violation. In addition to any other penalties provided in this part, any person who violates subsection (l) of this Code section shall be guilty of a felony. Each sale of a membership in violation of subsection (l) of this Code section shall be considered a separate and distinct violation. Each failure to place properly all of the funds generated from a particular membership agreement into a properly approved and established trust account shall be considered a separate and distinct violation. (Code 1981, § 10-1-393.2 , enacted by Ga. L. 1989, p. 1606, § 2; Ga. L. 1999, p. 81, § 10; Ga. L. 2000, p. 1589, § 3; Ga. L. 2015, p. 1088, § 2/SB 148; Ga. L. 2016, p. 846, § 10/HB 737; Ga. L. 2017, p. 774, § 10/HB 323.)

"You (the buyer) have seven business days to cancel this contract. To cancel, mail or hand deliver a letter to the following address: _________________________________________________________________________ Name of health spa _________________________________________________________________________ Street address _________________________________________________________________________ City, State, ZIP Code Do not sign this contract if there are any blank spaces above. In the event optional services are offered, be sure that any options you have not selected are lined through or that it is otherwise indicated that you have not selected these options. It is recommended that you send your cancellation notice by registered or certified mail or statutory overnight delivery, return receipt requested, in order to prove that you did cancel. If you do hand deliver your cancellation, be sure to get a signed statement from an official of the spa acknowledging your cancellation. To be effective, your cancellation must be postmarked by midnight, or hand delivered by midnight on (date) , , and must include all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to you."

"NOTICE

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" throughout the Code section; inserted "or her" in the first sentence of subsection (g); in subsection (l), inserted "or she" near the end of subparagraph (l)(3)(C), in subparagraph (l)(3)(E), in the second sentence, inserted "or her" near the beginning and substituted "Attorney General under this subparagraph. Nothing contained or implied in this subparagraph shall operate or be construed or applied to deprive the Attorney General or any employee of any immunity, indemnity, benefits of law, rights, or any defense otherwise available by law" for "administrator under this subparagraph unless the administrator's determination was a willful and wanton abuse of discretion given the facts and circumstances actually provided to the administrator in making this determination" at the end; and substituted "Attorney General" for "administrator or his designee" in the first sentence of subsection (o).

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, inserted "on" following "delivered by midnight" in the contract provisions of subsection (e).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "he or she" for "he" near the beginning of subsection (g).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Violation of O.C.G.A. § 10-1-393.2 . - Since it was apparent from the face of the health club contracts that the contracts did not comply with the requirements of O.C.G.A. § 10-1-393.2 , summary judgment was properly granted to defendants. Georgia Receivables, Inc. v. Te, 240 Ga. App. 292 , 523 S.E.2d 352 (1999).

Contract was void and unenforceable for failing to comply with statute. - If the required language was not set out in three separate paragraphs as the statute requires, the language in the contract regarding the buyer's rights was not separated from all other paragraphs as the statute requires, and the consumer was not given a specific date for the last date to cancel the contract, then the health spa membership contract was void and unenforceable. Georgia Receivables, Inc. v. Welch, 242 Ga. App. 146 , 529 S.E.2d 164 (2000).

Compliance with O.C.G.A. § 10-1-393.2 required. - In an action to collect payment under a health spa contract, grant of summary judgment to defendant based upon violations of O.C.G.A. § 10-1-393.2 was authorized even though defendant failed to raise the issue because any contract that does not comply with § 10-1-393.2 is void and unenforceable under subsection (n). Georgia Receivables, Inc. v. Kirk, 242 Ga. App. 801 , 531 S.E.2d 393 (2000).

Exculpatory clauses upheld in gym contract. - Trial court properly granted various gym defendants summary judgment in a member's suit for negligence because three agreements signed by the member contained unambiguous exculpatory clauses and constituted clear and express waivers and releases from liability. Herren v. Sucher, 325 Ga. App. 219 , 750 S.E.2d 430 (2013).

RESEARCH REFERENCES

ALR. - Liability of proprietor of private gymnasium, reducing salon, or similar health club for injury to patron, 79 A.L.R.4th 127.

Construction and applicability of state statutes governing health club membership contracts or fees, 48 A.L.R.6th 223.

10-1-393.3. Prohibited use of purchaser's credit card information by merchant.

  1. As used in this Code section, the term "merchant" means any person who offers goods, wares, merchandise, or services for sale to the public and shall include an employee of a merchant.
  2. A merchant shall be prohibited from requiring a purchaser to provide the purchaser's personal or business telephone number as a condition of purchase when payment for the transaction is made by credit card.
  3. A merchant shall be prohibited from using a purchaser's credit card to imprint the information contained on the credit card on the face or back of a check or draft from the purchaser as a condition of acceptance of such check or draft as payment for a purchase.
  4. A merchant shall be prohibited from recording in any manner the number of a purchaser's credit card as a condition of acceptance of a check or draft of the purchaser as payment for a purchase.
  5. Any merchant who violates the provisions of this Code section shall be subject to the penalties provided in this part.
  6. This Code section shall not prohibit a merchant from:
    1. Recording a credit card number and expiration date as a condition to cashing or accepting a check where the merchant has agreed with the credit card issuer to cash or accept such checks as a service to the issuer's cardholders and the issuer has agreed with the merchant to guarantee payment of all cardholder checks cashed or accepted by the merchant;
    2. Requesting a purchaser to display a credit or charge card as a means of identification or as an indication of credit worthiness or financial responsibility;
    3. Recording on the check or elsewhere the type of credit or charge card displayed for the purposes of paragraph (2) of this subsection and the credit or charge card expiration date; or
    4. Recording the address or telephone number of a credit cardholder if the information is necessary for the shipping, delivery, or installation of consumer goods or for special orders of consumer goods or services.
  7. This Code section shall not require acceptance of a check or draft because a credit card is presented. (Code 1981, § 10-1-393.3 , enacted by Ga. L. 1991, p. 1101, § 1; Ga. L. 1992, p. 6, § 10; Ga. L. 2015, p. 1088, § 2/SB 148.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1991, in subsection (f), a semicolon was substituted for the period at the end of paragraph (f)(1) and a comma was deleted following "identification" in paragraph (f)(2).

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

Law reviews. - For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 7 (1992). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

10-1-393.4. Pricing practices during state of emergency.

  1. It shall be an unlawful, unfair, and deceptive trade practice for any person, firm, or corporation doing business in any area in which a state of emergency, as such term is defined in Code Section 38-3-3, has been declared, for so long as such state of emergency exists, to sell or offer for sale at retail any goods or services identified by the Governor in the declaration of the state of emergency necessary to preserve, protect, or sustain the life, health, or safety of persons or their property at a price higher than the price at which such goods were sold or offered for sale immediately prior to the declaration of a state of emergency; provided, however, that such price may be increased only in an amount which accurately reflects an increase in cost of the goods or services to the person selling the goods or services or an increase in the cost of transporting the goods or services into the area.
  2. Notwithstanding the provisions of subsection (a) of this Code section, a retailer may increase the price of goods or services during a state of emergency if the price charged for those goods or services is no greater than the cost to the retailer of those goods or services, plus the retailer's average markup percentage applied during the ten days immediately prior to the declaration of a state of emergency. (Code 1981, § 10-1-393.4 , enacted by Ga. L. 1995, p. 1362, § 1; Ga. L. 2010, p. 213, § 1/SB 237; Ga. L. 2015, p. 1088, § 2/SB 148.)

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

10-1-393.5. Telemarketing, computer activities, and home repair or improvement work; certain prohibitions; offenses.

  1. For purposes of this Code section, the term "telemarketing" shall have the same meaning which it has under 16 Code of Federal Regulations Part 310, the Telemarketing Sales Rule of the Federal Trade Commission, except that the term "telemarketing" shall also include those calls made in intrastate as well as interstate commerce.
  2. Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, it shall be unlawful for any person who is engaged in telemarketing, any person who is engaged in any activity involving or using a computer or computer network, or any person who is engaged in home repair work or home improvement work to:
    1. Employ any device, scheme, or artifice to defraud a person, organization, or entity;
    2. Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon a person, organization, or entity; or
    3. Commit any offense involving theft under Code Sections 16-8-2 through 16-8-9.
      1. "Photograph" means a photograph of a subject individual that was taken in this state by an arresting law enforcement agency.
      2. "Subject individual" means an individual who was arrested and had his or her photograph taken and:
        1. Access to his or her case or charges was restricted pursuant to Code Section 3-3-23.1, 15-1-20, 16-13-2, 35-3-37, or 42-8-62.1;
        2. Prior to indictment, accusation, or other charging instrument, his or her case was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency and the offense against such individual was closed by the arresting law enforcement agency;
        3. Prior to indictment, accusation, or other charging instrument, the statute of limitations expired;
        4. Prior to indictment, accusation, or other charging instrument, his or her case was referred to the prosecuting attorney but was later dismissed;
        5. Prior to indictment, accusation, or other charging instrument, the grand jury returned two no bills;
        6. After indictment or accusation, all charges were dismissed or nolle prossed;
        7. After indictment or accusation, the individual pleaded guilty to or was found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug and was sentenced in accordance with the provisions of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation; or
        8. The individual was acquitted of all of the charges by a judge or jury.

          (2) Any person who is engaged in any activity involving or using a computer or computer network who publishes on such person's publicly available website a subject individual's arrest booking photograph for purposes of commerce shall be deemed to be transacting business in this state. Within 30 days of the sending of a written request by a subject individual, including his or her name, date of birth, date of arrest, and the name of the arresting law enforcement agency, such person shall, without fee or compensation, remove from such person's website the subject individual's arrest booking photograph. Such written request shall be transmitted via certified mail, return receipt requested, or statutory overnight delivery, to the registered agent, principal place of business, or primary residence of the person who published the website. Without otherwise limiting the definition of unfair and deceptive acts or practices under this part, a failure to comply with this paragraph shall be unlawful.

    (b.1) (1) As used in this subsection, the term:

  3. In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12. In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section.
  4. Any person who intentionally targets an elder or disabled person, as defined in Article 31 of this chapter, in a violation of subsection (b) of this Code section shall be subject to an additional civil penalty, as provided in Code Section 10-1-851.
  5. Persons employed full time or part time for the purpose of conducting potentially criminal investigations under this article shall be certified peace officers and shall have all the powers of a certified peace officer of this state when engaged in the enforcement of this article, including but not limited to the power to obtain, serve, and execute search warrants. Such Georgia certified peace officers shall be subject to the requirements of Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act," and are specifically required to complete the training required for peace officers by that chapter. Such certified peace officers shall be authorized, upon completion of the required training, with the written approval of the Attorney General, and notwithstanding Code Sections 16-11-126 and 16-11-129, to carry firearms of a standard police issue when engaged in detecting, investigating, or preventing crimes under this article.
  6. The Attorney General shall be authorized to promulgate procedural rules relating to his or her enforcement duties under this Code section. (Code 1981, § 10-1-393.5 , enacted by Ga. L. 1996, p. 231, § 1; Ga. L. 1997, p. 1507, § 2; Ga. L. 2004, p. 631, § 10; Ga. L. 2010, p. 963, § 2-1/SB 308; Ga. L. 2013, p. 613, § 1/HB 150; Ga. L. 2015, p. 1088, § 2/SB 148; Ga. L. 2016, p. 443, § 6C-1/SB 367; Ga. L. 2020, p. 753, § 2-2/SB 288.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" in the last sentence of subsection (e) and in subsection (f).

The 2016 amendment, effective July 1, 2016, substituted "Code Section 15-1-20, 35-3-37, or 42-8-62.1" for "Code Section 35-3-37" at the end of division (b.1)(1)(B)(i).

The 2020 amendment, effective January 1, 2021, inserted "3-3-23.1" and "16-13-2" in division (b.1)(1)(B)(i).

Cross references. - Deceptive, fraudulent, or abusive telemarketing, § 10-5B-1 et seq.

Editor's notes. - Ga. L. 2010, p. 963, § 3-1/SB 308, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to all offenses committed on and after June 4, 2010, and shall not affect any prosecutions for acts occurring before June 4, 2010, and shall not act as an abatement of any such prosecution.

Law reviews. - For article, "Problems Arising Out of the Use of 'www.Trademark.Com': The Application of Principles of Trademark Law to Internet Domain Name Disputes," see 13 Ga. St. U.L. Rev. 455 (1997). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 29 (1997). For article, "Crimes and Offenses," see 27 Ga. St. U.L. Rev. 131 (2011). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 139 (2016). For note, "Tilting at Windmills: Defamation and the Private Person in Cyberspace," see 13 Ga. St. U.L. Rev. 547 (1997). For review of 1996 commerce and trade legislation, see 13 Ga. St. U.L. Rev. 33 (1996).

RESEARCH REFERENCES

ALR. - Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution, 98 A.L.R.5th 167.

Fraudulent representations concerning price, discount, condition, quality, availability or shipping costs of consumer goods and services sold on internet, 38 A.L.R.7th Art. 4.

10-1-393.6. Unlawful telemarketing transactions; criminal penalty.

  1. For purposes of this Code section, the term "telemarketing" shall have the same meaning which it has under Code Section 10-1-393.5.
  2. Without otherwise limiting the definition of unfair or deceptive acts or practices under this part and without limiting any other Code section under this part, it shall be unlawful for any person to:
    1. In connection with a telemarketing transaction, request a fee in advance to remove derogatory information from or improve a person's credit history or credit record;
    2. Request or receive payment in advance from a person to recover, or otherwise aid in the return of, money or any other item lost by the consumer in a prior telemarketing transaction; provided, however, that this paragraph shall not apply to goods or services provided to a person by a licensed attorney; or
    3. In connection with a telemarketing transaction, procure the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected.
  3. In addition to any civil penalties under this part, any person who intentionally violates subsection (b) of this Code section shall be subject to a criminal penalty under paragraph (5) of subsection (a) of Code Section 16-8-12 . In addition thereto, if the violator is a corporation, each of its officers and directors may be subjected to a like penalty; if the violator is a sole proprietorship, the owner thereof may be subjected to a like penalty; and, if the violator is a partnership, each of the partners may be subjected to a like penalty, provided that no person shall be subjected to a like penalty if the person did not have prior actual knowledge of the acts violating subsection (b) of this Code section. (Code 1981, § 10-1-393.6 , enacted by Ga. L. 1998, p. 643, § 2; Ga. L. 2004, p. 631, § 10; Ga. L. 2015, p. 1088, § 2/SB 148.)

Cross references. - Deceptive, fraudulent, or abusive telemarketing, § 10-5B-1 et seq.

Editor's notes. - Ga. L. 1998, p. 643, § 6, not codified by the General Assembly, provides that this Code section shall apply to acts and offenses committed on or after July 1, 1998.

Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

Law reviews. - For review of 1998 legislation relating to commerce and trade, see 15 Ga. St. U.L. Rev. 9 (1998).

10-1-393.7. Solicitation during final illness; penalty.

  1. Without otherwise limiting the definition of unfair or deceptive acts or practices under this part, it shall be unlawful for any person to solicit another during such other's final illness or during the final illness of any other person for the purpose of persuading a person who is suffering from his or her final illness or a person acting on behalf of such person to seek refund of moneys paid for an existing preneed contract for burial services or merchandise or funeral services or merchandise.
  2. In addition to any other penalty imposed for the violation of this Code section, the administrative agency which issues a finding of violation shall order the violator to pay restitution in the amount of the refund to the person, corporation, partnership, or other legal entity which refunded moneys paid for an existing preneed contract for burial services or merchandise or funeral services or merchandise. (Code 1981, § 10-1-393.7 , enacted by Ga. L. 2000, p. 882, § 2; Ga. L. 2015, p. 1088, § 2/SB 148.)

Cross references. - Georgia Cemetery and Funeral Services Act of 2000, § 10-14-1 et seq.

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

10-1-393.8. Protection from disclosure of an individual's social security number.

  1. Except as otherwise provided in this Code section, a person, firm, or corporation shall not:
    1. Publicly post or publicly display in any manner an individual's social security number. As used in this Code section, "publicly post" or "publicly display" means to intentionally communicate or otherwise make available to the general public;
    2. Require an individual to transmit his or her social security number over the Internet, unless the connection is secure or the social security number is encrypted; or
    3. Require an individual to use his or her social security number to access an Internet website, unless a password or unique personal identification number or other authentication device is also required to access the Internet website.
  2. This Code section shall not apply to:
    1. The collection, release, or use of an individual's social security number as required by state or federal law;
    2. The inclusion of an individual's social security number in an application, form, or document sent by mail, electronically transmitted, or transmitted by facsimile:
      1. As part of an application or enrollment process;
      2. To establish, amend, or terminate an account, contract, or policy; or
      3. To confirm the accuracy of the individual's social security number;
    3. The use of an individual's social security number for internal verification or administrative purposes; or
    4. An interactive computer service provider's or a telecommunications provider's transmission or routing of, or intermediate temporary storage or caching of, an individual's social security number.
  3. This Code section shall not impose a duty on an interactive computer service provider or a telecommunications provider actively to monitor its service or to affirmatively seek evidence of the transmission of social security numbers on its service.
  4. Notwithstanding the provisions of this Code section, the clerks of superior court of this state and the Georgia Superior Court Clerks' Cooperative Authority shall be held harmless for filing, publicly posting, or publicly displaying any document containing an individual's social security number that the clerk is otherwise required by law to file, publicly post, or publicly display for public inspection. (Code 1981, § 10-1-393.8 , enacted by Ga. L. 2006, p. 486, § 1/SB 588; Ga. L. 2015, p. 1088, § 2/SB 148.)

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

JUDICIAL DECISIONS

Tort action for wrongful disclosure of private information dismissed for failure to state cause of action. - Dismissal of the plaintiff's cause of action against a state agency for disclosure of private information in violation of the Georgia Personal Identity Protection Act (GPIPA), O.C.G.A. § 10-1-910 et seq., was affirmed for failure to state a claim because the GPIPA did not impose any standard of conduct in implementing and maintaining data security practices; thus, it could not serve as the source of a statutory duty to safeguard personal information. McConnell v. Department of Labor, 337 Ga. App. 457 , 787 S.E.2d 794 (2016).

10-1-393.9. Registration of private child support collectors; surety bond or alternative.

  1. Private child support collectors shall register with the Secretary of State and shall provide information as requested by the Secretary of State, including, but not limited to, the name of the private child support collector, the office address and telephone number for such entity, and the registered agent in this state on whom service of process is to be made in a proceeding against such private child support collector.
  2. An application for registration shall be accompanied by a surety bond filed, held, and approved by the Secretary of State, and the surety bond shall be:
    1. Issued by a surety authorized to do business in this state;
    2. In the amount of $50,000.00;
    3. In favor of the state for the benefit of a person damaged by a violation of this Code section; and
    4. Conditioned on the private child support collector's compliance with this Code section and Code Section 10-1-393.10 and the faithful performance of the obligations under the private child support collector's agreements with its clients.
  3. In lieu of a surety bond, the Secretary of State may accept a deposit of money in the amount of $50,000.00. The Secretary of State shall deposit any amounts received under this subsection in an insured depository account designated for that purpose. (Code 1981, § 10-1-393.9 , enacted by Ga. L. 2009, p. 1001, § 3/HB 189; Ga. L. 2015, p. 1088, § 2/SB 148.)

Editor's notes. - Ga. L. 2009, p. 1001, § 6, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to all contracts for private collection of child support payments entered into on or after July 1, 2009.

Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

10-1-393.10. Filing contracts for child support collection; requirements for contracts; role of collector; cancellation of contract; forwarding of payments.

  1. Any contract for the collection of child support between a private child support collector and an obligee shall be filed by the private child support collector with the office of the Attorney General.
  2. Any contract for the collection of child support between a private child support collector and an obligee shall be in writing, in at least ten-point type, and signed by such private child support collector and obligee. The contract shall include:
    1. An explanation of the nature of the services to be provided;
    2. An explanation of the amount to be collected from the obligor by the private child support collector and a statement of a sum certain of the total amount that is to be collected by the private child support collector that has been engaged by the obligee;
    3. An explanation in dollar figures of the maximum amount of fees which could be collected under the contract and an example of how fees are calculated and deducted;
    4. A statement that fees shall only be charged for collecting past due child support, although the contract may include provisions to collect current and past due child support;
    5. A statement that a private child support collector shall not retain fees from collections that are primarily attributable to the actions of the department and that a private child support collector shall be required by law to refund any fees improperly retained;
    6. An explanation of the opportunities available to the obligee or private child support collector to cancel the contract or other conditions under which the contract terminates;
    7. The mailing address, telephone numbers, facsimile numbers, and e-mail address of the private child support collector;
    8. A statement that the private child support collector shall only collect money owed to the obligee and not child support assigned to the State of Georgia;
    9. A statement that the private child support collector is not a governmental entity and that the department provides child support enforcement services at little or no cost to the obligee; and
    10. A statement that the obligee may continue to use or pursue services through the department to collect child support.
  3. A private child support collector shall not:
    1. Improperly retain fees from collections that are primarily attributable to the actions of the department. If the department or an obligee notifies a private child support collector of such improper fee retention, such private child support collector shall refund such fees to the obligee within seven business days of the notification of the improper retention of fees and shall not be liable for such improper fee retention. A private child support collector may require documentation that the collection was primarily attributable to the actions of the department prior to issuing any refund;
    2. Charge fees in excess of one-third of the total amount of child support payments collected;
    3. Solicit obligees using marketing materials, advertisements, or representations reasonably calculated to create a false impression or mislead an obligee into believing the private child support collector is affiliated with the department or any other governmental entity;
    4. Use or threaten to use violence or other criminal means to cause harm to an obligor or the property of the obligor;
    5. Falsely accuse or threaten to falsely accuse an obligor of a violation of state or federal laws;
    6. Take or threaten to take an enforcement action against an obligor that is not authorized by law;
    7. Represent to an obligor that the private child support collector is affiliated with the department or any other governmental entity authorized to enforce child support obligations or fail to include in any written correspondence to an obligor the statement that "This communication is from a private child support collector. The purpose of this communication is to collect a child support debt. Any information obtained will be used for that purpose.";
    8. Communicate to an obligor's employer, or his or her agent, any information relating to an obligor's indebtedness other than through proper legal action, process, or proceeding;
    9. Communicate with an obligor whenever it appears the obligor is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondences, return telephone calls, or discuss the obligation in question, or unless the attorney and the obligor consent to direct communication;
    10. Contract with an obligee who is owed less than three months of child support arrearages; or
    11. Contract with an obligee for a sum certain to be collected which is greater than the total sum of arrearages and the statutory interest owed as of the date of execution of the contract.
  4. In addition to any other cancellation or termination provisions provided in the contract between a private child support collector and an obligee, the contract shall be cancelled or terminate if:
    1. The obligee requests cancellation in writing within 30 days of signing the contract;
    2. The obligee requests cancellation in writing after any 12 consecutive months in which the private child support collector fails to make a collection;
    3. The private child support collector breaches any term of the contract or violates any provision contained within this Code section; or
    4. The amount to be collected pursuant to the contract has been collected.
  5. When it reasonably appears to the Attorney General that a private child support collector has contracted with obligees on or after July 1, 2009, using a contract that is not in compliance with this Code section, the Attorney General may demand pursuant to Code Section 10-1-403 that such private child support collector produce a true and accurate copy of each such contract. If such private child support collector fails to comply or the contracts are determined by the Attorney General to not be compliant with the provisions of this Code section, the Attorney General may utilize any of the powers vested in this part to ensure compliance.
  6. Upon the request of an obligee, the entity within the department authorized to enforce support orders shall forward child support payments made payable to the obligee to any private child support collector that is in compliance with the provisions of this Code section and Code Section 10-1-393.9.
  7. The remedies provided in this part shall be cumulative and shall be in addition to any other procedures, rights, or remedies available under any other law.
  8. Any waiver of the rights, requirements, and remedies provided by this Code section that are contained in a contract between a private child support collector and an obligee violates public policy and shall be void. (Code 1981, § 10-1-393.10 , enacted by Ga. L. 2009, p. 1001, § 3/HB 189; Ga. L. 2015, p. 1088, § 2/SB 148; Ga. L. 2017, p. 646, § 2-2/SB 137.)

The 2015 amendment, effective July 1, 2015, substituted "office of the Attorney General" for "Governor's Office of Consumer Affairs" in subsection (a); and substituted "Attorney General" for "administrator" throughout subsection (e).

The 2017 amendment, effective July 1, 2017, in subsection (f), substituted "entity within" for "Child Support Enforcement Agency of" near the beginning and inserted "authorized to enforce support orders" near the middle.

Editor's notes. - Ga. L. 2009, p. 1001, § 6, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to all contracts for private collection of child support payments entered into on or after July 1, 2009.

Ga. L. 2017, p. 646, § 2-2/SB 137, which amended this Code section, purported to amend subsection (f), but no directory language revising subsection (f) was set out in the Act.

10-1-393.11. Display of disclosure statement concerning kosher foods; required information; exception.

  1. A person who makes a representation regarding kosher food shall prominently and conspicuously display on the premises on which the food is sold, in a location readily visible to the consumer, a completed kosher food disclosure statement which shall be updated within 14 days of any changes in the information required by subsections (b) through (e) of this Code section.
  2. A kosher food disclosure statement shall set forth the name and address of the establishment to which it applies and the date on which it was completed.
  3. A kosher food disclosure statement shall state in the affirmative or negative whether the person:
    1. Operates under rabbinical or other kosher supervision;
    2. Sells or serves only food represented as kosher;
    3. Sells or serves food represented as kosher, as well as food not represented as kosher;
    4. Sells or serves meat, dairy, and pareve food;
    5. Sells or serves only meat and pareve food;
    6. Sells or serves only dairy and pareve food;
    7. Sells or serves meat and poultry represented as kosher only if it is slaughtered under rabbinical or other kosher supervision and identified at the slaughterhouse to be sold as kosher;
    8. Represents kosher meat sold as "Glatt kosher" or "Glatt";
    9. Sells or serves seafood only if it has or had fins and removable scales;
    10. Keeps separate meat represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
    11. Uses separate utensils for meat represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
    12. Uses separate work areas for meat and poultry represented as kosher, dairy represented as kosher, pareve food represented as kosher, and food not represented as kosher;
    13. Sells or serves wine represented as kosher only if it has rabbinical supervision;
    14. Sells or serves cheese represented as kosher only if it has rabbinical supervision;
    15. Sells or serves food represented as kosher for Passover;
    16. Uses separate utensils for food represented as kosher for Passover and food not represented as kosher for Passover;
    17. Uses separate work areas for food represented as kosher for Passover and food not represented as kosher for Passover;
    18. Keeps food represented as kosher for Passover free from and not in contact with food not represented as kosher for Passover; and
    19. Prepares food represented as kosher for Passover under rabbinical or other kosher supervision.
  4. If a kosher food disclosure statement has an affirmative response to the question contained in paragraph (15) of subsection (c) of this Code section, responses to the questions contained in paragraphs (16) through (19) shall be required; otherwise, such responses shall not be required.
  5. A person who represents to the public that any unpackaged food for sale or a place of business is under rabbinical or other kosher supervision shall also provide in the kosher food disclosure statement the following information about the rabbinical or other kosher supervision:
    1. The name of the supervising rabbi, agency, or other person;
    2. The address of the supervising rabbi, agency, or other person;
    3. The telephone number of the supervising rabbi, agency, or other person;
    4. The frequency with which the supervising rabbi, agency, or other person visits the establishment; and
    5. Any relevant affiliations of the supervising rabbi, agency, or other person that the person making the disclosure wishes to disclose.
  6. The Attorney General shall promulgate a form for the kosher food disclosure statement and any additional information that the Attorney General deems reasonable and necessary for full and complete disclosure. The completion and prominent and conspicuous display of such form shall constitute compliance with subsections (b) through (e) of this Code section.
  7. No person shall display a kosher food disclosure statement or other written document stating that a rabbi, agency, or other person certifies food or a place of business as kosher or kosher for Passover if no such certification is being provided. The person making the display shall remove the statement or document if the rabbi, agency, or other person sends a notice via certified mail or statutory overnight delivery directed to the person making the display that no such certification is being provided.
  8. It shall be unlawful for any person to:
    1. Fail to complete and prominently and conspicuously display a kosher food disclosure statement as required by this Code section;
    2. Otherwise fail to comply with this Code section; or
    3. Knowingly or intentionally, with intent to defraud, make a false affirmation or disclosure in a kosher food disclosure statement.
  9. This Code section shall not apply to:
    1. Food sold in a presealed kosher food package; or
    2. Food represented as "kosher-style" or "kosher-type." (Code 1981, § 10-1-393.11 , enacted by Ga. L. 2010, p. 114, § 4/HB 1345; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" twice in the first sentence of subsection (f).

Editor's notes. - Ga. L. 2010, p. 114, § 1/HB 1345, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Kosher Food Consumer Protection Act.'"

Law reviews. - For article, "The Establishment Clause's Effect on Kosher Food Laws: Will the Jewish Meal Soon Become Harder to Swallow in Georgia?," see 38 Ga. L. Rev. 1067 (2004).

RESEARCH REFERENCES

ALR. - Validity and construction of regulations dealing with misrepresentation in the sale of Kosher food, 52 A.L.R.3d 959.

Validity, construction, and application of regulations dealing with misrepresentation in sale of kosher food, 3 A.L.R.7th 6.

10-1-393.12. Contract with residential roofing contractor; definitions.

  1. As used in this Code section, the term:
    1. "Residential real estate" means a new or existing building constructed for habitation by one to four families, including detached garages.
    2. "Residential roofing contractor" means a person or entity in the business of contracting or offering to contract with an owner or possessor of residential real estate to repair or replace roof systems.
    3. "Roof system" means a roof covering, roof sheathing, roof weatherproofing, roof framing, roof ventilation system, and insulation.
  2. A person who has entered into a written contract with a residential roofing contractor to provide goods or services to be paid from the proceeds of a property and casualty insurance policy may cancel the contract prior to midnight on the fifth business day after the insured has received written notice from the insurer that all or any part of the claim or contract is not a covered loss under such insurance policy. Cancellation shall be evidenced by the insured giving written notice of cancellation to the residential roofing contractor at the address stated in the contract. Notice of cancellation, if given by mail, shall be effective upon deposit into the United States mail, postage prepaid and properly addressed to the residential roofing contractor. Notice of cancellation need not take a particular form and shall be sufficient if it indicates, by any form of written expression, the intention of the insured not to be bound by the contract.
  3. Before entering a contract as provided in subsection (b) of this Code section, the residential roofing contractor shall:
    1. Furnish the insured a statement in boldface type of a minimum size of ten points, in substantially the following form:

      "You may cancel this contract at any time before midnight on the fifth business day after you have received written notification from your insurer that all or any part of the claim or contract is not a covered loss under the insurance policy. This right to cancel is in addition to any other rights of cancellation which may be found in state or federal law or regulation. See attached notice of cancellation form for an explanation of this right"; and

    2. Furnish each insured a fully completed form in duplicate, captioned "NOTICE OF CANCELLATION," which shall be attached to the contract but easily detachable, and which shall contain in boldface type of a minimum size of ten points the following statement:

      "NOTICE OF CANCELLATION"

      I HEREBY CANCEL THIS TRANSACTION

      ____________________________

      Date

      ____________________________

      Insured's signature

  4. In circumstances in which payment may be made from the proceeds of a property and casualty insurance policy, a residential roofing contractor shall not require any payments from an insured until the five-day cancellation period has expired. If, however, the residential roofing contractor has performed any emergency services, acknowledged by the insured in writing to be necessary to prevent damage to the premises, the residential roofing contractor shall be entitled to collect the amount due for the emergency services at the time they are rendered. Any provision in a contract as provided in subsection (b) of this Code section that requires the payment of any fee for anything except emergency services shall not be enforceable against any insured who has canceled a contract under this Code section.
  5. A residential roofing contractor shall not represent or negotiate, or offer or advertise to represent or negotiate, on behalf of an owner or possessor of residential real estate on any insurance claim in connection with the repair or replacement of roof systems. This subsection shall not apply to a public adjuster licensed under Chapter 23 of Title 33. (Code 1981, § 10-1-393.12 , enacted by Ga. L. 2011, p. 613, § 1/HB 423; Ga. L. 2015, p. 1088, § 2/SB 148.)

If you are notified by your insurer that all or any part of the claim or contract is not a covered loss under the insurance policy, you may cancel the contract by mailing or delivering a signed and dated copy of this cancellation notice or any other written notice to (name of contractor) at (address of contractor's place of business) at any time prior to midnight on the fifth business day after you have received such notice from your insurer.

The 2015 amendment, effective July 1, 2015, in paragraph (c)(2), in the "Notice of Cancellation" form, substituted "Date" for "(date)" and substituted "Insured's signature" for "(insured's signature)."

10-1-393.13. Oversight by Attorney General of certain telemarketing practices; definitions; conduct by telephone solicitors; class actions.

  1. As used in this Code section, the term:
    1. "ADAD equipment" means any device or system of devices which is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers and disseminating prerecorded messages to the numbers so selected or dialed.
    2. "Business" means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, trust, or other legal entity.
    3. "Caller identification service" means a type of telephone service which permits subscribers to see the telephone number of incoming telephone calls.
    4. "In this state" means the call:
      1. Originates from this state; or
      2. Is directed by the caller to this state and received at the place to which it is directed.
    5. "Subscriber" means a person or business that has subscribed to telephone service from a local exchange company or mobile, wireless, or other telephone service provider or other persons living, residing, or working with such person or business.
    6. "Telephone solicitation" means any voice communication from a live operator, through the use of ADAD equipment or by other means, over a telephone line or computer network for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services or donation to any organization, but shall not include communications:
      1. To any subscriber with that subscriber's prior express invitation or permission;
      2. By or on behalf of any person or entity with whom a subscriber has a prior or current business or personal relationship; or
      3. Which convey a political message.
  2. Without otherwise limiting the definition of unfair or deceptive acts or practices under this part and without limiting any other Code section under this part, in connection with a telephone solicitation:
    1. At the beginning of such call, the person or entity making the call shall state clearly the identity of the person or entity initiating the call;
    2. No person or entity who makes a telephone solicitation to the telephone line of a subscriber in this state shall knowingly utilize any method to block or otherwise circumvent such subscriber's use of a caller identification service;
    3. The telephone number displayed on the caller identification service shall be a working telephone number capable of receiving incoming calls at the time the call is placed; and
    4. The identity of the caller displayed on the caller identification service shall accurately reflect the identity of the caller.
  3. Notwithstanding Code Section 10-1-399 , a claim of a violation of this Code section may be brought in a representative capacity and may be the subject of a class action under Code Section 9-11-23 . Damages for such violation shall be the greater of actual damages or $10.00 per violation. (Code 1981, § 10-1-393.13 , enacted by Ga. L. 2012, p. 640, § 1/HB 1132; Ga. L. 2015, p. 1088, § 2/SB 148.)

Editor's notes. - Ga. L. 2015, p. 1088, § 2/SB 148, effective July 1, 2015, reenacted this Code section without change.

RESEARCH REFERENCES

ALR. - Validity Under First Amendment of Statutes Limiting Automatic Dialing and Announcing Device (ADAD) and Robocalls, 48 A.L.R.7th Art. 1.

10-1-393.14. Consumer report for employment purposes.

  1. As used in this Code section, the term:
    1. "Adverse effect" means:
      1. A denial of employment;
      2. Any other decision for employment purposes that negatively affects any current or prospective employee; or
      3. A denial or cancellation of, an increase in any charge for, or any other adverse or unfavorable change in the terms of any license.
    2. "Consumer report" means any written, oral, or other communication of any information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for purposes of credit, insurance, or employment.
    3. "Consumer reporting agency" means any person or entity which, for monetary fees or dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
    4. "Employment purposes" means used for the purpose of evaluating a consumer for employment, promotion, reassignment, retention as an employee, or licensing.
  2. A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall:
    1. At the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
    2. Maintain strict procedures designed to ensure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, and convictions shall be considered up to date if the current public record status of the item at the time of the report is reported.
  3. A consumer reporting agency shall be considered to be conducting business in this state if it provides information to any individual, partnership, corporation, association, or any other group however organized that is domiciled within this state or whose principal place of business is within this state.
  4. A consumer reporting agency that provides a consumer report for employment purposes that is in compliance with the federal Fair Credit Reporting Act in existence on March 11, 2015, shall be deemed to have complied with this Code section. (Code 1981, § 10-1-393.14 , enacted by Ga. L. 2015, p. 519, § 1-1/HB 328.)

Effective date. - This Code section became effective July 1, 2015.

RESEARCH REFERENCES

ALR. - What Constitutes "Consumer Reporting Agency” Within Meaning of Fair Credit Reporting Act, 15 U.S.C.A. § 1681a(f), 48 A.L.R. Fed. 3d Art. 5.

Adverse Action Under Retaliation Provision of Fair Housing Act (42 U.S.C.A. § 3617), 49 A.L.R. Fed. 3d Art. 1.

10-1-393.15. Instrument conveying real estate defined; required notice for solicitation for services; penalties.

  1. For purposes of this Code section, the term "instrument conveying real estate" means any documentary material evidencing an interest in real property required under law to be recorded with the superior court in the county in which the land is located, including, but not limited to, a deed to secure debt, a mortgage, a deed under power, and a lien.
  2. Any person who mails a solicitation for services to obtain a copy of an instrument conveying real estate shall include, in at least 16 point Helvetica font at the top of and at least two inches apart from any other text on such solicitation, the words:

    "THIS IS NOT A BILL OR OFFICIAL GOVERNMENT DOCUMENT. THIS IS A SOLICITATION."

    No text on the solicitation shall be larger than the above required words.

  3. Failure to comply with the provisions of this Code section shall be considered an unfair or deceptive act or practice which is unlawful and which shall be punishable by the provisions of this part. (Code 1981, § 10-1-393.15 , enacted by Ga. L. 2017, p. 218, § 1/HB 197.)

Effective date. - This Code section became effective July 1, 2017.

10-1-393.16. Written solicitations relating to corporate filings; definition; penalty for noncompliance.

  1. For purposes of this Code section, the term "corporate filings" means any documents required by law to be filed with the Secretary of State pursuant to Title 14.
  2. Any written solicitation for services relating to corporate filings shall include, in at least 16 point Helvetica font at the top of and at least two inches apart from any other text on such solicitation, the words:

    "THIS IS A SOLICITATION. THIS IS NOT A BILL OR OFFICIAL GOVERNMENT DOCUMENT AND HAS NOT BEEN SENT BY THE GEORGIA SECRETARY OF STATE'S OFFICE."

    No text on the solicitation shall be larger than the above required words.

  3. Failure to comply with the provisions of this Code section shall be considered an unfair or deceptive act or practice which is unlawful and which shall be punishable by the provisions of this part. (Code 1981, § 10-1-393.16 , enacted by Ga. L. 2021, p. 508, § 1/HB 153.)

Effective date. - This Code section became effective July 1, 2021.

Cross references. - Filing documents, § 14-2-120 et seq.

10-1-394. Adoption of rules, regulations, and standards prohibiting unfair or deceptive practices; application of Chapter 13 of Title 50.

  1. The Attorney General is authorized to adopt reasonable rules, regulations, and standards appropriate to effectuate the purposes of this part and prohibit specific acts or practices that are deemed to be a violation of this part. The Attorney General is also authorized to adopt as substantive rules that prohibit specific acts or practices in violation of Code Section 10-1-393 those rules and regulations of the Federal Trade Commission interpreting Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended.
  2. Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," shall apply to the promulgation of rules and regulations by the Attorney General pursuant to subsection (a) of this Code section and in taking testimony pursuant to Code Sections 10-1-403 and 10-1-404.

    (Ga. L. 1975, p. 376, § 4; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General is authorized to adopt reasonable rules, regulations, and standards appropriate to effectuate the purposes of this part and prohibit specific acts or practices that are deemed to be a violation of this part. The Attorney General is also authorized to adopt as" for "administrator is authorized to adopt as" in subsection (a); deleted former subsection (b), which read: "Such rules shall be promulgated only when it is determined by the administrator, in the reasonable exercise of his discretion, on the basis of his expertise and facts, submissions, evidence, and all information before him, that such rules are needed to prohibit or control acts or practices which create the probability of actual and substantial injury to consumers. No rule shall be promulgated where it is reasonably certain that the burden of complying with the rule will outweigh the public interest in prohibiting or controlling the practice which would be so prohibited or controlled. No such rule so promulgated shall be arbitrary or capricious nor shall its promulgation be characterized by an abuse of discretion or an unwarranted exercise of discretion."; redesignated former subsection (c) as present subsection (b) and substituted "Attorney General" for "administrator" in such subsection; and deleted former subsection (d), which read: "The Consumer Advisory Board shall be authorized to ratify or veto rules promulgated by the administrator at its next regular meeting after the rules are promulgated by the administrator under the provisions of Chapter 13 of Title 50."

Law reviews. - For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Federal Trade Commission Act standards applicable. - Federal Trade Commission Act, 15 U.S.C. § 45, is expressly made the appropriate standard by which the purpose and intent of the Fair Business Practices Act, O.C.G.A.