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As Reported by the Senate Judiciary Committee
122nd General Assembly
Regular Session
1997-1998 | Sub. H. B. No. 182 |
REPRESENTATIVES CORE-WESTON-BRITTON-OGG-REID-PADGETT-BRADY-BENDER-
WOMER BENJAMIN-JERSE-TERWILLEGER-ROMAN-GARDNER-MOTTLEY-BATEMAN-
BOYD-CORBIN-HAINES-GARCIA-O'BRIEN-BRADING-TAYLOR-OLMAN-COLONNA-
FORD-SCHURING-PRENTISS-MYERS-SUTTON-THOMAS-VERICH-HOUSEHOLDER-
PERZ-THOMPSON-TIBERI-METZGER-HARRIS-BUCHY-MEAD-MOTTL-ROBERTS-
WILSON-VESPER-DAMSCHRODER-SULZER-VAN VYVEN-LEWIS-CAREY-CLANCY-
CATES-PRINGLE-GRENDELL-MALLORY-STAPLETON-SALERNO-WINKLER-
JOHNSON-MASON-
SENATORS B. JOHNSON-BLESSING
A BILL
To amend sections 2917.21, 2917.31, 2917.32, and 4719.01 of the Revised Code
to enhance
the penalties for telephone harassment, inducing panic,
and making false
alarms and to exempt from the Ohio Telephone Solicitation Law certain persons
who solicit the sale of a periodical or magazine.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2917.21, 2917.31, 2917.32, and 4719.01 of the Revised
Code be
amended to read as follows:
Sec. 2917.21. (A) No person shall knowingly make or cause
to be made a telephone call, or knowingly permit a telephone call
to be made from a telephone under the person's control, to
another, if the caller does any of the following:
(1) Fails to identify the caller to the recipient of the
telephone call and makes the telephone call with purpose to
harass, abuse, or annoy any person at the premises to which the
telephone call is made, whether or not conversation takes place
during the telephone call;
(2) Describes, suggests, requests, or proposes that the
caller, recipient of the telephone call, or any other person
engage in, any sexual activity as defined in division (C) of
section 2907.01 of the Revised Code, and the recipient of the
telephone call, or another person at the premises to which the
telephone call is made, has requested, in a previous telephone
call or in the immediate telephone call, the caller not to make a
telephone call to the recipient of the telephone call or to the
premises to which the telephone call is made;
(3) During the telephone call, violates section 2903.21 of
the Revised Code;
(4) Knowingly states to the recipient of the telephone
call that the caller intends to cause damage to or destroy
public or
private property, and the recipient of the telephone call, any
member of the family of the recipient of the telephone call, or
any other person who resides at the premises to which the
telephone call is made owns, leases, resides, or works in, will
at the time of the destruction or damaging be near or in, has the
responsibility of protecting, or insures the property that will
be destroyed or damaged;
(5) Knowingly makes the telephone call to the recipient of
the telephone call, to another person at the premises to which
the telephone call is made, or to the premises to which the
telephone call is made, and the recipient of the telephone call,
or another person at the premises to which the telephone call is
made, previously has told the caller not to call the premises to
which the telephone call is made or not to call any persons at
the premises to which the telephone call is made.
(B) No person shall make or cause to be made a telephone
call, or permit a telephone call to be made from a telephone
under the person's control, with purpose to abuse, threaten,
annoy, or
harass another person.
(C)(1) Whoever violates this section is guilty of telephone
harassment,.
(2) A VIOLATION OF DIVISION (A)(1), (2), (3), OR (5) OR
(B) OF THIS SECTION IS a misdemeanor of the first degree on a
first offense and a
felony of the fifth degree on each subsequent offense involving the
same person, recipient, or premises.
(3) EXCEPT AS OTHERWISE PROVIDED IN DIVISION (C)(3) OF
THIS SECTION, A VIOLATION OF DIVISION (A)(4) OF THIS SECTION IS A
MISDEMEANOR OF THE FIRST DEGREE ON A FIRST OFFENSE AND A FELONY OF THE FIFTH
DEGREE ON EACH SUBSEQUENT OFFENSE. IF A VIOLATION OF DIVISION (A)(4)
OF THIS SECTION RESULTS
IN ECONOMIC HARM OF FIVE HUNDRED DOLLARS OR MORE BUT LESS THAN FIVE THOUSAND
DOLLARS, TELEPHONE HARASSMENT IS A FELONY OF THE FIFTH DEGREE. IF A VIOLATION
OF DIVISION (A)(4) OF THIS SECTION RESULTS IN ECONOMIC HARM OF FIVE
THOUSAND DOLLARS OR MORE BUT LESS THAN ONE HUNDRED THOUSAND DOLLARS, TELEPHONE
HARASSMENT IS A FELONY OF THE FOURTH DEGREE. IF A VIOLATION OF DIVISION
(A)(4) OF THIS SECTION RESULTS IN ECONOMIC HARM OF ONE HUNDRED
THOUSAND DOLLARS OR MORE, TELEPHONE HARASSMENT IS A FELONY OF THE THIRD
DEGREE.
(D) AS USED IN THIS SECTION, "ECONOMIC HARM" MEANS ALL DIRECT,
INCIDENTAL, AND CONSEQUENTIAL PECUNIARY HARM SUFFERED BY A
VICTIM AS A RESULT OF CRIMINAL CONDUCT. "ECONOMIC HARM"
INCLUDES, BUT IS NOT LIMITED TO, ALL OF THE FOLLOWING:
(1) ALL WAGES, SALARIES, OR OTHER COMPENSATION LOST AS A RESULT
OF THE CRIMINAL CONDUCT;
(2) THE COST OF ALL WAGES, SALARIES, OR OTHER COMPENSATION PAID
TO EMPLOYEES FOR TIME THOSE EMPLOYEES ARE PREVENTED FROM WORKING
AS A RESULT OF THE CRIMINAL CONDUCT;
(3) THE OVERHEAD COSTS INCURRED FOR THE TIME THAT A BUSINESS IS
SHUT DOWN AS A RESULT OF THE CRIMINAL CONDUCT;
(4) THE LOSS OF VALUE TO TANGIBLE OR INTANGIBLE PROPERTY THAT WAS
DAMAGED AS A RESULT OF THE CRIMINAL CONDUCT.
(E) NOTHING IN THIS SECTION PROHIBITS A PERSON FROM MAKING A
TELEPHONE CALL TO A DEBTOR THAT IS IN COMPLIANCE WITH THE "FAIR
DEBT COLLECTION PRACTICES ACT," 91
STAT. 874 (1977), 15 U.S.C. 1692, AS
AMENDED, OR THE "TELEPHONE CONSUMER PROTECTION
ACT," 105 STAT. 2395 (1991), 47
U.S.C. 227, AS AMENDED.
Sec. 2917.31. (A) No person shall cause the evacuation of
any public place, or otherwise cause serious public inconvenience
or alarm, by doing any of the following:
(1) Initiating or circulating a report or warning of an
alleged or impending fire, explosion, crime, or other
catastrophe, knowing that such report or warning is false;
(2) Threatening to commit any offense of violence;
(3) Committing any offense, with reckless disregard of the
likelihood that its commission will cause serious public
inconvenience or alarm.
(B) Division (A)(1) of this section does not apply to any
person conducting an authorized fire or emergency drill.
(C) Whoever violates this section is guilty of inducing
panic,. EXCEPT AS OTHERWISE PROVIDED IN THIS DIVISION,
INDUCING PANIC IS a misdemeanor of the first degree. If A
violation of this
section results in physical harm to any person, inducing panic is
a felony of the fourth degree. IF A VIOLATION OF THIS SECTION RESULTS IN
ECONOMIC HARM OF FIVE HUNDRED DOLLARS OR MORE BUT LESS THAN FIVE THOUSAND
DOLLARS, INDUCING PANIC IS A FELONY OF THE FIFTH DEGREE. IF VIOLATION OF THIS
SECTION RESULTS IN ECONOMIC HARM OF FIVE THOUSAND DOLLARS OR MORE BUT LESS
THAN ONE HUNDRED THOUSAND DOLLARS, INDUCING PANIC IS A FELONY OF THE FOURTH
DEGREE. IF VIOLATION OF THIS SECTION RESULTS IN ECONOMIC HARM OF ONE HUNDRED
THOUSAND DOLLARS OR MORE, INDUCING PANIC IS A FELONY OF THE THIRD DEGREE.
(D) AS USED IN THIS SECTION, "ECONOMIC HARM" MEANS ALL DIRECT,
INCIDENTAL, AND CONSEQUENTIAL PECUNIARY HARM SUFFERED BY A
VICTIM AS A RESULT OF CRIMINAL CONDUCT. "ECONOMIC HARM"
INCLUDES, BUT IS NOT LIMITED TO, ALL OF THE FOLLOWING:
(1) ALL WAGES, SALARIES, OR OTHER COMPENSATION LOST AS A RESULT
OF THE CRIMINAL CONDUCT;
(2) THE COST OF ALL WAGES, SALARIES, OR OTHER COMPENSATION PAID
TO EMPLOYEES FOR TIME THOSE EMPLOYEES ARE PREVENTED FROM WORKING
AS A RESULT OF THE CRIMINAL CONDUCT;
(3) THE OVERHEAD COSTS INCURRED FOR THE TIME THAT A BUSINESS IS
SHUT DOWN AS A RESULT OF THE CRIMINAL CONDUCT;
(4) THE LOSS OF VALUE TO TANGIBLE OR INTANGIBLE PROPERTY THAT WAS
DAMAGED AS A RESULT OF THE CRIMINAL CONDUCT.
Sec. 2917.32. (A) No person shall do either ANY of the
following:
(1) Initiate or circulate a report or warning of an
alleged or impending fire, explosion, crime, or other
catastrophe, knowing that the report or warning is false and
likely to cause public inconvenience or alarm;
(2) Knowingly cause a false alarm of fire or other
emergency to be transmitted to or within any organization, public
or private, for dealing with emergencies involving a risk of
physical harm to persons or property;
(3) Report to any law enforcement agency an alleged
offense or other incident within its concern, knowing that such
offense did not occur.
(B) This section does not apply to any person conducting
an authorized fire or emergency drill.
(C) Whoever violates this section is guilty of making
false alarms,. EXCEPT AS OTHERWISE PROVIDED IN THIS
DIVISION, MAKING FALSE ALARMS IS a misdemeanor of the first degree. IF
A VIOLATION OF THIS SECTION RESULTS IN ECONOMIC HARM OF FIVE HUNDRED DOLLARS
OR MORE BUT LESS THAN FIVE THOUSAND DOLLARS, MAKING FALSE ALARMS IS A FELONY
OF THE FIFTH DEGREE. IF A VIOLATION OF THIS SECTION RESULTS IN ECONOMIC HARM
OF FIVE THOUSAND DOLLARS OR MORE BUT LESS THAN ONE HUNDRED THOUSAND DOLLARS,
MAKING FALSE ALARMS IS A FELONY OF THE FOURTH DEGREE. IF A VIOLATION OF THIS
SECTION RESULTS IN ECONOMIC HARM OF ONE HUNDRED THOUSAND DOLLARS OR MORE,
MAKING FALSE ALARMS IS A FELONY OF THE THIRD DEGREE.
(D) AS USED IN THIS SECTION, "ECONOMIC HARM" MEANS ALL DIRECT,
INCIDENTAL, AND CONSEQUENTIAL PECUNIARY HARM SUFFERED BY A
VICTIM AS A RESULT OF CRIMINAL CONDUCT. "ECONOMIC HARM"
INCLUDES, BUT IS NOT LIMITED TO, ALL OF THE FOLLOWING:
(1) ALL WAGES, SALARIES, OR OTHER COMPENSATION LOST AS A RESULT
OF THE CRIMINAL CONDUCT;
(2) THE COST OF ALL WAGES, SALARIES, OR OTHER COMPENSATION PAID
TO EMPLOYEES FOR TIME THOSE EMPLOYEES ARE PREVENTED FROM WORKING
AS A RESULT OF THE CRIMINAL CONDUCT;
(3) THE OVERHEAD COSTS INCURRED FOR THE TIME THAT A BUSINESS IS
SHUT DOWN AS A RESULT OF THE CRIMINAL CONDUCT;
(4) THE LOSS OF VALUE TO TANGIBLE OR INTANGIBLE PROPERTY THAT WAS
DAMAGED AS A RESULT OF THE CRIMINAL CONDUCT.
Sec. 4719.01. (A) As used in sections 4719.01 to 4719.18 of the Revised
Code:
(1) "Affiliate" means a business entity that is owned by, operated by,
controlled by, or under common control with another business entity.
(2) "Communication" means a written or oral notification or advertisement
that meets both of the following criteria, as applicable:
(a) The notification or advertisement is transmitted by or on behalf of the
seller of goods or services and by or through any printed, audio, video,
cinematic, telephonic, or electronic means.
(b) In the case of a notification or advertisement other than by
telephone, either of the following conditions is met:
(i) The notification or advertisement is followed by a telephone call from a
telephone solicitor or salesperson.
(ii) The notification or advertisement invites a response by telephone, and,
during the course of that response, a telephone
solicitor or salesperson attempts to make or makes a sale of goods or
services. As used in division (A)(2)(b)(ii) of this section, "invites a
response by telephone" excludes the mere listing or inclusion of a telephone
number in a notification or advertisement.
(3) "Gift, award, or prize" means
anything of value that is offered or purportedly offered, or given or
purportedly given by chance, at no cost to the receiver and with no
obligation to purchase goods or services. As used in this division, "chance"
includes a situation in which a person is
guaranteed to receive an item and, at the time of the offer or purported
offer, the telephone solicitor does not identify the specific item that the
person will receive.
(4) "Goods or services" means any real
property or any tangible or intangible personal property, or services of any
kind provided or offered to a person. "Goods or services" includes, but is
not limited to, advertising; labor performed for the benefit of a person;
personal property intended to be attached to or installed in any real
property, regardless of whether it is so attached or installed; timeshare
estates or licenses; and extended service contracts.
(5) "Purchaser" means a person that is
solicited to become or does become financially obligated as a result of a
telephone solicitation.
(6) "Salesperson" means an individual who is employed, appointed, or
authorized by a telephone solicitor
to make telephone solicitations but does not mean any of the following:
(a) An individual who comes within one of the exemptions in
division (B) of this section;
(b) An individual employed, appointed, or authorized by a person
who comes within one of the exemptions in division (B) of this
section;
(c) An individual under a written contract with a person who
comes within one of the exemptions in division (B) of this section,
if liability for all transactions with purchasers is assumed by the person so
exempted.
(7) "Telephone solicitation" means a communication to a person that meets
both of the following criteria:
(a) The communication is initiated by or on behalf of a telephone solicitor
or by a salesperson.
(b) The communication either represents a price or the quality or
availability of goods or services or is used to induce the person to purchase
goods or services, including, but not limited to, inducement through the
offering of a gift, award, or prize.
(8) "Telephone solicitor" means a person that engages in telephone
solicitation directly or through one or more
salespersons either from a location in this state or from a location outside
this state to persons in this state. "Telephone solicitor" includes, but is
not limited to, any such person that is an owner, operator, officer, or
director of, partner in, or other individual engaged in the management
activities of, a business.
(B) A telephone solicitor is exempt from the
provisions of sections 4719.02 to 4719.18 and section 4719.99 of the Revised
Code if the telephone solicitor is any one of the following:
(1) A person engaging in a telephone solicitation that is a one-time or
infrequent transaction not done in the course of a pattern of repeated
transactions of a like nature;
(2) A person engaged in telephone solicitation solely for religious or
political purposes; a charitable organization, fund-raising counsel, or
professional solicitor in compliance with the registration and reporting
requirements of Chapter 1716. of the
Revised Code; or any person or other entity exempt under section 1716.03 of
the Revised Code from filing a registration statement under section 1716.02 of
the
Revised Code;
(3) A person, making a telephone solicitation involving a home
solicitation sale as defined in section 1345.21 of the
Revised Code, that makes the sales presentation and completes the sale at a
later,
face-to-face meeting between the seller and the purchaser rather than during
the telephone solicitation. However, if the person, following the telephone
solicitation, causes another person to collect the
payment of any money, this exemption does not apply.
(4) A licensed securities, commodities, or investment broker, dealer,
investment advisor, or associated person when making a telephone solicitation
within the scope of the person's license. As used in division
(B)(4) of this section, "licensed securities,
commodities, or investment broker, dealer, investment advisor, or associated
person" means a person subject to licensure or registration as such by the
securities and exchange commission; the National Association of Securities
Dealers or other self-regulatory organization, as defined by 15
U.S.C.A. 78c; by the division of
securities under Chapter 1707. Revised Code; or by an
official or agency of any other state of the United States.
(5)(a) A person primarily engaged in soliciting the sale of a
newspaper of general circulation;
(b) As used in division (B)(5)(a) of this section, "newspaper of general
circulation" includes, but is not limited to, both of the following:
(i) A newspaper that is a daily law journal designated as an official
publisher of court calendars pursuant to section 2701.09 of the Revised Code;
(ii) A newspaper or publication that has at least twenty-five per cent
editorial, non-advertising content, exclusive of inserts, measured relative to
total publication space, and an audited circulation to at least fifty per cent
of the households in the newspaper's retail trade zone as defined by the
audit.
(6)(a) An issuer, or its subsidiary, that has a class of
securities to which all of the following apply:
(i) The class of securities is subject to section 12 of the
"Securities Exchange Act of 1934," 15 U.S.C.A. 78l, and is registered or is
exempt from registration under 15
U.S.C.A. 78l(g)(2)(A), (B), (C), (E), (F), (G), or (H);
(ii) The class of securities is listed on the
New York stock exchange, the American stock exchange,
or the NASDAQ national market system;
(iii) The class of securities is a reported security as defined
in 17 C.F.R. 240.11Aa3-1(a)(4).
(b) An issuer, or its subsidiary, that formerly had a class of
securities that met the criteria set forth in division
(B)(6)(a) of this section
if the issuer, or its subsidiary, has a net worth in excess of one hundred
million dollars, files or its parent files with the securities and exchange
commission an S.E.C. form 10-K, and has continued in substantially
the same business since it had a class of securities that met the criteria in
division (B)(6)(a) of this section. As used in division
(B)(6)(b) of this section, "issuer" and "subsidiary" include the successor to
an issuer or
subsidiary.
(7) A person soliciting a transaction regulated by the commodity futures
trading commission, if the person is registered or temporarily
registered for that activity with the commission under 7 U.S.C.A. 1 et. seq.
and the registration or temporary registration
has not expired or been suspended or revoked;
(8) A person soliciting the sale of any book, record, audio tape,
compact disc, or video, if the person allows the
purchaser to review the
merchandise for at least seven days and provides
a full refund within thirty days to a purchaser who returns the merchandise or
if the person solicits the sale on
behalf of a membership club operating in compliance with regulations adopted
by the federal trade commission in 16 C.F.R. 425;
(9) A supervised financial institution or its subsidiary. As used in
division (B)(9) of this section, "supervised
financial institution" means a bank, trust company, savings and
loan association, savings bank, credit union, industrial loan company,
consumer finance lender, commercial finance lender, or institution described
in section 2(c)(2)(F) of the "Bank Holding Company Act of 1956," 12 U.S.C.A.
1841(c)(2)(F), as amended, supervised by
an official or agency of the United States, this state, or
any other state of the United States; or a licensee or registrant under
sections 1321.01 to 1321.19, 1321.51 to 1321.60, or 1321.71 to 1321.83 of the
Revised Code.
(10)(a) An insurance company, association, or other organization
that is licensed or authorized to conduct business in this state by the
superintendent of insurance pursuant to Title XXXIX of the
Revised Code or Chapter 1751. of the Revised Code, when soliciting
within
the scope of its license or authorization.
(b) A licensed insurance broker, agent, or
solicitor when soliciting within the scope of the person's license. As used
in division (B)(10)(b) of this section, "licensed
insurance broker, agent, or solicitor" means any
person licensed as an insurance broker, agent, or solicitor by the
superintendent of insurance pursuant to Title XXXIX of the Revised Code.
(11) A person soliciting the sale of services provided by a cable
television system operating under authority of a governmental franchise or
permit;
(12) A person soliciting a business-to-business sale under which any of
the following conditions are met:
(a) The telephone solicitor has been operating
continuously for at least three years under the same business name under which
it solicits purchasers, and at least fifty-one per cent of its gross dollar
volume of sales consists of repeat sales to existing customers to whom it
has made sales under the same business name.
(b) The purchaser business intends to resell the
goods purchased.
(c) The purchaser business intends to use the goods
or services purchased in a recycling, reuse, manufacturing, or remanufacturing
process.
(d) The telephone solicitor is a publisher of a periodical or of magazineS
distributed as controlled circulation publicationS as defined in
division (CC) of section 5739.01 of the Revised Code
and is soliciting sales of advertising, subscriptions, reprints, lists,
information databases, conference participation or sponsorships, trade shows
or media products related to the periodical or magazine, or other publishing
services provided by the controlled circulation publication.
(13) A person that, not less often than once each year, publishes and
delivers to potential purchasers a catalog that complies with both of the
following:
(a) It includes all of the following:
(i) The business address of the seller;
(ii) A written description or illustration of each good
or service offered for sale;
(iii) A clear and conspicuous disclosure of the sale price of
each good or service; shipping, handling, and
other charges; and return policy;
(b) One of the following applies:
(i) The catalog includes at least twenty-four pages of written
material and illustrations, is distributed in more than one state, and has an
annual postage-paid mail circulation of not less than two hundred fifty
thousand households;
(ii) The catalog includes at least ten pages of written material
or an equivalent amount of material in electronic form on the internet or an
on-line computer service, the person does not solicit customers by telephone
but solely receives telephone calls made in response to the catalog, and
during
the calls the person takes orders but does not engage in further solicitation
of the purchaser. As used in division (B)(13)(b)(ii) of this section,
"further solicitation" does not include providing the purchaser with
information about, or attempting to sell, any other item in the
catalog that prompted the purchaser's call or in a substantially similar
catalog issued by the seller.
(14) A political subdivision or instrumentality of the
United States, this state, or any state of the
United States;
(15) A college or university or any other public or private institution of
higher education in this state;
(16) A public utility, as defined in section 4905.02 of the
Revised Code, that is subject to regulation by the public
utilities commission, or its affiliate;
(17) A travel agency or tour promoter that is registered in compliance
with section 1333.96 of the Revised Code when soliciting
within the scope of the agency's or promoter's registration;
(18) A person that solicits sales through a television program or
advertisement that is presented in the same market area no fewer than twenty
days per month or offers for sale no fewer than ten distinct items of goods or
services; and offers to the purchaser an unconditional right
to return any good or service purchased within a period of at least seven days
and to receive a full refund within thirty days after the purchaser returns
the good or cancels the service;
(19)(a) A person that, for at least one year, has been operating
a retail business under the same name as that used in connection with
telephone solicitation and both of the following occur on a continuing
basis:
(i) The person either displays goods and offers them for retail
sale at the person's business premises or offers services for sale and
provides them at the person's business premises.
(ii) At least fifty-one per cent of the person's
gross dollar volume of retail sales involves purchases of goods or services at
the person's business premises.
(b) An affiliate of a person that meets the requirements in
division (B)(19)(a) of
this section if the affiliate meets all of the following requirements:
(i) The affiliate has operated a retail business for a period of
less than one year;
(ii) The affiliate either displays goods and offers them for
retail sale at the affiliate's business premises or offers services for sale
and provides them at the affiliate's business premises;
(iii) At least fifty-one per cent of the affiliate's gross dollar
volume of retail sales involves purchases of goods or services at the
affiliate's business premises.
(c) A person that, for a period of less than one year, has been
operating a retail business in this state under the same name as that used in
connection with telephone solicitation, as long as all of the following
requirements are met:
(i) The person either displays goods and offers them for retail
sale at the person's business premises or offers services for sale and
provides them at the person's business premises;
(ii) The goods or services that are the subject of telephone
solicitation are sold at the person's business premises, and at least
sixty-five per cent of the person's gross dollar volume of retail sales
involves purchases of goods or services at the person's business premises;
(iii) The person conducts all telephone solicitation activities
according to sections 310.3, 310.4, and 310.5 of the telemarketing sales rule
adopted by the federal trade commission in 16 C.F.R. part 310.
(20) A person who performs telephone solicitation sales services on behalf
of other persons and to whom one of the following applies:
(a) The person has operated under the same ownership, control, and business
name for at least five years, and the person receives at least seventy-five
per cent of its gross revenues from written telephone solicitation contracts
with persons who come within one of the exemptions in division (B) of this
section.
(b) The person is an affiliate of one or more exempt persons and
makes telephone solicitations on behalf of only the exempt persons of which it
is an affiliate.
(c) The person makes telephone solicitations on behalf of only
exempt persons, the person and each exempt person on whose behalf telephone
solicitations are made have entered into a written contract that specifies the
manner in which the telephone solicitations are to be conducted and that at a
minimum requires compliance with the telemarketing sales rule adopted by the
federal trade commission in 16 C.F.R.
part 310, and the person conducts the telephone solicitations in the manner
specified in the written contract.
(d) The person performs telephone solicitation for religious or
political purposes, a charitable organization, a fund-raising council, or a
professional solicitor in compliance with the registration and reporting
requirements of Chapter 1716. of the Revised Code; and meets all of the
following requirements:
(i) The person has operated under the same ownership, control, and
business name for at least five years, and the person receives at least
fifty-one per cent of its gross revenues from written telephone solicitation
contracts with persons who come within the exemption in division
(B)(2) of this section;
(ii) The person does not conduct a prize promotion or offer the
sale of an investment opportunity; and
(iii) The person conducts all telephone solicitation activities
according to sections 310.3, 310.4, and 310.5 of the telemarketing sales rules
adopted by the federal trade commission in 16 C.F.R.
part 310.
(21) A person that is a licensed real estate salesperson or broker under
Chapter 4735. of the Revised Code when soliciting
within the scope of the person's license;
(22)(a) EITHER OF THE FOLLOWING:
(i) A publisher that solicits the sale of the publisher's
periodical or magazine of general, paid circulation, or a person that solicits
a sale of that nature on behalf of AS AUTHORIZED BY a publisher
under a written agreement
directly between the publisher and the person.
(ii) A PUBLISHER THAT SOLICITS THE SALE OF THE PUBLISHER'S
PERIODICAL OR MAGAZINE OF GENERAL, PAID CIRCULATION, OR A PERSON THAT SOLICITS
A SALE OF THAT NATURE AS AUTHORIZED BY A PUBLISHER UNDER A WRITTEN AGREEMENT
DIRECTLY
WITH A PUBLISHER'S CLEARINGHOUSE PROVIDED THE PERSON IS A RESIDENT OF
OHIO FOR MORE THAN THREE YEARS AND INITIATES ALL TELEPHONE
SOLICITATIONS FROM OHIO AND THE PERSON CONDUCTS THE SOLICITATION AND
SALE IN COMPLIANCE WITH 16 C.F.R. PART
310, AS ADOPTED BY THE FEDERAL TRADE COMMISSION.
(b) As used in division
(B)(22) of this section, "periodical or
magazine of general, paid circulation" excludes a periodical or magazine
circulated only as part of a membership package or given as a free gift or
prize from the publisher or person.
(23) A person that solicits the sale of food, as defined in section 3715.01
of the Revised Code, or the sale of products of horticulture, as defined in
section 5739.01 of the Revised Code, if the person does not intend the
solicitation to result in, or the solicitation actually does not result in, a
sale that costs the purchaser an amount greater than five hundred dollars.
(24) A funeral director licensed pursuant to Chapter 4717. of the Revised
Code when soliciting within the scope of that license, if both of the
following apply:
(a) The solicitation and sale are conducted in compliance with 16 C.F.R. part
453, as adopted by the federal trade commission, and with sections 1107.33 and
1345.21 to 1345.28 of the Revised Code;
(b) The person provides to the purchaser of any preneed funeral
contract a notice that clearly and conspicuously sets forth the cancellation
rights specified in division (G) of section 1107.33 of the Revised Code, and
retains a copy of the that notice signed by the purchaser.
(25) A person, or affiliate thereof, licensed to sell or issue
Ohio instruments designated as travelers checks pursuant to sections
1315.01 to 1315.11 of the Revised Code.
(26) A person that solicits sales from its previous purchasers and meets
all of the following requirements:
(a) The solicitation is made under the same business name that
was previously used to sell goods or services to the purchaser;
(b) The person has, for a period of not less than three years,
operated a business under the same business name as that used in connection
with telephone solicitation;
(c) The person does not conduct a prize promotion or offer the
sale of an investment opportunity;
(d) The person conducts all telephone solicitation activities
according to sections 310.3, 310.4, and 310.5 of the telemarketing sales rules
adopted by the federal trade commission in 16 C.F.R. part 310;
(e) Neither the person nor any of its principals has been
convicted of, pleaded guilty to, or has entered a plea of no contest for a
felony or a theft offense as defined in sections 2901.02 and 2913.01 of the
Revised Code or similar law of another state or of the United States;
(f) Neither the person nor any of its principals has had entered
against them an injunction or a final judgment or order, including an agreed
judgment or order, an assurance of voluntary compliance, or any similar
instrument, in any civil or administrative action involving engaging in a
pattern of corrupt practices, fraud, theft, embezzlement, fraudulent
conversion, or misappropriation of property; the use of any untrue, deceptive,
or misleading representation; or the use of any unfair, unlawful, deceptive,
or unconscionable trade act or practice.
(27) An institution defined as a home health agency in section 3701.88
of the Revised Code, that conducts all telephone solicitation activities according to
sections 310.3, 310.4, and 310.5 of the telemarketing sales rules adopted by
the federal trade commission in 16 C.F.R. part 310,
and engages in telephone solicitation only within the scope of the
institution's certification, accreditation, contract with the department of
aging, or status as a home health agency; and that meets one of the following
requirements:
(a) The institution is certified as a provider of home health
services under Title XVIII of the Social
Security Act, 49 Stat. 620, 42
U.S.C. 301, as amended; and is registered with the
department of health pursuant to division (B) of section 3701.88
of the Revised Code;
(b) The institution is accredited by either the joint commission
on accreditation of health care organizations or the community health
accreditation program;
(c) The institution is providing PASSPORT services
under the direction of the Ohio department of aging under section
173.40 of the Revised Code;
(d) An affiliate of an institution that meets the requirements of
division (B)(27)(a), (b), or
(c) of this section when offering for sale substantially the same
goods and services as those that are offered by the institution that meets the
requirements of division (B)(27)(a), (b),
or (c) of this section.
(28) A person licensed to provide a hospice care program by the department
of health pursuant to section 3712.04 of the Revised Code when conducting
telephone
solicitations within the scope of the person's license and according to
sections 310.3, 310.4, and 310.5 of the telemarketing sales rules adopted by
the federal trade commission in 16 C.F.R. part 310.
Section 2. That existing sections 2917.21, 2917.31, 2917.32, and 4719.01 of
the Revised
Code are hereby repealed.
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