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S. B. No. 84 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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A BILL
To amend sections 1345.07, 1345.51, 1349.80, and
1349.81, to enact new section 1349.82, and to
repeal section 1349.82 of the Revised Code to
designate the offense of advertising or conducting
a live musical performance or production in Ohio
through the use of a false, deceptive, or
misleading affiliation, connection, or association
between a performing group and a recording group
as an unfair or deceptive act or practice, to
increase the civil penalty for violating a
temporary restraining order preliminary
injunction, or permanent injunction to restrain
and prevent that act or practice, and to eliminate
the duties of the attorney general regarding
investigations of persons alleged to have
committed that offense.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1345.07, 1345.51, 1349.80, and
1349.81 be amended and new section 1349.82 of the Revised Code be
enacted to read as follows:
Sec. 1345.07. (A) If the attorney general, by the attorney
general's own inquiries or as a result of complaints, has
reasonable cause to believe that a supplier has engaged or is
engaging in an act or practice that violates this chapter, and
that the action would be in the public interest, the attorney
general may bring any of the following:
(1) An action to obtain a declaratory judgment that the act
or practice violates section 1345.02, 1345.03, or 1345.031 of the
Revised Code;
(2)(a) An action, with notice as required by Civil Rule 65,
to obtain a temporary restraining order, preliminary injunction,
or permanent injunction to restrain the act or practice. If the
attorney general shows by a preponderance of the evidence that the
supplier has violated or is violating section 1345.02, 1345.03, or
1345.031 of the Revised Code, the court may issue a temporary
restraining order, preliminary injunction, or permanent injunction
to restrain and prevent the act or practice. On
(b)(i) Except as provided in division (A)(2)(b)(ii) of this
section, on motion of the attorney general, or on its own motion,
the court may impose a civil penalty of not more than five
thousand dollars for each day of violation of a temporary
restraining order, preliminary injunction, or permanent injunction
issued under this section, if the supplier received notice of the
action. The civil penalties shall be paid as provided in division
(G) of this section. Upon
(ii) If the court issues under this section a temporary
restraining order, preliminary injunction, or permanent injunction
to restrain and prevent an act or practice that is a violation of
section 1345.02 and division (A) of section 1349.81 of the Revised
Code, on motion of the attorney general, or on its own motion, the
court may impose a civil penalty of not less than five thousand
dollars and not more than fifteen thousand dollars for each day of
violation of the temporary restraining order, preliminary
injunction, or permanent injunction, if the supplier received
notice of the action. The civil penalties shall be paid as
provided in division (G) of this section.
(c) Upon the commencement of an action under division (A)(2)
of this section against a supplier who operates under a license,
permit, certificate, commission, or other authorization issued by
the supreme court or by a board, commission, department, division,
or other agency of this state, the attorney general shall
immediately notify the supreme court or agency that such an action
has been commenced against the supplier.
(3) A class action under Civil Rule 23, as amended, on behalf
of consumers who have engaged in consumer transactions in this
state for damage caused by:
(a) An act or practice enumerated in division (B) or (D) of
section 1345.02 of the Revised Code;
(b) Violation of a rule adopted under division (B)(2) of
section 1345.05 of the Revised Code before the consumer
transaction on which the action is based;
(c) An act or practice determined by a court of this state to
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code
and committed after the decision containing the determination has
been made available for public inspection under division (A)(3) of
section 1345.05 of the Revised Code.
(B) On motion of the attorney general and without bond, in
the attorney general's action under this section, the court may
make appropriate orders, including appointment of a referee or a
receiver, for sequestration of assets, to reimburse consumers
found to have been damaged, to carry out a transaction in
accordance with a consumer's reasonable expectations, to strike or
limit the application of unconscionable clauses of contracts so as
to avoid an unconscionable result, or to grant other appropriate
relief. The court may assess the expenses of a referee or receiver
against the supplier.
(C) Any moneys or property recovered by the attorney general
in an action under this section that cannot with due diligence
within five years be restored by a referee to consumers shall be
unclaimed funds reportable under Chapter 169. of the Revised Code.
(D) In addition to the other remedies provided in this
section, if the violation is an act or practice that was declared
to be unfair, deceptive, or unconscionable by rule adopted
pursuant to division (B)(2) of section 1345.05 of the Revised Code
before the consumer transaction on which the action is based
occurred or an act or practice that was determined by a court of
this state to violate section 1345.02, 1345.03, or 1345.031 of the
Revised Code and committed after the decision containing the
court's determination was made available for public inspection
pursuant to division (A)(3) of section 1345.05 of the Revised
Code, the attorney general may request and the court may impose a
civil penalty of not more than twenty-five thousand dollars
against the supplier. The civil penalties shall be paid as
provided in division (G) of this section.
(E) No action may be brought by the attorney general under
this section to recover for a transaction more than two years
after the occurrence of a violation.
(F) If a court determines that provision has been made for
reimbursement or other appropriate corrective action, insofar as
practicable, with respect to all consumers damaged by a violation,
or in any other appropriate case, the attorney general, with court
approval, may terminate enforcement proceedings brought by the
attorney general upon acceptance of an assurance from the supplier
of voluntary compliance with Chapter 1345. of the Revised Code,
with respect to the alleged violation. The assurance shall be
filed with the court and entered as a consent judgment. Except as
provided in division (A) of section 1345.10 of the Revised Code, a
consent judgment is not evidence of prior violation of such
chapter. Disregard of the terms of a consent judgment entered upon
an assurance shall be treated as a violation of an injunction
issued under this section.
(G) Civil penalties ordered pursuant to divisions (A) and (D)
of this section shall be paid as follows: one-fourth of the amount
to the treasurer of the county in which the action is brought and
three-fourths to the consumer protection enforcement fund created
by section 1345.51 of the Revised Code.
(H) The remedies available to the attorney general under this
section are cumulative and concurrent, and the exercise of one
remedy by the attorney general does not preclude or require the
exercise of any other remedy. The attorney general is not required
to use any procedure set forth in section 1345.06 of the Revised
Code prior to the exercise of any remedy set forth in this
section.
Sec. 1345.51. There is hereby created in the state treasury
the consumer protection enforcement fund. The fund shall include
civil penalties ordered pursuant to divisions (A) and (D) of
section 1345.07 of the Revised Code and paid as provided in
division (G) of that section, all civil penalties assessed under
division (A) of section 1349.192 or division (D) of section
1349.82 of the Revised Code, all costs awarded to the attorney
general and all penalties imposed under section 4549.48 of the
Revised Code, and all money unclaimed under section 4549.50 of the
Revised Code. The money in the consumer protection enforcement
fund shall be used for the sole purpose of paying expenses
incurred by the consumer protection section of the office of the
attorney general.
Sec. 1349.80. As used in this section and sections section
1349.81
to 1349.83 of the Revised Code:
(A) "Performing group" means a vocal or instrumental group
seeking to use the name of a recording group that previously
released a commercial sound recording under the recording group's
name.
(B) "Recording group" means a vocal or instrumental group
that includes at least one member who satisfies both of the
following criteria:
(1) The member previously released a commercial sound
recording under the vocal or instrumental group's name.
(2) The member has a legal right to the vocal or instrumental
group's name by virtue of use of or operation under that group
name or affiliation with the group.
(C) "Commercial sound recording" means a work that results
from the fixation on a material object of a series of musical,
spoken, or other sounds, regardless of the nature of the material
object, including, but not limited to, a compact disc, cassette
tape, or phonograph album in which sounds are embodied.
Sec. 1349.81. (A) Except as otherwise provided in division
(B) of this section, no person shall advertise or conduct a live
musical performance or production in this state through the use of
a false, deceptive, or misleading affiliation, connection, or
association between a performing group and a recording group.
(B) Division (A) of this section does not apply to a person
if any of the following circumstances apply:
(1) The performing group is the authorized registrant and
owner of a federal service mark for that group registered in the
United States patent and trademark office or is the owner of a
valid trademark for that group under the "Lanham Act," 60 Stat.
427-443 (1946), 15 U.S.C. 1125(a), as amended.
(2) At least one member of the performing group is a member
of the recording group and has a legal right to that group name by
virtue of use or operation under the group name without having
abandoned the name or affiliation with the group.
(3) The live musical performance or production is identified
in all advertising and promotion for the performance as a salute
or tribute to the recording group.
(4) The advertising does not relate to a live musical
performance or production that the performing group conducts in
this state.
(5) The performance or production is authorized expressly in
writing by at least one member of the recording group.
Sec. 1349.82. A violation of division (A) of section 1349.81
of the Revised Code is an unfair or deceptive act or practice in
violation of section 1345.02 of the Revised Code.
Section 2. That existing sections 1345.07, 1345.51, 1349.80,
and 1349.81 and section 1349.82 of the Revised Code are hereby
repealed.
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