|
CHAPTER 28.
Department of Consumer Affairs
(Statutory Authority: 1976 Code Section Section 37-3-503, 37-6-104, 37-6-403, 37-6-506, 37-11-80 and 40-68-20)
28-1. Authority for and Division of Rules.
A. The following Rules of organization and practice are adopted to describe the organization and methods of the Office of Administrator of Consumer Affairs and to establish rules of practice and to otherwise implement the South Carolina Consumer Protection Code, Title 37 of The Code of Laws of South Carolina, as amended, pursuant to authority of Sections 37-3-503, 37-6-104, 37-6-403, 37-6-506 and 37-11-80.
B. These Rules and Regulations should be cited by Chapter, Rule and Section; e.g., this provision is S.C. Code Ann. R.28-1B. of the Rules and Regulations to Implement the Consumer Protection Code.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-2. Organization.
A. Commission on Consumer Affairs: The Commission on Consumer Affairs is composed of nine members, one of whom is the Secretary of State serving ex officio and whose term coincides with the term of office. Four members are appointed by the Governor with the advice and consent of the Senate for terms of four years. Four members are elected by the General Assembly for terms of four years. The Commission elects its own chairman. The Commission is the policy-making and governing authority of the Department of Consumer Affairs, appoints the Administrator and is responsible for enforcement of the South Carolina Consumer Protection Code.
B. Council of Advisors on Consumer Credit: The Council of Advisors on Consumer Credit consists of sixteen members, who are appointed by the Governor for terms of four years. One of the advisors is designated by the Governor as chairman. The Council advises and consults with the Administrator concerning the exercise of his powers under the South Carolina Consumer Protection Code and may make recommendations to the Administrator. Members may assist the Administrator in obtaining compliance with the Code.
C. Office of Administrator of Consumer Affairs: The Administrator is appointed by the Commission on Consumer Affairs and serves at its pleasure. The Administrator is responsible to the Commission for faithfully administering and enforcing the South Carolina Consumer Protection Code.
D. Deputy Administrators and Deputy Consumer Advocates: The Administrator, with the approval of the Commission, may designate such Deputies as he determines necessary to assist him in performing the duties he is required to perform under the S.C. Consumer Protection Code and other statutes enforced by the Department.
E. Consumer Advocate: The Administrator of Consumer Affairs may be the Consumer Advocate or he may appoint the Consumer Advocate with approval of the Commission on Consumer Affairs. The Consumer Advocate must be an attorney qualified to practice in all South Carolina courts with a minimum of three years practice experience.
F. Board of Financial Institutions: The Board of Financial Institutions is the governmental agency of the State of South Carolina which is referred to as "the Board of Bank Control" in Act 686 of 1976 amending the Consumer Protection Code and is sometimes referred to as "the Board" in the Rules, and which has responsibility for examinations and investigations (Consumer Protection Code Section 37-3-506) of institutions licensed or chartered by it, and through its Consumer Finance Division has responsibility for matters pertaining to licenses (Consumer Protection Code Sections 37-3-503 and 37-3-504), and records and annual reports (Consumer Protection Code Section 37-3-505).
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-3. General Purposes of Department of Consumer Affairs.
A. To further consumer understanding of the terms of credit transactions and to foster competition among suppliers of consumer credit so that consumers may obtain credit at reasonable costs.
B. To protect consumer buyers, lessees and borrowers against unfair practices by some suppliers of consumer credit having due regard for the interests of legitimate and scrupulous creditors.
C. To permit and encourage the development of fair and economically sound consumer credit practices.
D. To conform the regulation of consumer credit transactions to the policies of the Federal Consumer Credit Protection Act.
E. To implement the South Carolina Consumer Protection Code in the State of South Carolina in accordance with its terms and provisions.
F. To establish programs for the education of consumers with respect to credit practices and problems.
G. To counsel persons and groups of their rights and duties under the South Carolina Consumer Protection Code.
H. To make appropriate studies to effectuate the purposes and policies of the South Carolina Consumer Protection Code and to make the results of such studies available to the public.
I. To report on the use of consumer credit in South Carolina and to report on the problems of persons of small means in obtaining credit.
J. To receive and process complaints of individuals pertaining to any consumer transaction arising out of the production, promotion or sale of goods and services.
K. To cooperate with and assist the Attorney General and all state, local and federal agencies performing consumer protection functions in carrying out their legal enforcement responsibilities for the protection of consumers.
L. To initiate and encourage programs to inform consumers of market practices and schemes which are fraudulent, deceptive, unfair or illegal; how to detect and avoid abusive consumer transactions; and of remedies and relief available to consumers.
M. To undertake activities to encourage business and industry to maintain high standards of honesty, fair business practices and public responsibility in the production, promotion and sale of consumer goods and services.
N. To study the operation of consumer protection laws and recommend to the Governor and the Legislature new laws and amendments to laws which would promote the protection of legitimate interest of consumers within this State.
O. To provide legal representation of the consumer interest before the state and federal regulatory agencies or courts when such regulatory agencies undertake to fix rates or prices for consumer products or services or to enact regulations or establish policies relating to rates or prices for consumer products or services.
P. To monitor existing regulations of such regulatory agencies of special interest to consumers and report to the public through the news media proposed changes under consideration and the effect of such changes on the lives of the citizens of South Carolina.
Q. To simplify, clarify and modernize the law governing retail installment sales, consumer credit and usury.
R. To implement and enforce provisions of the Continuing Care Retirement Community Act.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-4. Method of Operations.
A. Functional Areas: The Department of Consumer Affairs is divided into six functional divisions. These are Administration, Consumer Services, Consumer Advocacy, Public Information and Education, Identity Theft Unit and Legal.
(1) Administration: The Administration Division is responsible for providing administrative support to the Department of Consumer Affairs, including procurement, human resources, accounting and information technology. The Administrator position, the officer appointed by the Commission on Consumer Affairs to administer Title 37 and other statutes falling within the Department's authority and otherwise manage the day to day operations of the agency, is located in this Division.
(2) Consumer Services: The Consumer Services Division is responsible for handling consumer complaints. Consumer complaint analysts receive, evaluate and process complaints arising out of the production, promotion or sale of consumer goods or services. Complaints that fall within the jurisdiction of another state or federal agency are referred to such agency. Analysts engage in voluntary complaint mediation of complaints not subject to the jurisdiction of any responsible agency.
(3) Consumer Advocacy: The Consumer Advocacy Division is responsible for evaluating rate and other requests submitted to various regulatory agencies, recommending intervention to the Consumer Advocate, preparing the presentation of the consuming public's case and representing the public in hearings and in court as appropriate. The Division is also responsible for monitoring regulations of regulatory agencies, reporting on their findings and evaluation of the impact of such regulations on the public, and responding to requests for legislative assistance.
(4) Public Information and Education: The Public Information and Education Division is the main education portal for businesses and consumers. Communications staff are responsible for coordinating, developing and implementing agency outreach programs, for disseminating information on consumer credit laws, protection, and advocacy matters to the news media and the general public.
(5) Identity Theft Unit: The Identity Theft Unit provides education and outreach to consumers on how to deter, detect, and defend against identity theft. Staff assists consumers in mitigating instances of identity theft and provides education to businesses and agencies on complying with state identity theft laws and enforces such statutes.
(6) Legal: The Legal Division is responsible for maintaining a constant review of consumer protection law and formulating recommendations for legislative proposals. It is also responsible for providing legal advice and information to the Divisions of the Department of Consumer Affairs, for rule-making and investigations. It monitors rules, regulations, and interpretations of other Code state administrators and of appropriate Federal agencies and formulates appropriate rules, regulations, declaratory rulings and other interpretations of law. This Division is also responsible for conducting litigation and administrative enforcement actions under the provisions of the South Carolina Consumer Protection Code and other statutes enforced by the Department.
B. Public Access: The public has access to the Department of Consumer Affairs in three ways. These are through the complaint procedures, the information procedures and the formal rule-making and petition procedures.
(1) The public has access to the Department through the complaint procedure by virtue of an online complaint system, a statewide toll-free WATS line, or by utilization of the regular telephone network of the Department. Telephone numbers for the WATS line and the regular system are published in the news media and other appropriate informational sources at regular intervals. Informal complaints may also be submitted to the Department in writing either utilizing the Department's regular complaint form or in an appropriate letter or other writing.
(2) Requests for information may be made to the Public Information and Education Division. Any final order, decision, opinion, rule, regulation, written statement of policy or interpretation formulated, adopted or used by the Administrator on the discharge of his functions or any other matter to which the public has access by virtue of the Freedom of Information Act may be inspected at the Office of the Administrator at any reasonable time, during normal office hours. Voluminous requests or requests for material two years old or older may result in a longer response time for retrieval, copying or sorting. Reasonable charges may be imposed to recover expenses of materials and time for retrieval, copying or sorting of information.
(3) All requests for information which require an answer in the nature of an interpretation, statement of official policy or position of the Department must be submitted in writing.
(4) Submissions or suggestions designed to improve the operation of the Department of Consumer Affairs should be submitted in writing to the Office of Administrator of Consumer Affairs, without regard to the division or activity to which they may pertain.
(5) Requests for publications which may from time to time be issued by the Department should be addressed to the Public Information and Education Division. Reasonable charges may be imposed to recover expenses of materials and time for retrieval, copying or sorting of publications.
(6) Requests, submissions or any other communication of any nature may be made in writing to the Office of the Administrator of Consumer Affairs.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; SCSR 42-5 Doc. No. 4732, eff May 25, 2018.
28-5. Files, Records and Communications.
All papers, records, files and other property of the South Carolina Department of Consumer Affairs shall be maintained and filed in the Office of the Administrator for a reasonable period of time. Thereafter, these materials may be forwarded to State Archives in accordance with State law.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-6. Application of the Federal Truth in Lending Act.
A. All persons upon whom the Federal Truth in Lending Act imposes duties or obligations shall make or give to the consumer the disclosures, information and notices required of him by that Act and in all respects comply with that Act.
B. The term "Federal Truth in Lending Act" means Title I of the Consumer Credit Protection Act [15 U.S.C. Section 1601 et seq.] as amended from time to time and the regulations promulgated thereunder, as amended from time to time.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; SCSR 42-5 Doc. No. 4732, eff May 25, 2018.
28-7. Definitions Applying to Rules of Practice.
A. "Administrator" means the officer appointed by the Commission on Consumer Affairs. Where the word "Administrator" is used in these Rules it shall be deemed, when applicable, to include his representatives. (See Also R.28-8H)
B. "Applicant" is a party applying for any right or authority under the Consumer Protection Code, and includes all partners in a partnership.
C. "Code" means the South Carolina Consumer Protection Code [Title 37 of The Code of Laws of South Carolina (as amended)].
D. "Complainant" is any party who complains to the Administrator of any act or omission allegedly committed by any person subject to the Code.
E. "Defendant" is a party against whom a complaint has been filed concerning any act or omission allegedly committed in violation of the Code or of any promulgated administrative order, rule or regulation.
F. "Intervenor" is a person who has been permitted to become a party to any proceeding before the Administrator.
G. "Party" means the Administrator, any person named or admitted as a party in a proceeding before the Administrator, or any person who is aggrieved by any action taken and seeks to be admitted as a party.
H. "Person Related To" with respect to an individual means:
(1) the spouse of the individual;
(2) a brother, brother-in-law, sister, sister-in-law of the individual;
(3) an ancestor or lineal descendant of the individual or his spouse;
(4) any other relative, by blood or marriage, of the individual or his spouse who shares the same home with the individual.
I. "Person Related To" with respect to an organization means:
(1) a person directly or indirectly controlling, controlled by or under common control with the organization;
(2) an officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization;
(3) the spouse of a person related to the organization;
(4) a relative by blood or marriage of a person related to the organization who shares the same home with him.
J. "Petitioner" is a person seeking relief not otherwise designated.
K. "Protestant" is any party other than a complainant, defendant or respondent who opposes the granting of an application, complaint, order, petition or other authority sought under the Consumer Protection Code.
L. "Respondent" is a party against whom an investigative proceeding or an order to show cause is directed.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-8. Notification and Fees Summary Procedures - Licensing.
A. Notification. Pursuant to the authority contained in Sections 37-6-201, 37-6-202, 37-6-203 and 37-6-204 of the Code, the following rules are adopted for notification to this Department of a person engaged in this State in making consumer credit sales, consumer leases, consumer rental-purchase agreements or consumer loans and to a person having an office or place of business in this State who takes assignments of and undertakes direct collection of payments from or enforcement of rights against debtors arising from these sales, leases, rental-purchase agreements or loans.
B. Forms. Persons subject to the section as in A above shall file a notification form with the Administrator within thirty (30) days after commencing business in this State and thereafter on or before January thirty-first of each year on the prescribed form which shall state:
(1) Name of person;
(2) Name in which business is transacted if different from (1) above;
(3) Address of principal office giving street number, city, state and zip code (This may be outside the State of South Carolina);
(4) Addresses of all offices or retail stores, if any, in this State at which consumer credit sales, consumer leases, consumer rental-purchase agreements or consumer loans are made, or in case of a person taking assignments of obligations, the offices or places of business within this State at which business is transacted;
(5) If consumer credit sales, consumer leases, consumer rental-purchase agreements or consumer loans are made otherwise than at an office or retail store in this State, a brief description of the manner in which they are made;
(6) Type of business conducted;
(7) If consumer rental-purchase transactions are made at any location listed pursuant to (3) and (4) and cash or credit sales of merchandise are also made at those locations, an indication of that fact;
(8) Address of designated agent upon whom service of process may be made in this State.
C. Fees. A person required to file notification shall on or before January thirty-first of each year pay to the Administrator an annual fee of one hundred twenty dollars for that year, for each address in this State listed in the notification; provided, however, that the fee for any one person shall not be less than one hundred twenty dollars; provided, further, that a person who does not extend credit pursuant to written contracts and a person whose annual gross volume of business does not exceed one hundred fifty thousand dollars shall be exempt from any fee and from the notification requirements of the section as in A above.
D. Application for License to Make Supervised Loans: Applications for licenses to make supervised loans shall be made to the South Carolina Board of Financial Institutions on a form pre-scribed by the Board and shall contain the following:
(1) name and address of applicant;
(2) name in which and address for which the license is to be issued;
(3) name and address in South Carolina of agent upon whom process may be served;
(4) business, if any, other than making supervised loans, which will be conducted at the licensed address;
(5) all organizations related to the applicant and the character of business conducted by each;
(6) name, address and telephone number of person to be contacted for further information about this application;
(7) name, business address, residence address, official title and other business or occupation, if any, of the applicant, the manager and, as applicable, each partner, officer and director;
(8) name and address of any person(s) listed under the subsection D(7) above and of any person(s) related to the applicant who have engaged in the business of making consumer loans in any state during the last five years (give details for each person so engaged);
(9) a statement of whether any person listed under the subsection D(7) above has been convicted of a crime involving moral turpitude during the last ten years (if so give details);
(10) a statement of whether any person listed under the subsection D(8) above has been the subject of any proceeding either to cancel, suspend or revoke a lending license or in which a regulatory authority or law enforcement agency alleged a violation of state or federal law (if so give details);
(11) a current accurate statement of the financial condition of the applicant showing that he has available for operation of business in this State assets of at least $25,000 for each license issued to him;
(12) an investigation fee of $100 plus a license fee of $200, paid separately (the license fee will be returned if the application is denied; the investigation fee will not be refunded in any event);
(13) a copy of any corporate charter and certificate of authority to do business in South Carolina, if applicable;
(14) the signature of the applicant which must be notarized.
E. Investigation of Application for License: Upon receipt of the completed application with appropriate fees, the Board will conduct an investigation as it deems appropriate to enable it to determine whether:
(1) the character and fitness of the applicant, the members and the partners, officers and directors, where applicable, are such as to warrant belief that the business will be operated honestly and fairly;
(2) the applicant has available for operation of his business in this State assets of at least $25,000 for each license issued in this State.
F. Issuance or Denial of License: The Board shall within sixty (60) days after the application for license has been filed either grant the license or notify the applicant in writing by mail that the application has been denied and stating, in substance, the Board's findings in such a concise and explicit manner as to reasonably inform the applicant of the underlying facts supporting its findings and denial of the application.
G. Request for Hearing Upon Denial of License: Upon written request, the applicant is entitled to a hearing on his application if the Board has notified the applicant in writing that his application has been denied, or the Board has not issued a license within sixty (60) days after the application for the license was filed. The request for hearing must be in writing and must be made not later than fifteen (15) days after denial of the application, as provided in Section 37-3-503(3) of the Code.
H. Hearing Procedure: If the applicant timely requests a hearing to which he is entitled such hearing shall be scheduled and conducted in accordance with the provisions of the Administrative Procedures Act, S.C. Code Ann. Sections 1-23-310 et seq. (as amended). For purposes of this Rule the term "Administrator" shall be deemed to include the Board of Financial Institutions, where the context so requires.
I. Annual License Fees: Each licensee shall on or before February 1 of each year pay to the Board an annual license fee for each licensed office based upon outstanding loan balances in such office as of December 21 of the preceding year according to the schedule published in South Carolina Board of Financial Institutions R.15-62.
J. Revocation, Suspension or Relinquishment of License: After a supervised lender's license has been issued, the Administrator may revoke or suspend the license pursuant to S.C. Code Ann. Section 37-3-504 on the grounds listed in that section, although the Administrator will comply with the notice and procedure requirements of the Administrative Procedures Act, (as amended).
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993. Amended by State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-9. Other Cases - Summary Procedure.
A. Informal Complaint: Informal complaints pertaining to actions subject to the Department's jurisdiction may be made to the Administrator in writing and need not be in any particular form. Such matters may be disposed of by correspondence or other informal communication.
B. Record of Informal Complaints: A record shall be kept of each informal complaint listing the allegations and all action taken including any final disposition, subject to the Department's Record Retention Policy.
C. Investigation: If it appears from an informal complaint or other information brought to the attention of the Administrator that there is probable cause to believe that a person is committing or has committed an act or omission in violation of the Code, the Administrator may order an investigation to determine if the Act is being or has been committed.
D. Summary Action: If, after investigation, the Administrator determines that a person is committing or has committed any act or omission in violation of the Code, he may take one or more of the following actions, as the situation may warrant:
(1) Enter into an agreement with the person to settle the matter via a non-hearing resolution or otherwise accept an assurance in writing that the person in violation of the Code will not engage in that conduct in the future;
(2) Bring an administrative action;
(3) Bring civil action for injunctive relief as provided in Sections 37-6-110, 37-6-111 and 37-6-112 of the Code;
(4) Bring a civil action as provided in Section 37-6-113 of the Code;
(5) Bring an individual action for a consumer as provided in Section 37-6-117 of the Code;
(6) Bring a criminal action as provided in Section 37-6-104 of the Code;
(7) Engage in an action as permitted by law.
E. Initiation of Formal Proceedings: The Administrator may initiate formal or investigative proceedings upon any matter arising out of an informal complaint.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013; SCSR 42-5 Doc. No. 4732, eff May 25, 2018.
28-10. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-10 was titled "Place of Hearings" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-11. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-11 was titled "Case Numbers and Titles" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-12. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-12 was titled "Form and Size of Papers" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-13. Filing and Service.
A. Service: All notices, findings of fact, opinions and orders required to be served by the Administrator and all documents filed by any party may be served by mail, and service shall be deemed complete when a true copy of such paper or document, properly addressed and stamped, is deposited in the United States mail.
B. Proof of Service: On all documents required to be served there may appear an acknowledgement or affidavit of service or the following certificate:
I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding (by delivering a copy in person to __________) (by mailing a copy thereof, properly addressed, with postage prepaid, to) __________.
Dated at __________, this __________ day of __________, 20__________.
__________
Signature
C. Alternative Service: In the alternative, service as permitted by the S.C. Rules of Civil Procedure.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-14. Procedure.
Applicability of Administrative Procedures Act: All parties to formal or investigative cases shall follow the notice and procedure requirements of the South Carolina Administrative Procedures Act, S.C. Code Ann. Sections 1-23-310 et seq. (as amended).
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-15. Witnesses.
A. All persons competent to testify in civil actions are competent witnesses before the Administrator.
B. The Administrator may issue subpoenas for the attendance of witnesses and the production of any paper, book, record, document or other evidence in any inquiry, investigation, hearing or proceeding before the Administrator.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-16. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-16 was titled "Contents of Formal Complaint" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-17. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-17 was titled "Answers" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-18. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-18 was titled "Pleadings and Action" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-19. Investigative Cases.
Commenced by Administrator: On his own motion the Administrator may institute an investigative case inquiring into any matters or the acts of any person which are subject to the Code.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-20. Hearings.
Hearings shall be conducted as set forth by the rules of the Administrative Law Court.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-21. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-21 was titled "Evidence" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-22. Deleted by State Register Volume 37, Issue No. 5, eff May 24, 2013.
Editor's Note
Former R. 28-22 was titled "Close of Hearing" and was derived from State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-23. Decision of Administrator.
A. Report and Order: After the Administrator has reached a final decision upon any proceeding, he shall prepare an order and a report, containing his findings and conclusions with respect to such proceeding.
B. Service of Report and Order: A correct copy of such report and order shall be served upon the person against whom such proceeding is directed. Copies will be mailed by certified mail to other parties who appeared and participated in the proceeding and to all attorneys of record.
C. Effective Date of Order: The order shall take effect and become operative upon service unless otherwise provided in such order.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-24. Rehearing and Review.
A. Time for Filing: Petitions for rehearing must be filed by a party within twenty (20) days after being served with a copy of the order or decision.
B. Detail of Petition: The petition for rehearing shall set forth specifically and in detail the particulars in which it is claimed the Administrator's order or decision is unlawful, unreasonable, or unfair. If the petition for rehearing is based upon a claim that the Administrator failed to consider certain evidence, such petition shall include an abstract of that evidence relied upon by the petitioner.
C. Petition Based on New Evidence: The petition may be based upon newly discovered evidence. When such ground is used, the petition shall be accompanied by an affidavit setting forth the nature and extent of such evidence, its relevancy to the issues involved, and a statement that the party could not, with reasonable diligence, have discovered the evidence prior to the former hearing.
D. Action on Petition: Upon the filing of a petition for rehearing, the Administrator may set a time for the hearing of said petition, or may summarily grant or deny said petition in whole or in part.
E. Rehearings Limited: If an order is made granting the petition for rehearing, it shall be limited to the matter specified in such order. Upon rehearing of any proceeding the Administrator may confirm his former judgment or abrogate, change, or modify the same in any particular. Such order and decision shall have the same force and effect as the original order and decision, but shall not affect any right or the enforcement of any right arising out of or by virtue of the original order and decision unless so ordered by the Administrator.
F. Judicial Review:
(1) A person who has exhausted all the administrative remedies available before the Administrator and who is aggrieved by a final decision in a contested case is entitled to judicial review.
(2) Judicial review shall be conducted pursuant and subject to the Administrative Procedures Act, (as amended).
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-25. Declaratory Rulings.
A. Petition for Declaratory Rulings: Any person may request in writing a declaratory ruling on the applicability of any administrative rule or regulation or Code provision.
(1) The petitioner shall include in his request the question to which an answer is sought and a list of reasons supporting or denying the applicability of the particular provision and/or rule or regulation involved.
(2) If the Administrator deems the matter to be of sufficient public importance, in the exercise of his absolute discretion he may schedule the matter for a public hearing pursuant to the procedures provided in the Administrative Procedures Act, (as amended).
B. Ruling by Administrator: The Administrator shall as soon as practicable issue his declaratory ruling. A copy of the ruling shall be mailed to the petitioner and to such other persons as shall request a copy.
C. Petition for Reconsideration: If the petitioner or any other person is aggrieved by the declaratory ruling of the Administrator, he may within twenty (20) days after the mailing of a copy of the declaratory ruling to the petitioner, petition the Administrator to reconsider his ruling. The petition for reconsideration shall set forth specifically and in detail, the particulars in which the petitioner believes the declaratory ruling of the Administrator to be in error.
D. Reconsideration: After reconsideration, the Administrator may confirm his ruling or abrogate, change, or modify the same in any particular.
E. Public Record of Declaratory Rulings: The Administrator shall keep available in his office for public inspection a copy of each of his declaratory rulings.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-26. Administrative Interpretations.
A. Request for Administrative Interpretation: Upon the written request of any person, or upon his own initiative, the Administrator may issue an administrative interpretation of any provision of the Code or any Rule or Regulation issued pursuant thereto.
B. Contents of Request: Requests for administrative interpretation shall clearly state:
(1) the precise questions posed;
(2) the opinion of the person requesting the Interpretation;
(3) the basis of such opinion including citation of all applicable statutory provisions, Rules, Regulations or other provision of law.
C. Request for Reconsideration: Administrative interpretations will be reconsidered upon the written request for any person. Such requests must conform to the requirements of the section as in B above.
D. Public Record of Administrative Interpretations: The Administrator shall keep available in his office for public inspection a copy of his administrative interpretations.
HISTORY: Amended by State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-27. Petition for Adoption of Rules.
A. Any interested person may petition the Administrator requesting the promulgation, amendment or repeal of a rule. The petition shall be in writing, be addressed to the Administrator and include a clear statement of the petitioner's proposal and may include any supporting data that may assist the Administrator in reaching a determination. The petition need not be of any particular form, but must contain the information required by this section.
B. If the Administrator deems the matter to be of sufficient public importance, in the exercise of his absolute discretion he may schedule the matter for a public hearing, pursuant to the procedures provided in the Administrative Procedures Act, (as amended).
C. Within thirty (30) days after submission of a petition, the Administrator either shall deny the petition in writing to the petitioner, stating his reasons for the denial, or shall initiate rule-making procedures in accordance with the provisions on procedures for adoption of rules in the Administrative Procedures Act, (as amended).
HISTORY: Added in State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-28. Meetings.
A. Commission on Consumer Affairs: The Commission will meet once each month. The meeting will be held at a time and place to be selected by the Commission. Public notice will be given of all meetings.
B. Council of Advisors on Consumer Credit: The Council will meet at least twice each year. Meeting time and place will be selected and announced by the Chairman of the Council. Public notice will be given of all meetings.
HISTORY: Added in State Register Volume 17, Issue No. 2, eff February 26, 1993.
28-29. Actuarial Method 1.301.
The "Actuarial Method" as described in S.C. Code Ann. Section 37-1-301(1) is the same actuarial method contemplated by the Federal Reserve Board in Regulation Z [12 C.F.R. Part 226], the implementing regulation of the Federal Truth in Lending Act. The explanations, equations and instructions for determining the annual percentage rate in accordance with the actuarial method are set forth in Appendix J to Regulation Z.
HISTORY: Added by State Register Volume 17, Issue No. 2, eff February 26, 1993.
SUBSECTION 204.
Debtor's Right to Rescind Certain Transactions.
28-29-5.204. Debtor's Right to Rescind Certain Transactions.
With regard to certain credit transactions in which a security interest is retained or acquired in an interest in land which is used or expected to be used as the residence of the person to whom credit is extended, the form and procedure for (1) the debtor to notify the creditor of his intention to rescind, (2) the creditor's disclosure to the debtor of the debtor's right to rescind the transaction, (3) the creditor's provision of an adequate opportunity to rescind the transaction, and (4) the waiver of the right to rescind in bona fide personal financial emergencies of homeowners, are set forth in Federal Reserve Board Regulation Z Section 226.9 (12 C.F.R. Section 226) which implements the Federal Truth in Lending Act.
HISTORY: Added effective January 17, 1976.
28-30. Delinquent Notification Filing and Fee Payment.
A. Except in the case of willful or repeated violations of Sections 37-6-202 and 37-6-203, notification filings and fees which are not more than 15 days delinquent will be accepted without penalty.
B. Willful or repeated violations will be disposed of pursuant to the provisions of the Code, including Sections 37-6-108, 37-6-110, 37-6-113 (Civil Actions) and 37-6-118.
C. In all other cases delinquent filings must be accompanied by a penalty equal to the amount indicated as follows:
Payment Received
Penalty
16 to 30 days late
50% of delinquent fee
31 to 60 days late
100% of delinquent fee
61 to 90 days late
200% of delinquent fee
91 or more days late
subject to action by the Department
HISTORY: Added effective April 11, 1980. Amended by SCSR 42-5 Doc. No. 4732, eff May 25, 2018.
28-40. Consumer Rental-Purchase.
(Statutory Authority: 1976 Code Section Section 37-2-702, 37-3-503, 37-6-104, 37-6-403, 37-6-506)
A. Definitions. Definitions shall be those contained in S.C. Code Ann. 37-2-701 (1976 as amended).
B. Recordkeeping
(1) All books, agreement and records, and all other sources of information with regard to the business of providing consumer rental-purchase services must at all reasonable times be available for inspection by the Department of Consumer Affairs for the purpose of assuring that the business is being transacted in accordance with the law and applicable regulations. Failure to provide or allow access to all books, agreements and records and all other sources of information with regard to the business of providing consumer rental-purchase services will be regarded as a violation of the South Carolina Consumer Protection Code.
(2) All locations must maintain a copy of all agreements for consumer rental-purchase services for as long as such agreements are in effect and for a period of one (1) year thereafter. Agreements for each calendar year must be filed in alphabetical order by the consumer's last name. If the center uses numbered agreements, a numerical sequence file may be used instead of an alphabetical file. If a business providing consumer rental-purchase services has two or more locations, records may be consolidated at a principal office in this State. The Department of Consumer Affairs must be given written notice prior to the enactment of a policy of consolidation of records.
(3) Records of Payment -A written record of any payment on an agreement must be made immediately upon receipt. Payments received must be posted on the business day received to the payment record. The payment record must show at least the following information:
(a) Name or number of account;
(b) The date (month, day, year) of payment;
(c) The actual amount received and itemized as applied to:
(i) periodic payment including taxes to lessor necessary to acquire ownership of the property;
(ii) delinquency charges;
(iii) initial non-refundable fee;
(iv) security deposit;
(v) delivery charge;
(vi) payment pick up charge;
(vii) any other fees allowed by the rental-purchase statute.
(4) Records Maintained on Electronic Data Processing (EDP) Systems.
(a) Filing of Description of Systems and Programs -Records and account systems maintained in whole or in part by electronic data processing may be used in lieu of the books, files and records required by these regulations if they contain equivalent information. Each such system must receive prior written approval from the Department. Lessors seeking such approval must file a complete and detailed written description of the system proposed to be utilized, including user instructions and an enumeration of all features that do not meet the requirements of the regulations and a full explanation as to how the equivalent information is maintained with the proposed system. User instructions must provide a clear and concise section of procedures which must be followed to operate the system as contemplated by the Department in approving the system.
(b) Filing of Amendments -All changes to a lessor's electronic data processing system must be filed with the Department at least 14 days in advance of use by a lessor.
(c) Withdrawal of Approval by the Department -If based on examinations and practical experience with an EDP system and its records, the Department finds that such system and records do not provide reasonable access to information required in B(1) and (3) above, approval may be withdrawn by the Department.
(5) Advertisements -All advertisements by a lessor must contain the name and an office address of the entity, which must conform to a name and address on record with the Department of Consumer Affairs.
HISTORY: Added by State Register Volume 18, Issue No. 2, eff February 25, 1994.
SUBSECTION 210,.
3.210. "Rebate Upon Prepayment," Simplification of the Calculation of the Unearned Portion of the Finance Charge, Allowance of the Use of Tables.
28-50-2.210,. 3.210. "Rebate Upon Prepayment," Simplification of the Calculation of the Unearned Portion of the Finance Charge, Allowance of the Use of Tables.
(Statutory Authority: 1976 Code Section Section 37-2-210 and 37-3-210)
A. Any chart or table may be utilized for the purpose of determining the rebate provided:
(1) It is prepared in accordance with the actuarial method as required by Sections 2.210(5)(b) and 3.210(5)(b) of the Consumer Protection Code;
(2) It is based upon a calendar year (365 days) and takes into consideration days as well as months in computing refunds of unearned finance charge; and
(3) It bears the name and address of the person responsible for its production and an identification number assigned to it by that person which shall be the same for each chart or table so produced with like numerical content and configuration.
B. The rebate may be computed using the Annual Percentage Rate required to be disclosed to the consumer pursuant to law or at that rate rounded to the nearest one half of one percent.
C. If prepayment occurs during a deferral period the amount of any deferral charge earned at the date of prepayment shall also be computed. If the deferral charge earned is less than the deferral charge paid, the difference shall be added to the unearned portion of the finance charge. If any part of a deferral charge has been earned but has not been paid, that part shall be subtracted from the unearned portion of the finance charge or shall be added to the unpaid balance.
D. Errors in calculations of rebates which occur because of a corresponding error in a chart produced and utilized in conformity with this rule shall not subject the creditor to any penalty imposed by any provision of the South Carolina Consumer Protection Code (Act 1241 of 1974 as amended) or any statute to which that Act refers [Section 6.506(3)]; provided that upon discovery of an error in a chart the creditor shall make no further rebates based on that chart and shall promptly notify the Department of Consumer Affairs in writing of the error and identify the inaccurate chart by giving the name and address of the person responsible for its production and its identification number.
HISTORY: Added by State Register Volume 3, eff April 13, 1979.
28-55. Employee's Revocable Authorization of a Deduction of Earnings.
A. Definitions: Definitions shall be those contained in S.C. Code Ann. S. 37-1-100 et seq. (1976 as amended).
B. No Assignment of Earnings. A creditor may not take an assignment of earnings of a consumer for payment or as security for payment of a debt arising out of a consumer credit transaction. An assignment of earnings is unenforceable by the creditor, including an assignee, and is revocable by the consumer.
C. Revocable Payroll Deductions: An employee may authorize deductions from his earnings if the authorization is revocable. No deduction of earnings authorizing the debtor's employer to withhold a specific amount from a debtor's wages for payment of a debt arising out of a consumer sale, loan, lease or rental-purchase agreement shall be considered revocable and otherwise in compliance with Title 37 unless the consumer or, if authorized in writing by the consumer, the creditor notifies his or her employer of the payroll authorization in favor of the creditor and the authorization:
(1) Is in a writing:
(a) contained in a document separate from any contract or agreement;
(b) executed at the same time as the underlying transaction;
(c) bearing the debtor's signature and date of signature; and
(d) a completed copy of which is given to the debtor.
(2) Contains the following terms in clear, easily understandable language:
(a) The name and address of the creditor and the borrower;
(b) A statement that by signing the authorization, the consumer is permitting his/ her employer to withhold the consumer's earnings for payment of the debt to the creditor, unless the consumer revokes such authorization;
(c) A description of the debt underlying the authorization, including the type of debt, date of the transaction, the amount of money advanced or paid, the interest and all other fees and charges paid or agreed to be paid by the consumer, the time when the debt, if any, matures and, if the debt is to be paid in installments, the amount and date of payment of each installment;
(d) The total amount to be deducted and number of payments the consumer intends to pay by payroll deduction;
(e) A statement that the failure of the consumer to notify the creditor of a revocation of the earnings deduction does not affect the status of the revocation. The creditor's contact information for receiving notice of revocation, including street address and mailing address or e-mail address, must be provided. If the creditor chooses to provide the consumer a form for use in the consumer notifying the creditor of a revocation, an additional statement describing the purpose of the form and that the use of the form is optional;
(f) The internet address and telephone number for the Department of Consumer Affairs;
(g) The following statements in all caps, bold-face type, in a font larger than any other language on the contract and in immediate proximity to the space reserved for the consumer's signature on the agreement that reads as follows:
(i) 'THIS PAYROLL AUTHORIZATION IS NOT REQUIRED TO GET CREDIT OR TO GET CERTAIN TERMS OF CREDIT.'
(ii) 'YOU MAY REVOKE THIS AUTHORIZATION WITHOUT PENALTY, FOR ANY REASON AND AT ANYTIME BY CONTACTING YOUR EMPLOYER. IF REVOKED, YOU NEED TO MAKE FUTURE PAYMENTS DIRECTLY TO US.'
(iii) 'IF YOU CHOOSE NOT TO NOTIFY US THAT YOU REVOKED YOUR AUTHORIZATION AND PAYMENT IS NOT RECEIVED WHEN DUE, YOU GIVE US PERMISSION TO CONTACT YOUR EMPLOYER TO FIND OUT WHY THE PAYMENT WAS NOT MADE.'
D. Prohibitions: Regardless of when made, an authorization for the deduction of earnings is void if a creditor:
(1) Fails to comply with the provisions of this regulation,
(2) Requires the authorization to obtain credit or certain terms of credit,
(3) Initiates, or attempts to initiate contact with the consumer's employer pertaining to the authorization, except that a creditor may initiate contact with the employer:
(a) after the debtor signs the payroll authorization to confirm the employer received notice of the authorization, intends to deduct the specified amount from the debtor's earnings and has the necessary information to facilitate the payments. Any communication between the creditor and employer regarding the authorization shall be limited to confirmation of the employer's intent to honor the employee's request for a payroll deduction, the amount and due date for each installment and the form for use in the consumer notifying the creditor of a revocation, if applicable; and
(b) if the creditor fails to receive timely payment pursuant to the authorization and has not received notice of revocation from the consumer, to determine the reason the payment was not made. This does not apply if the last payment received by the creditor was made by the consumer directly by a method other than payroll deduction; or
(4) Attempts to utilize an authorization to solely collect payments due upon a consumer's default, or otherwise deduct earnings in an unauthorized manner similar to wage garnishment or wage assignment.
E. Nothing in this regulation affects an employer's right to decline the employee's request for a payroll deduction.
HISTORY: Added by SCSR 43-5 Doc. No. 4811, eff May 24, 2019.
28-60. Unearned Finance Charge in "Extended First Payment" Transaction.
(Statutory Authority: 1976 Code Section Section 37-2-210, 37-3-210, 37-6-506)
A. For purposes of this Rule "Extended First Payment" means that the interval to the due date of the first installment exceeds the computational period applicable to the transaction. "Computational period" means (1) the interval between scheduled due dates of installments under the transaction if the intervals are substantially equal or, (2) if the intervals are not substantially equal, one month if the smallest interval between the scheduled due dates of installments under the transaction is one month or more, and otherwise, one week.
B. With respect to a transaction having an extended first payment the creditor may not exclude the extra days in the first interval or the charge for such extra days, in computing the unearned finance charge when a rebate is required under Sections 2.210 or 3.210 of the Consumer Protection Code.
C. A creditor who makes a rebate not in compliance with this Rule in connection with a consumer credit transaction made after the effective date of this Rule shall be deemed to have received an excess charge for all purposes of the Consumer Protection Code.
HISTORY: Added by State Register Volume 4, eff April 11, 1980.
28-62. Adjustment of Dollar Amounts.
(Statutory Authority: 1976 Code Sections 37-1-109 and 37-6-104(1)(e))
The dollar amounts referenced in Section 37-1-109(6) shall change by increasing 10% with the exception of Sections 37-2-203(2) and 37-3-203(2) which have a self-executing formula of 40%. These sections shall change by notice on July 1 of even-numbered years in accordance with Section 37-1-109.
HISTORY: Added by State Register Volume 17, Issue No. 4, eff April 23, 1993. Amended by State Register Volume 19, Issue No. 5, eff May 26, 1995; State Register Volume 21, Issue No. 5, eff May 23, 1997; State Register Volume 23, Issue No. 5, eff May 28, 1999; State Register Volume 25, Issue No. 5, Part 1, eff May 25, 2001; State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-70. Filing and Posting Maximum Rate Schedules.
A. Every creditor [Section 37-1-301(13)] other than an assignee of a credit obligation making consumer credit sales [Section 37-2-104] in this State, and intending to impose a credit service charge in excess of 18% per annum in this State, and every creditor [Section 37-1-301(13)] making supervised loans [Section 37-3-501(1)] or restricted loans [Section 37-3-501(3)] in this State, shall:
(1) file with the Department of Consumer Affairs a rate schedule as shown on the Department's internet website. The original of the rate schedule shall be filed together with a fee of forty dollars per location, and
(2) post in one conspicuous place in every place of business in this State in which offers to make consumer credit sales, supervised loans or restricted loans, a maximum rate schedule issued by the Department of Consumer Affairs pursuant to Subsection (A)(1). No posted rate schedule shall contain any statement, stamp of approval, or any language or symbol which suggests or implies that the posted rate(s) are suggested, or individually approved by the Department of Consumer Affairs or any other agency of State or Federal government.
B. A creditor that has issued seller credit cards [Section 37-1-301(26)] or a creditor that has issued lender credit cards or similar arrangements [Section 37-1-301(16)] shall not be required to post a required rate schedule for such transactions in any place of business which is authorized to honor such transactions; provided that the creditor shall include a conspicuous statement of the maximum rate it intends to charge for these transactions in the initial disclosure statement required to be provided for the debtor by the Federal Truth-In-Lending Act and notifies the debtor of any change in the maximum rate on or before the effective date of the change; provided further that a creditor that has issued lender credit cards or similar arrangements shall nevertheless post the required rate schedule for such transactions at its central office (if financial transactions with consumers take place at the central office) and branch offices other than branch offices which are free standing automatic teller machines.
C. (1) The rate schedule required to be filed and posted by Sections A. and B. shall contain a list of the maximum credit service charges [Section 37-2-109] (in the case of consumer credit sales) or maximum loan finance charges [Section 37-3-109] (in the case of supervised or restricted consumer loans) stated as an annual percentage rate, determined in accordance with the Federal Truth-In-Lending Act as amended from time to time, and any regulations promulgated thereunder, including Regulation Z, as amended from time to time, that the creditor intends to charge for consumer credit transactions in each of the following categories of consumer credit:
(a) Unsecured credit sales or loans;
(b) Secured credit sales or personal loans, other than those secured by real estate ;
(c) Credit sales secured by  real estate or real estate mortgage loans;
(d) Open-end (revolving) credit;
(e) All other.
(2) The creditor may include as many subcategories as it chooses under each of the specified categories.
(3) If a creditor with multiple locations wishes to charge different maximum rates for different locations, a separate maximum rate schedule shall be filed for each location which charges maximum rates which vary from the schedule filed and posted for the main or central location.
D. A rate schedule filed shall be effective for all consumer credit extended the date the maximum rate schedule certificate is issued by the Administrator or when the creditor complies with all requirements of 37-2-305 or 37-3-305, as applicable, whichever is later.
E. A rate schedule filed and posted as required by Section 37-2-305, Section 37-3-305, and this Regulation shall remain effective until January 31st of each year. A creditor wishing to change any of the maximum rates shown on a schedule previously filed and posted or to add or delete the prescribed categories or subcategories shall file with the Department of Consumer Affairs a revised schedule together with a fee of forty dollars per location.
HISTORY: Added by State Register Volume 7, Issue No. 5, eff May 27, 1983. Amended by State Register Volume 37, Issue No. 5, eff May 24, 2013; SCSR 42-5 Doc. No. 4732, eff May 25, 2018.
28-78. Sale or Lease of Renewable Energy Facilities.
A. Definitions: Definitions shall be those contained in Title 37 and the following:
(1) "Advertisement" means an oral, written, graphic, or pictorial statement made in the course of soliciting for the sale or lease of a renewable energy facility, including in a newspaper, magazine, on radio, television, or the Internet, or in the form of a mailer or other direct solicitation.
(2) "Consumer" means a purchaser or lessee or prospective purchaser or lessee of a renewable energy facility for a personal, family, or household purpose.
(3) "Lead" means any information identifying a consumer.
(4) "Lead generation" means to:
(a) Initiate consumer interest or inquiry in a renewable energy facility through advertisements;
(b) Engage in the business of selling leads for renewable energy facilities; or
(c) Generate or augment leads for, or refer South Carolina residents to, a third party for renewable energy facilities for a fee, compensation, or gain or expectation thereof.
(5) "Lead generator" means a person engaging in the business of lead generation for the purpose of sale to or benefit of a third party. For purposes of this regulation, the lead generator is an agent of the renewable energy facility retailer purchasing or otherwise benefitting from the lead.
(6) "Lease agreement" means a contract, commitment or document between a consumer and lessor for the exclusive rights to use a renewable energy facility for a period of time in exchange for a payment.
(7) "Purchase agreement" means a contract, commitment or document under which a consumer purchases a residential renewable energy facility from a renewable energy facility retailer.
(8) "Renewable energy facility" means any facility for the production of electrical energy that utilizes a renewable generation resource such as solar photovoltaic and solar thermal resources, wind resources, low impact hydroelectric resources, geothermal resources, tidal and wave energy resources, recycling resources, hydrogen fuel derived from renewable resources, combined heat and power derived from renewable resources, and biomass resources.
(9) "Renewable energy facility agreement" or "agreement" means a purchase agreement or a lease agreement.
(10) "Renewable energy facility retailer" or "retailer" means a person who:
(a) Sells or proposes to sell a renewable energy facility to a consumer under a purchase agreement; or
(b) Owns the renewable energy facility that is the subject of a lease agreement.
(11) "Renewable energy facility solicitation" means, for compensation or gain or with the expectation of compensation or gain, to:
(a) Offer, solicit, broker, directly or indirectly arrange, place, or find a renewable energy facility for a consumer in this State;
(b) Engage in any activity intended to assist a consumer in this State in obtaining a renewable energy facility, including lead generation;
(c) Arrange, in whole or in part, the sale or lease of a renewable energy facility through a third party, regardless of whether approval, acceptance, or ratification by the third party is necessary to create a legal obligation for the third party, through any method, including mail, telephone, Internet, or any electronic means; or
(d) Represent to consumers through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that a person can or will provide a renewable energy facility or any of the services described in subdivisions (a)-(c) of this definition.
(12) "Retail electric provider" includes an electrical utility as defined in Section 58-27-10 and all other entities providing retail electric service in South Carolina regardless of where organized or domiciled.
(13) "Third-party servicer" means a person that enters into a contract with a renewable energy facility retailer to perform the installation, maintenance, or servicing of a facility for a consumer in this State.
B. Marketing
(1) The administrator shall develop a written pamphlet that explains the rights and responsibilities of consumers who are marketed renewable energy facilities. Such pamphlet shall include the names, addresses, and telephone numbers of state agencies responsible for administering and/or enforcing the provisions of Title 37 and Title 58. Such pamphlet shall be given to a consumer at the time of any renewable energy facility solicitation. The administrator shall consult with and seek input from consumer representatives, representatives from the renewable energy facility industry, retail electric providers, and the Office of Regulatory Staff. Each person engaged in the renewable energy facility solicitation shall be responsible for reproducing and distributing the pamphlet finally approved and authorized by the administrator. The pamphlet developed under this subsection shall be provided to consumers beginning three months after the effective date of this regulation.
(2) Persons engaging in lead generation shall clearly and conspicuously include in all advertisements and solicitations of leads, the following statement in bolded typeface at least two points larger than the surrounding typeface or 14-point font, whichever is larger: "This is a solicitation for [insert renewable energy facility type]. [Insert lead generator name] will not provide you with [insert renewable energy facility type]. Instead [insert lead generator name] will share your information with one or more third parties who may contact you to provide [insert renewable energy facility type]."
(3) A person engaging in renewable energy facility solicitations shall not advertise or market to a consumer:
(a) in a manner that is false, deceptive, or misleading, or that misrepresents a renewable energy facility offered for sale or lease, whether by affirmative statement, implication or omission; or
(b) if the retailer or lead generator knows or reasonably should know that the consumer would likely be unable to:
(i) fulfill the terms of a financing agreement for a renewable energy facility; or
(ii) benefit from a renewable energy facility agreement.
(4) Any written marketing material provided to consumers by a person engaging in renewable energy facility solicitations shall:
(a) Be in at least 12-point font;
(b) Be given to the consumer in the same language as any oral representations or solicitations are made;
(c) Contain a provision identifying the name, address, telephone number, and email address of the individual making the renewable energy facility solicitation;
(d) Provide the following disclosures if providing any statement, whether oral or written, regarding the price of the renewable energy facility:
(i) The total price to be paid by the consumer, including any interest, installation fees, document preparation fees, service fees, or other fees;
(ii) Whether maintenance and repairs of the renewable energy facility are included in the total price;
(iii) The consumer's eligibility for or receipt of tax credits or other governmental or retail electric provider incentives, and if a tax credit is applicable, a disclosure of the price before and after the application of the tax credit. If a tax credit or rebate is indicated as part of an advertised price, the tax credit or rebate must be one that is available to the majority of the general buying public. If the tax credit or rebate is not available to the majority of the general buying public, it may not be figured in the advertised price. The amount of the tax credit or rebate may be listed as an additional incentive to those who qualify.
(e) Provide a description of any warranty, representation, or guarantee of energy production of the system;
(f) Provide the following disclosures in writing if giving any estimate of the savings a consumer is projected to realize from the facility, whether oral or written:
(i) The estimated projected savings over the life of the renewable energy facility agreement;
(ii) Any material assumptions used to calculate estimated projected savings and the source of those assumptions, including:
(A) If a change in the retail electric provider's annual electricity rate is assumed, the rate of the change and the retailer's basis for the assumption of the change;
(B) The consumer's eligibility for or receipt of tax credits or other governmental or retail electric provider incentives;
(C) Facility production data, including production degradation;
(D) The facility's eligibility for interconnection under any net metering or similar program;
(E) The consumer's electrical usage and the facility's designed offset of the electrical usage;
(F) Historical retail electric provider costs paid by the consumer, to include a period of not less than twelve months;
(G) Any escalation affecting a payment between the consumer and the retailer; and
(H) The costs associated with replacing equipment making up part of the facility or, if those costs are not assumed, a statement indicating that those costs are not assumed.
(g) Include two separate statements in bolded typeface at least two points larger than the surrounding typeface or 14-point font, whichever is larger, in close proximity to any written estimate of projected savings:
(i) "This is a quote. Your power company's rate for [insert renewable energy facility type] may be different from your current rate. Rates may go up or down and the money you may save, if any, may vary. Past data may not be a good gauge of future results. For more information about rates, contact your power company."; and
(ii) "Tax and credits or incentives including those provided by federal, state, or local governments may change or end. This can impact the amount of money you might save. Consult a tax professional to understand any tax liability or eligibility for any tax credits that may result from the purchase of your [insert renewable energy facility type]."
C. Agreements
(1) Before entering an agreement, a retailer shall provide to a consumer a written copy of the agreement as provided in this section. A person engaging in home solicitation sales shall present the agreement to a consumer aged 70 years or older no less than three calendar days before formal signing of the agreement by the consumer. If any substantive changes are made to the terms of the agreement, the consumer must be given a new agreement for review and the three-day pre-signing period, if applicable, restarts. For the purposes of the three-day waiting period, home solicitation sales do not include a transaction in which the consumer has initiated the contact and requested the retailer to visit the consumer's home.
(2) The administrator, in consultation with the Office of Regulatory Staff, consumer representatives, conservation representatives, renewable energy facility industry members and retail electric providers, shall develop standardized disclosures and provisions that must be included in agreements. Retailers shall include the standardized disclosures and provisions developed under this subsection in all agreements provided to consumers beginning three months after the effective date of this regulation.
(3) The agreement shall, at a minimum:
(a) Be in at least 12-point font;
(b) Be given to a consumer in the same language as the sales offer was presented;
(c) Be separately signed and dated by the consumer and the retailer;
(d) Contain:
(i) The name, address, telephone number, and any email address of the consumer;
(ii) The name, address, telephone number, and email address of the retailer;
(iii) The name, address, telephone number, and email address of the lead generation company and individual used by the retailer, if applicable;
(iv) The name, address, telephone number, and email address of:
(A) the person that is expected to install the facility that is the subject of the agreement;
(B) the person that is expected to maintain or otherwise service the facility that is the subject of the agreement; and
(C) the retailer's representative the consumer should contact to file a complaint about the renewable energy facility;
(v) The following statement in bolded typeface at least two points larger than the surrounding typeface or 14-point font, whichever is larger, immediately above a section for the consumer to sign and date: "This is a contract to [insert agreement type] [insert renewable energy facility type]. You may cancel this contract at any time prior to the tenth calendar day after the date you sign the contract. If you choose to cancel, you will not owe anything and will receive a refund of any money you paid. For consumers aged 70 and older, the contract cannot be signed for three days after you receive a copy. Once you sign the contract, the ten-day right to cancel begins. During the ten-day cancellation period, you should read the contract fully and seek help in understanding its terms. You may want to discuss this contract with your power company and homeowner's association prior to signing it. You may also wish to shop around and compare the terms with other companies or systems. See the attached notice of cancellation form for more details on this right.";
(vi) A notice of cancellation form notifying the consumer of the right to cancel as set forth in this regulation;
(vii) A statement indicating the nature of the transaction:
(A) If the renewable energy facility will be leased, the written statement must include a disclosure, in bold font, stating the following: "You are entering into a contract to lease a [insert renewable energy facility type]. You will lease (not own) the facility that is installed."
(B) If the renewable energy facility will be purchased, the written statement must include a disclosure, in bold font, stating the following: "You are entering into a contract to purchase a [insert renewable energy facility type]. You will own (not lease) the facility that is installed."
(viii) The total price to be paid by the consumer, including any interest, installation fees, document preparation fees, service fees, or other fees;
(ix) If financing the purchase of the renewable energy facility through the retailer or an affiliate thereof, the total amount financed, the total number of payments, the payment frequency, the amount of payment expressed in dollars, the payment due dates and the applicable annual percentage rate;
(x) If leasing the renewable energy facility through the retailer or an affiliate thereof, a payment schedule, including any amounts owed at contract signing, at the commencement of installation, at the completion of installation, and any final payments. If the renewable energy facility is being leased, the written statement must include the frequency and amount of each payment due under the lease and the total estimated lease payments over the term of the lease;
(xi) A description of any one-time or recurring fees, including, but not limited to, estimated system removal fees, maintenance fees, payments for replacement of system components likely to require replacement before the end of the useful life of the system as a whole, Internet connection fees, and automated clearinghouse fees. If delinquency charges may apply, the description must describe the circumstances triggering such delinquency charges;
(xii) A statement describing the facility and indicating the facility design assumptions. The description should include, but is not limited to, the make and model of the facility and related components, system size, estimated energy production, cost-per-watt, position of the facility and its components on the consumer's property, and estimated annual energy production degradation, including the overall percentage degradation over the term of the agreement or, at the retailer's option, over the estimated useful life of the system;
(xiii) The approximate start and completion dates for the installation of the renewable energy facility;
(xiv) If the retailer provides any oral or written estimate of the savings the consumer is projected to realize from the facility:
(A) The estimated projected savings over the life of the renewable energy facility agreement;
(B) If a consumer is participating in a net energy metering program pursuant to Title 58, Chapter 40, a disclosure stating the consumer may only be eligible for one-to-one net metering credits until May 21, 2029;
(C) If a consumer enters into a renewable energy facility agreement on or after June 1, 2021, and if applicable, a disclosure stating solar choice metering tariffs will be offered in lieu of one-to-one net metering credits;
(D) Any material assumptions used to calculate estimated projected savings and the source of those assumptions, including:
(1) If a change in the retail electric provider's annual electricity rate is assumed, the rate of the change and the renewable energy facility retailer's basis for the assumption of the rate change;
(2) The consumer's eligibility for or receipt of tax credits or other governmental or retail electric provider incentives, and if a tax credit is applicable, a disclosure of the price before and after the application of the tax credit. If a tax credit or rebate is indicated as part of a price, the tax credit or rebate must be one that is available to the majority of the general buying public. If the tax credit or rebate is not available to the majority of the general buying public, it may not be figured in the advertised price. The amount of the tax credit or rebate may be listed as an additional incentive to those who qualify;
(3) Renewable energy facility production data, including production degradation;
(4) The facility's eligibility for interconnection under any net metering or similar program;
(5) The consumer's electrical usage and the facility's designed offset of the electrical usage;
(6) Historical retail electric provider costs paid by the consumer, to include a period of not less than twelve months;
(7) Any escalation affecting a payment between the consumer and the retailer; and
(8) The costs associated with replacing equipment making up part of the facility or, if those costs are not assumed, a statement indicating that those costs are not assumed.
(E) Two separate statements in bolded typeface at least two points larger than the surrounding typeface or 14-point font, whichever is larger, in close proximity to any written estimate of projected savings:
(1) "This is a quote. Your power company's rate for [insert renewable energy facility type] may be different from your current rate. Rates may go up or down and the money you may save, if any, may vary. Past data may not be a good gauge of future results. For more information about rates, contact your power company."; and
(2) "Tax and credits or incentives including those provided by federal, state, or local governments may change or end. This can impact the amount of money you might save. Consult a tax professional to understand any tax liability or eligibility for any tax credits that may result from the purchase of your [insert renewable energy facility type]."
(xv) A description of any warranty, representation, or guarantee of energy production of the facility;
(xvi) A disclosure as to whether maintenance and repairs of the renewable energy facility are included in the total price;
(xvii) A statement of whether the retailer will make a fixture filing or other notice in the county real property records covering the facility and any fees or other costs associated with the filing that may be charged to the consumer;
(xviii) A disclosure identifying whether the agreement contains any restrictions on the consumer's ability to modify or transfer ownership of the facility, including whether any modification to transfer is subject to review or approval by a third party;
(xix) A disclosure notifying the consumer of the party responsible for obtaining interconnection approval from the retail electric provider;
(xx) A description of how the retailer will protect consumer data privacy and security; and
(xxi) A blank section that allows the retailer to provide additional relevant disclosures or explain disclosures made elsewhere in the disclosure form;
(xxii) A disclosure on the first page of the agreement where a consumer may indicate whether he or she qualifies for the three-day waiting period per subsection (C)(1).
(4) A copy of the fully and completely filled in and executed agreement must be provided to the consumer.
(5) Any finance agreement for a loan, lease, or retail installment sales contract offered by or through the retailer must be a separate addendum to the renewable energy facility agreement. The finance agreement must comply with all applicable state and federal laws.
D. Right to Cancel
(1) In addition to any right otherwise to revoke an offer, the consumer may cancel an agreement until midnight of the tenth calendar day after the day on which the consumer signs an agreement which complies with applicable laws. Information and notices that comply with S.C. Code Title 37, Chapter 2, Part 5 or 16 C.F.R. Part 429 shall be deemed compliant with this subsection.
(2) Notwithstanding the ten-day right to cancel set forth above, the enforceability of an agreement is contingent upon issuance of a building permit by the local government authority and approval by the consumer's homeowner's association, if applicable. If a local government authority denies the building permit or the consumer's homeowner's association does not approve the installation, a consumer may, within seven calendar days of receiving notice:
(a) Cancel the renewable energy facility agreement upon payment of reasonable cancellation costs or fees; or
(b) Agree to amend the terms of the agreement with the retailer and resubmit the proposal for approval by the local government authority and/or the consumer's homeowner's association. In this circumstance, all applicable requirements set forth in Sections B and C of this regulation apply, including the three-day pre-signing period for consumers aged 70 and older.
E. Due Diligence Requirements
(1) A retailer shall not enter into a contract with a third-party servicer the retailer knows or reasonably should know is unlikely to fulfill the material terms of the contract.
(2) A retailer shall be responsible for verifying a third-party servicer understands and is capable of complying with all material terms and provisions stated in the renewable energy facility agreement relating to the installation, maintenance, and/or servicing of a renewable energy facility.
(3) Construction or installation of a renewable energy facility shall not commence until a local government authority has issued the building permit.
F. Recordkeeping
(1) A person that engages in renewable energy facility solicitation or enters into agreements shall maintain at the person's usual place of business books, records, and documents pertaining to the business conducted.
(2) To enable the administrator to determine compliance with this and other related regulations and applicable laws, at a minimum the following records shall be maintained for not less than three years:
(a) Copies of all agreements entered into with residents of this State;
(b) Copies of all solicitation materials used in its business, regardless of medium, including business cards, telephone scripts, mailers, electronic mail, and radio, television, and Internet advertisements;
(c) Records of any contact or attempted contact with a consumer, including the name, date, method, and nature of contact, and any information provided to or received from the consumer; and
(d) The name, address, and, if applicable, unique identifier of any person who received, requested, or contracted for leads or referrals and any fees or consideration charged or received for such services.
G. Electronic Delivery of Documents
(1) The requirement to provide a written document under this section may be satisfied by the electronic delivery of the document if the intended recipient provides prior consent to receive the document electronically and affirmatively acknowledges its receipt.
(2) An electronic document satisfies the font and other formatting standards required for a written document if the format and the relative size of characters of the electronic document are reasonably similar to those required in the written document or if the information is otherwise displayed in a reasonably conspicuous manner.
(3) All electronic documents and signatures are subject to compliance with the Uniform Electronic Transactions Act, Section 26-6-10 et seq., and the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Chapter 96.
H. Remedies
(1) The administrator, upon finding a violation of Title 37 or this regulation, may issue an administrative order requiring the person to cease and desist, return property or money received in violation of Title 37 or this regulation, and pay penalties of up to five thousand dollars for each violation. The Department of Consumer Affairs may bring a civil action seeking similar relief, including to restrain any person from violating Title 37 or this regulation and for other appropriate relief including but not limited to: preventing a person from using or employing prohibited practices, reforming contracts to conform to Title 37 or this regulation, and rescinding contracts into which a person has induced a consumer to enter by conduct violating Title 37 or this regulation even though a consumer is not a party to the action. Monies received in enforcement of this regulation shall be retained by the Department of Consumer Affairs.
(2) The remedial provisions of this regulation are cumulative of and in addition to any other action at law and any other action taken by the Department of Consumer Affairs pursuant to Title 37.
HISTORY: Added by SCSR 45-5 Doc. No. 4994, eff May 28, 2021.
28-80. Motor Club Certificate of Authority.
(Statutory Authority: 1976 Code Sections 39-61-10 et seq., Particularly Section 39-61-160)
A. DEFINITIONS
Definitions shall be those contained in the South Carolina Motor Club Services Act, S.C. Code Ann. S. 39-61-10 et seq. (1976 as amended).
B. CERTIFICATES OF AUTHORITY
(1) All organizations wishing to provide motor club services in this State must first obtain a Certificate of Authority from the Administrator. Initial applications for the Certificates shall be made on a form prescribed by the Administrator.
(2) Certificates of Authority expire on October 31. The renewal period will be between September 1 and October 31 of each year. Renewal applications shall be made on a form prescribed by the Administrator and must be accompanied by a copy of the club's most recent financial statement certified by two principal officers of the club, or in the case of partnerships or sole proprietorships, by a partner or the proprietor.
(3) Issuance of a Certificate of Authority does not indicate approval or acceptance of the terms of any contract, agreement or other document submitted in support of the application. No organization providing motor club services shall in any way represent that it services, payment schedules or terms of membership are approved by the State or any state agency.
C. CLUB REPRESENTATIVES
(1) Club representatives must be registered with the Administrator within 30 days of the date on which they are designated as a club representative. Each representative must submit an application for registration on a form prescribed by the Administrator.
(2) Clubs shall appoint representatives and pay a non-refundable application fee for each representative appointed.
(3) A club representative's Certificate of Registration expires on April 30. The renewal period will be between March 1 and April 30 of each year. Renewal applications shall be made on forms prescribed by the Administrator.
(4) When a club representative's appointment is terminated, the club must notify the Administrator within 30 days of termination on a form prescribed by the Administrator.
HISTORY: Added by State Register Volume 9, Issue No. 6, eff June 28, 1985. Amended by State Register Volume 14, Issue No. 4, eff April 27, 1990; State Register Volume 41, Issue No. 5, Doc. No. 4708, eff May 26, 2017.
28-90. Discount Medical Plan Certificate of Registration.
(Statutory Authority: 1976 Code Sections 37-17-10 et seq., Particularly Section 37-17-120)
A. DEFINITIONS
Definitions shall be those contained in S.C. Code Ann. S. 37-1-101 et seq., including 37-17-10 et seq. (1976 as amended) and the following:
(1) "Card" means the instrument issued by a discount medical plan organization for a customer or user to access benefits of the discount medical plan.
B. REGISTRATION OF A DISCOUNT MEDICAL PLAN ORGANIZATION
All Discount Medical Plan Organizations initial and renewal applications shall contain all trade names, brand names, and any other names used to advertise the product, or otherwise conduct business with South Carolina consumers.
C. REPRESENTATIVE OR MARKETER STATUS
Discount Medical Plan Organizations may notify the Department on a continual basis of any changes in representatives or marketers, including any additions or inactivations, to ensure consumers and the Department have accurate information regarding the status of representatives and marketers. The Discount Medical Plan Organization's list of marketers and representatives must be updated at each renewal or subsequent registration to reflect any changes.
D. MEMBERSHIP CANCELLATION AND REIMBURSEMENT
Discount Medical Plan Organizations shall provide cancellation and reimbursement terms in writing to the applicant at the time of application and to the customer together with the discount medical plan card. Such terms shall include that all reimbursements or refunds shall be issued to the applicant or customer no later than thirty days from the date of cancellation.
HISTORY: Added by State Register Volume 41, Issue No. 5, Doc. No. 4707, eff May 26, 2017.
28-100. Physical Fitness Services Center-Certificates of Authority and Financial Responsibility.
(Statutory Authority: 1976 Code Sections 44-79-10, 44-79-80, 44-79-90, 44-79-100, and 44-79-120)
A. Definitions
Definitions shall be those contained in the South Carolina Physical Fitness Services Act ("the Act"), S.C. Code Ann. Section 44-79-20 et seq. and the following:
Cash price -The price at which goods or services are offered for sale by the seller to cash buyers in the ordinary course of business, and may include applicable sales tax and the cash price of accessories or related services. The cash price stated by the seller to the buyer in the physical fitness agreement is presumed to be the cash price. The term does not include any finance charge.
Time price differential -The difference between the price paid in installments (time-price) and the cash price. Discounts for the purpose of inducing payment by a means other than the use of credit will be considered finance charge. For example, a physical fitness services provider offers contracts of $1,000.00 each. If the buyer pays cash, the price is $900.00, but if the buyer pays for the contract with the physical fitness provider in installments over time, the price is $1,000.00. The $100.00 difference is a finance charge for those who buy the agreement on credit. This definition does not apply to the use of a credit card.
B. Certificate of Authority and Financial Responsibility
(1) All organizations wishing to provide physical fitness services in this State must first obtain a Certificate of Authority from the Administrator of the Department of Consumer Affairs. Initial applications for the Certificate will be made on the form prescribed by the Administrator and accompanied by a fee of $50 per outlet.
(2) Certificates of Authority expire on December 31. Renewal applications will be accepted November 1 through December 31 of each year. Renewal applications shall be made on a form prescribed by the Administrator and accompanied by a renewal fee of $50 per outlet. If a complete renewal application is not postmarked on or before December 31, the center shall be required to submit an initial application per item (1) above.
(3) Issuance of a Certificate of Authority does not indicate approval or acceptance of the terms of any contract, agreement or other document submitted in support of the application. No organization providing physical fitness services shall in any way represent that its services, payment schedules or terms of membership are approved by the State or any state agency.
(4)(a) Physical fitness centers presenting a surety bond or other evidence of financial responsibility in accordance with Section 44-79-80 of the Act must do so in accordance with the following value schedule:
Members
Amount
1,500 or more
$50,000
1,000 to 1,499
$40,000
500 to 999
$30,000
100 to 499
$20,000
1 to 99
$10,000
(b) Any variation from the value schedule must be approved by the Administrator or a designee.
(5) Within 45 days of a membership or outlet increase that puts the physical fitness center(s) into a new financial responsibility category, the physical fitness center(s) must present financial responsibility in the new amount to the Administrator. Failure to provide amended evidence of financial responsibility as required by this subsection will be regarded as a violation of the Act.
(6) Each physical fitness center must notify the Administrator upon substantial change of its financial status within ten business days after the occurrence of any of the following events:
(a) the institution of a revocation, suspension, or other proceeding against the center by a governmental authority which is related to the center's physical fitness services in any state;
(b) the institution of a civil action against the center. The center shall advise the Administrator within thirty days of the action being dismissed, settled or otherwise resolved;
(c) the filing of bankruptcy, reorganization, or receivership proceedings by or against the center;
(d) the center's opening or closing of a new physical fitness center or outlet within the State; or
(e) felony indictments or convictions involving breach of trust, moral turpitude, fraud, or dishonest dealing.
C. Recordkeeping
(1) All books, membership contracts or agreements and records, and all other sources of information with regard to the business of providing physical fitness services must at all reasonable times be available for inspection by the Department of Consumer Affairs for the purpose of assuring that the business is being transacted in accordance with the law and applicable regulations. Failure to provide or allow access to all books, membership contracts or agreements and records and all other sources of information with regard to the business of providing physical fitness services will be regarded as a violation of the Act.
(2) All centers must maintain a copy of all agreements for physical fitness services for as long as such agreements are in effect and for a period of one (1) year thereafter. Agreements for each calendar year must be filed in alphabetical order by the consumer's last name. If the physical fitness provider uses numerically sequenced agreements, the agreements may be filed in numerical sequence instead of alphabetical order.
(3) Records and account systems maintained in whole or in part by electronic data processing may be used in lieu of the books, files and records required by these regulations if they contain equivalent information and such information is accessible to the Department.
(4) On or before June 30 each year, physical fitness centers must submit to the Administrator an annual report. The report shall be made under oath and shall be on a form prescribed by the Administrator.
D. Agreements
(1) In the event an agreement includes a time-price differential, the cash price must be listed on the agreement separate from required Truth-in-Lending disclosures. A notice in substantially the following form complies with this regulation:
You have agreed to: (check one)
( ) pay (name of physical fitness provider) the membership fee of $______ now, which is the CASH PRICE, or
( ) pay to (name of physical fitness provider) the CASH PRICE in installments plus a FINANCE CHARGE in accordance with the schedule in this agreement.
(2) A contract for physical fitness services may include an automatic renewal option. A customer must select and initial the automatic renewal option at the time the initial contract is executed. Automatic renewal will be on a month-to-month basis. When the initial contract is near expiration, the center must send a written reminder to the customer of the automatic renewal. Prices under an automatic renewal may not change unless written notice is provided to the customer between 30 and 60 days prior to the change in price. Automatic renewal is an "opt-in" option. If the consumer fails to initial the opt-in provision, the contract shall not automatically renew.
E. Advertisements
(1) All advertisements by a physical fitness provider must contain the name and an office address of the entity, which must conform to a name and address on record with the Department of Consumer Affairs.
(2) All restrictions on use of special offers for memberships must clearly and conspicuously be disclosed in the advertisement. These restrictions include but are not limited to the time and day usage as well as equipment or area restrictions.
HISTORY: Added by State Register Volume 14, Issue No. 4, eff April 27, 1990. Amended by State Register Volume 18, Issue No. 2, eff February 25, 1994; State Register Volume 36, Issue No. 5, eff May 25, 2012.
28-200. Pawnbroker Certificate of Authority.
(Statutory Authority: 1976 Code Section Section 40-39-10 et seq.)
A. DEFINITIONS
Definitions shall be those contained in the S.C. Pawnbroker Act, S.C. Code Ann. Section 40-39-10 et seq. (1976 as amended).
B. CERTIFICATES OF AUTHORITY
(1) All organizations wish to provide pawnbroker services in this State must first obtain a Certificate of Authority from the Administrator of the Department of Consumer Affairs. Initial applications for the Certificate must be made on the form prescribed by the Administrator.
(2) Certificates of Authority expire each June 30 but may be renewed upon payment of a renewal fee of $275.00 per location and submission of requisite financial responsibility declaration on or before June 30. The renewal period will be between May 1 and June 30 of each year. Renewal applications for the Certificate must be made on the form prescribed by the Administrator.
(3) Issuance of a Certificate of Authority does not indicate approval or acceptance of the terms of any contract, agreement or other document submitted in support of the application. No organization providing pawnbroker services will in any way represent that its services, payment schedules or terms are approved by the State or any state agency. Notwithstanding this, all pawnbrokers who are properly licensed and in good standing may indicate this fact to others. Each applicant must file such proof as is acceptable to the Administrator of his net worth which must be a minimum of $35,000.00 until such time as liability insurance covering the pawn transaction inventory of the pawn location is secured by the pawnbroker. When the liability insurance is available, the amount of the liability insurance required must be at least enough to cover the pawn transaction inventory of each location operated by the pawnbroker. The liability insurance is to be comprehensive in nature.
(4) The Certificate of Authority must be made on a form prescribed by the administrator and must be posted in a conspicuous place at the business location. Certificates of Authority are not transferable or assignable.
(5) On application of any person and payment of the cost thereof, the Administrator will furnish a certified copy of any pawnbroker Certificate of Authority.
(6) Relocation of Pawnshops
(a) Notice to Department-The pawnbroker must forward written notice of the intended relocation to the Department not less than 30 days prior to the anticipated relocation date. The notice must include at a minimum the present name and address of the licensed pawnshop, the anticipated date of relocation and a sample copy of the notice to be mailed to pledgors on open pawn loans. A $25.00 change of location fee must accompany these materials.
(b) Notice to Customers-Written notices must be mailed to all pledgors on open pawn loans at least 15 days prior to the date of relocation. Notices at a minimum must identify the pawnshop, identify both the old and new locations and the telephone number of the new location and date the location is effective. The Administrator or his designee may approve notification by signs in lieu of notification by mail if in his opinion no pledgors will be adversely affected.
C. RECORD KEEPING
(1)(a) Prescribed Form and Content-Each pawnbroker must file with the Department a sample of the pawn ticket to be used. In a manual records system, the pawn ticket must be at least a two part form on which entries to the top part are legible and simultaneously reproduced on the remaining parts. The ticket must contain all the information required in the South Carolina Pawnbroker Act, satisfy the requirements of the Truth-in-Lending Act and Regulation Z, and contain any additional information which the Department may prescribe by regulation.
(b) Distribution of Copies-The original must be maintained by the pawnbroker and made available to law enforcement and/or the Department of Consumer Affairs. A legible copy must also be given to the pledgor when a loan is made. A legible copy must be maintained in a file in numerical sequence. Voided tickets must be retained and filed with the numerical sequence file.
(c) Numerical Index of Redemptions-A legible copy of each pawn ticket returned to the pawnbroker for redemption must be filed in numerical sequence. In lieu of the copy of the ticket, other written evidence of redemption may be kept in numerical sequence. Separate lost ticket statement forms must be filed with the pawn tickets according to the number of the related ticket. If the pawnbroker or pledgor does not require a lost ticket statement, other written evidence may be used as a substitute. This file may be maintained separately or may be merged with the numerical index of loans.
(2) Records of Payment and Forfeiture-A written record of any payment on a loan must be made immediately upon receipt. Payments received must be posted on the day received to the back of the pawnbroker's retained copy of the pawn ticket. The payment record must show at least the following information:
(a) The date (month, day, year) of payment
(b) The actual amount received and itemized as applied to:
(i) principal (amount financed)
(ii) pawn finance charge
(iii) charge for lost ticket statement In lieu of (1)(c) and (2) above, the pawnbroker may maintain a ledger book containing the same information.
(3) Records Maintained on Electronic Data Processing (EDP) Systems
(a) Filing of Description of Systems and Programs-Records and account systems maintained in whole or in part by electronic data processing may be used in lieu of the books, files and records required by these regulations if they contain equivalent information. Each system must receive prior written approval from the Department. Pawnbrokers seeking such approval must file a complete and detailed written description of the system proposed to be utilized, including user instructions and an enumeration of all features that do not meet the requirements of the regulations and a full explanation as to how the equivalent information is maintained with the proposed system. User instructions must provide a clear and concise section of procedures which must be followed to operate the system as contemplated by the Department in approving the system.
(b) Filing of Amendments-All changes or updates to a pawnbroker's electronic data processing system must be filed with the Department within 30 days after use by a pawnbroker.
(c) Withdrawal of Approval by the Department-If based on examinations and practical experience with an EDP system and its records the Department finds that such system and records do not function and provide information as anticipated at the time of approval and are unsatisfactory, approval may be withdrawn by the Department. A pawnbroker will have 60 days to make modifications in accordance with directives of the Department concerning a satisfactory record system.
(4) Identification of Source of Pledged Goods in Pawnshop-All pledged goods must be tagged or otherwise marked to identify the source of the goods and/or the transaction through which the goods were obtained. Once ownership of the goods has lawfully passed to the pawnbroker, the goods no longer need to be so identified.
(5) Every pawnbroker must preserve and make available in this State such books and records relating to each of its pawn transactions for two (2) years from the date of the transaction, or one (1) year from the date of the final entry made thereon, which is later.
(6) Any person properly identifying himself as the original customer in the pawn transaction or as the assignee thereof; and presenting a pawn transaction memorandum (pawn ticket) to the pawnbroker will be presumed to be entitled to redeem the pledged goods described therein. The pawnbroker and customer may agree that the pawn transaction memorandum (pawn ticket) cannot be assigned by the customer. A statement to this effect must be conspicuous on the pawn transaction memorandum (pawn ticket).
Assignment of pawn tickets is achieved, if at all, by including a statement, written, printed or stamped, in close proximity to the pledgor's signature on the pawn ticket. The statement must be signed by the original pledgor. A statement in substantially the following form complies with this requirement.
Please give article(s) pawned by me to bearer of this ticket. Signed ____.
(7) If the pawn transaction memorandum (pawn ticket) is lost, destroyed or stolen, the customer may so notify the pawnbroker in writing, and receipt of the notice will invalidate such pawn transaction memorandum, if the pledged goods have not previously been redeemed. Before delivering the pledged goods or issuing a new pawn transaction memorandum (pawn ticket), the pawnbroker may require the customer to make affidavit of the loss, destruction or theft of the memorandum.
(8) Any pawnbroker must make available records of any buy transaction for inspection by the court and its officials, law enforcement officers, the Administrator of the Department of Consumer Affairs, and their designees; provided, merchandise bought on invoice from a manufacturer or wholesaler with an established place of business is exempt from this reporting requirement. However, such invoice must be shown upon request to the court and its officials, law enforcement officers, the Administrator of the Department of Consumer Affairs, and their designees.
D. AGREEMENTS AND PRACTICES
(1) A pawnbroker must not accept a pledge or purchase property from a person under the age of eighteen (18) years or other unemancipated minor.
(2) Items purchased by a pawnbroker, except on invoice from a manufacturer or wholesaler with an established place of business, must be held for seven (7) days before being disposed of, sold, altered or moved from the location at which it was purchased in this State.
(3) A pawnbroker must upon request give a payor a written receipt for any payment on a loan.
(4) A pawnbroker must not use or permit any other person to use pledged goods.
(5) A pawnbroker must segregate pledged goods and purchased items that are being held during the seven day waiting period from public areas of the pawn shop, placing them in a back room or warehouse if one is available. If such an item is left in the public area because of size, value or other characteristics making it difficult or inappropriate to store outside the public area, the item will be clearly tagged as required by C. (4) above and identified as pledged goods, not for sale.
(6) A pawnbroker must segregate personal goods which are not for sale from public areas of the pawn shop, placing them in a back room or warehouse if one is available. If such an item is left in the public area because of size, value or other characteristics making it difficult or inappropriate to store outside the public area the item will be clearly tagged as required by C. (4) above and identified as personal goods, not for sale. These goods do not include personal items used to carry on the business of the pawnbroker.
HISTORY: Added by State Register Volume 14, Issue No. 4, eff April 27, 1990. Amended by State Register Volume 18, Issue No. 4, eff April 22, 1994.
28-400. Licensing of Mortgage Brokers.
(Statutory Authority: 1976 Code Section 40-58-100 (as amended), 12 USC 5101 et seq., and 12 CFR Part 1008)
A. Definitions - Definitions shall be those contained in the Licensing of Mortgage Brokers Act, S.C. Code Ann. Section 40-58-10 et seq.; Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 12 USC 5101 et seq.; S.A.F.E. Mortgage Licensing Act, 12 CFR Part 1008 and the following:
(1) Act - means the Licensing of Mortgage Brokers Act, S.C. Code Ann. Section 40-58-10 et seq.
(2) Co-brokering - means any sharing, regardless of percentage, of mortgage broker services or fees by two or more licensed mortgage brokers on behalf of a borrower.
(3) Day - means all calendar days including Saturdays, Sundays and legal public holidays.
(4) Employee for purposes of compliance with the federal income tax laws - means a natural person whose manner and means of performance of work are subject to the right of control of, or are controlled by, a person, and whose compensation for Federal income tax purposes is reported, or required to be reported, on a W-2 form issued by the controlling person. (See IRS Publication 1779 and Form SS-8).
(5) Loan correspondent - means a person engaged in the business of making mortgage loans as a third party originator and who does not engage in all three of the following activities with respect to each mortgage loan: underwrite the mortgage loan by their employees, approve the mortgage loan, and fund the mortgage loan utilizing an unrestricted warehouse or credit line. A loan correspondent is not a mortgage lender for purposes of compliance with S.C. Code Section 37-22-110 et seq.
(6) Loss mitigation - means the practice of offering to provide or providing, in a for profit context, a service, plan, or program that is represented expressly or by implication to assist the borrower to prevent, delay, or otherwise avoid foreclosure, including, but not limited to, loan modifications, short sales, and deeds in lieu of foreclosure. This definition does not include persons acting exclusively for or as a bona fide nonprofit organization as determined by the Department or mortgage lenders/servicers licensed pursuant to S.C. Code Section 37-22-110 et seq., when acting for mortgage loans they own or service.
B. Licensing of Independent Contractor Processors or Underwriters
(1) Independent contractor processors or underwriters, including those currently licensed as mortgage lenders/servicers pursuant to S.C. Code Section 37-22-110 et seq., shall comply with the Act, except for the following provisions:
(a) Section 40-58-65(A) maintaining a mortgage log;
(b) Section 40-58-65(B) maintaining an in-state office;
(c) Section 40-58-75 completing a mortgage broker fee agreement;
(d) Section 40-58-78 additional disclosures on mortgage broker fee agreement;
(e) Sections 40-58-120(A), (B) and (C) annual report for loans originated, however an annual report for gross revenue is required.
(2) Independent Contractor Processors or Underwriters shall not originate mortgage loans.
C. All South Carolina mortgage loans are subject to the provisions of all South Carolina and federal law related to mortgage loans, including, but not limited to, the Real Estate Settlement Procedures Act of 1974 (RESPA) 12 USC Section 2601 et seq.
D. Reports
(1) Mortgage log required pursuant to Section 40-58-65(A) shall:
(a) be completed electronically as required by the Department. The licensee is responsible for all costs associated with the electronic filing, and
(b) include all mortgage loans or applications where a credit report is requested, regardless of whether a mortgage loan is originated or modified.
(2) Annual report required by Section 40-58-120 shall be:
(a) completed as a mortgage call report (MCR) (See Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 12 USC 5101 et seq.; Safe Mortgage Licensing Act, 24 CFR Part 3400 and Staff Commentary), and
(b) submitted electronically on a quarterly basis as required by the Nationwide Mortgage Licensing System and Registry (NMLS&R) by the mortgage broker for all locations and loan originators.
(3) The Department at its discretion may require or accept an Expanded Mortgage Call Report filed through the Nationwide Mortgage Licensing System & Registry (NMLS&R) or similar filing in lieu of the annual report required by Section 40-58-120.
E. Licensing for loss mitigation activities. Persons providing or offering to provide loss mitigation shall comply with the Act unless the Department has determined the person is exempt pursuant to Section 40-58-20(16) and Sections (A)(6) and (F) herein.
F. Bona fide Nonprofit Organizations (12 CFR 1008.103(e)(7)).
(1) The Department may consider an organization a bona fide nonprofit organization based on but not limited to the following minimum criteria:
(a) Has the status of a tax-exempt organization under section 501(c)(3) of the Internal Revenue Code of 1986;
(b) Promotes affordable housing or provides homeownership education, or similar services;
(c) Conducts its activities in a manner that serves public or charitable purposes, rather than commercial purposes;
(d) Receives funding and revenue and charges fees in a manner that does not incentivize it or its employees to act other than in the best interests of its clients;
(e) Compensates its employees in a manner that does not incentivize employees to act other than in the best interests of its clients; and
(f) Provides or identifies for the borrower mortgage loans with terms favorable to the borrower and comparable to mortgage loans and housing assistance provided under government housing assistance programs.
(2) Bona fide nonprofit organizations must file for an initial determination and annually for renewal of this determination by the Department. Annual renewals must be filed by December 31st using forms and procedures as required by the Department.
(3) Bona fide nonprofit organizations may use the Nationwide Mortgage Licensing System for initial and renewal filings; however, they will be required to pay any associated processing fees.
HISTORY: Added by State Register Volume 15, Issue No. 5, eff May 24, 1991. Amended by State Register Volume 18, Issue No. 3, eff March 25, 1994; State Register Volume 39, Issue No. 6, Doc. No. 4549, eff June 26, 2015.
28-500. "Lemon Law" Records.
(Statutory Authority: 1976 Code Sections 56-28-20 and 56-28-90)
A. DEFINITIONS
Definitions shall be those contained in the Enforcement of Motor Vehicle Express Warranty Act, S.C. Code Ann. 56-28-10 et seq. (1976 as amended)
B. RECORD KEEPING
(1) Between January 1 and January 31 of each year each manufacturer of new motor vehicles sold in this State shall provide a report, on a form provided by the Administrator, containing a written summary of all vehicles repurchased or replaced under Chapter 28 of Title 56 of the South Carolina Code of Laws. These reports shall contain at least the name and address of the customer, the make, model, color or colors, vehicle identification number, and sales price of the motor vehicle, as well as a short description of the nonconformity or nonconformities complained of by the customer.
(2) Upon request of the administrator, the manufacturer shall make available for the inspection of the administrator or his designee, any paperwork, reports or other information regarding automobiles repaired or replaced or otherwise subject to the provisions of Chapter 28 of Title 56 of the South Carolina Code of Laws. Such information shall include, without limitation:
(a) repair orders or repair date logs;
(b) parts receipts or invoices;
(c) retail installment contracts;
(d) written or electronic documentation of diagnostic testing;
(e) reports of customers or regional representatives;
(f) parts themselves that have been retained;
(3) Upon a manufacturer's failure to provide the reports required by B(1) above, or upon a manufacturer's failure to respond to or upon an incomplete or evasive response to the administrator's reasonable request pursuant to B(2) above, the administrator may fine the manufacturer a penalty of up to one thousand (1,000.00) dollars for each failure; after notice and a hearing conducted pursuant to the Administrative Procedures Act (Act 176 of 1977 as amended.) After notice to the manufacturer, each day in which the manufacturer is shown to have failed to comply will be deemed a separate violation.
HISTORY: Added by State Register Volume 15, Issue No. 5, eff May 24, 1991. Amended by State Register Volume 37, Issue No. 5, eff May 24, 2013.
28-600. Licensing Standards for Continuing Care Retirement Communities.
(Statutory Authority: 1976 Code Section 37-11-80)
A. License Applications.
(1) In addition to the requirements in Section 37-11-30(B), an application for a CCRC license must contain at least the following information:
(a) a feasibility study prepared in accordance with generally accepted accounting principles;
(b) a statement of all fees required of residents, including, but not limited to, a statement of the entrance fee charged, the monthly service charges, the proposed application of the proceeds of the entrance fee by the operator, and the plan by which the amount of the entrance fee is determined if the entrance fee is not the same in all cases;
(c) a resident's guide, policy manual, or other material of similar application, whether current or proposed;
(d) a copy of an agreement with the providers for the provision of medical care, health care, or other health-related services;
(e) a list of all necessary permits, licenses and certificates received or applied for, and their status at the time the application is submitted to the department;
(f) a copy of the procedure for reviewing and handling residents' complaints; and
(g) such other reasonable data as the department may require with respect to the operator or the facility.
(2) The application for a license shall be accompanied by a license fee of Two Thousand Dollars.
B. All licenses; form and content; renewal licenses.
(1) Each license issued to a licensee must state the name and address of the facility and must state fully the name of the licensee, date of issuance, and date of expiration. The license must be posted prominently in the facility.
(2) All licenses expire on August thirty-first of each year.
(3) All licenses must be renewed by filing a renewal application with the department at least thirty days before the expiration of the license. A complete renewal application shall contain the information the department requires in order to determine the existence and effect of any material change from the information contained in the applicant's original application, annual reports, or previous renewal application. Each renewal application must be accompanied by a nonrefundable license fee of Two Thousand Dollars.
C. Occurrences triggering updates.
Regardless of the information filed with the annual license renewal application, each operator shall notify the department and file pertinent documents within ten business days after the occurrence of any of the following events:
(1) Any investigation, litigation, orders, judgments, or decrees which affect the facility, operator and/or owner, including, but not limited to, a bankruptcy, foreclosure, or receivership proceeding;
(2) Any proceeding for denial, suspension or revocation of any license or permit needed to operate the facility;
(3) Any proposed changes in the continuing care contract;
(4) Any proposed changes to the disclosure statement;
(5) Any proposed expansion or closure of the facility, including, but not limited to, the closing of a wing or building of the facility;
(6) Any proposed transfer of ownership of the facility;
(7) Any proposed change in the control of the operator;
(8) Any change of the administrator of the facility;
(9) Any change in the facility's contract(s) with the provider of medical or other health-related services.
D. Multiple Facilities.
(1) If the operator provides or intends to provide continuing care at more than one facility, the operator must obtain an appropriate separate license for each such facility. Funds collected by one facility should not be expended for the benefit of any other facility. Where there are multi-facility operations, entrance fees collected for service at a particular facility shall be managed appropriately to safeguard the financial interest of the resident who paid the fee for facilities and services at that particular community.
(2) An entity which operates several facilities on different locations under one corporate structure where all monies from and disbursements to such locations are channeled through the corporate headquarters and where only one central system of accounting is maintained for all the locations may in its license application submit only one financial statement on behalf of all locations it operates. Disbursements to individual locations will not be deemed cross-collateralization, provided, however, that continuance of such practice will not adversely affect financial soundness of any location operated by the corporation.
E. Advertising; general standards.
All advertising which is used by or on behalf of the operator to promote a continuing care retirement community shall be accurate, truthful and not misleading so as to fully inform the public and foster their understanding and trust. In preparing any advertising material, the operator is subject to state unfair and deceptive trade practices laws.
F. Continuing care contracts.
(1) Continuing care contracts must be printed in one hundred percent black ink with the exception of the operator's name and business logo. The contracts must be printed on stock that is at least 11 inches high and 7 1/4 inches wide. All print in continuing care contracts shall be in print no smaller than ten point type.
(2) Continuing care contracts shall be written in language customarily used and understood by people in the conduct of their personal affairs.
(3) The continuing care contract must contain:
(a) a right to cancel provision in the following language which must be bold face type:
RESIDENT'S RIGHT TO CANCEL
You may cancel this contract by sending notice of your wish to cancel to the continuing care community (community) before midnight of the thirtieth (30th) day after you sign a contract. This notice must be sent in writing to the following: (Insert business name and address). If you cancel within thirty days, all money or property paid or transferred by you must be refunded fully, less those reasonable costs incurred by the community. If the living unit was available for occupancy, the community may charge a daily rate based on the usual monthly charge for that unit beginning on the eighth (8th) day after signing and ending on the day notice of cancellation is given to the community. Within thirty days of receipt of the cancellation notice, the community must return any payments made and return any note or evidence of indebtedness.
(b) a statement in bold face type of what portion, if any, of the entrance fee is refundable or non-refundable.
(c) in capital letters, in bold face type no smaller than the largest type used in the contract the following statement:
A license issued by the South Carolina Department of Consumer Affairs is not an endorsement or guarantee of this facility by the State of South Carolina. The South Carolina Department of Consumer Affairs urges you to consult with an attorney and a suitable financial advisor before signing any documents.
(4) No act, agreement or statement of a resident or an individual purchasing care for a resident under any agreement to furnish care to the resident shall constitute a valid waiver of any provision of the Act and this regulation intended for the benefit or protection of the resident or the individual purchasing care for the resident.
G. Disclosure Statement.
(1) The disclosure statement must contain at least the following information:
(a) Items specified in Section 37-11-30(B)(1), (4), (5), (6), (7), (8), (10), (11), (12), and (13);
(b) The name and position title of the individual to whom inquiries should be directed regarding facilities, services, or other information;
(c) A statement that the facility will make available upon request the names and business addresses of the officers, directors, trustees, managing or general partners, any person having a five percent or greater equity or beneficial interest in the continuing care retirement community, and any person who will be managing the community on a day-to-day basis;
(d) The services provided or proposed to be provided pursuant to contracts for continuing care at the facility, including the extent to which medical care is furnished; a clear statement of which services are included for monthly basic fees for continuing care and which services are made available at or by the facility at extra charge;
(e) If the facility is already in operation, a statement as to which services may be available subject to a waiting list or priority rights of other residents, as well as the best estimate of the average waiting period for such services.
(f) The current and estimated number of the residents of the facility to be provided services by the operator pursuant to the contract for continuing care;
(g) A copy of the complaint system and procedures;
(h) A statement as to whether or not the facility, or any component thereof, accepts Medicare and/or Medicaid. In case the facility does not accept Medicare and/or Medicaid, the following statement will be inserted in bold face type in the disclosure statement:
This facility does not accept Medicare and/or Medicaid. In case a resident exhausts his available financial resources prior to or following admission into our nursing home or assisted living accommodations, the resident might have no choice but to apply for admission to a facility that accepts these payments.
A facility which has a discretionary fund to assist residents who deplete their financial resources, the following language will also be inserted in bold face type in the disclosure statement:
The discretionary funds available to the management may be used to supplement the entire cost of care or a part of it. However, the application of these funds is entirely within the discretion of the management and the presence of these funds is no guarantee for a continuing stay in this facility following the depletion of your own financial resources.
(i) A conspicuous statement that in addition to the information contained in the disclosure statement, a prospective or current resident or prospective or current resident's legal representative with a general power of attorney has a right to ask for and receive the information regarding reserve funding of the facility, if any, experience of persons who will make investment decisions, certified financial statements of the operator including balance sheets and income statements, a current actuarial study, if available, a feasibility study for a facility that has not begun operations, and the names and business addresses of persons having a five percent or greater interest in the facility.
H. Expansions of existing facilities.
(1) An existing operator which intends to expand a continuing care retirement community by more than twelve units or twenty-five percent of individual living units, whichever is more, shall file with the department a letter of intent disclosing the plan of the expansion. The letter shall disclose the following:
(a) The purpose and scope of the expansion;
(b) Estimated capital cost;
(c) Ability to finance;
(d) Financial impact on current residents;
(e) Impact on current community structure to provide resident services;
(f) Present occupancy rate and marketability of the expansion;
(g) If the facility has had a feasibility study made, then its operator shall submit, in addition to the letter of intent, a supplement to that feasibility study. If the facility did not have a feasibility study made in the past, then the operator shall submit, in addition to the letter of intent, a substitute study.
(2) In order to prevent avoidance of subsection (1) above, the exemption may not exceed a twenty-five percent increase in individual living units cumulative over a two year period.
I. Transfer of ownership of a facility.
(1) An operator intending to undertake a transfer of ownership of a facility shall notify the department at least thirty days in advance of the proposed settlement date.
(2) A notice of intention of transfer of ownership of a facility may be in the form of a letter, addressed to the department, and shall contain the following information:
(a) Name and address of the licensed operator from whom ownership will be transferred;
(b) Name and address of the person intending to acquire the ownership interest;
(c) Name and address of the facility whose ownership is being transferred;
(d) Proposed settlement date.
(3) No transfer of ownership of a facility shall be consummated until the person to whom ownership is being transferred obtains a license from the department.
(4) When a person to whom ownership is being transferred files an application for a license, in addition to the selected information as will be specified on a form available from the department, the person shall file a statement containing the following information:
(a) The terms and conditions of the transfer of ownership;
(b) The source of funds to be used to finance transfer of ownership and, if the funds are to be borrowed, the name of a lender and a summary of the terms and conditions of the loan transactions;
(c) The plans, arrangements, understandings and intentions of the transferee for the future business and management of the facility, including plans as to the sale of assets or material change in business, corporate structure or management.
(5) A license will not be issued under this Section unless the transferee has agreed in writing to assume the contractual obligations imposed on the current operator by its existing continuing care agreements. Any person aggrieved by the determination of the department shall be entitled to a contested case hearing before the Administrative Law Court in accordance with the provisions of the Administrative Procedures Act.
J. Entrance fees; escrow provisions.
(1) An escrow agreement entered into between a trust institution and an operator shall state that its purpose is to protect the resident or the prospective resident; and, upon presentation of evidence of compliance with applicable portions of the Act and this regulation, or upon order of a court of competent jurisdiction, the escrow agent shall release and pay over the funds, or portions thereof, together with any interest accrued thereon or earned from investment of the funds, to the operator or resident as directed. At the time of entering into an escrow agreement, an operator shall inform an escrow agent of the Act and this regulation and the respective requirements of each.
(2) All funds deposited in an escrow account shall not be subject to any liens or charges by the escrow agent or judgments, garnishments, or creditor's claims against the operator or facility.
(3) When funds are received from a resident or prospective resident, the operator shall deliver to the resident a written receipt. The receipt shall show the payor's name and address, the date, the price of the continuing care contract, and the amount of money paid.
(4) In applying the provision of Section 37-11-90(C) relating to the reasonable time in which the operator must meet the requirements for release of funds held in the escrow account, escrow agents shall not consider such reasonable time to exceed thirty months from the date the entrance fee or any portion thereof was first deposited in the escrow account, unless the extension is requested from and granted by the department for good cause shown.
K. Dismissal or discharge of resident; refund.
(1) No continuing care contract which requires payment of an entrance fee or other fee in return for a promise of future care or which provides for services for the life of the person or for more than one year (including mutually terminable contracts) shall permit dismissal or discharge of the resident from the facility providing care before the expiration of the agreement without just cause for such removal. The term "just cause" includes, but is not limited to, a good faith determination in writing, signed by the medical director and/or the administrator of the facility, that a resident is a danger to himself or others while remaining in the facility. The written determination shall state:
(a) That the determination is made in good faith;
(b) The reasons supporting the determination that the resident is a danger to himself/herself or others;
(c) The basis for the conclusion that there is no less restrictive alternative to dismissal, discharge or cancellation, as the case may be, for abating the dangerousness of the resident.
(2) If a facility dismisses a resident for just cause, the resident shall be entitled to a refund of his unearned entrance fee, to the extent the continuing care contract between the parties so provides.
L. Inspections; Investigations.
(1) The department may conduct inspections or investigations as necessary to enforce the State Continuing Care Retirement Community Act, the accompanying regulations, or an order of the Administrator or the Administrative Law Court related to these provisions. Any operator being examined shall, upon request, give reasonable and timely access to all of its records. The representative of the department may at any time examine the records and affairs and inspect the physical property of any operator and the health care and health-related services provider with whom the operator has contracts, agreements, or other arrangements, whether in connection with a formal examination or not.
(2) Any duly authorized officer, employee, or agent of the department may, upon presentation of proper identification, have access to, and inspect and copy any records, with or without advance notice, to secure compliance with, or to prevent a violation of, any provision of the Act and this regulation.
(3) Reports of the results of such examinations shall be kept on file by the department. Any records, reports, or documents obtained by the department which by state or federal law or regulation are deemed confidential may not be distributed to the public by the department unless required under appropriate court order or until such confidential status has expired.
(4) The department shall notify the operator in writing of all deficiencies in its compliance with the provisions of the Act and this regulation and shall set a reasonable length of time for compliance by the facility. In addition, the department may require corrective action or request a corrective action plan.
M. Complaint system to be established.
(1) Each facility's complaint system shall, at a minimum, provide residents with the following:
(a) The name of the staff person or persons authorized to receive written complaints from residents;
(b) An opportunity to discuss the substance of the complaint with the designated staff person;
(c) The time period in which the operator shall make a written response to the complaint;
(d) A statement that the operator shall not engage in any retaliatory action against the complainant;
(e) A statement that if the resident is not satisfied with the operator's response, the resident may file a complaint with the South Carolina Department of Consumer Affairs. The agency's current toll-free telephone number and website must be included.
(2) Copies of the complaint system shall be distributed to residents and conspicuously posted at a common area of the facility.
N. Department's response to written complaints.
(1) Upon receipt of a written complaint, the department shall make a preliminary review; and unless the department determines that the complaint is without any reasonable basis, the department shall take appropriate action.
(2) No licensed operator may discriminate or retaliate in any manner against a resident of a facility providing care because such resident has initiated a written complaint pursuant to this Section.
O. Financial review committee.
At such time as the Administrator determines that a facility cannot fully perform its obligations under continuing care contracts, the Administrator may appoint a financial review committee. Such committee may include persons knowledgeable in the field of continuing care, certified public accountants, members of the financial community, and others as may be deemed appropriate by the Administrator. The members of the committee shall advise the Administrator regarding the merits of the facility's corrective plan proposal.
P. Severability.
If any provision of this regulation or the application thereof to any person, facility or circumstances is held to be invalid, the invalidity shall not affect other provisions or application of this regulation, and to this end the provisions of this regulation are severable.
HISTORY: Added by State Register Volume 16, Issue No. 7, eff July 24, 1992. Amended by State Register Volume 33, Issue No. 3, eff March 27, 2009; State Register Volume 41, Issue No. 5, Doc. No. 4625, eff May 26, 2017.
28-700. Consumer Credit Counseling Requirements.
(Statutory Authority 1976 Code Section 37-7-101, as amended)
A. Definitions
(1) Definitions shall be those contained in the Consumer Credit Counseling Act, S.C. Code Ann. Section 37-7-101 et seq. and the following:
(a) "Fees and charges of licensees" means the amount of money the credit counseling organization licensee may charge to the consumer.
(b) "Good Faith" means honesty in fact and the observance of reasonable standards of fair dealing.
(c) "Instructor" means a person that presents or teaches a continuing education course to licensees or otherwise guides licensees through the course materials.
(d) "Professional certification organization" means an independent organization, approved by the department, which authenticates the competence of individuals providing education and assistance to other individuals in connection with credit counseling services.
(e) "Sponsor" means a person that offers or otherwise coordinates a continuing professional education course.
B. Fees and Charges of Licensees
(1) A licensee may not charge or receive from a consumer, directly or indirectly, a fee except as delineated in this section. A credit counseling organization may not impose or receive fees under more than one subitem listed under subsection (2) below.
(2) The following fees may be charged based on the primary purpose of the services contracted for:
(a) If the organization receives or offers to receive funds from the consumer for the purpose of distributing the funds among the consumer's creditors in full or partial payment of the consumer's debts:
(i) an initial consultation fee, not to exceed sixty dollars;
(ii) a DMP set-up fee, not to exceed fifty dollars;
(iii) a monthly maintenance fee, not to exceed ten dollars times the number of creditors in the DMP at the time the fee is assessed, but not more than seventy dollars for each month;
(iv) a reinstatement fee, not to exceed twenty-five dollars;
(v) an additional fee for services related to the debt management plan not to exceed ten dollars per month. No fee may be charged pursuant to this subsection without prior approval from the Department.
(b) If the organization improves or offers to improve a consumer's credit record, history or rating:
(i) an initial consultation fee, not to exceed sixty dollars;
(ii) a monthly maintenance fee, not to exceed fifty dollars for each month;
(iii) a reinstatement fee, not to exceed twenty-five dollars.
(c) If the organization negotiates or offers to negotiate to defer or reduce a consumer's obligations with respect to credit extended by others:
(i) an initial consultation fee, not to exceed sixty dollars;
(ii) a monthly maintenance fee, not to exceed ten dollars times the number of creditors remaining at the time the fee is assessed, but not more than seventy dollars for each month;
(iii) a reinstatement fee, not to exceed twenty-five dollars.
(3) Upon the third dishonored payment made by a consumer to a licensee within a twelve-month period, the licensee may impose on the consumer a charge not to exceed twenty-five dollars. A licensee may not charge the same consumer more than three of these charges within the same twelve-month period.
(4) Any monies received by a person in violation of the Consumer Credit Counseling Act or Regulation 28-700 shall be returned to the payor.
(5) No person shall receive a fee from a consumer unless the fee permitted by S.C. Code Ann. Section 37-7-101 et seq. and/or R.28-700 is delineated in the contract and it has been established, as based on a good faith determination that the consumer will benefit from the services to be received pursuant to the contract.
C. Continuing Professional Education
(1) Pursuant to S.C. Code Ann. Section 37-7-105, persons other than the department may seek approval to offer continuing professional education courses to licensees. Persons other than the department seeking to provide a continuing professional education course to licensees for the purpose of fulfilling the requirements of section 37-7-105 must submit a sponsor application to the department on forms prescribed by the department or, in the alternative, seek approval from the department to be deemed a professional certification organization. The application shall at a minimum include:
(a) Applicant's name, telephone number, address, and contact person;
(b) Description of the applicant's attendance policy, including a copy of the attendance form or document that will be kept by the sponsor to evidence attendance;
(c) A copy of the certificate of completion to be delivered to licensees completing an approved course.
(2) Upon review of the sponsor application or request for approval as a professional certification organization, the department will either issue the applicant a certificate of approval or a letter of denial. Sponsors and professional certification organizations shall inform the department of any changes in subitems (1)(a)-(c) above within thirty days of the change.
(3) No continuing professional education course credit will be given for a course unless the sponsor has been approved by the department.
(4) Approved sponsors may submit courses for approval by the continuing professional education panel. Professional certification organizations are not required to submit individual courses for approval. To be considered for approval, the sponsor must submit a course approval application to the department on forms prescribed by the department. The application shall at a minimum include:
(a) Course information, including course title, type, location, and continuing professional education hours requested;
(b) Course content outline and coordinating objectives;
(c) Instructor name, address, telephone number, and employer;
(d) Description of the instructor's qualifications;
(e) If a person other than the sponsor furnished, prepared and/or authored the continuing professional education course materials, written authorization permitting the sponsor to utilize the materials.
(5) Licensees who attend a course not submitted for prior approval by an approved sponsor may submit to the department the items described in subitems (4)(a)-(d) above, the certificate of completion received, and an approval application on a form prescribed by the department.
(6) Licensees that are certified by a professional certification organization may submit evidence of current certification, along with the completed form as required by S.C. Code Ann. Section 37-7-105(A), to the department to satisfy their continuing professional education requirements.
(7) The department may require that all information required by this section be submitted in electronic form.
(8) The department may permit a licensee to receive continuing professional education credit for a course that was not approved at the time of attendance, but was subsequently approved by the continuing professional education panel.
D. Record Keeping
(1) A credit counseling organization must maintain and preserve the following records:
(a) Any documents signed by and/or given to the consumer, including the budget analysis and contract required by sections 37-7-108 and 37-7-110;
(b) Creditor consent forms required by section 37-7-109;
(c) Trust account statements required by section 37-7-111;
(d) Name and address of the FDIC-insured institution where South Carolina consumer funds are held and the number of the account utilized;
(e) Telephone scripts and marketing materials;
(f) Contracts entered into with service providers;
(g) Consumer complaint files;
(h) Copy of the organization's records disposal and security breach notification policies utilized to maintain compliance with the South Carolina Financial Identity Fraud and Identity Theft Protection Act, S.C. Code Ann. Sections 37-20-110 et seq.
(2) Consumer records must be maintained and preserved for at least three years after the termination of the contract. All business records must be maintained for at least three years after the discontinuation of the account, script, marketing materials, contract, or other record for at least three years after the date of the complaint, as applicable.
(3) All books and records shall be kept current and available for examination by the department. Records and account systems maintained in whole or in part by electronic data processing may be used in lieu of the books, files and records required by S.C. Code Ann. Sections 37-7-111 and 37-7-114 if they contain equivalent information and such information is accessible to the department. Electronic duplicates of original documents may satisfy the requirements of this section.
E. Reporting Requirements
(1) Within ten business days after the occurrence of any of the following events, a licensee shall file a written report with the department describing the event and its expected impact upon the licensee's business;
(a) The institution of a revocation, suspension, or other proceeding or action against the licensee by a governmental authority. The licensee shall advise the department within thirty days of the proceeding or action being dismissed, settled, or otherwise resolved.
(b) The institution of a civil action against the licensee. The licensee shall advise the department within thirty days of the action being dismissed, settled, or otherwise resolved.
(c) The filing of bankruptcy, reorganization, or receivership proceedings by or against the licensee.
(d) The institution of a revocation, suspension, or other proceeding by a governmental authority which is related to the licensee's credit counseling organization in any state.
(e) Felony indictments or convictions of the licensee or any of its member, partners, directors, officers, trustees, beneficiaries, or principles, if known.
(f) Any action taken by the Internal Revenue Service against a nonprofit licensee, its officers, directors, employees, agents, or other disqualified persons with respect to the organization within the meaning of Section 4958 of the Internal Revenue Code of 1986 as amended, including the imposition of penalties or excise taxes or the change, suspension, or revocation of the organization's tax exempt status.
(g) Opening a new business location within this State.
(2) If a licensee fails to make a report required by this section, the department may require the licensee to pay a late penalty of fifty dollars for each day the report is overdue.
HISTORY: Added by State Register Volume 30, Issue No. 5, eff May 26, 2006. Amended by State Register Volume 33, Issue No. 6, eff June 26, 2009; State Register Volume 40, Issue No. 2, Doc. No. 4527, eff February 26, 2016.
28-900. Motor Vehicle Subleasing and Loan Assumption Brokers.
(Statutory Authority: 1976 Code Section 37-13-10 et seq.)
A. Definitions
Definitions shall be those contained in the Regulation of the Subleasing and Loan Assumption of Motor Vehicles Act. S.C. Code Ann. Section 37-13-10 et seq. (1976 as amended).
B. Application Process
All motor vehicle sublease arrangers must submit the following in order to be considered for a license to engage in the business of auto brokering in this State
(1) A formal application for the license in the form and detail the Administrator requires, executed under oath by the owner(s) of the business or other persons as required by the Administrator.
(2) A certified copy of its charter or articles of incorporation and its bylaws, if any. If a partnership, any partnership filings and agreements.
(3) If a corporation, a certified copy of the good standing certificate from the Secretary of State.
(4) A certified copy of its most recent financial statement certified by the owner(s) as true and correct as of the date of the signature(s) or an audited written financial statement by an accountant licensed in this State.
(5) A copy of the sublease agreement incorporating all requirements of applicable law and regulation.
(6) A surety bond or irrevocable letter of credit in the amount of $25,000.00 per location with the Administrator of the Department of Consumer Affairs of the State of South Carolina listed in favor of the bond or letter of credit.
(7) An application fee of $250.00 per location due by October 31 each year. The renewal period will be between September 1 and October 31 of each year. The renewal fee is the same as the initial fee.
C. Contract Requirements Between the Sublease Arranger and Sublessee:
(1) The agreement must be in writing.
(2) It must include the name and current physical address and telephone number of the sublease arranger.
(3) The name and address of the sublessee.
(4) The signature of the authorized agent for the sublease arranger.
(5) The signature of the sublessee(s).
(6) The VIN number of the motor vehicle subject to the contract. This VIN number must be listed in the upper right corner of the agreement.
(7) The year, make and model of the motor vehicle subject to the agreement.
(8) The odometer reading of the motor vehicle at the beginning of the agreement. In the event the vehicle is returned prior to the end of the sublease agreement, the sublease arranger must indicate the ending odometer reading in the sublessee's file.
(9) A copy of the written authorization that has been received from the secured party or lessor on the vehicle.
(10) Accurate Truth in Leasing disclosures for the sublessee or in the case of assumptions, accurate Truth in Lending disclosures pursuant to 15 U.S.C. Section 1601 et seq.
(11) A statement that indicates all rights under any applicable warranties or service contracts regarding the motor vehicle transfer to sublessee unless a pro rata rebate for unexpired coverage is applied itemized, to reduce the sublessee's contract under the sublease.
(12) A statement of fees for sublease arranger services.
(13) A statement of services the sublease arranger will provide for the sublessee.
(14) A statement of who is responsible for automotive insurance.
D. Contract Requirements Between Sublease Arranger and Buyer or Lessee
(1) The agreement must be in writing.
(2) It must include the name and physical and mailing address and telephone number of the sublease arranger as of the date the sublease agreement was consummated, and the sublease arranger's current physical and mailing address and telephone number.
(3) It must include the name and address of buyer or lessee.
(4) The signature of authorized agent of the sublease arranger.
(5) The signature of the buyer or lessee.
(6) The VIN number of the motor vehicle subject to the agreement. This VIN number must be included in the upper right corner of the agreement.
(7) The odometer reading at the beginning of the agreement. In the event the vehicle is returned prior to the end of the sublease agreement, the ending odometer reading must be kept with the sublease file.
(8) A copy of the written authorization that has been received from the secured party or lessor on the vehicle.
(9) A statement indicating that all rights under any applicable warranties and service contracts regarding the motor vehicle transfer to sublessee unless a pro rata rebate for unexpired coverage is applied to reduce the sublessee's contract.
(10) A statement of fees for the sublease arranger's services to the buyer or lessee.
(11) A statement of services the sublease arranger will provide to the buyer or lessee.
(12) A statement that an identification of the location of the vehicle is available upon the request of the buyer, lessee, secured party or lessor.
(13) A written notice in the following language must be more conspicuous than all other disclosures except truth in leasing and lending requirements and the company name. "Notice: This sublease arrangement does not release you from liability for your original security agreement or lease."
(14) A statement of who is responsible for automobile insurance.
E. Fees and Charges:
(1) Only charges that are permitted by this regulation may be assessed in sublease arrangements.
(2) The sublease arranger may assess a brokerage fee from the buyer or lessee who places his vehicle with the sublease arranger for a sublease arrangement in the amount of no more than $2,000.00 or 10% of the unpaid balance of the vehicle at the time of the sublease, whichever is less. The sublease arranger may contract for a minimum fee of no more than $250.00.
(3) The sublease arranger may assess a brokerage fee from the sublessee in an amount of no more than $2,000.00 or 10% of the unpaid balance of the vehicle at the time of the sublease, whichever is less. The sublease arranger may contract for a minimum fee of no more than $250.00.
(4) The sublease arranger may assess a late charge for any payment remaining unpaid more than ten days from its due date in an amount of $10.00 or 5% of the installment payment, whichever is less.
(5) The sublease arranger may assess only such repossession charges as are reasonable and necessary to obtain possession of the vehicle after default by the sublessee, including reasonable attorney's fees actually paid to an attorney other than a salaried employee of the sublease arranger, not to exceed 15% of the unpaid balance at the time of default.
(6) The sublease arranger may make a reasonable charge for skip insurance that will protect only the secured party and the buyer or lessee. The sublease arranger nevertheless, must arrange for such skip insurance within thirty (30) days of notice of cancellation to the buyer or lessee, the lienholder and the Department.
F. Recordkeeping
Records are to be made available at all times for inspection by the Department of Consumer Affairs on demand. These records include:
(1) A copy of the completed sublease agreement between the sublease arranger and the sublessee.
(2) A copy of the completed agreement between the sublease arranger and the original buyer or lessee.
(3) A copy of the written authorization for the sublease of the vehicle from the vehicle's secured party or lessor.
(4) A copy of all advertising used including a record of the source and date(s) used by the sublease arranger. All advertising must include the statement that "vehicles are available for sublease" and that "(insert business name) is a sublease arranger." Advertising records must be kept for a period of one year from the last date of use.
(5) Copies of Skip Insurance policies.
(6) Records must be kept in alphabetical order by the last name of the sublessee.
(7) Sublessee files must contain copies of any previous sublease agreements of the same vehicle by the sublease arranger.
(8) A copy of the original agreement between the secured party or lessor and the buyer or lessee of the vehicle.
(9) All records except advertising must be kept for a minimum of three years.
G. Licenses
(1) Licenses must be posted in a conspicuous place at the business location.
(2) All licensed brokers must give 30 days notice of intent prior to opening, closing, consolidating or moving a business location in this State. No licenses shall be effective for consolidated brokers or brokers that have moved their business locations without complying with this section.
(3) Issuance of a license does not indicate approval or acceptance of the terms of any contract, agreement or other document submitted in support of the application. No licensee will in any way represent that its services or contracts are approved by the State or any state agency. This does not prevent a licensee from indicating the business is licensed by the Department.
HISTORY: Added by State Register Volume 17, Issue No. 4, eff April 23, 1993.
28-1000. Professional Employer Organizations.
A. Definitions.
(1) "Biennium" means the two-year licensing cycle which ends on September 30 of every odd-numbered year.
(2) "Co-employer" means either a professional employer organization or a client company, as defined in Section 40-68-10 (2) and (10).
B. Application Procedure; Application Form; Fees; Denial of Application; Request for Hearing.
(1) Applicants for licensure as a professional employer organization or as a controlling person shall file a completed application on forms provided by the Department. An application is complete when all items on the application have been fully answered, all required documentation has been submitted and the applicable fees as specified in Section 40-68-30 have been paid.
(2) An applicant must cure all deficiencies in its application as noted by the Department within 30 days from the date of the letter notifying the applicant of the deficiency or the application will be denied as incomplete. Applicants who have not cured all deficiencies within 30 days of the notification will be required to re-file with the Department a new application accompanied by a non-refundable application fee.
(3) Any entity applying for licensure as a professional employer organization or professional employer organization group, must be validly organized in the State of South Carolina, or otherwise appropriately registered as a foreign entity with the South Carolina Secretary of State.
(4) The burden of showing qualification for licensure shall be on the applicant.
(5) If the department determines that an applicant is not qualified for licensure, it shall notify the applicant in writing, citing the specific reason for that determination. Any person aggrieved by the decision shall be entitled to a contested case hearing before the Administrative Law Court in accordance with the court's rules of procedure.
C. License Renewal Procedures; Inactive License Renewal.
In the event any licensee fails to renew the license, the license shall automatically become delinquent. A license delinquent 30 days or less may be returned to active status by the payment of the biennial license renewal fee and a delinquent fee of five hundred dollars.
D. Assessment on Gross South Carolina Payroll.
Licensees who do not submit assessment fees to the department by the assessment due date must pay the assessment fee and a late penalty fee of one hundred fifty dollars for every thirty days or portion thereof it is late. If it is late more than sixty days, the licensee may be subject to disciplinary action as set forth in Section 40-68-160 (C).
E. The Documentation Submitted to Demonstrate Net Worth.
(1) The documentation submitted to establish net worth must be prepared by an independent Certified Public Accountant licensed to practice public accounting as of the date of the accountant's report and must be in the format of independently audited accrual basis financial statements, as determined by generally accepted accounting principles, for the two (2) most recent annual accounting periods preceding the date of application, except that if the most recent accounting period ends within 180 days of the date of application, the current year's financial statement shall be submitted within 180 days of the end of the accounting period.
(2) The following additional documents must be submitted for a determination and verification of the amount of net worth of a professional employer organization or a professional employer organization group:
(a) Verification that federal, state, and local payroll taxes (including unemployment compensation taxes/insurance) have been paid on a timely basis as required by regulations of each taxing authority;
(b) Verification that all health insurance, life insurance, worker's compensation insurance premiums and any other employee benefits accruing either to employees or their dependents have been and are being paid on a timely basis to the proper payees as required by contract, law, or other obligatory documents.
(3) Any documentation submitted to the department to verify the amount of net worth or the payment of payroll taxes and other obligations shall be prepared as of a date not earlier than six months or 180 days before the date of application. Information supplied regarding net worth is proprietary and confidential and is exempt from disclosure to third parties.
(4) At the time of an application for an initial license by a professional employer organization that has not had sufficient operating history to have audited financial statements based upon at least twelve months of operating history, the applicant must meet the net worth requirements of S.C. Code Ann. Section 40-68-40(E) and present a business plan and pro forma financial statements reviewed by a certified public accountant. Thereafter, such applicant shall present, within 180 days after the end of its fiscal year, audited financial statements.
F. Quarterly Financial Reporting and the Maintenance of Sufficient Working Capital.
In order to be in compliance with the net worth requirements of Section 40-68-40(E), licensed professional employer organizations and professional employer organization groups are required to file a quarterly financial attestation with the department. This quarterly attestation report shall be executed by the chief financial officer, the chief executive officer, and a controlling person of the professional employer organization. Copies of the current quarter's balance sheet and income statement shall be submitted with the quarterly financial attestation report. Quarterly financial statements are due to be submitted to the department within 75 days after the end of each quarter. Quarterly financial reports that are submitted late without prior approval from the department will be assessed a late reporting fee of one hundred fifty dollars for every thirty days or portion thereof they are late. If they are late more than sixty days, the licensee may be subject to a disciplinary action as set forth in Section 40-68-160 (C). The following attestations will be made in the quarterly report:
(1) Health insurance, life insurance, worker's compensation insurance and their respective premiums and any other employee benefits have been paid to the proper payees;
(2) Working capital is sufficient to meet the licensee's ongoing obligations;
(3) Federal, state, and local payroll taxes have been paid as required by regulations of each taxing authority.
G. Restricted License.
(1) The holder of a restricted license shall provide to the department quarterly reports on a form developed by the department with information and documentation necessary to show that the holder continues to qualify for a restricted license.
(2) When any condition for an issuance of a restricted license ceases to exist, the licensee shall apply within thirty days for a license pursuant to Sections 40-68-30, 40-68-40, 40-68-50 and any other applicable provision of the professional Employer Organization Act and accompanying regulations or cease operations in the State.
H. Certification of Workers' Compensation Coverage.
Professional employer organizations must maintain workers' compensation coverage issued by an insurance carrier licensed in South Carolina. The certificate must name the Department of Consumer Affairs as Certificate Holder and provide for thirty (30) days' notice of cancellation to the Department.
I. Notices Required to be Posted.
The licensee shall cause each client company to display, in a place that is in clear and unobstructed public view, a notice stating that the business operated at the location is in a co-employer relationship with the professional employer organization licensed and regulated by the department and that any questions or complaints regarding the professional employer organization should be directed to the department. The notice shall contain the Department's mailing address, web address and phone number. A copy of such notice shall be provided to the Department. A substantially similar notice shall be included in the contract between a licensee and a client company.
J. Inspections; Investigations; Complaints.
The department may conduct inspections or investigations as necessary to ascertain compliance with and to enforce the provisions of the Professional Employer Organization Act, accompanying regulations or an order of the administrator or the Administrative Law Court related to these provisions. The department may investigate or examine the business of the licensee and examine the books, accounts, records, and files of the licensee or other person relating to the examination or matter under investigation. The records must be available for examination to the administrator or his designee upon request. In conducting such an inspection or investigation of a person, the department may enter the business premises of the person during reasonable business hours.
K. Reporting of Change of Status Required; Effect on Licensees.
Licensed companies and controlling persons shall report to the Department upon the occurrence of any event delineated in the Act. The Department shall specify the information required to be filed for all changes in the status, and the deadlines for filing such changes with the department.
HISTORY: Added by State Register Volume 30, Issue No. 7, eff July 28, 2006. Amended by State Register Volume 41, Issue No. 5, Doc. No. 4624, eff May 26, 2017.
28-1100. Prepaid Legal Services Certificate of Registration.
Statutory Authority: 1976 Code Sections 37-16-10 et seq., Particularly Section 37-16-90
A. DEFINITIONS
(1) Definitions shall be those contained in S.C. Code Ann. S. 37-16-10 et seq. (1976 as amended) and the following:
(a) "Administrator" means the officer appointed by the Commission on Consumer Affairs pursuant to Title 37, Chapter 6.
(b) "Representative" means an individual who performs direct selling or direct in-person or electronic solicitation of South Carolina citizens on behalf of a prepaid legal services company.
B. REGISTRATION OF PREPAID LEGAL COMPANY
(1) All persons or entities wishing to offer prepaid legal services to the general public or a segment of the general public in this State must first obtain a Certificate of Registration from the Administrator. Initial applications for the Certificate shall be made on a form prescribed by the Administrator.
(2) Certificates of Registration expire on March 1. The renewal period will be between February 1 and March 1 of each year. Renewal applications shall be made on a form prescribed by the Administrator and must be accompanied by a copy of the company's most recent financial statement certified by two principal officers of the company, or in the case of partnerships or sole proprietorships, by a partner or the proprietor.
C. PREPAID LEGAL REPRESENTATIVES
(1) Prepaid legal representatives must be registered with the Administrator before commencing any sales or solicitation activity in this State. Each representative must submit an application for registration on a form prescribed by the Administrator.
(2) Companies shall appoint representatives and pay a non-refundable fee for each representative appointed.
(3) A prepaid legal representative's Certificate of Registration expires on October 1. The renewal period will be between August 1 and October 1 of each year. Renewal applications shall be made on forms prescribed by the Administrator.
(4) When a prepaid legal representative's appointment is terminated, the company must notify the Administrator within thirty days of termination on a form prescribed by the Administrator.
HISTORY: Added by State Register Volume 39, Issue No. 6, Doc. No. 4528, eff June 26, 2015. Amended by State Register Volume 41, Issue No. 5, Doc. No. 4709, eff May 26, 2017.
|
Staff Portal
