S*1062 Session 110 (1993-1994)
S*1062(Rat #0539, Act #0461) General Bill, By Hayes, Bryan, Courson, Courtney,
Ford, Giese, Gregory, Jackson, Lander, Leatherman, Leventis, A.S. Macaulay,
Mescher, T.W. Mitchell, Patterson, Peeler, Reese, L.E. Richter, M.T. Rose,
Russell, Ryberg, Short, J.V. Smith, H.S. Stilwell and Wilson
Similar(H 4541)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 56
to Title 33 so as to enact the "South Carolina Solicitation of Charitable
Funds Act" which includes provisions regulating the manner, conditions, and
procedures under which solicitations of charitable funds may be undertaken in
this State, provisions establishing certain registration and other fees,
provisions establishing certain civil and criminal penalties for violations,
and provisions stipulating the amount that a person may recover as a result of
an injury by reason of certain tortious acts of an employee of the charitable
organization; to amend the 1976 Code by adding Section 38-79-30 so as to
recodify in Title 38 a provision currently contained in Chapter 55 of Title 33
pertaining to the liability of a licensed health care provider who renders
medical services voluntarily and without compensation; and to repeal Chapter
55, Title 33 of the 1976 Code relating to charitable organizations and the
solicitations of charitable funds; to amend Section 33-7-103, relating to
court-ordered meetings of a corporation, so as to further provide for the
circumstances which permit the ordering of such meetings; to amend Section
33-8-106, relating to staggered terms of directors, so as to reduce the total
number of directors which justify having staggered terms; and to amend Section
38-77-160, relating to additional uninsured and underinsured motorist
coverage, so as to further provide for such coverage.-amended title
01/19/94 Senate Introduced and read first time SJ-8
01/19/94 Senate Referred to Committee on Judiciary SJ-8
03/30/94 Senate Committee report: Favorable with amendment
Judiciary SJ-18
03/31/94 Senate Amended SJ-309
03/31/94 Senate Read second time SJ-311
03/31/94 Senate Ordered to third reading with notice of
amendments SJ-311
04/05/94 Senate Amended SJ-14
04/05/94 Senate Read third time and sent to House SJ-14
04/06/94 House Introduced and read first time HJ-34
04/06/94 House Referred to Committee on Judiciary HJ-34
05/19/94 House Committee report: Favorable with amendment
Judiciary HJ-8
06/01/94 House Amended HJ-316
06/01/94 House Debate interrupted HJ-323
06/01/94 House Read second time HJ-348
06/02/94 House Read third time and returned to Senate with
amendments HJ-21
06/02/94 Senate House amendment amended SJ-55
06/02/94 Senate Returned to House with amendments SJ-55
06/02/94 House Concurred in Senate amendment and enrolled HJ-68
06/02/94 Ratified R 539
06/29/94 Signed By Governor
06/29/94 Effective date 06/29/94
07/14/94 Copies available
(A461, R539, S1062)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 56 TO TITLE 33 SO AS TO
ENACT THE "SOUTH CAROLINA SOLICITATION OF
CHARITABLE FUNDS ACT" WHICH INCLUDES PROVISIONS
REGULATING THE MANNER, CONDITIONS, AND PROCEDURES
UNDER WHICH SOLICITATIONS OF CHARITABLE FUNDS MAY
BE UNDERTAKEN IN THIS STATE, PROVISIONS ESTABLISHING
CERTAIN REGISTRATION AND OTHER FEES, PROVISIONS
ESTABLISHING CERTAIN CIVIL AND CRIMINAL PENALTIES FOR
VIOLATIONS, AND PROVISIONS STIPULATING THE AMOUNT
THAT A PERSON MAY RECOVER AND FROM WHOM AS A
RESULT OF AN INJURY BY REASON OF CERTAIN TORTIOUS
ACTS OF AN EMPLOYEE OF THE CHARITABLE ORGANIZATION;
TO AMEND THE 1976 CODE BY ADDING SECTION 38-79-30 SO AS
TO RECODIFY IN TITLE 38 A PROVISION CURRENTLY
CONTAINED IN CHAPTER 55 OF TITLE 33 PERTAINING TO THE
LIABILITY OF A LICENSED HEALTH CARE PROVIDER WHO
RENDERS MEDICAL SERVICES VOLUNTARILY AND WITHOUT
COMPENSATION; TO REPEAL CHAPTER 55, TITLE 33 OF THE 1976
CODE RELATING TO CHARITABLE ORGANIZATIONS AND THE
SOLICITATIONS OF CHARITABLE FUNDS; TO AMEND SECTION
33-7-103, RELATING TO COURT-ORDERED MEETINGS OF A
CORPORATION, SO AS TO FURTHER PROVIDE FOR THE
CIRCUMSTANCES WHICH PERMIT THE ORDERING OF SUCH
MEETINGS; TO AMEND SECTION 33-8-106, RELATING TO
STAGGERED TERMS OF DIRECTORS, SO AS TO REDUCE THE
TOTAL NUMBER OF DIRECTORS WHICH JUSTIFY HAVING
STAGGERED TERMS; AND TO AMEND SECTION 38-77-160,
RELATING TO ADDITIONAL UNINSURED AND UNDERINSURED
MOTORIST COVERAGE, SO AS TO FURTHER PROVIDE FOR SUCH
COVERAGE.
Be it enacted by the General Assembly of the State of South Carolina:
Solicitation of charitable funds
SECTION 1. Title 33 of the 1976 Code is amended by adding:
"CHAPTER 56
Solicitation of Charitable Funds
Section 33-56-10. This chapter may be cited as the `South Carolina
Solicitation of Charitable Funds Act'.
Section 33-56-20. As used in this chapter, unless a different meaning is
required by the context:
(1) `Charitable organization' means:
(a) any person deemed by the Internal Revenue Service to be a tax
exempt organization pursuant to Section 501(c)(3) of the Internal Revenue
Code;
(b) any person who is or holds itself out to be established for any
benevolent, social welfare, scientific, educational, environmental,
philanthropic, humane, patriotic, public health, civic, or other eleemosynary
purpose, or;
(c) any person who employs a charitable appeal as the basis of
solicitation or an appeal that suggests that there is a charitable purpose to
any solicitation, or who solicits or obtains contributions solicited from the
public for a charitable purpose.
This definition shall not include constituted religious organizations or
groups affiliated with and forming an integral part of the organization
where no part of the net income inures to the direct benefit of any
individual, and which has received a declaration of current tax exempt
status from the government of the United States. Religious organizations
include those groups incorporated for a religious purpose by this State. A
candidate for national, state, or local office or a political party or other
group required to file information with the federal election commission or
State Election Commission is not a charitable organization.
(2) `Person' means an individual, organization, trust, foundation, group,
association, partnership, corporation, society, or any combination of
them.
(3) `Contribution' means the promise, grant, or pledge of any money,
credit, assistance, or property of any kind or value. It does not include
bona fide fees, dues, or assessments paid by members of an organization,
provided that membership is not conferred solely as consideration for
making a contribution in response to a solicitation, and that membership
does not bestow only a right to vote.
(4) `Solicit' and `solicitation' means the request for money, credit,
property, financial assistance, or other thing of value, or any portion of it,
which will be used for a charitable purpose or benefit a charitable
organization. A solicitation is considered to have taken place whether or
not the person making the same receives any contribution.
(5) `Secretary' means the Secretary of State.
(6) `Parent organization' means that part of a charitable organization
which coordinates, supervises, or exercises control over policy, fund
raising, and expenditures, or assists or advises one or more chapters,
branches, or affiliates in this State.
(7) `Professional fund-raising counsel' means a person who for
compensation plans, conducts, manages, prepares materials for, advises, or
acts as a consultant, whether directly or indirectly, in connection with
soliciting contributions for or on behalf of a charitable organization but
who actually does not solicit contributions as a part of these services. A
bona fide salaried officer or employee of a charitable organization
maintaining a permanent establishment within this State, or the bona fide
salaried officer or employee of a parent organization certified as tax
exempt, is not considered to be a professional fund-raising counsel.
(8) `Professional solicitor' means a person who, for monetary
consideration, solicits contributions for or on behalf of a charitable
organization, whether the solicitation is performed personally or through its
agents, servants, or employees specially employed by or for a charitable
organization, who are engaged in the solicitation of contributions under the
direction of such person. `Professional solicitor' also means a person who
plans, conducts, manages, carries on, advises, or acts as a consultant to a
charitable organization in connection with the solicitation of contributions
but does not qualify as `professional fund-raising counsel' within the
meaning of this chapter. A bonafide salaried officer, unpaid director, or a
bonafide full-time employee of a charitable organization or a part-time
student employee of an educational institution is not considered to be a
professional solicitor.
(9) `Charitable purpose' means a purpose described in Section 501(c)(3)
of the Internal Revenue Code or a benevolent, social welfare, scientific,
educational, environmental, philanthropic, humane, patriotic, public health,
civic, or other eleemosynary objective.
(10) `Educational institution' means an organization organized and
operated exclusively for educational purposes and which normally
maintains a regular faculty and curriculum and normally has a regularly
enrolled body of pupils or students in attendance at the place where
educational activities are regularly carried on. The term `educational
institution' also includes the following persons, entities, or institutions if
none of their fund-raising activities are carried on by professional solicitors
as defined by this chapter:
(a) any educational institution that is an eleemosynary junior or senior
college in South Carolina whose major campus and headquarters are
located within this State and which is accredited by the Southern
Association of Colleges and Secondary Schools; and
(b) any person or entity performing sanctioned fund-raising activities
on behalf of the educational institutions referenced in subitem (a) above, its
foundations, or related or affiliated funds.
Section 33-56-30. Except as otherwise provided in this chapter, every
charitable organization which intends to solicit contributions within this
State or have contributions solicited on its behalf shall file a registration
statement with the secretary on forms prescribed by the secretary by July
first of each year but in all cases prior to solicitation. It is the duty of the
chief executive officer or chief financial officer of each charitable
organization to file the statements required under this chapter. The
statements must be sworn to and contain:
(1) the name of the organization;
(2) the purpose for which it was organized;
(3) the principal address of the organization and the address of any
offices in this State. If the organization does not maintain an office, the
name and address of the person having custody of its financial records;
(4) the names and addresses of the chief executive officer and chief
financial officer;
(5) the names and addresses of any chapters, branches, or affiliates in
this State;
(6) the place and date the organization was legally established, the form
of its organization, and a reference to any determination of its tax exempt
status under the Internal Revenue Code;
(7) whether the organization intends to use professional solicitors or
hire individuals to solicit;
(8) whether it is certified as a tax exempt organization and is authorized
by any other governmental authority in this State to solicit
contributions;
(9) whether it is or has ever been enjoined by any court from soliciting
contributions; and
(10) the general purpose for which the contributions to be solicited
shall be used.
The registration forms and other documents prescribed by the Secretary
of State must be signed by the chief executive officer and chief financial
officer of the charitable organization and certified as true. Every charitable
organization which submits a registration to the secretary must pay an
annual registration fee of fifty dollars.
Section 33-56-40. The Children's Trust Fund of South Carolina as
established by Section 20-7-5010 is required to register with the Secretary
of State but is not required to pay the annual registration fee provided for in
Section 33-56-30.
Section 33-56-50. The following are not required to file registration
statements with the Secretary of State, provided none of its fund-raising
activities are carried on by professional solicitors:
(1) an educational institution which solicits contributions only from its
students and their families, alumni, faculty, friends and other
constituencies, trustees, corporations, foundations, and individuals who are
interested in and supportive of the programs of the institution;
(2) persons requesting contributions for the relief of an individual
specified by name at the time of the solicitation when all of the
contributions collected without any deductions of any kind are turned over
to the named beneficiary for his use, provided that a person soliciting the
contributions is not a named beneficiary;
(3) charitable organizations which do not intend to solicit nor receive
contributions from the public in excess of five thousand dollars during a
calendar year or do not receive contributions from more than ten persons
during a calendar year, if all of their functions, including fund-raising
activities, are carried on by persons who are unpaid for their services and if
no part of their assets or income inures to the benefit of or is paid to any
officer or member. If the contributions raised from the public, whether all
of the contributions are or are not received by a charitable organization
during any calendar year, are in excess of five thousand dollars, within
thirty days after the date the contributions exceed five thousand dollars, it
must register with and report to the department as required by this
chapter;
(4) organizations which solicit exclusively to their members, including
utility cooperatives; and
(5) any veteran's organization which has a congressional charter.
Any charitable organization claiming to be exempt from the registration
provisions of this chapter and which will or does solicit charitable
contributions shall submit annually to the secretary on forms to be
prescribed by the secretary, the name, address, and purpose of the
organization and a statement setting forth the reason for the claim for
exemption. If exempted, the secretary or his appropriate division shall issue
a letter of exemption which may be exhibited to the public. No filing fee is
required of an exempt organization.
Section 33-56-60. (A) Each charitable organization soliciting funds in
this State and not exempt under Section 33-56-50, whether individually or
collectively with other organizations, shall file a report of its financial
activities, on forms prescribed by the Secretary of State, certified to be true
by the chief executive officer and the chief financial officer of it, in the
office of the Secretary of State. The report must cover the preceding fiscal
year and must be filed within two and one-half months of the close of the
organization's fiscal year unless a written extension has been granted by the
secretary.
The report must include:
(1) specific and itemized support and revenue statements disclosing
direct public support from solicitation, indirect public support, government
grants, program service revenue, and any other revenue. The report must
disclose the amount of direct public support received from direct mail
solicitation, telephone solicitation, commercial co-venturers, door-to-door
solicitations, telethons, and all other itemized sources;
(2) specific and itemized expense statements disclosing program
services, public information expenditures, fund-raising costs, payments to
affiliates, management costs, and salaries paid; and
(3) balance sheet disclosures containing total assets and liabilities.
(B) However, if a charitable organization is required to file Internal
Revenue Service Form 990 with the Internal Revenue Service, the
organization may file such form with the secretary in lieu of the report
required under subsection (A) of this section, provided that the form may
exclude such information which the Internal Revenue Service would not
release pursuant to a Freedom of Information request.
(C) An organization failing to file the report required by this section
may be enjoined from further solicitation of funds in this State in an action
brought by the Attorney General or secretary. An organization failing to
file a timely report required by this section may be assessed by the
secretary administrative fines not to exceed two thousand dollars.
Section 33-56-70. Every contract or agreement between professional
fund-raising counsel or professional solicitor and a charitable organization
must be in writing and filed with the Secretary of State within ten days after
the contract is made. Every agreement or written statement of the nature of
the arrangement to prevail in the absence of a contract between a
professional fund-raising counsel or solicitor and a charitable organization
must be filed with the Secretary of State within ten days after the contract
or written agreement is made. Every contract filed under this section must
disclose the amount of compensation the professional fund-raising counsel
or solicitor will receive, or if there is no flat fee, the percentage of collected
revenues the professional fund-raising counsel or solicitor will receive.
Every contract or agreement filed under this section must disclose the name
and residence address of each person directing or supervising the conduct
of services. Every contract or agreement filed under this section and
involving telephone solicitation must disclose the location and telephone
numbers from which the soliciting will be conducted.
Within ninety days after a solicitation campaign has been completed,
and on the anniversary of the commencement of a solicitation campaign
lasting more than one year, the professional solicitor or the charitable
organization must file with the secretary a joint financial report for the
campaign, including gross revenue and an itemization of expenses. The
report must be completed on a form prescribed by the secretary and signed
by an authorized official of the paid solicitor or an authorized official from
the charitable organization and certified to be true.
A professional fund-raising counsel, professional solicitor, or charitable
organization failing to comply with this section is liable for an
administrative fine not to exceed ten dollars for each day of
noncompliance, with a maximum fine under each nonregistered agreement
of two thousand dollars.
Section 33-56-80. Registration statements and applications, reports,
professional fund-raising counsel contracts or professional solicitor
contracts, and all other documents and information required to be filed
under this chapter or by the Secretary of State are public records in the
office of the Secretary of State and are open to the general public for
inspection at such time and under such conditions as the secretary may
prescribe. The secretary shall publish and make available to the public and
to persons subject to this chapter explanatory information concerning this
chapter, the duties imposed by this chapter, and the means for enforcing
this chapter.
Section 33-56-90. (1) Upon oral or written request of the solicited
party, the solicitor shall deliver to the solicited party a written statement
disclosing:
(a) the name and location of the charitable organization;
(b) a description of the charitable purpose for which the solicitation is
made; and
(c) a financial statement of the charitable organization disclosing
assets, liabilities, fund balances, revenue, and expenses for the preceding
fiscal year.
(2) The financial statement under item (1)(c) must be the most recently
submitted report under Section 33-56-60.
(3) At the initial time of solicitation, a professional solicitor or a
solicitor who receives compensation for soliciting shall disclose his status
as a professional or paid solicitor. The professional solicitor or solicitor
who receives compensation for soliciting shall also disclose the name of the
professional fund-raising organization and charity he represents.
(4) Upon request, a professional solicitor shall display or deliver to the
solicited party a copy of his registration certification from the secretary.
Section 33-56-100. In accordance with the regulations promulgated by
the secretary, every charitable organization and professional fundraiser
subject to the provisions of this chapter shall keep the true fiscal records as
to its activities in this State. The records must be retained for at least three
years after the end of the period of registration to which they relate.
Section 33-56-110. No person shall act as a professional fund-raising
counsel or professional solicitor for a charitable organization subject to the
provisions of this chapter, unless he has first registered with the Secretary
of State. Applications for registration must be in writing under oath or
affirmation in the form prescribed by the Secretary of State and contain that
information as the Secretary of State may require. The application for
registration by professional fund-raising counsel or professional solicitor
must be accompanied by an annual fee of fifty dollars.
At the time of making application, professional solicitors shall file with
and have approved by the Secretary of State a surety bond in which the
applicant or his employer shall be the principal obligor in the sum of fifteen
thousand dollars with one or more sureties satisfactory to the Secretary of
State, whose liability in the aggregate as such sureties will at least equal
that sum and maintain the bond in effect so long as a registration is in
effect. However, a deposit of cash in the amount of fifteen thousand dollars
may be accepted in lieu of the bond. The bond shall run to the State of
South Carolina for the use of the secretary or his appropriate division and
any person who may have a cause of action against the obligor of the bonds
for losses resulting from malfeasance, nonfeasance, or misfeasance in the
conduct of solicitation activities. A partnership or corporation which is a
professional solicitor may file a consolidated bond on behalf of all its
members, officers, and employees.
Each registration is valid throughout the State for one year and may be
renewed for additional one-year periods upon written application under
oath in the form prescribed by the Secretary of State and the payment of the
fee prescribed in this chapter.
Professional fundraisers or professional fund-raising counsel who fail to
comply with the provisions of this section are liable for an administrative
fine not to exceed ten dollars for each day of noncompliance, with a
maximum fine under this paragraph of two thousand dollars.
Section 33-56-120. (1) In connection with the solicitation of
contributions for or the sale of goods or services, no person shall
knowingly and wilfully misrepresent or mislead anyone by any manner,
means, practice, or device.
(2) No charitable organization, professional fund-raising counsel, or
professional solicitor shall use or exploit the fact of registration so as to
lead the public to believe that the registration in any way constitutes an
endorsement or approval by the State. However, the use of the following
statement is not considered a prohibited exploitation: `Registered with the
Secretary of State as required by law. Registration does not imply
endorsement of a public solicitation for contributions.'
(3) In connection with the solicitation of contributions or the sale of
goods or services for charitable purposes, no person shall represent to or
lead anyone by any manner, means, practice, or device to believe that any
other person sponsors or endorses the solicitation of contributions, sale of
goods or services for charitable purposes, or approves of the charitable
purposes or a charitable organization connected with it when the other
person has not given written consent to the use of his name for these
purposes. Any member of the board of directors or trustees of a charitable
organization or any other person who has agreed either to serve or to
participate in any voluntary capacity in the campaign is considered to have
given his consent to the use of his name in the campaign.
(4) No person shall make any representation that he is soliciting
contributions for or on behalf of a charitable organization or shall use or
display any emblem, device, or printed matter belonging to or associated
with a charitable organization for the purpose of soliciting or inducing
contributions from the public without first being authorized to do so by the
charitable organization.
(5) For the purpose of soliciting contributions from persons in this
State, no person shall use the name of any other person except that of an
officer, director, or trustee of the charitable organization by or for which
contributions are solicited, without the written consent of the other person.
A person is considered to have used the name of another person for the
purpose of soliciting contributions if the latter person's name is listed on
any stationery, advertisement, brochure, or correspondence in or by which a
contribution is solicited by or on behalf of a charitable organization or if his
name is listed or referred to in connection with a request for a contribution
as one who has contributed to, sponsored, or endorsed the charitable
organization or its activities.
(6) Nothing contained in subsection (5) of this section prevents the
publication of names of contributors, without their written consent, in an
annual or other periodic report issued by a charitable organization for the
purpose of reporting on its operations and affairs to its membership or for
the purpose of reporting contributions to contributors.
Section 33-56-130. If any charitable organization, professional
fund-raising counsel, or professional solicitor soliciting contributions from
people in this State and having a principal place of business outside the
State, or organized under and by virtue of the laws of a foreign state, is
subject to the provisions of this chapter and does not otherwise appoint a
registered agent for service of process, then that charitable organization,
professional fund-raising counsel, or professional solicitor is considered to
have irrevocably appointed the secretary as an agent upon whom may be
served summons, subpoena, subpoena duces tecum, or other process
directed to the charitable organization, professional fund-raising counsel, or
professional solicitor or any partner, principal officer, or director of it in
any action or proceeding brought under the provisions of this chapter.
Service of process upon the secretary must be made by delivering to and
leaving with him personally a copy thereof at the office of the secretary and
the service shall be sufficient service, provided, that notice of the service
and a copy of the process are sent by the secretary to the charitable
organization, professional fund-raising counsel, or professional solicitor, by
registered or certified mail with return receipt requested, at the address set
forth in the registration form required to be filed with the secretary pursuant
to this chapter or, in default of the filing of such form, at the last address
known to the secretary. Service of the process is complete ten days after the
receipt by the secretary of a return receipt purporting to be signed by the
addressee or a person qualified to receive the registered or certified mail, in
accordance with the accepted practices of the United States Postal Service,
or, if acceptance was refused by the addressee, ten days after the return to
the secretary of the original envelope bearing a notation by the postal
authorities that receipt thereof was refused.
Section 33-56-140. (1) Upon his own motion or upon complaint of
any person, the secretary may investigate any charitable organization,
professional fund-raising counsel, or professional solicitor to determine
whether the charitable organization, professional fund-raising counsel, or
professional solicitor has violated the provisions of this chapter or has filed
an application or other information required under this chapter which
contains false or misleading statements. The secretary may subpoena
persons and require the production of books, papers, and other documents
to aid in the investigation of alleged violations of this chapter.
(2) If any charitable organization, professional fund-raising counsel, or
professional solicitor fails to file a registration application, statement,
report, or other information required to be filed with the secretary under
this chapter, or violates the provisions of this chapter, the secretary shall
notify the delinquent charitable organization, professional fund-raising
counsel, or professional solicitor of this fact by mailing a notice by
registered or certified mail, with return receipt requested, to its last known
address. If the required registration application, statement, annual report,
assurance of voluntary compliance, or other information is not filed or if
the existing violation is not discontinued within fifteen days after the
formal notification or receipt of the notice, the secretary may assess an
administrative fine not to exceed two thousand dollars against the
delinquent organization.
(3) In addition to all other actions authorized by law, the secretary or
Attorney General, if they have reason to believe that one or more of the
following acts or violations listed below has occurred, may bring an action
to enjoin the charitable organization, professional fund-raising counsel,
professional solicitor, or other person from continuing the act or violation,
doing any other acts in furtherance of it and for such other relief as to the
court considers appropriate:
(a) a person is knowingly and wilfully operating in violation of the
provisions of this chapter;
(b) a person has knowingly and wilfully made any false statement in
any registration application, statement, report, or other information required
to be filed by this chapter;
(c) a person has failed to file a registration statement or financial
report required by this chapter;
(d) a person is employed or is about to be employed in any solicitation
or collection of contributions any device, scheme, or artifice to defraud or
to obtain money or property by means of false pretense, representation, or
promise;
(e) the officers or representatives of a charitable organization,
professional fund-raising counsel, or professional solicitor have refused or
failed after notice to produce any records of the organization; or
(f) whenever the funds raised by solicitation activities are not devoted
or will not be devoted to the charitable purposes of the charitable
organization.
(4) In addition to the provisions of subsection (3), any person who
knowingly and wilfully violates the provisions of this chapter or who
knowingly and wilfully gives false or incorrect information to the secretary
in filing statements or reports required by this chapter, is guilty of a
misdemeanor and, upon conviction, for a first offense shall be fined not
more than one thousand dollars or be imprisoned for not more than thirty
days, and for a second or any subsequent offense shall be fined not more
than five thousand dollars or be imprisoned for not more than one year, or
both.
(5) Any registration application, statement, report, or other information
required to be filed with the Secretary of State under this chapter by a
charitable organization, professional fund-raising counsel, or professional
solicitor which contains false or misleading statements may be rejected by
the secretary and returned to the submitting party without being filed.
(6) If a person is assessed an administrative fine under this chapter, the
person has thirty days to pay the fine. After thirty days, the secretary shall
give the delinquent person thirty days' notice that he will seek to enjoin the
activities of the person. Before the secretary seeks an injunction, the
person may pay the fines or request a hearing before the secretary. A person
who fails to remit fines after the required notice is given may be enjoined
from engaging in further charitable solicitation activities until the fine is
paid. A person assessed a fine may request an evidentiary hearing before
the secretary. A person may appeal an adverse ruling by the secretary to
the circuit court. An appeal to the circuit court shall be governed by the
standard of review provided in the Administrative Procedures Act and the
case law interpreting that provision.
(7) The secretary may exercise the authority granted in this section
against a person who operates under the guise or pretense of being an
organization exempted by the provisions of Section 33-56-40 or 33-56-50
and is not in fact an organization entitled to such an exemption.
Section 33-56-150. There shall be in the office of the Secretary of
State a Division of Public Charities which, under the direction and control
of the secretary, shall perform the duties imposed upon it by the provisions
of this chapter. The executive and administrative head of the division shall
be the Director of Public Charities designated by the secretary.
Section 33-56-160. All administrative fines imposed pursuant to this
chapter must be transmitted to the State Treasurer and deposited in the state
general fund. All fees collected under this chapter must be transmitted to
the State Treasurer and deposited in a fund separate and distinct from the
state general fund and used by the Secretary of State for the purpose of
administering the provisions of this chapter.
Section 33-56-170. For purposes of Section 33-56-180:
(a) `Charitable organization' means any organization, institution,
association, society, or corporation which is exempt from taxation pursuant
to Section 501(c)(3) or 501(d) of Title 26 of the United States Code, as
amended.
(b) `Employee' means an agent, servant, employee, or officer of a
charitable organization.
Section 33-56-180. (A) Any person sustaining an injury or dying by
reason of the tortious act of commission or omission of an employee of a
charitable organization, when the employee is acting within the scope of his
employment, may only recover in an action brought against the charitable
organization for the actual damages he may sustain in an amount not
exceeding two hundred fifty thousand dollars. An action against the
charitable organization under this section constitutes a complete bar to any
recovery by the claimant, by reason of the same subject matter, against the
employee of the charitable organization whose act or omission gave rise to
the claim unless it is alleged and proved in the action that the employee
acted in a reckless, wilful, or grossly negligent manner, and the employee
must be properly joined as a party defendant. No judgment against an
employee of a charitable organization may be returned unless a specific
finding is made that the employee acted in a reckless, wilful, or grossly
negligent manner. If the charitable organization for which the employee
was acting cannot be determined at the time the action is instituted, the
plaintiff may name as a party defendant the employee, and the entity for
which the employee was acting must be added or substituted as party
defendant when it can be reasonably determined.
(B) If the actual damages from the injury or death giving rise to the
action arose from the use or operation of a motor vehicle and exceed two
hundred fifty thousand dollars, nothing in this section prevents the injured
person from recovering benefits pursuant to Section 38-77-160 but not to
exceed the limits of the uninsured or underinsured coverage.
Section 33-56-190. The secretary may enter into agreements with the
appropriate authority of any other state for the purpose of exchanging
information with respect to charitable organizations, professional
fund-raising counsel, and professional solicitors.
Section 33-56-200. The provisions of this chapter are severable. The
unconstitutionality of one section or clause does not affect the
constitutionality of the entire chapter."
Health care provider not liable
SECTION 2. The 1976 Code is amended by adding:
"Section 38-79-30. No licensed health care provider, as defined
in Section 38-79-410, who renders medical services voluntarily and without
compensation or the expectation or promise of compensation is liable for
any civil damage for any act or omission resulting from the rendering of the
services unless the act or omission was the result of the licensed health care
provider's gross negligence or wilful misconduct. The agreement to
provide a voluntary noncompensated service must be made before the
rendering of the service by the licensed health care provider."
Repeal
SECTION 3. Chapter 55, Title 33 of the 1976 Code is repealed.
Savings clause
SECTION 4. The repeal or amendment by this act of any law, whether
temporary or permanent or civil or criminal, does not affect pending
actions, rights, duties, or liabilities founded thereon, or alter, discharge,
release, or extinguish any penalty, forfeiture, or liability incurred under the
repealed or amended law, unless the repealed or amended provision shall so
expressly provide. After the effective date of this act, all laws repealed or
amended by this act must be taken and treated as remaining in full force
and effect for the purpose of sustaining any pending or vested right, civil
action, special proceeding, criminal prosecution, or appeal existing as of
the effective date of this act, and for the enforcement of rights, duties,
penalties, forfeitures, and liabilities as they stood under the repealed or
amended laws.
Circumstances for court-ordered meeting revised
SECTION 5. Section 33-7-103(a) of the 1976 Code is amended to
read:
"(a) The circuit court of the county where a corporation's
principal office (or, if none in this State, its registered office) is located may
order a meeting to be held:
(1) on application of any shareholder of the corporation entitled to
participate in an annual meeting if an annual meeting was not held within
the earlier of nine months after the end of the corporation's fiscal year or
eighteen months after its last annual meeting; or
(2) on application of a shareholder who signed a demand for a special
meeting valid under Section 33-7-102 if:
(i) notice of the special meeting was not given within thirty days
after the date the demand was delivered to the corporation's secretary;
or
(ii) the special meeting was not held in accordance with the
notice."
Number of directors for staggered terms reduced
SECTION 6. Section 33-8-106 of the 1976 Code is amended to read:
"Section 33-8-106. If there are six or more directors, the articles
of incorporation may provide for staggering their terms by dividing the
total number of directors into two or three groups, with each group
containing one-half or one-third of the total, as near as may be. The terms
of directors in the first group expire at the first annual shareholders'
meeting after their election; the terms of the third group, if any, expire at
the third annual shareholders' meeting after their election. At each annual
shareholders' meeting held thereafter, directors are chosen for a term of two
years or three years, as the case may be, to succeed those directors whose
terms expire."
Coverage further provided for
SECTION 7. Section 38-77-160 of the 1976 Code is amended to
read:
"Section 38-77-160. Automobile insurance carriers shall offer, at
the option of the insured, uninsured motorist coverage up to the limits of
the insured's liability coverage in addition to the mandatory coverage
prescribed by Section 38-77-150. Such carriers shall also offer, at the
option of the insured, underinsured motorist coverage up to the limits of the
insured liability coverage to provide coverage in the event that damages are
sustained in excess of the liability limits carried by an at-fault insured or
underinsured motorist or in excess of any damages cap or limitation
imposed by statute. If, however, an insured or named insured is protected
by uninsured or underinsured motorist coverage in excess of the basic
limits, the policy shall provide that the insured or named insured is
protected only to the extent of the coverage he has on the vehicle involved
in the accident. If none of the insured's or named insured's vehicles is
involved in the accident, coverage is available only to the extent of
coverage on any one of the vehicles with the excess or underinsured
coverage. Benefits paid pursuant to this section are not subject to
subrogation and assignment.
No action may be brought under the underinsured motorist provision
unless copies of the pleadings in the action establishing liability are served
in the manner provided by law upon the insurer writing the underinsured
motorist provision. The insurer has the right to appear and defend in the
name of the underinsured motorist in any action which may affect its
liability and has thirty days after service of process on it in which to appear.
The evidence of service upon the insurer may not be made a part of the
record. In the event the automobile insurance insurer for the putative
at-fault insured chooses to settle in part the claims against its insured by
payment of its applicable liability limits on behalf of its insured, the
underinsured motorist insurer may assume control of the defense of action
for its own benefit. No underinsured motorist policy may contain a clause
requiring the insurer's consent to settlement with the at-fault
party."
Time effective
SECTION 8. This act takes effect upon approval by the Governor.
Approved the 29th day of June, 1994. |