South Carolina General Assembly
116th Session, 2005-2006

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Bill 943


Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND SECTIONS 39-5-145 AND 39-5-147, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PRICE GOUGING AND MISLEADING CHARITABLE SOLICITATIONS, RESPECTIVELY, DURING A DECLARED STATE OF EMERGENCY OR DISASTER, SO AS TO PROHIBIT THE ACTS ALSO UPON AN OUT-OF-STATE DECLARATION OF A STATE OF EMERGENCY OR DISASTER RESULTING IN ABNORMAL DISRUPTION OF THE MARKET IN CERTAIN COMMODITIES WHEN THIS STATE IS AFFECTED, AND TO INCREASE THE CRIMINAL PENALTIES FOR PRICE GOUGING, INCLUDING A FELONY FOR THIRD AND SUBSEQUENT OFFENSES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 39-5-145 of the 1976 Code, as added by Act 339 of 2002, is further amended to read:

"Section 39-5-145.    (A)    As used in this section:

(1)    'Abnormal disruption of the market' means a change in the market for a commodity in a part of South Carolina, whether actual or imminently threatened, resulting from stress of weather, forces of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, or other cause which constitutes the basis for an out-of-state declaration.

(2)    'Area' for which a state of emergency or disaster is declared or in which an out-of-state declaration results in an abnormal disruption of the market includes an area of the State which is affected by emigration of victims from the emergency or disaster or abnormal disruption of the market.

(3)    'Commodity' means goods, services, materials, merchandise, supplies, equipment, resources, or other articles of commerce, and includes, without limitation, food, water, ice, chemicals, petroleum products, and lumber essential for consumption or use as a direct result of a declared state of emergency.

(4)    'Out-of-state declaration' means a declaration of a state of emergency, state of disaster, or similar declaration by the President of the United States or a governor of a state of the United States of America, other than the state of South Carolina.

(2)(5)(a)    'Unconscionable price means an amount charged, which:

(i)        represents a gross disparity between the price of the commodity or rental or lease of a dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility that is the subject of the offer or transaction and the average price at which that commodity or dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility was rented, leased, sold, or offered for rent or sale in the usual course of business during the thirty days immediately before a declaration of a state of emergency, and the increase in the amount charged is not attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of the dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility, or regional, national, or international market trends; or

(ii)    grossly exceeds the average price at which the same or similar commodity, dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility was readily obtainable in the trade area during the thirty days immediately before a declaration of a state of emergency, and the increase in the amount charged is not attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of the dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility, or regional, national, or international market trends.

(b)    It is prima facie evidence that a price is unconscionable if it meets the definition of item (i) or (ii).

(B)(1)    Upon a declaration of a state of emergency by the Governor, it is unlawful and a violation of this article for a person or his agent or employee to:

(a)    rent or sell or offer to rent or sell a commodity at an unconscionable price within the area for which the state of emergency is declared; or

(b)    impose unconscionable prices for the rental or lease of a dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility within the area for which the state of emergency is declared.

(2)    This prohibition remains in effect until the declaration expires or is terminated.

(C)(1)    Upon a declaration of a state of disaster by the President, in which the disaster area includes all or a portion of the State of South Carolina, it is unlawful and a violation of this article for a person or his agent or employee in this State to:

(a)    rent or sell or offer to rent or sell a commodity at an unconscionable price within the area for which the state of disaster is declared; or

(b)    impose unconscionable prices for the rental or lease of a dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility within the area for which the state of disaster is declared.

(2)    This prohibition remains in effect until the declaration expires or is terminated.

(D)(1)    When an abnormal disruption of the market occurs, it is unlawful and a violation of this article for a person or his agent or employee to:

(a)    rent or sell or offer to rent or sell a commodity at an unconscionable price in any area of this State where there is an abnormal disruption in the market; or

(b)    impose unconscionable prices for the rental or lease of a dwelling unit, including a motel or hotel unit or other temporary lodging, or self-storage facility in any area of this State where there is an abnormal disruption in the market.

(2)    This prohibition remains in effect until the out-of-state declaration expires, the declarant terminates the out-of-state declaration, or the Governor of this State declares that the out-of-state declaration has no impact in this State, whichever occurs first.

(E)    A price increase approved by an appropriate government agency is not a violation of this section.

(E)(F)    This section does not apply to sales by growers, producers, or processors of raw or processed food products, except for retail sales of those products to the ultimate consumer within the area of the declared state of emergency or disaster.

(G)    A price increase that reflects the usual and customary seasonal fluctuation in the price of the subject essential commodity or the rental or lease of a dwelling unit or self-storage facility is not a violation of this section.

(F)(H)    This section does not preempt the powers of local government, except that the evidentiary standards contained in this section are the sole evidentiary standards to be adopted by ordinance of a local government to restrict price gouging during a declared state of emergency or disaster. In the event a local government declares a state of emergency or disaster or experiences an abnormal disruption of the market in which the disaster area includes all or a portion of the area under the local government's jurisdiction, and restricts price gouging during that emergency or disaster time, the governmental entity must notify the Governor's Office of such the declaration. The Governor's Office must notify registered agents simultaneously at the time of the declaration and also at the termination of the state of emergency its expiration or termination.

(G)(I)(1)    In addition to all other remedies provided in this article, a person who wilfully and knowingly violates this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than one thousand dollars or imprisoned not more than thirty days, or both, and, for a second offense, must be punished by a fine of not more than five thousand dollars or imprisoned not more than ninety days, or both.

(2)    In addition to all other remedies provided in this article, a person who willfully and knowingly violates this section a third and subsequent times is guilty of a Class F felony and, upon conviction, must be punished by a fine of no more than ten thousand dollars or imprisoned not more than five years, or both, for each offense.

(H)(J)    Any A person who is charged with committing an action in violation of this section may present evidence relating to, but not limited to, his knowledge or intent when committing such the action in order to rebut any presumption or evidence of violation of this section."

SECTION    2.    Section 39-5-147 of the 1976 Code, as added by Act 339 of 2002, is amended to read:

"Section 39-5-147.    (A) Upon a declaration of a state of emergency by the Governor, it is unlawful and a violation of this article for a person or his agent or employee to solicit the contribution or sale of goods or services for charitable purposes by any manner, means, practice, or device that is knowingly and wilfully misleading.

(B)    Upon a declaration of a state of disaster by the President, in which the disaster areas include all or a portion of the State of South Carolina, it is unlawful and a violation of this article for a person or his agent or employee to solicit in this State the contribution or sale of goods or services for charitable purposes by any manner, means, practice, or device that is knowingly and wilfully misleading.

(C)    Upon an out-of-state declaration resulting in an abnormal disruption of the market, as each is defined in Section 39-5-145, in which the affected areas include all or a portion of South Carolina, it is unlawful and a violation of this article for a person or his agent or employee to solicit in this State the contribution or sale of goods or services for charitable purposes by any manner, means, practice, or device that is knowingly and wilfully misleading.

(D)    These prohibitions remain in effect until the declaration of emergency or disaster expires or is terminated.

(D)(E)    In addition to all other remedies provided in this article, a person who wilfully violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than thirty days, or both."

SECTION    3.    This act takes effect upon approval by the Governor.

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