TITLE 40 - TRADE AND COMMERCE
CHAPTER 1 - TRADEMARKS AND SERVICE MARKS
40-1-101.� Definitions.
(a)� The term "trademark" as used in this act means any word, name, symbol, or device or any combination thereof adopted and used by a person to identify and distinguish the goods of such person, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown.
(b)� The term "service mark" as used in this act means any word, name, symbol or device or any combination thereof used by a person, to identify and distinguish the services of one (1) person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor.
(c)� The term "mark" as used in this act includes any trademark or service mark entitled to registration under this act whether registered or not.
(d)� The term "person" and any other word or term used to designate the applicant or other party entitled to a benefit or privilege or rendered liable under the provisions of this act includes a juristic person as well as a natural person.� The term "juristic person" includes a firm, partnership, corporation, association, union or other organization or business entity capable of suing and being sued in a court of law.
(e)� The term "applicant" as used in this act embraces the person filing an application for registration of a mark under this act, and the legal representatives, successors or assigns of such person.
(f)� The term "registrant" as used in this act embraces the person to whom the registration of a mark under this act is issued and the legal representatives, successors or assigns of such person.
(g)� The term "use" in this act means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. For the purposes of this act, a mark shall be deemed to be in use in this state:
(i)� On goods when it is placed in any manner on the goods or other containers on the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and the goods are sold or transported in commerce in this state; and
(ii)� On services when it is used or displayed in the sale or advertising of services and the services are rendered in this state.
(h)� A mark shall be deemed to be "abandoned" under this act when either of the following occurs:
(i)� When its use has been discontinued with the intent not to resume such use.� Intent not to resume may be inferred from circumstances.� Nonuse for two (2) consecutive years shall constitute prima facie evidence of abandonment;
(ii)� When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.
(j)� The term "dilution" as used in this act means the lessening of the capacity of a registrant's mark to identify and distinguish goods or services, regardless of the presence or absence of:
(i)� Competition between the parties; or
(ii)� Likelihood of confusion, mistake or deception.
(k)� The term "secretary" as used in this act means the secretary of state or the designee of the secretary charged with the administration of this act.
(m)� "This act" means W.S. 40-1-101 through 40-1-116.
40-1-102.� Marks which cannot be registered.
(a)� A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it:
(i)� Consists of or comprises immoral, deceptive or scandalous matter; or
(ii)� Consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or
(iii)� Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof; or
(iv)� Consists of or comprises the name, signature or portrait identifying a particular living individual, except by the individual's written consent; or
(v)� Consists of a mark which, (A) when used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them, or (B) when used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them, or (C) is primarily merely a surname; provided, however, that nothing in this paragraph shall prevent the registration of a mark used in this state by the applicant which has become distinctive of the applicant's goods or services. The secretary may accept as evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services, proof of continuous use thereof as a mark by the applicant in this state or elsewhere for the five (5) years before the date on which the claim of distinctiveness is made; or
(vi)� Consists of or comprises a mark which is the same as, or deceptively similar to, a mark registered in this state, a trade name or the name of a juristic person, or a mark or trade name previously used in this state by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive.
40-1-103.� Application for registration; filing fee.
(a)� Subject to the limitations set forth in this act, any person who uses a mark in this state may file in the office of the secretary, in a manner complying with the requirements of the secretary, an application for registration of that mark setting forth, but not limited to, the following information:
(i)� The name and business address of the person applying for such registration; and, if a corporation, the state of incorporation, or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary, or similar information for other juristic persons, as specified by the secretary;
(ii)� The goods or services on or in connection with which the mark is used and the mode or manner in which the mark is used on or in connection with such goods or services and the class in which such goods or services fall;
(iii)� The date when the mark was first used anywhere and the date when it was first used in this state by the applicant or a predecessor in interest;
(iv)� A statement that the applicant is the owner of the mark, that the mark is in use and that to the knowledge of the person verifying the application, no other person has registered, either federally or in this state, or has the right to use such mark either in the identical form thereof or in such near resemblance as to be likely, when applied to the goods or services of such other person, to cause confusion or to cause mistake or to deceive; and
(v)� If required by the secretary, a statement as to whether an application to register the mark, or portions or a composite, has been filed by the applicant or a predecessor in interest in the United States patent and trademark office; and, if so, the applicant shall provide full particulars including the filing date and serial number of each application, the status and, if any application was finally refused registration or has otherwise not resulted in a registration, the reasons therefor.
(b)� The application shall be signed and verified by oath, affirmation or declaration subject to perjury laws by the applicant or by a member of the firm or an officer of the corporation or association applying.
(c)� The application shall be accompanied by a specimen or facsimile of such mark in triplicate. The secretary may also require that a drawing of the mark, complying with requirements as the secretary may specify, accompany the application.
(d)� The application for registration shall be accompanied by a filing fee,� set in accordance with W.S. 40-1-116, but not to exceed three hundred dollars ($300.00) and payable to the secretary.
40-1-104.� Examination of application; amendment of application.
(a)� Upon the filing of an application for registration and payment of the application fee, the secretary may cause the application to be examined for conformity with this act.
(b)� The applicant shall provide any additional pertinent information requested by the secretary, including a description of a design mark and may make or authorize the secretary to make such amendments to the application as may be reasonably requested by the secretary or deemed by the applicant to be advisable to respond to any rejection or objection.
(c)� The secretary may require the applicant to disclaim an unregisterable component of a mark otherwise registerable and an applicant may voluntarily disclaim a component of a mark sought to be registered.� No disclaimer shall prejudice or affect the applicant's or registrant's rights then existing or thereafter arising in the disclaimed matter, or the applicant's or registrant's rights of registration on another application if the disclaimed matter be or shall have become distinctive of the applicant's or registrant's goods or services.
(d)� Amendments may be made by the secretary upon the application submitted by the applicant upon the applicant's agreement or a fresh application may be required to be submitted.
(e)� If the applicant is found not to be entitled to registration, the secretary shall advise the applicant of the reasons.� The applicant shall have a reasonable period of time specified by the secretary in which to reply or to amend the application, in which event the application shall then be reexamined.� This procedure may be repeated until (A) the secretary finally refuses registration of the mark or (B) the applicant fails to reply or amend within the specified period, whereupon the application shall be deemed to have been abandoned.
40-1-105.� Term of registration; renewals.
(a)� Registration of a mark is effective for a term of five (5) years from the date of registration and, upon application filed within six (6) months prior to the expiration of such term, in a manner complying with the requirements of the secretary, the registration may be renewed for a like term from the end of the expiring term. A renewal fee set in accordance with W.S. 40-1-116, but not to exceed one hundred fifty dollars ($150.00) and payable to the secretary, shall accompany the application for renewal of the registration.
(b)� Renewal periods. - A mark registration may be renewed for successive periods of five (5) years in like manner. All applications for renewal under this act, whether of registrations made under this act or of registrations effected under any prior act, shall include a verified statement that the mark has been and is still in use and include a specimen showing actual use of the mark on or in connection with the goods or services.
(c)� Repealed By Laws 1997, ch. 112, � 3.
(d)� Existing registration. - Any registration in force on the date on which this act shall become effective shall continue in full force and effect for the unexpired term and may be renewed by filing an application for renewal with the secretary, complying with the requirements of the secretary, and paying the aforementioned renewal fee within six (6) months prior to the expiration of the registration.
(e)� Repealed By Laws 1997, ch. 112, � 3.
40-1-106.� Assignment of marks and registration; change of name.
(a)� Any mark and its registration under this act shall be assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark. Assignment shall be by instruments in writing duly executed and may be recorded with the secretary upon the payment of a fee set in accordance with W.S. 40-1-116, but not to exceed seventy-five dollars ($75.00) and payable to the secretary. Upon recording of the assignment, the secretary shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal thereof. An assignment of any registration under this act shall be void as against any subsequent purchaser for valuable consideration without notice, unless it is recorded with the secretary within three (3) months after the date thereof or prior to such subsequent purchase.
(b)� Any registrant or applicant effecting a change of the name of the person to whom the mark was issued or for whom an application was filed may record a certificate of change of name of the registrant or applicant with the secretary upon the payment of the recording fee.� The secretary may issue in the name of the assignee a certificate of registration of an assigned application.� The secretary may issue in the name of the assignee, a new certificate or registration for the remainder of the term of the registration or last renewal thereof.
(c)� A photocopy or photograph of any instrument referred to in subsections (a) and (b) of this section shall be accepted for recording if it is certified by the applicant, or their successors, to be a true and correct copy of the original.
40-1-107. �Public record of marks.
The secretary shall keep for public examination a record of all marks registered or renewed under this act.
40-1-108.� Cancellation of registration.
(a)� The secretary shall cancel from the register in whole or in part:
(i)� Repealed By Laws 1997, ch. 112, � 3.
(ii)� Any registration concerning which the secretary shall receive a voluntary request for cancellation thereof from the registrant or the assignee of record and shall receive payment of a fee set in accordance with W.S. 40-1-116, but not to exceed thirty dollars ($30.00);
(iii)� All registrations granted under this act and not renewed in accordance with the provisions hereof;
(iv)� Any registration concerning which a court of competent jurisdiction shall find:
(A)� That the registered mark has been abandoned;
(B)� That the registrant is not the owner of the mark;
(C)� That the registration was granted improperly;
(D)� That the registration was obtained fraudulently;
(E)� That the registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in the United States patent and trademark office, prior to the date of the filing of the application for registration by the registrant hereunder, and not abandoned; provided, however, that should the registrant prove that the registrant is the owner of a concurrent registration of his mark in the United States patent and trademark office covering an area including this state, the registration hereunder shall not be cancelled;
(F)� That the mark is or has become the generic name for the goods or services, or a portion thereof, for which it has been registered.
(v)� When a court of competent jurisdiction shall order cancellation of a registration on any ground.
40-1-109.� Classification of marks.
(a)� Repealed By Laws 1997, ch. 112, � 3.
(b)� Repealed By Laws 1997, ch. 112, � 3.
(c)� The secretary shall by regulation establish a classification of goods and services for marks for the convenience of administration of this act, but not to limit or extend the applicant's or registrant's rights.
40-1-110.� False or fraudulent representations or declarations; liability for damages sustained.
Any person who shall for himself, or on behalf of any other person, procure the filing or registration of any mark in the office of the secretary under the provisions of this act, by knowingly making any false or fraudulent representation or declaration, orally or in writing, or by any other fraudulent means, shall be liable to pay all damages sustained in consequence of such filing or registration, to be recovered by or on behalf of the party injured thereby in any court of competent jurisdiction.
40-1-111.� Civil liability.
Subject to the provisions of W.S. 40-1-113 any person who shall (a) use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this act in connection with the sale, distribution, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services, or (b) reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in conjunction with the sale or other distribution in this state of such goods or services, shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in W.S. 40-1-112, except that under subsection (b) hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.
40-1-112.� Remedies.
(a)� Any owner of a mark registered under this act may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display, or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case, be delivered to an officer of the court, or to the complainant, to be destroyed. The court, in its discretion, may enter judgment for an amount not to exceed three (3) times such profits and damages and reasonable attorneys' fees of the prevailing party in such cases where the court finds the other party committed such wrongful acts with knowledge or in bad faith or otherwise as according to the circumstances of the case.
(b)� The enumeration of any right or remedy herein shall not affect a registrant's right to prosecute under any penal law of this state.
40-1-113.� Marks acquired at common law.
Nothing in this act shall adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.
40-1-114.� Inapplicable to livestock brands, marks or tags.
This act shall not be construed to apply to brands, marks or tags on livestock.
40-1-115.� Injury to business reputation; dilution.
(a)� The owner of a mark which is famous in this state shall be entitled, subject to the principles of equity, to an injunction against another's use of a mark, commencing after the owner's mark becomes famous, which causes dilution of the distinctive quality of the owner's mark, and to obtain such other relief as is provided in this section.� In determining whether a mark is famous, a court may consider factors such as, but not limited to:
(i)� The degree of inherent or acquired distinctiveness of the mark in this state;
(ii)� The duration and extent of use of the mark in connection with the goods and services;
(iii)� The duration and extent of advertising and publicity of the mark in this state;
(iv)� The geographical extent of the trading area in which the mark is used;
(v)� The channels of trade for the goods or services with which the owner's mark is used;
(vi)� The degree of recognition of the owner's mark in its and in the other's trading areas and channels of trade in this state; and
(vii)� The nature and extent of use of the same or similar mark by third parties.
(b)� The owner shall be entitled only to injunctive relief in this state in an action brought under this section, unless the subsequent user willfully intended to trade on the owner's reputation or to cause dilution of the owner's mark.� If such willful intent is proven, the owner shall also be entitled to the remedies set forth in this act, subject to the discretion of the court and the principles of equity.
40-1-116.� Powers of secretary of state; filing and other fees.
(a)� The secretary has the power reasonably necessary to perform the duties required of him by this act including the promulgation of rules and regulations necessary to carry out the purposes of this act.
(b)� The secretary shall set and collect filing, service and copying fees to recover the costs of providing those services and administering this act.� Fees shall not exceed the costs of providing these services and administering this act.
CHAPTER 2 - TRADE NAMES REGISTRATION
40-2-101.� Definitions.
(a)� As used in this act unless the context otherwise requires:
(i)� "Applicant" means a person filing an application for registration or reservation of a trade name under this act, his legal representatives, successors or assigns;
(ii)� "Person" means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two (2) or more of the foregoing having a joint or common interest, or any other legal or commercial entity;
(iii)� "Registrant" means a person to whom registration of a trade name under this act is issued, his legal representatives, successors or assigns;
(iv)� "Trade name" means a word, name, or any combination of the foregoing in any form or arrangement used by a person to identify his business, vocation, or occupation and distinguish it from the business, vocation or occupation of others;
(v)� "This act" means W.S. 40-2-101 through 40-2-109.
40-2-102.� Registrability.
(a)� A trade name shall not be registered if it:
(i)� Is the same as, or deceptively similar to, a trademark or service mark registered in this state, or is not distinguishable from the names of other business entities as required by W.S. 17-16-401;
(ii)� Contains any word or phrase which indicates that it is engaged in the business of banking or insurance, except as provided in subsections (b) through (d) of this section.
(b)� National banking associations previously approved by the comptroller of the currency, whose principal place of business is located within the state of Wyoming and who are actively engaged in the business of banking on the effective date of this act may be registered with the Wyoming secretary of state and entitled to all of the protection of other registered trade names.
(c)� Any person desiring to register a bank trade name for any proposed national banking association shall comply with the provisions of this act. The secretary of state shall conditionally approve the proposed trade name if not the same as or deceptively similar to any trade name registered under this act, a trademark or service mark registered in this state or the name of a corporation incorporated or authorized to do business in this state, or which is exclusively reserved under W.S. 17-16-402. Conditional approval shall expire in twelve (12) months unless extended for good cause for an additional period of six (6) months. Conditional approval shall not become final and the name registered until the applicant has received approval to engage in the business of banking by the comptroller of the currency, and actually engages in the business of banking in this state.
(d)� Any person desiring to conditionally register a bank trade name for any proposed Wyoming state chartered bank shall comply with the provisions of this act.� The secretary of state shall conditionally approve the proposed trade name if it is not the same as or deceptively similar to any trademark or service mark registered in this state, and is distinguishable upon the records of the secretary of state from other business names as required by W.S. 17-16-401.� Conditional approval shall expire in twelve (12) months but may be extended for good cause for an additional six (6) months.� The conditional approval shall terminate upon approval of the proposed charter by the Wyoming state banking commissioner and the Wyoming state banking board and the filing of the bank's articles of incorporation with the secretary of state since at that time the name of the state chartered bank will be protected by W.S. 17-16-401(b).
40-2-103.� Reservation.
(a)� Any person intending to adopt a trade name for use and intending to apply for registration of a trade name may reserve the trade name in the following manner. Reservation shall be made by filing an application with the secretary of state to reserve a specified trade name, executed by the applicant. If the secretary of state finds that the name is available for use, and upon payment of thirty dollars ($30.00), he shall reserve the name for the exclusive use of the applicant for a period of one hundred twenty (120) days. The reservation is not renewable.
(b)� The right to the exclusive use of a specified trade name so reserved may be transferred to any other person by filing a notice of the transfer in the office of the secretary of state, executed by the applicant for whom the name was reserved and specifying the name and address of the transferee.
40-2-104.� Application for registration.
(a)� Subject to the limitations set forth in this act and upon payment of one hundred dollars ($100.00), any person who adopts a trade name for use in this state may file an application for registration of the trade name in duplicate in the office of the secretary of state on forms furnished by the secretary of state setting forth, but not limited to, the following information:
(i)� The name and business address of the applicant for registration, and if a corporation, the state of incorporation;
(ii)� The trade name sought to be registered;
(iii)� The general nature of the business in fact conducted by the applicant;
(iv)� The signature of the applicant acknowledged before a notarial officer.
(b)� Upon compliance by the applicant with the requirements of this act, the secretary of state shall return a duplicate copy of the application for registration to the applicant stamped with the date of filing.
40-2-105.� Duration and renewal.
(a)� Registration of a trade name under this act is effective for ten (10) years. Within six (6) months prior to the expiration of a term, registration may be renewed for additional ten (10) year periods. A renewal fee of fifty dollars ($50.00) shall accompany an application for renewal of registration. The application for renewal shall include a statement that the trade name is still in use in this state. Notification of expiration and the forms for application for renewal shall be furnished to the registrant by the secretary of state.
(b)� The secretary of state shall notify registrants of trade names of the necessity of renewal within the year next preceding the expiration of the ten (10) years from the date of registration or renewal by writing to the last known address of the registrants.
40-2-106.� Assignment.
Any trade name registered under this act is assignable with the goodwill of the business in which the trade name is used. Assignment shall be by an instrument in writing duly executed and shall be recorded with the secretary of state upon payment of twenty-five dollars ($25.00). Upon recording the assignment, the secretary of state shall issue a certificate in the name of the assignee for the remainder of the term of the registration.
40-2-107.� Cancellation.
(a)� The secretary of state shall cancel from the registration record:
(i)� Any registration upon request for cancellation from the registrant or the assignee of record and upon payment of a fee of ten dollars ($10.00) to the secretary of state to be credited to the general fund;
(ii)� Any registration granted under this act and not renewed in accordance with its provisions;
(iii)� Any registration if a court of competent jurisdiction finds:
(A)� That the registered trade name has been abandoned;
(B)� That the registrant is not the owner of the trade name;
(C)� That the registration was granted improperly; or
(D)� That the registration was obtained fraudulently.
40-2-108.� Fraudulent registration.
Any person who procures the registration of any trade name in the office of the secretary of state under the provisions of this act, by knowingly making any false or fraudulent representation or declaration, verbally or in writing, or by any other fraudulent means, is liable for the payment of all damages sustained in consequence of the filing or registration and the costs of the action together with reasonable attorneys' fees as determined by the court, to be recovered in any court of competent jurisdiction by any party injured.
40-2-109.� Common-law rights.
This act shall not adversely affect rights in trade names, or the enforcement of rights in trade names, acquired at any time in good faith at common law.
CHAPTER 3 - MULTILEVEL AND PYRAMID DISTRIBUTORSHIPS
40-3-101.� Short title.
This act may be cited as the "Wyoming Multilevel and Pyramid Distributorship Act."
40-3-102.� Definitions.
(a)� As used in this act:
(i)� "Multilevel distribution companies" means any person, firm, corporation or other business entity which sells, distributes or supplies for a valuable consideration, goods or services through independent agents, contractors or distributors, at different levels wherein such participants may recruit other participants, and wherein commissions, cross-commissions, bonuses, refunds, discounts, dividends or other considerations in the program are, or may be, paid as a result of the sale of such goods or services or the recruitment, actions or performances of additional participants;
(ii)� "Multilevel distribution marketing plan" means any agreement for a definite or indefinite period, either expressed or implied, in which a person agrees, for a valuable consideration, to distribute goods or services of a multilevel distribution company to members of the public or to persons who occupy different levels in the multilevel distribution company's distribution system;
(iii)� "Distributor" means any independent contracted person, agent, employer or participant who has agreed to perform, at one (1) or more levels in a multilevel distribution marketing plan, the functions of distributing the goods or services of the multilevel distribution company or the recruitment of subordinate distributors or both functions;
(iv)� "Resalable condition" means products that will pass without objection in the trade, or are still fit for the ordinary purposes for which the products are used;
(v)� "Referral sale" means any inducement offered to a person, for the purpose of selling a product or service, which is the opportunity to receive compensation without exercising a bona fide and commensurate responsibility for the sale of the product or service to the ultimate customer; or any offer to a person of an opportunity to receive compensation related to the recruitment of third persons who will be entitled to substantially similar recruiting opportunities when the offer is used as an inducement for the payment of an entrance fee, given toward a purchase or other consideration, except for the actual cost of necessary sales materials by the persons to whom the offer is made;
(vi)� "Endless chain" means any scheme or plan for the disposal or distribution of property or services whereby a participant pays a valuable consideration for the chance to receive compensation for introducing one (1) or more additional persons into participation in the scheme or plan or for the chance to receive compensation when the person introduced by the participant introduces a new participant;
(vii)� "Documentary material" means the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, other tangible document or recording, reproductions of information stored magnetically, file layout, code conversion tables, computer programs to convert file to readable printout, wherever situate.
40-3-103.� Endless chains and referral sales prohibited.
No person may contrive, prepare, set up, propose or operate an endless chain or referral sale.
40-3-104.� Prohibitions and requirements.
Every multilevel distribution company shall provide in its contract of participation that the contract may be cancelled for any reason at any time by a participant upon notification in writing to the company of his election to cancel. If the participant has purchased products while the contract of participation was in effect, all unencumbered products in a resalable condition then in the possession of the participant shall be repurchased by the multilevel distribution company. The repurchase shall be at a price of not less than ninety percent (90%) of the original net cost to the participant returning such goods, taking into account any sales made by or through such participant prior to notification to the company of the election to cancel.
40-3-105.� Restrictions on marketing programs.
(a)� No multilevel distribution company, nor any participant, shall require participants in its marketing program to purchase products or services or pay any other consideration in order to participate in the marketing program unless the multilevel distribution company agrees in writing:
(i)� To repurchase all or part of any products which are unencumbered and in a resalable condition at a price of not less than ninety percent (90%) of the original net cost to the participant, taking into account any sales made by or through such participant prior to notification to the company of election to cancel;
(ii)� To repay not less than ninety percent (90%) of the original net cost of any services purchased by the participants; or
(iii)� To refund not less than ninety percent (90%) of any other consideration paid by the participant in order to participate in the marketing program.
40-3-106.� Additional restrictions in marketing programs.
(a)� No multilevel distribution company or participant in its marketing program shall:
(i)� Operate or, directly or indirectly, participate in the operation of any multilevel marketing program wherein the financial gains to the participants are primarily dependent upon the continued, successive recruitment of other participants and where sales to nonparticipants are not required as a condition precedent to realization of the financial gains;
(ii)� Offer to pay, pay or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend or other consideration to any participant in a multilevel marketing program solely for the solicitation or recruitment of other participants therein;
(iii)� Offer to pay, pay or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend or other consideration to any participant in a multilevel marketing program in connection with the sale of any product or service unless the participant performs a bona fide supervisory, distributive, selling or soliciting function in the sale or delivery of the product or services to the ultimate consumer; or
(iv)� Offer to pay, pay or authorize the payment of any finder's fee, bonus, refund, override, commission, cross-commission, dividend or other consideration to any participant:
(A)� If payment thereof is or would be dependent on the element of chance dominating over the skill or judgment of the participant;
(B)� If no amount of judgment or skill exercised by the participant has any appreciable effect upon any finder's fee, bonus, refund, override, commission, cross-commission, dividend or other consideration which the participant may receive; or
(C)� If the participant is without that degree of control over the operation of the plan as to enable him substantially to affect the amount of finder's fee, bonus, refund, override, commission, cross-commission, dividend or other consideration which he may receive or be entitled to receive.
40-3-107.� Representations of prospective income restricted.
Multilevel distribution companies shall not represent directly or by implication that participants in a multilevel marketing program will earn or receive any stated gross or net amount, or represent in any manner the past earnings of participants. A written or verbal description of the manner in which the marketing plan operates shall not, standing alone, constitute a representation of earnings, past or future. Multilevel distribution companies shall not represent directly or by implication, that it is relatively easy to secure or retain additional distributors or sales personnel or that all or substantially all participants will succeed.
40-3-108.� Licensed activities excluded.
Nothing in W.S. 40-3-101 through 40-3-125 shall apply to acts or practices permitted under the laws of this state or under rules, regulations or decisions interpreting the laws, or to any person who has procured a license as provided by W.S. 39-17-106(a) or (b).
40-3-109.� Notice of activity and consent to service of process.
Each multilevel distribution company numbering among its participants any resident of this state shall file with the state's attorney general a statement giving notice of this fact and designating the secretary of state of this state its agent for service of process for any alleged violation of this act. The written notice shall further set forth the intention of the multilevel distribution company to abide by the provisions of this act. Compliance with this section shall not subject any multilevel distribution company to the provisions or consequences of any other statute of this state.
40-3-110.� Secretary of state agent for service of process for violations.
Any multilevel distribution company, which fails to comply with W.S. 40-3-109 is deemed to have thereby appointed the secretary of state its agent for service of process for any alleged violation of this act.
40-3-111.� Investigatory powers.
(a)� If the attorney general has reason to believe that a person has engaged in activity which violates the provisions of this act, he shall make an investigation to determine if this act has been violated, and, to the extent necessary for this purpose, may administer oaths or affirmations, and, upon his own motion or upon request of any party, may subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of admissible evidence.
(b)� If the person's records are located outside this state, the person at his option shall either make them available to the attorney general at a convenient location within this state or pay the reasonable and necessary expenses for the attorney general or his representative to examine them at the place where they are maintained. The attorney general may designate representatives, including comparable officials of the state in which the records are located, to inspect them on his behalf.
(c)� Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the attorney general may apply to the district court for an order compelling compliance.
40-3-112.� Service of process.
(a)� Service of any type of process authorized by this act shall be personal within this state, but if such personal service cannot be obtained, substituted service may be made in the following manner:
(i)� By service as provided by W.S. 40-3-109 and 40-3-110;
(ii)� By service on the secretary of state;
(iii)� Personal service without the state;
(iv)� By registered or certified mail to the last known place of business, residence or abode of such persons for whom it is intended;
(v)� As to any person other than a natural person, in the manner provided in the rules of civil procedure as if a complaint or other pleading which institutes a civil action has been filed; or
(vi)� By such service as a district court may direct in lieu of personal service within this state.
40-3-113.� Venue of action for injunctive relief.
An action under this act may be brought in the district court of the county in which the alleged violator resides or has his place of business or in the district court of Laramie county, Wyoming.
40-3-114.� Injunctive relief against violations; remedy not exclusive.
The attorney general may, whenever it appears to him that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this act or any rule or order hereunder, bring an action in the name of the people of the state in a district court to enjoin the acts or practices or to enforce compliance with this act or any rule or order hereunder. Upon a proper showing, a permanent or preliminary injunction or restraining order shall be granted. The court shall not require the attorney general to post a bond. This section is not deemed to be exclusive of the remedies available to the state and the criminal penalties found in this act may also apply to individuals who are the subject of an action brought under this section.
40-3-115.� Civil penalty for violating injunction.
The attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than five thousand dollars ($5,000.00) per violation from any person who violates the terms of an injunction issued under W.S. 40-3-114.
40-3-116.� Acceptance of assurance of voluntary compliance authorized.
In the enforcement of this act, the attorney general may accept an assurance of voluntary compliance with respect to any act or practice alleged to be violative of this act from any person who has engaged in, is engaging in or is about to engage in such act or practice.
40-3-117.� Jurisdiction retained by court.
The court shall retain jurisdiction in any case where an injunction is entered or a consent agreement is reached or an assurance of voluntary compliance is agreed upon.
40-3-118.� Additional relief authorized; appointment of receiver.
The court may make such additional orders or judgments as may be necessary to restore to any person in interest any monies or property, real or personal, which the court finds to have been acquired by means of any act or practice committed in violation of this act. Such additional relief may include the appointment of a receiver whenever it appears to the satisfaction of the court that the defendant threatens or is about to remove, conceal or dispose of his property to the damage of persons to whom restoration would be made under this act.
40-3-119.� Receiver's power to acquire and dispose of property.
Any receiver appointed pursuant to W.S. 40-3-118 has the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, monies and effects, land and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description derived in violation of this act by any multilevel distribution company or any distributor in any multilevel distribution marketing plan sponsored by such company, including property which has been commingled with company or distributor property, if it cannot be identified in kind because of such commingling, and to sell, convey and assign the same and hold and dispose of the proceeds thereof under the direction of the court.
40-3-120.� Civil penalty for willful violation; willful violation defined.
In any action brought pursuant to this act, if the court finds that any person has engaged in prohibited activities in willful violation of or in reckless disregard for any provision of this act, the attorney general or county attorney in any county in which the violation occurred, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars ($2,000.00) per violation. For purposes of this section, a willful or reckless disregard occurs when the party committing the violation knew or should have known that his conduct was a violation of this act.
40-3-121.� Property acquisition and disposition remedy available in action for private remedy.
The remedy provided by W.S. 40-3-119 is available to any person in any action brought for a private remedy against any multilevel distribution company or any distributor in the multilevel distribution marketing plan sponsored by the company.
40-3-122.� Penalties for violations; other criminal remedies unimpaired.
Any person who willfully violates any provision of this act, or who willfully violates any rule or order under this act, shall upon conviction be fined not more than five hundred dollars ($500.00) or imprisoned in a county jail for not more than one (1) year, or be punished by both such fine and imprisonment, but no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order. Nothing in this act limits the power of the state to punish any person for any conduct which constitutes a crime under any other statute.
40-3-123.� Limitation of actions.
No action shall be maintained to enforce any liability created under this act unless brought before the expiration of three (3) years after the act or transaction constituting the violation or the expiration of one (1) year after the discovery by the plaintiff of the fact constituting the violation.
40-3-124.� Causes of action under other law unimpaired.
Nothing in this act shall in any way affect causes of action arising under other laws of this state or under the common law brought by any private person.
40-3-125.� Severability of provisions.
If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one (1) or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
CHAPTER 4 - DISCRIMINATION
40-4-101.� What constitutes unfair discrimination; penalty; exceptions.
(a)� Any person, firm, corporation, foreign or domestic, or other entity doing business in the state of Wyoming and engaged in the production, manufacture, sale or distribution of any commodity in general use, shall not:
(i)� Make, enter into, form or become a party to any plan, contract, agreement, consolidation, merger or combination of any kind whatsoever to prevent competition or to control or influence production or prices thereof.
(ii)� Repealed By Laws 2009, Ch. 172, � 2.
(iii)� Repealed By Laws 2009, Ch. 172, � 2.
(b)� Any person, firm, corporation or other entity violating subsection (a) of this section is guilty of unfair discrimination and any agreement, contract, whether express or implied, or any provision of an agreement or contract violating subsection (a) of this section is illegal and void to the extent it violates subsection (a) of this section.
(c)� This chapter shall not:
(i)� Repealed By Laws 2009, Ch. 172, � 2.
(ii)� Repealed By Laws 2009, Ch. 172, � 2.
(iii)� Prevent the sale of goods at commercial discounts customary in the sale of the goods;
(iv)� Prohibit cooperative agreements for antitrust exceptions approved and operating pursuant to W.S. 35-24-101 through 35-24-116;
(v)� Prohibit the development, agreement on and use of standards designed to permit or encourage competition or interoperability among products or services, provided the standards do not include provisions fixing or colluding on the prices or colluding to prevent competition by limiting the availability of the products or services;
(vi)� Prohibit any person, firm, corporation or other entity from entering into any agreement or contract with a customer which specifies the price charged, or the services furnished, to the customer, or which gives discounts or additional services to the customer for purchasing specified volumes or multiple products of the same or similar product or service; or
(vii)� Prohibit any person, firm, corporation or other entity from offering a customer loyalty program.
(d)� As used in this chapter "this act" means W.S. 40-4-101 through 40-4-105, 40-4-107, 40-4-109, 40-4-110 and 40-4-114.
40-4-102.� Duty of attorney general and county attorney upon complaint.
If complaint shall be made to the attorney general of the state of Wyoming, or the county attorney of any county thereof, that any corporation, chartered in this state or any foreign corporation, doing business in this state by virtue of compliance with the laws thereof, or any person or firm of persons doing business in this state, is guilty of unfair discrimination, within the terms of this act, it shall be the duty of the attorney general, and the county attorneys of this state to institute an inquiry as to such discrimination, giving to the party complained against notice and reasonable opportunity to be heard, and if in the judgment of such prosecuting officers, or either of them, any corporation, foreign or domestic, or any person or firm of persons shall have been guilty of unfair discrimination, within the terms of this act, it shall be their duty to institute quo warranto proceeding, to forfeit the charter of said domestic corporation, or if a foreign corporation to procure an order of court to cause the permit of said corporation to do business in this state, immediately forfeited.
40-4-103.� Ouster of corporation for doing business after revocation of charter or permit.
If after the revocation of such charter, in the case of domestic corporation; or if its permit, if it be a foreign corporation, any corporation shall continue or attempt to do business in the state of Wyoming, it shall be the duty of the attorney general, by a proper suit, in the name of the state of Wyoming to oust such corporation from all business of every kind and character in said state of Wyoming.
40-4-104.� Penalty for violation of provisions.
Any person, firm or corporation violating any of the provisions of this chapter shall be fined in any sum not more than five thousand dollars ($5,000.00), or by imprisonment in the county jail not exceeding one (1) year, or both such fine and imprisonment.
40-4-105.� Cumulative remedies.
Nothing in this act shall be construed as repealing any other act or part of an act, but the remedies herein provided shall be cumulative to all other remedies, provided by law.
40-4-106.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-107.� Sale at less than cost prohibited; cost defined.
(a)� It shall be unlawful for any person, partnership, firm, corporation, joint-stock company, or other association engaged in business within this state, to sell, offer for sale or advertise for sale any article or product, at less than the cost thereof to such vendor, or give, offer to give or advertise the intent to give away any article or product for the purpose of injuring competitors and destroying competition.
(b)� The term cost as applied to production or manufacturing is hereby defined as including the cost of raw materials and labor and as applied to distribution cost shall mean the invoice or replacement cost, whichever is lower, of the article or product to the distributor and vendor plus any freight charges, all applicable federal, state and local taxes and any charges imposed by federal, state or local government that are not taxes that are paid by the distributor and vendor and are not included in the invoice cost.
(c)� Repealed By Laws 2009, Ch. 172, � 2.
40-4-108.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-109.� Proof of intent; cost survey as evidence of cost.
In any injunction proceeding or in the prosecution of any person as officer, director or agent, it shall be sufficient to allege and prove the unlawful intent of the person, firm or corporation for whom or which he acts. Where a particular trade or industry, of which the person, firm or corporation complained against is a member, has an established cost survey for the locality and vicinity in which the offense is committed, the said cost survey shall be deemed competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of this act.
40-4-110.� Persons, agreements and transactions exempted from W.S. 40-4-107 and 40-4-109.
(a)� The provisions of W.S. 40-4-107 and 40-4-109 shall not apply to any sale made:
(i)� In closing out in good faith the owner's stock or any part thereof for the purpose of discontinuing his trade in any such stock or commodity, and in the case of the sale of seasonal goods or to the bona fide sale of perishable goods to prevent loss to the vendor by spoilage or depreciation, provided notice is given to the public thereof;
(ii)� When the goods are damaged or deteriorated in quality, and notice is given to the public thereof;
(iii)� By an officer acting under the orders of any court;
(iv)� In an endeavor made in good faith to meet the prices of a competitor selling the same or similar article or product in the same locality or trade area;
(v)� When the goods are sold for promotional purposes at a special sale of limited duration including but not limited to a grand opening sale, an annual anniversary sale, an annual customer appreciation sale or a community, neighborhood or mall wide sale;
(vi)� In a sale of limited duration to reduce inventory, dispose of slow selling items or dispose of items replaced or to be replaced by new models;
(vii)� Of any products in a class of products where the prices are identical for the same volume throughout the class provided the total revenues from all the sales of products of that class by the vendor exceed the costs as defined in W.S. 40-4-107.� For pharmaceuticals, for the purposes of this subsection, prices are identical if they are identical for a supply for a defined period of time even though the physical quantities of pharmaceuticals may be different.
(b)� Any person, firm or corporation who performs work upon, renovates, alters or improves any personal property belonging to another person, firm or corporation, shall be construed to be a vendor within the meaning of this act.
(c)� W.S. 40-4-107 through 40-4-110 shall not apply to any person entering into a cooperative arrangement for antitrust exceptions approved pursuant to W.S. 35-24-101 through 35-24-116.
40-4-111.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-112.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-113.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-114.� Enjoining violations; recovery of damages.
(a)� Any person, firm, private corporation or trade association, having a reasonably foreseeable physical and economic causal nexus to the specific act or acts alleged to be a violation, may maintain an action to enjoin a continuance of any act or acts in violation of this act.
(b)� Any injured person may maintain an action for violation of this act against the alleged violator to recover the actual damages sustained by the injured person together with reasonable attorneys fees and costs.
(c)� Repealed By Laws 2009, Ch. 172, � 2.
(d)� Repealed By Laws 2009, Ch. 172, � 2.
(e)� Repealed By Laws 2009, Ch. 172, � 2.
(f)� Repealed By Laws 2009, Ch. 172, � 2.
(g)� Repealed By Laws 2009, Ch. 172, � 2.
40-4-115.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-116.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-117.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-118.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-119.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-120.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-121.� Repealed By Laws 2009, Ch. 172, � 2.
40-4-122.� Requiring construction of particular building to maintain agency or dealership.
Any manufacturer, or any jobber or distributor for any manufactured product, or any salesman, agent or representative of any such manufacturer, jobber or distributor who requires, or attempts to require, of any dealer or agent residing in the state of Wyoming, who sells or services the products of such manufacturer, jobber or distributor, that such Wyoming agent or dealer construct or build any particular type or standard of building in order to maintain his agency or dealership to sell such manufactured product, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one thousand dollars ($1,000.00), or sentenced to imprisonment in the county jail for not more than six (6) months, or shall be subject to both such fine and imprisonment.
40-4-123.� Requiring purchase of accessories to maintain agency or dealership.
Any manufacturer, or any jobber or distributing agent for any manufactured product, or any salesman, agent or representative of any such manufacturer, jobber or distributor, who requires, or attempts to require, of any Wyoming agent or dealer selling or servicing the products of such manufacturer, jobber or distributor, that such Wyoming dealer or agent purchase accessories or products of such manufacturer, jobber or distributor in order to obtain other products of such manufacturer, jobber or distributor shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one thousand dollars ($1,000.00), or sentenced to imprisonment in the county jail for not more than six (6) months, or shall be subject to both such fine and imprisonment.
CHAPTER 5 - PAINT
40-5-101.� Repealed By Laws 1996, ch. 22, � 1.
40-5-102.� Repealed By Laws 1996, ch. 22, � 1.
40-5-103.� Repealed By Laws 1996, ch. 22, � 1.
40-5-104.� Repealed By Laws 1996, ch. 22, � 1.
40-5-105.� Repealed By Laws 1996, ch. 22, � 1.
40-5-106.� Repealed By Laws 1996, ch. 22, � 1.
40-5-107.� Repealed By Laws 1996, ch. 22, � 1.
40-5-108.� Repealed By Laws 1996, ch. 22, � 1.
40-5-109.� Repealed By Laws 1996, ch. 22, � 1.
40-5-110.� Repealed By Laws 1996, ch. 22, � 1.
40-5-111.� Repealed By Laws 1996, ch. 22, � 1.
40-5-112.� Repealed By Laws 1996, ch. 22, � 1.
40-5-113.� Repealed By Laws 1996, ch. 22, � 1.
40-5-114.� Repealed By Laws 1996, ch. 22, � 1.
40-5-115.� Repealed By Laws 1996, ch. 22, � 1.
40-5-116.� Repealed By Laws 1996, ch. 22, � 1.
40-5-117.� Repealed By Laws 1996, ch. 22, � 1.
CHAPTER 6 - TRUTH IN FABRICS
40-6-101.� Repealed By Laws 1996, ch. 23, � 1.
40-6-102.� Repealed By Laws 1996 , ch. 23, � 1.
40-6-103.� Repealed By Laws 1996 , ch. 23, � 1.
CHAPTER 7 - STANDARDS FOR ANTIFREEZE AND PETROLEUM PRODUCTS
40-7-101.� Products must conform to standards.
No antifreeze product, engine fuel or petroleum product shall be sold or offered for sale in the state of Wyoming, unless it� conforms to the standards of quality prescribed in this act or rules promulgated under it.
40-7-102.� Definitions.
(a)� As used in this act:
(i)� "Antifreeze manufacturer" means any person who packages antifreeze products in containers for storage, distribution or sale in this state;
(ii)� "Antifreeze products" means any fluid which will prevent freezing or enhance cooling efficiency of the cooling system, radiator or heat transfer system of an engine when added to that system;
(iii)� "ASTM" means the American Society for Testing and Materials;
(iv)� "Board" means the state board of agriculture;
(v)� "Director" means the director of the department of agriculture or his duly authorized representative;
(vi)� "Dealer" means any person in the business of delivering or distributing to a consumer or selling, offering for sale, refining or manufacturing any petroleum products, liquefied petroleum gas, engine fuel or antifreeze products in this state;
(vii)� "Department" means the Wyoming department of agriculture;
(viii)� "Diesel fuel" means a refined petroleum product suitable as a fuel in compression ignition diesel engines, both fixed and mobile, including all grades and qualities;
(ix)� "Fuel oil" means a refined petroleum product, commonly known as heating oil, furnace oil, domestic oil or distillates, used for heating, power generation and cooking purposes, including all grades and qualities;
(x)� "Gasoline" means a volatile substance produced, manufactured, blended, distilled or compounded from petroleum, natural gas, oil, shale oils or coal and other volatile flammable liquids which can be used as a fuel in a spark ignition internal combustion engine, and which meets the standards and specifications of this act.� "Gasoline" includes all grades and qualities, leaded or unleaded, but excludes diesel fuel;
(xi)� "Gasohol" means a motor fuel composed of ninety percent (90%) gasoline by volume and ten percent (10%) denatured ethanol by volume;
(xii)� "Kerosene" means a refined petroleum product, also known as kerosine, used as heating or illuminating oil that includes all grades and qualities;
(xiii)� "Liquefied petroleum gas" or "LP" means a volatile petroleum product which can be used as either a liquid or a gas for domestic, commercial, industrial or engine fuel, including all grades and qualities, composed predominately of the following hydrocarbons or mixtures thereof:� propane, propylene, butanes and butylenes, but excluding prepackaged nonrefillable liquefied petroleum gas products;
(xiv)� "Mislabeled" means a package label or dispensing device of a product which bears any statement, design or device regarding it, regarding ingredients or substances therein, or regarding the properties, quality or kind of the products, which is false or misleading in any manner;
(xv)� "Petroleum products" means all illuminating, fuel and power oils, which are products of petroleum, or into which petroleum or any product of petroleum enters or is found as a constituent, and includes but is not limited to gasoline, kerosene, diesel fuel, fuel oil, gasohol, gasoline alcohol blends, biodiesel blends, engine fuels and liquefied petroleum gas. Any petroleum product sold at retail shall have a designation and meet specifications provided by the ASTM;
(xvi)� "Products" means all petroleum products and antifreeze products;
(xvii)� "Retail dealer" means any dealer or person who sells products to the consumer or user of the products;
(xviii)� "Sell" or "sale" means the delivery or distribution of a product to a consumer and includes barter and exchange;
(xix)� "Wholesale dealer" or "supplier" means a dealer who sells products to a retail dealer;
(xx)� "Biodiesel" means a fuel comprised of mono akyl esters of long chain fatty acids derived from vegetable oils or animal fats which may or may not be blended with diesel fuel;
(xxi)� "Biofuel" means any commercially produced liquid or gas used to propel motor vehicles or otherwise substitute for liquid or gaseous fuels that is derived from agricultural crops or residues or from forest products or byproducts, as distinct from petroleum or other fossil carbon sources. "Biofuel" includes, but is not limited to, ethanol, methanol derived from biomass, levulinic acid, biodiesel, pyrolysis oils from wood, hydrogen or methane from biomass, or combinations of any of the above that may be used to propel motor vehicles either alone or in blends with conventional gasoline or diesel fuels;
(xxii)� "Nonrefined products" means any liquid or gas added to diesel, gasoline or gasohol comprising more than one-half of one percent (.5%) by volume and that:
(A)� Is not refined; or
(B)� Was added after the diesel fuel, gasoline or gasohol left the refinery.
(xxiii)� "Oxygenate" means an oxygen-containing, ashless, organic compound which can be used as a fuel, or fuel supplement such as, but not limited to, ether, ethanol, methanol and other alcohols;
(xxiv)� "Refining" means the cracking, distillation, separation, conversion, upgrading, and finishing of petroleum products;
(xxv)� "Biodiesel blend" means a fuel comprised of a blend of biodiesel fuel with petroleum-based diesel fuel, designated BXX.� In the abbreviation BXX, the "XX" represents the volume percentage of biodiesel fuel in the blend;
(xxvi)� "E85 fuel ethanol" means a blend of ethanol and hydrocarbons of which the ethanol portion is nominally seventy-five percent (75%) to eighty-five percent (85%) volume denatured fuel ethanol;
(xxvii)� "Engine fuel" means any liquid or gaseous matter used for the generation of power in an internal combustion engine.� "Engine fuel" includes but is not limited to fuels derived from petroleum, biomass and vegetable oils, new or used.� Any engine fuel sold at retail must have a designation and meet specifications provided by the ASTM;
(xxviii)� "Ethanol" or "denatured fuel ethanol" means nominally anhydrous ethyl alcohol meeting ASTM D 4806 standards.� It is intended to be blended with gasoline for use as a fuel in a spark-ignition internal combustion engine.� The denatured fuel ethanol is first made unfit for drinking by the addition of United States bureau of alcohol, tobacco, and firearms approved substances before blending with gasoline;
(xxix)� "Gasoline alcohol blend" means a fuel consisting primarily of gasoline and a substantial amount (more than thirty-five hundredths percent (0.35%) mass of oxygen or more than fifteen hundredths percent (0.15%) mass of oxygen if methanol is the only oxygenate) of one (1) or more alcohols;
(xxx)� "Low sulfur" means low sulfur diesel fuel that meets ASTM D 975 standards, including grade low sulfur no. 1-D S500 or grade low sulfur no. 2-D S500.� Diesel fuel containing higher amounts of sulfur for off-road use is defined by United States environmental protection agency regulations;
(xxxi)� "M100 fuel methanol" means nominally anhydrous methyl alcohol, generally containing small amounts of additives, suitable for use as a fuel in a compression-ignition internal combustion engine;
(xxxii)� "M85 fuel methanol" means a blend of methanol and hydrocarbons of which the methanol portion is nominally seventy percent (70%) to eighty-five percent (85%) volume;
(xxxiii)� "Oxygen content of gasoline" means the percentage of oxygen by mass contained in a gasoline;
(xxxiv)� "Substantially similar" means the United States environmental protection agency's substantially similar rule, section 211(f)(1) of the Clean Air Act, 42 U.S.C. 7545(f)(1);
(xxxv)� "Total alcohol" means the aggregate total percentage by volume of all alcohol contained in any fuel defined in this chapter;
(xxxvi)� "Total oxygenate" means the aggregate total percentage by volume of all oxygenates contained in any fuel defined in this chapter;
(xxxvii)� "Ultra low sulfur diesel" means ultra low sulfur diesel fuel that meets ASTM D 975 standards and contains no more than fifteen (15) parts per million (1,000,000) sulfur, including grade ultra low sulfur no. 1-D S15 or grade ultra low sulfur no. 2-D S15;
(xxxviii)� "This act" means W.S. 40-7-101 through 40-7-111.
40-7-103.� Board to promulgate standards.
(a)� The board shall promulgate rules and standards of quality for products to implement this act, including the adoption of ASTM or other appropriate standards or specifications and definitions for products not defined in this chapter, subject to the following:
(i)� Repealed by Laws 2009, Ch. 130, � 2.
(ii)� Repealed By Laws 2009, Ch. 130, � 2.
(iii)� Fuel oil ASTM grades No. 1 and No. 2 shall have a flash point not lower than one hundred fifteen degrees Fahrenheit (115� F);
(iv)� Fuel oil ASTM grades No. 4, No. 5 and No. 6 shall not contain more than one and one-half percent (1.5%) sulfur by weight;
(v)� Kerosene shall:
(A)� Repealed By Laws 2009, Ch. 130, � 2.
(B)� Repealed By Laws 2009, Ch. 130, � 2.
(C)� Have a flash point not lower than one hundred fifteen degrees Fahrenheit (115� F);
(D)� Meet the standards set forth in ASTM D3699.
(vi)� Any gasoline, gasohol or diesel fuel sold in the wholesale or retail market place that contains any oxygenate, biofuel or nonrefined product shall be clearly labeled with the name and maximum percentage by volume of any ethanol or other oxygenate, biofuel or nonrefined product.
40-7-104.� Penalty for violations.
Any person violating any of the provisions of this act is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).
40-7-105.� Enforcement.
The director shall enforce this act and shall periodically collect, samples of petroleum, engine fuel and antifreeze products for analysis from every storage tank directly supplying these products to retail dispensing devices located at a retail sales facility.� At least one (1) sample per year shall be taken from each storage tank by a dispenser located at a retail sales facility.� The sample shall be acquired after allowing at least one (1) gallon of product to flow from the dispenser.� The director may collect samples from pipelines, storage tanks and transport tanks at refineries and intermediate storage and dispensing facilities as he deems necessary.
40-7-106.� Seizure and sale.
Any product sold, stored, transported or offered for sale as a petroleum product, engine fuel or antifreeze in this state which does not conform to the provisions of this act or rules promulgated under it shall be seized by the director and sold in accordance with state law. The proceeds of the sale shall be applied on payment of court costs or other necessary expenses incurred in making the seizure and condemnation.
40-7-107.� Analysis by state chemist; ASTM standards to apply.
(a)� The state chemist shall make, or cause to be made under his direction, analysis and examinations of the petroleum and antifreeze products furnished to him by the director, or his deputies, to determine whether the products conform to this act and rules promulgated under it and shall certify examination results to the director following applicable ASTM methods designated in the ASTM standards required for each product.
(b)� ASTM specifications and definitions for petroleum products not defined in Wyoming statutes shall be adopted� by the board.
40-7-108.� Repealed By Laws 1985, ch. 134, � 2.
40-7-109.� Exemption for retail dealer.
No retail dealer shall be subject to penalties under this act if he relied on a written guarantee or invoice from a wholesaler or supplier that the products delivered complied with this act.
40-7-110.� Antifreeze must be approved by state chemist.
No antifreeze dealer shall sell or offer for sale any antifreeze product which has not been approved by the state chemist and registered with the department on forms prescribed by the department. Registration forms shall only be submitted by a manufacturer. Registration does not expire, but a registration shall be amended to reflect any changes in product formulation or product package labeling.
40-7-111.� Electronic transmittals.
The director may allow the testing, inspection and reporting requirements of this chapter to be conducted� electronically as provided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through 40-21-119 and any applicable federal electronic requirements.
CHAPTER 8 - STANDARDS FOR TRACTOR FUEL
40-8-101.� Repealed By Laws 1985, ch. 134, � 2.
40-8-102.� Repealed By Laws 1985, ch. 134, � 2.
40-8-103.� Repealed By Laws 1985, ch. 134, � 2.
40-8-104.� Repealed By Laws 1985, ch. 134, � 2.
40-8-105.� Repealed By Laws 1985, ch. 134, � 2.
40-8-106.� Repealed By Laws 1985, ch. 134, � 2.
CHAPTER 9 - STANDARDS FOR NATURAL GAS
40-9-101.� Standard natural gas defined.
(a)� For the purpose of this chapter standard natural gas shall be considered to have an average standard of heating units of not less than one thousand (1,000) British thermal units per cubic foot of gas, ascertained and determined by the state chemist in accordance with standard conditions, to wit:
(i)� At a temperature of sixty degrees Fahrenheit (60� F);
(ii)� Under pressure of thirty (30) inches of mercury.
40-9-102.� Factors to be considered in fixing rates.
The standard of heating units herein prescribed and any variations therefrom, in any gas distributed by any utility, or utilities, to users of natural gas, shall be taken into consideration by the public service commission as an additional factor to the factors provided for in W.S. 37-2-118, as a basis for fixing rates and rate schedules for the allowable charges the utility may make against the users of natural gas in any particular town, city or community, in which the question of such rates shall be presented to said commission, as provided for in W.S. 37-2-118.
40-9-103.� Tests and report of state chemist upon complaint; use of results as evidence and in fixing rates.
Whenever any complaint is made, as provided for in W.S. 37-2-118, that the heat units of the natural gas supplied by any utility to the users thereof in any town or municipality are below the standard thereof theretofore used as a factor in the basis for rates to be charged by the utility in that particular town or municipality, the public service commission shall notify the state chemist to make proper tests of the heating units of the gas furnished by such utility to the complaining municipality. The state chemist shall certify to the public service commission and to the mayor of the complaining town or municipality the result of such test, which said certificate shall be used as competent evidence by the public service commission at the hearing of said complaint, and shall be used by the commission as one (1) of the factors as a basis for any change in the rates the commission may find necessary to make.
40-9-104.� Municipality may require test every 3 months.
The mayor, or city council of any town or municipality, in which natural gas is furnished by any utility is hereby given the right to require the state chemist to make a test of such gas every three (3) months and to certify the results thereof to said mayor, or city council and public service commission.
40-9-105.� Expense of tests charged to state university.
Any and all expenses incurred by the state chemist in carrying out the provisions of this chapter shall be a charge against the University of Wyoming.
CHAPTER 10 - WEIGHTS AND MEASURES
40-10-101.� Repealed By Laws 1993, ch. 160, � 3.
40-10-102.� Repealed By Laws 1993, ch. 160, � 3.
40-10-103.� Repealed By Laws 1993, ch. 160, � 3.
40-10-104.� Repealed By Laws 1993, ch. 160, � 3.
40-10-105.� Repealed By Laws 1993, ch. 160, � 3.
40-10-106.� Repealed By Laws 1993, ch. 160, � 3.
40-10-107.� Repealed By Laws 1993, ch. 160, � 3.
40-10-108.� Repealed By Laws 1993, ch. 160, � 3.
40-10-109.� Repealed By Laws 1993, ch. 160, � 3.
40-10-110.� Repealed By Laws 1993, ch. 160, � 3.
40-10-111.� Repealed By Laws 1993, ch. 160, � 3.
40-10-112.� Repealed By Laws 1993, ch. 160, � 3.
40-10-113.� Repealed By Laws 1993, ch. 160, � 3.
40-10-114.� Repealed By Laws 1993, ch. 160, � 3.
40-10-115.� Repealed By Laws 1993, ch. 160, � 3.
40-10-116.� Repealed By Laws 1993, ch. 160, � 3.
40-10-117.� Definitions.
(a)� Repealed By Laws 2009, Ch. 191, � 2.
(b)� As used in this chapter:
(i)� "Accreditation" means a formal recognition by the national institute of standards and technology, as� a laboratory that is competent to carry out specific tests or calibrations or types of tests or calibrations;
(ii)� "Calibration" means a set of operations which establishes, under specified conditions, the relationship between values indicated by a measuring instrument or measuring system or values represented by a material measure, to the corresponding known values of a measurement;
(iii)� "Commerce" means the buying and selling of goods;
(iv)� "Commercial weighing and measuring equipment" means weighing and measuring devices commercially used or employed to establish the size, quantity, extent, area or measurements of goods purchased, offered or submitted for sale, hire or award, or in computing a basic charge or payment for services;
(v)� "Condemned for repairs" means a weight or measure found to be incorrect and which, following policies set forth by the director, can be repaired. Weights or measures which are condemned for repair shall be marked as such and be sealed so that the weight or measure cannot be used and is made inoperable until all appropriate repairs are completed;
(vi)� "Confiscation and seizure" means that an incorrect weight or measure is taken into custody by the department following procedures and policies set forth by the director.� Weights or measures which are confiscated shall be marked as such and if possible shall be removed from the premises to the direct custody of the department;
(vii)� "Correct" as used in connection with weights and measures means conformance to all applicable requirements of this act;
(viii)� "Department" means the department of agriculture;
(ix)� "Director" means the director of the department of agriculture or his duly authorized representative;
(x)� "Field standard" means a physical standard that meets specifications and tolerances in the National Institute of Standards and Technology Handbook 105-series standards, is traceable to the reference or working standards through comparisons or using acceptable laboratory procedures as adopted by the National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 143, "State Weights and Measures Laboratories Program Handbook," and is used in conjunction with commercial weighing and measuring equipment.� All field standards may be defined by rule and regulation and shall be verified upon their initial receipt and as often thereafter as deemed necessary by the director;
(xi)� "International system of units" means the modernized metric system as established in 1960 by the general conference on weights and measures as interpreted or modified for the United States by the secretary of commerce;
(xii)� "Mass" means the same as "weight";
(xiii)� "Net weight" means the weight of a commodity excluding any materials, substances or items not considered to be part of the commodity.� Materials, substances or items not considered to be part of the commodity include, but are not limited to, containers, conveyances, bags, wrappers, packaging materials, labels, individual piece coverings, decorative accompaniments and coupons, except that packaging materials may be considered to be part of services such as shipping;
(xiv)� "Package" means any commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale;
(xv)� "Physical standard" means weights and measures that are traceable to the United States prototype standards supplied by the federal government, including, but not limited to, standards adopted by the United States department of the interior, bureau of land management applicable to onshore oil and gas leases, the United States federal energy regulatory commission, the United States department of transportation, the state of Wyoming public service commission, or approved as being satisfactory by the National Institute of Standards and Technology.� Physical standards shall be the state reference and working standards for weights and measures and shall be maintained in such calibration as prescribed by the National Institute of Standards and Technology as demonstrated through laboratory accreditation or recognition;
(xvi)� "Primary standards" means the physical standards of the state that serve as the legal reference from which all other standards and weights and measures are derived;
(xvii)� "Random weight package" means a package that is one of a lot, shipment or delivery of packages of the same commodity with no fixed pattern of weights;
(xviii)� "Recognition" means a formal recognition by the National Institute of Standards and Technology weights and measures division that a laboratory has demonstrated the ability to provide traceable measurement results and is competent to carry out specific tests or calibrations or specific types of tests or calibrations;
(xix)� "Reference standard" means:
(A)� A standard, generally of the highest metrological quality available at a given location, from which measurements made at that location are derived; or
(B)� The physical standards of the state that serve as the legal reference from which all other standards for weights and measures within that state are derived.
(xx)� "Registered service person" means an individual who for hire, award, commission or any other payment of any kind, installs, services, repairs or reconditions a commercial weighing or measuring device, and who is registered with the director;
(xxi)� "Reject" means a weight or measure found to be incorrect, and following policies set forth by the director may be used until repaired.� A weight or measure which is rejected shall be marked as such, and may be used for the period of time specified pursuant to rule and regulation;
(xxii)� "Sale from bulk" means a sale of commodities in which the quantity is determined at the time of sale;
(xxiii)� "Secondary standards" means the physical standards that are traceable to the primary standards through comparisons, using acceptable laboratory procedures, and used in the enforcement of weights and measures laws and regulations;
(xxiv)� "Standard package" means a package that is one of a lot, shipment or delivery of packages of the same commodity with identical net contents declarations, such as, one (1) liter bottles or twelve (12) fluid ounce cans of carbonated soda, five hundred (500) gram or five (5) pound bags of sugar, one hundred (100) meter or three hundred (300) foot packages of rope;
(xxv)� "Traceability" means the result of a measurement or the value of a standard which can be verified as correct when compared with a national or international standard;
(xxvi)� "Uncertainty" means a parameter associated with the result of a measurement that characterizes the dispersion of the values that could reasonably be attributed to the measurement;
(xxvii)� "Verification" means the formal evaluation of a standard or device against the specifications and tolerances for determining conformance;
(xxviii)� "Weight" as used in connection with any commodity or service means net weight.� When a commodity is sold by drained weight, the term means net drained weight.� When used in this chapter, "weight" and "mass" have the same meaning;
(xxix)� "Weight and measure" means weights and measures of every kind, instruments and devices for weighing and measuring, and any appliance or accessory associated with such instruments or devices;
(xxx)� "Working standard" means:
(A)� A standard that is usually calibrated against a reference standard and is used routinely to calibrate or check material measures, measuring instruments or reference materials; or
(B)� The physical standards that are traceable to the reference standards through comparisons, using acceptable laboratory procedures and used in the enforcement of weights and measures laws and regulations.
(xxxi)� "This act" or "this chapter" means W.S. 40-10-117 through 40-10-136.
40-10-118.� Recognized systems.
The system of weights and measures in customary use in the United States and the metric system of weights and measures are jointly recognized, and either one (1) or both of these systems shall be used for all commercial purposes in the state.� The definitions of basic units of weight and measure, the tables of weight and measure, and weights and measures equivalents as published by the United States Department of Commerce National Institute of Standards and Technology are recognized and shall govern weighing and measuring equipment and transactions in the state.
40-10-119.� Physical standards.
Weights and measures that are traceable to the United States prototype standards supplied by the federal government, or approved by the United States Department of Commerce National Institute of Standards and Technology, shall be the state primary standards of weights and measures, and shall be maintained in such calibration as prescribed by the United States Department of Commerce National Institute of Standards and Technology or demonstrated through laboratory accreditation or recognition.� Field standards may be prescribed by the director and shall be verified upon their initial receipt, and as specified by rule and regulation.
40-10-120.� Technical requirements for weighing and measuring devices.
(a)� The specifications, tolerances, and other technical requirements for commercial, law enforcement, data gathering and other weighing and measuring devices as adopted by the National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 44, "Specification, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices," shall apply to weighing and measuring devices in this state, and may be amended by rule or regulation.
(b)� The Uniform Regulation for National Type Evaluation as adopted by the National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 130, "Uniform Laws and Regulations," are adopted and shall apply to type evaluation in this state, and may be amended by rule or regulation.
40-10-121.� Department of agriculture duties and powers.
(a)� The department of agriculture shall perform the following functions:
(i)� Assure that weights and measures in commercial service within the state are suitable for their intended use, properly installed and accurate, and are so maintained by their owner or user;
(ii)� Prevent unfair or deceptive dealing by weight or measure in any commodity or service advertised, packaged, sold or purchased within this state;
(iii)� Promote uniformity, to the extent practicable and desirable, between weights and measures requirements of this state and those of other states and federal agencies.
(b)� Unless requested by the operator of the weighing or measuring equipment, the department shall have no authority over weights and measures used in activities subject to the authority of the United States department of the interior associated with on shore oil and gas, the United States federal energy regulatory commission, the Wyoming public service commission associated with pipelines and utilities or the Wyoming oil and gas conservation commission.
(c)� Except as otherwise required by law, rule, regulation or third party agreement, the department shall have no authority over weights and measures used pursuant to a written agreement between the parties using the weighing device.
40-10-122.� Powers and duties of the director.
(a)� The director shall:
(i)� Maintain traceability of the state standards to the national standards established by the United States Department of Commerce National Institute of Standards and Technology as demonstrated through laboratory recognition or accreditation;
(ii) �Enforce the provisions of this act;
(iii)� Issue reasonable rules and regulations for the enforcement of this act;
(iv)� Grant exemptions from the provisions of this act or any regulations promulgated pursuant thereto when appropriate for the maintenance of good commercial practices within the state;
(v)� Conduct investigations to ensure compliance with this act and the rules and regulations promulgated pursuant to this act;
(vi)� Delegate authority to appropriate personnel as required for the proper administration and enforcement of this act;
(vii)� Inspect and test in a timely manner, weights and measures kept, offered or exposed for sale;
(viii)� Promulgate rules and regulations regarding inspecting and testing weights and measures used commercially, to ascertain if they are correct:
(A)� In determining the weight, measure or count of commodities or things sold, or offered or exposed for sale, on the basis of weight, measure or count; or
(B)� In computing the basic charge or payment for services rendered on the basis of weight, measure or count.
(ix)� Approve for use and mark weights and measures found to be correct, reject and mark as rejected, condemn and mark as condemned and make inoperable weights and measures found to be incorrect.� Rejected weights and measures shall be condemned and made inoperable if not corrected within the time specified or if used in a manner not specifically authorized;
(x)� Weigh, measure or inspect packaged commodities kept, offered or exposed for sale, sold or in the process of delivery to determine whether they contain the amounts represented and whether they are kept, offered or exposed for sale in accordance with this act or rules and regulations promulgated pursuant to this act.� In carrying out the provisions of this paragraph, the director shall employ recognized sampling procedures adopted by National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 133, "Checking the Net Contents of Packaged Goods;"
(xi)� Prescribe, by rule and regulation, the appropriate term, unit of weight or unit of measure to be used, whenever an existing practice of declaring the quantity by weight, measure, numerical count, time or combination thereof, does not facilitate value comparisons by consumers or may lead to consumer confusion;
(xii)� Allow reasonable variations from the stated quantity of contents, to allow for loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice only after the commodity has entered intrastate commerce;
(xiii)� Establish labeling requirements, requirements for the presentation of cost-per-unit information, establish standards of weight, measure, count and fill for any packaged commodity and establish requirements for open dating information;
(xiv)� Verify the field standards for weights and measures used by any jurisdiction or registered service person operating within Wyoming before being put into service, and as often thereafter as deemed necessary by the director, and approve the same when found to be correct;
(xv)� Provide for registration of persons qualified by training and experience to install, service and� repair weighing or measuring devices;
(xvi)� Provide that only persons who are registered are authorized to place in service devices which have been rejected or condemned and repaired or newly installed devices, whether new or used, until an official inspection by an authorized inspector is made;
(xvii)� Provide for the training of weights and measures personnel and establish minimum training and performance requirements, for all weights and measures personnel, including county, municipal, state or registered servicepersons;
(xviii)� Verify advertised prices, price representations and point-of-sale systems, as necessary to determine:
(A)� The accuracy of prices and computations and proper use of the equipment; and
(B)� The accuracy of prices printed or recalled from a database in systems utilizing scanning or coding means in lieu of manual entry.� In carrying out the provisions of this paragraph, the director shall:
(I)� Employ recognized procedures, as adopted by the National Conference on Weights and Measures and published in the Untied States Department of Commerce National Institute of Standards and Technology Handbook 130, "Uniform Laws and Regulations, Examination Procedures for Price Verification"; and
(II)� Conduct inspections and investigations to ensure compliance.
(xix)� Establish fees for testing and inspection, which may include actual hourly cost plus mileage for any inspections requested other than the routine inspection.� The hourly cost shall be as determined by the director and the mileage cost shall be as provided by W.S. 9-3-103;
(xx)� Establish reasonable laboratory fees for testing, inspection and calibration of standards or weight and measuring devices.
(b)� The director may allow the licensing, testing, inspection and reporting requirements of this chapter to be conducted electronically as provided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through 40-21-119 and any applicable federal electronic requirements.
40-10-123.� Special enforcement powers.
(a)� When necessary for the enforcement of this act or rules and regulations promulgated pursuant to this act, the director is:
(i)� Authorized to enter any commercial premises open to the public during normal business hours. If the premises are not open to the public, he shall obtain consent before making entry, or obtain a search warrant;
(ii)� Empowered to issue stop-use, hold and removal orders with respect to any weights and measures commercially used or any packaged commodities or bulk commodities kept, offered or exposed for sale; and
(iii)� Empowered to seize, as evidence, any incorrect or unapproved weight, measure, package or commodity found to be used, retained, offered or exposed for sale or sold in violation of the provisions of this act or rules and regulations promulgated pursuant to this act;
(iv)� Authorized to report the results of investigations and inspections to the owner or person in charge by hand delivering, mailing or sending electronically.
40-10-124.� Powers and duties of local officials.
Any weights and measures official appointed for a county or city shall have the duties and powers enumerated in this act, excepting those duties reserved to the state by law or regulation.� These powers and duties shall extend to their respective jurisdictions, except that the jurisdiction of a county official shall not extend to any city for which a weights and measures official has been appointed.� No requirement set forth by local agencies may be less stringent than or conflict with the requirements of the state.
40-10-125.� Misrepresentation of quantity or pricing.
(a)� No person shall:
(i)� Sell, offer or expose for sale less than the quantity represented;
(ii)� Take more than the represented quantity when he furnishes the weight or measure by means of which the quantity is determined; or
(iii)� Represent the quantity in any manner tending to mislead or deceive another person.
(b)� No person shall misrepresent the price of any commodity offered, exposed or advertised for sale by weight, measure or count, nor represent the price in any matter tending to mislead or in any way deceive another person.
40-10-126.� Method of sale.
(a)� Except as otherwise provided by the director, or by firmly established trade custom and practice:
(i)� Commodities in liquid form shall be sold by liquid measure or by weight; and
(ii)� Commodities not in liquid form shall be sold by weight, by measure or by count.
(b)� The method of sale shall provide accurate and adequate quantity information that permits the buyer to make price and quantity comparisons.
40-10-127.� Sale of gasoline and distillates on other than gross volume basis unlawful; exception; "sale" defined.
(a)� Except as provided in subsection (b) of this section, the sale of gasoline and distillates, excluding liquified petroleum gas, on a temperature corrected basis or on any basis other than the gross volume of gasoline or distillate actually delivered is unlawful. Any contract in violation of this section shall be unenforceable to the extent of the violation.
(b)� Sellers of motor fuel within this state shall offer to prospective purchasers the option to buy the product either by gross gallons or on the assumption that the temperature of the product is sixty degrees Fahrenheit (60� F) or the centigrade equivalent. This purchaser option may be exercised only on an annual basis and applied only to single deliveries of seven thousand five hundred (7,500) gallons or more or the metric equivalent. Any adjustments to volumes during the temperature compensation process shall be made in accordance with the standards set by the American Society of Testing Materials.
(c)� For purposes of this act, "sale" does not include the exchange of gasoline or distillate between refiners or transporters of petroleum or petroleum products.
40-10-128.� Sale from bulk.
(a)� Except when the parties agree in advance that a delivery ticket is not required, all bulk sales in which the buyer and seller are not both present to witness the measurement shall be accompanied by a delivery ticket containing the following information:
(i)� The name and address of the buyer and seller;
(ii)� The date delivered;
(iii)� The quantity delivered and the quantity upon which the price is based, if this differs from the delivered quantity, such as when temperature compensated sales are made;
(iv)� The identity of the product in the most descriptive terms commercially practicable, including any quality representation made in connection with the sale; and
(v)� The count of individually wrapped packages, for commodities purchased from bulk, but delivered in packages;
(vi)� The unit price, unless all parties agree the unit price is not required.
40-10-129.� Information required on packages.
(a)� Except as otherwise provided in this act or by rule or regulation promulgated pursuant to this act, any package kept for the purpose of sale or offered or exposed for sale shall bear on the outside of the package a definite, plain and conspicuous declaration of:
(i)� The identity of the commodity in the package, unless the same can easily be identified through the wrapper or container;
(ii)� The quantity of contents in terms of weight, measure or count; and
(iii)� The name and place of business of the manufacturer, packer or distributor, in the case of any package kept, offered or exposed for sale, or sold in any place other than on the premises where packed.
40-10-130.� Declarations of unit price on random weight packages.
In addition to the declarations required by W.S. 40-10-128, any package in a lot containing random weights of the same commodity shall include on the outside of the package a plain and conspicuous declaration of the price per pound or kilogram and the total selling price of the package, at the time it is offered or exposed for sale at retail.
40-10-131.� Advertising packages for sale.
Whenever a packaged commodity is advertised with the retail price stated, there shall be a conspicuous declaration of quantity on the package.
40-10-132.� Prohibited acts.
(a)� No person shall:
(i)� Use or possess any incorrect weight or measure for use in commerce;
(ii)� Sell or offer for sale any incorrect weight or measure for use in commerce;
(iii)� Remove any tag, seal or mark from any weight or measure or weighing or measuring device, without specific written authorization from the proper authority;
(iv)� Hinder or obstruct any weights and measures official in the performance of his duties;
(v)� Use or possess any weight, measure, weighing or measuring device that for use in commerce has not been tested and certified as correct by the department or a registered service person;
(vi)� Place any weight, measure, weighing or measuring device into commercial service without having a current certificate of registration as a registered service person; or
(vii)� Violate any provision of this act or rules or regulations promulgated under this act.
40-10-133.� Criminal penalties.
Any person who commits any of the acts enumerated in W.S. 40-10-132 is guilty of a misdemeanor, and upon a first conviction thereof shall be punished by a fine of not more than five hundred dollars ($500.00) or imprisonment for not more than three (3) months, or both.� Upon a subsequent conviction within any five (5) year period, he shall be punished by a fine of not less than five hundred dollars ($500.00) nor more than seven hundred fifty dollars ($750.00) or by imprisonment for up to six (6) months, or both.
40-10-134.� Restraining order and injunction.
The director is authorized to apply to any court of competent jurisdiction for a restraining order, or a temporary or permanent injunction, restraining any person from violating any provision of this act.
40-10-135.� Presumptive evidence.
Whenever there shall exist a weight or measure or weighing or measuring device in or about any place in which or from which buying or selling is commonly carried on, there shall be a rebuttable presumption that the weight or measure or weighing or measuring device is regularly used in commerce.
40-10-136.� License required; fee.
(a)� Every person who owns or is responsible for a weight, measure, weighing or measuring device regulated by this act shall obtain an annual license for each establishment on or before April 1 from the department and pay a fee as provided in this subsection.� The fees collected by the department under this section shall be deposited in the general fund.� Fees shall be set by the department as follows:
(i)� Not less than ten dollars ($10.00) nor more than twenty-five dollars ($25.00) for establishments with no more than five (5) devices;
(ii)� Not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00) for establishments with more than five (5) and less than eleven (11) devices;
(iii)� Not more than seventy-five dollars ($75.00) for establishments with eleven (11) or more devices.
(b)� The director shall define premise and inspection locations, including physical addresses and circumstances for special events.
(c)� For purposes of this section, "establishment" means a place of business under one (1) management at one (1) physical location.
CHAPTER 11 - FOREIGN TRADE ZONES
40-11-101.� Definitions.
As used in this act, the term "public corporation" means the state of Wyoming, any municipality, county or other political subdivision thereof, any public agency of this state or any municipality of one or more other states. The term "act of congress" means the act of congress, entitled "An act to provide for the establishment, operation and maintenance of foreign trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes", 19 U.S.C. �� 81a to 81u.
40-11-102.� Application by public corporation to establish and operate zone; designation of agency to apply on behalf of state.
(a)� Any public corporation may make application for the privilege of establishing, operating and maintaining a foreign trade zone in accordance with the act of congress and amendments thereto.
(b)� The Wyoming business council is the public entity designated and authorized to apply, on behalf of the state of Wyoming, for foreign trade zone authority, sub-zone authority or port of entry pursuant to the act of congress and regulations issued pursuant to the act.
(c)� The designation of the Wyoming business council to apply on behalf of the state of Wyoming for foreign trade zone or sub-zone authority shall not prohibit other public corporations from applying for foreign trade zone authority pursuant to the act of congress.
40-11-103.� Application by private corporation to establish and operate.
Any private corporation organized under the laws of this state for the purpose of establishing, operating and maintaining a foreign trade zone in accordance with the act of congress may make application for the privilege of establishing, operating and maintaining a foreign trade zone in accordance with the act of congress.
40-11-104.� Establishment and operation by corporation; conditions and restrictions.
(a)� Any public or private corporation authorized by this chapter to make such application and whose application is granted pursuant to the terms of the act of congress may establish, operate, and maintain the foreign trade zone:
(i)� Subject to the conditions and restrictions of the act of congress, and any amendments thereto;
(ii)� Under such rules and regulations and for the period of time that may be prescribed by the board established by the act of congress to carry out the provisions of the act.
40-11-105.� Powers of public corporation to provide indemnity and deposit money with United States.
(a)� If authorized to establish, operate and maintain a foreign trade zone, a public corporation may, in addition to its other powers:
(i)� It may, for itself, provide for such indemnity or assurance to the United States or its agencies as they may request;
(ii)� Deposit such sums of money with the United States as the United States or its agencies may request, providing such money is available therefor by direct appropriation or otherwise.
CHAPTER 12 - CONSUMER PROTECTION
ARTICLE 1 - IN GENERAL
40-12-101.� Short title.
This act may be cited as the "Wyoming Consumer Protection Act."
40-12-102.� Definitions.
(a)� As used in this act:
(i)� "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association or any other legal entity;
(ii)� "Consumer transactions" means the advertising, offering for sale, sale or distribution of any merchandise to an individual for purposes that are primarily personal, family or household;
(iii)� "Documentary material" means the original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, other tangible document or recording, reproductions of information stored magnetically, file layout, code conversion tables or computer programs to convert file to readable printout, wherever situated;
(iv)� "Examination" of documentary material includes the inspection, study or copying of any such material, and the taking of testimony under oath or acknowledgement with respect to any such documentary material or copy thereof;
(v)� "Advertisement" includes the attempt by publication, dissemination, solicitation or circulation, whether oral, visual, written or otherwise, and whether in person, by telephone or by any other means to induce directly or indirectly any person to enter into any obligation or to acquire any title or interest in any merchandise;
(vi)� "Merchandise" includes any service or any property, tangible or intangible, real, personal or mixed, or any other object, ware, good, commodity, or article of value wherever situated;
(vii)� "Enforcing authority" means the attorney general of Wyoming;
(viii)� "Cure" as applied to an unlawful deceptive trade practice as defined in W.S. 40-12-105 means either:
(A)� To offer in writing to adjust or modify the consumer transaction to which the unlawful deceptive trade practice relates to conform to the reasonable expectations of the consumer generated by such unlawful deceptive trade practice and to perform such offer if accepted by the consumer; or
(B)� To offer in writing to rescind such consumer transaction and to perform such offer if accepted by the consumer.
(ix)� "Uncured unlawful deceptive trade practice" means an unlawful deceptive trade practice as defined in W.S. 40-12-105:
(A)� With respect to which a consumer who has been damaged by the unlawful deceptive trade practice has given notice to the alleged violator pursuant to W.S. 40-12-109; and
(B)� Either:
(I)� No offer to cure has been made to such consumer within fifteen (15) days after such notice; or
(II)� The unlawful deceptive trade practice has not been cured as to such consumer within a reasonable time after his acceptance of the offer to cure.
(x)� "This act" means W.S. 40-12-101 through 40-12-114.
40-12-103.� Unsolicited merchandise.
Unless otherwise agreed, when unsolicited merchandise is delivered to a person, he has a right to refuse such merchandise and is not obligated to return such merchandise to the sender. Such unsolicited merchandise is deemed an unconditional gift to the recipient, who may use it in any manner without any obligation to the sender. This section does not apply if there is evidence that the merchandise has been misdelivered, or if the delivered merchandise is offered as a good faith substitution for merchandise previously solicited by the recipient.
40-12-104.� Home solicitation sales.
(a)� For purposes of this section, "home solicitation sale" means the sale or lease of merchandise, other than farm equipment, for cash when the cash sales price, whether under a single sale or multiple sales, exceeds twenty-five dollars ($25.00) and in which the seller or a person acting for him engages in a personal solicitation of the sale at the residence of the buyer and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him. A personal solicitation of a sale at the residence of the buyer includes contact with the buyer in person or by telephone.� "Home solicitation sale" does not include:
(i)� A sale made pursuant to a preexisting revolving charge account;
(ii)� A sale made subsequent to a personal contact or a telephone contact at the residence of the buyer but pursuant to negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale;
(iii)� A sale made pursuant to a telephone solicitation when the seller offers a full refund and right of cancellation for at least ten (10) days after receipt of the merchandise and the right of refund and cancellation is communicated during the initial telephone solicitation and is conspicuously displayed with the merchandise; or
(iv)� A sale in which a consumer acquires use of property under a rental-purchase agreement as defined in W.S. 40-19-102(a)(xi), with an initial period of one (1) week or less, by placing a telephone call to a merchant and by requesting that specific property be delivered to the consumer's residence or such other place as the consumer directs and such rental-purchase agreement is consummated at the consumer's residence.
(b)� Except as hereinafter provided, in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with this part. Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase. Notice of cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid. Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale.
(c)� The buyer may not cancel a home solicitation sale if the buyer requests the seller to provide goods or services without delay because of an emergency and:
(i)� The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation; and
(ii)� In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer.
(d)� The period within which cancellation may occur pursuant to this section shall not commence until the buyer is furnished a copy of the completed, approved and accepted contract, is given the name and address to which the notice of cancellation should be sent and is provided with a written statement of his right of cancellation. The statement of the buyer's right of cancellation shall comply with W.S. 40-14-253(b).
(e)� Except as hereinafter provided, within ten (10) days after a home solicitation sale has been cancelled:
(i)� The seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness;
(ii)� If the down payment includes goods traded in, the goods must be tendered in substantially as good condition as when received by the seller, and if the seller fails to tender the goods as provided by this subsection, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement;
(iii)� The seller may retain as a cancellation fee five percent (5%) of the cash price but not exceeding the amount of the cash down payment. If the seller fails to comply with an obligation imposed by this section, or if the buyer voids the sale on any ground independent of his right to cancel or revokes his offer to purchase, the seller is not entitled to retain a cancellation fee;
(iv)� Until the seller has complied with the obligations imposed by this subsection, the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.
(f)� Except as provided under subsection (e) of this section, within a reasonable time after a home solicitation sale has been cancelled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale but he is not obligated to tender at any place other than his residence. If the seller fails to demand possession of the goods within thirty (30) days after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them.
(g)� The buyer has a duty to take reasonable care of the goods in his possession before cancellation or revocation and for thirty (30) days thereafter, during which time the goods are otherwise at the seller's risk.
(h)� If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller is entitled to no compensation except the cancellation fee provided in this section.
40-12-105.� Unlawful practices.
(a)� A person engages in a deceptive trade practice unlawful under this act when, in the course of his business and in connection with a consumer transaction, he knowingly:
(i)� Represents that merchandise has a source, origin, sponsorship, approval, accessories or uses it does not have;
(ii)� Represents that he has a sponsorship, approval or affiliation he does not have;
(iii)� Represents that merchandise is of a particular standard, grade, style or model, if it is not;
(iv)� Represents that merchandise is available to the consumer for a reason that does not exist;
(v)� Represents that merchandise has been supplied in accordance with a previous representation, if it has not; except that this subsection does not apply to merchandise supplied to the recipient by mistake or merchandise of equal or greater value supplied as a reasonably equivalent substitute for unavailable merchandise previously ordered by the recipient;
(vi)� Represents that replacement or repair is needed, if it is not;
(vii)� Makes false or misleading statements of fact concerning the price of merchandise or the reason for, existence of, or amounts of a price reduction;
(viii)� Represents that a consumer transaction involves a warranty, a disclaimer of warranties, particular warranty terms, or other rights, remedies or obligations if the representation is false;
(ix)� Represents that the consumer will receive a rebate, discount or other benefit as an inducement for entering into a consumer transaction in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if receipt of the benefit is contingent upon an event occurring after the consumer enters into the transaction;
(x)� Advertises merchandise with intent not to sell it as advertised;
(xi)� Advertises merchandise with intent not to supply reasonably expectable public demand, unless the advertisement discloses the limitation;
(xii)� Represents that merchandise is original or new if he knows that it is deteriorated, damaged, altered, reconditioned, reclaimed, used or secondhand. For purposes of this subsection, the terms "original" or "new" include merchandise previously sold but returned within a reasonable time by the consumer for full credit if such merchandise is not damaged or deteriorated;
(xiii)� Advertises under the guise of obtaining sales personnel when in fact the purpose of the advertisement is to sell merchandise to the sales personnel applicants;
(xiv)� Employs "bait and switch" advertising which consists of an offer to sell merchandise which the seller does not intend to sell, which advertising is accompanied by one (1) or more of the following practices:
(A)� Refusal to show the merchandise advertised;
(B)� False disparagement in any respect of the advertised merchandise or the terms of sale;
(C)� Requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised merchandise;
(D)� Knowingly showing or demonstrating defective merchandise which is unusable or practicable for the purpose set forth in the advertisement;
(E)� Accepting a deposit for the merchandise and subsequently charging the buyer for a higher priced item without his consent; or
(F)� Willful failure to either make deliveries of the merchandise or to make a refund therefor.
(xv)� Engages in unfair or deceptive acts or practices.
40-12-106.� Restraining unlawful practices.
Whenever the enforcing authority has reasonable cause to believe that any person has engaged in, is engaging in, or is about to engage in any practice which is unlawful under W.S. 40-12-104 or 40-12-105, and that proceedings would be in the public interest, he may bring an action in the name of this state against such person to restrain by temporary restraining order or preliminary or permanent injunction the use of such practice, upon the giving of appropriate notice to that person. The notice must state generally the relief sought and must be served in accordance with the Wyoming Rules of Civil Procedure. Before commencing any action, the enforcing authority shall give the person against whom proceedings are contemplated a reasonable opportunity to show why proceedings should not be instituted. The action may be brought in the district court of the county in which the person resides or has his principal place of business or in the district court of Laramie county, Wyoming. The district court may issue temporary restraining orders or preliminary or permanent injunctions, in accordance with the principles of equity, to restrain and prevent violations of this act. The court may make such additional orders or judgments as are necessary to compensate identifiable persons for actual damages or restoration of money or property, real or personal, which may have been acquired by means or any act or practice restrained.� The remedies provided by this section, W.S. 40-12-108 and 40-12-111 shall be the exclusive remedies for violations of this act.
40-12-107.� Assurances of voluntary compliance.
The enforcing authority may accept written assurance of voluntary compliance with respect to any practice believed to be violative of W.S. 40-12-105 from any person who is engaged or is about to engage in such practice. Such assurance is not considered an admission of violation for any purpose. Proof of failure to comply with the assurance of voluntary compliance is prima facie evidence of a violation of this act. Matters closed by virtue of the acceptance of an assurance of voluntary compliance may at any time be reopened by the enforcing authority for further proceedings in the public interest, pursuant to W.S. 40-12-106.
40-12-108.� Private remedies.
(a)� A person relying upon an uncured unlawful deceptive trade practice may bring an action under this act for the damages he has actually suffered as a consumer as a result of such unlawful deceptive trade practice.
(b)� Any person who is entitled to bring an action under subsection (a) of this section on his own behalf against an alleged violator of this act for damages for an unlawful deceptive trade practice may bring a class action against such person on behalf of any class of persons of which he is a member and which has been damaged by such unlawful deceptive trade practice, subject to and pursuant to the Wyoming Rules of Civil Procedure governing class actions, except as herein expressly provided. If the court determines that actual damages have been suffered by reason of the unlawful deceptive trade practice, the court shall award reasonable attorney's fees to the plaintiffs in a class action under this subsection, provided that such fees shall be determined by the amount of time reasonably expended by the attorney for the plaintiffs and not by the amount of the judgment. Any monies or property recovered in a class action under this subsection which cannot, with due diligence, be restored to consumers within one (1) year after judgment becomes final shall be returned to the party depositing the same.
40-12-109.� Limitation of actions.
No action may be brought under this act, except under W.S. 40-12-108, unless the consumer bringing the action gives within the following time limits notice in writing to the alleged violator of the act, (a) within one (1) year after the initial discovery of the unlawful deceptive trade practice, (b) within two (2) years following such consumer transaction, whichever occurs first, and unless the unlawful deceptive trade practice becomes an uncured unlawful deceptive trade practice as defined in this act. The notice required under this section shall state fully the nature of the alleged unlawful deceptive trade practice and the actual damage suffered therefrom. No action may be brought under this act, except under W.S. 40-12-108, unless said action is initiated within one (1) year after the furnishing of notice as required under this section.
40-12-110.� Exemptions.
(a)� Nothing in this act shall apply to:
(i)� Acts or practices required or permitted by state or federal law, rule or regulation or judicial or administrative decision;
(ii)� Acts or practices by the publisher, owner, agent or employee of a newspaper, periodical, radio or television station or any other person without knowledge of the deceptive character of the advertisement in the publication or dissemination of an advertisement supplied by another.
40-12-111.� Violations involving older persons or persons with disabilities; civil penalty.
(a)� As used in this section:
(i)� "Person with disabilities" means any person who has a mental or educational impairment which substantially limits one (1) or more major life activities;
(ii)� "Major life activities" means functions associated with the normal activities of independent daily living such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;
(iii)� "Mental or educational impairment" means:
(A)� Any mental or psychological disorder or specific learning disability;
(B)� Any educational deficiency which substantially affects a person's ability to read and comprehend the terms of any contractual agreement entered into.
(iv)� "Older person" means a person who is over sixty (60) years of age.
(b)� Any person who willfully uses, or has willfully used, a method, act or practice in violation of this act which victimizes or attempts to victimize an older person or a person with disabilities, and commits such violation when the person knew or should have known that the conduct was unfair or deceptive, shall make restitution or reimbursement to the older person or person with disabilities including reasonable attorney fees and costs, and, in addition, is liable for a civil penalty of up to fifteen thousand dollars ($15,000.00) for each violation recoverable by the office of the attorney general.
40-12-112.� Investigative powers of enforcing authority.
(a)� If, by inquiry by the enforcing authority or as a result of complaints, the enforcing authority has probable cause to believe that a person has engaged in, or is engaging in, an act or practice that violates this act, investigators designated by the Wyoming attorney general may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence.� Within five (5) days, excluding weekends and legal holidays, after the service of a subpoena or at any time before the return date specified therein, whichever is longer, the party served may file in the district court in the county in which the party resides or in which the party transacts business, or in the district court for the first judicial district of Wyoming, and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available under this act or upon service of a subpoena in a civil action. The subpoena shall inform the party served of the party's rights under this subsection.
(b)� If matter that the enforcing authority seeks to obtain by subpoena is located outside the state, the person subpoenaed may make it available to the enforcing authority to examine the matter at the place where it is located.� The enforcing authority may designate representatives, including officials of the state in which the matter is located, to inspect the matter on its behalf, and the enforcing authority may respond to similar requests from officials of other states.
(c)� Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the enforcing authority may apply to the district court for an order compelling compliance.
(d)� The enforcing authority may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate the individual, be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which the individual is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against the individual in any criminal investigation or proceeding.
(e)� Any person upon whom a subpoena is served pursuant to this section shall comply with the terms thereof unless otherwise provided by order of the court.� Any person who fails to appear with the intent to avoid, evade or prevent compliance in whole or in part with any investigation under this act or who removes from any place, conceals, withholds, mutilates, alters or destroys, or by any other means falsifies any documentary material in the possession, custody or control of any person subject to the subpoena, or knowingly conceals any relevant information with the intent to avoid, evade or prevent compliance is liable for a civil penalty of not more than five thousand dollars ($5,000.00), reasonable attorney's fees and costs.
(f)� Whenever criminal or civil intelligence, investigative information or any other information held by any state or federal agency is available to the enforcing authority on a confidential or a similarly restricted basis, the enforcing authority, in the course of the investigation of any violation of this act, may obtain and use the information.� Any intelligence or investigative information that is confidential or exempt under W.S. 16-4-201 through 16-4-205 retains its status as confidential or exempt.
40-12-113.� Civil penalties.
(a)� The enforcing authority, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than five thousand dollars ($5,000.00) from any person who violates the terms of a permanent injunction issued under W.S. 40-12-106.
(b)� For purposes of this section, the court issuing an injunction shall retain jurisdiction, and the cause shall be continued.
(c)� Except as provided in W.S. 40-12-111, any person or agent or employee of the person, who willfully uses, or has willfully used, a method or act, in violation of this act, is liable for a civil penalty of not more than ten thousand dollars ($10,000.00) for each violation. Willful violations occur when the person knew or should have known that the person's conduct was unfair or deceptive. This civil penalty may be recovered in any action brought under this act by the enforcing authority or the enforcing authority may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The enforcing authority or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the unlawful act or practice.� If civil penalties are assessed in any litigation, the enforcing authority is entitled to reasonable attorney's fees and costs.
40-12-114.� Effect on other remedies.
This act shall not prohibit actions under other statutory or common-law provisions against conduct or practices similar to those declared to be unlawful by W.S. 40-12-105. However, the remedies provided in this act are the exclusive remedies for actions brought pursuant to this act.
ARTICLE 2 - PROMOTIONAL ADVERTISING OF PRIZES
40-12-201.� Definitions.
(a)� As used in this article:
(i)� "Prize" means a gift, award or other item or service of value;
(ii)� "Prize notice" means a notice given to an individual in this state that satisfies all of the following:
(A)� Is or contains a representation that the individual has been selected or may be eligible to receive a prize;
(B)� Conditions receipt of a prize on a payment from the individual or requires or invites the individual to make a contact to learn how to receive the prize or to obtain other information related to the notice.
(iii)� "Prize notice" does not include any of the following:
(A)� A notice given at the request of the individual;
(B)� A notice informing the individual that he has been awarded a prize as a result of his actual prior entry in a game, drawing, sweepstakes or other contest, if the individual is awarded the prize stated in the notice.
(iv)� "Solicitor" means a person who represents to an individual that the individual has been selected or may be eligible to receive a prize;
(v)� "Sponsor" means a person on whose behalf a solicitor gives a prize notice;
(vi)� "Verifiable retail value" of a prize means:
(A)� A price at which the solicitor or sponsor can demonstrate that a substantial number of the prizes have been sold by a person other than the solicitor or sponsor in the trade area in which the prize notice is given; or
(B)� If the solicitor or sponsor is unable to satisfy subparagraph (A) of this paragraph, no more than one and five-tenths (1.5) times the amount the solicitor or sponsor paid for the prize.
40-12-202.� Written prize notice required.
If a solicitor represents to an individual that the individual has been selected or may be eligible to receive a prize, the solicitor shall not request, and the solicitor or sponsor shall not accept, a payment from the individual in any form before the individual receives a written prize notice that contains all of the information required under W.S. 40-12-203(a) presented in the manner required under W.S. 40-12-203(b) through (f).
40-12-203.� Delivery and contents of written prize notices.
(a)� A written prize notice shall contain all of the following information presented in the manner required under subsections (b) through (f) of this section:
(i)� The name and address of the solicitor and sponsor;
(ii)� The verifiable retail value of each prize the individual has been selected or may be eligible to receive;
(iii)� If the notice lists more than one (1) prize that the individual has been selected or may be eligible to receive, a statement of the odds the individual has of receiving each prize;
(iv)� Any requirement or invitation for the individual to view, hear or attend a sales presentation in order to claim a prize, the approximate length of the sales presentation and a detailed description of the property or service that is the subject of the sales presentation.� The description of the property or service shall include the price of the property or service, the size of the property, length of the service and any other information required to make an informed determination as to the value of the property or service;
(v)� Any requirement that the individual pay shipping or handling fees or any other charges to obtain or use a prize;
(vi)� If receipt of the prize is subject to a restriction, a statement that a restriction applies, a description of the restriction and a statement containing the location in the notice where the restriction is described; and
(vii)� Any limitations on eligibility.
(b)� The verifiable retail value and the statement of odds required in a written prize notice under paragraphs (a)(ii) and (iii) of this section shall be stated in immediate proximity to each listing of the prize in each place the prize appears on the written prize notice and shall be in the same size and boldness of type as the prize, and provided:
(i)� The statement of odds shall include, for each prize, the total number of prizes to be given away and the total number of written prize notices to be delivered.� The number of prizes and written prize notices shall be stated in Arabic numerals.� The statement of odds shall be in the following form:� ".... (number of prizes) out of .... written prizes notices"; and
(ii)� The verifiable retail value shall be in the following form: "verifiable retail value:� $....".
(c)� If an individual is required to pay shipping or handling fees or any other charges to obtain or use a prize, the following statement shall appear in immediate proximity to each listing of the prize in each place the prize appears in the written prize notice and shall be in not less than ten (10) point boldface type:� "YOU MUST PAY $....� IN ORDER TO RECEIVE OR USE THIS ITEM".
(d)� The information required in a written prize notice under paragraph (a)(iv) of this section shall be on the first page of the written prize notice in not less than ten (10) point boldface type.� The information required under paragraphs (a)(vi) and (vii) of this section shall be in not less than ten (10) point boldface type.
(e)� If a written prize notice is given by a solicitor on behalf of a sponsor, the name of the sponsor shall be more prominently and conspicuously displayed than the name of the promoter.
(f)� A solicitor or sponsor shall not do any of the following:
(i)� Place on an envelope containing a written prize notice any representation that the person to whom the envelope is addressed has been selected or may be eligible to receive a prize;
(ii)� Deliver a written prize notice that contains language, or is designed in a manner, that would lead a reasonable person to believe that it originates from a government agency, public utility, insurance company, consumer reporting agency, debt collector or law firm unless the written prize notice originates from that source;
(iii)� Represent directly or by implication that the number of individuals eligible for the prize is limited or that an individual has been selected to receive a particular prize unless the representation is true.
40-12-204.� Sales presentations.
(a)� If a prize notice requires or invites an individual to view, hear or attend a sales presentation in order to claim a prize, the sales presentation shall not begin until the solicitor does all of the following:
(i)� Informs the individual of the prize, if any, that has been awarded to the individual; and
(ii)� If the individual has been awarded a prize, delivers to the individual the prize or the item selected by the individual under W.S. 40-12-205 if the prize is not available.
40-12-205.� Prize award required; options if prize not available.
(a)� A solicitor who represents to an individual in a written prize notice that the individual has been awarded a prize shall provide the prize to the individual unless the prize is not available.� If the prize is not available, the solicitor shall provide the individual with any one (1) of the following items selected by the individual:
(i)� Any other prize listed in the written prize notice that is available and that is of equal or greater value;
(ii)� The verifiable retail value of the prize in the form of cash, a money order or a certified check;
(iii)� A voucher, certificate or other evidence of obligation stating that the prize will be shipped to the individual within thirty (30) days at no cost to the individual.
(b)� If a voucher, certificate or other evidence of obligation delivered under paragraph (a)(iii) of this section is not honored within thirty (30) days, the solicitor shall deliver to the individual the verifiable retail value of the prize in the form of cash, a money order or a certified check.� The sponsor shall make the payment to the individual if the solicitor fails to do so.
40-12-206.� Penalties.
(a)� Except as provided by subsection (b) of this section, any individual who violates this article is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment for not more than six (6) months, or both, for each violation.
(b)� Whoever intentionally violates this article is guilty of a misdemeanor punishable by a fine of not more than ten thousand dollars ($10,000.00), imprisonment for not more than one (1) year, or both.� A person intentionally violates this article if the violation occurs after the attorney general or a district attorney has notified the person by certified mail that the person is in violation of this article.
40-12-207.� Enforcement.
(a)� The attorney general shall investigate violations of this article.
(b)� The attorney general or any district attorney may on behalf of the state:
(i)� Bring an action for temporary or permanent injunctive or other relief in any court of competent jurisdiction for any violation of this article.� The court may, upon entry of final judgment, award restitution when appropriate to any person suffering loss because of a violation of this article if proof of the loss is submitted to the satisfaction of the court;
(ii)� Bring an action in any court of competent jurisdiction for the penalties authorized under W.S. 40-12-206.
40-12-208.� Private action.
(a)� In addition to any other remedies, a person suffering pecuniary loss because of a violation by another person of this article may bring an action in any court of competent jurisdiction and shall recover all of the following:
(i)� The greater of five hundred dollars ($500.00) or twice the amount of the pecuniary loss;
(ii)� Costs and reasonable attorney fees.
40-12-209.� Exemptions.
The provisions of this article shall not apply to the sale or purchase, or solicitation or representation in connection therewith, of goods from a catalog or of books, recordings, video cassettes, periodicals and similar goods through a membership group or club which is regulated by the federal trade commission through a contractual plan or arrangement such as a continuity plan, subscription arrangement, or a single sale or purchase series arrangement under which the seller ships goods to a consumer who has consented in advance to receive the goods and the recipient of the goods is given the opportunity, after examination of the goods, to receive a full refund of charges for the goods or unused portion thereof, upon return of the undamaged goods or unused portion of the goods.
ARTICLE 3 - TELEPHONE SOLICITATION
40-12-301.� Definitions.
(a)� As used in this article:
(i)� "Caller identification service" means a type of telephone service or system which allows telephone subscribers to see the telephone numbers from which incoming telephone calls are dialed;
(ii)� "Consumer" means an actual or prospective purchaser, lessee or recipient of consumer goods or services;
(iii)� "Consumer goods or services" means any real property or any tangible or intangible personal property or any services which are marketed and intended to be used for personal, family or household purposes, including, without limitation, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and timeshare estates;
(iv)� "Doing business in this state" refers to businesses which conduct telephonic sales calls from a location in Wyoming or from other states or nations to consumers located in Wyoming;
(v)� "Enforcing authority" means the Wyoming attorney general;
(vi)� "Established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a seller or telephone solicitor and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the consumer regarding products or services offered by such seller or telephone solicitor which relationship has not been previously terminated by either party;
(vii)� "Merchant" means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services;
(viii)� "National do-not-call list" means the list maintained by the Telephone Preference Service of the Direct Marketing Association, Inc., Farmingdale, New York, or its successor organization;
(ix)� "Telephonic sales call" means a call made by a telephone solicitor to a consumer, for the purpose of soliciting a sale of any consumer goods or services, for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes;
(x)� "Telephone solicitor" means any natural person, business entity or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing devices;
(xi)� "Unpublished cellular telephone number" means a cellular telephone number:
(A)� That has not been requested by the subscriber to be published in any telephone directory or any list of telephone service subscribers; and
(B)� Whose prefix or telephone number has been determined by the public service commission to be primarily for cellular telephone service.
(xii)� "Unsolicited telephonic sales call" means a telephonic sales call other than a call made:
(A)� In response to an express request of the person called;
(B)� Primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the call;
(C)� To any person with whom the telephone solicitor had an established business relationship; or
(D)� By a telephone solicitor or merchant making less than two hundred twenty-five (225) unsolicited calls per year.
40-12-302.� Telephone solicitations.
(a)� Any telephone solicitor or merchant who makes an unsolicited telephonic sales call to a residential or mobile telephone number shall disclose at the outset of the conversation and in a clear and conspicuous manner to the person receiving the call, the following information:
(i)� The name of the individual caller;
(ii)� The identity of the telephone solicitor or merchant and a telephone number and address at which the telephone solicitor or merchant may be contacted;
(iii)� That the purpose of the call is to sell consumer goods or services; and
(iv)� The nature of the consumer goods or services.
(b)� No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any residential, mobile or telephonic paging device telephone number more than sixty (60) days after the number for that telephone appears in the national do-not-call list. This subsection does not apply to any person who calls an actual or prospective seller or lessor of real property when the call is made in response to a yard sign or other form of advertisement placed by the seller or lessor.
(c)� No telephone solicitor or merchant who makes an unsolicited telephonic sales call to the telephone line of a residential subscriber in this state shall knowingly utilize any method to block or otherwise circumvent the subscriber's use of a caller identification service.
(d)� No telephone solicitor shall initiate any unsolicited telephonic sales call to a consumer before the hour of 8 a.m. or after 8 p.m. local time at the consumer's location.
(e)� No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any unpublished cellular telephone number.
40-12-303.� Automated sales calls.
(a)� No telephone solicitor or merchant shall make or knowingly allow a telephonic sales call to be made if the call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.
(b)� Subsection (a) of this section does not prohibit the use of an automated telephone dialing system with live messages if:
(i)� The calls are made or messages given solely in response to calls initiated by the persons to whom the automatic calls or live messages are directed;
(ii)� The telephone numbers selected for automatic dialing have been screened to exclude any telephone subscriber who is included on the national do-not-call list and any unlisted telephone number; or
(iii)� The call is to a consumer with whom the caller had an established business relationship.
40-12-304.� Investigation of complaints; enforcement; attorney's fees.
(a)� The enforcing authority shall investigate any complaints received concerning violations of this article. If, after investigating any complaint, the enforcing authority finds that there has been a willful violation of this article, the enforcing authority may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor or merchant. The civil penalty imposed shall be as follows:
(i)� For the first violation, not to exceed five hundred dollars ($500.00);
(ii)� For the second violation, not to exceed two thousand five hundred dollars ($2,500.00);
(iii)� For the third and subsequent violations, not to exceed five thousand dollars ($5,000.00) per violation.
(b)� An action under this section may be brought in the district court of the county in which the telephone solicitor or merchant resides or had its principle place of business or in the district court of Laramie county Wyoming. The civil penalty provided under this section may be recovered in any action brought under this article by the enforcing authority, or the enforcing authority may terminate any investigation or action upon agreement by the telephone solicitor or merchant to pay a stipulated civil penalty. The enforcing authority or the court may waive any civil penalty if the telephone solicitor or merchant has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.
(c)� In any civil litigation resulting from a transaction involving a violation of this article, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive reasonable attorney's fees and costs from the nonprevailing party.
(d)� The remedies provided by this section are not exclusive and shall not preclude the imposition of any other relief or criminal penalties provided by law.
(e)� It shall be an affirmative defense to an action brought by an enforcing authority for a violation of W.S. 40-12-302(b) that the person called a consumer listed on the national do-not-call list as a result of a good faith error.
40-12-305.� Notice of activity and consent to service of process.
Each telephone solicitor or merchant making unsolicited telephonic sales calls and doing business in this state shall file with the attorney general of this state a statement giving notice of this fact and designating the secretary of state of this state its agent for service of process, unless a lawful resident is designated as agent for service of process, for any alleged violation of this article. The written notice shall further set forth the intention of the telephone solicitor or merchant to abide by the provisions of this article. Compliance with this section shall not subject any telephone solicitor or merchant to the provisions or consequences of any other statute of this state.
ARTICLE 4 - COMMERCIAL ELECTRONIC MAIL
40-12-401.� Definitions.
(a)� As used in this article:
(i)� "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged or intends to engage in any practice that violates this article;
(ii)� "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement;
(iii)� "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered;
(iv)� "Enforcing authority" means the Wyoming attorney general;
(v)� "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows or consciously avoids knowing that the person initiating the transmission is engaged or intends to engage in any act or practice that violates this article;
(vi)� "Interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions;
(vii)� "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy;
(viii)� "Service provider" means an entity offering the transmission, routing or providing of connections for digital online communications between or among points specified by a user, of material of the user's choosing, without modification to the content of the material sent or received.
40-12-402.� Sending unpermitted or misleading electronic mail prohibited.
(a)� No person may initiate the transmission, conspire with another to initiate the transmission or assist the transmission of a commercial electronic mail message from a computer located in Wyoming or to an electronic mail address that the sender knows or has reason to know is held by a Wyoming resident, or to an address that the sender knows or has reason to know is located in a state or other jurisdiction with laws similar to this state's laws regarding commercial electronic mail, that:
(i)� Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(ii)� Contains false or misleading information in the subject line.
(b)� For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Wyoming resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.
(c)� For purposes of this article, a service provider does not assist in the transmission of a commercial electronic mail message in violation of this article if:
(i)� The activity which violates this article was not directed by the service provider or its agent;
(ii)� The service provider does not receive a financial benefit directly attributable to the violation of this article by one (1) of its customers; and
(iii)� The service provider does not provide the equipment or complete management of systems found to have an open mail relay.
40-12-403.� Investigation of complaints; enforcement; attorney's fees.
(a)� The enforcing authority shall investigate any complaints received concerning violations of this article. If, after investigating any complaint, the enforcing authority finds that there has been a violation of this article, the enforcing authority may bring an action to impose a civil penalty and to seek other relief, including injunctive relief. The civil penalty imposed shall be as follows:
(i)� For the first violation, not to exceed five hundred dollars ($500.00);
(ii)� For the second violation, not to exceed two thousand five hundred dollars ($2,500.00);
(iii)� For the third and subsequent violations, not to exceed five thousand dollars ($5,000.00) per violation.
(b)� An action under this section may be brought in the district court of the county in which a commercial electronic mail message that violates this article has been received or in the district court of Laramie county, Wyoming. The civil penalty provided under this section may be recovered in any action brought under this article by the enforcing authority, or the enforcing authority may terminate any investigation or action upon agreement with the person violating this article to pay a stipulated civil penalty.
(c)� In any civil litigation resulting from a transaction involving a violation of this article, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive reasonable attorney's fees and costs from the nonprevailing party.
(d)� The remedies provided by this section are not exclusive and shall not preclude the imposition of any other relief or criminal penalties provided by law.
40-12-404.� Immunity from liability for blocking of commercial electronic mail by interactive computer service.
(a)� An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this article.
(b)� No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of this article.
ARTICLE 5 - CREDIT FREEZE REPORTS
40-12-501.� Definitions.
(a)� As used in this act:
(i)� "Breach of the security of the data system" means unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal identifying information maintained by a person or business and causes or is reasonably believed to cause loss or injury to a resident of this state.� Good faith acquisition of personal identifying information by an employee or agent of a person or business for the purposes of the person or business is not a breach of the security of the data system, provided that the personal identifying information is not used or subject to further unauthorized disclosure;
(ii)� "Consumer" means any person who is utilizing or seeking credit for personal, family or household purposes;
(iii)� "Consumer reporting agency" means any person whose business is the assembling and evaluating of information as to the credit standing and credit worthiness of a consumer, for the purposes of furnishing credit reports, for monetary fees and dues to third parties;
(iv)� "Credit report" means any written or oral report, recommendation or representation of a consumer reporting agency as to the credit worthiness, credit standing or credit capacity of any consumer and includes any information which is sought or given for the purpose of serving as the basis for determining eligibility for credit to be used primarily for personal, family or household purposes;
(v)� "Creditor" means the lender of money or vendor of goods, services or property, including a lessor under a lease intended as a security, rights or privileges, for which payment is arranged through a credit transaction, or any successor to the right, title or interest of any such lender or vendor, and an affiliate, associate or subsidiary of any of them or any director, officer or employee of any of them or any other person in any way associated with any of them;
(vi)� "Financial institution" means any person licensed or chartered under the laws of any state or the United States as a bank holding company, bank, savings and loan association, credit union, trust company or subsidiary thereof doing business in this state;
(vii)� "Personal identifying information" means the first name or first initial and last name of a person in combination with one (1) or more of the following data elements when either the name or the data elements are not redacted:
(A)� Social security number;
(B)� Driver's license number or Wyoming identification card number;
(C)� Account number, credit card number or debit card number in combination with any security code, access code or password that would allow access to a financial account of the person;
(D)� Tribal identification card; or
(E)� Federal or state government issued identification card.
(viii)� "Redact" means alteration or truncation of data such that no more than five (5) digits of the data elements provided in subparagraphs (vii)(A) through (D) of this subsection are accessible as part of the personal information;
(ix)� "Security freeze" means a notice placed in a consumer's credit report, at the request of the consumer, that prohibits the credit rating agency from releasing the consumer's credit report or any information from it relating to an extension of credit or the opening of a new account, without the express authorization of the consumer;
(x)� "Substitute notice" means:
(A)� An electronic mail notice when the person or business has an electronic mail address for the subject persons;
(B)� Conspicuous posting of the notice on the website page of the person or business if the person or business maintains one; and
(C)� Publication in applicable local or statewide media.
(xi)� "This act" means W.S. 40-12-501 through 40-12-511.
(b)� "Personal identifying information" as defined in paragraph (a)(vii) of this section does not include information, regardless of its source, contained in any federal, state or local government records or in widely distributed media that are lawfully made available to the general public.
40-12-502.� Computer security breach; notice to affected persons.
(a)� An individual or commercial entity that conducts business in Wyoming and that owns or licenses computerized data that includes personal identifying information about a resident of Wyoming shall, when it becomes aware of a breach of the security of the system, conduct in good faith a reasonable and prompt investigation to determine the likelihood that personal identifying information has been or will be misused.� If the investigation determines that the misuse of personal identifying information about a Wyoming resident has occurred or is reasonably likely to occur, the individual or the commercial entity shall give notice as soon as possible to the affected Wyoming resident.� Notice shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement and consistent with any measures necessary to determine the scope of the breach and to restore the reasonable integrity of the computerized data system.
(b)� The notification required by this section may be delayed if a law enforcement agency determines in writing that the notification may seriously impede a criminal investigation.
(c)� Any financial institution as defined in 15 U.S.C. 6809 or federal credit union as defined by 12 U.S.C. 1752 that maintains notification procedures subject to the requirements of 15 U.S.C. 6801(b)(3) and 12 C.F.R. Part 364 Appendix B or Part 748 Appendix B, is deemed to be in compliance with this section if the financial institution notifies affected Wyoming customers in compliance with the requirements of 15 U.S.C. 6801 through 6809 and 12 C.F.R. Part 364 Appendix B or Part 748 Appendix B.
(d)� For purposes of this section, notice to consumers may be provided by one (1) of the following methods:
(i)� Written notice;
(ii)� Electronic mail notice;
(iii)� Substitute notice, if the person demonstrates:
(A)� That the cost of providing notice would exceed ten thousand dollars ($10,000.00) for Wyoming-based persons or businesses, and two hundred fifty thousand dollars ($250,000.00) for all other businesses operating but not based in Wyoming;
(B)� That the affected class of subject persons to be notified exceeds ten thousand (10,000) for Wyoming-based persons or businesses and five hundred thousand (500,000) for all other businesses operating but not based in Wyoming; or
(C)� The person does not have sufficient contact information.
�
(iv)� Substitute notice shall consist of all of the following:
(A)� Conspicuous posting of the notice on the Internet, the World Wide Web or a similar proprietary or common carrier electronic system site of the person collecting the data, if the person maintains a public Internet, the World Wide Web or a similar proprietary or common carrier electronic system site; and
(B)� Notification to major statewide media. The notice to media shall include a toll-free phone number where an individual can learn whether or not that individual's personal data is included in the security breach.
(e)� Notice required under subsection (a) of this section shall include:
(i)� A toll-free number:
(A)� That the individual may use to contact the person collecting the data, or his agent; and
(B)� From which the individual may learn the toll-free contact telephone numbers and addresses for the major credit reporting agencies.
(f)� The attorney general may bring an action in law or equity to address any violation of this section and for other relief that may be appropriate to ensure proper compliance with this section, to recover damages, or both.� The provisions of this section are not exclusive and do not relieve an individual or a commercial entity subject to this section from compliance with all other applicable provisions of law.
(g)� Any person who maintains computerized data that includes personal identifying information on behalf of another business entity shall disclose to the business entity for which the information is maintained any breach of the security of the system as soon as practicable following the determination that personal identifying information was, or is reasonably believed to have been, acquired by an unauthorized person.� The person who maintains the data on behalf of another business entity and the business entity on whose behalf the data is maintained may agree which person or entity will provide any required notice as provided in subsection (a) of this section, provided only a single notice for each breach of the security of the system shall be required.� If agreement regarding notification cannot be reached, the person who has the direct business relationship with the resident of this state shall provide notice subject to the provisions of subsection (a) of this section.
40-12-503.� Security freeze.
(a)� Except as provided in W.S. 40-12-505, a consumer may place a security freeze on the consumer's credit report by:
(i)� Making a request to a consumer reporting agency in writing by certified mail; and
(ii)� Providing proper identification.
(b)� If a security freeze is in place, a consumer reporting agency may not release a consumer's credit report or information derived from the credit report to a third party that intends to use the information to determine a consumer's eligibility for credit or the opening of a new account without prior authorization from the consumer.
(c)� Notwithstanding subsection (b) of this section, a consumer reporting agency may communicate to a third party requesting a consumer's credit report that a security freeze is in effect on the consumer's credit report.� If a third party requesting a consumer's credit report in connection with the consumer's application for credit is notified of the existence of a security freeze under this subsection, the third party may treat the consumer's application as incomplete.
(d)� Upon receiving a request from a consumer under subsection (a) of this section, the consumer reporting agency shall:
(i)� Place a security freeze on the consumer's credit report within five (5) business days after receiving the consumer's request;
(ii)� Send a written confirmation of the security freeze to the consumer within ten (10) business days after placing the security freeze; and
(iii)� Provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorizations for removal or temporary lift of the security freeze.
(e)� A consumer reporting agency shall require proper identification of the consumer requesting to place, remove, or temporarily lift a security freeze.
(f)� A consumer reporting agency shall develop a contact method to receive and process a consumer's request to place, remove or temporarily lift a security freeze.� The contact method shall include:
(i)� A postal address;
(ii)� An electronic contact method chosen by the consumer reporting agency, which may include the use of fax, Internet or other electronic means; and
(iii)� The use of telephone in a manner that is consistent with any federal requirements placed on the consumer reporting agency.
(g)� A security freeze placed under this section may be removed or temporarily lifted only in accordance with W.S. 40-12-504.
40-12-504.� Permanent removal or temporary lift of security freeze; requirements and timing.
(a)� A consumer reporting agency may remove a security freeze from a consumer's credit report only if:
(i)� The consumer makes a material misrepresentation of fact in connection with the placement of the security freeze and the consumer reporting agency notifies the consumer in writing before removing the security freeze; or
(ii)� The consumer reporting agency receives the consumer's request through a contact method established and required in accordance with W.S. 40-12-503(f) and the consumer reporting agency receives the consumer's proper identification and other information sufficient to identify the consumer including the consumer's personal identification number or password.
(b)� A consumer reporting agency shall temporarily lift a security freeze upon receipt of:
(i)� The consumer's request through the contact method established by the consumer reporting agency;
(ii)� The consumer's proper identification and other information sufficient to identify the consumer including the consumer's personal identification number or password;
(iii)� A specific designation of the period of time for which the security freeze is to be lifted; and
(iv)� The consumer reporting agency receives the payment of any fee required under W.S. 40-12-506.
(c)� A consumer reporting agency shall temporarily lift a security freeze from a consumer's credit report within:
(i)� Three (3) business days after the business day on which the consumer's request to temporarily lift the security freeze is received by the consumer reporting agency through the contact method developed by the consumer reporting agency as required under W.S. 40-15-503(f); or
(ii)� On or after September 1, 2008, within fifteen (15) minutes after the consumer's request is received by the consumer reporting agency through the electronic contact method developed by the consumer reporting agency as required under W.S. 40-12-503(f) or the use of telephone, during normal business hours and includes the consumer's proper identification and correct personal identification number or password.
(d)� A consumer reporting agency shall permanently remove a security freeze from a consumer's credit report within three (3) business days after the business day on which the consumer's request is received by the consumer reporting agency through the contact method developed by the agency to receive such requests as required under W.S. 40-12-503(f).
(e)� A consumer reporting agency need not temporarily lift a security freeze within the time provided in subsection (c) of this section if:
(i)� The consumer fails to meet the requirements of subsection (b) of this section; or
(ii)� The consumer reporting agency's ability to temporarily lift the security freeze within fifteen (15) minutes is prevented by:
(A)� An act of God, including fire, earthquakes, hurricanes, storms or similar natural disaster or phenomena;
(B)� Unauthorized or illegal acts by a third party, including terrorism, sabotage, riot, vandalism, labor strikes or disputes disrupting operations or similar occurrence;
(C)� Operational interruption, including electrical failure,
unanticipated delay in equipment or replacement part delivery, computer
hardware or software failures inhibiting response time or similar disruption;
(D)� Governmental action, including emergency orders or regulations, judicial or law enforcement action or similar directives;
(E)� Regularly scheduled maintenance, during other than normal business hours, of, or updates to, the consumer reporting agency's systems;
(F)� Commercially reasonable maintenance of, or repair to, the consumer reporting agency's systems that is unexpected or unscheduled; or
(G)� Receipt of a removal request outside of normal business hours.
40-12-505.� Exceptions.
(a)� Notwithstanding W.S. 40-12-503, a consumer reporting agency may furnish a consumer's credit report to a third party if:
(i)� The purpose of the credit report is to:
(A)� Use the credit report for purposes permitted under 15 U.S.C. � 1681b(c);
(B)� Review the consumer's account with the third party, including for account maintenance or monitoring, credit line increases or other upgrades or enhancements;
(C)� Collect on a financial obligation owed by the consumer to the third party requesting the credit report;
(D)� Collect on a financial obligation owed by the consumer to another person; or
(E)� The third party requesting the credit report is a subsidiary, affiliate, agent, assignee or prospective assignee of the person holding the consumer's account or to whom the consumer owes a financial obligation.
(b)� The consumer's request for a security freeze does not prohibit the consumer reporting agency from disclosing the consumer's credit report for other than credit related purposes consistent with the definition of credit report in W.S. 40-12-501(a).
(c)� The following types of credit report disclosures by consumer reporting agencies to third parties are not prohibited by a security freeze:
(i)� The third party does not use the credit report for the purpose of serving as a factor in establishing a consumer's eligibility for credit;
(ii)� The release is pursuant to a court order, warrant or subpoena requiring release of the credit report by the consumer reporting agency;
(iii)� The third party is a child support agency, or its agent or assignee, acting under Part D, Title IV of the Social Security Act or a similar state law;
(iv)� The third party is the federal department of health and human services or a similar state agency, or its agent or assignee, investigating Medicare or Medicaid fraud;
(v)� The purpose of the credit report is to investigate or collect delinquent taxes, assessments or unpaid court orders and the third party is:
(A)� The federal internal revenue service;
(B)� A state taxing authority;
(C)� The department of transportation, division of motor vehicles;
(D)� A county, municipality, or other entity with taxing authority;
(E)� A federal, state or local law enforcement agency; or
(F)� The agent or assignee of any entity listed in this paragraph.
(vi)� The third party is administering a credit file monitoring subscription to which the consumer has subscribed; or
(vii)� The third party requests the credit report for the sole purpose of providing the consumer with a copy of the consumer's credit report or credit score upon the consumer's request.
(d)� The security freeze provisions of W.S. 40-12-503 do not apply to:
(i)� A consumer reporting agency, the sole purpose of which is to resell credit information by assembling and merging information contained in the database of another consumer reporting agency and that does not maintain a permanent database of credit information from which a consumer's credit report is produced;
(ii)� A deposit account information service company that issues reports concerning account closures based on fraud, substantial overdrafts, automated teller machine abuse or similar information concerning a consumer to a requesting financial institution for the purpose of evaluating a consumer's request to create a deposit account;
(iii)� A check services or fraud prevention services company that issues:
(A)� Reports on incidents of fraud; or
(B)� Authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers or similar methods of payment.
(iv)� A consumer reporting agency, with respect to its database of files that consist entirely of public records and is used solely for one (1) or more of the following:
(A)� Criminal record information;
(B)� Tenant screening;
(C)� Employment screening; or
(D)� Fraud prevention or detection.
(v)� A database or file which consists solely of information adverse to the interests of the consumer including, but not limited to, criminal record information which is used for fraud prevention or detection, tenant screening, employment screening or any purpose permitted by the Fair Credit Reporting Act, 15 U.S.C. 1681b;
(vi)� A person to the extent the person offers fraud prevention services which provide reports on incidents of fraud or reports used primarily in the detection or prevention of fraud; or
(vii)� Setting or adjusting of a rate, adjusting a claim or underwriting for insurance purposes.
(e)� Nothing in this article prohibits a person from obtaining, aggregating or using information lawfully obtained from public records in a manner that does not otherwise violate this article.
40-12-506.� Fees for security freeze.
(a)� Except as provided in subsection (b) of this section, a consumer reporting agency may charge a reasonable fee not to exceed ten dollars ($10.00) to a consumer for each placing, temporary lifting or removing of a security freeze.
(b)� A consumer reporting agency may not charge a fee for placing, temporarily lifting or removing a security freeze if:
(i)� The consumer is a victim of identity theft as defined by W.S. 6-3-901; and
(ii)� The consumer provides the consumer reporting agency with a valid copy of a police report or police case number documenting the identity fraud.
40-12-507.� Changes to information in a credit report subject to a security freeze.
(a)� If a credit report is subject to a security freeze, a consumer reporting agency shall notify the consumer who is the subject of the credit report within thirty (30) days if the consumer reporting agency changes their information concerning the consumer's:
(i)� Name;
(ii)� Date of birth;
(iii)� Social security number; or
(iv)� Address.
(b)� Notwithstanding subsection (a) of this section, a consumer reporting agency may make technical modifications to information in a credit report that is subject to a security freeze without providing notification to the consumer.� Technical modifications under this subsection include:
(i)� The addition or subtraction of abbreviations to names and addresses; and
(ii)� Transpositions or corrections of incorrect numbering or spelling.
(c)� When providing notice of a change of address under subsection (a) of this section, the consumer reporting agency shall provide notice to the consumer at both the new address and the former address.
40-12-508.� Violations; penalties.
(a)� If a consumer reporting agency intentionally or negligently violates a valid security freeze by releasing credit information that has been placed under a security freeze, the affected consumer is entitled to:
(i)� Notification within five (5) business days� following the agency's discovery, or notification from another source, of the release of the information.� The notification under this paragraph shall include specificity as to the information released and the third party recipient of the information;
(ii)� Notification that the consumer may file a complaint with the federal trade commission and the state attorney general.
(b)� If a consumer reporting agency intentionally or negligently violates a valid security freeze by releasing credit information that has been placed under a security freeze and fails to take steps to correct the release and fails to give the notification required under subsection (a) of this section, the affected consumer is entitled to, in a civil action against the consumer reporting agency, recover:
(i)� Injunctive relief to prevent or restrain further violation of the security freeze;
(ii)� A civil penalty in an amount not to exceed one thousand dollars ($1,000.00) plus any damages available under other civil laws; and
(iii)� Reasonable expenses, court costs, investigative costs and attorney's fees.
(c)� Each violation of the security freeze shall be counted as a separate incident for purposes of imposing penalties under this section.
40-12-509.� Factual declaration of innocence after identity theft.
(a)� A person who reasonably believes that he or she is the victim of identity theft as defined by W.S. 6-3-901 may petition a court, or the court, on its own motion or upon application of the prosecuting attorney, may move for an expedited judicial determination of his or her factual innocence, where the perpetrator of the identity theft was arrested for, cited for or convicted of a crime under the victim's identity, or where a criminal complaint has been filed against the perpetrator in the victim's name, or where the victim's identity has been mistakenly associated with a record of criminal conviction. Any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports or other material, relevant and reliable information submitted by the parties or ordered to be part of the record by the court. Where the court determines that the petition or motion is meritorious and that there is no reasonable cause to believe that the victim committed the offense for which the perpetrator of the identity theft was arrested, cited, convicted or subject to a criminal complaint in the victim's name, or that the victim's identity has been mistakenly associated with a record of criminal conviction, the court shall find the victim factually innocent of that offense. If the victim is found factually innocent, the court shall issue an order certifying this determination.
(b)� After a court has issued a determination of factual innocence pursuant to subsection (a) of this section, the court may order the name and associated personal identifying information contained in court records, files and indexes accessible by the public deleted, sealed or labeled to show that the data is impersonated and does not reflect the defendant's identity.
(c)� Upon making a determination of factual innocence, the court shall provide the consumer written documentation of the order.
(d)� A court that has issued a determination of factual innocence pursuant to this section may at any time vacate that determination if the petition, or any information submitted in support of the petition, is found to contain any material misrepresentation or fraud.
(e)� The supreme court shall develop a form for use in issuing an order pursuant to this section.
(f)� The attorney general shall establish and maintain a data base of individuals who have been victims of identity theft and that have received determinations of factual innocence.� The attorney general shall provide a victim of identity theft or his authorized representative access to the database in order to establish that the individual has been a victim of identity theft. Access to the database shall be limited to criminal justice agencies, victims of identity theft and individuals and agencies authorized by the victims.
(g)� The attorney general shall establish and maintain a toll free number to provide access to information under subsection (f) of this section.
(h)� In order for a victim of identity theft to be included in the database established pursuant to subsection (f) of this section, he shall submit to the attorney general a court order obtained pursuant to this section, a full set of fingerprints and any other information prescribed by the attorney general.
(j)� Upon receiving information pursuant to subsection (h) of this section, the attorney general shall verify the identity of the victim against any driver's license or other identification record maintained by the department of transportation, division of motor vehicles.
CHAPTER 13 - COPYRIGHTED MUSIC
ARTICLE 1 - PROTECTION OF COPYRIGHT USERS
40-13-101.� Short title.
This act may be cited as the "Protection of Copyright Users Act".
40-13-102.� Definitions.
(a)� The following words, terms and phrases, when used in this act, shall have the meaning ascribed in this section, except where the context clearly indicates a different meaning:
(i)� "Blanket license" includes any device or contract whereby public performance of musical compositions for profit is authorized of combined copyrights of two (2) or more owners;
(ii)� "Blanket royalty or fee" includes any device or contract whereby prices for performing rights of musical compositions are not based upon the performance of individual copyrights;
(iii)� "Composition" includes any and all musical, instrumental or vocal, compositions, which may be transcribed and reproduced by mechanical, electronic, magnetic means or devices, or any method now known or later developed;
(iv)� "Copyright" means the exclusive rights and privileges provided for under the constitution of the United States and federal copyright laws;
(v)� "Music licensing agency" means and includes any person, corporation or any association, society, partnership, union, or other organization of two (2) or more copyright owners or proprietors, which has or claims the exclusive or nonexclusive authority to issue, grant or to contract for, performing rights licenses for two (2) or more copyright owners. When two (2) or more copyright owners or proprietors are represented by the same agent or representative, this agent or representative shall be deemed to be a "music licensing agency";
(vi)� "Performing rights" means "public performance for profit" of musical compositions;
(vii)� "Person" means any individual, resident or nonresident of this state, and every domestic or foreign or alien partnership, society, association, corporation, or other organization;
(viii)� "User" means any person, who, directly or indirectly, performs, or causes to be performed, musical compositions for profit.
40-13-103.� Licensing requirements.
(a)� No music licensing agency and no copyright owner who is a member of such music licensing agency or who licenses the performing rights to his music through a music licensing agency shall license the use of, or in any manner whatsoever dispose of, in this state, the performing rights in or to any musical composition which has been copyrighted, and is the subject of a valid existing copyright under the laws of the United States or collect any compensation on account of any sale, license or other disposition, unless such music licensing agency and each copyright owner shall:
(i)� File annually with the secretary of state in duplicate a certified copy of each performing rights contract or license agreement made available from such music licensing agency or copyright owner to any user within the state;
(ii)� Issue, upon request, licenses of performing rights of the compositions in the repertory of the music licensing agency to a radio broadcasting network, telecasting network or music service, on terms which authorize the simultaneous and delayed performance by broadcasting or telecasting or simultaneous performance by music service as the case may be, by some or all of the stations in this state affiliated with such radio or television network or by some or all subscriber outlets in this state affiliated with any music service without requiring a separate license for such station or subscriber for such performance.
40-13-104.� Discrimination prohibited.
All groups and persons affected by this act are prohibited from discriminating against the citizens of this state by charging higher and more inequitable rates for music licenses in this state than in other states.
40-13-105.� Licenses and fees; choices.
The licenses and fees made available pursuant to this article shall provide users with genuine economic choices between the various licenses and fees provided for application within the state of Wyoming.
40-13-106.� Time for filing contracts and licenses; filing fee.
The contracts and licenses required by this article shall be filed with the secretary of state. A filing fee of five dollars ($5.00) shall be paid to the secretary of state at the time of each filing.
40-13-107.� Blanket license fees.
Charges and fees under any blanket license for a blanket royalty or fee shall be valid and enforceable only to the extent that the music licensing agency shall have complied with the provisions of this act.
40-13-108.� Doing business defined; amenability to process; service on nonresidents.
(a)� All persons, groups, corporations, associations, foreign or domestic, subject to this act shall be deemed to be doing business within this state and amenable to the process of the courts of the state of Wyoming when:
(i)� Any such persons, combinations or groups have been issued licenses, either from within or from without the state, for the privilege of using commercially and publicly any copyrighted work or works pooled in a common group or entity;
(ii)� When any of the functions of the entity, organization, pool or combines, have been performed in this state.
(b)� If such owners of copyrights comply with the provisions of this act they shall be granted the privilege of conducting business within this state in a legal manner, and may invoke the benefits of the state government and its political subdivisions in their behalf, using all of the privileges available to the citizens of this state. Use of such privileges shall be deemed to be an acceptance of the provisions of this act.
(c)� The acceptance by such persons of the rights and privileges conferred by the law of this state to any of its citizens shall be deemed equivalent to and construed to be an appointment by such nonresidents of the secretary of state of the state of Wyoming to be their true and lawful attorney upon whom may be served all summons and processes growing out of a violation of this act. Service of such summons or process shall be made by leaving a copy with a fee of five dollars ($5.00) with the secretary of state of Wyoming, or in his office. Such service shall be sufficient and valid personal service upon any such nonresident defendant, copyright holder or owner, persons or defendants, combination, entity or organization. Notice of such service and a copy of the summons or process shall be forthwith sent by registered mail requiring personal delivery, by the prosecutor bringing any action under this chapter, to any defendant at his last known address, and the defendant's return receipt and the prosecutor's affidavit of compliance herewith are appended to the process and entered as a part of the return. The secretary of state shall keep a record of all such summons and process which shall show the day and time of service.
40-13-109.� Injunction.
In the event any person, or groups of persons, or any combination, refuse to comply with the provisions of this act, then the county attorney for any county or the attorney general upon complaint of any violation, may institute injunction proceedings against the persons in the district court. The court may enjoin all persons from violating the provisions of this act and the constitutional provisions prohibiting price fixing, monopolies and combinations.
40-13-110.� Right to sue; limitation; damages.
Any person in this state who is injured in his business or property or aggrieved by reason of any violation of this act may sue therefor within six (6) years of said violation in the district court in the county in which the violation or any part thereof took place, to recover any damages sustained as a result of the violation of the terms of this act, and shall be entitled to recover his costs, including reasonable attorney's fees. The court may in its discretion increase the award of damages to an amount not to exceed three (3) times the actual damages sustained.
40-13-111.� Existing contracts not affected.
No blanket license or contract in existence with a user in the state of Wyoming at the time of the passage of this act shall be affected by this act.
40-13-112.� Special appearances deemed general.
In the event any person, or any defendant is proceeded against as herein outlined, and is served with process according to law, appears in any proceeding by counsel or otherwise, or institutes any special proceeding attacking such proceeding, or makes any motion therein, either special or general, or appears to obtain the judgment of the court solely upon the sufficiency of the service of process, or upon any phase or particularity of the injunction proceedings, such special proceeding or appearance, or motion, or appearance shall be deemed as a general appearance.
40-13-113.� Penalty for violations.
A person or music licensing agency who violates this act is guilty of a high misdemeanor and upon conviction is punishable for each violation by a fine of not to exceed one thousand dollars ($1,000.00), or by imprisonment in the state prison for a period of one (1) year, or both.
ARTICLE 2 - PROTECTION OF SOUND PRODUCTIONS
40-13-201.� Definitions.
(a)� As used in W.S. 40-13-201 through 40-13-206:
(i)� "Owner" means the person who owns the original fixation of sounds embodied in the master phonograph record, master disc, master tape, master film or other device used for reproducing sounds on phonograph records, discs, tapes, films or other articles upon which sound is recorded and from which the transferred recorded sounds are directly derived;
(ii)� "Performer" means any person appearing in a performance.
40-13-202.� Prohibited acts.
(a)� No person shall:
(i)� Knowingly and without the consent of the owner, transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded, with intent to sell or to cause to be sold for profit or used to promote the sale of any product, the article on which the sounds are transferred; or
(ii)� Knowingly and without the consent of the performer or his agent, transfer to or cause to be transferred to any phonograph record, disc, wire, tape, film or other article, any performance, whether live before an audience or transmitted by wire or through the air by radio or television, with intent to sell or to cause to be sold for profit or used to promote the sale of any product, the article on which the performance is transferred.
40-13-203.� Forfeiture and destruction.
Any article produced in violation of W.S. 40-13-202 and any equipment or components used in producing the article is subject to forfeiture to and destruction by law enforcement agencies.
40-13-204.� Additional prohibited act; evidence.
No person shall knowingly or with reasonable grounds to know, advertise, offer for sale or resale, sell or resell, distribute or possess any article which has been produced without the consent of the owner or performer.� Possession of five (5) or more duplicate copies or twenty (20) or more individual copies of recorded articles produced without the consent of the owner or performer is prima facie evidence that the devices are intended for sale or distribution in violation of this section.
40-13-205.� Penalty.
(a)� Any person who violates any portion of W.S. 40-13-202 is guilty of a felony and shall be imprisoned in the state penitentiary for not less than one (1) year nor more than two (2) years or fined not more than ten thousand dollars ($10,000.00), or both.� Each violation is a separate offense.
(b)� Any person who violates the provisions of W.S. 40-13-204 is guilty of a misdemeanor and shall be imprisoned in the county jail for not more than one (1) year or fined not more than ten thousand dollars ($10,000.00), or both.� Each violation is a separate offense.
40-13-206.� Exceptions.
(a)� W.S. 40-13-201 through 40-13-206 do not apply to:
(i)� Any broadcaster who, in connection with or as part of a radio, television or cable broadcast transmission or for the purpose of archival preservation, transfers any such sounds recorded on a sound recording;
(ii)� Any person who transfers such sounds in the home, for personal use and without compensation for the transfer;
(iii)� The transfer of sounds or possession of duplicate copies within an educational institution, solely for educational purposes; or
(iv)� Any common carrier whose services or facilities are merely contracted for and used by another for the purpose of transferring sound.
ARTICLE 3 - COPYRIGHT LICENSE ENFORCEMENT
40-13-301.� Definitions.
(a)� As used in this act:
(i)� "Copyright owner" means the owner of a copyright of a nondramatic musical work recognized and enforceable under the copyright laws of the United States pursuant to Title 17 of the United States Code, P. L. 94-553 (17 U.S.C. � 101 et seq.).� "Copyright owner" shall not include the owner of a copyright in a motion picture or audiovisual work or in part of a motion picture or audiovisual work;
(ii)� "Performing rights society" means an association or corporation that licenses the public performance of nondramatic musical works on behalf of copyright owners, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC, Inc.;
(iii)� "Proprietor" means the owner of a retail establishment, restaurant, inn, bar, tavern or any other place of business or professional office located in this state in which the public may assemble and in which nondramatic musical works may be performed, broadcast or otherwise transmitted;
(iv)� "Royalty" or "royalties" means the fees payable to a performing rights society for public performance rights;
(v)� "This act" means W.S. 40-13-301 through 40-13-305.
40-13-302.� Information required to be provided regarding royalty contracts; contract requirements.
(a)� No performing rights society shall enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless at the time of the offer, or any time thereafter, but no later than seventy-two (72) hours prior to the execution of that contract, it provides to the proprietor, in writing the following:
(i)� A schedule of the rates and terms of royalties under the contract;
(ii)� Upon request of the proprietor, the opportunity to review the most current available list of the members or affiliates represented by the society;
(iii)� Notice that it will make available, upon written request of any proprietor or bona fide trade association representing groups of proprietors, at the sole expense of the proprietor or bona fide trade association representing groups of proprietors, by electronic means or otherwise, the most current available listing of the copyrighted musical works in such performing rights society's repertory. The notice shall specify the means by which the information can be secured;
(iv)� Notice that the performing rights society has a toll free telephone number which can be used to answer inquiries of a proprietor regarding specific musical works and the copyright owners represented by that performing rights society; and
(v)� Notice that it complies with federal law and orders of courts having appropriate jurisdiction regarding the rates and terms of royalties and the circumstances under which licenses for rights for public performances are offered to any proprietor.
(b)� Every contract between a performing rights society and proprietor for the payment of royalties executed, issued or renewed in this state on or after July 1, 1996 shall:
(i)� Be in writing;
(ii)� Be signed by the parties; and
(iii)� Include at least the following information:
(A)� The proprietor's name and business address and the name and location of each place of business to which the contract applies;
(B)� The name and address of the performing rights society;
(C)� The duration of the contract; and
(D)� The schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of that contract.
40-13-303.� Restrictions.
(a)� No performing rights society or any agent or employee thereof shall:
(i)� With respect to a contract executed, issued or renewed on or after July 1, 1996, collect or attempt to collect from a proprietor licensed by that performing rights society a royalty payment except as provided in a contract executed pursuant to the provisions of this act;
(ii)� Enter onto the premises of a proprietor's business for the purpose of discussing a contract for payment of royalties for the use of copyrighted works by that proprietor without first identifying himself to the proprietor or his employees and disclosing that the agent is acting on behalf of the performing rights society and disclosing the purposes of the discussion.
40-13-304.� Civil actions.
Any person who suffers a violation of this act may bring an action to recover actual damages and reasonable attorney's fees and seek an injunction or any other remedy available at law or in equity.
40-13-305.� Applicability.
This act shall not apply to contracts between performing rights societies and broadcasters licensed by the federal communications commission or to contracts with cable operators, programmers or other transmission services.� This act also shall not apply to investigations conducted by law enforcement agencies.
CHAPTER 14 - WYOMING UNIFORM CONSUMER CREDIT CODE
ARTICLE 1 - GENERAL PROVISIONS AND DEFINITIONS
40-14-101.� Short title.
This act shall be known and may be cited as "Wyoming Uniform Consumer Credit Code."
40-14-102.� Purposes; rules of construction.
(a)� This act shall be liberally construed and applied to promote its underlying purposes and policies.
(b)� The underlying purposes and policies of this act are:
(i)� To simplify, clarify and modernize the law governing retail installment sales, consumer credit, small loans and usury;
(ii)� To provide rate ceilings to assure an adequate supply of credit to consumers;
(iii)� 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 cost;
(iv)� 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;
(v)� To permit and encourage the development of fair and economically sound consumer credit practices;
(vi)� To conform the regulation of consumer credit transactions to the policies of the federal Consumer Credit Protection Act; and
(vii)� To make uniform the law, including administrative rules, among the various jurisdictions.
(c)� A reference to a requirement imposed by this act includes reference to a related rule of the administrator adopted pursuant to this act.
40-14-103.� Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this act, the Uniform Commercial Code and the principles of law and equity, including the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause, supplement its provisions.
40-14-104.� Construction against implicit repeal.
This act being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.
40-14-105.� Severability.
If any provision of this act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
40-14-106.� Waiver; agreement to forego rights; settlement of claims; legal rate of interest.
(a)� Except as otherwise provided in this act, a buyer, lessee, or debtor may not waive or agree to forego rights or benefits under this act.
(b)� A claim by a buyer, lessee, or debtor against a creditor for an excess charge, other violation of this act, or civil penalty, or a claim against a buyer, lessee, or debtor for default or breach of a duty imposed by this act, if disputed in good faith, may be settled by agreement.
(c)� A claim, whether or not disputed, against a buyer, lessee, or debtor may be settled for less value than the amount claimed.
(d)� A settlement in which the buyer, lessee, or debtor waives or agrees to forego rights or benefits under this act is invalid if the court as a matter of law finds the settlement to have been unconscionable at the time it was made. The competence of the buyer, lessee, or debtor, any deception or coercion practiced upon him, the nature and extent of the legal advice received by him, and the value of the consideration are relevant to the issue of unconscionability.
(e)� If there is no agreement or provision of law for a different rate, the interest of money shall be at the rate of seven percent (7%) per annum.
40-14-107.� Effect on powers of organizations.
(a)� This act prescribes maximum charges for all creditors, except lessors and those excluded (W.S. 40-14-121), extending consumer credit including consumer credit sales (W.S. 40-14-204), consumer loans (W.S. 40-14-304), and consumer related sales and loans (W.S. 40-14-257 and 40-14-355), and displaces existing limitations on the powers of those creditors based on maximum charges.
(b)� With respect to sellers of goods or services, small loan companies, licensed lenders, consumer and sales finance companies, industrial banks and loan companies and commercial banks and trust companies, this act displaces existing limitations on their powers based solely on amount or duration of credit.
(c)� Except as provided in subsection (a) of this section, this act does not displace limitations on powers of credit unions, savings banks, savings and loan associations, or other thrift institutions whether organized for the profit of shareholders or as mutual organizations.
(d)� Except as provided in subsections (a) and (b) of this section, this act does not displace:
(i)� Limitations on powers of supervised financial organizations defined by W.S. 40-14-140(a)(xix) with respect to the amount of a loan to a single borrower, the ratio of a loan to the value of collateral, the duration of a loan secured by an interest in land or other similar restrictions designed to protect deposits; or
(ii)� Limitations on powers an organization is authorized to exercise under the laws of this state or the United States.
40-14-120.� Territorial application.
(a)� Except as otherwise provided in this section, this act applies to consumer credit transactions made in this state. For purposes of this act, a consumer credit transaction is made in this state if:
(i)� A signed writing evidencing the obligation or offer of the consumer is received by the creditor in this state;
(ii)� The creditor induces consumers who are residents of this state to enter into credit transactions by a continuous and systematic solicitation either personally or by mail and the goods or money are delivered in this state and payment is made from this state; or
(iii)� The credit transaction is secured by a dwelling, as defined in W.S. 40-14-640(a), located in Wyoming.
(b)� With respect to sales made pursuant to a revolving charge account (W.S. 40-14-208), this act applies if the buyer's communication or indication of his intention to establish the account is received by the seller in this state. If no communication or indication of intention is given by the buyer before the first sale, this act applies if the seller's communication notifying the buyer of the privilege of using the account is mailed or personally delivered in this state.
(c)� With respect to loans made pursuant to a lender credit card or similar arrangement (W.S. 40-14-140(a)(ix)), this act applies if the debtor's communication or indication of his intention to establish the arrangement with the lender is received by the lender in this state. If no communication or indication of intention is given by the debtor before the first loan, this act applies if the lender's communication notifying the debtor of the privilege of using the arrangement is mailed or personally delivered in this state.
(d)� The part on limitations on creditors' remedies (part 1) of the article on remedies and penalties (article 5) applies to actions or other proceedings brought in this state to enforce rights arising from consumer credit sales, consumer leases, or consumer loans, or extortionate extensions of credit, wherever made.
(e)� If a consumer credit sale, consumer lease, or consumer loan, or modification thereof, is made in another state to a person who is a resident of this state when the sale, lease, loan, or modification is made, the following provisions apply as though the transaction occurred in this state:
(i)� A seller, lessor, lender, or assignee of his rights, may not collect charges through actions or other proceedings in excess of those permitted by the article on credit sales (article 2) or by the article on loans (article 3); and
(ii)� A seller, lessor, lender, or assignee of his rights, may not enforce rights against the buyer, lessee, or debtor, with respect to the provisions of agreements which violate the provisions on limitations on agreements and practices (part 4) of the article on credit sales (article 2) or of the article on loans (article 3).
(f)� Except as provided in subsection (d) of this section, a sale, lease, loan or modification thereof, made in another state to a person who was not a resident of this state when the sale, lease, loan, or modification was made is valid and enforceable in this state according to its terms to the extent that it is valid and enforceable under the laws of the state applicable to the transaction.
(g)� For the purposes of this act, the residence of a buyer, lessee, or debtor is the address given by him as his residence in any writing signed by him in connection with a credit transaction. Until he notifies the creditor of a new or different address, the given address is presumed to be unchanged.
(h)� Notwithstanding other provisions of this section:
(i)� Except as provided in subsection (d) of this section, this act does not apply if the buyer, lessee, or debtor is not a resident of this state at the time of a credit transaction and the parties then agree that the law of his residence applies; and
(ii)� This act applies if the buyer, lessee, or debtor is a resident of this state at the time of a credit transaction and the parties then agree that the law of this state applies.
(j)� Except as provided in subsection (h) of this section, the following agreements by a buyer, lessee, or debtor are invalid with respect to consumer credit sales, consumer leases, consumer loans, or modifications thereof, to which this act applies:
(i)� That the law of another state shall apply;
(ii)� That the buyer, lessee, or debtor consents to the jurisdiction of another state; and
(iii)� That fixes venue.
(k)� The following provisions of this act specify the applicable law governing certain cases:
(i)� Applicability (W.S. 40-14-602) of the part on powers and functions of administrator (part 1) of the article on administration (article 6); and
(ii)� Applicability (W.S. 40-14-630) of the part on notification and fees (part 2) of the article on administration (article 6).
40-14-121.� Exclusions.
(a)� Except as required by W.S. 40-14-641, this act does not apply to:
(i)� Extensions of credit to government or governmental agencies or instrumentalities;
(ii)� Except as otherwise provided in the article on insurance [article 4], the sale of insurance by an insurer if the premium is not financed;
(iii)� Transactions under public utility or common carrier tariffs if a subdivision or agency of this state or of the United States regulates the charges for the services involved, the charges for delayed payment, and any discount allowed for early payment; or
(iv)� Repealed by Laws 1983, ch. 62, � 2.
(v)� Ceilings on rates and charges or limits on loan maturities of a credit union organized under the laws of this state or of the United States if these ceilings or limits are established by these laws; or
(vi)� Credit sales, loans or leases primarily for an agricultural purpose except as provided in article 2, part 6 and article 3, part 6 of this code.
40-14-140.� General definitions.
(a)� In addition to definitions appearing in subsequent articles, in this act:
(i)� "Actuarial method" means the method, defined by rules adopted by the administrator, of allocating payments made on a debt between principal or amount financed and loan finance charge or credit service charge pursuant to which a payment is applied first to the accumulated loan finance charge or credit service charge and the balance is applied to the unpaid principal or unpaid amount financed;
(ii)� "Administrator" means the administrator designated in the article (article 6) on administration (W.S. 40-14-603);
(iii)� "Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance;
(iv)� "Agricultural purpose" means a purpose related to the production, harvest, exhibition, marketing, transportation, processing, or manufacture of agricultural products by a natural person who cultivates, plants, propagates, or nurtures the agricultural products. "Agricultural products" includes agricultural, horticultural, viticultural, and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof;
(v)� "Closing costs" with respect to a debt secured by an interest in land includes:
(A)� Fees or premiums for title examination, title insurance, or similar purposes including surveys;
(B)� Fees for preparation of a deed, settlement statement, or other documents;
(C)� Escrows for future payments of taxes and insurance;
(D)� Fees for notarizing deeds and other documents;
(E)� Appraisal fees; and
(F)� Credit reports.
(vi)� "Conspicuous". - A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. Whether a term or clause is conspicuous or not is for decision by the court;
(vii)� "Credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment;
(viii)� "Earnings" means compensation paid or payable to an individual or for his account for personal services rendered or to be rendered by him, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension, retirement, or disability program;
(ix)� "Lender credit card or similar arrangement" means an arrangement or loan agreement, other than a seller credit card, pursuant to which a lender gives a debtor the privilege of using a credit card, letter of credit, or other credit confirmation or identification in transactions out of which debt arises:
(A)� By the lender's honoring a draft or similar order for the payment of money drawn or accepted by the debtor;
(B)� By the lender's payment or agreement to pay the debtor's obligations; or
(C)� By the lender's purchase from the obligee of the debtor's obligations.
(x)� "Mechanical breakdown insurance" means a contractual undertaking in which a person for an additional charge undertakes to indemnify another for direct or consequential loss caused by the failure or malfunction of a component or system of any motor vehicle whether that loss is to be indemnified in funds, goods or services in any combination;
(xi)� "Official fees" means:
(A)� Fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of or for perfecting, releasing, or satisfying a security interest related to a consumer credit sale, consumer lease, or consumer loan; or
(B)� Premiums payable for insurance in lieu of perfecting a security interest otherwise required by the creditor in connection with the sale, lease, or loan, if the premium does not exceed the fees and charges described in subparagraph (A) of this paragraph which would otherwise be payable.
(xii)� "Organization" means a sole proprietorship, limited liability company, corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, association or other entity, public or private;
(xiii)� "Payable in installments" means that payment is required or permitted by a written agreement in five (5) or more installments. If any periodic payment other than the down payment under an agreement requiring or permitting two (2) or more periodic payments is more than twice the amount of any other periodic payment, excluding the down payment, the consumer credit sale, consumer lease or consumer loan is "payable in installments";
(xiv)� "Person" includes a natural person or an individual, and an organization;
(xv)(A)� "Person related to" with respect to an individual, means:
(I)� The spouse of the individual;
(II)� A brother, brother-in-law, sister, sister-in-law of the individual;
(III)� An ancestor or lineal descendant of the individual or his spouse; and
(IV)� Any other relative, by blood or marriage, of the individual or his spouse who shares the same home with the individual;
(B)� "Person related to" with respect to an organization means:
(I)� A person directly or indirectly controlling, controlled by or under common control with the organization;
(II)� 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;
(III)� The spouse of a person related to the organization; and
(IV)� A relative by blood or marriage of a person related to the organization who shares the same home with him.
(xvi)� "Presumed" or "presumption" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence;
(xvii)� "Rule of 78's" means the method used in the calculation of rebate upon prepayment where the unearned portion of the credit service charge or loan finance charge is a fraction of the charge of which the numerator is the sum of the periodic balances scheduled to follow the computational period in which prepayment occurs and the denominator is the sum of all periodic balances under the related consumer credit sale agreement, the loan agreement or, if the balance owing resulted from a refinancing or a consolidation, the related refinancing agreement or consolidation agreement;
(xviii)� "Seller credit card" means an arrangement in which a person gives to a buyer or lessee the privilege of using a credit card, letter of credit or other credit confirmation or identification primarily for the purpose of purchasing or leasing goods or services from that person or from that person and any other person;
(xix)� "Supervised financial organization" means a person other than an insurance company or other organization primarily engaged in an insurance business, which is:
(A)� Organized, chartered or holding an authorization certificate under the laws of this state, any other state or of the United States which authorizes the person to make loans and to receive deposits including a savings, share, certificate or deposit account; and
(B)� Subject to supervision by an official or agency of any state or of the United States.
(xx)� "Licensee" means an organization licensed under this act;
(xxi)� "This act" means W.S. 40-14-101 through 40-14-702.
40-14-141.� Definition.
In this act "Federal Consumer Credit Protection Act" means the Consumer Credit Protection Act (Public Law 90-321; 82 U.S. Statutes 146), as amended, and includes regulations issued pursuant to that act.
40-14-142.� Index of definitions.
(a)� Definitions in this act and the sections in which they appear are:
(i)� "Actuarial method" - W.S. 40-14-140(a)(i);
(ii)� "Administrator" - W.S. 40-14-140(a)(ii);
(iii)� "Administrator" - W.S. 40-14-603;
(iv)� "Agreement" - W.S. 40-14-140(a)(iii);
(v)� "Agricultural purpose" - W.S. 40-14-140(a)(iv);
(vi)� "Amount financed" - W.S. 40-14-211;
(vii)� Repealed By Laws 2008, Ch. 116, � 2.
(viii)� Repealed By Laws 2008, Ch. 116, � 2.
(ix)� "Cash price" - W.S. 40-14-210;
(x)� "Closing costs" - W.S. 40-14-140(a)(v);
(xi)� "Conspicuous" - W.S. 40-14-140(a)(vi);
(xii)� "Consumer credit insurance" - W.S. 40-14-403(a)(i);
(xiii)� "Consumer credit sale" - W.S. 40-14-204;
(xiv)� "Consumer lease" - W.S. 40-14-206;
(xv)� "Consumer loan" - W.S. 40-14-304;
(xvi)� "Consumer related loan" - W.S. 40-14-355;
(xvii)� "Consumer related sale" - W.S. 40-14-257;
(xviii)� "Corresponding nominal annual percentage rate" - (sale) - W.S. 40-14-225(c) [Repealed];
(xix)� "Corresponding nominal annual percentage rate" - (loan) - W.S. 40-14-323(c) [Repealed];
(xx)� "Credit" - W.S. 40-14-140(a)(vii);
(xxi)� "Credit Insurance Act" - W.S. 40-14-403(a)(ii);
(xxii)� "Credit service charge" - W.S. 40-14-209;
(xxiii)� "Earnings" - W.S. 40-14-140(a)(viii);
(xxiv)� "Federal Consumer Credit Protection Act" - W.S. 40-14-141;
(xxv)� "Goods" - W.S. 40-14-205(a);
(xxvi)� "Home solicitation sale" - W.S. 40-14-251;
(xxvii)� "Lender" - W.S. 40-14-307(a);
(xxviii)� "Lender credit card or similar arrangement" - W.S. 40-14-140(a)(ix);
(xxix)� "Loan" - W.S. 40-14-306;
(xxx)� "Loan finance charge" - W.S. 40-14-309;
(xxxi)� "Loan primarily secured by an interest in land" - W.S. 40-14-305;
(xxxii)� "Mechanical breakdown insurance" - W.S. 40-14-140(a)(x);
(xxxiii)� "Merchandise certificate" - W.S. 40-14-205(b);
(xxxiv)� "Official fees" - W.S. 40-14-140(a)(xi);
(xxxv)� "Organization" - W.S. 40-14-140(a)(xii);
(xxxvi)� "Payable in installments" - W.S. 40-14-140(a)(xiii);
(xxxvii)� "Pawnbroker" - W.S. 40-14-359(a)(i);
(xxxviii)� "Pawn finance charge" - W.S. 40-14-359(a)(ii);