Assembly Bill A8263

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8263

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              June 9, 2011
                               ___________

Introduced  by  M.  of  A.  STEVENSON  -- Multi-Sponsored by -- M. of A.
  CALHOUN, CERETTO, COOK, SAYWARD, SPANO -- read once  and  referred  to
  the Committee on Consumer Affairs and Protection

AN  ACT  to  amend  the general business law, in relation to prohibiting
  unsolicited advertisements

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new section
349-f to read as follows:
  S  394-F.  UNSOLICITED ADVERTISEMENTS. 1. FOR PURPOSES OF THIS SECTION
THE TERMS:
  (A) "UNSOLICITED ADVERTISEMENT" SHALL MEAN  ANY  WRITTEN  SOLICITATION
FOR  THE  PURCHASE,  LEASE, CONTRACT OR INVESTMENT IN PROPERTY, GOODS OR
SERVICES, INCLUDING CIRCULARS, NOTIFICATIONS OF ITEMS FOR SALE, AND  THE
OFFERING  OF A PRIZE IN EXCHANGE FOR A PURCHASE OR FOR ATTENDANCE AT ANY
LOCATION FOR PURPOSES OF A SOLICITATION, OR CONTRIBUTION TO ANY  NATURAL
PERSON WITHOUT THAT NATURAL PERSON'S EXPRESS INVITATION OR PERMISSION.
  (B)  "CONSUMER"  SHALL  MEAN  A  NATURAL  PERSON  WHO  IS SOLICITED TO
PURCHASE, RENT OR  INVEST  IN  PROPERTY,  GOODS  OR  SERVICES  INCLUDING
RECEIVING A PRIZE IN EXCHANGE FOR A PURCHASE OR ATTENDANCE.
  2.  NO  PERSON,  FIRM,  PARTNERSHIP, CORPORATION OR ASSOCIATION, SHALL
MAIL OR DELIVER BY ANY MEANS, ANY UNSOLICITED ADVERTISEMENT TO THE HOME,
OFFICE OR BUSINESS ADDRESS OF  ANY  CONSUMER,  INCLUDING  ADVERTISEMENTS
GENERICALLY  ADDRESSED  TO  "OCCUPANTS"  OR  "RESIDENTS" OF SUCH ADDRESS
UNLESS SUCH ADVERTISEMENT HAS  BEEN  AUTHORIZED  OR  REQUESTED  BY  SUCH
CONSUMER.
  3.  NO  PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL BE
DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS SECTION, IF SUCH  PERSON,
FIRM,  PARTNERSHIP, CORPORATION OR ASSOCIATION SHOWS, BY A PREPONDERANCE
OF THE EVIDENCE, THAT THE VIOLATION WAS  NOT  INTENTIONAL  AND  RESULTED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10364-01-1

              

A. 8263                             2

FROM  A  BONA  FIDE ERROR MADE NOTWITHSTANDING THE MAINTENANCE OF PROCE-
DURES REASONABLY ADOPTED TO AVOID SUCH ERROR.
  4.  WHENEVER  THE  COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF THE
PROVISIONS OF THIS SECTION HAS OCCURRED, THE COURT SHALL IMPOSE A  CIVIL
PENALTY  OF  TEN  THOUSAND  DOLLARS  FOR THE FIRST OFFENSE, AND THE FINE
SHALL INCREASE BY AN ADDITIONAL TEN THOUSAND DOLLARS FOR EACH SUBSEQUENT
OFFENSE COMMITTED THEREAFTER.
  5. ANY PERSON WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF  THIS
SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAW-
FUL  ACT  OR PRACTICE OR AN ACTION TO RECOVER HIS OR HER ACTUAL DAMAGES.
THE COURT MAY, IN ITS DISCRETION, INCREASE THE AWARD OF  DAMAGES  TO  AN
AMOUNT  NOT TO EXCEED THREE TIMES THE ACTUAL DAMAGES, IF THE COURT FINDS
THE DEFENDANT HAS REPEATEDLY VIOLATED THIS SECTION. THE COURT MAY  AWARD
REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S 2. If any provision of this act or the application of such provision
in  certain  circumstances  shall  be  held invalid, the validity of the
remainder of this act and its applicability to other circumstances shall
not be affected.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.