GA Code § 10-1-392 (2021)
2021 Georgia Code|Title 10 - Commerce and Trade|Chapter 1 - Selling and Other Trade Practices|Article 15 - Deceptive or Unfair Practices|Part 2 - Fair Business Practices Act|§ 10-1-392. Definitions; When Intentional Violation Occurs

  As used in this part, the term:   "Attorney General" means the Attorney General or his or her designee.   "Campground membership" means any arrangement under which a purchaser has the right to use, occupy, or enjoy a campground membership facility.   "Campground membership facility" means any campground facility at which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased the right periodically to use the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.   "Career consulting firm" means any person providing services to an individual in conjunction with a career search and consulting program for the individual, including, but not limited to, counseling as to the individual's career potential, counseling as to interview techniques, and the identification of prospective employers. A "career consulting firm" shall not guarantee actual job placement as one of its services. A "career consulting firm" shall not include any person who provides these services without charging a fee to applicants for those services or any employment agent or agency regulated under Chapter 10 of Title 34.   "Child support enforcement" means the action, conduct, or practice of enforcing a child support order issued by a court or other tribunal.   "Consumer" means a natural person.   "Consumer acts or practices" means acts or practices intended to encourage consumer transactions.   "Consumer report" means any written or other communication of any information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, or credit capacity which is used or intended to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:   Credit or insurance to be used primarily for personal, family, or household purposes; or   Employment consideration.     "Consumer reporting agency" or "agency" means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.   "Consumer transactions" means the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.   "Department" means the Department of Human Services.   "Documentary material" means the original or a copy, whether printed, filmed, or otherwise preserved or reproduced, by whatever process, including electronic data storage and retrieval systems, of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or record wherever situate.   "Examination" of documentary material means inspection, study, or copying of any such material and the taking of testimony under oath or acknowledgment with respect to any such documentary material.   "File" means, when used in connection with information on any consumer, all of the information on that consumer recorded or retained by a consumer reporting agency regardless of how the information is stored.  (14.1) "Food" means articles used for food or drink for human consumption, chewing gum, and articles used for components of any such article.    "Going-out-of-business sale" means any offer to sell to the public or sale to the public of goods, wares, or merchandise on the implied or direct representation that such sale is in anticipation of the termination of a business at its present location or that the sale is being held other than in the ordinary course of business and includes, without being limited to, any sale advertised either specifically or in substance to be a sale because the person is going out of business, liquidating, selling his or her entire stock or 50 percent or more of his or her stock, selling out to the bare walls, selling because the person has lost his or her lease, selling out his or her interest in the business, or selling because everything in the business must be sold or that the sale is a trustee's sale, bankruptcy sale, save us from bankruptcy sale, insolvency sale, assignee's sale, must vacate sale, quitting business sale, receiver's sale, loss of lease sale, forced out of business sale, removal sale, liquidation sale, executor's sale, administrator's sale, warehouse removal sale, branch store discontinuance sale, creditor's sale, adjustment sale, or defunct business sale.   "Health spa" means an establishment which provides, as one of its primary purposes, services or facilities which are purported to assist patrons to improve their physical condition or appearance through change in weight, weight control, treatment, dieting, or exercise. The term includes an establishment designated as a "reducing salon," "health spa," "spa," "exercise gym," "health studio," "health club," or by other terms of similar import. A health spa shall not include any of the following:  (16.1) "Kosher food disclosure statement" means a statement which:    Any nonprofit organization;   Any facility wholly owned and operated by a licensed physician or physicians at which such physician or physicians are engaged in the actual practice of medicine; or   Any such establishment operated by a health care facility, hospital, intermediate care facility, or skilled nursing care facility.   Discloses to consumers practices relating to the preparation, handling, and sale of any unpackaged food, or food packaged at the premises where it is sold to consumers, if the food is represented to be kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision; and   Complies with the provisions of subsections (b) through (e) of Code Section 10-1-393.11.     "Marine membership" means any arrangement under which a purchaser has a right to use, occupy, or enjoy a marine membership facility.   "Marine membership facility" means any boat, houseboat, yacht, ship, or other floating facility upon which the use, occupation, or enjoyment of the facility is primarily limited to those purchasers, along with their guests, who have purchased a right to make reservations at future times to use the facility or who have purchased a right to use periodically, occupy, or enjoy the facility at fixed times or intervals in the future, but shall not include any such arrangement which is regulated under Article 5 of Chapter 3 of Title 44.   "Obligee" means a resident of this state who is identified in an order for child support issued by a court or other tribunal as the payee to whom an obligor owes child support.   "Obligor" means a resident of this state who is identified in an order for child support issued by a court or other tribunal as required to make child support payments.   "Office" means any place where business is transacted, where any service is supplied by any person, or where any farm is operated.   "Office supplier" means any person who sells, rents, leases, or ships, or offers to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm.   "Office supply transactions" means the sale, lease, rental, or shipment of, or offer to sell, lease, rent, or ship, goods, services, or property to any person to be used in the operation of any office or of any farm but shall not include transactions in which the goods, services, or property is purchased, leased, or rented by the office or farm for purposes of reselling them to other persons.   "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.  (24.1) "Presealed kosher food package" means a food package which bears a kosher symbol insignia and is sealed by the manufacturer, processor, or wholesaler at premises other than the premises where the food is to be sold to the public.    "Private child support collector" means an individual or nongovernmental entity that solicits and contracts directly with obligees to provide child support collection services for a fee or other compensation but shall not include attorneys licensed to practice law in this state unless such attorney is employed by a private child support collector.   "Prize" means a gift, award, or other item intended to be distributed or actually distributed in a promotion.   "Promotion" means any scheme or procedure for the promotion of consumer transactions whereby one or more prizes are distributed among persons who are required to be present at the place of business or are required to participate in a seminar, sales presentation, or any other presentation, by whatever name denominated, in order to receive the prize or to determine which, if any, prize they will receive. Promotions shall not include any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote if such condition is clearly and conspicuously disclosed in the promotional advertising and literature and the receipt of the prize does not involve an element of chance. Any procedure where the receipt of the prize is conditioned upon the purchase of the item which the seller is trying to promote or upon the payment of money and where the receipt of that prize involves an element of chance shall be deemed to be a lottery under Code Section 16-12-20; provided, however, that nothing in this definition shall be construed to include a lottery operated by the State of Georgia or the Georgia Lottery Corporation as authorized by law; provided, further, that any deposit made in connection with an activity described by subparagraph (b)(22)(B) of Code Section 10-1-393 shall not constitute the payment of money.  (27.1) "Representation regarding kosher food" means any direct or indirect statement, whether oral or written, including but not limited to an advertisement, sign, or menu and any letter, word, sign, emblem, insignia, or mark which could reasonably lead a consumer to believe that a representation is being made that the final food product sold to the consumer is kosher, kosher for Passover, or prepared or maintained under rabbinical or other kosher supervision.    "Trade" and "commerce" mean the advertising, distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services, or any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value wherever situate and shall include any trade or commerce directly or indirectly affecting the people of this state.     An "intentional violation" occurs when the person committing the act or practice knew that his or her conduct was in violation of this part. Maintenance of an act or practice specifically designated as unlawful in subsection (b) of Code Section 10-1-393 after the Attorney General gives notice that the act or practice is in violation of the part shall be prima-facie evidence of intentional violation. For the purposes of this subsection, the Attorney General gives notice that an act or practice is in violation of this part by the adoption of specific rules promulgated pursuant to subsection (a) of Code Section 10-1-394 and by notice in writing to the alleged violator of a violation, if such written notice may be reasonably given without substantially or materially altering the purposes of this part; provided, however, that no presumption of intention shall arise in the case of an alleged violator who maintains a place of business within the jurisdiction of this state with sufficient assets to respond to a judgment under this part, unless such alleged violator has received written notice. The burden of showing no reasonable opportunity to give written notice shall be upon the Attorney General.    (Ga. L. 1975, p. 376, § 2; Ga. L. 1978, p. 2001, § 1; Ga. L. 1982, p. 1689, §§ 1, 2A, 3; Ga. L. 1984, p. 22, § 10; Ga. L. 1985, p. 938, § 1; Ga. L. 1986, p. 405, § 1; Ga. L. 1986, p. 1046, § 1; Ga. L. 1986, p. 1313, § 1; Ga. L. 1987, p. 794, § 1; Ga. L. 1987, p. 1386, § 1; Ga. L. 1988, p. 13, § 10; Ga. L. 1989, p. 560, § 1; Ga. L. 1996, p. 1030, § 1; Ga. L. 1997, p. 143, § 10; Ga. L. 2001, p. 1245, § 1; Ga. L. 2009, p. 1001, § 2/HB 189; Ga. L. 2010, p. 114, § 3/HB 1345; Ga. L. 2015, p. 1088, § 2/SB 148.)    The 2015 amendment,  effective July 1, 2015, rewrote paragraph (a)(1), which read: "'Administrator' means the administrator appointed pursuant to subsection (a) of Code Section 10-1-395 or his or her delegate."; and substituted "Attorney General" for "administrator" throughout subsection (b).   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1986, the definitions in subsection (a) were arranged in alphabetical order.   Pursuant to Code Section 28-9-5, in 1989, "Going-out-of-business" was substituted for "Going out of business" in paragraph (a)(5.1) (now paragraph (a)(15)).   Pursuant to Code Section 28-9-5, in 2009, "Department of Human Services" was substituted for "Department of Human Resources" in paragraph (a)(11).   Editor's notes.   - Ga. L. 2009, p. 1001, § 6/HB 189, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all contracts for private collection of child support payments entered into on or after July 1, 2009.   Ga. L. 2010, p. 114, § 1/HB 1345, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Kosher Food Consumer Protection Act.'"   Law reviews.   - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 150 (1989). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).   JUDICIAL DECISIONS    Suit alleging fraudulent breach of employment contract did not involve "consumer transaction." Employment is not a consumer item. Larson v. Tandy Corp., 187 Ga. App. 893, 371 S.E.2d 663 (1988).   Consumer acts not found.    - Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., claim failed as the nurses' false notations in a decedent's medical records, and presumably in others' records, that a treatment was performed pursuant to a doctor's orders, were made in confidential records that were not revealed to the public; the notations had no effect on the general consuming public and could not constitute consumer acts within the meaning of O.C.G.A. § 10-1-392(a)(2.1). Henderson v. Gandy, 270 Ga. App. 827, 608 S.E.2d 248 (2004), aff'd, 280 Ga. 95, 623 S.E.2d 465 (2005).   Actions not within consumer marketplace.    - Allegation, that the nurses' false notations in a decedent's medical records, and presumably in others' records, that treatment was performed pursuant to a doctor's orders and was based on a medical practice's general policy, did not bring a wife's claim within the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the actions did not occur within the public consumer marketplace. Henderson v. Gandy, 270 Ga. App. 827, 608 S.E.2d 248 (2004), aff'd, 280 Ga. 95, 623 S.E.2d 465 (2005).    "Intentional violation" as contemplated by the Fair Business Practices Act is a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature, but not necessarily the illegality, of the act. Colonial Lincoln-Mercury Sales, Inc. v. Molina, 152 Ga. App. 379, 262 S.E.2d 820 (1979).    Cited in State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15 (1978); Atlanta Gas Light Co. v. Semaphore Adv., Inc., 747 F. Supp. 715 (S.D. Ga. 1990).