44-1273

44-1273. Limited exemptions

A. The following sellers are not required to register and, except for section
44-1278, subsection B and section 44-1282, are exempt from this article:

1. A person acting within the scope of a license issued under title 20.

2. A person who is registered with the secretary of state pursuant to section
44-6552 or who is exempt from registration pursuant to section 44-6553.

3. A person making telephone solicitations without the intent to complete and who
does not complete the sales presentation during the telephone solicitation but completes
the sales presentation at a later face-to-face meeting between the solicitor and the
consumer provided that the later face-to-face meeting is not for the purpose of
collecting the payment or delivering any item purchased.

4. A person who after making a telephone contact with a consumer sends the consumer
descriptive literature and does not require payment before the consumer's review of the
descriptive literature and the person is not conducting a solicitation involving any of
the following:

(a) The sale of an investment or an opportunity for an investment that is not
registered with any state or federal authority.

(b) A prize promotion or premium.

5. A person or solicitor for a person who operates a retail business establishment
under the same name as the name used in the solicitation of sales by telephone, if on a
continuing basis all of the following apply:

(a) Merchandise is displayed and offered for sale or services are offered for sale
and provided at the person's business establishment.

(b) At least fifty per cent of the person's business involves the buyer obtaining
the merchandise at the person's business establishment.

6. A person or solicitor for a person soliciting another business if all of the
following occur:

(a) At least fifty per cent of the person's dollar volume consists of repeat sales
to existing businesses.

(b) The person does not conduct a prize promotion that requires or implies that to
win a consumer must pay money or purchase merchandise.

(c) Neither the person nor any of the person's principals has within twenty years
been convicted in any state of a felony or crime of moral turpitude, breach of trust,
fraud, theft, dishonesty or violation of telephone solicitation laws, been subject to a
final judgment in a civil action involving fraud, deceit or misrepresentation or been
subject to an administrative order involving fraud, deceit, misrepresentation or any
violation of telephone solicitations laws of any agency of this state, another state, the
federal government, a territory of the United States or another country.

7. A person or solicitor on behalf of a person who solicits sales by periodically
publishing and delivering a catalog to consumers if all of the following apply:

(a) The catalog contains a written description or illustration of each item offered
for sale and the price of each item offered for sale.

(b) The catalog includes the business address or home office address of the person.

(d) The catalog is distributed in more than one state and has an annual circulation
by mail of at least two hundred fifty thousand.

B. The following sellers shall file a limited registration statement pursuant to
section 44-1272.01 and, except for sections 44-1278 and 44-1282, are exempt from this
article:

1. A person acting within the scope of a license issued under title 6 or 32 or by
the corporation commission pursuant to this title, except persons licensed under title 6,
chapter 13.

2. If soliciting within the scope of the license, any licensed securities,
commodities or investments broker or dealer or investment advisor or any licensed
associated person of a securities, commodities or investments broker or dealer or
investment advisor.

3. An issuer or a subsidiary of an issuer that has a class of securities that is
subject to section 12 of the securities exchange act of 1934 (15 United States Code
sections 78a through 78mm) and that is either registered or exempt from registration
under paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) (2) of section 12
of the act. A subsidiary of an issuer that qualifies for exemption under this paragraph
is not exempt unless at least sixty per cent of the voting power of the subsidiary's
shares is owned by the qualifying issuer or issuers.

4. A person certificated or regulated by the corporation commission pursuant to
title 40, chapter 2 or a subsidiary of that person or a federal communications commission
licensed cellular telephone company or radio telecommunication services provider.

5. A person making telephone solicitations for a newspaper of general circulation,
a magazine or a licensed or franchised cable television system.

6. An issuer or subsidiary of an issuer that is subject to registration under
chapter 12, article 6 or 7 of this title or that is exempt from registration under
section 44-1843, subsection A, paragraph 1, 2, 3, 4, 5, 7 or 9.

7. A person making telephone solicitations for the sale or purchase of books,
recordings, videocassettes and similar goods through a membership group or club
regulated by the federal trade commission or through a contractual plan or arrangement
such as a continuity plan, subscription arrangement, series arrangement or single
purchase under which the seller ships goods to a consumer who has consented in advance to
receive those goods and the recipient is given the opportunity to review goods for at
least seven days and to receive a full refund for return of undamaged goods.

8. A person or solicitor for a person when soliciting previous customers, if all of
the following apply:

(a) The person is not offering to sell or selling a security that is not registered
with any state or federal authority.

(b) The person makes the solicitation under the same name as the name used to sell
merchandise to the customer previously.

(d) The person does not conduct a prize promotion that requires a consumer to, or
implies that to win a consumer must, pay money or purchase merchandise.

(e) The person has not, or any of its principals have not, within twenty years been
convicted in any state of a felony or a crime of moral turpitude, breach of trust, fraud,
theft, dishonesty or a violation of telephone solicitation laws, been subject to a final
judgment in a civil action involving fraud, deceit or misrepresentation or been subject
to an administrative order involving fraud, deceit, misrepresentation or any violation of
telephone solicitation laws of any agency of this state, another state, the federal
government, a territory of the United States or another country.

9. A person making telephone solicitations exclusively for the purpose of the sale
of telephone answering services to be provided by that person or that person's employer.

10. Any bank holding company, bank, financial institution, trust company, savings
and loan association, credit union, mortgage banker or broker, consumer lender or insurer
that is licensed or supervised by an official or agency of this state, any other state or
the United States, including any parent, subsidiary or affiliate of these institutions.

11. A person providing telemarketing sales service continuously for at least five
years under the same ownership and control that derives seventy-five per cent of its
gross telemarketing sales revenues from contracts with persons exempted by this
section. A seller using an exempt telemarketing sales service is not exempt unless
otherwise qualifying for an exemption under this section.

C. On request by the secretary of state, the director of the department of
insurance shall provide a current list in a mutually acceptable electronic format to the
secretary of state of the requested licensees described in subsection A, paragraph 1 of
this section that includes all of the following information:

1. The true legal name of the seller.

2. All of the names under which the seller is doing business or intends to do
business.

3. The complete street address of the physical location of the principal place of
business of the seller and the telephone number for the location.

4. The name and address of the seller's agent who is authorized to receive service
of process in this state.

D. In any civil proceeding alleging a violation of this article, the burden of
proving an exemption or an exception from a definition is on the person claiming the
exemption or exception. In any criminal proceeding in which a violation of this article
is alleged, the burden of producing evidence to support a defense based on an exemption
or an exception from a definition is on the person claiming the exemption or exception.

E. Any person or solicitor exempted in part from this article by this section shall
not make or submit a charge to a consumer's credit card account or a consumer's checking,
savings, share or similar account unless any of the following apply:

1. The person provides that the consumer may receive a full refund for the return
of undamaged and unused goods or a cancellation of services by providing notice to the
person within seven days after the date that the consumer receives the merchandise and
the person processes:

(a) A full refund within thirty days after the date that the person receives the
returned merchandise from the consumer.

(b) A full refund within thirty days after the purchaser of services cancels an
order for the services or a pro rata refund for any services not yet performed for the
consumer.

2. The person provides the consumer with a signed copy of a written contract that
includes the person's name, address and business telephone number and that fully
describes the merchandise offered by the person, the total price to be charged by the
person and any terms or conditions affecting the sale.

3. The person is an organization that is registered with the secretary of state
pursuant to section 44-6552 or that is exempt from registration pursuant to section
44-6553.