Cease and Desist Orders; Civil Penalty; Judicial Relief; Receivers

  1. Law
  2. Georgia Code
  3. Commerce and Trade
  4. Selling and Other Trade Practices
  5. Deceptive or Unfair Practices
  6. Fair Business Practices Act
  7. Cease and Desist Orders; Civil Penalty; Judicial Relief; Receivers

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  1. As used in this Code section, the term:
    1. "Call" means any communication, message, signal, or transmission.
    2. "Telecommunications company" shall have the same meaning as provided in Code Section 46-5-162.
    3. "Telecommunications services" shall have the same meaning as provided in Code Section 46-5-162.
  2. Whenever it may appear to the Attorney General that any person is using, has used, or is about to use any method, act, or practice declared by this part or by regulations made under Code Section 10-1-394 to be unlawful and that proceedings would be in the public interest, whether or not any person has actually been misled, the Attorney General may:
    1. Subject to notice and opportunity for hearing in accordance with Code Section 10-1-398, unless the right to notice is waived by the person against whom the sanction is imposed, take any or all of the following actions:
      1. Issue a cease and desist order prohibiting any unfair or deceptive act or practice against any person;
      2. Issue an order against a person who willfully violates this part, imposing a civil penalty of up to a maximum of $2,000.00 per violation; or
      3. Issue an order requiring a person whose actions are in violation of this part to pay restitution to any person or persons adversely affected by such actions; or
    2. Without regard as to whether the Attorney General has issued any orders under this Code section, upon a showing by the Attorney General in any superior court of competent jurisdiction that a person has violated or is about to violate this part, a rule promulgated under this part, or an order of the Attorney General, the court may enter or grant any or all of the following relief:
      1. A temporary restraining order or temporary or permanent injunction;
      2. A civil penalty of up to a maximum of $5,000.00 per violation of this part;
      3. A declaratory judgment;
      4. Restitution to any person or persons adversely affected by a defendant's actions in violation of this part;
      5. The appointment of a receiver, auditor, or conservator for the defendant or the defendant's assets; or
      6. Other relief as the court deems just and equitable.
  3. Unless the Attorney General determines that a person subject to this part designs quickly to depart from this state or to remove his or her property therefrom or to conceal himself or herself or his or her property therein or that there is immediate danger of harm to citizens of this state or of another state, the Attorney General shall, unless he or she seeks a temporary restraining order to redress or prevent an injury resulting from a violation of paragraph (20) of subsection (b) of Code Section 10-1-393, before initiating any proceedings as provided in this Code section, give notice in writing that such proceedings are contemplated and allow such person a reasonable opportunity to appear before the Attorney General and execute an assurance of voluntary compliance as provided in this part. The determination of the Attorney General under this subsection shall be final and not subject to judicial review.
  4. With the exception of consent judgments entered before any testimony is taken, a final judgment under this Code section shall be admissible as prima-facie evidence of such specific findings of fact as may be made by the court which enters the judgment in subsequent proceedings by or against the same person or his or her successors or assigns.
  5. When a receiver is appointed by the court pursuant to this part, he or she shall have the power to sue for, collect, receive, and take into his or her possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes, and property of every description derived by means of any practice declared to be illegal and prohibited by this part, including property with which such property has been mingled 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. In the case of a partnership or business entity, the receiver may, in the discretion of the court, be authorized to dissolve the business and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
    1. Whenever the Attorney General issues a cease and desist order to any person regarding the use of a telephone number which when called automatically imposes a per-call charge or other costs to the consumer, other than a regular charge imposed for long distance service, including, but not limited to, a telephone number in which the local prefix is 976 or in which the long distance prefix is 900, the Attorney General may certify to the appropriate local or long distance telecommunications company responsible for billing consumers for the charges that billing for the charges or for certain of the charges should be suspended. The telecommunications company shall then suspend such billing with reasonable promptness to preserve the assets of consumers in accordance with the certification, without incurring any liability to any person for doing so. For the purposes of this Code section, "reasonable promptness to preserve the assets of consumers" shall mean to act as quickly as the telecommunications company would act to preserve its own assets, provided that the telecommunications company cannot be required to make any changes to its existing systems, technologies, or methods used for billing, other than any minimal procedural changes necessary to actually suspend the billing. The telecommunications company shall not be made a party to any proceedings under this part for complying with this requirement but shall have a right to be heard as a third party in any such proceedings.
    2. The suspension of billing under this subsection shall remain in effect until the Attorney General certifies to the telecommunications company that the matter has been resolved. The Attorney General shall certify to the telecommunications company with reasonable promptness when the matter has been resolved. In this certification, the Attorney General shall advise the telecommunications company to collect none of, all of, or any designated part of the billings in accordance with the documents or orders which resolved the matter. The telecommunications company shall collect or not collect the billings in the manner so designated and shall not incur any liability to any person for doing so.
    3. Nothing contained in this subsection shall limit or restrict the right of the telecommunications company to place its own restrictions, guidelines, or criteria, by whatever name denominated, upon the use of such telecommunications services, provided such restrictions, guidelines, or criteria do not conflict with the provisions of this subsection.

(Ga. L. 1975, p. 376, §§ 7, 8; Ga. L. 1986, p. 1046, § 3; Ga. L. 1988, p. 983, § 2; Ga. L. 1988, p. 1659, § 1; Ga. L. 1991, p. 1101, § 2; Ga. L. 1991, p. 1346, § 1; Ga. L. 1995, p. 1362, § 2; Ga. L. 2000, p. 136, § 10; Ga. L. 2001, p. 1245, § 2; Ga. L. 2010, p. 114, § 5/HB 1345; Ga. L. 2010, p. 302, § 2/SB 368; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator" throughout this Code section; in paragraph (b)(1), deleted "or" from the end of subparagraph (b)(1)(A), added "or" at the end of subparagraph (b)(1)(B), and added subparagraph (b)(1)(C).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "willfully" was substituted for "wilfully" in subparagraph (b)(1)(B).

Editor's notes.

- Ga. L. 2010, p. 114, § 1, 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 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 1 (1992). For comment, "The Georgia Fair Business Practices Act: Business As Usual," see 9 Ga. St. U.L. Rev. 453 (1993).

JUDICIAL DECISIONS

Opportunity must be given to execute assurance of voluntary compliance.

- An administrator must provide an opportunity to execute an assurance of voluntary compliance. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15, aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294, 249 S.E.2d 87 (1978).

Administrator may reject assurance.

- Administrator may reject an assurance the administrator deems, in the exercise of the administrator's discretion, to be inadequate. State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15, aff'd sub nom. State v. Meredith Chevrolet, Inc., 242 Ga. 294, 249 S.E.2d 87 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Investigative demand, notice of contemplated civil action, combinable.

- Whenever the administrator has reason to believe that any person has violated or is about to violate any provision of the Fair Business Practices Act or any regulations promulgated thereunder, it would be proper for the administrator to issue an investigative demand and notice of contemplated civil action simultaneously under the Act and such may be included in one document. 1975 Op. Att'y Gen. No. 75-91.

RESEARCH REFERENCES

Am. Jur. 2d.

- 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 1012 et seq.

C.J.S.

- 87 C.J.S., Trade-Marks, Trade-Names, and Unfair Competition, §§ 445, 446.


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