§29-19-1. Short title.
§29-19-1a. General purpose.
§29-19-2. Definitions.
§29-19-3-4. Repealed.
§29-19-5. Registration of charitable organizations; fee.
§29-19-6. Certain persons and organizations exempt from registration.
§29-19-7. Filing of solicitation contracts.
§29-19-8. Limitations on activities of charitable organizations.
§29-19-9. Registration of professional fund-raising counsel and
professional solicitor; bonds; records; books.
§29-19-10. Information filed to become public records.
§29-19-11. Records to be kept by charitable organizations, professional
fund-raising counsel and professional solicitors.
§29-19-12. Reciprocal agreements.
§29-19-13. Prohibited acts.
§29-19-14. Nonresident charitable organizations, professional
fund-raising counsel and solicitors; designation of secretary
of state as agent for service of process; notice of such
service by attorney general.
§29-19-15. Enforcement and penalties.
§29-19-15a. Private actions and class actions.
§29-19-15b. Civil penalty for intentional violations.
§29-19-16. Repealed.
§29-19-1. Short title.
This article shall be known and may be cited as the
"Solicitation of Charitable Funds Act."
§29-19-1a. General
purpose.
The purpose of this article is to protect the people of the state of
West Virginia by requiring full public disclosure by persons and organizations who solicit
funds from the public and the purposes for which such funds are solicited and how they are
actually used, and to prevent deceptive and dishonest statements and conduct in the
solicitation and reporting of funds for or in the name of charity.
§29-19-2. Definitions.
As used in this article:
(1) "Charitable organization" means a person who is or
holds itself out to be a benevolent, educational, philanthropic, humane, patriotic,
religious or eleemosynary organization, or any person who solicits or obtains
contributions solicited from the public for charitable purposes, or any person who in any
manner employs any appeal for contributions which may be reasonably interpreted to suggest
that any part of such contributions will be used for charitable purposes. A chapter,
branch, area, office or similar affiliate or any person soliciting contributions within
the state for a charitable organization which has its principal place of business outside
the state is a charitable organization for the purposes of this article.
(2) "Contribution" means the promise or grant of any money
or property of any kind or value.
(3) "Solicit" and "solicitation" means the
request or appeal, directly or indirectly, for any contribution on the plea or
representation that such contribution will be used for a charitable purpose, including,
without limitation, the following methods of requesting such contribution:
(a) Any oral or written request;
(b) Any announcement to the press, over the radio or television, or
by telephone or telegraph, concerning an appeal or campaign to which the public is
requested to make a contribution for any charitable purpose connected therewith;
(c) The distribution, circulation, posting or publishing of any
handbill, written advertisement or other publication which directly or by implication
seeks to obtain public support; or
(d) The sale of, offer or attempt to sell, any advertisement,
advertising space, subscription, ticket or any service or tangible item in connection with
which any appeal is made for any charitable purpose or where the name of any charitable or
civic organization is used or referred to in any such appeal as an inducement or reason
for making any such sale, or when or where in connection with any such sale, any statement
is made that the whole or any part of the proceeds from any such sale will be donated to
any charitable purpose.
"Solicitation", as defined herein, shall be deemed to
occur when the request is made, at the place the request is received, whether or not the
person making the same actually receives any contribution.
(4) "Federated fund-raising organization" means a
federation of independent charitable organizations which have voluntarily joined together,
including, but not limited to, a united fund or community chest, for purposes of raising
and distributing money for and among themselves and where membership does not confer
operating authority and control of the individual agencies upon the federated group
organization.
(5) "Parent organization" is that part of a charitable
organization which coordinates, supervises or exercises control over policy, fund raising
and expenditures, or assists, receives funds from or advises one or more chapters,
branches or affiliates in the state.
(6) "Person" means any individual, organization, trust,
foundation, group, association, partnership, corporation, society or any combination of
them.
(7) "Professional fund-raising counsel" means any person
who for a flat fixed fee under a written agreement plans, conducts, manages, carries on,
advises or acts as a consultant, whether directly or indirectly, in connection with
soliciting contributions for, or on behalf of any charitable organization but who actually
solicits no contributions as a part of such services. A bona fide salaried officer or
employee of a charitable organization maintaining a permanent establishment within the
state shall not be deemed to be a professional fund-raising counsel.
(8) "Professional solicitor" means any person who, for a
financial or other consideration, solicits contributions for, or on behalf of a charitable
organization, whether such solicitation is performed personally or through said person's
agents, servants or employees specially employed by, or for a charitable organization, who
are engaged in the solicitation of contributions under the direction of such person, or a
person who plans, conducts, manages, carries on, advises or acts as a consultant to a
charitable organization in connection with the solicitation of contributions but does not
qualify as "professional fund-raising counsel" within the meaning of this
article. A bona fide salaried officer or employee of a charitable organization maintaining
a permanent establishment within the state is not a professional solicitor.
No attorney, investment counselor or banker, who advises any person
to make a contribution to a charitable organization, shall be considered, as the result of
such advice, a professional fund-raising counsel or a professional solicitor.
§29-19-3.
Repealed.
Acts, 1995 Reg. Sess., Ch. 234.
§29-19-4.
Repealed.
Acts, 1995 Reg. Sess., Ch. 234.
§29-19-5. Registration of charitable
organizations; fee.
(a) Every charitable organization, except as provided in section six of this article, which intends to solicit contributions within this state or to have funds solicited on its behalf shall, prior to any solicitation, file a registration statement with the secretary of state upon forms prescribed by him or her which shall be good for one full year and which shall be refiled in the next and each following year in which the charitable organization is engaged in solicitation activities. If an organization discontinues solicitation at any time after its last registration filing, then it shall file a registration statement reflecting its activities during its last fiscal year in which solicitation in West Virginia took place. It is the duty of the president, chairman or principal officer of the charitable organization to file the statements required under this article. The statements shall be sworn to and shall contain the following information:
(1) The name of the organization and the purpose for which it was organized;
(2) The principal address of the organization and the address of any offices in this state. If the organization does not maintain an office, the name and address of the person having custody of its financial records;
(3) The names and addresses of any chapters, branches or affiliates in this state;
(4) The place where and the date when the organization was legally established and the form of its organization;
(5) The names and addresses of the officers, directors, trustees and the principal salaried executive staff officer;
(6) A copy of a balance sheet and a statement or report of income and expenses for the organization’s immediately preceding fiscal year or a financial statement reporting information showing the kind and amount of funds raised during the preceding fiscal year, the costs and expenses incidental to the fund raising and showing how the funds were disbursed or allocated for the same fiscal year: Provided, That for organizations raising more than one hundred thousand dollars per year in contributions excluding grants from governmental agencies or private foundations, the balance sheet and income and expense statement, or financial statement provided, shall be audited by an independent public accountant. Organizations are required to report the amount of money raised in the state and the amount spent in the state for charitable purposes;
(7) A copy of any determination of the organization's tax exempt status under the provisions of 26 U.S.C. §501(c)(3) and a copy of the last filed Internal Revenue Service form 990 and Schedule A for every charitable organization and any parent organization;
(8) Whether the organization intends to solicit contributions from the public directly or have other solicitation done on its behalf by others;
(9) Whether the organization is authorized by any other governmental authority to solicit contributions and whether it is or has ever been enjoined by any court from soliciting contributions;
(10) The general purpose or purposes for which the contributions to be solicited shall be used;
(11) The name or names under which it intends to solicit contributions;
(12) The names of the individuals or officers of the organization who will have final responsibility for the custody of the contributions;
(13) The names of the individuals or officers of the organization responsible for the final distribution of the contributions; and
(14) Copies of all contract documentation from professional fund-raising counsels and professional solicitors as provided for in subsection (d), section seven of this article.
(b) Each chapter, branch or affiliate, except an independent member agency of a federated fund-raising organization, may separately report the information required by this section or report the information to its parent organization which shall then furnish the information regarding its West Virginia affiliates, chapters and branches in a consolidated form to the secretary of state. An independent member agency of a federated fund-raising organization, as defined in section two of this article, shall comply with the provisions of this article independently. Each organization shall file a separate registration form for each name under which funds will be solicited.
(c) The registration forms and any other documents prescribed by the secretary of state shall be signed by an authorized officer or by an independent public accountant and by the chief fiscal officer of the charitable organization and shall be verified under oath.
(d) Every charitable organization collecting less than one million dollars during any year which submits an independent registration to the secretary of state shall pay an annual registration fee of fifteen dollars; every charitable organization collecting more than one million dollars during one year which submits an independent registration to the secretary of state shall pay an annual registration fee of fifty dollars; and a parent organization filing on behalf of one or more chapters, branches or affiliates or a single organization filing under different names shall pay a single annual registration fee of fifty dollars for itself and the chapters, branches or affiliates included in the registration statement. All fees and moneys collected by the secretary of state pursuant to the provisions of this article shall be deposited by the secretary of state as follows: One-half shall be deposited in the state general revenue fund and one-half shall be deposited in the services fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the secretary of state. The secretary of state shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.
(e) For good cause shown, the secretary of state may extend the due date for the annual filing of a registration statement or report by a charitable organization or a professional fund-raiser for a period not to exceed ninety days. During that period, the previously filed registration statement or report of the charitable organization which has been granted the extension remains in effect.
(f) In addition to the registration fee required by this section, a charitable organization and/or professional fund-raiser, which fails to file a registration statement or report by the original or extended due date for filing as required by this section shall, for each month or part of the month thereafter in which the registration statement or report is not filed, pay an additional fee of twenty-five dollars: Provided, That the total amount of the additional fees for a registration statement or report required to be filed in any one year shall not exceed five hundred dollars. All fees and moneys collected by the secretary of state pursuant to the provisions of this article shall be deposited by the secretary of state as follows: One-half shall be deposited in the state general revenue fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the secretary of state. Any balance remaining on the thirtieth day of June, two thousand one, in the existing special revenue account entitled "charitable organization fund" as established by chapter thirty-four, acts of the Legislature, regular session, one thousand nine hundred ninety-two, shall be transferred to the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the secretary of state. The secretary of state shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.
§29-19-6. Certain persons and organizations exempt from registration.
(a)
The following charitable organizations shall not be required to file an annual registration statement with the secretary of state:
(1) Educational institutions, the curriculums of which, in whole or in part, are registered or approved by the state board of education, either directly or by acceptance of accreditation by an accrediting body recognized by the state board of education; and any auxiliary associations, foundations and support groups which are directly responsible to any such educational institutions;
(2) Persons requesting contributions for the relief of any individual specified by name at the time of the solicitation when all of the contributions collected without any deductions whatsoever are turned over to the named beneficiary for his or her use;
(3) Hospitals and licensed nursing homes which are nonprofit and charitable;
(4) Organizations which solicit only within the membership of the organization by the members thereof: Provided, That the term "membership" shall not include those persons who are granted a membership upon making a contribution as the result of solicitation. For the purpose of this section, "member" means a person having membership in a nonprofit corporation, or other organization, in accordance with the provisions of its articles of incorporation, bylaws or other instruments creating its form and organization; and having bona fide rights and privileges in the organization, such as the right to vote, to elect officers, directors and issues, to hold office or otherwise as ordinarily conferred on members of such organizations;
(5) Churches, synagogues, associations or conventions of churches, religious orders or religious organizations that are an integral part of a church which qualifies as tax exempt under the provisions of 26 U.S.C. §501(c)(3) and which qualifies as being exempt from filing an annual return under the provisions of 26 U.S.C. §6033;
(6) Any person, firm, corporation or organization that sponsors a single fund-raising event for the benefit of a named charitable organization where all or part of the funds collected are donated to the named charitable organization: Provided, That the named charitable organization receiving the funds is registered pursuant to this article, reports each of these donations individually, and certifies that no funds were withheld by the organization that solicited the funds;
(7) Any charitable organization that does not employ a professional solicitor or fund-raiser and does not intend to solicit and receive and does not actually raise or receive contributions from the public in excess of twenty-five thousand dollars during a calendar year.
Charitable organizations which do not intend to solicit and receive in excess of twenty-five thousand dollars, but do receive in excess of that amount from the public, shall file the annual registration statement within thirty days after contributions are in excess of twenty-five thousand dollars.
§29-19-7. Filing of solicitation
contracts.
(a) Every written contract or agreement between professional
fund-raising counsel and a charitable organization shall be filed by the professional
fund-raising counsel with the secretary of state within ten days after said parties have
entered into such contract or agreement.
(b) Every written contract or agreement between a professional
solicitor and a charitable organization shall be filed by the professional solicitor with
the secretary of state within ten days after said parties have entered into such agreement
or contract. In the absence of a written contract or agreement between a professional
solicitor and a charitable organization, a written statement of the nature of the
arrangement to prevail in lieu thereof shall be filed.
(c) Each statement must clearly provide the amount, percentage or
other method of compensation to be received by the professional solicitor or professional
fund-raising counsel as a result of the contract or arrangement.
(d) Each charitable organization, as part of its registration as
required in section five of this article, shall file with the secretary of state copies of
all documents reflecting the final settlement amounts for a solicitation contract or, in
the case of multiple year contracts, documents reflecting the total amount of money, funds
or other property raised and expenses incurred by the professional fund-raising counsel or
professional solicitor in a fiscal year.
(e) For purposes of this section, the total moneys, funds, pledges
or other property raised or received shall not include the actual cost to the charitable
organization or professional solicitor of goods sold or service provided to the public in
connection with the soliciting of contributions.
§29-19-8. Limitations on activities of
charitable organizations.
No charitable organizations subject to this article may solicit
funds from the public except for charitable purposes or expend funds raised for charitable
purposes not stated in its solicitation materials.
All registered charitable organizations and their professional fund
raisers and solicitors are required to disclose in writing: (1) The name of a
representative of the charitable organization to whom inquiries can be made; (2) the name
of the charitable organization; (3) the purpose of the solicitation; (4) upon request of
the person solicited, the estimated percentage of the money collected which will be
applied to the cost of solicitation and administration or how much of the money collected
will be applied directly for the charitable purpose; and (5) the number of the raffle,
bingo or other such state permit used for fund raising.
Every printed solicitation shall include the following statement:
"West Virginia residents may obtain a summary of the registration and financial
documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305.
Registration does not imply endorsement."
The disclosure statement shall be conspicuously displayed on
any written or printed solicitation. Where the solicitation consists
of more than one piece, the disclosure statement shall be displayed on a prominent part of
the solicitation materials.
Organizations applying for registration shall be reviewed according
to the following standards:
(a) Charitable organizations shall include in each solicitation a
clear description of programs for which funds are requested and source from which written
information is available pursuant to section thirteen of this article. Expenditures shall
be related in a primary degree to stated purpose (programs and activities) described in
solicitations and in accordance with reasonable donor expectations. For purposes of this
section, reasonable donor expectation requires that a charitable organization shall not
expend funds in ways that are not apparent to a donor from the text of the presentation as
being obvious or potential uses for his contribution. The reasonable donor expectation
standard shall apply to all expenditures made by the charitable organization when compared
to the solicitation materials used.
(b) Charitable organizations shall establish and exercise controls
over fund-raising activities conducted for the organizations' benefit, including written
contracts and agreements and assurance of fund-raising activities without excessive
pressure.
(c) Each charitable organization shall establish an independent
governing board which shall oversee the expenditures, policies, programs and purposes of
the charity's activities. The independent governing board shall not delegate its oversight
control or authority to any other person(s) or organization.
(d) Members of the independent governing board and officers of the
organization shall avoid transactions involving conflict of interest on their part. A
charitable organization may enter into transactions involving parties related by blood,
marriage or business association only if: (1) Where a majority of the independent
governing board has survived disqualification over conflicts of interest to approve the
action; and (2) where the related parties or potential conflict is fully disclosed in the
application for registration; and (3) where the transaction is fair and reasonable for the
organization.
(e) No charitable organization, professional fund raiser or other
person soliciting contributions for or on behalf of a charitable organization may use a
name, symbol or statement so closely related or similar to that used by another charitable
organization or governmental agency that the use thereof would tend to confuse or mislead
the public.
§29-19-9. Registration of professional
fund-raising counsel and professional solicitor; bonds; records; books.
(a) No person may act as a professional fund-raising counsel or
professional solicitor for a charitable organization subject to the provisions of this
article, unless he or she has first registered with the secretary of state. Applications
for such registration shall be in writing under oath or affirmation in the form prescribed
by the secretary of state and contain such information as he or she may require. The
application for registration by professional fund-raising counsel or professional
solicitor shall be accompanied by an annual fee in the sum of one hundred dollars. A
partnership or corporation, which is a professional fund-raising counsel or professional
solicitor, may register for and pay a single fee on behalf of all its members, officers,
agents and employees. However, the names and addresses of all officers, agents and
employees of professional fund-raising counsel and all professional solicitors, their
officers, agents, servants or employees employed to work under the direction of a
professional solicitor shall be listed in the application.
(b) The applicant shall, at the time of the making of an
application, file with and have approved by the secretary of state a bond in which the
applicant shall be the principal obligor in the sum of ten thousand dollars and which
shall have one or more sureties satisfactory to the secretary of state, whose liability in
the aggregate as such sureties will at least equal the said sum and maintain said bond in
effect so long as a registration is in effect. The bond shall run to the state for the use
of the secretary of state and any person who may have a cause of action against the
obligor of said bonds for any losses resulting from malfeasance, nonfeasance or
misfeasance in the conduct of solicitation activities. A partnership or corporation which
is a professional fund-raising counsel or professional solicitor may file a consolidated
bond on behalf of all its members, officers and employees.
(c) Each registration shall be valid throughout the state for a
period of one year and may be renewed for additional one-year periods upon written
application under oath in the form prescribed by the secretary of state and the payment of
the fee prescribed herein.
(d) The secretary of state or his or her designate shall examine
each application, and if he or she finds it to be in conformity with the requirements of
this article and all relevant rules and regulations and the registrant has complied with
the requirements of this article and all relevant rules and regulations, he or she shall
approve the registration.
§29-19-10. Information filed to become
public records.
Registration statements and applications, reports, professional
fund-raising counsel contracts or professional solicitor contracts, and all other
documents and information required to be filed under this article or by the secretary of
state shall become public records in the office of the secretary of state, and shall be
open to the general public for inspection at such time and under such conditions as the
secretary of state may prescribe.
§29-19-11. Records to be kept by
charitable organizations, professional fund-raising counsel and professional solicitors.
Every charitable organization, professional fund raising counsel and
professional solicitor subject to the provisions of this article shall, in accordance with
the rules prescribed by the secretary of state, keep true fiscal records as to its
activities in this state as may be covered by this article in such form as will enable it
accurately to provide the information required by this article. Upon demand, such records
shall be made available to the secretary of state or the attorney general for inspection.
Such records shall be retained for a period of at least three years after the end of the
period of registration to which they relate.
§29-19-12. Reciprocal agreements.
The secretary of state may enter into reciprocal agreements with the
appropriate authority of any other state for the purpose of exchanging information with
respect to charitable organizations, professional fund-raising counsel and professional
solicitors. Pursuant to such agreements the secretary of state may accept information
filed by a charitable organization, professional fund-raising counsel or professional
solicitor with the appropriate authority of another state in lieu of the information
required to be filed in accordance with the provisions of this article, if such
information is substantially similar to the information required under this article.
§29-19-13. Prohibited acts.
(a) No charitable organization, professional fund-raising counsel or
professional solicitor subject to the provisions of this article may use or exploit the
fact of registration so as to lead the public to believe that such registration in any
manner constitutes an endorsement or approval by the state.
(b) No person may, in connection with the solicitation of
contributions for or the sale of goods or services of a person other than a charitable
organization, misrepresent to or mislead anyone by any manner, means, practice or device
whatsoever, to believe that the person on whose behalf such solicitation or sale is being
conducted is a charitable organization or that the proceeds of such solicitation or sale
will be used for charitable purposes, if such is not the fact.
(c) No person may, in connection with the solicitation of
contributions for charitable purposes, misrepresent, mislead, or omit information
concerning how the proceeds will be used. Proceeds gathered from any given solicitation
must be used for the charitable purposes represented in the materials sent or the
presentation given by the solicitor. Violations of this section will be considered to be
both a violation of the reasonable donor expectation standard of section eight and may be
subject to prosecution for fraud pursuant to section fifteen of this article.
(d) No person may in connection with the solicitation of
contributions or the sale of goods or services for charitable purposes represent to or
lead anyone by any manner, means, practice or device whatsoever, to believe that any other
person sponsors or endorses such solicitation of contributions, sale of goods or services
for charitable purposes or approves of such charitable purposes of a charitable
organization connected therewith when such other person has not given consent to the use
of his or her name for these purposes: Provided, That any member of the board of directors
or trustees of a charitable organization or any other person who has agreed either to
serve or to participate in any voluntary capacity in the campaign shall be deemed thereby
to have given his or her consent to the use of his or her name in said campaign.
(e) No person may make any representation that he or she is
soliciting contributions for or on behalf of a charitable organization or shall use or
display any emblem, device or printed matter belonging to or associated with a charitable
organization for the purpose of soliciting or inducing contributions from the public
without first being authorized to do so by the charitable organization.
(f) No professional solicitor may solicit in the name of or on
behalf of any charitable organization unless such solicitor:
Has obtained the written authorization of two officers of such
organization, a copy of which shall be filed with the secretary of state. Such written
authorization shall bear the signature of the solicitor and shall expressly state on its
face the period for which it is valid, which shall not exceed one year from the date
issued.
§29-19-14. Nonresident charitable
organizations, professional fund-raising counsel and solicitors; designation of secretary
of state as agent for service of process; notice of such service by attorney general.
Any charitable organization or professional fund-raising counsel or
professional solicitor having its or his or her principal place of business without the
state, or organized under and by virtue of the laws of a foreign state, which or who shall
solicit contributions from people in this state, is subject to the provisions of this
article and shall be deemed to have irrevocably appointed the secretary of state as its or
his or her agent upon whom may be served any summons, subpoena, subpoena duces tecum or
other process directed to such charitable organization, professional fund-raising counsel
or professional solicitor or any partner, principal officer or director thereof in any
action or proceeding brought under the provisions of this article. Service of such process
upon the secretary of state shall be made by personally delivering to and leaving with him
a copy thereof along with the fee required by section two, article one, chapter fifty-nine
of this code, and such service shall be sufficient service: Provided, That notice
of such service and a copy of such process are forthwith sent by the secretary of state to
such charitable organization or professional fund-raising counsel or professional
solicitor by registered or certified mail with return receipt requested at its or his or
her office, as set forth in the registration form required to be filed with the secretary
of state pursuant to this article or in default of the filing of such form, at the last
address known to the secretary of state.
§29-19-15. Enforcement and
penalties.
(a) The secretary of state, upon his or her own motion, or upon
complaint of any person, may, if he or she finds reasonable ground to suspect a violation,
investigate any charitable organization, professional fund-raising counsel or professional
solicitor to determine whether such charitable organization, professional fund-raising
counsel or professional solicitor has violated the provisions of this article or has filed
any application or other information required under this article which contains false or
misleading statements.
(b) In addition to the foregoing, any person who willfully and
knowingly violates any provision of this article, or who shall willfully and knowingly
give false or incorrect information to the secretary of state in filing statements or
reports required by this article, whether such report or statement is verified or not,
shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined upon first
conviction thereof in an amount not less than one hundred dollars nor more than five
hundred dollars, or be imprisoned in the county jail for not more than six months, or be
both fined and imprisoned, and for the second and any subsequent offense to pay a fine of
not less than five hundred dollars nor more than one thousand dollars, or be imprisoned
for not more than one year, or be both fined and imprisoned.
(c) Whenever the secretary of state, attorney general or any
prosecuting attorney has reason to believe that any charitable organization, professional
fund-raising counsel or professional solicitor is operating in violation of the provisions
of this article, the secretary of state, attorney general or prosecuting attorney may
bring an action in the name of the state against such charitable organization and its
officers, such professional fund-raising counsel or professional solicitor or any other
person who has violated this article in the circuit court of the county wherein the cause
of action arises to enjoin such charitable organization or professional fund-raising
counsel or professional solicitor or other person from continuing such violation,
solicitation or collection, or from engaging therein or from doing any acts in furtherance
thereof and for such other relief as the court deems appropriate.
(d) In addition to the foregoing, any charitable organization,
professional fund-raising counsel or professional solicitor who willfully and knowingly
violates any provisions of this article by employing any device, scheme, artifice, false
representation or promise with intent to defraud or obtain money or other property shall
be guilty of a misdemeanor, and, upon conviction thereof, for a first offense, shall be
fined not less than one hundred dollars nor more than five hundred dollars, or be confined
in the county jail not more than six months, or be both fined and imprisoned; and for a
second and any subsequent offense, shall be fined not less than five hundred dollars nor
more than one thousand dollars, or confined in the county jail not more than one year, or
be both fined and imprisoned.
At any proceeding under this section, the court shall also determine
whether it is possible to return to the contributors the contributions which were thereby
obtained.
If the court finds that the said contributions are readily
returnable to the original contributors, it may order the money to be placed in the
custody and control of a general receiver, appointed pursuant to the provisions of article
six, chapter fifty-one of this code, who shall be responsible for its proper disbursement
to such contributors.
If the court finds that: (1) It is impossible to obtain the names of
over one half the persons who were solicited and in violation of this article, or (2) if
the majority of individual contributions was of an amount less than five dollars, or (3)
if the cost to the state of returning these contributions is equal to or more than the
total sum to be refunded, the court shall order the money to be placed in the custody and
control of a general receiver appointed pursuant to the provisions of article six, chapter
fifty-one of this code. The general receiver shall maintain this money pursuant to the
provisions of article eight, chapter thirty-six of this code.
§29-19-15a. Private actions and
class actions.
(a) Any person who suffers injury or damages as a result of acts or
practices in violation of the provisions of this article may bring a civil action against
the charitable organization, professional fund raiser, or professional solicitor engaged
in such acts or practices. The person may recover such damages sustained as a result of
such acts and practices, costs incurred, and reasonable attorneys' fees. Punitive damages
may be awarded in cases of intentional violations of this article.
(b) The attorney general, or secretary of state, in a representative
capacity on behalf of any person entitled to bring an action under this article, or any
person entitled to bring an action under this article, may institute a class action,
pursuant to the applicable rules of civil procedure governing class actions, for the
recovery of damages.
§29-19-15b. Civil penalty for
intentional violations.
In any action brought pursuant to the provisions of this article, if
the court finds that intentional violations have occurred, the state, upon petition to the
court and in addition to any damages awarded any party or parties, may recover attorney
fees and a civil penalty not exceeding three times the amount collected in such civil
action. Any funds recovered as provided for in this section and any other funds recovered
by the state as the result of an award for damages, penalties or settlements in enforcing
this article, shall be paid into the state treasury to the credit of a special revenue
fund to be known as the "charitable organization fund" which is hereby created.
The moneys so credited to such fund may be used solely for the purposes of administering
and enforcing the provisions of this article.
§29-19-16.
Repealed.
Acts, 1995 Reg. Sess., Ch. 234.
