IC 24TITLE 24. TRADE REGULATION
           Art. 1.COMBINATIONS IN RESTRAINT OF TRADE
           Art. 2.TRADEMARKS, TRADE NAMES, AND TRADE SECRETS
           Art. 3.TOBACCO PRODUCTS
           Art. 4.REGULATED BUSINESSES
           Art. 4.4.FIRST LIEN MORTGAGE LENDING
           Art. 4.5.UNIFORM CONSUMER CREDIT CODE
           Art. 4.6.SPECIAL PROVISIONS CONCERNING CERTAIN TRANSACTIONS
           Art. 4.7.TELEPHONE SOLICITATION OF CONSUMERS
           Art. 4.8.PROHIBITED SPYWARE
           Art. 4.9.DISCLOSURE OF SECURITY BREACH
           Art. 5.CONSUMER SALES
           Art. 5.5.MORTGAGE RESCUE PROTECTION FRAUD
           Art. 6.WEIGHTS, MEASURES, AND LABELING
           Art. 7.RENTAL PURCHASE AGREEMENTS
           Art. 8.PROMOTIONAL GIFTS AND CONTESTS
           Art. 9.HOME LOAN PRACTICES
           Art. 10.CONSUMER PROTECTION ASSISTANCE FUND
           Art. 11.BAD FAITH ASSERTIONS OF PATENT INFRINGEMENT
           Art. 12.CIVIL PROCEEDING ADVANCE PAYMENTS
           Art. 13.PYRAMID PROMOTIONAL SCHEMES

 

IC 24-1ARTICLE 1. COMBINATIONS IN RESTRAINT OF TRADE
           Ch. 1.Contracts to Prevent Competition
           Ch. 2.Combinations Restraining Trade
           Ch. 3.Combinations to Prevent Sale of Supplies
           Ch. 4.Combinations Compelling Manufacturers to Close Down
           Ch. 5.Motion Picture Fair Competition

 

IC 24-1-1Chapter 1. Contracts to Prevent Competition
           24-1-1-1Contracts against public policy; null and void contracts
           24-1-1-2Violation of chapter; domestic corporations; forfeiture of charter and franchise; foreign corporations; prohibition
           24-1-1-3Offense
           24-1-1-4Persons affected by chapter; exception
           24-1-1-5Civil suit for damages
           24-1-1-5.1Attorney general may bring action on behalf of the state or a political subdivision
           24-1-1-5.2Attorney general may bring action on behalf of the state or a political subdivision
           24-1-1-6Special grand jury instructions

 

IC 24-1-1-1Contracts against public policy; null and void contracts

     Sec. 1. From and after April 14, 1897, all arrangements, contracts, agreements, trusts or combinations between persons or corporations who control the output of any article of merchandise, made with a view to lessen, or which tend to lessen, full and free competition in the importation or sale of articles imported into this state, and all arrangements, contracts, agreements, trusts, or combinations between persons or corporations who control the output of said article of merchandise, designed, or which tend to advance, reduce, or control the price or the cost to the producer or to the consumer of any such product or article, are hereby declared to be against public policy, unlawful, and void.

Formerly: Acts 1897, c.104, s.1. As amended by P.L.152-1986, SEC.1.

 

IC 24-1-1-2Violation of chapter; domestic corporations; forfeiture of charter and franchise; foreign corporations; prohibition

     Sec. 2. Any corporation, chartered under the laws of this state, which shall violate any of the provisions of this chapter shall thereby forfeit its charter and its franchise, and its corporate existence shall thereupon cease and determine. Every foreign corporation which shall violate any of the provisions of this chapter is hereby denied the right to do and is prohibited from doing business in this state. It is hereby made the duty of the attorney general of the state to enforce this section by due process of law.

Formerly: Acts 1897, c.104, s.2. As amended by P.L.152-1986, SEC.2.

 

IC 24-1-1-3Offense

     Sec. 3. A person who knowingly violates this chapter commits a Level 5 felony.

Formerly: Acts 1897, c.104, s.3. As amended by Acts 1978, P.L.2, SEC.2401; P.L.158-2013, SEC.269.

 

IC 24-1-1-4Persons affected by chapter; exception

     Sec. 4. The persons designed by this chapter to be affected by this chapter are those who own, control, or manufacture the output of any particular article of merchandise mentioned in this chapter; provided, however, that the provisions of this chapter shall not apply to agricultural products or livestock while in the possession of the producer or raiser.

Formerly: Acts 1897, c.104, s.4. As amended by P.L.152-1986, SEC.3.

 

IC 24-1-1-5Civil suit for damages

     Sec. 5. Any person or persons or corporations that may be injured or damaged by any such arrangement, contract, agreement, trust, or combination described in section 1 of this chapter may sue for and recover in any court of competent jurisdiction in this state, of any person, persons, or corporation operating such trust or combination, the full consideration or sum paid by him or them for any goods, wares, merchandise, or articles, the sale of which is controlled by such combination or trust.

Formerly: Acts 1897, c.104, s.5. As amended by P.L.152-1986, SEC.4.

 

IC 24-1-1-5.1Attorney general may bring action on behalf of the state or a political subdivision

     Sec. 5.1. The attorney general may bring an action on behalf of the state or a political subdivision (as defined in IC 34-6-2-110) for injuries or damages sustained directly or indirectly as a result of a violation of this chapter.

As added by P.L.135-2008, SEC.1.

 

IC 24-1-1-5.2Attorney general may bring action on behalf of the state or a political subdivision

     Sec. 5.2. (a) The attorney general may bring an action in a county on behalf of the state or a political subdivision (as defined in IC 34-6-2-110) for injuries or damages sustained directly or indirectly as a result of a violation of this chapter.

     (b) An action brought under this section may be brought, without respect to the amount in controversy, in a circuit or superior court in a county in which the defendant resides or is engaged in business, or in which service may be obtained.

     (c) The plaintiff in an action brought under this section is entitled to recover a penalty of threefold the damages awarded in the action, plus reasonable costs and attorney's fees.

As added by P.L.135-2008, SEC.2.

 

IC 24-1-1-6Special grand jury instructions

     Sec. 6. It shall be the duty of the judges of the courts of this state specially to instruct the grand juries as to the provisions of this chapter.

Formerly: Acts 1897, c.104, s.6. As amended by P.L.152-1986, SEC.5; P.L.84-2016, SEC.100.

 

IC 24-1-2Chapter 2. Combinations Restraining Trade
           24-1-2-1Illegal combinations; exceptions; offense; defense
           24-1-2-2Monopoly; offense
           24-1-2-3Restraint of bidding for letting contracts; offense
           24-1-2-4Collusion among contract bidders; civil action by principal; action by attorney general
           24-1-2-5Duty of attorney general and prosecuting attorney; civil and criminal proceedings
           24-1-2-5.1Attorney general may bring action on behalf of the state or a political subdivision
           24-1-2-6Discovery proceedings; examination of defendant; sanctions for noncompliance
           24-1-2-7Treble damage action; attorney general's representation of state or political subdivision
           24-1-2-8General importance of case; certificate
           24-1-2-9Costs of proceedings
           24-1-2-10Person; definition
           24-1-2-11Examination of witness or party; immunity from criminal prosecution
           24-1-2-12Cumulative and supplemental effect of chapter

 

IC 24-1-2-1Illegal combinations; exceptions; offense; defense

     Sec. 1. Every scheme, contract, or combination in restraint of trade or commerce, or to create or carry out restrictions in trade or commerce, or to deny or refuse to any person participation, on equal terms with others, in any telegraphic service transmitting matter prepared or intended for public use, or to limit or reduce the production, or increase or reduce the price of merchandise or any commodity, or to prevent competition in manufacturing, within or without this state, is illegal, but this chapter may not be construed to apply to or repeal, modify or limit, or make unlawful any of the powers, rights or privileges now existing or conferred by law upon any person. A person who makes such a contract, engages in such a combination, or enters into such a scheme, or does within this state any act in furtherance of such a contract, combination, or scheme entered into without this state, commits a Class A misdemeanor. However, it is a defense to any action growing out of any violation of any law relating to the subject-matter of this chapter for the defendant to prove that the violation is not in restraint of trade or commerce, or does not restrict trade or commerce, limit or reduce the production, or increase or reduce the price of merchandise or any commodity, or prevent competition in manufacturing.

Formerly: Acts 1907, c.243, s.1. As amended by Acts 1978, P.L.2, SEC.2402.

 

IC 24-1-2-2Monopoly; offense

     Sec. 2. A person who monopolizes any part of the trade or commerce within this state commits a Class A misdemeanor.

Formerly: Acts 1907, c.243, s.2. As amended by Acts 1978, P.L.2, SEC.2403.

 

IC 24-1-2-3Restraint of bidding for letting contracts; offense

     Sec. 3. A person who engages in any scheme, contract, or combination to restrain or restrict bidding for the letting of any contract for private or public work, or restricts free competition for the letting of any contract for private or public work, commits a Class A misdemeanor.

Formerly: Acts 1907, c.243, s.3. As amended by Acts 1978, P.L.2, SEC.2404.

 

IC 24-1-2-4Collusion among contract bidders; civil action by principal; action by attorney general

     Sec. 4. If there shall be collusion or fraud of any kind or character among the bidders at the letting of any contract or work as provided in section 3 of this chapter, then the principal who lets the contract or work, or for whom the contract was let, shall not be liable for such letting or on account of said contract or work, or any part thereof, to the successful bidder to whom the contract or work was let, his successors or assigns, if such successful bidder be a party, directly or indirectly, to such collusion or fraud on such contract or letting, or for any work, materials furnished, or thing done in discharge thereof or with reference thereto, and if before notice of such collusion or fraud payment or partial payment thereon or therefor shall have been made, such principal may at any time within five (5) years from the date of the last payment made thereon or therefor in an appropriate action in any court of competent jurisdiction in this state recover to the full amount of such payment or payments with interest to date of judgment thereon, and attorney's fees, against such successful bidder, and such recovery shall not be a bar to any action, either civil or criminal, brought against such bidder on account of any violation of this chapter on behalf of the state by the attorney general, a prosecuting attorney, or otherwise.

Formerly: Acts 1907, c.243, s.4. As amended by P.L.152-1986, SEC.6.

 

IC 24-1-2-5Duty of attorney general and prosecuting attorney; civil and criminal proceedings

     Sec. 5. It shall be the duty of the attorney general and of the prosecuting attorney of each judicial circuit to institute appropriate proceedings to prevent and restrain violations of the provisions of this chapter or any other statute or the common law relating to the subject matter of this chapter and to prosecute any person or persons guilty of having violated any of the penal provisions thereof. In all criminal proceedings the prosecution may be by way of affidavit or indictment the same as in other criminal matters, and the attorney general shall have concurrent jurisdiction with the prosecuting attorneys in instituting and prosecuting any such actions. All civil proceedings to prevent and restrain violations shall be in the name of the state of Indiana upon relation of the proper party. The attorney general may file such proceedings upon his own relation or that of any private person in any circuit or superior court of the state, without applying to such court for leave, when he shall deem it his duty so to do. Such proceedings shall be by information filed by any prosecuting attorney in a circuit or superior court of the proper county upon his own relation whenever he shall deem it his duty so to do, or shall be directed by the court or governor or attorney general, and an information may be filed by any taxpayer on his own relation. If judgment or decree be rendered against any domestic corporation or against any person claiming to be a corporation, the court may cause the costs to be collected by execution against the person claiming to be a corporation or by attachment against any or all of the directors or officers of the corporation, and may restrain the corporation or any director, agent, employee, or stockholder and appoint a receiver for its property and effects, and take an accounting and make distribution of its assets among its creditors, and exercise any other power or authority necessary and proper for carrying out the provisions of this chapter. If judgment or decree be rendered against any corporation incorporated under the laws of the United States, or of any district or territory thereof, or of any state other than this state, or of any foreign country, the court may cause the costs to be collected as in this section provided and may render judgment and decree of ouster perpetually excluding such corporation from the privilege of transacting business in the state of Indiana and forfeiting to the school fund any or all property of such corporation within the state, and shall exercise such power and authority with regard to the property of such corporation as may be exercised with regard to that of domestic corporations.

Formerly: Acts 1907, c.243, s.5; Acts 1923, c.82, s.1. As amended by P.L.152-1986, SEC.7.

 

IC 24-1-2-5.1Attorney general may bring action on behalf of the state or a political subdivision

     Sec. 5.1. The attorney general may bring an action on behalf of the state or a political subdivision (as defined in IC 34-6-2-110) for injuries or damages sustained directly or indirectly as a result of a violation of this chapter.

As added by P.L.135-2008, SEC.3.

 

IC 24-1-2-6Discovery proceedings; examination of defendant; sanctions for noncompliance

     Sec. 6. In all proceedings instituted under and pursuant to section 5 of this chapter, the plaintiff may propound interrogatories to the defendant or defendants to be answered by such defendant or defendants under oath, as is provided by law in civil actions, and if any defendant to whom interrogatories be propounded as aforesaid be a corporation, then such interrogatories shall be answered by the highest officer of such corporation, or by any other officer, agent, or employee of such corporation designated by the plaintiff. The plaintiff in any such action shall be entitled upon motion to an order for an examination under oath before trial of any defendant or all the defendants in such action, and if any defendant in such action be a corporation, then of any officer, agent, or employee of any such defendant corporation, concerning any or all of the facts alleged in the information or other pleadings in such cause. The said defendant shall be given five (5) days' notice by the plaintiff of the time and place of the taking of said examination, but such officer, agent, or employee shall not be compelled to attend such examination except in the county where he resides or where the principal office or place of business of such corporation be situate in this state. If such defendant corporation be incorporated under the laws of the United States, or of any district or territory thereof, or of any state other than the state of Indiana, or of any foreign country, and the officer, agent, or employee to be examined be without the jurisdiction of this state, then such defendant shall produce the officer, agent, or employee to be examined as aforesaid at some place in the city or town where the principal office or place of business of such defendant be situate, upon five (5) days' notice being served upon the attorneys of such defendant corporation of the time and place fixed for the examination of such officer, agent or employee. In any examination of any defendant or of any officer, agent, or employee of any defendant corporation, such defendant officer, agent or employee may be compelled upon notice to produce for inspection by the plaintiff and to testify concerning the same, or for use in evidence upon the trial, or both, all books, papers, documents, or writings pertaining or in any wise relating to the facts, or any of them, stated in the information or other pleadings filed in the cause. In such notice to produce for inspection and testimony or for trial, or both, it shall only be necessary to notify the defendant or the attorney or attorneys of the defendant to produce, at the time and place fixed in the notice, all books, papers, documents, or writings pertaining or in any wise relating to the facts stated in the information or other pleadings filed, and it shall not be necessary to state in such notice the particular books, papers, documents, or writings to be produced at such time and place. Such examinations shall be taken before an officer authorized to take depositions and may be continued from day to day. Upon the failure or refusal of any defendant to comply with any order made as aforesaid to answer interrogatories, or for the examination of the defendant or the officer, agent, or employee of any defendant corporation, or upon the failure or refusal of any defendant corporation to produce any officer, agent, or employee for examination when notified as aforesaid, or upon the failure or refusal of any defendant to produce books, papers, documents, and writings when notified as aforesaid, then all pleadings of such defendant so failing to comply with such order or notice shall be stricken from the files upon motion supported by affidavit, and the allegations of the information as to such defendant in default shall be taken as confessed and judgment and decree shall be entered accordingly.

Formerly: Acts 1907, c.243, s.6. As amended by P.L.152-1986, SEC.8.

 

IC 24-1-2-7Treble damage action; attorney general's representation of state or political subdivision

     Sec. 7. (a) Any person whose business or property is injured by a violation of this chapter may bring an action in the circuit or superior court of any county in which the defendant resides or is found without respect to the amount in controversy, and is entitled to recover a penalty of threefold the damages awarded in the action, together with the costs of suit, including reasonable attorney's fees.

     (b) The attorney general may bring an action under this section on behalf of the state or a political subdivision if the state or political subdivision has been directly or indirectly injured by a violation of this section.

Formerly: Acts 1907, c.243, s.7. As amended by P.L.152-1986, SEC.9; P.L.135-2008, SEC.4.

 

IC 24-1-2-8General importance of case; certificate

     Sec. 8. In any proceeding under this chapter the attorney general or prosecuting attorney may file with the clerk of the court a certificate that in his opinion the case is of general importance, a copy of which shall be immediately furnished by said clerk to the judge or each of the judges of the court wherein the proceedings may be pending, and the court shall thereupon make the proper orders in the premises.

Formerly: Acts 1907, c.243, s.8. As amended by P.L.152-1986, SEC.10.

 

IC 24-1-2-9Costs of proceedings

     Sec. 9. Whenever an information is filed by the attorney general or by any prosecuting attorney, such officer shall not be liable for costs; but when it is filed upon the relation of a private person, he shall be liable for costs unless the same are adjudged against the defendant. In all proceedings instituted under the provisions of this chapter by the attorney general or by the prosecuting attorney on the order and direction of the court, the attorney general, or the governor, all necessary costs and expenses of the prosecution shall be paid out of moneys in the state treasury not otherwise appropriated if such costs cannot be collected from the defendant or defendants, in case judgment be rendered against such defendant or defendants, and it shall be the duty of the auditor of state, upon receipt from the attorney general of a statement of the costs and expenses of any such prosecution, to draw his warrant upon the treasurer of state for the amount so certified; provided, however, that the attorney general shall not involve the state in any extraordinary expense for experts or other assistants without first obtaining the consent of the governor, and twenty thousand dollars ($20,000) is appropriated biennially from any funds of the state not otherwise appropriated to defray the expenses of such prosecutions by the attorney general. Such prosecuting attorney shall also be allowed by the court trying such cause reasonable compensation for his services, and such allowances shall be paid as part of the costs and expenses of such prosecution.

Formerly: Acts 1907, c.243, s.9. As amended by P.L.152-1986, SEC.11.

 

IC 24-1-2-10Person; definition

     Sec. 10. The words "person" or "persons" whenever used in this chapter shall be deemed to include corporations, associations, limited liability companies, joint stock companies, partnerships, limited or otherwise, existing under or authorized by the laws of the state of Indiana, or of the United States, or of any state, territory, or district of the United States, or of any foreign country.

Formerly: Acts 1907, c.243, s.10. As amended by P.L.152-1986, SEC.12; P.L.8-1993, SEC.335.

 

IC 24-1-2-11Examination of witness or party; immunity from criminal prosecution

     Sec. 11. Any person or officer, agent, or employee of a corporation may be examined as a witness or a party as in other cases, in any civil action instituted under the provisions of this chapter and required to disclose all the facts relevant to the case in his knowledge as provided in this chapter, but the testimony of such witness or party or any answer to any question propounded to him in such examination shall not be used against such witness or party in any criminal prosecution except in case of perjury committed by him therein; and he shall not be liable to trial by indictment or affidavit or to punishment for any offense inquired about; provided, however, that such exemption shall be personal to such witness and shall not exempt or render immune the corporation of which such witness shall be an officer, agent, or employee, and such corporation shall be as liable for any violation of this chapter as if such officer, agent, or employee had not so testified.

Formerly: Acts 1907, c.243, s.11; Acts 1923, c.82, s.2. As amended by P.L.152-1986, SEC.13.

 

IC 24-1-2-12Cumulative and supplemental effect of chapter

     Sec. 12. The provisions of this chapter shall be held cumulative of or supplemental to each other and of all other laws in any way affecting them, or any matter which in any manner is the subject of this chapter in this state, and cumulative of and supplemental to the common law of this state relative thereto or to any thereof.

Formerly: Acts 1907, c.243, s.12. As amended by P.L.152-1986, SEC.14.

 

IC 24-1-3Chapter 3. Combinations to Prevent Sale of Supplies
           24-1-3-1Offenses; voiding contracts
           24-1-3-2Repealed
           24-1-3-3Continuing violations; penalties
           24-1-3-3.1Attorney general may bring action on behalf of the state or a political subdivision
           24-1-3-4Civil action by injured party; attorney general's representation of the state or political subdivision
           24-1-3-5Service of process; parties residing outside county in which action arises

 

IC 24-1-3-1Offenses; voiding contracts

     Sec. 1. A person who enters into any contract or combination to induce, procure, or prevent any wholesale or retail dealer in or manufacturer of merchandise or of supplies or of material or articles intended for trade or used by any mechanic, artisan, or dealer in the prosecution of his business from selling such supplies to any dealer or to any mechanic or artisan commits a Class A misdemeanor. A dealer in or manufacturer of such supplies, material, or articles who is a party to any such contract or combination or who upon the request of any party to any such contract or combination refuses to sell such supplies, materials, or articles to any other person who may require them in the prosecution of his business, for the reason that the other person is not a member of a combination or association of persons, commits a Class A misdemeanor. All such contracts and combinations are void.

Formerly: Acts 1899, c.148, s.1. As amended by Acts 1978, P.L.2, SEC.2405.

 

IC 24-1-3-2Repealed

Formerly: Acts 1899, c.148, s.2. Repealed by Acts 1978, P.L.2, SEC.2426.

 

IC 24-1-3-3Continuing violations; penalties

     Sec. 3. Each and every person, firm, limited liability company, or association of persons who shall in any manner violate the provisions of this chapter shall, for each and every day that such violation shall be committed and continued after due notice given by the party interested to the attorney general or prosecuting attorney, forfeit and pay the sum of fifty dollars ($50), which may be recovered in the name of the state on the relation of the party injured or on the relation of the prosecuting attorney in any county where the offense is committed or where the offender or offenders reside. And it shall be the duty of the prosecuting attorney of any county to prosecute any such action, and he shall be entitled to a fee of twenty-five dollars ($25) to be taxed against the defendant in the event of recovery as a part of the costs of said action. Any such action may be taken in any circuit or superior court of the county in which the defendant resides or in which he is engaged in business.

Formerly: Acts 1899, c.148, s.3. As amended by P.L.152-1986, SEC.15; P.L.8-1993, SEC.336.

 

IC 24-1-3-3.1Attorney general may bring action on behalf of the state or a political subdivision

     Sec. 3.1. The attorney general may bring an action on behalf of the state or a political subdivision (as defined in IC 34-6-2-110) for injuries or damages sustained directly or indirectly as a result of a:

(1) contract or combination described in section 1 of this chapter; or

(2) violation of this chapter.

As added by P.L.135-2008, SEC.5.

 

IC 24-1-3-4Civil action by injured party; attorney general's representation of the state or political subdivision

     Sec. 4. (a) Any person who has suffered injuries or damages as a result of a contract or combination described in section 1 of this chapter, or by any other violation of this chapter, may bring an action in a circuit or superior court having jurisdiction in the county where the defendant resides or is engaged in business, or in any county where service may be obtained, without respect to the amount in controversy. The plaintiff in an action brought under this section is entitled to recover threefold damages awarded in the action, plus reasonable costs and attorney's fees.

     (b) The attorney general may bring an action under this section on behalf of the state or a political subdivision.

Formerly: Acts 1899, c.148, s.4. As amended by P.L.152-1986, SEC.16; P.L.135-2008, SEC.6.

 

IC 24-1-3-5Service of process; parties residing outside county in which action arises

     Sec. 5. Whenever it shall appear to the court before which any proceedings under this chapter may be pending that the ends of justice require that other parties shall be brought before the court, said court may cause them to be made parties defendant and cause them to be served by the process of court as required by law in such cases provided, whether they reside in the county where said action is pending or not.

Formerly: Acts 1899, c.148, s.5. As amended by P.L.152-1986, SEC.17.

 

IC 24-1-4Chapter 4. Combinations Compelling Manufacturers to Close Down
           24-1-4-1Refusal to furnish product in ordinary commercial usage; violation of public policy; unlawful and void act
           24-1-4-2Violation of chapter; domestic corporations; forfeiture of charter and franchise; foreign corporations; prohibition; duty of attorney general
           24-1-4-3Offense
           24-1-4-4Violation of chapter; civil action for damages; attorney general
           24-1-4-5Attorney general's representation of the state or a political subdivision

 

IC 24-1-4-1Refusal to furnish product in ordinary commercial usage; violation of public policy; unlawful and void act

     Sec. 1. From and after March 8, 1901, all arrangements, agreements, trusts, or combinations, or any agreement or arrangements that are made whereby a party or corporation refuses to furnish any article or articles required to be used in the manufacture of any article or merchandise when the party or corporation can furnish the same, or by charging more than the regular and ordinary price for the same or doing or refusing to do any act or acts that would cause such party to cease to manufacture such article or hinder such person or corporation from so doing, and all arrangements, contracts, or acts done or performed between any person or corporation made for the purpose of compelling any person or corporation engaged in the business of manufacturing any article of merchandise to cease manufacturing any such article, or compelling the same to close down or go out of business, are hereby declared to be against public policy, unlawful, and void.

Formerly: Acts 1901, c.107, s.1. As amended by P.L.152-1986, SEC.18.

 

IC 24-1-4-2Violation of chapter; domestic corporations; forfeiture of charter and franchise; foreign corporations; prohibition; duty of attorney general

     Sec. 2. (a) Any corporation chartered under the laws of this state which shall violate any of the provisions of this chapter shall thereby forfeit its charter and its franchise, and its corporate existence shall thereupon cease and terminate. Every foreign corporation which shall violate any of the provisions of this chapter is hereby denied the right to do and is prohibited from doing business in this state.

     (b) It is hereby made the duty of the attorney general of the state to enforce the provisions of this chapter by due process of law.

Formerly: Acts 1901, c.107, s.2. As amended by P.L.152-1986, SEC.19.

 

IC 24-1-4-3Offense

     Sec. 3. A person who knowingly violates this chapter commits a Level 5 felony.

Formerly: Acts 1901, c.107, s.3. As amended by Acts 1978, P.L.2, SEC.2406; P.L.158-2013, SEC.270.

 

IC 24-1-4-4Violation of chapter; civil action for damages; attorney general

     Sec. 4. (a) Any person who has suffered injuries or damages as a result of an arrangement, contract, agreement, trust, or combination described in section 1 of this chapter may bring an action in any court of competent jurisdiction in this state to recover the full consideration or sum paid by the person for any goods, wares or merchandise, or article the sale of which is controlled by the combination or trust. In addition, the person is entitled to recover a penalty of threefold the damages awarded in the action, plus reasonable costs and attorney's fees.

     (b) The attorney general may bring an action under this section on behalf of the state or a political subdivision.

Formerly: Acts 1901, c.107, s.4. As amended by P.L.152-1986, SEC.20; P.L.135-2008, SEC.7.

 

IC 24-1-4-5Attorney general's representation of the state or a political subdivision

     Sec. 5. The attorney general may bring an action on behalf of the state or any political subdivision (as defined in IC 34-6-2-110) that has been directly or indirectly injured or damaged by:

(1) an arrangement, agreement, trust, or combination described in section 1 of this chapter; or

(2) any other violation of this chapter.

As added by P.L.135-2008, SEC.8.

 

IC 24-1-5Chapter 5. Motion Picture Fair Competition
           24-1-5-1Definitions
           24-1-5-2Blind selling prohibited
           24-1-5-3Notice of trade screening to exhibitors
           24-1-5-4Invitation to bids; requisites
           24-1-5-5Submitting and opening bids
           24-1-5-6Notice to bidders
           24-1-5-7Violations; civil remedies; attorney's fees

 

IC 24-1-5-1Definitions

     Sec. 1. As used in this chapter:

     "Person" includes one (1) or more individuals, partnerships, limited liability companies, associations, societies, trusts, organizations, or corporations.

     "Theater" means an establishment in which motion pictures are exhibited to the public regularly for a charge.

     "Distributor" means a person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sale or licensing.

     "Exhibitor" means a person engaged in the business of operating one (1) or more theaters.

     "Exhibit" or "exhibition" means showing a motion picture to the public for a charge.

     "Invitation to bid" or "invite bids" means a written or oral solicitation by a distributor to one (1) or more exhibitors to bid for the right to exhibit a motion picture.

     "Bid" means a written offer or proposal by an exhibitor to a distributor in response to an invitation to bid for the right to exhibit a motion picture.

     "Trade screening" means the showing of a motion picture by a distributor at some location within the state which is open to any exhibitor from whom the distributor intends to invite bids or with whom the distributor intends to negotiate for the right to exhibit the motion picture.

     "Blind selling" means the bidding or negotiating for, or the offering or agreeing to terms for, the licensing or exhibition of a motion picture before the motion picture has either been trade screened within the state or before such motion picture has been made available for viewing within the state by all exhibitors from whom the distributor is inviting bids or with whom the distributor is negotiating for the right to exhibit the motion picture.

     "Run" means the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A "first run" is the first exhibition of a picture in the designated area; a "second run" is the second exhibition; and "subsequent runs" are subsequent exhibitions after a second run.

     "Exclusive run" means a run limited to a single theater in a defined geographic area.

As added by Acts 1980, P.L.161, SEC.1. Amended by P.L.8-1993, SEC.337.

 

IC 24-1-5-2Blind selling prohibited

     Sec. 2. Blind selling is unlawful in this state and an agreement which attempts to waive this prohibition is void.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-1-5-3Notice of trade screening to exhibitors

     Sec. 3. A distributor must provide reasonable and uniform notice of a trade screening of a motion picture to those exhibitors within the state from whom he intends to invite bids or with whom he intends to negotiate for the right to exhibit that motion picture.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-1-5-4Invitation to bids; requisites

     Sec. 4. If bids are invited from exhibitors for the licensing of a motion picture, the invitation to bid shall specify:

(1) whether the run for which the bid is invited is a first, second, or subsequent run;

(2) whether the run is an exclusive or nonexclusive run;

(3) the geographic area for the run;

(4) the date and hour the invitation to bid expires; and

(5) the time and date when, and the location of the office serving the territory where, the bids will be opened.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-1-5-5Submitting and opening bids

     Sec. 5. All bids must be submitted in writing and shall be opened at the designated time in the presence of those exhibitors, or their agents, who are present for the bid opening. The opened bids are subject to examination by the exhibitors or their agents.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-1-5-6Notice to bidders

     Sec. 6. Within ten (10) business days of the bid opening, the distributor shall give notice of the name of the winning bidder or the fact that none of the bids were accepted to each exhibitor submitting a bid.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-1-5-7Violations; civil remedies; attorney's fees

     Sec. 7. In a successful civil action against a person for violating this chapter, the court shall award the plaintiff damages and reasonable attorney fees. The provisions of this chapter may be enforced by injunction or other equitable remedy.

As added by Acts 1980, P.L.161, SEC.1.

 

IC 24-2ARTICLE 2. TRADEMARKS, TRADE NAMES, AND TRADE SECRETS
           Ch. 1.Trademark Act
           Ch. 2.Misleading Trade Names
           Ch. 3.Trade Secrets

 

IC 24-2-1Chapter 1. Trademark Act
           24-2-1-0.1Application of certain amendments to chapter
           24-2-1-0.5Intent; judicial or administrative interpretation
           24-2-1-1Repealed
           24-2-1-2Definitions
           24-2-1-3Registerability
           24-2-1-4Application for registration
           24-2-1-4Application for registration
           24-2-1-4.5Examination; additional information; new application; disclaiming component of mark; amending; civil action; priority
           24-2-1-4.5Examination; additional information; new application; disclaiming component of mark; amending; civil action; priority
           24-2-1-5Certificate of registration
           24-2-1-6Duration and renewal
           24-2-1-6Duration and renewal
           24-2-1-7Expiration of registration
           24-2-1-8Assignment
           24-2-1-8.5Certificate of change of name; new certificate of registration
           24-2-1-9Records
           24-2-1-10Cancellation
           24-2-1-11Classification; single application
           24-2-1-11Classification; single application
           24-2-1-12Damages for fraudulent registration
           24-2-1-13Infringement
           24-2-1-13.5Fanciful marks; famous marks; injunctive relief; remedies; attorney's fees
           24-2-1-14Remedies
           24-2-1-14.5Cancellation; action to compel registration; jurisdiction
           24-2-1-15Common law rights
           24-2-1-15.3Fees
           24-2-1-15.3Fees
           24-2-1-16Repealed

 

IC 24-2-1-0.1Application of certain amendments to chapter

     Sec. 0.1. The following amendments to this chapter apply as follows:

(1) The addition of sections 0.5, 4.5, 8.5, 13.5, 14.5, and 15.3 of this chapter by P.L.135-2006 does not affect a legal proceeding or appeal initiated under this chapter before July 1, 2006.

(2) The amendments made to sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of this chapter by P.L.135-2006 do not affect a legal proceeding or appeal initiated under this chapter before July 1, 2006.

As added by P.L.220-2011, SEC.385.

 

IC 24-2-1-0.5Intent; judicial or administrative interpretation

     Sec. 0.5. This chapter is intended to provide a system of state trademark registration and protection that is consistent with the federal system of trademark registration and protection under the Trademark Act of 1946. A judicial or an administrative interpretation of a provision of the federal Trademark Act may be considered as persuasive authority in construing a provision of this chapter.

As added by P.L.135-2006, SEC.1.

 

IC 24-2-1-1Repealed

Formerly: Acts 1955, c.174, s.1. As amended by P.L.152-1986, SEC.21. Repealed by P.L.135-2006, SEC.21.

 

IC 24-2-1-2Definitions

     Sec. 2. The following definitions apply throughout this chapter:

(1) "Abandoned" means either of the following:

(A) The person who owns the mark has discontinued use of the mark and does not intend to resume use of the mark. A person's intent not to resume use of the mark may be inferred from the circumstances. Three (3) consecutive years without use of a mark constitutes prima facie evidence that the use of the mark has been abandoned.

(B) The conduct of the owner, including an act or omission, has caused the mark to lose its significance as a mark.

(2) "Applicant" means a person who files an application for registration of a mark under this chapter and the legal representatives, successors, or assigns of the person.

(3) "Dilution" means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of:

(A) competition between the owner of the famous mark and other parties; or

(B) the likelihood of confusion, mistake, or deception.

(4) "Mark" means a trademark or service mark that is entitled to registration under this chapter, whether the mark is registered or not.

(5) "Person" means:

(A) a human being;

(B) a corporation;

(C) a partnership;

(D) a limited liability company; or

(E) any other entity or organization:

(i) capable of suing and being sued in a court of law;

(ii) entitled to a benefit or privilege under this chapter; or

(iii) rendered liable under this chapter.

(6) "Registrant" means a person to whom the registration of a mark under this chapter is issued and the legal representatives, successors, or assigns of the person.

(7) "Secretary" means the secretary of state or the designee of the secretary charged with the administration of this chapter.

(8) "Service mark" means a word, name, symbol, device, or combination of a word, name, symbol, or device that is used by a person to:

(A) identify a service, including a unique service, of a person and distinguish the person's service from the service of another person; and

(B) indicate the source of a service, even if the source is unknown.

Titles and character names and other distinctive features of radio or television programs used by a person may be registered as a service mark even though the radio or television programs may advertise the goods of the sponsor.

(9) "Trademark" means any word, name, symbol, or device or any combination of a word, name, symbol, or device that is used by a person to:

(A) identify and distinguish goods, including a unique product, of a person and distinguish the person's goods from goods manufactured or sold by another person; and

(B) indicate the source of the goods, even if the source is unknown.

(10) "Trade name" means a name used by a person to identify a business or vocation of the person.

(11) "Use" means the bona fide use of a mark in the ordinary course of trade and not a use made merely to reserve a right in a mark. A mark is considered to be in use:

(A) on or in connection with a good if the:

(i) mark is placed in any manner on the good, a container for the good, a display associated with the good, or a tag or label affixed to the good; or

(ii) nature of the good makes placement of the mark as described in item (i) impracticable and the mark is placed on a document associated with the good or with the sale of the good; and

(B) if the good described in clause (A) is sold or transported in Indiana.

A mark is considered to be in use on or in connection with a service if the mark is used or displayed in the sale or advertising of the service and the service is rendered in Indiana.

Formerly: Acts 1955, c.174, s.2; Acts 1959, c.256, s.1. As amended by P.L.152-1986, SEC.22; P.L.8-1993, SEC.338; P.L.135-2006, SEC.2.

 

IC 24-2-1-3Registerability

     Sec. 3. A mark by which the goods or services of an applicant may be distinguished from other goods or services may not be registered if the mark:

(1) consists of or comprises immoral, deceptive, or scandalous matter;

(2) consists of or comprises matter that may:

(A) disparage or falsely suggest a connection with:

(i) persons living or dead;

(ii) institutions;

(iii) beliefs; or

(iv) national symbols; or

(B) bring into contempt or disrepute:

(i) persons living or dead;

(ii) institutions;

(iii) beliefs; or

(iv) national symbols;

(3) consists of or comprises the flag, coat of arms, or other insignia of:

(A) the United States;

(B) a state or municipality;

(C) the United Nations; or

(D) a foreign nation;

(4) consists of or comprises the name, signature, or portrait identifying a particular living individual, unless the individual provides written consent; or

(5) is a mark that:

(A) if used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of the goods or services;

(B) if used on or in connection with the goods or services of the applicant, is primarily geographically descriptive or deceptively geographically misdescriptive of the goods or services; or

(C) is primarily merely a surname.

This subdivision does not prevent the registration of a mark that is used in Indiana by the applicant and has become distinctive of the applicant's goods or services. The secretary may accept proof of continuous use of a mark by the applicant in Indiana for the five (5) years immediately preceding the date on which the claim of distinctiveness is made as evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services; or

(6) is a mark that so resembles a mark registered in Indiana or a mark or trade name previously used by another person in Indiana and not abandoned, as to be likely, if used on or in connection with the goods or services of the applicant, to cause deception, confusion, or mistake.

Formerly: Acts 1955, c.174, s.3; Acts 1959, c.256, s.2. As amended by P.L.152-1986, SEC.23; P.L.135-2006, SEC.3.

 

IC 24-2-1-4Application for registration

     Note: This version of section effective until 7-1-2018. See also following version of this section, effective 7-1-2018.

     Sec. 4. (a) Subject to the limitations of this chapter, a person who uses a mark in Indiana may file in the office of the secretary, in a manner that complies with the requirements of the secretary, an application for registration of the mark. The application must include the following information:

(1) The name and business address of the person applying for registration of the mark, and:

(A) if the applicant is a corporation, the state of incorporation;

(B) if the applicant is a partnership, the:

(i) state in which the partnership is organized; and

(ii) names of the general partners, as specified by the secretary; or

(C) if the applicant is another form of legal entity, the jurisdiction in which the legal entity was organized.

(2) The:

(A) goods or services on or in connection with which the mark is used;

(B) mode or manner in which the mark is used on or in connection with the goods or services; and

(C) class in which the goods or services fall.

(3) The date on which the mark was first used anywhere and the date on which the mark was first used in Indiana by the applicant or the applicant's predecessor in business.

(4) A statement that:

(A) the applicant is the owner of the mark;

(B) the mark is in use; and

(C) to the knowledge of the person verifying the application, another person:

(i) has not registered the mark, either federally or in Indiana; or

(ii) does not have the right to use the mark either in the identical form or in such near resemblance to the form as to be likely, if applied to the goods or services of the other person, to cause deception, confusion, or mistake.

     (b) The secretary may also require on an application:

(1) a statement indicating whether an application to register a mark, parts of a mark, or a composite of a mark, has been filed by the applicant or a predecessor in the interest of the applicant in the United States Patent and Trademark Office. If an application has previously been filed in the United States Patent and Trademark Office, the applicant must provide full particulars with respect to the previous application, including the:

(A) filing date and serial number of each application;

(B) status of each application; and

(C) reason or reasons for the refusal of the application or the nonregistration of the mark if an application to register the mark was finally refused registration or if an application to register the mark has not resulted in a registration; and

(2) a drawing of the mark that complies with the requirements of the secretary.

     (c) The application must be signed and verified under oath, affirmation, or declaration subject to perjury laws by:

(1) the applicant;

(2) a member of the applicant firm or applicant limited liability company; or

(3) an officer of the applicant corporation, association, or other form of legal entity.

The application must be accompanied by three (3) specimens showing actual use of the mark. The application must be accompanied by an application fee payable to the secretary.

Formerly: Acts 1955, c.174, s.4; Acts 1959, c.256, s.3. As amended by P.L.152-1986, SEC.24; P.L.8-1993, SEC.339; P.L.135-2006, SEC.4.

 

IC 24-2-1-4Application for registration

     Note: This version of section effective 7-1-2018. See also preceding version of this section, effective until 7-1-2018.

     Sec. 4. (a) Subject to the limitations of this chapter, a person who uses a mark in Indiana may file in the office of the secretary, in a manner that complies with the requirements of the secretary, an electronic application for registration of the mark. The electronic application must include the following information:

(1) The name and business address of the person applying for registration of the mark, and:

(A) if the applicant is a corporation, the state of incorporation;

(B) if the applicant is a partnership, the:

(i) state in which the partnership is organized; and

(ii) names of the general partners, as specified by the secretary; or

(C) if the applicant is another form of legal entity, the jurisdiction in which the legal entity was organized.

(2) The:

(A) goods or services on or in connection with which the mark is used;

(B) mode or manner in which the mark is used on or in connection with the goods or services; and

(C) class in which the goods or services fall.

(3) The date on which the mark was first used anywhere and the date on which the mark was first used in Indiana by the applicant or the applicant's predecessor in business.

(4) A statement that:

(A) the applicant is the owner of the mark;

(B) the mark is in use; and

(C) to the knowledge of the person verifying the application, another person:

(i) has not registered the mark, either federally or in Indiana; or

(ii) does not have the right to use the mark either in the identical form or in such near resemblance to the form as to be likely, if applied to the goods or services of the other person, to cause deception, confusion, or mistake.

     (b) The secretary may also require on an application:

(1) a statement indicating whether an application to register a mark, parts of a mark, or a composite of a mark, has been filed by the applicant or a predecessor in the interest of the applicant in the United States Patent and Trademark Office. If an application has previously been filed in the United States Patent and Trademark Office, the applicant must provide full particulars with respect to the previous application, including the:

(A) filing date and serial number of each application;

(B) status of each application; and

(C) reason or reasons for the refusal of the application or the nonregistration of the mark if an application to register the mark was finally refused registration or if an application to register the mark has not resulted in a registration; and

(2) a drawing of the mark that complies with the requirements of the secretary.

     (c) The electronic application must be signed and verified under oath, affirmation, or declaration subject to perjury laws by:

(1) the applicant;

(2) a member of the applicant firm or applicant limited liability company; or

(3) an officer of the applicant corporation, association, or other form of legal entity.

The application must be accompanied by one (1) sample image showing actual use of the mark. The application must be accompanied by an application fee payable to the secretary.

Formerly: Acts 1955, c.174, s.4; Acts 1959, c.256, s.3. As amended by P.L.152-1986, SEC.24; P.L.8-1993, SEC.339; P.L.135-2006, SEC.4; P.L.128-2017, SEC.5.

 

IC 24-2-1-4.5Examination; additional information; new application; disclaiming component of mark; amending; civil action; priority

     Note: This version of section effective until 7-1-2018. See also following version of this section, effective 7-1-2018.

     Sec. 4.5. (a) If a person files an application for registration of a mark and pays the application fee, the secretary may examine the application for conformity with this chapter.

     (b) An applicant must provide additional information requested by the secretary, including a description of a design mark.

     (c) An applicant may make or authorize the secretary to make reasonable amendments to an application that are requested by the secretary or are considered by the applicant to be advisable to respond to a rejection or an objection.

     (d) The secretary may require an applicant to submit a new application if the secretary determines amendments to the application are necessary and the applicant does not make or authorize the secretary to make amendments under subsection (c).

     (e) The secretary may require an applicant to disclaim a component of a mark that is not eligible for registration, and an applicant may voluntarily disclaim a component of a mark for which registration is sought. A disclaimer does not prejudice or affect the applicant's rights:

(1) existing at the time of application or arising after the application in the disclaimed matter; or

(2) on another application if the disclaimed matter is or becomes distinctive of the applicant's goods or services.

     (f) If an applicant is not entitled to registration of a mark under this chapter, the secretary shall advise the applicant of the reason the applicant is not entitled to registration of the mark. The applicant has a reasonable time specified by the secretary:

(1) to reply to the reason the applicant is not entitled to registration; or

(2) to amend the application.

If the applicant replies to the secretary or amends the application within the reasonable time, the secretary shall reexamine the application.

     (g) The procedure under subsection (f) may be repeated until:

(1) the secretary finally refuses registration of the mark; or

(2) the applicant fails to reply or amend the application within the time specified by the secretary, at which time the secretary shall consider the application to have been withdrawn.

     (h) If the secretary issues a final order refusing the registration of a mark, an applicant may bring a civil action in a court with jurisdiction to compel the registration of the mark. A court may order the secretary to register a mark, without costs to the secretary, on proof that all statements in the application are true and the mark is entitled to registration.

     (i) If two (2) or more applications are concurrently processed by the secretary for registration of the same or confusingly similar marks for the same or related goods or services, the secretary shall grant priority to the applications in order of filing. If a previously filed application is granted a registration, the other application or applications must be rejected. A rejected applicant may bring an action for cancellation of the previously registered mark based upon previous or superior rights to the mark under section 10 of this chapter.

As added by P.L.135-2006, SEC.5.

 

IC 24-2-1-4.5Examination; additional information; new application; disclaiming component of mark; amending; civil action; priority

     Note: This version of section effective 7-1-2018. See also preceding version of this section, effective until 7-1-2018.

     Sec. 4.5. (a) If a person files an electronic application for registration of a mark and pays the appropriate application fee described in section 15.3 of this chapter, the secretary may examine the application for conformity with this chapter.

     (b) An applicant must provide additional information requested by the secretary, including a description of a design mark.

     (c) An applicant may make or authorize the secretary to make reasonable amendments to an electronic application that are requested by the secretary or are considered by the applicant to be advisable to respond to a rejection or an objection.

     (d) The secretary may require an applicant to submit a new electronic application if the secretary determines amendments to the application are necessary and the applicant does not make or authorize the secretary to make amendments under subsection (c).

     (e) The secretary may require an applicant to disclaim a component of a mark that is not eligible for registration, and an applicant may voluntarily disclaim a component of a mark for which registration is sought. A disclaimer does not prejudice or affect the applicant's rights:

(1) existing at the time of application or arising after the application in the disclaimed matter; or

(2) on another application if the disclaimed matter is or becomes distinctive of the applicant's goods or services.

     (f) If an applicant is not entitled to registration of a mark under this chapter, the secretary shall advise the applicant of the reason the applicant is not entitled to registration of the mark. The applicant has a reasonable time specified by the secretary:

(1) to reply to the reason the applicant is not entitled to registration; or

(2) to amend the application.

If the applicant replies to the secretary or amends the application within the reasonable time, the secretary shall reexamine the application.

     (g) The procedure under subsection (f) may be repeated until:

(1) the secretary finally refuses registration of the mark; or

(2) the applicant fails to reply or amend the application within the time specified by the secretary, at which time the secretary shall consider the application to have been withdrawn.

     (h) If the secretary issues a final order refusing the registration of a mark, an applicant may bring a civil action in a court with jurisdiction to compel the registration of the mark. A court may order the secretary to register a mark, without costs to the secretary, on proof that all statements in the application are true and the mark is entitled to registration.

     (i) If two (2) or more applications are concurrently processed by the secretary for registration of the same or confusingly similar marks for the same or related goods or services, the secretary shall grant priority to the applications in order of filing. If a previously filed application is granted a registration, the other application or applications must be rejected. A rejected applicant may bring an action for cancellation of the previously registered mark based upon previous or superior rights to the mark under section 10 of this chapter.

As added by P.L.135-2006, SEC.5. Amended by P.L.128-2017, SEC.6.

 

IC 24-2-1-5Certificate of registration

     Sec. 5. (a) If an applicant complies with the requirements of this chapter, the secretary shall issue and deliver a certificate of registration to the applicant. The certificate of registration must be issued under the signature of the secretary and the seal of the state of Indiana. The certificate of registration must include all of the following:

(1) The name and business address of the person claiming ownership of the mark. If the person claiming ownership of the mark is:

(A) a corporation, the certificate of registration must show the state of incorporation;

(B) a partnership, the certificate of registration must show the state in which the partnership is organized and the names of the general partners, as specified by the secretary; or

(C) another form of legal entity, the certificate of registration must show the jurisdiction in which the legal entity is organized.

(2) The date claimed for the first use of the mark anywhere and the date claimed for the first use of the mark in Indiana.

(3) The class of goods or services and a description of the goods or services on or in connection with which the mark is used.

(4) A reproduction of the mark.

(5) The registration date.

(6) The term of the registration.

     (b) A certificate of registration issued by the secretary under subsection (a) or a copy of a certificate of registration certified by the secretary is admissible in evidence as competent and sufficient proof of the registration of the mark in an action or judicial proceeding in a court of Indiana.

Formerly: Acts 1955, c.174, s.5; Acts 1959, c.256, s.4. As amended by P.L.152-1986, SEC.25; P.L.135-2006, SEC.6.

 

IC 24-2-1-6Duration and renewal

     Note: This version of section effective until 7-1-2018. See also following version of this section, effective 7-1-2018.

     Sec. 6. (a) Registration of a mark under this chapter is effective for a term of five (5) years from the date of registration.

     (b) If a person who registers a mark under subsection (a) files an application not more than six (6) months before the expiration of the five (5) year term, in a manner complying with the requirements of the secretary, the registration may be renewed for an additional five (5) year term commencing at the end of the expiring five (5) year term.

     (c) A renewal fee payable to the secretary must accompany the application for renewal of the registration.

     (d) A registration may be renewed for successive periods of five (5) years in the manner described in subsection (b).

     (e) The secretary shall notify the registrants of marks of the necessity of renewal within the year next preceding the expiration of the five (5) years from the date of the registration by writing to the last known address of the registrants.

     (f) An application for renewal under this chapter for a mark registered under this chapter or a mark registered under a prior law, must include:

(1) a verified statement that the mark has been and remains in use; and

(2) a specimen showing actual use of the mark on or in connection with the good or service.

Formerly: Acts 1955, c.174, s.6. As amended by P.L.135-2006, SEC.7.

 

IC 24-2-1-6Duration and renewal

     Note: This version of section effective 7-1-2018. See also preceding version of this section, effective until 7-1-2018.

     Sec. 6. (a) Registration of a mark under this chapter is effective for a term of five (5) years from the date of registration.

     (b) If a person who registers a mark under subsection (a) files an electronic application not more than six (6) months before the expiration of the five (5) year term, in a manner complying with the requirements of the secretary, the registration may be renewed for an additional five (5) year term commencing at the end of the expiring five (5) year term.

     (c) A renewal fee payable to the secretary must accompany the application for renewal of the registration.

     (d) A registration may be renewed for successive periods of five (5) years in the manner described in subsection (b).

     (e) The secretary shall notify the registrants of marks of the necessity of renewal within the year next preceding the expiration of the five (5) years from the date of the registration by writing to the last known electronic mail address or, if none, the last known address of the registrants.

     (f) An application for renewal under this chapter for a mark registered under this chapter or a mark registered under a prior law, must include:

(1) a verified statement that the mark has been and remains in use; and

(2) an image of the mark on or in connection with the good or service.

Formerly: Acts 1955, c.174, s.6. As amended by P.L.135-2006, SEC.7; P.L.128-2017, SEC.7.

 

IC 24-2-1-7Expiration of registration

     Sec. 7. A registration in force on July 1, 2006, continues in full force and effect for the unexpired term of the registration and may be renewed by:

(1) filing an application for renewal with the secretary; and

(2) paying the renewal fee;

in the manner described in section 6 of this chapter not more than six (6) months before the expiration of the registration.

Formerly: Acts 1955, c.174, s.7. As amended by P.L.152-1986, SEC.26; P.L.135-2006, SEC.8.

 

IC 24-2-1-8Assignment

     Sec. 8. (a) A mark and the registration of a mark under this chapter are assignable with the:

(1) good will of the business in which the mark is used; or

(2) part of the good will of the business:

(A) connected with the use of the mark; and

(B) symbolized by the mark.

     (b) An assignment:

(1) must be made by an instrument in writing duly executed; and

(2) may be recorded with the secretary upon the payment of a recording fee to the secretary.

     (c) The secretary, after recording an assignment, shall issue in the name of the assignee a new certificate of registration for the remainder of the term of the:

(1) registration; or

(2) most recent renewal of the registration.

     (d) An assignment of a registration under this chapter is void against a subsequent purchaser for valuable consideration without notice unless the assignment is recorded with the secretary not more than three (3) months:

(1) after the date of the assignment; or

(2) before the subsequent purchase.

Formerly: Acts 1955, c.174, s.8. As amended by P.L.152-1986, SEC.27; P.L.135-2006, SEC.9.

 

IC 24-2-1-8.5Certificate of change of name; new certificate of registration

     Sec. 8.5. (a) A registrant or an applicant who changes the name of the person to whom the mark is issued or for whom an application is filed may record a certificate of change of name of the registrant or applicant with the secretary upon the payment of a recording fee.

     (b) The secretary may issue a new certificate of registration or an assigned application in the name of the assignee. The secretary may issue a new certificate of registration in the name of the assignee for the remainder of the term of the:

(1) certificate of registration; or

(2) most recent renewal of the certificate of registration.

As added by P.L.135-2006, SEC.10.

 

IC 24-2-1-9Records

     Sec. 9. The secretary shall keep for public examination a record of all marks registered or renewed under this chapter as well as a record of all instruments recorded under sections 8 and 8.5 of this chapter.

Formerly: Acts 1955, c.174, s.9. As amended by P.L.152-1986, SEC.28; P.L.135-2006, SEC.11.

 

IC 24-2-1-10Cancellation

     Sec. 10. The secretary shall cancel from the register in whole or in part:

(1) a registration for which the secretary receives a voluntary request for cancellation from the registrant or the assignee of record;

(2) all registrations granted under this chapter and not renewed under section 6 of this chapter;

(3) a registration for which a court of competent jurisdiction finds that:

(A) the registered mark has been abandoned;

(B) the registrant is not the owner of the mark;

(C) the registration was granted improperly;

(D) the registration was obtained fraudulently;

(E) the registered mark is or has become the generic name for the good or the service, or a part of the good or the service, for which the mark was registered; or

(F) the registered mark is so similar to a mark registered by another person on the principal register in the United States Patent and Trademark Office as to be likely to cause deception, confusion, or mistake between the marks, and the mark registered in the United States Patent and Trademark Office was filed before the filing of the application for registration by the registrant under this chapter. However, a mark may not be canceled under this clause if the registrant proves that the registrant is the owner of a concurrent registration of a mark in the United States Patent and Trademark Office covering an area including Indiana; or

(4) a registration if a court of competent jurisdiction orders cancellation of the registration on any ground.

Formerly: Acts 1955, c.174, s.10. As amended by P.L.152-1986, SEC.29; P.L.135-2006, SEC.12.

 

IC 24-2-1-11Classification; single application

     Note: This version of section effective until 7-1-2018. See also following version of this section, effective 7-1-2018.

     Sec. 11. (a) The secretary shall adopt rules under IC 4-22-2 to establish:

(1) a classification of goods and services for convenience of administration of this chapter but not to limit or extend an applicant's or registrant's rights; and

(2) a single application for registration of a mark that:

(A) may include each good upon which a mark is used;

(B) may include each service with which a mark is used; and

(C) must indicate the appropriate class or classes of the goods or services.

To the extent practical, the classification of goods or services should conform to the classification of goods or services adopted by the United States Patent and Trademark Office.

     (b) If a single application includes goods or services that fall within multiple classes, the secretary may require payment of a fee for each class.

Formerly: Acts 1955, c.174, s.11; Acts 1959, c.256, s.5. As amended by P.L.152-1986, SEC.30; P.L.135-2006, SEC.13.

 

IC 24-2-1-11Classification; single application

     Note: This version of section effective 7-1-2018. See also preceding version of this section, effective until 7-1-2018.

     Sec. 11. (a) The secretary may adopt rules under IC 4-22-2 to establish:

(1) a classification of goods and services for convenience of administration of this chapter but not to limit or extend an applicant's or registrant's rights; and

(2) a single application for registration of a mark that:

(A) may include each good upon which a mark is used;

(B) may include each service with which a mark is used; and

(C) must indicate the appropriate class or classes of the goods or services.

To the extent practical, the classification of goods or services should conform to the classification of goods or services adopted by the United States Patent and Trademark Office.

     (b) If a single application includes goods or services that fall within multiple classes, the secretary may require payment of a fee for each class.

Formerly: Acts 1955, c.174, s.11; Acts 1959, c.256, s.5. As amended by P.L.152-1986, SEC.30; P.L.135-2006, SEC.13; P.L.128-2017, SEC.8.

 

IC 24-2-1-12Damages for fraudulent registration

     Sec. 12. (a) A person who shall for himself or herself, or on behalf of any other person, procure the filing or registration of any mark in the office of the secretary under this chapter by knowingly making a false or fraudulent representation or declaration orally, in writing, or by other fraudulent means, is liable for all damages sustained in consequence of the filing or registration.

     (b) The damages may be recovered by or on behalf of the injured party in a court of competent jurisdiction.

Formerly: Acts 1955, c.174, s.12. As amended by P.L.135-2006, SEC.14.

 

IC 24-2-1-13Infringement

     Sec. 13. Subject to the provisions of section 15 of this chapter, a person who:

(1) uses, without the consent of the registrant, a reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter:

(A) in connection with the sale, offering for sale, distribution, or advertising of goods or services; or

(B) on or in connection with which the use is likely to cause confusion or mistake, or result in deception regarding the source of origin of the goods or services; or

(2) reproduces, counterfeits, or copies a mark or colorably imitates a mark and applies the reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used:

(A) in connection with the sale or other distribution of the goods or services in Indiana; or

(B) on the goods or services;

is liable in a civil action brought by the registrant for the remedies provided in this chapter, except that under subdivision (2) the registrant is not entitled to recover profits or damages unless the acts have been committed with the intent to cause deception, confusion, or mistake.

Formerly: Acts 1955, c.174, s.13; Acts 1959, c.256, s.6. As amended by P.L.152-1986, SEC.31; P.L.135-2006, SEC.15.

 

IC 24-2-1-13.5Fanciful marks; famous marks; injunctive relief; remedies; attorney's fees

     Sec. 13.5. (a) This section applies only to fanciful marks, except in cases where the other person's use tarnishes the reputation of the famous mark.

     (b) An owner of a mark that is famous in Indiana is entitled, subject to the principles of equity and terms a court considers reasonable, to an injunction against another person's commercial use of the mark or trade name if the other person's use begins after the mark has become famous and the other person's use causes dilution of the distinctive quality of the mark, and to other relief provided in this section. In determining whether a mark is distinctive and famous, a court may consider factors such as:

(1) the degree of inherent or acquired distinctiveness of the mark in Indiana;

(2) the duration and extent of use of the mark in connection with the goods or services with which the mark is used;

(3) the duration and extent of advertising and publicity of the mark in Indiana;

(4) the geographical extent of the trading area in which the mark is used;

(5) the channels of trade for the goods or services with which the mark is used;

(6) the degree of recognition of the mark in the trading areas and channels of trade in Indiana as it relates to the use of the mark by the:

(A) mark's owner; and

(B) person against whom the injunction is sought;

(7) the nature and extent of use of the same or a similar mark by a third party; and

(8) whether the mark is the subject of a:

(A) registration in Indiana;

(B) federal registration under the Act of March 3, 1881;

(C) federal registration under the Act of February 20, 1905; or

(D) registration on the principal register.

     (c) In an action brought under this section, the owner of a famous mark is entitled only to injunctive relief unless the person against whom the injunctive relief is sought willfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If willful intent is proven, the owner of the famous mark is entitled to the other remedies set forth in this section, subject to the discretion of the court and the principles of equity.

     (d) A court may require a defendant to pay to the owner of a mark all profits derived from and damages suffered by reason of the use of the mark in violation of this section and, in exceptional cases, may award reasonable attorney's fees to the prevailing party.

     (e) The following are not actionable under this section:

(1) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

(2) Noncommercial use of the mark.

(3) All forms of news reporting and news commentary.

As added by P.L.135-2006, SEC.16.

 

IC 24-2-1-14Remedies

     Sec. 14. (a) An owner of a mark registered under this chapter may bring an action to enjoin the use of any mark in violation of section 13 of this chapter and the manufacture, display, or sale of any goods or services identified by the mark and a court of competent jurisdiction may grant an injunction to restrain the use of the mark and the manufacture, display, or sale of the goods or services as the court considers just and reasonable.

     (b) A court may:

(1) require a defendant to pay to the owner of a mark all:

(A) profits derived from; and

(B) damages suffered by reason of; the wrongful manufacture, display, or sale of the goods or services; and

(2) order that the goods or item bearing the mark in the possession or under the control of a defendant in the case be delivered to an officer of the court or to the complainant to be destroyed.

     (c) In addition to amounts a court may award under subsection (b), a court may enter judgment for:

(1) an amount not to exceed the greater of:

(A) three (3) times the profits derived from; or

(B) three (3) times the damages suffered by reason of;

the intentional use of a counterfeit mark, knowing it to be a counterfeit in connection with the goods or services for which the mark is registered; and

(2) in exceptional cases, reasonable attorney's fees to the prevailing party.

     (d) The invocation of a right or remedy in this chapter does not affect a registrant's right to prosecution under a penal law.

Formerly: Acts 1955, c.174, s.14. As amended by P.L.152-1986, SEC.32; P.L.135-2006, SEC.17.

 

IC 24-2-1-14.5Cancellation; action to compel registration; jurisdiction

     Sec. 14.5. (a) An action for cancellation of a mark registered under this chapter or an action to compel registration of a mark under this chapter must be brought in a court with jurisdiction in Indiana.

     (b) In an action for cancellation of a mark, the secretary:

(1) may not be made a party to an action;

(2) must be notified of the filing of a complaint in an action by the clerk of the court in which the complaint is filed; and

(3) is entitled to intervene in an action for cancellation of a mark.

     (c) In an action brought against a nonresident registrant, service may be effected upon the secretary as agent for service of the registrant in accordance with the procedures established for service upon nonresident corporations and business entities.

As added by P.L.135-2006, SEC.18.

 

IC 24-2-1-15Common law rights

     Sec. 15. This chapter does not adversely affect the rights or the enforcement of rights in a mark acquired in good faith at any time at common law.

Formerly: Acts 1955, c.174, s.15. As amended by P.L.135-2006, SEC.19.

 

IC 24-2-1-15.3Fees

     Note: This version of section effective until 7-1-2018. See also following version of this section, effective 7-1-2018.

     Sec. 15.3. (a) The secretary shall adopt rules under IC 4-22-2 to establish:

(1) an application fee;

(2) a renewal fee;

(3) a recording fee; and

(4) fees for related services.

     (b) A fee is nonrefundable unless otherwise specified in the rules adopted by the secretary under subsection (a).

As added by P.L.135-2006, SEC.20.

 

IC 24-2-1-15.3Fees

     Note: This version of section effective 7-1-2018. See also preceding version of this section, effective until 7-1-2018.

     Sec. 15.3. (a) The secretary shall collect the following fees for a document delivered under this article:

(1) An application fee of ten dollars ($10).

(2) A renewal fee of ten dollars ($10).

(3) A recording fee of ten dollars ($10).

     (b) A fee collected under subsection (a) is nonrefundable.

As added by P.L.135-2006, SEC.20. Amended by P.L.128-2017, SEC.9.

 

IC 24-2-1-16Repealed

Formerly: Acts 1955, c.174, s.17. As amended by P.L.152-1986, SEC.33. Repealed by P.L.135-2006, SEC.21.

 

IC 24-2-2Chapter 2. Misleading Trade Names
           24-2-2-1Use of terms leading buyer to believe that seller is governmental agency
           24-2-2-2Untruthful representation; United States government surplus
           24-2-2-3Violations
           24-2-2-4Action for continuing violations; injunction; criminal prosecution

 

IC 24-2-2-1Use of terms leading buyer to believe that seller is governmental agency

     Sec. 1. It shall be unlawful for any person, firm, limited liability company, corporation or association, not an agency or instrumentality of the United States government, selling or offering for sale goods, wares or merchandise, to use or cause or permit to be used in the corporate or trade-name, or description of the seller or of the place where the goods, wares or merchandise are offered for sale, any of the following words or expressions, viz., "Army," "Navy," "Marine Corps," "Marines," "Coast Guard," "Government," "Post Exchange," "P-X," or "G.I."; or any word or expression which may lead the public to believe that the seller or the place is owned, operated or managed by the United States government or its military or naval forces or any agency of the United States government.

Formerly: Acts 1947, c.143, s.1. As amended by P.L.8-1993, SEC.340.

 

IC 24-2-2-2Untruthful representation; United States government surplus

     Sec. 2. No person, firm, limited liability company, corporation or association selling or offering for sale any article of merchandise, shall in any manner represent, contrary to fact, that the article was made for, or acquired directly or indirectly from, the United States government or its military or naval forces or any agency of the United States government, or that the article conforms to government specifications or requirements, or that it has been disposed of by the United States government.

Formerly: Acts 1947, c.143, s.2. As amended by P.L.8-1993, SEC.341.

 

IC 24-2-2-3Violations

     Sec. 3. A person who recklessly violates this chapter commits a Class C misdemeanor.

Formerly: Acts 1947, c.143, s.3. As amended by Acts 1978, P.L.2, SEC.2407.

 

IC 24-2-2-4Action for continuing violations; injunction; criminal prosecution

     Sec. 4. The attorney general, prosecuting attorney or any citizen of any county where any person, firm, limited liability company, corporation, or association shall be engaged in the violation of the provisions of this chapter may, in accordance with the laws of the state of Indiana governing injunctions, maintain an action in the name of the state of Indiana to enjoin such person, firm, limited liability company, corporation, or association from continuing operations in violation of the provisions of this chapter. Any person having been so enjoined who shall violate such injunction shall be punished for contempt of court; however, such injunction shall not relieve any such person, firm, limited liability company, corporation, or association from criminal prosecution therefor as provided for in this chapter, but such remedy by injunction shall be in addition to any remedy provided for the criminal prosecution of such offense. The relator shall not be liable for any costs. In case judgment is rendered in favor of the plaintiff in any action brought for injunctive relief under the provisions of this chapter, the court rendering the same shall also render judgment for reasonable attorney's fees in such action in favor of the plaintiff and against the defendant therein, and when collected such fees shall be paid to the attorney or attorneys of the plaintiff, which if paid to the attorney general or to any prosecuting attorney shall be additional to any compensation allowed by law.

Formerly: Acts 1947, c.143, s.4. As amended by P.L.152-1986, SEC.34; P.L.8-1993, SEC.342.

 

IC 24-2-3Chapter 3. Trade Secrets
           24-2-3-1Short title; construction; purpose
           24-2-3-2Definitions
           24-2-3-3Injunction against misappropriation; exceptional circumstances
           24-2-3-4Damages for misappropriation and unjust enrichment; royalty; exemplary damages
           24-2-3-5Attorney's fees; conditions
           24-2-3-6Preservation of secrecy of trade secret
           24-2-3-7Limitation of action
           24-2-3-8Continuing misappropriation commenced before September 1, 1982

 

IC 24-2-3-1Short title; construction; purpose

     Sec. 1. (a) This chapter may be cited as the Uniform Trade Secrets Act.

     (b) This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject matter of this chapter among states enacting the provisions of this chapter.

     (c) The chapter displaces all conflicting law of this state pertaining to the misappropriation of trade secrets, except contract law and criminal law.

As added by Acts 1982, P.L.148, SEC.1.

 

IC 24-2-3-2Definitions

     Sec. 2. As used in this chapter, unless the context requires otherwise:

     "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

     "Misappropriation" means:

(1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(2) disclosure or use of a trade secret of another without express or implied consent by a person who:

(A) used improper means to acquire knowledge of the trade secret;

(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:

(i) derived from or through a person who had utilized improper means to acquire it;

(ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

     "Person" means a natural person, limited liability company, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

     "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

As added by Acts 1982, P.L.148, SEC.1. Amended by P.L.8-1993, SEC.343.

 

IC 24-2-3-3Injunction against misappropriation; exceptional circumstances

     Sec. 3. (a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

     (b) If the court determines in exceptional circumstances that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited.

     (c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.

As added by Acts 1982, P.L.148, SEC.1. Amended by P.L.50-1984, SEC.3.

 

IC 24-2-3-4Damages for misappropriation and unjust enrichment; royalty; exemplary damages

     Sec. 4. (a) In addition to or in lieu of injunctive relief, a complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.

     (b) When neither damages nor unjust enrichment are provable, the court may order payment of a reasonable royalty for no longer than the period during which the use could have been prohibited.

     (c) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).

As added by Acts 1982, P.L.148, SEC.1. Amended by P.L.50-1984, SEC.4.

 

IC 24-2-3-5Attorney's fees; conditions

     Sec. 5. If:

(1) a claim of misappropriation is made in bad faith;

(2) a motion to terminate an injunction is made or resisted in bad faith; or

(3) willful and malicious misappropriation exists;

the court may award reasonable attorney's fees to the prevailing party.

As added by Acts 1982, P.L.148, SEC.1.

 

IC 24-2-3-6Preservation of secrecy of trade secret

     Sec. 6. In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

As added by Acts 1982, P.L.148, SEC.1.

 

IC 24-2-3-7Limitation of action

     Sec. 7. An action for misappropriation must be brought within three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.

As added by Acts 1982, P.L.148, SEC.1.

 

IC 24-2-3-8Continuing misappropriation commenced before September 1, 1982

     Sec. 8. If a continuing misappropriation otherwise covered by this chapter began before September 1, 1982, the chapter does not apply to the part of the misappropriation that occured before that date. It does apply to the part that occurs after August 31, 1982, unless the appropriation was not a misappropriation under the law displaced by this chapter.

As added by Acts 1982, P.L.148, SEC.1.

 

IC 24-3ARTICLE 3. TOBACCO PRODUCTS
           Ch. 1.Repealed
           Ch. 2.Cigarette Fair Trade Act
           Ch. 3.Qualified Escrow Fund for Tobacco Product Manufacturers
           Ch. 3.5.Tobacco Qualified Escrow Fund Proceedings
           Ch. 4.Cigarettes Produced for Export; Imported Cigarettes
           Ch. 5.Delivery Sales of Tobacco Products
           Ch. 5.2.Repealed
           Ch. 5.4.Master Settlement Agreement Protection Act
           Ch. 6.Contraband Cigarettes
           Ch. 7.Nicotine Liquid Container Packaging

 

IC 24-3-1Chapter 1. Repealed

Repealed by Acts 1978, P.L.2, SEC.2426.

 

IC 24-3-2Chapter 2. Cigarette Fair Trade Act
           24-3-2-1Declaration of policy
           24-3-2-2Definitions
           24-3-2-3Sale at less than cost; penalty
           24-3-2-4Sale of multiple items at combined price
           24-3-2-4.7Failure to provide documentary evidence of distributor; penalty; seizure of cigarettes or other tobacco products
           24-3-2-5Cost to the distributor; further definition
           24-3-2-6Exceptions
           24-3-2-7Sale to meet price of competitor
           24-3-2-8Contract in violation of chapter; contract
           24-3-2-9Evidence to establish cost
           24-3-2-10Evidence of price outside ordinary channels of trade
           24-3-2-11Cost survey as evidence
           24-3-2-12Injunction
           24-3-2-13Rules; powers of department

 

IC 24-3-2-1Declaration of policy

     Sec. 1. It is declared to be the public policy of this state to promote the public welfare by making unlawful unfair, dishonest, deceptive, destructive and fraudulent business practices now existing in transactions involving the sale of, offer to sell, or inducement to sell cigarettes in this state in wholesale and retail trades. The offering for sale or sale of cigarettes below cost in the retail or wholesale trade with the intent of injuring competitors or destroying or substantially lessening competition is an unfair and deceptive business practice and adversely affects the collection of revenue due this state from the sale of cigarettes.

Formerly: Acts 1949, c.51, s.1.

 

IC 24-3-2-2Definitions

     Sec. 2. Unless the context in this chapter requires otherwise, the term:

     (a) "Cigarette" shall mean and include any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and irrespective of tobacco being flavored, adulterated, or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material; provided the definition in this paragraph shall not be construed to include cigars.

     (b) "Person" or the term "company", used in this chapter interchangeably, means and includes any individual, assignee, receiver, commissioner, fiduciary, trustee, executor, administrator, institution, bank, consignee, firm, partnership, limited liability company, joint vendor, pool, syndicate, bureau, association, cooperative association, society, club, fraternity, sorority, lodge, corporation, municipal corporation, or other political subdivision of the state engaged in private or proprietary activities or business, estate, trust, or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.

     (c) "Distributor" shall mean and include every person who sells, barters, exchanges, or distributes cigarettes in the state of Indiana to retail dealers for the purpose of resale, or who purchases for resale cigarettes from a manufacturer of cigarettes or from a wholesaler, jobber, or distributor outside the state of Indiana who is not a distributor holding a registration certificate issued under the provisions of IC 6-7-1.

     (d) "Retailer" shall mean every person, other than a distributor, who purchases, sells, offers for sale, or distributes cigarettes to consumers or to any person for any purpose other than resale, irrespective of quantity or amount or the number of sales.

     (e) "Sell at retail", "sale at retail", and "retail sales" shall mean and include any transfer of title to cigarettes for a valuable consideration made in the ordinary course of trade or usual conduct of the seller's business to the purchaser for consummation or use.

     (f) "Sell at wholesale", "sale at wholesale", and "wholesale sales" shall mean and include any transfer of title to cigarettes for a valuable consideration made in the ordinary course of trade or usual conduct of a distributor's business.

     (g) "Basic cost of cigarettes" shall mean the invoice cost of cigarettes to the retailer or distributor, as the case may be, or the replacement cost of cigarettes to the retailer or distributor, as the case may be, within thirty (30) days prior to the date of sale, in the quantity last purchased, whichever is the lower, less all trade discounts and customary discounts for cash, plus the cost at full face value of any stamps which may be required by IC 6-7-1, if not included by the manufacturer in his selling price to the distributor.

     (h) "Department" shall mean the alcohol and tobacco commission or its duly authorized assistants and employees.

     (i) "Cost to the retailer" shall mean the basic cost of cigarettes to the retailer, plus the cost of doing business by the retailer as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses paid or incurred and must include without limitation labor (including salaries of executives and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance, and advertising; however, any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer, but also, in whole or in part, discounts ordinarily allowed on purchases by a distributor shall, in determining costs to the retailer pursuant to this section, add the cost to the distributor, as defined in paragraph (j), to the basic cost of cigarettes to said retailer as well as the cost of doing business by the retailer. In the absence of proof of a lesser or higher cost of doing business:

(1) by the retailer making the sale, the cost of doing business by the retailer shall be presumed to be the following percent of the basic cost of cigarettes to the retailer:

(A) Until January 1, 2018, twelve percent (12%).

(B) During 2018, twelve and twenty-five hundredths percent (12.25%).

(C) During 2019, twelve and five tenths percent (12.5%).

(D) During 2020, twelve and seventy-five hundredths percent (12.75%).

(E) During 2021, thirteen percent (13%).

(F) During 2022, thirteen and twenty-five hundredths percent (13.25%).

(G) During 2023, thirteen and five tenths percent (13.5%).

(H) During 2024, thirteen and seventy-five hundredths percent (13.75%).

(I) After 2024, fourteen percent (14%).

(2) by the retailer, who in connection with the retailer's purchase receives not only the discounts ordinarily allowed upon purchases by a retailer, but also, in whole or in part, the discounts ordinarily allowed upon purchases by a distributor, shall be presumed to be the following percent of the sum of the basic cost of cigarettes plus the cost of doing business by the distributor:

(A) Until January 1, 2018, twelve percent (12%).

(B) During 2018, twelve and twenty-five hundredths percent (12.25%).

(C) During 2019, twelve and five tenths percent (12.5%).

(D) During 2020, twelve and seventy-five hundredths percent (12.75%).

(E) During 2021, thirteen percent (13%).

(F) During 2022, thirteen and twenty-five hundredths percent (13.25%).

(G) During 2023, thirteen and five tenths percent (13.5%).

(H) During 2024, thirteen and seventy-five hundredths percent (13.75%).

(I) After 2024, fourteen percent (14%).

     (j) "Cost to the distributor" shall mean the basic cost of cigarettes to the distributor, plus the cost of doing business by the distributor as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include without limitation labor costs (including salaries of executives and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance, and advertising. In the absence of proof of a lesser or higher cost of doing business by the distributor making the sale, the cost of doing business by the wholesaler shall be presumed to be four percent (4%) of the basic cost of cigarettes to the distributor, plus cartage to the retail outlet, if performed or paid for by the distributor, which cartage cost, in the absence of proof of a lesser or higher cost, shall be deemed to be one-half of one percent (0.5%) of the basic cost of cigarettes to the distributor.

     (k) "Registration certificate" refers to the registration certificate issued to cigarette distributors by the department of state revenue under IC 6-7-1-16.

Formerly: Acts 1949, c.51, s.2. As amended by P.L.152-1986, SEC.35; P.L.8-1993, SEC.344; P.L.204-2001, SEC.61; P.L.252-2003, SEC.12; P.L.172-2011, SEC.130; P.L.213-2015, SEC.251; P.L.217-2017, SEC.154.

 

IC 24-3-2-3Sale at less than cost; penalty

     Sec. 3. (a) It is a Class A infraction for a retailer or distributor, with intent to injure competitors or destroy or substantially lessen competition, to offer to sell or sell at retail or wholesale cigarettes at less than the cost to him. The registration certificate held by such a distributor under IC 6-7-1 may be revoked by the department for the balance of the term thereof.

     (b) Evidence of offering to sell or sale of cigarettes by any retailer or distributor at less than the cost to him is prima facie evidence of intent to injure competitors and to destroy or substantially lessen competition.

     (c) Notwithstanding IC 34-28-5-5(c), a judgment for a violation of this section shall be deposited in the enforcement and administration fund established under IC 7.1-4-10-1.

Formerly: Acts 1949, c.51, s.3. As amended by Acts 1978, P.L.2, SEC.2408; P.L.252-2003, SEC.13.

 

IC 24-3-2-4Sale of multiple items at combined price

     Sec. 4. In all offers for sale or sales involving two (2) or more items, at least one (1) of which items is cigarettes, at a combined price, and in all offers for sale or sales, involving the giving of any gift or concession of any kind whatsoever (whether it be coupons or otherwise), the retailer's or distributor's combined selling price shall not be below the cost to the retailer or the cost to the distributor, irrespective of the total of all articles, products, commodities, gifts and concessions included in such transactions.

Formerly: Acts 1949, c.51, s.4.

 

IC 24-3-2-4.7Failure to provide documentary evidence of distributor; penalty; seizure of cigarettes or other tobacco products

     Sec. 4.7. (a) A retailer shall produce an invoice or other documentary evidence proving that the retailer obtained cigarettes or a tobacco product (as defined in IC 6-7-2-5) from a distributor that holds a valid registration certificate.

     (b) Each day a retailer fails to produce an invoice or other evidence under subsection (a) constitutes a separate violation of this section.

     (c) This subsection applies in addition to or instead of any other civil or criminal penalty. The department or the department of state revenue may impose on a retailer that violates subsection (a) a civil penalty that does not exceed the greater of:

(1) five hundred percent (500%) of the retail value of the cigarettes described in subsection (a); or

(2) five thousand dollars ($5,000);

for each violation.

     (d) In addition to any other penalty described in this section, the department or the department of state revenue may seize the cigarettes or other tobacco products for which the retailer is unable to produce the invoice or documentary evidence described in subsection (a). The seized cigarettes or other tobacco products shall be forfeited to the state and destroyed.

     (e) Civil penalties collected under this chapter shall be deposited as follows:

(1) Seventy percent (70%) to the enforcement and administration fund established under IC 7.1-4-10.

(2) Thirty percent (30%) to the state general fund for the use of the department of state revenue.

As added by P.L.252-2003, SEC.14.

 

IC 24-3-2-5Cost to the distributor; further definition

     Sec. 5. When one distributor sells cigarettes to any other distributor, the former shall not be required to include in his selling price to the latter cost to the distributor as provided in section 2(j) of this chapter, but the latter distributor, upon resale to the retailer, shall be subject to the provisions of section 2(j) of this chapter.

Formerly: Acts 1949, c.51, s.5. As amended by P.L.152-1986, SEC.36.

 

IC 24-3-2-6Exceptions

     Sec. 6. The provisions of this chapter shall not apply to sales at retail or sales at wholesale made:

(a) in an isolated transaction and not in the usual course of business;

(b) where cigarettes are offered for sale or sold in bona fide clearance sales for the purpose of discontinuing trade in such cigarettes and said advertising, offer to sell, or sale shall state the reason thereof and the quantity of such cigarettes offered for sale or to be sold;

(c) where cigarettes are offered for sale or sold as imperfect or damaged and said offering to sell or sale shall state the reason therefor and the quantity of such cigarettes offered for sale or to be sold;

(d) where cigarettes are sold upon the final liquidation of a business; or

(e) where cigarettes are offered for sale or sold by any fiduciary or other officer acting under the order or direction of any court.

Formerly: Acts 1949, c.51, s.6. As amended by P.L.152-1986, SEC.37.

 

IC 24-3-2-7Sale to meet price of competitor

     Sec. 7. (a) Any retailer may offer to sell or sell cigarettes at a price made in good faith to meet the price of a competitor who is selling the same article at cost to him as a retailer, as defined in section 2(i) of this chapter. Any distributor may offer to sell or sell cigarettes at a price made in good faith to meet the price of a competitor who is rendering the same type of service and is selling the same article at cost to him as a distributor, as defined in section 2(j) of this chapter. The price of cigarettes offered for sale or sold under the exceptions specified in section 6 of this chapter shall not be considered the price of a competitor and shall not be used as a basis for establishing prices below cost, nor shall the price established at a bankrupt sale be considered the price of a competitor within the purview of this section.

     (b) In the absence of proof of the price of a competitor under this section, the lowest cost to the retailer or the lowest cost to the distributor, as the case may be, determined by any cost survey made pursuant to section 11 of this chapter, may be deemed the price of a competitor within the meaning of this section.

Formerly: Acts 1949, c.51, s.7. As amended by P.L.152-1986, SEC.38.

 

IC 24-3-2-8Contract in violation of chapter; contract

     Sec. 8. Any contract, expressed or implied, made by any person in violation of any of the provisions of this chapter is declared to be an illegal and void contract, and no recovery thereon shall be had.

Formerly: Acts 1949, c.51, s.8. As amended by P.L.152-1986, SEC.39.

 

IC 24-3-2-9Evidence to establish cost

     Sec. 9. (a) In determining cost to the retailer and cost to the distributor, the court or the department, as the case may be, shall receive and consider as bearing on the bona fides of such cost evidence tending to show that any person complained against under any of the provisions of this chapter purchased cigarettes with respect to the sale of which complaint is made at a fictitious price, or upon terms, or in such manner, or under such invoices, as to conceal the true cost, discounts, or terms of purchase, and shall also receive and consider as bearing on the bona fides of such cost evidence of the normal, customary, and prevailing terms and discounts in connection with other sales of a similar nature in the trade area or state.

     (b) Merchandise given gratis or payment made to a retailer or distributor for display, or advertising, or promotion purposes, or otherwise shall not be considered in determining the cost of cigarettes to the retailer or distributor.

Formerly: Acts 1949, c.51, s.9. As amended by P.L.152-1986, SEC.40.

 

IC 24-3-2-10Evidence of price outside ordinary channels of trade

     Sec. 10. (a) In establishing the cost of cigarettes to the retailer or distributor, the invoice cost of said cigarettes purchased at a forced, bankrupt, or close-out sale, or other sale outside of the ordinary channels of trade, may not be used as a basis for justifying a price lower than one based upon the replacement cost of the cigarettes to the retailer or distributor, within thirty (30) days prior to the date of sale, in the quantity last purchased, through the ordinary channels of trade.

     (b) Any cigarettes that are imported or reimported into the United States for sale or distribution under a trade name, trade dress, or trademark that is the same as or confusingly similar to a trade name, trade dress, or trademark used for cigarettes manufactured in the United States for sale or distribution in the United States are presumed to be purchased outside the ordinary channels of trade.

Formerly: Acts 1949, c.51, s.10. As amended by P.L.21-2000, SEC.9.

 

IC 24-3-2-11Cost survey as evidence

     Sec. 11. Where a cost survey pursuant to recognized statistical and cost accounting practices has been made for the trading area in which the offense is committed to establish the lowest cost to the retailer and the lowest cost to the distributor, said cost survey shall be deemed competent evidence to be used in proving the cost to the person complained against within the provisions of this chapter.

Formerly: Acts 1949, c.51, s.11. As amended by P.L.152-1986, SEC.41.

 

IC 24-3-2-12Injunction

     Sec. 12. (a) The department, or any person injured by any violation or who shall suffer injury from any threatened violation of this chapter, may maintain an action in any court of equitable jurisdiction to prevent, restrain, or enjoin such violation or threatened violation. If in such action a violation or threatened violation of this chapter shall be established, the court shall enjoin and restrain or otherwise prohibit such violation or threatened violation, and in addition thereto, the court shall assess in favor of the plaintiff and against the defendant the costs of suit including reasonable attorney's fees. In such action it shall not be necessary that actual damages to the plaintiff be alleged or proved, but where alleged and proved, the plaintiff in said action, in addition to such injunctive relief and costs of suit, including reasonable attorney's fees, shall be entitled to recover from the defendant the actual damages sustained by him.

     (b) In the event that no injunctive relief is sought or required, any person injured by a violation of this chapter may maintain an action for damages and costs of suit in any court of general jurisdiction.

Formerly: Acts 1949, c.51, s.12. As amended by P.L.152-1986, SEC.42.

 

IC 24-3-2-13Rules; powers of department

     Sec. 13. (a) The department may adopt rules for the enforcement of this chapter, and the department is empowered to and may undertake a cost survey, as provided for in section 11 of this chapter. The department may, in accordance with IC 4-21.5-3, suspend or revoke any registration certificate issued by it to a distributor under IC 6-7-1 for failure of any registrant to comply with this chapter or any rule adopted under this chapter.

     (b) All the powers vested in the department by IC 6-7-1 shall be available to the department in the enforcement of this chapter.

Formerly: Acts 1949, c.51, s.13. As amended by P.L.152-1986, SEC.43; P.L.7-1987, SEC.105.

 

IC 24-3-3Chapter 3. Qualified Escrow Fund for Tobacco Product Manufacturers
           24-3-3-1Findings regarding cigarette smoking
           24-3-3-2"Adjusted for inflation"
           24-3-3-3"Affiliate"
           24-3-3-4"Allocable share"
           24-3-3-5"Cigarette"
           24-3-3-6"Master Settlement Agreement"
           24-3-3-7"Qualified escrow fund"
           24-3-3-8"Released claims"
           24-3-3-9"Releasing parties"
           24-3-3-10"Tobacco product manufacturer"
           24-3-3-11"Units sold"
           24-3-3-12Tobacco product manufacturers required to become participating manufacturer or place money in qualified escrow fund
           24-3-3-13Interest paid and release of escrow funds; severability
           24-3-3-14Certification of compliance with chapter; failure to make annual deposit

 

IC 24-3-3-1Findings regarding cigarette smoking

     Sec. 1. The General Assembly makes the following findings:

(1) Cigarette smoking presents serious public health concerns to the state and to the citizens of Indiana. The Surgeon General has determined that smoking causes lung cancer, heart disease, and other serious diseases, and that there are hundreds of thousands of tobacco related deaths in the United States each year. These diseases most often do not appear until many years after the person in question begins smoking.

(2) Cigarette smoking also presents serious financial concerns for the state. Under certain health care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance.

(3) Under these programs, the state pays millions of dollars each year to provide medical assistance for these persons for health conditions associated with cigarette smoking.

(4) It is the policy of the state that financial burdens imposed on the state by cigarette smoking be borne by tobacco product manufacturers rather than by the state to the extent that such manufacturers either determine to enter into a settlement with the state or are found culpable by the courts.

(5) On November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the "Master Settlement Agreement", with the state. The Master Settlement Agreement obligates these manufacturers, in return for a release of past, present, and certain future claims against them as described in the Master Settlement Agreement, to:

(A) pay substantial sums to the state (tied in part to their volume of sales);

(B) fund a national foundation devoted to the interests of public health; and

(C) make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.

(6) It would be contrary to the policy of the state if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably. It is thus in the interest of the state to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short term profits and then becoming judgment proof before liability may arise.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-2"Adjusted for inflation"

     Sec. 2. As used in this chapter, "adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the Master Settlement Agreement.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-3"Affiliate"

     Sec. 3. As used in this chapter, "affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns", "is owned", and "ownership" mean ownership of an equity interest, or the equivalent thereof, of ten percent (10%) or more, and the term "person" means an individual, partnership, committee, association, corporation, or any other organization or group of persons.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-4"Allocable share"

     Sec. 4. As used in this chapter, "allocable share" means Allocable Share as that term is defined in the Master Settlement Agreement.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-5"Cigarette"

     Sec. 5. As used in this chapter, "cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains:

(1) any roll of tobacco wrapped in paper or in any substance not containing tobacco;

(2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or

(3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subdivision (1).

The term "cigarette" includes "roll-your-own" tobacco (i.e., any tobacco which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of "cigarette", nine-hundredths (0.09) of an ounce of "roll-your-own" tobacco constitutes one (1) individual "cigarette".

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-6"Master Settlement Agreement"

     Sec. 6. As used in this chapter, "Master Settlement Agreement" means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-7"Qualified escrow fund"

     Sec. 7. As used in this chapter, "qualified escrow fund" means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least one billion dollars ($1,000,000,000) where the arrangement requires that the financial institution hold the escrowed fund's principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing, or directing the use of the fund's principal except as consistent with this chapter.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-8"Released claims"

     Sec. 8. As used in this chapter, "released claims" means Released Claims as that term is defined in the Master Settlement Agreement.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-9"Releasing parties"

     Sec. 9. As used in this chapter, "releasing parties" means Releasing Parties as that term is defined in the Master Settlement Agreement.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-10"Tobacco product manufacturer"

     Sec. 10. As used in this chapter, "tobacco product manufacturer" means an entity that after June 30, 1999, directly (and not exclusively through any affiliate):

(1) manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);

(2) is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or

(3) becomes a successor of an entity described in subdivision (1) or (2).

The term "tobacco product manufacturer" does not include an affiliate of a tobacco product manufacturer unless the affiliate itself falls within subdivision (1), (2), or (3).

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-11"Units sold"

     Sec. 11. (a) As used in this chapter, "units sold" means the number of individual cigarettes sold in Indiana by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question. The department of state revenue shall, in the manner provided by IC 4-22-2, adopt rules that are necessary to ascertain the number of units sold of such tobacco product manufacturer for each year regardless of whether the state excise tax was due or collected.

     (b) The term does not include cigarettes sold on federal military installations or that are otherwise exempt from state excise tax under federal law.

     (c) For purposes of this section, concerning cigarettes for which the state cigarette or other tobacco product tax is paid, the cigarettes are considered as being sold in Indiana:

(1) upon the affixing of the state cigarette tax stamp; or

(2) for "roll your own" tobacco, when the state tax on other tobacco products is paid.

As added by P.L.223-1999, SEC.1. Amended by P.L.231-2015, SEC.11.

 

IC 24-3-3-12Tobacco product manufacturers required to become participating manufacturer or place money in qualified escrow fund

     Sec. 12. Any tobacco product manufacturer selling cigarettes to consumers within Indiana (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) after June 30, 1999, shall do one (1) of the following:

(1) Become a participating manufacturer (as that term is defined in section II(jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or

(2) Place into a qualified escrow fund by April 15 of the year following the year in question the following amounts (as such amounts are adjusted for inflation):

(A) 1999, $0.0094241 per unit sold after June 30, 1999.

(B) 2000, $0.0104712 per unit sold.

(C) For each of 2001 and 2002, $0.0136125 per unit sold.

(D) For each of 2003 through 2006, $0.0167539 per unit sold.

(E) For each of 2007 and each year thereafter, $0.0188482 per unit sold.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3-13Interest paid and release of escrow funds; severability

     Sec. 13. (a) Subsection (b) applies unless and until all or any part of subsection (b) is held to be unconstitutional or otherwise unenforceable. If all or any part of subsection (b) or the application of all or any part of subsection (b) to a person, an entity, or a circumstance is held to be unconstitutional or invalid by a court, the unconstitutionality or invalidity does not affect other provisions of this chapter, and subsection (c) controls. Subsection (c) applies unless and until all or any part of subsection (c) is held to be unconstitutional or otherwise unenforceable. If all or any part of subsection (c) or the application of all or any part of subsection (c) to a person, an entity, or a circumstance is held to be unconstitutional or invalid by a court, the unconstitutionality or invalidity does not affect other provisions of this chapter, and subsection (d) controls.

     (b) A tobacco product manufacturer that places funds into escrow under section 12(2) of this chapter shall receive the interest or other appreciation on such funds as earned. The funds shall be released from escrow only under the following circumstances:

(1) To pay a judgment or settlement on any released claim brought against the tobacco product manufacturer by the state or any releasing party located or residing in Indiana. Funds shall be released from escrow under this subdivision:

(A) in the order in which they were placed into escrow; and

(B) only to the extent and at the time necessary to make payments required under such a judgment or settlement.

(2) To the extent that a tobacco product manufacturer establishes that the amount the tobacco product manufacturer is required to place in escrow on account of units sold in Indiana in a particular year exceeds the master settlement agreement payments the tobacco product manufacturer would have been required to make on account of units sold in Indiana if the tobacco product manufacturer were a participating manufacturer, as determined under section IX(i) of the master settlement agreement and after final determination of all adjustments, the excess payments shall be released from escrow and shall revert to the tobacco product manufacturer.

(3) To the extent not released from escrow under subdivision (1) or (2), funds shall be released from escrow and revert back to the tobacco product manufacturer twenty-five (25) years after the date on which the funds were placed into escrow.

     (c) This subsection applies only if subsection (b) is held to be unconstitutional or otherwise unenforceable. A tobacco product manufacturer that places funds into escrow under section 12(2) of this chapter shall receive the interest or other appreciation on the funds as earned. The funds shall be released from escrow only under the following circumstances:

(1) To pay a judgment or settlement on any released claim brought against the tobacco product manufacturer by the state or any releasing party located or residing in Indiana. Funds shall be released from escrow under this subdivision:

(A) in the order in which they were placed into escrow; and

(B) only to the extent and at the time necessary to make payments required under such a judgment or settlement.

(2) To the extent not released from escrow under subdivision (1), funds shall be released from escrow and revert back to the tobacco product manufacturer twenty-five (25) years after the date on which the funds were placed into escrow.

     (d) This subsection applies only if subsections (b) and (c) are held to be unconstitutional or otherwise unenforceable. A tobacco product manufacturer that places funds into escrow under section 12(2) of this chapter shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:

(1) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in Indiana. Funds shall be released from escrow under this subdivision:

(A) in the order in which they were placed into escrow; and

(B) only to the extent and at the time necessary to make payments required under such a judgment or settlement.

(2) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow in a particular year was greater than the state's allocable share of the total payments that the manufacturer would have been required to make in that year under the Master Settlement Agreement (as determined pursuant to section IX(i)(2) of the Master Settlement Agreement, and before any of the adjustments or offsets described in section IX(i)(3) of that Agreement other than the Inflation Adjustment) had it been a participating manufacturer, the excess shall be released from escrow and revert back to the tobacco product manufacturer.

(3) To the extent not released from escrow under subdivision (1) or (2), funds shall be released from escrow and revert back to such tobacco product manufacturer twenty-five (25) years after the date on which the funds were placed into escrow.

As added by P.L.223-1999, SEC.1. Amended by P.L.252-2003, SEC.15.

 

IC 24-3-3-14Certification of compliance with chapter; failure to make annual deposit

     Sec. 14. (a) Each tobacco product manufacturer that elects to place funds into escrow under section 12(2) of this chapter shall annually certify to the attorney general that it is in compliance with this chapter. The attorney general may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under section 12 and section 13 of this chapter. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under section 12(2) of this chapter shall:

(1) Be required within fifteen (15) days to place sufficient funds into escrow to bring it into compliance with this chapter. The court, upon a finding of a violation of section 12(2) of this chapter, may also impose a civil penalty to be paid to the state general fund in an amount not to exceed five percent (5%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed one hundred percent (100%) of the original amount improperly withheld from escrow.

(2) In the case of a knowing violation, be required within fifteen (15) days to place sufficient funds into escrow to bring it into compliance with section 12(2) of this chapter. The court, upon a finding of a knowing violation of section 12(2) of this chapter, may also impose a civil penalty to be paid to the state general fund in an amount not to exceed fifteen percent (15%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent (300%) of the original amount improperly withheld from escrow.

(3) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within Indiana (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two (2) years.

     (b) Each failure to make an annual deposit required under section 12(2) of this chapter constitutes a separate violation.

As added by P.L.223-1999, SEC.1.

 

IC 24-3-3.5Chapter 3.5. Tobacco Qualified Escrow Fund Proceedings
           24-3-3.5-1Disclosure
           24-3-3.5-2Attorney's fees

 

IC 24-3-3.5-1Disclosure

     Sec. 1. Notwithstanding any other provision of law, for any official purpose, including enforcing IC 24-3-3 or a judgment in a civil action based on IC 24-3-3, the attorney general may disclose information obtained under IC 24-3-3-11 or IC 24-3-3-14.

As added by P.L.33-2002, SEC.1.

 

IC 24-3-3.5-2Attorney's fees

     Sec. 2. The attorney general is entitled to reasonable attorney's fees from a tobacco manufacturer in settlement of matters related to IC 24-3-3, or as a remedy for an adjudicated violation of IC 24-3-3.

As added by P.L.33-2002, SEC.1.

 

IC 24-3-4Chapter 4. Cigarettes Produced for Export; Imported Cigarettes
           24-3-4-1Applicability of chapter
           24-3-4-2"Cigarette"
           24-3-4-3"Department"
           24-3-4-4"Importer"
           24-3-4-5"Law enforcement officer"
           24-3-4-6"Manufacturer"
           24-3-4-7"Person"
           24-3-4-8Sale, distribution, or transportation of prohibited cigarettes
           24-3-4-9Affixing stamp on prohibited cigarettes
           24-3-4-10Monthly reports of imported cigarettes
           24-3-4-11Powers of department
           24-3-4-12Seizure of cigarettes; search warrants
           24-3-4-13Enforcement powers; prosecution of violations
           24-3-4-14Injunctive or equitable relief
           24-3-4-15Class A misdemeanor; sale, distribution, or transportation of prohibited cigarettes
           24-3-4-16Class A misdemeanor; affixing stamp on prohibited cigarettes
           24-3-4-17Penalty

 

IC 24-3-4-1Applicability of chapter

     Sec. 1. This chapter does not apply to cigarettes sold or intended to be sold as duty free merchandise by a duty free sales enterprise that complies with federal requirements, including the requirements under 19 U.S.C. 1555(b). However, this chapter applies to cigarettes that are brought back into the United States that have not been assessed a federal tax or federal duty.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-2"Cigarette"

     Sec. 2. As used in this chapter, "cigarette" has the meaning set forth in IC 24-3-2-2(a).

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-3"Department"

     Sec. 3. As used in this chapter, "department" refers to the department of state revenue.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-4"Importer"

     Sec. 4. As used in this chapter, "importer'' means any of the following:

(1) A person in the United States to whom nontaxpaid tobacco products, cigarette papers, or cigarette tubes manufactured in a foreign country, Puerto Rico, the Virgin Islands, or a possession of the United States are shipped or consigned.

(2) A person who removes cigars or cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse.

(3) A person who smuggles or unlawfully brings tobacco products, cigarette papers, or cigarette tubes into the United States.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-5"Law enforcement officer"

     Sec. 5. As used in this chapter, "law enforcement officer" has the meaning set forth in IC 35-31.5-2-185.

As added by P.L.21-2000, SEC.10. Amended by P.L.114-2012, SEC.47.

 

IC 24-3-4-6"Manufacturer"

     Sec. 6. As used in this chapter, "manufacturer" means a person who manufactures a product made from tobacco that is made for smoking or chewing, including snuff. However, the term does not include the following:

(1) A person who produces a product made from tobacco that is made for smoking or chewing, including snuff, solely for the person's own personal consumption or use.

(2) A proprietor of a customs bonded manufacturing warehouse with respect to the operation of the warehouse.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-7"Person"

     Sec. 7. As used in this chapter, "person" has the meaning set forth in IC 24-3-2-2(b).

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-8Sale, distribution, or transportation of prohibited cigarettes

     Sec. 8. As of October 1, 2000, a person may not sell, distribute, or transport into Indiana any of the following cigarettes:

(1) Cigarettes that have been marked for sale, distribution, or use outside the United States, including labels stating "For Export Only", "U.S. Tax-Exempt", and "For Use Outside U.S.".

(2) Cigarettes that do not comply with the federal Cigarette Labeling and Advertising Act (15 U.S.C. 1333) or with other federal requirements regarding health warnings and other information on cigarette packages manufactured, packaged, or imported for sale, distribution, or use in the United States.

(3) Cigarettes that do not comply with federal trademark and copyright laws.

(4) Cigarettes that violate federal requirements on importation of previously exported tobacco products, including 26 U.S.C. 5754.

(5) Cigarettes that the person knows or has reason to know that the manufacturer did not intend to be sold, distributed, or used in the United States.

(6) Cigarettes that have not had the list of the cigarette's added ingredients submitted to the Secretary of the Department of Health and Human Services under 15 U.S.C. 1335a.

(7) Cigarettes that have had the package altered before the cigarettes are sold or distributed to the consumer that remove, conceal, or obscure any of the following:

(A) A marking that indicates the cigarettes are intended to be sold, distributed, or used outside the United States.

(B) A health warning or other information required under 15 U.S.C. 1333.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-9Affixing stamp on prohibited cigarettes

     Sec. 9. A person may not affix a stamp (as defined by IC 6-7-1-9) on a package of cigarettes described in section 8 of this chapter.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-10Monthly reports of imported cigarettes

     Sec. 10. (a) A person who, for the purpose of selling or distributing the cigarettes in Indiana, imports cigarettes into Indiana that were manufactured outside the United States, shall file a monthly report with the department and keep and maintain the records required under IC 6-7-1-19 and IC 6-7-1-19.5.

     (b) The report required under subsection (a) must be signed by the person who imports the cigarettes, under penalties of perjury, and must contain the following information concerning cigarettes that the person imported during the preceding month:

(1) A copy of each of the following:

(A) The permit issued under 26 U.S.C. 5713 that allows the person to import the cigarettes into the United States.

(B) The United States Customs Service form concerning the cigarettes that contains the internal revenue tax information required by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

(2) A statement that includes the following information:

(A) The brand and brand styles of the cigarettes imported.

(B) The quantity of each brand style of the cigarettes imported.

(C) The name and address of each person to whom the cigarettes have been shipped.

(3) A statement signed by an officer of the manufacturer or importer, under the penalties for perjury, that states whether the manufacturer is a participant in the escrow fund under IC 24-3-3-12 and certifies that the manufacturer or importer has complied with the following:

(A) The federal cigarette package health warning requirements (15 U.S.C. 1333) and the federal ingredient reporting requirements (15 U.S.C. 1335a).

(B) The qualified escrow fund for tobacco product manufacturers requirements under IC 24-3-3.

As added by P.L.21-2000, SEC.10. Amended by P.L.1-2006, SEC.409.

 

IC 24-3-4-11Powers of department

     Sec. 11. The department may do the following:

(1) Adopt rules under IC 4-22-2 to implement this chapter.

(2) Assess tax due, penalties, and interest on cigarettes in violation of this chapter.

(3) Revoke or suspend the registration certificate issued under IC 6-7-1-16 of a person who violates this chapter.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-12Seizure of cigarettes; search warrants

     Sec. 12. (a) If the department or a law enforcement officer discovers cigarettes that are in violation of section 8 or 9 of this chapter, the department or a law enforcement officer may seize and take possession of the cigarettes together with any vending machine or receptacle in which the cigarettes are held for sale. The seized cigarettes, vending machine, or receptacle, not including money contained in the vending machine or receptacle, shall be forfeited to the state. The department or law enforcement agency shall, within a reasonable time after the seizure, destroy the confiscated cigarettes and vending machine or receptacle.

     (b) The confiscation, destruction, sale, or redemption of cigarettes does not relieve a person of any penalties imposed for violation of this chapter.

     (c) When the department has reason to believe that any cigarettes are being kept, sold, offered for sale, or given away in violation of this chapter, an officer of the department or a law enforcement officer may make an affidavit for a search warrant under IC 35-33-5. If the judge issues a search warrant under IC 35-33-1, a law enforcement officer or an authorized agent of the department may search any place or vehicle designated in the affidavit and search warrant and seize any cigarettes.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-13Enforcement powers; prosecution of violations

     Sec. 13. (a) This chapter may be enforced by the department or a law enforcement officer.

     (b) Upon referral of a violation of this chapter by the department or a law enforcement officer, the prosecuting attorney or the attorney general shall prosecute the person who violates this chapter.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-14Injunctive or equitable relief

     Sec. 14. In addition to any other remedy, any person may bring an action for appropriate injunctive or equitable relief for a violation of this chapter that caused actual damages to the person. The person who brings the action may recover actual damages, interest on the damages from the date the complaint was filed, costs, and reasonable attorney's fees. If the court finds that the violation was flagrant, the court may increase the recovery to an amount not exceeding three (3) times the amount of actual damages.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-15Class A misdemeanor; sale, distribution, or transportation of prohibited cigarettes

     Sec. 15. A person who knowingly or intentionally sells, distributes, or transports into Indiana cigarettes in violation of section 8 of this chapter commits a Class A misdemeanor.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-16Class A misdemeanor; affixing stamp on prohibited cigarettes

     Sec. 16. A person who knowingly or intentionally sells, or distributes cigarettes that bear Indiana tax stamps affixed in violation of this chapter commits a Class A misdemeanor.

As added by P.L.21-2000, SEC.10.

 

IC 24-3-4-17Penalty

     Sec. 17. A person who:

(1) knowingly sells, distributes, or transports more than twelve thousand (12,000) cigarettes in violation of section 8 or 9 of this chapter; and

(2) has previously been convicted of an offense under section 15 or 16 of this chapter;

commits a Level 6 felony.

As added by P.L.21-2000, SEC.10. Amended by P.L.1-2001, SEC.29; P.L.158-2013, SEC.271.

 

IC 24-3-5Chapter 5. Delivery Sales of Tobacco Products
           24-3-5-0.1"Cigarette"
           24-3-5-0.2"Cigarette manufacturer"
           24-3-5-0.3"Commission"
           24-3-5-1"Delivery sale"
           24-3-5-1.5"Distributor"
           24-3-5-2"Merchant"
           24-3-5-3"Tobacco product"
           24-3-5-4Requirements
           24-3-5-4.5Delivery sale by merchant; penalties
           24-3-5-5Mailing or shipping tobacco products; requirements; penalties
           24-3-5-6Filing with department of state revenue; compliance
           24-3-5-7Pay taxes or provide notice; penalties
           24-3-5-8Civil penalties

 

IC 24-3-5-0.1"Cigarette"

     Sec. 0.1. As used in this chapter, "cigarette" has the meaning set forth in IC 6-7-1-2.

As added by P.L.160-2005, SEC.1.

 

IC 24-3-5-0.2"Cigarette manufacturer"

     Sec. 0.2. As used in this chapter, "cigarette manufacturer" means a person or an entity that does the following:

(1) Manufactures cigarettes.

(2) Does one (1) of the following:

(A) Participates in the Master Settlement Agreement (as defined in IC 24-3-3-6) and performs the person's or entity's financial obligations under the Master Settlement Agreement.

(B) Places the applicable amount into a qualified escrow fund (as defined in IC 24-3-3-7).

(3) Pays all applicable taxes under IC 6-7-1.

As added by P.L.160-2005, SEC.2.

 

IC 24-3-5-0.3"Commission"

     Sec. 0.3. As used in this chapter, "commission" refers to the alcohol and tobacco commission created by IC 7.1-2-1-1.

As added by P.L.160-2005, SEC.3.

 

IC 24-3-5-1"Delivery sale"

     Sec. 1. As used in this chapter, "delivery sale" means a transaction for the purchase of tobacco products in which an offer to purchase tobacco products is made:

(1) electronically using a computer network (as defined in IC 35-43-2-3);

(2) by mail; or

(3) by telephone;

and acceptance of the offer results in delivery of the tobacco products to a named individual or entity at a designated address.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.4.

 

IC 24-3-5-1.5"Distributor"

     Sec. 1.5. As used in this chapter, "distributor" includes the following:

(1) A distributor as defined in IC 6-7-1-6.

(2) A distributor as defined in IC 6-7-2-2.

As added by P.L.160-2005, SEC.5.

 

IC 24-3-5-2"Merchant"

     Sec. 2. As used in this chapter, "merchant" means a person or an entity that engages in the selling of tobacco products by delivery sale.

As added by P.L.253-2003, SEC.1.

 

IC 24-3-5-3"Tobacco product"

     Sec. 3. As used in this chapter, "tobacco product" has the meaning set forth in IC 7.1-6-1-3. However, the term does not include a cigar or pipe tobacco.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.6.

 

IC 24-3-5-4Requirements

     Sec. 4. Subject to section 4.5 of this chapter, a merchant may not mail or ship cigarettes as part of a delivery sale unless, before mailing or shipping the cigarettes, the merchant:

(1) obtains from the prospective customer a written statement signed by the prospective customer under penalty of perjury:

(A) providing the prospective customer's address and date of birth;

(B) advising the prospective customer that:

(i) signing another person's name to the statement required under this subdivision may subject the person to a civil monetary penalty of not more than one thousand dollars ($1,000); and

(ii) purchasing cigarettes by a person less than eighteen (18) years of age is a Class C infraction under IC 35-46-1-10.5;

(C) confirming that the cigarette order was placed by the prospective customer;

(D) providing a warning under 15 U.S.C. 1333(a)(1); and

(E) stating the sale of cigarettes by delivery sale is a taxable event for purposes of IC 6-7-1;

(2) makes a good faith effort to verify the information in the written statement obtained under subdivision (1) by using a federal or commercially available data base; and

(3) receives payment for the delivery sale by a credit or debit card issued in the name of the prospective purchaser.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.7.

 

IC 24-3-5-4.5Delivery sale by merchant; penalties

     Sec. 4.5. (a) This section applies to a merchant that is not a cigarette manufacturer.

     (b) Except as provided in subsection (d), a merchant may not mail or ship cigarettes as part of a delivery sale to an Indiana resident or retailer (as defined in IC 24-3-2-2(d)) that is not a distributor.

     (c) If the commission determines that a merchant has violated subsection (b):

(1) a distributor may not accept a shipment of cigarettes from the merchant for a period, not to exceed one (1) year, determined by the commission; and

(2) the commission may impose a civil penalty, not to exceed five thousand dollars ($5,000), on the merchant for each violation of subsection (b), as determined by the commission.

     (d) A merchant may make a drop shipment of tobacco products to an Indiana resident or retailer that is billed through a distributor.

As added by P.L.160-2005, SEC.8.

 

IC 24-3-5-5Mailing or shipping tobacco products; requirements; penalties

     Sec. 5. (a) A merchant who mails or ships cigarettes as part of a delivery sale shall:

(1) use a mailing or shipping service that requires the customer or a person at least eighteen (18) years of age who is designated by the customer to:

(A) sign to accept delivery of the cigarettes; and

(B) present a valid operator's license issued under IC 9-24-3 or an identification card issued under IC 9-24-16 if the customer or the customer's designee, in the opinion of the delivery agent or employee of the mailing or shipping service, appears to be less than twenty-seven (27) years of age;

(2) provide to the mailing or shipping service used under subdivision (1) proof of compliance with section 6(a) of this chapter; and

(3) include the following statement in bold type or capital letters on an invoice or shipping document:

INDIANA LAW PROHIBITS THE MAILING OR SHIPPING OF CIGARETTES TO A PERSON LESS THAN EIGHTEEN (18) YEARS OF AGE AND REQUIRES PAYMENT OF ALL APPLICABLE TAXES.

     (b) The commission may impose a civil penalty of not more than one thousand dollars ($1,000) if a mailing or shipping service:

(1) delivers cigarettes as part of a delivery sale without first receiving proof from the merchant of compliance with section 6(a) of this chapter; or

(2) fails to obtain a signature and proof of identification of the customer or the customer's designee under subsection (a)(1).

The commission shall deposit amounts collected under this subsection into the youth tobacco education and enforcement fund established by IC 7.1-6-2-6.

     (c) The following apply to a merchant that mails or ships cigarettes as part of a delivery sale without using a third party service as required by subsection (a)(1):

(1) The merchant shall require the customer or a person at least eighteen (18) years of age who is designated by the customer to:

(A) sign to accept delivery of the cigarettes; and

(B) present a valid operator's license issued under IC 9-24-3 or identification card issued under IC 9-24-16 if the customer or the customer's designee, in the opinion of the merchant or the merchant's employee making the delivery, appears to be less than twenty-seven (27) years of age.

(2) The commission may impose a civil penalty of not more than one thousand dollars ($1,000) if the merchant:

(A) delivers the cigarettes without first complying with section 6(a) of this chapter; or

(B) fails to obtain a signature and proof of identification of the customer or the customer's designee under subdivision (1).

The commission shall deposit amounts collected under this subdivision into the youth tobacco education and enforcement fund established by IC 7.1-6-2-6.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.9.

 

IC 24-3-5-6Filing with department of state revenue; compliance

     Sec. 6. (a) A merchant shall, before mailing or shipping cigarettes as part of a delivery sale, provide the department of state revenue with a written statement containing the merchant's name, address, principal place of business, and each place of business in Indiana.

     (b) A merchant who mails or ships cigarettes as part of a delivery sale shall, not later than the tenth day of the calendar month immediately following the month in which the delivery sale occurred, file with the department of state revenue a copy of the invoice for each delivery sale to a customer in Indiana. The invoice must include the following information:

(1) The name and address of the customer to whom the cigarettes were delivered.

(2) The brand name of the cigarettes that were delivered to the customer.

(3) The quantity of cigarettes that were delivered to the customer.

     (c) A merchant who complies with 15 U.S.C. 376 for the delivery sale of cigarettes is considered to satisfy the requirements of this section.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.10.

 

IC 24-3-5-7Pay taxes or provide notice; penalties

     Sec. 7. (a) A merchant who delivers cigarettes to a customer as part of a delivery sale shall:

(1) collect and pay all applicable taxes under IC 6-7-1; or

(2) place a legible and conspicuous notice on the outside of the container in which the cigarettes are shipped. The notice shall be placed on the same side of the container as the address to which the container is shipped and must state the following:

"If these cigarettes have been shipped to you from a merchant located outside the state in which you reside, the merchant has under federal law reported information about the sale of these cigarettes, including your name and address, to your state tax collection agency. You are legally responsible for all applicable unpaid state taxes on these cigarettes.".

     (b) For a violation of this section the commission may impose, in addition to any other remedies, civil penalties as follows:

(1) If the person has one (1) judgment for a violation of this section committed during a five (5) year period, a civil penalty of at least one thousand dollars ($1,000) but not more than two thousand dollars ($2,000).

(2) If the person has two (2) unrelated judgments for violations of this section committed during a five (5) year period, a civil penalty of at least two thousand five hundred dollars ($2,500) but not more than three thousand five hundred dollars ($3,500).

(3) If the person has three (3) unrelated judgments for violations of this section committed during a five (5) year period, a civil penalty of at least four thousand dollars ($4,000) but not more than five thousand dollars ($5,000).

(4) If the person has four (4) unrelated judgments for violations of this section committed during a five (5) year period, a civil penalty of at least five thousand five hundred dollars ($5,500) but not more than six thousand five hundred dollars ($6,500).

(5) If the person has at least five (5) unrelated judgments for violations of this section committed during a five (5) year period, a civil penalty of ten thousand dollars ($10,000).

As added by P.L.253-2003, SEC.1. Amended by P.L.97-2004, SEC.87; P.L.160-2005, SEC.11.

 

IC 24-3-5-8Civil penalties

     Sec. 8. The commission may impose a civil penalty of not more one thousand dollars ($1,000) on a:

(1) customer who signs another person's name to a statement required under section 4(1) of this chapter; or

(2) merchant who sells cigarettes by delivery sale to a person less than eighteen (18) years of age.

The commission shall deposit amounts collected under this section into the youth tobacco education and enforcement fund established by IC 7.1-6-2-6.

As added by P.L.253-2003, SEC.1. Amended by P.L.160-2005, SEC.12.

 

IC 24-3-5.2Chapter 5.2. Repealed

Repealed by P.L.160-2005, SEC.18.

 

IC 24-3-5.4Chapter 5.4. Master Settlement Agreement Protection Act
           24-3-5.4-1"Brand family"
           24-3-5.4-2"Cigarette"
           24-3-5.4-3"Commission"
           24-3-5.4-4"Department"
           24-3-5.4-5"Distributor"
           24-3-5.4-5.5"Importer"
           24-3-5.4-6"Master settlement agreement"
           24-3-5.4-6.5"Newly qualified nonparticipating manufacturer"
           24-3-5.4-7"Nonparticipating manufacturer"
           24-3-5.4-8"Participating manufacturer"
           24-3-5.4-9"Qualified escrow fund"
           24-3-5.4-10"Stamping agent"
           24-3-5.4-11"Tobacco product manufacturer"
           24-3-5.4-12"Units sold"
           24-3-5.4-13Tobacco product manufacturer certification; brand family list; maintenance of sales documentation by nonparticipating manufacturer
           24-3-5.4-13.5Importers required to provide information to the attorney general
           24-3-5.4-13.6Bonds required for certain newly qualified and certain nonparticipating manufacturers
           24-3-5.4-14Brand family directory; refunds
           24-3-5.4-15Stamping, sale, or importation of unlisted cigarettes prohibited
           24-3-5.4-16Appointment of agent by foreign nonparticipating manufacturer; termination of agency
           24-3-5.4-17Distributor or stamping agent required to send information to department, commission, and attorney general
           24-3-5.4-18Disclosure of information received
           24-3-5.4-19Proof of qualified escrow fund by nonparticipating manufacturer
           24-3-5.4-20Rules
           24-3-5.4-21Revocation of suspension of distributor's license; penalty
           24-3-5.4-22Seizure and forfeiture of unlisted cigarettes
           24-3-5.4-23Injunction
           24-3-5.4-24Violation; Class C misdemeanor
           24-3-5.4-25Unfair and deceptive business practice
           24-3-5.4-26Judicial review
           24-3-5.4-27Issuance of registration certificate
           24-3-5.4-28Recovery of costs
           24-3-5.4-29Disgorged profits
           24-3-5.4-30Penalties deposited in enforcement and administration fund

 

IC 24-3-5.4-1"Brand family"

     Sec. 1. As used in this chapter, "brand family" means cigarettes that are:

(1) sold under the same trademark; and

(2) differentiated from one another by means of modifiers such as menthol, lights, kings, or 100s.

The term includes the use of a brand name, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or other indicia of product identification that is identical or similar to or identifiable with a previously known brand of cigarettes.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-2"Cigarette"

     Sec. 2. As used in this chapter, "cigarette" has the meaning set forth in IC 24-3-3-5.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-3"Commission"

     Sec. 3. As used in this chapter, "commission" means the alcohol and tobacco commission created by IC 7.1-2-1-1.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-4"Department"

     Sec. 4. As used in this chapter, "department" means the department of state revenue.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-5"Distributor"

     Sec. 5. As used in this chapter, "distributor" means a person that:

(1) purchases cigarettes on which the tax under IC 6-7-1 is not paid; and

(2) stores, sells, or otherwise disposes of the cigarettes.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-5.5"Importer"

     Sec. 5.5. As used in this chapter, "importer" means a person that imports, other than for personal consumption, one (1) or more brand families of a nonparticipating manufacturer.

As added by P.L.24-2010, SEC.1.

 

IC 24-3-5.4-6"Master settlement agreement"

     Sec. 6. As used in this chapter, "master settlement agreement" has the meaning set forth in IC 24-3-3-6.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-6.5"Newly qualified nonparticipating manufacturer"

     Sec. 6.5. As used in this chapter, "newly qualified nonparticipating manufacturer" means a nonparticipating manufacturer:

(1) that has filed a certification under section 13 of this chapter; and

(2) whose brand families are not listed in a directory under section 14 of this chapter.

As added by P.L.24-2010, SEC.2.

 

IC 24-3-5.4-7"Nonparticipating manufacturer"

     Sec. 7. As used in this chapter, "nonparticipating manufacturer" means a tobacco product manufacturer that is not a participating manufacturer.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-8"Participating manufacturer"

     Sec. 8. As used in this chapter, "participating manufacturer" has the meaning set forth in IC 24-3-3-12(1).

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-9"Qualified escrow fund"

     Sec. 9. As used in this chapter, "qualified escrow fund" has the meaning set forth in IC 24-3-3-7.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-10"Stamping agent"

     Sec. 10. As used in this chapter, "stamping agent" means a person that may affix a stamp to a package of cigarettes under IC 6-7-1-15.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-11"Tobacco product manufacturer"

     Sec. 11. As used in this chapter, "tobacco product manufacturer" has the meaning set forth in IC 24-3-3-10.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-12"Units sold"

     Sec. 12. As used in this chapter, "units sold" has the meaning set forth in IC 24-3-3-11.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-13Tobacco product manufacturer certification; brand family list; maintenance of sales documentation by nonparticipating manufacturer

     Sec. 13. (a) Not later than April 30 of each year, a tobacco product manufacturer whose cigarettes are sold in Indiana, whether directly or through a distributor, retailer, or similar intermediary, shall certify to the department and the attorney general that, as of the date of the certification, the tobacco product manufacturer is:

(1) a participating manufacturer; or

(2) in full compliance with IC 24-3-3.

The department shall prescribe the form of the certification.

     (b) A participating manufacturer shall include in a certification under subsection (a) a list of the participating manufacturer's brand families. The participating manufacturer shall update the list by filing a supplemental certification with the department and the attorney general not less than thirty (30) days before the participating manufacturer adds a brand family or otherwise modifies the list of brand families.

     (c) A nonparticipating manufacturer shall include in a certification under subsection (a) a list of the nonparticipating manufacturer's brand families, including the following:

(1) A separate listing of each brand family that was sold in Indiana during the calendar year before the year in which the certification is filed.

(2) A separate listing of the number of units sold for each brand family that was sold in Indiana during the calendar year before the year in which the certification is filed.

(3) An indication of any brand family that was sold in Indiana during the calendar year before the year in which the certification is filed and that is not sold in Indiana as of the date of the certification.

(4) The name and address of any other manufacturer of a brand family that was sold in Indiana during the calendar year before the year in which the certification is filed.

     (d) A nonparticipating manufacturer shall file a supplemental certification with the attorney general not less than thirty (30) days before the nonparticipating manufacturer adds to or otherwise modifies its list of brand families.

     (e) A nonparticipating manufacturer shall certify the following in a certification under subsection (a):

(1) The nonparticipating manufacturer:

(A) is registered to do business in Indiana; or

(B) has appointed an agent for service of process and provided notice under section 16 of this chapter.

(2) The nonparticipating manufacturer has:

(A) established and continues to maintain a qualified escrow fund; and

(B) executed a qualified escrow agreement that:

(i) the attorney general has approved; and

(ii) governs the qualified escrow fund.

(3) The nonparticipating manufacturer is in full compliance with:

(A) this section;

(B) section 13.5 of this chapter, if applicable;

(C) section 13.6 of this chapter, if applicable; and

(D) IC 24-3-3.

(4) The name, address, and telephone number of the financial institution that holds the nonparticipating manufacturer's qualified escrow fund.

(5) The account number and any subaccount numbers of the nonparticipating manufacturer's qualified escrow fund.

(6) The amounts and dates of deposits that the nonparticipating manufacturer placed in the qualified escrow fund for cigarettes sold in Indiana during the calendar year before the year in which the certification is filed, including any verification required by the attorney general.

(7) The amounts and dates of withdrawals or transfers of funds that the nonparticipating manufacturer made from a qualified escrow fund into which the nonparticipating manufacturer made or makes escrow payments under IC 24-3-3.

     (f) A tobacco product manufacturer shall not include a brand family in the tobacco product manufacturer's certification under subsection (a) unless:

(1) in the case of a participating manufacturer, the participating manufacturer affirms that the brand family is considered the participating manufacturer's cigarettes for purposes of calculating the participating manufacturer's payments under the master settlement agreement for the year in which the certification is filed in the volume and shares determined under the master settlement agreement; or

(2) in the case of a nonparticipating manufacturer, the nonparticipating manufacturer affirms that the brand family is considered to be the nonparticipating manufacturer's cigarettes for purposes of IC 24-3-3-12(2).

     (g) This section does not limit or otherwise affect the state's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the master settlement agreement or for purposes of IC 24-3-3.

     (h) A nonparticipating manufacturer shall maintain all invoices and documentation of sales and any other relevant information for a period of five (5) years unless otherwise required by law to maintain the invoices, documentation of sales, or other relevant information for more than five (5) years.

As added by P.L.252-2003, SEC.16. Amended by P.L.24-2010, SEC.3.

 

IC 24-3-5.4-13.5Importers required to provide information to the attorney general

     Sec. 13.5. (a) This section applies to a nonparticipating manufacturer whose principal place of business is located outside the United States.

     (b) Each year, a nonparticipating manufacturer shall provide to the attorney general a declaration from each of the nonparticipating manufacturer's importers that does the following:

(1) States that the importer assumes joint and several liability with the nonparticipating manufacturer for the following payments, penalties, costs, and fees with respect to the importer:

(A) Any escrow payments required under IC 24-3-3-12(2) for deposit in a qualified escrow fund.

(B) Any penalties assessed against the nonparticipating manufacturer under IC 24-3-3 or this chapter.

(C) Payment of all costs and fees recovered by the state against the nonparticipating manufacturer under section 28 of this chapter.

(2) Appoints a registered agent for service of process for the importer and provides notice in accordance with section 16 of this chapter.

The attorney general shall prescribe the form of a declaration under this subsection, including dates for filing the declaration.

As added by P.L.24-2010, SEC.4.

 

IC 24-3-5.4-13.6Bonds required for certain newly qualified and certain nonparticipating manufacturers

     Sec. 13.6. (a) The attorney general may determine that a nonparticipating manufacturer, including a newly qualified nonparticipating manufacturer, poses an elevated risk for noncompliance with this article if any of the following apply:

(1) The nonparticipating manufacturer or an affiliate of a nonparticipating manufacturer has failed to make required payments into a qualified escrow fund in any state during the three (3) calendar years immediately preceding the date of the determination unless:

(A) the nonparticipating manufacturer or affiliate:

(i) did not knowingly or recklessly fail to make the required payments; and

(ii) makes the required payment not more than one hundred eighty (180) days after receiving notice of the missed or insufficient payment; or

(B) the failure to make the required payment is:

(i) the subject of a good faith dispute that is documented to the satisfaction of the attorney general; and

(ii) cured not more than one hundred eighty (180) days after entry of a final order that resolves the good faith dispute and establishes the amount of the required escrow payment.

(2) A state has removed the nonparticipating manufacturer, an affiliate of the nonparticipating manufacturer, or a brand family of the nonparticipating manufacturer or an affiliate of the nonparticipating manufacturer from the state's tobacco directory for noncompliance with state law during the three (3) calendar years immediately preceding the date of the determination.

(3) A state has:

(A) litigation pending; or

(B) an unsatisfied judgment;

against the nonparticipating manufacturer or an affiliate of the nonparticipating manufacturer for escrow payments or penalties, costs, or fees related to the nonparticipating manufacturer or affiliate's noncompliance with the state's escrow laws.

     (b) The attorney general shall require:

(1) a newly qualified nonparticipating manufacturer; or

(2) a nonparticipating manufacturer that:

(A) has filed a certification under section 13 of this chapter; and

(B) poses an elevated risk for noncompliance, as determined by the attorney general under subsection (a);

to post a bond as described in subsection (c).

     (c) A bond required under subsection (b) must be:

(1) posted by corporate surety located within the United States;

(2) in an amount equal to the greater of:

(A) fifty thousand dollars ($50,000); or

(B) the amount that the nonparticipating manufacturer is required to place into a qualified escrow fund under IC 24-3-3-12(2) for the calendar year in which the bond is posted;

(3) written in favor of the state of Indiana; and

(4) for a nonparticipating manufacturer, conditioned on the performance of the nonparticipating manufacturer, or an importer that assumes joint and several liability with the nonparticipating manufacturer under section 13.5 of this chapter, of all of obligations and duties of the nonparticipating manufacturer under this article during the calendar year in which the bond is posted and the immediately succeeding calendar year.

     (d) If the attorney general determines under subsection (a) that a newly qualified nonparticipating manufacturer poses an elevated risk of noncompliance, the attorney general may require the newly qualified nonparticipating manufacturer to post a bond under subsection (c) for at least the first three (3) years during which the newly qualified nonparticipating manufacturers brand families are listed in a directory under section 14 of this chapter.

As added by P.L.24-2010, SEC.5.

 

IC 24-3-5.4-14Brand family directory; refunds

     Sec. 14. (a) Not later than July 1 of each year, the attorney general shall make available to the public by publishing on accessIndiana (as operated under IC 4-13.1-2) a directory listing all brand families listed in certifications filed under section 13 of this chapter.

     (b) A directory described in subsection (a) shall not include the name or brand families of a nonparticipating manufacturer:

(1) that fails to comply with section 13 of this chapter;

(2) whose certification fails to comply with section 13(c) or 13(e) of this chapter, unless the attorney general determines that the failure has been remedied; or

(3) that:

(A) has filed a certification under section 13 of this chapter; and

(B) poses an elevated risk for noncompliance, as determined by the attorney general under section 13.6(a) of this chapter;

unless the nonparticipating manufacturer, or an importer that assumes joint and several liability with the nonparticipating manufacturer under section 13.5 of this chapter, posts a bond under section 13.6 of this chapter.

     (c) The directory may not include a tobacco product manufacturer or a brand family if the attorney general concludes that:

(1) in the case of a nonparticipating manufacturer, all escrow payments required under IC 24-3-3-12 for any period for any brand family, whether or not listed by the nonparticipating manufacturer, have not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general; or

(2) all outstanding final judgments, including interest on the judgments, for violations of IC 24-3-3 have not been fully satisfied for the tobacco product manufacturer or brand family.

     (d) The directory may not include a newly qualified nonparticipating manufacturer unless the newly qualified nonparticipating manufacturer posts a bond under section 13.6 of this chapter.

     (e) The attorney general shall update the directory as necessary to correct mistakes or to add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this chapter.

     (f) The attorney general shall post in the directory and transmit by electronic mail or other means to each distributor or stamping agent notice of any removal from the directory of a tobacco product manufacturer or brand family not later than thirty (30) days before the attorney general removes the tobacco product manufacturer or brand family from the directory.

     (g) Unless otherwise provided in an agreement between a tobacco product manufacturer and a distributor or stamping agent, a distributor or stamping agent is entitled to a refund from a tobacco product manufacturer for any money paid by the distributor or stamping agent to the tobacco product manufacturer for any cigarettes of the tobacco product manufacturer or brand family that:

(1) are in the possession of the distributor or stamping agent on; or

(2) the distributor or stamping agent receives from a retailer after;

the date on which the tobacco product manufacturer or brand family is removed from the directory.

     (h) Unless otherwise provided in an agreement between a retailer and a distributor, stamping agent, or tobacco product manufacturer, a retailer is entitled to a refund from a distributor, stamping agent, or tobacco product manufacturer for any money paid by the retailer to the distributor, stamping agent, or tobacco product manufacturer for any cigarettes of the tobacco product manufacturer or brand family that are in the possession of the retailer on the date on which the tobacco product manufacturer or brand family is removed from the directory.

     (i) The attorney general shall not restore a tobacco product manufacturer or brand family to the directory until the tobacco product manufacturer pays a distributor, stamping agent, or retailer any refund due under subsection (g) or (h).

     (j) A distributor or stamping agent shall provide and update as necessary an electronic mail address to the attorney general for purposes of receiving a notification required by this chapter.

As added by P.L.252-2003, SEC.16. Amended by P.L.177-2005, SEC.44; P.L.24-2010, SEC.6.

 

IC 24-3-5.4-15Stamping, sale, or importation of unlisted cigarettes prohibited

     Sec. 15. A person may not:

(1) affix a stamp to a package or other container of cigarettes; or

(2) sell, offer or possess for sale, or import for personal consumption in Indiana cigarettes;

of a tobacco product manufacturer or brand family that is not listed in a directory under section 14 of this chapter.

As added by P.L.252-2003, SEC.16. Amended by P.L.160-2005, SEC.13.

 

IC 24-3-5.4-16Appointment of agent by foreign nonparticipating manufacturer; termination of agency

     Sec. 16. (a) A foreign nonparticipating manufacturer that has not registered to do business in Indiana shall, as a condition precedent to having the foreign nonparticipating manufacturer's brand families listed in a directory under section 14 of this chapter, appoint and engage without interruption the services of an agent in Indiana to act as the foreign nonparticipating manufacturer's agent for the service of process. Service on an agent under this section constitutes legal and valid service of process on the foreign nonparticipating manufacturer that appointed and engaged the services of the agent. The foreign nonparticipating manufacturer shall provide the following information to the department and the attorney general:

(1) The name, address, and telephone number of the agent.

(2) Proof of the appointment of the agent.

(3) The availability of the agent.

(4) Any other information required by the department or the attorney general.

     (b) A foreign nonparticipating manufacturer shall provide notice to the department and the attorney general not less than thirty (30) days before the foreign nonparticipating manufacturer terminates the authority of an agent appointed under this section. The foreign nonparticipating manufacturer shall provide proof to the satisfaction of the attorney general of the appointment of a new agent not less than five (5) days before the foreign nonparticipating manufacturer terminates an existing agency appointment.

     (c) If an agent terminates an agency appointment, the foreign nonparticipating manufacturer shall:

(1) notify the department and the attorney general of the termination not more than five (5) days after the termination; and

(2) provide proof to the satisfaction of the attorney general of the appointment of a new agent.

     (d) A foreign nonparticipating manufacturer that:

(1) sells products in Indiana; and

(2) has not appointed an agent under this section;

is considered to have appointed the secretary of state as the foreign nonparticipating manufacturer's agent. The appointment of the secretary of state under this subsection as the foreign nonparticipating manufacturer's agent does not satisfy the condition precedent to having the foreign nonparticipating manufacturer's brand families listed in a directory under section 14 of this chapter.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-17Distributor or stamping agent required to send information to department, commission, and attorney general

     Sec. 17. (a) This section applies after July 31, 2003.

     (b) Not later than January 20, April 20, July 20, and October 20 of a calendar year, or more frequently if ordered by the department, the commission, or the attorney general, a distributor or stamping agent shall submit the following information to the department, the commission, and the attorney general:

(1) A list by brand family of the total number of cigarettes for which the distributor or stamping agent affixed stamps or otherwise paid taxes during the immediately preceding three (3) months.

(2) Any other information required by the department or the attorney general.

The distributor or stamping agent shall maintain and make available to the department, the commission, and the attorney general for a period of five (5) years all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information that the distributor or stamping agent relied on in reporting to the department, the commission, and the attorney general.

     (c) The attorney general may require a distributor or a tobacco product manufacturer to submit additional information to determine whether a tobacco product manufacturer is in compliance with this chapter. The additional information may include samples of the packaging or labeling of each of the tobacco product manufacturer's brand families.

As added by P.L.252-2003, SEC.16. Amended by P.L.160-2005, SEC.14.

 

IC 24-3-5.4-18Disclosure of information received

     Sec. 18. (a) The department and the commission shall disclose to the attorney general any information received under this chapter and requested by the attorney general for purposes of determining compliance with and enforcing this chapter. The department, the commission, and the attorney general:

(1) shall share with each other the information received under this chapter; and

(2) may share the information received under this chapter with other federal, state, or local agencies only for purposes of enforcing this chapter or a corresponding law in another state.

     (b) Notwithstanding any other law:

(1) the department, the commission, or the attorney general may provide information received under section 17 of this chapter to a court, an arbitrator, or a data clearinghouse or similar entity:

(A) for the purposes of making calculations required by the master settlement agreement and related settlement agreements; and

(B) with counsel for the parties;

upon the execution of a protective order approved by the attorney general; and

(2) any tobacco sales data provided from an outside party and received under the master settlement agreement must be treated as confidential under IC 5-14-3-4(a)(4) and IC 5-14-3-4(a)(5).

As added by P.L.252-2003, SEC.16. Amended by P.L.231-2015, SEC.12.

 

IC 24-3-5.4-19Proof of qualified escrow fund by nonparticipating manufacturer

     Sec. 19. The attorney general may require a nonparticipating manufacturer to provide from the financial institution that holds the nonparticipating manufacturer's qualified escrow fund for purposes of complying with this chapter proof of:

(1) the amount of money in the qualified escrow fund being held on behalf of the state;

(2) the dates of any deposits into the qualified escrow fund; and

(3) the dates and amounts of any withdrawals from the qualified escrow fund.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-20Rules

     Sec. 20. The department or the attorney general may adopt rules under IC 4-22-2 to implement this chapter, including rules to:

(1) require a tobacco product manufacturer subject to section 13(c) of this chapter to make required escrow deposits in installments during the calendar year in which the sales covered by the deposits are made; or

(2) produce information sufficient to enable the attorney general to determine the adequacy of the amount of an installment deposit described in subdivision (1).

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-21Revocation of suspension of distributor's license; penalty

     Sec. 21. (a) This section applies in addition to or instead of any other civil or criminal penalty.

     (b) The department may revoke or suspend the license of a distributor, a stamping agent, or any other person that violates section 15 of this chapter.

     (c) Each:

(1) stamp affixed;

(2) sale of cigarettes; or

(3) offer or possession of cigarettes for sale;

in violation of section 15 of this chapter constitutes a separate violation.

     (d) The department or the commission may impose a civil penalty that does not exceed the greater of:

(1) five hundred percent (500%) of the retail value of the cigarettes sold; or

(2) five thousand dollars ($5,000);

for each violation of section 15 of this chapter.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-22Seizure and forfeiture of unlisted cigarettes

     Sec. 22. Whenever the department or the commission discovers any cigarettes that have been sold, offered for sale, or possessed for sale in Indiana in violation of section 15 of this chapter, the department or the commission may seize and take possession of the cigarettes. The seized cigarettes shall be forfeited to the state. The department or the commission shall destroy the seized cigarettes.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-23Injunction

     Sec. 23. The attorney general may seek an injunction to:

(1) restrain a threatened or an actual violation of section 15 of this chapter by a stamping agent; and

(2) compel the stamping agent to comply with sections 15, 17(b), and 17(c) of this chapter.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-24Violation; Class C misdemeanor

     Sec. 24. (a) A person shall not:

(1) sell or distribute; or

(2) acquire, hold, own, possess, transport, import, or cause to be imported;

cigarettes that the person knows or should know are intended for distribution or sale in Indiana in violation of section 15 of this chapter.

     (b) A person who violates this section commits a Class C misdemeanor.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-25Unfair and deceptive business practice

     Sec. 25. A person who violates section 15 of this chapter engages in an unfair and deceptive business practice.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-26Judicial review

     Sec. 26. A determination by the attorney general to not list in or to remove from a directory under section 14 of this chapter a brand family or a tobacco product manufacturer is subject to review only by the Marion County circuit court.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-27Issuance of registration certificate

     Sec. 27. The department shall not issue a registration certificate under IC 6-7-1-16(a) to a distributor unless the distributor certifies in writing that the distributor will comply with this chapter.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-28Recovery of costs

     Sec. 28. In an action brought by the state to enforce this chapter, the state may recover:

(1) the costs of investigation;

(2) expert witness fees;

(3) the costs of the action; and

(4) attorney's fees.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-29Disgorged profits

     Sec. 29. If a court determines that a person has violated this chapter, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the treasurer of state for deposit in the Indiana tobacco master settlement agreement fund under IC 4-12-1-14.3.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-5.4-30Penalties deposited in enforcement and administration fund

     Sec. 30. All:

(1) civil penalties imposed under; and

(2) judgments for violations of;

this chapter shall be deposited in the enforcement and administration fund established under IC 7.1-4-10-1.

As added by P.L.252-2003, SEC.16.

 

IC 24-3-6Chapter 6. Contraband Cigarettes
           24-3-6-1"Commission"
           24-3-6-2"Distributor"
           24-3-6-3"Importer"
           24-3-6-4"Licensed"
           24-3-6-5"Manufacturer"
           24-3-6-6"Person"
           24-3-6-7"Retailer"
           24-3-6-8"Stamp"
           24-3-6-9Licenses; application, issuance, and renewal; revocation or suspension
           24-3-6-10Stamped and unstamped cigarettes
           24-3-6-11Selling or obtaining cigarettes
           24-3-6-12Reporting information by distributor to attorney general
           24-3-6-12.3Distributor reports under section 12 of chapter; when required
           24-3-6-13Documentation of transactions; preservation; review
           24-3-6-14Inspection by commission or law enforcement officer
           24-3-6-15Civil penalty
           24-3-6-16Right of action; notice to attorney general

 

IC 24-3-6-1"Commission"

     Sec. 1. As used in this chapter, "commission" refers to the alcohol and tobacco commission created by IC 7.1-2-1-1.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-2"Distributor"

     Sec. 2. As used in this chapter, "distributor" means a distributor (as defined in IC 6-7-1-6) that holds a registration certificate issued under IC 6-7-1-16.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-3"Importer"

     Sec. 3. As used in this chapter, "importer" means a person that brings cigarettes into the United States for sale or distribution.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-4"Licensed"

     Sec. 4. As used in this chapter, "licensed" means holding a license issued under section 9 of this chapter.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-5"Manufacturer"

     Sec. 5. As used in this chapter, "manufacturer" means a person that manufactures or otherwise produces cigarettes to be sold in the United States.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-6"Person"

     Sec. 6. As used in this chapter, "person" has the meaning set forth in IC 6-7-1-4.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-7"Retailer"

     Sec. 7. As used in this chapter, "retailer" means a person that sells cigarettes to a consumer. The term includes a distributor.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-8"Stamp"

     Sec. 8. As used in this chapter, "stamp" has the meaning set forth in IC 6-7-1-9.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-9Licenses; application, issuance, and renewal; revocation or suspension

     Sec. 9. (a) The commission may issue or renew a license to the following applicants:

(1) An importer.

(2) A manufacturer.

The commission shall prescribe the form of an application.

     (b) An importer or manufacturer that conducts business in Indiana must apply under this section for a license for the importer's or manufacturer's principal place of business. An importer or manufacturer that is issued a license shall display the license at the importer's or manufacturer's principal place of business.

     (c) The commission shall prescribe the form and duration of a license issued under this section. However, a license may not be valid for more than three (3) years from the date of issuance.

     (d) A license issued under this section is nontransferable.

     (e) The commission shall not issue or renew a license under this section if:

(1) the applicant owes at least five hundred dollars ($500) in taxes imposed under IC 6-7-1-12;

(2) the commission revoked the applicant's license within two (2) years before the application;

(3) the applicant commits an offense under IC 6-7-1-21;

(4) the applicant does not comply with IC 24-3-3-12; or

(5) the applicant violates IC 24-3-4.

     (f) The commission may revoke or suspend a license issued under this section if the applicant:

(1) is not eligible to receive or renew a license under subsection (e); or

(2) violates this chapter.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-10Stamped and unstamped cigarettes

     Sec. 10. (a) A distributor may apply a stamp only to cigarettes that are received from a licensed importer or licensed manufacturer.

     (b) A distributor shall store stamped and unstamped cigarettes separately.

     (c) A distributor may transfer unstamped cigarettes only as provided in IC 6-7-1-18.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-11Selling or obtaining cigarettes

     Sec. 11. (a) A manufacturer or an importer may sell cigarettes in Indiana only to a distributor or a licensed importer.

     (b) A manufacturer that sells cigarettes to a licensed importer under subsection (a) must be a licensed manufacturer.

     (c) A distributor may sell cigarettes only to a distributor or a retailer.

     (d) A distributor may obtain cigarettes only from another distributor, a licensed importer, or a licensed manufacturer.

     (e) Except as provided in subsection (f), a retailer may obtain cigarettes only from a distributor.

     (f) A retailer that is a holder of a certificate issued under IC 7.1-3-18.5 may purchase up to one thousand dollars ($1,000) of cigarettes per week from another retailer that holds a certificate issued under IC 7.1-3-18.5.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-12Reporting information by distributor to attorney general

     Sec. 12. (a) This section does not apply to a distributor who:

(1) is a licensed manufacturer; and

(2) complies with section 13 of this chapter.

     (b) A distributor shall report the following information for each place of business belonging to the distributor to the office of the attorney general not later than the fifteenth day of each month:

(1) The number and brand of cigarettes:

(A) distributed;

(B) shipped into Indiana; or

(C) shipped within Indiana;

during the immediately preceding month.

(2) The name and address of each person to which cigarettes described in subdivision (1) were distributed or shipped.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-12.3Distributor reports under section 12 of chapter; when required

     Sec. 12.3. Notwithstanding section 12(b)(2) of this chapter, as added by P.L.160-2005, a distributor is not required to report the information required in section 12(b)(2) of this chapter, as added by P.L.160-2005, until the later of the following:

(1) When the attorney general becomes capable of receiving the information reported in an electronic format.

(2) July 1, 2008.

As added by P.L.220-2011, SEC.386.

 

IC 24-3-6-13Documentation of transactions; preservation; review

     Sec. 13. (a) An importer or a manufacturer shall maintain documentation for each place of business belonging to the importer or manufacturer for each transaction other than a retail transaction with a consumer involving the sale, purchase, transfer, consignment, or receipt of cigarettes. The documentation must include:

(1) the name and address of the parties to the transaction; and

(2) the quantity by brand style of cigarettes involved in the transaction.

     (b) Subject to subsection (c), an importer or a manufacturer shall preserve documentation described in subsection (a) at the place of business at which each transaction occurs.

     (c) The commission may allow an importer or a manufacturer with multiple places of business to preserve documentation described in subsection (a) at a centralized location. However, the importer or manufacturer shall provide duplicate documentation at each place of business upon request by the commission.

     (d) An importer or a manufacturer shall maintain documentation under this section for five (5) years from the date of the transaction.

     (e) The commission may:

(1) obtain access to; and

(2) inspect at reasonable times;

the documentation maintained under this section. The commission may share the documentation with other law enforcement officials.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-14Inspection by commission or law enforcement officer

     Sec. 14. (a) The commission may enter and inspect, without a warrant during normal business hours or with a warrant during nonbusiness hours, the facilities and records of an importer or a manufacturer.

     (b) If the commission or a law enforcement officer has knowledge or reasonable grounds to believe that a vehicle is transporting cigarettes in violation of this chapter, the commission or the law enforcement officer may stop and inspect the vehicle for cigarettes being transported in violation of this chapter.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-15Civil penalty

     Sec. 15. (a) A person who violates this chapter is liable for a civil penalty equal to the greater of:

(1) five (5) times the value of the cigarettes involved in the violation; or

(2) one thousand dollars ($1,000).

     (b) A civil penalty under this section is in addition to any other penalty imposed.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-6-16Right of action; notice to attorney general

     Sec. 16. (a) Either or both of the following may bring an action to prevent or restrain violations of this chapter:

(1) The attorney general or the attorney general's designee.

(2) A person that holds a valid permit under 26 U.S.C. 5712.

     (b) A person that brings an action under subsection (a) shall provide notice to the attorney general of the commencement of the action.

As added by P.L.160-2005, SEC.15.

 

IC 24-3-7Chapter 7. Nicotine Liquid Container Packaging
           24-3-7-1Application of chapter
           24-3-7-2"Child resistant packaging"
           24-3-7-3"Commission"
           24-3-7-4"Electronic cigarette"
           24-3-7-5"Electronic delivery device"
           24-3-7-6"Nicotine liquid container"
           24-3-7-7Liquid and gel nicotine substances required to be contained in child resistant packaging
           24-3-7-8Seizure of products; penalties

 

IC 24-3-7-1Application of chapter

     Sec. 1. This chapter does not apply to any product that:

(1) has been approved or certified by the United States Food and Drug Administration for sale:

(A) as a tobacco cessation product;

(B) as a tobacco dependence product; or

(C) for another medical purpose; and

(2) is marketed and sold for an approved purpose referred to in subdivision (1)(A) through (1)(C).

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-2"Child resistant packaging"

     Sec. 2. As used in this chapter, "child resistant packaging" means packaging that:

(1) is designed or constructed so that it is significantly difficult for children less than five (5) years of age to:

(A) open the package; or

(B) obtain a toxic or harmful amount of substance from within the package;

within a reasonable time; but

(2) is not difficult for adults to use properly.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-3"Commission"

     Sec. 3. As used in this chapter, "commission" refers to the alcohol and tobacco commission created by IC 7.1-2-1-1.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-4"Electronic cigarette"

     Sec. 4. As used in this chapter, "electronic cigarette" means a device that is capable of providing an inhalable dose of nicotine by delivering a vaporized solution. The term includes the components and cartridges of an electronic cigarette.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-5"Electronic delivery device"

     Sec. 5. (a) As used in this chapter, "electronic delivery device" means any product that:

(1) contains or delivers nicotine, lobelia, or any other substance intended for human consumption; and

(2) can be used by a person to simulate smoking in the delivery of nicotine, lobelia, or any other substance through inhalation of vapor from the product.

     (b) The term includes any component part of a product described in subsection (a), whether or not the component part is marketed or sold separately.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-6"Nicotine liquid container"

     Sec. 6. (a) As used in this chapter, "nicotine liquid container" means a bottle or other container that:

(1) contains a nicotine liquid or another substance containing nicotine; and

(2) is sold, marketed, or intended for use with an electronic cigarette or other electronic delivery device.

     (b) The term does not include a container containing nicotine in a cartridge that is sold, marketed, or intended for use with an electronic cigarette if the cartridge:

(1) is prefilled and sealed by the manufacturer; and

(2) is not intended to be opened by the consumer.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-7Liquid and gel nicotine substances required to be contained in child resistant packaging

     Sec. 7. A person may not manufacture, sell, or distribute:

(1) a liquid or gel substance containing nicotine; or

(2) a nicotine liquid container;

unless the product is contained in child resistant packaging.

As added by P.L.231-2015, SEC.13.

 

IC 24-3-7-8Seizure of products; penalties

     Sec. 8. (a) If the commission discovers any product sold or distributed in violation of this chapter, the commission may seize and take possession of the product. The commission shall destroy products seized under this subsection.

     (b) The commission may impose a civil penalty on any person who sells or distributes a product in violation of this chapter. However, the civil penalty may not exceed the greater of:

(1) five hundred percent (500%) of the retail value of the product sold or distributed in violation of this chapter; or

(2) five thousand dollars ($5,000).

As added by P.L.231-2015, SEC.13.

 

IC 24-4ARTICLE 4. REGULATED BUSINESSES
           Ch. 1.Dairy Products
           Ch. 2.Trade Stamps
           Ch. 3.Secondhand Watches
           Ch. 4.Coal Delivery Tickets
           Ch. 5.Cloth Product Trademarks
           Ch. 6.Motor Vehicle Transactions
           Ch. 7.Contracts With Wholesale Sales Representatives
           Ch. 8.Prohibition on Direct Molding Process
           Ch. 9.Motor Vehicle Rental Companies
           Ch. 10.Unlawful Use of Sound and Video Recordings
           Ch. 11.Regulation of Industrial Hygienists
           Ch. 12.Unused Property Market Regulation
           Ch. 13.Used Jewelry Sales
           Ch. 14.Persons Holding a Customer's Personal Information
           Ch. 15.Automated External Defibrillators in Health Clubs
           Ch. 16.Architectural Salvage Material Dealers
           Ch. 16.4.Sexually Explicit Materials
           Ch. 17.Retail Consignment Sales
           Ch. 18.Criminal History Providers
           Ch. 19.Precious Metal Dealers
           Ch. 20.Foreign Sellers of Precious Metals Bullion and Currency

 

IC 24-4-1Chapter 1. Dairy Products
           24-4-1-1Discrimination; violation
           24-4-1-2Repealed
           24-4-1-3Void contracts and agreements
           24-4-1-4Duty of prosecuting attorney and attorney general
           24-4-1-5Duty of secretary of state
           24-4-1-6Revocation of corporate permit

 

IC 24-4-1-1Discrimination; violation

     Sec. 1. A person engaged in the purchasing, manufacture, or distribution of milk or milk products who, for the purpose of destroying the business of a competitor in any locality and creating or maintaining a monopoly, discriminates between different sections, communities, or cities of this state by buying or selling milk or milk products at a lower rate in one section, community, or city than is paid or charged in another section, community, or city after equalizing the distance from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, the actual cost of transportation, and making allowance for differences in quality, commits a Class B misdemeanor.

Formerly: Acts 1913, c.117, s.1. As amended by Acts 1978, P.L.2, SEC.2409.

 

IC 24-4-1-2Repealed

Formerly: Acts 1913, c.117, s.2. Repealed by Acts 1978, P.L.2, SEC.2426.

 

IC 24-4-1-3Void contracts and agreements

     Sec. 3. All contracts and agreements made in violation of any provisions of section 1 of this chapter shall be void.

Formerly: Acts 1913, c.117, s.3. As amended by P.L.152-1986, SEC.44.

 

IC 24-4-1-4Duty of prosecuting attorney and attorney general

     Sec. 4. It shall be the duty of the prosecuting attorneys, in their counties, and the attorney general to enforce the provisions of sections 1 and 3 of this chapter by appropriate actions in courts of competent jurisdiction.

Formerly: Acts 1913, c.117, s.4. As amended by P.L.152-1986, SEC.45.

 

IC 24-4-1-5Duty of secretary of state

     Sec. 5. If complaint shall be made to the secretary of state that any corporation authorized to do business in this state is guilty of unfair discrimination within the terms of this chapter, it shall be the duty of the secretary of state to refer the matter to the attorney general, who may, if the facts justify it in his judgment, institute proceedings in the court against such corporations.

Formerly: Acts 1913, c.117, s.5. As amended by P.L.152-1986, SEC.46.

 

IC 24-4-1-6Revocation of corporate permit

     Sec. 6. If any corporation, foreign or domestic, authorized to do business in this state is found guilty of unfair discrimination within the terms of this chapter, it shall be the duty of the secretary of state to immediately revoke the permit of such corporation to do business in this state.

Formerly: Acts 1913, c.117, s.6. As amended by P.L.152-1986, SEC.47.

 

IC 24-4-2Chapter 2. Trade Stamps
           24-4-2-1Stamps; redeemable in lawful money
           24-4-2-2Redemption in lawful money by seller or issuer; minimum redemption
           24-4-2-3Refusal to redeem
           24-4-2-4Redemption in money or merchandise; option of holder of stamps
           24-4-2-5Giving stamps; consent of person or firm issuing stamp
           24-4-2-6Violation

 

IC 24-4-2-1Stamps; redeemable in lawful money

     Sec. 1. No person shall sell or issue to any person in this state any stamps, trading stamps, cash discount stamps, checks, ticket, coupon, or other similar devise which will entitle the holder thereof, on presentation thereof, either singly or in definite number, or receive, either directly from the vendor or indirectly through any other person, money or goods, wares or merchandise, unless each of said stamps, trading stamps, cash discount stamps, checks, tickets, coupons, or other similar devices shall have legibly printed or written on the face thereof the redeemable value thereof in lawful money of the United States.

Formerly: Acts 1913, c.299, s.1; Acts 1921, c.109, s.1.

 

IC 24-4-2-2Redemption in lawful money by seller or issuer; minimum redemption

     Sec. 2. Any person who shall sell or issue to any person engaged in any trade, business, or profession, any stamp, trading stamp, cash discount stamp, check, ticket, coupon, or other similar device which will entitle the holder thereof, on presentation thereof, either singly or in definite number, to receive either directly from the vendor or indirectly through any other person, money, goods, wares or merchandise, shall upon presentation redeem the same either in goods, wares or merchandise, or in lawful money of the United States, at the option of the holder thereof, at the value in lawful money printed on the face thereof: Provided, That the same be presented for redemption in number or quantity aggregating in money value not less than five cents (5 cents) in each lot.

Formerly: Acts 1913, c.299, s.2.

 

IC 24-4-2-3Refusal to redeem

     Sec. 3. Any person engaged in any trade, business, or profession who shall distribute, deliver, or present to any person dealing with him, in consideration of any article or thing purchased, any stamp, trading stamp, cash discount stamp, check, ticket, coupon, or other similar device which will entitle the holder thereof, on presentation thereof, either singly or in definite number, to receive either directly from the person issuing or selling the same, as set forth in section 2 of this chapter, or indirectly from any other person, shall, upon the refusal or failure of the said person issuing or selling same to redeem the same as set forth in said section 2 of this chapter, be liable to the holder thereof for the face value thereof, and shall, upon presentation of the same in lots of number aggregating, in money value, not less than five cents ($0.05) in each lot, redeem the same either in ware or merchandise or in lawful money of the United States, at the option of the holder thereof, at the value in lawful money printed on the face thereof.

Formerly: Acts 1913, c.299, s.3. As amended by P.L.152-1986, SEC.48.

 

IC 24-4-2-4Redemption in money or merchandise; option of holder of stamps

     Sec. 4. The redeemable value of such stamps, trading stamps, cash discount stamp, check, ticket, coupon or other similar device, printed or legibly written on the face of said stamp as herein provided shall be the same, whether redeemed in merchandise or in lawful money of the United States, and the redemption of such stamps as hereinabove mentioned shall be in lawful money of the United States or in merchandise of equal value thereto, at the option of the holder of said stamps.

Formerly: Acts 1913, c.299, s.4.

 

IC 24-4-2-5Giving stamps; consent of person or firm issuing stamp

     Sec. 5. No person, firm, limited liability company, or corporation shall give or deliver, as an inducement for or in connection with the sale of merchandise, any coupon, check, ticket, stamp, token, or similar device redeemable in money or in merchandise, as in this chapter provided, by any other person, firm, limited liability company, or corporation without the consent of the person, firm, or corporation originally issuing the same and responsible for the redemption thereof.

Formerly: Acts 1913, c.299, s.5. As amended by P.L.152-1986, SEC.49; P.L.8-1993, SEC.345.

 

IC 24-4-2-6Violation

     Sec. 6. A person who violates this chapter commits a Class C infraction.

Formerly: Acts 1913, c.299, s.6. As amended by Acts 1978, P.L.2, SEC.2410.

 

IC 24-4-3Chapter 3. Secondhand Watches
           24-4-3-1Definitions
           24-4-3-2Informing purchaser of secondhand nature of watch
           24-4-3-3Invoice of sale
           24-4-3-4Advertising secondhand watches
           24-4-3-5Violations

 

IC 24-4-3-1Definitions

     Sec. 1. As used in this chapter:

     (a) "Person" shall be deemed to mean a person, firm, partnership, association, limited liability company, or corporation.

     (b) "Consumer" shall be deemed to mean an individual, firm, partnership, association, limited liability company, or corporation who buys for his or its own use, or for the use of another but not for resale.

     (c) A "second-hand watch" shall be deemed to mean:

(1) a watch which, as a whole, the case thereof, or the movement thereof, has been sold to a consumer; or

(2) any watch whose case or movement, serial numbers, or other distinguishing numbers or identification marks have been erased, defaced, removed, altered, or covered.

Formerly: Acts 1937, c.270, s.1. As amended by P.L.152-1986, SEC.50; P.L.8-1993, SEC.346.

 

IC 24-4-3-2Informing purchaser of secondhand nature of watch

     Sec. 2. Any person, or agent or employee thereof, who sells a second-hand watch shall affix and keep affixed to the same a tag with the words "second-hand" legibly written or printed thereon in the English language. For the purposes of this chapter, "sell" shall be deemed to include offer to sell or exchange, expose for sale or exchange, possess with intent to sell or exchange, and sell or exchange.

Formerly: Acts 1937, c.270, s.2. As amended by P.L.152-1986, SEC.51.

 

IC 24-4-3-3Invoice of sale

     Sec. 3. Any person, or agent or employee thereof, who sells a second-hand watch shall deliver to the vendee a written invoice setting forth the name and address of the vendor, the name and address of the vendee, the date of the sale, the name of the watch or its maker, and the serial numbers (if any) or other distinguishing numbers or identification marks on its case and movement. In the event the serial numbers, or other distinguishing numbers or identification marks have been erased, defaced, removed, altered or covered, this shall be set forth in the invoice. A duplicate of the aforesaid invoice shall be kept on file by the vendor of such second-hand watch for at least one (1) year from the date of the sale thereof and shall be open to inspection during all business hours by the prosecuting attorney or his representative of the county in which the vendor is engaged in business.

Formerly: Acts 1937, c.270, s.3.

 

IC 24-4-3-4Advertising secondhand watches

     Sec. 4. Any person advertising in any manner second-hand watches for sale shall state clearly in such advertising that the watches so advertised are second-hand watches.

Formerly: Acts 1937, c.270, s.4.

 

IC 24-4-3-5Violations

     Sec. 5. A person who recklessly violates this chapter commits a Class B misdemeanor.

Formerly: Acts 1937, c.270, s.5. As amended by Acts 1978, P.L.2, SEC.2411.

 

IC 24-4-4Chapter 4. Coal Delivery Tickets
           24-4-4-1Sale of coal and coke; duplicate ticket; contents
           24-4-4-2Coal in carload lots; invoice; contents
           24-4-4-3Sign on delivery vehicle
           24-4-4-4Division of weights and measures; delivery tickets
           24-4-4-5Violations
           24-4-4-6Regulation by ordinance
           24-4-4-7Advertising coal and coke

 

IC 24-4-4-1Sale of coal and coke; duplicate ticket; contents

     Sec. 1. It shall be unlawful for any person, firm, limited liability company, or corporation, by himself or itself, or by his or its servants or as the servant or agent of another, to sell or offer for sale or delivery at retail any coal or coke which is sold by weight, unless each such delivery is accompanied by a delivery ticket and a duplicate thereof, upon each of which tickets and duplicates thereof shall be written or otherwise indicated:

(a) the name and address of the person, firm, limited liability company, corporation, or association selling and delivering or attempting to sell or deliver such commodity;

(b) the gross weight of the load, the tare weight of the delivering vehicle, and the net amount in weight of the commodity being delivered in such vehicle;

(c) the name or identifying initials of the party who weighed it;

(d) the state in which the coal was mined, the name of the coal, brand or trade name, if any;

(e) the number of the vein or seam from which the coal was taken; and

(f) the size and grade thereof, which size of all grades must be designated according to the openings in the screens over and through which each such size of coal is made at the place of production.

One (1) of such delivery tickets or the duplicate thereof shall be delivered and surrendered to the person or persons in charge of the delivery of such load of commodities to the purchaser thereof or to his agent or representative, and the other ticket or duplicate shall be retained by the person, firm, limited liability company, or corporation making such sale for a period of not less than twelve (12) months from date of sale. All coal or coke so sold or delivered shall consist of the kind, quality, and weight in all respects as described and indicated in such delivery ticket and duplicate thereof, and it shall constitute a violation of this chapter to sell or deliver or substitute any other kind and quality or weight of coal or coke than that so described and indicated, and proof of the sale, delivery, or substitution of any coal or coke which is not of the kind, quality, and weight so described and indicated shall constitute prima facie evidence and proof of intent to violate this section.

Formerly: Acts 1931, c.177, s.1; Acts 1935, c.278, s.1. As amended by P.L.152-1986, SEC.52; P.L.8-1993, SEC.347.

 

IC 24-4-4-2Coal in carload lots; invoice; contents

     Sec. 2. Every person, firm, limited liability company, or corporation who produces, ships or sells coal in car-load lots in this state shall transmit an invoice for each shipment of coal which shall indicate plainly thereon the state in which the coal was mined, the name of the coal or the number of the vein or seam from which the coal was taken, and the size and grade thereof, which size of all grades must be designated according to the opening in the screens over and through which each such size of coal is made at the place of production.

Formerly: Acts 1931, c.177, s.2; Acts 1935, c.278, s.2. As amended by P.L.8-1993, SEC.348.

 

IC 24-4-4-3Sign on delivery vehicle

     Sec. 3. Upon both sides of delivery vehicles shall be displayed a sign with letters not less than three (3) inches in height showing name of person, firm, limited liability company, or corporation delivering or attempting to deliver commodities as prescribed in section 1 of this chapter.

Formerly: Acts 1931, c.177, s.3. As amended by P.L.152-1986, SEC.53; P.L.8-1993, SEC.349.

 

IC 24-4-4-4Division of weights and measures; delivery tickets

     Sec. 4. Upon the demand of the division of weights and measures, a deputy of the division inspector, or any peace officer, the person or persons in charge of any such load of commodities shall deliver to such officer all delivery tickets in the person's possession, and shall proceed, at the direction of the officer to a suitable tested scale for the purpose of reweighing such load of commodities to verify the correctness of the delivery ticket.

Formerly: Acts 1931, c.177, s.4; Acts 1935, c.278, s.3. As amended by P.L.2-1992, SEC.748.

 

IC 24-4-4-5Violations

     Sec. 5. A person who recklessly violates this chapter commits a Class B misdemeanor.

Formerly: Acts 1931, c.177, s.5; Acts 1935, c.278, s.4. As amended by Acts 1978, P.L.2, SEC.2412.

 

IC 24-4-4-6Regulation by ordinance

     Sec. 6. Nothing in this chapter shall prohibit any city from regulating by ordinance the retail or wholesale delivery of coal.

Formerly: Acts 1931, c.177, s.6. As amended by P.L.152-1986, SEC.54.

 

IC 24-4-4-7Advertising coal and coke

     Sec. 7. It shall be unlawful for any person, firm, limited liability company, or corporation, by himself or itself, or by his or its agent or servant, or as agent or servant of another, to advertise by any false statement, either oral or written, or to publish or display any false sign, printing, or writing concerning the grade, size, quality, vein or seam, brand or trade name, name of mine in which produced, or origin of such coal or coke sold or delivered, or offered by him, it, or them for sale or delivery. For the purpose of this chapter, the term "size" where used in reference to coal shall be construed to mean the various grades into which coal is screened, namely, lump, block, egg, nut, and screenings, and the size of all such grades of coal must be designated according to the openings in the screens over and through which each such size of coal is made at the place of production. Abbreviations or words, terms, or phrases describing the size, preparation, or origin of coal or coke shall not be included in any advertisement as mentioned in this chapter. Any person, firm, limited liability company, or corporation violating any of the provisions of this section shall be subject to the provisions of section 5 of this chapter.

Formerly: Acts 1931, c.177, s.7; Acts 1933, c.265, s.1; Acts 1935, c.278, s.5. As amended by P.L.152-1986, SEC.55; P.L.8-1993, SEC.350.

 

IC 24-4-5Chapter 5. Cloth Product Trademarks
           24-4-5-1Trademarks; registration; fees
           24-4-5-1.1"Circulating product"
           24-4-5-1.2"Delivery container"
           24-4-5-1.3"Registrant"
           24-4-5-2Trademarks; unlawful sale or purchase; concealment or removal
           24-4-5-3Trademarks; purchase; reregistration
           24-4-5-4Trademarks; possession of goods; notice to owner
           24-4-5-5Trademarks; deposits for safekeeping not constituting sale
           24-4-5-6Trademarks; use of circulating product or delivery container without consent; prima facie evidence
           24-4-5-7Violations; infraction; civil actions
           24-4-5-8Common law rights protected

 

IC 24-4-5-1Trademarks; registration; fees

     Sec. 1. (a) A person, a firm, a limited liability company, a corporation, or an association who supplies by rental or lease a circulating product that is the property of the supplier may adopt and use a name or other mark or device woven, impressed, or produced on the circulating product to indicate ownership and registration as described by this chapter.

     (b) The owner of a delivery container may adopt and use an identifying mark or device for affixing or stamping on a delivery container to indicate ownership and registration as described in this chapter.

     (c) A supplier of a circulating product and an owner of a delivery container may file in the office of the secretary of state and also in the office of the county recorder of the county in which the principal place of business of the supplier or owner is located or if the principal place of business is located outside Indiana then in the office of the county recorder of any county of the state in which it does business, a description of the names, marks, or devices used to indicate ownership, and cause such description to be printed once a week for three (3) successive weeks in a newspaper published in the county in which such description is filed. The registrant shall pay the secretary of state three dollars ($3) for each registration and the county recorder, the amount provided by law for recordation.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.1; P.L.8-1993, SEC.351.

 

IC 24-4-5-1.1"Circulating product"

     Sec. 1.1. As used in this chapter, "circulating product" includes:

(1) clean laundered towels;

(2) industrial wiping towels;

(3) sheets, pillowcases, napkins, tablecloths, and linen;

(4) coats, aprons, shirts, and diapers;

(5) garments serviced by linen and towel supply companies;

(6) garments serviced by industrial garment and towel supply companies;

(7) articles of dust control;

(8) toilet devices;

(9) towel dispensing cabinets; and

(10) bags, carts, baskets, or other receptacles used as packages or containers;

loaned or circulated as part of a regular service for the periodic exchange of clean articles for soiled articles.

As added by P.L.114-1992, SEC.2.

 

IC 24-4-5-1.2"Delivery container"

     Sec. 1.2. As used in this chapter, "delivery container" means a permanent container used by:

(1) a bakery, dairy, distributor, retailer, or food service establishment; or

(2) an agent of a bakery, dairy, distributor, retailer, or food service establishment;

to transport, store, or carry bakery or dairy products.

As added by P.L.114-1992, SEC.3.

 

IC 24-4-5-1.3"Registrant"

     Sec. 1.3. As used in this chapter, "registrant" means a supplier of a circulating product or the owner of a delivery container who has filed under section 1 of this chapter a description of a name, mark, or device used to indicate the ownership of the circulating product or delivery container.

As added by P.L.114-1992, SEC.4.

 

IC 24-4-5-2Trademarks; unlawful sale or purchase; concealment or removal

     Sec. 2. (a) This section does not apply to a registrant or person who has purchased from a registrant a circulating product or delivery container bearing a mark or device registered under this chapter.

     (b) It is unlawful for any person, firm, limited liability company, corporation, or association, except the owner or registrant of a brand registered as provided in this chapter, to:

(1) sell, buy, rent, launder or clean, give, take, or otherwise traffic in;

(2) erase, obliterate or otherwise cover up, conceal, or remove a name, mark, or device registered under this chapter; or

(3) fill or refill;

without the written consent of the registrant, any circulating product or delivery container that is marked with or by any name, mark, or device, a description of which is filed and published as provided in section 1 of this chapter.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.5; P.L.8-1993, SEC.352.

 

IC 24-4-5-3Trademarks; purchase; reregistration

     Sec. 3. Any:

(1) person, firm, limited liability company, corporation, or association; or

(2) agent of a person, a firm, a limited liability company, a corporation, or an association;

who acquires by purchase or other lawful means a circulating product or delivery container marked under section 1 of this chapter and who has the written consent under section 2 of this chapter is not required to refile and republish the description, but, as to the supplies described in the written consent, acquires as a part of the purchase all rights and benefits the vendor has under this chapter.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.6; P.L.8-1993, SEC.353.

 

IC 24-4-5-4Trademarks; possession of goods; notice to owner

     Sec. 4. (a) Any person, firm, limited liability company, corporation, or association who finds or receives in any manner a circulating product or delivery container marked with a brand registered under this chapter shall make a reasonable effort to find the owner of the circulating product or delivery container and restore the property to the owner.

     (b) Any person, firm, limited liability company, corporation, or association who finds or receives a circulating product or delivery container may notify the owner by regular United States mail, which is sufficient to comply with the requirement to restore the property to the owner, and the owner has the burden of picking up the property at the location set forth in the letter.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.152-1986, SEC.56; P.L.114-1992, SEC.7; P.L.8-1993, SEC.354.

 

IC 24-4-5-5Trademarks; deposits for safekeeping not constituting sale

     Sec. 5. Acceptance of money by a registrant as a deposit to secure safekeeping and return of a circulating product or delivery container does not constitute a sale of the property, either optional or otherwise, in any proceeding under this chapter.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.8.

 

IC 24-4-5-6Trademarks; use of circulating product or delivery container without consent; prima facie evidence

     Sec. 6. (a) This section does not apply to a person who possesses a circulating product or delivery container in good faith in the ordinary course of business.

     (b) Evidence of possession of a circulating product or delivery container marked under section 1 of this chapter by a person other than the registrant whose name, mark, or device is on the circulating product or delivery container without the written consent of the registrant of the name, mark, or device constitutes prima facie evidence of unlawful use of or traffic in the circulating product or delivery container.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.9.

 

IC 24-4-5-7Violations; infraction; civil actions

     Sec. 7. A person who violates this chapter commits a Class B infraction.

     If a person suffers a pecuniary loss as a result of a violation of IC 24-4-5, the person may bring a civil action against the person who caused the loss for the following:

(1) Actual damages.

(2) The costs of the action.

(3) A reasonable attorney's fee.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by Acts 1978, P.L.2, SEC.2413; P.L.114-1992, SEC.10.

 

IC 24-4-5-8Common law rights protected

     Sec. 8. Nothing in this chapter affects the rights or enforcement of rights acquired under IC 24-2-1 or the rights or the enforcement of rights in trademarks acquired in good faith at any time at common law.

Formerly: Acts 1971, P.L.365, SEC.1. As amended by P.L.114-1992, SEC.11.

 

IC 24-4-6Chapter 6. Motor Vehicle Transactions
           24-4-6-1Sunday transactions prohibited
           24-4-6-2Towing disabled motor vehicles; wrecker door identification

 

IC 24-4-6-1Sunday transactions prohibited

     Sec. 1. (a) This section does not apply to the following:

(1) A person that holds a special event permit issued under IC 9-32-11-18.

(2) The buying, selling, or trading of a motor vehicle that is a motorcycle (as defined in IC 9-13-2-108).

     (b) A person who engages in the business of buying, selling, or trading motor vehicles on Sunday commits a Class B misdemeanor.

As added by Acts 1977, P.L.26, SEC.11. Amended by P.L.156-2006, SEC.24; P.L.89-2012, SEC.1; P.L.92-2013, SEC.81.

 

IC 24-4-6-2Towing disabled motor vehicles; wrecker door identification

     Sec. 2. (a) For the purpose of this section, "wrecker" means a motor vehicle with an apparatus capable of lifting one (1) or more axles of a towed vehicle off the ground for the purpose of transportation.

     (b) A person who engages in the business of towing disabled motor vehicles with a wrecker shall identify each wrecker used in the business by painting or permanently affixing identification on both of the wrecker's doors:

(1) the name of the business; and

(2) the name of the city where the wrecker is domiciled;

in a form that may easily be read by a law enforcement officer.

     (c) A person who engages in the business of towing disabled motor vehicles who fails to comply with this section commits a Class C infraction.

As added by P.L.133-1984, SEC.1.

 

IC 24-4-7Chapter 7. Contracts With Wholesale Sales Representatives
           24-4-7-0.1Application of certain amendments to chapter
           24-4-7-1"Commission"
           24-4-7-2"Person"
           24-4-7-3"Principal"
           24-4-7-4"Sales representative"
           24-4-7-5Termination of contract; payment of commissions accrued; failure to comply; attorney's fees and costs
           24-4-7-6Doing business in Indiana
           24-4-7-7Commission; revocable offer; entitlement
           24-4-7-8Waiver of provision in chapter

 

IC 24-4-7-0.1Application of certain amendments to chapter

     Sec. 0.1. The addition of this chapter by P.L.238-1985 does not apply to contracts formed before September 1, 1985.

As added by P.L.220-2011, SEC.387.

 

IC 24-4-7-1"Commission"

     Sec. 1. As used in this chapter, "commission" means compensation that accrues to a sales representative, for payment by a principal, at a rate expressed as a percentage of the dollar amount of orders taken or sales made by the sales representative.

As added by P.L.238-1985, SEC.1.

 

IC 24-4-7-2"Person"

     Sec. 2. As used in this chapter, "person" means an individual, corporation, limited liability company, partnership, unincorporated association, estate, or trust.

As added by P.L.238-1985, SEC.1. Amended by P.L.8-1993, SEC.355.

 

IC 24-4-7-3"Principal"

     Sec. 3. As used in this chapter, "principal" means a person who:

(1) manufactures, produces, imports, sells, or distributes a product for wholesale;

(2) contracts with a sales representative to solicit wholesale orders for the product; and

(3) compensates the sales representative, in whole or in part, by commission.

As added by P.L.238-1985, SEC.1.

 

IC 24-4-7-4"Sales representative"

     Sec. 4. As used in this chapter, "sales representative" means a person who:

(1) contracts with a principal to solicit wholesale orders in Indiana; and

(2) is compensated, in whole or in part, by commission.

The term does not include a person who places orders or purchases on the person's own account for resale.

As added by P.L.238-1985, SEC.1.

 

IC 24-4-7-5Termination of contract; payment of commissions accrued; failure to comply; attorney's fees and costs

     Sec. 5. (a) If a contract between a sales representative and a principal is terminated, the principal shall, within fourteen (14) days after payment would have been due under the contract if the contract had not been terminated, pay to the sales representative all commissions accrued under the contract.

     (b) A principal who in bad faith fails to comply with subsection (a) shall be liable, in a civil action brought by the sales representative, for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.

     (c) In a civil action under subsection (b), a principal against whom exemplary damages are awarded shall pay the sales representative's reasonable attorney's fees and court costs. However, if judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney's fees and court costs to the principal.

As added by P.L.238-1985, SEC.1.

 

IC 24-4-7-6Doing business in Indiana

     Sec. 6. For purposes of Indiana trial rule 4.4, a principal who contracts with a sales representative to solicit wholesale orders for a product in Indiana is doing business in Indiana.

As added by P.L.238-1985, SEC.1.

 

IC 24-4-7-7Commission; revocable offer; entitlement

     Sec. 7. (a) If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed upon if:

(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for a purpose of avoiding payment of the commission;

(2) the revocation occurs after the sales representative has obtained a written order for the principal's product because of the efforts of the sales representative; and

(3) the principal's product that is the subject of the order is shipped to and paid for by a customer.

     (b) This section may not be construed:

(1) to impair the application of IC 32-21-1 (statute of frauds);

(2) to abrogate any rule of agency law; or

(3) to unconstitutionally impair the obligations of contracts.

As added by P.L.138-1990, SEC.1. Amended by P.L.1-1993, SEC.193; P.L.2-2002, SEC.76.

 

IC 24-4-7-8Waiver of provision in chapter

     Sec. 8. A provision in a contract between a sales representative and a principal that waives a provision of this chapter by:

(1) an express waiver; or

(2) a contract subject to the laws of another state;

is void.

As added by P.L.138-1990, SEC.2.

 

IC 24-4-8Chapter 8. Prohibition on Direct Molding Process
           24-4-8-1"Direct molding process" defined
           24-4-8-2"Mold" defined
           24-4-8-3"Plug" defined
           24-4-8-4"Watercraft" defined
           24-4-8-5Acts prohibited
           24-4-8-6Civil action for injunctive relief or damages
           24-4-8-7Application of chapter

 

IC 24-4-8-1"Direct molding process" defined

     Sec. 1. As used in this chapter, "direct molding process" means any process by which a manufactured watercraft or its component part is used as a plug for the making of a mold from which a duplicate of the watercraft or component is made.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-2"Mold" defined

     Sec. 2. As used in this chapter, "mold" means any pattern, hollow form, matrix, or other device for giving shape or form to material in a plastic or molten state.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-3"Plug" defined

     Sec. 3. As used in this chapter, "plug" means a manufactured item used to make a mold.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-4"Watercraft" defined

     Sec. 4. As used in this chapter, "watercraft" means any instrumentality or device in or by means of which a person may be transported upon waters and includes a motorboat, sailboat, rowboat, skiff, dinghy, or canoe of whatever length or size.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-5Acts prohibited

     Sec. 5. (a) A person may not manufacture, by use of a direct molding process, a watercraft or its component part manufactured by another person without permission of that other person.

     (b) A person may not sell a watercraft or its component part manufactured in violation of subsection (a).

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-6Civil action for injunctive relief or damages

     Sec. 6. (a) A person injured by a violation of section 5 of this chapter may bring a civil action for:

(1) injunctive relief;

(2) actual damages caused by the violation;

(3) treble damages; and

(4) costs and reasonable attorney's fees.

     (b) Injunctive relief may be granted for a violation of section 5 of this chapter regardless of the failure of the plaintiff to show irreparable injury.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-8-7Application of chapter

     Sec. 7. This chapter applies to products duplicated using a mold made after August 31, 1987.

As added by P.L.250-1987, SEC.1.

 

IC 24-4-9Chapter 9. Motor Vehicle Rental Companies
           24-4-9-0.1Application of chapter to certain rental agreements
           24-4-9-1"Authorized driver"
           24-4-9-2"Damage waiver"; "waiver"
           24-4-9-3"Damage"
           24-4-9-4"Person"
           24-4-9-5"Rental agreement"
           24-4-9-6"Renter"
           24-4-9-7"Rental company"
           24-4-9-8"Vehicle"
           24-4-9-8.5"Vehicle license cost recovery fee"
           24-4-9-9Rental agreement application of damage waivers
           24-4-9-10Sale of damage waivers; disclosures; acknowledgment by renter
           24-4-9-11Repealed
           24-4-9-11.1Vehicle license cost recovery fee; estimates; adjustment
           24-4-9-12Rental company's action for damages
           24-4-9-13Limitation of renter's liability generally
           24-4-9-14Damage to rented vehicle; rental company's loss of use of damaged vehicle; administrative charges
           24-4-9-15Renter's maximum total liability; multiple recovery of single item of damages
           24-4-9-16Damage deposits or advances; payment for damage; liability
           24-4-9-17Rental rates, mileage charges, and fees; disclosures and prohibited practices
           24-4-9-18Additional charges for optional items
           24-4-9-19Nonconforming rental agreements unenforceable
           24-4-9-20Renter's action for damages or equitable relief; attorney's fees
           24-4-9-21Waiver of chapter provisions void and unenforceable
           24-4-9-22Unfair, deceptive, or coercive acts by rental company
           24-4-9-23Statistical reporting by rental companies; administration review of maximum charge for damage waiver
           24-4-9-24Remedies for rental company violations of chapter provisions

 

IC 24-4-9-0.1Application of chapter to certain rental agreements

     Sec. 0.1. The addition of this chapter by P.L.232-1989 does not apply to rental agreements entered into before July 1, 1989.

As added by P.L.220-2011, SEC.388.

 

IC 24-4-9-1"Authorized driver"

     Sec. 1. As used in this chapter, with respect to a vehicle that is the subject of a rental agreement, "authorized driver" means:

(1) the renter of the vehicle;

(2) the spouse of the renter, if the spouse:

(A) is a licensed driver; and

(B) satisfies the rental company's minimum age requirement for authorized drivers;

(3) an employer or coworker of the renter, if the employer or coworker:

(A) is engaged in a business activity with the renter;

(B) is a licensed driver; and

(C) satisfies the rental company's minimum age requirement for authorized drivers;

(4) a person who operates the vehicle:

(A) while parking the vehicle at a commercial establishment; or

(B) in an emergency; or

(5) a person expressly identified as an authorized driver in the rental agreement.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-2"Damage waiver"; "waiver"

     Sec. 2. As used in this chapter, "damage waiver" or "waiver" means any contract or contract provision, whether separate from or a part of a rental agreement, under which a rental company agrees to waive any or all claims against the renter for any physical or mechanical damage, as defined in section 13 of this chapter, to the rented vehicle during the term of the rental agreement.

As added by P.L.232-1989, SEC.1. Amended by P.L.19-2005, SEC.1.

 

IC 24-4-9-3"Damage"

     Sec. 3. As used in this chapter, "damage" means physical damage or loss to a vehicle, including loss of use of the vehicle and the cost and expenses incident to any damage or loss.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-4"Person"

     Sec. 4. As used in this chapter, "person" means an individual, a firm, a partnership, limited liability company, an association, a joint stock company, a corporation, a trust, an estate, or any combination of individuals.

As added by P.L.232-1989, SEC.1. Amended by P.L.8-1993, SEC.356.

 

IC 24-4-9-5"Rental agreement"

     Sec. 5. As used in this chapter, "rental agreement" means a written contract:

(1) that authorizes a renter to use a vehicle made available by a rental company for a period of thirty (30) days or less;

(2) under which a charge for use of the vehicle is made at a periodic rate; and

(3) under which title to the vehicle is not transferred to the renter.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-6"Renter"

     Sec. 6. As used in this chapter, "renter" means a person who obtains the use of a vehicle from a rental company under a rental agreement.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-7"Rental company"

     Sec. 7. As used in this chapter, "rental company" means any person engaged in the business of regularly making available, or arranging for another person to use, a vehicle under a rental agreement.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-8"Vehicle"

     Sec. 8. As used in this chapter, "vehicle" means a private passenger motor vehicle primarily designed for transporting passengers. The term includes passenger vans and minivans that are primarily designed for transporting passengers.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-8.5"Vehicle license cost recovery fee"

     Sec. 8.5. As used in this chapter, "vehicle license cost recovery fee" means a charge imposed by a rental company to recover costs incurred by the rental company in licensing, titling, registering, plating, and inspecting a vehicle.

As added by P.L.198-2016, SEC.653.

 

IC 24-4-9-9Rental agreement application of damage waivers

     Sec. 9. A rental company may provide in a rental agreement that a damage waiver does not apply under any of the following circumstances:

(1) The damage is caused by the authorized driver:

(A) intentionally; or

(B) through willful or wanton misconduct.

(2) The damage arises out of the authorized driver's operation of the vehicle while intoxicated or under the influence of an illegal drug.

(3) The damage is caused while the authorized driver is engaged in a speed contest, race, road rally, test, or driver training activity.

(4) The renter provided the rental company with fraudulent or false information and the rental company would not have rented the vehicle if the rental company had received true information.

(5) The damage arises out of vandalism or theft of the rented vehicle caused by the negligence of the authorized driver, except that the possession by the authorized driver, at the time of the vandalism or theft, of the ignition key furnished by the rental company shall be prima facie evidence that the authorized driver was not negligent.

(6) The damage arises out of the use of the vehicle in connection with conduct that could be properly charged as a felony.

(7) The damage arises out of the use of the vehicle to carry persons or property for hire or to tow or push anything.

(8) The damage arises out of the use of the vehicle outside the United States, unless the use is specifically authorized by the rental agreement.

(9) The damage arises out of the use of the vehicle by an unauthorized driver.

As added by P.L.232-1989, SEC.1. Amended by P.L.19-2005, SEC.2.

 

IC 24-4-9-10Sale of damage waivers; disclosures; acknowledgment by renter

     Sec. 10. (a) A rental company may offer and sell, for a separate charge, a damage waiver that is set forth in the rental agreement and that relieves an authorized driver of any liability for damage that the authorized driver might otherwise incur.

     (b) Each rental agreement that contains a damage waiver must disclose the following information in plain language printed in type at least as large as 10 point type:

(1) That the waiver is optional.

(2) That the waiver entails an additional charge.

(3) The actual charge per day for the waiver.

(4) All restrictions, conditions, and provisions in or endorsed on the waiver.

(5) That the renter or other authorized driver may already be sufficiently covered for damage to the rental vehicle and should examine the renter's or authorized driver's automobile insurance policy to determine whether the policy provides coverage for damage, loss, or loss of use to a rented vehicle, and the amount of the deductible.

(6) That by entering into the rental agreement, the renter may be liable for damage, loss, or loss of use to the rental vehicle.

     (c) A rental company may not rent a vehicle to a renter until the renter has acknowledged in writing that the renter understands the information set forth in subsection (b). The acknowledgment must be written in plain language on the rental agreement and must be initialed by the renter.

As added by P.L.232-1989, SEC.1. Amended by P.L.19-2005, SEC.3.

 

IC 24-4-9-11Repealed

As added by P.L.232-1989, SEC.1. Repealed by P.L.171-1997, SEC.2.

 

IC 24-4-9-11.1Vehicle license cost recovery fee; estimates; adjustment

     Sec. 11.1. (a) A rental company may include in a rental agreement separately stated surcharges, fees, and charges, including vehicle license cost recovery fees, airport access fees, airport concession fees, and any applicable taxes.

     (b) A vehicle license cost recovery fee that is included as a separately stated fee in a rental agreement must represent the rental company's good faith estimate of the rental company's daily charge necessary to recover the rental company's actual total annual vehicle licensing, titling, registration, plating, and inspection costs.

     (c) If a rental company collects, in a calendar year, vehicle license cost recovery fees in an amount that exceeds the rental company's actual total vehicle licensing, titling, registration, plating, and inspection costs for the calendar year, the rental company shall do the following:

(1) Retain the excess amount.

(2) Reduce the vehicle license cost recovery fee for the following year by a corresponding, proportionate amount.

     (d) This section may not be construed to prevent a rental company from adjusting its vehicle license cost recovery fee during a calendar year.

As added by P.L.198-2016, SEC.654.

 

IC 24-4-9-12Rental company's action for damages

     Sec. 12. A rental company may bring an action to recover for damage based on a rental agreement. If the action is against a renter who is a resident of Indiana, the action shall be filed in the county of the renter's primary residence.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-13Limitation of renter's liability generally

     Sec. 13. A rental company and renter may agree that the renter will be responsible for no more than all of the following:

(1) Physical damage to the rented vehicle up to its fair market value regardless of the cause of damage.

(2) Mechanical damage to the rental vehicle, up to and including the rental vehicle's fair market value, resulting from:

(A) a collision;

(B) an impact; or

(C) another incident that is caused by the renter's or authorized driver's deliberate act.

(3) Loss due to theft of the rental vehicle up to its fair market value. However, the renter shall be presumed to have no liability for any loss due to theft if the renter or authorized driver:

(A) has possession of the ignition key furnished by the rental company or establishes that the ignition key furnished by the rental company was not in the vehicle at the time of the theft; and

(B) files an official report of the theft with the police or other law enforcement agency within twenty-four (24) hours of learning of the theft and reasonably cooperates with the rental company, police, and other law enforcement agency in providing information concerning the theft.

The presumption set forth in this subdivision is a presumption affecting the burden of proof, which the rental company may rebut by establishing that a renter or other authorized driver committed or aided and abetted in the commission of the theft.

(4) Physical damage to the rented vehicle up to its fair market value resulting from vandalism occurring after, or in connection with, the theft of the rented vehicle. However, the renter is presumed to have no liability for any loss due to vandalism if the renter or authorized driver:

(A) has possession of the ignition key furnished by the rental company or establishes that the ignition key furnished by the rental company was not in the vehicle at the time of the vandalism; and

(B) files an official report of the vandalism with the police or other law enforcement agency within twenty-four (24) hours of learning of the vandalism and reasonably cooperates with the rental company, police, and other law enforcement agency in providing information concerning the vandalism.

The presumption set forth in this subdivision is a presumption affecting the burden of proof, which the rental company may rebut by establishing that a renter or other authorized driver committed or aided and abetted in the commission of the vandalism.

(5) Physical damage to the rented vehicle and loss of use of the rented vehicle up to its fair market value resulting from vandalism unrelated to the theft of the rented vehicle.

(6) Loss of use of the rented vehicle, if the renter is liable for damage.

(7) Actual charges for towing, storage, and impoundment fees paid by the rental company, if the renter is liable for damage.

(8) Reasonable attorney's fees related to the enforcement of the rental agreement.

(9) An administrative charge.

(10) The cost of appraisal and all other costs and expenses incident to the damage, loss, loss of use, repair, or replacement of the rented vehicle.

As added by P.L.232-1989, SEC.1. Amended by P.L.70-2003, SEC.1; P.L.19-2005, SEC.4; P.L.126-2015, SEC.1.

 

IC 24-4-9-14Damage to rented vehicle; rental company's loss of use of damaged vehicle; administrative charges

     Sec. 14. (a) The total amount of the renter's liability to the rental company resulting from damage to the rented vehicle may not exceed the sum of the following:

(1) The estimated cost of replacement parts that the rental company would have to pay to replace damaged vehicle parts, less all discounts and price reductions or adjustments that will be received by the rental company.

(2) The estimated cost of labor to replace damaged vehicle parts, which may not exceed the product of:

(A) the rate for labor usually paid by the rental company to replace vehicle parts of the type that were damaged; and

(B) the estimated time for replacement;

less all discounts and price reductions or adjustments that will be received by the rental company.

(3) The estimated cost of labor to repair damaged vehicle parts, which may not exceed the lesser of the following:

(A) The product of the rate for labor usually paid by the rental company to repair vehicle parts of the type that were damaged and the estimated time for repair.

(B) The sum of the estimated labor and parts costs determined under subdivisions (1) and (2) to replace the same vehicle parts.

All discounts and price reductions or adjustments that will be received by the rental company must be taken into account in determining the figure under this subdivision.

(4) Except as otherwise provided for, the loss of the use of the rented vehicle, which may not exceed the product of:

(A) the rental rate stated in the rental agreement for the particular vehicle rented, excluding optional charges; and

(B) the total of the estimated time for replacement and estimated time for repair.

(5) Actual charges for towing, storage, and impound fees paid by the rental company.

     (b) Under any circumstances described in this chapter, liability for the rental company's loss of use of the rented vehicle may not exceed the product of:

(1) the rental rate stated in the rental agreement for the particular vehicle rented, excluding all optional charges; and

(2) eighty percent (80%) of the period from the date of the accident to the date the vehicle is ready to be returned to rental service.

However, a renter is not liable to a rental company for the loss of use of a damaged vehicle unless the rental company uses its best efforts to effect repairs and return the vehicle to rental service.

     (c) The administrative charge described in section 13(9) of this chapter may not exceed:

(1) fifty dollars ($50) if the total estimated cost for parts and labor is less than five hundred dollars ($500);

(2) one hundred dollars ($100) if the total estimated cost for parts and labor is at least five hundred dollars ($500) and less than one thousand five hundred dollars ($1,500); or

(3) one hundred fifty dollars ($150) if the total estimated cost for parts and labor is at least one thousand five hundred dollars ($1,500).

As added by P.L.232-1989, SEC.1. Amended by P.L.70-2003, SEC.2; P.L.109-2015, SEC.44; P.L.126-2015, SEC.2.

 

IC 24-4-9-15Renter's maximum total liability; multiple recovery of single item of damages

     Sec. 15. (a) The total amount of the liability of the renter or other authorized driver to the rental company for damage occurring during the rental period may not exceed the amount of the renter's liability under section 14 of this chapter.

     (b) A rental company may not recover from the renter or other authorized driver an amount exceeding the renter's liability under section 14 of this chapter.

     (c) A rental company may not recover from the renter or other authorized driver for any item described in section 13 of this chapter to the extent that the rental company obtains recovery for that item from another person.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-16Damage deposits or advances; payment for damage; liability

     Sec. 16. (a) A rental company may not require a deposit or advance charge against the credit card of a renter, in any form, for damage to a rental vehicle that is in the care, custody, or control of the renter or other authorized driver.

     (b) If a renter's insurance deductible cannot be ascertained, a rental company may:

(1) at the time that care, custody, or control of a rental vehicle is restored to the rental company; and

(2) in an amount that may not exceed five hundred dollars ($500);

require payment by the renter for damage to the rental vehicle.

     (c) If a renter's insurance deductible can be ascertained, the rental company may charge the renter an amount that may not exceed the renter's insurance deductible for damage to the rental vehicle.

     (d) After the cost of the damage and liability for the damage described in subsections (b) and (c) is agreed to between the rental company and renter or is determined under law, the rental company:

(1) may require payment by the renter of any cost of the damage that exceeds the amount paid by the renter; and

(2) shall refund to the renter any overpayment received from the renter;

under subsection (b) or (c).

As added by P.L.232-1989, SEC.1. Amended by P.L.126-2015, SEC.3.

 

IC 24-4-9-17Rental rates, mileage charges, and fees; disclosures and prohibited practices

     Sec. 17. A rental company of a vehicle:

(1) may not offer, display, quote, or advertise and charge in a rental agreement a periodic rate that does not include the entire amount to be charged, except for taxes, airport fees, and mileage, if any, that a renter must pay to rent the vehicle for the period of time to which the rate applies;

(2) shall clearly and conspicuously disclose in any visual or oral advertisement or quotation transmitting computer system in which the rental company presents its rate, the terms of any mileage conditions relating to the advertised or quoted rate, including but not limited to, to the extent applicable, the amount of mileage, the number of miles for which no charges will be imposed, and a description of geographic driving limitations within the United States;

(3) may not charge, in addition to the rental rate, taxes, airport fees, and mileage charge, if any, any fee that must be paid by the renter as a condition of renting the vehicle, such as, but not limited to, required fuel surcharges, or any fee for transporting the renter to the location where the rented vehicle will be delivered to the renter; and

(4) shall separately disclose, charge, and remit to an airport any fee that is charged to the customer and is required to be fully remitted to an airport's management entity, and such fee shall be considered part of and included in the definition of gross concession revenue reported to the airport’s management authority.

As added by P.L.232-1989, SEC.1. Amended by P.L.57-1999, SEC.1.

 

IC 24-4-9-18Additional charges for optional items

     Sec. 18. Notwithstanding section 17(3) of this chapter, a rental company may charge for the rental of a vehicle, in addition to the rental rate, taxes, airport fees, and any mileage charge, an additional charge for an item or service provided during the rental of the vehicle if the renter can avoid incurring that additional charge by choosing not to obtain the item or utilize the service. Items and services for which the rental company may impose an additional charge under this section include the following:

(1) Optional insurance or accessories requested by the renter.

(2) Service charges assessed when the insured returns the vehicle to a location other than the location where the vehicle was rented.

(3) A charge for refueling a vehicle that is returned with less fuel in its tank than when the rental period began.

(4) A damage waiver that conforms to the provisions of this chapter.

As added by P.L.232-1989, SEC.1. Amended by P.L.57-1999, SEC.2; P.L.19-2005, SEC.5.

 

IC 24-4-9-19Nonconforming rental agreements unenforceable

     Sec. 19. A rental agreement entered into in Indiana is unenforceable if the agreement does not conform to this chapter.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-20Renter's action for damages or equitable relief; attorney's fees

     Sec. 20. A renter may bring an action against a rental company for recovery of damages and appropriate equitable relief for a violation of this chapter. The prevailing party may be awarded reasonable attorney's fees.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-21Waiver of chapter provisions void and unenforceable

     Sec. 21. Any waiver of any provision of this chapter is void and unenforceable.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-9-22Unfair, deceptive, or coercive acts by rental company

     Sec. 22. A rental company may not engage in any unfair, deceptive, or coercive act to induce a renter to purchase a damage waiver or any other optional good or service.

As added by P.L.232-1989, SEC.1. Amended by P.L.19-2005, SEC.6.

 

IC 24-4-9-23Statistical reporting by rental companies; administration review of maximum charge for damage waiver

     Sec. 23. (a) If a rental company enters into at least one (1) rental agreement containing a damage waiver in Indiana during a calendar year, the rental company shall compile and maintain the following statistics concerning all the rental agreements the rental company enters into in Indiana during that calendar year:

(1) The total expenses incurred by the rental company as a result of damage to vehicles that is caused while the vehicles are subject to the rental agreements.

(2) The total amount of the expenses referred to in subdivision (1) for which the rental company is indemnified.

(3) The total number of vehicles subject to the rental agreements, multiplied by the total number of days of the calendar year during which the vehicles are subject to the rental agreements.

     (b) The expenses on which a rental company must compile statistics under subsection (a)(1) are the following:

(1) The cost that the rental company pays to replace damaged vehicle parts, less all discounts and price reductions or adjustments received by the rental company.

(2) The cost of labor paid by the rental company to replace damaged vehicle parts.

(3) The cost of labor paid by the rental company to repair damaged vehicle parts.

(4) The loss of use of the damaged vehicles, which must be determined according to the following formula:

STEP ONE: For each damaged vehicle, multiply the time necessary for the repair and replacement of damaged parts by eighty percent (80%).

STEP TWO: For each damaged vehicle, multiply the product of STEP ONE by the rental rate set forth in the rental agreement to which the vehicle was subject when damaged.

STEP THREE: Total the figures determined under STEP TWO for all of the damaged vehicles.

(5) Actual charges for towing, storage, and impound fees paid by the rental company.

     (c) The director of the division of consumer protection appointed under IC 4-6-9-2 may request that rental companies provide the director with statistics compiled and maintained under subsection (a).

     (d) Upon receiving a request under subsection (c), a rental company shall provide the director of the division of consumer protection with the statistics that are requested by the director.

As added by P.L.232-1989, SEC.1. Amended by P.L.171-1997, SEC.1; P.L.19-2005, SEC.7.

 

IC 24-4-9-24Remedies for rental company violations of chapter provisions

     Sec. 24. A rental company who violates any provision of this chapter commits a deceptive act which is actionable under IC 24-5-0.5 and subject to the penalties of IC 24-5-0.5.

As added by P.L.232-1989, SEC.1.

 

IC 24-4-10Chapter 10. Unlawful Use of Sound and Video Recordings
           24-4-10-1"Manufacturer" defined
           24-4-10-2"Person" defined
           24-4-10-3"Recording" defined
           24-4-10-4Prohibited acts
           24-4-10-5Offense

 

IC 24-4-10-1"Manufacturer" defined

     Sec. 1. As used in this chapter, "manufacturer" means a person who manufactures a recording. The term does not include a person who manufactures a medium upon which sounds or visual images can be recorded or stored.

As added by P.L.180-1991, SEC.1.

 

IC 24-4-10-2"Person" defined

     Sec. 2. As used in this chapter, "person" means an individual, partnership, limited liability company, corporation, association, or any other legal entity.

As added by P.L.180-1991, SEC.1. Amended by P.L.8-1993, SEC.357.

 

IC 24-4-10-3"Recording" defined

     Sec. 3. As used in this chapter, "recording" means a tangible medium upon which sounds or visual images are recorded or stored. The term includes the following:

(1) An original:

(A) phonograph record;

(B) compact disc;

(C) wire;

(D) tape;

(E) audio cassette;

(F) video cassette; or

(G) film.

(2) Any other medium on which sounds or visual images are or can be recorded or otherwise stored.

(3) A copy or reproduction of an item in subdivision (1) or (2) that duplicates an original recording in whole or in part.

As added by P.L.180-1991, SEC.1.

 

IC 24-4-10-4Prohibited acts

     Sec. 4. A person may not:

(1) sell;

(2) rent;

(3) transport; or

(4) possess;

a recording for commercial gain or personal financial gain if the recording does not conspicuously display the true name and address of the manufacturer of the recording.

As added by P.L.180-1991, SEC.1.

 

IC 24-4-10-5Offense

     Sec. 5. A person who violates this chapter commits a Class A infraction.

As added by P.L.180-1991, SEC.1.

 

IC 24-4-11Chapter 11. Regulation of Industrial Hygienists
           24-4-11-1Application of chapter
           24-4-11-2"Accredited college or university" defined
           24-4-11-3"Board" defined
           24-4-11-4"Certified industrial hygienist (CIH)" defined
           24-4-11-5"Education" defined
           24-4-11-6"Experience" defined
           24-4-11-7"Industrial hygiene" defined
           24-4-11-8"Industrial hygienist (IH)" defined
           24-4-11-9"Industrial hygienist in training (IHIT)" defined
           24-4-11-10Prohibitions against use of title
           24-4-11-11Violations

 

IC 24-4-11-1Application of chapter

     Sec. 1. This chapter does not apply to the following:

(1) A person employed as an apprentice under the supervision of an industrial hygienist, an industrial hygienist in training, or a certified industrial hygienist.

(2) A student of industrial hygiene who is engaged in supervised activities related to industrial hygiene.

(3) A person licensed under IC 25 who is engaged in activities permitted under the person's license, if the person does not represent to the public that the person is an industrial hygienist, an industrial hygienist in training, or a certified industrial hygienist.

(4) A person who uses the title industrial hygienist within the scope of the person's employment if, when using the title industrial hygienist, the person:

(A) furnishes services as an industrial hygienist only on behalf of the employer for whom the person works; and

(B) does not furnish or offer to furnish services as an industrial hygienist to any person other than the employer for whom the person works.

(5) An individual practicing within the scope of meaning of industrial hygiene, if the person does not do the following:

(A) Use any of the following titles:

(i) Industrial hygienist.

(ii) Industrial hygienist in training.

(iii) Certified industrial hygienist.

(B) Use any of the following sets of initials:

(i) IH.

(ii) IHIT.

(iii) CIH.

(C) Represent to the public that the person is:

(i) An industrial hygienist.

(ii) An industrial hygienist in training.

(iii) A certified industrial hygienist.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-2"Accredited college or university" defined

     Sec. 2. (a) As used in this chapter, "accredited college or university" refers to a college or university that is accredited by one (1) of the following regional accrediting agencies:

(1) Middle States Association of Colleges and Schools.

(2) New England Association of Colleges and Schools.

(3) North Central Association of Colleges and Schools.

(4) Northwest Association of Colleges and Schools.

(5) Southern Association of Colleges and Schools.

(6) Western Association of Colleges and Schools.

     (b) A college or university located outside the United States is considered an accredited college or university if the college or university is accredited within the jurisdiction of the college or university by an accrediting agency having accreditation standards that are at least equal to the accreditation standards of the accrediting agencies listed in subsection (a).

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-3"Board" defined

     Sec. 3. As used in this chapter, "board" refers to the American Board of Industrial Hygiene, a nonprofit corporation established to improve the practice and educational standards of the profession of industrial hygiene by certifying individuals who meet its education, experience, and examination requirements.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-4"Certified industrial hygienist (CIH)" defined

     Sec. 4. As used in this chapter, "certified industrial hygienist (CIH)" is a person who has received the designation certified industrial hygienist from the American Board of Industrial Hygiene and whose certification has not lapsed or been revoked.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-5"Education" defined

     Sec. 5. As used in this chapter, "education" means:

(1) a baccalaureate or graduate degree from an accredited college or university in:

(A) industrial hygiene;

(B) biology;

(C) chemistry;

(D) engineering;

(E) physics; or

(F) a closely related physical or biological science; or

(2) a baccalaureate or graduate degree from an accredited college or university that has at least sixty (60) credit hours in undergraduate or graduate level courses (of which at least fifteen (15) credit hours must be in junior or higher level courses) in the following:

(A) Science.

(B) Mathematics.

(C) Engineering.

(D) Technology.

If the degree is heavily comprised of only one (1) of these subject matter areas, the board may accept the degree under this definition only if the applicant has taken additional science courses from an accredited college or university or has completed a related graduate degree from an accredited college or university.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-6"Experience" defined

     Sec. 6. As used in this chapter, "experience" means the completion of professional level work sufficient to provide competence in the following:

(1) The anticipation and recognition of workplace environmental factors and stresses, including chemical, physical, biological, and ergonomic stresses, and the understanding of their effect on people and their well-being.

(2) The evaluation, through observation, sampling, testing, and with the use of quantified measurement techniques, of the magnitude of workplace environmental factors and stresses.

(3) The prescription of methods for prevention, elimination, control, or reduction of environmental factors and stresses and their effects. Methods include the following:

(A) Engineering.

(B) Administrative control.

(C) Personnel protective equipment.

(D) Training.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-7"Industrial hygiene" defined

     Sec. 7. As used in this chapter, "industrial hygiene" means the science and practice of anticipating, recognizing, evaluating, and controlling the environmental factors and stresses arising in or from the workplace that may cause sickness, impaired health and well-being, or significant discomfort among workers and the general community.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-8"Industrial hygienist (IH)" defined

     Sec. 8. As used in this chapter, "industrial hygienist (IH)" means a person who has the education and experience to practice industrial hygiene.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-9"Industrial hygienist in training (IHIT)" defined

     Sec. 9. As used in this chapter, "industrial hygienist in training (IHIT)" means a person who has received the designation industrial hygienist in training from the American Board of Industrial Hygiene and whose certification has not lapsed or been revoked.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-10Prohibitions against use of title

     Sec. 10. (a) A person may not use the title industrial hygienist, use the initials IH, or represent to the public that the person is an industrial hygienist, unless the person is an industrial hygienist as defined in this chapter.

     (b) A person may not use the title industrial hygienist in training, use the initials IHIT, or represent to the public that the person is an industrial hygienist in training, unless the person is an industrial hygienist in training as defined in this chapter.

     (c) A person may not use the title certified industrial hygienist, use the initials CIH, or represent to the public that the person is a certified industrial hygienist, unless the person is a certified industrial hygienist as defined in this chapter.

     (d) A person may not use a title that incorporates the words industrial hygiene or a variation of the words industrial hygiene unless the person meets the requirements of:

(1) an industrial hygienist;

(2) an industrial hygienist in training; or

(3) a certified industrial hygienist;

as defined in this chapter.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-11-11Violations

     Sec. 11. A person who violates this chapter commits a Class A misdemeanor.

As added by P.L.175-1996, SEC.1.

 

IC 24-4-12Chapter 12. Unused Property Market Regulation
           24-4-12-1Chapter exemptions
           24-4-12-2"Unused property market" defined
           24-4-12-3"Unused property merchant" defined
           24-4-12-4"New and unused property" defined
           24-4-12-5"Baby food" and "infant formula" defined
           24-4-12-6"Nonprescription drug" and "over the counter drug" defined
           24-4-12-7"Medical device" defined
           24-4-12-8Products prohibited from sale at unused property market
           24-4-12-9Receipts required
           24-4-12-10Improper maintenance of or failure to produce receipts
           24-4-12-11Chapter violations

 

IC 24-4-12-1Chapter exemptions

     Sec. 1. This chapter does not apply to the following:

(1) An event organized for the exclusive benefit of:

(A) a community chest;

(B) a fund;

(C) a foundation;

(D) an association; or

(E) a corporation;

organized and operated for religious, educational, or charitable purposes, unless part of an admission fee, a parking fee charged to vendors or prospective purchasers, or the gross receipts or net earnings from the sale or exchange of personal property is shared with a private shareholder or person organizing or conducting the event.

(2) An event where all personal property offered for sale or displayed is new, and all persons selling, exchanging, or offering or displaying personal property for sale or exchange are manufacturers or authorized representatives of manufacturers or distributors.

(3) The sale of a motor vehicle or trailer that is required to be registered or is subject to state motor vehicle registration law.

(4) The sale of wood for fuel, ice, or livestock.

(5) Business conducted in an industry or association trade show.

(6) Property, although never used, whose style, packaging, or material clearly indicates that the property was not produced or manufactured recently.

(7) A person who sells by sample, catalog, or brochure for future delivery.

(8) The sale of arts or crafts by a person who produces the arts or crafts.

(9) A person who makes sales presentations related to a prior, individualized invitation issued to the consumer by the owner or legal occupant of the premises.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-2"Unused property market" defined

     Sec. 2. As used in this chapter, "unused property market" means an event:

(1) where a fee is charged for the sale or the exchange of personal property or where a fee is charged to a prospective buyer for admission to an area where personal property is offered or displayed for sale or exchange by two (2) or more persons;

(2) held more than six (6) times in any twelve (12) month period where personal property is offered or displayed for sale or exchange; or

(3) referred to as a "swap meet", "indoor swap meet", "flea market", or any other similar term, regardless of whether the event is held inside a building or in the open, if that event has as a primary characteristic activities that involve a series of sales sufficient in number, scope, and character to constitute a regular course of business.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-3"Unused property merchant" defined

     Sec. 3. As used in this chapter, "unused property merchant" means a person, other than a vendor or a merchant with an established retail store in the county, who transports an inventory of goods to a building, vacant lot, or other unused property market location and who, at that location, displays the goods for sale and sells the goods at retail or offers the goods for sale at retail.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-4"New and unused property" defined

     Sec. 4. As used in this chapter, "new and unused property" means tangible personal property that:

(1) was acquired by an unused property merchant directly from the producer, manufacturer, wholesaler, or retailer in the ordinary course of business; and

(2) has not been used since its production or manufacture or that is in its original and unopened package or container, if the personal property was packaged when originally produced or manufactured.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-5"Baby food" and "infant formula" defined

     Sec. 5. As used in this chapter, "baby food" or "infant formula" means any food manufactured, packaged, and labeled specifically for sale for consumption by a child under two (2) years of age.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-6"Nonprescription drug" and "over the counter drug" defined

     Sec. 6. As used in this chapter, "nonprescription drug" or "over the counter drug" means nonnarcotic medicine or a drug that is sold without a prescription and is prepackaged for use by the consumer, prepared by the manufacturer or producer for use by the consumer, properly labeled, and unadulterated under requirements of the state and the federal governments. However, the terms do not include herbal products, dietary supplements, botanical extracts, or vitamins.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-7"Medical device" defined

     Sec. 7. As used in this chapter, "medical device" means an instrument, an apparatus, an implement, a machine, a contrivance, an implant, an in vitro reagent, a tool, or other similar or related article, including a component part or an accessory:

(1) required under federal law to bear the label "Caution: Federal law requires dispensing by or on the order of a physician"; or

(2) that is defined by federal law as a medical device and that is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of disease in humans or animals or is intended to affect the structure or any function of the body of humans or animals, that does not achieve any of its principal intended purposes through chemical action within or on the body of humans or animals, and that is not dependent upon being metabolized for achievement of its principal intended purposes.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-8Products prohibited from sale at unused property market

     Sec. 8. (a) This section does not apply to a person who keeps available for public inspection a written authorization identifying that person as an authorized representative of the manufacturer or distributor of a product listed in subsection (b), if the authorization is not false, fraudulent, or fraudulently obtained.

     (b) An unused property merchant may not offer at an unused property market for sale, or knowingly permit the sale of, baby food, infant formula, cosmetics, personal care products, nonprescription drugs, medical devices, or cigarettes or other tobacco products.

As added by P.L.99-1999, SEC.1. Amended by P.L.160-2005, SEC.16.

 

IC 24-4-12-9Receipts required

     Sec. 9. An unused property merchant shall maintain receipts for the purchase of new and unused property. A receipt must contain the following information:

(1) The date of the transaction.

(2) The name and address of the person, corporation, or entity from whom the new and unused property was acquired.

(3) An identification and description of the new and unused property acquired.

(4) The price paid for the new and unused property.

(5) The signature of the seller and buyer of the new and unused property.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-10Improper maintenance of or failure to produce receipts

     Sec. 10. It is a violation of this chapter for an unused property merchant required to maintain receipts under this chapter to knowingly do any of the following:

(1) Falsify, obliterate, or destroy the receipts.

(2) Refuse or fail upon request to make the receipts available for inspection within a period that is reasonable based on the individual circumstances surrounding the request. However, this chapter does not require the unused property merchant to possess the receipt on or about the merchant's person without reasonable notice.

(3) Fail to maintain the receipts required by this chapter for at least two (2) years after the date of the transaction.

As added by P.L.99-1999, SEC.1.

 

IC 24-4-12-11Chapter violations

     Sec. 11. A person who violates this chapter commits:

(1) a Class B misdemeanor on the first violation;

(2) a Class A misdemeanor on the second violation; and

(3) a Level 6 felony on the third and any subsequent violation.

As added by P.L.99-1999, SEC.1. Amended by P.L.158-2013, SEC.272.

 

IC 24-4-13Chapter 13. Used Jewelry Sales
           24-4-13-0.5Application
           24-4-13-1Definitions
           24-4-13-2Applicability
           24-4-13-3Books, accounts, and records
           24-4-13-4Examination of records by law enforcement agencies
           24-4-13-5Unlawful transactions
           24-4-13-6Violations
           24-4-13-7Confidentiality

 

IC 24-4-13-0.5Application

     Sec. 0.5. (a) This chapter applies only to a jeweler that is a retail merchant that:

(1) is located in an area zoned for commercial land use;

(2) is open to the public;

(3) primarily sells jewelry; and

(4) remitted at least ten thousand dollars ($10,000) of Indiana gross retail and use tax during the immediately preceding calendar year as a result of retail sales of jewelry.

     (b) This chapter does not apply to the following:

(1) A precious metal dealer regulated under IC 24-4-19.

(2) A valuable metal dealer (as defined in IC 25-37.5-1-1(b)).

(3) A pawnbroker licensed under IC 28-7-5.

As added by P.L.222-2013, SEC.2.

 

IC 24-4-13-1Definitions

     Sec. 1. For purposes of this chapter:

(1) "jewelry" means personal ornaments made of precious metals that may or may not contain precious, semiprecious, or imitation stones;

(2) "used jewelry" means jewelry previously purchased at retail, acquired by gift, or obtained in some other fashion by a consumer that is later sold to a jeweler by a consumer or a person who has acquired jewelry from a consumer;

(3) "jeweler" means a person engaged in the purchase and resale of jewelry;

(4) "person" means an individual, a firm, an association, a limited liability company, a partnership, a joint stock association, a trust, or a corporation; and

(5) "seller" means a consumer or other person who sells used jewelry to a jeweler.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-2Applicability

     Sec. 2. A jeweler who purchases or resells used jewelry must comply with this chapter. However, this chapter does not apply to jewelry used by a customer as a trade-in toward the purchase of a new piece of jewelry.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-3Books, accounts, and records

     Sec. 3. (a) A jeweler shall keep and use in the jeweler's business the books, accounts, and records necessary to determine whether the jeweler is complying with this chapter.

     (b) A jeweler shall preserve the books, accounts, and records, including cards used in the card system, for at least two (2) years after making the final entry on any purchase recorded.

     (c) The jeweler shall keep the books and records so that the business of purchasing for resale of used jewelry may be readily separated and distinguished from any other business in which the jeweler is engaged.

     (d) If a jeweler, in the conduct of the business, purchases an article of used jewelry from a seller, the purchase shall be evidenced by a bill of sale properly signed by the seller. All bills of sale must be in duplicate and must list the following separate items:

(1) Date of sale.

(2) Amount of consideration.

(3) Name of jeweler.

(4) Description of each article of used jewelry sold. However, if multiple articles of used jewelry of a similar nature are delivered together in one (1) transaction, the description of the articles is adequate if the description contains the quantity of the articles delivered and a physical description of the type of articles delivered, including any unique identifying marks, numbers, names, letters, or special features.

(5) Signature of seller.

(6) Address of seller.

(7) Date of birth of the seller.

(8) The type of government issued identification used to verify the identity of the seller, together with the name of the governmental agency that issued the identification and the identification number present on the government issued identification.

     (e) The original copy of the bill of sale shall be retained by the jeweler. The second copy shall be delivered to the seller by the jeweler at the time of sale. The heading on all bill of sale forms must be in boldface type.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-4Examination of records by law enforcement agencies

     Sec. 4. (a) The jeweler shall make the records and information under section 3 of this chapter available for examination upon the request of a law enforcement agency (as defined in IC 5-2-5-1).

     (b) The law enforcement agency under subsection (a) shall determine if:

(1) the records are sufficient; and

(2) the jeweler has made the information reasonably available.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-5Unlawful transactions

     Sec. 5. A jeweler may not purchase used jewelry:

(1) from an individual less than eighteen (18) years of age; or

(2) that the jeweler believes or should have reason to believe is stolen property acquired as a result of a crime.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-6Violations

     Sec. 6. A person who violates this chapter commits a Class A misdemeanor.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-13-7Confidentiality

     Sec. 7. (a) Records and information generated by a jeweler in the course of business are confidential under IC 5-14-3-4.

     (b) A law enforcement officer (as defined in IC 3-6-6-36(a)) may obtain or receive records and information described in subsection (a) relating to the purchase of used jewelry for use in investigating crime.

     (c) Law enforcement officials may disclose the name and address of the jeweler to an adverse claimant in the case of a dispute over ownership of property in possession of the jeweler.

As added by P.L.97-2003, SEC.1.

 

IC 24-4-14Chapter 14. Persons Holding a Customer's Personal Information
           24-4-14-1Applicability
           24-4-14-2"Customer"
           24-4-14-3"Dispose of"
           24-4-14-4"Encrypted"
           24-4-14-5"Person"
           24-4-14-6"Personal information"
           24-4-14-7"Redacted"
           24-4-14-8Disposal of personal information; infraction

 

IC 24-4-14-1Applicability

     Sec. 1. This chapter does not apply to the following:

(1) The executive, judicial, or legislative department of state government or any political subdivision.

(2) A unit (as defined in IC 36-1-2-23).

(3) The office of county auditor.

(4) The office of county treasurer.

(5) The office of county recorder.

(6) The office of county surveyor.

(7) A county sheriff's department.

(8) The office of county coroner.

(9) The office of county assessor.

(10) A person who engages in the business of waste collection, except to the extent the person holds a customer's personal information directly in connection with the business of waste collection.

(11) A person who maintains and complies with a disposal program under:

(A) the federal USA Patriot Act (P.L.107-56);

(B) Executive Order 13224;

(C) the federal Driver's Privacy Protection Act (18 U.S.C. 2721 et seq.);

(D) the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);

(E) the federal Financial Modernization Act of 1999 (15 U.S.C. 6801 et seq.); or

(F) the federal Health Insurance Portability and Accountability Act (HIPAA) (P.L.104-191);

if applicable.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-2"Customer"

     Sec. 2. As used in this chapter, "customer" means a person who:

(1) has:

(A) received; or

(B) contracted for;

the direct or indirect provision of goods or services from another person holding the person's personal information; or

(2) provides the person's personal information to another person in connection with a transaction with a nonprofit corporation or charitable organization.

The term includes a person who pays a commission, a consignment fee, or another fee contingent on the completion of a transaction.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-3"Dispose of"

     Sec. 3. As used in this chapter, "dispose of" means to discard or abandon the personal information of a customer in an area accessible to the public. The term includes placing the personal information in a container for trash collection.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-4"Encrypted"

     Sec. 4. For purposes of this chapter, personal information is "encrypted" if the personal information:

(1) has been transformed through the use of an algorithmic process into a form in which there is a low probability of assigning meaning without use of a confidential process or key; or

(2) is secured by another method that renders the personal information unreadable or unusable.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-5"Person"

     Sec. 5. As used in this chapter, "person" means an individual, a partnership, a corporation, a limited liability company, or another organization.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-6"Personal information"

     Sec. 6. As used in this chapter, "personal information" has the meaning set forth in IC 24-4.9-2-10. The term includes information stored in a digital format.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-7"Redacted"

     Sec. 7. (a) For purposes of this chapter, personal information is "redacted" if the personal information has been altered or truncated so that not more than the last four (4) digits of:

(1) a driver's license number;

(2) a state identification number; or

(3) an account number;

is accessible as part of personal information.

     (b) For purposes of this chapter, personal information is "redacted" if the personal information has been altered or truncated so that not more than five (5) digits of a Social Security number are accessible as part of personal information.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-14-8Disposal of personal information; infraction

     Sec. 8. A person who disposes of the unencrypted, unredacted personal information of a customer without shredding, incinerating, mutilating, erasing, or otherwise rendering the information illegible or unusable commits a Class C infraction. However, the offense is a Class A infraction if:

(1) the person violates this section by disposing of the unencrypted, unredacted personal information of more than one hundred (100) customers; or

(2) the person has a prior unrelated judgment for a violation of this section.

As added by P.L.125-2006, SEC.5.

 

IC 24-4-15Chapter 15. Automated External Defibrillators in Health Clubs
           24-4-15-1"Defibrillator"
           24-4-15-2"Health club"
           24-4-15-3"Person"
           24-4-15-4"State department"
           24-4-15-5Health club requirements
           24-4-15-6Immunity
           24-4-15-7Inspections
           24-4-15-8Violations
           24-4-15-9Rules

 

IC 24-4-15-1"Defibrillator"

     Sec. 1. As used in this chapter, "defibrillator" means an automated external defibrillator.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-2"Health club"

     Sec. 2. (a) As used in this chapter, "health club" means an establishment at which:

(1) an individual, a corporation, a limited liability company, a partnership, an association, a firm, an educational institution, or any other business enterprise offers:

(A) instruction, training, or assistance in physical fitness that is focused primarily on cardiovascular exertion; or

(B) facilities for the:

(i) preservation;

(ii) maintenance;

(iii) encouragement; or

(iv) development;

of physical fitness or well-being; and

(2) at least:

(A) fifty (50) persons have:

(i) purchased; or

(ii) paid a fee for;

the right to use the physical fitness facilities; or

(B) thirty (30) pieces of motorized physical fitness equipment are provided for use by individuals.

     (b) The term includes the following:

(1) Health spas and studios.

(2) Sports centers.

(3) Weight control studios.

(4) Gymnasiums and workout centers in schools, colleges, and universities.

     (c) The term does not include a workout center in:

(1) a hospital licensed under IC 16-21 or a health facility licensed under IC 16-28;

(2) a hotel or motel, unless the workout center allows membership by individuals who are not guests of the hotel or motel; or

(3) an apartment, a condominium, or a town home complex.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-3"Person"

     Sec. 3. As used in this chapter, "person" means an individual, a corporation, a limited liability company, a partnership, an association, a firm, or an educational institution.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-4"State department"

     Sec. 4. As used in this chapter, "state department" refers to the state department of health.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-5Health club requirements

     Sec. 5. An owner or operator of a health club shall do the following:

(1) Ensure that a defibrillator is:

(A) located on the health club premises and easily accessible to the health club staff, members, and guests; or

(B) if:

(i) the health club is located on the premises of a business of which the health club is a part; and

(ii) the business has an emergency response team;

located on the premises of the business and easily accessible to the emergency response team.

(2) Employ at least one (1) individual who:

(A) has satisfactorily completed a course consistent with the most current national guidelines for; and

(B) is currently certified in;

cardiopulmonary resuscitation and defibrillator use.

(3) Reasonably ensure that at least one (1) individual described in subdivision (2) is on the health club premises when staff is present at the health club during the health club's business hours.

(4) A health club that is not staffed must have the following on the premises:

(A) A telephone for 911 telephone call access.

(B) A sign in plain view containing an advisory warning that indicates that members of the unstaffed health club should be aware that working out alone may pose risks to a health club member's health and safety.

(C) A sign in plain view providing instruction in the use of the defibrillator and in cardiopulmonary resuscitation.

(5) Ensure compliance with the requirements set forth in IC 16-31-6.5.

(6) Post a sign at each entrance to the health club that indicates the location of each defibrillator.

As added by P.L.129-2007, SEC.2. Amended by P.L.3-2008, SEC.173; P.L.134-2008, SEC.14.

 

IC 24-4-15-6Immunity

     Sec. 6. A person is immune from civil liability for acts or omissions involving the use of or the failure to use a defibrillator located on the premises of a health club under this chapter as provided under IC 34-30-12-1.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-7Inspections

     Sec. 7. The:

(1) state department and the division of fire and building safety may inspect a health club at any time:

(A) according to rules adopted by the state department; or

(B) in response to a filed complaint alleging noncompliance with this chapter; and

(2) fire department that serves the area in which a health club is located shall inspect the health club for compliance with this chapter if the health club is inspected as part of an inspection program under IC 36-8-17-8.

As added by P.L.129-2007, SEC.2. Amended by P.L.134-2008, SEC.15.

 

IC 24-4-15-8Violations

     Sec. 8. A person who violates this chapter commits a Class C infraction.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-15-9Rules

     Sec. 9. The state department may adopt rules under IC 4-22-2 to implement this chapter.

As added by P.L.129-2007, SEC.2.

 

IC 24-4-16Chapter 16. Architectural Salvage Material Dealers
           24-4-16-1Applicability of chapter
           24-4-16-2"Architectural salvage material"
           24-4-16-3"Dealer"
           24-4-16-4Transfer of ownership; identification
           24-4-16-5Dealer restrictions
           24-4-16-6Dealer records; inspection
           24-4-16-7Dealer duty to hold architectural salvage material
           24-4-16-8Confidentiality of dealer records and other information
           24-4-16-9Violations; penalties

 

IC 24-4-16-1Applicability of chapter

     Sec. 1. This chapter does not apply to the purchase of valuable metal (as defined in IC 25-37.5-1-1(a)) by a valuable metal dealer regulated under IC 25-37.5.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-2"Architectural salvage material"

     Sec. 2. (a) As used in this chapter, "architectural salvage material" means an item originally installed on or in a dwelling, a business, or any other structure and subsequently removed from the dwelling, business, or other structure.

     (b) The term includes the following:

(1) Aluminum, wood, or vinyl siding.

(2) Balustrades or other stair parts.

(3) Bathroom or kitchen cabinets or fixtures.

(4) Doors, door architraves, or doorknobs.

(5) Light fixtures.

(6) Mantelpieces.

(7) Plumbing.

(8) Shutters.

(9) Windows and window architraves, including stained glass or leaded glass window panes.

(10) Wood trim.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-3"Dealer"

     Sec. 3. As used in this chapter, "dealer" means a person who purchases or otherwise acquires architectural salvage material for resale or reuse as part of the normal course of the person's business.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-4Transfer of ownership; identification

     Sec. 4. Before a person may sell or otherwise transfer ownership of architectural salvage material to a dealer, the person must present government issued identification to the dealer to verify the identity of the person.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-5Dealer restrictions

     Sec. 5. A dealer may not purchase or otherwise obtain architectural salvage material:

(1) from a person who is less than eighteen (18) years of age; or

(2) that the dealer believes or should have reason to believe is stolen property acquired as a result of a crime.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-6Dealer records; inspection

     Sec. 6. (a) A dealer shall keep a record book that contains the following information concerning architectural salvage material received by the dealer:

(1) An accurate description of any architectural salvage material received by the dealer. If multiple articles of a similar nature that do not contain an identification or serial number are delivered together in one (1) transaction to the dealer, the description of the articles is adequate if the description contains:

(A) the quantity of the articles delivered; and

(B) a physical description of the type of articles delivered, including any unique identifying marks, numbers, names, letters, or special features.

(2) The date and time of the transaction.

(3) The:

(A) name, address, date of birth, and telephone number; and

(B) signature;

of the person who sold or otherwise transferred ownership of the architectural salvage material to the dealer.

(4) The:

(A) type of government issued identification used to verify the identity of the person who sold or otherwise transferred ownership of the architectural salvage material to the dealer as described in section 4 of this chapter;

(B) name of the governmental agency that issued the identification; and

(C) identification number printed on the government issued identification.

     (b) The record book described in subsection (a) must be open to inspection by a law enforcement officer at all reasonable times.

     (c) A dealer shall retain a record book described in subsection (a) for at least two (2) years after the date of the most recent transaction recorded in the book.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-7Dealer duty to hold architectural salvage material

     Sec. 7. If a dealer receives a notice from a law enforcement agency to hold architectural salvage material possessed by the dealer, the dealer shall hold the architectural salvage material for at least five (5) business days after the date the dealer receives the notice.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-8Confidentiality of dealer records and other information

     Sec. 8. (a) Records and information generated by a dealer concerning architectural salvage material are confidential under IC 5-14-3-4.

     (b) A law enforcement officer may obtain or receive records and information described in subsection (a) for use in the official law enforcement purpose of investigating crime.

     (c) A law enforcement officer may disclose the name and address of a dealer to an adverse claimant in the case of a dispute over ownership of architectural salvage material in possession of the dealer.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16-9Violations; penalties

     Sec. 9. A person who violates this chapter commits a Class A infraction.

As added by P.L.63-2008, SEC.1.

 

IC 24-4-16.4Chapter 16.4. Sexually Explicit Materials
           24-4-16.4-0.1Repealed
           24-4-16.4-1"Person"
           24-4-16.4-2"Sexually explicit materials"
           24-4-16.4-3Restrictions on offering for sale or selling sexually explicit materials
           24-4-16.4-4Violations

 

IC 24-4-16.4-0.1Repealed

As added by P.L.220-2011, SEC.389. Repealed by P.L.63-2012, SEC.28.

 

IC 24-4-16.4-1"Person"

     Sec. 1. As used in this chapter, "person" has the meaning set forth in IC 35-31.5-2-234.

As added by P.L.92-2008, SEC.3. Amended by P.L.114-2012, SEC.48.

 

IC 24-4-16.4-2"Sexually explicit materials"

     Sec. 2. (a) As used in this chapter, "sexually explicit materials" means a product or service:

(1) that is harmful to minors (as described in IC 35-49-2-2), even if the product or service is not intended to be used by or offered to a minor; or

(2) that is designed for use in, marketed primarily for, or provides for:

(A) the stimulation of the human genital organs; or

(B) masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.

     (b) The term does not include:

(1) birth control or contraceptive devices; or

(2) services, programs, products, or materials provided by a:

(A) communications service provider (as defined in IC 8-1-32.6-3);

(B) physician; or

(C) public or nonpublic school.

As added by P.L.92-2008, SEC.3.

 

IC 24-4-16.4-3Restrictions on offering for sale or selling sexually explicit materials

     Sec. 3. A person or an employee or agent of a person may not offer for sale or sell sexually explicit materials unless a registration and statement are properly filed under IC 23-1-55.

As added by P.L.92-2008, SEC.3. Amended by P.L.1-2009, SEC.133.

 

IC 24-4-16.4-4Violations

     Sec. 4. A person or an employee or agent of a person who knowingly or intentionally offers for sale or sells sexually explicit materials in violation of this chapter commits unregistered sale of sexually explicit materials, a Class B misdemeanor.

As added by P.L.92-2008, SEC.3.

 

IC 24-4-17Chapter 17. Retail Consignment Sales
           24-4-17-1Application
           24-4-17-2"Bona fide purchaser"
           24-4-17-3"Claim"
           24-4-17-4"Commission"
           24-4-17-5"Creditor"
           24-4-17-6"On consignment"
           24-4-17-7"Retail merchant"
           24-4-17-8Trust property; retail merchant as trustee; exceptions; liability
           24-4-17-9Funds from sale of item on consignment as trust funds
           24-4-17-10Trust property exempt from claims against the retail merchant
           24-4-17-11Conditions of accepting an item for commission on consignment; remedies

 

IC 24-4-17-1Application

     Sec. 1. (a) Except as provided in subsections (b) through (d), this chapter applies to an item delivered to a retail merchant after June 30, 2009.

     (b) This chapter does not apply to an item that has a value less than fifty dollars ($50).

     (c) This chapter does not apply to an item offered at auction, or held by an auctioneer before or after being offered at auction.

     (d) If a provision of this chapter conflicts with the Uniform Commercial Code (IC 26-1), the Uniform Commercial Code controls with respect to that provision.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-2"Bona fide purchaser"

     Sec. 2. As used in this chapter, "bona fide purchaser" means a person who in good faith makes a purchase without notice of any outstanding rights of others.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-3"Claim"

     Sec. 3. As used in this chapter, "claim" means a right to payment, whether or not the right is reduced to judgment, liquidated, fixed, matured, disputed, secured, legal, or equitable. The term includes costs of collection and attorney's fees only to the extent that the laws of Indiana permit the holder of the claim to recover them in an action against the obligor.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-4"Commission"

     Sec. 4. As used in this chapter, "commission" means the fee that a consignor and a retail merchant have agreed that the retail merchant may retain after the sale of the consignor's item to a third party. The term includes any form of compensation, including a percentage of the actual selling price of an item.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-5"Creditor"

     Sec. 5. As used in this chapter, "creditor" means a person who has a claim.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-6"On consignment"

     Sec. 6. As used in this chapter, "on consignment" means that no:

(1) title to;

(2) estate in; or

(3) right to possession of;

an item superior to that of the consignor vests in the consignee, even if the consignee has the authority to transfer the consignor's right, title, and interest in the work of art to a third party.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-7"Retail merchant"

     Sec. 7. As used in this chapter, "retail merchant" means a retail merchant making a retail transaction as described in IC 6-2.5-4-1.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-8Trust property; retail merchant as trustee; exceptions; liability

     Sec. 8. (a) When a person delivers an item to a retail merchant for the purpose of:

(1) sale;

(2) exhibition; or

(3) sale and exhibition;

for a commission, the delivery to and acceptance of the item by the retail merchant places the item on consignment, unless the delivery is under an outright sale for which the person receives full compensation for the item upon delivery.

     (b) A retail merchant described in subsection (a) is the agent of the person with respect to an item described in subsection (a).

     (c) An item described in subsection (a) is trust property and the retail merchant is trustee for the benefit of the person until the item is sold to a bona fide purchaser or returned to the person.

     (d) Except as provided in subsection (e), this subsection does not apply to a deposit placed by a customer on an item. The proceeds of the sale of an item described in subsection (a) are trust property. The retail merchant is trustee for the benefit of the person until the amount due the person from the sale is paid in full. Unless the retail merchant and the person expressly agree otherwise in writing:

(1) a retail merchant shall pay the person the proceeds of the sale of an item not later than thirty (30) days after the retail merchant receives the payment; and

(2) if the sale of the item is on installment, the retail merchant shall first apply funds from an installment to pay any balance due to the person on the sale.

The terms of an express written agreement that alters a provision set forth in subdivision (1) or (2) must be clear and conspicuous.

     (e) If:

(1) a customer who has placed a deposit on an item purchases the item; and

(2) the customer's deposit is used in whole or in part to pay for the item;

the deposit shall be treated in accordance with subsection (d).

     (f) Except as provided in subsection (g), if an item is lost or damaged while in the possession of a retail merchant, the retail merchant is strictly liable for the loss or damage in an amount equal to the value of the item as set forth in section 11(a)(1) of this chapter.

     (g) A retail merchant is not liable for the loss of or damage to an item in the retail merchant's possession if:

(1) the loss or damage occurs more than thirty (30) days after:

(A) the date by which the person must remove the item, as specified in a written agreement between the retail merchant and the person; or

(B) the date on which the retail merchant sends written notice to the person by registered mail at the person's last known address that the person must remove the item, if a written agreement described in clause (A) does not exist; and

(2) the item was in the retail merchant's possession at the time of the loss or damage because the person failed to remove the item.

As added by P.L.85-2009, SEC.2.

 

IC 24-4-17-9Funds from sale of item on consignment as trust funds

     Sec. 9. (a) If an item is trust property under section 8 of this chapter when a retail merchant initially receives it, the item remains trust property until the balance due the consignor from the sale of the item is paid in full, even if the retail merchant directly or indirectly purchases the item for the retail merchant's own account.

     (b) If a retail merchant resells an item described in subsection (a) to a bona fide purchaser before the consignor has been paid in full, the item ceases to be trust property and the proceeds of the resale are trust funds in the hands of the retail merchant for the benefit of the consignor to the extent necessary to pay any balance due the consignor. The trusteeship of the proceeds continues until the fiduciary obligation of the retail merchant with respect to the transaction is discharged in full.

As added by P.L.85-2009, SEC.2. Amended by P.L.1-2010, SEC.95.

 

IC 24-4-17-10Trust property exempt from claims against the retail merchant

     Sec. 10. Trust property under section 8 or 9 of this chapter is not subject to a claim, lien, or security interest of a creditor of the retail merchant.

As added by P.L.85-2009, SEC.2. Amended by P.L.1-2010, SEC.96.

 

IC 24-4-17-11Conditions of accepting an item for commission on consignment; remedies

     Sec. 11. (a) A retail merchant may accept an item for commission on consignment from a person only if, not later than seven (7) days after accepting the item, the retail merchant enters into a written contract with the person that specifies the following:

(1) The value of the item.

(2) The time within which the proceeds from the sale must be paid to the consignor if the item is sold.

(3) The commission the retail merchant is to receive if the item is sold.

(4) The minimum price for the sale of the item.

(5) Any discounts ordinarily given by the retail merchant in the regular course of business.

     (b) If a retail merchant violates this section, the consignor may bring an action in a court with jurisdiction to void the consignor's contractual obligations to the retail merchant. A retail merchant who violates this section is liable to the consignor in an amount equal to:

(1) fifty dollars ($50);

(2) any actual, consequential, or incidental damages sustained by the consignor because of the violation of this section; and

(3) reasonable attorney's fees.

As added by P.L.85-2009, SEC.2. Amended by P.L.1-2010, SEC.97.

 

IC 24-4-18Chapter 18. Criminal History Providers
           24-4-18-1"Criminal history information"
           24-4-18-2"Criminal history provider"
           24-4-18-3"Criminal history report"
           24-4-18-4"Criminal justice agency"
           24-4-18-5"Law enforcement agency"
           24-4-18-6Providing criminal history information; prohibited information; exceptions
           24-4-18-7Criminal history data updates
           24-4-18-8Violation is deceptive act; application of the federal Fair Credit Reporting Act

 

IC 24-4-18-1"Criminal history information"

     Sec. 1. (a) As used in this chapter, "criminal history information" means information:

(1) concerning a criminal conviction in Indiana; and

(2) available in records kept by a clerk of a circuit, superior, city, or town court with jurisdiction in Indiana.

     (b) The term consists of the following:

(1) Identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges.

(2) Information, including a photograph, regarding a sex or violent offender (as defined in IC 11-8-8-5) obtained through sex or violent offender registration under IC 11-8-8.

(3) Any disposition, including sentencing, and correctional system intake, transfer, and release.

(4) A photograph of the person who is the subject of the information described in subdivisions (1) through (3).

     (c) The term includes fingerprint information described in IC 10-13-3-24(f).

As added by P.L.69-2012, SEC.1. Amended by P.L.112-2013, SEC.1.

 

IC 24-4-18-2"Criminal history provider"

     Sec. 2. (a) As used in this section, "criminal history provider" means a person or an organization that compiles a criminal history report and either uses the report or provides the report to a person or an organization other than a criminal justice agency, a law enforcement agency, or another criminal history provider.

     (b) The term does not include the following:

(1) A criminal justice agency.

(2) A law enforcement agency.

(3) Any:

(A) person connected with or employed by:

(i) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(ii) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives income from legitimate gathering, writing, editing, and interpretation of news;

(B) person connected with a licensed radio or television station as an owner or official, or as an editorial or reportorial employee who receives income from legitimate gathering, writing, editing, interpreting, announcing, or broadcasting of news; or

(C) other person who gathers, records, compiles, or disseminates:

(i) criminal history information; or

(ii) criminal history reports;

solely for journalistic, academic, governmental, or legal research purposes.

(4) The clerk of a circuit, superior, city, or town court.

As added by P.L.69-2012, SEC.1. Amended by P.L.112-2013, SEC.2.

 

IC 24-4-18-3"Criminal history report"

     Sec. 3. (a) As used in this section, "criminal history report" means criminal history information that has been compiled primarily for the purposes of evaluating a particular person's eligibility for:

(1) employment in Indiana;

(2) housing in Indiana;

(3) a license, permit, or occupational certification issued under state law; or

(4) insurance, credit, or another financial service, if the insurance, credit, or financial service is to be provided to a person residing in Indiana.

     (b) The term does not include information compiled primarily for the purpose of journalistic, academic, governmental, or legal research.

     (c) The term includes information described in subsection (a) and not excluded under subsection (b), regardless of the geographical location of the person who compiled the information.

As added by P.L.69-2012, SEC.1. Amended by P.L.112-2013, SEC.3.

 

IC 24-4-18-4"Criminal justice agency"

     Sec. 4. As used in this section, "criminal justice agency" has the meaning set forth in IC 10-13-3-6.

As added by P.L.69-2012, SEC.1.

 

IC 24-4-18-5"Law enforcement agency"

     Sec. 5. As used in this section, "law enforcement agency" has the meaning set forth in IC 10-13-3-10.

As added by P.L.69-2012, SEC.1.

 

IC 24-4-18-6Providing criminal history information; prohibited information; exceptions

     Sec. 6. (a) Except as provided in subsection (b), a criminal history provider may not knowingly provide a criminal history report that provides criminal history information relating to the following:

(1) A record that has been expunged by:

(A) marking the record as expunged; or

(B) removing the record from public access.

(2) A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.

(3) A record indicating a conviction of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony or Level 6 felony conviction:

(A) has been entered as a Class A misdemeanor conviction; or

(B) has been converted to a Class A misdemeanor conviction.

(4) A record that the criminal history provider knows is inaccurate.

     (b) A criminal history provider may provide information described in subsection (a)(1) through (a)(3) if the person requesting the criminal history report is:

(1) required by state or federal law to obtain the information; or

(2) the state or a political subdivision, and the information will be used solely in connection with the issuance of a public bond.

As added by P.L.69-2012, SEC.1. Amended by P.L.112-2013, SEC.4; P.L.158-2013, SEC.273; P.L.168-2014, SEC.35.

 

IC 24-4-18-7Criminal history data updates

     Sec. 7. (a) A criminal history provider may not knowingly include criminal history information in a criminal history report if the criminal history information fails to reflect material changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.

     (b) A criminal history provider that provides a criminal history report and fails to reflect material criminal history information does not violate this section if the material criminal history information was not contained in the official record at least sixty (60) days before the date the criminal history report is delivered.

As added by P.L.69-2012, SEC.1. Amended by P.L.112-2013, SEC.5.

 

IC 24-4-18-8Violation is deceptive act; application of the federal Fair Credit Reporting Act

     Sec. 8. (a) A violation of section 6 or 7 of this chapter is a deceptive act that is actionable under IC 24-5-0.5-4.

     (b) This section does not prohibit an individual from bringing an action on the individual's own behalf under the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

As added by P.L.69-2012, SEC.1. Amended by P.L.13-2013, SEC.64; P.L.112-2013, SEC.6.

 

IC 24-4-19Chapter 19. Precious Metal Dealers
           24-4-19-1Application
           24-4-19-2"Jewelry"
           24-4-19-3"Mint issued coin"
           24-4-19-4"Permanent place of business"
           24-4-19-5"Person"
           24-4-19-6"Precious metal"
           24-4-19-7"Precious metal dealer"
           24-4-19-8"Purchase"
           24-4-19-9"Seller"
           24-4-19-10"Used jewelry"
           24-4-19-11Purchase or resale of precious metal
           24-4-19-12Permanent place of business requirement
           24-4-19-13Registration requirement; secretary of state; local law enforcement agencies
           24-4-19-14Seller identification; photograph of precious metal
           24-4-19-15Books, accounts, and records
           24-4-19-16Precious metal purchases reported to law enforcement agencies
           24-4-19-17Examination of records and information by law enforcement agencies
           24-4-19-18Prohibited precious metal purchases
           24-4-19-19Retention of precious metal purchases
           24-4-19-20Confidentiality of records and information
           24-4-19-21Penalty

 

IC 24-4-19-1Application

     Sec. 1. This chapter does not apply to the following:

(1) A jeweler regulated under IC 24-4-13 concerning used jewelry sales.

(2) A valuable metal dealer (as defined in IC 25-37.5-1-1(b)).

(3) A pawnbroker licensed under IC 28-7-5.

(4) The purchase or resale of a mint issued coin by a person whose primary business is buying, selling, and trading mint issued coins.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-2"Jewelry"

     Sec. 2. As used in this chapter, "jewelry" means personal ornaments made of gold, silver, or platinum that may or may not contain precious, semiprecious, or imitation stones.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-3"Mint issued coin"

     Sec. 3. As used in this chapter, "mint issued coin" means a coin that:

(1) is bought or sold as an investment in a rare or precious metal;

(2) has a collectable value greater than the face value of the coin; or

(3) is collectable or desirable due to the age, rarity, or condition of the coin.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-4"Permanent place of business"

     Sec. 4. As used in this chapter, "permanent place of business" means a fixed premises:

(1) owned by a precious metal dealer; or

(2) leased by a precious metal dealer for a term of at least twelve (12) months;

at which the precious metal dealer purchases or resells precious metal.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-5"Person"

     Sec. 5. As used in this chapter, "person" means an individual, a firm, an association, a limited liability company, a partnership, a joint stock association, a trust, or a corporation.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-6"Precious metal"

     Sec. 6. (a) As used in this chapter, "precious metal" means:

(1) used jewelry; and

(2) other used articles of personal property that:

(A) are made of gold, silver, or platinum; and

(B) were previously purchased at retail, acquired by gift, or obtained in some other fashion by a consumer.

     (b) The term does not include:

(1) mint issued coins;

(2) ingots; or

(3) industrial residue or byproducts that contain gold, silver, or platinum purchased from manufacturing firms.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-7"Precious metal dealer"

     Sec. 7. As used in this chapter, "precious metal dealer" means a person who engages in the business of purchasing precious metal for the purpose of reselling the precious metal in any form.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-8"Purchase"

     Sec. 8. As used in this chapter, "purchase" means to acquire property in exchange for cash, credit, or other valuable consideration.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-9"Seller"

     Sec. 9. As used in this chapter, "seller" means a consumer or other person who sells precious metal to a precious metal dealer.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-10"Used jewelry"

     Sec. 10. As used in this chapter, "used jewelry" means jewelry previously purchased at retail, acquired by gift, or obtained in some other fashion by a consumer.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-11Purchase or resale of precious metal

     Sec. 11. A precious metal dealer who purchases or resells precious metal must comply with this chapter. However, this chapter does not apply to jewelry used by a customer as a trade-in toward the purchase of a new piece of jewelry.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-12Permanent place of business requirement

     Sec. 12. A precious metal dealer may engage in the business of purchasing or reselling precious metal in Indiana only at a permanent place of business owned or leased by the precious metal dealer.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-13Registration requirement; secretary of state; local law enforcement agencies

     Sec. 13. (a) A precious metal dealer must satisfy the registration requirements described in subsections (b) and (c) before the precious metal dealer may engage in the business of purchasing or reselling precious metal at a permanent place of business in Indiana.

     (b) A precious metal dealer must submit to the secretary of state one (1) time every twelve (12) months a registration that includes the following:

(1) The name of the precious metal dealer.

(2) The addresses of all permanent places of business owned or leased by the precious metal dealer in Indiana.

(3) Any other information required by the secretary of state.

(4) A registration fee of one hundred dollars ($100), to be deposited by the secretary of state into the electronic and enhanced access fund established by IC 4-5-10-5.

     (c) A precious metal dealer must submit a registration to a law enforcement agency one (1) time every twelve (12) months for each permanent place of business owned or leased by the precious metal dealer in Indiana as follows:

(1) If the permanent place of business is located in a municipality that maintains a law enforcement agency, the registration shall be submitted to the law enforcement agency of the municipality.

(2) If the permanent place of business is not located in a municipality that maintains a law enforcement agency, the registration shall be submitted to the sheriff of the county in which the permanent place of business is located.

A registration submitted to a law enforcement agency under this subsection must include the name of the precious metal dealer, the address of the permanent place of business, any other information required by the law enforcement agency, and a registration fee of fifty dollars ($50). However, if a precious metals dealer registers more than one (1) permanent place of business with the same law enforcement agency, the precious metal dealer must pay a registration fee of fifty dollars ($50) to register all the permanent places of business with the law enforcement agency.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-14Seller identification; photograph of precious metal

     Sec. 14. (a) If a precious metal dealer purchases precious metal from a seller, the precious metal dealer shall:

(1) verify the identity of the seller by use of a government issued photographic identification;

(2) make a copy of the seller's government issued photographic identification; and

(3) take a photograph of the precious metal.

     (b) A precious metal dealer shall retain a copy of the:

(1) government issued photographic identification; and

(2) photograph;

described in subsection (a) as required in section 15(e) of this chapter.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-15Books, accounts, and records

     Sec. 15. (a) A precious metal dealer shall keep and use in the precious metal dealer's business the books, accounts, and records necessary to determine whether the precious metal dealer is complying with this chapter.

     (b) A precious metal dealer shall preserve the books, accounts, and records, including cards used in the card system, for at least two (2) years after making the final entry on any purchase recorded.

     (c) The precious metal dealer shall keep the books and records so that the business of purchasing precious metal for resale may be readily separated and distinguished from any other business in which the precious metal dealer is engaged.

     (d) If a precious metal dealer, in the conduct of the business, purchases precious metal from a seller, the purchase shall be evidenced by a bill of sale properly signed by the seller verifying the accuracy of the information in the bill of sale. All bills of sale must be in duplicate and must list the following separate items:

(1) The date of sale.

(2) The:

(A) name;

(B) address;

(C) date of birth; and

(D) driver's license number or Social Security number;

of the seller from whom the precious metal was purchased.

(3) The amount of consideration paid for the precious metal.

(4) The:

(A) name of the precious metal dealer; and

(B) address of the permanent place of business where the purchase occurred.

(5) A description of each article of precious metal sold. However, if multiple articles of precious metal of a similar nature are delivered together in one (1) transaction, the description of the articles is adequate if the description contains the quantity of the articles delivered and a physical description of the type of articles delivered, including any unique identifying marks, numbers, names, letters, or special features.

(6) The type of government issued photographic identification used to verify the identity of the seller under section 14 of this chapter, together with the name of the governmental agency that issued the photographic identification and the identification number present on the government issued photographic identification.

     (e) If a precious metal dealer purchases precious metal, the precious metal dealer shall retain as part of the books, accounts, and records kept by the precious metal dealer under this section:

(1) the original copy of the bill of sale described in subsection (d); and

(2) the:

(A) copy of the seller's government issued photographic identification; and

(B) photograph of the precious metal;

obtained by the precious metal dealer as required under section 14 of this chapter.

The second copy of the bill of sale shall be delivered to the seller by the precious metal dealer at the time of sale.

     (f) The heading on all bill of sale forms must be in boldface type.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-16Precious metal purchases reported to law enforcement agencies

     Sec. 16. (a) Each day a precious metal dealer purchases precious metal at a permanent place of business, the precious metal dealer shall report the information described in section 15(d) of this chapter concerning the precious metal to a law enforcement agency as follows:

(1) If the permanent place of business is located in a municipality that maintains a law enforcement agency, the report required under this section shall be made to the law enforcement agency of the municipality.

(2) If the permanent place of business is not located in a municipality that maintains a law enforcement agency, the report required under this section shall be made to the sheriff of the county in which the permanent place of business is located.

     (b) The information reported to a law enforcement agency under subsection (a) shall be submitted in an electronic format if requested by the law enforcement agency.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-17Examination of records and information by law enforcement agencies

     Sec. 17. (a) A precious metal dealer shall make the records and information under section 15 of this chapter available for examination upon the request of a law enforcement agency (as defined in IC 10-13-3-10).

     (b) The law enforcement agency under subsection (a) shall determine if:

(1) the records are sufficient; and

(2) the precious metal dealer has made the information reasonably available.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-18Prohibited precious metal purchases

     Sec. 18. A precious metal dealer may not purchase precious metal:

(1) from an individual less than eighteen (18) years of age; or

(2) that the precious metal dealer believes or should have reason to believe is stolen property acquired as a result of a crime.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-19Retention of precious metal purchases

     Sec. 19. (a) A precious metal dealer shall hold each article of precious metal purchased by the precious metal dealer for at least ten (10) calendar days after the date the precious metal dealer purchases the precious metal:

(1) at the precious metal dealer's permanent place of business where the purchase occurred; and

(2) separate from other precious metal.

     (b) During the ten (10) calendar days that the precious metal dealer must hold precious metal under subsection (a), the precious metal dealer:

(1) may not change the form of the precious metal; and

(2) shall allow a law enforcement officer to inspect the precious metal.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-20Confidentiality of records and information

     Sec. 20. (a) Records and information generated by a precious metal dealer in the course of business are confidential under IC 5-14-3-4.

     (b) A law enforcement officer (as defined in IC 3-6-6-36(a)) may obtain or receive records and information described in subsection (a) relating to the purchase of precious metal for use in investigating crime.

     (c) Law enforcement officials may disclose the name and address of the precious metal dealer to an adverse claimant in the case of a dispute over ownership of property in possession of the precious metal dealer.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-19-21Penalty

     Sec. 21. A person who knowingly or intentionally violates this chapter commits a Class A misdemeanor.

As added by P.L.222-2013, SEC.3.

 

IC 24-4-20Chapter 20. Foreign Sellers of Precious Metals Bullion and Currency
           24-4-20-1Definitions
           24-4-20-2Temporary registration issuance
           24-4-20-3Temporary registration expiration
           24-4-20-4Requirements for a temporary registration
           24-4-20-5Contract requirements
           24-4-20-6Foreign entity requirements
           24-4-20-7Fees

 

IC 24-4-20-1Definitions

     Sec. 1. The following definitions apply throughout this chapter:

(1) "Currency" means a coin made of gold, silver, or other metal or paper money that is or has been used as legal tender.

(2) "Foreign entity" means:

(A) if the person is a sole proprietor, an individual who does not reside in Indiana; or

(B) if the person is not a sole proprietor, a person who is not authorized under the laws of Indiana.

(3) "Person" means a sole proprietor, a partnership, a corporation, a limited liability company, or other business entity.

(4) "Precious metals bullion" means bars, ingots, or commemorative medallions of gold, silver, platinum, palladium, or a combination of these materials for which the value of the metal depends on its content and not its form.

(5) "Secretary" refers to the secretary of state.

As added by P.L.195-2016, SEC.2.

 

IC 24-4-20-2Temporary registration issuance

     Sec. 2. The secretary may issue a temporary registration in accordance with this chapter to a foreign entity that:

(1) wishes to sell precious metals bullion or currency at a trade fair or coin show in Indiana;

(2) is not otherwise lawfully authorized to conduct business in Indiana; and

(3) complies with requirements of this chapter.

As added by P.L.195-2016, SEC.2.

 

IC 24-4-20-3Temporary registration expiration

     Sec. 3. A temporary registration issued under this chapter expires not later than twenty-eight (28) days after the date on which the temporary registration is issued.

As added by P.L.195-2016, SEC.2. Amended by P.L.85-2017, SEC.92.

 

IC 24-4-20-4Requirements for a temporary registration

     Sec. 4. A foreign entity that wishes to obtain a temporary registration to sell precious metals bullion or currency at a trade fair or coin show in Indiana under this chapter must do the following:

(1) Submit an application to the secretary in the form and the manner prescribed by the secretary.

(2) Pay a fee of thirty-five dollars ($35) to the secretary.

As added by P.L.195-2016, SEC.2.

 

IC 24-4-20-5Contract requirements

     Sec. 5. A foreign entity registered under this chapter is entitled to sell precious metals bullion and currency at a trade fair or coin show in Indiana during the term of the temporary registration if the contract:

(1) is for the purchase of precious metals bullion or currency;

(2) requires physical delivery of the quantity of the precious metals bullion or currency purchased not later than twenty-eight (28) calendar days after payment in full of the purchase price; and

(3) provides for the purchaser to receive physical delivery of the quantity of precious metals bullion or currency purchased not later than twenty-eight (28) calendar days after payment in full of the purchase price.

As added by P.L.195-2016, SEC.2. Amended by P.L.85-2017, SEC.93.

 

IC 24-4-20-6Foreign entity requirements

     Sec. 6. A foreign entity may not sell precious metals bullion or currency at a trade fair or coin show in Indiana unless the foreign entity:

(1) registers with the secretary of state under this chapter; or

(2) is otherwise authorized to conduct business in Indiana.

As added by P.L.195-2016, SEC.2.

 

IC 24-4-20-7Fees

     Sec. 7. Fees collected under this chapter shall be deposited in the electronic and enhanced access fund established by IC 4-5-10-5.

As added by P.L.195-2016, SEC.2.

 

IC 24-4.4ARTICLE 4.4. FIRST LIEN MORTGAGE LENDING
           Ch. 1.General Provisions and Definitions
           Ch. 2.Miscellaneous
           Ch. 3.Administration

 

IC 24-4.4-1Chapter 1. General Provisions and Definitions
           24-4.4-1-101Short title; rules concerning licensing system for creditors and mortgage loan originators
           24-4.4-1-102Purposes; rules of construction
           24-4.4-1-103Unified coverage of subject matter; construction against implied repeal
           24-4.4-1-104Severability
           24-4.4-1-201Application; nonresident debtor
           24-4.4-1-202Exempt transactions and persons
           24-4.4-1-202.5Persons also engaging in loan brokerage business; applicability of loan broker statutes; examination by department; cooperation with securities division
           24-4.4-1-203Repealed
           24-4.4-1-204Entities that also conduct loan broker business; regulatory cooperation with securities commissioner
           24-4.4-1-205Carrying on other business
           24-4.4-1-301Definitions

 

IC 24-4.4-1-101Short title; rules concerning licensing system for creditors and mortgage loan originators

     Sec. 101. (a) This article shall be known and may be cited as the First Lien Mortgage Lending Act.

     (b) Notwithstanding any other provision of this article or IC 24-4.5, the department may adopt emergency rules under IC 4-22-2-37.1, to remain effective until codified in the Indiana Code, in order to provide for a system of licensing creditors and mortgage loan originators that meets the requirements of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (H.R. 3221 Title V) and the interpretations of that Act issued by the Secretary of Housing and Urban Development and the Consumer Financial Protection Bureau.

As added by P.L.145-2008, SEC.20. Amended by P.L.182-2009(ss), SEC.369; P.L.27-2012, SEC.2.

 

IC 24-4.4-1-102Purposes; rules of construction

     Sec. 102. (1) This article shall be liberally construed and applied to promote its underlying purposes and policies.

     (2) The underlying purposes and policies of this article are:

(a) to permit and encourage the development of fair and economically sound first lien mortgage lending practices; and

(b) to conform the regulation of first lien mortgage lending practices to applicable state and federal laws, rules, regulations, policies, and guidance.

     (3) A reference to a requirement imposed by this article includes reference to a related rule of the department adopted under this article.

     (4) A reference to a federal law in this article is a reference to the law as in effect December 31, 2016.

As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.5; P.L.89-2011, SEC.1; P.L.27-2012, SEC.3; P.L.216-2013, SEC.1; P.L.137-2014, SEC.1; P.L.186-2015, SEC.6; P.L.73-2016, SEC.1; P.L.159-2017, SEC.1.

 

IC 24-4.4-1-103Unified coverage of subject matter; construction against implied repeal

     Sec. 103. This article:

(1) is a general act intended as a unified coverage of its subject matter; and

(2) any part of this article may not be considered to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.

As added by P.L.145-2008, SEC.20.

 

IC 24-4.4-1-104Severability

     Sec. 104. The provisions of this article are severable, so that if:

(1) any provisions of this article; or

(2) the application of this article to any person or circumstances;

is held invalid, the invalidity does not affect other provisions or applications of this article that can be given effect without the invalid provision or application.

As added by P.L.145-2008, SEC.20.

 

IC 24-4.4-1-201Application; nonresident debtor

     Sec. 201. (1) Except as provided in subsection (2), this article applies to a first lien mortgage transaction:

(a) that is secured by an interest in:

(i) a dwelling; or

(ii) residential real estate upon which a dwelling is constructed or intended to be constructed;

in Indiana; and

(b) the closing for which takes place after December 31, 2008.

     (2) This article does not apply to a first lien mortgage transaction if:

(a) the debtor is not a resident of Indiana at the time the transaction is entered into; and

(b) the laws of the debtor's state of residence require that the transaction be made under the laws of the state of the debtor's residence.

As added by P.L.145-2008, SEC.20. Amended by P.L.1-2009, SEC.134; P.L.89-2011, SEC.2.

 

IC 24-4.4-1-202Exempt transactions and persons

     Sec. 202. (a) As used in this section, "balloon payment", with respect to a mortgage transaction, means any payment:

(1) that the creditor requires the debtor to make at any time during the term of the mortgage;

(2) that represents the entire amount of the outstanding balance with respect to the mortgage; and

(3) the entire amount of which is due as of a specified date or at the end of a specified period;

if the aggregate amount of the minimum periodic payments required under the mortgage would not fully amortize the outstanding balance by the specified date or at the end of the specified period. The term does not include a payment required by a creditor under a due-on-sale clause (as defined in 12 U.S.C. 1701j-3(a)) or a payment required by a creditor under a provision in the mortgage that permits the creditor to accelerate the debt upon the debtor's default or failure to abide by the material terms of the mortgage.

     (b) This article does not apply to the following:

(1) Extensions of credit to government or governmental agencies or instrumentalities.

(2) A first lien mortgage transaction in which the debt is incurred primarily for a purpose other than a personal, family, or household purpose.

(3) An extension of credit primarily for a business, a commercial, or an agricultural purpose.

(4) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3, IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a first lien mortgage transaction made:

(a) in compliance with the requirements of; and

(b) by a community development corporation (as defined in IC 4-4-28-2) acting as a subrecipient of funds from;

the Indiana housing and community development authority established by IC 5-20-1-3.

(5) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3, IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a first lien mortgage transaction made by an entity that exclusively uses funds provided by the United States Department of Housing and Urban Development under Title 1 of the federal Housing and Community Development Act of 1974, Public Law 93-383, as amended (42 U.S.C. 5301 et seq.).

(6) An extension of credit originated by the following:

(a) A depository institution. However, a federal savings bank may voluntarily register with the department for the purpose of sponsoring, under an exclusive written agreement, individuals who are licensed as mortgage loan originators under this article and 750 IAC 9-3, who perform mortgage loan origination activities as independent agents under the federal savings bank's direct supervision and control, who hold a current, valid insurance producer license under IC 27-1-15.6, and who sell, solicit, or negotiate insurance under an exclusive written agreement for a licensed insurance company that is a subsidiary of a company that also owns or controls the federal savings bank, if the federal savings bank does the following:

(i) Assumes responsibility for and reasonably supervises the activities of all licensed mortgage loan originators sponsored by the federal savings bank under this clause.

(ii) Registers with and maintains a valid unique identifier issued by the NMLSR as required by IC 24-4.4-2-401(2), maintains a surety bond in accordance with IC 24-4.4-2-402.3, submits to the NMLSR reports of condition in accordance with IC 24-4.4-2-405(4) (subject to IC 24-4.4-2-402.4), and files financial statements with the department in accordance with IC 24-4.4-2-405(5).

(iii) Cooperates with the department, and provides access to records and documents, as required by the department in carrying out examinations of the activities of the licensed mortgage loan originators sponsored by the federal savings bank under this clause, as described in IC 24-4.4-2-405(1).

(iv) Agrees to comply with all law, rules, directives, and orders in connection with the activities of the licensed mortgage loan originators sponsored by the federal savings bank, as the director determines necessary to ensure compliance with the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (12 U.S.C. 5101 et seq.) and with Indiana law.

(b) Subsidiaries that are not licensed under this article and that are:

(i) owned and controlled by a depository institution; and

(ii) regulated by a federal banking agency.

(c) An institution regulated by the Farm Credit Administration.

(7) Except for IC 24-4.4-2-401(2), IC 24-4.4-2-402.3, IC 24-4.4-2-405(4), and IC 24-4.4-2-405(5), a credit union service organization that is majority owned, directly or indirectly, by one (1) or more credit unions.

(8) A first lien mortgage transaction originated by a registered mortgage loan originator, when acting for an entity described in subsection (6). However, a privately insured state chartered credit union shall comply with the system of mortgage loan originator registration developed by the Federal Financial Institutions Examinations Council under Section 1507 of the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE).

(9) An individual who offers or negotiates terms of a mortgage transaction with or on behalf of an immediate family member of the individual.

(10) An individual who offers or negotiates terms of a mortgage transaction secured by a dwelling that served as the individual's residence.

(11) Unless the attorney is compensated by:

(a) a lender;

(b) a mortgage broker;

(c) another mortgage loan originator; or

(d) any agent of the lender, mortgage broker, or other mortgage loan originator described in clauses (a) through (c);

a licensed attorney who negotiates the terms of a mortgage transaction on behalf of a client as an ancillary matter to the attorney's representation of the client.

(12) The United States, any state or local government, or any agency or instrumentality of any governmental entity, including United States government sponsored enterprises.

(13) A person in whose name a tablefunded transaction is closed, as described in section 301(34)(a) of this chapter. However, the exemption provided by this subsection does not apply if:

(a) the transaction:

(i) is secured by a dwelling that is a mobile home, a manufactured home, or a trailer; and

(ii) is not also secured by an interest in land; and

(b) the person in whose name the transaction is closed, as described in section 301(34)(a) of this chapter, sells the dwelling to the debtor through a retail installment contract or other similar transaction.

(14) A bona fide nonprofit organization not operating in a commercial context, as determined by the director, if the following criteria are satisfied:

(a) Subject to clause (b), the organization originates only one (1) or both of the following types of mortgage transactions:

(i) Zero (0) interest first lien mortgage transactions.

(ii) Zero (0) interest subordinate lien mortgage transactions.

(b) The organization does not require, under the terms of the mortgage or otherwise, balloon payments with respect to the mortgage transactions described in clause (a).

(c) The organization is exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code.

(d) The organization's primary purpose is to serve the public by helping low income individuals and families build, repair, and purchase housing.

(e) The organization uses only:

(i) unpaid volunteers; or

(ii) employees whose compensation is not based on the number or size of any mortgage transactions that the employees originate;

to originate the mortgage transactions described in clause (a).

(f) The organization does not charge loan origination fees in connection with the mortgage transactions described in clause (a).

(15) A bona fide nonprofit organization (as defined in section 301(37) of this chapter) if the following criteria are satisfied:

(a) For each calendar year that the organization seeks the exemption provided by this subdivision, the organization certifies, not later than December 31 of the preceding calendar year and on a form prescribed by the director and accompanied by such documentation as required by the director, that the organization is a bona fide nonprofit organization (as defined in section 301(37) of this chapter).

(b) The director determines that the organization originates only mortgage transactions that are favorable to the debtor. For purposes of this clause, a mortgage transaction is favorable to the debtor if the director determines that the terms of the mortgage transaction are consistent with terms of mortgage transactions made in a public or charitable context, rather than in a commercial context.

As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.6; P.L.89-2011, SEC.3; P.L.9-2011, SEC.1; P.L.6-2012, SEC.164; P.L.27-2012, SEC.4; P.L.13-2013, SEC.65; P.L.137-2014, SEC.2; P.L.103-2014, SEC.1.

 

IC 24-4.4-1-202.5Persons also engaging in loan brokerage business; applicability of loan broker statutes; examination by department; cooperation with securities division

     Sec. 202.5. (1) If a person licensed or required to be licensed under this article also engages in the loan brokerage business, the person's loan brokerage business is subject to the following sections of the Indiana Code and any rules adopted to implement these sections:

(a) IC 23-2-5-9.

(b) IC 23-2-5-9.1.

(c) IC 23-2-5-15.

(d) IC 23-2-5-16.

(e) IC 23-2-5-17.

(f) IC 23-2-5-18.

(g) IC 23-2-5-18.5.

(h) IC 23-2-5-20.

(i) IC 23-2-5-23, except for IC 23-2-5-23(2)(B).

(j) IC 23-2-5-24.

     (2) Loan broker business transactions engaged in by persons licensed or required to be licensed under this article are subject to examination by the department and to the examination fees described in IC 24-4.4-2-402(8)(c). The department may cooperate with the securities division of the office of the secretary of state in the department's examination of loan broker business transactions and may use the securities division's examiners to conduct examinations.

As added by P.L.35-2010, SEC.7. Amended by P.L.186-2015, SEC.7.

 

IC 24-4.4-1-203Repealed

As added by P.L.145-2008, SEC.20. Repealed by P.L.35-2010, SEC.209.

 

IC 24-4.4-1-204Entities that also conduct loan broker business; regulatory cooperation with securities commissioner

     Sec. 204. In the department's examination and regulatory activities related to licensees under this article, the department may cooperate with the Indiana securities commissioner in the regulation of entities that, in addition to conducting business regulated under this article, also conduct a loan brokerage business subject to IC 23-2-5.

As added by P.L.35-2010, SEC.8.

 

IC 24-4.4-1-205Carrying on other business

     Sec. 205. A licensee may carry on other business at a location where the licensee engages in first lien mortgage transactions unless the licensee carries on other business for the purpose of evasion or violation of this article.

As added by P.L.159-2017, SEC.2.

 

IC 24-4.4-1-301Definitions

     Sec. 301. In addition to definitions appearing in subsequent chapters of this article, the following definitions apply throughout this article:

(1) "Affiliate", with respect to any person subject to this article, means a person that, directly or indirectly, through one (1) or more intermediaries:

(a) controls;

(b) is controlled by; or

(c) is under common control with;

the person subject to this article.

(2) "Agreement" means the bargain of the parties in fact as found in the parties' language or by implication from other circumstances, including course of dealing or usage of trade or course of performance.

(3) "Agricultural products" includes agricultural products, horticultural products, viticultural products, dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, any products raised or produced on farms, and any products processed or manufactured from products raised or produced on farms.

(4) "Agricultural purpose" means a purpose related to the production, harvest, exhibition, marketing, transportation, processing, or manufacture of agricultural products by a natural person who cultivates, plants, propagates, or nurtures the agricultural products.

(5) "Consumer credit sale" is a sale of goods, services, or an interest in land in which:

(a) credit is granted by a person who engages as a seller in credit transactions of the same kind;

(b) the buyer is a person other than an organization;

(c) the goods, services, or interest in land are purchased primarily for a personal, family, or household purpose;

(d) either the debt is payable in installments or a credit service charge is made; and

(e) with respect to a sale of goods or services, either:

(i) the amount of credit extended, the written credit limit, or the initial advance does not exceed the exempt threshold amount, as adjusted in accordance with the annual adjustment of the exempt threshold amount, specified in Regulation Z (12 CFR 226.3 or 12 CFR 1026.3(b), as applicable); or

(ii) the debt is secured by personal property used or expected to be used as the principal dwelling of the buyer.

(6) "Credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.

(7) "Creditor" means a person:

(a) that regularly engages in the extension of first lien mortgage transactions that are subject to a credit service charge or loan finance charge, as applicable, or are payable by written agreement in more than four (4) installments (not including a down payment); and

(b) to which the obligation is initially payable, either on the face of the note or contract, or by agreement if there is not a note or contract.

The term does not include a person described in subsection (34)(a) in a tablefunded transaction. A creditor may be an individual, a limited liability company, a sole proprietorship, a partnership, a trust, a joint venture, a corporation, an unincorporated organization, or other form of entity, however organized.

(8) "Department" refers to the members of the department of financial institutions.

(9) "Depository institution" has the meaning set forth in the Federal Deposit Insurance Act (12 U.S.C. 1813(c)) and includes any credit union.

(10) "Director" refers to the director of the department of financial institutions or the director's designee.

(11) "Dwelling" means a residential structure that contains one (1) to four (4) units, regardless of whether the structure is attached to real property. The term includes an individual:

(a) condominium unit;

(b) cooperative unit;

(c) mobile home; or

(d) trailer;

that is used as a residence.

(12) "Employee" means an individual who is paid wages or other compensation by an employer required under federal income tax law to file Form W-2 on behalf of the individual.

(13) "Federal banking agencies" means the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the National Credit Union Administration, and the Federal Deposit Insurance Corporation.

(14) "First lien mortgage transaction" means:

(a) a consumer loan; or

(b) a consumer credit sale;

that is or will be used by the debtor primarily for personal, family, or household purposes and that is secured by a mortgage or a land contract (or another consensual security interest equivalent to a mortgage or a land contract) that constitutes a first lien on a dwelling or on residential real estate upon which a dwelling is constructed or intended to be constructed.

(15) "Immediate family member" means a spouse, child, sibling, parent, grandparent, or grandchild. The term includes stepparents, stepchildren, stepsiblings, and adoptive relationships.

(16) "Individual" means a natural person.

(17) "Licensee" means a person licensed as a creditor under this article.

(18) "Loan" includes:

(a) the creation of debt by:

(i) the creditor's payment of or agreement to pay money to the debtor or to a third party for the account of the debtor; or

(ii) the extension of credit by a person who engages as a seller in credit transactions primarily secured by an interest in land;

(b) the creation of debt by a credit to an account with the creditor upon which the debtor is entitled to draw immediately; and

(c) the forbearance of debt arising from a loan.

(19) "Loan brokerage business" means any activity in which a person, in return for any consideration from any source, procures, attempts to procure, or assists in procuring, a mortgage transaction from a third party or any other person, whether or not the person seeking the mortgage transaction actually obtains the mortgage transaction.

(20) "Loan processor or underwriter" means an individual who performs clerical or support duties as an employee at the direction of, and subject to the supervision and instruction of, a person licensed or exempt from licensing under this article. For purposes of this subsection, the term "clerical or support duties" may include, after the receipt of an application, the following:

(a) The receipt, collection, distribution, and analysis of information common for the processing or underwriting of a mortgage transaction.

(b) The communication with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that the communication does not include:

(i) offering or negotiating loan rates or terms; or

(ii) counseling consumers about mortgage transaction rates or terms.

(21) "Mortgage loan originator" means an individual who, for compensation or gain, or in the expectation of compensation or gain, regularly engages in taking a mortgage transaction application or in offering or negotiating the terms of a mortgage transaction that either is made under this article or under IC 24-4.5 or is made by an employee of a person licensed or exempt from licensing under this article or under IC 24-4.5, while the employee is engaging in the loan brokerage business. The term does not include the following:

(a) An individual engaged solely as a loan processor or underwriter as long as the individual works exclusively as an employee of a person licensed or exempt from licensing under this article.

(b) Unless the person or entity is compensated by:

(i) a creditor;

(ii) a loan broker;

(iii) another mortgage loan originator; or

(iv) any agent of a creditor, a loan broker, or another mortgage loan originator described in items (i) through (iii);

a person or entity that performs only real estate brokerage activities and is licensed or registered in accordance with applicable state law.

(c) A person solely involved in extensions of credit relating to timeshare plans (as defined in 11 U.S.C. 101(53D)).

(22) "Mortgage servicer" means the last person to whom a mortgagor or the mortgagor's successor in interest has been instructed by a mortgagee to send payments on a loan secured by a mortgage.

(23) "Mortgage transaction" means:

(a) a consumer loan; or

(b) a consumer credit sale;

that is or will be used by the debtor primarily for personal, family, or household purposes and that is secured by a mortgage or a land contract (or another consensual security interest equivalent to a mortgage or a land contract) on a dwelling or on residential real estate upon which a dwelling is constructed or intended to be constructed.

(24) "Nationwide Multistate Licensing System and Registry" (or "Nationwide Mortgage Licensing System and Registry" or "NMLSR") means a multistate licensing system owned and operated by the State Regulatory Registry, LLC, or by any successor or affiliated entity, for the licensing and registration of creditors, mortgage loan originators, and other persons in the mortgage or financial services industries. The term includes any other name or acronym that may be assigned to the system by the State Regulatory Registry, LLC, or by any successor or affiliated entity.

(25) "Nontraditional mortgage product" means any mortgage product other than a thirty (30) year fixed rate mortgage.

(26) "Organization" means a corporation, a government or government subdivision, an agency, a trust, an estate, a partnership, a limited liability company, a cooperative, an association, a joint venture, an unincorporated organization, or any other entity, however organized.

(27) "Payable in installments", with respect to a debt or an obligation, means that payment is required or permitted by written agreement to be made in more than four (4) installments not including a down payment.

(28) "Person" includes an individual or an organization.

(29) "Principal" of a mortgage transaction means the total of:

(a) the net amount paid to, receivable by, or paid or payable for the account of the debtor; and

(b) to the extent that payment is deferred, amounts actually paid or to be paid by the creditor for registration, certificate of title, or license fees if not included in clause (a).

(30) "Real estate brokerage activity" means any activity that involves offering or providing real estate brokerage services to the public, including the following:

(a) Acting as a real estate agent or real estate broker for a buyer, seller, lessor, or lessee of real property.

(b) Bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property.

(c) Negotiating, on behalf of any party, any part of a contract relating to the sale, purchase, lease, rental, or exchange of real property (other than in connection with providing financing with respect to the sale, purchase, lease, rental, or exchange of real property).

(d) Engaging in any activity for which a person engaged in the activity is required to be registered or licensed as a real estate agent or real estate broker under any applicable law.

(e) Offering to engage in any activity, or act in any capacity, described in this subsection.

(31) "Registered mortgage loan originator" means any individual who:

(a) meets the definition of mortgage loan originator and is an employee of:

(i) a depository institution;

(ii) a subsidiary that is owned and controlled by a depository institution and regulated by a federal banking agency; or

(iii) an institution regulated by the Farm Credit Administration; and

(b) is registered with, and maintains a unique identifier through, the NMLSR.

(32) "Residential real estate" means any real property that is located in Indiana and on which there is located or intended to be constructed a dwelling.

(33) "Revolving first lien mortgage transaction" means a first lien mortgage transaction in which:

(a) the creditor permits the debtor to obtain advances from time to time;

(b) the unpaid balances of principal, finance charges, and other appropriate charges are debited to an account; and

(c) the debtor has the privilege of paying the balances in installments.

(34) "Tablefunded" means a transaction in which:

(a) a person closes a first lien mortgage transaction in the person's own name as a mortgagee with funds provided by one (1) or more other persons; and

(b) the transaction is assigned, not later than one (1) business day after the funding of the transaction, to the mortgage creditor providing the funding.

(35) "Unique identifier" means a number or other identifier assigned by protocols established by the NMLSR.

(36) "Land contract" means a contract for the sale of real estate in which the seller of the real estate retains legal title to the real estate until the total contract price is paid by the buyer.

(37) "Bona fide nonprofit organization" means an organization that does the following, as determined by the director, under criteria established by the director:

(a) Maintains tax exempt status under Section 501(c)(3) of the Internal Revenue Code.

(b) Promotes affordable housing or provides home ownership education or similar services.

(c) Conducts the organization's activities in a manner that serves public or charitable purposes.

(d) Receives funding and revenue and charges fees in a manner that does not encourage the organization or the organization's employees to act other than in the best interests of the organization's clients.

(e) Compensates the organization's employees in a manner that does not encourage employees to act other than in the best interests of the organization's clients.

(f) Provides to, or identifies for, debtors mortgage transactions with terms that are favorable to the debtor (as described in section 202(b)(15) of this chapter) and comparable to mortgage transactions and housing assistance provided under government housing assistance programs.

(g) Maintains certification by the United States Department of Housing and Urban Development or employs counselors who are certified by the Indiana housing and community development authority.

(38) "Regularly engaged", with respect to a person who extends or originates first lien mortgage transactions, refers to a person who:

(a) extended or originated more than five (5) first lien mortgage transactions in the preceding calendar year; or

(b) extends or originates, or will extend or originate, more than five (5) first lien mortgage transactions in the current calendar year if the person did not extend or originate more than five (5) first lien mortgage transactions in the preceding calendar year.

As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.9; P.L.42-2011, SEC.48; P.L.89-2011, SEC.4; P.L.27-2012, SEC.5; P.L.216-2013, SEC.2; P.L.137-2014, SEC.3; P.L.73-2016, SEC.2.

 

IC 24-4.4-2Chapter 2. Miscellaneous
           24-4.4-2-101Short title
           24-4.4-2-201Duty to provide payoff amount; liability for failure to provide; prepayment penalty prohibited for adjustable rate mortgages; short sales; foreclosed property; no protection from deficiency judgment
           24-4.4-2-202Federal disclosure requirements; creditor's duty to comply; exempt transactions
           24-4.4-2-301Violation of state or federal law, regulation, or rule; enforcement
           24-4.4-2-401License required; registration with NMLSR; licensed mortgage loan originators; loan processor or underwriting activities; applications for licensure; director's authority to contract with NMLSR
           24-4.4-2-402Applications for licenses; issuance; evidence of compliance; use of NMLSR; denial of application; right to hearing; fees; license not assignable or transferable
           24-4.4-2-402.1National criminal history background check; fingerprints; payment of fees or costs; use of NMLSR
           24-4.4-2-402.2Credit reports; payment of fees or costs; demonstrated financial responsibility; considerations
           24-4.4-2-402.3Surety bond; requirements; amount; termination; liability; notices
           24-4.4-2-402.4Use of NMLSR in department's licensing system; reporting of information to NMLSR; confidentiality; director's authority to enter agreements; waiver of privilege; processing fee; electronic records
           24-4.4-2-403License renewal; revocation or suspension of license not renewed; reinstatement or appeal; correcting amendments
           24-4.4-2-404Suspension or revocation of license as creditor; order to show cause; order of suspension or revocation; relinquishment of license; preexisting contracts; emergency order for revocation
           24-4.4-2-404.1Violations by individuals; persons convicted of felonies; civil penalties; creditor's duty to notify department of discharge or termination
           24-4.4-2-404.2Director's notice of intent to issue order; contents; hearing; final order; suspension or prohibition pending final order; official record
           24-4.4-2-404.3Consent agreement; notice of charges not required
           24-4.4-2-404.4Final order; remedies; consent presumed
           24-4.4-2-404.5Final order; effective date; authority of department or court to stay, modify, or vacate
           24-4.4-2-404.6Factors for determining amount of civil penalty; indemnification by creditor prohibited; deposit of civil penalties in financial institutions fund
           24-4.4-2-404.7Authority of director to enforce orders, agreements, or conditions in court
           24-4.4-2-405Record keeping; use of unique identifier on forms and documents; use of examination and regulatory software; reports of condition to NMLSR; financial statements; notice to department of certain events or changes
           24-4.4-2-406Change in control of creditor; application to department; timeframe for department's decision; conditions for approval; creditor's duty to report transfer of securities; director's discretion to require new license
           24-4.4-2-501Creditor's duty to comply with closing requirements
           24-4.4-2-502Debtor's right to rescind; accruing interest prohibited during rescission period; disbursement of proceeds
           24-4.4-2-503Reverse mortgages; pamphlet; counseling required for debtor

 

IC 24-4.4-2-101Short title

     Sec. 101. This chapter shall be known and may be cited as the First Lien Mortgage Lending Act - Miscellaneous.

As added by P.L.145-2008, SEC.20.

 

IC 24-4.4-2-201Duty to provide payoff amount; liability for failure to provide; prepayment penalty prohibited for adjustable rate mortgages; short sales; foreclosed property; no protection from deficiency judgment

     Sec. 201. (1) A creditor or mortgage servicer shall provide, in writing, an accurate payoff amount for a first lien mortgage transaction to the debtor not later than seven (7) business days (excluding legal public holidays, Saturdays, and Sundays) after the creditor or mortgage servicer receives the debtor's written request for the accurate payoff amount. A payoff statement provided by a creditor or mortgage servicer under this subsection must show the date the statement was prepared and itemize the unpaid principal balance and each fee, charge, or other sum included within the payoff amount. A creditor or mortgage servicer who fails to provide an accurate payoff amount is liable for:

(a) one hundred dollars ($100) if an accurate payoff amount is not provided by the creditor or mortgage servicer not later than seven (7) business days (excluding legal public holidays, Saturdays, and Sundays) after the creditor or mortgage servicer receives the debtor's first written request; and

(b) the greater of:

(i) one hundred dollars ($100); or

(ii) the loan finance charge that accrues on the first lien mortgage transaction from the date the creditor or mortgage servicer receives the first written request until the date on which the accurate payoff amount is provided;

if an accurate payoff amount is not provided by the creditor or mortgage servicer not later than seven (7) business days (excluding legal public holidays, Saturdays, and Sundays) after the creditor or mortgage servicer receives the debtor's second written request, and the creditor or mortgage servicer fails to comply with subdivision (a).

     (2) This subsection applies to a first lien mortgage transaction, or the refinancing or consolidation of a first lien mortgage transaction, that:

(a) is closed after June 30, 2009; and

(b) has an interest rate that is subject to change at one (1) or more times during the term of the first lien mortgage transaction.

A creditor in a transaction to which this subsection applies may not contract for and may not charge the debtor a prepayment fee or penalty.

     (3) This subsection applies to a first lien mortgage transaction with respect to which any installment or minimum payment due is delinquent for at least sixty (60) days. The creditor, servicer, or the creditor's agent shall acknowledge a written offer made in connection with a proposed short sale not later than five (5) business days (excluding legal public holidays, Saturdays, and Sundays) after the date of the offer if the offer complies with the requirements for a qualified written request set forth in 12 U.S.C. 2605(e)(1)(B). The creditor, servicer, or creditor's agent is required to acknowledge a written offer made in connection with a proposed short sale from a third party acting on behalf of the debtor only if the debtor has provided written authorization for the creditor, servicer, or creditor's agent to do so. Not later than thirty (30) business days (excluding legal public holidays, Saturdays, and Sundays) after receipt of an offer under this subsection, the creditor, servicer, or creditor's agent shall respond to the offer with an acceptance or a rejection of the offer. The thirty (30) day period described in this subsection may be extended for not more than fifteen (15) business days (excluding legal public holidays, Saturdays, and Sundays) if, before the end of the thirty (30) day period, the creditor, the servicer, or the creditor's agent notifies the debtor of the extension and the reason the extension is needed. Payment accepted by a creditor, servicer, or creditor's agent in connection with a short sale constitutes payment in full satisfaction of the first lien mortgage transaction unless the creditor, servicer, or creditor's agent obtains:

(a) the following statement: "The debtor remains liable for any amount still owed under the first lien mortgage transaction."; or

(b) a statement substantially similar to the statement set forth in subdivision (a);

acknowledged by the initials or signature of the debtor, on or before the date on which the short sale payment is accepted. As used in this subsection, "short sale" means a transaction in which the property that is the subject of a first lien mortgage transaction is sold for an amount that is less than the amount of the debtor's outstanding obligation under the first lien mortgage transaction. A creditor or mortgage servicer that fails to respond to an offer within the time prescribed by this subsection is liable in accordance with 12 U.S.C. 2605(f) in any action brought under that section.

     (4) This section is not intended to provide the owner of real estate subject to the issuance of process under a judgment or decree of foreclosure any protection or defense against a deficiency judgment for purposes of the borrower protections from liability that must be disclosed under 12 CFR 1026.38(p)(3) on the form required by 12 CFR 1026.38 ("Closing Disclosures" form under the Amendments to the 2013 Integrated Mortgage Disclosures Rule Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z) and the 2013 Loan Originator Rule Under the Truth in Lending Act (Regulation Z)).

As added by P.L.145-2008, SEC.20. Amended by P.L.52-2009, SEC.1; P.L.35-2010, SEC.10; P.L.89-2011, SEC.5; P.L.27-2012, SEC.6; P.L.54-2016, SEC.1; P.L.73-2016, SEC.3.

 

IC 24-4.4-2-202Federal disclosure requirements; creditor's duty to comply; exempt transactions

     Sec. 202. (1) The creditor shall comply with disclosure requirements applicable to first lien mortgage transactions in the Consumer Credit Protection Act (15 U.S.C. 1601 et seq.).

     (2) For purposes of subsection (1), disclosures are not required if the transaction is exempt from the Consumer Credit Protection Act (15 U.S.C. 1601 et seq.).

As added by P.L.89-2011, SEC.6. Amended by P.L.159-2017, SEC.3.

 

IC 24-4.4-2-301Violation of state or federal law, regulation, or rule; enforcement

     Sec. 301. (1) A violation of a state or federal law, regulation, or rule applicable to first lien mortgage transactions is a violation of this article.

     (2) The department may enforce penalty provisions set forth in 15 U.S.C. 1640 for violations of disclosure requirements applicable to first lien mortgage transactions.

As added by P.L.145-2008, SEC.20.

 

IC 24-4.4-2-401License required; registration with NMLSR; licensed mortgage loan originators; loan processor or underwriting activities; applications for licensure; director's authority to contract with NMLSR

     Sec. 401. (1) Unless a person subject to this article has first obtained a license under this article from the department and annually maintains the license, the person shall not engage in Indiana as a creditor in first lien mortgage transactions. A separate license under this article is required for each legal entity that engages in Indiana as a creditor in first lien mortgage transactions. However, a separate license under this article is not required for each branch of a legal entity licensed under this article.

     (2) Each:

(a) creditor licensed under this article; and

(b) entity exempt from licensing under this article that:

(i) employs a licensed mortgage loan originator; or

(ii) sponsors under an exclusive written agreement, as permitted by IC 24-4.4-1-202(b)(6)(a), a licensed mortgage loan originator as an independent agent;

shall register with and maintain a valid unique identifier issued by the NMLSR. Each licensed mortgage loan originator must be employed by, or sponsored under an exclusive written agreement (as permitted by IC 24-4.4-1-202(b)(6)(a)) and as an independent agent, and associated with, a licensed creditor, or an entity exempt from licensing under this article, in the NMLSR in order to originate loans.

     (3) An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that the individual can or will perform any of the activities of a mortgage loan originator.

     (4) Applicants for a license under this article must apply for the license in the form prescribed by the director. Each form:

(a) must contain content as set forth by rule, instruction, or procedure of the director; and

(b) may be changed or updated as necessary by the director to carry out the purposes of this article.

     (5) To fulfill the purposes of this article, the director may establish relationships or contracts with the NMLSR or other entities designated by the NMLSR to:

(a) collect and maintain records; and

(b) process transaction fees or other fees related to licensees or other persons subject to this article.

     (6) For the purpose of participating in the NMLSR, the director or the department may:

(a) waive or modify, in whole or in part, by rule or order, any of the requirements of this article; and

(b) establish new requirements as reasonably necessary to participate in the NMLSR.

As added by P.L.145-2008, SEC.20. Amended by P.L.35-2010, SEC.11; P.L.89-2011, SEC.7; P.L.103-2014, SEC.2.

 

IC 24-4.4-2-402Applications for licenses; issuance; evidence of compliance; use of NMLSR; denial of application; right to hearing; fees; license not assignable or transferable

     Sec. 402. (1) The department shall receive and act on all applications for licenses to engage in first lien mortgage transactions. Applications must be made as prescribed by the director. If, at any time, the information or record contained in:

(a) an application filed under this section; or

(b) a renewal application filed under section 403 of this chapter;

is or becomes inaccurate or incomplete in a material respect, the applicant shall promptly file a correcting amendment with the department.

     (2) A license may not be issued unless the department finds that the professional training and experience, financial responsibility, character, and fitness of:

(a) the applicant and any significant affiliate of the applicant;

(b) each executive officer, director, or manager of the applicant, or any other individual having a similar status or performing a similar function for the applicant; and

(c) if known, each person directly or indirectly owning of record or owning beneficially at least ten percent (10%) of the outstanding shares of any class of equity security of the applicant;

are such as to warrant belief that the business will be operated honestly and fairly within the purposes of this article.

     (3) The director is entitled to request evidence of compliance with this section at:

(a) the time of application;

(b) the time of renewal of a license; or

(c) any other time considered necessary by the director.

     (4) Evidence of compliance with this section must include:

(a) criminal background checks, as described in section 402.1 of this chapter, including a national criminal history background check (as defined in IC 10-13-3-12) by the Federal Bureau of Investigation, for any individual described in subsection (2);

(b) credit histories as described in section 402.2 of this chapter;

(c) surety bond requirements as described in section 402.3 of this chapter;

(d) a review of licensure actions in Indiana and in other states; and

(e) other background checks considered necessary by the director.

     (5) For purposes of this section and in order to reduce the points of contact that the director has to maintain for pu