MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary

By: Senator(s) Moffatt

AN ACT TO CREATE THE OFFENSE OF HOME REPAIR FRAUD; TO ENACT EXCEPTIONS; TO ENACT DEFINITIONS; TO PRESCRIBE THE ELEMENTS OF THE OFFENSE AND THE PUNISHMENT THEREFORE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This Act shall be known and may be cited as the "Home Repair Fraud Act." Nothing in this act shall be construed to apply to original construction of single or multiple family residence.

SECTION 2. As used in this act, unless the context clearly requires otherwise:

(a) "Home repair" means the fixing, replacing, altering, converting, modernizing, improving of or the making of an addition to any real property primarily designed or used as a residence.

(i) Home repair shall include the construction, installation, replacement or improvement of driveways, swimming pools, porches, kitchens, chimneys, chimney liners, garages, fences, fallout shelters, central air conditioning, central heating, boilers, furnaces, hot water heaters, electrical wiring, sewers, plumbing fixtures, storm doors, storm windows, awnings and other improvements to structures within the residence or upon the land adjacent thereto.

(ii) Home repair shall not include the sale, installation, cleaning or repair of carpets; the sale of goods or materials by a merchant who does not directly or through a subsidiary perform any work or labor in connection with the installation or application of the goods or materials; the repair, installation, replacement or connection of any home appliance including, but not limited to, disposals, refrigerators, ranges, garage door openers, television antennas, washing machines, telephones or other home appliances when the person replacing, installing, repairing or connecting such home appliance is an employee or agent of the merchant that sold the home appliance; or landscaping.

(b) "Person" means any individual, partnership, corporation, business, trust or other legal entity.

(c) "Residence" means a single or multiple family dwelling, including, but not limited to, a single family home, apartment building, condominium, duplex, townhouse or mobile home which is used or intended to be used by its occupants as their dwelling place.

SECTION 3. (1) A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:

(a) Misrepresents a material fact relating to the terms of the contract or agreement or the preexisting or existing condition of any portion of the property involved, or creates or confirms another's impression which is false and which he does not believe to be true, or promises performance which he does not intend to perform or knows will not be performed;

(b) Uses or employs any deception, false pretense or false promises in order to induce, encourage or solicit such person to enter into any contract or agreement;

(c) Enters into an unconscionable agreement or contract requiring payment to the contractor of at least Four Thousand Dollars ($4,000.00). A contract is unconscionable within the meaning of this act when an unreasonable difference exists between the value of the services, materials and work to be performed and the amount charged for those services, materials and work. For purposes of this section, prima facie evidence shall exist that the contract or agreement is unconscionable if the total payment called for by the contract or agreement is in excess of four (4) times the fair market value for those services, materials and work;

(d) Misrepresents or conceals either his real name, the name of his business, or his business address; or

(e) Coerces or intimidates such person into paying at least twenty-percent (20%) more than the agreed-upon price for the home repair.

(2) A person commits the offense of home repair fraud when he knowingly:

(a) Damages the property of a person with the intent to enter into an agreement or contract for home repair; or

(b) Misrepresents himself or another to be an employee or agent of any unit of the federal, state or municipal government or any other governmental unit, or an employee or agent of any public utility, with the intent to cause a person to enter into, with himself or another, any contract or agreement for home repair.

(3) For purposes of subsection (1), paragraph (a), it shall be a rebuttable presumption of intent or knowledge that a person promises performance which he does not intend to perform and knows will not be performed when, after no performance or no substantial performance of a contract or agreement for home repair, he fails or refuses to return payments made by the victim and he:

(a) Fails to acknowledge or respond to a written demand for commencement or completion of home repair within ten (10) days after such demand is mailed or presented to him by the victim or by the victim's legal representative or by a law enforcement or consumer agency acting on behalf of the victim;

(b) Fails to notify the victim in writing of a change of business name or address prior to the completion of the home repair;

(c) Makes false statements or representations to the victim to excuse his nonperformance or nonsubstantial performance;

(d) Uses deception, coercion or force to obtain the victim's consent to modification of the terms of the original contract or agreement;

(e) Fails to employ qualified personnel necessary to perform the home repair;

(f) Fails to order or purchase the basic materials required for performance of the home repair;

(g) Fails to comply with municipal, county, state or federal regulations or codes relating to the performance of home repair.

(4) Intent and knowledge shall be determined by an evaluation of all circumstances surrounding a transaction and the determination shall not be limited to the time of contract or agreement.

(5) Substantial performance shall not include work performed in a manner of little or no value or work that fails to comply with the appropriate municipal, county, state or federal regulations or codes.

SECTION 4. (1) Violation of paragraph (a) or (b) of subsection (1) of Section 3 of this act shall be a felony when the amount of the contract or agreement is more than One Thousand Dollars ($1,000.00), a misdemeanor when the amount of the contract or agreement is One Thousand Dollars ($1,000.00) or less, and a felony for the second or subsequent offense when the amount of the contract or agreement is One Thousand Dollars ($1,000.00) or less. If two (2) or more contracts or agreements for home repair exceed an aggregate amount of One Thousand Dollars ($1,000.00) or more and such contracts or agreements are entered into with the same victim by one or more of the defendants as part of or in furtherance of a common fraudulent scheme, design or intention, the violation shall be a felony.

(2) Violation of paragraph (c) of subsection (1) of Section 3 of this act shall be a felony punishable by imprisonment not to exceed ten (10) years when the amount of the contract or agreement is more than Ten Thousand Dollars ($10,000.00) and by imprisonment not to exceed five (5) years when the amount of the contract or agreement is Ten Thousand Dollars ($10,000.00) or less.

(3) Violation of paragraph (d) of subsection (1) of Section 3 of this act shall be a felony punishable by imprisonment not to exceed five (5) years when the amount of the contract or agreement is more than One Thousand Dollars ($1,000.00), a misdemeanor when the amount of the contract or agreement is One Thousand Dollars ($1,000.00) or less, and a felony punishable by imprisonment not to exceed ten (10) years for a second or subsequent offense when the amount of the contract or agreement is One Thousand Dollars ($1,000.00) or less. If two (2) or more contracts or agreements for home repair exceed an aggregate amount of One Thousand Dollars ($1,000.00) or more and such contracts or agreements are entered into with the same victim by one or more of the defendants as part of or in furtherance of a common fraudulent scheme, design or intention, the violation shall be a felony.

(4) Violation of subsection (2) of Section 3 of this act shall be a felony punishable by imprisonment not to exceed five (5) years.

(5) Unless otherwise provided in this act, a felony is punishable by imprisonment not to exceed ten (10) years, imprisonment for a felony being in the custody of the Department of Corrections.

SECTION 5. A person commits the offense of aggravated home repair fraud when he commits home repair fraud against a person sixty (60) years of age or older or against a disabled person. Aggravated home repair shall be punishable by imprisonment not to exceed two (2) times the term of imprisonment that would otherwise apply. A defense to aggravated home repair fraud does not exist merely because the accused reasonably believed the victim to be a person less than sixty (60) years of age.

SECTION 6. This act shall take effect and be in force from and after July 1, 2000.