Iowa Code: Theft, Fraud, and Related Offenses, Study notes of Business

Download Iowa Code: Theft, Fraud, and Related Offenses and more Study notes Business in PDF only on Docsity! 1 THEFT, FRAUD, AND RELATED OFFENSES, §714.1 CHAPTER 714 THEFT, FRAUD, AND RELATED OFFENSES Referred to in §13.2, 99B.4, 99B.14, 103.38, 169A.14, 203.11, 203C.36, 249A.50, 261B.3A, 331.307, 364.22, 523A.703, 523D.8, 523I.211, 551A.10, 622.51A, 645.2, 645.3, 701.1 714.1 Theft defined. 714.2 Degrees of theft. 714.3 Value. 714.3A Aggravated theft. Repealed by 2019 Acts, ch 140, §9. 714.4 Claim of right. 714.5 Library materials and equipment — unpurchased merchandise — evidence of intention. 714.6 Land. 714.6A Video or equipment rental property theft — evidence of intention — affirmative defense. 714.7 Operating vehicle without owner’s consent. 714.7A Reserved. 714.7B Theft detection devices — shield or removal prohibited. 714.7C Theft of pseudoephedrine — enhancement. 714.7D Retail motor fuel. 714.8 Fraudulent practices defined. 714.9 Fraudulent practice in the first degree. 714.10 Fraudulent practice in the second degree. 714.11 Fraudulent practice in the third degree. 714.12 Fraudulent practice in the fourth degree. 714.13 Fraudulent practice in the fifth degree. 714.14 Value for purposes of fraudulent practices. 714.15 Reproduction of sound recordings. 714.16 Consumer frauds. 714.16A Additional civil penalty for consumer frauds committed against elderly — fund established. 714.16B Identity theft — civil cause of action. 714.16C Consumer education and litigation fund. 714.17 Unlawful advertising and selling of educational courses. 714.18 Evidence of financial responsibility. 714.19 Nonapplicability. 714.20 One contract per person. 714.21 Penalty. 714.21A Civil enforcement. 714.22 Trade and vocational schools — exemption — conditions. Repealed by 2012 Acts, ch 1077, §20. 714.23 Refund policies — penalty. 714.24 Additional requirements. 714.25 Disclosure. 714.26 Intellectual property counterfeiting. 714.27 Scrap metal transactions and reporting — penalties. 714.28 Claims against purchased or pledged goods held by pawnbrokers. 714.29 Records filed with intent to harass or defraud. 714.1 Theft defined. A person commits theft when the person does any of the following: 1. Takes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof. 2. Misappropriates property which the person has in trust, or property of another which the person has in the person’s possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner’s rights in such property, or conceals found property, or appropriates such property to the person’s own use, when the owner of such property is known to the person. a. Failure by a bailee or lessee of personal property to return the property within seventy-two hours after a time specified in a written agreement of lease or bailment shall be evidence of misappropriation. b. If a time is not specified in the written agreement of lease or bailment for the expiration or termination of the lease or bailment or for the return of the personal property, failure by a lessee or bailee to return the property within five days after proper notice to the lessee or bailee shall be evidence of misappropriation. For the purposes of this paragraph, “proper notice” means a written notice of the expiration or termination of the lease or bailment agreement sent to the lessee or bailee by certified or restricted certified mail at the address of the lessee or bailee specified in the agreement. The notice shall be considered effective on Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.1, THEFT, FRAUD, AND RELATED OFFENSES 2 the date of the mailing of the notice regardless of whether or not the lessee or bailee signs a receipt for the notice. 3. Obtains the labor or services of another, or a transfer of possession, control, or ownership of the property of another, or the beneficial use of property of another, by deception. Where compensation for goods and services is ordinarily paid immediately upon the obtaining of such goods or the rendering of such services, the refusal to pay or leaving the premises without payment or offer to pay or without having obtained from the owner or operator the right to pay subsequent to leaving the premises gives rise to an inference that the goods or services were obtained by deception. 4. Exercises control over stolen property, knowing such property to have been stolen, or having reasonable cause to believe that such property has been stolen, unless the person’s purpose is to promptly restore it to the owner or to deliver it to an appropriate public officer. The fact that the person is found in possession of property which has been stolen from two or more persons on separate occasions, or that the person is a dealer or other person familiar with the value of such property and has acquired it for a consideration which is far below its reasonable value, shall be evidence from which the court or jury may infer that the person knew or believed that the property had been stolen. 5. Takes, destroys, conceals or disposes of property in which someone else has a security interest, with intent to defraud the secured party. 6. Makes, utters, draws, delivers, or gives any check, share draft, draft, or written order on any bank, credit union, person, or corporation, and obtains property, the use of property, including rental property, or service in exchange for such instrument, if the person knows that such check, share draft, draft, or written order will not be paid when presented. a. Whenever the drawee of such instrument has refused payment because of insufficient funds, and themaker has not paid the holder of the instrument the amount due thereonwithin ten days of themaker’s receipt of notice from the holder that payment has been refused by the drawee, the court or jury may infer from such facts that the maker knew that the instrument would not be paid on presentation. Notice of refusal of payment shall be by certified mail, or by personal service in the manner prescribed for serving original notices. b. Whenever the drawee of such instrument has refused payment because the maker has no account with the drawee, the court or jury may infer from such fact that the maker knew that the instrument would not be paid on presentation. 7. Obtains gas, electricity or water from a public utility or obtains cable television or telephone service from an unauthorized connection to the supply or service line or by intentionally altering, adjusting, removing or tampering with the metering or service device so as to cause inaccurate readings. 8. Knowingly and without authorization accesses or causes to be accessed a computer, computer system, or computer network, or any part thereof, for the purpose of obtaining computer services, information, or property or knowingly and without authorization and with the intent to permanently deprive the owner of possession, takes, transfers, conceals, or retains possession of a computer, computer system, or computer network or any computer software or computer program, or computer data contained in a computer, computer system, or computer network. 9. a. Obtains the temporary use of video rental property or equipment rental property with the intent to deprive the owner of the use and possession of the video rental property or equipment rental property without the consent of the owner. b. Lawfully obtains the temporary use of video rental property or equipment rental property and fails to return the video rental property or equipment rental property by the agreed time with the intent to deprive the owner of the use and possession of the video rental property or equipment rental property without the consent of the owner. The aggregate value of the video rental property or equipment rental property involved shall be the original retail value of the video rental property or equipment rental property. 10. Any act that is declared to be theft by any provision of the Code. [C51, §2612, 2615 – 2618, 2620, 2621; R60, §806, 807, 4236, 4237, 4240 – 4243, 4245, 4246, 4251; C73, §3895, 3902, 3905 – 3911, 3915; C97, §4831, 4837 – 4842, 4844, 4845, 4850, 4852, 5076; S13, §4850, 4852-c, -d, -e; C24, §13005, 13010, 13014 – 13016, 13018, 13027, 13030, Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) 5 THEFT, FRAUD, AND RELATED OFFENSES, §714.7D intent to knowingly deprive the owner of the use and possession of the video rental property or equipment rental property. 3. It shall be an affirmative defense to a prosecution under section 714.1, subsection 9, paragraph “a”, if the defendant in possession of video rental property or equipment rental property pays the owner the fair market value of the video rental property or equipment rental property or returns the property to the owner within forty-eight hours of arrest, together with any standard overdue charges for the period that the owner was unlawfully deprived of possession, but not to exceed one hundred twenty days, and the value of the damage to the property, if any. 2000 Acts, ch 1201, §10; 2017 Acts, ch 89, §2 714.7 Operating vehicle without owner’s consent. Any person who shall take possession or control of any railroad vehicle, or any self-propelled vehicle, aircraft, or motor boat, the property of another, without the consent of the owner of such, but without the intent to permanently deprive the owner thereof, shall be guilty of an aggravated misdemeanor. A violation of this section may be proved as a lesser included offense on an indictment or information charging theft. [C97, §4813, 4814; S13, §4823; C24, 27, 31, 35, §13092, 13125 – 13127; C39, §5006.05, 13125 – 13127; C46, 50, 54, 58, 62, 66, 71, 73, 75, 77, §321.76, 716.13 – 716.15; C79, 81, §714.7] 714.7A Reserved. 714.7B Theft detection devices — shield or removal prohibited. 1. A person shall not intentionally manufacture or attempt to manufacture, sell or attempt to sell, possess, use, distribute or attempt to distribute, a theft detection shielding device. 2. A person shall not remove or attempt to remove a theft detection device with the intent of committing a theft and without the permission of the merchant who is displaying or selling the goods, wares, or merchandise. 3. A person shall not possess any tool, instrument, or device with the intent to use it in the unlawful removal of a theft detection device. 4. For purposes of this section, “theft detection shielding device” means any laminated or coated bag or device designed to shield merchandise from detection by an electronic or magnetic theft alarm system or any other system designed to alert a person of a possible theft. “Theft detection device”means any electronic or other device attached to goods, wares, or merchandise on display or for sale by a merchant. 5. A person who violates subsection 1 or 3 commits a serious misdemeanor. 6. A person who violates subsection 2 commits the following: a. A simplemisdemeanor if the value of the goods, wares, ormerchandise does not exceed three hundred dollars. b. A serious misdemeanor if the value of the goods, wares, or merchandise exceeds three hundred dollars. 2000 Acts, ch 1108, §1; 2019 Acts, ch 140, §12 714.7C Theft of pseudoephedrine — enhancement. Notwithstanding section 714.2, subsection 5, a person who commits a simple misdemeanor theft of a product containing pseudoephedrine from a retailer as defined in section 126.23A commits a serious misdemeanor. 2004 Acts, ch 1127, §3; 2005 Acts, ch 15, §6, 14 714.7D Retail motor fuel. Upon a second or subsequent conviction of a person under section 714.2, subsection 5, for theft of motor fuel from a retail dealer as defined in section 214A.1, the court may order the state department of transportation to suspend the driver’s license or nonresident operating Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.7D, THEFT, FRAUD, AND RELATED OFFENSES 6 privilege of the convicted person for up to thirty days in lieu of, or in addition to, a fine or imprisonment. 2005 Acts, ch 141, §3 Referred to in §321.215 714.8 Fraudulent practices defined. A person who does any of the following acts is guilty of a fraudulent practice: 1. Makes, tenders or keeps for sale any warehouse receipt, bill of lading, or any other instrument purporting to represent any right to goods, with knowledge that the goods represented by such instrument do not exist. 2. Knowingly attaches or alters any label to any goods offered or kept for sale so as to materially misrepresent the quality or quantity of such goods, or the maker or source of such goods. 3. Knowingly executes or tenders a false certification under penalty of perjury, false affidavit, or false certificate, if the certification, affidavit, or certificate is required by law or given in support of a claim for compensation, indemnification, restitution, or other payment. 4. Makes any entry in or alteration of any public records, or any records of any corporation, partnership, or other business enterprise or nonprofit enterprise, knowing the same to be false. 5. Removes, alters or defaces any serial or other identification number, or any owners’ identification mark, from any property not the person’s own. 6. For the purpose of soliciting assistance, contributions, or other thing of value, falsely represents oneself to be a veteran of the armed forces of the United States, or a member of any fraternal, religious, charitable, or veterans organization, or any pretended organization of a similar nature, or to be acting on behalf of such person or organization. 7. Manufactures, sells, or keeps for sale any token or device suitable for the operation of a coin-operated device or vending machine, with the intent that such token or device may be so used, or with the representation that they can be so used; provided, that the owner or operator of any coin-operated device or vending machine may sell slugs or tokens for use in the person’s own devices. 8. Manufactures or possesses any false or counterfeit label, with the intent that it be placed on merchandise to falsely identify its origin or quality, or who sells any such false or counterfeit label with the representation that it may be so used. 9. Alters or renders inoperative or inaccurate any meter or measuring device used in determining the value of or compensation for the purchase, use or enjoyment of property, with the intent to defraud any person. 10. Does any act expressly declared to be a fraudulent practice by any other section of the Code. 11. Removes, defaces, covers, alters, or destroys any component part number as defined in section 321.1, vehicle identification number as defined in section 321.1, or product identification number as defined in section 321.1, for the purpose of concealing or misrepresenting the identity or year of manufacture of the component part or vehicle. 12. Knowingly transfers or assigns a legal or equitable interest in property, as defined in section 702.14, for less than fair consideration, with the intent to obtain public assistance under chapters 16, 35B, 35D, and 347B, or Title VI, subtitles 2 through 6, or accepts a transfer of or an assignment of a legal or equitable interest in property, as defined in section 702.14, for less than fair consideration, with the intent of enabling the party transferring the property to obtain public assistance under chapters 16, 35B, 35D, and 347B, or Title VI, subtitles 2 through 6. A transfer or assignment of property for less than fair consideration within one year prior to an application for public assistance benefits shall be evidence of intent to transfer or assign the property in order to obtain public assistance for which a person is not eligible by reason of the amount of the person’s assets. If a person is found guilty of a fraudulent practice in the transfer or assignment of property under this subsection the maximum sentence shall be the penalty established for a serious misdemeanor and sections 714.9, 714.10, and 714.11 shall not apply. 13. Fraudulent practices in connection with targeted small business programs. Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) 7 THEFT, FRAUD, AND RELATED OFFENSES, §714.8 a. (1) Knowingly transfers or assigns assets, ownership, or equitable interest in property of a business to a woman or minority person primarily for the purpose of obtaining benefits under targeted small business programs if the transferor would otherwise not be qualified for such programs. (2) Solicits and is awarded a state contract on behalf of a targeted small business for the purpose of transferring the contract to another for a percentage if the person transferring or intending to transfer the work had no intention of performing the work. (3) Knowingly falsifying information on an application for the purpose of obtaining benefits under targeted small business programs. b. A violation under this subsection is grounds for decertification of the targeted small business connected with the violation. Decertification shall be in addition to any penalty otherwise authorized by this section. 14. a. Makes payment pursuant to an agreement with a dealer or market agency for livestock held by the dealer or market agency by use of a financial instrument which is a check, share draft, draft, or written order on any financial institution, as defined in section 203.1, if after seven days from the date that possession of the livestock is transferred pursuant to the purchase, the financial institution refuses payment on the instrument because of insufficient funds in the maker’s account. b. This subsection is not applicable if the maker pays the holder of the instrument the amount due on the instrument within one business day from a receipt of notice by certified mail from the holder that payment has been refused by the financial institution. c. As used in this subsection, “dealer” means a person engaged in the business of buying or selling livestock, either on the person’s own account, or as an employee or agent of a vendor or purchaser. “Market agency” means a person engaged in the business of buying or selling livestock on a commission basis. 15. Obtains or attempts to obtain the transfer of possession, control, or ownership, of the property of another by deception through communications conducted primarily by telephone and involving direct or implied claims that the other person contacted has won or is about to win a prize, or involving direct or implied claims that the other person contacted may be able to recover any losses suffered by such other person in connection with a prize promotion. 16. Knowingly provides false information to the treasurer of state when claiming, pursuant to section 556.19, an interest in unclaimed property held by the state, or knowingly provides false information to a person or fails to disclose the nature, value, and location of unclaimed property prior to entering into a contract to receive compensation to recover or assist in the recovery of property reported as unclaimed pursuant to section 556.11. 17. A packer who includes a confidentiality provision in a contract with a livestock seller in violation of section 202A.4. 18. a. Manufactures, creates, reproduces, alters, possesses, uses, transfers, or otherwise knowingly contributes to the production or use of a fraudulent retail sales receipt or universal product code label with intent to defraud another person engaged in the business of retailing. b. For purposes of this subsection: (1) “Retail sales receipt” means a document intended to evidence payment for goods or services. (2) “Universal product code label” means the unique ten-digit bar code placed on the packaging of an item that may be used for purposes including but not limited to tracking inventory, maintaining price information in a computerized database, and serving as proof of purchase of a particular item. 19. A contractor who enforces a provision in a production contract that provides that information contained in the production contract is confidential as provided in section 202.3. 20. A contract seller who intentionally provides inaccurate information with regard to any matter required to be disclosed under section 558.70, subsection 1, or section 558A.4. 21. Knowingly, by deception and with intent to defraud another person, represents that the child expected as the result of that person’s pregnancy or the pregnancy of another person may be available for adoption. [C51, §2744, 2755; R60, §4394, 4405; C73, §4073, 4084, 4088; C97, §5041, 5056, 5068; C24, 27, §13045, 13058, 13059, 13071; C31, 35, §13045, 13058, 13059, 13071, 13092-d1; C39, Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.16, THEFT, FRAUD, AND RELATED OFFENSES 10 b. “Buyer”, as used in subsection 2, paragraph “h”, means the person to whom the water system is being sold, leased, or rented. c. “Consumer information pamphlet” means a publication which explains water quality, health effects, quality expectations for drinking water, and the effectiveness of water treatment systems. d. “Consummation of sale” means completion of the act of selling, leasing, or renting. e. “Contaminant” means any particulate, chemical, microbiological, or radiological substance in water which has a potentially adverse health effect and for which a maximum contaminant level (MCL) or treatment technique requirement or an action level established in lieu of a maximum contaminant level (MCL), has been specified in the national primary drinking water regulations. f. “Deception” means an act or practice which has the tendency or capacity to mislead a substantial number of consumers as to a material fact or facts. g. “Label”, as used in subsection 2, paragraph “h”, means the written, printed, or graphic matter permanently affixed or attached to or printed on the water treatment system. h. “Manufacturer’s performance data sheet”means a booklet, document, or other printed material containing, at a minimum, the information required pursuant to subsection 2, paragraph “h”. i. The term “merchandise” includes any objects, wares, goods, commodities, intangibles, securities, bonds, debentures, stocks, real estate or services. j. The term “person” includes any natural person or the person’s legal representative, partnership, corporation (domestic and foreign), company, trust, business entity or association, and any agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof. k. The term “sale” includes any sale, offer for sale, or attempt to sell any merchandise for cash or on credit. l. “Seller”, as used in subsection 2, paragraph “h”, means the person offering the water treatment system for sale, lease, or rent. m. The term “subdivided lands” refers to improved or unimproved land or lands divided or proposed to be divided for the purpose of sale or lease, whether immediate or future, into five or more lots or parcels; provided, however, it does not apply to the leasing of apartments, offices, stores or similar space within an apartment building, industrial building or commercial building unless an undivided interest in the land is granted as a condition precedent to occupying space in said structure. n. “Unfair practice”means an act or practice which causes substantial, unavoidable injury to consumers that is not outweighed by any consumer or competitive benefits which the practice produces. o. “Water treatment system” means a device or assembly for which a claim is made that it will improve the quality of drinking water by reducing one or more contaminants through mechanical, physical, chemical, or biological processes or combinations of the processes. As used in this paragraph and in subsection 2, paragraph “h”, each model of a water treatment system shall be deemed a distinct water treatment system. 2. a. The act, use or employment by a person of an unfair practice, deception, fraud, false pretense, false promise, or misrepresentation, or the concealment, suppression, or omission of a material fact with intent that others rely upon the concealment, suppression, or omission, in connection with the lease, sale, or advertisement of any merchandise or the solicitation of contributions for charitable purposes, whether or not a person has in fact been misled, deceived, or damaged, is an unlawful practice. It is deceptive advertising within the meaning of this section for a person to represent in connection with the lease, sale, or advertisement of any merchandise that the advertised merchandise has certain performance characteristics, accessories, uses, or benefits or that certain services are performed on behalf of clients or customers of that person if, at the time of the representation, no reasonable basis for the claim existed. The burden is on the person making the representation to demonstrate that a reasonable basis for the claim existed. A retailer who uses advertising for a product, other than a drug or other product claiming to have a health related benefit or use, prepared by a supplier shall not be liable under Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) 11 THEFT, FRAUD, AND RELATED OFFENSES, §714.16 this section unless the retailer participated in the preparation of the advertisement; knew or should have known that the advertisement was deceptive, false, or misleading; refused to withdraw the product from sales upon the request of the attorney general pending a determination of whether the advertisement was deceptive, false, or misleading; refused upon the request of the attorney general to provide the name and address of the supplier; or refused to cooperate with the attorney general in an action brought against the supplier under this section. “Material fact” as used in this subsection does not include repairs of damage to or adjustments on or replacements of parts with new parts of otherwise new merchandise if the repairs, adjustments or replacements are made to achieve compliance with factory specifications and are made before sale of the merchandise at retail and the actual cost of any labor and parts charged to or performed by a retailer for any such repairs, adjustments and parts does not exceed three hundred dollars or ten percent of the actual cost to a retailer including freight of the merchandise, whichever is less, providing that the seller posts in a conspicuous place notice that repairs, adjustments or replacements will be disclosed upon request. The exemption provided in this paragraph does not apply to the concealment, suppression or omission of a material fact if the purchaser requests disclosure of any repair, adjustment or replacement. b. The advertisement for sale, lease or rent, or the actual sale, lease, or rental of any merchandise at a price or with a rebate or payment or other consideration to the purchaser which is contingent upon the procurement of prospective customers provided by the purchaser, or the procurement of sales, leases, or rentals to persons suggested by the purchaser, is declared to be an unlawful practice rendering any obligation incurred by the buyer in connection therewith, completely void and a nullity. The rights and obligations of any contract relating to such contingent price, rebate, or payment shall be interdependent and inseverable from the rights and obligations relating to the sale, lease, or rental. c. It is an unlawful practice for any person to advertise the sale of merchandise at reduced rates due to the cessation of business operations and after the date of the first such advertisement remain in business under the same or substantially the same ownership, or under the same or substantially the same trade name, or to continue to offer for sale the same type of merchandise at the same location for more than one hundred twenty days. As used in this paragraph “person” includes a person who acquires an ownership interest in the business either within sixty days before the initial advertisement of the sale or at any time after the initial advertisement of the sale. In addition, a person acquiring an ownership interest shall comply with paragraph “g” if the person adds additional merchandise to the sale. d. (1) No person shall offer or advertise within this state for sale or lease, any subdivided lands without first filing with the real estate commission true and accurate copies of all road plans, plats, field notes, and diagrams of water, sewage, and electric power lines as they exist at the time of the filing, however, this filing is not required for a subdivision subject to section 306.21 or chapter 354. A filing shall be accompanied by a fee of fifty dollars for each subdivision included, payable to the real estate commission. (2) False or misleading statements filed pursuant to subparagraph (1) or section 306.21 or chapter 354, and advertising, offers to sell, or contracts not in substantial conformity with the filings made pursuant to section 306.21 or chapter 354 are unlawful. e. Any violations of chapter 123 or any other provisions of law by a manufacturer, distiller, vintner, importer, or any other person participating in the distribution of alcoholic liquor or beer as defined in chapter 123. f. A violation of a provision of sections 535C.1 through 535C.10 is an unlawful practice. g. It is an unlawful practice for a person to acquire directly or indirectly an interest in a business which has either gone out of business or is going out of business and conduct or continue a going-out-of-business sale where additional merchandise has been added to the merchandise of the liquidating business for the purposes of the sale, unless the person provides a clear and conspicuous notice in all advertisements that merchandise has been added. The advertisement shall also state the customary retail price of the merchandise that has been added or brought in for the sale. The person acquiring the interest shall obtain a permit to hold the sale before commencing the sale. If the sale is to be held in a Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.16, THEFT, FRAUD, AND RELATED OFFENSES 12 city which has an ordinance regulating going-out-of-business sales, then the permit shall be obtained from the city. If the sale is to be located outside of a city or in a city which does not have an ordinance regulating going-out-of-business sales, then the permit shall be obtained from the county in which the proposed sale is to be held. The county board of supervisors shall prescribe the procedures necessary to obtain the permit. The permit shall state the percentage of merchandise for sale that was obtained from the liquidating business and the percentage of merchandise for sale that was added from other sources. The permit or an accurate reproduction of the permit shall be clearly and conspicuously posted at all entrances to the site of the sale and at all locations where sales are consummated. A person who violates this paragraph, including any misrepresentation of the presence and the percentage of additional merchandise that had been added to that of the liquidating company, is liable for a civil penalty of not to exceed one thousand dollars for each day of each violation. The civil penalties collected shall be deposited in the general fund of the political entity which prosecutes the violation. The civil penalty is in addition to and not in lieu of any criminal penalty. A political entity enforcing this paragraph may obtain a preliminary injunction without posting a bond to enjoin a violation of paragraph “c” and this paragraph pending a hearing. This paragraph does not prohibit a city or county from adopting an ordinance prohibiting the conducting of a going-out-of-business sale in which additional merchandise is added to the merchandise of the liquidating business for the purposes of the sale. h. It is an unlawful practice for a person to sell, lease, rent, or advertise the sale, lease, or rental of a water treatment system in this state, for which claims or representations of removing health-related contaminants are made, unless the water treatment system: (1) Has been performance tested by a third-party testing agency that has been authorized by the Iowa department of public health. Alternatively, in lieu of third-party performance testing of the manufacturer’s water treatment system, the manufacturer may rely upon the manufacturer’s own test data after approval of the data by an accepted third-party evaluator as provided in this subparagraph. The Iowa department of public health shall review the qualifications of a third-party evaluator proposed by the manufacturer. The department may accept or reject a proposed third-party evaluator based upon the required review. If a third-party evaluator, accepted by the Iowa department of public health, finds that the manufacturer’s test data is reliable, adequate, and fairly presented, the manufacturer may rely upon that data to satisfy the requirements of this subparagraph after filing a copy of the test data and the report of the third-party evaluator with the Iowa department of public health. The testing agency shall use, or the evaluator shall review for the use of, approved methods of performance testing determined to be appropriate by the state hygienic laboratory. (2) Has met the performance testing requirements specified in the testing protocol. (3) Bears a conspicuous and legible label stating, “IMPORTANT NOTICE — Read the Manufacturer’s Performance Data Sheet” and is accompanied by a manufacturer’s performance data sheet. The manufacturer’s performance data sheet shall be given to the buyer and shall be signed and dated by the buyer and the seller prior to the consummation of the sale of the water treatment system. The manufacturer’s performance data sheet shall contain information including, but not limited to: (a) The name, address, and telephone number of the seller. (b) The name, brand, or trademark under which the unit is sold, and its model number. (c) Performance and test data including, but not limited to, the list of contaminants certified to be reduced by the water treatment system; the test influent concentration level of each contaminant or surrogate for that contaminant; the percentage reduction or effluent concentration of each contaminant or surrogate; where applicable, the maximum contaminant level (MCL) or a treatment technique requirement or an action level established in lieu of a maximum contaminant level (MCL) specified in the national primary drinking water regulations; where applicable, the approximate capacity in gallons; where applicable, the period of time during which the unit is effective in reducing contaminants based upon the contaminant or surrogate influent concentrations used for the performance tests; where Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) 15 THEFT, FRAUD, AND RELATED OFFENSES, §714.16 (2) It is an unlawful practice for a person to cause a consumer to incur a financial obligation as a result of accepting a free offer unless one of the following occurs: (a) The person obtains the consumer’s billing information directly from the consumer. For purposes of this subparagraph division, a person obtains a consumer’s billing information directly from the consumer if the billing information is obtained by the person or by the person’s agent or employee. (b) The consumer gives affirmative consent at the time the consumer accepts a free offer for the person to provide billing information to a person other than the person making the free offer. (3) It is an unlawful practice for a person to impose a financial obligation on a consumer as a result of the consumer’s acceptance of a free offer unless the consumer’s affirmative consent to the terms of the free offer as disclosed in subparagraph (1) is obtained. (4) It is an unlawful practice for a person that makes a free offer to a consumer to fail or refuse to cancel the free offer if the consumer has used, or made reasonable efforts to attempt to use, one of the procedures required to be available to the consumer as described in subparagraph (1), subparagraph division (e). (5) This paragraph “o” does not apply to free offers made in connection with services that are subject to the federal Communications Act of 1934, 47 U.S.C. §151 et seq. (6) For purposes of this paragraph “o”: (a) “Affirmative consent” means a consumer’s agreement to incur a financial obligation as a result of accepting a free offer, or to provide the consumer’s billing information, given or made in the manner specifically identified for the consumer to indicate the consumer’s agreement. (b) “Billing information” means any record or information compiled or maintained with respect to a consumer that identifies the consumer and provides a means by which the consumer’s financial obligation incurred by accepting a free offer may be paid or otherwise satisfied, including but not limited to information pertaining to a consumer’s credit card, payment card, charge card, debit card, checking, savings, or other banking account, and electronic funds transfer information. (c) “Clear and conspicuous information” means language that is readily understandable and presented in such size, color, contrast, and location, or audibility and cadence, compared to other language, as to be readily noticed and understood, and that is in close proximity to the request for consent to a free offer. (d) “Consumer” means an individual who seeks to accept or accepts a free offer. (e) (i) “Free offer” means an offer of goods or services without cost, or for a one-time payment to cover only incidental charges such as shipping or handling, to a consumer that, if accepted, causes the consumer to incur a financial obligation for any of the following: (A) The goods or services received. (B) Additional goods or services other than those initially received. (C) Enrollment in a membership, subscription, or service contract as a result of accepting the offer. (ii) “Free offer” does not include a free good or service that is received by a consumer as a result of the consumer’s entering into an agreement for enrollment in a membership, subscription, or service contract that is not otherwise a free offer or a consequence of the consumer’s agreement to accept a free offer. (iii) “Free offer” does not include enrollment in a subscription to a publication, including but not limited to a magazine, newspaper, or other periodical, if the consumer may cancel the subscription at any time and receive a refund for issues not yet distributed, or in the case of a newspaper, a refund for newspapers that would otherwise be distributed after the expiration of the current month. p. It is an unlawful practice for an athlete agent to violate any of the provisions of chapter 9A. 3. When it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this section or when the attorney general believes it to be in the public interest that an investigation should be made Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.16, THEFT, FRAUD, AND RELATED OFFENSES 16 to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any such practice, the attorney general may: a. Require such person to file on such forms as the attorney general may prescribe a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning the sale or advertisement of merchandise by such person, and such other data and information as the attorney general may deem necessary; b. Examine under oath any person in connection with the sale or advertisement of any merchandise; c. Examine anymerchandise or sample thereof, record, book, document, account or paper as the attorney general may deem necessary; and d. Pursuant to an order of a district court impound any record, book, document, account, paper, or sample of merchandise that is produced in accordance with this section, and retain the same in the attorney general’s possession until the completion of all proceedings in connection with which the same are produced. 4. a. To accomplish the objectives and to carry out the duties prescribed by this section, the attorney general, in addition to other powers conferred upon the attorney general by this section, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, prescribe such forms and promulgate such rules as may be necessary, which rules shall have the force of law. b. Subject to paragraph “c”, information, documents, testimony, or other evidence provided to the attorney general by a person pursuant to paragraph “a” or subsection 3, or provided by a person as evidence in any civil action brought pursuant to this section, shall not be admitted in evidence, or used in any manner whatsoever, in any criminal prosecution or forfeiture proceeding against that person. If a criminal prosecution or forfeiture proceeding is initiated in a state court against a person who has provided information pursuant to paragraph “a” or subsection 3, the state shall have the burden of proof that the information provided was not used in any manner to further the criminal investigation, prosecution, or forfeiture proceeding. c. Paragraph “b” does not apply unless the person has first asserted a right against self-incrimination and the attorney general has elected to provide the person with a written statement that the information, documents, testimony, or other evidence at issue are subject to paragraph “b”. After a person has been provided with such a written statement by the attorney general, a claim of privilege against self-incrimination is not a defense to any action or proceeding to obtain the information, documents, testimony, or other evidence. The limitation on the use of evidence in a criminal proceeding contained in this section does not apply to any prosecution or proceeding for perjury or contempt of court committed in the course of the giving or production of the information, documents, testimony, or other evidence. 5. Service by the attorney general of any notice requiring a person to file a statement or report, or of a subpoena upon any person, shall be made personally within this state, but if such cannot be obtained, substituted service therefor may be made in the following manner: a. Personal service thereof without this state; or b. The mailing thereof by registered mail to the last known place of business, residence or abode within or without this state of such person for whom the same is intended; or c. As to any person other than a natural person, in the manner provided in the rules of civil procedure as if a petition had been filed; or d. Such service as a district court may direct in lieu of personal service within this state. 6. If a person fails or refuses to file a statement or report, or obey any subpoena issued by the attorney general, the attorney general may, after notice, apply to the Polk county district court or the district court for the county in which the person resides or is located and, after hearing, request an order: a. Granting injunctive relief, restraining the sale or advertisement of any merchandise by such persons. b. Dissolving a corporation created by or under the laws of this state or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) 17 THEFT, FRAUD, AND RELATED OFFENSES, §714.16 revoking or suspending any other licenses, permits, or certificates issued pursuant to law to such person which are used to further the allegedly unlawful practice. c. Granting such other relief as may be required until the person files the statement or report, or obeys the subpoena. 7. A civil action pursuant to this section shall be by equitable proceedings. If it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in a practice declared to be unlawful by this section, the attorney general may seek and obtain in an action in a district court a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the person from continuing the practice or engaging in the practice or doing an act in furtherance of the practice. The court may make orders or judgments as necessary to prevent the use or employment by a person of any prohibited practices, or which are necessary to restore to any person in interest any moneys or property, real or personal, which have been acquired by means of a practice declared to be unlawful by this section, including the appointment of a receiver in cases of substantial and willful violation of this section. If a person has acquired moneys or property by any means declared to be unlawful by this section and if the cost of administering reimbursement outweighs the benefit to consumers or consumers entitled to the reimbursement cannot be located through reasonable efforts, the court may order disgorgement of moneys or property acquired by the person by awarding the moneys or property to the state to be used by the attorney general for the administration and implementation of this section. Except in an action for the concealment, suppression, or omission of a material fact with intent that others rely upon it, it is not necessary in an action for reimbursement or an injunction, to allege or to prove reliance, damages, intent to deceive, or that the person who engaged in an unlawful act had knowledge of the falsity of the claim or ignorance of the truth. A claim for reimbursement may be proved by any competent evidence, including evidence that would be appropriate in a class action. In addition to the remedies otherwise provided for in this subsection, the attorney general may request and the court may impose a civil penalty not to exceed forty thousand dollars per violation against a person found by the court to have engaged in a method, act, or practice declared unlawful under this section; provided, however, a course of conduct shall not be considered to be separate and different violations merely because the conduct is repeated to more than one person. In addition, on the motion of the attorney general or its own motion, the court may impose a civil penalty of not more than five thousand dollars for each day of intentional violation of a temporary restraining order, preliminary injunction, or permanent injunction issued under authority of this section. A penalty imposed pursuant to this subsection is in addition to any penalty imposed pursuant to section 537.6113. Civil penalties ordered pursuant to this subsection shall be paid to the treasurer of state to be deposited in the general fund of the state. 8. When a receiver is appointed by the court pursuant to this section, the receiver shall have the power to sue for, collect, receive and take into possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, derived by means of any practice declared to be illegal and prohibited by this section, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use or employment of any unlawful practices and submits proof to the satisfaction of the court that the person has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent the person has sustained out-of-pocket losses. In the case of a partnership or business entity, the receiver shall settle the estate and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required. 9. Subject to an order of the court terminating the business affairs of any person after receivership proceedings held pursuant to this section, the provisions of this section shall not Fri Dec 03 22:09:08 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.16C, THEFT, FRAUD, AND RELATED OFFENSES 20 Farm mediation services appropriation; 2017 Acts, ch 167, §2; 2018 Acts, ch 1168, §16; 2019 Acts, ch 163, §20; 2020 Acts, ch 1121, §1; 2021 Acts, ch 166, §20 Appropriations for criminal prosecutions, criminal appeals, and state tort claim representation; 2017 Acts, ch 167, §25; 2018 Acts, ch 1168, §16; 2019 Acts, ch 163, §20; 2020 Acts, ch 1121, §1; 2021 Acts, ch 166, §20 714.17 Unlawful advertising and selling of educational courses. It shall be unlawful for any person, firm, association, or corporation maintaining, advertising, or conducting in Iowa any educational course for profit, or for tuition charge, whether by classroom instructions, by correspondence, or by other delivery method to: 1. Falsely advertise or represent to any person any matter material to an educational course. All advertising of such courses shall adhere to and comply with the applicable rules and regulations of the federal trade commission. 2. Collect tuition or other charges in excess of one hundred fifty dollars in the case of educational courses offered by correspondence, in advance of the receipt and approval by the pupil of the first assignment or lesson of such course. Any contract providing for advance payment of more than one hundred fifty dollars shall be voidable on the part of the pupil or any person liable for the tuition provided for in the contract. 3. Promise or guarantee employment utilizing information, training, or skill purported to be provided or otherwise enhanced by an educational course, unless the promisor or guarantor offers the student or prospective student a bona fide contract of employment agreeing to employ said student or prospective student for a period of not less than one hundred twenty days in a business or other enterprise regularly conducted by the promisor or guarantor and in which such information, training, or skill is a normal condition of employment. [C66, 71, 73, 75, 77, §713A.1; C79, 81, §714.17] 2012 Acts, ch 1077, §10 Referred to in §261G.4, 714.19, 714.21, 714.21A 714.18 Evidence of financial responsibility. 1. Every person, firm, association, or corporation maintaining or conducting in Iowa any educational course by classroom instruction or by correspondence or by other delivery method, or soliciting in Iowa the sale of such course, shall file with the college student aid commission, in a format prescribed by the commission, all of the following: a. A continuous corporate surety bond to the state of Iowa in the sum of fifty thousand dollars or ten percent of the total annual tuition determined in accordance with subsection 2, whichever is less, conditioned on the faithful performance of all contracts and agreements with students made by such person, firm, association, or corporation, or their salespersons. The aggregate liability of the surety for all breaches of the conditions of the bond shall not exceed the sum of the bond. The surety on the bond may cancel the bond upon giving thirty days’ written notice to the college student aid commission and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of the cancellation. b. A statement designating a resident agent for the purpose of receiving service in civil actions. In the absence of such designation, service may be had upon the secretary of state if service cannot otherwise be made in this state. c. A copy of any catalog, prospectus, brochure, or other advertising material intended for distribution in Iowa. Such material shall state the cost of the educational course offered, the schedule of tuition refunds for portions of the educational course not completed, and if no refunds are to be paid, the material shall so state. Any contract induced by advertising materials not previously filed as provided in this chapter shall be voidable on the part of the pupil or any person liable for the tuition provided for in the contract. 2. a. A school that files with the college student aid commission a continuous corporate surety bond in a sum less than fifty thousand dollars shall provide to the college student aid commission, in the format prescribed by the commission, a notarized statement attesting to the total amount of tuition the school charged to students in the immediately preceding fiscal year. The commission shall determine the sufficiency of the statement and the amount of the bond or, as permitted under subsection 3, letter of credit. Tuition information submitted pursuant to this subsection shall be kept confidential. Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2) 21 THEFT, FRAUD, AND RELATED OFFENSES, §714.19 b. The aggregate liability of the surety for all breaches of the conditions of the bond shall not exceed the sum of the bond. The surety on the bond may cancel the bond upon giving thirty days’ written notice to the college student aid commission and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of the cancellation. 3. a. The college student aid commission may accept a letter of credit issued by a state or federally chartered bank or credit union in lieu of and for the amount of the corporate surety bond required under subsection 2. b. For purposes of this chapter and chapter 261B, a letter of credit must meet all of the following conditions: (1) Be payable to the commission. (2) Be valid for a period of at least one year from the date of issuance and subject to renewal as required by the commission. (3) Allow the commission to draw one or multiple installments of the total letter of credit amount upon making the required presentations to the issuer. c. For purposes of this section, “letter of credit” means a financial instrument subject to the provisions of chapter 554, article 5, with irrevocable terms and conditions that cannot be modified or canceled after issuance without the consent of all of the parties. 4. If a letter of credit accepted by the college student aid commission under subsection 3 is canceled, revoked, not renewed, or otherwise fails to be of full force and effect, the school shall comply with the provisions of subsection 2. 5. This section shall not apply to the provision of an educational course of flight instruction under regulations promulgated by the federal aviation administration for which students do not pay tuition in advance of instruction and which students may cancel at any time with no further monetary obligation. [C66, 71, 73, 75, 77, §713A.2; C79, 81, §714.18] 85 Acts, ch 212, §21; 89 Acts, ch 240, §6; 90 Acts, ch 1222, §1, 2; 2002 Acts, ch 1140, §40-42; 2009 Acts, ch 12, §15; 2012 Acts, ch 1077, §11, 12; 2015 Acts, ch 140, §50, 51, 53, 54; 2021 Acts, ch 158, §3 – 5 Referred to in §261B.4, 261B.11, 261G.4, 714.19, 714.21, 714.21A, 714.24 Subsection 1, unnumbered paragraph 1 amended Subsection 1, paragraph a amended Subsections 2 – 5 amended 714.19 Nonapplicability. The provisions of sections 714.17 and 714.18, this section, and sections 714.20 and 714.21 shall not apply to the following: 1. A community college established under chapter 260C or an institution of higher learning under the control of the state board of regents. 2. A public college or university created or authorized by the laws of any other state to grant degrees, in which state the college or university maintains its principal domicile and from which the college or university receives public funds to support the operating costs of the college or university. 3. A school district described in chapter 274. 4. Private and nonprofit elementary or secondary schools recognized by the department of education or the board of directors of a school district for the purpose of complying with chapter 299 and employing teachers licensed under chapter 272. 5. Nonprofit schools exclusively engaged in training persons with disabilities in the state of Iowa. 6. Schools and educational programs conducted by firms, corporations, or persons for which no fee is charged to any student or any other party who assumes the cost of education on the student’s behalf. 7. Seminars, refresher courses, and schools of instruction conducted by professional, business, or farming organizations or associations for the members and employees of members of such organizations or associations. A person who provides instruction under this subsection who is not a member or an employee of a member of the organization or association shall not be eligible for this exemption. Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.19, THEFT, FRAUD, AND RELATED OFFENSES 22 8. Private college preparatory schools accredited or probationally accredited under section 256.11, subsection 13. 9. Private, nonprofit schools that meet the criteria established under section 261.9, subsection 1. [C66, 71, 73, 75, 77, §713A.3; C79, 81, §714.19] 86 Acts, ch 1245, §1498; 89 Acts, ch 240, §7; 96 Acts, ch 1129, §108; 2001 Acts, ch 24, §59; 2010 Acts, ch 1079, §19; 2012 Acts, ch 1077, §13 – 15; 2018 Acts, ch 1026, §173; 2021 Acts, ch 158, §6, 7 Referred to in §261B.4, 261B.11, 714.24 Subsections 1 – 4 and 6 amended Subsection 8 stricken and former subsections 9 and 10 renumbered as 8 and 9 714.20 One contract per person. It shall be unlawful to sell more than one lifetime contract to any one person. [C66, 71, 73, 75, 77, §713A.4; C79, 81, §714.20] Referred to in §261G.4, 714.19, 714.21, 714.21A, 714.24 714.21 Penalty. Violation of any of the provisions of section 714.17, 714.18 or 714.20 shall be a serious misdemeanor. [C66, 71, 73, 75, 77, §713A.5; C79, 81, §714.21] Referred to in §261G.4, 714.19, 714.24 714.21A Civil enforcement. A violation of chapter 261B, or section 714.17, 714.18, 714.20, 714.23, or 714.25 constitutes an unlawful practice pursuant to section 714.16. 2009 Acts, ch 12, §16 Referred to in §714.24 714.22 Trade and vocational schools— exemption— conditions. Repealed by 2012 Acts, ch 1077, §20. 714.23 Refund policies — penalty. 1. For purposes of this section: a. “Payment period” means the same as set forth in 34 C.F.R. §668.4. b. “Postsecondary educational program” means a series of postsecondary educational courses that lead to a recognized educational credential including but not limited to an academic or professional degree, diploma, license, or other certification or designation, regardless of whether the school awards the credential. c. “Proprietary school”means a person offering a postsecondary educational program, for profit. d. “School period” means the course, term, payment period, postsecondary educational program, or other period for which the school assessed tuition charges to the student. 2. a. A proprietary school shall refund all tuition charges to a student who withdraws within the first two calendar weeks of instruction. b. A proprietary school shall make a pro rata refund of tuition charges to a student who terminates from any of the school’s postsecondary educational programs or courses after the first two calendar weeks in an amount that is not less than ninety-five percent of the amount of tuition charged to the student multiplied by the ratio of the number of calendar days remaining in the school period to the total number of calendar days in the school period. If a terminating student has completed sixty percent or more of a school period, the school offering the postsecondary educational program is not required to refund tuition charges to the student. c. (1) A proprietary school as provided in subparagraph (2) shall provide to a student who terminates after the first two calendar weeks a refund of tuition charges in an amount that is not less than ninety-five percent of the amount of tuition charged to the student multiplied by the ratio of the remaining number of calendar days in the school period to the total number of calendar days in the school period. Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2) 25 THEFT, FRAUD, AND RELATED OFFENSES, §714.26 (1) The percentage of graduating students who were placed in jobs in fields related to the postsecondary educational programs. (2) The percentage of graduating students who went on to further education immediately upon graduation. (3) The percentage of students who, ninety days after graduation, were without a job and had not gone on to further education. (4) The method by which the proprietary school collected and verified the validity of data provided in accordance with this paragraph “d”. e. Information provided by the proprietary school in accordance with paragraph “c” and, if applicable, paragraph “d”, shall include all of the following additional data: (1) The applicable program name and the normal length of time required to complete the program. (2) The total number of students in the cohort for which data is reported and the year in which the students began the program. (3) The percentages of students that met the conditions described in paragraph “c” and, if applicable, paragraph “d”, by the most recent ending date for program completion in each of the school’s programs. f. If claims are made by the proprietary school as to income levels of students who have graduated and are working in fields related to the proprietary school’s postsecondary educational programs, the proprietary school shall inform the student of the method used to derive such information. 3. A proprietary school that is initiating operation for the first time is exempt from data reporting under subsection 2, paragraphs “c” and “d”, until the school’s first biennial renewal application under section 714.24, subsection 5. 4. This section shall not apply to any of the following: a. A proprietary school that is eligible for federal student financial aid under Tit. IV of the federal Higher Education Act of 1965, as amended. b. A person described in section 714.23, subsection 11. 88 Acts, ch 1274, §47; 89 Acts, ch 296, §87; 90 Acts, ch 1222, §4; 2007 Acts, ch 10, §182; 2012 Acts, ch 1077, §19; 2021 Acts, ch 158, §10 Referred to in §261G.4, 714.21A, 714.24 Section amended 714.26 Intellectual property counterfeiting. 1. Definitions. As used in this section unless the context otherwise requires: a. “Counterfeit mark” means any unauthorized reproduction or copy of intellectual property, or intellectual property affixed to any item knowingly sold, offered for sale, manufactured, or distributed, or identifying services offered or rendered, without authority of the owner of the intellectual property. b. “Intellectual property” means any trademark, service mark, trade name, label, term, device, design, or word adopted or used by a person to identify the items or services of the person. c. “Retail value” means the highest value of an item determined by any reasonable standard at the time the item bearing or identified by a counterfeit mark is seized. If a seized item bearing or identified by a counterfeit mark is a component of a finished product, “retail value” also means the highest value, determined by any reasonable standard, of the finished product on which the component would have been utilized. The retail value shall be the retail value of the aggregate quantity of all items seized which bear or are identified by a counterfeit mark. For purposes of this paragraph, “reasonable standard” includes but is not limited to the market value within the community, actual value, replacement value, or the counterfeiter’s regular selling price for the item bearing or identified by a counterfeit mark, or the intellectual property owner’s regular selling price for an item similar to the item bearing or identified by a counterfeit mark. 2. Criminal offense. A person who knowingly manufactures, produces, displays, advertises, distributes, offers for sale, sells, possesses with intent to sell or distributes any Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2) §714.26, THEFT, FRAUD, AND RELATED OFFENSES 26 item or knowingly provides service bearing or identified by a counterfeit mark commits intellectual property counterfeiting. a. (1) A person commits intellectual property counterfeiting in the first degree if any of the following apply: (a) The person is manufacturing or producing an item bearing or identified by a counterfeit mark. (b) The offense involves more than one thousand items bearing or identified by a counterfeit mark or the total retail value of such items is equal to or greater than ten thousand dollars. (c) The offense is a third or subsequent violation of this section. (2) Intellectual property counterfeiting in the first degree is a class “C” felony. b. (1) A person commits intellectual property counterfeiting in the second degree if any of the following apply: (a) The offense involves more than one hundred items but does not involve more than one thousand items bearing or identified by a counterfeit mark or the total retail value of such items is equal to or greater than one thousand dollars but less than ten thousand dollars. (b) The offense is a second violation of this section. (2) Intellectual property counterfeiting in the second degree is a class “D” felony. c. All intellectual property counterfeiting which is not intellectual property counterfeiting in the first degree or second degree is intellectual property counterfeiting in the third degree. Intellectual property counterfeiting in the third degree is an aggravated misdemeanor. 3. Evidence. Any state or federal certificate of registration of any intellectual property shall be prima facie evidence of ownership of the intellectual property in dispute. 4. Seizure and disposition. Any items bearing or identified by a counterfeit mark, and all personal property, including but not limited to any items, objects, tools, machines, equipment, instrumentalities, or vehicles used in connection with a violation of this section, shall be seized by any law enforcement agency. a. All seized personal property shall be disposed of in accordance with section 809.5 or as provided in paragraph “b”. b. Upon request of the intellectual property owner, all seized items bearing or identified by a counterfeit mark shall be released by the seizing agency to the intellectual property owner for destruction or disposition. If the intellectual property owner does not request release of the seized items, the items shall be destroyed unless the intellectual property owner consents to another disposition. 2004 Acts, ch 1112, §1; 2004 Acts, ch 1175, §390; 2013 Acts, ch 30, §210 714.27 Scrap metal transactions and reporting — penalties. 1. For purposes of this section, and unless the context otherwise requires, the following definitions shall apply: a. “Scrap metal” means any metal suitable for reprocessing. “Scrap metal” does not include a motor vehicle, but does include a catalytic converter detached from amotor vehicle. b. “Scrap metal dealer” means any person operating a business at a fixed or mobile location that is engaged in one of the following activities: (1) Buying, selling, procuring, collecting, gathering, soliciting, or dealing in scrap metal. (2) Operating, managing, or maintaining a scrap metal yard. c. “Scrap metal yard”means any yard, plot, space, enclosure, building, mobile facility, or other place where scrap metal is collected, gathered together, stored, or kept for shipment, sale, or transfer. 2. a. A person shall not sell scrap metal to a scrap metal dealer in this state unless the person provides to the scrap metal dealer, at or before the time of sale, the person’s name, address, and place of business, if any, and presents to the scrap metal dealer a valid driver’s license or nonoperator’s identification card, military identification card, passport, or other government-issued photo identification. b. A scrap metal dealer shall not make an initial purchase of scrap metal from a person without demanding and receiving the information required by this subsection. However, after an initial transaction, a scrap metal dealer may only require the person’s name and place of Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2) 27 THEFT, FRAUD, AND RELATED OFFENSES, §714.28 business for subsequent purchases, provided the scrap metal dealer retains all information received during the initial transaction. 3. A scrap metal dealer shall keep a confidential register or log of each transaction, including a record of the information required by subsection 2. All records and information kept pursuant to this subsection shall be retained for at least two years, and shall be provided to a law enforcement agency or other officer or employee designated by a county or city to enforce this section upon request during normal business hours when the law enforcement agency or designated officer or employee of a county or city has reasonable grounds to request such information as part of an investigation. A law enforcement agency or designated officer or employee of a county or city shall preserve the confidentiality of the information provided under this subsection and shall not disclose it to a third party, except as may be necessary in enforcement of this section or the prosecution of a criminal violation. 4. All scrap metal transactions, other than those transactions exempt pursuant to subsection 5, in which the total sale price exceeds fifty dollars shall require payment by check or electronic funds transfer. 5. The following scrap metal transactions are exempt from the requirements of this section: a. Transactions in which the total sale price is fifty dollars or less, except transactions for the sale of catalytic converters. b. Transactions for the sale of catalytic converters in which the total sale price is seventy-five dollars or less. c. Transactions in which a scrap metal dealer is selling scrap metal. d. Transactions in which the person selling the scrap metal is known to the scrap metal dealer purchasing the scrap metal to be the officer, employee, or agent of an established commercial or industrial business, operating from a fixed location, that may reasonably be expected to produce scrap metal during the operation of the business. 6. a. The provisions of this section shall take precedence over and supersede any local ordinance adopted by a political subdivision that regulates scrap metal transactions. b. Notwithstanding paragraph “a” of this subsection, a city ordinance regarding scrap metal or other scrap material in effect prior to January 1, 2012, in a city with a population exceeding one hundred fifty thousand as shown by the 2010 federal decennial census may continue to be enforced by the city which adopted it. 7. A person who violates subsection 2, paragraph “a”, or a person who conducts a scrap metal transaction by or on behalf of a scrap metal dealer who violates this section shall be subject to a civil penalty as follows: a. An initial violation shall subject the person to a civil penalty in the amount of one hundred dollars. b. A second violation within two years shall subject the person to a civil penalty in the amount of five hundred dollars. c. A third or subsequent violation within two years shall subject the person to a civil penalty in the amount of one thousand dollars. 2011 Acts, ch 51, §1; 2012 Acts, ch 1021, §112; 2012 Acts, ch 1099, §1 Referred to in §805.8C(10) 714.28 Claims against purchased or pledged goods held by pawnbrokers. 1. As used in this section, unless the context otherwise requires: a. “Claimant”means a personwho claims that the person’s propertywasmisappropriated. b. “Conveying customer” means a person who delivers property into the custody of a pawnbroker, either by pawn, sale, consignment, or trade. c. “Misappropriated” means stolen, embezzled, converted, or otherwise wrongfully appropriated against the will of the rightful owner. 2. To obtain possession of purchased or pledged goods held by a pawnbroker which a claimant claims to have been misappropriated, the claimant must notify the pawnbroker by certified mail, return receipt requested, or in person evidenced by signed receipt, of the claimant’s claim to the purchased or pledged goods. The notice must contain a complete and accurate description of the purchased or pledged goods andmust be accompanied by a legible Fri Dec 03 22:09:09 2021 Iowa Code 2022, Chapter 714 (35, 2)