SENATE BILL 582
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Phil A. Griego
AN ACT
RELATING TO BUSINESS; ENACTING THE LOCAL HISPANO ARTS AND CRAFTS SALES ACT; PROVIDING REQUIREMENTS FOR THE LABELING OF ITEMS AS AUTHENTIC LOCAL HISPANO ARTS AND CRAFTS; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Local Hispano Arts and Crafts Sales Act".
Section 2. DEFINITIONS.--As used in the Local Hispano Arts and Crafts Sales Act:
A. "authentic local Hispano arts and crafts" means any products, including tinwork, furniture, straw applique and woven goods, that are:
(1) made from materials harvested or produced in New Mexico;
(2) local Hispano handmade; and
(3) not made by machine;
B. "local Hispano" means a person of Spanish descent who has documentation demonstrating that:
(1) the person resides in New Mexico;
(2) the person's family has resided in New Mexico for four generations; and
(3) at least one of the person's parents has a Spanish surname;
C. "local Hispano crafted" means any product that is made by a local Hispano but is not entirely local Hispano handmade or is at least in part made by machine, including local Hispano-assembled and local Hispano-decorated products and other products consistent with this definition and approved by rules adopted under the Local Hispano Arts and Crafts Sales Act;
D. "local Hispano handmade" means any product in which the entire shaping and forming of the product from raw materials and its finishing and decoration are accomplished by local Hispano hand labor and manually controlled methods that permit the maker to control and vary the construction, shape, design or finish of each part of each individual product, but does not exclude the use of hand tools and equipment for buffing, polishing, grinding, drilling, sawing or sewing and other processes approved by rules adopted under the Local Hispano Arts and Crafts Sales Act; and
E. "made by machine" means the producing or reproducing of a product in mass production by mechanically stamping, blanking, weaving or offset printing.
Section 3. PROHIBITIONS ON REPRESENTATION OF LOCAL HISPANO-MADE PRODUCTS AS GENUINE.--It is unlawful to barter, trade, sell or offer for sale or trade any product represented as produced by a local Hispano unless the product is produced, designed or created by the labor or workmanship of a local Hispano.
Section 4. INQUIRY AS TO PRODUCER--DUTY OF INQUIRY--ELECTION TO LABEL AUTHENTIC LOCAL HISPANO ARTS AND CRAFTS.--
A. It is the duty of every person selling or offering for sale a product that is represented to be authentic local Hispano arts and crafts to make due inquiry of the person's suppliers concerning the true nature of the materials, product design and process of manufacture to determine whether the product may be lawfully represented as authentic local Hispano arts and crafts.
B. Each person may elect to label or otherwise clearly and conspicuously disclose as authentic local Hispano arts and crafts all articles that are authentic local Hispano arts and crafts in accordance with the Local Hispano Arts and Crafts Sales Act and rules adopted pursuant to that act.
C. Rules adopted under the Local Hispano Arts and Crafts Sales Act may specify designations other than "authentic local Hispano arts and crafts", including a designation of "local Hispano crafted", for authorized labeling as local Hispano arts and crafts.
Section 5. UNLAWFUL ACTS.--It is unlawful for any person to:
A. sell or offer for sale any products represented to be local Hispano handmade or authentic local Hispano arts and crafts unless such products are in fact local Hispano handmade or authentic local Hispano arts and crafts;
B. sell or offer for sale any products represented to be local Hispano crafted unless such products are in fact local Hispano crafted;
C. represent that any local Hispano arts and crafts product is made of a material unless it is made of that material;
D. solicit or buy for resale as authentic local Hispano arts and crafts any products that are known in fact not to be authentic; or
E. prepare, disseminate or otherwise engage in any unfair or deceptive trade practice, including any false, misleading or deceptive advertising, or any unconscionable trade practice, regarding local Hispano arts and crafts.
Section 6. ENFORCEMENT BY ATTORNEY GENERAL OR DISTRICT ATTORNEY.--The attorney general or a district attorney with jurisdiction over a matter shall enforce the provisions of the Local Hispano Arts and Crafts Sales Act. Either the attorney general or a district attorney with jurisdiction over a matter may take action to enforce the provisions of the Local Hispano Arts and Crafts Sales Act.
Section 7. VIOLATION OF ACT--PENALTIES.--
A. In an action brought by the attorney general or a district attorney for a violation under the provisions of the Local Hispano Arts and Crafts Sales Act, the district court may order temporary or permanent injunctive relief. The district court shall order restitution and such other relief as may be necessary to redress injury to any person resulting from the violation.
B. In any action brought under the Local Hispano Arts and Crafts Sales Act, if the court finds that a person is willfully using or has willfully used a method, act or practice declared unlawful by the Local Hispano Arts and Crafts Sales Act, the attorney general or district attorney, upon petition to the court, may recover, on behalf of the state, a civil penalty not to exceed five hundred dollars ($500) per violation.
C. Any person willfully and knowingly violating the provisions of the Local Hispano Arts and Crafts Sales Act is guilty of a petty misdemeanor when the violation involves property valued at less than two thousand five hundred dollars ($2,500) and shall be punished by a fine of not less than one hundred dollars ($100) per violation per day, up to a maximum fine of five hundred dollars ($500) or imprisonment for a definite term not to exceed six months, or both.
D. Any person willfully and knowingly violating the provisions of the Local Hispano Arts and Crafts Sales Act is guilty of a misdemeanor when the violation involves property valued at or in excess of two thousand five hundred dollars ($2,500) and less than twenty thousand dollars ($20,000) and shall be punished by a fine of not less than one hundred dollars ($100) per violation per day, up to a maximum fine of one thousand dollars ($1,000) or by imprisonment for a definite term not to exceed one year, or both.
E. Any person willfully and knowingly violating the provisions of the Local Hispano Arts and Crafts Sales Act is guilty of a fourth degree felony when the violation involves property valued at or in excess of twenty thousand dollars ($20,000) and shall be punished by a fine of not less than one hundred dollars ($100) per violation per day, up to a maximum fine of five thousand dollars ($5,000) or by imprisonment for a definite term not to exceed eighteen months, or both.
Section 8. PRIVATE RIGHT OF ACTION--DAMAGES.--Any person who suffers financial injury or damages by reason of any conduct declared to be in violation of the provisions of the Local Hispano Arts and Crafts Sales Act may sue in district court. Upon a showing that the Local Hispano Arts and Crafts Sales Act is being violated, the court may award damages and order injunctive relief and shall award the cost of the suit, including reasonable attorney fees. If the court finds that the party charged with violating the Local Hispano Arts and Crafts Sales Act has willfully violated that act, the court may award treble damages to the party complaining of the violation. Section 9. ADMINISTRATIVE RULES.--The attorney general is authorized to promulgate necessary rules, pursuant to the Administrative Procedures Act, to further the purpose and implement the provisions of the Local Hispano Arts and Crafts Sales Act.
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