Passed by the Senate February 10, 2012 YEAS 46   ________________________________________ President of the Senate Passed by the House February 27, 2012 YEAS 96   ________________________________________ Speaker of the House of Representatives | I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is SENATE BILL 6172 as passed by the Senate and the House of Representatives on the dates hereon set forth. ________________________________________ Secretary | |
Approved ________________________________________ Governor of the State of Washington | Secretary of State State of Washington |
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/13/12. Referred to Committee on Financial Institutions, Housing & Insurance.
AN ACT Relating to franchise investment protection; and amending RCW 19.100.010, 19.100.020, 19.100.030, 19.100.040, 19.100.070, 19.100.080, 19.100.090, 19.100.184, 19.100.130, and 19.100.248.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 19.100.010 and 1994 c 92 s 3 are each amended to read
as follows:
When used in this chapter, unless the context otherwise requires:
(1) "Advertisement" means any written or printed communication or
any communication by means of recorded telephone messages or spoken on
radio, television, or similar communication media published in
connection with an offer or sale of a franchise.
(2) "Affiliate" means a person controlling, controlled by, or under
common control with another person, every officer or director of such
person, and every person occupying a similar status or performing
similar functions.
(3) "Director" means the director of financial institutions.
(4) "Franchise" means:
(a) An agreement, express or implied, oral or written, by which:
(i) A person is granted the right to engage in the business of
offering, selling, or distributing goods or services under a marketing
plan prescribed or suggested in substantial part by the grantor or its
affiliate;
(ii) The operation of the business is substantially associated with
a trademark, service mark, trade name, advertising, or other commercial
symbol designating, owned by, or licensed by the grantor or its
affiliate; and
(iii) The person pays, agrees to pay, or is required to pay,
directly or indirectly, a franchise fee.
(b) The following shall not be construed as a franchise within the
meaning of this chapter:
(i) The payment of a reasonable service charge to the issuer of a
credit card by an establishment accepting or honoring such credit card
or any transaction relating to a bank credit card plan;
(ii) Actions or transactions otherwise permitted, prohibited or
regulated under laws administered by the insurance commissioner of this
state;
(iii) Any motor vehicle dealer franchise subject to the provisions
of chapter 46.70 RCW.
(5) "Marketing plan" means a plan or system concerning an aspect of
conducting business. A marketing plan may include one or more of the
following:
(a) Price specifications, special pricing systems or discount
plans;
(b) Sales or display equipment or merchandising devices;
(c) Sales techniques;
(d) Promotional or advertising materials or cooperative
advertising;
(e) Training regarding the promotion, operation, or management of
the business; or
(f) Operational, managerial, technical, or financial guidelines or
assistance.
(6) "Bank credit card plan" means a credit card plan in which the
issuer of credit cards is a national bank, state bank, trust company or
any other banking institution subject to the supervision of the
director of financial institutions of this state or any parent or
subsidiary of such bank.
(7) "Franchisee" means a person to whom a franchise is offered or
granted.
(8) "Franchisor" means a person who grants a franchise to another
person.
(9) "Subfranchise" means an agreement, express or implied, oral or
written, by which a person pays or agrees to pay, directly or
indirectly, a franchisor or affiliate for the right to grant, sell or
negotiate the sale of a franchise.
(10) "Subfranchisor" means a person to whom a subfranchise is
granted.
(11) "Franchise broker" means a person who directly or indirectly
engages in the business of the offer or sale of franchises. The term
does not include a franchisor, subfranchisor, or their officers,
directors, or employees.
(12) "Franchise fee" means any fee or charge that a franchisee or
subfranchisor is required to pay or agrees to pay for the right to
enter into a business or to continue a business under a franchise
agreement, including, but not limited to, the payment either in lump
sum or by installments of an initial capital investment fee, any fee or
charges based upon a percentage of gross or net sales whether or not
referred to as royalty fees, any payment for the mandatory purchase of
goods or services or any payment for goods or services available only
from the franchisor, or any training fees or training school fees or
charges; however, the following shall not be considered payment of a
franchise fee: (a) the purchase or agreement to purchase goods at a
bona fide wholesale price; (b) the purchase or agreement to purchase
goods by consignment; if, and only if the proceeds remitted by the
franchisee from any such sale shall reflect only the bona fide
wholesale price of such goods; (c) a bona fide loan to the franchisee
from the franchisor; (d) the purchase or agreement to purchase goods at
a bona fide retail price subject to a bona fide commission or
compensation plan that in substance reflects only a bona fide wholesale
transaction; (e) the purchase or lease or agreement to purchase or
lease supplies or fixtures necessary to enter into the business or to
continue the business under the franchise agreement at their fair
market or rental value; (f) the purchase or lease or agreement to
purchase or lease real property necessary to enter into the business or
to continue the business under the franchise agreement at the fair
market or rental value; (g) amounts paid for trading stamps redeemable
in cash only; (h) amounts paid for trading stamps to be used as
incentives only and not to be used in, with, or for the sale of any
goods.
(13) "Person" means a natural person, corporation, partnership,
trust, or other entity and in the case of an entity, it shall include
any other entity which has a majority interest in such an entity or
effectively controls such other entity as well as the individual
officers, directors, and other persons in act of control of the
activities of each such entity.
(14) "Publish" means publicly to issue or circulate by newspaper,
mail, radio, or television or otherwise to disseminate to the public.
(15) "Sale" or "sell" includes every contract of sale, contract to
sell, or disposition of a franchise.
(16) "Offer" or "offer to sell" includes every attempt or offer to
dispose of or solicitation of an offer to buy a franchise or an
interest in a franchise.
(17) "File," "filed," or "filing," except in the phrase "filed with
and subject to the approval of the superior court," means the receipt
under this chapter of a record by the director or a designee of the
director.
(18) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(19) "Prospective franchisee" means any person, including any
agent, representative, or employee, who approaches or is approached by
a franchise seller to discuss the possible establishment of a franchise
relationship.
Sec. 2 RCW 19.100.020 and 1991 c 226 s 2 are each amended to read
as follows:
(1) It is unlawful for any franchisor or subfranchisor to sell or
offer to sell any franchise in this state unless the offer of the
franchise has been registered under this chapter or exempted under RCW
19.100.030.
(2) For the purpose of this section, an offer to sell a franchise
is made in this state when: (a) The offer is directed by the offeror
into this state from within or outside this state and is received where
it is directed, (b) the offer originates from this state and violates
the franchise or business opportunity law of the state or foreign
jurisdiction into which it is directed, (c) the ((offeree)) prospective
franchisee is a resident of this state, or (d) the franchise business
that is the subject of the offer is to be located or operated, wholly
or partly, in this state.
(3) For the purpose of this section, a sale of any franchise is
made in this state when: (a) An offer to sell is accepted in this
state, (b) an offer originating from this state is accepted and
violates the franchise or business opportunity law of the state or
foreign jurisdiction in which it is accepted, (c) the purchaser of the
franchise is a resident of this state, or (d) the franchise business
that is the subject of the sale is to be located or operated, wholly or
partly, in this state.
(4) For the purpose of this section, an offer to sell is not made
in this state solely because the offer appears: (a) In a newspaper or
other publication of general and regular circulation if the publication
has had more than two-thirds of its circulation outside this state
during the twelve months before the offer is published, or (b) in a
broadcast or transmission originating outside this state.
Sec. 3 RCW 19.100.030 and 1991 c 226 s 3 are each amended to read
as follows:
The registration requirements of this chapter shall not apply to:
(1) The offer or sale or transfer of a franchise by a franchisee
who is not an affiliate of the franchisor for the franchisee's own
account if the franchisee's entire franchise is sold and the sale is
not effected by or through the franchisor. A sale is not effected by
or through a franchisor merely because a franchisor has a right to
approve or disapprove the sale or requires payment of a reasonable
transfer fee. Such right to approve or disapprove the sale shall be
exercised in a reasonable manner.
(2) The offer or sale of a franchise by an executor, administrator,
sheriff, marshal, receiver, trustee in bankruptcy, guardian,
conservator, or pursuant to a court-approved offer or sale, on behalf
of a person other than the franchisor or the estate of the franchisor.
(3) The offer or sale of a franchise to a bank, savings
institution, trust company, insurance company, investment company as
defined in the Investment Company Act of 1940, pension or profit
sharing trust, or other financial institution or institutional buyer or
to a broker dealer where the purchaser is acting for itself or in some
fiduciary capacity.
(4) The offer or sale of a franchise by a franchisor:
(a) Who has delivered in writing to each prospective franchisee, at
least ((ten business)) fourteen calendar days prior to the execution by
the prospective franchisee of any binding franchise or other agreement,
or at least ((ten business)) fourteen calendar days prior to the
receipt of any consideration, whichever occurs first, ((an offering
circular)) a disclosure document complying with guidelines adopted by
rule of the director. The director shall be guided in adopting such a
rule by the guidelines for the preparation of the ((Uniform Franchise
Offering Circular)) disclosure document adopted by the federal trade
commission or the North American Securities Administrators Association,
Inc., or its successor, as such guidelines may be revised from time to
time; and
(b) Who either:
(i)(A) Has a net worth on a consolidated basis, according to its
most recent audited financial statement, of not less than five million
dollars or who has a net worth, according to its most recent audited
financial statement, of not less than one million dollars and is at
least eighty percent owned by a corporation which has a net worth on a
consolidated basis, according to its most recent audited financial
statement, of not less than five million dollars; and
(B) Has had at least twenty-five franchisees conducting business at
all times during the five-year period immediately preceding the offer
or sale or has conducted business which is the subject of the franchise
continuously for not less than five years preceding the offer or sale
or if any corporation which owns at least eighty percent of the
franchisor, has had at least twenty-five franchisees conducting
business at all times during the five-year period immediately preceding
the offer or sale or such corporation has conducted business which is
the subject of the franchise continuously for not less than five years
preceding the offer or sale; and
(C) Requires an initial investment by the franchisee of more than
one hundred thousand dollars; and
(D) Files annually with the director a statement prescribed by rule
of the director giving notice of such claim, and pays a filing fee as
set forth in RCW 19.100.240; or
(ii)(A) Has no outstanding franchises granted for businesses
located or to be located outside the state of Washington; and
(B) Has granted and grants no more than three franchises for
franchise businesses to be situated within the state of Washington; and
(C) Does not publish an advertisement or engage in general
solicitation for the franchise offering; and
(D) The buyer is represented or advised in the transaction by
independent legal counsel or certified public accountant; or
(iii) Does not charge a franchise fee, as defined in RCW
19.100.010(12), in excess of five hundred dollars; and
(c) Who has not been found by a court of competent jurisdiction to
have been in violation of this chapter, chapter 19.86 RCW, or any of
the various federal statutes dealing with the same or similar matters,
within seven years of any sale or offer to sell franchise business
under franchise agreement in the state of Washington.
(5) The offer or sale of a franchise to an accredited investor, as
defined by rule adopted by the director. The director shall be guided
in adopting such a rule by the rules defining accredited investor
promulgated by the federal securities and exchange commission.
(6) The offer or sale of an additional franchise to an existing
franchisee of the franchisor for the franchisee's own account that is
substantially the same as the franchise that the franchisee has
operated for at least two years at the time of the offer or sale,
provided the prior sale to the franchisee was pursuant to a franchise
offering that was registered in the state of Washington.
Sec. 4 RCW 19.100.040 and 1991 c 226 s 4 are each amended to read
as follows:
(1) The application for registration of the offer, signed by the
franchisor, subfranchisor, or by any person on whose behalf the
offering is to be made, must be filed with the director and shall
contain:
(a) A copy of the franchisor's or subfranchisor's ((offering
circular)) disclosure document which shall be prepared in compliance
with guidelines adopted by rule of the director. The director shall be
guided in adopting such rule by the guidelines for the preparation of
the ((Uniform Franchise Offering Circular)) disclosure document adopted
by the federal trade commission or the North American Securities
Administrators Association, Inc., or its successor, as such guidelines
may be revised from time to time;
(b) A copy of all agreements to be proposed to franchisees;
(c) A consent to service of process as required by RCW 19.100.160;
(d) The application for registration of a franchise broker, if any;
(e) The applicable filing fee; and
(f) Such other information as the director determines, by rule or
order, to be necessary or appropriate to facilitate the administration
of this chapter.
(2) The director may require the filing of financial statements of
the franchisor or subfranchisor audited by an independent certified
public accountant and prepared in accordance with generally accepted
accounting principles.
When the person filing the application for registration is a
subfranchisor, the application shall also include the same information
concerning the subfranchisor as is required from the franchisor
pursuant to this section.
Sec. 5 RCW 19.100.070 and 1991 c 226 s 5 are each amended to read
as follows:
(1) A franchise offering shall be deemed duly registered, and a
claim of exemption under RCW 19.100.030(4)(b)(i) shall be duly filed,
for a period of one year from the effective date of registration or
filing unless the director by rule or order specifies a different
period.
(2) Registration of a franchise offer may be renewed for additional
periods of one year each, unless the director by rule or order
specifies a different period, by filing with the director no later than
((fifteen business)) twenty calendar days prior to the expiration
thereof a renewal application containing such information as the
director may require to indicate any substantial changes in the
information contained in the original application or the previous
renewal application and payment of the prescribed fee.
(3) If a material adverse change in the condition of the franchisor
or the subfranchisor or any material change in the information
contained in its ((offering circular)) disclosure document should occur
the franchisor or subfranchisor shall so amend the registration on file
with the director as soon as reasonably possible and in any case,
before the further sale of any franchise.
Sec. 6 RCW 19.100.080 and 1991 c 226 s 6 are each amended to read
as follows:
(1) It is unlawful for any person to sell a franchise that is
registered or required to be registered under this chapter without
first ((delivering)) furnishing to the ((offeree)) prospective
franchisee a copy of the franchisor's current disclosure document, as
described in RCW 19.100.040 and 19.100.070, at least ((ten business))
fourteen calendar days prior to the execution by the ((offeree))
prospective franchisee of any binding franchise or other agreement, or
at least ((ten business)) fourteen calendar days ((prior to the receipt
of any consideration, whichever occurs first, a copy of the offering
circular required under RCW 19.100.040, with any addition or amendment
to the offering circular required by RCW 19.100.070, together with a
copy of the proposed agreements relating to the sale of the franchise))
before the prospective franchisee signs a binding agreement with, or
makes any payment to, the franchisor or an affiliate in connection with
the proposed franchise sale.
(2) It is unlawful for any franchisor to alter unilaterally and
materially the terms and conditions of the basic franchise agreement or
any related agreements attached to the disclosure document without
furnishing the prospective franchisee with a copy of each revised
agreement at least seven calendar days before the prospective
franchisee signs the revised agreement. Changes to an agreement that
arise out of negotiations initiated by the prospective franchisee do
not trigger this seven calendar day period.
Sec. 7 RCW 19.100.090 and 1971 ex.s. c 252 s 9 are each amended
to read as follows:
(1) Neither (a) the fact that application for registration under
this law has been filed nor (b) the fact that such registration has
become effective constitutes a finding by the director that any
document filed under this law is true, complete, or not misleading.
Neither any such fact or the fact that an exemption is available for a
transaction means that the director has passed in any way on the merit
or qualifications of or recommended or given approval to any person,
franchise, or transaction.
(2) It is unlawful to make or cause to be made to any prospective
((purchaser or offeree)) franchisee any representation inconsistent
with this section.
Sec. 8 RCW 19.100.184 and 1991 c 226 s 12 are each amended to
read as follows:
This chapter does not preclude negotiation of the terms and
conditions of a franchise at the initiative of the franchisee, provided
that such negotiated terms and conditions do not violate any provision
of this chapter. After the initial offer to a franchisee using the
((offering circular)) disclosure document required by RCW 19.100.030,
19.100.040, or 19.100.070 a franchisor need not provide an amended
((offering circular)) disclosure document to that franchisee by reason
of a change in the terms and conditions of a franchise being negotiated
at the initiative of that franchisee or amend the registration by
reason of such change.
Sec. 9 RCW 19.100.130 and 2011 c 336 s 560 are each amended to
read as follows:
Upon the entry of a stop order under any part of RCW 19.100.120,
the director shall promptly notify the applicant that the order has
been entered and that the reasons therefor and that within fifteen days
after receipt of a written request, the matter will be set down for
hearing. If no hearing is requested within ((fifteen)) twenty calendar
days and none is ordered by the director, the director shall enter his
or her written findings of fact and conclusions of law and the order
will remain in effect until it is modified or vacated by the director.
If a hearing is requested or ordered, the director after notice of an
opportunity for hearings to the issuer and to the applicant or
registrant shall enter his or her written findings of fact and
conclusions of law and may modify or vacate the order. The director
may modify or vacate a stop order if he or she finds that the
conditions which prompted his or her entry have changed or that it is
otherwise in the public interest to do so.
Sec. 10 RCW 19.100.248 and 1979 ex.s. c 13 s 4 are each amended
to read as follows:
If it appears to the director that a person has engaged or is about
to engage in an act or practice constituting a violation of a provision
of this chapter or a rule adopted or order issued under this chapter,
the director may, in the director's discretion, issue an order
directing the person to cease and desist from continuing the act or
practice. Reasonable notice of and opportunity for a hearing shall be
given. The director may issue a temporary order pending the hearing,
which shall remain in effect until ten days after the hearing is held
and which shall become final if the person to whom notice is addressed
does not request a hearing within ((fifteen)) twenty calendar days
after the receipt of the notice.