Title 27

 

PRIVATE ENTERPRISE

 

COMMERCE AND TRADE

 

Chapters:

 

01 

(Reserved)

02 

Licenses and License Fees

03

Trademarks and Trade 

04 

Consumer Protection

05 

Alcoholic Beverage Control

06 

Weights and Measures

07 

Warranties

08 

Goods

09 

Price Gouging

10 

Customs Regulations

11-14

(Reserved)

15 

Commercial Code

16-24

(Reserved)

25 

Negotiable Instruments

  26 

Foreign Investment

 

Case Notes:

In enacting § 3 of Sherman Act, declaring contracts, combinations and conspiracies in restraint of trade or commerce in any Territory of the United States illegal, Congress intended to include all Territories to which its powers might extend, and American Samoa is thus a Territory within the meaning of such § 3. United States v. Standard Oil Company of California, 92 S.Ct. 661 (1972); petition for rehearing denied, 92 S.Ct. 1166 (1972).

 

Chapter 01

 

(RESERVED)

 

Chapter 02

 

LICENSES AND LICENSE FEES

 

Sections

 

I. Licenses Generally

 

27.0201

Purpose.

 

27.0202

Definitions.

 

27.0203

Administration.

 

27.0204

Duties of Treasurer.

 

27.0205

License applications.

 

27.0206

Licensing procedure.

 

27.0207

Licensing for nonresidents.

 

27.0208

Denial of a business license.

 

27.0209

Term of license.

 

 

27.0210

Apportionment of fee.

 

27.0211

Renewal of license.

 

27.0212

License not transferable.

 

27.0213

License required for separate location.

 

27.0214

Classification of business.

 

27.0215

Combination of businesses.

 

27.0216

Exemptions.

 

27.0217

Payment of all fees and debts prerequisite to issuance of license.

 

27.0218

Revocation of license.

 

27.0219

Violation-Penalty.

 

                                                                  II. Specific Businesses

 

27.0230

 

Hotels.

                          

 

                                    III.         Business License Fees

27.0240

Established.

27.0241

Proration of fee-Refunds.

27.0242

License Fees.

27.0243

 

 

Administration of fees.

 I. Licenses Generally

27.0201 

Purpose.

The purpose of this chapter is to provide for the licensing of businesses in the Territory of American Samoa in order that all the necessary and reasonable control and regulation thereof may be practiced by the government for the protection of the health, welfare, safety and morals of the people of American Samoa.

 

History: 1975, PL 14-4 § 1.

 

Case Notes:

The court will not enforce claimed partnership gains derived while the parties were in violation of the American Samoa Licensing Act.  A.S.C.A. §§ 27.0201 et seq.  Papali’i v. Pen, 18 A.S.R.2d  (1991).

An agreement to violate or inhibit licensing laws is clearly illegal and contrary to public policy.  A.S.C.A. §§ 27.0201 et seq.  Papali’i v. Pen, 18 A.S.R.2d  (1991).

 

27.0202            Definitions.

As used in this chapter, unless the context clearly requires a different meaning the following definitions apply:

(a)      “Business” means and includes any activity or conduct (whether proprietary, partnership, corporate, or whatever form) engaged in, or caused to be engaged in, with the object of gain or economic benefit, either direct or indirect, but does not include casual sales or personal service contracts.

(b)      “Commission” means the Territorial Planning Commission of American Samoa.

(c)      “Endorsement” means and includes written evidence obtained by an applicant from the examining department that the applicant has fulfilled the necessary qualifications and requirements prior to the obtaining of the license. It also, when the context so requires, means and includes the evidence of endorsement appearing on the face of the license.

(d)      “Engaging in or carrying on a business” means a regular employment which occupies the time, labor, or attention of the person on a continuing basis although one act may be sufficient if circumstances show a purpose to continue, and it need not be the sole or full-time employment of the person, but may be on a part-time or periodic basis.

(e)      “Examining agency” means that agency of the government or department of the government which is by law, rule, or regulation given the responsibility of examining and endorsing a class of applicants for required qualifications.

(f)       “License” means and includes the permission granted by the Territory of American Samoa under authority of this chapter conferring upon the licensee the right to engage in a business or practice a trade or profession which without the authorization and permission would be illegal; it also, when the context so requires, means and includes the written evidence of that permission.

(g)      “License fee” means the charge or assessment levied by the law for the privilege or authority to do that which, without payment for and obtaining the privilege or authority, would be illegal under the provisions of this chapter.

(h)      “Person” means and includes any individual, over 21 years of age, firm, copartnership joint venture, association, corporation, estate, trust, or other combination or group acting as a unit.

(i)        “Renewal” means the continuation for the next succeeding year of the privilege to conduct the licensed business except that no license shall be renewed unless the application is made therefor within 3 months of the expiration of the last license issued.

(j)        "Treasurer” means the Treasurer of American Samoa or his designated representative.

 

History: 1975, PL 14-4 § 2; amd 1978, PL 15-92 § 1.

 

Amendment:         1978 Paragraph (b): substituted “territorial planning” for “economic development”.

 

Case Notes:

Absent a requirement that all persons engaging in business have a license, only those businesses which are without a license would otherwise be illegal, either malum in se or malum prohibitum, need a license. Government v. South Pacific Island Airways, ASR (1976).

 

27.0203            Administration.

Administration of this chapter may be delegated by the Governor to persons or departments as necessary for effective and efficient enforcement of this chapter.

 

History: 1975, PL 14-4 § 2.

 

27.0204             Duties of Treasurer.

It is the duty of the Treasurer to perform the following functions as well as the other functions assigned by the Governor:

(1)      to insure compliance with all required prerequisites, including payment of the fee by any applicant for a license, and to issue the proper license to the applicant;

(2)      to keep a complete set of records of all licenses issued;

(3)      to keep and maintain a sufficient supply of application forms and any rules and regulations of the Commission or Governor’s office relating to the issuance of business licenses.

 

History: 1975, PL 14-4 § 2; amd 1978, PL 15-92 § 2.

 

Amendment:         1978 Paragraph (3): deleted “economic development” prior to “Commission”.

 

27.0205            License applications.

All license applications must be submitted on forms prescribed by the Governor or Commission and must contain the following information:

(1)                     name of business;

(2)                     type of business to be conducted;

(3)                     type of business organization;

(4)                     names, ages, and residences of principals involved in the business;

(5)                     location of business;

(6)                     endorsement of a licensing or examining authority having jurisdiction over the trade, business, or occupation;

(7)                     proof of bank accounts or financial statements, or both, for verification of capital investments upon request by the licensing authority;

(8)                     proof of issuance of stock certificates verifying ownership, if the applicant is a corporation; and

(9)                     any other information required by the Governor or Commission.

 

History: 1975, PL 14-4 § 2; amd 1982, PL 17-35 § 1.

 

Amendments:       1982 Introductory paragraph and subsections (6) and (7) amended; subsections (8) and (9) added.

 

27.0206             Licensing procedure.

Upon receipt of a fully completed application, the Treasurer shall forward the application to the Governor for review and approval. The Governor may in his discretion forward the license application to the Commission for review and recommendation. Upon final approval by the Governor, the license application will be forwarded to the Treasurer for final disposition. Upon receipt of a properly approved license application and payment of the appropriate license fee by the applicant, the Treasurer will issue the appropriate business license.

 

History: 1975, PL 14-4 § 2.

 

27.0207             Licensing for nonresidents.

(a)      When an application for a business license is received by the Governor from a person who is not either an “American Samoan” or a “permanent resident” as designated in 41.0502, or in the case of a corporation when the majority stock is not owned by either of such persons, the application shall be referred to the Commission.

(b)      The Commission shall hold a hearing on any application received under subsection (a) on due notice to the applicant in order to consider the application in the context of the following standards:

(1)      traffic safety;

(2)      adequate parking facilities;

(3)      availability of water and sewage facilities;

(4)      effect on land resources and economic opportunities for resident Samoans; (5) effect on Samoan customs, culture and traditions;

(6) conformity to the general economic plan.

(c) After due consideration of any testimony and records introduced at the hearing, in the light of the standards set forth in subsection (b), the Commission may deny the application or return it to the Governor with a favorable recommendation. The Governor shall then evaluate the application in the light of the recommendation and the other matters set forth in 27.0208 et seq.

 

History: 1975, PL 14-4 § 2;amd 1975, PL 14-14 § 1; amd 1978, PL 15-92 § 3.

 

Amendment:         1975 Subsection (c). changed cite at end.

1978 Subsection (a): deleted "economic development” prior to “Commission”.

 

Case Notes:

As previously stated in the matter of business license applications it appears that it would be proper to determine the immigration status of an applicant. The wisdom of the issuance of a business license is more properly the province of the Territorial Planning Commission.  Thomas A. French V. Aviata Faalevao.  ASR (1980).

 

27.0208            Denial of a business license.

The Governor may disapprove the application of any business license if in his opinion the issuance of a license:

(1)      would be contrary to the public policy of encouraging the development of business enterprises by Samoans;

(2)      would be contrary to the best interest of the public;

(3)      would be incompatible with the economic and social development of the plans for the Territory, considering among other things: the nature of the proposed business, proposed location, adequacy of investment nature of the buildings and equipment and sanitary conditions.

 

History: 1975, PL 14-4 § 2.

 

27.0209            Term of license.

All licenses and applicable endorsements must be issued on a calendar year basis regardless of when issued, and expire on 31 December of the year issued or renewed.

 

History: 1975, PL 14-4 § 2; amd 1981, PL 17-24 § 2.

 

27.0210            Apportionment of fee.

All original license fees shall be prorated in one-fourth of the annual fee charged for each

quarter or portion of a quarter remaining in the term from the date of issuance.

 

History: 1975, PL 14-4 § 2.

 

27.0211            Renewal of license.

(a)      A licensee may renew his license at the expiration thereof by payment of license fee and by filing with the renewal application an affidavit, subject to the penalties of perjury, that he has continued to comply with all of the prerequisites and qualifications provided by law and rules and regulations which were certified by the proper departments of the government in the application for his original license. The renewing licensee may not be required to obtain the approval of the government or any department or agency thereof regarding the application of the zoning law of the Territory of American Samoa to the licensee’s business premises; provided, that the licensed business is located upon the identical premises upon which it was located on the date of the issuance of the previous license.

(b)      A licensee who fails to renew his license on or before 31 December of each year shall be assessed a penalty of $2 per day for which he is delinquent, which penalty shall become part of the renewal fee. Any licensee who fails to renew his license on or before 30 January shall be required to discontinue his business until he renews the license or be subject to an injunction issued by the High Court of American Samoa and to prosecution under 27.0219. Failure to renew while continuing the operation of a business constitutes a refusal of and failure to obtain a license under the provisions of this chapter.

 

History: 1975, PL 14-4 § 2; amd 1981, PL 17-24 § 1.

 

27.0212             License not transferable.

Every license issued under this chapter is personal and shall be issued to the person or persons making the application therefor, and may not in any circumstances be transferred to any other person except upon the forfeiture of a tenancy or upon a foreclosure of a mortgage where the original contract provides that the license is a security for the obligation, in which event the Governor shall be promptly notified of any forfeiture. Any license conditioned upon the fulfillment of any qualifications or prerequisites pertaining to the premises wherein the licensee conducts his business, trade, or profession may not be transferred to another location without written application to and written approval by the Governor.

 

History: 1975, PL 14-4 § 2.

 

27.0213              License required for separate location.

When one person operates or conducts businesses in 2 or more locations in American Samoa, the person is required to obtain a license for each location.

 

History:  1975, PL 14-4 § 2.

 

27.0214            Classification of business.

If any question of the classification of any business, conduct or activity arises pertaining to the type of class of license required under this chapter, the classification shall be made by the Commission upon review of all the facts presented to it and the classification shall be final.

 

History: 1975, PL 14-4 § 2.

 

27.0215             Combination of businesses.

Any person who operates any business which consists of a combination of 2 or more of the classes provided in this chapter shall be required to take out a separate license for each classification.

 

History: 1975, PL 14-4 § 2.

 

27.0216            Exemptions.

The provision of this chapter and the license requirements under this chapter do not apply to the following activities:

(1)      any business or trade engaged in or conducted by the government or the Government of the United States or for the sole or direct benefit of or under the direct supervision of the government;

(2)      the selling or marketing by an American Samoan agricultural producer of his own farm produce in its natural state.

 

History: 1975, PL 14-4 § 2.

 

27.0217              Payment of all fees and debts prerequisite to issuance of license.

No license may be issued unless the applicant has paid all fees and debts he may owe the government. The fees or debts must be clearly related to the operation of the business. This limitation may not be used for the purpose of collecting fees or debts owed to the government for reasons other than operation of the business for which the license is to be issued.

 

History: 1975, PL 14-4 § 2; amd 2016, PL 34-15 §3.

 

27.0218            Revocation of license.

Any license issued to a person which is based on information subsequently found by the Governor or Commission to be false, is subject to revocation after a due notice and hearing in accordance with the Administrative Procedure Act, 4.1001 et seq. The revocation is in addition to any other penalties.

 

History: 1975, PL 14-4 § 2.

 

27.0219            Violation-Penalty.

(a)      No person may engage in business in American Samoa without a license issued under this chapter unless specifically exempted under 27.0216.

(b)      Any person who is required by this chapter to obtain a license or licenses and endorsements applicable thereto and refuses or fails to obtain the license or licenses and endorsements shall be guilty of a class B misdemeanor and upon conviction shall be sentenced accordingly.

 

History: 1975, PL 14-4 § 2;amd 1976, PL 14-29 § 1; amd 1980, PL 16-90 § 35.

 

Amendments: 1976 Subsection (a): added; provisions contained in section prior to amendment designated subsection (b). 1980 Amended to conform with penalties provided for in Title 46, Criminal Justice.

 

II.   Specific Businesses

 

27.0230            Hotels.

The Governor may not approve an application for a business license to maintain and operate a hotel unless it substantially meets the standards of the hotel at Goat Island Point (currently owned by the American Samoan Development Corporation) regarding:

(1) sanitary conditions;

(2) room space for each guest;

(3) architectural beauty;

(4) public room space for guests, taking into consideration the number of guestrooms in the hotel;

(5) interior decorations, including decoration in guestrooms;

(6) equipment for the preservation of food;

(7) equipment for the preparation of food;

(8) area surrounding the hotel;

(9) window space for guestrooms and public rooms;

(10)                     electric lighting; (11) building materials.

 

History: 1963, PL 8-6; 1966, PL 9-49; amd 1976, PL 14-28.

 

Amendment:         1976 Opening paragraph formerly provided that standards of the Pago Pago Americana Hotel be substantially met.

 

III.              Business License Fees

 

27.0240            Established.

The following annual business license fees are established:

(1) alcoholic beverage establishments:

(A)    beer tavern                                                                            $300

(B)     alcoholic beverage license                                                    $300

(2)      retail store, 

      per business location                                                                      $150                    

(3)      wholesale store, 

      per business location                                                                      $150                      

(4)      billiard and pool hall,

      per table                                                                                         $150                         

(5)      public dance hall                                                       $150

(6)      movie theater,

      per theater                                                                                       $300

(7)      auctioneer, 

      per auction sale                                                                              $150

(8)      beer importer                                                                          $200

(9)      beer vendor                                                                             $200

(10)  alcoholic beverage importer                                      $1,500

(11)  alcoholic beverage vendor                                                      $1,500

(12)  garage and/or repair shop                                                       $150

(13)  service station                                                                         $150

(14)  all other business, profession, agencies or activities              $150

A business requiring multiple business licenses as a result of engaging in multiple activities subject to being charged a business license fee, shall pay an initial fee at the highest rate charged for any of the activities they undertake, and each additional business license fee shall be paid at the rate of $100 per licensed activity.

 

History: 1963, PL 8-1; 1969, PL l1-49; amd 1984, PL 18-53 § 7; amd 2015, PL 34-6 §1.

 

 Amendments: 1984 Subsection (1) changed “beer and wine” to “beer tavern”, and “general” to “alcoholic beverage license.” Subsections (10) to (12) renumbered as (12) to (14). New subsections (10) and (11) added to provide for alcoholic beverage importer and vendor.

 

27.0241             Proration of fee-Refunds.

When a business is first started, the fee must be prorated according to the length of time during which the business will have been in operation at the end of the calendar year, but not for a shorter period than 3 months. A discontinued business is not eligible for a refund.

 

History: 1963, PL 8-1; amd 1981, PL 17-24 § 3.

 

27.0242           License fees.

The following license fees are established:

(1)    fund raising, per occasion, local,                                                                     $5;

(2)    visiting of foreign entertainment groups, performing in public or in private, $100.

 

History: 1963, PL 8-6; 1969, PL 11-49; amd 1981, PL I7-3 § l.

 

27.0243            Administration of fees.

The administration and enforcement of 20.0232, 22.0208, 22.1002, 24.0701, 27.0240 and 27.0242 shall be the responsibility of the Treasurer of American Samoa. The Treasurer may delegate his responsibility under this section.

 

History: 1967, PL 10-5.

 

Chapter 03

 

 

Sections:

TRADEMARKS AND TRADE NAMES

27.0301

Certificate to be obtained.

27.0302

Application for certificate-Fee.

27.0303

Record-Issuance and effect of certificate.

27.0304

Revocation.

27.0305

Cancellation of certificate.

27.0306

 

Appeal.

27.0301 

Certificate to be obtained.

Any person desiring to secure the exclusive use of any print, label or trademark intended to be attached or applied to any goods or manufactured articles or to bottles, boxes, or packages containing the goods or manufactured articles to indicate the name of the manufacturer, the contents of the packages, the quality of the goods or directions for use, or a trade name, may obtain a certificate of the registration of the print, label, trademark, or trade name in the manner provided in this chapter.

 

History: 1987, PL 20-8 § 1.

 

27.0302             Application for certificate-Fee.

Before anyone may receive a certificate of the registration of a print, label, or trademark, he shall file in the Office of the Territorial Registrar an application for the registration of such print, label, or trademark, with a declaration, certified by the applicant, or, if the application is made by a firm, corporation or partnership, by the certification of a member of the firm, an officer of the corporation, or a partner, stating that he is, or they are, the sole and original proprietor or proprietors, or the assign or assigns of such proprietor or proprietors, of this print, label or trademark, and describing the goods or manufactured articles for which the print, label or trademark is to be used, and stating the manner in which the print, label or trademark is to be used. Before anyone receives a certificate of the registration of a trade name he shall file in the Office of the Territorial Registrar an application for the registration of the trade name, with a declaration, certified, stating that he is, or they are, the sole and original proprietor or proprietors of the trade name, or the assign or assigns of the proprietor or proprietors, and setting forth the nature of the business in which the trade name is to be used. The application shall be accompanied by two exact copies of the print, label or trademark, or it shall set forth the trade name. At the time of filing each application, the applicant shall pay to the Registrar a fee of ten dollars.

 

History: 1987, PL 20-8 § 1.

 

27.0303             Record-Issuance and effect of certificate.

Upon receiving the application so accompanied and the payment of the fee, the Territorial Registrar shall cause the print, label, trademark or trade name to be recorded in a book kept for that purpose, and shall issue to the applicant or applicants a certificate of registration with the signature of the Registrar; and the certificate or registration shall secure to the applicant or applicants the exclusive use of the print, label, trademark, or trade name throughout the Territory, for a term of ten years; provided that the print, label, trademark or trade name is continued in actual use by the applicant in the Territory.

 

History: 1987, PL 20-8 § 1.

 

27.0304            Revocation.

(a)      If any print, label, trademark, or trade name is not used by the applicant in accordance with the declaration for any period of three hundred and sixty-five consecutive days, the certificate of registration shall be subject to revocation.

(b)      Any person desiring such revocation shall file a petition in the Office of the Territorial Registrar, setting forth facts indicating such non-use for a period of three hundred and sixty-five consecutive days immediately preceding the date of the filing of his petition. The petition shall be verified upon the information and belief, or if the petition is made by a firm or corporation, by a member of the firm or an officer of the corporation. The petitioner shall cause actual notice of the proceeding to be given the registered owner by such method or manner as the Registrar may prescribe, and the registered owner shall be given the opportunity of a full hearing. If the registered owner, after due diligence, cannot be found, the Registrar may order that the petitioner give notice by publication in some newspaper suitable for the advertisement of notices of judicial proceedings for such length of time as he deems reasonable, not less than once each week in four successive weeks, the last publication to be not less than twenty-one days prior to the date set for the hearing. The giving of notice shall be deemed complete upon the last publication. The notice as published shall also contain the date which has been set for the hearing.

(c)      After granting an opportunity for hearing to the petitioner and the registered owner, the Registrar shall grant or deny the petition for cancellation, as the facts shall warrant.

 

History: 1987, PL 20-8 § 1.

 

27.0305             Cancellation of certificate.

Any person or persons claiming to be the owner or owners of a print, label, trademark, or trade name for which a certificate of registration pursuant to this chapter has been issued to any other person or persons may file in the Office of the Registrar an application for the cancellation of the registration of such print, label, trademark, or trade name, with a declaration verified by the oath of such applicant or applicants, or if such application is made by a firm or corporation by the oath of a member of the firm or an officer of the corporation, setting forth facts in support of the ownership by such applicant or applicants of such print, label, trademark, or trade name and in support of the claim of the applicant or applicants that the certificate of registration should be canceled. The Registrar shall give notice of such application for cancellation to the person or persons to whom the certificate of registration for the print, label, trademark, or trade name has been issued and, after granting an opportunity for hearing to the applicant or applicants for such cancellation and to the person or persons to whom the certificate of registration has been issued, shall grant or deny the application for cancellation, as the facts warrant.

 

History: 1987, PL 20-8 § 1.

 

27.0306            Appeal.

Any person aggrieved by any action of the Registrar under this chapter in issuing a certificate of registration, or in revoking or canceling any such certificate, or in denying an application may commence proceedings to obtain judicial review in the High Court. The matter shall be reviewed by the court de novo.

 

History: 1987, PL 20-8 § 1.

 

Chapter 04

 

 

Sections:

CONSUMER PROTECTION

27.0401

Bureau of Consumer Protection created--Director.

27.0402

Definitions.

27.0403

Director--Powers and duties.

27.0404

Deceptive acts and practices.

27.0405

Unconscionable consumer sales practices.

27.0406

Jurisdiction and service of process.

27.0407

Assurance of voluntary compliance.

27.0408

Penalties for unlicensed acts.

27.0409

Remedies.

27.0410

Private remedies.

27.0411

Cumulative remedies or penalties.

27.0412

Application.

27.0413

 

Severability.

Reviser’s comment: Section 1 of PL 17-38 created chapter 04 in Title 27; 2018, Section 1 of PL 35-18 amended Chapter 04 in Title 27.

 

27.0401              Bureau of Consumer Protection created-Director.

There is created within the Department of Legal Affairs, a Bureau of Consumer Protection. The head of this Bureau is the Director, who has been admitted to practice law before the High Court. The Director is responsible to the Attorney General and shall devote his efforts to enforcing this chapter. This Act shall be construed liberally to promote the following policies:

(1)  the protection of consumers from suppliers who commit deceptive, fraudulent, and unconscionable sales practices; and

(2)  the encouragement and development of fair consumer sales practices.

 

History: 1982, PL 17-38 § 2; amd 2018, PL 35-18.

 

27.0402            Definitions.

As used in this Act:

(1)      “Consumer transaction” means a sale, lease, assignment, award by chance, or other disposition of an item of goods, a service, or an intangible (except securities) to an individual for purposes that are primarily personal, family, or household, or that relate to a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis, or a solicitation basis, or a solicitation by a supplier with respect to any of these dispositions.

(2)      “Director” means the Director of the Bureau of Consumer Protection or his designee.

(3)      “Final judgment” means a judgment, including any supporting opinion, that determines the rights of the parties and concerning which appellate remedies have been exhausted or the time for appeal has expired.

(4)      “Person” means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, cooperative, or any other legal entity.

(5)      “Supplier” means a seller, lessor, assignor, or other person who regularly solicits, engages in, or enforces consumer transactions, whether or not he deals directly with the consumer.

 

History: 1982, PL 17-38 § 3; amd 1985, PL 19-17  § 1; amd 2018, PL 35-18.

 

Case Notes:

 Territorial government whose Consumer Protection agency brought action in a representative capacity on behalf of a named individual, and which was not named as a plaintiff in its own right, could not recover damages in the Consumer Protection action for the loss of its own property.  A.S.C.A. § 27.0402.  American Samoa Government ex rel.  Langford v. Hawaiian Airlines, Inc., 10 A.S.R.2d  1 (1989).

 

27.0403             Director--Powers and duties.

(a) The Director shall:

(1)                     coordinate the Consumer Protection activities of the Territory;

(2)                     provide public education and awareness programs on consumer rights and remedies;

(3)                     investigate consumer complaints filed with the Department of Legal Affairs;

(4)                     prosecute criminal acts involving consumers;

(5)                     initiate civil actions to protect the rights of the consuming public;

(6)                     perform all other acts necessary to enforce this chapter;

(7)                     file an annual report with the Legislature each December 1st outlining the Bureau’s workload, projects, and accomplishments.

(8)                     maintain a public file of:

(A)                        final judgments rendered under this Act that have been either reported officially or made available for public dissemination;

(B)                        final consent judgments; and

(C)                        to the extent the Director considers appropriate, assurance of voluntary compliance. (b) The Director may:

(1) issue subpoenas to a person, or individual, director, officer, employee, or agent of a business organization for any relevant information to an investigation brought under this chapter including but not limited to the production of documents, testimony, and statements.

(A)    If a matter that the Director subpoenas is located outside this Territory, the person subpoenaed may either make it available to the Director at a convenient location within the Territory or pay the reasonable and necessary expenses for the Director or his representative to examine the matter at the place where it is located.  The Director may designate representatives, including officials of the jurisdiction in which the matter is located, to inspect the matter on his behalf, and he may respond to similar requests from officials of other states.

(B)     Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the Director may apply to the High Court for an order compelling compliance.

(C)     The Director may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him be ordered by the court to provide the testimony or matter.  Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which he is entitled by law, may not be subjected to a criminal proceeding or to a civil penalty with respect to the transaction concerning which he is required to testify or produce relevant matter.  This subsection does not apply to damages recoverable under A.S.C.A. 27.0410(b) or to civil sanctions imposed under A.S.C.A. 27.0409(a)(3).

(2)      Appoint and Commission one or more investigators subject to approval by the Attorney General.  Persons appointed and commissioned under this paragraph have the powers and authority of a police officer.

(3)      Advise the Governor and the Legislature on Consumer Protection legislation or administrative rules.

(4)      Conduct research, hold public hearings, make inquiries, and publish studies relating to consumer sales acts or practices.

(5)      Adopt substantive rules that prohibit with specificity acts or practices and appropriate procedural rules.

 

History: 1982, PL 17-38 § 4; amd 2018, PL 35-18.

 

27.0404             Deceptive acts and practices.

(a)      Any deceptive act or practice by a supplier in connection with a consumer transaction violates this Act whether it occurs before, during, or after the transaction.

(b)      Without limiting the scope of subsection (a), the act or practice of a supplier in indicating any of the following is deceptive:

(1)      that the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits it does not have;

(2)      that the subject of a consumer transaction is of a particular standard, quality, grade, style, or model, if it is not;

(3)      using deceptive representations or designations of geographic origin in connection with goods or services;

(4)      that the subject of a consumer transaction is new, or unused, if it is not, or that the subject of a consumer transaction has been used to an extent that is materially different from the fact;

(5)      that the subject of a consumer transaction is available to the consumer for a reason that does not exist;

(6)      that the subject of a consumer transaction has been supplied in accordance with a previous representation, if it has not;

(7)      advertising the subject of a consumer transaction with intent not to sell it as advertised;

(8)      advertising the subject of a consumer transaction with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(9)      passing the subject of a consumer transaction as that of another;

(10)  that replacement or repair is needed, if it is not;

(11)  that a specific price advantage exists, if it does not;

(12)  that the supplier has a sponsorship, approval, or affiliation he does not have;

(13)  that a consumer transaction involves or does not involve a warranty, a disclaimer of warranties, particular warranty terms, or other rights, remedies, or obligations if the indication is false; or

(14)  engaging in any act or practice which is otherwise misleading, false pretense or promise, fraudulent, misrepresentative, or otherwise deceptive to the consumer.

 

History: 1982, PL 17-38 § 5; amd 2018, PL 35-18.

 

Amendments: 1985 Subsection (a): deleted “and” from the end of subdivisions (i) through (6). Subsection (b): deleted “and” from the end of subdivision (1). Subsection (c): added.

 

27.0405             Unconscionable consumer sales practices.

(a)      An unconscionable act or practice by a supplier in connection with a consumer transaction violates this Act whether it occurs before, during, or after the transaction.

(b)      The unconscionability of an act or practice is a question of law for the court.  If it is claimed or appears to the court that an act or practice may be unconscionable, the parties shall be given a reasonable opportunity to present evidence as to its setting, purpose, and effect to aid the court in making its determination.

(c)      In determining whether an act or practice is unconscionable, the court shall consider circumstances such as the following of which the supplier knew or had reason to know:

(1)      that he took advantage of the inability of the consumer reasonably to protect his interests because of his physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement, or similar factors;

(2)      that when the consumer transaction was entered into the price grossly exceeded the price at which similar property or services were readily obtainable in similar transaction by like consumers;

(3)      that when the consumer transaction was entered into the consumer was unable to receive a substantial benefit from the subject of the transaction;

(4)      that when the consumer transaction was entered into there was no reasonable probability of payment of the obligation in full by the consumer;

(5)      that the transaction he induced the consumer to enter into was excessively one-sided in favor of the supplier; or

(6)      that he made a misleading statement on which the consumer was likely to rely to his detriment.

 

History: 1982, PL 17-38 § 6; amd 2018, PL 35-18.

 

27.0406             Jurisdiction and service of process.

(a)               The High Court of American Samoa has jurisdiction over any supplier, whether the supplier is a resident of the Territory or not, as to any act or practice in this Territory governed by this Act or as to any claim arising from a consumer transaction subject to this Act.

(b)               In addition to any other method provided by rule or statute, personal jurisdiction over a supplier may be acquired in a civil action or proceeding instituted in the High Court by the service of process as outlined in A.S.C.A. Title 43 Chapter 5.

 

History: 1984, PL 18-31 § 1; amd 2018, PL 35-18.

 

27.0407             Assurance of voluntary compliance.

(a)      In lieu of instituting or continuing an investigation or civil action, the Director may accept written assurance of voluntary compliance from the persons suspected of violation.  The Director may obtain the agreement of the affected consumers where possible.  The fact that a person has entered into an assurance of voluntary compliance may not be considered an admission of violation, nor may the written assurance constitute prima facie evidence of a violation.  However, unless an assurance has been rescinded by agreement of the parties or voided by a court for good cause, subsequent failure to comply with the terms of an assurance is prima facie evidence of a violation of this Act.

(b)      The assurance may include a stipulation for reimbursement to some or all consumers who have been damaged by an alleged unlawful act or practice, appropriate corrective actions, and payment of costs of investigation.  An assurance of voluntary compliance may become public record.  A consumer does not have to accept restitution under the stipulation, but his stipulated agreement to the assurance or his acceptance and full performance of restitution bars recovery of other damages in an action on account of the same acts or practices by him against the person or persons making restitution.

(c)      In addition to or in the alternative of, the Director may enter into a consent judgement, signed by the High Court, with the persons suspected of a violation.  Such judgement will have the force of law as any other judgement or order signed by the High Court.

 

History:  2018, PL 35-18.

 

27.0408             Penalties for unlicensed acts.

(a)      A person who furnishes commodities or services to consumers for which a license is required from a department or a regulatory agency or a Board or Commission, without a license, commits a civil infraction and is subject to the penalty provided in subsection (b) of this section.

(b)      A person who commits a civil infraction described in subsection (a) shall be fined not less than $500 nor more than $2,500 for each unlawful act or practice, which fine is to be collected in a civil suit initiated by the Bureau of Consumer Protection.  Said civil penalties recovered by the Bureau shall be remitted to the Department of Legal Affairs Consumer Protection Account, and shall be used for the furtherance of the Director’s duties and activities under the provisions of this Act.

(c)      A contract for the furnishing of commodities by unlicensed persons is void.  A person may recover the price or reasonable value of commodities furnished under a void contract.

 

History:  2018, PL 35-18.

 

27.0409            Remedies.

(a)  In addition to any other remedies allowed by law within the Territory, the Director may bring an action:

(1)  to obtain a declaratory judgment that an act or practice violates this Act; or

(2)  to enjoin, in accordance with the principles of equity, a supplier who has violated, is violating, or is otherwise likely violate this Act;

(3)  to recover actual damages, or obtain relied under subsection (b)(1), on behalf of consumers who complained to the Director before he instituted enforcement proceedings under this Act; or

(4)  to collect civil penalties.

(b)(1)  On motion of the Director and without bond in an action under this subsection, the court may make appropriate orders, including appointment of a master or receiver of sequestration of assets, to reimburse consumers found to have been damaged, or to carry out a transaction in accordance with consumers’ reasonable expectations, or to strike or limit the application of unconscionable clauses of contracts to avoid an unconscionable result, or to grant other appropriate relief.  The court may assess the expenses of a master or receiver against a supplier.

(2)      If a supplier shows by a preponderance of the evidence that a violation of this Act resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error, recovery under this subsection (b) is limited to the amount, if any, by which the supplier was unjustly enriched by the violation.

(3)      If an act or practice that violates this Act unjustly enriches a supplier and damages can be computed with reasonable certainty, damages recoverable on behalf of consumers who cannot be located with due diligence shall escheat to the Territory.

(4)      No action may be brought by the Director under this subsection more than five (5) years after the occurrence of a violation of this Act, or more than one year after the last payment in a consumer transaction involved in a violation of this Act, whichever is later.

(c)  Civil penalties may be sought:

(1)      in cases where the Director believes that a supplier’s violation of this Act has been done willfully, or

(2)      in cases where a supplier has violated a Court injunction brought under this Act.

(3)      Such civil penalties shall not be more than $10,000 per violation.  Said civil penalties recovered by the Director shall be remitted to the Department of Legal Affairs Consumer Protection Account, and shall be used for the furtherance of the Director’s duties and activities under the provisions of the Act.

 

History:  2018, PL 35-18.

 

27.0410            Private remedies.

(a)  Whether he seeks or is entitled to damages or has an adequate remedy at law, a consumer may bring an action to:

(1)  obtain a declaratory judgment that an act or practice violates this Act; or

(2)  enjoin, in accordance with the principles of equity, a supplier who has violated, is violating, or is otherwise likely to violate this Act.

(b)      Except in a class action, a consumer who suffers loss as a result of a violation of this Act may recover actual damages or $100, whichever is greater.

(c)      Whether a consumer seeks or is entitled to recover damages or has an adequate remedy at law, he may bring a class action for declaratory judgment, an injunction, and appropriate ancillary relief, except damages, against an act or practice that violates this Act.

(d)(1)  A consumer who suffers loss as a result of a violation of this Act may bring a class action for the actual damages caused by an act or practice:

(A)    specified as violating this Act in a rule adopted by the Director before the consumer transactions on which the action is based, or

(B)     declared to violate this act by a final judgement of the High Court of this Territory that was either reported officially or make available for public dissemination by the Director ten (10) days before the consumer transaction on which the action is based, or

(C)     with respect to a supplier who agreed to it, was prohibited specifically by the terms of a consent judgment which became final before the consumer transactions on which the action is based.

(2)      If a supplier shows by a preponderance of the evidence that a violation of this Act resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error, recovery under this section is limited to the amount, if any, by which the supplier was unjustly enriched by the violation.

(3)      If an act or practice that violates this Act unjustly enriches a supplier and the damages can be computed with reasonable certainty, damages recoverable on behalf of consumers who cannot be located with due diligence shall escheat to the Territory.

(e)      Any class action brought under this section will be subject to rules established by the High Court.

(f)       Except for services performed by the Director, the court may award to the prevailing party a reasonable attorney’s fee limited to the work reasonably performed if:

(1)  the consumer complaining of the act or practice that violates this Act has brought or maintained an action he knew to be groundless; or a supplier has committed an act or practice that violates this Act; and

(2)  an action under this section has been terminated by a judgment.

(g)      Except for consent judgments entered before testimony is taken, a final judgment in favor of the Bureau is admissible as prima facie evidence of the facts on which it is based in later proceedings under this section against the same person or a person in privity with him.

(h)      When a judgment under this section becomes final, the prevailing party shall mail a copy to the Director for inclusion in the public file maintained under A.S.C.A. 27.0403(a)(8).

(i)        An action under this section must be brought within five (5) years after occurrence of a violation of this Act, within one (1) year after the last payment in a consumer transaction involved in a violation of this Act, or within one (1) year after the termination of proceedings by the Director with respect to a violation of this Act, whichever is later.  However, when a supplier sues a consumer, the consumer may assert as a counterclaim any claim under this Act arising out of the transaction on which suit is brought.

 

History:  2018, PL 35-18.

 

27.0411             Cumulative remedies or penalties.

Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of the Territory.

 

History:  2018, PL 35-18.

 

27.0412            Application.

(a)  This Act does not apply to:

(1)      an act or practice required or specifically permitted by or under Federal law, or by or under Territorial law;

(2)      a publisher, broadcaster, printer, or other person engaged in the dissemination of information or the reproduction of printed or pictorial matter insofar as the information or matter has been disseminated or reproduced on behalf of others without actual knowledge that it violated this Act.

(b)  A person alleged to have violated this Act has the burden of showing the applicability of this Section.

 

History:  2018, PL 35-18.

 

27.0413            Severability.

 If any provision of this Act of the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

 

History:  2018, PL 35-18.

 

 

Chapter 05

 

ALCOHOLIC BEVERAGE CONTROL

 

Sections:

 

27.0501

Definitions.

27.0502

Board-Established- Appointment-Terms.

27.0503

Board-Powers and duties.

27.0510

Prohibition of alcoholic beverage vendor’s establishments at county option.

27.0515

Compliance with rules and regulations.

27.0516

License required-Exemption.

27.0517

Application forms for license.

27.0518

Approval of license.

27.0525

Beer tavern license-Safety requirements.

27.0526

Beer vendor’s license.

27.0527

Beer importer’s license.

27.0528

Alcoholic beverage vendor’s license.

27.0529

Alcoholic beverage importer’s license.

27.0530

Alcoholic beverage license- Safety requirements.

27.0531

Restrictions on conduct of business.

27.0532

Prohibited places of consumption-Persons in possession-Penalty.

27.0533

Suspension and revocation of license.

27.0534

 

Violation-Penalty.

27.0501 

Definitions.

Unless the context clearly requires otherwise:

(1)      “Alcoholic beverage” means beer, distilled spirit, wine, or liquor which contains eight percent or more of alcohol by weight and which is fit for beverage purposes either alone or when combined with other substances.

(2)      “Alcoholic beverage importer’s license” means a license to import alcoholic beverages from without the Territory into American Samoa for sale to alcoholic beverage licensees and alcoholic beverage vendors.

(3)      “Alcoholic beverage license” means a license to sell all alcoholic beverages at retail by the drink on the premises under license conditions prescribed by the Board for the particular premises.

(4)      “Alcoholic beverage permit” means a permit issued by the Alcoholic Beverage Control Board to purchase and have in possession alcoholic beverages.

(5)      “Alcoholic beverage vendor’s license” means a license to sell alcoholic beverages other than beer for consumption off the licensee’s premises.

(6)      “Beer” means any beverage obtained by the alcoholic fermentation of an infusion or decoction of barley or other grain, hops and malt in water, and having an alcoholic content of less than eight percent by weight.

(7)      “Beer importer’s license” means a license to import beer from without the territory into American Samoa for sale to beer taverns, beer vendors or clubs.

(8)      “Beer tavern license” means a license to sell beer for consumption on the licensee’s premises.

(9)      “Beer vendor’s license” means a license to sell beer for consumption off the licensee’s premises.

(10)  “Board” means the Alcoholic Beverage Control Board.

(11)  “Club” means an organization which operates an establishment for objects of an athletic, patriotic or social nature and not for pecuniary gain, having bylaws or a constitution, regularly elected officers and a bona fide membership list, the members of which pay dues at least once each year, and includes establishments operating for pecuniary gain in Board approved hotels, in port or airport terminals and in Board approved taverns. The licensee shall hire a special attendant who shall remain on the premises during hours required by regulations issued by the Alcoholic Beverage Control Board and shall maintain peace and order.  Notwithstanding any other provision of this chapter, establishments holding a “club” license may sell and serve beer and alcoholic beverages at hours established by the Board.

(12)  “Licensee” means a person holding a license to sell beer or alcoholic beverages or both, and includes employees of the licensee.

(13)  “Package store” means the retail outlet or outlets established by the government, operating pursuant to regulations of the Alcoholic Beverage Control Board.

(14)  “Person” includes an association, business trust, copartnership, corporation, estate, firm, joint venture, receiver, syndicate or any other group or combination acting together or as a unit.

(15)  “Sealed container” means any container of any alcoholic beverage or beer on which the stamp has not been broken or removed, or the flanges of the cap not lifted, or the can not punctured in any manner.

(16)  “Sell” includes the transferring of title to alcoholic beverages or beer from one person to another, either with or without consideration, soliciting or receiving orders for alcoholic beverages or beer, and keeping, offering or exposing alcoholic beverages or beer for sale.

 

History: 1962, PL 8-7, 1968, PL 10-43; amd 1984, PL 18-53 § 1.

 

Amendments: 1984 Subsections (a) to (m): redesignated to be (1) to (16). New subsections added, defines alcoholic beverage importers license, alcoholic beverage vendor’s license and beer importers license.

 

27.0502              Board-Established-Appointment-Terms.

(a)  There is established within the government an Alcoholic Beverage Control Board which shall consist of 7 members appointed by the Governor of American Samoa for terms of 2 years, except that the fifth, sixth and seventh initial appointees shall serve for one year only in order that thereafter there will be staggered terms.

(b)  Officials of the government may be appointed to the Board.

(c)  All appointees may be reappointed to the Board.

(d)  Appointees may be removed from the Board by the Governor for cause, provided the majority of the Board concurs in the cause or causes offered. (e) Appointees may not be licensees under this chapter.

 

History: 1963, PL 8-7, amd 1975, PL 14-10 § 1.

 

Amendment:         1975 Subsection (e) added.

 

27.0503             Board-Powers and duties.

The Board has the following duties and responsibilities:

(1) pursuant to the provisions and procedures of 4.1001 et seq.;

(A)                        to promulgate rules necessary for control of the importation, sale and use of beer and alcoholic beverages in American Samoa and for the administration of this chapter, including, but not limited to, rules regarding eligibility and qualifications for licensure and specifying the books and records to be kept by all licensees;

(B) to issue, renew, refuse, modify, suspend or revoke all licenses required by this chapter;

(2)      to inspect the premises, books and records of any licensee at any reasonable time;

(3)      to give advice and counsel to the government,

(4)      to establish the number of alcoholic beverage vendor’s licenses throughout the Territory and in no case shall any county have more than 3 and these shall be equitably distributed geographically to accommodate the population density;

(5)      to establish, at least once annually, a prescribed maximum price list for alcoholic beverages other than beer. The Board shall establish reasonable, uniform wholesale discounts for alcoholic beverage licenses purchasing in bulk volume for resale by the drink in clubs or other premises licensed as much by the Board; and

(6)      to devise a government stamp for affixing to alcoholic beverages other than beer; to prescribe the manner in which the stamp shall be affixed as a seal; and to establish the conditions under which alcoholic beverages may be imported and retained without the American Samoa alcoholic beverage stamp.

 

History: 1963, PL 8-7, 1968, PL 10-43, 1971, PL 12-17 § 1, amd 1984, PL 18-53 § 2.

 

Amendments: 1984 Subsections (4) and (5) renumbered to be (5) and (6). New subsection (4) added Boards power to establish the number of alcoholic beverage vendor’s licenses.

 

27.0510               Prohibition of alcoholic beverage vendor’s establishments at county option.

The county council of any county may by regulation prohibit the establishment of alcoholic beverage vendor’s premises within the county. Any such regulation shall not take effect until it has been determined in writing by the Attorney General to be legally sufficient, has been approved by the Secretary of Samoan Affairs, and has been proclaimed publicly and posted in the approved full text in writing by the county chief

 

History: 1963, PL 8-7; 1968, PL 10-43; 1971, PL 12-17 § 1, amd 1984, PL 18-53 § 3.

 

Amendments: 1984 Provides that county may prohibit alcoholic beverage vendors establishment.

 

27.0515              Compliance with rules and regulations.

No person may import or manufacture any alcoholic beverages or beer of any nature, or any malt syrup or malt extract, or have in his custody or possession, sell, give, receive or exchange any kind of beer or alcoholic beverage or keep such on any vessel or aircraft within the jurisdiction of American Samoa unless he has complied with the rules of the Alcoholic Beverage Control Board.

 

History: 1963, PL 8-7.

 

27.0516             License required-Exemption.

(a)      No person may import, manufacture, or sell beer or alcoholic beverages without a license, but this section does not prevent a recognized religious organization from importing into American Samoa sacramental wine for use in religious rites without a license.

(b)      Beer vendor’s, beer tavern, beer importer’s, alcoholic beverage, alcoholic beverage importer’s and alcoholic beverage vendor’s licenses are valid for one location only.

 

History: 1963, PL 8-7; amd 1984, PL 18-53 § 4.

 

Amendments: 1984 Subsection (b): includes beer importer’s, alcoholic beverage importer’s and alcoholic beverage vendor’s licenses.

 

27.0517             Application forms for license.

Application for alcoholic beverage importer’s, alcoholic beverage vendor’s, beer importer’s, beer vendor’s, beer tavern, and alcoholic beverage licenses must be made on forms prescribed by the Alcoholic Beverage Control Board.

 

History: 1963, PL 8-7; 1968, PL 10-43, amd 1984, PL 18-53 § 5.

 

Amendments: 1984 Includes alcoholic beverage importer s, alcoholic beverage vendor’s and beer importer’s licenses. Changes alcoholic beverage and club licenses to be alcoholic beverage licenses.

 

27.0518            Approval of license.

(a)      No license for the sale or importation of beer and alcoholic beverages may be issued by the Treasurer unless the application for such license has been approved by the Alcoholic Beverage Control Board.

(b)      Before approving or disapproving of any license, the Board shall make a careful study of the character of the applicant and the building and area in which the beer or alcoholic beverage is proposed to be sold, and such other matters pertaining to the sale and importation of beer and alcoholic beverages under the license as may be reasonably required by the Board.

 

History: 1963, PL 8-7; 1968, PL 10-43.

 

27.0525              Beer tavern license-Safety requirements.

(a)      A beer tavern license shall authorize the licensee to operate a beer tavern and to sell beer for consumption on the premises only.

(b)      The beer tavern may serve food to customers, provide music, and permit dancing, provided that if dancing and music constitutes a nuisance in the area the Alcoholic Beverage Control Board may order its discontinuance.

(c)      Every beer tavern shall be adequately equipped with fire fighting equipment and readily accessible exits, and the beer tavern licensee shall hire a special attendant who shall remain on the premises during such hours as may be ordered by the Alcoholic Beverage Control Board and maintain peace and order.

 

History: 1963, PL 8-7.

 

27.0526            Beer vendor’s license.

A beer vendor’s license shall authorize the licensee to sell beer for consumption off the premises, and at distances from the premises which the Board shall prescribe for each license.

 

History: 1963, PL 8-7.