(1) A person engages in a
deceptive trade practice when, in the course of such person's business, vocation, or
occupation, such person engages in one or more of the following activities in
connection with the advertisement or sale of a membership in a health club:
(a) Fails to allow any buyer of a membership in a health club to rescind the
membership contract within three business days after receipt by the buyer of a
copy of the contract;
(b) Fails to provide conspicuous notice of the right of a purchaser of a health
club membership to rescind the sale either by telegram, mail, or hand delivery. For
purposes of this section, notice of rescission is considered given, if by mail when
postmarked, if by telegram when filed for telegraphic transmission, or if by hand
delivery when delivered to the seller's place of business.
(c) Fails to allow the buyer, or the estate of the buyer, to cancel the
membership contract when:
(I) The buyer dies;
(II) The buyer becomes totally physically disabled as determined by a
licensed physician or advanced practice registered nurse for the duration of the
membership contract;
(III) The health club is moved to a location that is more than five miles from
the location of the establishment when the buyer entered into the membership
contract;
(IV) The membership in the health club is transferred to a location of the
same club or another club, which location is more than five miles from the location
of the club when the buyer entered into the contract, and this transfer occurs
because of cessation of health club services at the club location from which the
membership is transferred;
(V) The seller permanently discontinues operation of the health club or sells
the health club and the sale results in substantial alteration of the quality of health
club services or facilities or the nature of benefits so that they no longer conform to
the provisions of the membership contract, but there shall be a thirty-day right to
cure during which the fees payable by the buyer under the membership contract
shall be suspended and the health club may bring the services, facilities, and
benefits into conformance with the provisions of the membership contract;
(d) Fails to refund all payments made pursuant to the membership contract,
less a prorated fee for days of actual use of the health club by the buyer, within
fifteen days after the seller receives the buyer's written notice of rescission;
(e) When a health club is planned or under construction, and the sale of the
membership takes place before the health club is completed, fails to:
(I) Disclose clearly and conspicuously in the membership contract the date
on which the health club will open for use;
(II) Escrow all preopening membership sales receipts in a separate account
in a bank or trust company doing business in the state of Colorado or provide a cash
bond, letter of credit, certificate of deposit, or other similar surety, in the amount of
fifty thousand dollars, for the repayment of amounts actually paid under
preopening membership agreements until the health club is open for business;
(III) Allow the buyer to cancel the membership contract and receive a full
refund of all payments made pursuant to the membership contract if the date the
health club will open for use is delayed more than sixty days from the date of
opening specified in the membership contract;
(f) Sells any membership contract, the actual or financial duration of which,
including any option to renew, is longer than twenty-four months; except that a
person does not engage in a deceptive trade practice when such person sells any
membership contract the actual or financial duration of which is not longer than
thirty-six months with a buyer's option to renew annually thereafter if:
(I) The health club has been in operation in this state more than two years;
and
(II) The health club maintains a bond with a corporate surety from a company
authorized to do business in this state or other security acceptable to and approved
by the attorney general; and
(III) The aggregate amount of the bond is one hundred thousand dollars for
each club location; and
(IV) The bond is payable to the state for the benefit of any buyer injured in
the event the health club goes out of business prior to the expiration of the buyer's
membership contract; and
(V) The bond is maintained for so long as the health club has any
membership contracts in place and outstanding, the specified term for which
exceeds twenty-four months; and
(VI) The bond is not canceled, revoked, or terminated except after notice to,
and with the written consent of, the attorney general at least forty-five days in
advance of such cancellation, revocation, or termination; and
(VII) The annual renewal option for continued membership contained in the
membership contract is not automatic but requires that the buyer affirmatively
accept the renewal option by notice in writing to the person selling the membership
contract for reasonable consideration on or before the expiration of each contract
term, but not more than six months prior to the expiration of any contract term; and
(VIII) In the event that the health club elects to cancel, revoke, or terminate
the bond, it posts a notice of such action, in twenty-four-point bold-faced type, to
its customers, on the front door of such health club; or
(g) Makes any representation, orally or in writing, in connection with the
offer or sale of a membership in a health club that a membership contract is for a
lifetime or is for a perpetual membership, or uses coercive sales tactics, or
misrepresents the quality, benefits, or nature of the services.