MCA Chapter 83

in effect

Miss. Code Ann. § 75-83-1 Definitions.

“Health spa” means an establishment that provides for profit as one of its primary purposes, services or facilities which purport to improve the user’s physical condition or appearance through weight control, exercise, dieting or a combination of these. The term includes, but is not limited to, establishments referred to by such terms as reducing salon, spa, exercise club, exercise gym, health studio, health club, weight control center or other similar terms. The term “health spa” shall not include the following: Bona fide nonprofit organizations, including but not limited to the Young Men’s Christian Association, Young Women’s Christian Association or similar organizations whose functions as health spas are only incidental to the overall functions and purposes; Any organization primarily operated for the purpose of teaching a particular form of self-defense such as judo or karate; Any nonprofit public or private school, college or university; or Any organization, business, establishment or person which does not offer a contract with a duration in excess of four (4) months. “Contract” means a written agreement by which one becomes a member of a health spa. “Member” means a status obtained by any person entitling him to the services or facilities of a health spa. “Seller” means the person, corporation, partnership, association or group engaged in the operation as defined in this section, and who offers for sale the right to use the facilities or the services of the health spa. “Facilities” means equipment, physical structures and other tangible property utilized by a health spa to conduct its business. The term includes, but is not limited to, saunas, whirlpool baths, gymnasiums, running tracks, swimming pools, shower areas and exercise equipment. “Services” means programs, plans, guidance or structures provided by health spas for health spa members. The term includes, but is not limited to, diet planning, exercise instruction, exercise programs and the structure of classes. “Prepayment” means any payment for services or the use of facilities made before the services or facilities are made available by the health spa. It is not a prepayment if a payment for services or the use of facilities is made on the same day the services or use of the facility is provided. Money or other consideration received by a health spa from a financial institution upon assignment or sale of a contract should be considered a prepayment to the extent the member is required to make prepayments to the finance institution pursuant to the contract.

Miss. Code Ann. § 75-83-3 Registration of health spa; bond required.

Any person, corporation, partnership, association or group intending to open or operate a health spa shall: File a registration statement with the Attorney General’s Division of Consumer Protection prior to the sale of any memberships. Such a registration statement shall contain the name and address of the health spa; the names and addresses of the officers, directors and stockholders of the health spa and its parent corporation, if such an entity exists; the types of available facilities; approximate size of the health spa measured in square feet; the type of membership plans to be offered and their cost; and a full and complete disclosure of any completed or pending litigation initiated against the health spa and any of its officers and directors within the last three (3) years. Every health spa shall maintain a bond issued by a surety company authorized to do business in this state. The principal sum of the bond shall be Twenty-five Thousand Dollars ($25,000.00). A copy of such bond shall be filed with the Office of the State Treasurer. If the person in whose name the bond is issued severs his relationship with the bonded health spa, the new owner shall, as a condition of doing business, notify the Office of the State Treasurer of the change of ownership and of proof of compliance with this chapter. The bond required by this section shall be in favor of the State of Mississippi for the benefit of any person who, after entering into contract with a health spa, is damaged by fraud or dishonesty or failure to provide services of the health spa in performance of the contract. Any person claiming against the bondsman maintains an action at law against the health spa and surety. The aggregate liability of the surety to all persons for all breaches of the conditions of the bonds provided herein shall in no event exceed the amount of the bond. In lieu of furnishing the bond required by this section, the health spa may deposit with the Office of the State Treasurer a cash deposit in a like amount. This cash deposit may be satisfied by any of the following: Certificates of deposit payable to the Office of the State Treasurer issued by banks doing business in this state and insured by the Federal Deposit Insurance Corporation. Investment certificates or share accounts assigned to the Office of the State Treasurer and issued by a savings and loan association doing business in the state. Bearer bonds issued by the United States Government or by this state. Cash deposit with the Office of the State Treasurer.

Miss. Code Ann. § 75-83-5 Contract with consumer; right to rescind; duration of contract; particular contracts unenforceable.

A fully completed copy of each contract shall be delivered to the buyer at the time the contract is signed. Every contract must constitute the entire agreement between the seller and the buyer, must be in writing and must be signed by the member. Each contract shall state in at least ten-point boldface type the following: NOTICE TO THE BUYER: DO NOT SIGN THIS CONTRACT UNTIL YOU HAVE READ ALL OF IT. ALSO, DO NOT SIGN THIS CONTRACT IF IT CONTAINS ANY BLANK SPACES. Every purchaser of a membership shall be entitled to cancel his or her contract within five (5) business days by notifying the health spa in writing by midnight of the fifth business day following the date of purchase of the membership contract. Written notification is deemed given if mailed or delivered by midnight of the fifth business day. All money collected pursuant to the contract shall be refunded to the purchaser exercising the right to cancel. Each contract shall contain the following notice in at least ten-point boldface type: IF WITHIN FIVE (5) BUSINESS DAYS YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS AGREEMENT BY MAILING A NOTICE TO THE HEALTH SPA BY MIDNIGHT OF THE FIFTH BUSINESS DAY FOLLOWING YOUR PURCHASE OF THE CONTRACT STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE SHOULD BE MAILED TO THE FOLLOWING ADDRESS: (Insert address of the health spa). No health spa contract shall have a duration for a longer period than thirty-six (36) months; provided, however, that no health spa offering any contract for a longer period than twelve (12) months shall be exempt from the provisions of subsection (b) of Section 75-83-3, the provisions of Section 75-83-15 notwithstanding. Every contract for health spa services shall contain a clause providing that if, by reason of death or disability, the person agreeing to receive health spa services is unable to do so, he and his estate shall be relieved of the obligation of making payments for such services other than those received prior to death or the onset of the disability, and that if he has prepaid any sum for health spa services, the unexpired portion shall be promptly refunded to him or his representative. Any health spa contract which does not comply with the applicable provisions of this chapter shall be void and unenforceable as contrary to public policy. Any health spa contract entered into by the buyer upon any false or misleading information, representation, notice or advertisement of the health spa or the health spa’s agent shall be void and unenforceable. Any waiver by the buyer of the provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable.

Miss. Code Ann. § 75-83-7 Comprehensive pricelist available to consumer; registration of pricelist.

Each health spa doing business shall prepare a comprehensive list of all membership plans offered for sale by the health spa and the respective price of each plan. The list shall be shown to each prospective purchaser of a membership plan. A health spa is prohibited from selling a membership plan not included in this list and in the registration statement filed with the Attorney General’s office; provided, however, that a reduction in the price of a plan shall not constitute a change requiring reregistration of the plan.

Miss. Code Ann. § 75-83-9 Misrepresentations; private right of action; punitive damages; attorney’s fees.

Health spas shall be prohibited from making any material misrepresentations to current members, prospective members or purchasers of membership contract regarding: Qualifications of staff; Availability, quality, or extent of facilities or services; Results obtained through exercising, dieting or weight control programs; Rights of membership; or Period of time a discount or special offer will be available. Any person who suffers any ascertainable loss of money or property as a result of fraud, dishonesty or a violation of the provisions of this chapter may bring an action in chancery court to recover actual and/or punitive damages. If the court finds that such a violation was committed, the court may award actual and/or punitive damages. In the event the damages are awarded under this section, the court shall award to the person bringing such action reasonable attorney’s fees and costs. Upon a finding by the court that an action under this section is groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney’s fees and costs.

Miss. Code Ann. § 75-83-11 Relationship to other laws.

The remedies in this chapter are in addition to and not in derogation of remedies available under any other provisions of law. The provisions of this chapter are cumulative, supplemental and not exclusive and do not relieve the parties or the contract subjects thereto from compliance with all other applicable provisions of law.

Miss. Code Ann. § 75-83-13 Criminal penalties.

Any person who knowingly and willingly violates the provisions of Section 75-83-3, 75-83-5 or 75-83-9 shall be guilty of a misdemeanor and shall be punished by a fine not exceeding Two Thousand Dollars ($2,000.00) or by imprisonment in the county jail for not more than one (1) year, or both.

Miss. Code Ann. § 75-83-15 Exemption from registration requirement.

All health spas operating in the State of Mississippi prior to July 1, 1985, and which offer no contracts which have a duration for a period of longer than twelve (12) months, shall be exempt from the provisions of subsection (b) of Section 75-83-3.