An Act concerning the Kansas consumer protection act; relating to elder and disabled persons as victims; enhanced civil penalties.

Be it enacted by the Legislature of the State of Kansas:

Section 1. As used in this act:

(a) ``Elder person'' means a person who is 60 years of age or older.

(b) ``Disabled person'' means a person who has physical or mental impairment, or both, which substantially limits one or more of such per- son's major life activities.

(c) ``Major life activities'' includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

(d) ``Physical or mental impairment'' means the following:

(1) Any physiological disorder or condition, cosmetic disfigurement or anatomical loss substantially affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; res- piratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine; or

(2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

The term ``physical or mental impairment'' includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple scle- rosis, cancer, heart disease, diabetes, mental retardation and emotional illness.

(e) ``Substantially limits'' means:

(1) Unable to perform a major life activity that the average person in the general population can perform; or

(2) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. Minor temporary ailments or injuries shall not be considered physical or mental impairments which substantially limit a person's major life activ- ities. Minor temporary ailments include, but are not limited to, colds, influenza or sprains or minor injuries.

Sec. 2. If any person is found to have violated any provision of the Kansas consumer protection act, and such violation is committed against elder or disabled persons, in addition to any civil penalty otherwise pro- vided by law, the court may impose an additional civil penalty not to exceed $10,000 for each such violation.

Sec. 3. In determining whether to impose a civil penalty as provided in this act and the amount of such civil penalty, the court shall consider the extent to which one or more of the following factors are present:

(a) Whether the defendant's conduct was in disregard of the rights of the elder or disabled person;

(b) whether the defendant knew or should have known that the de- fendant's conduct was directed to an elder or disabled person;

(c) whether the elder or disabled person was more vulnerable to the defendant's conduct because of age, poor health, infirmity, impaired un- derstanding, restricted mobility or disability than other persons and ac- tually suffered substantial physical, emotional or economic damage re- sulting from the defendant's conduct;

(d) whether the defendant's conduct caused an elder or disabled per- son to suffer any of the following:

(1) Mental or emotional anguish;

(2) loss of or encumbrance upon a primary residence of the elder or disabled person;

(3) loss of or encumbrance upon the elder or disabled person's prin- cipal employment or principal source of income;

(4) loss of funds received under a pension or retirement plan or a government benefits program;

(5) loss of property set aside for retirement or for personal or family care and maintenance; or

(6) loss of assets essential to the health and welfare of the elder or disabled person; or

(e) any other factors the court deems appropriate.

Sec. 4. An elder or disabled person who suffers damage or injury as a result of a violation of the Kansas consumer protection act has a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney fees. Restitution ordered pursuant to this section has priority over a civil penalty imposed pursuant to section 2.

Sec. 5. The provisions of sections 1 through 4 shall be part of and supplemental to the consumer protection act.

Sec. 6. This act shall take effect and be in force from and after its publication in the statute book.

Approved April 4, 1996.