Phone Solicitations During COVID-19
LOUISIANA REALTORS • April 10, 2020
CORONAVIRUS: IMPACT ON TELEPHONIC SOLICITATION[1]
By: Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz,
PC450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
As a REALTOR®, calling and texting using your phone to solicit new business is an important part of your marketing strategy, especially during the COVID-19 outbreak when social distancing means there are limited in-person interactions. However, during a state of emergency declared by the Governor, certain telemarketing activities are not allowed. The below questions and answers address the impact of the COVID-19 pandemic and Governor Edward’s Order
declaring a statewide public health emergency on REALTORS’® telemarketing activities.
1. Does Governor Edwards’ order declaring a public health emergency mean telemarketing restrictions are in place?
Short Answer: In general, telephonic solicitation by a telephonic solicitor is prohibited during a state of emergency as declared by the Governor, unless the activity falls within an exception listed in the law.
Louisiana law prevents telephonic solicitors from engaging in telephonic solicitation[2] “during a state of emergency as declared by the governor,” with some exceptions.[3] Some of these exceptions include calls made
- in connection with an outstanding debt or contract
- in response to an express request of the person called, and
- to any person with whom the telephonic solicitor has an existing business relationship.[4]
Applying these exceptions, you can for example still call those parties with whom you have a contract such as seller with whom you have a listing agreement. You can return calls made to you and initiated by the other party, and call persons with whom you already had an existing business relationship. It is important to note these restrictions under Louisiana’s law are not limited to telephone calls; rather, they include “any voice or data communication made by a telephonic solicitor.” This includes text messages for example.
Governor Edward's Order
dated March 11, 2020, Proclamation JBE 2020-25, declared a statewide public health emergency as a result of the COVID-19 pandemic. The Order was extended by the Governor’s Proclamation JBE 2020-41
dated April 2, 2020. The Governor’s public health emergency declaration is now effective until April 30, 2020, but this may be extended further by the Governor in additional orders.
When a state of emergency has been declared that requires a shutdown of solicitation, the Louisiana Public Service Commission (“PSC”) updates its website to reflect this. As of the writing of this article, the most recent update to the PSC’s website does not mention the current Order by Governor Edwards regarding telephonic solicitation restrictions in effect.[5]
It may possibly be an oversight that the PSC’s website has not yet been updated, or it may be updated at any time. Further, the penalties for violating the law on telephonic solicitations can be severe.[6] Therefore, so long as the Governor’s declaration of a state of emergency remains in place, it is recommended to refrain from telephonic solicitations unless the activity falls within an exception listed in the statute.
2. Can I still make cold-calls to people who have their properties listed for sale by owner?
Short Answer: Yes, so long as the seller’s contact information is listed in the advertisement of the property.
La R.S.45 § 844.31. provides in pertinent part:
A. During a state of emergency as declared by the governor, no telephonic solicitor shall engage in telephonic solicitation except for the following reasons:
(1) The telephonic solicitation is in response to an express request of the person called. For purposes of this Section, in the case of property or services advertised and offered to sale directly by the owner or provider thereof, if such advertisement or offer contains the phone number of the owner or provider or its authorized representative, then such advertisement or offer shall be deemed to be an "express request" by the owner or provider for inquiries relating to the sale or purchase of such property or services. The authorization for telephonic solicitation provided for in this Paragraph shall expire six months after the "express request" is granted. . . . ( emphasis supplied)
Although the general rule during a state of emergency declared by the Governor is that telephonic solicitation is not allowed, there are exceptions.[7] One exception is if a seller publishes his or her phone number in the advertisement for the property for sale by owner. In such a case, the seller is deemed to have “expressly requested” inquiries related to the sale or purchase of the property. You would not be prohibited from calling or texting the seller if the seller’s advertisement of the property contains his or her phone number, even during the state of emergency declared by the Governor. If the person called does not wish to be called after such initial call, then you should not call that person and should maintain a list of such persons.
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on April 9, 2020 at 11:00 a.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on April 9, 2020 at 11:00 a.m.
[2] “Telephonic solicitation” means any voice or data communication made by a telephonic solicitor to a residential telephonic subscriber for any of the following purposes:
(i) Encouraging a sale or rental of or investment in property, consumer goods, or services.
(ii) Encouraging an extension of credit for property, consumer goods, or services.
(iii) Obtaining information that will or may be used for the direct solicitation of a sale or rental of or investment in property, consumer goods, or services or an extension of credit for such purposes.
(iv) Soliciting of a contribution to a charitable organization.
La. R.S. 45:844.31.
[3] See La. R.S. 45:844.31.
[4] See id.
[5] The PSC website states:
Current Status: No Mandatory EOC Presence
In the event of a state of emergency as declared by the governor, this site will contain information regarding permitted or prohibited telephonic solicitation activity.
The Louisiana Homeland Security and Emergency Assistance and Disaster Act, R. S. 29:721, et seq., confers upon the governor of the state of Louisiana emergency powers to deal with emergencies and disasters, including those caused by fire, flood, earthquake or other natural or man-made causes, in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters and to preserve the lives and property of the people of the state of Louisiana.
During a state of emergency as declared by the governor, while the Office of Homeland Security and Emergency Preparedness requires the Louisiana Public Service Commission to report to the Emergency Operations Center ("EOC"), no telephonic solicitor shall engage in any form of telephonic solicitation (except as specifically allowed by R. S. 45:844.31), however, The Louisiana Public Service Commission has not been required to report to the Office of Homeland Security and Emergency Preparedness in response to any executive order or proclamation issued as a result of any recent event. Therefore, the general provisions the LPSC Do Not Call Program General Order, LPSC General Order R-29617, remain in effect and no additional telephonic solicitation prohibitions are necessary at this time. Should the Commission subsequently be required to report to the Office of Homeland Security and Emergency Preparedness, in response to a state of emergency as declared by the governor, all telephonic solicitation will be prohibited and a revised notice will be posted at that time.
See http://www.lpsc.louisiana.gov/emergency.aspx
(showing last update dated July 26, 2019).
[6] Violations are punishable by a fine of up to $1,500 per violation. See La. R.S. 45:844.33
[7] See La R.S. 844.31.
NAR’s latest consumer guide, “10 Tips for Unpacking Smartly After a Move,” was developed to help ease the burden buyers may feel when surrounded by boxes. For your clients on the cusp of a move, the guide suggests establishing a priority unpacking order, wiping down each room before unpacking, discarding boxes quickly, having garbage and donation bags at the ready, and more. Share the new guide along with the companion guide “10 Tips for Packing Smartly for a Move.” As a reminder, all guides in this series are available for download—in both English and Spanish—on facts.realtor . Please allow up to two weeks for the Spanish version of the latest resource to be translated and uploaded. For ease of reference, below is a list of the most recent guides: NEW: 10 Tips For Unpacking Smartly After A Move UPDATED : Multiple Listing Services Overcoming Roadblocks to a Sale or Purchase How Solar Impacts a Real Estate Transaction Navigating Interest Rate Shifts Thank you for your continued engagement with the “Consumer Guide” series and for sharing the resources with prospective clients to ensure they have the information they need to find success in their home buying or selling journey. Remember that these guides are for informational purposes only and are not meant to enact or change any existing NAR policy. Check out the next consumer guide on identifying homebuying wants vs. needs.
Thinking about buying a home? Discover how homeownership can help build wealth, increase financial stability, and create lasting value.
From the Louisiana Department of Insurance: During a press conference today with Governor Jeff Landry, Insurance Commissioner Tim Temple announced that registration for the next round of the Louisiana Fortify Homes Program (LFHP) will open at 8 a.m. on Monday, June 1, and will include 3,000 grants. The registration period for this lottery will be open for three weeks, closing at 5 p.m. on Friday, June 19. During the press conference, Gov. Landry signed HB 1187 by Rep. Paul Sawyer, which will allow Louisiana Citizens Property Insurance Corporation to transfer $50 million in additional Katrina bond assessment funds to the LFHP. Combined with the $30 million in funding the program will receive through taxes and fees on insurance entities, the LFHP will receive a total of $80 million this year. “By lowering overall losses, we can reduce insurance and reinsurance costs, draw more insurers into the market, motivate existing companies to write additional policies and lower insurance premiums,” said Commissioner Temple. “That is exactly what the Louisiana Fortify Homes Program is designed to do.” The list of coastal parishes that are eligible to participate is expanding to include Acadia, Jefferson Davis and Lafayette parishes. Additionally, homeowners who live in the portions of Ascension, Calcasieu, Iberia, Livingston, St. Martin, St. Tammany, Tangipahoa and Vermilion parishes that were previously not included in the program will now be eligible to participate. A map showing the full list of eligible parishes is available on FortifyHomes.La.Gov . “Louisiana is the fastest growing state in the country for Fortified roofs, and that growth is not by accident—it is the result of strong support from Governor Landry and legislators like Chairman Talbot, Chairman Firment and Representative Sawyer, targeted program design, and a clear recognition that strengthening homes is one of the most effective ways to reduce insurance losses,” said Commissioner Temple. “At the end of the day, this program is about more than just roofs. It is about protecting families, it is about strengthening communities, and it is about putting Louisiana in a stronger position—both physically and economically—to face the challenges ahead.” To participate in the lottery, homeowners must register during the June registration period. Homeowners who registered for a previous round but were not selected must register again to participate. People who register on the last day of the registration period have the same chance of being selected as those who register on the first day, so there is no need to rush to register as soon as the period opens. When registering, homeowners will need to upload their homestead exemption, insurance policy declarations page that includes wind coverage, and flood insurance declarations page if the residence is in a flood zone. Homeowners who need assistance obtaining a copy of their homestead exemption should contact their parish tax assessor. Homeowners can contact their homeowners and flood insurance companies or agents for a copy of their policy declarations page. Homeowners are required to create a profile in the LFHP system before registering for the lottery and may do so by visiting the LFHP website and clicking the Login button. Homeowners who previously created a profile may use the same one for this and future rounds. Once the lottery registration period closes, the LFHP will randomly select 3,000 participants and send email notifications to registrants about whether they were selected to participate. These selection notices will be sent via email beginning on Monday, June 22. There are several program requirements that homeowners should be aware of before registering. Those interested in the program are encouraged to review eligibility information and frequently asked questions at FortifyHomes.La.Gov to determine whether their home meets the requirements for the program. If selected to participate in the grant program, homeowners will be financially responsible for having the home evaluated by a FORTIFIED-certified Evaluator as well as costs for the roof upgrade including permits, inspections and construction costs beyond the amount of the grant The LFHP provides grants of up to $10,000 for homeowners to upgrade their roofs to standards set by the Insurance Institute for Business & Home Safety. The program helps Louisiana homeowners strengthen their roofs to better withstand hurricane-force winds.
