Florida Senate - 2009                                    SB 1600
       
       
       
       By Senator Baker
       
       
       
       
       20-01580-09                                           20091600__
    1                        A bill to be entitled                      
    2         An act relating to telephone solicitation; amending s.
    3         501.059, F.S.; defining the term “prior or existing
    4         business relationship”; deleting provisions that
    5         exempt not-for-profit organizations from certain
    6         screening requirements of the “no sales solicitation
    7         list”; deleting provisions exempting charitable
    8         organizations and newspapers from certain requirements
    9         for initiating credit card charges by telephone
   10         solicitors; providing an effective date.
   11         
   12  Be It Enacted by the Legislature of the State of Florida:
   13         
   14         Section 1. Subsections (1), (4), and (6) of section
   15  501.059, Florida Statutes, are amended to read:
   16         501.059 Telephone solicitation.—
   17         (1) As used in this section:
   18         (a) “Telephonic sales call” means a call made by a
   19  telephone solicitor to a consumer, for the purpose of soliciting
   20  a sale of any consumer goods or services, or for the purpose of
   21  soliciting an extension of credit for consumer goods or
   22  services, or for the purpose of obtaining information that will
   23  or may be used for the direct solicitation of a sale of consumer
   24  goods or services or an extension of credit for such purposes.
   25         (b) “Consumer goods or services” means any real property or
   26  any tangible or intangible personal property which is normally
   27  used for personal, family, or household purposes, including,
   28  without limitation, any such property intended to be attached to
   29  or installed in any real property without regard to whether it
   30  is so attached or installed, as well as cemetery lots and
   31  timeshare estates, and any services related to such property.
   32         (c) “Unsolicited telephonic sales call” means a telephonic
   33  sales call other than a call made:
   34         1. In response to an express request of the person called;
   35         2. Primarily in connection with an existing debt or
   36  contract, payment or performance of which has not been completed
   37  at the time of such call;
   38         3. To any person with whom the telephone solicitor has a
   39  prior or existing business relationship; or
   40         4. By a newspaper publisher or his or her agent or employee
   41  in connection with his or her business.
   42         (d) “Commission” means the Florida Public Service
   43  Commission.
   44         (e) “Telephone solicitor” means any natural person, firm,
   45  organization, partnership, association, or corporation, or a
   46  subsidiary or affiliate thereof, doing business in this state,
   47  who makes or causes to be made a telephonic sales call,
   48  including, but not limited to, calls made by use of automated
   49  dialing or recorded message devices.
   50         (f) “Consumer” means an actual or prospective purchaser,
   51  lessee, or recipient of consumer goods or services.
   52         (g) “Merchant” means a person who, directly or indirectly,
   53  offers or makes available to consumers any consumer goods or
   54  services.
   55         (h) “Doing business in this state” refers to businesses who
   56  conduct telephonic sales calls from a location in Florida or
   57  from other states or nations to consumers located in Florida.
   58         (i) “Department” means the Department of Agriculture and
   59  Consumer Services.
   60         (j)“Prior or existing business relationship” means a
   61  “course of performance” as defined in s. 671.205, which the
   62  business or telephone solicitor has the evidentiary burden of
   63  establishing.
   64         (4) No telephone solicitor shall make or cause to be made
   65  any unsolicited telephonic sales call to any residential,
   66  mobile, or telephonic paging device telephone number if the
   67  number for that telephone appears in the then-current quarterly
   68  listing published by the department. Any telephone solicitor or
   69  person who offers for sale any consumer information which
   70  includes residential, mobile, or telephonic paging device
   71  telephone numbers, except directory assistance and telephone
   72  directories sold by telephone companies and organizations exempt
   73  under s. 501(c)(3) or (6) of the Internal Revenue Code, shall
   74  screen and exclude those numbers which appear on the division's
   75  then-current “no sales solicitation calls” list. This subsection
   76  does not apply to any person licensed pursuant to chapter 475
   77  who calls an actual or prospective seller or lessor of real
   78  property when such call is made in response to a yard sign or
   79  other form of advertisement placed by the seller or lessor.
   80         (6)(a) A merchant who engages a telephone solicitor to make
   81  or cause to be made a telephonic sales call shall not make or
   82  submit any charge to the consumer's credit card account or make
   83  or cause to be made any electronic transfer of funds until after
   84  the merchant receives from the consumer a copy of the contract,
   85  signed by the purchaser, which complies with this section.
   86         (b) A merchant who conducts a credit card account
   87  transaction pursuant to this section shall be subject to the
   88  provisions of s. 817.62.
   89         (c) The provisions of this subsection do not apply to a
   90  transaction:
   91         1. Made in accordance with prior negotiations in the course
   92  of a visit by the consumer to a merchant operating a retail
   93  business establishment which has a fixed permanent location and
   94  where consumer goods are displayed or offered for sale on a
   95  continuing basis;
   96         2. In which the consumer may obtain a full refund for the
   97  return of undamaged and unused goods or a cancellation of
   98  services notice to the seller within 7 days after receipt by the
   99  consumer, and the seller will process the refund within 30 days
  100  after receipt of the returned merchandise by the consumer; or
  101         3. In which the consumer purchases goods or services
  102  pursuant to an examination of a television, radio, or print
  103  advertisement or a sample, brochure, or catalog of the merchant
  104  that contains:
  105         a. The name, address, and telephone number of the merchant;
  106         b. A description of the goods or services being sold; and
  107         c. Any limitations or restrictions that apply to the
  108  offer.; or
  109         4.In which the merchant is a bona fide charitable
  110  organization or a newspaper as defined in chapter 50.
  111         Section 2. This act shall take effect July 1, 2009.