The Florida Senate

CHAPTER 559

REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY

PART I

TRADING STAMPS (ss. 559.01-559.06)

PART II

BUDGET PLANNING (ss. 559.10-559.13)

PART III

FIRE AND GOING-OUT-OF-BUSINESS SALES AND AUCTIONS
(ss. 559.20-559.27)

PART IV

BUYING SERVICES (ss. 559.3901-559.3906)

PART V

COMMERCIAL COLLECTION PRACTICES (ss. 559.541-559.548)

PART VI

CONSUMER COLLECTION PRACTICES (ss. 559.55-559.785)

PART VII

LICENSING BY DEPARTMENT OF
BUSINESS AND PROFESSIONAL REGULATION
(ss. 559.79, 559.791)

PART VIII

SALE OR LEASE OF BUSINESS OPPORTUNITIES
(ss. 559.80-559.815)

PART IX

REPAIR OF MOTOR VEHICLES (ss. 559.901-559.9221)

PART X

RENTAL-PURCHASE AGREEMENTS (ss. 559.9231-559.9241)

PART XI

SELLERS OF TRAVEL (ss. 559.926-559.939)

PART I

TRADING STAMPS

559.01  Definitions.

559.02  Fraud; false representation and lotteries prohibited.

559.03  Declared face value; redemption.

559.06  Penalties for violations.

559.01  Definitions.--As used in this part:

(1)  The term "trading stamp" means any stamp or similar device issued in connection with the retail sale of merchandise or service, as a cash discount or for any other marketing purpose, which entitles the rightful holder, on its due presentation for redemption, to receive merchandise, service, or cash. This term, however, shall not mean any redeemable device used by the manufacturer or packer of an article, in advertising or selling it, or any redeemable device issued and redeemed by a newspaper, magazine or other publication.

(2)  The term "trading stamp company" means any person engaged in distributing trading stamps for retail issuance by others, or in redeeming trading stamps for retailers, in any way or under any guise.

(3)  The term "person" means any individual, partnership, corporation, association, or other organization.

History.--s. 1, ch. 59-311.

559.02  Fraud; false representation and lotteries prohibited.--No trading stamp company shall commit any fraud or shall make any false representation or shall resort to any lottery, in distributing or redeeming trading stamps in this state.

History.--s. 2, ch. 59-311.

559.03  Declared face value; redemption.--No trading stamp company shall distribute trading stamps in this state or shall redeem trading stamps hereafter issued therein unless each stamp has legibly printed upon its face in cents or any fraction thereof a cash value determined by the company, and the rightful holders may, at their option, redeem the stamps in cash when duly presented to the company for redemption in a number having an aggregate cash value of not less than 25 cents.

History.--s. 3, ch. 59-311.

559.06  Penalties for violations.--Any person violating any provision of this part shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083, and the circuit court shall have jurisdiction in equity on the complaint of any interested person to restrain and enjoin the violation of any of said provisions.

History.--s. 6, ch. 59-311; s. 552, ch. 71-136.

PART II

BUDGET PLANNING

559.10  Definition; "budget planning."

559.11  Budget planning prohibited.

559.12  Exceptions.

559.13  Penalty.

559.10  Definition; "budget planning."--

(1)  The term "budget planning" as used in this part shall mean the act of entering into a contract by any person, firm, corporation, or association with a particular debtor by the terms of which contract the debtor agrees to deposit periodically with such person, firm, corporation, or association a specified sum of money and said person, firm, corporation, or association agrees to distribute said sum of money among specified creditors of the debtor in accordance with an agreed plan for which service the debtor agrees to pay a valuable consideration.

(2)  The term "budget planning" does not include the following:

(a)  The act of entering into a contract for services by any person, firm, corporation, or association with a particular mortgagor by the terms of which contract the mortgagor agrees to periodically deposit with such person, firm, corporation, or association, a specified sum of money and said person, firm, corporation, or association agrees to utilize said deposits to accelerate payments on a single mortgage loan of the mortgagor.

(b)  Other activities defined by rule of the Department of Banking and Finance as not within the prohibition of this part, provided such rule is adopted after a finding that consumers are adequately protected in the activity and that its prohibition is not required in the public interest.

(3)  The Department of Banking and Finance may adopt rules as necessary to implement and enforce this part.

History.--s. 1, ch. 59-345; s. 5, ch. 90-104.

559.11  Budget planning prohibited.--No person, firm, corporation, or association, shall after June 17, 1959, engage in the business of budget planning as defined in s. 559.10; provided, the provisions of this part shall not be construed to affect any contract for services to facilitate accelerated payment of a mortgage loan.

History.--s. 2, ch. 59-345; s. 6, ch. 90-104.

559.12  Exceptions.--

(1)  "Person" as used in this part shall not include a person actively practicing law in Florida and who is also admitted to The Florida Bar, and any person who is currently a member of The Florida Bar.

(2)  "Firm" as used in this part shall not include a partnership, all the members of which are admitted to practice law in this state, and who are current members of The Florida Bar.

History.--s. 3, ch. 59-345.

559.13  Penalty.--Whoever either individually or as an officer, director or employee of a person, firm, corporation or association, violates the provisions of this part shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 4, ch. 59-345; s. 553, ch. 71-136.

PART III

FIRE AND GOING-OUT-OF-BUSINESS
SALES AND AUCTIONS

559.20  Definitions.

559.21  Regulation of sales.

559.22  Duties of permittee.

559.23  Fees.

559.24  Enforcement.

559.25  Exemptions.

559.26  Violations.

559.27  Tag required reflecting value of item offered for sale at auction.

559.20  Definitions.--In construing this part, and each and every word, phrase or part thereof, where the context will permit, the definitions contained in s. 1.01, shall be applicable, and:

(1)  "Fire and other altered goods sale" is a sale held out in such a manner as to reasonably cause the public to believe that the sale will offer goods damaged or altered by fire, smoke, water, or other means.

(2)  "Going-out-of-business sale" is a sale held out in such a manner as to reasonably cause the public to believe that upon the disposal of the stock of goods on hand the business will cease and be discontinued, including but not limited to the following sales: Adjusters, adjustment, alteration, assignees, bankrupt, benefit of administrators, benefit of creditors, benefit of trustees, building coming down, closing, creditor's committee, creditors, end, executors, final days, forced out of business, insolvents, last days, lease expires, liquidation, loss of lease, mortgage sale, receiver's, trustees, quitting business, removal. Any sale using any of the foregoing words or words of similar import, at the conclusion of which sale the business will not cease and be discontinued, and not publishing that fact or the qualified nature of said sale with equal prominence with each advertisement of such sale, shall be deemed to be a going-out-of-business sale.

(3)  "Goods" is meant to include any goods, wares, merchandise, or other property capable of being the object of a sale regulated hereunder.

(4)  "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind.

(5)  The words "publish," "publishing," "advertising" and "advertisement" shall include any and all means of conveying to the public notice of sale or notice of intention to conduct a sale, whether by word of mouth, by newspaper advertisement, by magazine advertisement, by handbill, by written notice, by printed display, by billboard display, by poster, by radio announcement, and any and all means including oral, written, or printed.

(6)  The word "shall" is always mandatory and not merely directory.

History.--s. 1, ch. 59-292.

559.21  Regulation of sales.--

(1)  A person may not publish or conduct any sale of the type herein defined without a permit therefor. Such permit shall be issued by the tax collector, upon written application and verified by the person who, or by an officer of the corporation which intends to conduct such sale. Such application shall contain a description of the place where such sale is to be held, the nature of the occupancy, and whether by lease or sublease and the effective date of termination of such occupancy, the means to be employed in publishing such sale. Such application shall further contain, as part thereof, an itemized list of the goods, wares, and merchandise to be offered for sale.

(2)  Upon receipt of such application and payment of the fee prescribed in s. 559.23, the tax collector shall examine the same, and may make such investigation as she or he may deem proper. The tax collector shall determine if the person or corporation that intends to conduct the sale owes any taxes with respect to the goods to be offered for sale. The tax collector may not issue a permit to such person or corporation until all delinquent taxes on such goods have been paid. If after such investigation she or he is satisfied as to the truth of the statements contained in such application, the tax collector may issue a license permitting the publication and conduct of such sale on the following terms:

(a)  The permit shall authorize the sale described in the application for a period of not more than 60 consecutive days, counting Sundays and legal holidays following the issuance thereof.

(b)  The permit shall authorize only the one type of sale described in the application at the location named therein.

(c)  The permit shall authorize only the sale of goods described in the inventory attached to the application.

(d)  Upon being issued a permit hereunder for a going-out-of-business sale, the permittee shall surrender to the tax collector all other business licenses she or he may hold at that time applicable to the location and goods covered by the application for a permit under this part, which license or licenses shall be transmitted by the tax collector to the licensing authority for cancellation.

(e)  Any permit herein provided for shall not be assignable or transferable.

History.--s. 2, ch. 59-292; ss. 12, 35, ch. 69-106; s. 198, ch. 77-104; s. 1, ch. 93-82; s. 37, ch. 95-312; s. 811, ch. 97-103.

559.22  Duties of permittee.--A permittee under this part shall:

(1)  Make no additions whatsoever, during the period of authorized sale, to the stock of goods set forth in the inventory attached to the application for permit.

(2)  Specify the registration or permit number of the permit issued by the tax collector within any advertising of the sale.

(3)  Refrain from employing any untrue, deceptive or misleading advertising.

(4)  Conduct the authorized sale in strict conformity with any advertising or holding out incident thereto.

History.--s. 2, ch. 59-292; s. 2, ch. 93-82.

559.23  Fees.--Upon filing an application for a permit to advertise and conduct a sale, or special sale, the applicant shall pay to the tax collector a fee in the sum of $50 which shall be deemed income of his or her office. If an application is disapproved, such payment shall be retained as and for the cost of investigating the statements contained in such application, and the applicant.

History.--s. 3, ch. 59-292; s. 11, ch. 83-255; s. 3, ch. 93-82; s. 812, ch. 97-103.

559.24  Enforcement.--

(1)  Upon commencement of a sale, the permit issued shall be prominently displayed near the entrance to the premises. Duplicate originals of the application, the stock list pursuant to which the permit was issued, and the permit shall be forwarded to the tax collector, who may examine all merchandise in the premises for comparison with the stock list.

(2)  All advertisements or advertising and the language contained therein must be in accordance with the purpose of the sale as stated in the application pursuant to which a permit was issued, and the wording of such advertisements may not vary from the wording as indicated in the application. Such advertising must contain a statement in these words and no others:

Sale held pursuant to _____ County, _____ sale No. _____ granted the _____ day of _____, (in such blank spaces shall be indicated the type of sale, the permit number and the requisite dates.)

(3)  Suitable books and records as prescribed by the tax collector shall be kept by the permittee and shall during business hours be available to the sheriff. At the close of business each day the stock list attached to the application shall be revised and those items disposed of during such day shall be so marked thereon.

History.--s. 4, ch. 59-292; ss. 12, 35, ch. 69-106; s. 4, ch. 93-82; s. 38, ch. 95-312.

559.25  Exemptions.--The provisions of this part shall not apply to or affect the following persons:

(1)  Persons acting pursuant to an order or process of a court of competent jurisdiction.

(2)  Persons acting in accordance with their powers and duties as public officers such as sheriffs and marshals, and similar public officers.

(3)  Duly licensed auctioneers, selling at auction.

(4)  Persons holding licenses or permits duly issued to conduct such sales by municipalities having municipal ordinances similar to this part.

History.--s. 5, ch. 59-292.

559.26  Violations.--

(1)  Any person who violates this part is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  A person who publishes an advertisement for a fire and other altered goods sale or going-out-of-business sale, which advertisement does not conform to the requirements specified in s. 559.24, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 6, ch. 59-292; s. 554, ch. 71-136; s. 5, ch. 93-82.

559.27  Tag required reflecting value of item offered for sale at auction.--

(1)  At all auctions of goods at public outcry, the auctioneer or her or his agent shall place or cause to be placed upon each item to be offered at auction a tag showing the value attributed to the item at the time it is offered. Such tag shall remain affixed to the item and shall be delivered to the buyer along with the item at the time of sale.

(2)  The provisions of this section shall not apply:

(a)  To agricultural commodities, livestock, agricultural equipment, automobiles, or other items of goods which are most commonly marketed at auction;

(b)  When a value is not expressed by the auctioneer as a guide to the bidder; or

(c)  To auctions held as a result of court action.

(3)  Violation of this section shall be a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 1, 2, 3, ch. 70-151; s. 555, ch. 71-136; s. 813, ch. 97-103.

PART IV

BUYING SERVICES

559.3901  Short title.

559.3902  Definitions.

559.3903  Contracts of membership; right of cancellation; how exercised; entitlement to refund; right not waivable.

559.3904  Contracts of membership; requirements; notice; effect of noncompliance.

559.3905  Required disclosures; prohibited acts.

559.3906  Violations of act.

559.3901  Short title.--This act may be cited as the "Buying Services Act of 1991."

History.--s. 1, ch. 91-72.

559.3902  Definitions.--As used in this act, the term:

(1)  "Business day" means any day other than a Saturday, Sunday, or legal holiday.

(2)  "Buying service," "buying club," or "club" means any corporation, nonprofit corporation, partnership, unincorporated association, cooperative association, or other business enterprise which is organized with the primary purpose of providing benefits to members from the cooperative purchase of service or merchandise and which desires to effect such purpose through direct solicitation or other business activity in this state.

(3)  "Contract" means any contract or agreement by which a person becomes a member of a buying service or club.

(4)  "Member" means any person or entity entitled to any of the benefits of a buying service or buying club.

(5)  "Prepayment" means any payment for service, merchandise, or membership made before the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract.

History.--s. 1, ch. 91-72.

559.3903  Contracts of membership; right of cancellation; how exercised; entitlement to refund; right not waivable.--

(1)  Any person who has elected to become a member of a club may cancel such membership by giving written notice of cancellation any time before 12 midnight of the third business day following the date on which membership was attained.

(2)  Notice of cancellation may be given personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed, and postage prepaid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention or desire of the member to cancel the contract.

(3)  Cancellation shall be without liability on the part of the member. The member will be entitled to a total refund, within 10 days after notice of cancellation is given, of the entire consideration paid for the contract.

(4)  Rights of cancellation may not be waived or otherwise surrendered.

(5)  Any purchase made by the member prior to cancellation will be void. If upon demand of the club the member tenders to the club all merchandise received in the same condition it was received at the time of purchase, the member shall receive a total refund for all purchases made prior to cancellation within 10 days after notice of cancellation is given.

History.--s. 1, ch. 91-72.

559.3904  Contracts of membership; requirements; notice; effect of noncompliance.--

(1)  A copy of a member's contract, with all blank spaces filled in, shall be delivered to the member at the time the contract is signed.

(2)  Every contract shall be in writing, shall be signed by the member, shall designate the date on which the member signed the contract, and shall state, clearly and conspicuously in boldfaced type of a minimum size of 14 points, the following:

"MEMBER'S RIGHT TO CANCEL

If you wish to cancel this contract, you may cancel by delivering or mailing a written notice to the club. To prove that you canceled, it is recommended that you send the notice by certified mail. The notice shall state that you do not wish to be bound by the contract and shall be delivered or mailed before 12 midnight of the third business day after you sign this contract. The notice shall be delivered or mailed to: (insert name and mailing address of club). If you cancel, the club will return, within 10 days of the date on which you give notice of cancellation, a total refund. It is recommended that you mail the notice of cancellation by certified mail, return receipt requested; check with your post office as to the time when you will be able to mail a certified letter. Be sure to keep a photocopy of the notice of cancellation which you mail."

(3)  No contract shall be valid for a term longer than 24 months from the date upon which the contract is signed. However, a club may allow a member to convert his or her contract into a contract for a period longer than 24 months after the member has been a member of the club for a period of at least 6 months. The duration of the contract shall be clearly and conspicuously disclosed in the contract in boldfaced type of a minimum size of 14 points.

(4)  Every contract shall provide that if any goods, except custom manufactured goods, ordered by the member from the buying club, are not delivered to the member or available for pickup by the member at the location where the order was placed within 6 weeks from the date the member placed an order for such goods, then any payment by the member for such goods in advance of delivery shall, upon the member's request, be fully refunded, unless a predetermined delivery date has been furnished to the member in writing at the time he or she ordered such goods and the goods are delivered to the member or available for pickup by that date. Every contract shall disclose that delivery dates for furniture or custom manufactured goods cannot be predicted, if such is the case.

(5)  If a buying club or any of its agents or employees represents orally or in writing that use of its services will result in savings to its members it shall disclose in writing in the contract that all savings claims made by the buying club are based on price comparisons with retailers doing business in the trade area in which the claims are made if the same or comparable items are offered for sale in the trade area and with prices at which the merchandise is actually sold or offered for sale.

(6)  Every contract which does not contain the requirements specified in subsections (2)-(5) may be canceled by the member at any time, without liability, by giving notice of cancellation by any means. Nothing contained in this section shall be construed to require that a member's cancellation notice be sent by certified mail in order to effect a cancellation.

History.--s. 1, ch. 91-72; s. 814, ch. 97-103.

559.3905  Required disclosures; prohibited acts.--

(1)  It shall be unlawful for any buying club to fail to disclose to a prospective member in writing, prior to the sale of any contract for buying services:

(a)  That goods or services can only be bought through catalogs with no opportunity to inspect samples if such is the case.

(b)  The buying club's policies regarding warranties or guarantees on goods ordered, return of ordered goods by buyers, procedures for cancellation of merchandise orders by the buyer, and refunds of deposits for the cancellation of orders.

(c)  Any charges, such as estimated freight costs, handling fees, credit life or disability insurance, suppliers' and buying clubs' markup, and other costs incidental to the purchase of goods through the buying club and which are to be paid by the buyer.

(d)  Advice that the contract for buying service or incidental retail installments contracts will be transferred, sold, or assigned to a third party if such practice is the case.

(e)  The percentage of the purchase price required as a down payment on merchandise orders of any nature. This prohibition applies in all cases where rebates are offered, regardless of whether such promised rebates are contingent upon the seller's ability to enroll the referred persons into the buying club.

(2)  It shall be unlawful for any buying club to fail to disclose to a prospective member and to give the prospective member an opportunity to examine a list of suppliers and the nature of merchandise which is available to buyers from cooperative suppliers prior to the sale of any contract for buying services. Such lists shall be updated bimonthly.

(3)  It shall be unlawful for a buying club to:

(a)  Represent that it is affiliated with any other buying club organization or showroom unless an affiliation in fact exists and unless the prospective buyer would be legally entitled to services from the allegedly affiliated organization as a result of being a buyer of the subject buying club. If such an affiliation is claimed by the representative of the buying club, written proof of such a binding legal right shall be given the prospective buyer, including a description of the services available from the affiliated club, before the signing of any contract for discount buying services or application;

(b)  Represent that the prospective buyer will be entitled to a particular benefit unless that benefit is currently available from the buying club on a regular basis;

(c)  Offer any gifts or consideration of any nature to a prospective buyer as a solicitation for such persons to attend a buying club sales presentation or to sign a membership application or a contract for buying services where the club fails to honor or deliver the gift or consideration in accordance with the terms of its promise;

(d)  Represent or suggest in any manner that it offers its buyers the lowest prices, excluding freight and service charges, available on all categories of merchandise handled by the club, unless such is true;

(e)  Represent that merchandise is available to the buyer from any particular supplier unless such is true at the time the representation is made. Reference to unavailable suppliers or manufacturers may be made only for purposes of allowing prospective buyers to compare merchandise costs against those manufacturers which are available through the club. No buying club may represent to a prospective buyer that the club can purchase any item of merchandise at supplier's cost unless such is true;

(f)  Make savings claims that are not based on price comparisons with retailers offering the same or comparable items in the trade area in which the claims are made and with prices at which the merchandise is actually sold or offered for sale; or

(g)  Misrepresent a material fact or create a false or misleading impression regarding the advertising sale or promotion of a buying service or club.

History.--s. 1, ch. 91-72.

559.3906  Violations of act.--A violation of this act shall be deemed an unfair or deceptive trade practice within the meaning of part II of chapter 501. Violators shall be subject to the penalties and remedies provided therein.

History.--s. 1, ch. 91-72.

PART V

COMMERCIAL COLLECTION PRACTICES

559.541  Short title.

559.542  Legislative intent.

559.543  Definitions.

559.544  Registration required; exemptions.

559.545  Registration of commercial collection agencies; procedure.

559.546  Bond; evidence of current and valid bond.

559.547  Void registration.

559.548  Penalties.

559.541  Short title.--Sections 559.541-559.548 may be cited as the "Florida Commercial Collection Practices Act."

History.--ss. 1, 2, ch. 93-275.

559.542  Legislative intent.--The Legislature finds that commercial collection practices in this state are not governed by the federal and state laws relating to the collection of consumer claims and that current criminal laws are inadequate to deal with certain unlawful and fraudulent activities specifically involving the collection of commercial claims in this state. Under such circumstances, there have been in the past, and will be in the future unless the Legislature acts, persons who succeed in flaunting the criminal laws of this state while engaging in the business of collecting commercial claims. Therefore, the Legislature intends by this part to specifically regulate commercial collection activities, separate and apart from consumer collection activities, to prevent unlawful and fraudulent commercial collection activities that otherwise may go unpenalized. The Legislature seeks to do so by requiring the registration of persons and businesses engaged in soliciting the collection of commercial claims or in collecting commercial claims, by prohibiting collection activities in this state by unregistered persons, and by providing effective mechanisms for enforcement of this part.

History.--ss. 1, 2, ch. 93-275.

559.543  Definitions.--As used in this part:

(1)  "Claim" or "commercial claim" means any obligation for the payment of money or its equivalent arising out of a transaction wherein credit has been offered or extended to any person, and the money, property, or service which was the subject of the transaction was primarily for commercial purposes and not primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. The term "claim" or "commercial claim" includes an obligation of a person who is comaker, endorser, guarantor, or surety as well as the person to whom such credit was originally extended.

(2)  "Commercial collection agency" means any person engaged, as a primary or secondary business activity, in the business of soliciting commercial claims for collection or in the business of collecting commercial claims, asserted to be owed or due to another person, regardless of whether the collection efforts are directed at the primary debtor or some other source of payment.

(3)  "Credit grantor" means any person or entity to whom a commercial claim is owed, due, or alleged to be owed or due, whether or not such person or entity is domiciled or doing business within this state and whether or not such commercial claim arose within this state. However, such term does not apply to any registrant under this part who has received an assignment or transfer of a commercial claim in default solely for the purpose of facilitating collection of such commercial claim for another.

(4)  "Out-of-state collector" means any person or business entity engaged in the business of soliciting commercial claims for collection or of collecting commercial claims whose business activities in this state are limited to collecting commercial claims by means of interstate communications, including telephone, mail, or facsimile transmission, originating from outside this state.

(5)  "Department" means the Department of Banking and Finance.

History.--ss. 1, 2, ch. 93-275.

559.544  Registration required; exemptions.--

(1)  No person shall engage in business in this state as a commercial collection agency, as defined in this part, or continue to do business in this state as a commercial collection agency, without first registering in accordance with this part and thereafter maintaining such registration.

(2)  Each commercial collection agency doing business in this state shall register with the department and annually renew such registration, providing the registration fee, information, and surety bond required by this part.

(3)  No registration shall be valid for any commercial collection agency transacting business at any place other than that designated in the registration unless the department is first notified in advance of any change of location. A registration under this part is not transferable or assignable. Any commercial collection agency desiring to change its registered name, location, or agent for service of process at any time other than renewal of registration shall notify the department of such change prior to the change.

(4)  The department shall not accept any registration for any commercial collection agency as validly made and filed with the department under this section unless the registration information furnished to the department by the registrant is complete pursuant to s. 559.545 and facially demonstrates that such registrant is qualified to engage in business as a commercial collection agency, including specifically that neither the registrant nor any principal of the registrant has engaged in any unlawful collection practices, dishonest dealings, acts of moral turpitude, or other criminal acts that reflect an inability to engage in the commercial collection agency business. The department shall inform any person whose registration is rejected by the department of the fact of and basis for such rejection. A prospective registrant shall be entitled to be registered when her or his or its registration information is complete on its face, the applicable registration fee has been paid, and the required evidence of current bond is furnished to the department.

(5)  This section shall not apply to:

(a)  A member of The Florida Bar, unless such person is primarily engaged in the collection of commercial claims. "Primarily engaged in the collection of commercial claims" means that more than one-half of the income of such person arises from the business of soliciting commercial claims for collection or collecting commercial claims.

(b)  A financial institution authorized to do business in this state and any wholly owned subsidiary and affiliate thereof.

(c)  A licensed real estate broker.

(d)  A title insurance company authorized to do business in this state.

(e)  A collection agency which is not primarily engaged in the collection of commercial claims. "Not primarily engaged in the collection of commercial claims" means that less than one-half of the collection revenue of such agency arises from the collection of commercial claims.

(f)  A consumer finance company and any wholly owned subsidiary and affiliate thereof.

(g)  A person licensed pursuant to chapter 520.

(h)  A credit grantor.

(i)  An out-of-state collector as defined in this part.

(j)  An FDIC-insured institution or subsidiary or affiliate thereof.

History.--ss. 1, 2, ch. 93-275; s. 815, ch. 97-103.

559.545  Registration of commercial collection agencies; procedure.--Any person who wishes to register as a commercial collection agency in compliance with this part shall do so on forms furnished by the department. Any renewal of registration shall be made between October 1 and December 31 of each year. In registering or renewing a registration as required by this part, each commercial collection agency shall furnish to the department a registration fee, information, and surety bond, as follows:

(1)  The registrant shall pay to the department a registration fee of $500. All amounts collected shall be deposited to the credit of the Regulatory Trust Fund of the department.

(2)  The registrant shall provide the following information:

(a)  The business name or trade name of the commercial collection agency, the current mailing address of the agency, and the current business location of each place from which the agency operates either a main or branch office, with a designation of which location constitutes its principal place of business.

(b)  The full names, current addresses, current telephone numbers, and social security numbers, or federal identification numbers of any corporate owner, of the registrant's owners or corporate officers and directors, and of the Florida resident agent of the registering agency.

(c)  A statement as to whether the registrant is a domestic or foreign corporation, together with the state and date of incorporation, charter number of the corporation, and, if a foreign corporation, the date the corporation first registered to do business in this state.

(d)  A statement listing each county in this state in which the registrant is currently doing business or plans to do business within the next calendar year, indicating each county in which the registrant holds an occupational license.

(e)  A statement listing each county in this state in which the registrant is operating under a fictitious name or trade name other than that of the registrant, indicating the date and place of registration of any such fictitious name or trade name.

(f)  A statement listing the names of any other corporations, entities, or trade names through which any owner or director of the registrant was known or did business as a commercial or consumer collection agency within the 5 calendar years immediately preceding the year in which the agency is registering.

(g)  A statement clearly identifying and explaining any occasion on which any professional license or occupational license held by the registrant, any principal of the registrant, or any business entity in which any principal of the registrant was the owner of 10 percent or more of such business was the subject of any suspension, revocation, or other disciplinary action.

(h)  A statement clearly identifying and explaining any occasion of a finding of guilt of any crime involving moral turpitude or dishonest conduct on the part of any principal of the registrant.

(3)  The registrant shall furnish to the department evidence, as provided in s. 559.546, of the registrant having a current surety bond in the amount of $50,000, valid for the year of registration, paid for and issued for the use and benefit of any credit grantor who suffers or sustains any loss or damage by reason of any violation of the provisions of this part by the registrant, or by any agent or employee of the registrant acting within the scope of her or his employment, and issued to ensure conformance with the provisions of this part.

History.--ss. 1, 2, ch. 93-275; s. 816, ch. 97-103.

559.546  Bond; evidence of current and valid bond.--Pursuant to s. 559.545, the registrant shall provide to the department evidence that the registrant has been issued a current and valid surety bond as required by this part.

(1)  In addition to each registration filed pursuant to s. 559.545 and any renewal of such registration, each registrant shall furnish to the department the following:

(a)  A copy of the surety bond, which bond shall be one issued by a surety known by the registrant to be acceptable to the department.

(b)  A statement from the surety that the annual premium for the bond has been paid in full by the registrant.

(c)  A statement from the surety that the bond issued by the surety meets the requirements of this part.

(2)  The liability of the surety under any bond issued pursuant to the requirements of this part shall not exceed in the aggregate the amount of the bond, regardless of the number or amount of any claims filed or which might be asserted against the surety on such bond. If multiple claims are filed against the surety on any such bond in excess of the amount of the bond, the surety may pay the full amount of the bond to the department and shall not be further liable under the bond. The department shall hold such funds for distribution to claimants and administratively determine and pay to each claimant the pro rata share of each valid claim made against the funds within 6 months after the date of the filing of the first claim against the surety.

History.--ss. 1, 2, ch. 93-275.

559.547  Void registration.--

(1)  Any registration made under this part by any person or commercial collection agency based upon the presentation by such person or collection agency of false identification or information, or identification not current with respect to name, address, and business location, or any other fact material to such registration shall be void.

(2)  Any registration made under this part, but which is void under subsection (1), shall not be construed as creating any defense to any prosecution for violation of any provision of this part.

History.--ss. 1, 2, ch. 93-275.

559.548  Penalties.--

(1)  Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

(a)  Operating or soliciting business as a commercial collection agency in this state without first registering with the department, unless specifically exempted by this part.

(b)  Registering or attempting to register by means of fraud, misrepresentation, or concealment.

(2)  Each of the following acts constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083:

(a)  Relocating a business as a commercial collection agency, or operating under any name other than that designated in the registration, unless written notification is given to the department and to the surety or sureties on the original bond.

(b)  Assigning or attempting to assign a registration under this part.

(3)  The court may, in addition to other punishment provided for, invalidate the registration of any registrant under this part who has been found guilty of conduct prohibited in subsection (1) or subsection (2).

History.--ss. 1, 2, ch. 93-275.

PART VI

CONSUMER COLLECTION PRACTICES

559.55  Definitions.

559.551  Short title.

559.552  Relationship of state and federal law.

559.553  Registration of consumer collection agencies required; exemptions.

559.555  Registration of consumer collection agencies; procedure.

559.563  Void registration.

559.565  Enforcement action against out-of-state consumer debt collector.

559.715  Assignment of consumer debts.

559.72  Prohibited practices generally.

559.725  Consumer complaints; administrative duties.

559.730  Administrative remedies.

559.77  Civil remedies.

559.78  Judicial enforcement.

559.785  Criminal penalty.

559.55  Definitions.--The following terms shall, unless the context otherwise indicates, have the following meanings for the purpose of this part:

(1)  "Debt" or "consumer debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

(2)  "Debtor" or "consumer" means any natural person obligated or allegedly obligated to pay any debt.

(3)  "Creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but does not include any person to the extent that they receive an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

(4)  "Department" means the Department of Banking and Finance.

(5)  "Communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.

(6)  "Debt collector" means any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term "debt collector" includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts. The term does not include:

(a)  Any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(b)  Any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector for persons to whom it is so related or affiliated and if the principal business of such persons is not the collection of debts;

(c)  Any officer or employee of any federal, state, or local governmental body to the extent that collecting or attempting to collect any debt is in the performance of her or his official duties;

(d)  Any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(e)  Any not-for-profit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; or

(f)  Any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent that such activity is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; concerns a debt which was originated by such person; concerns a debt which was not in default at the time it was obtained by such person; or concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

(7)  "Consumer collection agency" means any debt collector or business entity engaged in the business of soliciting consumer debts for collection or of collecting consumer debts, which debt collector or business is not expressly exempted as set forth in s. 559.553(4).

(8)  "Out-of-state consumer debt collector" means any person whose business activities in this state involve both collecting or attempting to collect consumer debt from debtors located in this state by means of interstate communication originating from outside this state and soliciting consumer debt accounts for collection from creditors who have a business presence in this state. For purposes of this subsection, a creditor has a business presence in this state if either the creditor or an affiliate or subsidiary of the creditor has an office in this state.

(9)  "Federal Fair Debt Collection Practices Act" or "Federal Act" means the federal legislation regulating fair debt collection practices, as set forth in Pub. L. No. 95-109, as amended and published in 15 U.S.C. ss. 1692 et seq.

History.--s. 1, ch. 72-81; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 3, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 4, 13, ch. 93-275; s. 817, ch. 97-103.

559.551  Short title.--Sections 559.55-559.785 may be cited as the "Florida Consumer Collection Practices Act."

History.--ss. 5, 13, ch. 93-275.

559.552  Relationship of state and federal law.--Nothing in this part shall be construed to limit or restrict the continued applicability of the federal Fair Debt Collection Practices Act to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.

History.--ss. 5, 13, ch. 93-275.

559.553  Registration of consumer collection agencies required; exemptions.--

(1)  After January 1, 1994, no person shall engage in business in this state as a consumer collection agency or continue to do business in this state as a consumer collection agency without first registering in accordance with this part, and thereafter maintaining a valid registration.

(2)  Each consumer collection agency doing business in this state shall register with the department and renew such registration annually as set forth in s. 559.555.

(3)  A prospective registrant shall be entitled to be registered when registration information is complete on its face and the applicable registration fee has been paid; however, the department may reject a registration submitted by a prospective registrant if the registrant or any principal of the registrant previously has held any professional license or state registration which was the subject of any suspension or revocation which has not been explained by the prospective registrant to the satisfaction of the department either in the registration information submitted initially or upon the subsequent written request of the department. In the event that an attempted registration is rejected by the department the prospective registrant shall be informed of the basis for rejection.

(4)  This section shall not apply to:

(a)  Any original creditor.

(b)  Any member of The Florida Bar.

(c)  Any financial institution authorized to do business in this state and any wholly owned subsidiary and affiliate thereof.

(d)  Any licensed real estate broker.

(e)  Any insurance company authorized to do business in this state.

(f)  Any consumer finance company and any wholly owned subsidiary and affiliate thereof.

(g)  Any person licensed pursuant to chapter 520.

(h)  Any out-of-state consumer debt collector who does not solicit consumer debt accounts for collection from credit grantors who have a business presence in this state.

(i)  Any FDIC-insured institution or subsidiary or affiliate thereof.

(5)  Any out-of-state consumer debt collector as defined in s. 559.55(8) who is not exempt from registration by application of subsection (4) and who fails to register in accordance with this part shall be subject to an enforcement action by the state as specified in s. 559.565.

History.--ss. 5, 13, ch. 93-275.

559.555  Registration of consumer collection agencies; procedure.--Any person required to register as a consumer collection agency shall furnish to the department the registration fee and information as follows:

(1)  The registrant shall pay to the department a registration fee in the amount of $200. All amounts collected shall be deposited by the department to the credit of the Regulatory Trust Fund of the department.

(2)  Each registrant shall provide to the department the business name or trade name, the current mailing address, the current business location which constitutes its principal place of business, and the full name of each individual who is a principal of the registrant. "Principal of a registrant" means the registrant's owners if a partnership or sole proprietorship, corporate officers, corporate directors other than directors of a not-for-profit corporation organized pursuant to chapter 617 and Florida resident agent if a corporate registrant. The registration information shall include a statement clearly identifying and explaining any occasion on which any professional license or state registration held by the registrant, by any principal of the registrant, or by any business entity in which any principal of the registrant was the owner of 10 percent or more of such business, was the subject of any suspension or revocation.

(3)  Renewal of registration shall be made between October 1 and December 31 of each year. There shall be no proration of the fee for any registration.

History.--ss. 5, 13, ch. 93-275.

559.563  Void registration.--Any registration made under this part based upon false identification or false information, or identification not current with respect to name, address, and business location, or other fact which is material to such registration, shall be void. Any registration made and subsequently void under this section shall not be construed as creating any defense in any action by the department to impose any sanction for any violation of this part.

History.--ss. 5, 13, ch. 93-275.

559.565  Enforcement action against out-of-state consumer debt collector.--The remedies of this section are cumulative to other sanctions and enforcement provisions of this part for any violation by an out-of-state consumer debt collector, as defined in s. 559.55(8).

(1)  Any out-of-state consumer debt collector who collects or attempts to collect consumer debts in this state without first registering in accordance with this part shall be subject to an administrative fine not to exceed $1,000 together with reasonable attorney fees and court costs in any successful action by the state to collect such fines.

(2)  Any person, whether or not exempt from registration under this part, who violates the provisions of s. 559.72 shall be subject to sanctions for such violations the same as any other consumer debt collector, including imposition of an administrative fine. The registration of a duly registered out-of-state consumer debt collector shall be subject to revocation or suspension in the same manner as the registration of any other registrant under this part.

(3)  In order to effectuate the provisions of this section and enforce the requirements of this part as it relates to out-of-state consumer debt collectors, the Attorney General is expressly authorized to initiate such action on behalf of the state as he or she deems appropriate in any federal district court of competent jurisdiction.

History.--ss. 5, 13, ch. 93-275; s. 818, ch. 97-103.

559.715  Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

History.--s. 1, ch. 89-69; ss. 6, 13, ch. 93-275.

¹559.72  Prohibited practices generally.--In collecting consumer debts, no person shall:

(1)  Simulate in any manner a law enforcement officer or a representative of any governmental agency;

(2)  Use or threaten force or violence;

(3)  Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6);

(4)  Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;

(5)  Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;

(6)  Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;

(7)  Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;

(8)  Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;

(9)  Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;

(10)  Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;

(11)  Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare;

(12)  Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney;

(13)  Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor;

(14)  Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;

(15)  Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents when requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt;

(16)  Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, Jane Doe" or "Deadbeat, John Doe";

(17)  Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor;

(18)  Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication; or

(19)  Cause charges to be made to any debtor for communications by concealment of the true purpose of the communication, including collect telephone calls and telegram fees.

History.--s. 18, ch. 72-81; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 7, 13, ch. 93-275; s. 819, ch. 97-103; s. 1, ch. 2001-206.

¹Note.--Section 3, ch. 2001-206, provides that "[t]his act shall take effect July 1, 2001, and applies to any cause of action accruing on or after that date."

559.725  Consumer complaints; administrative duties.--

(1)  The Division of Consumer Services shall serve as the registry for receiving and maintaining records of inquiries, correspondence, and complaints from consumers concerning any and all persons who collect debts, including consumer collection agencies.

(2)  The division shall classify complaints by type and identify the number of written complaints against persons collecting or attempting to collect debts in this state, including credit grantors collecting their own debts, debt collectors generally, and, specifically, consumer collection agencies as distinguished from other persons who collect debts such as commercial debt collection agencies regulated under part V of this chapter. The division shall identify the nature and number of various kinds of written complaints, including specifically those alleging violations of s. 559.72.

(3)  The division shall inform and furnish relevant information to the appropriate regulatory body of the state, or The Florida Bar in the case of attorneys, when any consumer debt collector exempt from registration under this part has been named in five or more written consumer complaints alleging violations of s. 559.72 within a 12-month period.

(4)  The division shall furnish a form to each complainant whose complaint concerns an alleged violation of s. 559.72 by a consumer collection agency. Such form may be filed with the Department of Banking and Finance. The form shall identify the accused consumer collection agency and provide for the complainant's summary of the nature of the alleged violation and facts which allegedly support the complaint. The form shall include a provision for the complainant to state under oath before a notary public that the allegations therein made are true.

(5)  Upon receipt of such sworn complaint, the department shall promptly furnish a copy of the sworn complaint to the accused consumer collection agency.

(6)  The department shall investigate sworn complaints by direct written communication with the complainant and the affected consumer collection agency. In addition, the department shall attempt to resolve each sworn complaint and shall record the resolution of such complaints.

(7)  Periodically, the department shall identify consumer collection agencies that have unresolved sworn consumer complaints from five or more different consumers within a 12-month period under the provisions of this part.

(8)  The department shall issue a written warning notice to the accused consumer collection agency if the department is unable to resolve all such sworn complaints and fewer than five unresolved complaints remain. Such notice shall include a statement that the warning may constitute evidence in any future investigation of similar complaints against that agency and in any future administrative determination of the imposition of other administrative remedies available to the department under this part.

(9)  The department may issue a written reprimand when five or more such unresolved sworn complaints against a consumer collection agency collectively fall short of constituting apparent repeated violations that warrant more serious administrative sanctions. Such reprimand shall include a statement that the reprimand may constitute evidence in any future investigation of similar complaints against that agency and in any future administrative determination of the imposition of other administrative remedies available to the department.

(10)  The department shall issue a notice of intent either to revoke or suspend the registration or to impose an administrative fine when the department preliminarily determines that repeated violations of s. 559.72 by an accused registrant have occurred which would warrant more serious administrative sanctions being imposed under this part. The department shall advise each registrant of the right to require an administrative hearing under chapter 120, prior to the agency's final action on the matter as authorized by s. 559.730.

(11)  The department shall advise the appropriate state attorney, or the Attorney General in the case of an out-of-state consumer debt collector, of any determination by the department of a violation of the requirements of this part by any consumer collection agency which is not registered as required by this part. The department shall furnish the state attorney or Attorney General with the department's information concerning the alleged violations of such requirements.

History.--ss. 8, 13, ch. 93-275.

559.730  Administrative remedies.--

(1)  The department may revoke or suspend the registration of any registrant under this part who has engaged in repeated violations which establish a clear pattern of abuse of prohibited collection practices under s. 559.72. Final department action to revoke or suspend the registration of any registrant shall be subject to review in accordance with chapter 120 in the same manner as revocation of a license. The repeated violations of the law by one employee shall not be grounds for revocation or suspension of the registration of the employing consumer collection agency, unless the employee is also the owner of a majority interest in the collection agency.

(2)  The registration of a registrant shall not be revoked or suspended if the registrant shows by a preponderance of the evidence that the violations were not intentional and resulted from bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

(3)  The department shall consider the number of complaints against the registrant in relation to the accused registrant's volume of business when determining whether suspension or revocation is the more appropriate sanction when circumstances warrant that one or the other should be imposed upon a registrant.

(4)  The department shall impose suspension rather than revocation when circumstances warrant that one or the other should be imposed upon a registrant and the accused registrant demonstrates that the registrant has taken affirmative steps which can be expected to effectively eliminate the repeated violations and that the registrant's registration has never previously been suspended.

(5)  The department may impose an administrative fine up to $1,000 against the offending registrant as a sanction for repeated violations of the provisions of s. 559.72 when violations do not rise to the level of misconduct governed by subsection (1). Final department action to impose an administrative fine shall be subject to review in accordance with ss. 120.569 and 120.57.

(6)  Any administrative fine imposed under this part shall be payable to the department. The department shall maintain an appropriate record and shall deposit such fine into the Regulatory Trust Fund of the department.

(7)  An administrative action by the department to impose revocation, suspension, or fine shall be brought within 2 years after the date of the last violation upon which the action is founded.

(8)  Nothing in this part shall be construed to preclude any person from pursuing remedies available under the Federal Fair Debt Collection Practices Act for any violation of such act, including specifically against any person who is exempt from the registration provisions of this part.

History.--ss. 9, 13, ch. 93-275; s. 250, ch. 96-410.

¹559.77  Civil remedies.--

(1)  A debtor may bring a civil action against a person violating the provisions of s. 559.72 in a court of competent jurisdiction of the county in which the alleged violator resides or has his or her principal place of business or in the county wherein the alleged violation occurred.

(2)  Upon adverse adjudication, the defendant shall be liable for actual damages and for additional statutory damages of up to $1,000, together with court costs and reasonable attorney's fees incurred by the plaintiff. In determining the defendant's liability for any additional statutory damages, the court shall consider the nature of the defendant's noncompliance with s. 559.72, the frequency and persistence of such noncompliance, and the extent to which such noncompliance was intentional. In any class action lawsuit brought under this section, the court may award additional statutory damages of up to $1,000 for each named plaintiff and an aggregate award of additional statutory damages not to exceed the lesser of $500,000 or 1 percent of the defendant's net worth for all remaining class members, but in no event may this aggregate award provide an individual class member with additional statutory damages in excess of $1,000. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If the court finds that the suit fails to raise a justiciable issue of law or fact, the plaintiff shall be liable for court costs and reasonable attorney's fees incurred by the defendant.

(3)  A person shall not be held liable in any action brought under this section if the person shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

(4)  An action brought under this section must be commenced within 2 years after the date on which the alleged violation occurred.

(5)  In applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.

History.--s. 23, ch. 72-81; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 9, ch. 78-95; ss. 3, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 10, 13, ch. 93-275; s. 820, ch. 97-103; s. 2, ch. 2001-206.

¹Note.--Section 3, ch. 2001-206, provides that "[t]his act shall take effect July 1, 2001, and applies to any cause of action accruing on or after that date."

559.78  Judicial enforcement.--In addition to other penalties provided in this part, state attorneys and their assistants are authorized to apply to the court of competent jurisdiction within their respective jurisdictions, upon the sworn affidavit of any person alleging a violation of any of the provisions of this part. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this part, whether or not there exists an adequate remedy at law; and such injunction, suspension, or revocation shall issue without bond.

History.--s. 24, ch. 72-81; s. 26, ch. 73-334; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 11, 13, ch. 93-275.

559.785  Criminal penalty.--It shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person not exempt from registering as provided in this part to engage in collecting consumer debts in this state without first registering with the department, or to register or attempt to register by means of fraud, misrepresentation, or concealment.

History.--ss. 12, 13, ch. 93-275.

PART VII

LICENSING BY DEPARTMENT OF
BUSINESS AND PROFESSIONAL REGULATION

559.79  Applications for license or renewal.

559.791  False swearing on application; penalties.

559.79  Applications for license or renewal.--

(1)  Each application for a license issued by the Department of Business and Professional Regulation shall include a statement showing the name, address, and social security number of each person who owns 10 percent or more of the outstanding stock or equity interest in the licensed activity and the name, address, and social security number of each officer, director, chief executive, or other person who, in accordance with the rules of the issuing agency, is determined to be able directly or indirectly to control the operation of the business of the licensed entity, and each application for renewal of such a license shall set out any changes in the required names and addresses which have occurred since the license was issued or last renewed.

(2)  Each application for a license or renewal of a license issued by the Department of Business and Professional Regulation shall be signed under oath or affirmation by the applicant, or owner or chief executive of the applicant, without the need for witnesses unless otherwise required by law.

(3)  The department shall allow the Title IV-D child support agency to screen all applicants for new or renewal licenses and current licensees pursuant to s. 409.2598 to assure compliance with a support obligation, as defined in s. 409.2554. The purpose of this subsection is to promote the public policy of this state as established in s. 409.2551. The department shall, when directed by the court, suspend or deny the license of any licensee found to have a delinquent support obligation. The department shall issue or reinstate the license without additional charge to the licensee when notified by the court that the licensee has complied with the terms of the court order. The department shall not be liable for any license denial or suspension resulting from the discharge of its duties under this subsection.

History.--ss. 1, 2, ch. 78-51; s. 11, ch. 93-208; s. 209, ch. 94-218; s. 53, ch. 2001-158.

559.791  False swearing on application; penalties.--Any license issued by the Department of Business and Professional Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including, but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

History.--s. 3, ch. 78-51; s. 210, ch. 94-218.

PART VIII

SALE OR LEASE OF BUSINESS
OPPORTUNITIES

559.80  Short title.

559.801  Definitions.

559.802  Franchises; exemption.

559.803  Disclosure statement.

559.805  Filings with the department; disclosure of advertisement identification number.

559.807  Bond or other security required.

559.809  Prohibited acts.

559.811  Contracts to be in writing; form; provisions.

559.813  Remedies; enforcement.

559.815  Penalties.

559.80  Short title.--Sections 559.80-559.815 may be cited as the "Sale of Business Opportunities Act."

History.--s. 1, ch. 79-374.

559.801  Definitions.--For the purpose of ss. 559.80-559.815, the term:

(1)(a)  "Business opportunity" means the sale or lease of any products, equipment, supplies, or services which are sold or leased to a purchaser to enable the purchaser to start a business for which the purchaser is required to pay an initial fee or sum of money which exceeds $500 to the seller, and in which the seller represents:

1.  That the seller or person or entity affiliated with or referred by the seller will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases, currency or card operated equipment, or other similar devices or currency-operated amusement machines or devices on premises neither owned nor leased by the purchaser or seller;

2.  That the seller will purchase any or all products made, produced, fabricated, grown, bred, or modified by the purchaser using in whole or in part the supplies, services, or chattels sold to the purchaser;

3.  That the seller guarantees that the purchaser will derive income from the business opportunity which exceeds the price paid or rent charged for the business opportunity or that the seller will refund all or part of the price paid or rent charged for the business opportunity, or will repurchase any of the products, equipment, supplies, or chattels supplied by the seller, if the purchaser is unsatisfied with the business opportunity; or

4.  That the seller will provide a sales program or marketing program that will enable the purchaser to derive income from the business opportunity, except that this paragraph does not apply to the sale of a sales program or marketing program made in conjunction with the licensing of a trademark or service mark that is registered under the laws of any state or of the United States if the seller requires use of the trademark or service mark in the sales agreement.

For the purpose of subparagraph 1., the term "assist the purchaser in finding locations" means, but is not limited to, supplying the purchaser with names of locator companies, contracting with the purchaser to provide assistance or supply names, or collecting a fee on behalf of or for a locator company.

(b)  "Business opportunity" does not include:

1.  The sale of ongoing businesses when the owner of those businesses sells and intends to sell only those business opportunities so long as those business opportunities to be sold are no more than five in number;

2.  The not-for-profit sale of sales demonstration equipment, materials, or samples for a price that does not exceed $500 or any sales training course offered by the seller the cost of which does not exceed $500; or

3.  The sale or lease of laundry and drycleaning equipment.

(2)  "Department" means the Department of Agriculture and Consumer Services.

(3)  "Purchaser" includes a lessee.

(4)  "Seller" includes a lessor.

History.--s. 1, ch. 79-374; s. 7, ch. 81-314; s. 1, ch. 89-193; s. 5, ch. 90-231; s. 1, ch. 92-161; s. 82, ch. 92-291; s. 1, ch. 93-244; s. 20, ch. 97-250; s. 11, ch. 2001-214.

559.802  Franchises; exemption.--

(1)  The sale of a franchise is exempt from this part if:

(a)  The franchise meets the definition of that term as defined by the Federal Trade Commission regulations entitled, "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures," as set forth in 16 C.F.R. ss. 436.1 et seq.; and

(b)  Before offering for sale or selling a franchise to be located in this state or to a resident of this state, the franchisor files a notice with the department stating that the franchisor is in substantial compliance with the requirements of the Federal Trade Commission rule, and pays a fee in an amount set by the department, not exceeding $100.

(2)  The initial exemption granted under this section is for a period of 1 year after the date of filing the notice, and it may be renewed each year for an additional 1-year period upon filing a notice for renewal and paying a renewal fee in an amount set by the department, not exceeding $100.

(3)  The department may require only the name of the applicant, the name of the franchise and the name under which the applicant intends to, or does, transact business, if different, the applicant's principal business address, and the applicant's federal employer identification number.

(4)  The department may adopt rules to implement the provisions of this section.

History.--s. 3, ch. 93-244.

559.803  Disclosure statement.--At least 3 working days prior to the time the purchaser signs a business opportunity contract, or at least 3 working days prior to the receipt of any consideration by the seller, whichever occurs first, the seller must provide the prospective purchaser a written document, the cover sheet of which is entitled in at least 12-point boldfaced capital letters "DISCLOSURES REQUIRED BY FLORIDA LAW." Under this title shall appear the following statement in at least 10-point type: "The State of Florida has not reviewed and does not approve, recommend, endorse, or sponsor any business opportunity. The information contained in this disclosure has not been verified by the state. If you have any questions about this investment, see an attorney before you sign a contract or agreement." Nothing except the title and required statement shall appear on the cover sheet. Immediately following the cover sheet, the seller must provide an index page that briefly lists the contents of the disclosure document as required in this section and any pages on which the prospective purchaser can find each required disclosure. At the top of the index page, the following statement must appear in at least 10-point type: "The State of Florida requires sellers of business opportunities to disclose certain information to prospective purchasers. This index is provided to help you locate this information." If the index contains other information not required by this section, the seller shall place a designation beside each of the disclosures required by this section and provide an explanation of the designation at the end of the statement at the top of the index page. The disclosure document shall contain the following information:

(1)  The name of the seller; whether the seller is doing business as an individual, partnership, corporation, or other business entity; the names under which the seller has done business; and the name of any parent or affiliated company that will engage in business transactions with the purchasers or who takes responsibility for statements made by the seller.

(2)  The names, addresses, and titles of the seller's officers, directors, trustees, general partners, general managers, and principal executives and of any other persons charged with the responsibility for the seller's business activities relating to the sale of business opportunities.

(3)  The length of time the seller has:

(a)  Sold business opportunities; or

(b)  Sold business opportunities involving the products, equipment, supplies, or services currently being offered to the purchaser.

(4)  A full and detailed description of the actual services that the business opportunity seller undertakes to perform for the purchaser.

(5)  A copy of a current (not older than 13 months) financial statement of the seller, updated to reflect material changes in the seller's financial condition.

(6)  If training is promised by the seller, a complete description of the training, the length of the training, and the cost or incidental expenses of that training, which cost or expense the purchaser will be required to incur.

(7)  If the seller promises services to be performed in connection with the placement of the equipment, product, or supplies at a location, the full nature of those services as well as the nature of the agreements to be made with the owners or managers of the location where the purchaser's equipment, product, or supplies will be placed.

(8)  If the business opportunity seller is required to secure a bond, guaranteed letter of credit, or certificate of deposit pursuant to s. 559.807, either of the following statements:

(a)  "As required by Florida law, the seller has secured a bond issued by _____, a surety company authorized to do business in this state. Before signing a contract to purchase this business opportunity, you should confirm the bond's status with the surety company."; or

(b)  "As required by Florida law, the seller has established a guaranteed letter of credit or certificate of deposit  (number of account)  with  (name and address of bank or savings institution) . Before signing a contract to purchase this business opportunity, you should confirm with the bank or savings institution the current status of the guaranteed letter of credit or certificate of deposit."

(9)  The following statement: "If the seller fails to deliver the product, equipment, or supplies necessary to begin substantial operation of the business within 45 days of the delivery date stated in your contract, you may notify the seller in writing and cancel your contract."

(10)  If the seller makes any statement concerning sales or earnings or a range of sales or earnings that may be made through this business opportunity, a statement disclosing:

(a)  The total number of purchasers of business opportunities involving the product, equipment, supplies, or services being offered who have actually achieved sales of or received earnings in the amount or range specified within 3 years prior to the date of the disclosure statement.

(b)  The total number of purchasers of business opportunities involving the product, equipment, supplies, or services being offered within 3 years prior to the date of the disclosure statement.

(11)(a)  The total number of persons who purchased the business opportunity being offered by the seller within the past 3 years.

(b)  The names, addresses, and telephone numbers of the 10 persons who previously purchased the business opportunity from the seller and who are geographically closest to the potential purchaser.

(12)  A statement disclosing who, if any, of the persons listed in subsections (1) and (2):

(a)  Has, at any time during the previous 10 fiscal years, regardless of adjudication, been convicted of, or found guilty of, or pled guilty or nolo contendere to, or has been incarcerated within the last 10 years as a result of having previously been convicted of, or found guilty of, or pled guilty or nolo contendere to, a felony or a crime involving fraud, theft, larceny, violation of any franchise or business opportunity law or unfair or deceptive practices law, embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade.

(b)  Has, at any time during the previous 7 fiscal years, been held liable in a civil action resulting in a final judgment or has settled out of court any civil action or is a party to any civil action involving allegations of fraud (including violation of any franchise or business opportunity law or unfair or deceptive practices law), embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade or any civil action which was brought by a present or former franchisee or franchisees and which involves or involved the franchise relationship. However, only material individual civil actions need be so listed pursuant to this paragraph, including any group of civil actions which, irrespective of the materiality of any single such action, in the aggregate is material.

(c)  Is subject to any currently effective state or federal agency or court injunctive or restrictive order, or has been subject to any administrative action in which an order by a governmental agency was rendered, or is a party to a proceeding currently pending in which such order is sought, relating to or affecting business opportunities activities or the business opportunity seller-purchaser relationship or involving fraud (including violation of any franchise or business opportunity law or unfair or deceptive practices law), embezzlement, fraudulent conversion, misappropriation of property, or restraint of trade.

Such statement shall set forth the identity and location of the court or agency; the date of conviction, judgment, or decision; the penalty imposed; the damages assessed; the terms of settlement or the terms of the order; and the date, nature, and issuer of each such order or ruling. A business opportunity seller may include a summary opinion of counsel as to any pending litigation, but only if counsel's consent to the use of such opinion is included in the disclosure statement.

(13)  A statement disclosing who, if any, of the persons listed in subsections (1) and (2) at any time during the previous 7 fiscal years has:

(a)  Filed in bankruptcy.

(b)  Been adjudged bankrupt.

(c)  Been reorganized due to insolvency.

(d)  Been a principal, director, executive officer, or partner of any other person that has so filed or was so adjudged or reorganized during or within 1 year after the period that such person held such position in relation to such other person. If so, the name and location of the person having so filed or having been so adjudged or reorganized, the date thereof, and any other material facts relating thereto shall be set forth.

(14)  A copy of the business opportunity contract which the seller uses as a matter of course and which is to be presented to the purchaser at closing.

Should any seller of business opportunities prepare a disclosure statement pursuant to 16 C.F.R. ss. 436.1 et seq., a Trade Regulation Rule of the Federal Trade Commission regarding Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, the seller may file that disclosure statement in lieu of the document required pursuant to this section. Should the seller be required pursuant to 16 C.F.R. to prepare any other documents to be presented to the prospective purchaser, those documents shall also be filed with the department.

History.--s. 1, ch. 79-374; s. 83, ch. 92-291; s. 4, ch. 93-244; s. 21, ch. 97-250; s. 10, ch. 99-307; s. 64, ch. 2000-154; s. 12, ch. 2001-214.

559.805  Filings with the department; disclosure of advertisement identification number.--

(1)  Every seller of a business opportunity shall annually file with the department a copy of the disclosure statement required by s. 559.803 prior to placing an advertisement or making any other representation designed to offer to, sell to, or solicit an offer to buy a business opportunity from a prospective purchaser in this state and shall update this filing by reporting any material change in the required information within 30 days after the material change occurs. An advertisement is not placed in the state merely because the publisher circulates, or there is circulated on his or her behalf in the state, any bona fide newspaper or other publication of general, regular, and paid circulation which has had more than two-thirds of its circulation during the past 12 months outside the state or because a radio or television program originating outside the state is received in the state. If the seller is required by s. 559.807 to provide a bond or establish a trust account or guaranteed letter of credit, he or she shall contemporaneously file with the department a copy of the bond, a copy of the formal notification by the depository that the trust account is established, or a copy of the guaranteed letter of credit. Every seller of a business opportunity shall file with the department a list of independent agents who will engage in the offer or sale of business opportunities on behalf of the seller in this state. This list must be kept current and shall include the following information: name, home and business address, telephone number, present employer, social security number, and birth date. No person shall be allowed to offer or sell business opportunities unless the required information has been provided to the department.

(2)  Every seller of a business opportunity shall file with the department a list of the seller's officers, directors, trustees, general partners, general managers, principal executives, and any other persons charged with the responsibility for the seller's business activities relating to the sale of business opportunities. This list must be kept current and shall include the following information: name, home and business address, telephone number, driver's license number, the state in which the driver's license is issued, and birth date.

(3)  Upon the filing of the disclosure statement and the posting of a bond or the establishment of a trust account or a guaranteed letter of credit, if any is required, the department shall issue to the business opportunity seller an advertisement identification number. The business opportunity seller shall include and prominently display the advertisement identification number in all written advertisements, sales materials, promotional documents, and business opportunity contracts.

(4)  The seller shall disclose, to each person with whom he or she places advertising, the advertisement identification number, which shall be recorded by the person receiving the advertising so that the advertising media may verify the authenticity of the registration.

(5)  The department shall collect, from a seller required to comply with this section, an annual fee of $300 for the administration and enforcement of ss. 559.801-559.815. If any material change in the information submitted to the department occurs before the date for annual registration, a seller must submit a fee of $50 for every update filing required by this section. The fees shall be deposited in the General Inspection Trust Fund of the Department of Agriculture and Consumer Services.

History.--s. 1, ch. 79-374; s. 1, ch. 84-127; s. 2, ch. 89-193; s. 84, ch. 92-291; s. 5, ch. 93-244; s. 821, ch. 97-103; s. 22, ch. 97-250; s. 9, ch. 98-299; s. 11, ch. 99-307.

559.807  Bond or other security required.--

(1)  If the business opportunity seller makes any representations set forth in s. 559.801(1)(a)3., the seller must either have obtained a surety bond issued by a surety company authorized to do business in this state or have established a certificate of deposit or a guaranteed letter of credit with a licensed and insured bank or savings institution located in the state. The amount of the bond, certificate of deposit, or guaranteed letter of credit shall be an amount not less than $50,000.

(2)  The bond, certificate of deposit, or guaranteed letter of credit shall be in the favor of the department for the use and benefit of any person who is injured by the fraud, misrepresentation, breach of contract, financial failure, or violation of any provision of this part by the seller. Such liability may be enforced by filing an action at law in a court of competent jurisdiction without precluding enforcement in an administrative action pursuant to chapter 120. However, the bond, certificate of deposit, or guaranteed letter of credit shall be amenable and enforceable only by and through administrative proceedings before the department. A money judgment resulting from an action at law, less any award for costs and attorney's fees, shall be prima facie evidence sufficient to establish the value of the claim in an administrative action. It is the intent of the Legislature that such bond, certificate of deposit, or guaranteed letter of credit shall be applicable and liable only for payment of claims duly adjudicated by order of the department. The bond, certificate of deposit, or guaranteed letter of credit shall be open to successive claims but the aggregate amount may not exceed the amount of the bond, certificate of deposit, or guaranteed letter of credit.

History.--s. 1, ch. 79-374; s. 85, ch. 92-291; s. 65, ch. 2000-154; s. 13, ch. 2001-214.

559.809  Prohibited acts.--Business opportunity sellers shall not:

(1)  Misrepresent, by failure to disclose or otherwise, the known required total investment for such business opportunity.

(2)  Misrepresent or fail to disclose efforts to sell or establish more franchises or distributorships than it is reasonable to expect the market or market area for the particular business opportunity to sustain.

(3)  Misrepresent the quantity or the quality of the products to be sold or distributed through the business opportunity.

(4)  Misrepresent the training and management assistance available to the business opportunity purchaser.

(5)  Misrepresent the amount of profits, net or gross, which the franchisee can expect from the operation of the business opportunity.

(6)  Misrepresent, by failure to disclose or otherwise, the termination, transfer, or renewal provision of a business opportunity agreement.

(7)  Falsely claim or imply that a primary marketer or trademark of products or services sponsors or participates directly or indirectly in the business opportunity.

(8)  Assign a so-called "exclusive territory" encompassing the same area to more than one business opportunity purchaser.

(9)  Provide vending locations for which written authorizations have not been granted by the property owners or lessees.

(10)  Provide machines or displays of a brand or kind substantially different from and inferior to those promised by the business opportunity seller.

(11)  Fail to provide the purchaser a written contract as provided in s. 559.811.

(12)  Misrepresent their ability or the ability of a person or entity providing services as defined in s. 559.801(1)(a) to provide locations or assist the purchaser in finding locations expected to have a positive impact on the success of the business opportunity.

(13)  Misrepresent a material fact or create a false or misleading impression in the sale of a business opportunity.

(14)  Fail to provide or deliver the products, equipment, supplies, or services as specified in the written contract required under s. 559.811.

History.--s. 1, ch. 79-374; s. 6, ch. 93-244; s. 32, ch. 97-98; s. 14, ch. 2001-214.

559.811  Contracts to be in writing; form; provisions.--

(1)  Every business opportunity contract shall be in writing, and a copy shall be given to the purchaser at least 3 working days before signing the contract.

(2)  Every contract for a business opportunity shall include the following:

(a)  The terms and conditions of payment, including the total financial obligation of the purchaser to the seller.

(b)  A full and detailed description of the acts or services that the business opportunity seller undertakes to perform for the purchaser.

(c)  The seller's principal business address and the name and address of its agent in the state authorized to receive service of process.

(d)  The approximate delivery date of products, equipment, or supplies which the business opportunity seller is to deliver to the purchaser.

History.--s. 1, ch. 79-374; s. 822, ch. 97-103; s. 23, ch. 97-250.

559.813  Remedies; enforcement.--

(1)  If a business opportunity seller uses untrue or misleading statements in the sale of a business opportunity, fails to give the proper disclosures in the manner required by this part, or fails to deliver the equipment, supplies, or products necessary to begin substantial operation of the business within 45 days of the delivery date stated in the business opportunity contract, or if the contract does not comply with the requirements of this part, the purchaser may, within 1 year of the date of execution of the contract and upon written notice to the seller, rescind the contract and shall be entitled to receive from the business opportunity seller all sums paid to the business opportunity seller. Upon receipt of such sums, the purchaser shall make available to the seller at the purchaser's address, or at the places at which they are located at the time notice is given, all products, equipment, or supplies received by the purchaser. The purchaser shall not be entitled to unjust enrichment by exercising the remedies provided in this subsection.

(2)(a)  The department may enter an order imposing one or more of the penalties set forth in paragraph (b) if the department finds that a seller or any of the seller's principal officers or agents:

1.  Violated or is operating in violation of any of the provisions of this part or of the rules adopted or orders issued thereunder;

2.  Made a material false statement in any application, document, or record required to be submitted or retained under this part;

3.  Refused or failed, after notice, to produce any document or record or disclose any information required to be produced or disclosed under this part or the rules of the department;

4.  Made a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the state attorney; or

5.  Has intentionally defrauded the public through dishonest or deceptive means.

(b)  Upon a finding as set forth in paragraph (a), the department may enter an order doing one or more of the following:

1.  Issuing a notice of noncompliance pursuant to s. 120.695.

2.  Imposing an administrative fine not to exceed $5,000 per violation for each act which constitutes a violation of this part or a rule or order.

3.  Directing that the seller or its principal officers or agents cease and desist specified activities.

4.  Refusing to issue or revoking or suspending an advertisement identification number.

5.  Placing the registrant on probation for a period of time, subject to such conditions as the department may specify.

(c)  The administrative proceedings which could result in the entry of an order imposing any of the penalties specified in paragraph (b) shall be conducted in accordance with chapter 120.

(3)  Any purchaser injured by a violation of this part, or by the business opportunity seller's breach of a contract subject to this part or any obligation arising therefrom, may bring an action for recovery of damages, including reasonable attorney's fees.

(4)  Upon complaint of any person that a business opportunity seller has violated the provisions of this part, the circuit court shall have jurisdiction to enjoin the defendant from further such violations.

(5)  The Department of Legal Affairs, the Department of Agriculture and Consumer Services, or the state attorney, if a violation of this part occurs in her or his judicial circuit, are the enforcing authorities for purposes of this part, and they may bring civil actions in circuit court for temporary or permanent injunctive relief and may seek other appropriate civil relief, including, but not limited to, a civil penalty not to exceed $5,000 for each violation, restitution and damages for injured purchasers of business opportunities, and court costs and reasonable attorney's fees.

(6)  Any remedy provided in this section may be recovered in an appropriate action, or the enforcing authority may terminate any investigation or action upon agreement by the offender to pay as stipulated civil penalty, to make restitution or pay damages to purchasers, or to satisfy any other relief authorized in this section and requested by the enforcing authority.

(7)  The remedies provided herein shall be in addition to any other remedies provided by law or in equity.

(8)  The department has the authority to adopt rules pursuant to chapter 120 to implement this part.

History.--s. 1, ch. 79-374; s. 86, ch. 92-291; s. 7, ch. 93-244; s. 823, ch. 97-103; s. 24, ch. 97-250.

559.815  Penalties.--Any person who fails to file with the department as required by s. 559.805 or who commits an act described in s. 559.809 is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 1, ch. 79-374; s. 87, ch. 92-291; s. 12, ch. 99-307; s. 15, ch. 2001-214.

PART IX

REPAIR OF MOTOR VEHICLES

559.901  Short title.

559.902  Scope and application.

559.903  Definitions.

559.904  Motor vehicle repair shop registration; application; exemption.

559.905  Written motor vehicle repair estimate and disclosure statement required.

559.907  Charges for motor vehicle repair estimate; requirement of waiver of rights prohibited.

559.909  Notification of charges in excess of repair estimate; unlawful charges; refusal to return vehicle prohibited; inspection of parts.

559.911  Invoice required of motor vehicle repair shop.

559.915  Motor vehicle repair shop records.

559.916  Required disclosure; signs; notice to customers.

559.917  Bond to release possessory lien claimed by motor vehicle repair shop.

559.919  Enforcement of liens restricted.

559.920  Unlawful acts and practices.

559.921  Remedies.

559.9215  Deposit of fees and fines.

559.922  Motor vehicle repair training; financial assistance.

559.92201  Rulemaking power.

559.9221  Motor Vehicle Repair Advisory Council.

559.901  Short title.--Sections 559.901-559.9221 shall be known and may be cited as the "Florida Motor Vehicle Repair Act."

History.--s. 1, ch. 80-139; s. 1, ch. 93-219.

559.902  Scope and application.--This act shall apply to all motor vehicle repair shops in Florida, except:

(1)  Any motor vehicle repair shop of a municipal, county, state, or federal government when carrying out the functions of the government.

(2)  Any person who engages solely in the repair of:

(a)  Motor vehicles that are owned, maintained, and operated exclusively by such person for that person's own use; or

(b)  For-hire vehicles, as defined in s. 320.01(15)(a), which are rented for periods of 30 days or less.

(3)  Any person who repairs only motor vehicles which are operated principally for agricultural or horticultural pursuits on farms, groves, or orchards and which are operated on the roads of this state only incidentally en route to or from such farms, groves, or orchards.

(4)  Motor vehicle auctions licensed under s. 320.27(1)(c)4. or persons performing motor vehicle repair solely for such auctions.

(5)  Those located in public schools as defined in s. 228.041 or charter technical career centers as defined in s. 228.505.

However, such person may voluntarily register under this act.

History.--s. 1, ch. 80-139; s. 2, ch. 93-219; s. 16, ch. 2001-214.

559.903  Definitions.--As used in this act:

(1)  "Customer" means the person who signs the written repair estimate or any other person whom the person who signs the written repair estimate designates on the written repair estimate as a person who may authorize repair work.

(2)  "Department" means the Department of Agriculture and Consumer Services.

(3)  "Employee" means an individual who is employed full time or part time by a motor vehicle repair shop and performs motor vehicle repair.

(4)  "Final estimate" means the last estimate approved by the customer either in writing or orally, as evidenced by the written repair estimate.

(5)  "Motor vehicle" means any automobile, truck, bus, recreational vehicle, motorcycle, motor scooter, or other motor powered vehicle, but does not include trailers, mobile homes, travel trailers, trailer coaches without independent motive power, watercraft or aircraft, or special mobile equipment as defined in s. 316.003(48).

(6)  "Motor vehicle repair shop" means any person who, for compensation, engages or attempts to engage in the repair of motor vehicles owned by other persons and includes, but is not limited to: mobile motor vehicle repair shops, motor vehicle and recreational vehicle dealers; garages; service stations; self-employed individuals; truck stops; paint and body shops; brake, muffler, or transmission shops; and shops doing glass work. Any person who engages solely in the maintenance or repair of the coach portion of a recreational vehicle is not a motor vehicle repair shop.

(7)  "Place of business" means a physical place where the business of motor vehicle repair is conducted, including any vehicle constituting a mobile motor vehicle repair shop from which the business of motor vehicle repair is conducted.

(8)  "Motor vehicle repair" means all maintenance of and modifications and repairs to motor vehicles, and diagnostic work incident thereto, including, but not limited to, the rebuilding or restoring of rebuilt vehicles, body work, painting, warranty work, and other work customarily undertaken by motor vehicle repair shops.

History.--s. 1, ch. 80-139; s. 3, ch. 93-219; s. 25, ch. 97-250; s. 13, ch. 99-307; s. 20, ch. 2001-214.

559.904  Motor vehicle repair shop registration; application; exemption.--

(1)  Each motor vehicle repair shop engaged or attempting to engage in the business of motor vehicle repair work must register with the department prior to doing business in this state. The application for registration must be on a form provided by the department and must include at least the following information:

(a)  The name of the applicant.

(b)  The name under which the applicant is doing business.

(c)  The business address at which the applicant performs repair work or in the case of a mobile motor vehicle repair shop, the home address of the owner, if different from the business address.

(d)  Copies of all licenses, permits, and certifications obtained by the applicant or employees of the applicant.

(e)  Number of employees which the applicant intends to employ or which are currently employed.

(2)  Any motor vehicle repair shop maintaining more than one place of business may file a single application annually, which, along with the other information required by this part, clearly indicates the location of and the individual in charge of each facility or in the case of a mobile motor vehicle repair shop, the home address of the owner, if different from the business address. In such case, fees shall be paid for each place of business.

(3)  Each application for registration must be accompanied by a registration fee set forth as follows:

(a)  If the place of business has 1 to 5 employees: $50.

(b)  If the place of business has 6 to 10 employees: $150.

(c)  If the place of business has 11 or more employees: $300.

(4)  Each initial and renewal application for registration must be accompanied by copies of the applicant's estimate and invoice forms. Such forms must comply with the applicable provisions of this act before a registration may be issued.

(5)  No annual registration fee is required for any motor vehicle repair shop which has a local municipal or county license issued pursuant to an ordinance containing standards which the department determines are at least equal to the requirements of this part, or for any motor vehicle dealer licensed pursuant to chapter 320.

(6)  The department shall issue to each applicant a registration certificate in the form and size as prescribed by the department in accordance with s. 120.60. In the case of an applicant with more than one place of business, the department shall issue a registration certificate for each place of business. The certificate must show at least the name and address of the motor vehicle repair shop and the registration number for that place of business. In the case of a mobile motor vehicle repair shop, the certificate must show the home address of the owner, if different from the business address.

(7)  Any person applying for or renewing a local occupational license on or after October 1, 1993, to engage in business as a motor vehicle repair shop must exhibit an active registration certificate or active affidavit of exemption proof of filing certificate from the department before the local occupational license may be issued or renewed.

(8)  Each registration must be renewed annually on or before the expiration date of the current registration. A late fee of $25 shall be paid, in addition to the registration fee or any other penalty, for any registration renewal application that is received by the department after the expiration date of the current registration. The department may not issue the registration until all fees are paid.

(9)  No annual registration application or fee is required for an individual with no employees and no established place of business. In the case of a mobile motor vehicle repair shop, the established place of business shall be considered the home address of the owner, if different than the business address.

(10)  The department may deny, revoke, or refuse to renew the registration of a motor vehicle repair shop based upon a determination that the motor vehicle repair shop, or any of its directors, officers, owners, or general partners:

(a)  Have failed to meet the requirements for registration as provided in this part;

(b)  Have not satisfied a civil fine, administrative fine, or other penalty arising out of any administrative or enforcement action brought by any governmental agency based upon conduct involving fraud, dishonest dealing, or any violation of this part;

(c)  Have had against them any civil, criminal, or administrative adjudication in any jurisdiction, based upon conduct involving fraud, dishonest dealing, or any violation of this part; or

(d)  Have had a judgment entered against them in any action brought by the department or the state attorney pursuant to ss. 501.201-501.213 or this part.

(11)  The department shall post a prominent "Closed by Order of the Department" sign on any motor vehicle repair shop that has had its registration suspended or revoked. The department shall also post a sign on any motor vehicle repair shop that has been judicially or administratively determined to be operating without a registration. It is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person to deface such sign or remove such sign without written authorization by the department or for any motor vehicle repair shop to open for operation without a registration or to open for operation as a motor vehicle repair shop while its registration is suspended or revoked. The department may impose administrative sanctions provided for in s. 559.921(4) for violations of this subsection.

History.--s. 4, ch. 93-219; s. 6, ch. 94-298; s. 26, ch. 97-250; s. 10, ch. 98-299; s. 14, ch. 99-307; s. 17, ch. 2001-214.

559.905  Written motor vehicle repair estimate and disclosure statement required.--

(1)  When any customer requests a motor vehicle repair shop to perform repair work on a motor vehicle, the cost of which repair work will exceed $100 to the customer, the shop shall prepare a written repair estimate, which is a form setting forth the estimated cost of repair work, including diagnostic work, before effecting any diagnostic work or repair. The written repair estimate shall also include the following items:

(a)  The name, address, and telephone number of the motor vehicle repair shop.

(b)  The name, address, and telephone number of the customer.

(c)  The date and time of the written repair estimate.

(d)  The year, make, model, odometer reading, and license tag number of the motor vehicle.

(e)  The proposed work completion date.

(f)  A general description of the customer's problem or request for repair work or service relating to the motor vehicle.

(g)  A statement as to whether the customer is being charged according to a flat rate or an hourly rate, or both.

(h)  The estimated cost of repair which shall include any charge for shop supplies or for hazardous or other waste removal and, if a charge is included, the estimate shall include the following statement:

"This charge represents costs and profits to the motor vehicle repair facility for miscellaneous shop supplies or waste disposal."

If a charge is mandated by state or federal law, the estimate shall contain a statement identifying the law and the specific amount charged under the law.

(i)  The charge for making a repair price estimate or, if the charge cannot be predetermined, the basis on which the charge will be calculated.

(j)  The customer's intended method of payment.

(k)  The name and telephone number of another person who may authorize repair work, if the customer desires to designate such person.

(l)  A statement indicating what, if anything, is guaranteed in connection with the repair work and the time and mileage period for which the guarantee is effective.

(m)  A statement allowing the customer to indicate whether replaced parts should be saved for inspection or return.

(n)  A statement indicating the daily charge for storing the customer's motor vehicle after the customer has been notified that the repair work has been completed. However, no storage charges shall accrue or be due and payable for a period of 3 working days from the date of such notification.

(2)  If the cost of repair work will exceed $100, the shop shall present to the customer a written notice conspicuously disclosing, in a separate, blocked section, only the following statement, in capital letters of at least 12-point type:

PLEASE READ CAREFULLY, CHECK ONE OF THE STATEMENTS BELOW, AND SIGN:

I UNDERSTAND THAT, UNDER STATE LAW, I AM ENTITLED TO A WRITTEN ESTIMATE IF MY FINAL BILL WILL EXCEED $100.

_____ I REQUEST A WRITTEN ESTIMATE.

_____ I DO NOT REQUEST A WRITTEN ESTIMATE AS LONG AS THE REPAIR COSTS DO NOT EXCEED $_____. THE SHOP MAY NOT EXCEED THIS AMOUNT WITHOUT MY WRITTEN OR ORAL APPROVAL.

_____ I DO NOT REQUEST A WRITTEN ESTIMATE.

SIGNED _______________

DATE _____

(3)  The information required by paragraphs (1)(h) and (i) need not be provided if the customer waives in writing her or his right to receive a written estimate.

(4)  Except as provided in subsection (5), a copy of the written repair estimate required by subsection (1) and the disclosure statement required by subsection (2) shall be given to the customer before repair work is begun. The disclosure statement may be provided on the same form as the written repair estimate.

(5)  If the customer leaves her or his motor vehicle at a motor vehicle repair shop during hours when the shop is not open or if the customer permits the shop or another person to deliver the motor vehicle to the shop, there shall be an implied partial waiver of the written estimate; however, upon completion of diagnostic work necessary to estimate the cost of repair, the shop shall notify the customer as required in s. 559.909(1).

(6)  Nothing in this section shall be construed to require a motor vehicle repair shop to give a written estimated price if the motor vehicle repair shop does not agree to perform the requested repair.

History.--s. 1, ch. 80-139; s. 824, ch. 97-103; s. 27, ch. 97-250; s. 18, ch. 2001-214.

559.907  Charges for motor vehicle repair estimate; requirement of waiver of rights prohibited.--

(1)  No motor vehicle repair shop shall charge for making a repair price estimate unless, prior to making the price estimate, the shop:

(a)  Discloses to the customer the amount of the charge or, if the amount cannot be determined, the basis on which the charge will be calculated; and

(b)  Obtains authorization on the written repair estimate, in accordance with s. 559.905, to prepare an estimate. No motor vehicle repair shop shall impose or threaten to impose any such charge which is clearly excessive in relation to the work involved in making the price estimate.

(2)  It shall be unlawful for any motor vehicle repair shop to require that any person waive her or his rights provided in this part as a precondition to the repair of her or his vehicle by the shop.

History.--s. 1, ch. 80-139; s. 5, ch. 93-219; s. 825, ch. 97-103.

559.909  Notification of charges in excess of repair estimate; unlawful charges; refusal to return vehicle prohibited; inspection of parts.--

(1)  In the event that:

(a)  The written repair estimate contains only an estimate for diagnostic work necessary to estimate the cost of repair and such diagnostic work has been completed;

(b)  A determination is made by a motor vehicle repair shop that the actual charges for the repair work will exceed the written estimate by more than $10 or 10 percent, whichever is greater, but not to exceed $50; or

(c)  An implied partial waiver exists for diagnostic work, as described in s. 559.905(5), and such diagnostic work has been completed,

the customer shall be promptly notified by telephone, telegraph, mail, or other means of the additional repair work and estimated cost thereof. A customer so notified shall, orally or in writing, authorize, modify, or cancel the order for repair.

(2)  If a customer cancels the order for repair after being advised that a repair which she or he has authorized cannot be accomplished within the previously authorized estimate, the shop shall expeditiously reassemble the motor vehicle in a condition reasonably similar to the condition in which it was received unless:

(a)  The customer waives reassembly, or

(b)  The reassembled vehicle would be unsafe.

After cancellation of the repair order, the shop may charge for the cost of teardown, the cost of parts and labor to replace items that were destroyed by teardown, and the cost to reassemble the component or the vehicle, provided the customer was notified of these possible costs in the estimate prior to commencement of the diagnostic work.

(3)  It shall be unlawful for a motor vehicle repair shop to charge more than the written estimate plus $10 or 10 percent, whichever is greater, but not to exceed $50, unless the motor vehicle repair shop has obtained authorization to exceed the written estimate in accordance with subsection (1).

(4)  It shall be unlawful for any motor vehicle repair shop to fail to return any customer's motor vehicle because the customer has refused to pay for unauthorized repairs or because the customer has refused to pay for repair charges in excess of the final estimate in violation of this section.

(5)  Upon request made at the time the repair work is authorized by the customer, the customer is entitled to inspect parts removed from her or his vehicle or, if the shop has no warranty arrangement or exchange parts program with a manufacturer, supplier, or distributor, have them returned to her or him.

History.--s. 1, ch. 80-139; s. 6, ch. 93-219; s. 826, ch. 97-103.

559.911  Invoice required of motor vehicle repair shop.--The motor vehicle repair shop shall provide each customer, upon completion of any repair, with a legible copy of an invoice for such repair. The invoice may be provided on the same form as the written repair estimate and shall include the following information:

(1)  The current date and odometer reading of the motor vehicle.

(2)  A statement indicating what was done to correct the problem or a description of the service provided.

(3)  An itemized description of all labor, parts, and merchandise supplied and the costs thereof, indicating what is supplied to the customer without cost or at a reduced cost because of a shop or manufacturer's warranty.

(4)  A statement identifying any replacement part as being used, rebuilt, or reconditioned, as the case may be.

(5)  A statement indicating what, if anything, is guaranteed in connection with the repair work and the time and mileage period for which the guarantee is effective.

(6)  The registration number from the certificate issued by the department pursuant to this part.

History.--s. 1, ch. 80-139; s. 7, ch. 93-219.

559.915  Motor vehicle repair shop records.--

(1)  Each motor vehicle repair shop shall maintain repair records which shall include written repair estimates and repair invoices. A customer's records shall be available to the customer for inspection and copying for a period of at least 12 months. A reasonable charge may be made for copying if copying facilities are available. The customer may not remove such original records from the premises.

(2)  Motor vehicle repair shops shall allow department personnel to inspect or copy these records during regular business hours.

History.--s. 1, ch. 80-139; s. 8, ch. 93-219.

559.916  Required disclosure; signs; notice to customers.--

(1)  The department shall prescribe, by rule, the specifications for a sign to be posted by all registered motor vehicle repair shops in a manner conspicuous to the public. The sign shall contain the toll-free telephone number of the department for consumer information and assistance and shall inform customers that they may request, at the time the work order is taken, the return or inspection of all parts that have been replaced during the motor vehicle repair.

(2)  All motor vehicle repair shops required to register under the provisions of this part must include the registration number from the certificate issued by the department in any advertisements, announcements, or listings relating to motor vehicle repair which are placed in a newspaper, magazine, or directory.

History.--s. 9, ch. 93-219; s. 33, ch. 97-98.

559.917  Bond to release possessory lien claimed by motor vehicle repair shop.--

(1)(a)  Any customer may obtain the release of her or his motor vehicle from any lien claimed under part II of chapter 713 by a motor vehicle repair shop for repair work performed under a written repair estimate by filing with the clerk of the court in the circuit in which the disputed transaction occurred a cash or surety bond, payable to the person claiming the lien and conditioned for the payment of any judgment which may be entered on the lien. The bond shall be in the amount stated on the invoice required by s. 559.911, plus accrued storage charges, if any, less any amount paid to the motor vehicle repair shop as indicated on the invoice. The customer shall not be required to institute judicial proceedings in order to post the bond in the registry of the court, nor shall the customer be required to use a particular form for posting the bond, unless the clerk shall provide such form to the customer for filing. Upon the posting of such bond, the clerk of the court shall automatically issue a certificate notifying the lienor of the posting of the bond and directing the lienor to release the customer's motor vehicle.

(b)  The lienor shall have 60 days to file suit to recover the bond. The prevailing party in that action may be entitled to damages plus court costs and reasonable attorney's fees. If the lienor fails to file suit within 60 days after the posting of such bond, the bond shall be discharged.

(2)  The failure of a lienor to release or return to the customer the motor vehicle upon which any lien is claimed, upon receiving a copy of a certificate giving notice of the posting of the bond and directing release of the motor vehicle, shall subject the lienor to judicial proceedings which may be brought by the customer to compel compliance with the certificate. Whenever a customer brings an action to compel compliance with the certificate, the customer need only establish that:

(a)  Bond in the amount of the invoice, plus accrued storage charges, if any, less any amount paid to the motor vehicle repair shop as indicated on the invoice, was posted;

(b)  A certificate was issued pursuant to this section;

(c)  The motor vehicle repair shop, or any employee or agent thereof who is authorized to release the motor vehicle, received a copy of a certificate issued pursuant to this section; and

(d)  The motor vehicle repair shop or employee authorized to release the motor vehicle failed to release the motor vehicle.

The customer, upon a judgment in her or his favor in an action brought under this subsection, may be entitled to damages plus court costs and reasonable attorney's fees sustained by her or him by reason of such wrongful detention or retention. Upon a judgment in favor of the motor vehicle repair shop, the shop may be entitled to reasonable attorney's fees.

(3)  Any motor vehicle repair shop which, or any employee or agent thereof who is authorized to release the motor vehicle who, upon receiving a copy of a certificate giving notice of the posting of the bond in the required amount and directing release of the motor vehicle, fails to release or return the property to the customer pursuant to this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4)  Any customer who stops payment on a credit card charge or a check drawn in favor of a motor vehicle repair shop on account of an invoice or who fails to post a cash or surety bond pursuant to this section shall be prohibited from any recourse under this section with respect to the motor vehicle repair shop.

History.--s. 1, ch. 80-139; s. 147, ch. 91-224; s. 827, ch. 97-103.

559.919  Enforcement of liens restricted.--No motor vehicle repair shop may refuse to return a customer's motor vehicle by virtue of any miscellaneous lien, nor may it enforce such a lien in any other fashion if it has failed to substantially comply with the provisions of this part.

History.--s. 1, ch. 80-139; s. 10, ch. 93-219.

559.920  Unlawful acts and practices.--It shall be a violation of this act for any motor vehicle repair shop or employee thereof to:

(1)  Engage or attempt to engage in repair work for compensation of any type without first being registered with or having submitted an affidavit of exemption to the department;

(2)  Make or charge for repairs which have not been expressly or impliedly authorized by the customer;

(3)  Misrepresent that repairs have been made to a motor vehicle;

(4)  Misrepresent that certain parts and repairs are necessary to repair a vehicle;

(5)  Misrepresent that the vehicle being inspected or diagnosed is in a dangerous condition or that the customer's continued use of the vehicle may be harmful or cause great damage to the vehicle;

(6)  Fraudulently alter any customer contract, estimate, invoice, or other document;

(7)  Fraudulently misuse any customer's credit card;

(8)  Make or authorize in any manner or by any means whatever any written or oral statement which is untrue, deceptive or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue, deceptive or misleading;

(9)  Make false promises of a character likely to influence, persuade, or induce a customer to authorize the repair, service, or maintenance of a motor vehicle;

(10)  Substitute used, rebuilt, salvaged, or straightened parts for new replacement parts without notice to the motor vehicle owner and to her or his insurer if the cost of repair is to be paid pursuant to an insurance policy and the identity of the insurer or its claims adjuster is disclosed to the motor vehicle repair shop;

(11)  Cause or allow a customer to sign any work order that does not state the repairs requested by the customer or the automobile's odometer reading at the time of repair;

(12)  Fail or refuse to give to a customer a copy of any document requiring the customer's signature upon completion or cancellation of the repair work;

(13)  Willfully depart from or disregard accepted practices and professional standards;

(14)  Have repair work subcontracted without the knowledge or consent of the customer unless the motor vehicle repair shop or employee thereof demonstrates that the customer could not reasonably have been notified;

(15)  Conduct the business of motor vehicle repair in a location other than that stated on the registration certificate;

(16)  Rebuild or restore a rebuilt vehicle without the knowledge of the owner in such a manner that it does not conform to the original vehicle manufacturer's established repair procedures or specifications and allowable tolerances for the particular model and year; or

(17)  Perform any other act that is a violation of this part or that constitutes fraud or misrepresentation.

History.--s. 11, ch. 93-219; s. 828, ch. 97-103.

559.921  Remedies.--

(1)  Any customer injured by a violation of this part may bring an action in the appropriate court for relief. The prevailing party in that action may be entitled to damages plus court costs and reasonable attorney's fees. The customer may also bring an action for injunctive relief in the circuit court.

(2)  The department shall process consumer complaints according to ss. 570.07 and 570.544.

(3)  All motor vehicle repair shops shall allow department personnel to enter their place of business to ascertain whether the registration certificate is current. If department personnel are refused entry or access to the premises, the department may seek injunctive relief in circuit court in order to obtain compliance with this subsection.

(4)(a)  The department may enter an order imposing one or more of the penalties set forth in paragraph (b) if the department finds that a motor vehicle repair shop:

1.  Violated or is operating in violation of any of the provisions of this part or of the rules adopted or orders issued thereunder;

2.  Made a material false statement in any application, document, or record required to be submitted or retained under this part;

3.  Refused or failed, or any of its principal officers have refused or failed, after notice, to produce any document or record or disclose any information required to be produced or disclosed under this part or the rules of the department;

4.  Made a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the state attorney; or

5.  Has intentionally defrauded the public through dishonest or deceptive means.

(b)  Upon a finding as set forth in paragraph (a), the department may enter an order doing one or more of the following:

1.  Issuing a notice of noncompliance pursuant to s. 120.695.

2.  Imposing an administrative fine not to exceed $1,000 per violation for each act which constitutes a violation of this part or a rule or order.

3.  Directing that the motor vehicle repair shop cease and desist specified activities.

4.  Refusing to register or revoking or suspending a registration.

5.  Placing the registrant on probation for a period of time, subject to such conditions as the department may specify.

(c)  The administrative proceedings which could result in the entry of an order imposing any of the penalties specified in paragraph (b) shall be conducted in accordance with chapter 120.

(5)(a)  The department or the state attorney, if a violation of this part occurs in his or her judicial circuit, shall be the enforcing authority for purposes of this part and may bring a civil action in circuit court for temporary or permanent injunctive relief and may seek other appropriate civil relief, including a civil penalty not to exceed $1,000 for each violation, restitution and damages for injured customers, court costs, and reasonable attorney's fees.

(b)  The enforcing authority may terminate any investigation or action upon agreement by the offender to pay a stipulated civil penalty, to make restitution or pay damages to customers, or to satisfy any other relief authorized herein and requested by the department.

(6)  The Department of Highway Safety and Motor Vehicles shall have exclusive authority to impose the remedies in subsection (4) for motor vehicle and recreational vehicle dealers licensed under chapter 320. The Department of Highway Safety and Motor Vehicles and the state attorney shall have exclusive authority to impose the remedies in subsection (5) for motor vehicle and recreational vehicle dealers licensed under chapter 320. Upon receipt of a final order from the Department of Highway Safety and Motor Vehicles for suspension or revocation of a motor vehicle repair shop registration, the department shall suspend or revoke the registration according to the order. Rules adopted by the Department of Highway Safety and Motor Vehicles to enforce the provisions of this part shall be consistent with the rules of the Department of Agriculture and Consumer Services.

(7)  If, in any proceeding brought pursuant to this part, it is determined that the repairs and costs thereof were in fact authorized, orally or in writing, the repairs were completed in a proper manner, and the consumer benefited therefrom, then the enforcing authority may consider such factors in assessing penalties or damages and may award the reasonable value of such repairs.

(8)  The remedies provided for in this section shall be in addition to any other remedy provided by law.

History.--s. 1, ch. 80-139; s. 12, ch. 93-219; s. 829, ch. 97-103; s. 28, ch. 97-250; s. 45, ch. 2001-279.

Note.--Former s. 559.923.

559.9215  Deposit of fees and fines.--Fees and fines collected under this part by the Department of Agriculture and Consumer Services shall be deposited in the General Inspection Trust Fund. Fines collected under this part by the Department of Highway Safety and Motor Vehicles shall be deposited in the Motor Vehicle License Plate Replacement Trust Fund.

History.--s. 13, ch. 93-219.

559.922  Motor vehicle repair training; financial assistance.--The department is authorized to establish by rule a program to provide financial assistance for individuals to undertake technical training or courses of study in motor vehicle repair. The department may use up to 10 percent of the annual proceeds from the registration of motor vehicle repair shops for this purpose. The program must comply with the following general criteria:

(1)  Motor vehicle repair shops shall submit a financial assistance application for technical training on behalf of their employees.

(2)  Motor vehicle repair shops that receive financial assistance for any coursework, seminar, inservice training, or other such program shall submit to the department proof of attendance or completion of the program. If such proof is not provided, the motor vehicle repair shop shall refund to the department the sum of the financial assistance received for the program not attended or completed.

History.--s. 14, ch. 93-219.

559.92201  Rulemaking power.--The department has the authority to adopt rules pursuant to chapter 120 to implement this part.

History.--s. 29, ch. 97-250.

559.9221  Motor Vehicle Repair Advisory Council.--The Motor Vehicle Repair Advisory Council is created to advise and assist the department in carrying out this part.

(1)  The membership of the council may not exceed 11 members appointed by the Commissioner of Agriculture.

(a)  Eight industry members of the council must be chosen from individuals already engaged in the motor vehicle repair business who are eligible to be registered under this part. The professional members of this council must be licensed under this part. The commissioner shall select one industry member from each of the following categories:

1.  Independent automotive mechanics shops.

2.  Franchise or company-owned automotive mechanics shops.

3.  Independent automotive collision shops.

4.  Franchise or company-owned automotive collision shops.

5.  Independent tire dealer.

6.  Franchise or company-owned tire dealer.

7.  Independent motor vehicle dealer licensed under s. 320.27.

8.  Franchise motor vehicle dealer licensed under s. 320.27.

(b)  One member of the council may be chosen from persons already engaged in motor vehicle repair service.

(c)  Two consumer members of the council must be residents of this state and must not be connected with the motor vehicle repair business.

(d)  As terms of the members expire, the commissioner shall appoint successors for terms of 4 years. Members shall serve from the time of their appointment until their successors are appointed.

(2)(a)  The council shall annually elect from its members a chair and a vice chair.

(b)  The council shall meet at the call of its chair, at the request of a majority of its membership, or at the request of the department.

(c)  In conducting its meetings, the council shall use accepted rules of procedure. The department shall keep a complete record of each meeting, which must show the names of members present and the actions taken. These records and other documents about matters within the jurisdiction of the council must be kept on file with the department.

(3)  The members of the council shall receive no compensation for their services, except that they may receive per diem and travel expenses as provided in s. 112.061.

(4)  The department shall be responsible for providing administrative and staff support services relating to the functions of the council.

(5)  The council shall review the rules relating to the Florida Motor Vehicle Repair Act which are adopted by the department and shall advise the department on matters relating to educational grants, advancements in industry standards and practices, and other issues that require technical expertise and consultation or that promote better consumer protection in the motor vehicle repair industry.

History.--s. 15, ch. 93-219; s. 830, ch. 97-103; s. 30, ch. 97-250; s. 19, ch. 2001-214.

PART X

RENTAL-PURCHASE AGREEMENTS

559.9231  Short title.

559.9232  Definitions; exclusion of rental-purchase agreements from certain regulations.

559.9233  Rental-purchase agreements.

559.9234  Prohibited rental-purchase agreement provisions.

559.9235  Reinstatement.

559.9236  Receipts.

559.9237  Rental renewal charges; attorney's fees; court costs.

559.9238  Willful violations.

559.9239  Damages.

559.9240  Waiver.

559.9241  Statute of limitations.

559.9231  Short title.--This act may be cited as the "Rental-Purchase Agreement Act."

History.--s. 1, ch. 88-69.

559.9232  Definitions; exclusion of rental-purchase agreements from certain regulations.--

(1)  As used in this act, the term:

(a)  "Cash price" means the price at which the lessor, in the ordinary course of business, would offer to sell for cash the property or service that is the subject of the rental-purchase agreement. The term "cash price" may include the price of accessories, services related to the agreement, and taxes.

(b)  "Lessee" means a natural person who rents personal property pursuant to a rental-purchase agreement.

(c)  "Lessor" means a person or corporation who, in the ordinary course of business, regularly offers to rent personal property, or arranges for personal property to be rented, pursuant to a rental-purchase agreement.

(d)  "Personal property" means any property that is not real property under the laws of the state where it is located and which is offered or made available for lease under a rental-purchase agreement.

(e)  "Rental-purchase agreement" means an agreement for the use of personal property by a natural person primarily for personal, family, or household purposes, for an initial period of 4 months or less, that is automatically renewed with each rental payment after the initial period and that permits the lessee to acquire ownership of the property.

(f)  "Services" means work, labor, or other personal services furnished pursuant to a rental-purchase agreement, including, but not limited to, the delivery, installation, servicing, repair, or improvement of rental property and excluding the provision of such property and associated services to the lessee.

(2)  A rental-purchase agreement that complies with this act shall not be construed to be, nor be governed by, any of the following:

(a)  A lease or agreement which constitutes a credit sale as defined in 12 C.F.R. s. 226.2(a)(16) and s. 1602(g) of the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq.;

(b)  A lease which constitutes a "consumer lease" as defined in 12 C.F.R. s. 213.2(a)(6);

(c)  Any lease for agricultural, business, or commercial purposes;

(d)  Any lease made to an organization;

(e)  A lease or agreement which constitutes a "retail installment contract" or "retail installment transaction" as those terms are defined in s. 520.31(12) and (13); or

(f)  A security interest as defined in s. 671.201(37).

History.--s. 2, ch. 88-69; s. 51, ch. 95-144; s. 20, ch. 99-164.

559.9233  Rental-purchase agreements.--

(1)  A rental-purchase agreement must be in writing, must be signed by both the lessor and the lessee, and must be completed as to all essential provisions prior to being signed by the lessee.

(2)  The printed portion of the rental-purchase agreement must be in at least 6-point type and must contain the following notice in substantially this form:

Notice to the Lessee

(a)  Do not sign this rental-purchase agreement before you read it or if it contains any blank spaces.

(b)  You are entitled to an exact copy of the rental-purchase agreement you sign. Keep it to protect your legal rights.

(3)  The lessor must deliver to the lessee, or mail to the lessee at her or his address shown on the rental-purchase agreement, a copy of the rental-purchase agreement signed by the lessor. Before the transaction is completed, a copy of the rental-purchase agreement, or a separate statement on which the disclosures required by this section are made and on which the lessee and lessor are identified, must be delivered to the lessee. Any acknowledgment by the lessee of delivery of a copy of the rental-purchase agreement, if contained in the rental-purchase agreement, must appear directly above or adjacent to the lessee's signature.

(4)  A rental-purchase agreement must contain the following:

(a)  The name of the lessor and the name of the lessee;

(b)  The place of business of the lessor and the residence or place of business of the lessee, as specified by the lessee;

(c)  A brief description of the rental property, sufficient to identify the property to the lessee and lessor, including a statement indicating whether the property is new or previously rented. If a rental-purchase agreement is for multiple items, a description of each item may be provided in a separate statement incorporated by reference in the primary disclosure statement;

(d)  The total amount of any initial payment, including any advance payment, delivery charge, or any trade-in allowance to be paid by the lessee at or before completion of the rental-purchase agreement;

(e)  The amount and timing of rental payments;

(f)  The amount of all other charges, individually itemized, payable by the lessee to the lessor which are not included in the rental payments;

(g)  A statement of the total cost of the rental-purchase agreement expressed as the total of the initial payment, all rental payments, and all other charges necessary to acquire ownership of the rental property;

(h)  A statement of the party liable for loss, damage in excess of normal wear and tear, or destruction to the rental property;

(i)  The lessee's right to reinstate the rental-purchase agreement and the amount, or method of determining the amount, of any penalty or other charge for reinstatement;

(j)  The party responsible for maintaining or servicing the rental property and a brief description of the responsibility;

(k)  A statement of the conditions under which the lessee or lessor may terminate the rental-purchase agreement;

(l)  A statement that the lessee has the option to purchase the rental property during the term of the rental-purchase agreement and the price, formula, or method by which the purchase price is to be determined;

(m)  A statement that if, at the time the lessee acquires ownership of the property, any part of a manufacturer's warranty covering the rental property exists, such warranty will be transferred to the lessee if allowed by the terms of the warranty; and

(n)  The cash price of the rental property that is the subject of the rental-purchase agreement.

(5)  With respect to matters specifically governed by the federal Consumer Credit Protection Act, compliance with the provisions of such act satisfies the requirements of this section.

(6)  All information required by this section must be stated in a clear and coherent manner, using words and phrases of common meaning. The information must be appropriately divided and captioned by sections. All numerical amounts and percentages must be stated in figures. All of the information required by this section must be provided directly on the rental-purchase agreement or on a separate form.

(7)  At the lessor's option, information in addition to that required by this section may be disclosed, if the additional information is not stated, utilized, or placed in a manner which will contradict, obscure, or detract attention from the required information.

History.--s. 3, ch. 88-69; s. 831, ch. 97-103.

559.9234  Prohibited rental-purchase agreement provisions.--A rental-purchase agreement may not:

(1)  Require garnishment of the lessee's wages or grant the lessor a power of attorney for the lessee or require the lessee to confess judgment.

(2)  Grant to the lessor, a person acting on the lessor's behalf, or an assignee authority to unlawfully enter upon the lessee's premises or to permit any breach of the peace in the repossession of the rental property.

(3)  Require the lessee to waive any defense, counterclaim, or right of action against the lessor, person acting on the lessor's behalf, or an assignee under the rental-purchase agreement in repossessing the rental property.

(4)  Require the lessee to purchase insurance from the lessor.

(5)  Allow the lessor to impose a penalty for early termination of a rental-purchase agreement or for the return of the rental property at any time, except those charges authorized by s. 559.9235(2) and any damage charges which may be imposed for destruction or damage to rental property.

(6)  Allow the lessor to impose a fee for any in-home collection of a payment unless the lessee has expressly agreed in writing to the fee and the amount of the fee is disclosed in the rental-purchase agreement.

History.--s. 4, ch. 88-69.

559.9235  Reinstatement.--

(1)  A lessee who fails to make timely rental payments has the right to reinstate the original rental-purchase agreement without losing any rights or options previously acquired under the rental-purchase agreement, if:

(a)  The lessee promptly surrenders the rental property to the lessor or its agent upon request; and

(b)  The lessee tenders the reinstatement fees within 60 days after the expiration of the last rental period for which the lessee made a timely payment.

(2)  Before reinstating the rental-purchase agreement, a lessor may require a lessee to pay unpaid rental payments, including any rental renewal charges incurred, a reinstatement fee of not more than $5, and a delivery charge if redelivery of the rental property is necessary.

(3)  If reinstatement occurs pursuant to this section, the lessor shall provide the lessee with the same personal property rented by the lessee prior to the reinstatement or with substitute personal property of comparable quality and condition. If substitute personal property is provided, the lessor must provide new disclosures to the lessee, including all of the information required by s. 559.9233.

History.--s. 5, ch. 88-69.

559.9236  Receipts.--

(1)  If a lessee so requests, the lessor must give or forward to the lessee a receipt for any payment made in cash. The lessor must also furnish, upon the lessee's request, an accounting of all charges, payments, and their dates in connection with a rental-purchase agreement. A charge of $5 may be imposed upon the lessee by the lessor for the second and each subsequent accounting request by the lessee in a 12-month period.

(2)  After payment of all sums necessary for the lessee to acquire ownership of the rental property, a lessor must deliver or mail to the lessee, at her or his last known address, one or more good and sufficient instruments acknowledging that the lessee has acquired ownership of the rental property.

History.--s. 6, ch. 88-69; s. 832, ch. 97-103.

559.9237  Rental renewal charges; attorney's fees; court costs.--A rental-purchase agreement may provide for payment by the lessee of a charge for failure to make a timely rental renewal payment, which charge may not exceed $5 on any payment made after either payment is due or after the return of the rental property is required. A charge pursuant to a rental-purchase agreement for a lessee's failure to make a timely rental renewal payment may be collected only once on any accrued payment, no matter how long it remains unpaid. Such a charge may be collected at the time it accrues or any time thereafter. Such a charge may not be assessed against a payment that is timely made, even though an earlier charge has not been paid in full. A rental-purchase agreement may provide for the payment of reasonable attorney's fees incurred by an attorney, not a salaried employee of the lessor, in the course of collection, and for the payment of court costs.

History.--s. 7, ch. 88-69.

559.9238  Willful violations.--Any person who willfully and intentionally violates any provision of this act is guilty of a misdemeanor of the second degree, punishable by fine only as provided in s. 775.083.

History.--s. 8, ch. 88-69.

559.9239  Damages.--In case of a violation of a provision of this act with respect to a rental-purchase agreement, the lessee under the rental-purchase agreement may recover from the lessor or assignee committing the violation, or may setoff or counterclaim in an action brought by that lessor or assignee, an amount equal to the greater of actual damages or 25 percent of the total cost to acquire ownership under the rental-purchase agreement, plus attorney's fees and court costs. Notwithstanding the provisions of this section, a lessor or assignee is not subject to any penalty for failure to comply with any provision of this act until the lessee has notified such lessor or assignee in writing of such a failure and unless within 30 days after such notice such failure is not corrected by such lessor or assignee.

History.--s. 9, ch. 88-69.

559.9240  Waiver.--Any waiver by the lessee of any provisions of this act or of any remedies granted to the lessee by this act is unenforceable and void.

History.--s. 10, ch. 88-69.

559.9241  Statute of limitations.--An action may not be brought under this act more than 5 years after the occurrence of the alleged violation.

History.--s. 11, ch. 88-69.

PART XI

SELLERS OF TRAVEL

559.926  Short title.

559.927  Definitions.

559.928  Registration.

559.929  Security requirements.

559.9295  Submission of vacation certificate documents.

559.931  Vacation certificate recordkeeping.

559.932  Vacation certificate disclosure.

559.933  Vacation certificate cancellation and refund provisions.

559.9335  Violations.

559.934  Deceptive and unfair trade practice.

559.935  Exemptions.

559.9355  Administrative remedies; penalties.

559.936  Civil penalties; remedies.

559.937  Criminal penalties.

559.938  General Inspection Trust Fund; payments.

559.939  State preemption.

559.926  Short title.--This part may be cited as the "Florida Sellers of Travel Act."

History.--s. 4, ch. 95-314.

559.927  Definitions.--For the purposes of this part, the term:

(1)  "Accommodations" means any hotel or motel room, condominium or cooperative unit, cabin, lodge, or apartment; any other commercial structure designed for occupancy by one or more individuals; or any lodging establishment as provided by law.

(2)  "Contract" means any contract, certificate, reservation request or confirmation form, membership application or use agreement, license, or reservation confirmation whereby the purchaser obtains the right to benefits and privileges of the prearranged travel or tourist service, or to a vacation certificate, or any such other document, writing, or form committing the seller of travel to provide travel services or privileges pertaining to reservations, tour or travel arrangements, and accommodations.

(3)  "Department" means the Department of Agriculture and Consumer Services.

(4)  "Independent agent" means a person who represents a seller of travel by soliciting persons on its behalf, who has a written contract with a seller of travel that is operating in compliance with this part and any rules promulgated thereunder, who does not receive a fee, commission, or other valuable consideration directly from the purchaser for the sale of travel, who does not at any time have any unissued ticket stock or travel documents in his or her possession, and who does not have the ability to issue tickets, vacation certificates, or any other travel documents.

(5)  "Offer for sale" means direct or indirect representation, claim, or statement or making an offer or undertaking, by any means or method, to arrange for, provide, or acquire travel reservations or accommodations, tickets for domestic or foreign travel by air, rail, ship, or other medium of transportation, or hotel and motel accommodations or sightseeing tours by a seller of travel who maintains a business location in Florida or who offers to sell to persons in Florida.

(6)  "Prearranged travel, tourist-related services, or tour-guide services" includes, but is not limited to, car rentals, lodging, transfers, and sightseeing tours and all other such services which are reasonably related to air, sea, rail, motor coach, or other medium of transportation, or accommodations for which a purchaser receives a premium or contracts or pays prior to or after departure. These terms also include services for which a purchaser, whose legal residence is outside the United States, contracts or pays prior to departure.

(7)  "Purchaser" means the purchaser of, or person otherwise entitled to receive, prearranged travel, tourist-related services, or tour-guide services, for a fee or commission, or who has acquired a vacation certificate for personal use.

(8)  "Registrant" means any person registered as a seller of travel.

(9)  "Satisfactory consumer complaint history" means no unresolved complaints regarding prearranged travel, tourist-related services, or tour-guide services are on file with the department. A complaint is unresolved when a seller of travel does not respond to the department's efforts to mediate the complaint or a complaint where the department has determined that a violation of this part has occurred and the complaint has not been satisfied by the seller of travel.

(10)  "Seller of travel" means any resident or nonresident person, firm, corporation, or business entity who offers for sale, directly or indirectly, at wholesale or retail, prearranged travel, tourist-related services, or tour-guide services for individuals or groups, including, but not limited to, vacation or tour packages, or vacation certificates in exchange for a fee, commission, or other valuable consideration. The term includes any business entity offering membership in a travel club or travel services for an advance fee or payment, even if no travel contracts or certificates or vacation or tour packages are sold by the business entity.

(11)  "Vacation certificate" means any arrangement, plan, program, or vacation package that promotes, discusses, or discloses a destination or itinerary or type of travel, whereby a purchaser for consideration paid in advance is entitled to the use of travel, accommodations, or facilities for any number of days, whether certain or uncertain, during the period in which the certificate can be exercised, and no specific date or dates for its use are designated. A vacation certificate does not include prearranged travel, tourist-related services, or tour-guide services when a seller of travel remits full payment for the cost of such services to the provider or supplier within 10 business days of the purchaser's initial payment to the seller of travel.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 6, ch. 90-231; s. 14, ch. 91-236; s. 4, ch. 91-429; s. 1, ch. 92-160; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 211, ch. 94-218; s. 7, ch. 94-298; s. 5, ch. 95-314; s. 31, ch. 97-250.

559.928  Registration.--

(1)  Each seller of travel shall annually register with the department, providing: its legal business or trade name, mailing address, and business locations; the full names, addresses, telephone numbers, and social security numbers of its owners or corporate officers and directors and the Florida agent of the corporation; a statement whether it is a domestic or foreign corporation, its state and date of incorporation, its charter number, and, if a foreign corporation, the date it registered with the State of Florida, and occupational license where applicable; the date on which a seller of travel registered its fictitious name if the seller of travel is operating under a fictitious or trade name; the name of all other corporations, business entities, and trade names through which each owner of the seller of travel operated, was known, or did business as a seller of travel within the preceding 5 years; a list of all authorized independent agents, including the agent's trade name, full name, mailing address, business address, telephone numbers, and social security number; the business location and address of each branch office and full name and address of the manager or supervisor; and proof of purchase of adequate bond or establishment of a letter of credit or certificate of deposit as required in this part. A certificate evidencing proof of registration shall be issued by the department and must be prominently displayed in the seller of travel's primary place of business.

(2)  Registration fees shall be $300 per year per registrant. All amounts collected shall be deposited by the Treasurer to the credit of the General Inspection Trust Fund of the Department of Agriculture and Consumer Services pursuant to s. 570.20, for the sole purpose of administration of this part.

(3)  Each independent agent shall annually file an affidavit with the department prior to engaging in business in this state. This affidavit must include the independent agent's full name, legal business or trade name, mailing address, business address, telephone number, social security number, and the name or names and addresses of each seller of travel represented by the independent agent. A letter evidencing proof of filing must be issued by the department and must be prominently displayed in the independent agent's primary place of business. As used in this subsection, the term "independent agent" means a person who represents a seller of travel by soliciting persons on its behalf; who has a written contract with a seller of travel which is operating in compliance with this part and any rules adopted thereunder; who does not receive a fee, commission, or other valuable consideration directly from the purchaser for the seller of travel; who does not at any time have any unissued ticket stock or travel documents in his or her possession; and who does not have the ability to issue tickets, vacation certificates, or any other travel document. The term "independent agent" does not include an affiliate of the seller of travel, as that term is used in s. 559.935(3), or the employees of the seller of travel or of such affiliates.

(4)  Any person applying for or renewing a local occupational license to engage in business as a seller of travel must exhibit a current registration certificate from the department before the local occupational license may be issued or reissued.

(5)  Each contract of a seller of travel must include the phrase " (NAME OF FIRM)  is registered with the State of Florida as a Seller of Travel. Registration No._____."

(6)  Each advertisement of a seller of travel must include the phrase "Fla. Seller of Travel Reg. No._____."

(7)  No registration shall be valid for any seller of travel transacting business at any place other than that designated in its application, unless the department is first notified in writing in advance of any change of location. Nor shall the registration be valid for an affiliate of the seller of travel who engages in the prearranged travel and tourist business. A registration issued under this part shall not be assignable, and the seller of travel shall not be permitted to conduct business under more than one name except as registered. A seller of travel desiring to change its registered name or location or designated agent for service of process at a time other than upon renewal of registration shall notify the department of such change.

(8)  Applications under this section shall be subject to the provisions of s. 120.60.

(9)  The department may deny or refuse to renew the registration of any seller of travel based upon a determination that the seller of travel, or any of its directors, officers, owners, or general partners:

(a)  Has failed to meet the requirements for registration as provided in this part;

(b)  Has been convicted of a crime involving fraud, dishonest dealing, or any other act of moral turpitude;

(c)  Has not satisfied a civil fine or penalty arising out of any administrative or enforcement action brought by any governmental agency or private person based upon conduct involving fraud, dishonest dealing, or any violation of this part;

(d)  Has pending against her or him any criminal, administrative, or enforcement proceedings in any jurisdiction, based upon conduct involving fraud, dishonest dealing, or any other act of moral turpitude; or

(e)  Has had a judgment entered against her or him in any action brought by the department or the Department of Legal Affairs pursuant to ss. 501.201-501.213 or this part.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 5, ch. 95-314; s. 833, ch. 97-103; s. 32, ch. 97-250.

Note.--Former s. 599.927(2), (3).

559.929  Security requirements.--

(1)  An application must be accompanied by a performance bond in an amount set by the department not to exceed $25,000, or in the amount of $50,000 if the seller of travel is offering vacation certificates. The surety on such bond shall be a surety company authorized to do business in the state.

(2)  In lieu of the performance bond required in this part, a registrant or applicant for registration may establish a certificate of deposit or an irrevocable letter of credit in a Florida banking institution in the amount of the performance bond. The department shall be the beneficiary to this certificate of deposit, and the original shall be filed with the department. Any such letter of credit shall provide that the issuer will give the department not less than 120 days written notice prior to terminating or refusing to renew the letter of credit.

(3)  The bond, letter of credit, or certificate of deposit shall be in favor of the department for the use and benefit of any traveler who is injured by the fraud, misrepresentation, breach of contract, financial failure, or violation of any provision of this part by the seller of travel. Such liability may be enforced either by proceeding in an administrative action as specified in subsection (4) or by filing a judicial suit at law in a court of competent jurisdiction. However, in such court suit the bond, letter of credit, or certificate of deposit posted with the department shall not be amenable or subject to any judgment or other legal process issuing out of or from such court in connection with such lawsuit, but such bond, letter of credit, or certificate of deposit shall be amenable to and enforceable only by and through administrative proceedings before the department. It is the intent of the Legislature that such bond, letter of credit, or certificate of deposit shall be applicable and liable only for the payment of claims duly adjudicated by order of the department. The bond, letter of credit, or certificate of deposit shall be open to successive claims, but the aggregate amount may not exceed the amount of the bond, letter of credit, or certificate of deposit.

(4)  Any traveler may file a claim against the bond, letter of credit, or certificate of deposit which shall be made in writing to the department within 120 days after an alleged injury has occurred or is discovered to have occurred. The proceedings shall be held in accordance with ss. 120.569 and 120.57.

(5)  In any situation in which the seller of travel is currently the subject of an administrative, civil, or criminal action by either the department, the Department of Legal Affairs, or the state attorney concerning compliance with this part, the right to proceed against the bond, letter of credit, or certificate of deposit, as provided in subsection (4), shall be suspended until after any enforcement action becomes final.

(6)  The department may waive the bond, letter of credit, or certificate of deposit requirement on an annual basis if the seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida in compliance with this part, can demonstrate financial responsibility in the submission of audited financial statements or the prior year's federal income tax return, has not had any civil, criminal, or administrative action instituted against the seller of travel in the vacation and travel business by any governmental agency or any action involving fraud, theft, misappropriation of property, or moral turpitude, and has a satisfactory consumer complaint history with the department. Such waiver may be revoked if the seller of travel violates any provision of this part.

History.--s. 5, ch. 95-314; s. 251, ch. 96-410; s. 33, ch. 97-250.

559.9295  Submission of vacation certificate documents.--Sellers of travel who offer vacation certificates must submit and disclose to the department with the application for registration, and any time such document is changed, but prior to the sale of any vacation certificate, the following materials:

(1)  A copy of the contract by which the rights, obligations, benefits, and privileges resulting from purchase of a vacation certificate are established.

(2)  A copy of each promotional brochure, pamphlet, form letter, registration form, or any other written material disseminated in connection with the advertising, promotion, or sale of any vacation certificate.

(3)  A verbatim script of each radio, television, or movie, or other similar advertisement, broadcast to the public in connection with the advertising, promotion, or sale of any vacation certificates.

(4)  A transcript of any standard verbal sales presentation utilized in connection with the advertising, promotion, or sale of vacation certificates.

(5)  A copy of all rules, regulations, conditions, or limitations upon the use of, or obtaining reservations for the use of, accommodations or facilities available pursuant to the vacation certificate.

(6)  A copy of a written authorization for the use of any registered trademark, trade name, or trade logo utilized in promotional brochures, pamphlets, form letters, registration forms, or other written materials disseminated in connection with the advertising, promotion, or sale of vacation certificates from the holder of each trademark, trade name, or trade logo so used.

(7)  A complete copy of the original of each testimonial letter from previous vacation certificate purchasers utilized in advertisements disseminated in connection with advertising, promotion, or sale of vacation certificates.

(8)  Where discount or complimentary coupons or tickets are to be provided to purchasers, a copy of such ticket or coupon which shall include a statement of the names and addresses of businesses where honored, the goods, services, or amenities provided, and any additional charges, limitations, or conditions.

(9)  Where other goods, services, or amenities are provided to the purchaser in addition to the right to use accommodations or facilities, a description of such goods, services, or amenities, including any charges, limitations, or conditions, and a statement of the names and addresses of business entities which are to provide or honor them.

(10)  A statement of the number of certificates to be issued and the date of their expiration.

(11)  A copy of the vacation certificate and its component parts, including, but not limited to, any registration card, form letter, reservation form, confirmation form, and lodging directory.

(12)  A copy of any agreement between the seller and business entities providing accommodations or facilities to purchasers.

(13)  A copy of any agreement between the seller and each business entity providing or honoring discount or complimentary coupons or tickets, or providing other goods, services, or amenities to the purchaser.

(14)  A listing of the full name, address, and telephone number of each person through which the distribution and sale of vacation certificates is to be carried out, including the number of vacation certificates allocated or sold to each such person and the name and address of a Florida registered agent for service of process.

(15)  A financial statement prepared by an independent certified public accountant in accordance with generally accepted accounting principles or the most recently filed federal income tax return. Such statement or return shall be submitted annually at the close of each fiscal year. A seller which has not yet begun operations shall submit a balance sheet prepared by an independent certified public accountant in accordance with generally accepted auditing principles in lieu of an initial financial statement, thereafter annually submitting a financial statement or federal income tax return at the close of the fiscal year.

(16)  An annual submission fee not to exceed $100.

(17)  Within 10 working days after receipt of any materials submitted subsequent to filing an initial registration application or any annual renewal thereof, the department shall determine whether such materials are adequate to meet the requirements of this section. The department shall notify the seller of travel that materials submitted are in substantial compliance, or shall notify the seller of travel of any specific deficiencies. If the department fails to notify the seller of travel of its determination within the period specified in this subsection, the materials shall be deemed in compliance; however, the failure of the department to send notification in either case will not relieve the seller of travel from the duty of complying with this section. Neither the submission of these materials nor the department's response implies approval, recommendation, or endorsement by the department or that the contents of said materials have been verified by the department.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314; s. 34, ch. 97-250.

Note.--Former s. 559.927(4).

559.931  Vacation certificate recordkeeping.--Sellers of travel who offer vacation certificates must keep and maintain among their business records, for a period of 3 years, the following documents and information:

(1)  A copy of each item required to be submitted to the department under s. 559.9295.

(2)  All records required by s. 607.1601, when applicable, whether a corporation or other business entity.

(3)  A list consisting of the name and address of every certificate purchaser making further purchase from the seller of travel pursuant to solicitation at the time of use of accommodations or facilities, which shall be retained for a period of at least 3 years after the date of such further purchase.

(4)  A list consisting of the name and last known mailing addresses of all employees engaged in the solicitation of vacation certificate purchasers for further purchase at the time of use of accommodations or facilities, including those whose employment has been terminated within the preceding 3 years.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(6).

559.932  Vacation certificate disclosure.--

(1)  It shall be unlawful for any seller of travel to fail to provide each person solicited with a contract which shall include the following:

(a)  A space for the date, name, address, and signature of the purchaser.

(b)  The expiration date of the vacation certificate and the terms and conditions of its extension or renewal, if available.

(c)  The name and business address of any seller of travel who may solicit vacation certificate purchasers for further purchases, and a full and complete statement as to the nature and method of that solicitation.

(d)  The total financial obligation of the purchaser which shall include the initial purchase price and any additional charges to which the purchaser may be subject, including, but not limited to, any per diem, seasonal, reservation, or recreational charge.

(e)  The name and street address of any person who has the right to alter, amend, or add to the charges to which the purchaser may be subject and the terms and conditions under which such charges may be imposed.

(f)  If any accommodation or facility which a purchaser acquires the right to use pursuant to the vacation certificate is not completed at the time the certificate is offered for sale, the date of availability of each component of the accommodation or facility.

(g)  By means of a section entitled "terms and conditions":

1.  All eligibility requirements for use of the vacation certificate, including, but not limited to, age, sex, marital status, group association, residency, or geographic limitations.

2.  All eligibility requirements for use of any discount or complimentary coupon or ticket.

3.  A statement as to whether transportation and meals are provided pursuant to use of the certificate.

4.  Any room deposit requirement, including all conditions for its return or refund.

5.  The manner in which reservation requests are to be made and the method by which they are to be confirmed.

6.  Any identification, credential, or other means by which a purchaser must establish her or his entitlement to the rights, benefits, or privileges of the vacation certificate.

7.  Any restriction or limitation upon transfer of the vacation certificate or any right, benefit, or privilege thereunder.

8.  Any other term, limitation, condition, or requirement material to use of the vacation certificate or any right, benefit, or privilege thereunder.

(h)  In immediate proximity to the space reserved in the contract for the date and the name, address, and signature of the purchaser, the following statement in boldfaced type of a size of 10 points:

"YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR OBLIGATION WITHIN 30 DAYS FROM THE DATE OF PURCHASE OR RECEIPT OF THE VACATION CERTIFICATE, WHICHEVER OCCURS LATER."

"YOU MAY ALSO CANCEL THIS CONTRACT IF ACCOMMODATIONS OR FACILITIES ARE NOT AVAILABLE PURSUANT TO A REQUEST FOR USE AS PROVIDED IN THE CONTRACT."

"IF YOU DECIDE TO CANCEL, YOU MUST NOTIFY THE SELLER IN WRITING OF YOUR INTENT TO CANCEL BY RETURNING THE CERTIFICATE AND SENDING NOTICE TO:  (NAME OF SELLER)  AT  (SELLER'S ADDRESS) ."

(i)  In immediate proximity to the statement required in paragraph (h), the following statement in boldfaced type of a size of 10 points:

"NO PURCHASER SHOULD RELY UPON REPRESENTATIONS OTHER THAN THOSE INCLUDED IN THIS CONTRACT."


However, inclusion of this statement shall not impair any purchaser's right to bring legal action based on verbal statements.

(j)  In immediate proximity to the statement required in paragraph (i), the following statement:

"This contract is for the purchase of a vacation certificate and puts all assignees on notice of the consumer's right to cancel under section 559.933, Florida Statutes."

(2)  If a sale or agreement to purchase a vacation certificate is completed over the telephone, the seller shall inform the purchaser over the telephone that:

(a)  The purchaser may cancel the contract without any penalty or obligation within 30 days from the date of purchase or receipt of the vacation certificate, whichever occurs later.

(b)  The purchaser may also cancel the contract if accommodations or facilities are not available upon request for use as provided in the contract.

History.--s. 1, ch. 93-107; s. 5, ch. 95-314; s. 834, ch. 97-103.

Note.--Former s. 559.927(7).

559.933  Vacation certificate cancellation and refund provisions.--It shall be unlawful for any seller of travel or assignee:

(1)  To fail or refuse to honor a purchaser's vacation certificate request to cancel if such request is made:

(a)  Within 30 days from the date of purchase or receipt of the vacation certificate, whichever occurs later; or

(b)  At any time accommodations or facilities are not available pursuant to a request for use as provided in the contract, provided that:

1.  The contract shall not require notice greater than 60 days in advance of the date requested for use;

2.  If acceptable to the purchaser, comparable alternate accommodations or facilities in a city, or reservations for a date different than that requested, may be provided.

(2)  To fail to refund any and all payments made by the vacation certificate purchaser within 30 days after receipt of the certificate and notice of cancellation made pursuant to this section, if the purchaser has not received any benefits pursuant to the vacation certificate.

(3)  If the purchaser has received any benefits pursuant to the vacation certificate, to fail to refund within 30 days after receipt of the certificate and notice of cancellation made pursuant to this section any and all payments made by the purchaser which exceed a pro rata portion of the total price, representing the portion of any benefits actually received by the vacation certificate purchaser during the time preceding cancellation.

(4)  Where any purchaser has received confirmation of reservations in advance and is refused accommodations upon arrival, to fail to procure comparable alternate accommodations for the purchaser in the same city at no expense to the purchaser, or to fail to fully compensate the purchaser for the room rate incurred in securing comparable alternate accommodations himself or herself.

(5)  To collect more than the full contract price from the purchaser.

(6)  To sell, assign, or otherwise transfer any interest in a seller of travel business, or to sell, assign, or otherwise transfer to a third party any interest in any vacation certificate unless:

(a)  The third party agrees in writing to fully honor the rights of vacation certificate purchasers to cancel and to receive an appropriate refund or reimbursement as provided in this section.

(b)  The third party agrees in writing to comply with all other provisions of this part for as long as the third party continues the sale of vacation certificates or for the duration of the period of validity of outstanding vacation certificates, whichever is longer in time.

(c)  The seller of travel agrees to be liable for and fully indemnify a purchaser from any loss occasioned by the failure of the third party to honor the purchaser's right to cancel and failure to make prompt and complete refund to the purchaser of all sums paid to the third party, or occasioned by the third party's failure to comply with the provisions of this part.

(7)  To fail to fulfill the terms of a vacation certificate within 18 months of the initial payment of any consideration by the purchaser to a seller of travel or third party.

History.--s. 1, ch. 93-107; s. 5, ch. 95-314; s. 835, ch. 97-103.

Note.--Former s. 559.927(8).

559.9335  Violations.--It is a violation of this part for any person:

(1)  To conduct business as a seller of travel without registering annually with the department unless exempt pursuant to s. 559.935.

(2)  To conduct business as a seller of travel without an annual purchase of a performance bond or establishment of a letter of credit or certificate of deposit in the amount set by the department unless exempt pursuant to s. 559.935.

(3)  Knowingly to make any false statement, representation, or certification in any application, document, or record required to be submitted or retained under this part.

(4)  Knowingly to sell or market any number of vacation certificates that exceed the number disclosed to the department pursuant to this section.

(5)  Knowingly to sell or market vacation certificates with an expiration date of more than 18 months from the date of issuance.

(6)  Knowingly to require, request, encourage, or suggest, directly or indirectly, that payment for the right to obtain a travel contract, certificate, or vacation package must be by credit card authorization or to otherwise announce a preference for that method of payment over any other when no correct and true explanation for such preference is likewise stated.

(7)  Knowingly to state, represent, indicate, suggest, or imply, directly or indirectly, that the travel contract, certificate, or vacation package being offered by the seller of travel cannot be purchased at some later time or may not otherwise be available after the initial contact, or that callbacks by the prospective purchaser are not accepted, when no such restrictions or limitations in fact exist.

(8)  Knowingly to sell or market admissions tickets to theme or amusement parks, sporting events, concerts, theater productions, or other entertainment events, in excess of $1 above the retail admission price charged by the original seller of said tickets, unless said tickets are part of a prearranged travel package which includes transportation or accommodations services, are being resold on behalf of the original seller of said tickets, and the seller of travel provides either a Florida seller of travel registration number or an Airlines Reporting Corporation agency code number in each advertisement that is placed in newspapers circulated primarily in Florida. When any original seller of tickets provides a seller of travel with tickets in bulk, the seller of travel shall be deemed to be reselling the tickets on behalf of the original seller.

(9)  To misrepresent in any manner the purchaser's right to cancel and to receive an appropriate refund or reimbursement as provided by this part.

(10)  To sell any vacation certificate the duration of which exceeds the duration of any agreement between the seller and any business entity obligated thereby to provide accommodations or facilities pursuant to the vacation certificate.

(11)  To misrepresent or deceptively represent:

(a)  The amount of time or period of time accommodations or facilities will be available.

(b)  The location of accommodations or facilities offered.

(c)  The price, size, nature, extent, qualities, or characteristics of accommodations or facilities offered.

(d)  The nature or extent of other goods, services, or amenities offered.

(e)  A purchaser's rights, privileges, or benefits.

(f)  The conditions under which the purchaser may obtain a reservation for the use of offered accommodations or facilities.

(g)  That the recipient of an advertisement or promotional materials is a winner, or has been selected, or is otherwise being involved in a select group for receipt, of a gift, award, or prize, unless this fact is the truth.

(12)  To fail to inform a purchaser of a nonrefundable cancellation policy prior to the seller of travel accepting any fee, commission, or other valuable consideration.

(13)  To fail to include, when offering to sell a vacation certificate, in any advertisement or promotional material, the following statement: "This is an offer to sell travel."

(14)  To fail to honor and comply with all provisions of the vacation certificate regarding the purchaser's rights, benefits, and privileges thereunder.

(15)(a)  To include in any vacation certificate or contract any provision purporting to waive or limit any right or benefit provided to purchasers under this part; or

(b)  To seek or solicit such waiver or acceptance of limitation from a purchaser concerning rights or benefits provided under this part.

(16)  To offer vacation certificates for any accommodation or facility for which there is no contract with the owner of the accommodation or facility securing the purchaser's right to occupancy and use, unless the seller is the owner.

(17)  To use a local mailing address, registration facility, drop box, or answering service in the promotion, advertising, solicitation, or sale of vacation certificates, unless the seller's fixed business address is clearly disclosed during any telephone solicitation and is prominently and conspicuously disclosed on all solicitation materials and on the contract.

(18)  To use any registered trademark, trade name, or trade logo in any promotional, advertising, or solicitation materials without written authorization from the holder of such trademark, trade name, or trade logo.

(19)  To represent, directly or by implication, any affiliation with, or endorsement by, any governmental, charitable, educational, medical, religious, fraternal, or civic organization or body, or any individual, in the promotion, advertisement, solicitation, or sale of vacation certificates without express written authorization.

(20)  To sell a vacation certificate to any purchaser who is ineligible for its use.

(21)  To sell any number of vacation certificates exceeding the number disclosed pursuant to this part.

(22)  During the period of a vacation certificate's validity, in the event, for any reason whatsoever, of lapse or breach of an agreement for the provision of accommodations or facilities to purchasers, to fail to procure similar agreement for the provision of comparable alternate accommodations or facilities in the same city or surrounding area.

(23)  To do any other act which constitutes fraud, misrepresentation, or failure to disclose a material fact.

(24)  To refuse or fail, or for any of its principal officers to refuse or fail, after notice, to produce any document or record or disclose any information required to be produced or disclosed.

(25)  Knowingly to make a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the state attorney.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 6, ch. 90-231; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314; s. 35, ch. 97-250.

Note.--Former s. 559.927(10).

559.934  Deceptive and unfair trade practice.--Acts, conduct, practices, omissions, failings, misrepresentations, or nondisclosures which constitute a violation of this part also constitute a deceptive and unfair trade practice for the purpose of s. 501.201 and administrative rules promulgated thereunder.

History.--s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(11).

559.935  Exemptions.--

(1)  This part does not apply to:

(a)  A bona fide employee of a seller of travel who is engaged solely in the business of her or his employer;

(b)  Any direct common carrier of passengers or property regulated by an agency of the Federal Government or employees of such carrier when engaged solely in the transportation business of the carrier as identified in the carrier's certificate;

(c)  An intrastate common carrier of passengers or property selling only transportation as defined in the applicable state or local registration or certification, or employees of such carrier when engaged solely in the transportation business of the carrier;

(d)  Hotels, motels, or other places of public accommodation selling public accommodations, or employees of such hotels, motels, or other places of public accommodation, when engaged solely in making arrangements for lodging, accommodations, or sightseeing tours within the state, or taking reservations for the traveler with times, dates, locations, and accommodations certain at the time the reservations are made, provided that hotels and motels registered with the Department of Business and Professional Regulation pursuant to chapter 509 are excluded from the provisions of this chapter;

(e)  Persons involved solely in the rental, leasing, or sale of residential property;

(f)  Persons involved solely in the rental, leasing, or sale of transportation vehicles;

(g)  Persons who make travel arrangements for themselves; for their employees or agents; for distributors, franchisees, or dealers of the persons' products or services; for entities which are financially related to the persons; or for the employees or agents of the distributor, franchisee, or dealer or financially related entity;

(h)  A developer of a timeshare plan or an exchange company approved by the Division of Florida Land Sales, Condominiums, and Mobile Homes pursuant to chapter 721, but only to the extent that the developer or exchange company engages in conduct regulated under chapter 721; or

(i)  Persons or entities engaged solely in offering diving services, including classes and sales or rentals of equipment, when engaged in making any prearranged travel-related or tourist-related services in conjunction with a primarily dive-related event.

(2)  Sections 559.928, 559.929, 559.9295, 559.931, and 559.932 shall not apply to:

(a)  Sellers of travel directly issuing airline tickets who have contracted with the Airlines Reporting Corporation for the most recent consecutive 3 years or more under the same ownership and control and who do not offer vacation certificates; or

(b)  Sellers of travel offering vacation certificates who have contracted with the Airlines Reporting Corporation for the most recent consecutive 5 years or more under the same ownership and control.

(3)  Sections 559.928, 559.929, 559.9295, 559.931, and 559.932 shall also not apply to a seller of travel that is an affiliate of an entity exempt pursuant to subsection (2) subject to the following conditions:

(a)  In the event the department finds the affiliate does not have a satisfactory consumer complaint history or the affiliate fails to respond to a consumer complaint within 30 days, the related seller of travel exempt pursuant to subsection (2) shall be liable for the actions of the affiliate, subject to the remedies provided in ss. 559.9355 and 559.936.

(b)  In the event the department is unable to locate an affiliate, the related seller of travel exempt pursuant to subsection (2) shall be fully liable for the actions of the affiliate, subject to the remedies provided in ss. 559.9355 and 559.936.

(c)  In order to obtain an exemption under this subsection, the affiliate shall file an affidavit of exemption on a form prescribed by the department. The affidavit of exemption shall be executed by a person who exercises identical control over the seller of travel exempt pursuant to subsection (2) and the affiliate. Failure to file an affidavit of exemption prior to engaging in seller of travel activities shall subject the affiliate to the remedies provided in ss. 559.9355 and 559.936.

(d)  Revocation by the department of an exemption provided to a seller of travel under subsection (2) shall constitute automatic revocation by law of an exemption obtained by an affiliate under the subsection.

(e)  This subsection shall not apply to:

1.  An affiliate that independently qualifies for another exemption under s. 559.935.

2.  An affiliate that sells, or offers for sale, vacation certificates.

(f)  For purposes of this section, an "affiliate" means an entity that meets the following:

1.  The entity has the identical ownership as the seller of travel that is exempt under subsection (2).

2.  The ownership controlling the seller of travel that is exempt under subsection (2) also exercises identical control over the entity.

3.  The owners of the affiliate hold the identical percentage of voting shares as they hold in the seller of travel that is exempt under subsection (2).

(4)  The department may revoke the exemption provided in subsection (2) or subsection (3) if the department finds the seller of travel does not have a satisfactory consumer complaint history, has been convicted of a crime involving fraud, theft, misappropriation of property, deceptive or unfair trade practices, or moral turpitude, or has not complied with the terms of any order or settlement agreement arising out of an administrative or enforcement action brought by a governmental agency or private person based on conduct involving fraud, theft, misappropriation of property, deceptive or unfair trade practices, or moral turpitude.

(5)  This section shall be subject to the provisions of chapter 120.

(6)  The department shall request from the Airlines Reporting Corporation any information necessary to implement the provisions of subsection (2). Persons claiming an exemption under subsection (2) or subsection (3) must show a letter of exemption from the department before a local occupational license to engage in business as a seller of travel may be issued or reissued. If the department fails to issue a letter of exemption on a timely basis, the seller of travel shall submit to the department, through certified mail, an affidavit containing her or his name and address and an explanation of the exemption sought. Such affidavit may be used in lieu of a letter of exemption for the purpose of obtaining an occupational license. In any civil or criminal proceeding, the burden of proving an exemption under this section shall be on the person claiming such exemption. A letter of exemption issued by the department shall not be used in, and shall have no bearing on, such proceedings.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 14, ch. 91-236; s. 4, ch. 91-429; s. 1, ch. 92-160; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 211, ch. 94-218; s. 7, ch. 94-298; s. 5, ch. 95-314; s. 836, ch. 97-103.

Note.--Former s. 559.927(12).

559.9355  Administrative remedies; penalties.--

(1)  The department may enter an order doing one or more of the following if the department finds that a person has violated or is operating in violation of any of the provisions of this part or the rules or orders issued thereunder:

(a)  Issuing a notice of noncompliance pursuant to s. 120.695.

(b)  Imposing an administrative fine not to exceed $5,000 for each act or omission.

(c)  Directing that the person cease and desist specified activities.

(d)  Refusing to register or canceling or suspending a registration.

(e)  Placing the registrant on probation for a period of time, subject to such conditions as the department may specify.

(f)  Canceling an exemption granted under s. 559.935.

(2)  The administrative proceedings which could result in the entry of an order imposing any of the penalties specified in subsection (1) are governed by chapter 120.

(3)  The department has the authority to adopt rules pursuant to chapter 120 to implement this section and ss. 559.928, 559.929, 559.934, and 559.935.

History.--s. 1, ch. 93-107; s. 5, ch. 95-314; s. 36, ch. 97-250.

Note.--Former s. 559.927(13).

559.936  Civil penalties; remedies.--

(1)  The department may institute a civil action in a court of competent jurisdiction to recover any penalties or damages allowed in this part and for injunctive relief to enforce compliance with this part.

(2)  The department may seek a civil penalty of up to $5,000 for each violation of this part.

(3)  The department may bring an action for restitution for and on behalf of any purchaser of travel services aggrieved or injured by a violation of this part.

(4)  Any provision in a travel contract, certificate, vacation package, or other brochure or travel material from a seller of travel that purports to waive, limit, restrict, or avoid any of the duties, obligations, or prescriptions of the seller of travel, as herein provided, is void and unenforceable and against public policy, unless it is necessitated by contractual arrangements with travel service suppliers and fully disclosed.

(5)  The remedies provided in this part are in addition to any other remedies available for the same conduct.

(6)  Upon motion of the department in any action brought under this part, the court may make appropriate orders, including appointment of a master or receiver or sequestration of assets, to reimburse consumers found to have been damaged, to carry out a consumer transaction in accordance with the consumer's reasonable expectations, or to grant other appropriate relief.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(14).

559.937  Criminal penalties.--Any person or business which violates this part commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 6, ch. 90-231; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(15).

559.938  General Inspection Trust Fund; payments.--Any moneys recovered by the department as a penalty under this part shall be deposited in the General Inspection Trust Fund.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(16).

559.939  State preemption.--No municipality or county or other political subdivision of this state shall have authority to levy or collect any registration fee or tax, as a regulatory measure, or to require the registration or bonding in any manner of any seller of travel who is registered or complies with all applicable provisions of this part, unless that authority is provided for by special or general act of the Legislature. Any ordinance, resolution, or regulation of any municipality or county or other political subdivision of this state which is in conflict with any provision of this part is preempted by this part. The provisions of this section do not apply to any local occupational tax levied pursuant to chapter 205.

History.--ss. 1, 2, ch. 88-363; s. 6, ch. 89-296; s. 4, ch. 91-429; s. 88, ch. 92-291; s. 1, ch. 93-107; s. 5, ch. 95-314.

Note.--Former s. 559.927(17).