Chapter 496 - 2011 Florida Statutes

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2011 Florida Statutes

Title XXXIII REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS

Chapter 496
SOLICITATION OF FUNDS

CHAPTER 496

SOLICITATION OF FUNDS

496.401 Short title.

496.402 Legislative intent.

496.403 Application.

496.404 Definitions.

496.405 Registration statements by charitable organizations and sponsors.

496.406 Exemption from registration.

496.407 Financial report.

496.409 Registration and duties of professional fundraising consultant.

496.410 Registration and duties of professional solicitors.

496.411 Disclosure requirements and duties of charitable organizations and sponsors.

496.412 Disclosure requirements and duties of professional solicitors.

496.413 Contributions solicited for or accepted on behalf of a named individual.

496.414 Duties of commercial co-venturers.

496.415 Prohibited acts.

496.416 Violation as deceptive or unfair trade practice.

496.417 Criminal penalties.

496.418 Records.

496.419 Powers of the department.

496.420 Civil remedies and enforcement.

496.421 More stringent local provisions not preempted by ss. 496.401-496.424.

496.422 Duties of the Department of State.

496.423 Public information; annual report.

496.424 Rulemaking authority.

496.425 Solicitation of funds within public transportation facilities.

496.4255 Public airport not required to grant permit or access.

496.426 Registration and solicitation requirements.

496.401 Short title.—Sections 496.401-496.424 may be cited as the “Solicitation of Contributions Act.”

History.—ss. 1, 26, ch. 91-208; s. 19, ch. 94-287.

496.402 Legislative intent.—It is the intent of the Legislature to recognize the right of persons or organizations to conduct solicitation activities. It is also the intent of the Legislature to protect the public by requiring full public disclosure of the identity of persons who solicit contributions from the public, and of the purposes for which such contributions are solicited and the manner in which the contributions are actually used. It is further the intent of the Legislature to prohibit deception, fraud, and misrepresentation in the solicitation and reporting of contributions.

History.—ss. 2, 26, ch. 91-208; s. 19, ch. 94-287.

496.403 Application.—Sections 496.401-496.424 do not apply to bona fide religious institutions, educational institutions, and state agencies or other government entities or persons or organizations who solicit or act as professional fundraising consultants solely on their behalf. Sections 496.401-496.424 do not apply to political contributions solicited in accordance with the election laws of this state.

History.—ss. 3, 26, ch. 91-208; s. 19, ch. 94-287; s. 2, ch. 98-299.

496.404 Definitions.—As used in ss. 496.401-496.424:

(1) “Charitable organization” means any person who is or holds herself or himself out to be established for any benevolent, educational, philanthropic, humane, scientific, artistic, patriotic, social welfare or advocacy, public health, environmental conservation, civic, or other eleemosynary purpose, or any person who in any manner employs a charitable appeal as the basis for any solicitation or an appeal that suggests that there is a charitable purpose to any solicitation. It includes a chapter, branch, area office, or similar affiliate soliciting contributions within the state for a charitable organization which has its principal place of business outside the state.

(2) “Charitable purpose” means any benevolent, philanthropic, patriotic, educational, humane, scientific, artistic, public health, social welfare or advocacy, environmental conservation, civic, or other eleemosynary objective.

(3) “Charitable sales promotion” means an advertising or sales campaign conducted by a commercial co-venturer which represents that the purchase or use of goods or services offered by the commercial co-venturer are to benefit a charitable organization. The provision of advertising services to a charitable organization does not, in itself, constitute a charitable sales promotion.

(4) “Commercial co-venturer” means any person who, for profit, regularly and primarily is engaged in trade or commerce other than in connection with solicitation of contributions and who conducts a charitable sales promotion or a sponsor sales promotion.

(5) “Contribution” means the promise, pledge, or grant of any money or property, financial assistance, or any other thing of value in response to a solicitation. “Contribution” includes, in the case of a charitable organization or sponsor offering goods and services to the public, the difference between the direct cost of the goods and services to the charitable organization or sponsor and the price at which the charitable organization or sponsor or any person acting on behalf of the charitable organization or sponsor resells those goods or services to the public. “Contribution” does not include bona fide fees, dues, or assessments paid by members, provided that membership is not conferred solely as consideration for making a contribution in response to a solicitation. “Contribution” also does not include funds obtained by a charitable organization or sponsor pursuant to government grants or contracts, or obtained as an allocation from a United Way organization that is duly registered with the department or received from an organization that is exempt from federal income taxation under s. 501(a) of the Internal Revenue Code and described in s. 501(c) of the Internal Revenue Code that is duly registered with the department.

(6) “Department” means the Department of Agriculture and Consumer Services.

(7) “Division” means the Division of Consumer Services of the Department of Agriculture and Consumer Services.

(8) “Educational institutions” means those institutions and organizations described in s. 212.08(7)(cc)8.a. The term includes private nonprofit organizations, the purpose of which is to raise funds for schools teaching grades kindergarten through grade 12, colleges, and universities, including any nonprofit newspaper of free or paid circulation primarily on university or college campuses which holds a current exemption from federal income tax under s. 501(c)(3) of the Internal Revenue Code, any educational television or radio network or system established pursuant to s. 1001.25 or s. 1001.26, and any nonprofit television or radio station that is a part of such network or system and that holds a current exemption from federal income tax under s. 501(c)(3) of the Internal Revenue Code. The term also includes a nonprofit educational cable consortium that holds a current exemption from federal income tax under s. 501(c)(3) of the Internal Revenue Code, whose primary purpose is the delivery of educational and instructional cable television programming and whose members are composed exclusively of educational organizations that hold a valid consumer certificate of exemption and that are either an educational institution as defined in this subsection or qualified as a nonprofit organization pursuant to s. 501(c)(3) of the Internal Revenue Code.

(9) “Emergency service employee” means any employee who is a firefighter, as defined in s. 633.30, or ambulance driver, emergency medical technician, or paramedic, as defined in s. 401.23.

(10) “Federated fundraising organization” means a federation of independent charitable organizations which have voluntarily joined together, including, but not limited to, a united way or community chest, for purposes of raising and distributing contributions for and among themselves and where membership does not confer operating authority and control of the individual organization upon the federated group organization.

(11) “Fundraising costs” means those costs incurred in inducing others to make contributions to a charitable organization or sponsor for which the contributors will receive no direct economic benefit. Fundraising costs include, but are not limited to, salaries, rent, acquiring and obtaining mailing lists, printing, mailing, and all direct and indirect costs of soliciting, as well as the cost of unsolicited merchandise sent to encourage contributions.

(12) “Law enforcement officer” means any person who is elected, appointed, or employed by any municipality or the state or any political subdivision thereof and:

(a) Who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the criminal, traffic, or highway laws of the state; or

(b) Whose responsibility includes supervision, protection, care, custody, or control of inmates within a correctional institution.

(13) “Membership” means the relationship of a person to an organization that entitles her or him to the privileges, professional standing, honors, or other direct benefit of the organization in addition to the right to vote, elect officers, and hold office in the organization.

(14) “Owner” means any person who has a direct or indirect interest in any professional fundraising consultant or professional solicitor.

(15) “Parent organization” means that part of a charitable organization or sponsor which coordinates, supervises, or exercises control over policy, fundraising, and expenditures or assists or advises one or more of the organization’s chapters, branches, or affiliates in this state.

(16) “Person” means any individual, organization, trust, foundation, group, association, entity, partnership, corporation, society, or any combination of them.

(17) “Professional fundraising consultant” means any person who is retained by a charitable organization or sponsor for a fixed fee or rate under a written agreement to plan, manage, conduct, carry on, advise, consult, or prepare material for a solicitation of contributions in this state, but who does not solicit contributions or employ, procure, or engage any compensated person to solicit contributions and who does not at any time have custody or control of contributions. A bona fide volunteer or bona fide employee or salaried officer of a charitable organization or sponsor maintaining a permanent establishment in this state is not a professional fundraising consultant. An attorney, investment counselor, or banker who advises an individual, corporation, or association to make a charitable contribution is not a professional fundraising consultant as the result of such advice.

(18) “Professional solicitor” means any person who, for compensation, performs for a charitable organization or sponsor any service in connection with which contributions are or will be solicited in this state by the compensated person or by any person it employs, procures, or otherwise engages, directly or indirectly, to solicit contributions, or a person who plans, conducts, manages, carries on, advises, consults, whether directly or indirectly, in connection with the solicitation of contributions for or on behalf of a charitable organization or sponsor, but who does not qualify as a professional fundraising consultant. A bona fide volunteer or bona fide employee or salaried officer of a charitable organization or sponsor maintaining a permanent establishment in this state is not a professional solicitor. An attorney, investment counselor, or banker who advises an individual, corporation, or association to make a charitable contribution is not a professional solicitor as the result of such advice.

(19) “Religious institution” means any church, ecclesiastical or denominational organization, or established physical place for worship in this state at which nonprofit religious services and activities are regularly conducted and carried on, and includes those bona fide religious groups which do not maintain specific places of worship. “Religious institution” also includes any separate group or corporation which forms an integral part of a religious institution which is exempt from federal income tax under the provisions of s. 501(c)(3) of the Internal Revenue Code, and which is not primarily supported by funds solicited outside its own membership or congregation.

(20) “Solicitation” means a request, directly or indirectly, for money, property, financial assistance, or any other thing of value on the plea or representation that such money, property, financial assistance, or other thing of value or a portion of it will be used for a charitable or sponsor purpose or will benefit a charitable organization or sponsor. “Solicitation” includes, but is not limited to, the following methods of requesting or securing the promise, pledge, or grant of money, property, financial assistance, or any other thing of value:

(a) Any oral or written request;

(b) Making any announcement to the press, on radio or television, by telephone or telegraph, or by any other communication device concerning an appeal or campaign by or for any charitable organization or sponsor or for any charitable or sponsor purpose;

(c) Distributing, circulating, posting, or publishing any handbill, written advertisement, or other publication that directly or by implication seeks to obtain any contribution; or

(d) Selling or offering or attempting to sell any advertisement, advertising space, book, card, coupon, chance, device, magazine, membership, merchandise, subscription, sponsorship, flower, admission, ticket, food, or other service or tangible good, item, or thing of value, or any right of any description in connection with which any appeal is made for any charitable organization or sponsor or charitable or sponsor purpose, or when the name of any charitable organization or sponsor is used or referred to in any such appeal as an inducement or reason for making the sale or when, in connection with the sale or offer or attempt to sell, any statement is made that all or part of the proceeds from the sale will be used for any charitable or sponsor purpose or will benefit any charitable organization or sponsor.

A solicitation is considered as having taken place whether or not the person making the solicitation receives any contribution. A solicitation does not occur when a person applies for a grant or an award to the government or to an organization that is exempt from federal income taxation under s. 501(a) of the Internal Revenue Code and described in s. 501(c) of the Internal Revenue Code and is duly registered with the department.

(21) “Sponsor” means a group or person which is or holds itself out to be soliciting contributions by the use of any name which implies that the group or person is in any way affiliated with or organized for the benefit of emergency service employees or law enforcement officers and which is not a charitable organization. The term includes a chapter, branch, or affiliate which has its principal place of business outside the state, if such chapter, branch, or affiliate solicits or holds itself out to be soliciting contributions in this state.

(22) “Sponsor purpose” means any program or endeavor performed to benefit emergency service employees or law enforcement officers.

(23) “Sponsor sales promotion” means an advertising or sales campaign conducted by a commercial co-venturer who represents that the purchase or use of goods or services offered by the commercial co-venturer will be used for a sponsor purpose or donated to a sponsor. The provision of advertising services to a sponsor does not, in itself, constitute a sponsor sales promotion.

History.—ss. 4, 26, ch. 91-208; s. 1, ch. 93-174; ss. 1, 19, ch. 94-287; s. 558, ch. 97-103; s. 3, ch. 98-299; s. 1, ch. 99-307; s. 8, ch. 2000-228; s. 44, ch. 2002-295; s. 60, ch. 2003-1.

496.405 Registration statements by charitable organizations and sponsors.—

(1)(a) A charitable organization or sponsor, unless exempted pursuant to s. 496.406, which intends to solicit contributions in this state by any means or have funds solicited on its behalf by any other person, charitable organization, sponsor, commercial co-venturer, or professional solicitor, or that participates in a charitable sales promotion or sponsor sales promotion, must, prior to engaging in any of these activities, file an initial registration statement, and a renewal statement annually thereafter, with the department.

(b) Any changes in the information submitted on the initial registration statement or the last renewal statement must be updated annually on a renewal statement provided by the department on or before the date that marks one year after the date the department approved the initial registration statement as provided in this section. The department shall annually provide a renewal statement to each registrant by mail at least 60 days before the renewal date.

(c) A charitable organization or sponsor that is required to file an initial registration statement or annual renewal statement may not, prior to approval of its statement by the department in accordance with subsection (7), solicit contributions or have contributions solicited on its behalf by any other person, charitable organization, sponsor, commercial co-venturer, or professional solicitor, or participate in a charitable sales promotion or sponsor sales promotion.

(d) For good cause shown, the department may extend the time for the filing of an annual renewal statement or financial report for a period not to exceed 60 days, during which time the previous registration remains in effect.

(e) In no event shall the registration of a charitable organization or sponsor continue in effect after the date the organization should have filed, but failed to file, its financial report in accordance with this section and s. 496.407. The organization may not file a renewal statement until it has filed the required financial report with the department.

(2) The initial registration statement must be submitted on a form prescribed by the department, signed under oath by the treasurer or chief fiscal officer of the charitable organization or sponsor, and include the following information or material:

(a) A copy of the financial report or Internal Revenue Service Form 990 and Schedule A or Internal Revenue Service Form 990-EZ required under s. 496.407 for the immediately preceding fiscal year. A newly organized charitable organization or sponsor with no financial history must file a budget for the current fiscal year.

(b) The name of the charitable organization or sponsor, the purpose for which it is organized, the name under which it intends to solicit contributions, and the purpose or purposes for which the contributions to be solicited will be used.

(d) A statement of whether:

1. The charitable organization or sponsor is authorized by any other state to solicit contributions;

2. The charitable organization or sponsor or any of its officers, directors, trustees, or principal salaried executive personnel have been enjoined in any jurisdiction from soliciting contributions or have been found to have engaged in unlawful practices in the solicitation of contributions or administration of charitable assets;

3. The charitable organization or sponsor has had its registration or authority denied, suspended, or revoked by any governmental agency, together with the reasons for such denial, suspension, or revocation; and

4. The charitable organization or sponsor has voluntarily entered into an assurance of voluntary compliance or agreement similar to that set forth in s. 496.420, together with a copy of that agreement.

5. The charitable organization or sponsor or any of its officers, directors, trustees, or employees, regardless of adjudication, has 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, any felony or any crime involving fraud, theft, larceny, embezzlement, fraudulent conversion, misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor within the last 10 years and, if so, the name of such person, the nature of the offense, the date of the offense, the court having jurisdiction in the case, the date of conviction or other disposition, and the disposition of the offense.

6. The charitable organization or sponsor or any of its officers, directors, trustees, or employees has been enjoined from violating any law relating to a charitable solicitation, and, if so, the name of such person, the date of the injunction, and the court issuing the injunction.

(e) The names, street addresses, and telephone numbers of any professional solicitor, professional fundraising consultant, and commercial co-venturer who is acting or has agreed to act on behalf of the charitable organization or sponsor, together with a statement setting forth the specific terms of the arrangements for salaries, bonuses, commissions, expenses, or other remunerations to be paid the fundraising consultant and professional solicitor.

(f) With initial registration only, a statement showing when and where the organization was established and the tax-exempt status of the organization together with a copy of any federal tax exemption determination letter. If the charitable organization or sponsor has not received a federal tax exemption determination letter at the time of initial registration, a copy of such determination must be filed with the department within 30 days after receipt of the determination by the charitable organization or sponsor. If the organization is subsequently notified by the Internal Revenue Service of any challenge to its continued entitlement to federal tax exemption, the charitable organization or sponsor shall notify the department of this fact within 30 days after receipt.

(g) The following information must be filed with the initial registration statement and must be updated when any change occurs in the information that was previously filed with the initial registration statement:

1. The principal street address and telephone number of the organization and the street address and telephone numbers of any offices in this state or, if the charitable organization or sponsor does not maintain an office in this state, the name, street address, and telephone number of the person that has custody of its financial records. The parent organization that files a consolidated registration statement on behalf of its chapters, branches, or affiliates must additionally provide the street addresses and telephone numbers of all such locations in this state.

2. The names and street addresses of the officers, directors, trustees, and the principal salaried executive personnel.

3. The date when the charitable organization’s or sponsor’s fiscal year ends.

4. A list or description of the major program activities.

5. The names, street addresses, and telephone numbers of the individuals or officers who have final responsibility for the custody of the contributions and who will be responsible for the final distribution of the contributions.

(3) Each chapter, branch, or affiliate of a parent organization that is required to register under this section must either file a separate registration statement and financial report or must report the required information to its parent organization, which shall then file, on a form prescribed by the department, a consolidated registration statement for the parent organization and its Florida chapters, branches, and affiliates. A consolidated registration statement filed by a parent organization must include or be accompanied by financial reports as specified in s. 496.407 for the parent organization and each of its Florida chapters, branches, and affiliates that solicited or received contributions during the preceding fiscal year. However, if all contributions received by chapters, branches, or affiliates are remitted directly into a depository account which feeds directly into the parent organization’s centralized accounting system from which all disbursements are made, the parent organization may submit one consolidated financial report on a form prescribed by the department.

(4)(a) Every charitable organization, sponsor, or parent organization filing on behalf of one or more chapters, branches, or affiliates that is required to register under this section must pay a single registration fee. A parent organization filing on behalf of one or more chapters, branches, or affiliates shall total all contributions received by the chapters, branches, or affiliates included in the registration statement to determine registration fees. Fees shall be assessed as follows:

1.a. Ten dollars, if the contributions received for the last fiscal or calendar year were less than $5,000; or

b. Ten dollars, if the contributions actually raised or received from the public during the immediately preceding fiscal year by such organization or sponsor are no more than $25,000 and the fundraising activities of such organization or sponsor are carried on by volunteers, members, officers, or permanent employees, who are not compensated, primarily to solicit such contributions, provided no part of the assets or income of such organization or sponsor inures to the benefit of or is paid to any officer or member of such organization or sponsor or to any professional fundraising consultant, professional solicitor, or commercial co-venturer;

2. Seventy-five dollars, if the contributions received for the last fiscal year were $5,000 or more, but less than $100,000;

3. One hundred twenty-five dollars, if the contributions received for the last fiscal year were $100,000 or more, but less than $200,000;

4. Two hundred dollars, if the contributions received for the last fiscal year were $200,000 or more, but less than $500,000;

5. Three hundred dollars, if the contributions received for the last fiscal year were $500,000 or more, but less than $1 million;

6. Three hundred fifty dollars, if the contributions received for the last fiscal year were $1 million or more, but less than $10 million;

7. Four hundred dollars, if the contributions received for the last fiscal year were $10 million or more.

(b) A charitable organization or sponsor which fails to file a registration statement by the due date may be assessed an additional fee for such late filing. The late filing fee shall be $25 for each month or part of a month after the date on which the annual renewal statement and financial report were due to be filed with the department.

(5) Each chapter, branch, or area office of a charitable organization or sponsor must independently comply with the provisions of this section unless such entity is exempt from registration or has reported the required information to its parent organization for filing of a consolidated registration statement.

(6) An independent member charity of a federated fundraising organization must independently comply with the provisions of this section unless specifically exempted.

(7) The department must examine each initial registration statement or annual renewal statement and the supporting documents filed by a charitable organization or sponsor and shall determine whether the registration requirements are satisfied. Within 10 working days after its receipt of a statement, the department must examine the statement, notify the applicant of any apparent errors or omissions, and request any additional information the department is allowed by law to require. Failure to correct an error or omission or to supply additional information is not grounds for denial of the initial registration or annual renewal statement unless the department has notified the applicant within the 10-working-day period. The department must approve or deny each statement, or must notify the applicant that the activity for which she or he seeks registration is exempt from the registration requirement, within 10 working days after receipt of the initial registration or annual renewal statement or the requested additional information or correction of errors or omissions. Any statement that is not approved or denied within 10 working days after receipt of the requested additional information or correction of errors or omissions is approved. Within 7 working days after receipt of a notification that the registration requirements are not satisfied, the charitable organization or sponsor may request a hearing. The hearing must be held within 7 working days after receipt of the request, and any recommended order, if one is issued, must be rendered within 3 working days of the hearing. The final order must then be issued within 2 working days after the recommended order. If a recommended order is not issued, the final order must be issued within 5 working days after the hearing. The proceedings must be conducted in accordance with chapter 120, except that the time limits and provisions set forth in this subsection prevail to the extent of any conflict.

(8) No charitable organization or sponsor shall knowingly allow any of its officers, directors, trustees, or employees to solicit contributions on behalf of such charitable organization or sponsor if such officer, director, trustee, or employee has, 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, any felony within the last 10 years or any crime within the last 10 years involving fraud, theft, larceny, embezzlement, fraudulent conversion, misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor, or has been enjoined from violating any law relating to a charitable solicitation.

History.—ss. 5, 26, ch. 91-208; s. 2, ch. 93-174; ss. 2, 19, ch. 94-287; s. 5, ch. 95-372; s. 559, ch. 97-103; s. 1, ch. 97-250; s. 4, ch. 98-299; s. 2, ch. 99-307; s. 1, ch. 2001-351.

496.406 Exemption from registration.—The following charitable organizations and sponsors are exempt from the requirements of s. 496.405:

(1) A person who is soliciting for a named individual, provided that all the contributions collected without any deductions whatsoever are turned over to the beneficiary for her or his use and provided that the person has complied with the requirements of s. 496.413.

(2) A charitable organization or sponsor which limits solicitation of contributions to the membership of the charitable organization or sponsor. For the purposes of this paragraph, the term “membership” does not include those persons who are granted a membership upon making a contribution as a result of a solicitation.

(3) Any division, department, post, or chapter of a veterans’ service organization granted a federal charter under Title 36, United States Code.

History.—ss. 6, 26, ch. 91-208; ss. 3, 19, ch. 94-287; s. 560, ch. 97-103; s. 5, ch. 98-299; s. 1, ch. 2010-177.

496.407 Financial report.—

(1) A charitable organization or sponsor that is required to initially register or annually renew registration must file an annual financial report for the immediately preceding fiscal year upon a form prescribed by the department. The report must include the following:

(a) A balance sheet.

(b) A statement of support, revenue and expenses, and any change in the fund balance.

(c) The names and addresses of the charitable organizations or sponsors, professional fundraising consultant, professional solicitors, and commercial co-venturers used, if any, and the amounts received from each of them, if any.

(d) A statement of functional expenses that must include, but not be limited to, expenses in the following categories:

1. Program.

2. Management and general.

3. Fundraising.

(2) In lieu of the financial report described in subsection (1), a charitable organization or sponsor may submit a copy of its Internal Revenue Service Form 990 and Schedule A filed for the preceding fiscal year, or a copy of its Form 990-EZ filed for the preceding fiscal year.

(3) A charitable organization or sponsor may elect to also include a financial report that has been audited by an independent certified public accountant or an audit with opinion by an independent certified public accountant. In the event that a charitable organization or sponsor elects to file an audited financial report, this optional filing must be noted in the department’s annual report submitted pursuant to s. 496.423.

History.—ss. 7, 26, ch. 91-208; ss. 4, 19, ch. 94-287.

496.409 Registration and duties of professional fundraising consultant.—

(1) A person may not act as a professional fundraising consultant unless he or she has first complied with the requirements of ss. 496.401-496.424 and has obtained approval of the department of a registration statement in accordance with subsection (6). A person may not act as a professional fundraising consultant after the expiration, suspension, or cancellation of his or her registration.

(2) Applications for registration or renewal of registration must be submitted on a form prescribed by the department, signed under oath, and must include the following information:

(a) The street address and telephone number of the principal place of business of the applicant and any Florida street addresses if the principal place of business is located outside this state.

(b) The form of the applicant’s business.

(d) Whether any of the owners, directors, officers, or employees of the applicant are related as parent, child, spouse, or sibling to any other directors, officers, owners, or employees of the applicant; to any officer, director, trustee, or employee of any charitable organization or sponsor under contract to the applicant; or to any supplier or vendor providing goods or services to any charitable organization or sponsor under contract to the applicant.

(e) Whether the applicant or any of its officers, directors, trustees, or employees have, within the last 10 years, regardless of adjudication, been convicted, or found guilty of, or pled guilty or nolo contendere to, or have 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, any felony and, if so, the name of such person, the nature of the offense, the date of the offense, the court having jurisdiction in the case, the date of conviction or other disposition, and the disposition of the offense.

(f) Whether the applicant or any of its officers, directors, trustees, or employees have, regardless of adjudication, been convicted of, or found guilty of, or pled guilty or nolo contendere to, or have 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 crime within the last 10 years involving fraud, theft, larceny, embezzlement, fraudulent conversion, or misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor and, if so, the name of such person, the nature of the offense, the date of the offense, the court having jurisdiction in the case, the date of conviction or other disposition, and the disposition of the offense.

(g) Whether the applicant or any of its officers, directors, trustees, or employees have been enjoined from violating any law relating to a charitable solicitation and, if so, the name of such person, the date of the injunction, and the court issuing the injunction.

(3) The application for registration must be accompanied by a fee of $300. A professional fundraising consultant which is a partnership or corporation may register for and pay a single fee on behalf of all of its partners, members, officers, directors, agents, and employees. In that case, the names and street addresses of all the officers, employees, and agents of the fundraising consultant and all other persons with whom the fundraising consultant has contracted to work under its direction must be listed in the application. Each registration is valid for 1 year or a part of 1 year and expires on March 31 of each year. The registration may be renewed on or before March 31 of each year for additional 1-year periods upon application to the department and payment of the registration fee.

(4) Every contract or agreement between a professional fundraising consultant and a charitable organization or sponsor must be in writing, signed by two authorized officials of the charitable organization or sponsor, and filed by the professional fundraising consultant with the department at least 5 days prior to the performance of any material service by the professional fundraising consultant. Solicitation under the contract or agreement may not begin before the filing of the contract or agreement.

(5) The contract must contain all of the following provisions:

(a) A statement of the charitable or sponsor purpose for which the solicitation campaign is being conducted.

(b) A statement of the respective obligations of the professional fundraising consultant and the charitable organization or sponsor.

(d) The effective and termination dates.

(e) A statement that the professional fundraising consultant will not, at any time, have control or custody of contributions.

(6) The department shall examine each registration statement and supporting documents filed by a professional fundraising consultant and determine whether the registration requirements are satisfied. If the department determines that the registration requirements are not satisfied, the department must notify the professional fundraising consultant within 10 working days after its receipt of the registration statement; otherwise the registration statement is approved. Within 7 working days after receipt of a notification that the registration requirements are not satisfied, the applicant may request a hearing. The hearing must be held within 7 working days after receipt of the request, and any recommended order, if one is issued, must be rendered within 3 working days after the hearing. The final order must then be issued within 2 working days after the recommended order. If there is no recommended order, the final order must be issued within 5 working days after the hearing. The proceedings must be conducted in accordance with chapter 120, except that the time limits and provisions set forth in this subsection prevail to the extent of any conflict.

(7) All registration fees must be paid to the department and deposited into the General Inspection Trust Fund.

(8) Unless otherwise provided, any material change in information filed with the department pursuant to this section must be reported in writing to the department within 7 working days after the change occurred.

(9) No person may act as a professional fundraising consultant, and no professional fundraising consultant shall knowingly employ any officer, trustee, director, or employee, if such person has, 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, any crime within the last 10 years involving fraud, theft, larceny, embezzlement, fraudulent conversion, or misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor, or has been enjoined from violating any law relating to a charitable solicitation.

History.—ss. 8, 26, ch. 91-208; ss. 5, 19, ch. 94-287; s. 6, ch. 95-372; s. 561, ch. 97-103; s. 3, ch. 99-307; s. 2, ch. 2001-351.

496.410 Registration and duties of professional solicitors.—

(1) No person may act as a professional solicitor unless the person has first complied with the requirements of ss. 496.401-496.424 and has obtained approval of the department of a registration statement in accordance with subsection (5). A person may not act as a professional solicitor after the expiration, suspension, or cancellation of his or her registration.

(2) Applications for registration or renewal of registration must be submitted on a form prescribed by rule of the department, signed under oath, and must include the following information:

(a) The street address and telephone number of the principal place of business of the applicant and any Florida street addresses if the principal place of business is located outside this state.

(b) The form of the applicant’s business.

(d) The names and residence addresses of all principals of the applicant, including all officers, directors, and owners.

(e) A statement as to whether any of the owners, directors, officers, or employees of the applicant are related as parent, spouse, child, or sibling to any other directors, officers, owners, or employees of the applicant; to any officer, director, trustee, or employee of any charitable organization or sponsor under contract to the applicant; or to any supplier or vendor providing goods or services to any charitable organization or sponsor under contract to the applicant.

(f) A statement as to whether the applicant or any of its directors, officers, trustees, persons with a controlling interest in the applicant, or employees or agents involved in solicitation have, within the last 10 years, regardless of adjudication, been convicted of, or found guilty of, or pled guilty or nolo contendere to, or have 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, any felony and, if so, the name of such person, the nature of the offense, the date of the offense, the court having jurisdiction in the case, the date of conviction or other disposition, and the disposition of the offense.

(g) A statement as to whether the applicant or any of its directors, officers, trustees, persons with a controlling interest in the applicant, or employees or agents involved in solicitation have, regardless of adjudication, been convicted of, or found guilty of, or pled guilty or nolo contendere to, or have 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 crime within the last 10 years involving fraud, theft, larceny, embezzlement, fraudulent conversion, or misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor and, if so, the name of such person, the nature of the offense, the date of the offense, the court having jurisdiction in the case, the date of conviction or other disposition, and the disposition of the offense.

(h) A statement as to whether the applicant or any of its directors, officers, trustees, persons with a controlling interest in the applicant, or employees or agents involved in solicitation have been enjoined from violating any law relating to a charitable solicitation and, if so, the name of such person, the date of the injunction, and the court issuing the injunction.

(i) The names of all persons in charge of any solicitation activity.

(3) The application for registration must be accompanied by a fee of $300. A professional solicitor that is a partnership or corporation may register for and pay a single fee on behalf of all of its partners, members, officers, directors, agents, and employees. In that case, the names and street addresses of all the officers, employees, and agents of the professional solicitor and all other persons with whom the professional solicitor has contracted to work under its direction, including solicitors, must be listed in the application or furnished to the department within 5 days after the date of employment or contractual arrangement. Each registration is valid for 1 year or a part of 1 year and expires on March 31 of each year. The registration may be renewed on or before March 31 of each year for an additional 1-year period upon application to the department and payment of the registration fee.

(4) A professional solicitor must, at the time of application or renewal of registration, file with and have approved by the department a bond, to which the professional solicitor is the principal obligor in the sum of $50,000, with one or more sureties authorized to do business in this state. The professional solicitor must maintain the bond in effect as long as the registration is in effect; however, the liability of the surety under the bond must not exceed an all-time aggregate liability of $50,000. The bond, which may be in the form of a rider to a larger blanket liability bond, must be payable to the state and to any person who may have a cause of action against the principal obligor of the bond for any liability arising out of a violation by the obligor of any provision of ss. 496.401-496.424, or any rule adopted pursuant thereto.

(5) The department must examine each registration statement and supporting documents filed by a professional solicitor. If the department determines that the registration requirements are not satisfied, the department must notify the professional solicitor within 10 working days after its receipt of the registration statement; otherwise the registration statement is approved. Within 7 working days after receipt of a notification that the registration requirements are not satisfied, the applicant may request a hearing. The hearing must be held within 7 working days after receipt of the request, and any recommended order, if one is issued, must be rendered within 3 working days after the hearing. The final order must then be issued within 2 working days after the recommended order. If there is no recommended order, the final order must be issued within 5 working days after the hearing. The proceedings must be conducted in accordance with chapter 120, except that the time limits and provisions set forth in this subsection prevail to the extent of any conflict.

(6) No less than 15 days before commencing any solicitation campaign or event, the professional solicitor must file with the department a solicitation notice on a form prescribed by the department. The notice must be signed and sworn to by the contracting officer of the professional solicitor and must include:

(a) A description of the solicitation event or campaign.

(b) Each location and telephone number from which the solicitation is to be conducted.

(c) The legal name and residence address of each person responsible for directing and supervising the conduct of the campaign.

(d) A statement as to whether the professional solicitor will at any time have custody of contributions.

(e) The account number and location of each bank account where receipts from the campaign are to be deposited.

(f) A full and fair description of the charitable or sponsor program for which the solicitation campaign is being carried out as provided in the contract between the professional solicitor and the charitable organization or sponsor.

(g) The fundraising methods to be used.

(h) A copy of the contract identified in subsection (7).

(7) Each contract or agreement between a professional solicitor and a charitable organization or sponsor for each solicitation campaign must be in writing, signed by two authorized officials of the charitable organization or sponsor, one of whom must be a member of the organization’s governing body and one of whom must be the authorized contracting officer for the professional solicitor, and contain all of the following provisions:

(a) A statement of the charitable or sponsor purpose and program for which the solicitation campaign is being conducted.

(b) A statement of the respective obligations of the professional solicitor and the charitable organization or sponsor.

(c) A statement of the guaranteed minimum percentage of the gross receipts from contributions which will be remitted to the charitable organization or sponsor, if any, or, if the solicitation involves the sale of goods, services, or tickets to a fundraising event, the percentage of the purchase price which will be remitted to the charitable organization or sponsor, if any. Any stated percentage shall exclude any amount which the charitable organization or sponsor is to pay as fundraising costs.

(d) A statement of the percentage of the gross revenue which the professional solicitor will be compensated. If the compensation of the professional solicitor is not contingent upon the number of contributions or the amount of revenue received, his or her compensation shall be expressed as a reasonable estimate of the percentage of the gross revenue, and the contract must clearly disclose the assumptions upon which the estimate is based. The stated assumptions must be based upon all of the relevant facts known to the professional solicitor regarding the solicitation to be conducted by the professional solicitor.

(e) The effective and termination dates of the contract.

(8) Within 90 days after a solicitation campaign has been completed and on the anniversary of the commencement of a solicitation campaign lasting more than 1 year, the professional solicitor must provide to the charitable organization or sponsor and file with the department a financial report of the campaign, including the gross revenue received and an itemization of all expenses incurred. The report must be completed on a form prescribed by the department and signed by an authorized official of the professional solicitor who shall certify under oath that the report is true and correct.

(9) Each contribution collected by or in the custody of the professional solicitor must be solely in the name of the charitable organization or sponsor on whose behalf the contribution was solicited. Not later than 2 days after receipt of each contribution, the professional solicitor must deposit the entire amount of the contribution in an account at a bank or other federally insured financial institution, which must be in the name of that charitable organization or sponsor. The charitable organization or sponsor must have sole control of all withdrawals from the account, and the professional solicitor shall not be given the authority to withdraw any deposited funds from the account.

(10) During each solicitation campaign, and for not less than 3 years after its completion, the professional solicitor shall maintain the following records:

(a) The date and amount of each contribution received and the name, address, and telephone number of each contributor.

(b) The name and residence street address of each employee, agent, and any other person, however designated, who is involved in the solicitation, the amount of compensation paid to each, and the dates on which the payments were made.

(d) A record of all expenses incurred by the professional solicitor for the payment of which the professional solicitor is liable.

(e) A record of all expenses incurred by the professional solicitor for the payment of which the charitable organization or sponsor is liable.

(f) The location of each bank or financial institution in which the professional solicitor has deposited revenue from the solicitation campaign and the account number of each account in which the deposits were made.

(g) A copy of each pitch sheet or solicitation script used during the completed solicitation campaign.

(h) If a refund of a contribution has been requested, the name and address of each person requesting the refund, and, if a refund was made, its amount and the date it was made.

(11) If the professional solicitor sells tickets to any event and represents that the tickets will be donated for use by another person, the professional solicitor also shall maintain for the same period as specified in subsection (10) the following records:

(a) The name and address of each contributor who purchases or donates tickets and the number of tickets purchased or donated by the contributor.

(b) The name and address of each organization that receives the donated tickets for the use of others, and the number of tickets received by the organization.

(12) Any of the records described in this section must be made available to the department upon request and must be furnished within 10 days after the request.

(13) Unless otherwise provided in ss. 496.401-496.424, any material change in any information filed with the department pursuant to this section must be reported in writing to the department within 7 days after the change occurs.

(14) No person may act as a professional solicitor, and no professional solicitor shall, to solicit for compensation, knowingly employ any officer, trustee, director, employee, or any person with a controlling interest therein, who has, 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 within the last 10 years involving fraud, theft, larceny, embezzlement, fraudulent conversion, or misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor, or has been enjoined from violating any law relating to a charitable solicitation.

(15) All registration fees must be paid to the department and deposited into the General Inspection Trust Fund.

History.—ss. 9, 26, ch. 91-208; ss. 6, 19, ch. 94-287; s. 7, ch. 95-372; s. 562, ch. 97-103; s. 4, ch. 99-307; s. 3, ch. 2001-351.

496.411 Disclosure requirements and duties of charitable organizations and sponsors.—

(1) A charitable organization or sponsor may solicit contributions only for the purpose expressed in the solicitation for contributions or the registration statement of the charitable organization or sponsor and may apply contributions only in a manner substantially consistent with that purpose.

(2) A charitable organization or sponsor soliciting in this state must include all of the following disclosures at the point of solicitation:

(a) The name of the charitable organization or sponsor and state of the principal place of business of the charitable organization or sponsor;

(b) A description of the purpose or purposes for which the solicitation is being made;

(c) Upon request, the name and either the address or telephone number of a representative to whom inquiries could be addressed;

(d) Upon request, the amount of the contribution which may be deducted as a charitable contribution under federal income tax laws;

(e) Upon request, the source from which a written financial statement may be obtained. Such financial statement must be for the immediate past fiscal year and must be consistent with the annual financial report filed under s. 496.407. The written financial statement must be provided within 14 days after the request and must state the purpose for which funds are raised, the total amount of all contributions raised, the total costs and expenses incurred in raising contributions, the total amount of contributions dedicated to the stated purpose or disbursed for the stated purpose, and whether the services of another person or organization have been contracted to conduct solicitation activities.

(3) Every charitable organization or sponsor which is required to register under s. 496.405 must conspicuously display in capital letters the following statement on every printed solicitation, written confirmation, receipt, or reminder of a contribution:

“A COPY OF THE OFFICIAL REGISTRATION AND FINANCIAL INFORMATION MAY BE OBTAINED FROM THE DIVISION OF CONSUMER SERVICES BY CALLING TOLL-FREE WITHIN THE STATE. REGISTRATION DOES NOT IMPLY ENDORSEMENT, APPROVAL, OR RECOMMENDATION BY THE STATE.”

The statement must include a toll-free number for the division that can be used to obtain the registration information. When the solicitation consists of more than one piece, the statement must be displayed prominently in the solicitation materials.

(4) A charitable organization or sponsor must establish and exercise control over its fundraising activities.

(5) A charitable organization or sponsor must not enter into any contract or agreement with or employ a professional fundraising consultant or professional solicitor unless that professional solicitor or fundraising consultant is registered with the department.

(6) Each charitable organization or sponsor that is required to register under s. 496.405 shall conspicuously display the following information on every printed solicitation, written confirmation, receipt, or reminder of a contribution:

(a) The organization’s or sponsor’s registration number issued by the department under this chapter.

(b) The percentage, if any, of each contribution that is retained by any professional solicitor that has contracted with the organization or sponsor.

If the solicitation consists of more than a single item, the statement shall be displayed prominently in the solicitation materials.

History.—ss. 10, 26, ch. 91-208; ss. 7, 19, ch. 94-287; s. 7, ch. 2001-214.

496.412 Disclosure requirements and duties of professional solicitors.—

(1) A professional solicitor must comply with and be responsible for complying or causing compliance with the following disclosures:

(a) Prior to orally requesting a contribution, or contemporaneously with a written request for a contribution, a professional solicitor must clearly disclose:

1. The name of the professional solicitor as on file with the department.

2. If the individual acting on behalf of the professional solicitor identifies himself or herself by name, the individual’s legal name.

3. The name and state of the principal place of business of the charitable organization or sponsor and a description of how the contributions raised by the solicitation will be used for a charitable or sponsor purpose; or, if there is no charitable organization or sponsor, a description as to how the contributions raised by the solicitation will be used for a charitable or sponsor purpose.

(b) In the case of a solicitation campaign conducted orally, whether by telephone or otherwise, any written confirmation, receipt, or reminder sent to any person who has contributed or has pledged to contribute, shall include a clear disclosure of the information required by paragraph (a).

(c) In addition to the information required by paragraph (a), any written confirmation, receipt, or reminder of contribution made pursuant to an oral solicitation and any written solicitation shall conspicuously state in capital letters:

(d) If requested by the person being solicited, the professional solicitor shall inform that person in writing, within 14 days of the request, of the fixed percentage of the gross revenue or the reasonable estimate of the percentage of the gross revenue that the charitable organization or sponsor will receive as a benefit from the solicitation campaign.

(e) If requested by the person being solicited, the professional solicitor shall inform that person in writing, within 14 days of the request, of the percentage of the contribution which may be deducted as a charitable contribution under federal income tax laws.

(2) A professional solicitor must not represent that tickets to any event will be donated for use by another person, unless the following requirements are complied with:

(a) The professional solicitor must have the written commitments from persons stating that they will accept donated tickets and specifying the number of tickets they are willing to accept.

(b) The written commitments are filed with the department prior to any solicitation.

(3) The contributions solicited for donated tickets must not be more than the amount representing the number of ticket commitments received from persons and filed with the department.

(4) At least 7 calendar days before the date of the event, the professional solicitor must give all donated tickets to each person that made the written commitment to accept them.

History.—ss. 11, 26, ch. 91-208; ss. 8, 19, ch. 94-287; s. 563, ch. 97-103.

496.413 Contributions solicited for or accepted on behalf of a named individual.—

(1) Contributions solicited for, or accepted by or on behalf of, a named individual must be deposited in a trust account opened by a trustee named in a properly established trust document or must be deposited in a depository established in accordance with s. 69.031. The circuit court has jurisdiction over the contributed funds placed in such depository accounts.

(2) Disbursements of contributions may be properly made from a trust account only upon written verification from the trustee that the disbursement is in furtherance of the purpose for which the funds were solicited, with documentation reflecting the identity of the proposed payee and the justification for the proposed payment. Disbursements of contributed funds from a depository account may be made only as allowed by the court. When a trust account is to be closed and a balance remains in that account in excess of the amount needed for the benefit of the named individual, such excess funds may be transferred to another trust account for the benefit of another named individual who is in the same or similar circumstances.

(3) Any person or organization that violates the provisions of subsection (1) or subsection (2) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—ss. 12, 26, ch. 91-208; ss. 15, 19, ch. 94-287.

496.414 Duties of commercial co-venturers.—

(1) Prior to the commencement of any charitable or sponsor sales promotion in this state conducted by a commercial co-venturer on behalf of a charitable organization or sponsor, the commercial co-venturer must obtain the written consent of the charitable organization or sponsor whose name will be used during the charitable or sponsor sales promotion.

(2) If determined to be essential to protect the public from fraudulent or deceptive advertising, the department may, in accordance with chapter 120, adopt rules requiring disclosure in advertising for a charitable or sponsor sales promotion of information relating to the portion or amount that will benefit the charitable organization or sponsor or the charitable purpose or sponsor purpose.

(3) A final accounting for each charitable or sponsor sales promotion must be prepared by the commercial co-venturer following the completion of the sales promotion. The final accounting must be provided to the charitable organization or sponsor on whose behalf the sales promotion was conducted within 10 days after a request by the charitable organization or sponsor. The final accounting must be kept by the commercial co-venturer for a period of 3 years, unless the commercial co-venturer and the charitable organization or sponsor mutually agree that the accounting should be kept by the charitable organization or sponsor instead of the commercial co-venturer. A copy of the final accounting must be provided to the department no later than 10 working days after the department requests it.

History.—ss. 13, 26, ch. 91-208; ss. 9, 19, ch. 94-287.

496.415 Prohibited acts.—It is unlawful for any person in connection with the planning, conduct, or execution of any solicitation or charitable or sponsor sales promotion to:

(1) Operate in violation of, or fail to comply with, the requirements of ss. 496.401-496.424.

(2) Knowingly file false or misleading information in any document required to be filed with the department or in response to any request or investigation by the department, the Department of Legal Affairs, or the State Attorney.

(3) Make misrepresentations or misleading statements to the effect that any other person or organization sponsors or endorses such solicitation, approves of its purpose, or is connected therewith, when that person or organization has not given written consent to the use of its name.

(4) Represent that the contribution is for or on behalf of a charitable organization or sponsor or to use any emblem, device, or printed matter belonging to or associated with a charitable organization or sponsor, without first being authorized in writing to do so by the charitable organization or sponsor.

(5) Use a name, symbol, emblem, device, service mark, or statement so closely related or similar to that used by another charitable organization or sponsor that the use thereof would mislead the public.

(6) Falsely state that he or she is a member of or represents a charitable organization or sponsor, or falsely state or represent that he or she is a member of or represents the United States Air Force, United States Army, United States Coast Guard, United States Marine Corps, United States Navy, the National Guard, or a law enforcement or emergency service organization.

(7) Misrepresent or mislead anyone by any manner, means, practice, or device whatsoever to believe that the person or organization on whose behalf the solicitation or sale is being conducted is a charitable organization or sponsor, or that any of the proceeds of the solicitation or sale will be used for charitable or sponsor purposes, if that is not the fact.

(8) Represent that a charitable organization or sponsor will receive a fixed or estimated percentage of the gross revenue from a solicitation campaign greater than that identified in filings with the department pursuant to ss. 496.401-496.424, or that a charitable organization or sponsor will receive an actual or estimated dollar amount or percentage per unit of goods or services purchased or used in the charitable or sponsor sales promotion that is greater than that agreed to by the commercial co-venturer and the charitable organization or sponsor.

(9) Use or exploit the fact of registration or the filing of any report with any governmental agency so as to lead any person to believe that such registration in any manner constitutes an endorsement or approval by the state. However, use of the statement required in s. 496.411(3) or s. 496.412(1)(c) is not a prohibited use or exploitation.

(10) Make misrepresentations or misleading statements to the effect that the donation of a contribution or the display of any sticker, emblem, or insignia offered to contributors will entitle such other person to any special treatment by emergency service employees or law enforcement officers in the performance of their official duties.

(11) Solicit contributions from another person or organization while wearing the uniform of an emergency service employee or law enforcement officer, or while on duty as an emergency service employee or law enforcement officer, except where the solicitation is for an organization exempt from federal income tax under s. 501(c)(3) of the Internal Revenue Code or except when soliciting contributions to benefit an emergency service employee or law enforcement officer who has been injured in the line of duty or to benefit the family or dependents of an emergency service employee or law enforcement officer who has been killed in the line of duty.

(12) Solicit contributions on behalf of another person or organization using any statement that the failure to make a contribution shall result in a reduced level of law enforcement services being provided to the public or the person solicited.

(13) Employ in any solicitation any device, scheme, or artifice to defraud or to obtain a contribution by means of any deception, false pretense, misrepresentation, or false promise.

(14) Notify any other person by any means, as part of an advertising scheme or plan, that the other person has won a prize, received an award, or has been selected or is eligible to receive anything of value if the other person is required to purchase goods or services, pay any money to participate in, or submit to a promotion effort.

(15) Fail to provide complete and timely payment to a charitable organization or sponsor of the proceeds from a solicitation campaign or a charitable or sponsor sales promotion.

(16) Fail to apply contributions in a manner substantially consistent with the solicitation.

(17) Fail to identify his or her professional relationship to the person for whom the solicitation is being made.

History.—ss. 14, 26, ch. 91-208; ss. 10, 19, ch. 94-287; s. 564, ch. 97-103; s. 1, ch. 2010-181.

496.416 Violation as deceptive or unfair trade practice.—Any person who commits an act or practice that violates any provision of ss. 496.401-496.424 commits an unfair or deceptive act or practice or unfair method of competition in violation of chapter 501, part II, and is subject to the penalties and remedies provided for such violation.

History.—ss. 15, 26, ch. 91-208; s. 19, ch. 94-287.

496.417 Criminal penalties.—Except as otherwise provided in ss. 496.401-496.424, and in addition to any administrative or civil penalties, any person who willfully and knowingly violates ss. 496.401-496.424 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For a second or subsequent conviction, such violation constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—ss. 16, 26, ch. 91-208; s. 19, ch. 94-287.

496.418 Records.—Each charitable organization, sponsor, professional fundraising consultant, and professional solicitor must keep for a period of at least 3 years true and accurate records as to its activities in this state which are covered by ss. 496.401-496.424. The records must be made available, without subpoena, to the department for inspection and must be furnished no later than 10 working days after requested.

History.—ss. 17, 26, ch. 91-208; ss. 11, 19, ch. 94-287.

496.419 Powers of the department.—

(1) The department may conduct an investigation of any person or organization whenever there is an appearance, either upon complaint or otherwise, that a violation of ss. 496.401-496.424 or s. 496.426 or of any rule adopted or of any order issued pursuant thereto has been committed or is about to be committed.

(2) The department may issue and serve subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation. The department, or its duly authorized representative, may administer oaths and affirmations to any person.

(3) In the event of substantial noncompliance with a subpoena or subpoena duces tecum issued or caused to be issued by the department, the department may petition the circuit court of the county in which the person subpoenaed resides or has its principal place of business for an order requiring the subpoenaed person to appear and testify and to produce such books, accounts, records, and other documents as are specified in the subpoena duces tecum. The court may grant injunctive relief restraining the person or organization from collecting contributions and such other relief, including, but not limited to, the restraint by injunction or appointment of a receiver, or any transfer, pledge, assignment, or other disposition of the person’s or organization’s assets, or any concealment, alteration, destruction, or other disposition of subpoenaed books, accounts, records, or other documents and materials as the court deems appropriate, until the person or organization has fully complied with the subpoena or subpoena duces tecum and the department has completed its investigation or examination. The court may also order the person or organization to produce a financial statement that has been audited by an independent certified public accountant. The department is entitled to the summary procedure provided in s. 51.011. Costs incurred by the department to obtain an order granting, in whole or in part, a petition for enforcement of a subpoena or subpoena duces tecum shall be taxed against the subpoenaed person or organization, and failure to comply with such order shall be contempt of court.

(4) The department may enter an order imposing one or more of the penalties set forth in subsection (5) if the department finds that a charitable organization, sponsor, professional fundraising consultant, or professional solicitor, or an agent, servant, or employee thereof has:

(a) Violated or is operating in violation of any of the provisions of ss. 496.401-496.424 or s. 496.426 or of the rules adopted or orders issued thereunder;

(b) Made a material false statement in an application, statement, or report required to be filed under ss. 496.401-496.424 or s. 496.426;

(c) Refused or failed, or any of its principal officers has refused or failed, after notice, to produce any records of such organization or to disclose any information required to be disclosed under ss. 496.401-496.424 or s. 496.426 or the rules of the department; or

(d) Made a material false statement in response to any request or investigation by the department, the Department of Legal Affairs, or the State Attorney.

(5) Upon a finding as set forth in subsection (4), the department may enter an order doing one or more of the following:

(a) Issuing a notice of noncompliance pursuant to s. 120.695;

(b) Issuing a cease and desist order that directs that the person cease and desist specified fundraising activities;

(d) Placing the registrant on probation for a period of time, subject to such conditions as the department may specify;

(e) Canceling an exemption granted under s. 496.406; and

(f) Imposing an administrative fine not to exceed $1,000 for each act or omission which constitutes a violation of ss. 496.401-496.424 or s. 496.426 or a rule or order.

With respect to a s. 501(c)(3) organization, the penalty imposed pursuant to this subsection shall not exceed $500 per violation. The penalty shall be the entire amount per violation and is not to be interpreted as a daily penalty.

(6) Except as otherwise provided in this section, the administrative proceedings that could result in the entry of an order imposing any of the penalties specified in subsection (5) are governed by chapter 120, except that the applicable provisions and time limits specified in s. 496.405(7), s. 496.409(6), or s. 496.410(5) apply if the department determines that a registration should be refused.

(7) The department may forward an investigative report and supporting documentation of any investigation conducted pursuant to this section to the Department of Legal Affairs. The report must identify any administrative actions that are proposed or have been commenced by the department in accordance with subsection (4).

(8) The department shall report any criminal violation of ss. 496.401-496.424 or s. 496.426 to the proper prosecuting authority for prompt prosecution.

(9) All fines collected by the department under subsection (5) must be paid into the General Inspection Trust Fund.

History.—ss. 18, 26, ch. 91-208; ss. 12, 19, ch. 94-287; s. 8, ch. 95-372; s. 2, ch. 97-250; s. 4, ch. 2001-351.

496.420 Civil remedies and enforcement.—

(1) In addition to other remedies authorized by law, the department may bring a civil action in circuit court to enforce ss. 496.401-496.424 or s. 496.426. Upon a finding that any person has violated any of these sections, a court may make any necessary order or enter a judgment including, but not limited to, a temporary or permanent injunction, a declaratory judgment, the appointment of a general or special magistrate or receiver, the sequestration of assets, the reimbursement of persons from whom contributions have been unlawfully solicited, the distribution of contributions in accordance with the charitable or sponsor purpose expressed in the registration statement or in accordance with the representations made to the person solicited, the reimbursement of the department for investigative costs, attorney’s fees and costs, and any other equitable relief the court finds appropriate. Upon a finding that any person has violated any provision of ss. 496.401-496.424 or s. 496.426 with actual knowledge or knowledge fairly implied on the basis of objective circumstances, a court may enter an order imposing a civil penalty in an amount not to exceed $10,000 per violation.

(2) The department may conduct any investigation necessary to bring a civil action under this section including, but not limited to, administering oaths and affirmations, subpoenaing witnesses or material, and collecting evidence.

(3) The department may terminate an investigation or an action upon acceptance of a person’s written assurance of voluntary compliance with ss. 496.401-496.424 or s. 496.426. Acceptance of an assurance may be conditioned on commitment to reimburse donors or to take other appropriate corrective action. An assurance is not evidence of a prior violation of any of these sections. However, unless an assurance has been rescinded by agreement of the parties or voided by a court for good cause, subsequent failure to comply with the terms of an assurance is prima facie evidence of a violation of one or more of these sections.

(4) All moneys, including, but not limited to, civil penalties and attorney’s fees and costs, collected pursuant to this section and s. 496.416, shall be paid into the General Inspection Trust Fund.

History.—ss. 19, 26, ch. 91-208; ss. 13, 19, ch. 94-287; s. 3, ch. 97-250; s. 5, ch. 99-307; s. 88, ch. 2004-11.

496.421 More stringent local provisions not preempted by ss. 496.401-496.424.—Sections 496.401-496.424 do not preempt more stringent county or municipal provisions or restrict local units of government from adopting more stringent provisions, and, in such case, such provisions must be complied with if the registrant desires to solicit within the geographic district of such local unit of government.

History.—ss. 20, 26, ch. 91-208; s. 19, ch. 94-287.

496.422 Duties of the Department of State.—The Department of State shall include in the materials it sends to persons or organizations seeking to register as nonprofit corporations, pursuant to chapter 617, and include with the annual report notice to be filed with the Department of State each year, a notice of the registration and disclosure requirements of ss. 496.401-496.424.

History.—ss. 21, 26, ch. 91-208; ss. 14, 19, ch. 94-287.

496.423 Public information; annual report.—

(1) The department shall develop a public information program, which should include a plan to distribute information to the public, to further the purposes of ss. 496.401-496.424.

(2) The purpose of the program is to help the public recognize unlawful, misleading, deceptive, or fraudulent solicitations and make knowledgeable, informed decisions concerning contributions.

(3) The program shall include information concerning:

(a) The laws governing solicitations, including registration and disclosure requirements, prohibited acts, and penalties;

(b) The means by which the public can report suspected violations or file a complaint;

(c) Information on how trust accounts for named individuals may be established and issues that should be considered in the establishment of trust accounts for named individuals, including the necessity of securing a tax identification number from the Internal Revenue Service before opening an account; and

(d) Any other information the department believes will assist the public in making knowledgeable and informed decisions concerning contributions.

(4) The department shall prepare an annual public report to be submitted to the Governor, the President of the Senate, the Speaker of the House of Representatives, the Commissioner of Agriculture, and the Attorney General summarizing such information filed under ss. 496.401-496.424 which the department determines will assist the public in making informed and knowledgeable decisions concerning contributions. The report must include the following:

(a) A list of complaints filed for which violations were found to have occurred in each of the following categories: charitable organizations, sponsors, professional solicitors, and professional fundraising consultants.

(b) A list of the number of investigations by the department, and enforcement actions commenced under ss. 496.401-496.424 and the disposition of those actions.

(c) A list of those charitable organizations and sponsors which have voluntarily submitted an audited financial statement pursuant to s. 496.407 or an audit with an opinion prepared by an independent certified public accountant.

History.—ss. 22, 26, ch. 91-208; ss. 16, 19, ch. 94-287.

496.424 Rulemaking authority.—The department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of ss. 496.401-496.424 or s. 496.426.

History.—ss. 23, 26, ch. 91-208; ss. 17, 19, ch. 94-287; s. 4, ch. 97-250; s. 166, ch. 98-200.

496.425 Solicitation of funds within public transportation facilities.—

(1) As used in this section:

(a) “Authority” means this state or any agency thereof, a county or municipality, or any entity established by law for the purpose of operating a public transportation facility.

(b) “Facility” means any public transportation facility, including, but not limited to, railroad stations, bus stations, ship ports, ferry terminals, roadside welcome stations, highway service plazas, airports served by scheduled passenger service, or highway rest stations.

(2) Any person desiring to solicit funds within a facility shall first obtain a written permit therefor from the authority responsible for the administration of the facility.

(a) An application in writing for such permit shall be submitted to the authority and shall set forth:

1. The full name, mailing address, and telephone number of the person or organization sponsoring, promoting, or conducting the proposed activities;

2. The full name, mailing address, and telephone number of each person who will participate in such activities and of the person who will have supervision of and responsibility for the proposed activities;

3. A description of the proposed activities indicating the type of communication to be involved;

4. The dates on and the hours during which the activities are proposed to be carried out and the expected duration of the proposed activities; and

5. The number of persons to be engaged in such activities.

(b) The authority may require an applicant to include such information which it determines is reasonably necessary to identify the organization or persons involved.

(c) The organization sponsoring the proposed activities shall attach to the application a copy of the consumer certificate of exemption issued to such organization by the Department of Revenue.

(3) The authority shall promptly issue the permit upon receipt, and any necessary verification, of proper application. The authority may effectuate appropriate restrictions on the hours and location of such activities and the number of solicitors involved, in keeping with the intended operation of the facility. The permit shall specifically designate the area or areas where solicitation of funds is permitted. Such permit shall be valid for a period of 1 year, except as otherwise provided in subsection (10). Any appeal from a denial of an application shall be handled on an expedited basis.

(4)(a) Solicitation of funds shall be conducted only from within the specific areas designated by the authority for this purpose.

(b) The activities shall be conducted only in or upon those premises which are nonsecured, public use areas. They shall not be conducted:

1. In any area reserved for a particular use, such as a parking area, restroom facility, restaurant, ticket counter, or baggage claim area.

2. Within any area leased exclusively to a tenant by the authority operating the facility.

3. Within 10 feet of main door areas.

4. Within 50 feet of an airport security check area.

(5) The person or organization receiving a permit shall notify the authority, at least 3 days prior to undertaking any solicitation for which the permit was granted, of intent to undertake such solicitation. The notice shall name the individual solicitors, the area, and the time period, not to exceed 1 week, during which solicitation will be conducted. The same 3-day advance notice shall be given for subsequent periods.

(6) Each individual solicitor shall display prominently on her or his person a badge or insignia, provided by the solicitor and approved by the authority, bearing the signature of a responsible officer of the authority and that of the solicitor and describing the solicitor by name, age, height, weight, eye color, hair color, address, and principal occupation and indicating the name of the organization for which funds are solicited.

(7)(a) In conducting the activities, no person shall:

1. In any way obstruct, delay, or interfere with the free movements of any other person; seek to coerce or physically disturb any other person; or hamper or impede the conduct of any authorized business at the facility;

2. Use any sound or voice-amplifying apparatus on the premises of the facility;

3. Solicit or accept any donation of money except in accordance with paragraph (4)(a);

4. Use any drum, bell, tambourine, horn, or other noisemaking device;

5. In any way indicate to the public that she or he is a representative of the facility; or

6. Misrepresent her or his identity.

(b) The authority shall adopt rules governing the activities of persons or organizations obtaining such permits.

(8) A facility manager or her or his authorized representative may declare an emergency because of unusually congested conditions in a facility due to adverse weather, schedule interruptions, or extremely heavy traffic movements or for emergency security measures. In the event of an emergency, an announcement to this effect shall be made. Any person soliciting contributions shall immediately cease such activities for the duration of the emergency.

(9) This section shall not be deemed to repeal, modify, or affect any rules adopted by authorities prior to October 1, 1981, relative to access to public areas at airports by persons seeking to solicit funds. Such authorities shall be relieved from complying with the provisions hereof.

(10) The authority may suspend or revoke the permit held by any person for good cause shown. Such good cause includes, but is not limited to:

(a) Violation of a material restriction imposed by the authority.

(b) Continued, substantial complaints from the public about harassment.

(d) Fraud or misrepresentation in any application.

A suspension shall not exceed a period of 6 months. If a permit has been revoked, a new permit may not be issued to the person or organization for 6 months after the revocation. Any hearing on a suspension or revocation shall be held within 60 days after request for such a hearing.

(11) A person who solicits funds in violation of any of the provisions of this section is guilty of a misdemeanor of the second degree, punishable by fine as provided in s. 775.083. Upon a second or subsequent conviction, such person is guilty of a misdemeanor of the first degree, punishable by fine as provided in s. 775.083.

History.—ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, ch. 81-112; ss. 36, 41, ch. 84-310; s. 2, ch. 89-205; s. 24, ch. 91-208; s. 4, ch. 91-429; s. 565, ch. 97-103.

Note.—Former s. 496.40; s. 496.008.

496.4255 Public airport not required to grant permit or access.—Notwithstanding s. 496.425, a governmental entity or authority that owns or operates an airport, as defined in s. 332.01, may not be required to issue a permit or grant any person access to airport property for the purpose of soliciting funds.

History.—s. 60, ch. 96-323.

496.426 Registration and solicitation requirements.—

(1) In addition to the other requirements of this chapter, a sponsor is eligible to register and solicit contributions in this state only if the sponsor is a bona fide membership organization that consists of members:

(a) Who are individuals;

(b) Of whom at least 10 percent or 100 members, whichever is less, are actively employed as law enforcement officers or emergency service employees by an agency of the United States, this state, a municipality, or a political subdivision of this state; and

(c) Who personally sign written membership agreements with the organization and pay an annual membership fee of not less than $10 a member.

(2) In addition to the other requirements of this chapter, the registration statement of a sponsor must state the total number of members of the sponsor; the total number of members who are actively employed as law enforcement officers or emergency service employees; and the percentage of total net contributions, defined as the total amount of all contributions raised in the state minus the total cost and expenses incurred in raising contributions solicited, which are disbursed in the state on behalf of its members in furtherance of its stated purposes or programs.

(3) A group or person that is or holds itself out to be soliciting contributions by the use of any name that implies that the group or person is in any way affiliated with or organized for the benefit of emergency service employees or law enforcement officers and fails to meet the membership criteria established in this section is presumed to be in violation of s. 496.415(7).

(4) If any provision of this section or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of this section or the Solicitation of Contributions Act, ss. 496.401-496.424, which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared severable.

History.—s. 18, ch. 94-287.