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2011 Florida Statutes
Chapter 817
FRAUDULENT PRACTICES
FRAUDULENT PRACTICES
CHAPTER 817
FRAUDULENT PRACTICES
PART I
FALSE PRETENSES AND FRAUDS, GENERALLY(ss. 817.02-817.569)
PART II
CREDIT CARD CRIMES(ss. 817.57-817.685)
PART III
CREDIT SERVICE ORGANIZATIONS(ss. 817.7001-817.706)
PART IV
CREDIT COUNSELING SERVICES(ss. 817.801-817.806)
PART I
FALSE PRETENSES AND FRAUDS,GENERALLY
817.02 Obtaining property by false personation.
817.021 False information to obtain a seaport security identification card.
817.025 Home or private business invasion by false personation; penalties.
817.03 Making false statement to obtain property or credit.
817.031 Making false statements; venue of prosecution.
817.034 Florida Communications Fraud Act.
817.037 Fraudulent refunds.
817.05 False statements to merchants as to financial condition.
817.06 Misleading advertisements prohibited; penalty.
817.061 Misleading solicitation of payments prohibited.
817.08 Receiving money or property upon false promises of services as seaman or sponge fisher.
817.11 Obtaining property by fraudulent promise to furnish inside information.
817.12 Penalty for violation of s. 817.11.
817.13 Paraphernalia as evidence of violation of s. 817.11.
817.14 Procuring assignments of produce upon false representations.
817.15 Making false entries, etc., on books of corporation.
817.155 Matters within jurisdiction of Department of State; false, fictitious, or fraudulent acts, statements, and representations prohibited; penalty; statute of limitations.
817.16 False reports, etc., by officers of banks, trust companies, etc., with intent to defraud.
817.17 Wrongful use of city name.
817.18 Wrongful stamping, marking, etc.; penalty.
817.19 Fraudulent issue of certificate of stock of corporation.
817.20 Issuing stock or obligation of corporation beyond authorized amount.
817.21 Books to be evidence in such cases.
817.22 Making false invoice to defraud insurer.
817.23 Making false affidavit to defraud insurer.
817.233 Burning to defraud the insurer.
817.234 False and fraudulent insurance claims.
817.2341 False or misleading statements or supporting documents; penalty.
817.235 Personal property; removing or altering identification marks.
817.236 False and fraudulent motor vehicle insurance application.
817.2361 False or fraudulent proof of motor vehicle insurance.
817.24 Unlawful to add or alter or deface existing brand.
817.25 Fraudulently marking or branding.
817.26 Fraudulently changing marks on animal.
817.28 Fraudulent obtaining of property by gaming.
817.29 Cheating.
817.30 Punishment for unlawful use of badge of certain orders and organizations.
817.31 Unlawful use of insignia of American Legion; penalty.
817.311 Unlawful use of badges, etc.
817.312 Unlawful use of uniforms, medals, or insignia.
817.32 Fraudulent operation of coin-operated devices.
817.33 Manufacture, etc., of slugs to be used in coin-operated devices prohibited.
817.34 False entries and statements by investment companies offering stock or security for sale.
817.35 Sale of cemetery lots or mausoleum space; promises.
817.355 Fraudulent creation or possession of admission ticket.
817.357 Purchase of tickets.
817.36 Resale of tickets.
817.361 Resale of multiday or multievent ticket.
817.37 Touting; defining; providing punishment; ejection from racetracks.
817.38 Simulated process.
817.39 Simulated forms of court or legal process, or official seal or stationery; publication, sale or circulation unlawful; penalty.
817.40 False, misleading and deceptive advertising and sales; definitions.
817.41 Misleading advertising prohibited.
817.411 False information; advertising.
817.4115 False, deceptive, or misleading advertisement of live musical performances.
817.412 Sale of used goods as new; penalty.
817.413 Sale of used motor vehicle goods as new; penalty.
817.415 Florida Free Gift Advertising Law.
817.416 Franchises and distributorships; misrepresentations.
817.43 Exemption.
817.44 Intentional false advertising prohibited.
817.45 Penalty.
817.47 Insurance advertising exempt.
817.481 Credit cards; obtaining goods by use of false, expired, etc.; penalty.
817.482 Possessing or transferring device for theft of telecommunications service; concealment of destination of telecommunications service.
817.4821 Cellular telephone counterfeiting offenses.
817.483 Transmission or publication of information regarding schemes, devices, means, or methods for theft of communication services.
817.484 Obtaining telephone calling records by fraudulent means prohibited.
817.487 Telephone caller identification systems.
817.49 False reports of commission of crimes; penalty.
817.50 Fraudulently obtaining goods, services, etc., from a health care provider.
817.505 Patient brokering prohibited; exceptions; penalties.
817.51 Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud.
817.52 Obtaining vehicles with intent to defraud, failing to return hired vehicle, or tampering with mileage device of hired vehicle.
817.53 False charges for radio and television repairs and parts; penalty.
817.54 Obtaining of mortgage, mortgage note, promissory note, etc., by false representation.
817.545 Mortgage fraud.
817.55 Tourist attraction advertisement; misleading use of the word “free.”
817.554 Fraudulently offering for sale tour or travel-related services.
817.558 Water-treatment devices.
817.561 Violations may be enjoined.
817.5615 Marks required on optical discs; prohibited acts; penalties.
817.562 Fraud involving a security interest.
817.5621 Unlawful subleasing of a motor vehicle.
817.563 Controlled substance named or described in s. 893.03; sale of substance in lieu thereof.
817.564 Imitation controlled substances defined; possession and distribution prohibited.
817.565 Urine testing, fraudulent practices; penalties.
817.566 Misrepresentation of association with, or academic standing at, postsecondary educational institution.
817.568 Criminal use of personal identification information.
817.5681 Breach of security concerning confidential personal information in third-party possession; administrative penalties.
817.569 Criminal use of a public record or public records information; penalties.
817.02 Obtaining property by false personation.—Whoever falsely personates or represents another, and in such assumed character receives any property intended to be delivered to the party so personated, with intent to convert the same to his or her own use, shall be punished as if he or she had been convicted of larceny.
History.—s. 49, sub-ch. 4, ch. 1637, 1868; RS 2466; GS 3321; RGS 5156; CGL 7259; s. 1244, ch. 97-102.
817.021 False information to obtain a seaport security identification card.—A person who willfully and knowingly provides false information in obtaining or attempting to obtain a seaport security identification card commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 7, ch. 2006-193.
817.025 Home or private business invasion by false personation; penalties.—A person who obtains access to a home or private business by false personation or representation, with the intent to commit a felony, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If such act results in serious injury or death, it is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 1, ch. 91-133.
817.03 Making false statement to obtain property or credit.—Any person who shall make or cause to be made any false statement, in writing, relating to his or her financial condition, assets or liabilities, or relating to the financial condition, assets or liabilities of any firm or corporation in which such person has a financial interest, or for whom he or she is acting, with a fraudulent intent of obtaining credit, goods, money or other property, and shall by such false statement obtain credit, goods, money or other property, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 5134, 1903; RS 3322; s. 1, ch. 6869, 1915; RGS 5160; CGL 7263; s. 843, ch. 71-136; s. 1245, ch. 97-102.
817.031 Making false statements; venue of prosecution.—Prosecutions under s. 817.03 may be begun in the county where the statement was written, or purports to have been written.
History.—s. 2, ch. 5134, 1903; GS 3323; RGS 5161; CGL 7264.
Note.—Former s. 817.04.
817.034 Florida Communications Fraud Act.—
(1) LEGISLATIVE INTENT.—
(a) The Legislature recognizes that schemes to defraud have proliferated in the United States in recent years and that many operators of schemes to defraud use communications technology to solicit victims and thereby conceal their identities and overcome a victim’s normal resistance to sales pressure by delivering a personalized sales message.
(b) It is the intent of the Legislature to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes.
(2) SHORT TITLE.—This section may be cited as the “Florida Communications Fraud Act.”
(3) DEFINITIONS.—As used in this section, the term:
(a) “Communicate” means to transmit or transfer or to cause another to transmit or transfer signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio, electromagnetic, photoelectronic, or photooptical system.
(b) “Obtain” means temporarily or permanently to deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.
(c) “Property” means anything of value, and includes:
1. Real property, including things growing on, affixed to, or found in land;
2. Tangible or intangible personal property, including rights, privileges, interests, and claims; and
3. Services.
(d) “Scheme to defraud” means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.
(e) “Value” means value determined according to any of the following:
1.a. The market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
b. The value of a written instrument that does not have a readily ascertainable market value, in the case of an instrument such as a check, draft, or promissory note, is the amount due or collectible or is, in the case of any other instrument which creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation, the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
c. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner, suffered by reason of losing an advantage over those who do not know of or use the trade secret.
2. If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $300.
3. Amounts of value of separate properties obtained in one scheme to defraud, whether from the same person or from several persons, shall be aggregated in determining the grade of the offense under paragraph (4)(a).
(4) OFFENSES.—
(a) Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud, punishable as follows:
1. If the amount of property obtained has an aggregate value of $50,000 or more, the violator is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
2. If the amount of property obtained has an aggregate value of $20,000 or more, but less than $50,000, the violator is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. If the amount of property obtained has an aggregate value of less than $20,000, the violator is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who engages in a scheme to defraud and, in furtherance of that scheme, communicates with any person with intent to obtain property from that person is guilty, for each such act of communication, of communications fraud, punishable as follows:
1. If the value of property obtained or endeavored to be obtained by the communication is valued at $300 or more, the violator is guilty of a third degree felony, punishable as set forth in s. 775.082, s. 775.083, or s. 775.084.
2. If the value of the property obtained or endeavored to be obtained by the communication is valued at less than $300, the violator is guilty of a misdemeanor of the first degree, punishable as set forth in s. 775.082 or s. 775.083.
(c) Notwithstanding any contrary provisions of law, separate judgments and sentences for organized fraud under paragraph (a) and for each offense of communications fraud under paragraph (b) may be imposed when all such offenses involve the same scheme to defraud.
History.—s. 1, ch. 87-382.
817.037 Fraudulent refunds.—
(1) Any person who engages in a systematic, ongoing course of conduct to obtain a refund for merchandise from a business establishment by knowingly giving a false or fictitious name or address as his or her own or the name or address of any other person without that person’s knowledge and approval is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) In order for a person to be convicted under this section, a conspicuous notice must have been posted in the business establishment in the area where refunds are made, advising patrons of the provisions of this section and the penalties provided.
History.—s. 3, ch. 86-161; s. 193, ch. 91-224; s. 1246, ch. 97-102.
817.05 False statements to merchants as to financial condition.—Any merchant in the state, before extending credit to any person applying for the same, may require such applicant to furnish a statement in writing showing the property owned and the salary being earned by said applicant, and if said statement, or any part thereof, is false, provided the same be made willfully, and signed by applicant in presence of two witnesses, and any person obtains credit from any merchant by reason of the merchant relying on and being deceived by said false statement, or any part thereof, then said person so obtaining credit or goods shall be deemed guilty of obtaining money or goods under false pretenses and shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 19487, 1939; CGL 1940 Supp. 7264(1); s. 844, ch. 71-136.
817.06 Misleading advertisements prohibited; penalty.—
(1) No person, persons, association, copartnership, or institution shall, with intent to offer or sell or in anywise dispose of merchandise, securities, certificates, diplomas, documents, or other credentials purporting to reflect proficiency in any trade, skill, profession, credits for academic achievement, service or anything offered by such person, persons, association, copartnership, corporation, or institution directly or indirectly, to the public, for sale or distribution or issuance, or with intent to increase the consumption or use thereof, or with intent to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, or ownership thereof, knowingly or intentionally make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated or circulated or placed before the public in this state in a newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such certificate, diploma, document, credential, academic credits, merchandise, security, service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading.
(2) Any person, persons, association, copartnership, corporation, or institution found guilty of a violation of subsection (1) shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 11827, 1927; CGL 7311, 7312; ss. 1, 2, ch. 57-410; s. 846, ch. 71-136.
Note.—Former s. 817.07.
817.061 Misleading solicitation of payments prohibited.—
(1) It is unlawful for any person, company, corporation, agency, association, partnership, institution, or charitable entity to solicit payment of money by another by means of a statement or invoice, or any writing that would reasonably be interpreted as a statement or invoice, for goods not yet ordered or for services not yet performed and not yet ordered, unless there appears on the face of the statement or invoice or writing in 30-point boldfaced type the following warning:
“This is a solicitation for the order of goods or services, and you are under no obligation to make payment unless you accept the offer contained herein.”
(2) Any person damaged by noncompliance with this section, in addition to other remedies, is entitled to damages in the amount equal to 3 times the sum solicited.
(3) Any person, company, corporation, agency, association, partnership, institution, or charitable entity that violates this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.
History.—ss. 1, 2, ch. 69-246; s. 845, ch. 71-136.
817.08 Receiving money or property upon false promises of services as seaman or sponge fisher.—Whoever enters into a written agreement with any master or owner of a vessel to perform certain services upon said vessel as seaman or sponge fisher for a contemplated voyage, and receives or accepts any money or goods, wares or merchandise, as advances or bounty for the performance of said services, and shall willfully and without just cause refuse to perform said services, or to go on said vessel at the time of the sailing of the same, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 5161, 1903; GS 3324; RGS 5162; CGL 7265; s. 847, ch. 71-136; s. 1247, ch. 97-102.
817.11 Obtaining property by fraudulent promise to furnish inside information.—No person shall defraud or attempt to defraud any individual out of any thing of value by assuming to have or be able to obtain any secret, advance or inside information regarding any person, transaction, act or thing, whether such person, transaction, act or thing exists or not.
History.—s. 1, ch. 8466, 1921; CGL 7308.
817.12 Penalty for violation of s. 817.11.—Any person guilty of violating the provisions of s. 817.11 shall be deemed guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 2, ch. 8466, 1921; CGL 7309; s. 848, ch. 71-136.
817.13 Paraphernalia as evidence of violation of s. 817.11.—All paraphernalia of whatsoever kind in possession of any person and used in defrauding or attempting to defraud as specified in s. 817.11 shall be held and accepted by any court of competent jurisdiction in this state as prima facie evidence of guilt.
History.—s. 3, ch. 8466, 1921; CGL 7310.
817.14 Procuring assignments of produce upon false representations.—Any person acting for himself or herself or another, who shall procure any consignment of produce grown in this state, to himself or herself or such other, for sale on commission or for other compensation by any knowingly false representation as to the prevailing market price at such time for such produce at the point to which it is consigned, or as to the price which such person for whom he or she is acting is at said time paying to other consignors for like produce at said place, or as to the condition of the market for such produce at such time and place, and any such person acting for another who shall procure any consignment for sale as aforesaid by false representation of authority to him or her by such other to make a guaranteed price to the consignor, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 5141, 1903; GS 3325; RGS 5163; CGL 7266; s. 849, ch. 71-136; s. 1248, ch. 97-102.
817.15 Making false entries, etc., on books of corporation.—Any officer, agent, clerk or servant of a corporation who makes a false entry in the books thereof, with intent to defraud, and any person whose duty it is to make in such books a record or entry of the transfer of stock, or of the issuing and canceling of certificates thereof, or of the amount of stock issued by such corporation, who omits to make a true record or entry thereof, with intent to defraud, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 47, ch. 1637, 1868; RS 2467; GS 3326; RGS 5164; CGL 7267; s. 850, ch. 71-136.
817.155 Matters within jurisdiction of Department of State; false, fictitious, or fraudulent acts, statements, and representations prohibited; penalty; statute of limitations.—A person may not, in any matter within the jurisdiction of the Department of State, knowingly and willfully falsify or conceal a material fact, make any false, fictitious, or fraudulent statement or representation, or make or use any false document, knowing the same to contain any false, fictitious, or fraudulent statement or entry. A person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The statute of limitations for prosecution of an act committed in violation of this section is 5 years from the date the act was committed.
History.—s. 52, ch. 87-99; s. 194, ch. 91-224; s. 26, ch. 2005-267.
817.16 False reports, etc., by officers of banks, trust companies, etc., with intent to defraud.—Any officer, director, agent or clerk of any bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the Office of Financial Regulation of the Financial Services Commission or formerly the Department of Banking and Finance, who willfully and knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the records of such bank, trust company, building and loan association, small loan licensee, credit union, or other corporation under the supervision of the Office of Financial Regulation or formerly the Department of Banking and Finance, or willfully and knowingly subscribes to or makes any false reports to the Office of Financial Regulation or subscribed to or made any such false report to the Department of Banking and Finance or causes to be published any false report, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 15876, 1933; CGL 1936 Supp. 7315(1); ss. 12, 35, ch. 69-106; s. 851, ch. 71-136; s. 1908, ch. 2003-261.
817.17 Wrongful use of city name.—No person or persons engaged in manufacturing in this state, shall cause to be printed, stamped, marked, engraved or branded, upon any of the articles manufactured by them, or on any of the boxes, packages, or bands containing such manufactured articles, the name of any city in the state, other than that in which said articles are manufactured; provided, that nothing in this section shall prohibit any person from offering for sale any goods having marked thereon the name of any city in Florida other than that in which said goods were manufactured, if there be no manufactory of similar goods in the city the name of which is used.
History.—s. 1, ch. 4145, 1893; GS 3327; RGS 5167; CGL 7270.
817.18 Wrongful stamping, marking, etc.; penalty.—
(1) No person shall knowingly sell or offer for sale, within the state, any manufactured articles which shall have printed, stamped, marked, engraved, or branded upon them, or upon the boxes, packages, or bands containing said manufactured articles, the name of any city in the state, other than that in which such articles were manufactured; provided, that nothing in this section shall prohibit any person from offering for sale any goods, having marked thereon the name of any city in Florida, other than that in which said goods are manufactured, if there be no manufactory of similar goods in the city the name of which is used.
(2) Any person violating the provisions of this or the preceding section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.
History.—s. 2, ch. 4145, 1893; GS 3328; RGS 5168; CGL 7271; s. 852, ch. 71-136.
817.19 Fraudulent issue of certificate of stock of corporation.—Any officer, agent, clerk or servant of a corporation, or any other person, who fraudulently issues or transfers a certificate of stock of a corporation to any person not entitled thereto, or fraudulently signs such certificate, in blank or otherwise, with the intent that it shall be so issued or transferred by himself or herself or any other person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 46, ch. 1637, 1868; RS 2468; GS 3329; RGS 5169; CGL 7272; s. 853, ch. 71-136; s. 1249, ch. 97-102.
817.20 Issuing stock or obligation of corporation beyond authorized amount.—Any officer, agent, clerk or servant of a corporation, or any other person, who issues, or signs with intent to issue, any certificate of stock in a corporation, or who issues, signs or endorses with intent to issue any bond, note, bill or other obligation or security in the name of such corporation, beyond the amount authorized by law, or limited by the legal votes of such corporation or its proper officers; or negotiates, transfers or disposes of such certificate, with intent to defraud, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 45, ch. 1637, 1868; RS 2469; GS 3330; RGS 5170; CGL 7273; s. 854, ch. 71-136.
817.21 Books to be evidence in such cases.—On the trial of any person under ss. 817.19 and 817.20 the books of any corporation to which such person has access or the right of access shall be admissible in evidence.
History.—s. 48, ch. 1637, 1868; RS 2470; GS 3331; RGS 5171; CGL 7274.
817.22 Making false invoice to defraud insurer.—If the owner of a ship or vessel or of property laden or pretended to be laden on board the same, or if any other person concerned in the lading or fitting out of a ship or vessel, makes out or exhibits, or causes to be made out or exhibited, a false or fraudulent invoice, bill of lading, bill or parcels or other false estimates of any goods or property laden or pretended to be laden, on board such ship or vessel, with intent to injure and defraud an insurer of such ship, vessel or property, or of any part thereof, he or she shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 72, ch. 1637, 1868; RS 2471; GS 3332; RGS 5172; CGL 7275; s. 7, ch. 22858, 1945; s. 855, ch. 71-136; s. 1250, ch. 97-102.
817.23 Making false affidavit to defraud insurer.—If a master, other officer, or mariner of a ship or vessel, makes or causes to be made, or swears to any false affidavit or protest, or if an owner or other person concerned in such ship or vessel or in the goods and property laden on board the same, procures any such false affidavits or protest to be made, or exhibits the same, with intent to injure, deceive or defraud an insurer of such ship or vessel, or of any goods or property laden on board the same, he or she shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 73, ch. 1637, 1868; RS 2472; GS 3333; RGS 5173; CGL 7276; s. 856, ch. 71-136; s. 1251, ch. 97-102.
817.233 Burning to defraud the insurer.—Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of himself or herself or of another, which shall at the time be insured by any person against loss or damage by fire, shall be 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. 15602, 1931; CGL 1936 Supp. 7208(12); s. 791, ch. 71-136; s. 65, ch. 74-383; s. 1252, ch. 97-102.
Note.—Former s. 806.06.
817.234 False and fraudulent insurance claims.—
(1)(a) A person commits insurance fraud punishable as provided in subsection (11) if that person, with the intent to injure, defraud, or deceive any insurer:
1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim;
2. Prepares or makes any written or oral statement that is intended to be presented to any insurer in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or
3.a. Knowingly presents, causes to be presented, or prepares or makes with knowledge or belief that it will be presented to any insurer, purported insurer, servicing corporation, insurance broker, or insurance agent, or any employee or agent thereof, any false, incomplete, or misleading information or written or oral statement as part of, or in support of, an application for the issuance of, or the rating of, any insurance policy, or a health maintenance organization subscriber or provider contract; or
b. Who knowingly conceals information concerning any fact material to such application.
(b) All claims and application forms shall contain a statement that is approved by the Office of Insurance Regulation of the Financial Services Commission which clearly states in substance the following: “Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of the third degree.” This paragraph shall not apply to reinsurance contracts, reinsurance agreements, or reinsurance claims transactions.
(2)(a) Any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, or other practitioner licensed under the laws of this state who knowingly and willfully assists, conspires with, or urges any insured party to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging by said physician, osteopathic physician, chiropractic physician, or practitioner, knowingly and willfully benefits from the proceeds derived from the use of such fraud, commits insurance fraud, punishable as provided in subsection (11). In the event that a physician, osteopathic physician, chiropractic physician, or practitioner is adjudicated guilty of a violation of this section, the Board of Medicine as set forth in chapter 458, the Board of Osteopathic Medicine as set forth in chapter 459, the Board of Chiropractic Medicine as set forth in chapter 460, or other appropriate licensing authority shall hold an administrative hearing to consider the imposition of administrative sanctions as provided by law against said physician, osteopathic physician, chiropractic physician, or practitioner.
(b) In addition to any other provision of law, systematic upcoding by a provider, as defined in s. 641.19(14), with the intent to obtain reimbursement otherwise not due from an insurer is punishable as provided in s. 641.52(5).
(3) Any attorney who knowingly and willfully assists, conspires with, or urges any claimant to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging on such attorney’s part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, commits insurance fraud, punishable as provided in subsection (11).
(4) Any person or governmental unit licensed under chapter 395 to maintain or operate a hospital, and any administrator or employee of any such hospital, who knowingly and willfully allows the use of the facilities of said hospital by an insured party in a scheme or conspiracy to fraudulently violate any of the provisions of this section or part XI of chapter 627 commits insurance fraud, punishable as provided in subsection (11). Any adjudication of guilt for a violation of this subsection, or the use of business practices demonstrating a pattern indicating that the spirit of the law set forth in this section or part XI of chapter 627 is not being followed, shall be grounds for suspension or revocation of the license to operate the hospital or the imposition of an administrative penalty of up to $5,000 by the licensing agency, as set forth in chapter 395.
(5) Any insurer damaged as a result of a violation of any provision of this section when there has been a criminal adjudication of guilt shall have a cause of action to recover compensatory damages, plus all reasonable investigation and litigation expenses, including attorneys’ fees, at the trial and appellate courts.
(6) For the purposes of this section, “statement” includes, but is not limited to, any notice, statement, proof of loss, bill of lading, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, X ray, test result, or other evidence of loss, injury, or expense.
(7)(a) It shall constitute a material omission and insurance fraud, punishable as provided in subsection (11), for any service provider, other than a hospital, to engage in a general business practice of billing amounts as its usual and customary charge, if such provider has agreed with the insured or intends to waive deductibles or copayments, or does not for any other reason intend to collect the total amount of such charge. With respect to a determination as to whether a service provider has engaged in such general business practice, consideration shall be given to evidence of whether the physician or other provider made a good faith attempt to collect such deductible or copayment. This paragraph does not apply to physicians or other providers who waive deductibles or copayments or reduce their bills as part of a bodily injury settlement or verdict.
(b) The provisions of this section shall also apply as to any insurer or adjusting firm or its agents or representatives who, with intent, injure, defraud, or deceive any claimant with regard to any claim. The claimant shall have the right to recover the damages provided in this section.
(c) An insurer, or any person acting at the direction of or on behalf of an insurer, may not change an opinion in a mental or physical report prepared under 1s. 627.736(8) or direct the physician preparing the report to change such opinion; however, this provision does not preclude the insurer from calling to the attention of the physician errors of fact in the report based upon information in the claim file. Any person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8)(a) It is unlawful for any person intending to defraud any other person to solicit or cause to be solicited any business from a person involved in a motor vehicle accident for the purpose of making, adjusting, or settling motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates the provisions of this paragraph commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person who is convicted of a violation of this subsection shall be sentenced to a minimum term of imprisonment of 2 years.
(b) A person may not solicit or cause to be solicited any business from a person involved in a motor vehicle accident by any means of communication other than advertising directed to the public for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736, within 60 days after the occurrence of the motor vehicle accident. Any person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) A lawyer, health care practitioner as defined in s. 456.001, or owner or medical director of a clinic required to be licensed pursuant to s. 400.9905 may not, at any time after 60 days have elapsed from the occurrence of a motor vehicle accident, solicit or cause to be solicited any business from a person involved in a motor vehicle accident by means of in person or telephone contact at the person’s residence, for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) Charges for any services rendered by any person who violates this subsection in regard to the person for whom such services were rendered are noncompensable and unenforceable as a matter of law.
(9) A person may not organize, plan, or knowingly participate in an intentional motor vehicle crash or a scheme to create documentation of a motor vehicle crash that did not occur for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits as required by s. 627.736. Any person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person who is convicted of a violation of this subsection shall be sentenced to a minimum term of imprisonment of 2 years.
(10) As used in this section, the term “insurer” means any insurer, health maintenance organization, self-insurer, self-insurance fund, or other similar entity or person regulated under chapter 440 or chapter 641 or by the Office of Insurance Regulation under the Florida Insurance Code.
(11) If the value of any property involved in a violation of this section:
(a) Is less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Is $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) Is $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(12) In addition to any criminal liability, a person convicted of violating any provision of this section for the purpose of receiving insurance proceeds from a motor vehicle insurance contract is subject to a civil penalty.
(a) Except for a violation of subsection (9), the civil penalty shall be:
1. A fine up to $5,000 for a first offense.
2. A fine greater than $5,000, but not to exceed $10,000, for a second offense.
3. A fine greater than $10,000, but not to exceed $15,000, for a third or subsequent offense.
(b) The civil penalty for a violation of subsection (9) must be at least $15,000 but may not exceed $50,000.
(c) The civil penalty shall be paid to the Insurance Regulatory Trust Fund within the Department of Financial Services and used by the department for the investigation and prosecution of insurance fraud.
(d) This subsection does not prohibit a state attorney from entering into a written agreement in which the person charged with the violation does not admit to or deny the charges but consents to payment of the civil penalty.
(13) As used in this section:
(a) “Property” means property as defined in s. 812.012.
(b) “Value” means value as defined in s. 812.012.
History.—s. 7, ch. 76-266; s. 36, ch. 77-468; s. 3, ch. 78-258; s. 1, ch. 79-81; s. 487, ch. 81-259; s. 9, ch. 83-28; s. 24, ch. 88-370; s. 41, ch. 91-110; s. 123, ch. 92-149; s. 8, ch. 95-340; s. 1253, ch. 97-102; s. 65, ch. 97-264; s. 298, ch. 98-166; s. 6, ch. 99-204; s. 11, ch. 2000-252; s. 7, ch. 2001-271; s. 1909, ch. 2003-261; s. 10, ch. 2003-411; s. 16, ch. 2006-305; s. 19, ch. 2011-174.
1Note.—Section 627.736(7) relates to mental and physical examination and related reports; subsection (8) relates to attorney′s fees.
Note.—Former s. 627.7375.
817.2341 False or misleading statements or supporting documents; penalty.—
(1) Any person who willfully files with the department or office, or who willfully signs for filing with the department or office, a materially false or materially misleading financial statement or document in support of such statement required by law or rule, with intent to deceive and with knowledge that the statement or document is materially false or materially misleading, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)(a) Any person who makes a false entry of a material fact in any book, report, or statement relating to a transaction of an insurer or entity organized pursuant to chapter 624 or chapter 641, intending to deceive any person about the financial condition or solvency of the insurer or entity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the false entry of a material fact is made with the intent to deceive any person as to the impairment of capital, as defined in s. 631.011(12), of the insurer or entity or is the significant cause of the insurer or entity being placed in conservation, rehabilitation, or liquidation by a court, the person commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3)(a) Any person who knowingly makes a material false statement or report to the department or office or any agent of the department or office, or knowingly and materially overvalues any property in any document or report prepared to be presented to the department or office or any agent of the department or office, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the material false statement or report or the material overvaluation is made with the intent to deceive any person as to the impairment of capital, as defined in s. 631.011(12), of an insurer or entity organized pursuant to chapter 624 or chapter 641, or is the significant cause of the insurer or entity being placed in receivership by a court, the person commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) As used in this section, the term:
(a) “Department” means the Department of Financial Services.
(b) “Office” means the Office of Insurance Regulation of the Financial Services Commission.
History.—s. 18, ch. 2002-25; s. 1910, ch. 2003-261.
817.235 Personal property; removing or altering identification marks.—
(1) Except as otherwise provided by law, any person who, with intent to prevent identification by the true owner, removes, erases, defaces, or otherwise alters any serial number or other mark of identification placed on any item of personal property by the manufacturer or owner thereof is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who possesses any item of personal property with the knowledge that the serial number or other mark of identification placed thereon by the manufacturer or owner thereof has been removed, erased, defaced, or otherwise altered with intent to prevent identification by the true owner is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 74-6.
817.236 False and fraudulent motor vehicle insurance application.—Any person who, with intent to injure, defraud, or deceive any motor vehicle insurer, including any statutorily created underwriting association or pool of motor vehicle insurers, presents or causes to be presented any written application, or written statement in support thereof, for motor vehicle insurance knowing that the application or statement contains any false, incomplete, or misleading information concerning any fact or matter material to the application commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 49, ch. 90-119; s. 11, ch. 2003-411.
817.2361 False or fraudulent proof of motor vehicle insurance.—Any person who, with intent to deceive any other person, creates, markets, or presents a false or fraudulent proof of motor vehicle insurance commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 12, ch. 2003-411; s. 17, ch. 2006-305.
817.24 Unlawful to add or alter or deface existing brand.—It is unlawful for anyone to add to or alter or deface any existing brand on any animal not his or her own or without the consent of the owner, with a fraudulent intent to claim the same, any bar, letter, figure, or character of any kind. Any violation of this section shall be a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—ss. 1, 3, ch. 4734, 1899; GS 3334; RGS 5174; CGL 7277; s. 857, ch. 71-136; s. 1254, ch. 97-102.
817.25 Fraudulently marking or branding.—Whoever shall fraudulently mark or brand any unmarked or unbranded animal with the intent to claim the same or to prevent identification by the true owner or owners thereof, shall be punished as provided in s. 817.24.
History.—s. 4, ch. 4734, 1899; GS 3335; RGS 5175; CGL 7278.
817.26 Fraudulently changing marks on animal.—If any person shall fraudulently alter or change the marks of any animal, not his or her own, with intent to claim the same or to prevent identification by the true owner thereof, the person so offending shall be 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. 5663, 1907; RGS 5176; CGL 7279; s. 858, ch. 71-136; s. 1255, ch. 97-102.
817.28 Fraudulent obtaining of property by gaming.—Whoever, by the game of three-card monte, so-called, or any other game, device, sleight-of-hand, pretensions to fortunetelling, or other means whatever by the use of cards or other implement or implements, fraudulently obtains from another person property of any description, shall be punished as if he or she had been convicted of larceny.
History.—s. 53, ch. 1637, 1868; RS 2473; GS 3343; RGS 5186; CGL 7289; s. 1256, ch. 97-102.
817.29 Cheating.—Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 54, ch. 1637, 1868; RS 2475; GS 3344; RGS 5187; CGL 7290; s. 860, ch. 71-136.
817.30 Punishment for unlawful use of badge of certain orders and organizations.—Any person who willfully wears the badge or button of the Grand Army of the Republic, the insignia, badge or rosette of the Military Order of the Loyal Legion of the United States, or of the Military Order of Foreign Wars of the United States, or of the Patrons of Husbandry, or the Benevolent and Protective Order of Elks of the United States of America, or of the Woodmen of the World, or of any society, order or organization of 5 years’ standing in the state, or uses the same to obtain aid or assistance within this state, or willfully uses the name of such society, order or organization, the titles of its officers, or its insignia, ritual or ceremonies, unless entitled to use or wear the same under the constitution and bylaws, rules and regulations of such order or of such society, order or organization, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 6502, 1913; RGS 5197; CGL 7300; s. 862, ch. 71-136.
817.31 Unlawful use of insignia of American Legion; penalty.—Any person who willfully wears the badge, button or other insignia of the American Legion shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, that the provisions of this section shall not apply to any member of the American Legion.
History.—s. 1, ch. 8464, 1921; CGL 7301; s. 861, ch. 71-136.
817.311 Unlawful use of badges, etc.—
(1) From and after May 9, 1949, any person who shall wear or display a badge, button, insignia or other emblem, or shall use the name of or claim to be a member of any benevolent, fraternal, social, humane, or charitable organization, which organization is entitled to the exclusive use of such name and such badge, button, insignia or emblem either in the identical form or in such near resemblance thereto as to be a colorable imitation thereof, unless such person is entitled so to do under the laws, rules and regulations of such organization, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) This section shall be cumulative to any and all laws now in force in the state.
History.—s. 1, ch. 25025, 1949; s. 863, ch. 71-136.
817.312 Unlawful use of uniforms, medals, or insignia.—
(1) A person may not misrepresent himself or herself as a member or veteran of the United States Air Force, United States Army, United States Coast Guard, United States Marine Corps, United States Navy, or National Guard and wear the uniform of or any medal or insignia authorized for use by members or veterans of the United States Air Force, United States Army, United States Coast Guard, United States Marine Corps, United States Navy, or the National Guard while soliciting for charitable contributions.
(2) A person who violates subsection (1) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 2, ch. 2010-181.
817.32 Fraudulent operation of coin-operated devices.—Any person who shall operate or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated, any automatic vending machine, slot machine, coinbox telephone, or other receptacle designed to receive lawful coin of the United States in connection with the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated, or foreign coin, or by any means, method, trick, or device whatsoever not lawfully authorized by the owner, lessee, or licensee of such machine, coinbox telephone or receptacle, or who shall take, obtain or receive from or in connection with any automatic vending machine, slot machine, coinbox telephone or other receptacle designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service, or of any musical instrument, phonograph, or other property, without depositing in and surrendering to such machine, coinbox telephone or receptacle lawful coin of the United States to the amount required therefor by the owner, lessee, or licensee of such machine, coinbox telephone or receptacle, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 12267, 1927; CGL 7313; s. 864, ch. 71-136.
817.33 Manufacture, etc., of slugs to be used in coin-operated devices prohibited.—Any person who, with intent to cheat or defraud the owner, lessee, licensee, or other person entitled to the contents of any automatic vending machine, slot machine, coinbox telephone or other receptacle, depository, or contrivance designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, or who, knowing that the same is intended for unlawful use, shall manufacture for sale, or sell or give away any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coinbox telephone or other such receptacle, depository or contrivance, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 2, ch. 12267, 1927; CGL 7314; s. 865, ch. 71-136.
817.34 False entries and statements by investment companies offering stock or security for sale.—Any person who shall knowingly subscribe to or make or cause to be made, any false statements or false entry in any book of any investment company or exhibit any false paper with the intention of deceiving any person authorized to examine into the affairs of any investment company, or shall make, utter or publish any false statement of the financial condition of any investment company, or the stock, bonds or other securities by it offered for sale, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 9, ch. 6422, 1913; RGS 5748; CGL 7975; s. 866, ch. 71-136.
817.35 Sale of cemetery lots or mausoleum space; promises.—
(1) It shall be unlawful for any person, firm or corporation, to sell, offer for sale, or advertise for sale, cemetery lots or mausoleum space, upon the guarantee, promise, representation or inducement to the purchaser that the same may be sold or repurchased at a financial profit.
(2) Any violation of this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 22080, 1943; s. 7B, ch. 24337, 1947; s. 867, ch. 71-136.
817.355 Fraudulent creation or possession of admission ticket.—Any person who counterfeits, forges, alters, or possesses any ticket, token, or paper designed for admission to or the rendering of services by any sports, amusement, concert, or other facility offering services to the general public, with the intent to defraud such facility, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 84-297; s. 195, ch. 91-224.
817.357 Purchase of tickets.—Whoever knowingly purchases from the original ticket seller a quantity of tickets to an event which exceeds the maximum ticket limit quantity posted by or on behalf of the original ticket seller at the point of original sale or printed on the tickets themselves and intends to resell such tickets violates ss. 501.201-501.213, the Florida Deceptive and Unfair Trade Practices Act. A person or firm is not liable under this section with respect to tickets for which that person or firm is the original ticket seller. For purposes of this section, the term “original ticket seller” means the issuer of such ticket or a person or firm who provides distribution services or ticket sales services under a contract with such issuer.
History.—s. 2, ch. 2006-105.
817.36 Resale of tickets.—
(1) A person or entity that offers for resale or resells any ticket may charge only $1 above the admission price charged therefor by the original ticket seller of the ticket for the following transactions:
(a) Passage or accommodations on any common carrier in this state. However, this paragraph does not apply to travel agencies that have an established place of business in this state and are required to pay state, county, and city occupational license taxes.
(b) Multiday or multievent tickets to a park or entertainment complex or to a concert, entertainment event, permanent exhibition, or recreational activity within such a park or complex, including an entertainment/resort complex as defined in s. 561.01(18).
(c) Event tickets originally issued by a charitable organization exempt from taxation under s. 501(c)(3) of the Internal Revenue Code for which no more than 3,000 tickets are issued per performance. The charitable organization must issue event tickets with the following statement conspicuously printed on the face or back of the ticket: “Pursuant to s. 817.36, Florida Statutes, this ticket may not be resold for more than $1 over the original admission price.” This paragraph does not apply to tickets issued or sold by a third party contractor ticketing services provider on behalf of a charitable organization otherwise included in this paragraph unless the required disclosure is printed on the ticket.
(d) Any tickets, other than the tickets in paragraph (a), paragraph (b), or paragraph (c), that are resold or offered through an Internet website, unless such website is authorized by the original ticket seller or makes and posts the following guarantees and disclosures through Internet web pages on which are visibly posted, or links to web pages on which are posted, text to which a prospective purchaser is directed before completion of the resale transaction:
1. The website operator guarantees a full refund of the amount paid for the ticket including any servicing, handling, or processing fees, if such fees are not disclosed, when:
a. The ticketed event is canceled;
b. The purchaser is denied admission to the ticketed event, unless such denial is due to the action or omission of the purchaser;
c. The ticket is not delivered to the purchaser in the manner requested and pursuant to any delivery guarantees made by the reseller and such failure results in the purchaser’s inability to attend the ticketed event.
2. The website operator discloses that it is not the issuer, original seller, or reseller of the ticket or items and does not control the pricing of the ticket or items, which may be resold for more than their original value.
(2) This section does not authorize any individual or entity to sell or purchase tickets at any price on property where an event is being held without the prior express written consent of the owner of the property.
(3) Any sales tax due for resales under this section shall be remitted to the Department of Revenue in accordance with s. 212.04.
(4) A person who knowingly resells a ticket or tickets in violation of this section is liable to the state for a civil penalty equal to treble the amount of the price for which the ticket or tickets were resold.
(5) A person who intentionally uses or sells software to circumvent on a ticket seller’s Internet website a security measure, an access control system, or any other control or measure that is used to ensure an equitable ticket-buying process is liable to the state for a civil penalty equal to treble the amount for which the ticket or tickets were sold.
(6) As used in this section, the term “software” means computer programs that are primarily designed or produced for the purpose of interfering with the operation of any person or entity that sells, over the Internet, tickets of admission to a sporting event, theater, musical performance, or place of public entertainment or amusement of any kind.
History.—ss. 1, 1a, ch. 22726, 1945; s. 868, ch. 71-136; s. 7, ch. 90-231; s. 9, ch. 95-314; s. 3, ch. 2006-105; s. 152, ch. 2007-5; s. 4, ch. 2009-179; s. 123, ch. 2010-5.
817.361 Resale of multiday or multievent ticket.—Whoever offers for sale, sells, or transfers in connection with a commercial transaction, with or without consideration, any nontransferable ticket or other nontransferable medium designed for admission to more than one amusement location or other facility offering entertainment to the general public, or for admission for more than 1 day thereto, after said ticket or other medium has been used at least once for admission, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A nontransferable ticket or other nontransferable medium is one on which is clearly printed the phrase: “Nontransferable; must be used by the same person on all days” or words of similar import. Upon conviction for a second or subsequent violation of this subsection, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 88-127.
817.37 Touting; defining; providing punishment; ejection from racetracks.—
(1) Any person who knowingly and designedly by false representation attempts to, or does persuade, procure or cause another person to wager on a horse in a race to be run in this state or elsewhere, and upon which money is wagered in this state, and who asks or demands compensation as a reward for information or purported information given in such case is a tout, and is guilty of touting.
(2) Any person who is a tout, or who attempts or conspires to commit touting, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) Any person who in the commission of touting falsely uses the name of any official of the Florida Division of Pari-mutuel Wagering, its inspectors or attaches, or of any official of any racetrack association, or the names of any owner, trainer, jockey, or other person licensed by the Florida Division of Pari-mutuel Wagering, as the source of any information or purported information shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Any person who has been convicted of touting by any court, and the record of whose conviction on such charge is on file in the office of the Florida Division of Pari-mutuel Wagering, any court of this state, or of the Federal Bureau of Investigation, or any person who has been ejected from any racetrack of this or any other state for touting or practices inimical to the public interest shall be excluded from all racetracks in this state and if such person returns to a racetrack he or she shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any such person who refuses to leave such track when ordered to do so by inspectors of the Florida Division of Pari-mutuel Wagering or by any peace officer, or by an accredited attache of a racetrack or association shall be guilty of a separate offense which shall be a misdemeanor of the second degree, punishable as provided in s. 775.083.
History.—ss. 1-4, ch. 24344, 1947; s. 10, ch. 26484, 1951; s. 1, ch. 67-233; s. 2, ch. 71-98; s. 869, ch. 71-136; s. 1257, ch. 97-102.
817.38 Simulated process.—
(1) CIRCULATION PROHIBITED.—It is unlawful for any person, firm, or corporation to send or deliver, or cause to be sent or delivered any letter, paper, document, notice of intent to bring suit, or other notice or demand, which simulates a summons, complaint, writ, or other court process, or any letter, paper, or document which simulates the seal of the state or the stationery of any state agency or fictitious state agency with intent to lead the recipient or sendee to believe that the same is genuine, for the purpose of obtaining any money or thing of value, or that a state agency is the sending party. The sending of such simulating document shall be prima facie evidence of such intent, and it shall be no defense to show that the document bears any statement to the contrary, nor shall it be a defense to show that the money or thing of value sought to be obtained was to apply as payment on a valid obligation.
(2) EVIDENCE OF DELIVERY.—In prosecutions for violation of this section, the prosecution may show that the simulating document was deposited in the post office for mailing or was delivered to any person with intent to be forwarded, and such showing shall be sufficient proof of the sending or delivery.
(3) VENUE.—Any person violating this section may be tried therefor in the county where such simulating document was so deposited, or the county where the same was received.
(4) EXCEPTION.—Nothing in this section shall be construed to prohibit the printing, publication or distribution of blank forms of genuine summons and other court process.
(5) PENALTIES.—Any person, firm or corporation violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1-5, ch. 57-73; s. 1, ch. 65-336; s. 870, ch. 71-136.
817.39 Simulated forms of court or legal process, or official seal or stationery; publication, sale or circulation unlawful; penalty.—
(1) Any person, firm, or corporation who shall print, for the purpose of sale or distribution and for use in the state, or who shall circulate, publish, or offer for sale any letter, paper, document, notice of intent to bring suit, or other notice or demand, which simulates a form of court or legal process, or any person who without authority of the state shall print, for the purpose of sale or distribution for use in the state, or who without authority of the state shall circulate, publish, use, or offer for sale any letters, papers, or documents which simulate the seal of the state, or the stationery of a state agency or fictitious state agency is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) It shall be no defense that the paper or other instrument referred to in subsection (1) shall declare that it is not a court or legal process.
(3) Nothing in this section shall prevent the printing, publication, sale or distribution of genuine legal forms for the use of attorneys or clerks of courts.
History.—ss. 1-3, ch. 57-265; s. 2, ch. 65-336; s. 871, ch. 71-136; s. 240, ch. 77-104.
817.40 False, misleading and deceptive advertising and sales; definitions.—When construing ss. 817.40, 817.41, 817.43-817.47, and each and every word, phrase or part thereof, where the context will permit:
(1) The word or term “wholesale” or “wholesale sale” shall extend to and include an “at-cost sale,” “below-cost sale,” and terms of similar purport, and embraces all sales purporting to be made at or below the seller’s net delivered cost price, or below the average wholesale cost of the items sold or to be sold, but which are in fact made for a price in excess of the average wholesale of like items.
(2) The word or term “retail” means the sale or offering for sale of individual items of merchandise to the ultimate consumer.
(3) The term or word “retailer” means one who acquires for the purpose of sale, keeps for sale, offers or exposes for sale, or sells individual units of merchandise to the ultimate consumer and not for resale.
(4) The term or word “merchandise” includes goods, wares and merchandise, as generally understood, and in addition thereto services and other things of value.
(5) The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.
(6) The definitions contained in s. 1.01, insofar as the context of this act will permit, shall be applicable hereto.
History.—s. 1, ch. 59-301; s. 73, ch. 95-211.
817.41 Misleading advertising prohibited.—
(1) It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.
(2) It shall be unlawful for any person to advertise, in any way or by any medium whatsoever, any sale as a “wholesale sale,” “below cost sale,” or terms of similar purport, unless the goods, wares or merchandise offered for sale thereby are offered by the seller at or below his or her delivered net cost price, or below the average wholesale price of such goods, wares, or merchandise. Such advertising of goods, wares, or merchandise for sale shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.
(3) Any retailer using the term or phrase “wholesale sale,” “below cost sale,” or terms of similar purport, in connection with the sale of goods, wares, or merchandise at retail, shall, upon demand by a customer, forthwith make available, unless the same shall have theretofore been made available, to the Better Business Bureau, the Merchant’s Division of the Chamber of Commerce, or to the state attorney’s office for inspection, invoices, or shipping charges or true and correct copies thereof, of any goods, wares, or merchandise so offered for sale, described or represented, indicating the delivery net cost to the seller of the particular goods, wares or merchandise sold or offered for sale, from which the seller’s delivered net cost may be determined. The said retailer shall also and at the same time give all reasonable assistance in determining and ascertaining his or her net cost price of said goods, wares, or merchandise. The said Better Business Bureau, Merchant’s Division of the Chamber of Commerce or state attorney, upon determining the said delivered net cost, shall forthwith issue a certificate evidencing such delivered net cost, as determined, and deliver the same to the retailer for delivery or exhibition to the customer. Unless such certificate shall show a delivered net cost equal to or in excess of the advertised price, the retailer shall be presumed to have violated this law.
(4) There shall be a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement or any such sale is responsible for such misleading advertisement or unlawful sale.
(5) No retailer shall knowingly and willfully advertise merchandise for sale at a special or wholesale price, in any way or by any medium whatsoever, if he or she does not have sufficient quantities of the advertised merchandise to meet the reasonably foreseeable demand, unless the fact of limited quantity and the approximate number of items is stated in the advertisement, or unless the retailer provides a means by which the consumer may obtain the advertised item at the advertised price within a reasonable time or a value equivalent thereto.
(6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney’s fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.
History.—s. 2, ch. 59-301; s. 1, ch. 73-60; s. 2, ch. 77-304; s. 1258, ch. 97-102.
817.411 False information; advertising.—No person, firm or corporation shall knowingly publish, disseminate, circulate, or place before the public, or cause directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, any advertisement, announcement, or statement containing any assertion, representation, or statement that commodities, mortgages, promissory notes, securities, or other things of value offered for sale are covered by insurance guaranties where such insurance is nonexistent or does not in fact insure against the risks covered.
History.—s. 1, ch. 61-110.
817.4115 False, deceptive, or misleading advertisement of live musical performances.—
(1) For purposes of this section, the term:
(a) “Performing person or group” means a vocal or instrumental performer using or attempting to use the name of a recording person or group.
(b) “Recording person or group” means a vocal or instrumental performer that has previously produced or released, or both, a commercial recording.
(2)(a) A person may not advertise a live musical performance or production in this state using a false, deceptive, or misleading statement of an affiliation, connection, or association between a performing person or group and a recording person or group.
(b) A person may not conduct a live musical performance or production in this state using a false, deceptive, or misleading statement of an affiliation, connection, or association between a performing person or group and a recording person or group.
(3) An advertisement or the conducting of a live musical performance or production does not violate subsection (2) if:
(a) The performing person or at least one member of the performing group was a member of the recording group and retains the legal right to use the name of the recording group by not having abandoned the affiliation with the recording group or its name;
(b) The performing person or group is the authorized registrant and owner of a federal service mark for that person or group which is registered with the United States Patent and Trademark Office;
(c) The live musical performance or production is identified as a “salute” or “tribute” to, and is otherwise unaffiliated with, the recording person or group;
(d) The advertising does not relate to a live musical performance taking place in this state; or
(e) The performance is expressly authorized in the advertising by the recording person or group.
(4) Any person who violates subsection (2) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second or subsequent violation of subsection (2), the person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine not to exceed $5,000, or both.
(5) The Department of Legal Affairs or a state attorney may file a civil action on behalf of the people of this state for injunctive relief against any person or group violating subsection (2) to restrain the prohibited activity. The court may award court costs and reasonable attorney’s fees to the prevailing party. The court may also impose a civil penalty not to exceed $5,000 for each violation of subsection (2).
History.—s. 1, ch. 2007-137.
817.412 Sale of used goods as new; penalty.—
(1) It is unlawful for a seller in a transaction where the purchase price of goods exceeds $100 to misrepresent orally, in writing, or by failure to speak that the goods are new or original when they are used or repossessed or where they have been used for sales demonstration.
(2) A person who violates the provisions of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 14, ch. 93-38.
817.413 Sale of used motor vehicle goods as new; penalty.—
(1) With respect to a transaction for which any charges will be paid from the proceeds of a motor vehicle insurance policy, and in which the purchase price of motor vehicle goods exceeds $100, it is unlawful for the seller to knowingly misrepresent orally, in writing, or by failure to speak, that the goods are new or original when they are used or repossessed or have been used for sales demonstration.
(2) A person who violates the provisions of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 6, ch. 2003-148.
817.415 Florida Free Gift Advertising Law.—
(1) LEGISLATIVE INTENT.—
(a) The Legislature of the State of Florida recognizes that the deceptive misuse of the term “free” and words of similar meaning and intent in advertising by the unscrupulous has resulted in deception of consumers, leading them unknowingly to assume contractual obligations which were initially concealed by the deception.
(b) It is the intent of the Legislature to prevent such deception by requiring disclosure of all contingent conditions, obligations, or considerations in any form in connection with the advertising of goods or services using the term “free” or words of similar meaning and intent.
(c) It is not the intent of the Legislature to prohibit the use of gifts in legitimate promotions of trade so long as the advertising of such gifts and promotions makes full disclosure of any requirement for purchase or contractual obligations to be assumed in order to qualify for the gift.
(2) SHORT TITLE.—This act may be cited as the “Florida Free Gift Advertising Law.”
(3) DEFINITIONS.—As used in this act:
(a) “Person” includes an individual, partnership, corporation, association, or other entity doing business in the state.
(b) “Free” includes the use of terms such as “awarded,” “prize,” “absolutely without charge,” “free of charge,” and words or groups of words of similar intent which reasonably lead a person to believe that he or she may receive, or has been selected to receive, something of value, entirely or in part without a requirement of compensation in any form from the recipient.
(c) “Item” means goods, services, or any tangible or intangible thing of value and the rights therein.
(d) “Advertisement” and “advertising” includes every form of communication which offers for sale, or attempts to induce the creation of obligations in exchange for, any item or rights therein.
(4) RESTRICTIONS ON USE OF WORD “FREE.”—Any item or portion of an item unconditionally offered as “free” shall in fact be free, without obligation or requirement of consideration in any form, when accepted in writing within the time limit set forth in the advertisement or within a reasonable time, if no time limit is so set. However, any person so receiving and accepting such offer may be required to pay any necessary transportation or delivery charges directly to the United States Postal Service or other regulated public carrier.
(5) REQUIREMENTS FOR ADVERTISEMENTS.—Advertising in which items are offered as free with conditions or obligations necessary to acceptance shall include a clear and conspicuous statement of any such conditions or obligations and advertising in compliance herewith shall not be considered deceptive.
(6) VIOLATIONS.—Any violation of this section is declared to be a deceptive trade practice and unlawful.
(7) INJUNCTIONS.—The Commissioner of Agriculture or the Attorney General may bring an action for injunction to prohibit practices in violation of this law, and any such injunction shall be issued without bond. Such suit may be brought in any circuit court of this state having jurisdiction over the party or parties defendant.
History.—ss. 1, 2, 3, 4, 5, ch. 70-164; s. 1, ch. 70-439; ss. 1, 2, 3, 4, 5, 6, ch. 72-4; s. 1259, ch. 97-102; s. 11, ch. 98-299.
817.416 Franchises and distributorships; misrepresentations.—
(1) DEFINITIONS.—For the purpose of this section:
(a) The term “person” means an individual, partnership, corporation, association, or other entity doing business in Florida.
(b) The term “franchise or distributorship” means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons:
1. Wherein a commercial relationship of definite duration or continuing indefinite duration is involved;
2. Wherein one party, hereinafter called the “franchisee,” is granted the right to offer, sell, and distribute goods or services manufactured, processed, distributed or, in the case of services, organized and directed by another party;
3. Wherein the franchisee as an independent business constitutes a component of franchisor’s distribution system; and
4. Wherein the operation of the franchisee’s business franchise is substantially reliant on franchisors for the basic supply of goods.
(c) The term “goods” means any article or thing without limitation, or any part of such article or thing, including any article or thing used or consumed by a franchisee in rendering a service established, organized, directed, or approved by a franchisor.
(2) DECLARATIONS.—
(a) It is unlawful, when selling or establishing a franchise or distributorship, for any person:
1. Intentionally to misrepresent the prospects or chances for success of a proposed or existing franchise or distributorship;
2. Intentionally to misrepresent, by failure to disclose or otherwise, the known required total investment for such franchise or distributorship; or
3. Intentionally to misrepresent or fail to disclose efforts to sell or establish more franchises or distributorships than is reasonable to expect the market or market area for the particular franchise or distributorship to sustain.
(b) The execution or carrying out of a scheme, plan, or corporate organization which violates any of the provisions of this section, if knowledge or intent be proved, shall be a misdemeanor of the second degree, punishable as provided in ss. 775.082 and 775.083.
(3) CIVIL PROVISIONS.—Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such franchise or distributorship. Upon such a showing, the court may award any person bringing said action reasonable attorney’s fees and shall award such person reasonable costs incurred in bringing the action, and execution shall thereupon issue.
(4) INJUNCTIONS.—The Department of Legal Affairs, or the Department of Legal Affairs and the Department of Agriculture and Consumer Services jointly, may sue in behalf of the people of this state for injunctive relief against franchise or distributorship plans or activities in violation of paragraph (2)(a).
History.—ss. 1, 2, 2A, 3, 4, ch. 71-61.
817.43 Exemption.—The provisions of s. 817.40 or s. 817.41 shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio or television station, or any other owner or operator of a media primarily devoted to advertising, who publishes, broadcasts, or otherwise disseminates an advertisement in good faith without knowledge of its false, deceptive or misleading character.
History.—s. 4, ch. 59-301; s. 178, ch. 79-164.
817.44 Intentional false advertising prohibited.—
(1) WHAT CONSTITUTES INTENTIONAL FALSE ADVERTISING.—It is unlawful to offer for sale or to issue invitations for offers for the sale of any property, real or personal, tangible or intangible, or any services, professional or otherwise, by placing or causing to be placed before the general public, by any means whatever, an advertisement describing such property or services as part of a plan or scheme with the intent not to sell such property or services so advertised, or with the intent not to sell such property or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public.
(2) PRESUMPTION OF VIOLATION.—The failure to sell any article or a class of articles advertised, or the refusal to sell at the price at which it was advertised to be available for purchase, shall create a rebuttable presumption of an intent to violate this section.
(3) EXEMPTION.—This section shall not apply to any publisher of a newspaper, magazine or other publication, or the owner or operator of a radio station, television station or other advertising media, who places before the public an advertisement in good faith without knowledge that the person so engaging or hiring such owner, operator, or publisher has the intent not to sell the property or services so advertised or with the intent not to sell such property or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public.
History.—s. 5, ch. 59-301.
817.45 Penalty.—Any person convicted of violating any of the provisions of s. 817.41, s. 817.411, or s. 817.44 is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second or subsequent conviction for violation of s. 817.41, s. 817.411, or s. 817.44, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine not exceeding $10,000, or by both.
History.—s. 6, ch. 59-301; s. 872, ch. 71-136; s. 179, ch. 79-164; s. 1, ch. 89-68.
817.47 Insurance advertising exempt.—Nothing in ss. 817.40, 817.41, 817.43-817.45, and 817.47 shall be deemed to apply to advertising in connection with sales of insurance which are regulated under the insurance laws of this state.
History.—s. 9, ch. 59-301; s. 74, ch. 95-211.
817.481 Credit cards; obtaining goods by use of false, expired, etc.; penalty.—
(1) It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, fictitious, counterfeit, or expired credit card, telephone number, credit number, or other credit device, or by the use of any credit card, telephone number, credit number, or other credit device of another without the authority of the person to whom such card, number or device was issued, or by the use of any credit card, telephone number, credit number, or other credit device in any case where such card, number or device has been revoked and notice of revocation has been given to the person to whom issued.
(2) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid payment of the lawful charges, in whole or in part, for any telephone or telegraph service or for the transmission of a message, signal or other communication by telephone or telegraph or over telephone or telegraph facilities by the use of any fraudulent scheme, means or method, or any mechanical, electric, or electronic device.
(3)(a) If the value of the property, goods, or services obtained or which are sought to be obtained in violation of this section is $300 or more, the offender shall be guilty of grand larceny.
(b) If the value of the property, goods, or services obtained or which are sought to be obtained in violation of this section is less than $300 the offender shall be guilty of petit larceny.
History.—ss. 1, 2, 3, ch. 61-83; s. 1, ch. 65-245; s. 1, ch. 65-128; s. 873, ch. 71-136; s. 4, ch. 86-161.
817.482 Possessing or transferring device for theft of telecommunications service; concealment of destination of telecommunications service.—
(1) It shall be unlawful for any person knowingly to:
(a) Make or possess any instrument, apparatus, equipment or device designed or adapted for use for the purpose of avoiding or attempting to avoid payment of telecommunications service in violation of s. 817.481; or
(b) Sell, give, transport, or otherwise transfer to another, or offer or advertise to sell, give, or otherwise transfer, any instrument, apparatus, equipment, or device described in paragraph (a), or plans or instructions for making or assembling the same; under circumstances evincing an intent to use or employ such instrument, apparatus, equipment, or device, or to allow the same to be used or employed, for a purpose described in paragraph (a), or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling such instrument, apparatus, equipment, or device.
Any person violating the provisions of paragraphs (a) and (b) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who shall make or possess, for purposes of avoiding or attempting to avoid payment for long-distance telecommunication services, any electronic device capable of duplicating tones or sounds utilized in long-distance telecommunications shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Any such instrument, apparatus, equipment, or device, or plans or instructions therefor, referred to in subsections (1) and (2), may be seized by court order or under a search warrant of a judge or incident to a lawful arrest; and upon the conviction of any person for a violation of any provision of this act, or s. 817.481, such instrument, apparatus, equipment, device, plans, or instructions either shall be destroyed as contraband by the sheriff of the county in which such person was convicted or turned over to the telephone company in whose territory such instrument, apparatus, equipment, device, plans, or instructions were seized.
History.—s. 2, ch. 65-245; s. 874, ch. 71-136; s. 1, ch. 74-137; s. 14, ch. 2004-11.
817.4821 Cellular telephone counterfeiting offenses.—
(1) As used in this act, the term:
(a) “Possess” means to have physical possession or otherwise to exercise dominion or control over tangible property.
(b) “Intercept” means to electronically capture, record, reveal, or otherwise access, the signals emitted or received during the operation of a cellular telephone without the consent of the sender or receiver thereof, by means of any instrument, device, or equipment.
(c) “Electronic serial number” means the unique numerical algorithm that is programmed into the microchip of each cellular telephone by the manufacturer and is vital to the successful operation and billing of the telephone.
(d) “Mobile identification number” means the cellular telephone number assigned to the cellular telephone by the cellular telephone carrier.
(e) “Cellular telephone” means a communication device containing a unique electronic serial number that is programmed into its computer chip by its manufacturer and whose operation is dependent on the transmission of that electronic serial number along with a mobile identification number, which is assigned by the cellular telephone carrier, in the form of radio signals through cell sites and mobile switching stations.
(f) “Cloned cellular telephone” or “counterfeit cellular telephone” means a cellular telephone whose electronic serial number has been altered from the electronic serial number that was programmed in the phone by the manufacturer.
(g) “Cloning paraphernalia” means materials that, when possessed in combination, are necessary and capable of the creation of a cloned cellular telephone. These materials include scanners to intercept the electronic serial number and mobile identification number, cellular telephones, cables, EPROM chips, EPROM burners, software for programming the microchip of the cloned cellular telephone with a false electronic serial number and mobile identification number combination, a computer containing such software, and lists of electronic serial number and mobile identification number combinations.
(2) A person who knowingly possesses a cloned cellular telephone commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) A person who knowingly possesses an instrument capable of intercepting electronic serial number and mobile identification number combinations under circumstances evidencing an intent to clone a cellular telephone commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) A person who knowingly sells a cloned cellular telephone commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) A person who knowingly possesses cloning paraphernalia with intent to use it to create cloned cellular telephones commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6)(a) Nothing herein shall make unlawful the possession or use of cloning paraphernalia, a cloned cellular telephone, or any intercept by a law enforcement officer or persons acting under the direction of a law enforcement officer in the course of a criminal investigation.
(b) Nothing in this section shall make unlawful the possession or use of cloning paraphernalia or a cloned cellular telephone by a cellular telephone carrier.
History.—s. 35, ch. 95-403; s. 1, ch. 96-264.
817.483 Transmission or publication of information regarding schemes, devices, means, or methods for theft of communication services.—Any person who transmits or publishes the number or code of an existing, canceled, revoked, or nonexistent telephone number or credit number or other credit device, or method of numbering or coding which is employed in the issuance of telephone numbers or credit numbers or other credit devices, with the intent to avoid or to cause another to avoid lawful charges is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 74-138.
817.484 Obtaining telephone calling records by fraudulent means prohibited.—
(1) As used in this section, the term:
(a) “Calling record” means a record held by a telecommunications company of the telephone calls made or text messages sent or received by a customer of that company.
(b) “Customer” means a person who has received telephone service from a telecommunications company.
(c) “Law enforcement agency” has the same meaning as in s. 23.1225(1)(d).
(d) “Telecommunications company” has the same meaning as in s. 364.02, except that the term includes VoIP service and commercial mobile radio service providers.
(2) It is a violation of this section for a person to:
(a) Obtain or attempt to obtain the calling record of another person without the permission of that person by:
1. Making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a telecommunications company;
2. Making a false, fictitious, or fraudulent statement or representation to a customer of a telecommunications company; or
3. Providing any document to an officer, employee, or agent of a telecommunications company, knowing that the document is forged, is counterfeit, was lost or stolen, was fraudulently obtained, or contains a false, fictitious, or fraudulent statement or representation.
(b) Ask another person to obtain a calling record, knowing that the other person will obtain, or attempt to obtain, the calling record from the telecommunications company in any manner described in paragraph (a).
(c) Sell or offer to sell a calling record obtained in any manner described in paragraph (a) or paragraph (b).
(3) A person who violates this section for the first time commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A second or subsequent violation constitutes a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(4) It is not a violation of this section for:
(a) A law enforcement agency to obtain a calling record in connection with the performance of the official duties of that agency in accordance with other applicable laws.
(b) A telecommunications company, or an officer, employee, or agent of a telecommunications company, to obtain a calling record of that company in the course of:
1. Testing the security procedures or systems of the telecommunications company for maintaining the confidentiality of customer information;
2. Investigating an allegation of misconduct or negligence on the part of an officer, employee, or agent of the telecommunications company; or
3. Recovering a calling record that was obtained or received by another person in any manner described in subsection (2).
History.—s. 1, ch. 2006-141.
817.487 Telephone caller identification systems.—
(1) As used in this section:
(a) “Call” means any type of telephone call made using a public switched telephone network, wireless cellular telephone service, or voice-over-Internet protocol (VoIP) service that has the capability of accessing users on the public switched telephone network or a successor network.
(b) “Caller” means a person who places a call, whether by telephone, over a telephone line, or on a computer.
(c) “Enter” means to input data by whatever means into a computer or telephone system.
(d) “False information” means data that misrepresents the identity of the caller to the recipient of a call or to the network itself; however, when a person making an authorized call on behalf of another person inserts the name, telephone number, or name and telephone number of the person on whose behalf the call is being made, such information shall not be deemed false information.
(e) “Telephone caller identification system” means a listing of a caller’s name, telephone number, or name and telephone number that is shown to a recipient of a call when it is received.
(2) A person may not enter or cause to be entered false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call.
(3) A person may not place a call knowing that false information was entered into the telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of the call.
(4) This section shall not apply to:
(a) The blocking of caller identification information.
(b) Any law enforcement agency of the federal, state, county, or municipal government.
(c) Any intelligence or security agency of the Federal Government.
(d) A telecommunications, broadband, or voice-over-Internet service provider that is acting solely as an intermediary for the transmission of telephone service between the caller and the recipient.
(5)(a) Any person who violates subsection (2) or subsection (3) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any violation of subsection (2) or subsection (3) constitutes an unlawful trade practice under part II of chapter 501 and, in addition to any remedies or penalties set forth in this section, is subject to any remedies or penalties available for a violation of that part.
(6)(a) The felony or misdemeanor degree of any criminal offense shall be reclassified by the court to the next higher degree as provided in this subsection if the offender violated subsection (2) or subsection (3) during the commission of the criminal offense or if a violation by the offender of subsection (2) or subsection (3) facilitated or furthered the criminal offense. The reclassification shall be as follows:
1. In the case of a misdemeanor of the second degree, the offense is reclassified as a misdemeanor of the first degree.
2. In the case of a misdemeanor of the first degree, the offense is reclassified as a felony of the third degree.
3. In the case of a felony of the third degree, the offense is reclassified as a felony of the second degree.
4. In the case of a felony of the second degree, the offense is reclassified as a felony of the first degree.
5. In the case of a felony of the first degree or a felony of the first degree punishable by a term of imprisonment not exceeding life, the offense is reclassified as a life felony.
(b) For purposes of sentencing under chapter 921, the following offense severity ranking levels apply:
1. An offense that is a misdemeanor of the first degree and that is reclassified under this subsection as a felony of the third degree is ranked in level 2 of the offense severity ranking chart.
2. A felony offense that is reclassified under this subsection is ranked one level above the ranking specified in s. 921.0022 or s. 921.0023 for the offense committed.
History.—s. 2, ch. 2008-185.
817.49 False reports of commission of crimes; penalty.—Whoever willfully imparts, conveys or causes to be imparted or conveyed to any law enforcement officer false information or reports concerning the alleged commission of any crime under the laws of this state, knowing such information or report to be false, in that no such crime had actually been committed, shall upon conviction thereof be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 59-294; s. 875, ch. 71-136.
817.50 Fraudulently obtaining goods, services, etc., from a health care provider.—
(1) Whoever shall, willfully and with intent to defraud, obtain or attempt to obtain goods, products, merchandise, or services from any health care provider in this state, as defined in s. 641.19(14), commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) If any person gives to any health care provider in this state a false or fictitious name or a false or fictitious address or assigns to any health care provider the proceeds of any health maintenance contract or insurance contract, then knowing that such contract is no longer in force, is invalid, or is void for any reason, such action shall be prima facie evidence of the intent of such person to defraud the health care provider. However, this subsection does not apply to investigative actions taken by law enforcement officers for law enforcement purposes in the course of their official duties.
History.—ss. 1, 2, ch. 61-154; s. 876, ch. 71-136; s. 166, ch. 83-216; s. 12, ch. 2000-252; s. 1911, ch. 2003-261; s. 18, ch. 2006-305.
817.505 Patient brokering prohibited; exceptions; penalties.—
(1) It is unlawful for any person, including any health care provider or health care facility, to:
(a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility;
(b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to or from a health care provider or health care facility;
(c) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgement of treatment from a health care provider or health care facility; or
(d) Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a), paragraph (b), or paragraph (c).
(2) For the purposes of this section, the term:
(a) “Health care provider or health care facility” means any person or entity licensed, certified, or registered; required to be licensed, certified, or registered; or lawfully exempt from being required to be licensed, certified, or registered with the Agency for Health Care Administration or the Department of Health; any person or entity that has contracted with the Agency for Health Care Administration to provide goods or services to Medicaid recipients as provided under s. 409.907; a county health department established under part I of chapter 154; any community service provider contracting with the Department of Children and Family Services to furnish alcohol, drug abuse, or mental health services under part IV of chapter 394; any substance abuse service provider licensed under chapter 397; or any federally supported primary care program such as a migrant or community health center authorized under ss. 329 and 330 of the United States Public Health Services Act.
(b) “Health care provider network entity” means a corporation, partnership, or limited liability company owned or operated by two or more health care providers and organized for the purpose of entering into agreements with health insurers, health care purchasing groups, or the Medicare or Medicaid program.
(c) “Health insurer” means any insurance company authorized to transact health insurance in the state, any insurance company authorized to transact health insurance or casualty insurance in the state that is offering a minimum premium plan or stop-loss coverage for any person or entity providing health care benefits, any self-insurance plan as defined in s. 624.031, any health maintenance organization authorized to transact business in the state pursuant to part I of chapter 641, any prepaid health clinic authorized to transact business in the state pursuant to part II of chapter 641, any prepaid limited health service organization authorized to transact business in this state pursuant to chapter 636, any multiple-employer welfare arrangement authorized to transact business in the state pursuant to ss. 624.436-624.45, or any fraternal benefit society providing health benefits to its members as authorized pursuant to chapter 632.
(3) This section shall not apply to:
(a) Any discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.
(b) Any payment, compensation, or financial arrangement within a group practice as defined in s. 456.053, provided such payment, compensation, or arrangement is not to or from persons who are not members of the group practice.
(c) Payments to a health care provider or health care facility for professional consultation services.
(d) Commissions, fees, or other remuneration lawfully paid to insurance agents as provided under the insurance code.
(e) Payments by a health insurer who reimburses, provides, offers to provide, or administers health, mental health, or substance abuse goods or services under a health benefit plan.
(f) Payments to or by a health care provider or health care facility, or a health care provider network entity, that has contracted with a health insurer, a health care purchasing group, or the Medicare or Medicaid program to provide health, mental health, or substance abuse goods or services under a health benefit plan when such payments are for goods or services under the plan. However, nothing in this section affects whether a health care provider network entity is an insurer required to be licensed under the Florida Insurance Code.
(g) Insurance advertising gifts lawfully permitted under s. 626.9541(1)(m).
(h) Commissions or fees paid to a nurse registry licensed under s. 400.506 for referring persons providing health care services to clients of the nurse registry.
(i) Payments by a health care provider or health care facility to a health, mental health, or substance abuse information service that provides information upon request and without charge to consumers about providers of health care goods or services to enable consumers to select appropriate providers or facilities, provided that such information service:
1. Does not attempt through its standard questions for solicitation of consumer criteria or through any other means to steer or lead a consumer to select or consider selection of a particular health care provider or health care facility;
2. Does not provide or represent itself as providing diagnostic or counseling services or assessments of illness or injury and does not make any promises of cure or guarantees of treatment;
3. Does not provide or arrange for transportation of a consumer to or from the location of a health care provider or health care facility; and
4. Charges and collects fees from a health care provider or health care facility participating in its services that are set in advance, are consistent with the fair market value for those information services, and are not based on the potential value of a patient or patients to a health care provider or health care facility or of the goods or services provided by the health care provider or health care facility.
(4) Any person, including an officer, partner, agent, attorney, or other representative of a firm, joint venture, partnership, business trust, syndicate, corporation, or other business entity, who violates any provision of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Notwithstanding the existence or pursuit of any other remedy, the Attorney General or the state attorney of the judicial circuit in which any part of the offense occurred may maintain an action for injunctive or other process to enforce the provisions of this section.
(6) The party bringing an action under this section may recover reasonable expenses in obtaining injunctive relief, including, but not limited to, investigative costs, court costs, reasonable attorney’s fees, witness costs, and deposition expenses.
(7) The provisions of this section are in addition to any other civil, administrative, or criminal actions provided by law and may be imposed against both corporate and individual defendants.
History.—s. 1, ch. 96-152; s. 226, ch. 97-101; s. 168, ch. 98-166; s. 297, ch. 99-8; s. 7, ch. 99-204; s. 228, ch. 2000-160; s. 19, ch. 2006-305.
817.51 Obtaining groceries, retail poultry, dairy, bakery, and other retail products; intent to defraud.—Any person who shall obtain any items from retail grocery establishments, or retail poultry, dairy, bakery or any other retail dealers with intent to defraud the owner or keeper thereof shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided that the provisions of this section shall not apply where there has been an agreement in writing for delay in payments.
History.—s. 1, ch. 61-206; s. 1, ch. 67-513; s. 877, ch. 71-136.
817.52 Obtaining vehicles with intent to defraud, failing to return hired vehicle, or tampering with mileage device of hired vehicle.—
(1) OBTAINING BY TRICK, FALSE REPRESENTATION, ETC.—Whoever, with intent to defraud the owner or any person lawfully possessing any motor vehicle, obtains the custody of such motor vehicle by trick, deceit, or fraudulent or willful false representation shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) HIRING WITH INTENT TO DEFRAUD.—Whoever, with intent to defraud the owner or any person lawfully possessing any motor vehicle of the rental thereof, hires a vehicle from such owner or such owner’s agents or any person in lawful possession thereof shall, upon conviction, be deemed guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The absconding without paying or offering to pay such hire shall be prima facie evidence of such fraudulent intent.
(3) FAILURE TO REDELIVER HIRED VEHICLE.—Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person letting such motor vehicle or his or her agent, at the termination of the period for which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) TAMPERING WITH MILEAGE DEVICE.—Whoever, after hiring a motor vehicle from any person or persons under an agreement to pay for the use of such motor vehicle a sum of money determinable either in whole or in part upon the distance such motor vehicle travels during the period for which hired, removes, attempts to remove, tampers with, or attempts to tamper with or otherwise interfere with any odometer or other mechanical device attached to said hired motor vehicle for the purpose of registering the distance such vehicle travels, with the intent to deceive the person or persons letting such vehicle or their lawful agent as to the actual distance traveled thereby, shall upon conviction be deemed guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any person who shall knowingly aid, abet or assist another in violating the provisions of this subsection shall, as a principal in the first degree, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any person violating this section may be informed against or indicted in the county where such odometer or such other mechanical device is removed, or attempted to be removed, or tampered with, or attempted to be tampered with, or otherwise interfered with, or in the county where such persons knowingly aid, abet, or assist another in violating the provisions of this section, or in the county where any part of such motor vehicle upon which is attached such odometer, or such other mechanical device, is removed or attempted to be removed.
History.—s. 1, ch. 63-177; s. 878, ch. 71-136; s. 1, ch. 74-373; s. 8, ch. 78-412; s. 180, ch. 79-164; s. 1260, ch. 97-102.
817.53 False charges for radio and television repairs and parts; penalty.—
(1) It is unlawful for a person to knowingly charge for any services which are not actually performed in repairing a radio or television set, or to knowingly charge for any parts which are not actually furnished, or to knowingly misinform a customer concerning what is wrong with his or her radio or television set, or to knowingly and fraudulently substitute parts when such substitution has no relation to the repairing or servicing of the radio or television set.
(2) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 63-383; s. 879, ch. 71-136; s. 1261, ch. 97-102.
817.54 Obtaining of mortgage, mortgage note, promissory note, etc., by false representation.—Any person who, with intent to defraud, obtains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any person or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery, shall be 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. 63-142; s. 880, ch. 71-136.
817.545 Mortgage fraud.—
(1) For the purposes of the section, the term “mortgage lending process” means the process through which a person seeks or obtains a residential mortgage loan, including, but not limited to, the solicitation, application or origination, negotiation of terms, third-party provider services, underwriting, signing and closing, and funding of the loan. Documents involved in the mortgage lending process include, but are not limited to, mortgages, deeds, surveys, inspection reports, uniform residential loan applications, or other loan applications; appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as W-2 forms, verifications of income and employment, credit reports, bank statements, tax returns, and payroll stubs; and any required disclosures.
(2) A person commits the offense of mortgage fraud if, with the intent to defraud, the person knowingly:
(a) Makes any material misstatement, misrepresentation, or omission during the mortgage lending process with the intention that the misstatement, misrepresentation, or omission will be relied on by a mortgage lender, borrower, or any other person or entity involved in the mortgage lending process; however, omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered a material omission for purposes of this subsection.
(b) Uses or facilitates the use of any material misstatement, misrepresentation, or omission during the mortgage lending process with the intention that the material misstatement, misrepresentation, or omission will be relied on by a mortgage lender, borrower, or any other person or entity involved in the mortgage lending process; however, omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered a material omission for purposes of this subsection.
(c) Receives any proceeds or any other funds in connection with the mortgage lending process that the person knew resulted from a violation of paragraph (a) or paragraph (b).
(d) Files or causes to be filed with the clerk of the circuit court for any county of this state a document involved in the mortgage lending process which contains a material misstatement, misrepresentation, or omission.
(3) An offense of mortgage fraud may not be predicated solely upon information lawfully disclosed under federal disclosure laws, regulations, or interpretations related to the mortgage lending process.
(4) For the purpose of venue under this section, any violation of this section is considered to have been committed:
(a) In the county in which the real property is located; or
(b) In any county in which a material act was performed in furtherance of the violation.
(5)(a) Any person who violates subsection (2) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who violates subsection (2), and the loan value stated on documents used in the mortgage lending process exceeds $100,000, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 13, ch. 2007-182; s. 2, ch. 2008-80.
817.55 Tourist attraction advertisement; misleading use of the word “free.”—
(1) It shall be unlawful for any person or persons, including corporations, operating a tourist attraction, event, show, or similar places of business for profit catering to the public to use or advertise in connection therewith the words “free” or “free admission” or any similar words or words of similar or like import and meaning, in a false, misleading, deceptive, or fraudulent manner, calculated to cause or actually causing any member of the public to be misled, deceived or defrauded to his or her detriment.
(2) The state attorney for any county in which any violation of this act occurs may enjoin the use of such word or words by temporary and permanent injunction by application to any court of competent jurisdiction.
(3) Violations of this act whether or not enjoined as provided herein, shall be punishable as a misdemeanor of the second degree, as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 63-506; ss. 17, 35, ch. 69-106; s. 881, ch. 71-136; s. 1, ch. 73-283; s. 32, ch. 73-334; s. 1262, ch. 97-102; s. 24, ch. 2001-64.
817.554 Fraudulently offering for sale tour or travel-related services.—
(1) A seller of any tour or travel service, including, but not limited to:
(a) A person engaged in the business of selling tours, travel services, or travel-related services;
(b) A person who sells tours or travel services in conjunction with the offer of a course of instruction for persons seeking to become travel agents;
(c) A person who is not actively engaged in the business of selling tours or travel services but who offers for sale a single tour or a limited number of tours; or
(d) The principal of any corporation or partnership engaged in the business of selling tours or travel services,
who knowingly makes claims relating to such tours or travel services with the intent to defraud any individual or group of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who offers educational or training courses relating to the tour or travel service business and who knowingly makes claims relating to such educational or training courses with the intent to defraud any individual of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) Any person who offers his or her services as a tour or travel service consultant to anyone engaged in the tour or travel service business and who knowingly makes claims relating to his or her qualifications to provide such consulting services or his or her ability to provide travel-related services with the intent to defraud such person of a fee or other valuable consideration is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(4) Any individual or group which meets the standards of organized fraud as defined in s. 817.034 shall be punished as provided in s. 817.034.
History.—s. 1, ch. 85-39; s. 1263, ch. 97-102; s. 5, ch. 2010-117.
817.558 Water-treatment devices.—
(1) For purposes of this section:
(a) “Water-treatment device” means any product, device, or system designed for personal, family, or household use and for which any claim is made that it will improve the quality of water by reducing one or more contaminants through mechanical, physical, chemical, or biological processes or a combination thereof.
(b) “Advertisement” means any representation of fact or opinion disseminated to the public in any manner or by any means which is designed to induce, directly or indirectly, any person to enter into any obligation to acquire any title or interest in or to use any water-treatment device.
(c) “Misleading” means any direct or indirect misrepresentation or omission of any material fact or circumstance.
(2)(a) It is unlawful for any person to make or disseminate any false or misleading advertisement regarding any water-treatment device.
(b) It is unlawful for any person who solicits the sale, rental, lease, or order of any water-treatment device to make any false or misleading statement or claim:
1. Regarding contamination problems in tap water;
2. Stating or implying scientific certainty regarding the relationship between acute or chronic illnesses and water quality;
3. Regarding the type and degree of problems caused by water treated in public water-treatment systems;
4. Stating that the water flowing from a water-treatment device is “pure,” unless such word is reasonably defined;
5. Making undocumented claims about the performance or benefits of a water-treatment device; or
6. Using unauthorized endorsements or testimonials.
(3) At the time of or before the order, sale, rental, or lease of any water-treatment device to a consumer, the person soliciting the order, sale, rental, or lease must notify the consumer in clear and conspicuous writing in at least 10-point boldfaced type that operational, maintenance, and replacement requirements are essential for the water-treatment device to perform as represented. In addition to the notification requirement, each water-treatment device must have a label or tag affixed to it or the container in which it is sold or delivered which notifies the consumer that operational, maintenance, and replacement requirements are essential for the water-treatment device to perform as sold.
(4) Any person who violates any provision of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 9, ch. 91-41; s. 9, ch. 91-68; s. 1, ch. 93-43.
817.561 Violations may be enjoined.—In addition to the punishments provided herein, the state attorneys of the various judicial circuits throughout the state are vested with authority and power to invoke the jurisdiction of courts of equity within their respective judicial circuits to enjoin or obtain other equitable relief against persons violating the provisions of ss. 817.06, 817.061, 817.38-817.44, and 817.55. The prevailing party shall receive court costs and reasonable attorneys’ fees, to be deposited in or paid from the general fund.
History.—s. 1, ch. 71-233; s. 32, ch. 73-334.
817.5615 Marks required on optical discs; prohibited acts; penalties.—
(1) For purposes of this act, the term:
(a) “Commercial purposes” means the manufacture of at least 10 of the same or different optical discs in a 180-day period by storing information on the disc for purposes of sale in this state by that person or other persons.
(b) “Manufacture” means replication of the physical optical disc or production of the master used in any optical disc replication process, but does not include the manufacture of optical discs for internal use, testing, or review or blank optical discs.
(c) “Optical disc” means a disc capable of being read by a laser or other light source on which data is stored in digital form, including, but not limited to, discs known as compact discs, recordable compact discs, and digital video discs.
(d) “Identification mark” means the name of the manufacturer and the state in which the disc was manufactured, or a unique identifier that identifies the place where an optical disc was manufactured.
(2)(a) Each person who manufactures optical discs for commercial purposes shall permanently mark each manufactured optical disc with an identification mark. The identification mark shall be affixed by molding, die-stamping, etching, or other permanent method in a manner in which it is clearly visible without the aid of magnification or special devices to read the mark. Any person who manufactures optical discs for commercial purposes without complying with this paragraph shall be subject to a fine of up to $5,000 for a first offense and a fine of up to $50,000 for a second or subsequent offense.
(b) It is unlawful for any person to buy, sell, receive, transfer, or possess for purposes of sale or rental an optical disc knowing that the identification mark required by this section has been removed, defaced, covered, altered, or destroyed or knowing it was manufactured in this state without the required identification mark or with a false identification mark. Any person who buys, sells, receives, transfers, or possesses for purposes of sale or rental an optical disc knowing that the identification mark required by this section has been removed, defaced, covered, altered, or destroyed or knowing it was manufactured in this state without the required identification mark or with a false identification mark commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of up to $10,000, or both.
(c) It is unlawful for any person to knowingly remove, deface, cover, alter, or destroy the identification mark required by this section. Any person who knowingly removes, defaces, covers, alters, or destroys the identification mark required by this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of up to $50,000, or both.
History.—s. 1, ch. 99-383.
817.562 Fraud involving a security interest.—
(1) As used in this section, the terms “proceeds,” “security agreement,” “security interest,” and “secured party” shall be given the meanings prescribed for them in chapter 679.
(2) A person is guilty of fraud involving a security interest when, having executed a security agreement creating a security interest in personal property, including accounts receivable, which security interest secures a monetary obligation owed to a secured party, and:
(a) Having under the security agreement both the right of sale or other disposition of the property and the duty to account to the secured party for the proceeds of disposition, he or she sells or otherwise disposes of the property and wrongfully and willfully fails to account to the secured party for the proceeds of disposition; or
(b) Having under the security agreement no right of sale or other disposition of the property, he or she knowingly secretes, withholds, or disposes of such property in violation of the security agreement.
(3) Any person who knowingly violates this section shall be punished as follows:
(a) If the value of the property sold, secreted, withheld, or disposed of or the proceeds from the sale or disposition of the property is $300 or more, such person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the value of the property sold, secreted, withheld, or disposed of or the proceeds obtained from the sale or disposition of the property is less than $300, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 79-113; s. 5, ch. 86-161; s. 196, ch. 91-224; s. 1265, ch. 97-102.
817.5621 Unlawful subleasing of a motor vehicle.—
(1) It is unlawful for any person who is not a party to a lease contract, conditional sale contract, or security agreement which transfers any right or interest in a motor vehicle to:
(a) Obtain or exercise control over the motor vehicle and then sell, transfer, assign, or lease the motor vehicle to another person without first obtaining written authorization from the secured creditor, lessor, or lienholder for the sale, transfer, assignment, or lease if he or she receives compensation or other consideration for the sale, transfer, assignment, or lease of the motor vehicle; or
(b) Assist, cause, or arrange the actual or purported sale, transfer, assignment, or lease of the motor vehicle to another person without first obtaining written authorization from the secured creditor, lessor, or lienholder for the sale, transfer, assignment, or lease if he or she receives compensation or other consideration for assisting, causing, or arranging the sale, transfer, assignment, or lease of the motor vehicle.
(2) Any person who violates the provisions of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Notwithstanding any other remedy or relief to which a person is entitled, anyone suffering damage as a result of a violation of this section may bring an action to recover or obtain actual damages, equitable relief, including, but not limited to, an injunction or restitution of money and property, punitive damages, reasonable attorney’s fees and costs, and any other relief the court deems proper.
History.—s. 2, ch. 88-407; s. 1266, ch. 97-102.
817.563 Controlled substance named or described in s. 893.03; sale of substance in lieu thereof.—It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
(1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 81-53; s. 4, ch. 89-281; s. 101, ch. 97-264; s. 7, ch. 99-186; s. 17, ch. 2000-320; s. 7, ch. 2002-78.
817.564 Imitation controlled substances defined; possession and distribution prohibited.—
(1) For the purposes of this section, the term “imitation controlled substance” means a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance enumerated in chapter 893, which is subject to abuse, and which:
(a) By overall dosage unit appearance, including color, shape, size, markings, and packaging, or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or
(b) By express or implied representations, purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration.
(2) In those instances where the appearance of the dosage unit is not reasonably sufficient to establish that the substance is an imitation controlled substance, the court or authority concerned may consider, in addition to all other logically relevant factors, the following factors as related to “representations made” in determining whether the substance is an imitation controlled substance:
(a) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect.
(b) Statements made to the recipient that the substance may be resold for inordinate profit.
(c) Whether the substance is packaged in a manner normally used for illicit controlled substances.
(d) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities.
(e) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud.
(f) The proximity of the substances to controlled substances.
(3) It is unlawful for any person to manufacture, distribute, sell, give, or possess with the intent to manufacture, distribute, sell, or give an imitation controlled substance. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) It is unlawful for any person 18 years of age or over to knowingly sell or distribute an imitation controlled substance to a person under the age of 18 years. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication or to post or distribute in any public place any advertisement or solicitation with reasonable knowledge that the purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances. Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(6) Civil or criminal liability may not be imposed by virtue of this section against:
(a) Any person operating in accordance with the Florida Comprehensive Drug Abuse Prevention and Control Act who manufactures, dispenses, sells, gives, or distributes an imitation controlled substance for use as a placebo by a licensed practitioner in the course of professional practice or research; or
(b) A law enforcement officer acting in the officer’s official capacity during the course of an active criminal investigation relating to controlled substances which is approved or authorized by the officer’s agency or to an informer or third party acting under the direction or control of such an officer as part of an authorized, active criminal investigation relating to controlled substances.
History.—s. 1, ch. 85-319; s. 197, ch. 91-224; s. 1, ch. 2001-95.
817.565 Urine testing, fraudulent practices; penalties.—
(1) It is unlawful for any person:
(a) Willfully to defraud or attempt to defraud any lawfully administered urine test designed to detect the presence of chemical substances or controlled substances.
(b) Willfully to manufacture, advertise, sell, or distribute any substance or device which is intended to defraud or attempt to defraud any lawfully administered urine test designed to detect the presence of chemical substances or controlled substances.
(2) Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 9, ch. 87-243.
817.566 Misrepresentation of association with, or academic standing at, postsecondary educational institution.—Any person who, with intent to defraud, misrepresents his or her association with, or academic standing or other progress at, any postsecondary educational institution by falsely making, altering, simulating, or forging a document, degree, certificate, diploma, award, record, letter, transcript, form, or other paper; or any person who causes or procures such a misrepresentation; or any person who utters and publishes or otherwise represents such a document, degree, certificate, diploma, award, record, letter, transcript, form, or other paper as true, knowing it to be false, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Individuals who present a religious academic degree from any college, university, seminary, or institution which is not licensed by the Commission for Independent Education or which is not exempt pursuant to the provisions of s. 1005.06 shall disclose the religious nature of the degree upon presentation.
History.—s. 1, ch. 88-407; s. 1, ch. 89-40; s. 18, ch. 92-321; s. 1267, ch. 97-102; s. 1038, ch. 2002-387; s. 159, ch. 2004-5; s. 20, ch. 2004-41.
817.568 Criminal use of personal identification information.—
(1) As used in this section, the term:
(a) “Access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.
(b) “Authorization” means empowerment, permission, or competence to act.
(c) “Harass” means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. “Harass” does not mean to use personal identification information for accepted commercial purposes. The term does not include constitutionally protected conduct such as organized protests or the use of personal identification information for accepted commercial purposes.
(d) “Individual” means a single human being and does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity.
(e) “Person” means a “person” as defined in s. 1.01(3).
(f) “Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any:
1. Name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state-issued or United States-issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized electronic use of such card;
2. Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
3. Unique electronic identification number, address, or routing code;
4. Medical records;
5. Telecommunication identifying information or access device; or
6. Other number or information that can be used to access a person’s financial resources.
(g) “Counterfeit or fictitious personal identification information” means any counterfeit, fictitious, or fabricated information in the similitude of the data outlined in paragraph (f) that, although not truthful or accurate, would in context lead a reasonably prudent person to credit its truthfulness and accuracy.
(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $5,000 or more or if the person fraudulently uses the personal identification information of 10 or more individuals, but fewer than 20 individuals, without their consent. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years’ imprisonment.
(c) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more individuals, but fewer than 30 individuals, without their consent. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 5 years’ imprisonment. If the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $100,000 or more, or if the person fraudulently uses the personal identification information of 30 or more individuals without their consent, notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 10 years’ imprisonment.
(3) Neither paragraph (2)(b) nor paragraph (2)(c) prevents a court from imposing a greater sentence of incarceration as authorized by law. If the minimum mandatory terms of imprisonment imposed under paragraph (2)(b) or paragraph (2)(c) exceed the maximum sentences authorized under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment under paragraph (2)(b) or paragraph (2)(c) are less than the sentence that could be imposed under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the sentence imposed by the court must include the mandatory minimum term of imprisonment as required by paragraph (2)(b) or paragraph (2)(c).
(4) Any person who willfully and without authorization possesses, uses, or attempts to use personal identification information concerning an individual without first obtaining that individual’s consent, and who does so for the purpose of harassing that individual, commits the offense of harassment by use of personal identification information, which is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(5) If an offense prohibited under this section was facilitated or furthered by the use of a public record, as defined in s. 119.011, the offense is reclassified to the next higher degree as follows:
(a) A misdemeanor of the first degree is reclassified as a felony of the third degree.
(b) A felony of the third degree is reclassified as a felony of the second degree.
(c) A felony of the second degree is reclassified as a felony of the first degree.
For purposes of sentencing under chapter 921 and incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 of the felony offense committed, and a misdemeanor offense that is reclassified under this subsection is ranked in level 2 of the offense severity ranking chart in s. 921.0022.
(6) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual who is less than 18 years of age without first obtaining the consent of that individual or of his or her legal guardian commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) Any person who is in the relationship of parent or legal guardian, or who otherwise exercises custodial authority over an individual who is less than 18 years of age, who willfully and fraudulently uses personal identification information of that individual commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8)(a) Any person who willfully and fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning a deceased individual commits the offense of fraudulent use or possession with intent to use personal identification information of a deceased individual, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who willfully and fraudulently uses personal identification information concerning a deceased individual commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of injury or fraud perpetrated is $5,000 or more, or if the person fraudulently uses the personal identification information of 10 or more but fewer than 20 deceased individuals. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years’ imprisonment.
(c) Any person who willfully and fraudulently uses personal identification information concerning a deceased individual commits the offense of aggravated fraudulent use of the personal identification information of multiple deceased individuals, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of injury or fraud perpetrated is $50,000 or more, or if the person fraudulently uses the personal identification information of 20 or more but fewer than 30 deceased individuals. Notwithstanding any other provision of law, the court shall sentence any person convicted of the offense described in this paragraph to a minimum mandatory sentence of 5 years’ imprisonment. If the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $100,000 or more, or if the person fraudulently uses the personal identification information of 30 or more deceased individuals, notwithstanding any other provision of law, the court shall sentence any person convicted of an offense described in this paragraph to a mandatory minimum sentence of 10 years’ imprisonment.
(9) Any person who willfully and fraudulently creates or uses, or possesses with intent to fraudulently use, counterfeit or fictitious personal identification information concerning a fictitious individual, or concerning a real individual without first obtaining that real individual’s consent, with intent to use such counterfeit or fictitious personal identification information for the purpose of committing or facilitating the commission of a fraud on another person, commits the offense of fraudulent creation or use, or possession with intent to fraudulently use, counterfeit or fictitious personal identification information, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(10) Any person who commits an offense described in this section and for the purpose of obtaining or using personal identification information misrepresents himself or herself to be a law enforcement officer; an employee or representative of a bank, credit card company, credit counseling company, or credit reporting agency; or any person who wrongfully represents that he or she is seeking to assist the victim with a problem with the victim’s credit history shall have the offense reclassified as follows:
(a) In the case of a misdemeanor, the offense is reclassified as a felony of the third degree.
(b) In the case of a felony of the third degree, the offense is reclassified as a felony of the second degree.
(c) In the case of a felony of the second degree, the offense is reclassified as a felony of the first degree.
(d) In the case of a felony of the first degree or a felony of the first degree punishable by a term of imprisonment not exceeding life, the offense is reclassified as a life felony.
For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed, and a misdemeanor offense that is reclassified under this subsection is ranked in level 2 of the offense severity ranking chart.
(11) The prosecutor may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, coconspirators, or principals or of any other person engaged in fraudulent possession or use of personal identification information. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance.
(12) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of this state or any of its political subdivisions, of any other state or its political subdivisions, or of the Federal Government or its political subdivisions.
(13)(a) In sentencing a defendant convicted of an offense under this section, the court may order that the defendant make restitution under s. 775.089 to any victim of the offense. In addition to the victim’s out-of-pocket costs, restitution may include payment of any other costs, including attorney’s fees incurred by the victim in clearing the victim’s credit history or credit rating, or any costs incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as the result of the actions of the defendant.
(b) The sentencing court may issue such orders as are necessary to correct any public record that contains false information given in violation of this section.
(14) Prosecutions for violations of this section may be brought on behalf of the state by any state attorney or by the statewide prosecutor.
(15) The Legislature finds that, in the absence of evidence to the contrary, the location where a victim gives or fails to give consent to the use of personal identification information is the county where the victim generally resides.
(16) Notwithstanding any other provision of law, venue for the prosecution and trial of violations of this section may be commenced and maintained in any county in which an element of the offense occurred, including the county where the victim generally resides.
(17) A prosecution of an offense prohibited under subsection (2), subsection (6), or subsection (7) must be commenced within 3 years after the offense occurred. However, a prosecution may be commenced within 1 year after discovery of the offense by an aggrieved party, or by a person who has a legal duty to represent the aggrieved party and who is not a party to the offense, if such prosecution is commenced within 5 years after the violation occurred.
History.—s. 1, ch. 99-335; s. 1, ch. 2001-233; s. 1, ch. 2003-71; s. 1, ch. 2005-229; s. 41, ch. 2010-209.
817.5681 Breach of security concerning confidential personal information in third-party possession; administrative penalties.—
(1)(a) Any person who conducts business in this state and maintains computerized data in a system that includes personal information shall provide notice of any breach of the security of the system, following a determination of the breach, to any resident of this state whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The notification shall be made without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in subsection (3) and paragraph (10)(a), or subject to any measures necessary to determine the presence, nature, and scope of the breach and restore the reasonable integrity of the system. Notification must be made no later than 45 days following the determination of the breach unless otherwise provided in this section.
(b) Any person required to make notification under paragraph (a) who fails to do so within 45 days following the determination of a breach or receipt of notice from law enforcement as provided in subsection (3) is liable for an administrative fine not to exceed $500,000, as follows:
1. In the amount of $1,000 for each day the breach goes undisclosed for up to 30 days and, thereafter, $50,000 for each 30-day period or portion thereof for up to 180 days.
2. If notification is not made within 180 days, any person required to make notification under paragraph (a) who fails to do so is subject to an administrative fine of up to $500,000.
(c) The administrative sanctions for failure to notify provided in this subsection shall apply per breach and not per individual affected by the breach.
(d) The administrative sanctions for failure to notify provided in this subsection shall not apply in the case of personal information in the custody of any governmental agency or subdivision, unless that governmental agency or subdivision has entered into a contract with a contractor or third-party administrator to provide governmental services. In such case, the contractor or third-party administrator shall be a person to whom the administrative sanctions provided in this subsection would apply, although such contractor or third-party administrator found in violation of the notification requirements provided in this subsection would not have an action for contribution or setoff available against the employing agency or subdivision.
(2)(a) Any person who maintains computerized data that includes personal information on behalf of another business entity shall disclose to the business entity for which the information is maintained any breach of the security of the system as soon as practicable, but no later than 10 days following the determination, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The person who maintains the data on behalf of another business entity and the business entity on whose behalf the data is maintained may agree who will provide the notice, if any is required, as provided in paragraph (1)(a), provided only a single notice for each breach of the security of the system shall be required. If agreement regarding notification cannot be reached, the person who has the direct business relationship with the resident of this state shall be subject to the provisions of paragraph (1)(a).
(b) Any person required to disclose to a business entity under paragraph (a) who fails to do so within 10 days after the determination of a breach or receipt of notification from law enforcement as provided in subsection (3) is liable for an administrative fine not to exceed $500,000, as follows:
1. In the amount of $1,000 for each day the breach goes undisclosed for up to 30 days and, thereafter, $50,000 for each 30-day period or portion thereof for up to 180 days.
2. If disclosure is not made within 180 days, any person required to make disclosures under paragraph (a) who fails to do so is subject to an administrative fine of up to $500,000.
(c) The administrative sanctions for nondisclosure provided in this subsection shall apply per breach and not per individual affected by the breach.
(d) The administrative sanctions for nondisclosure provided in this subsection shall not apply in the case of personal information in the custody of any governmental agency or subdivision unless that governmental agency or subdivision has entered into a contract with a contractor or third-party administrator to provide governmental services. In such case, the contractor or third-party administrator shall be a person to whom the administrative sanctions provided in this subsection would apply, although such contractor or third-party administrator found in violation of the nondisclosure restrictions in this subsection would not have an action for contribution or setoff available against the employing agency or subdivision.
(3) The notification required by this section may be delayed upon a request by law enforcement if a law enforcement agency determines that the notification will impede a criminal investigation. The notification time period required by this section shall commence after the person receives notice from the law enforcement agency that the notification will not compromise the investigation.
(4) For purposes of this section, the terms “breach” and “breach of the security of the system” mean unlawful and unauthorized acquisition of computerized data that materially compromises the security, confidentiality, or integrity of personal information maintained by the person. Good faith acquisition of personal information by an employee or agent of the person is not a breach or breach of the security of the system, provided the information is not used for a purpose unrelated to the business or subject to further unauthorized use.
(5) For purposes of this section, the term “personal information” means an individual’s first name, first initial and last name, or any middle name and last name, in combination with any one or more of the following data elements when the data elements are not encrypted:
(a) Social security number.
(b) Driver’s license number or Florida Identification Card number.
(c) Account number, credit card number, or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
For purposes of this section, the term “personal information” does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records or widely distributed media.
(6) For purposes of this section, notice may be provided by one of the following methods:
(a) Written notice;
(b) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. s. 7001 or if the person or business providing the notice has a valid e-mail address for the subject person and the subject person has agreed to accept communications electronically; or
(c) Substitute notice, if the person demonstrates that the cost of providing notice would exceed $250,000, the affected class of subject persons to be notified exceeds 500,000, or the person does not have sufficient contact information. Substitute notice shall consist of all of the following:
1. Electronic mail or e-mail notice when the person has an electronic mail or e-mail address for the subject persons.
2. Conspicuous posting of the notice on the web page of the person, if the person maintains a web page.
3. Notification to major statewide media.
(7) For purposes of this section, the term “unauthorized person” means any person who does not have permission from, or a password issued by, the person who stores the computerized data to acquire such data, but does not include any individual to whom the personal information pertains.
(8) For purposes of this section, the term “person” means a person as defined in s. 1.01(3). For purposes of this section, the State of Florida, as well as any of its agencies or political subdivisions, and any of the agencies of its political subdivisions, constitutes a person.
(9) Notwithstanding subsection (6), a person who maintains:
(a) The person’s own notification procedures as part of an information security or privacy policy for the treatment of personal information, which procedures are otherwise consistent with the timing requirements of this part; or
(b) A notification procedure pursuant to the rules, regulations, procedures, or guidelines established by the person’s primary or functional federal regulator,
shall be deemed to be in compliance with the notification requirements of this section if the person notifies subject persons in accordance with the person’s policies or the rules, regulations, procedures, or guidelines established by the primary or functional federal regulator in the event of a breach of security of the system.
(10)(a) Notwithstanding subsection (2), notification is not required if, after an appropriate investigation or after consultation with relevant federal, state, and local agencies responsible for law enforcement, the person reasonably determines that the breach has not and will not likely result in harm to the individuals whose personal information has been acquired and accessed. Such a determination must be documented in writing and the documentation must be maintained for 5 years.
(b) Any person required to document a failure to notify affected persons who fails to document the failure as required in this subsection or who, if documentation was created, fails to maintain the documentation for the full 5 years as required in this subsection is liable for an administrative fine in the amount of up to $50,000 for such failure.
(c) The administrative sanctions outlined in this subsection shall not apply in the case of personal information in the custody of any governmental agency or subdivision, unless that governmental agency or subdivision has entered into a contract with a contractor or third-party administrator to provide governmental services. In such case the contractor or third-party administrator shall be a person to whom the administrative sanctions outlined in this subsection would apply, although such contractor or third-party administrator found in violation of the documentation and maintenance of documentation requirements in this subsection would not have an action for contribution or setoff available against the employing agency or subdivision.
(11) The Department of Legal Affairs may institute proceedings to assess and collect the fines provided in this section.
(12) If a person discovers circumstances requiring notification pursuant to this section of more than 1,000 persons at a single time, the person shall also notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis, as defined in 15 U.S.C. s. 1681a(p), of the timing, distribution, and content of the notices.
History.—s. 2, ch. 2005-229.
817.569 Criminal use of a public record or public records information; penalties.—A person who knowingly uses any public record, as defined in s. 119.011, or who knowingly uses information obtainable only through such public record, to facilitate or further the commission of:
(1) A misdemeanor of the first degree, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A felony, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 1, ch. 2002-284.
PART II
CREDIT CARD CRIMES817.57 Short title.
817.58 Definitions.
817.59 False statement as to financial condition or identity.
817.60 Theft; obtaining credit card through fraudulent means.
817.61 Fraudulent use of credit cards.
817.611 Traffic in counterfeit credit cards.
817.612 Expired or revoked credit cards.
817.62 Fraud by person authorized to provide goods or services.
817.625 Use of scanning device or reencoder to defraud; penalties.
817.631 Possession and transfer of credit-card-making equipment.
817.64 Receipt of money, etc., obtained by fraudulent use of credit cards.
817.645 Alteration of credit card invoice; penalties.
817.646 Credit card lists prohibited; penalty.
817.65 Defenses not available.
817.66 Presumptions.
817.67 Penalties.
817.68 Part II not exclusive.
817.685 Credit card transaction records.
817.57 Short title.—Part II of this chapter shall be known and may be cited as the 1967 “State Credit Card Crime Act.”
History.—s. 13, ch. 67-340.
817.58 Definitions.—As used in ss. 817.57-817.685:
(1) “Acquirer” means a business organization, governmental entity, financial institution, or an agent of a business organization, governmental entity, or financial institution that authorizes a merchant to accept payment by credit card for money, goods, services, or anything else of value.
(2) “Cardholder” means the person or organization named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.
(3) “Counterfeit credit card” means any credit card which is fictitious, altered, or forged; any facsimile or false representation, depiction, or component of a credit card; or any credit card which is stolen, obtained as part of a scheme to defraud, or otherwise unlawfully obtained, and which may or may not be embossed with account information or a company logo.
(4) “Credit card” means any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, electronic benefits transfer (EBT) card, or debit card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit or for use in an automated banking device to obtain any of the services offered through the device.
(5) “Expired credit card” means a credit card which is no longer valid because the term shown on it has elapsed.
(6) “Issuer” means the business organization, state or federal government, or financial institution, or its duly authorized agent, which issues a credit card.
(7) “Receives” or “receiving” means acquiring possession or control or accepting as security for a loan a credit card.
(8) “Revoked credit card” means a credit card which is no longer valid because permission to use it has been suspended or terminated by the issuer.
(9) “Credit-card-making equipment” means any equipment, machine, plate, mechanism, impression, or any other device designed, used, or capable of being used to produce a credit card, a counterfeit credit card, or any aspect or component of a credit card.
(10) “Traffic” means to sell, transfer, distribute, dispense, or otherwise dispose of a property or to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.
History.—s. 1, ch. 67-340; ss. 2, 10, ch. 84-297; s. 1, ch. 85-43; s. 1, ch. 88-198; s. 5, ch. 95-431.
817.59 False statement as to financial condition or identity.—A person who makes or causes to be made, either directly or indirectly, any false statement as to a material fact in writing, knowing it to be false and with intent that it be relied on respecting his or her identity or that of any other person, firm, or corporation or his or her financial condition or that of any other person, firm, or corporation, for the purpose of procuring the issuance of a credit card, violates this section and is subject to the penalties set forth in s. 817.67(1).
History.—s. 2, ch. 67-340; s. 1268, ch. 97-102.
817.60 Theft; obtaining credit card through fraudulent means.—
(1) THEFT BY TAKING OR RETAINING POSSESSION OF CARD TAKEN.—A person who takes a credit card from the person, possession, custody, or control of another without the cardholder’s consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of credit card theft and is subject to the penalties set forth in s. 817.67(1). Taking a credit card without consent includes obtaining it by conduct defined or known as statutory larceny, common-law larceny by trespassory taking, common-law larceny by trick or embezzlement or obtaining property by false pretense, false promise or extortion.
(2) THEFT OF CREDIT CARD LOST, MISLAID, OR DELIVERED BY MISTAKE.—A person who receives a credit card that he or she knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and who retains possession with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of credit card theft and is subject to the penalties set forth in s. 817.67(1).
(3) PURCHASE OR SALE OF CREDIT CARD OF ANOTHER.—A person other than the issuer who sells a credit card or a person who buys a credit card from a person other than the issuer violates this subsection and is subject to the penalties set forth in s. 817.67(1).
(4) OBTAINING CONTROL OF CREDIT CARD AS SECURITY FOR DEBT.—A person who, with intent to defraud the issuer, a person or organization providing money, goods, services, or anything else of value, or any other person, obtains control over a credit card as security for a debt violates this subsection and is subject to the penalties set forth in s. 817.67(1).
(5) DEALING IN CREDIT CARDS OF ANOTHER.—A person other than the issuer who, during any 12-month period, receives two or more credit cards issued in the name or names of different cardholders, which cards he or she has reason to know were taken or retained under circumstances which constitute credit card theft or a violation of this part, violates this subsection and is subject to the penalties set forth in s. 817.67(2).
(6) FORGERY OF CREDIT CARD.—
(a) A person who, with intent to defraud a purported issuer or a person or organization providing money, goods, services, or anything else of value or any other person, falsely makes, falsely embosses, or falsely alters in any manner a credit card or utters such a credit card or who, with intent to defraud, has a counterfeit credit card or any invoice, voucher, sales draft, or other representation or manifestation of a counterfeit credit card in his or her possession, custody, or control is guilty of credit card forgery and is subject to the penalties set forth in s. 817.67(2).
(b) A person other than an authorized manufacturer or issuer who possesses two or more counterfeit credit cards is presumed to have violated this subsection.
(c) A person falsely makes a credit card when he or she makes or draws in whole or in part a device or instrument which purports to be the credit card of a named issuer but which is not such a credit card because the issuer did not authorize the making or drawing or when he or she alters a credit card which was validly issued.
(d) A person falsely embosses a credit card when, without the authorization of the named issuer, he or she completes a credit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder.
(7) SIGNING CREDIT CARD OF ANOTHER.—A person other than the cardholder or a person authorized by him or her who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value or any other person, signs a credit card violates this subsection and is subject to the penalties set forth in s. 817.67(1).
(8) UNLAWFUL POSSESSION OF A STOLEN CREDIT OR DEBIT CARD.—A person who knowingly possesses, receives, or retains custody of a credit or debit card that has been taken from the possession, custody, or control of another without the cardholder’s consent and with the intent to impede the recovery of the credit or debit card by the cardholder commits unlawful possession of a stolen credit or debit card and is subject to the penalties set forth in s. 817.67(2). It is not a violation of this subsection for a retailer or retail employee, in the ordinary course of business, to possess, receive, or return a credit card or debit card that the retailer or retail employee does not know was stolen or to possess, receive, or retain a credit card or debit card that the retailer or retail employee knows is stolen for the purpose of an investigation into the circumstances regarding the theft of the card or its possible unlawful use.
History.—s. 3, ch. 67-340; s. 3, ch. 84-297; s. 2, ch. 85-43; s. 69, ch. 85-62; s. 1269, ch. 97-102; s. 1, ch. 2011-184.
817.61 Fraudulent use of credit cards.—A person who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value or any other person, uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part or a credit card which he or she knows is forged, or who obtains money, goods, services, or anything else of value by representing, without the consent of the cardholder, that he or she is the holder of a specified card or by representing that he or she is the holder of a card and such card has not in fact been issued violates this section. A person who, in any 6-month period, uses a credit card in violation of this section two or fewer times, or obtains money, goods, services, or anything else in violation of this section the value of which is less than $100, is subject to the penalties set forth in s. 817.67(1). A person who, in any 6-month period, uses a credit card in violation of this section more than two times, or obtains money, goods, services, or anything else in violation of this section the value of which is $100 or more, is subject to the penalties set forth in s. 817.67(2).
History.—s. 4, ch. 67-340; s. 4, ch. 84-297; s. 3, ch. 85-43; s. 75, ch. 95-211; s. 1270, ch. 97-102.
817.611 Traffic in counterfeit credit cards.—Any person who traffics in or attempts to traffic in 10 or more counterfeit credit cards, invoices, vouchers, sales drafts, or other representations or manifestations of counterfeit credit cards, or credit card account numbers of another in any 6-month period is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 4, ch. 85-43.
817.612 Expired or revoked credit cards.—A person who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value, uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card which he or she knows is expired or revoked violates this section and is subject to the penalties set forth in s. 817.67(1). Knowledge of revocation shall be presumed to have been received by a cardholder 7 days after such notice has been mailed to him or her by first-class mail at the last known address.
History.—s. 5, ch. 85-43; s. 1271, ch. 97-102.
817.62 Fraud by person authorized to provide goods or services.—
(1) ILLEGALLY OBTAINED OR ILLEGALLY POSSESSED CREDIT CARD; FORGED, REVOKED, OR EXPIRED CREDIT CARD.—A person who is authorized by an acquirer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employee of such person, who, with intent to defraud the issuer, the acquirer, or the cardholder, furnishes money, goods, services, or anything else of value upon presentation of a credit card obtained or retained in violation of this part or a credit card which he or she knows is forged, expired, or revoked violates this subsection and is subject to the penalties set forth in s. 817.67(1), if the value of all money, goods, services, and other things of value furnished in violation of this subsection does not exceed $300 in any 6-month period. The violator is subject to the penalties set forth in s. 817.67(2) if such value does exceed $300 in any 6-month period.
(2) MISREPRESENTATION TO ISSUER OR ACQUIRER.—A person who is authorized by an acquirer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employee of such person, who, with intent to defraud the issuer, the acquirer, or the cardholder, fails to furnish money, goods, services, or anything else of value which he or she represents in writing to the issuer or the acquirer that he or she has furnished violates this subsection and is subject to the penalties set forth in s. 817.67(2).
(3) ILLEGALLY FACTORING CREDIT CARD TRANSACTIONS.—
(a) A person who is authorized by an acquirer to furnish money, goods, services, or anything else of value upon presentation of a credit card or a credit card account number by a cardholder, or any agent or employee of such person, who, with intent to defraud the issuer, the acquirer, or the cardholder, presents to the issuer or acquirer, for payment, a credit card transaction record of a sale, which sale was not made by such person or his or her agent or employee, violates this paragraph and is subject to the penalties set forth in s. 817.67(2).
(b) A person who, without the acquirer’s authorization, employs, solicits, or otherwise causes a person who is authorized by an acquirer to furnish money, goods, services, or anything else of value upon presentation of a credit card or a credit card account number by a cardholder, or employs, solicits, or otherwise causes an agent or employee of such authorized person, to remit to the acquirer a credit card transaction record of a sale that was not made by such authorized person or his or her agent or employee violates this paragraph and is subject to the penalties set forth in s. 817.67(2).
(c) Any violation of this subsection constitutes an unfair or deceptive act or practice within the meaning of s. 501.204 and thus the basis for a civil or administrative action by an enforcing authority pursuant to part II of chapter 501.
History.—s. 5, ch. 67-340; s. 5, ch. 84-297; s. 6, ch. 86-161; s. 2, ch. 88-198; s. 1, ch. 89-27; s. 1272, ch. 97-102.
817.625 Use of scanning device or reencoder to defraud; penalties.—
(1) As used in this section, the term:
(a) “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card.
(b) “Reencoder” means an electronic device that places encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card.
(c) “Payment card” means a credit card, charge card, debit card, or any other card that is issued to an authorized card user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
(d) “Merchant” means a person who receives from an authorized user of a payment card, or someone the person believes to be an authorized user, a payment card or information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from the person.
(2)(a) It is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, for a person to use:
1. A scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card without the permission of the authorized user of the payment card and with the intent to defraud the authorized user, the issuer of the authorized user’s payment card, or a merchant.
2. A reencoder to place information encoded on the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different card without the permission of the authorized user of the card from which the information is being reencoded and with the intent to defraud the authorized user, the issuer of the authorized user’s payment card, or a merchant.
(b) Any person who violates subparagraph (a)1. or subparagraph (a)2. a second or subsequent time commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) Any person who violates subparagraph (a)1. or subparagraph (a)2. shall also be subject to the provisions of ss. 932.701-932.706.
History.—s. 7, ch. 2001-115; s. 163, ch. 2008-4.
817.631 Possession and transfer of credit-card-making equipment.—A person who receives, possesses, transfers, buys, sells, controls, or has custody of any credit-card-making equipment with intent that such equipment be used in the production of counterfeit credit cards violates this section and is subject to the penalties set forth in s. 817.67(2).
History.—s. 6, ch. 85-43.
817.64 Receipt of money, etc., obtained by fraudulent use of credit cards.—A person who receives money, goods, services, or anything else of value obtained in violation of s. 817.61, knowing or believing that it was so obtained, violates this section and is subject to the penalties set forth in s. 817.67(1). A person who obtains at a discount price a ticket issued by an airline, railroad, steamship, or other transportation company which was acquired in violation of s. 817.61 without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circumstances constituting a violation of s. 817.61.
History.—s. 7, ch. 67-340.
817.645 Alteration of credit card invoice; penalties.—Whoever, with intent to defraud any person, falsely alters any invoice for money, goods, services, or anything else of value obtained by use of a credit card after it has been signed by the cardholder or a person authorized by him or her violates this section and is subject to the penalties set forth in s. 817.67(1).
History.—s. 1, ch. 72-127; s. 1273, ch. 97-102.
817.646 Credit card lists prohibited; penalty.—
(1) It is unlawful for any person, business, corporation, partnership, or other agency to make available, lend, donate, or sell any list or portion of a list of any credit card subscribers and their addresses and account numbers to any third party without the express written permission of the issuer and the subscribers; except that a credit card issuer may make a list of its cardholders, including names, addresses, and account numbers, available, without the permission of the subscribers, to a third party pursuant to a contract, if such contract contains language requiring the third party to bind through contract each of its subcontractors by including language prohibiting the divulging of any part of the list for any purpose by the subcontractors except to fulfill and service orders pursuant to the contract between the credit card issuer and the authorized third party. However, notwithstanding any contrary provision of this section, a “consumer reporting agency,” as that term is defined by the Fair Credit Reporting Act, Pub. L. No. 91-508, may provide lists of credit account names, addresses, and account numbers to third parties pursuant to the provisions of that act. Nothing herein shall make unlawful or otherwise prohibit the transmittal of any such information to or from a “consumer reporting agency,” as that term is defined in the Fair Credit Reporting Act, or a “debt collector,” as that term is defined in the Fair Debt Collection Practices Act, Pub. L. No. 95-109. Notwithstanding the provisions of this section:
(a) A corporation may make available, lend, donate, or sell any list or portion of a list of any credit card subscribers and their addresses and account numbers to a subsidiary or the parent corporation of such corporation or to another subsidiary of the common parent corporation; and
(b) Any business entity may lawfully obtain the names, addresses, and account numbers of its own customers. Such information may only be maintained to serve the needs of its customers for its own promotional or marketing purposes.
(2) A violator of this section is subject to the penalties set forth in s. 817.67(1).
History.—s. 6, ch. 84-297; s. 70, ch. 85-62; s. 3, ch. 95-234.
817.65 Defenses not available.—It shall not constitute a defense to a prosecution for any violation of this part that:
(1) A credit card that is not a counterfeit credit card is offered for use or sale as a counterfeit credit card.
(2) A person, other than the defendant, who violated this part has not been convicted, apprehended, or identified.
History.—s. 8, ch. 67-340; s. 7, ch. 85-43.
817.66 Presumptions.—When this part establishes a presumption with respect to any fact which is an element of a crime, it has the following consequences:
(1) When there is sufficient evidence of the facts which give rise to the presumption to go to the jury, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed fact; and
(2) When the issue of the existence of the presumed fact is submitted to the jury, the court shall charge that while the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact.
History.—s. 9, ch. 67-340.
817.67 Penalties.—
(1) A person who is subject to the penalties of this subsection shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A person who is subject to the penalties of this subsection 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. 10, ch. 67-340; s. 883, ch. 71-136; s. 2, ch. 89-27.
817.68 Part II not exclusive.—This part shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this part, unless such provision is inconsistent with the terms of this part.
History.—s. 11, ch. 67-340.
817.685 Credit card transaction records.—In any action brought under this part, the authentication or identification of the business records of a credit card issuer is evidence sufficient to support a finding that the record in question is what its proponent claims, if the records are supported by the testimony of a designated representative of the credit card issuer. Such designated representative who has received the business records from the custodian of such records shall be considered a qualified witness within the meaning of s. 90.803(6)(a).
History.—s. 8, ch. 85-43.
PART III
CREDIT SERVICE ORGANIZATIONS817.7001 Definitions.
817.7005 Prohibited acts.
817.701 Surety bonds; exemption.
817.702 Statement to buyer.
817.703 Information statement.
817.704 Provisions of contract.
817.705 Waivers; burden of proof; penalties.
817.706 Actions for damages.
817.7001 Definitions.—As used in this part:
(1) “Buyer” means any individual who is solicited to purchase, or who purchases, the services of a credit service organization.
(2)(a) “Credit service organization” means any person who, with respect to the extension of credit by others, sells, provides, performs, or represents that he or she can or will sell, provide, or perform, in return for the payment of money or other valuable consideration, any of the following services:
1. Improving a buyer’s credit record, history, or rating;
2. Obtaining an extension of credit for a buyer; or
3. Providing advice or assistance to a buyer with regard to the services described in either subparagraph 1. or subparagraph 2.
(b) “Credit service organization” does not include:
1. Any person authorized to make loans or extensions of credit under the laws of this state or the United States who is subject to regulation and supervision by this state or the United States or a lender approved by the United States Secretary of Housing and Urban Development for participation in any mortgage insurance program under the National Housing Act;
2. Any bank, savings bank, or savings and loan association whose deposits or accounts are eligible for insurance by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or a subsidiary of such bank, savings bank, or savings and loan association;
3. Any credit union, federal credit union, or out-of-state credit union doing business in this state;
4. Any nonprofit organization exempt from taxation under s. 501(c)(3) of the Internal Revenue Code;
5. Any person licensed as a real estate broker by this state if the person is acting within the course and scope of that license;
6. Any person collecting consumer claims pursuant to s. 559.72;
7. Any person licensed to practice law in this state if the person renders services within the course and scope of his or her practice as an attorney and does not engage in the credit service business on a regular and continuing basis;
8. Any broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission if the broker-dealer is acting within the course and scope of that regulation; or
9. Any consumer reporting agency as defined in the Federal Fair Credit Reporting Act, 15 U.S.C. ss. 1681-1681t.
(3) “Extension of credit” means the right to defer payment of debt or to incur debt and defer its payment offered or granted primarily for personal, family, or household purposes.
History.—s. 1, ch. 87-204.
817.7005 Prohibited acts.—A credit service organization, its salespersons, agents, and representatives, and independent contractors who sell or attempt to sell the services of a credit service organization shall not do any of the following:
(1) Charge or receive any money or other valuable consideration prior to full and complete performance of the services the credit service organization has agreed to perform for the buyer, unless the credit service organization has obtained a surety bond of $10,000 issued by a surety company admitted to do business in this state and has established a trust account at a federally insured bank or savings and loan association located in this state; however, where a credit service organization has obtained a surety bond and established a trust account as provided herein, the credit service organization may charge or receive money or other valuable consideration prior to full and complete performance of the services it has agreed to perform for the buyer but shall deposit all money or other valuable consideration received in its trust account until the full and complete performance of the services it has agreed to perform for the buyer;
(2) Charge or receive any money or other valuable consideration solely for referral of the buyer to a retail seller or to any other credit grantor, who will or may extend credit to the buyer if the credit that is or will be extended to the buyer is upon substantially the same terms as those available to the general public;
(3) Make, or counsel or advise any buyer to make, any statement that is false or misleading or that should be known by the exercise of reasonable care to be false or misleading, or omit any material fact to a consumer reporting agency or to any person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit with respect to a buyer’s credit worthiness, credit standing, or credit capacity; or
(4) Make or use any false or misleading representations or omit any material fact in the offer or sale of the services of a credit service organization or engage, directly or indirectly, in any act, practice, or course of business that operates or would operate as fraud or deception upon any person in connection with the offer or sale of the services of a credit service organization, notwithstanding the absence of reliance by the buyer.
History.—s. 1, ch. 87-204.
817.701 Surety bonds; exemption.—The requirement to obtain a surety bond and establish a trust account as provided in s. 817.7005(1) shall be waived for any salesperson, agent, or representative of a credit service organization where the credit service organization obtains such surety bond and establishes such trust account.
History.—s. 1, ch. 87-204.
817.702 Statement to buyer.—Upon execution of the contract as provided in s. 817.704 or agreement between the buyer and a credit service organization and before the receipt by the credit service organization of any money or other valuable consideration, whichever occurs first, the credit service organization shall provide the buyer with a statement, in writing, containing all the information required by s. 817.703. The credit service organization shall maintain on file for a period of 5 years an exact copy of the statement, personally signed by the buyer, acknowledging receipt of a copy of the statement.
History.—s. 1, ch. 87-204.
817.703 Information statement.—The information statement required under s. 817.702 shall include all of the following:
(1)(a) A complete and accurate statement of the buyer’s right to review any file on the buyer maintained by any consumer reporting agency, as provided under the Federal Fair Credit Reporting Act, 15 U.S.C. ss. 1681-1681t;
(b) A statement that the buyer may review his or her consumer reporting agency file at no charge if a request is made to the consumer reporting agency within 30 days after receiving notice that credit has been denied; and
(c) The approximate price the buyer will be charged by the consumer reporting agency to review his or her consumer reporting agency file.
(2) A complete and accurate statement of the buyer’s right to dispute directly with a consumer reporting agency the completeness or accuracy of any item contained in any file on the buyer maintained by the consumer reporting agency.
(3) A statement that accurate information cannot be permanently removed from the file of a consumer reporting agency.
(4) A complete and detailed description of the service to be performed by the credit service organization for the buyer and the total amount the buyer will have to pay, or become obligated to pay, for the services.
(5) A statement notifying the buyer of his or her right to proceed against the bond or trust account required under s. 817.7005.
(6) The name and address of the surety company which issued the bond, or the name and address of the depository and the trustee and the account number of the trust account.
History.—s. 1, ch. 87-204; s. 1274, ch. 97-102.
817.704 Provisions of contract.—
(1) Each contract between the buyer and a credit service organization for the purchase of the services of the credit service organization shall be in writing, dated, signed by the buyer, and shall include all of the following:
(a) A conspicuous statement in boldfaced type, in immediate proximity to the space reserved for the signature of the buyer, as follows: “You, the buyer, may cancel this contract at any time prior to midnight of the fifth day after the date of the transaction. See the attached notice of cancellation form for an explanation of this right”;
(b) The terms and conditions of payment, including the total of all payments to be made by the buyer, specifying the amount of the payments to be made to the credit service organization or to some other person;
(c) A full and detailed description of the services to be performed by the credit service organization for the buyer, including all guarantees and all promises of full or partial refunds, and the estimated date by which the services are to be performed or the estimated length of time for performing the services; and
(d) The credit service organization’s principal business address and the name and address of its agent in the state authorized to receive service of process.
(2) The contract shall be accompanied by a completed form in duplicate, captioned “Notice of Cancellation,” that shall be attached to the contract, be easily detachable, and contain in boldfaced type the following statement written in the same language used in the contract:
NOTICE OF CANCELLATION
You may cancel this contract, without any penalty or obligation, within 5 days from the date the contract is signed.
If you cancel any payment made by you under this contract, it will be returned within 10 days following receipt by the credit service organization of your cancellation notice.
To cancel this contract, mail or deliver a signed dated copy of this cancellation notice, or any other written notice to:
(name of credit service organization) at
(address of credit service organization) ,
(place of business) not later than midnight
(date) .
I hereby cancel this transaction (date) .
(purchaser’s signature) .
The credit service organization shall give to the buyer a copy of the completed contract and all other documents the credit service organization requires the buyer to sign at the time they are signed.
History.—s. 1, ch. 87-204.
817.705 Waivers; burden of proof; penalties.—
(1) Any waiver by a buyer of any part of this part is void. Any attempt by a credit service organization to have a buyer waive rights given by this part is a violation of this part.
(2) In any proceeding involving this part, the burden of proving an exemption or an exception from a definition is upon the person claiming it.
(3) Any person who violates this part is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) This section does not prohibit the enforcement by any person of any right provided by this or any other law.
History.—s. 1, ch. 87-204.
817.706 Actions for damages.—
(1) Any buyer injured by a violation of this part may bring an action for recovery of damages. Judgment shall be entered for actual damages, but in no case less than the amount paid by the buyer to the credit service organization, plus reasonable attorney’s fees and costs. An award may also be entered for punitive damages.
(2) Any buyer injured by a violation of this part may bring an action against the surety bond or trust account of the credit service organization.
(3) The remedies provided under this part are in addition to any other procedures or remedies for any violation or conduct provided for in any other law.
History.—s. 1, ch. 87-204.
PART IV
CREDIT COUNSELING SERVICES817.801 Definitions.
817.802 Unlawful fees and costs.
817.803 Exceptions.
817.804 Requirements; disclosure and financial reporting.
817.805 Disbursement of funds.
817.806 Violations.
817.801 Definitions.—As used in this part:
(1) “Credit counseling agency” means any organization providing debt management services or credit counseling services.
(2) “Credit counseling services” means confidential money management, debt reduction, and financial educational services.
(3) “Creditor contribution” means any sum that a creditor agrees to contribute to a credit counseling agency, whether directly or by setoff against amounts otherwise payable to the creditor on behalf of debtors.
(4) “Debt management services” means services provided to a debtor by a credit counseling organization for a fee to:
(a) Effect the adjustment, compromise, or discharge of any unsecured account, note, or other indebtedness of the debtor; or
(b) Receive from the debtor and disburse to a creditor any money or other thing of value.
(5) “Person” means any individual, corporation, partnership, trust, association, or other legal entity.
History.—s. 1, ch. 2004-351; s. 1, ch. 2006-136.
817.802 Unlawful fees and costs.—
(1) It is unlawful for any person, while engaging in debt management services or credit counseling services, to charge or accept from a debtor residing in this state, directly or indirectly, a fee or contribution greater than $50 for the initial setup or initial consultation. Subsequently, the person may not charge or accept a fee or contribution from a debtor residing in this state greater than $120 per year for additional consultations or, alternatively, if debt management services as defined in s. 817.801(4)(b) are provided, the person may charge the greater of 7.5 percent of the amount paid monthly by the debtor to the person or $35 per month.
(2) This section does not prohibit any person, while engaging in debt management or credit counseling services, from imposing upon and receiving from a debtor a reasonable and separate charge or fee for insufficient funds transactions.
History.—s. 1, ch. 2004-351; s. 2, ch. 2006-136.
817.803 Exceptions.—Nothing in this part applies to:
(1) Any debt management or credit counseling services provided in the practice of law in this state;
(2) Any person who engages in debt adjustment to adjust the indebtedness owed to such person; or
(3) The following entities or their subsidiaries:
(a) The Federal National Mortgage Association;
(b) The Federal Home Loan Mortgage Corporation;
(c) The Florida Housing Finance Corporation, a public corporation created in s. 420.504;
(d) A bank, bank holding company, trust company, savings and loan association, credit union, credit card bank, or savings bank that is regulated and supervised by the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Reserve, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of Financial Regulation of the Department of Financial Services, or any state banking regulator;
(e) A consumer reporting agency as defined in the Federal Fair Credit Reporting Act, 15 U.S.C. ss. 1681-1681y, as it existed on April 5, 2004; or
(f) Any subsidiary or affiliate of a bank holding company, its employees and its exclusive agents acting under written agreement.
History.—s. 1, ch. 2004-351.
817.804 Requirements; disclosure and financial reporting.—
(1) Any person engaged in debt management services or credit counseling services shall:
(a) Obtain from a licensed certified public accountant an annual audit in accordance with generally accepted auditing standards that shall include all accounts of such person in which the funds of debtors are deposited and from which payments are made to creditors on behalf of debtors.
(b) Obtain and maintain at all times insurance coverage for employee dishonesty, depositor’s forgery, and computer fraud. The insurance coverage must be in an amount not less than the greater of $100,000 or 10 percent of the monthly average of the aggregate amount of all deposits made for distribution to creditors with such person by all debtors for the 6 months immediately preceding the date of initial application for or renewal of the insurance. The deductible on such coverage shall not exceed 10 percent of the face amount of the policy coverage.
(2) A copy of the annual audit and insurance policies required by this section shall be available for public inspection at each branch location. Copies shall be provided, upon written request, to any party requesting a copy for a charge not to exceed the cost of the reproduction of documents.
History.—s. 1, ch. 2004-351; s. 3, ch. 2006-136.
817.805 Disbursement of funds.—Any person engaged in debt management or credit counseling services shall disburse to the appropriate creditors all funds received from a debtor, less any fees permitted by s. 817.802 and any creditor contributions, within 30 days after receipt of such funds. However, a creditor contribution may not reduce any sums to be credited to the account of a debtor making a payment to the credit counseling agency for further payment to the creditor. Further, any person engaged in such services shall maintain a separate trust account for the receipt of any funds from debtors and the disbursement of such funds on behalf of such debtors.
History.—s. 1, ch. 2004-351; s. 4, ch. 2006-136.
817.806 Violations.—
(1) Any person who violates any provision of this part commits an unfair or deceptive trade practice as defined in part II of chapter 501. Violators shall be subject to the penalties and remedies provided therein. Further, any consumer injured by a violation of this part may bring an action for recovery of damages. Judgment shall be entered for actual damages, but in no case less than the amount paid by the consumer to the credit counseling agency, plus reasonable attorney’s fees and costs.
(2) Any person who violates any provision of this part commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 2004-351.