Senate Bill 1594c1

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    Florida Senate - 1998                           CS for SB 1594

    By the Committee on Regulated Industries and Senator Klein





    315-2089A-98

  1                      A bill to be entitled

  2         An act relating to telephonic solicitations;

  3         amending s. 501.059, F.S.; providing

  4         legislative intent; revising provisions

  5         relating to telephonic solicitations; revising

  6         definitions; revising procedures for limiting

  7         or prohibiting telephonic solicitations;

  8         revising certain fees; providing for an

  9         affirmative defense; providing for notification

10         of candidates for public office; revising

11         requirements regulating telephonic

12         solicitations; requiring the Department of

13         Agriculture and Consumer Services to provide

14         certain notice of violations; providing for

15         legislative review of certain fees; amending s.

16         98.097, F.S.; providing that the central voter

17         file shall indicate voters on "no telephonic

18         solicitation" list; providing an effective

19         date.

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21  Be It Enacted by the Legislature of the State of Florida:

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23         Section 1.  Section 501.059, Florida Statutes, is

24  amended to read:

25         501.059  Telephonic Telephone solicitation.--

26         (1)  The Legislature, while recognizing the right of

27  persons and organizations to conduct telephonic solicitation

28  activities, acknowledges an individual's basic right to

29  privacy.  It is the intent of the Legislature to protect this

30  right to privacy in a way which does not restrict all

31  telephonic solicitation activities but rather allows

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    Florida Senate - 1998                           CS for SB 1594
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  1  individuals who do not want to receive uninvited telephonic

  2  solicitations to make it known to the public by placing their

  3  telephone numbers on the "no telephonic solicitations" list

  4  provided in this section.  Further, it is the intent of the

  5  Legislature to prohibit uninvited telephonic solicitations to

  6  such telephone numbers on the "no telephonic solicitations"

  7  list.  The Legislature finds that the method provided in this

  8  section for regulating uninvited telephonic solicitations is

  9  drawn in such a manner so as to minimize the burden on

10  solicitation activities.

11         (2)(1)  As used in this section:

12         (a)  "Telephonic solicitation sales call" means a call

13  made by a telephone solicitor to a residential, mobile, or

14  telephonic paging device telephone number consumer, for the

15  purpose of soliciting a sale of any consumer goods or

16  services, including calls made for the purpose of obtaining

17  information that will or may later be used for the

18  solicitation of a sale of consumer goods or services, or a

19  call made for the purpose of soliciting a contribution of

20  money, property, or financial assistance, or any other thing

21  of value, including requests on behalf of political parties,

22  candidates, or ballot proposals or for the purpose of

23  soliciting an extension of credit for consumer goods or

24  services, or for the purpose of obtaining information that

25  will or may be used for the direct solicitation of a sale of

26  consumer goods or services or an extension of credit for such

27  purposes.

28         (b)  "Consumer goods or services" means any real

29  property or any tangible or intangible personal property which

30  is normally used for personal, family, or household purposes,

31  including, without limitation, cemetery lots, timeshare

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    Florida Senate - 1998                           CS for SB 1594
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  1  estates, financial services, insurance, telecommunications

  2  services, and any such property intended to be attached to or

  3  installed in any real property without regard to whether it is

  4  so attached or installed, as well as cemetery lots and

  5  timeshare estates, and any services related to real such

  6  property or any tangible or intangible personal property.

  7         (c)  "Uninvited Unsolicited telephonic solicitation

  8  sales call" means a telephonic solicitation to any

  9  residential, mobile, or telephonic paging device telephone

10  number unless the telephonic solicitation is sales call other

11  than a call made:

12         1.  in response to an express request of the person

13  called, or in response to a sign or other form of

14  advertisement placed by the person called, or is directed to a

15  person with whom the telephone solicitor has a prior or an

16  existing relationship.  A telephonic solicitation made in

17  connection with an existing relationship includes, but is not

18  limited to, an inquiry regarding an existing debt, contract,

19  or warranty, payment or performance of which has not been

20  completed at the time of such call.;

21         2.  Primarily in connection with an existing debt or

22  contract, payment or performance of which has not been

23  completed at the time of such call;

24         3.  To any person with whom the telephone solicitor has

25  a prior or existing business relationship; or

26         4.  By a newspaper publisher or his or her agent or

27  employee in connection with his or her business.

28         (d)  "Commission" means the Florida Public Service

29  Commission.

30         (e)  "Telephone solicitor" means any natural person,

31  firm, organization, partnership, association, or corporation,

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  1  or a subsidiary or affiliate thereof, doing business in this

  2  state, who makes or causes to be made a telephonic

  3  solicitation sales call, including, but not limited to, calls

  4  made by use of automated dialing or recorded message devices

  5  from a location in this state, or from other states or

  6  nations, to residences, mobile telephones, or telephonic

  7  paging devices in this state.

  8         (f)  "Subscriber" means any individual who requests

  9  that the department place the individual's residential,

10  mobile, or telephonic paging device telephone number on the

11  department's no telephonic solicitation list and who pays the

12  applicable fee to the department. "Consumer" means an actual

13  or prospective purchaser, lessee, or recipient of consumer

14  goods or services.

15         (g)  "Merchant" means a person who, directly or

16  indirectly, offers or makes available to consumers any

17  consumer goods or services.

18         (h)  "Doing business in this state" refers to

19  businesses who conduct telephonic sales calls from a location

20  in Florida or from other states or nations to consumers

21  located in Florida.

22         (g)(i)  "Department" means the Department of

23  Agriculture and Consumer Services.

24         (3)(2)  Any telephone solicitor who calls makes an

25  unsolicited telephonic sales call to a residential, mobile, or

26  telephonic paging device telephone number shall identify

27  himself or herself by his or her true first and last names and

28  the business or organization on whose behalf he or she is

29  soliciting immediately upon making contact by telephone with

30  the person who is the object of the telephonic telephone

31  solicitation.

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    Florida Senate - 1998                           CS for SB 1594
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  1         (4)(3)(a)  Any residential, mobile, or telephonic

  2  paging device telephone subscriber desiring to be placed on a

  3  "no telephonic sales solicitation calls" listing indicating

  4  that the subscriber does not wish to receive uninvited

  5  unsolicited telephonic solicitations sales calls may notify

  6  the department and be placed on that listing upon receipt by

  7  the department of:

  8         1.  A nonrefundable $10 initial listing fee for a

  9  charge.  This listing which may shall be renewed by the

10  department annually for each consumer upon receipt by the

11  department of a renewal notice and a $5 listing fee; or

12         2.  A nonrefundable $15 listing fee for a listing which

13  shall remain in effect for 3 years and may be renewed upon

14  receipt by the department of a nonrefundable $15 listing fee

15  assessment.

16         (b)  The department shall update its "no telephonic

17  sales solicitation calls" listing upon receipt of initial

18  consumer subscriptions or renewals. The department shall

19  compile such listings three times each year and shall provide

20  this listing at least 30 days prior to the first day of April,

21  August, and December, when the listings shall be considered

22  current, for a fee to telephone solicitors upon request.

23         (c)  All fees imposed pursuant to this section shall be

24  deposited in the General Inspection Trust Fund for the

25  administration of this section.

26         (5)(4)  No telephone solicitor shall make or cause to

27  be made any uninvited unsolicited telephonic solicitation

28  sales call to any residential, mobile, or telephonic paging

29  device telephone number appearing on if the number for that

30  telephone appears in the then-current quarterly listing

31  published by the department.  Any telephone solicitor or

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    Florida Senate - 1998                           CS for SB 1594
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  1  person who offers for sale any consumer information which

  2  includes residential, mobile, or telephonic paging device

  3  telephone numbers, except directory assistance and telephone

  4  directories sold by telephone companies and organizations

  5  exempt under s. 501(c)(3) or (6) of the Internal Revenue Code,

  6  shall screen and exclude those numbers which appear on the

  7  department's division's then-current "no telephonic sales

  8  solicitation calls" list. This subsection does not apply to

  9  any person licensed pursuant to chapter 475 who calls an

10  actual or prospective seller or lessor of real property when

11  such call is made in response to a yard sign or other form of

12  advertisement placed by the seller or lessor.

13         (6)(5)(a)  A contract made pursuant to a telephonic

14  solicitation sales call is not valid and enforceable against a

15  consumer unless made in compliance with this subsection.

16         (b)  A contract made pursuant to a telephonic

17  solicitation sales call:

18         1.  Shall be reduced to writing and signed by the

19  consumer.

20         2.  Shall comply with all other applicable laws and

21  rules.

22         3.  Shall match the description of goods or services as

23  principally used in the telephonic telephone solicitations.

24         4.  Shall contain the name, address, and telephone

25  number of the seller, the total price of the contract, and a

26  detailed description of the goods or services being sold.

27         5.  Shall contain, in bold, conspicuous type,

28  immediately preceding the signature, the following statement:

29         "You are not obligated to pay any money unless you sign

30  this contract and return it to the seller."

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    Florida Senate - 1998                           CS for SB 1594
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  1         6.  May not exclude from its terms any oral or written

  2  representations made by the telephone solicitor to the

  3  consumer in connection with the transaction.

  4         (c)  The provisions of this subsection do not apply to

  5  contractual sales regulated under other sections of the

  6  Florida Statutes, or to the sale of financial services,

  7  security sales, or sales transacted by companies or their

  8  wholly owned subsidiaries or agents, which companies are

  9  regulated by chapter 364, or to the sale of cable television

10  services to the duly franchised cable television operator's

11  existing subscribers within that cable television operator's

12  franchise area, or to any sales where no prior payment is made

13  to the merchant and an invoice accompanies the goods or

14  services allowing the consumer 7 days to cancel or return

15  without obligation for any payment.

16         (7)(a)  No telephone solicitor may make a subsequent

17  call to a subscriber in connection with a prior or existing

18  relationship when that subscriber has informed the telephone

19  solicitor that the subscriber does not want to receive any

20  more telephonic solicitations from, or on behalf of, that

21  particular telephone solicitor.

22         (b)  It shall be an affirmative defense in any action

23  brought under this subsection that the telephone solicitor

24  has:

25         1.  Established and implemented written procedures to

26  comply with this subsection;

27         2.  Trained its personnel in such procedures;

28         3.  Maintained and recorded current lists of persons

29  who have requested to receive no more telephonic solicitations

30  from the telephone solicitor in accordance with this

31  subsection; and

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    Florida Senate - 1998                           CS for SB 1594
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  1         4.  Made any subsequent call as the result of an error.

  2

  3  Nothing in this paragraph shall be construed to require the

  4  implementation of these procedures in order to comply with

  5  this subsection.

  6         (c)  This subsection does not apply to any telephonic

  7  solicitation made in connection with an existing debt or

  8  contract, payment, or performance of which has not been

  9  completed at the time of such call.

10         (8)(6)(a)  The officer with whom a person qualifies as

11  a candidate for public office pursuant to chapter 99 shall

12  notify the qualifying candidate of the provisions of this

13  section. A merchant who engages a telephone solicitor to make

14  or cause to be made a telephonic sales call shall not make or

15  submit any charge to the consumer's credit card account or

16  make or cause to be made any electronic transfer of funds

17  until after the merchant receives from the consumer a copy of

18  the contract, signed by the purchaser, which complies with

19  this section.

20         (b)  A merchant who conducts a credit card account

21  transaction pursuant to this section shall be subject to the

22  provisions of s. 817.62.

23         (c)  The provisions of this subsection do not apply to

24  a transaction:

25         1.  Made in accordance with prior negotiations in the

26  course of a visit by the consumer to a merchant operating a

27  retail business establishment which has a fixed permanent

28  location and where consumer goods are displayed or offered for

29  sale on a continuing basis;

30         2.  In which the consumer may obtain a full refund for

31  the return of undamaged and unused goods or a cancellation of

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    Florida Senate - 1998                           CS for SB 1594
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  1  services notice to the seller within 7 days after receipt by

  2  the consumer, and the seller will process the refund within 30

  3  days after receipt of the returned merchandise by the

  4  consumer;

  5         3.  In which the consumer purchases goods or services

  6  pursuant to an examination of a television, radio, or print

  7  advertisement or a sample, brochure, or catalog of the

  8  merchant that contains:

  9         a.  The name, address, and telephone number of the

10  merchant;

11         b.  A description of the goods or services being sold;

12  and

13         c.  Any limitations or restrictions that apply to the

14  offer; or

15         4.  In which the merchant is a bona fide charitable

16  organization or a newspaper as defined in chapter 50.

17         (9)(7)(a)  No person shall make or knowingly allow a

18  telephonic solicitation sales call to be made if such call

19  involves an automated system for the selection or dialing of

20  telephone numbers or the playing of a recorded message when a

21  connection is completed to a number called.

22         (b)  Nothing herein prohibits the use of an automated

23  telephone dialing system with live messages if the calls are

24  made or messages given solely in response to calls initiated

25  by the persons to whom the automatic calls or live messages

26  are directed or if the telephone numbers selected for

27  automatic dialing have been screened to exclude any telephone

28  number that subscriber who is included on the department's

29  then-current "no telephonic sales solicitation calls" listing

30  or any unlisted telephone number, or if the calls are directed

31  to a person with whom the telephone solicitor has a prior or

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  1  an existing relationship made concern goods or services that

  2  have been previously ordered or purchased. However, all

  3  automatic telephone dialing systems shall be equipped with a

  4  disconnect feature which automatically clears the telephone

  5  line after the person answering the telephone terminates the

  6  call.

  7         (10)(8)  The department shall investigate any

  8  complaints received concerning violations of this section.

  9  If, after investigating any complaint, the department finds

10  that there has been a violation of this section, the

11  department shall notify the telephone solicitor of such

12  violation. Upon a fourth violation, the department or the

13  Department of Legal Affairs may bring an action to impose a

14  civil penalty and to seek other relief, including injunctive

15  relief, as the court deems appropriate against the telephone

16  solicitor.  The civil penalty shall not exceed $10,000 per

17  violation and shall be deposited in the General Inspection

18  Trust Fund if the action or proceeding was brought by the

19  department, or the Consumer Frauds Trust Fund if the action or

20  proceeding was brought by the Department of Legal Affairs.

21  This civil penalty may be recovered in any action brought

22  under this part by the department, or the department may

23  terminate any investigation or action upon agreement by the

24  person to pay a stipulated civil penalty.  The department or

25  the court may waive any civil penalty if the person has

26  previously made full restitution or reimbursement or has paid

27  actual damages to the consumers who have been injured by the

28  violation.

29         (11)(9)(a)  In any civil litigation resulting from a

30  transaction involving a violation of this section, the

31  prevailing party, after judgment in the trial court and

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  1  exhaustion of all appeals, if any, shall receive his or her

  2  reasonable attorney's fees and costs from the nonprevailing

  3  party.

  4         (b)  The attorney for the prevailing party shall submit

  5  a sworn affidavit of his or her time spent on the case and his

  6  or her costs incurred for all the motions, hearings, and

  7  appeals to the trial judge who presided over the civil case.

  8         (c)  The trial judge shall award the prevailing party

  9  the sum of reasonable costs incurred in the action plus a

10  reasonable legal fee for the hours actually spent on the case

11  as sworn to in an affidavit.

12         (d)  Any award of attorney's fees or costs shall become

13  a part of the judgment and subject to execution as the law

14  allows.

15         (e)  In any civil litigation initiated by the

16  department or the Department of Legal Affairs, the court may

17  award to the prevailing party reasonable attorney's fees and

18  costs if the court finds that there was a complete absence of

19  a justiciable issue of either law or fact raised by the losing

20  party or if the court finds bad faith on the part of the

21  losing party.

22         (12)(10)  The commission shall by rule ensure that

23  telecommunications companies inform their customers of the

24  provisions of this section.  The notification may be made by:

25         (a)  Annual inserts in the billing statements mailed to

26  customers; and

27         (b)  Conspicuous publication of the notice in the

28  consumer information pages of the local telephone directories.

29         Section 2.  Prior to the convening of the 2001 Regular

30  Session of the Legislature, the Legislature shall review the

31  fees established in s. 501.059(4), Florida Statutes, as

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  1  amended by this act, to determine whether such fees are set at

  2  a level commensurate with the direct and indirect costs of the

  3  "no telephonic solicitation" listing program.

  4         Section 3.  Present subsections (2) and (3) of section

  5  98.097, Florida Statutes, are renumbered as subsections (3)

  6  and (4), respectively, and a new subsection (2) is added to

  7  that section to read:

  8         98.097  Central voter file; administration by division;

  9  public access.--

10         (2)  The central voter file shall, in addition to other

11  information required by law, indicate if the voter is on the

12  "no telephonic solicitation" list as provided in s. 501.059.

13         Section 4.  This act shall take effect January 1, 1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1594

  3

  4  Allows solicitations for survey research purposes and in
    response to advertisements placed by the person called.
  5
    Eliminates time restrictions on the exemption for calling
  6  people on the no solicitation list with whom the solicitor had
    a prior existing relationship.
  7
    Prohibits solicitors from calling people on the no
  8  solicitation list with whom they had an existing relationship
    once the subscriber requests not to be called again, but
  9  provides an affirmative defense to actions for violating this
    provision if a solicitor has met certain requirements.
10
    Requires the Department of Agriculture and Consumer Services
11  to provide solicitors with copies of the no solicitation lists
    within specific time frames and eliminates the fees for
12  solicitors to obtain the no solicitation list.

13  Requires the Department of Agriculture and Consumer Services
    to notify solicitors when they violate the law and prohibits
14  the department from taking enforcement action until a
    solicitor has committed a fourth violation.
15
    Requires the Division of Elections of the Department of State
16  to indicate on the central voter file it maintains if a voter
    is on the no solicitation list.
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    Restores requirements for contracts entered into pursuant to a
18  telephone sales call, but does not restore language
    prohibiting a merchant from charging a credit card for such
19  sales until the consumer sends a signed copy of the contract.

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