House Bill 3927e2
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                                  CS/HB 3927, Second Engrossed/ntc
  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 appropriations;
19         providing effective dates.
20
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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                                  CS/HB 3927, Second Engrossed/ntc
  1  individuals in this state who do not want to receive uninvited
  2  telephonic solicitations to make it known to the public by
  3  placing their telephone numbers on the "no telephonic
  4  solicitations" list provided in this section.  Further, it is
  5  the intent of the Legislature to prohibit uninvited telephonic
  6  solicitations to such telephone numbers on the "no telephonic
  7  solicitations" list.  The Legislature finds that the method
  8  provided in this section for regulating uninvited telephonic
  9  solicitations is drawn in such a manner so as to minimize the
10  burden on 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 in this state
15  consumer, for the purpose of soliciting a sale of any consumer
16  goods or services, including calls made for the purpose of
17  obtaining 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. "Telephonic solicitation"
23  does not mean a call made to a subscriber for the sole purpose
24  of soliciting attendance at a religious service or event, or
25  soliciting a commitment to volunteer time or service, provided
26  that such telephonic solicitation does not result in a later
27  request for a monetary donation or payment. or for the purpose
28  of soliciting an extension of credit for consumer goods or
29  services, or for the purpose of obtaining information that
30  will or may be used for the direct solicitation of a sale of
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                                  CS/HB 3927, Second Engrossed/ntc
  1  consumer goods or services or an extension of credit for such
  2  purposes.
  3         (b)  "Consumer goods or services" means any real
  4  property or any tangible or intangible personal property which
  5  is normally used for personal, family, or household purposes,
  6  including, without limitation, cemetery lots, timeshare
  7  estates, financial services, insurance, telecommunications
  8  services, and any such property intended to be attached to or
  9  installed in any real property without regard to whether it is
10  so attached or installed, as well as cemetery lots and
11  timeshare estates, and any services related to real such
12  property or any tangible or intangible personal property.
13         (c)  "Uninvited Unsolicited telephonic solicitation
14  sales call" means a telephonic solicitation to any
15  residential, mobile, or telephonic paging device telephone
16  number unless the telephonic solicitation is sales call other
17  than a call made:
18         1.  in response to an express request of the person
19  called, or in response to a sign or other form of
20  advertisement placed by the person called, or is directed to a
21  person with whom the telephone solicitor has a prior or an
22  existing relationship.  A telephonic solicitation made in
23  connection with an existing relationship includes, but is not
24  limited to, an inquiry regarding an existing debt, contract,
25  or warranty, payment or performance of which has not been
26  completed at the time of such call.;
27         2.  Primarily in connection with an existing debt or
28  contract, payment or performance of which has not been
29  completed at the time of such call;
30         3.  To any person with whom the telephone solicitor has
31  a prior or existing business relationship; or
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                                  CS/HB 3927, Second Engrossed/ntc
  1         4.  By a newspaper publisher or his or her agent or
  2  employee in connection with his or her business.
  3         (d)  "Commission" means the Florida Public Service
  4  Commission.
  5         (e)  "Telephone solicitor" means any natural person,
  6  firm, organization, partnership, association, or corporation,
  7  or a subsidiary or affiliate thereof, doing business in this
  8  state, who makes or causes to be made a telephonic
  9  solicitation sales call, including, but not limited to, calls
10  made by use of automated dialing or recorded message devices
11  from a location in this state, or from other states or
12  nations, to residences, mobile telephones, or telephonic
13  paging devices in this state.
14         (f)  "Subscriber" means any individual who requests
15  that the department place the individual's in-state
16  residential, mobile, or telephonic paging device telephone
17  number on the department's no telephonic solicitation list and
18  who pays the applicable fee to the department. "Consumer"
19  means an actual or prospective purchaser, lessee, or recipient
20  of consumer goods or services.
21         (g)  "Merchant" means a person who, directly or
22  indirectly, offers or makes available to consumers any
23  consumer goods or services.
24         (h)  "Doing business in this state" refers to
25  businesses who conduct telephonic sales calls from a location
26  in Florida or from other states or nations to consumers
27  located in Florida.
28         (g)(i)  "Department" means the Department of
29  Agriculture and Consumer Services.
30         (3)(2)  Any telephone solicitor who calls makes an
31  unsolicited telephonic sales call to a residential, mobile, or
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                                  CS/HB 3927, Second Engrossed/ntc
  1  telephonic paging device telephone number in this state shall
  2  identify himself or herself by his or her true first and last
  3  names and the business or organization on whose behalf he or
  4  she is soliciting immediately upon making contact by telephone
  5  with the person who is the object of the telephonic telephone
  6  solicitation.
  7         (4)(3)(a)  Any residential, mobile, or telephonic
  8  paging device telephone subscriber desiring to be placed on a
  9  "no telephonic sales solicitation calls" listing indicating
10  that the subscriber does not wish to receive uninvited
11  unsolicited telephonic solicitations sales calls may notify
12  the department and be placed on that listing upon receipt by
13  the department of:
14         1.  A nonrefundable $10 initial listing fee for a
15  charge.  This listing which may shall be renewed by the
16  department annually for each consumer upon receipt by the
17  department of a renewal notice and a $5 listing fee; or
18         2.  A nonrefundable $15 listing fee for a listing which
19  shall remain in effect for 3 years and may be renewed upon
20  receipt by the department of a nonrefundable $15 listing fee
21  assessment.
22         (b)  The department shall update its "no telephonic
23  sales solicitation calls" listing upon receipt of initial
24  consumer subscriptions or renewals. The department shall
25  compile such listings three times each year and shall provide
26  this listing at least 30 days prior to the first day of April,
27  August, and December, when the listings shall be considered
28  current, for a fee to telephone solicitors upon request.
29         (c)  All fees imposed pursuant to this section shall be
30  deposited in the General Inspection Trust Fund for the
31  administration of this section.
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                                  CS/HB 3927, Second Engrossed/ntc
  1         (5)(4)  No telephone solicitor shall make or cause to
  2  be made any uninvited unsolicited telephonic solicitation
  3  sales call to any residential, mobile, or telephonic paging
  4  device telephone number appearing on if the number for that
  5  telephone appears in the then-current quarterly listing
  6  published by the department.  Any telephone solicitor or
  7  person who offers for sale any consumer information which
  8  includes residential, mobile, or telephonic paging device
  9  telephone numbers, except directory assistance and telephone
10  directories sold by telephone companies and organizations
11  exempt under s. 501(c)(3) or (6) of the Internal Revenue Code,
12  shall screen and exclude those numbers which appear on the
13  department's division's then-current "no telephonic sales
14  solicitation calls" list. This subsection does not apply to
15  any person licensed pursuant to chapter 475 who calls an
16  actual or prospective seller or lessor of real property when
17  such call is made in response to a yard sign or other form of
18  advertisement placed by the seller or lessor.
19         (6)(5)(a)  A contract made pursuant to a telephonic
20  solicitation sales call is not valid and enforceable against a
21  consumer unless made in compliance with this subsection.
22         (b)  A contract made pursuant to a telephonic
23  solicitation sales call:
24         1.  Shall be reduced to writing and signed by the
25  consumer.
26         2.  Shall comply with all other applicable laws and
27  rules.
28         3.  Shall match the description of goods or services as
29  principally used in the telephonic telephone solicitations.
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  1         4.  Shall contain the name, address, and telephone
  2  number of the seller, the total price of the contract, and a
  3  detailed description of the goods or services being sold.
  4         5.  Shall contain, in bold, conspicuous type,
  5  immediately preceding the signature, the following statement:
  6         "You are not obligated to pay any money unless you sign
  7  this contract and return it to the seller."
  8         6.  May not exclude from its terms any oral or written
  9  representations made by the telephone solicitor to the
10  consumer in connection with the transaction.
11         (c)  The provisions of this subsection do not apply to
12  contractual sales regulated under other sections of the
13  Florida Statutes, or to the sale of financial services,
14  security sales, or sales transacted by companies or their
15  wholly owned subsidiaries or agents, which companies are
16  regulated by chapter 364, or to the sale of cable television
17  services to the duly franchised cable television operator's
18  existing subscribers within that cable television operator's
19  franchise area, or to any sales where no prior payment is made
20  to the merchant and an invoice accompanies the goods or
21  services allowing the consumer 7 days to cancel or return
22  without obligation for any payment.
23         (7)(a)  No telephone solicitor may make a subsequent
24  call to a subscriber in connection with a prior or existing
25  relationship when that subscriber has informed the telephone
26  solicitor that the subscriber does not want to receive any
27  more telephonic solicitations from, or on behalf of, that
28  particular telephone solicitor.
29         (b)  It shall be an affirmative defense in any action
30  brought under this subsection that the telephone solicitor
31  has:
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  1         1.  Established and implemented written procedures to
  2  comply with this subsection;
  3         2.  Trained its personnel in such procedures;
  4         3.  Maintained and recorded current lists of persons
  5  who have requested to receive no more telephonic solicitations
  6  from the telephone solicitor in accordance with this
  7  subsection; and
  8         4.  Made any subsequent call as the result of an error.
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10  Nothing in this paragraph shall be construed to require the
11  implementation of these procedures in order to comply with
12  this subsection.
13         (c)  This subsection does not apply to any telephonic
14  solicitation made in connection with an existing debt or
15  contract, payment, or performance of which has not been
16  completed at the time of such call.
17         (8)(6)(a)  The officer with whom a person qualifies as
18  a candidate for public office pursuant to chapter 99 shall
19  notify the qualifying candidate of the provisions of this
20  section. A merchant who engages a telephone solicitor to make
21  or cause to be made a telephonic sales call shall not make or
22  submit any charge to the consumer's credit card account or
23  make or cause to be made any electronic transfer of funds
24  until after the merchant receives from the consumer a copy of
25  the contract, signed by the purchaser, which complies with
26  this section.
27         (b)  A merchant who conducts a credit card account
28  transaction pursuant to this section shall be subject to the
29  provisions of s. 817.62.
30         (c)  The provisions of this subsection do not apply to
31  a transaction:
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                                  CS/HB 3927, Second Engrossed/ntc
  1         1.  Made in accordance with prior negotiations in the
  2  course of a visit by the consumer to a merchant operating a
  3  retail business establishment which has a fixed permanent
  4  location and where consumer goods are displayed or offered for
  5  sale on a continuing basis;
  6         2.  In which the consumer may obtain a full refund for
  7  the return of undamaged and unused goods or a cancellation of
  8  services notice to the seller within 7 days after receipt by
  9  the consumer, and the seller will process the refund within 30
10  days after receipt of the returned merchandise by the
11  consumer;
12         3.  In which the consumer purchases goods or services
13  pursuant to an examination of a television, radio, or print
14  advertisement or a sample, brochure, or catalog of the
15  merchant that contains:
16         a.  The name, address, and telephone number of the
17  merchant;
18         b.  A description of the goods or services being sold;
19  and
20         c.  Any limitations or restrictions that apply to the
21  offer; or
22         4.  In which the merchant is a bona fide charitable
23  organization or a newspaper as defined in chapter 50.
24         (9)(7)(a)  No person shall make or knowingly allow a
25  telephonic solicitation sales call to be made if such call
26  involves an automated system for the selection or dialing of
27  telephone numbers or the playing of a recorded message when a
28  connection is completed to a number called.
29         (b)  Nothing herein prohibits the use of an automated
30  telephone dialing system with live messages if the calls are
31  made or messages given solely in response to calls initiated
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  1  by the persons to whom the automatic calls or live messages
  2  are directed or if the telephone numbers selected for
  3  automatic dialing have been screened to exclude any telephone
  4  number that subscriber who is included on the department's
  5  then-current "no telephonic sales solicitation calls" listing
  6  or any unlisted telephone number, or if the calls are directed
  7  to a person with whom the telephone solicitor has a prior or
  8  an existing relationship made concern goods or services that
  9  have been previously ordered or purchased. However, all
10  automatic telephone dialing systems shall be equipped with a
11  disconnect feature which automatically clears the telephone
12  line after the person answering the telephone terminates the
13  call.
14         (10)(8)  The department shall investigate any
15  complaints received concerning violations of this section.
16  If, after investigating any complaint, the department finds
17  that there has been a violation of this section, the
18  department shall notify the telephone solicitor of such
19  violation. Upon a fourth violation within a twelve month
20  period, the department or the Department of Legal Affairs may
21  bring an action to impose a civil penalty and to seek other
22  relief, including injunctive relief, as the court deems
23  appropriate against the telephone solicitor.  The civil
24  penalty shall not exceed $5,000 $10,000 per violation and
25  shall be deposited in the General Inspection Trust Fund if the
26  action or proceeding was brought by the department, or the
27  Consumer Frauds Trust Fund if the action or proceeding was
28  brought by the Department of Legal Affairs. This civil penalty
29  may be recovered in any action brought under this part by the
30  department, or the department may terminate any investigation
31  or action upon agreement by the person to pay a stipulated
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                                  CS/HB 3927, Second Engrossed/ntc
  1  civil penalty.  The department or the court may waive any
  2  civil penalty if the person has previously made full
  3  restitution or reimbursement or has paid actual damages to the
  4  consumers who have been injured by the violation.
  5         (11)(9)(a)  In any civil litigation resulting from a
  6  transaction involving a violation of this section, the
  7  prevailing party, after judgment in the trial court and
  8  exhaustion of all appeals, if any, shall receive his or her
  9  reasonable attorney's fees and costs from the nonprevailing
10  party.
11         (b)  The attorney for the prevailing party shall submit
12  a sworn affidavit of his or her time spent on the case and his
13  or her costs incurred for all the motions, hearings, and
14  appeals to the trial judge who presided over the civil case.
15         (c)  The trial judge shall award the prevailing party
16  the sum of reasonable costs incurred in the action plus a
17  reasonable legal fee for the hours actually spent on the case
18  as sworn to in an affidavit.
19         (d)  Any award of attorney's fees or costs shall become
20  a part of the judgment and subject to execution as the law
21  allows.
22         (e)  In any civil litigation initiated by the
23  department or the Department of Legal Affairs, the court may
24  award to the prevailing party reasonable attorney's fees and
25  costs if the court finds that there was a complete absence of
26  a justiciable issue of either law or fact raised by the losing
27  party or if the court finds bad faith on the part of the
28  losing party.
29         (12)(10)  The commission shall by rule ensure that
30  telecommunications companies inform their customers of the
31  provisions of this section.  The notification may be made by:
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                                  CS/HB 3927, Second Engrossed/ntc
  1         (a)  Annual inserts in the billing statements mailed to
  2  customers; and
  3         (b)  Conspicuous publication of the notice in the
  4  consumer information pages of the local telephone directories.
  5         Section 2.  Prior to the convening of the 2001 Regular
  6  Session of the Legislature, the Legislature shall review the
  7  fees established in s. 501.059(4), Florida Statutes, as
  8  amended by this act, to determine whether such fees are set at
  9  a level commensurate with the direct and indirect costs of the
10  "no telephonic solicitation" listing program. The Legislature
11  shall also review the feasibility of eliminating all fees paid
12  by subscribers under such program and having the entire
13  program funded from fees paid by solicitors or from other
14  revenue sources.
15         Section 3.  Subsections (2) and (3) of section 98.097,
16  Florida Statutes, are renumbered as subsections (3) and (4),
17  respectively, and a new subsection (2) is added to said
18  section to read:
19         98.097  Central voter file; administration by division;
20  public access.--
21         (2)  The central voter file shall, in addition to other
22  information required by law, indicate if the voter is on the
23  "no telephonic solicitation" list as provided in s. 501.059.
24         Section 4.  Effective July 1, 1998, there are hereby
25  appropriated for FY 1998-99 from the General Inspection Trust
26  Fund to the Department of Agriculture and Consumer Services
27  $675,365 in operating capital outlay, and 5 FTE and $417,610
28  for the purpose of carrying out the provisions of this act.
29  These appropriations shall depend upon sufficient funds being
30  available in the General Inspection Trust Fund solely from the
31  fees collected under s. 501.059, F.S.  It is the intent of the
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                                  CS/HB 3927, Second Engrossed/ntc
  1  Legislature that if receipts are insufficient to fully fund
  2  these appropriations, the first priority of the Department of
  3  Agriculture and Consumer Services shall be the purchase of
  4  necessary equipment and technology for the efficient and
  5  effective implementation of this act.
  6         Section 5.  Effective January 1, 1999, there is hereby
  7  appropriated for FY 1998-99 from the General Inspection Trust
  8  Fund to the Department of Agriculture and Consumer Services 6
  9  FTE and $334,770 for the purpose of carrying out the
10  provisions of this act.  This appropriation shall depend upon
11  sufficient funds being available in the General Inspection
12  Trust Fund solely from the fees collected under s. 501.059,
13  F.S.
14         Section 6.  Except as otherwise provided herein, this
15  act shall take effect January 1 of the year after which
16  enacted.
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