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

31


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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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                                  CS/HB 3927, Second Engrossed/ntc



  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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                                  CS/HB 3927, Second Engrossed/ntc



  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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                                  CS/HB 3927, Second Engrossed/ntc



  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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