CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 The Committee on General Government Appropriations offered the
12 following:
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14 Amendment (with title amendment)
15 On page 31, lines 5 and 6,
16 remove from the bill: all of said lines
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18 and insert in lieu thereof:
19 Section 16. Effective July 1, 1999, section 427.802,
20 Florida Statutes, is amended to read:
21 427.802 Definitions.--As used in this part:
22 (1) "Assistive technology devices" means manual
23 wheelchairs, motorized wheelchairs, motorized scooters,
24 voice-synthesized computer modules, optical scanners, talking
25 software, braille printers, environmental control devices for
26 use by a person with quadriplegia, motor vehicle adaptive
27 transportation aids, devices that enable persons with severe
28 speech disabilities to in effect speak, personal transfer
29 systems, and specialty beds, including a demonstrator, that a
30 consumer purchases or accepts transfer of in this state for
31 use by a person with a disability.
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 (2) "Assistive Technology Device Warranty Act rights
2 period" means the period ending 1 year after first delivery of
3 the assistive technology device to the consumer or the
4 manufacturer's express written warranty, whichever is longer.
5 (3)(2) "Person with a disability" means any person who
6 has one or more permanent physical or mental limitations that
7 restrict his or her ability to perform the normal activities
8 of daily living and impede his or her capacity to live
9 independently.
10 (4)(3) "Assistive technology device dealer" means a
11 business entity that is primarily engaged person who is in the
12 business of selling or leasing of assistive technology
13 devices. As used in this subsection, the term "primarily"
14 means no less than 30 percent of the business entity's gross
15 sales in the previous fiscal year.
16 (5)(4) "Assistive technology device lessor" means a
17 person who leases an assistive technology device to a
18 consumer, or holds the lessor's rights, under a written lease.
19 (6)(5) "Collateral costs" means expenses incurred by a
20 consumer in connection with the repair of a nonconformity,
21 including the costs of obtaining an alternative assistive
22 technology device.
23 (7)(6) "Consumer" means any of the following:
24 (a) The purchaser of an assistive technology device,
25 if the assistive technology device was purchased from an
26 assistive technology device dealer or manufacturer for
27 purposes other than resale.
28 (b) A person to whom the assistive technology device
29 is transferred for purposes other than resale, if the transfer
30 occurs before the expiration of an express warranty applicable
31 to the assistive technology device.
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 (c) A person who may enforce the warranty.
2 (d) A person who leases an assistive technology device
3 from an assistive technology device lessor under a written
4 lease.
5 (8)(7) "Demonstrator" means an assistive technology
6 device used primarily for the purpose of demonstration to the
7 public.
8 (9) "Department" means the Department of Agriculture
9 and Consumer Services.
10 (10)(8) "Early termination cost" means any expense or
11 obligation that an assistive technology device lessor incurs
12 as a result of both the termination of a written lease before
13 the termination date set forth in that lease and the return of
14 an assistive technology device to a manufacturer pursuant to
15 this section. The term includes a penalty for prepayment
16 under a financial arrangement.
17 (11)(9) "Early termination saving" means any expense
18 or obligation that an assistive technology device lessor
19 avoids as a result of both the termination of a written lease
20 before the termination date set forth in the lease and the
21 return of an assistive technology device to a manufacturer
22 pursuant to this section. The term includes an interest
23 charge that the assistive technology device lessor would have
24 paid to finance the assistive technology device or, if the
25 assistive technology device lessor does not finance the
26 assistive technology device, the difference between the total
27 amount for which the lease obligates the consumer during the
28 period of the lease term remaining after the early termination
29 and the present value of that amount at the date of the early
30 termination.
31 (12)(10) "Manufacturer" means a business entity that
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 manufactures or produces assistive technology devices for sale
2 and agents of that business entity, including an importer, a
3 distributor, a factory branch, a distributor branch, and any
4 warrantors of the manufacturer's assistive technology device,
5 but not including an assistive technology device dealer.
6 (13)(11) "Nonconformity" means a condition or defect
7 of an assistive technology device which substantially impairs
8 the use, value, or safety of the device and which is covered
9 by an express warranty applicable to the assistive technology
10 device, but does not include a condition or defect that is the
11 result of abuse, neglect, or unauthorized modification or
12 alteration of the assistive technology device by a consumer.
13 (14)(12) "Reasonable attempt to repair" means, within
14 the terms of an express warranty applicable to a new assistive
15 technology device:
16 (a) A maximum of three efforts by the manufacturer,
17 the assistive technology device lessor, or any of the
18 manufacturer's authorized assistive technology device dealers
19 to repair a nonconformity that is subject to repair under the
20 warranty; or
21 (b) The passage of at least 30 cumulative days during
22 which the assistive technology device is out of service
23 because of a nonconformity that is covered by the warranty.
24 Section 17. Effective July 1, 1999, section 427.803,
25 Florida Statutes, is amended to read:
26 427.803 Duty of manufacturer and an assistive
27 technology device dealer to conform an assistive technology
28 device to the warranty Express warranty.--
29 (1) A manufacturer who sells a new assistive
30 technology device to a consumer, either directly or through an
31 assistive technology device dealer, shall furnish the consumer
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 with an express warranty for the assistive technology device.
2 The duration of the express warranty must be at least 1 year
3 after first delivery of the assistive technology device to the
4 consumer. In the absence of an express warranty from the
5 manufacturer, the manufacturer is considered to have expressly
6 warranted to the consumer of an assistive technology device
7 that, for a period of 1 year after the date of first delivery
8 to the consumer, the assistive technology device will be free
9 from any condition or defect that substantially impairs the
10 value of the assistive technology device to the consumer.
11 (2) If an assistive technology device does not conform
12 to the warranty and the consumer first reports the problem to
13 the manufacturer during the Assistive Technology Device
14 Warranty Act rights period, the manufacturer shall make such
15 repairs as are necessary to conform the device to the
16 warranty, irrespective of whether such repairs are made after
17 the expiration of the Assistive Technology Device Warranty Act
18 rights period. Such repairs shall be at no cost to the
19 consumer if reported to the manufacturer or assistive
20 technology device dealer during the Assistive Technology
21 Device Warranty Act rights period. Nothing in this paragraph
22 shall be construed to grant an extension of the Assistive
23 Technology Device Warranty Act rights period or to expand the
24 time within which a consumer must file a complaint under this
25 chapter.
26 (3) Each manufacturer or assistive technology device
27 dealer shall provide to its consumers conspicuous notice of
28 the address and phone number for its zone, district, or
29 regional office for this state in the written warranty or
30 owner's manual. Within 10 days after the department's written
31 request, a manufacturer shall forward to the department a copy
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 of the owner's manual and any written warranty for each make
2 and model of assistive technology device that it sells in this
3 state.
4 (4) The manufacturer shall provide to the assistive
5 technology device dealer and, at the time of acquisition, the
6 assistive technology device dealer shall provide to the
7 consumer a written statement that explains the consumer's
8 rights under this chapter. The written statement shall be
9 prepared by the department and shall contain a toll-free
10 number for the department that the consumer can contact to
11 obtain information regarding the consumer's rights and
12 obligations under this chapter or to commence arbitration. The
13 consumer's signed acknowledgment of receipt of materials
14 required under this subsection shall constitute prima facie
15 evidence of compliance by the manufacturer and assistive
16 technology device dealer. The form of the acknowledgments
17 shall be approved by the department, and the assistive
18 technology device dealer shall maintain the consumer's signed
19 acknowledgment for 3 years.
20 (5) A manufacturer or an assistive technology device
21 dealer shall provide to the consumer, each time the consumer's
22 assistive technology device is returned after being examined
23 or repaired under the warranty, a fully itemized, legible
24 statement of any diagnosis made and all work performed on the
25 assistive technology device, including, but not limited to, a
26 general description of the problem reported by the consumer or
27 an identification of the defect or condition, parts and labor,
28 the date on which the assistive technology device was
29 submitted for examination or repair, and the date when the
30 repair or examination was completed.
31 Section 18. Effective July 1, 1999, section 427.804,
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 Florida Statutes, is amended to read:
2 427.804 Repair of nonconforming assistive technology
3 devices; refund or replacement of devices after attempt to
4 repair; sale or lease of returned device; arbitration;
5 investigation; limitation of rights.--
6 (1) If a new assistive technology device does not
7 conform to an applicable express warranty and the consumer
8 reports the nonconformity to the manufacturer, the assistive
9 technology device lessor, or any of the manufacturer's
10 authorized assistive technology device dealers and makes the
11 assistive technology device available for repair within 1 year
12 after first delivery or return of the assistive technology
13 device to the consumer, the nonconformity must be repaired at
14 no charge to the consumer.
15 (2) If, after a reasonable attempt to repair, the
16 nonconformity is not repaired, the manufacturer, at the
17 direction of a consumer as defined in s. 427.802(7)(6)(a)-(c),
18 must do one of the following:
19 (a) Accept return of the assistive technology device
20 and replace the assistive technology device with a comparable
21 new assistive technology device and refund any collateral
22 costs.
23 (b) Accept return of the assistive technology device
24 and refund to the consumer and to any holder of a perfected
25 security interest in the consumer's assistive technology
26 device, as the interest may appear, the full purchase price
27 plus any finance charge amount paid by the consumer at the
28 point of sale, and collateral costs.
29 (c) With respect to a consumer as defined in s.
30 427.802(7)(6)(d), accept return of the assistive technology
31 device, refund to the assistive technology device lessor and
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 to any holder of a perfected security interest in the
2 assistive technology device, as the interest may appear, the
3 current value of the written lease, and refund to the consumer
4 the amount that the consumer paid under the written lease plus
5 any collateral costs.
6 (3) The current value of the written lease equals the
7 total amount for which the lease obligates the consumer during
8 the period of the lease remaining after its early termination
9 plus the assistive technology device dealer's early
10 termination costs and the value of the assistive technology
11 device at the lease expiration date if the lease sets forth
12 the value, less the assistive technology device lessor's early
13 termination savings.
14 (4) To receive a comparable new assistive technology
15 device or a refund due under paragraph (2)(a), a consumer must
16 offer to the manufacturer of the assistive technology device
17 having the nonconformity to transfer possession of the
18 assistive technology device to the manufacturer. No later
19 than 30 days after the offer, the manufacturer shall provide
20 the consumer with the comparable assistive technology device
21 or refund. When the manufacturer provides the comparable
22 assistive technology device or refund, the consumer shall
23 return the assistive technology device having the
24 nonconformity to the manufacturer, along with any endorsements
25 necessary to transfer real possession to the manufacturer.
26 (5) To receive a refund due under paragraph (2)(b), a
27 consumer must offer to return the assistive technology device
28 having the nonconformity to its manufacturer. No later than
29 30 days after the offer, the manufacturer shall provide the
30 refund to the consumer. When the manufacturer provides the
31 refund, the consumer shall return to the manufacturer the
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 assistive technology device having the nonconformity.
2 (6) To receive a refund due under paragraph (2)(c), an
3 assistive technology device lessor must offer to transfer
4 possession of the assistive technology device having the
5 nonconformity to its manufacturer. No later than 30 days
6 after the offer, the manufacturer shall provide the refund to
7 the assistive technology device lessor. When the manufacturer
8 provides the refund, the assistive technology device lessor
9 shall provide to the manufacturer any endorsements necessary
10 to transfer legal possession to the manufacturer.
11 (7) A person may not enforce the lease against the
12 consumer after the consumer receives a refund due under
13 paragraph (2)(c).
14 (8) An assistive technology device that is returned by
15 a consumer or assistive technology device lessor in this
16 state, or by a consumer or assistive technology device lessor
17 in another state under a similar law of that state, may not be
18 sold or leased again in this state, unless full disclosure of
19 the reasons for return is made to any prospective buyer or
20 lessee.
21 (9) Each consumer may submit any dispute arising under
22 this part to the department by completing a complaint form.
23 The department may investigate the complaint on behalf of the
24 consumer if reasonable evidence warrants such an action.
25 (10) The department shall process consumer complaints
26 pursuant to s. 570.544.
27 (11)(9) Each consumer may submit any dispute arising
28 under this part to an alternative arbitration mechanism
29 established pursuant to chapter 682. Upon notice by the
30 consumer, all manufacturers must submit to such alternative
31 arbitration.
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 (12)(10) Such alternative arbitration must be
2 conducted by a professional arbitrator or arbitration firm
3 appointed under chapter 682 and any applicable rules. These
4 procedures must provide for the personal objectivity of the
5 arbitrators and for the right of each party to present its
6 case, to be in attendance during any presentation made by the
7 other party, and to rebut or refute such a presentation.
8 (13)(11) This part does not limit rights or remedies
9 available to a consumer under any other law.
10 Section 19. Effective July 1, 1999, section 427.8041,
11 Florida Statutes, is created to read:
12 427.8041 Assistive technology device dealers
13 registration; application; exemption; penalties; adoption of
14 fees and fines; purchase fees.--
15 (1) Each assistive technology device dealer must
16 register with the department prior to doing business in this
17 state. The application for registration must be on a form
18 adopted by the department and must include at least the
19 following information:
20 (a) The name of the applicant.
21 (b) The name under which the applicant is doing
22 business.
23 (c) The business address at which the applicant sells
24 assistive technology devices or in the case of a mobile
25 assistive technology device business, the home address of the
26 owner, if different from the business address.
27 (d) Copies of all licenses, permits, and
28 certifications obtained by the applicant or employees of the
29 applicant.
30 (2) Any assistive technology device dealer maintaining
31 more than one place of business must register each separate
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 location. In such case, fees shall be paid for each place of
2 business.
3 (3) Each initial application and renewal application
4 for registration must be accompanied by a registration fee of
5 $300.
6 (4) The department shall issue to each applicant a
7 registration certificate. In the case of an applicant with
8 more than one place of business, the department shall issue a
9 registration certificate for each place of business. The
10 certificate must show at least the name and address of the
11 assistive technology device dealer and the registration number
12 for that place of business. In the case of a mobile assistive
13 technology device dealer, the certificate must show the home
14 address of the owner, if different from the business address.
15 The registration certificate must be posted in a conspicuous
16 manner in the assistive technology device dealer's place of
17 business.
18 (5) Any person applying for or renewing a local
19 occupational license on or after July 1, 1999, to engage in
20 selling assistive technology devices must exhibit an active
21 registration certificate from the department before the local
22 occupational license may be issued or renewed.
23 (6) Each registration must be renewed annually on or
24 before the expiration date of the current registration. A late
25 fee of $25 shall be paid, in addition to the registration fee
26 or any other penalty, for any registration renewal application
27 that is received by the department after the expiration date
28 of the current registration. The department may not issue the
29 registration until all fees are paid.
30 (7) The department may deny or refuse to renew the
31 registration of the assistive technology device dealer based
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 upon a determination that the dealer, or any of its directors,
2 officers, owners, or general partners:
3 (a) Have failed to meet the requirements for
4 registration as provided in this part;
5 (b) Have not satisfied a civil fine, administrative
6 fine, or other penalty arising out of any administrative or
7 enforcement action brought by any governmental agency based
8 upon conduct involving fraud, dishonest dealing, or any
9 violation of this part;
10 (c) Have had against them any civil, criminal, or
11 administrative adjudication in any jurisdiction, based upon
12 conduct involving fraud, dishonest dealing, or any violation
13 of this part; or
14 (d) Have had a judgment entered against them in any
15 action brought by the department or the state attorney.
16 (8) All assistive technology device dealers shall
17 allow department personnel to enter their place of business to
18 ascertain whether the registration certificate is current. If
19 department personnel are refused entry or access to the
20 premises, the department may seek injunctive relief in circuit
21 court in order to obtain compliance with this subsection.
22 (9) The department may enter an order imposing one or
23 more of the penalties set forth in subsection (13) if the
24 department finds that an assistive technology device dealer:
25 (a) Violated or is operating in violation of any of
26 the provisions of this part or of the rules adopted or orders
27 issued thereunder;
28 (b) Made a material false statement in any
29 application, document, or record required to be submitted or
30 retained under this part;
31 (c) Refused or failed, or any of its principal
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 officers have refused or failed, after notice, to produce any
2 document or record or disclose any information required to be
3 produced or disclosed under this part or the rules of the
4 department;
5 (d) Made a material false statement in response to any
6 request or investigation by the department, the Department of
7 Legal Affairs, or the state attorney; or
8 (e) Has intentionally defrauded the public through
9 dishonest or deceptive means.
10 (10) Upon a finding as set forth in subsection (12),
11 the department may enter an order doing one or more of the
12 following:
13 (a) Issuing a notice of noncompliance pursuant to s.
14 120.695.
15 (b) Imposing an administrative fine not to exceed
16 $5,000 per violation for each act which constitutes a
17 violation of this part or a rule or order.
18 (c) Directing that the assistive technology device
19 dealer cease and desist specified activities.
20 (d) Refusing to register or revoking or suspending a
21 registration.
22 (e) Placing the registrant on probation for a period
23 of time, subject to such conditions as the department may
24 specify.
25 (11) The administrative proceedings which could result
26 in the entry of an order imposing any of the penalties
27 specified in subsection (10) shall be conducted in accordance
28 with chapter 120.
29 (12) The department or the state attorney, if a
30 violation of this part occurs in his or her judicial circuit,
31 shall be the enforcing authority for purposes of this part and
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 may bring a civil action in circuit court for temporary or
2 permanent injunctive relief and may seek other appropriate
3 civil relief, including a civil penalty not to exceed $5,000
4 for each violation, restitution and damages for injured
5 customers, court costs, and reasonable attorney's fees.
6 (13) The enforcing authority may terminate any
7 investigation or action upon agreement by the offender to pay
8 a stipulated civil penalty, to make restitution or pay damages
9 to customers, or to satisfy any other relief authorized herein
10 and requested by the department.
11 (14) The remedies provided for in this section shall
12 be in addition to any other remedy provided by law.
13 (15) Fees and fines collected under this part by the
14 Department of Agriculture and Consumer Services shall be
15 deposited in the General Inspection Trust Fund.
16 (16) A $2 fee shall be collected by the assistive
17 technology device dealer or assistive technology device lessor
18 from the consumer at the consummation of the sale or lease of
19 an assistive technology device. Such fees must be remitted
20 monthly to the Department of Revenue. All fees, less the cost
21 of administration, must be transferred monthly to the
22 Department of Agriculture and Consumer Services for deposit
23 into the General Inspection Trust Fund to carry out the
24 provisions of s. 427.8041. The Department of Agriculture and
25 Consumer Services may use an amount it determines necessary to
26 purchase expert consultation services to assist in carrying
27 out the provisions of this act.
28 (17) In fiscal year 1999-2000, the Department of
29 Agriculture and Consumer Services may use 5 percent of the
30 fees collected and remitted in that fiscal year by the
31 assistive technology device dealers or lessors under
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 subsection (16) and, during each fiscal year thereafter, may
2 use between 5 percent and 10 percent of such fees collected in
3 that fiscal year, towards the development of an Assistive
4 Technology Device Warranty Act Education Program or to
5 purchase expert consultation services from an entity having
6 the mission of promoting access to, awareness of, and advocacy
7 for assistive technology devices and services to:
8 (a) Assist investigators to effectively carry out s.
9 427.806.
10 (b) Conduct sensitivity training for the department's
11 staff as it relates to assistive technology to ensure
12 effective recording of complaints relating to assistive
13 technology.
14 (c) Assist in the design and strategy of a consumer
15 education program to educate consumers of assistive technology
16 devices and assistive technology device dealers on this act as
17 amended.
18 (18) In addition to pursuing any other remedy, a
19 consumer may bring an action to recover damages for any injury
20 caused by a violation of this part. The court shall award a
21 consumer who prevails in such an action twice the amount of
22 any pecuniary loss, together with costs, disbursements, and
23 reasonable attorney's fees, and any equitable relief that the
24 court determines is appropriate.
25 (19) An assistive technology device dealer that is
26 required to be registered under this act must keep and
27 maintain records relating to each sale or lease of assistive
28 technology devices for a period of 2 years.
29 (20) The department may, at any time during business
30 hours, enter any business location of an assistive technology
31 device dealer that is required to be registered under this act
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 and examine the books and records of the assistive technology
2 device dealer.
3 (21) The department may adopt rules in accordance with
4 chapter 120 to implement this part.
5 Section 20. (1) There is appropriated from the
6 General Inspection Trust Fund of the Department of Agriculture
7 and Consumer Services for Fiscal Year 1999-2000 the sum of
8 $450,000 for six full-time equivalent positions to administer
9 this act.
10 (2) This section shall take effect July 1, 1999.
11 Section 21. Except as otherwise provided herein, this
12 act shall take effect upon becoming a law.
13
14
15 ================ T I T L E A M E N D M E N T ===============
16 And the title is amended as follows:
17 On page 2, line 16,
18 remove from the title of the bill: providing an effective
19 date.
20
21 and insert in lieu thereof:
22 amending s. 427.802, F.S.; providing
23 definitions; amending s. 427.803, F.S.;
24 requiring the manufacturer to make repairs
25 necessary to conform the device to the
26 warranty; providing notice of the dealer's and
27 manufacturer's address and telephone number;
28 providing procedures for filing claims;
29 amending s. 427.804, F.S.; allowing consumers
30 to submit disputes to the Department of
31 Agriculture and Consumer Services; authorizing
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HOUSE AMENDMENT
Bill No. HB 1061
Amendment No. (for drafter's use only)
1 the department to investigate complaints;
2 creating s. 427.8041, F.S.; providing for
3 registration of dealers, for fees, and for
4 application procedures; providing grounds for
5 refusal or denial of registration; requiring
6 dealers to allow department personnel to enter
7 their places of business; authorizing the
8 department to impose penalties; authorizing the
9 department or the state attorney to bring civil
10 actions for violations of the act; providing
11 for fees and fines collected to be deposited
12 into the General Inspection Trust Fund;
13 authorizing dealers to collect a fee from the
14 consumer at the time of sale or lease of a
15 device; allowing consumers to bring a civil
16 action for violation of the act; requiring
17 recordkeeping and retention of records;
18 providing for rulemaking; providing an
19 appropriation; providing effective dates.
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