House Bill 1061e1

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                                          HB 1061, First Engrossed



  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         amending s. 496.404, F.S.; revising

  4         definitions; amending s. 496.405, F.S.;

  5         providing additional information to be included

  6         within initial registration statements for

  7         charitable organizations and sponsors;

  8         prohibiting an employee of a charitable

  9         organization or sponsor from soliciting

10         contributions on behalf of the charitable

11         organization or sponsor under specified

12         conditions; amending s. 496.409, F.S.; revising

13         and providing additional information to be

14         included within application for registration or

15         renewal of registration as a professional

16         fundraising consultant; prohibiting a person

17         from acting as a professional fundraising

18         consultant under specified circumstances;

19         prohibiting the employment of specified persons

20         by professional fundraising consultants;

21         amending s. 496.410, F.S.; revising and

22         providing additional information to be included

23         within application for registration or renewal

24         of registration as a professional solicitor;

25         revising provisions which prohibit a person

26         from acting as a professional solicitor;

27         prohibiting the employment of specified persons

28         by professional solicitors; amending s.

29         496.420, F.S.; revising provisions relating to

30         civil remedies and enforcement; amending s.

31         501.025, F.S.; providing that specified


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                                          HB 1061, First Engrossed



  1         mortgages do not constitute an evidence of

  2         indebtedness for purposes of a buyer's right to

  3         cancel a home solicitation sale; amending s.

  4         501.33, F.S.; providing for additional

  5         disclosures with respect to the use of

  6         aftermarket crash parts in preparing an

  7         estimate for repairs; amending s. 501.604,

  8         F.S.; providing additional exclusions from the

  9         exemptions to pt. IV of ch. 501, F.S., the

10         Florida Telemarketing Act; amending s. 501.616,

11         F.S.; providing additional unlawful practices

12         with respect to telephone solicitation;

13         amending s. 539.001, F.S.; revising license

14         requirements under the Florida Pawnbroking Act;

15         revising conditions of eligibility for license;

16         requiring specified persons to file certain

17         documentation upon application for license;

18         requiring the submission of fingerprints with

19         each initial application for licensure;

20         requiring the Division of Consumer Services to

21         submit fingerprints of each applicant for

22         licensure to the Florida Department of Law

23         Enforcement; requiring the Florida Department

24         of Law Enforcement to forward the fingerprints

25         to the Federal Bureau of Investigation;

26         providing an additional condition under which a

27         pawnbroker license may be suspended or revoked;

28         providing that specified unintentional errors

29         in required applications, documents, or records

30         are not subject to criminal penalties; amending

31         s. 559.803, F.S.; revising provisions relating


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                                          HB 1061, First Engrossed



  1         to required information contained in disclosure

  2         statements with respect to the sale or lease of

  3         business opportunities; amending s. 559.805,

  4         F.S.; requiring a seller of business

  5         opportunities to file additional information

  6         with the department; reenacting s. 559.815,

  7         F.S.; providing a penalty; amending s. 559.903,

  8         F.S.; revising the definition of "motor

  9         vehicle" for the purposes of pt. IX of ch. 559,

10         F.S., relating to repair of motor vehicles;

11         amending s. 559.904, F.S.; requiring the

12         department to post a specified sign at any

13         motor vehicle repair shop that has had its

14         registration suspended or revoked or that has

15         been determined to be operating without a

16         registration; providing a second degree

17         misdemeanor penalty for defacing or removing

18         such a sign, for operating without a

19         registration, or operating with a revoked or

20         suspended registration; authorizing the

21         department to impose administrative sanctions;

22         amending s. 627.481, F.S.; prescribing

23         conditions under which a subunit of an

24         organized domestic or foreign nonstock

25         corporation or an unincorporated charitable

26         trust may enter into annuity agreements;

27         amending s. 741.0305, F.S.; correcting a cross

28         reference;  amending s. 427.802, F.S.;

29         providing definitions; amending s. 427.803,

30         F.S.; requiring the manufacturer to make

31         repairs necessary to conform the device to the


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                                          HB 1061, First Engrossed



  1         warranty; providing notice of the dealer's and

  2         manufacturer's address and telephone number;

  3         providing procedures for filing claims;

  4         amending s. 427.804, F.S.; allowing consumers

  5         to submit disputes to the Department of

  6         Agriculture and Consumer Services; authorizing

  7         the department to investigate complaints;

  8         creating s. 427.8041, F.S.; providing for

  9         registration of dealers, for fees, and for

10         application procedures; providing grounds for

11         refusal or denial of registration; requiring

12         dealers to allow department personnel to enter

13         their places of business; authorizing the

14         department to impose penalties; authorizing the

15         department or the state attorney to bring civil

16         actions for violations of the act; providing

17         for fees and fines collected to be deposited

18         into the General Inspection Trust Fund;

19         authorizing dealers to collect a fee from the

20         consumer at the time of sale or lease of a

21         device; allowing consumers to bring a civil

22         action for violation of the act; requiring

23         recordkeeping and retention of records;

24         providing for rulemaking; providing an

25         appropriation; providing effective dates.

26

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

28

29         Section 1.  Subsections (5) and (6) of section 496.404,

30  Florida Statutes, 1998 Supplement, are amended, present

31  subsection (21) is renumbered as subsection (20) and amended,


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                                          HB 1061, First Engrossed



  1  and subsections (7) through (24) are renumbered as subsections

  2  (6) through (23), respectively, to read:

  3         496.404  Definitions.--As used in ss. 496.401-496.424:

  4         (5)  "Contribution" means the promise, pledge, or grant

  5  of any money or property, financial assistance, or any other

  6  thing of value in response to a solicitation. "Contribution"

  7  includes, in the case of a charitable organization or sponsor

  8  offering goods and services to the public, the difference

  9  between the direct cost of the goods and services to the

10  charitable organization or sponsor and the price at which the

11  charitable organization or sponsor or any person acting on

12  behalf of the charitable organization or sponsor resells those

13  goods or services to the public. "Contribution" does not

14  include bona fide fees, dues, or assessments paid by members,

15  provided that membership is not conferred solely as

16  consideration for making a contribution in response to a

17  solicitation. "Contribution" also does not include funds

18  obtained by a charitable organization or sponsor pursuant to

19  government grants or contracts, or obtained as an allocation

20  from a United Way organization that is duly registered with

21  the department or received from an organization that is exempt

22  from federal income taxation under s. 501(a) of the Internal

23  Revenue Code and described in s. 501(c) of the Internal

24  Revenue Code that is duly registered with the department.

25         (6)  "Conviction" means a determination of guilt

26  resulting from plea or trial, regardless of whether

27  adjudication was withheld or imposition of sentence was

28  suspended.

29         (20)(21)  "Solicitation" means a request, directly or

30  indirectly, for money, property, financial assistance, or any

31  other thing of value on the plea or representation that such


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                                          HB 1061, First Engrossed



  1  money, property, financial assistance, or other thing of value

  2  or a portion of it will be used for a charitable or sponsor

  3  purpose or will benefit a charitable organization or sponsor.

  4  "Solicitation" includes, but is not limited to, the following

  5  methods of requesting or securing the promise, pledge, or

  6  grant of money, property, financial assistance, or any other

  7  thing of value:

  8         (a)  Any oral or written request;

  9         (b)  Making any announcement to the press, on radio or

10  television, by telephone or telegraph, or by any other

11  communication device concerning an appeal or campaign by or

12  for any charitable organization or sponsor or for any

13  charitable or sponsor purpose;

14         (c)  Distributing, circulating, posting, or publishing

15  any handbill, written advertisement, or other publication that

16  directly or by implication seeks to obtain any contribution;

17  or

18         (d)  Selling or offering or attempting to sell any

19  advertisement, advertising space, book, card, coupon, chance,

20  device, magazine, membership, merchandise, subscription,

21  sponsorship, flower, admission, ticket, food, or other service

22  or tangible good, item, or thing of value, or any right of any

23  description in connection with which any appeal is made for

24  any charitable organization or sponsor or charitable or

25  sponsor purpose, or when the name of any charitable

26  organization or sponsor is used or referred to in any such

27  appeal as an inducement or reason for making the sale or when,

28  in connection with the sale or offer or attempt to sell, any

29  statement is made that all or part of the proceeds from the

30  sale will be used for any charitable or sponsor purpose or

31  will benefit any charitable organization or sponsor.


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                                          HB 1061, First Engrossed



  1

  2  A solicitation is considered as having taken place whether or

  3  not the person making the solicitation receives any

  4  contribution. A solicitation does not occur when a person

  5  applies for a grant or an award to the government or to an

  6  organization that is exempt from federal income taxation under

  7  s. 501(a) of the Internal Revenue Code and described in s.

  8  501(c) of the Internal Revenue Code and is duly registered

  9  with the department.

10         Section 2.  Paragraph (d) of subsection (2) of section

11  496.405, Florida Statutes, 1998 Supplement, is amended, and a

12  new subsection (8) is added to said section, to read:

13         496.405  Registration statements by charitable

14  organizations and sponsors.--

15         (2)  The initial registration statement must be

16  submitted on a form prescribed by the department, signed under

17  oath by the treasurer or chief fiscal officer of the

18  charitable organization or sponsor, and include the following

19  information or material:

20         (d)  A statement of whether:

21         1.  The charitable organization or sponsor is

22  authorized by any other state to solicit contributions;

23         2.  The charitable organization or sponsor or any of

24  its officers, directors, trustees, or principal salaried

25  executive personnel have been enjoined in any jurisdiction

26  from soliciting contributions or have been found to have

27  engaged in unlawful practices in the solicitation of

28  contributions or administration of charitable assets;

29         3.  The charitable organization or sponsor has had its

30  registration or authority denied, suspended, or revoked by any

31


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                                          HB 1061, First Engrossed



  1  governmental agency, together with the reasons for such

  2  denial, suspension, or revocation; and

  3         4.  The charitable organization or sponsor has

  4  voluntarily entered into an assurance of voluntary compliance

  5  or agreement similar to that set forth in s. 496.420, together

  6  with a copy of that agreement.

  7         5.  The charitable organization or sponsor or any of

  8  its officers, directors, trustees, or employees, regardless of

  9  adjudication, has been convicted of, or found guilty of, or

10  pled guilty or nolo contendere to, or has been incarcerated

11  within the last 10 years as a result of having previously been

12  convicted of, or found guilty of, or pled guilty or nolo

13  contendere to, any felony or any crime involving fraud, theft,

14  larceny, embezzlement, fraudulent conversion, misappropriation

15  of property, or any crime arising from the conduct of a

16  solicitation for a charitable organization or sponsor within

17  the last 10 years and, if so, the name of such person, the

18  nature of the offense, the date of the offense, the court

19  having jurisdiction in the case, the date of conviction or

20  other disposition, and the disposition of the offense.

21         6.  The charitable organization or sponsor or any of

22  its officers, directors, trustees, or employees has been

23  enjoined from violating any law relating to a charitable

24  solicitation, and, if so, the name of such person, the date of

25  the injunction, and the court issuing the injunction.

26         (8)  No charitable organization or sponsor shall

27  knowingly allow any of its officers, directors, trustees, or

28  employees to solicit contributions on behalf of such

29  charitable organization or sponsor if such officer, director,

30  trustee, or employee has, regardless of adjudication, been

31  convicted of, or found guilty of, or pled guilty or nolo


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                                          HB 1061, First Engrossed



  1  contendere to, or has been incarcerated within the last 10

  2  years as a result of having previously been convicted of, or

  3  found guilty of, or pled guilty or nolo contendere to, any

  4  felony within the last 10 years or any crime within the last

  5  10 years involving fraud, theft, larceny, embezzlement,

  6  fraudulent conversion, misappropriation of property, or any

  7  crime arising from the conduct of a solicitation for a

  8  charitable organization or sponsor, or has been enjoined from

  9  violating any law relating to a charitable solicitation.

10         Section 3.  Subsection (2) of section 496.409, Florida

11  Statutes, is amended, and a new subsection (9) is added to

12  said section, to read:

13         496.409  Registration and duties of professional

14  fundraising consultant.--

15         (2)  Applications for registration or renewal of

16  registration must be submitted on a form prescribed by the

17  department, signed under oath, and must include the following

18  information:

19         (a)  The street address and telephone number of the

20  principal place of business of the applicant and any Florida

21  street addresses if the principal place of business is located

22  outside this state.

23         (b)  The form of the applicant's business.

24         (c)  The names and residence addresses of all

25  principals of the applicant, including all officers,

26  directors, and owners.

27         (d)  Whether any of the owners, directors, officers, or

28  employees of the applicant are related as parent, child,

29  spouse, or sibling to any other directors, officers, owners,

30  or employees of the applicant; to any officer, director,

31  trustee, or employee of any charitable organization or sponsor


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                                          HB 1061, First Engrossed



  1  under contract to the applicant; or to any supplier or vendor

  2  providing goods or services to any charitable organization or

  3  sponsor under contract to the applicant.

  4         (e)  Whether the applicant or any of its officers,

  5  directors, trustees, or principal salaried employees have,

  6  within the last 10 5 years, regardless of adjudication, been

  7  convicted, or found guilty of, or pled guilty or nolo

  8  contendere to, or have been incarcerated within the last 10

  9  years as a result of having previously been convicted of, or

10  found guilty of, or pled guilty or nolo contendere to, any

11  felony and, if so, the name of such person, the nature of the

12  offense, the date of the offense, the court having

13  jurisdiction in the case, the date of conviction or other

14  disposition, and the disposition of the offense of any felony,

15  or of any misdemeanor arising from the conduct of a

16  solicitation for a charitable organization or sponsor or

17  charitable or sponsor purpose, or been enjoined from violating

18  a charitable solicitation law in this or any other state.

19         (f)  Whether the applicant or any of its officers,

20  directors, trustees, or employees have, regardless of

21  adjudication, been convicted of, or found guilty of, or pled

22  guilty or nolo contendere to, or have been incarcerated within

23  the last 10 years as a result of having previously been

24  convicted of, or found guilty of, or pled guilty or nolo

25  contendere to, a crime within the last 10 years involving

26  fraud, theft, larceny, embezzlement, fraudulent conversion, or

27  misappropriation of property, or any crime arising from the

28  conduct of a solicitation for a charitable organization or

29  sponsor and, if so, the name of such person, the nature of the

30  offense, the date of the offense, the court having

31


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                                          HB 1061, First Engrossed



  1  jurisdiction in the case, the date of conviction or other

  2  disposition, and the disposition of the offense.

  3         (g)  Whether the applicant or any of its officers,

  4  directors, trustees, or employees have been enjoined from

  5  violating any law relating to a charitable solicitation and,

  6  if so, the name of such person, the date of the injunction,

  7  and the court issuing the injunction.

  8         (9)  No person may act as a professional fundraising

  9  consultant, and no professional fundraising consultant shall

10  knowingly employ any officer, trustee, director, or employee,

11  if such person has, regardless of adjudication, been convicted

12  of, or found guilty of, or pled guilty or nolo contendere to,

13  or has been incarcerated within the last 10 years as a result

14  of having previously been convicted of, or found guilty of, or

15  pled guilty or nolo contendere to, any crime within the last

16  10 years involving fraud, theft, larceny, embezzlement,

17  fraudulent conversion, or misappropriation of property, or any

18  crime arising from the conduct of a solicitation for a

19  charitable organization or sponsor, or has been enjoined from

20  violating any law relating to a charitable solicitation.

21         Section 4.  Subsections (2) and (14) of section

22  496.410, Florida Statutes, are amended to read:

23         496.410  Registration and duties of professional

24  solicitors.--

25         (2)  Applications for registration or renewal of

26  registration must be submitted on a form prescribed by rule of

27  the department, signed under oath, and must include the

28  following information:

29         (a)  The street address and telephone number of the

30  principal place of business of the applicant and any Florida

31


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                                          HB 1061, First Engrossed



  1  street addresses if the principal place of business is located

  2  outside this state.

  3         (b)  The form of the applicant's business.

  4         (c)  The place and date when the applicant, if other

  5  than an individual, was legally established.

  6         (d)  The names and residence addresses of all

  7  principals of the applicant, including all officers,

  8  directors, and owners.

  9         (e)  A statement as to whether any of the owners,

10  directors, officers, or employees of the applicant are related

11  as parent, spouse, child, or sibling to any other directors,

12  officers, owners, or employees of the applicant; to any

13  officer, director, trustee, or employee of any charitable

14  organization or sponsor under contract to the applicant; or to

15  any supplier or vendor providing goods or services to any

16  charitable organization or sponsor under contract to the

17  applicant.

18         (f)  A statement as to whether the applicant or any of

19  its directors, officers, trustees, persons with a controlling

20  interest in the applicant, or employees or agents involved in

21  solicitation have been convicted, within the last 10 5 years,

22  regardless of adjudication, been convicted of, or found guilty

23  of, or pled guilty or nolo contendere to, or have been

24  incarcerated within the last 10 years as a result of having

25  previously been convicted of, or found guilty of, or pled

26  guilty or nolo contendere to, any felony and, if so, the name

27  of such person, the nature of the offense, the date of the

28  offense, the court having jurisdiction in the case, the date

29  of conviction or other disposition, and the disposition of the

30  offense of any felony, or of a misdemeanor arising from the

31  conduct of a solicitation for any charitable organization or


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                                          HB 1061, First Engrossed



  1  sponsor or charitable or sponsor purpose, or been enjoined

  2  from violating a charitable solicitation law in this or any

  3  other state.

  4         (g)  A statement as to whether the applicant or any of

  5  its directors, officers, trustees, persons with a controlling

  6  interest in the applicant, or employees or agents involved in

  7  solicitation have, regardless of adjudication, been convicted

  8  of, or found guilty of, or pled guilty or nolo contendere to,

  9  or have been incarcerated within the last 10 years as a result

10  of having previously been convicted of, or found guilty of, or

11  pled guilty or nolo contendere to, a crime within the last 10

12  years involving fraud, theft, larceny, embezzlement,

13  fraudulent conversion, or misappropriation of property, or any

14  crime arising from the conduct of a solicitation for a

15  charitable organization or sponsor and, if so, the name of

16  such person, the nature of the offense, the date of the

17  offense, the court having jurisdiction in the case, the date

18  of conviction or other disposition, and the disposition of the

19  offense.

20         (h)  A statement as to whether the applicant or any of

21  its directors, officers, trustees, persons with a controlling

22  interest in the applicant, or employees or agents involved in

23  solicitation have been enjoined from violating any law

24  relating to a charitable solicitation and, if so, the name of

25  such person, the date of the injunction, and the court issuing

26  the injunction.

27         (i)(g)  The names of all persons in charge of any

28  solicitation activity.

29         (14)  No person may act as a professional solicitor,

30  and no professional solicitor shall, to solicit for

31  compensation, knowingly employ if such person, any officer,


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                                          HB 1061, First Engrossed



  1  trustee, or director, employee, or thereof, any person with a

  2  controlling interest therein, who or any person the

  3  professional solicitor employs, engages, or procures to

  4  solicit for compensation, has, regardless of adjudication,

  5  been convicted of, or found guilty of, or pled guilty or nolo

  6  contendere to, or has been incarcerated within the last 10

  7  years as a result of having previously been convicted of, or

  8  found guilty of, or pled guilty or nolo contendere to, a

  9  felony within the last 10 years involving fraud, theft,

10  larceny, embezzlement, fraudulent conversion, or

11  misappropriation of property, or any crime arising from the

12  conduct of a solicitation for a charitable organization or

13  sponsor, or has been enjoined from violating any law relating

14  to a charitable solicitation been convicted in the last 5

15  years by a court in any state of the United States of a crime

16  arising from the conduct of a solicitation for a charitable

17  organization or sponsor or a charitable purpose or sponsor

18  purpose.

19         Section 5.  Section 496.420, Florida Statutes, is

20  amended to read:

21         496.420  Civil remedies and enforcement.--

22         (1)  In addition to other remedies authorized by law,

23  the department of Legal Affairs may bring a civil action in

24  circuit court to enforce ss. 496.401-496.424 or s. 496.426.

25  Upon a finding that any person has violated any of these

26  sections, a court may make any necessary order or enter a

27  judgment including, but not limited to, a temporary or

28  permanent injunction, a declaratory judgment, the appointment

29  of a master or receiver, the sequestration of assets, the

30  reimbursement of persons from whom contributions have been

31  unlawfully solicited, the distribution of contributions in


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  1  accordance with the charitable or sponsor purpose expressed in

  2  the registration statement or in accordance with the

  3  representations made to the person solicited, the

  4  reimbursement of the department for investigative costs, and

  5  of the Department of Legal Affairs for attorney's fees and

  6  costs, including investigative costs, and any other equitable

  7  relief the court finds appropriate. Upon a finding that any

  8  person has violated any provision of ss. 496.401-496.424 or s.

  9  496.426 with actual knowledge or knowledge fairly implied on

10  the basis of objective circumstances, a court may enter an

11  order imposing a civil penalty in an amount not to exceed

12  $10,000 per violation.

13         (2)  The department of Legal Affairs may conduct any

14  investigation necessary to bring a civil action under this

15  section including, but not limited to, administering oaths and

16  affirmations, subpoenaing witnesses or material, and

17  collecting evidence.

18         (3)  The department of Legal Affairs may terminate an

19  investigation or an action upon acceptance of a person's

20  written assurance of voluntary compliance with ss.

21  496.401-496.424 or s. 496.426. Acceptance of an assurance may

22  be conditioned on commitment to reimburse donors or to take

23  other appropriate corrective action. An assurance is not

24  evidence of a prior violation of any of these sections.

25  However, unless an assurance has been rescinded by agreement

26  of the parties or voided by a court for good cause, subsequent

27  failure to comply with the terms of an assurance is prima

28  facie evidence of a violation of one or more of these

29  sections.

30         (4)  All moneys, including, but not limited to, civil

31  penalties and attorney's fees and costs, collected pursuant to


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  1  this section and s. 496.416, shall be paid into the General

  2  Inspection Consumer Frauds Trust Fund.

  3         Section 6.  Section 501.025, Florida Statutes, is

  4  amended to read:

  5         501.025  Home solicitation sale; buyer's right to

  6  cancel.--In addition to any other right to revoke an offer,

  7  the buyer has the right to cancel a home solicitation sale

  8  until midnight of the third business day after the day on

  9  which the buyer signs an agreement or offer to purchase.

10  Cancellation is evidenced by the buyer giving written notice

11  of cancellation in person, by telegram, or by mail to the

12  seller at the address stated in the agreement or offer to

13  purchase.  The written notice of cancellation given by mail

14  shall be effective upon postmarking. The notice of

15  cancellation need not take a particular form and is sufficient

16  if it indicates by any form of written expression the

17  intention of the buyer not to be bound by the home

18  solicitation sale.  Notice of a buyer's right to cancel must

19  appear on every note or other evidence of indebtedness given

20  pursuant to any home solicitation sale. For the purpose of

21  this section, unless a mortgage also creates the buyer's

22  promise to pay the secured debt, it is not an evidence of

23  indebtedness.

24         Section 7.  Section 501.33, Florida Statutes, is

25  amended to read:

26         501.33  Disclosure.--In all instances where nonoriginal

27  equipment manufacturer aftermarket crash parts are used in

28  preparing an estimate for repairs, the written estimate

29  prepared by the insurer or the repair facility, or both, shall

30  clearly identify each such part and its country of

31  manufacture.  A disclosure, signed by the insured or vehicle


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                                          HB 1061, First Engrossed



  1  owner prior to the repair, shall be attached to, or included

  2  in, the estimate and shall contain the following information

  3  in no smaller than 10-point type:  THIS ESTIMATE HAS BEEN

  4  PREPARED BASED ON THE USE OF CRASH PARTS SUPPLIED BY A SOURCE

  5  OTHER THAN THE MANUFACTURER OF YOUR MOTOR VEHICLE.  THE

  6  AFTERMARKET CRASH PARTS USED IN THE PREPARATION OF THIS

  7  ESTIMATE ARE WARRANTED BY THE MANUFACTURER OR DISTRIBUTOR OF

  8  SUCH PARTS RATHER THAN THE MANUFACTURER OF YOUR VEHICLE.

  9  Signature:                      Date:                  

10         Section 8.  The introductory paragraph of section

11  501.604, Florida Statutes, is amended to read:

12         501.604  Exemptions.--The provisions of this part,

13  except s. 501.608 and s. 501.616(6) and (7), do not apply to:

14         (1)  A person engaging in commercial telephone

15  solicitation where the solicitation is an isolated transaction

16  and not done in the course of a pattern of repeated

17  transactions of like nature.

18         (2)  A person soliciting for religious, charitable,

19  political, or educational purposes.  A person soliciting for

20  other noncommercial purposes is exempt only if that person is

21  soliciting for a nonprofit corporation and if that corporation

22  is properly registered as such with the Secretary of State and

23  is included within the exemption of s. 501(c)(3) or (6) of the

24  Internal Revenue Code.

25         (3)  A person who does not make the major sales

26  presentation during the telephone solicitation and who does

27  not intend to, and does not actually, complete or obtain

28  provisional acceptance of a sale during the telephone

29  solicitation, but who makes the major sales presentation and

30  completes the sale at a later face-to-face meeting between the

31  seller and the prospective purchaser in accordance with the


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                                          HB 1061, First Engrossed



  1  home solicitation provisions in this chapter. However, if a

  2  seller, directly following a telephone solicitation, causes an

  3  individual whose primary purpose it is to go to the

  4  prospective purchaser to collect the payment or deliver any

  5  item purchased, this exemption does not apply.

  6         (4)  Any licensed securities, commodities, or

  7  investment broker, dealer, or investment adviser, when

  8  soliciting within the scope of his or her license, or any

  9  licensed associated person of a securities, commodities, or

10  investment broker, dealer, or investment adviser, when

11  soliciting within the scope of his or her license.  As used in

12  this section, "licensed securities, commodities, or investment

13  broker, dealer, or investment adviser" means a person subject

14  to license or registration as such by the Securities and

15  Exchange Commission, by the National Association of Securities

16  Dealers or other self-regulatory organization as defined by

17  the Securities Exchange Act of 1934, 15 U.S.C. s. 78l, or by

18  an official or agency of this state or of any state of the

19  United States.  As used in this section, "licensed associated

20  person of a securities, commodities, or investment broker,

21  dealer, or investment adviser" means any associated person

22  registered or licensed by the National Association of

23  Securities Dealers or other self-regulatory organization as

24  defined by the Securities Exchange Act of 1934, 15 U.S.C. s.

25  78l, or by an official or agency of this state or of any state

26  of the United States.

27         (5)  A person primarily soliciting the sale of a

28  newspaper of general circulation.

29         (6)  A book, video, or record club or contractual plan

30  or arrangement:

31


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                                          HB 1061, First Engrossed



  1         (a)  Under which the seller provides the consumer with

  2  a form which the consumer may use to instruct the seller not

  3  to ship the offered merchandise.

  4         (b)  Which is regulated by the Federal Trade Commission

  5  trade regulation concerning "use of negative option plans by

  6  sellers in commerce."

  7         (c)  Which provides for the sale of books, records, or

  8  videos which are not covered under paragraph (a) or paragraph

  9  (b), including continuity plans, subscription arrangements,

10  standing order arrangements, supplements, and series

11  arrangements under which the seller periodically ships

12  merchandise to a consumer who has consented in advance to

13  receive such merchandise on a periodic basis.

14         (7)  Any supervised financial institution or parent,

15  subsidiary, or affiliate thereof. As used in this section,

16  "supervised financial institution" means any commercial bank,

17  trust company, savings and loan association, mutual savings

18  bank, credit union, industrial loan company, consumer finance

19  lender, commercial finance lender, or insurer, provided that

20  the institution is subject to supervision by an official or

21  agency of this state, of any state, or of the United States.

22  For the purposes of this exemption, "affiliate" means a person

23  who directly, or indirectly through one or more

24  intermediaries, controls or is controlled by, or is under

25  common control with, a supervised financial institution.

26         (8)  Any licensed insurance broker, agent, customer

27  representative, or solicitor when soliciting within the scope

28  of his or her license. As used in this section, "licensed

29  insurance broker, agent, customer representative, or

30  solicitor" means any insurance broker, agent, customer

31


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                                          HB 1061, First Engrossed



  1  representative, or solicitor licensed by an official or agency

  2  of this state or of any state of the United States.

  3         (9)  A person soliciting the sale of services provided

  4  by a cable television system operating under authority of a

  5  franchise or permit.

  6         (10)  A business-to-business sale where:

  7         (a)  The commercial telephone seller has been operating

  8  continuously for at least 3 years under the same business name

  9  and has at least 50 percent of its dollar volume consisting of

10  repeat sales to existing businesses;

11         (b)  The purchaser business intends to resell or offer

12  for purposes of advertisement or as a promotional item the

13  property or goods purchased; or

14         (c)  The purchaser business intends to use the property

15  or goods purchased in a recycling, reuse, remanufacturing, or

16  manufacturing process.

17         (11)  A person who solicits sales by periodically

18  publishing and delivering a catalog of the seller's

19  merchandise to prospective purchasers, if the catalog:

20         (a)  Contains a written description or illustration of

21  each item offered for sale.

22         (b)  Includes the business address or home office

23  address of the seller.

24         (c)  Includes at least 20 pages of written material and

25  illustrations and is distributed in more than one state.

26         (d)  Has an annual circulation by mailing of not less

27  than 150,000.

28         (12)  A person who solicits contracts for the

29  maintenance or repair of goods previously purchased from the

30  person making the solicitation or on whose behalf the

31  solicitation is made.


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                                          HB 1061, First Engrossed



  1         (13)  A commercial telephone seller licensed pursuant

  2  to chapter 516 or part II of chapter 520. For purposes of this

  3  exemption, the seller must solicit to sell a consumer good or

  4  service within the scope of his or her license and the

  5  completed transaction must be subject to the provisions of

  6  chapter 516 or part II of chapter 520.

  7         (14)  A telephone company subject to the provisions of

  8  chapter 364, or affiliate thereof or its agents, or a business

  9  which is regulated by the Florida Public Service Commission,

10  or a Federal Communications Commission licensed cellular

11  telephone company or other bona fide radio telecommunication

12  services provider. For the purposes of this exemption,

13  "affiliate" means a person who directly, or indirectly through

14  one or more intermediaries, controls or is controlled by, or

15  is under common control with, a telephone company subject to

16  the provisions of chapter 364.

17         (15)  A person who is licensed pursuant to chapter 470

18  or chapter 497 and who is soliciting within the scope of the

19  license.

20         (16)  An issuer or a subsidiary of an issuer that has a

21  class of securities which is subject to s. 12 of the

22  Securities Exchange Act of 1934, 15 U.S.C. s. 78l, and which

23  is either registered or exempt from registration under

24  paragraph (A), paragraph (B), paragraph (C), paragraph (E),

25  paragraph (F), paragraph (G), or paragraph (H) of subsection

26  (g)(2) of that section.

27         (17)  A business soliciting exclusively the sale of

28  telephone answering services provided that the telephone

29  answering services will be supplied by the solicitor.

30         (18)  A person soliciting a transaction regulated by

31  the Commodity Futures Trading Commission if the person is


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                                          HB 1061, First Engrossed



  1  registered or temporarily licensed for this activity with the

  2  Commodity Futures Trading Commission under the Commodity

  3  Exchange Act, 7 U.S.C. ss. 1 et seq., and the registration or

  4  license has not expired or been suspended or revoked.

  5         (19)  A person soliciting the sale of food or produce

  6  as defined in chapter 500 or chapter 504 if the solicitation

  7  neither intends to result in, or actually results in, a sale

  8  which costs the purchaser in excess of $500.

  9         (20)  A person who is registered pursuant to part XI of

10  chapter 559 and who is soliciting within the scope of the

11  registration.

12         (21)  A person soliciting business from prospective

13  consumers who have an existing business relationship with or

14  who have previously purchased from the business enterprise for

15  which the solicitor is calling, if the solicitor is operating

16  under the same exact business name.

17         (22)  A person who has been operating, for at least 1

18  year, a retail business establishment under the same name as

19  that used in connection with telemarketing, and both of the

20  following occur on a continuing basis:

21         (a)  Either products are displayed and offered for sale

22  or services are offered for sale and provided at the business

23  establishment.

24         (b)  A majority of the seller's business involves the

25  buyer obtaining such products or services at the seller's

26  location.

27         (23)  A person who is a registered developer or

28  exchange company pursuant to chapter 721 and who is soliciting

29  within the scope of the chapter.

30         (24)  Any person which has been providing telemarketing

31  sales services continuously for at least 5 years under the


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                                          HB 1061, First Engrossed



  1  same ownership and control and which derives 75 percent of its

  2  gross telemarketing sales revenues from contracts with persons

  3  exempted in this section.

  4         (25)  A person who is a licensed real estate

  5  salesperson or broker pursuant to chapter 475 and who is

  6  soliciting within the scope of the chapter.

  7         (26)  A publisher, or an agent of a publisher by

  8  written agreement, who solicits the sale of his or her

  9  periodical or magazine of general, paid circulation.  The term

10  "paid circulation" shall not include magazines that are only

11  circulated as part of a membership package or that are given

12  as a free gift or prize from the publisher or agent of the

13  publisher by written agreement.

14         (27)  A person who is a licensed operator or an

15  identification cardholder as defined in chapter 482, and who

16  is soliciting within the scope of the chapter.

17         (28)  A licensee, or an affiliate of a licensee,

18  regulated under chapter 560, the Money Transmitters' Code, for

19  foreign currency exchange services.

20         Section 9.  Subsections (6) and (7) are added to

21  section 501.616, Florida Statutes, to read:

22         501.616  Unlawful acts and practices.--

23         (6)  It shall be unlawful for any commercial telephone

24  seller or salesperson to make a commercial telephone

25  solicitation phone call before 8:00 a.m. or after 9:00 p.m.

26  local time at the called person's location.

27         (7)  It shall be unlawful for any commercial telephone

28  seller or salesperson making telephonic solicitations to take

29  any intentional action to prevent transmission of the

30  telephone solicitor's name or telephone number to the party

31  called when the equipment or service used by the telephone


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                                          HB 1061, First Engrossed



  1  solicitor is capable of creating and transmitting the

  2  telephone solicitor's name or telephone number.

  3         Section 10.  Paragraph (c) of subsection (3), paragraph

  4  (c) of subsection (5), paragraph (a) of subsection (6), and

  5  subsection (4) of section 539.001, Florida Statutes, are

  6  amended to read:

  7         539.001  The Florida Pawnbroking Act.--

  8         (3)  LICENSE REQUIRED.--

  9         (c)  Each license is valid for a period of 1 year

10  unless remains in effect until it is earlier relinquished,

11  suspended, or revoked, or expires. Each license shall be

12  renewed annually, and each licensee shall, initially and

13  annually thereafter, pay to the agency a license fee of not to

14  exceed $300 for each license held. If the annual license fee

15  remains unpaid 30 days after written notice of delinquency has

16  been given to the licensee by the agency, the license shall

17  thereupon expire on the expiration date specified in the

18  registration certificate.

19         (4)  ELIGIBILITY FOR LICENSE.--

20         (a)  To be eligible for a pawnbroker's license, an

21  applicant must:

22         1.  Be of good moral character;

23         2.  Have a net worth of at least $50,000 or file with

24  the agency a bond issued by a surety company qualified to do

25  business in this state in the amount of $10,000 for each

26  license. In lieu of the bond required in this section, the

27  applicant may establish a certificate of deposit or an

28  irrevocable letter of credit in a Florida banking institution

29  in the amount of the bond. The original bond, certificate of

30  deposit, or letter of credit shall be filed with the agency,

31  and the agency shall be the beneficiary to said document. The


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                                          HB 1061, First Engrossed



  1  bond, certificate of deposit, or letter of credit shall be in

  2  favor of the agency for the use and benefit of any consumer

  3  who is injured by the fraud, misrepresentation, breach of

  4  contract, financial failure, or violation of any provision of

  5  this section by the pawnbroker. Such liability may be enforced

  6  either by proceeding in an administrative action or by filing

  7  a judicial suit at law in a court of competent jurisdiction.

  8  However, in such court suit, the bond, certificate of deposit,

  9  or letter of credit posted with the agency shall not be

10  amenable or subject to any judgment or other legal process

11  issuing out of or from such court in connection with such

12  lawsuit, but such bond, certificate of deposit, or letter of

13  credit shall be amenable to and enforceable only by and

14  through administrative proceedings before the agency. It is

15  the intent of the Legislature that such bond, certificate of

16  deposit, or letter of credit shall be applicable and liable

17  only for the payment of claims duly adjudicated by order of

18  the agency. The bond, certificate of deposit, or letter of

19  credit shall be payable on a pro rata basis as determined by

20  the agency, but the aggregate amount may not exceed the amount

21  of the bond, certificate of deposit, or letter of credit;

22         3.  Not have been convicted of, or found guilty of, or

23  pled guilty or nolo contendere to, or not have been

24  incarcerated within the last 10 years as a result of having

25  previously been convicted of, or found guilty of, or plead

26  guilty or nolo contendere to, regardless of adjudication, a

27  felony within the last 10 years and not be acting as a

28  beneficial owner for someone who has been convicted of, or

29  found guilty of, or pled guilty or nolo contendere to,

30  regardless of adjudication, a felony within the last 10 years;

31  and


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                                          HB 1061, First Engrossed



  1         4.  Not have been convicted of, or found guilty of, or

  2  pled guilty or nolo contendere to, or not have been

  3  incarcerated within the last 10 years as a result of having

  4  previously been convicted of, or found guilty of, or pled

  5  guilty or nolo contendere to, regardless of adjudication, a

  6  crime that involves theft, larceny, dealing in stolen

  7  property, receiving stolen property, burglary, embezzlement,

  8  obtaining property by false pretenses, possession of altered

  9  property, or any other fraudulent or dishonest dealing the

10  agency finds directly relates to the duties and

11  responsibilities of a pawnbroker within the last 10 years, and

12  not be acting as a beneficial owner for someone who has been

13  convicted, of, or found guilty of, or pled guilty or nolo

14  contendere to, or has been incarcerated within the last 10

15  years as a result of having previously been convicted of, or

16  found guilty of, or pled guilty or nolo contendere to,

17  regardless of adjudication, a crime that involves theft,

18  larceny, dealing in stolen property, receiving stolen

19  property, burglary, embezzlement, obtaining property by false

20  pretenses, possession of altered property, or any other

21  fraudulent or dishonest dealing the agency finds directly

22  relates to the duties and responsibilities of a pawnbroker

23  within the last 10 years.

24         (b)  Any applicant claiming to have a net worth of

25  $50,000 or more shall file with the department, at the time of

26  applying for a license, the following documentation:

27         1.  A current financial statement prepared by a Florida

28  certified public accountant; or

29         2.  An affidavit stating the applicant's net worth is

30  at least $50,000, accompanied by supporting documentation; or

31


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                                          HB 1061, First Engrossed



  1         3.  If the applicant is a corporation, a copy of the

  2  applicant's most recently filed federal tax return.

  3

  4  If the agency cannot verify that the applicant meets the net

  5  worth requirement for a license, the agency may require a

  6  finding, including the presentation of a current balance

  7  sheet, by an accounting firm or individual holding a permit to

  8  practice public accounting in this state, that the accountant

  9  has reviewed the books and records of the applicant and that

10  the applicant meets the net worth requirement.

11         (c)  If an applicant for a pawnbroker's license is not

12  an individual, the eligibility requirements of this

13  subsection, other than the requirements of subparagraph (a)2.,

14  apply to each operator of the pawnshop and to each direct or

15  beneficial owner of at least 10 percent of the outstanding

16  equity interest of the pawnshop and, if the applicant is a

17  corporation, to each officer and director of the corporation.

18         (5)  APPLICATION FOR LICENSE.--

19         (c)  Each initial application for a license must be

20  accompanied by a complete set of fingerprints taken by an

21  authorized law enforcement officer, an application fee set by

22  the agency not to exceed $300 for, which shall include the

23  first year's license fee, and for the first year's operation,

24  plus the actual cost to the department for fingerprint

25  analysis for each person subject to the eligibility

26  requirements. The agency shall submit the fingerprints to the

27  Department of Law Enforcement for state processing and the

28  Department of Law Enforcement shall forward the fingerprints

29  to the Federal Bureau of Investigation for a national criminal

30  history check owner application, to cover the costs of

31


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                                          HB 1061, First Engrossed



  1  investigating the applicant. These fees and costs are not

  2  refundable.

  3         (6)  SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE;

  4  NET WORTH REQUIREMENT.--

  5         (a)  The agency may, after notice and a hearing,

  6  suspend or revoke any license upon a finding that:

  7         1.  The licensee, either knowingly or without the

  8  exercise of due care, has violated this section or has aided

  9  or conspired with another person to violate this section;

10         2.  A condition exists that, had it existed when the

11  original license was issued, would have justified the agency's

12  refusal to issue a license; or

13         3.  The licensee or its applicable agents or employees

14  who are subject to the eligibility requirements no longer meet

15  the eligibility requirements to hold a pawnbroker's license;

16  or

17         4.3.  The licensee has through gross negligence or

18  willful noncompliance failed to comply with a written hold

19  order.

20         (17)  CRIMINAL PENALTIES.--

21         (a)  Any person who engages in business as a pawnbroker

22  without first securing a license commits a felony of the third

23  degree, punishable as provided in s. 775.082, s. 775.083, or

24  s. 775.084.

25         (b)  In addition to any other penalty, any person, who

26  willfully violates this section or who willfully makes a false

27  entry in any record specifically required by this section

28  commits a misdemeanor of the first degree, punishable as

29  provided in s. 775.082 or s. 775.083. Clerical or

30  recordkeeping errors such as typographical errors, scrivener's

31  errors, regarding any document or record required by this


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                                          HB 1061, First Engrossed



  1  section do not constitute a willful violation of this section,

  2  and are not subject to criminal penalties.  Clerical or

  3  recordkeeping errors are subject to the administrative

  4  remedies, as provided in this Act.

  5         Section 11.  Paragraph (a) of subsection (11) of

  6  section 559.803, Florida Statutes, is amended to read:

  7         559.803  Disclosure statement.--At least 3 working days

  8  prior to the time the purchaser signs a business opportunity

  9  contract, or at least 3 working days prior to the receipt of

10  any consideration by the seller, whichever occurs first, the

11  seller must provide the prospective purchaser a written

12  document, the cover sheet of which is entitled in at least

13  12-point boldfaced capital letters "DISCLOSURES REQUIRED BY

14  FLORIDA LAW."  Under this title shall appear the following

15  statement in at least 10-point type:  "The State of Florida

16  has not reviewed and does not approve, recommend, endorse, or

17  sponsor any business opportunity.  The information contained

18  in this disclosure has not been verified by the state.  If you

19  have any questions about this investment, see an attorney

20  before you sign a contract or agreement."  Nothing except the

21  title and required statement shall appear on the cover sheet.

22  Immediately following the cover sheet, the seller must provide

23  an index page that briefly lists the contents of the

24  disclosure document as required in this section and any pages

25  on which the prospective purchaser can find each required

26  disclosure.  At the top of the index page, the following

27  statement must appear in at least 10-point type: "The State of

28  Florida requires sellers of business opportunities to disclose

29  certain information to prospective purchasers.  This index is

30  provided to help you locate this information."  If the index

31  contains other information not required by this section, the


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                                          HB 1061, First Engrossed



  1  seller shall place a designation beside each of the

  2  disclosures required by this section and provide an

  3  explanation of the designation at the end of the statement at

  4  the top of the index page.  The disclosure document shall

  5  contain the following information:

  6         (11)  A statement disclosing who, if any, of the

  7  persons listed in subsections (1) and (2):

  8         (a)  Has, at any time during the previous 10 7 fiscal

  9  years, regardless of adjudication, been convicted of, or found

10  guilty of, or pled guilty or nolo contendere to, or has been

11  incarcerated within the last 10 years as a result of having

12  previously been convicted of, or found guilty of, or pled

13  guilty or nolo contendere to, a felony or a crime involving a

14  felony or pleaded nolo contendere to a felony charge if the

15  felony involved fraud, theft, larceny, (including violation of

16  any franchise or business opportunity law or unfair or

17  deceptive practices law), embezzlement, fraudulent conversion,

18  misappropriation of property, or restraint of trade.

19         Section 12.  Subsections (2), (3), and (4) of section

20  559.805, Florida Statutes, 1998 Supplement, are renumbered as

21  subsections (3), (4), and (5), respectively, and a new

22  subsection (2) is added to said section to read:

23         559.805  Filings with the department; disclosure of

24  advertisement identification number.--

25         (2)  Every seller of a business opportunity shall file

26  with the department a list of the seller's officers,

27  directors, trustees, general partners, general managers,

28  principal executives, and any other persons charged with the

29  responsibility for the seller's business activities relating

30  to the sale of business opportunities. This list must be kept

31  current and shall include the following information:  name,


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                                          HB 1061, First Engrossed



  1  home and business address, telephone number, driver's license

  2  number, the state in which the driver's license is issued, and

  3  birth date.

  4         Section 13.  Section 559.815, Florida Statutes, is

  5  reenacted to read:

  6         559.815  Penalties.--Any person who fails to file with

  7  the department as required by s. 559.805 or who commits an act

  8  described in s. 559.809 is guilty of a felony of the third

  9  degree, punishable as provided in s. 775.082, s. 775.083, or

10  s. 775.084.

11         Section 14.  Subsection (6) of section 559.903, Florida

12  Statutes, is amended to read:

13         559.903  Definitions.--As used in this act:

14         (6)  "Motor vehicle" means any automobile, truck, bus,

15  recreational vehicle, motorcycle, motor scooter, or other

16  motor powered vehicle, but does not include trailers, mobile

17  homes, travel trailers, or trailer coaches without independent

18  motive power, or watercraft or aircraft, or special mobile

19  equipment as defined in s. 316.003(48).

20         Section 15.  Subsection (11) is added to section

21  559.904, Florida Statutes, 1998 Supplement, to read:

22         559.904  Motor vehicle repair shop registration;

23  application; exemption.--

24         (11)  The department shall post a prominent "Closed by

25  Order of the Department" sign on any motor vehicle repair shop

26  that has had its registration suspended or revoked. The

27  department shall also post a sign on any motor vehicle repair

28  shop that has been judicially or administratively determined

29  to be operating without a registration. It is a misdemeanor of

30  the second degree, punishable as provided in s. 775.082 or s.

31  775.083, for any person to deface such sign or remove such


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                                          HB 1061, First Engrossed



  1  sign without written authorization by the department or for

  2  any motor vehicle repair shop to open for operation without a

  3  registration or to open for operation as a motor vehicle

  4  repair shop while its registration is suspended or revoked.

  5  The department may impose administrative sanctions provided

  6  for in s. 559.921(4) for violations of this subsection.

  7         Section 16.  Subsection (1) of section 627.481, Florida

  8  Statutes, is amended to read:

  9         627.481  Requirements for certain annuity agreements.--

10         (1)  Any duly organized domestic or foreign nonstock

11  corporation, or any unincorporated charitable trust, if such

12  corporation or trust

13         (a)  Has been in active operation for at least 5 years

14  prior thereto and has qualified as an exempt organization

15  under the Internal Revenue Code, 26 U.S.C. s. 501(c)(3), or

16         (b)  Has been wholly controlled for at least 10 years

17  by a corporation or trust qualified under paragraph (a), if

18  the subunit has been a corporation or trust for at least 2

19  years, and has engaged in the selling of annuity agreements

20  authorized under this section in at least three other states

21  without complaint,

22

23  may enter into annuity agreements with donors in accordance

24  with this section. Such corporation or trust may receive gifts

25  conditioned upon, or in return for, its agreement to pay an

26  annuity to the donor or other designated beneficiary or

27  beneficiaries and to make and carry out such annuity

28  agreement. Annuity benefits under any such annuity agreement

29  must be calculated to return to such corporation or trust upon

30  the death of the annuitant a residue at least equal to

31


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                                          HB 1061, First Engrossed



  1  one-half the original gift or other consideration for such

  2  annuity.

  3         Section 17.  Paragraph (a) of subsection (3) of section

  4  741.0305, Florida Statutes, is amended to read:

  5         741.0305  Marriage fee reduction for completion of

  6  premarital preparation course.--

  7         (3)(a)  All individuals electing to participate in a

  8  premarital preparation course shall choose from the following

  9  list of qualified instructors:

10         1.  A psychologist licensed under chapter 490.

11         2.  A clinical social worker licensed under chapter

12  491.

13         3.  A marriage and family therapist licensed under

14  chapter 491.

15         4.  A mental health counselor licensed under chapter

16  491.

17         5.  An official representative of a religious

18  institution which is recognized under s. 496.404(19)(20), if

19  the representative has relevant training.

20         6.  Any other provider designated by a judicial

21  circuit, including, but not limited to, school counselors who

22  are certified to offer such courses. Each judicial circuit may

23  establish a roster of area course providers, including those

24  who offer the course on a sliding fee scale or for free.

25         (b)  The costs of such premarital preparation course

26  shall be paid by the applicant.

27         Section 18.  Effective July 1, 1999, section 427.802,

28  Florida Statutes, is amended to read:

29         427.802  Definitions.--As used in this part:

30         (1)  "Assistive technology devices" means manual

31  wheelchairs, motorized wheelchairs, motorized scooters,


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                                          HB 1061, First Engrossed



  1  voice-synthesized computer modules, optical scanners, talking

  2  software, braille printers, environmental control devices for

  3  use by a person with quadriplegia, motor vehicle adaptive

  4  transportation aids, devices that enable persons with severe

  5  speech disabilities to in effect speak, personal transfer

  6  systems, and specialty beds, including a demonstrator, that a

  7  consumer purchases or accepts transfer of in this state for

  8  use by a person with a disability.

  9         (2)  "Assistive Technology Device Warranty Act rights

10  period" means the period ending 1 year after first delivery of

11  the assistive technology device to the consumer or the

12  manufacturer's express written warranty, whichever is longer.

13         (3)(2)  "Person with a disability" means any person who

14  has one or more permanent physical or mental limitations that

15  restrict his or her ability to perform the normal activities

16  of daily living and impede his or her capacity to live

17  independently.

18         (4)(3)  "Assistive technology device dealer" means a

19  business entity that is primarily engaged person who is in the

20  business of selling or leasing of assistive technology

21  devices. As used in this subsection, the term "primarily"

22  means no less than 30 percent of the business entity's gross

23  sales in the previous fiscal year.

24         (5)(4)  "Assistive technology device lessor" means a

25  person who leases an assistive technology device to a

26  consumer, or holds the lessor's rights, under a written lease.

27         (6)(5)  "Collateral costs" means expenses incurred by a

28  consumer in connection with the repair of a nonconformity,

29  including the costs of obtaining an alternative assistive

30  technology device.

31         (7)(6)  "Consumer" means any of the following:


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                                          HB 1061, First Engrossed



  1         (a)  The purchaser of an assistive technology device,

  2  if the assistive technology device was purchased from an

  3  assistive technology device dealer or manufacturer for

  4  purposes other than resale.

  5         (b)  A person to whom the assistive technology device

  6  is transferred for purposes other than resale, if the transfer

  7  occurs before the expiration of an express warranty applicable

  8  to the assistive technology device.

  9         (c)  A person who may enforce the warranty.

10         (d)  A person who leases an assistive technology device

11  from an assistive technology device lessor under a written

12  lease.

13         (8)(7)  "Demonstrator" means an assistive technology

14  device used primarily for the purpose of demonstration to the

15  public.

16         (9)  "Department" means the Department of Agriculture

17  and Consumer Services.

18         (10)(8)  "Early termination cost" means any expense or

19  obligation that an assistive technology device lessor incurs

20  as a result of both the termination of a written lease before

21  the termination date set forth in that lease and the return of

22  an assistive technology device to a manufacturer pursuant to

23  this section.  The term includes a penalty for prepayment

24  under a financial arrangement.

25         (11)(9)  "Early termination saving" means any expense

26  or obligation that an assistive technology device lessor

27  avoids as a result of both the termination of a written lease

28  before the termination date set forth in the lease and the

29  return of an assistive technology device to a manufacturer

30  pursuant to this section.  The term includes an interest

31  charge that the assistive technology device lessor would have


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                                          HB 1061, First Engrossed



  1  paid to finance the assistive technology device or, if the

  2  assistive technology device lessor does not finance the

  3  assistive technology device, the difference between the total

  4  amount for which the lease obligates the consumer during the

  5  period of the lease term remaining after the early termination

  6  and the present value of that amount at the date of the early

  7  termination.

  8         (12)(10)  "Manufacturer" means a business entity that

  9  manufactures or produces assistive technology devices for sale

10  and agents of that business entity, including an importer, a

11  distributor, a factory branch, a distributor branch, and any

12  warrantors of the manufacturer's assistive technology device,

13  but not including an assistive technology device dealer.

14         (13)(11)  "Nonconformity" means a condition or defect

15  of an assistive technology device which substantially impairs

16  the use, value, or safety of the device and which is covered

17  by an express warranty applicable to the assistive technology

18  device, but does not include a condition or defect that is the

19  result of abuse, neglect, or unauthorized modification or

20  alteration of the assistive technology device by a consumer.

21         (14)(12)  "Reasonable attempt to repair" means, within

22  the terms of an express warranty applicable to a new assistive

23  technology device:

24         (a)  A maximum of three efforts by the manufacturer,

25  the assistive technology device lessor, or any of the

26  manufacturer's authorized assistive technology device dealers

27  to repair a nonconformity that is subject to repair under the

28  warranty; or

29         (b)  The passage of at least 30 cumulative days during

30  which the assistive technology device is out of service

31  because of a nonconformity that is covered by the warranty.


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                                          HB 1061, First Engrossed



  1         Section 19.  Effective July 1, 1999, section 427.803,

  2  Florida Statutes, is amended to read:

  3         427.803  Duty of manufacturer and an assistive

  4  technology device dealer to conform an assistive technology

  5  device to the warranty Express warranty.--

  6         (1)  A manufacturer who sells a new assistive

  7  technology device to a consumer, either directly or through an

  8  assistive technology device dealer, shall furnish the consumer

  9  with an express warranty for the assistive technology device.

10  The duration of the express warranty must be at least 1 year

11  after first delivery of the assistive technology device to the

12  consumer.  In the absence of an express warranty from the

13  manufacturer, the manufacturer is considered to have expressly

14  warranted to the consumer of an assistive technology device

15  that, for a period of 1 year after the date of first delivery

16  to the consumer, the assistive technology device will be free

17  from any condition or defect that substantially impairs the

18  value of the assistive technology device to the consumer.

19         (2)  If an assistive technology device does not conform

20  to the warranty and the consumer first reports the problem to

21  the manufacturer during the Assistive Technology Device

22  Warranty Act rights period, the manufacturer shall make such

23  repairs as are necessary to conform the device to the

24  warranty, irrespective of whether such repairs are made after

25  the expiration of the Assistive Technology Device Warranty Act

26  rights period. Such repairs shall be at no cost to the

27  consumer if reported to the manufacturer or assistive

28  technology device dealer during the Assistive Technology

29  Device Warranty Act rights period. Nothing in this paragraph

30  shall be construed to grant an extension of the Assistive

31  Technology Device Warranty Act rights period or to expand the


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                                          HB 1061, First Engrossed



  1  time within which a consumer must file a complaint under this

  2  chapter.

  3         (3)  Each manufacturer or assistive technology device

  4  dealer shall provide to its consumers conspicuous notice of

  5  the address and phone number for its zone, district, or

  6  regional office for this state in the written warranty or

  7  owner's manual.  Within 10 days after the department's written

  8  request, a manufacturer shall forward to the department a copy

  9  of the owner's manual and any written warranty for each make

10  and model of assistive technology device that it sells in this

11  state.

12         (4)  The manufacturer shall provide to the assistive

13  technology device dealer and, at the time of acquisition, the

14  assistive technology device dealer shall provide to the

15  consumer a written statement that explains the consumer's

16  rights under this chapter.  The written statement shall be

17  prepared by the department and shall contain a toll-free

18  number for the department that the consumer can contact to

19  obtain information regarding the consumer's rights and

20  obligations under this chapter or to commence arbitration. The

21  consumer's signed acknowledgment of receipt of materials

22  required under this subsection shall constitute prima facie

23  evidence of compliance by the manufacturer and assistive

24  technology device dealer. The form of the acknowledgments

25  shall be approved by the department, and the assistive

26  technology device dealer shall maintain the consumer's signed

27  acknowledgment for 3 years.

28         (5)  A manufacturer or an assistive technology device

29  dealer shall provide to the consumer, each time the consumer's

30  assistive technology device is returned after being examined

31  or repaired under the warranty, a fully itemized, legible


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                                          HB 1061, First Engrossed



  1  statement of any diagnosis made and all work performed on the

  2  assistive technology device, including, but not limited to, a

  3  general description of the problem reported by the consumer or

  4  an identification of the defect or condition, parts and labor,

  5  the date on which the assistive technology device was

  6  submitted for examination or repair, and the date when the

  7  repair or examination was completed.

  8         Section 20.  Effective July 1, 1999, section 427.804,

  9  Florida Statutes, is amended to read:

10         427.804  Repair of nonconforming assistive technology

11  devices; refund or replacement of devices after attempt to

12  repair; sale or lease of returned device; arbitration;

13  investigation; limitation of rights.--

14         (1)  If a new assistive technology device does not

15  conform to an applicable express warranty and the consumer

16  reports the nonconformity to the manufacturer, the assistive

17  technology device lessor, or any of the manufacturer's

18  authorized assistive technology device dealers and makes the

19  assistive technology device available for repair within 1 year

20  after first delivery or return of the assistive technology

21  device to the consumer, the nonconformity must be repaired at

22  no charge to the consumer.

23         (2)  If, after a reasonable attempt to repair, the

24  nonconformity is not repaired, the manufacturer, at the

25  direction of a consumer as defined in s. 427.802(7)(6)(a)-(c),

26  must do one of the following:

27         (a)  Accept return of the assistive technology device

28  and replace the assistive technology device with a comparable

29  new assistive technology device and refund any collateral

30  costs.

31


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                                          HB 1061, First Engrossed



  1         (b)  Accept return of the assistive technology device

  2  and refund to the consumer and to any holder of a perfected

  3  security interest in the consumer's assistive technology

  4  device, as the interest may appear, the full purchase price

  5  plus any finance charge amount paid by the consumer at the

  6  point of sale, and collateral costs.

  7         (c)  With respect to a consumer as defined in s.

  8  427.802(7)(6)(d), accept return of the assistive technology

  9  device, refund to the assistive technology device lessor and

10  to any holder of a perfected security interest in the

11  assistive technology device, as the interest may appear, the

12  current value of the written lease, and refund to the consumer

13  the amount that the consumer paid under the written lease plus

14  any collateral costs.

15         (3)  The current value of the written lease equals the

16  total amount for which the lease obligates the consumer during

17  the period of the lease remaining after its early termination

18  plus the assistive technology device dealer's early

19  termination costs and the value of the assistive technology

20  device at the lease expiration date if the lease sets forth

21  the value, less the assistive technology device lessor's early

22  termination savings.

23         (4)  To receive a comparable new assistive technology

24  device or a refund due under paragraph (2)(a), a consumer must

25  offer to the manufacturer of the assistive technology device

26  having the nonconformity to transfer possession of the

27  assistive technology device to the manufacturer.  No later

28  than 30 days after the offer, the manufacturer shall provide

29  the consumer with the comparable assistive technology device

30  or refund.  When the manufacturer provides the comparable

31  assistive technology device or refund, the consumer shall


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                                          HB 1061, First Engrossed



  1  return the assistive technology device having the

  2  nonconformity to the manufacturer, along with any endorsements

  3  necessary to transfer real possession to the manufacturer.

  4         (5)  To receive a refund due under paragraph (2)(b), a

  5  consumer must offer to return the assistive technology device

  6  having the nonconformity to its manufacturer.  No later than

  7  30 days after the offer, the manufacturer shall provide the

  8  refund to the consumer.  When the manufacturer provides the

  9  refund, the consumer shall return to the manufacturer the

10  assistive technology device having the nonconformity.

11         (6)  To receive a refund due under paragraph (2)(c), an

12  assistive technology device lessor must offer to transfer

13  possession of the assistive technology device having the

14  nonconformity to its manufacturer.  No later than 30 days

15  after the offer, the manufacturer shall provide the refund to

16  the assistive technology device lessor.  When the manufacturer

17  provides the refund, the assistive technology device lessor

18  shall provide to the manufacturer any endorsements necessary

19  to transfer legal possession to the manufacturer.

20         (7)  A person may not enforce the lease against the

21  consumer after the consumer receives a refund due under

22  paragraph (2)(c).

23         (8)  An assistive technology device that is returned by

24  a consumer or assistive technology device lessor in this

25  state, or by a consumer or assistive technology device lessor

26  in another state under a similar law of that state, may not be

27  sold or leased again in this state, unless full disclosure of

28  the reasons for return is made to any prospective buyer or

29  lessee.

30         (9)  Each consumer may submit any dispute arising under

31  this part to the department by completing a complaint form.


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                                          HB 1061, First Engrossed



  1  The department may investigate the complaint on behalf of the

  2  consumer if reasonable evidence warrants such an action.

  3         (10)  The department shall process consumer complaints

  4  pursuant to s. 570.544.

  5         (11)(9)  Each consumer may submit any dispute arising

  6  under this part to an alternative arbitration mechanism

  7  established pursuant to chapter 682. Upon notice by the

  8  consumer, all manufacturers must submit to such alternative

  9  arbitration.

10         (12)(10)  Such alternative arbitration must be

11  conducted by a professional arbitrator or arbitration firm

12  appointed under chapter 682 and any applicable rules.  These

13  procedures must provide for the personal objectivity of the

14  arbitrators and for the right of each party to present its

15  case, to be in attendance during any presentation made by the

16  other party, and to rebut or refute such a presentation.

17         (13)(11)  This part does not limit rights or remedies

18  available to a consumer under any other law.

19         Section 21.  Effective July 1, 1999, section 427.8041,

20  Florida Statutes, is created to read:

21         427.8041  Assistive technology device dealers

22  registration; application; exemption; penalties; adoption of

23  fees and fines; purchase fees.--

24         (1)  Each assistive technology device dealer must

25  register with the department prior to doing business in this

26  state. The application for registration must be on a form

27  adopted by the department and must include at least the

28  following information:

29         (a)  The name of the applicant.

30         (b)  The name under which the applicant is doing

31  business.


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                                          HB 1061, First Engrossed



  1         (c)  The business address at which the applicant sells

  2  assistive technology devices or in the case of a mobile

  3  assistive technology device business, the home address of the

  4  owner, if different from the business address.

  5         (d)  Copies of all licenses, permits, and

  6  certifications obtained by the applicant or employees of the

  7  applicant.

  8         (2)  Any assistive technology device dealer maintaining

  9  more than one place of business must register each separate

10  location. In such case, fees shall be paid for each place of

11  business.

12         (3)  Each initial application and renewal application

13  for registration must be accompanied by a registration fee of

14  $300.

15         (4)  The department shall issue to each applicant a

16  registration certificate.  In the case of an applicant with

17  more than one place of business, the department shall issue a

18  registration certificate for each place of business. The

19  certificate must show at least the name and address of the

20  assistive technology device dealer and the registration number

21  for that place of business. In the case of a mobile assistive

22  technology device dealer, the certificate must show the home

23  address of the owner, if different from the business address.

24  The registration certificate must be posted in a conspicuous

25  manner in the assistive technology device dealer's place of

26  business.

27         (5)  Any person applying for or renewing a local

28  occupational license on or after July 1, 1999, to engage in

29  selling assistive technology devices must exhibit an active

30  registration certificate from the department before the local

31  occupational license may be issued or renewed.


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                                          HB 1061, First Engrossed



  1         (6)  Each registration must be renewed annually on or

  2  before the expiration date of the current registration. A late

  3  fee of $25 shall be paid, in addition to the registration fee

  4  or any other penalty, for any registration renewal application

  5  that is received by the department after the expiration date

  6  of the current registration. The department may not issue the

  7  registration until all fees are paid.

  8         (7)  The department may deny or refuse to renew the

  9  registration of the assistive technology device dealer based

10  upon a determination that the dealer, or any of its directors,

11  officers, owners, or general partners:

12         (a)  Have failed to meet the requirements for

13  registration as provided in this part;

14         (b)  Have not satisfied a civil fine, administrative

15  fine, or other penalty arising out of any administrative or

16  enforcement action brought by any governmental agency based

17  upon conduct involving fraud, dishonest dealing, or any

18  violation of this part;

19         (c)  Have had against them any civil, criminal, or

20  administrative adjudication in any jurisdiction, based upon

21  conduct involving fraud, dishonest dealing, or any violation

22  of this part; or

23         (d)  Have had a judgment entered against them in any

24  action brought by the department or the state attorney.

25         (8)  All assistive technology device dealers shall

26  allow department personnel to enter their place of business to

27  ascertain whether the registration certificate is current.  If

28  department personnel are refused entry or access to the

29  premises, the department may seek injunctive relief in circuit

30  court in order to obtain compliance with this subsection.

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                                          HB 1061, First Engrossed



  1         (9)  The department may enter an order imposing one or

  2  more of the penalties set forth in subsection (13) if the

  3  department finds that an assistive technology device dealer:

  4         (a)  Violated or is operating in violation of any of

  5  the provisions of this part or of the rules adopted or orders

  6  issued thereunder;

  7         (b)  Made a material false statement in any

  8  application, document, or record required to be submitted or

  9  retained under this part;

10         (c)  Refused or failed, or any of its principal

11  officers have refused or failed, after notice, to produce any

12  document or record or disclose any information required to be

13  produced or disclosed under this part or the rules of the

14  department;

15         (d)  Made a material false statement in response to any

16  request or investigation by the department, the Department of

17  Legal Affairs, or the state attorney; or

18         (e)  Has intentionally defrauded the public through

19  dishonest or deceptive means.

20         (10)  Upon a finding as set forth in subsection (12),

21  the department may enter an order doing one or more of the

22  following:

23         (a)  Issuing a notice of noncompliance pursuant to s.

24  120.695.

25         (b)  Imposing an administrative fine not to exceed

26  $5,000 per violation for each act which constitutes a

27  violation of this part or a rule or order.

28         (c)  Directing that the assistive technology device

29  dealer cease and desist specified activities.

30         (d)  Refusing to register or revoking or suspending a

31  registration.


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                                          HB 1061, First Engrossed



  1         (e)  Placing the registrant on probation for a period

  2  of time, subject to such conditions as the department may

  3  specify.

  4         (11)  The administrative proceedings which could result

  5  in the entry of an order imposing any of the penalties

  6  specified in subsection (10) shall be conducted in accordance

  7  with chapter 120.

  8         (12)  The department or the state attorney, if a

  9  violation of this part occurs in his or her judicial circuit,

10  shall be the enforcing authority for purposes of this part and

11  may bring a civil action in circuit court for temporary or

12  permanent injunctive relief and may seek other appropriate

13  civil relief, including a civil penalty not to exceed $5,000

14  for each violation, restitution and damages for injured

15  customers, court costs, and reasonable attorney's fees.

16         (13)  The enforcing authority may terminate any

17  investigation or action upon agreement by the offender to pay

18  a stipulated civil penalty, to make restitution or pay damages

19  to customers, or to satisfy any other relief authorized herein

20  and requested by the department.

21         (14)  The remedies provided for in this section shall

22  be in addition to any other remedy provided by law.

23         (15)  Fees and fines collected under this part by the

24  Department of Agriculture and Consumer Services shall be

25  deposited in the General Inspection Trust Fund.

26         (16)  A $2 fee shall be collected by the assistive

27  technology device dealer or assistive technology device lessor

28  from the consumer at the consummation of the sale or lease of

29  an assistive technology device. Such fees must be remitted

30  monthly to the Department of Revenue. All fees, less the cost

31  of administration, must be transferred monthly to the


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                                          HB 1061, First Engrossed



  1  Department of Agriculture and Consumer Services for deposit

  2  into the General Inspection Trust Fund to carry out the

  3  provisions of s. 427.8041. The Department of Agriculture and

  4  Consumer Services may use an amount it determines necessary to

  5  purchase expert consultation services to assist in carrying

  6  out the provisions of this act.

  7         (17)  In fiscal year 1999-2000, the Department of

  8  Agriculture and Consumer Services may use 5 percent of the

  9  fees collected and remitted in that fiscal year by the

10  assistive technology device dealers or lessors under

11  subsection (16) and, during each fiscal year thereafter, may

12  use between 5 percent and 10 percent of such fees collected in

13  that fiscal year, towards the development of an Assistive

14  Technology Device Warranty Act Education Program or to

15  purchase expert consultation services from an entity having

16  the mission of promoting access to, awareness of, and advocacy

17  for assistive technology devices and services to:

18         (a)  Assist investigators to effectively carry out s.

19  427.806.

20         (b)  Conduct sensitivity training for the department's

21  staff as it relates to assistive technology to ensure

22  effective recording of complaints relating to assistive

23  technology.

24         (c)  Assist in the design and strategy of a consumer

25  education program to educate consumers of assistive technology

26  devices and assistive technology device dealers on this act as

27  amended.

28         (18)  In addition to pursuing any other remedy, a

29  consumer may bring an action to recover damages for any injury

30  caused by a violation of this part. The court shall award a

31  consumer who prevails in such an action twice the amount of


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                                          HB 1061, First Engrossed



  1  any pecuniary loss, together with costs, disbursements, and

  2  reasonable attorney's fees, and any equitable relief that the

  3  court determines is appropriate.

  4         (19)  An assistive technology device dealer that is

  5  required to be registered under this act must keep and

  6  maintain records relating to each sale or lease of assistive

  7  technology devices for a period of 2 years.

  8         (20)  The department may, at any time during business

  9  hours, enter any business location of an assistive technology

10  device dealer that is required to be registered under this act

11  and examine the books and records of the assistive technology

12  device dealer.

13         (21)  The department may adopt rules in accordance with

14  chapter 120 to implement this part.

15         Section 22.  (1)  There is appropriated from the

16  General Inspection Trust Fund of the Department of Agriculture

17  and Consumer Services for Fiscal Year 1999-2000 the sum of

18  $450,000 for six full-time equivalent positions to administer

19  this act.

20         (2)  This section shall take effect July 1, 1999.

21         Section 23.  Except as otherwise provided herein, this

22  act shall take effect upon becoming a law.

23

24

25

26

27

28

29

30

31


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